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Food and Nutrition Service, USDA.
Final rule; correction.
The Department of Agriculture, Food and Nutrition Service (FNS), published a final rule in the
Julie Brewer, Chief, Policy and Program Development Branch, Child Nutrition Division, FNS, 3101 Park Center Drive, Alexandria, Virginia 22302.
Accordingly, the final rule (FR Doc. 2013-31433) published at 79 FR 325 on January 3, 2014 is corrected as follows:
1. On pages 330 through 340, correct Appendix A to read as follows:
The following appendix will not appear in the Code of Federal Regulations.
The National School Lunch Program (NSLP) is available to over 50 million children each school day; an average of 31.6 million children per day ate a reimbursable lunch in fiscal year (FY) 2012. Schools that participate in NSLP receive Federal reimbursement and USDA Foods (donated commodities) for meals that meet program requirements.
Sections 4 and 11 of the Richard B. Russell National School Lunch Act (NSLA) govern the Federal reimbursement of school lunches. Reimbursement for school breakfasts is governed by Section 4(b) of the Child Nutrition Act. Reimbursement rates for both NSLP and SBP meals are adjusted annually for inflation under terms specified in Section 11 of the NSLA.
Federal reimbursement for program meals and the value of USDA Foods totaled $14.9 billion in FY 2012. Table 1 summarizes FNS projections of reimbursable meals served and the value of Federal reimbursements and USDA Foods through FY 2017.
The baseline for this analysis is the cost estimate published with the interim final rule.
Table 2
Section 201 of the Healthy, Hunger-Free Kids Act of 2010 (HHFKA) directs the USDA to issue regulations to update the NSLP and SBP meal patterns to align them with the
HHFKA Section 201 also provides for a 6 cent increase to the USDA reimbursement for lunches served on or after October 1, 2012 that meet the new meal standards. The interim rule provided the regulatory structure necessary to establish initial school food authority (SFA) compliance with the new meal standards and to monitor ongoing compliance. This final rule responds to concerns raised by comments given in response to the interim rule.
The interim rule included provisions that govern initial certification of SFA compliance with the breakfast and lunch meal patterns that took effect on July 1, 2012, ongoing monitoring of compliance by State agencies, consequences for non-compliance, and administrative responsibilities of SFAs and State agencies. SFAs began receiving an additional 6 cents for each reimbursable lunch served on or after October 1, 2012 that was determined to comply with the new meal standards. Key provisions of the interim rule included:
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i. Nutrient analysis: SFAs may submit to their State agency one week of each menu used by the SFA, along with the results of a nutrient analysis on each menu, and a menu worksheet.
ii. Practices and indicators documentation: SFAs may submit to their State agency responses to a series of questions on program operations, a week of each menu used by the SFA, and a menu worksheet.
iii. State agency reviews: SFAs may be certified in the process of a normal State agency administrative review. An SFA determined by the State agency to be compliant with all meal pattern and nutrient standards during an administrative review will be certified eligible for the performance-based lunch reimbursement.
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•
•
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This rule finalizes the provisions of the interim rule, including the procedures for performance-based certifications, required documentation and timeframes, validation reviews, compliance and administrative reviews, reporting and recordkeeping, and technical assistance, with a few revisions:
• This final rule amends the reporting requirement at 7 CFR 210.5(d)(2)(ii) to require that State agencies only include in their quarterly SFA performance-based certification report the total number of SFAs in the State and the names of certified SFAs. This represents a simplification of the reporting requirement from the interim rule. The change formalizes the simplification previously adopted by USDA and communicated to State agencies through Policy Memo SP 31-2012.
• This final rule at 7 CFR 210.7(d)(1) makes permanent a flexibility in requirements for weekly maximum grains and meat/meat alternates as originally outlined in Policy Memo SP 26-2013 and the flexibility for serving frozen fruit with added sugar as originally outlined in Policy Memo SP 20-2012. These changes make it easier for SFAs to meet the requirements of the school meals rule, which is a prerequisite for certification for the performance-based reimbursement.
The interim rule generated about 200 comments. As noted in the preamble to the final rule, most of the comments pertained to either the school meals rule (e.g., commented on the new meal patterns) or to statutory requirements as set forth in HHFKA (e.g., commented on whether 6 additional cents are sufficient to cover the costs of the new meal patterns). As this RIA does not address the school meals rule and as FNS has no discretion to change the statutory requirements of the rule, this RIA will not address those comments.
A few comments raised concerns about the cost of the States' quarterly reporting requirement on SFA certification. These comments viewed the reporting requirements as overly burdensome.
In response to these concerns, FNS decreased the amount of information required from States in the quarterly report, as noted above. This change decreases the estimated time it takes one State to prepare and submit a quarterly certification report from one hour under the interim rule to 15 minutes under this final rule. These reports will no longer be required once all SFAs have been certified to receive the performance-based reimbursement.
A few comments raised concerns about State or SFA administrative costs to comply with the certification process and with a lack of adequate guidance and training of State agency officials by FNS. Other comments indicated that small SFAs do not have the staff resources, computers, or computer skills necessary to develop compliant menus or to complete the certification process. Some comments questioned whether the additional administrative costs are worth the additional 6 cent reimbursement, and they raised concerns about SFAs' abilities to meet certification requirements in a timely manner.
As noted in the preamble, FNS is encouraged by the number of SFAs that have already completed the certification process successfully. In October 2013, State agencies reported that, as of the end of June 2013, approximately 80 percent of all SFAs participating in the NSLP had submitted certification documentation to their respective State agency for review and certification, with more expected by the end of the school year. In addition, 90 percent of all lunches served in May 2013 received the extra 6 cent reimbursement.
With regard to the training provided to State agencies by FNS, we note that FNS led in-person training sessions with every State agency to assist them with the task of helping SFAs navigate the certification process. FNS also developed webinars, spreadsheet tools, documentation, and other training resources to assist State agencies and SFAs. All of these resources remain available on the FNS Web site.
The final rule does not, however, change the requirements in the certification process. Consequently, we also make no fundamental change in the RIA concerning the costs of certification, although we do provide updated estimates of the cost of the interim rule based on the most recent data available. Nevertheless, we note that the other major change between the interim and final rule (i.e., making permanent the flexibility for weekly maximum grains and meat/meat alternates as original outlined in Policy Memo SP 26-2013 and the flexibility for serving frozen fruit with added sugar as originally outlined in Policy Memo SP 20-2012) should make it easier for SFAs to comply with the school meals rule (a prerequisite to becoming certified), though this does not change the certification process itself. As discussed in the preamble and below in Section VI.A.1., we do not find that making permanent these flexibilities negatively impacts the nutritional profile of NSLP meals.
The impact analysis for the interim rule
The changes contained in the final rule are expected to facilitate compliance with the meal patterns, allowing SFAs to take full advantage of the additional revenue that the interim final rule made available. Granting some flexibility on meat, grains, and frozen fruit is an effort by USDA to work with schools that are making serious efforts to comply with the rule's standards but are having some difficulty finding products that have been resized or reformulated specifically to meet the requirements of the rule. To the extent that a little flexibility at the margins encourages schools to plan menus that meet the new standards, students benefit from receiving meals that comply with the new standards rather than receiving meals that do not comply with the new standards.
The benefits to children who consume school meals that follow DGA recommendations are detailed in the impact analysis prepared for the final meal patterns rule.
The link between poor diets and health problems such as childhood obesity are a matter of particular policy concern given their significant social and economic costs. Obesity has become a major public health concern in the U.S., second only to physical activity among the top 10 leading health indicators in the United States Healthy People 2020 goals. According to data from the National Health and Nutrition Examination Survey 2007-2008, 34 percent of the U.S. adult population is obese and an additional 34 percent are overweight.
The trend towards obesity is also evident among children; 33 percent of U.S. children and adolescents are now considered overweight or obese,
Excess body weight has long been demonstrated to have health, social, psychological, and economic consequences for affected adults.
Further, there are direct economic costs due to childhood obesity; $237.6 million (in 2005 dollars) in inpatient costs,
Childhood obesity has also been linked to cardiovascular disease in children as well as in adults. Freeman, Dietz, Srinivasan, and Berenson found that “compared with other children, overweight children were 9.7 times as likely to have 2 [cardiovascular] risk factors and 43.5 times as likely to have 3 risk factors” (p. 1179) and concluded that “[b]ecause overweight is associated
There is some recent evidence that food standards are associated with an improvement in children's dietary quality:
• Taber, Chriqui, and Chaloupka compared calorie and nutrient intakes for California high school students—with food standards in place—to calorie and nutrient intakes for high school students in 14 States with no food standards.
• A study of competitive food policies in Connecticut concluded that “removing low nutrition items from schools decreased students' consumption with no compensatory increase at home.”
• Similarly, researchers for Healthy Eating Research and Bridging the Gap found that “[t]he best evidence available indicates that policies on snack foods and beverages sold in school impact children's diets and their risk for obesity. Strong policies that prohibit or restrict the sale of unhealthy competitive foods and drinks in schools are associated with lower proportions of overweight or obese students, or lower rates of increase in student BMI.”
Pew Health Group and Robert Wood Johnson Foundation researchers noted that the prevalence of children who are overweight or obese has more than tripled in the past three decades,
In summary, the most current, comprehensive, and systematic review of existing scientific research concluded that foods standards can have a positive impact on reducing the risk for obesity-related chronic diseases. Because the factors that contribute both to overall food consumption and to obesity are so complex, FNS has not been able to define a level of disease or cost reduction that is attributable to the changes in foods resulting from implementation of this rule. USDA is unaware of any comprehensive data allowing accurate predictions of the effect of increasing the flexibility in meeting certain dietary requirements by SFA's to certify compliance for the National program and subsequent changes in consumer choice and, especially among children.
Some researchers have suggested possible negative consequences of regulating nutrition content in school foods. They argue that not allowing access to low nutrient, high calorie snack foods in schools may result in overconsumption of those same foods outside the school setting (although as noted earlier, Taber, Chriqui, and Chaloupka concluded overcompensation was not evident among the California high school students in their sample).
The new meal patterns are intended not only to improve the quality of meals consumed at school, but to encourage healthy eating habits generally. Those goals of the meal patterns rule are furthered to the extent that this rule contributes to full compliance with the meal patterns by all SFAs.
The changes adopted in the final rule (summarized in Section IV) are intended to facilitate SFA compliance with the meal pattern requirements and reduce State agency reporting and recordkeeping burden. By making permanent the flexibility on weekly maximum servings of grains and meat/meat alternates, and by allowing frozen fruit with added sugar to credit toward the meal pattern requirement for fruit, the final rule will make it easier for some SFAs to plan menus that comply with the meal pattern requirements.
The added flexibility on weekly maximum servings of grains and meat/meat alternates will benefit SFAs who may continue to rely on prepared foods or recipes that ensure compliance with daily and weekly minimum required quantities of servings of grains and meat/meat alternates but may exceed weekly maximum limits on servings of grains and meat/meat alternates in some weeks. However, because the meal patterns' weekly calorie requirements remain in place, the added flexibility on grains and meat/meat alternates is unlikely to have a significant effect on the overall quantity of food served, the
Allowing frozen fruit with added sugar to credit toward the meal patterns' fruit requirement also provides SFAs greater flexibility in purchasing foods for use in the school meal programs. Permitting schools to make use of a wider range of currently available frozen fruit products may reduce the administrative costs of finding and acquiring compliant foods for use in the meal programs. But, like the grains and meat/meat alternate provision, because the calorie limits are still in place, allowing added sugar in frozen fruit products will not undermine the updated nutrition standards.
It is important to emphasize that menus developed by SFAs that are certified eligible for the additional 6 cent reimbursement must meet all of the minimum food group requirements contained in the final school meals rule, whether or not those SFAs take advantage of the added flexibilities of this rule. In addition, all SFAs are held to the same maximum calorie standards contained in the final school meals rule. Those standards are not meal-based. Instead, SFA compliance with the food group standards is assessed by comparing the weighted average amounts served across all meals served per day or in an entire week. Children in SFAs that are certified compliant under the modified standards of this rule will be served meals that satisfy the same minimum requirements as meals served in SFAs that were certified compliant under the original terms of the final school meals rule. Even in the absence of the flexibility added by this rule, the amount of meat and grains served in individual meals will vary significantly from the weighted average minimum and maximum amounts required over the course of a day or week. The changes in this rule recognize that additional flexibility on the upper end of the required range for meat and grains allows SFAs to use products that were formulated prior to the final school meal rule standards and to satisfy student demand. This rule does not offer SFAs a way to reduce the minimum amounts served from any of the food groups emphasized by the final school meal rule. And because this rule does not modify the final school meal rule's maximum calorie requirements, the new flexibility is limited and does not weaken the school meal standards' focus on childhood obesity.
The final school meal rule establishes a primarily food-based set of requirements; these are designed to comply with the recommendations of the DGAs regarding the consumption of a variety of foods from key food groups. The school meal rule sets just a handful of macronutrient standards (for calories, saturated fat, sodium, and trans fat). The changes contained in this rule require SFAs to serve meals that satisfy the same minimum requirements from each of the food groups identified in the final school meal rule without relaxing any of that rule's macronutrient standards. In short, this rule's additional flexibility, designed to make it marginally easier to meet compliance with the new meal standards.
Schools that adopt healthier food standards for their school lunch programs will improve the dietary intake for children at school and make it more likely that those students will have improved health outcomes. However, by allowing greater flexibility in meeting the school lunch dietary standards, it may be that some compliant SFAs relax their implementation of those guidelines somewhat.
USDA has not quantified what changes may result to the overall nutritional content of SFAs availing themselves of those flexibility provisions. There are relatively few SFAs (relative to the total number of SFAs complying with school lunch dietary guidelines) that would significantly change the dietary composition of their school lunch program one way or the other. Those two effects (described above) are offsetting and so the net effects of these changes on the benefits to school children are likely to be marginal relative to the overall benefits afforded by the dietary standards.
Because of the macronutrient requirement is not adjusted, any resulting changes to the nutritional quality of the NSLP and SBP meals served by SFAs are expected to marginal, and so there would likely be few changes to the benefits to children relative to the final school meal rule or to the interim rule on certification for the 6 cent reimbursement.
The baseline for our estimate of the cost of the final rule is the estimate for the interim final rule, which we update below using the latest President's Budget projections and preliminary data on certifications for the performance-based reimbursement.
The provisions in the final rule will likely result in a small increase in cost to the Federal Government (as a result of a transfer of Federal funds in the form of additional performance-based reimbursements to a small number of schools receiving the performance-based reimbursement that might have otherwise not received it), though we expect this potential increase to fall within the cost range estimated for the interim final rule, as updated below.
The effect of the provisions in the final rule (i.e. increased flexibility on grains, meats, and frozen fruits with added sugar) is to reduce the costs of compliance for the small minority of SFAs that would otherwise not have been certified compliant with the new meal standards by the end of SY 2013-2014. The policy memos issued by FNS in September 2012 and February 2013 had already extended these provisions through the end of SY 2013-2014.
These provisions are essentially administrative efficiency measures that will reduce meal pattern compliance costs at the margin for some SFAs; the provisions are not expected to have a significant effect on food costs. Since these provisions are options (not requirements)
Given the assumptions (explained in more detail elsewhere in this analysis) about a phased certification process for some SFAs, the estimated cost of Federal performance-based
To the extent that additional flexibilities are afforded to SFAs, this rule could result in marginally lower costs to SFAs relative to the interim final rule baseline. USDA has not quantified those changes as there are relatively few SFAs (relative to the total number of SFAs complying with school lunch dietary guidelines) that would significantly change the dietary composition of their school lunch program one way or the other.
The added flexibility on weekly maximum servings of grains and meat/meat alternates could benefit SFAs who may continue to rely on prepared foods or recipes that ensure compliance with daily and weekly minimum quantities but may exceed weekly maximums in some weeks. That provision may reduce the administrative costs of meal planning for some SFAs, and may reduce the costs associated with modifying recipes or finding new prepared foods in the market with slightly different formulations than products currently purchased.
Because the flexibility on grains, meat/meat alternates, and frozen fruit had previously been extended by FNS through SY 2013-2014, the effect of these provisions on the initial certification of SFAs for the performance-based reimbursement is expected to be very small. Administrative data on certifications approved or pending through May 2013 indicate that only a small minority of SFAs are likely to remain uncertified by the end of SY 2013-2014. For those SFAs, these provisions may help reduce the costs of certification after that time.
The rule also finalizes the change in State agency quarterly reporting requirement on SFA certification. That change, previously adopted through Policy Memo SP-31-2012, reduces quarterly State agency reporting burden to an estimated 15 minutes per quarter per State agency.
The analysis provided below updates a similar analysis prepared for the interim rule impact analysis.
In Table 3, two estimates are provided in recognition of the uncertainty of how quickly SFAs will be determined compliant with the new meal standards and, therefore, how soon they will be eligible for the performance-based rate increase. Data available as of October 2013 shows that 73% of meals served in FY2013 have been certified for the performance-based reimbursement as of July 2013, with 90% of meals served in May 2013 certified as of July 2013. Given the rate of retroactive certification of SFAs and meals, our upper bound (and also primary) estimate assumes that all SFAs will be certified by the end of FY 2013 and that 80% of the lunches served in FY 2013 will eventually be certified to receive the additional 6 cent reimbursement.
As of October 2013, administrative data that indicate that 80 percent of SFAs had been certified or had submitted certification documentation to their respective State agency for review and certification by the end of June 2013. It assumes that the remaining 20 percent of SFAs will be certified (or certified retroactively) in the remaining months of the fiscal year. Administrative data also indicate that 90 percent of meals served in May 2013 qualified for the extra 6 cent reimbursement, and that many SFAs are being certified retroactively as the processing of applications and approval of certification requests catch up with SFAs' documented compliance with the new meal patterns.
Our alternate scenario relies on administrative data on certifications through the first several months of SY 2012-2013 to estimate the revenues and costs of a phased implementation that assumes full compliance during FY 2014. For both estimates, we assume that 80% of the meals served in FY 2013 will qualify for the additional 6 cent reimbursement; in the alternate estimate, we assume 95% of meals will qualify in FY 2014, and 100% will qualify in FY 2015 and beyond. In addition, in this second scenario we assume that roughly 90 percent of SFAs will be found compliant by the end of FY 2013, or certified compliant retroactively to the start of FY 2014. We further assume that the remaining 10% of SFAs will be certified sometime during FY 2014, and that 95% of FY 2014 lunch reimbursements will include the performance-based 6 cents. We assume that 100 percent of SFAs (and, consequently, 100 percent of meals) will be certified to receive the performance-based reimbursement in FY 2015 and beyond.
The estimated increase in the Federal cost of NSLP reimbursements is a straightforward calculation of the number of meals that are certified in compliance with the new meal standards times 6 cents (adjusted for inflation). This approach applies the additional 6 cents to USDA's baseline projection of lunches. The 6 cents is subject to the same inflation adjustment applied to the Section 4 and Section 11 components of the lunch reimbursement, rounded down to the nearest cent.
If all SFAs are certified for the performance-based 6 cent lunch rate increase as of October 1, 2013 (as assumed in the primary estimate), then the Federal cost and SFA revenue increase from FY 2013 through FY 2017
The added revenue will be distributed across SFAs in proportion to the number of reimbursable lunches served. Because students eligible for free or reduced-price meals participate in the school meals programs at higher rates than other students, revenue per enrolled student will tend to be higher in SFAs with the greatest percentage of free and reduced-price certified students. However, eligibility for free or reduced price meals is not the only factor that impacts student participation in the NSLP. Other factors that vary by SFA include the distribution of students by grade level, prices charged for paid lunches, availability of offer vs. serve (in elementary and middle schools), the variety of entrees offered, and school geography.
The data available do not allow us to account for each of those variables here. Instead we estimate in Table 4 the distribution of revenue across SFAs under the assumption that revenue is proportional to enrollment.
As we note above, State agencies reported in October 2013 that more than 80 percent of all SFAs participating in the NSLP had submitted certification documentation to their respective State agency for review and certification by the end of June 2013, and that 90 percent of meals qualified for the higher reimbursement in May. Administrative data also show that many SFAs are being certified retroactively as the processing of applications and approval of certification requests catch up with SFAs' documented compliance with the new meal patterns. Consequently, we feel comfortable assuming for this alternate analysis that roughly 90 percent of SFAs will be found compliant by the end of FY 2013, or certified compliant retroactively to the start of FY 2014.
The urbanicity categories are U.S. Department of Education, National Center for Education Statistics “urban-centric local codes.” “City” is any territory, regardless of size, that is inside an urbanized area and inside a principal city. “Suburb” is any territory, regardless of size, inside an urbanized area but outside a principal city. “Town” is a territory of any size inside an urban cluster but outside an urbanized area. “Rural” is a Census-defined rural territory outside both an urbanized area and an urban cluster. These definitions are contained in documentation for the SY 2009-2010 Common Core of Data,
Percent of enrollment certified for free or reduced-price meals is also an NCES Common Core of Data variable.
We further assume that the remaining 10% of SFAs will be certified sometime during FY 2014, and that 95% of FY 2014 lunch reimbursements will include the performance-based 6 cents. We assume that 100 percent of SFAs
Given these assumptions about a phased certification process for some SFAs, the estimated cost of Federal performance-based reimbursements (and the value of additional SFA revenue) is $1.54 billion through FY 2017 (1 percent less than the $1.55 billion estimated with full, immediate implementation).
Our updated estimate of administrative costs differs only slightly from the estimate published with the interim final rule.
As most SFAs submitted documentary materials in FY 2012 or FY 2013, most of the cost of this administrative burden was realized in those years, and we note that FY 2012 has been excluded from this formal cost analysis. States reported 23.4 percent of SFAs were certified to receive the performance-based reimbursement for October 2012 and therefore incurred certification costs in FY 2012. For purposes of our primary analysis, we assume that the remaining 76.6 percent did so by the end of FY 2013 (as described above, we currently only have data through June 2013).
Based on this updated information on when certifications occurred, we estimate in our primary estimate that State agency and SFA administrative costs associated with the rule totaled $3.7 million across FY 2012 and FY 2013 if all SFAs were determined compliant with the new meal standards based on an initial submission of SFA documentation. $2.9 million of these costs were realized in FY 2013 and are therefore included in the tables above. The ongoing burden created by reporting and recordkeeping requirements are not expected to be appreciably higher than they were before the implementation of the interim rule.
Under our alternate scenario, we assume that an additional 66.6 percent of SFAs submitted documentation by the end of FY 2013 and that the remaining 10 percent of SFAs did not submit applications to their State agencies in FY 2013.
Administrative costs will be similar, but will be spread over two years under our alternate scenario of less than 100 percent SFA compliance with the new standards by the start of SY 2013-2014. The cost of preparing and processing initial certification claims in FY 2012 and FY 2013 by 90 percent of SFAs will equal $3.4 million, of which $2.5 million was realized in FY 2013. The cost of submitting and processing the remaining claims will equal $0.4 million in FY 2014.
Due to inflation, SFAs and State agencies that submit or process documentation in FY 2014 will face slightly higher labor costs than those that submitted documentation in prior fiscal years, though this cost increase is too small to appear in our tables at the level of detail presented.
The most significant unknown in this analysis is the length of time it will take all SFAs to reach full compliance. Our primary revenue and cost estimate developed in the previous section assumes full compliance by October 2013.
Because the economic effects are essentially proportionate to the level of SFA compliance, the effects of more or less optimistic scenarios can be estimated by scaling the effects of our alternate scenario upward or downward by the assumed rates of initial and future year compliance.
Another important unknown is the student response to the introduction of new meal patterns. Although the introduction of healthier meals may attract new participants to the school meals program, the replacement or reformulation of some favorite foods on current school menus may depress participation, at least initially. As we did in the impact analysis for the school meal patterns rule, we provide alternate estimates given a 2 percent increase and a 2 percent decrease in student participation. The estimates shown here are simply 2 percent higher (or lower) than our estimates in Table 3. That is, we estimate the effect of changes in student participation on the value of the performance-based rate increase alone.
Changes in participation would also affect the current Section 4 and Section 11 reimbursements and student payments for paid and reduced price lunches. Because those effects are not a consequence of the 6 cent rate increase, but rather a consequence to the change in the content of the meals served, we exclude them from Table 5.
Table 5 does not show the effects on administrative costs (reporting and recordkeeping by State agencies and SFAs, and the technical assistance funds transferred by the Federal government to the States). Those are unchanged from Table 3.
The benefits to children who consume school meals that follow DGA recommendations is detailed in the impact analysis prepared for the final meal patterns rule.
The interim rule will result in a transfer from the Federal government to SFAs of as much as $1.55 billion through FY 2017 to implement the new breakfast and lunch meal patterns that took effect on July 1, 2012. The Federal cost is fully offset by an identical benefit to SFAs and State agencies.
The interim rule generates significant additional revenue for SFAs that partially offset the additional food and labor costs to implement the improved meal standards more fully aligned with the
The substantive differences between the interim and final rules are:
1. Decreasing the amount of information required in the States' quarterly certification reports and clarifying that the reports need not be submitted once all SFAs are certified for the performance-based reimbursement; and
2. Making permanent the increased flexibility for SFAs regarding weekly maximum grains and meat/meat alternates and the serving of frozen fruit with added sugar.
These changes all decrease the administrative and/or compliance burden on States and SFAs and/or increase the flexibility for SFAs in serving lunches and breakfasts that comply with the school meal patterns, thereby decreasing costs to States and SFAs. The primary alternative considered in the course of developing the final rule was not to make these changes.
We do not provide a separate cost estimate for this “doing nothing” alternative because the decrease in burden associated with the shorter quarterly reports for States is small
As required by OMB Circular A-4 (available at
The figures in the accounting statement are the estimated discounted, annualized costs and transfers of the rule. The figures are computed from the nominal 5-year estimates developed above and summarized in Table 3. The accounting statement contains figures computed with 7 percent and 3 percent discount rates for both our upper bound (primary) estimate and our alternate estimate.
Note that we only provide an accounting statement for the final rule, not for the interim rule (as the interim rule was the baseline for our cost analysis for the final rule). As noted in the above analysis, any possible changes in costs or transfers attributed to the final rule are small and are likely within the cost estimate range published with the interim rule and updated above.
The annualized value of this discounted cost stream over FY 2013-2017 is computed with the following formula, where PV is the discounted present value of the cost stream,
Agricultural Marketing Service, USDA.
Final rule.
This rule increases the assessment rate established for the Avocado Administrative Committee (Committee) for the 2013-14 and subsequent fiscal periods from $0.25 to $0.30 per 55-pound bushel container of Florida avocados handled. The Committee locally administers the marketing order, which regulates the handling of avocados grown in South Florida. Assessments upon Florida avocado handlers are used by the
Doris Jamieson, Marketing Specialist, or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 325-8793, or Email:
Small businesses may request information on complying with this regulation by contacting Jeffrey Smutny, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA; 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
This rule is issued under Marketing Order No. 915, as amended (7 CFR part 915), regulating the handling of avocados grown in South Florida, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 12866 and 13563.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, Florida avocado handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable Florida avocados beginning April 1, 2013, and continue until amended, suspended, or terminated.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This rule increases the assessment rate established for the Committee for the 2013-14 and subsequent fiscal periods from $0.25 to $0.30 per 55-pound bushel container of avocados.
The Florida avocado marketing order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of Florida avocados. They are familiar with the Committee's needs and with the costs of goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.
For the 2012-13 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.
The Committee met on June 12, 2013, and unanimously recommended 2013-14 expenditures of $472,553 and an assessment rate of $0.30 per 55-pound container of avocados. In comparison, last year's budgeted expenditures were $324,575. The assessment rate of $0.30 is $0.05 higher than the rate currently in effect. The Committee recommended increasing the assessment rate to provide additional funds for research to address the Laurel Wilt fungus, which can infect and kill avocado trees.
The major expenditures recommended by the Committee for the 2013-14 year include $175,000 for research, $119,483 for salaries, and $51,500 for employee benefits. Budgeted expenses for these items in 2012-13 were $75,000, $101,705, and $48,000, respectively.
The assessment rate recommended by the Committee was derived by reviewing anticipated expenses, expected shipments of Florida avocados, and available reserves. Florida avocado shipments for the year are estimated at 1,000,000 55-pound bushel containers, which should provide $300,000 in assessment income. Income derived from handler assessments and interest, and funds from the Committee's authorized reserve, should be adequate to cover budgeted expenses. Funds in the reserve (currently $465,000) will be kept within the maximum permitted by the order (approximately three fiscal periods' expenses, § 915.42).
The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.
Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed, and further rulemaking will be undertaken as necessary. The Committee's 2013-14 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by USDA.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA)(5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 30 handlers of Florida avocados subject to regulation under the order and approximately 300 producers of avocados in the production area. Small agricultural service firms, which include avocado handlers, are defined by the Small Business Administration (SBA) as those having annual receipts of less than $7,000,000,
According to Committee data and information from the National Agricultural Statistical Service, the average price for Florida avocados during the 2011-12 season was approximately $20.79 per 55-pound bushel container and total shipments were slightly higher than 1.2 million 55-pound bushels. Using the average price and shipment information, the majority of avocado handlers could be considered small businesses under SBA's definition. In addition, based on avocado production, producer prices, and the total number of Florida avocado producers, the average annual producer revenue is less than $750,000. Consequently, the majority of avocado handlers and producers may be classified as small entities.
This rule increases the assessment rate for the 2013-14 and subsequent fiscal periods from the current rate of $0.25 to $0.30 per 55-pound bushel container of avocados. The Committee unanimously recommended the increased assessment rate, and 2013-14 expenditures of $472,553. The increase was recommended to provide an additional $100,000 for research to address the Laurel Wilt fungus, which can infect and kill avocado trees. As previously stated, income from handler assessments and interest, and funds from reserves, should be adequate to meet this year's expenses.
Alternative expenditure and assessments levels were discussed prior to arriving at this budget. However, the Committee agreed on $472,553 in expenditures, reviewed the quantity of assessable avocados and available reserves, and recommended an assessment rate of $0.30 per 55-pound bushel container.
This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the marketing order. In addition, the Committee's meeting was widely publicized throughout the Florida avocado industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the June 12, 2013, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.
In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189 Generic OMB Fruit Crops. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.
This rule imposes no additional reporting or recordkeeping requirements on either small or large Florida avocado handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.
AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
A proposed rule concerning this action was published in the
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Avocados, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 915 is amended as follows:
7 U.S.C. 601-674.
On and after April 1, 2013, an assessment rate of $0.30 per 55-pound container or equivalent is established for avocados grown in South Florida.
Agricultural Marketing Service, USDA.
Affirmation of interim rule as final rule.
The Department of Agriculture (USDA) is adopting, as a final rule, without change, an interim rule that changed handler reporting and grower diversion requirements prescribed under the marketing order for tart cherries grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin (order). The Cherry Industry
Effective January 17, 2014.
Jennie M. Varela, Marketing Specialist, or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 325-8793, or Email:
Small businesses may obtain information on complying with this and other marketing order and agreement regulations by viewing a guide at the following Web site:
This rule is issued under Marketing Order and Agreement No. 930, as amended (7 CFR part 930), regulating the handling of tart cherries grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
USDA is issuing this rule in conformance with Executive Orders 12866 and 13563.
Prior to this change, handlers were required to submit a handler reserve plan and use grower diversion credits by November 1 of the crop year. A crop year is a 12-month period beginning on July 1 and ending on June 30 of the following year. The order was recently amended to exempt cherries diverted in the orchard (grower diversion) from inclusion in a handler's total volume calculation. When a volume regulation is issued, handlers are obligated to keep a percentage of their total volume in reserve or account for the restricted volume with diversion certificates. These certificates can be earned through export sales, new market or new product sales, or through grower diversion. Before the amendment, the volume of cherries represented by a grower diversion certificate was added to the handler's total volume.
As the volume represented by diversion certificates is no longer part of the total volume calculation, handlers no longer need these certificates to complete the reserve plan. Consequently, the Board believes handlers will be able to complete the simplified reserve plan at an earlier date and recommended changing the date of submission from November 1 to October 1 to provide the industry with a more complete and timely picture of the available supply of tart cherries.
Further, with the amendment to the order, grower diversion certificates no longer need to be linked to when the handler reserve plan is due. To bring consistency to the use of all types of diversion certificates, the Board recommended allowing handlers to transfer and redeem grower diversion certificates through the end of the season, June 30. This change provides handlers with additional time and flexibility in meeting their restriction obligations.
In addition to adjusting the deadline for submitting the handler reserve plan and extending the deadline for redeeming grower diversion certificates, this rule also makes a minor wording change to § 930.158 to facilitate the change in date.
In an interim rule published in the
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 600 tart cherry producers in the regulated area and approximately 40 tart cherry handlers who are subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000 and small agricultural service firms have been defined as those having annual receipts of less than $7,000,000 (13 CFR 121.201).
According to data from the National Agricultural Statistics Service and the Board, the average annual grower price for tart cherries during the 2012-13 season was $0.54 per pound, and total shipments were around 85 million pounds. Therefore, average receipts for tart cherry producers were around $76,200, well below the SBA threshold for small producers. In 2013, The Food Institute estimated an f.o.b. price of $0.84 per pound for frozen tart cherries, which make up the majority of processed tart cherries. Based on this information, average annual handler receipts were about $1.8 million, also below the SBA threshold for small agricultural service firms. Assuming a normal distribution, the majority of tart cherry producers and handlers may be classified as small entities.
This rule continues in effect an interim rule that changed the deadline for submitting the handler reserve plan from November 1 to October 1 and extended the deadline for redeeming or transferring grower diversion certificates from November 1 to June 30 of a given crop year. These changes provide the industry with a more complete and timely picture of the available supply earlier in the season. In addition, the new deadline gives handlers more time and flexibility to meet their obligations under volume regulation. This rule amends the provisions of §§ 930.158 and 930.159. Authority for the change in the order's rules and regulations is provided in §§ 930.58 and 930.59.
It is not anticipated that this rule will generate any additional costs for growers or handlers. This action is intended to adjust regulations to reflect recent amendments to the order and to allow the order to function more efficiently. These changes are expected to benefit the industry by providing a clear picture of available supply earlier in the season, and by allowing handlers more time to utilize grower diversion
In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0177, (Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin). This rule required changes to Cherry Industry Administrative Board Form 4, “Handler Reserve Plan and Final Pack Report.” However, these changes are minor and the currently approved burden for the form remains the same. The revised form has been submitted to OMB for approval as part of the routine three-year renewal of all forms related to this order.
This rule will not impose any additional reporting or recordkeeping requirements on either small or large tart cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.
Further, the Board's meeting was widely publicized throughout the tart cherry industry and all interested persons were invited to attend videoconference meetings at regional locations or call in to participate in Board deliberations. Like all Board meetings, the March 21, 2013, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue.
Comments on the interim rule were required to be received on or before September 30, 2013. No comments were received. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule, without change.
To view the interim rule, go to:
This action also affirms information contained in the interim rule concerning Executive Orders 12866, 12988, and 13563, the Paperwork Reduction Act (44 U.S.C. Chapter 35), and the E-Gov Act (44 U.S.C. 101).
After consideration of all relevant material presented, it is found that finalizing the interim rule, without change, as published in the
Marketing agreements, Reporting and recordkeeping requirements, Tart cherries.
Accordingly, the interim rule that amended 7 CFR part 930 and was published at 78 FR 46494 on August 1, 2013, is adopted as a final rule, without change.
Securities and Exchange Commission.
Final rule; stay.
The Securities and Exchange Commission (“Commission”) is staying temporarily Rules 15Ba1-1 through 15Ba1-8 and Rule 15Bc4-1 (“Rules”) under the Securities Exchange Act of 1934 and Forms MA, MA-I, MA-W, and MA-NR (“Forms”) until July 1, 2014 and making conforming, non-substantive amendments to Rule 15Ba1-8 regarding recordkeeping requirements to conform the dates referenced in certain provisions of that rule to the July 1, 2014 date (the “Amendment”). The effective date for the Rules and Forms was January 13, 2014. This stay of the Rules and Forms means that persons are not required to comply with the Rules and Forms until July 1, 2014. The Amendment is the only action the Commission is taking in this release with respect to the Rules and Forms. Therefore, the phased-in compliance period that begins on July 1, 2014, for the requirement to use the Forms to register as municipal advisors under the Rules remains unchanged.
Effective January 13, 2014, 17 CFR 240.15Ba1-1 through 15Ba1-8 and 240.15Bc4-1 and 17 CFR 249.1300, 249.1310, 249.1320, and 249.1330 are stayed until July 1, 2014.
John Cross, Director; Jessica Kane, Senior Special Counsel to the Director; Rebecca Olsen, Attorney Fellow; Mary Simpkins, Senior Special Counsel; Edward Fierro, Attorney-Adviser; or Cori Shepherd, Attorney-Adviser; Office of Municipal Securities, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-7010. Contact phone number: (202) 551-5680
Section 15B(a)(1) of the Exchange Act,
On September 20, 2013, the Commission issued Rules and Forms to provide for municipal advisor registration under a permanent registration regime.
Market participants have requested additional time before the Rules and Forms apply to them to address a number of issues regarding implementation of and compliance with the Rules, including, among other things, adapting their policies and procedures, developing supervisory practices and internal controls, adapting their account and investment tracking systems, developing recordkeeping procedures, adapting their business models and practices, educating their personnel with respect to this regulatory regime, and developing training programs to establish effective compliance with the Rules.
Pursuant to the Amendment, the Commission is staying temporarily the Rules and Forms until July 1, 2014 and making conforming, non-substantive amendments to Rule 15Ba1-8 regarding recordkeeping requirements to conform the dates referenced in certain provisions of that rule to the July 1, 2014 date. The effective date for the Rules and Forms was January 13, 2014. This stay of the Rules and Forms means that persons are not required to comply with the Rules and Forms until July 1, 2014. The Amendment is the only action the Commission is taking in this release with respect to the Rules and Forms.
To provide certainty about the status of the Rules and Forms pending publication in the
The Amendment will provide market participants with a limited amount of additional time to analyze, implement and comply with the Rules.
The Administrative Procedure Act (“APA”) generally requires an agency to publish notice of a proposed rulemaking in the
The APA also generally requires that an agency publish a substantive rule in the
The Rules and Forms contain “collection of information” requirements as defined by the Paperwork Reduction Act of 1995, as amended (“PRA”), but the Commission believes that the Amendment only stays the Rules and Forms until July 1, 2014 and makes conforming, non-substantive date changes. It does not substantively change the Rules and Forms. In this
The Commission is sensitive to the costs and benefits of its rules. Section 3(f) of the Exchange Act requires the Commission, whenever it engages in rulemaking and is required to consider or determine whether an action is necessary or appropriate in the public interest, to consider, in addition to the protection of investors, whether the action would promote efficiency, competition, and capital formation.
As discussed above, the Amendment only stays the Rules and Forms to July 1, 2014 and makes conforming, non-substantive date changes. It does not substantively change the Rules and Forms. The temporary registration regime currently in effect serves as the economic baseline against which the costs and benefits, as well as the impact on efficiency, competition, and capital formation, of the Amendment are measured.
In the Adopting Release, the Commission discussed the costs and benefits of the temporary registration regime and the current state of the municipal advisor market.
The Commission considered the alternatives of not staying the Rules and Forms, or providing a longer or shorter stay period. However, for the reasons discussed above, the Commission believes that providing the temporary stay until July 1, 2014 appropriately balances the goals of protecting municipal entities, enhancing the quality of municipal advice, and protecting investors in the municipal securities market through an effective municipal advisor registration regime while providing appropriate relief to industry participants that need additional time to understand the scope and application of the Rules and to implement effective compliance with the Rules.
Pursuant to the Exchange Act, and particularly Sections 15B (15 U.S.C. 78
Reporting and recordkeeping requirements.
For the reasons set out above, Title 17, Chapter II of the Code of Federal Regulations is amended as follows:
15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, 78j-1, 78k, 78k-1, 78
15 U.S.C. 78a
By the Commission.
Securities and Exchange Commission.
Final rule.
The Securities and Exchange Commission (“Commission”) is approving a proposed rule change filed by the Securities Investor Protection Corporation (“SIPC”). The proposed rule change amends SIPC Rule 400 (“Rule 400”), entitled “Rules Relating to Satisfaction of Customer Claims for Standardized Options,” which relates to the satisfaction of customer claims for standardized options under the Securities Investor Protection Act of 1970 (“SIPA”). Because SIPC rules have the force and effect as if promulgated by the Commission, the rules are published in Title 17 of the Code of Federal Regulations, where the rule change will be reflected.
Michael A. Macchiaroli, Associate
The Commission is approving a proposed rule change filed by SIPC, amending Rule 400, 17 CFR 300.400 under SIPA.
On November 7, 2012, SIPC filed a proposed rule change pursuant to section 3(e)(2)(A) of SIPA
Rule 400 was enacted to provide clarity in the treatment of customer claims based on “Standardized Options”
In light of experience and knowledge gained from the liquidation of Lehman Brothers Inc. (“Lehman”) and other SIPA proceedings, SIPC has determined that allowing SIPA trustees the flexibility, subject to SIPC approval, of transferring customers' options positions or of liquidating their positions, would be beneficial to the investing public and consistent with the customer protection purposes of SIPA. SIPC stated that the ability to transfer Standardized Options positions to another brokerage in lieu of an automatic closeout gives SIPA trustees more flexibility in handling such customer assets after the commencement of a SIPA liquidation proceeding, and more closely approximates what the customer would expect to be in his account but for the failure of the broker-dealer.
This is particularly true where the trustee, as in the Lehman case, was able promptly to effectuate bulk transfers of customer accounts to other brokerages enabling customers to regain access to their accounts in the form in which the accounts existed pre-liquidation, with comparatively minimal disruption. In such instances, customers generally are better served by having their options positions transferred with their other securities to their accounts at their new broker-dealer. SIPC stated that proposed amendments would provide clear authority for a SIPA trustee to transfer the Standardized Options positions, with SIPC's consent. This greater flexibility in the treatment of open positions would enhance customer protection under exigent circumstances, and potentially avoid exacerbating the turmoil or harm to customers and/or the markets that could be caused by the forced liquidation of open positions.
Under paragraph (h) of Rule 400,
Because the OTC Options are similar to exchange-traded index options, and generally would be cleared by a securities clearing agency registered under section 17A of the Securities Exchange Act of 1934 (“Exchange Act”)
Section 3(e)(2)(A) of SIPA provides that the SIPC Board of Directors must file with the Commission a copy of any proposed amendment to a SIPC rule.
The Commission finds, pursuant to section 3(e)(2)(D) of SIPA, that the proposed rule change is in the public interest and consistent with the purposes of SIPA. First, as noted above, SIPC has determined that allowing SIPA trustees the flexibility, subject to SIPC approval, to transfer customers' options positions or to liquidate their positions, would be beneficial to the investing public and consistent with the customer protection purposes of SIPA. The ability to transfer Standardized Options positions to another brokerage instead of being required to close them out gives SIPA trustees more flexibility in handling customer assets after the commencement of a SIPA liquidation proceeding. Second, SIPA noted that modifying the definition of
Pursuant to SIPA, 15 U.S.C. 78aaa
Brokers, Securities.
In accordance with the foregoing, Title 17, Chapter II of the Code of Federal Regulations is amended as follows:
15 U.S.C. 78ccc.
Dated: January 9, 2014.
By the Commission.
U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury.
Final rule.
This final rule amends the U.S. Customs and Border Protection (CBP) regulations to reflect the imposition of import restrictions on certain archaeological and ecclesiastical ethnological material from the Republic of Bulgaria. These restrictions are being imposed pursuant to an agreement between the United States and Bulgaria that has been entered into under the authority of the Convention on Cultural Property Implementation Act in accordance with the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The final rule amends CBP regulations by adding Bulgaria to the list of countries for which a bilateral agreement has been entered into for imposing cultural property import restrictions. The final rule also contains the designated list that describes the types of archaeological and ecclesiastical ethnological material to which the restrictions apply.
Effective January 15, 2014.
For legal aspects, George Frederick McCray, Chief, Cargo Security, Carriers and Restricted Merchandise Branch, Regulations and Rulings, Office of International Trade, (202) 325-0082. For operational aspects: Virginia McPherson, Chief, Interagency Requirements Branch, Trade Policy and Programs, Office of International Trade, (202) 863-6563.
The value of cultural property, whether archaeological or ethnological in nature, is immeasurable. Such items often constitute the very essence of a society and convey important information concerning a people's origin, history, and traditional setting. The importance and popularity of such items regrettably makes them targets of theft, encourages clandestine looting of archaeological sites, and results in their illegal export and import.
The United States shares in the international concern for the need to protect endangered cultural property. The appearance in the United States of stolen or illegally exported artifacts from other countries where there has been pillage has, on occasion, strained our foreign and cultural relations. This situation, combined with the concerns of museum, archaeological, and scholarly communities, was recognized by the President and Congress. It became apparent that it was in the national interest for the United States to join with other countries to control illegal trafficking of such articles in international commerce.
The United States joined international efforts and actively participated in deliberations resulting in the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (823 U.N.T.S. 231 (1972)). U.S.
Since the Act entered into force, import restrictions have been imposed on the archaeological and ethnological materials of a number of State Parties to the 1970 UNESCO Convention. These restrictions have been imposed as a result of requests for protection received from those nations. More information on import restrictions can be found on the Cultural Property Protection Web site (
This rule announces that import restrictions are now being imposed on certain archaeological and ecclesiastical ethnological materials from Bulgaria.
Under 19 U.S.C. 2602(a)(1), the United States must make certain determinations before entering into an agreement to impose import restrictions under 19 U.S.C. 2602(a)(2). On November 20, 2012, the Assistant Secretary for Educational and Cultural Affairs, U.S. Department of State, made the determinations required under the statute with respect to certain archaeological and ecclesiastical ethnological materials originating in Bulgaria that are described in the designated list set forth below in this document. These determinations include the following:
(1) That the cultural patrimony of Bulgaria is in jeopardy from the pillage of (a) archaeological material representing Bulgaria's cultural heritage dating from the Neolithic period (7500 B.C.) through approximately 1750 A. D. and (b) ecclesiastical ethnological material representing Bulgaria's Middle Ages (681 A.D.) through approximately 1750 A.D. (19 U.S.C. 2602(a)(1)(A)); (2) that the Bulgarian government has taken measures consistent with the Convention to protect its cultural patrimony (19 U.S.C. 2602(a)(1)(B)); (3) that import restrictions imposed by the United States would be of substantial benefit in deterring a serious situation of pillage, and remedies less drastic are not available (19 U.S.C. 2602(a)(1)(C)); and (4) that the application of import restrictions as set forth in this final rule is consistent with the general interests of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes (19 U.S.C. 2602(a)(1)(D)). The Assistant Secretary also found that the material described in the determinations meet the statutory definitions of “archaeological material of the state party” and “ethnological material of the state party” (19 U.S.C. 2601(2)).
The United States and Bulgaria entered into a bilateral agreement pursuant to the provisions of 19 U.S.C. 2602(a)(2). The agreement enables the promulgation of import restrictions on categories of archaeological material representing Bulgaria's cultural heritage dating from the Neolithic period (7500 B.C.) through approximately 1750 A. D. and ecclesiastical ethnological material representing Bulgaria's Middle Ages (681 A.D.) through approximately 1750 A.D. A list of the categories of archaeological and ecclesiastical ethnological material subject to the import restrictions is set forth later in this document.
In accordance with the Agreement, importation of material designated below is subject to the restrictions of 19 U.S.C. 2606 and § 12.104g(a) of the CBP regulations (19 CFR 12.104g(a)) and will be restricted from entry into the United States unless the conditions set forth in 19 U.S.C. 2606 and § 12.104c of the CBP regulations (19 CFR 12.104c) are met. CBP is amending § 12.104g(a) of the CBP Regulations (19 CFR 12.104g(a)) to indicate that these import restrictions have been imposed.
The bilateral agreement between the United States and Bulgaria includes, but is not limited to, the categories of objects described in the designated list set forth below. These categories of objects are subject to the import restrictions set forth above, in accordance with the above explained applicable law and the regulation amended in this document (19 CFR 12.104(g)(a)).
The import restrictions include complete examples of objects and fragments thereof.
The archaeological materials represent the following periods and cultures: Neolithic, Chalcolithic, Bronze Age, Iron Age, Thracian, Hellenistic, Roman, Middle Ages, First Bulgarian Empire, Byzantine, Second Bulgarian Empire, and Ottoman. The ecclesiastical ethnological materials represent the following periods and cultures: Middle Ages, First Bulgarian Empire, Byzantine, Second Bulgarian Empire, and Ottoman. Ancient place-names associated with the region of Bulgaria include Odrysian Kingdom, Thrace, Thracia, Moesia Inferior, Moesia Superior, Coastal Dacia, Inner Dacia, Rhodope, Haemimontus, Europa, Bulgaria, and Eyalet of Rumeli.
a.
b.
c.
d.
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f.
g.
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b.
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a. Pre-monetary media of exchange including “arrow money,” bells, and bracelets. Approximate date: 13th century B.C. through 6th century B.C.
b. Thracian and Hellenistic coins struck in gold, silver, and bronze by city-states and kingdoms that operated in the territory of the modern Bulgarian state. This designation includes official coinages of Greek-using city-states and kingdoms, Sycthian and Celtic coinage, and local imitations of official issues. Also included are Greek coins from nearby regions that are found in Bulgaria. Approximate date: 6th century BC through the 1st century B.C.
c.
d.
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b.
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f.
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G.
The categories of Bulgarian ecclesiastical ethnological objects on which import restrictions are imposed were made from the beginning of the 4th century A.D. through approximately 1750 A. D.
1.
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G.
H.
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J.
Surrounding panels may contain animal, floral, or geometric designs. They are made from stone and glass cut into small bits (tesserae) and laid into a plaster matrix.
This amendment involves a foreign affairs function of the United States and is, therefore, being made without notice or public procedure (5 U.S.C. 553(a)(1)). For the same reason, a delayed effective date is not required under 5 U.S.C. 553(d)(3).
Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
Because this rule involves a foreign affairs function of the United States, it is not subject to Executive Order 12866.
This regulation is being issued in accordance with 19 CFR 0.1(a)(1).
Cultural property, Customs duties and inspection, Imports, Prohibited merchandise, Reporting and recordkeeping requirements.
For the reasons set forth above, part 12 of Title 19 of the Code of Federal Regulations (19 CFR Part 12), is amended as set forth below:
5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States (HTSUS)), 1624.
Sections 12.104 through 12.104i also issued under 19 U.S.C. 2612;
(a) * * *
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect the withdrawal of approval of two new animal drug applications (NADAs) held by Argent Laboratories. Withdrawal of approval of these NADAs was at the sponsor's request because the products are no longer manufactured or marketed.
This final rule is effective January 27, 2014.
David Alterman, Center for Veterinary Medicine (HFV-212), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-453-6843
Argent Laboratories, 8702 152d Ave. NE., Redmond, WA 98052 has requested that FDA withdraw approval of the following two NADAs because the products are no longer manufactured or marketed: NADA 042-427 for FINQUEL (tricaine methanesulfonate) and NADA 140-831 for PARACIDE-F (formalin).
Elsewhere in this issue of the
Following these withdrawals of approval, Argent Laboratories will no longer be the sponsor of an approved application. Accordingly, 21 CFR 510.600(c) is being amended to remove the entries for this firm.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements.
Animal drugs.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under the authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR parts 510 and 529 are amended as follows:
21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.
21 U.S.C. 360b.
The revisions read as follows:
(b)
(d) * * *
(2) * * *
(ii) For control of external parasites on finfish:
(iii) For control of fungi of the family Saprolegniaceae on finfish eggs: Eggs of all finfish except Acipenseriformes, 1,000 to 2,000 µL/L (ppm) for 15 minutes; eggs of Acipenseriformes, up to 1,500 μL/L (ppm) for 15 minutes.
(a)
(b)
(c)
(1)
(ii) For amphibians and other aquatic coldblooded animals, the drug is added to ambient water in concentrations of from 1:1000 to 1:20,000 depending upon species and stage of development.
(2)
(3)
Food and Drug Administration, HHS.
Notification of withdrawal.
The Food and Drug Administration (FDA) is withdrawing approval of two new animal drug applications (NADAs) held by Argent Laboratories. Withdrawal of approval of these NADAs was at the sponsor's request because the products are no longer manufactured or marketed.
Withdrawal of approval is effective January 27, 2014.
David Alterman, Center for Veterinary Medicine (HFV-212), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-453-6843,
Argent Laboratories, 8702 152d Ave. NE., Redmond, WA 98052 has requested that FDA withdraw approval of the following two NADAs because the products are no longer manufactured or marketed: NADA 042-427 for FINQUEL (tricaine methanesulfonate) and NADA 140-831 for PARACIDE-F (formalin).
Therefore, under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, and in accordance with § 514.116
Elsewhere in this issue of the
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving revisions to the State Implementation Plan (SIP) for the state of Iowa. These revisions amend the Iowa air quality rules to eliminate state-only emissions testing procedures and adopt Federal methods; to reduce notification time for portable plant relocations, and allow electronic submittals of notifications; to update air quality definitions to be consistent with federal definitions, and to place into rule the specific procedures for conducting emissions testing.
EPA is also approving revisions to the Iowa Title V Operating Permits Program to revise the definition of “EPA Reference Method,” and to adopt by reference the revised Title V Periodic Monitoring Guidance.
This direct final rule will be effective March 17, 2014, without further notice, unless EPA receives adverse comment by February 18, 2014, If EPA receives adverse comment, we will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2013-0483, by one of the following methods:
1.
2.
3.
Amy Algoe-Eakin, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7942, or by email at
Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following:
The Iowa Department of Natural Resources (IDNR) is requesting EPA action on including revisions to the Iowa State Implementation Plan (SIP) and the Iowa Title V Program. IDNR has requested the SIP be amended to include revisions made to Chapter 20 “Scope of Title- Definitions- Forms- Rules of Practice,” Chapter 22, “Controlling Pollution,” and Chapter 25 “Measurement of Emissions” in the Iowa Administrative Code. The purpose of the rules is to provide consistency between the state and Federal regulations.
The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V and the Title V Operating program.
EPA is taking direct final action to approve SIP revisions to amend the Iowa air quality rules, to eliminate state-only emissions testing procedures and adopt Federal methods; to reduce notification time for portable plant relocations, and allow electronic submittals of notifications; to update air quality definitions to be consistent with federal definitions, and to place into rule the specific procedures for conducting emissions testing.
EPA is also taking direct final action to approve the Iowa Title V Operating Permits Program to revise the definition of “EPA Reference Method,” and to adopt by reference the revised Title V Periodic Monitoring Guidance. EPA received the request from the State to adopt revisions to the local air agency rules into the SIP on November 26, 2012. The revisions were adopted by the Iowa Environmental Protection Commission on August 21, 2012, and became effective on October 24, 2012.
EPA is taking direct final action to approve the following: (1) Amending the definitions to rule 567-20.2(455B) include revisions to the definitions of “EPA reference method”, particulate
We are publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial amendment and anticipate no adverse comment because the revisions are largely administrative and consistent with Federal regulations. However, in the “Proposed Rules” section of today's
If EPA receives adverse comment, we will publish a timely withdrawal in the
Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). This action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). Thus Executive Order 13132 does not apply to this action. This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) because it approves a state rule implementing a Federal standard.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
A major rule cannot take effect until 60 days after it is published in the
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
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.
Chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
42 U.S.C. 7401 et seq.
(o) The Iowa Department of Natural Resources submitted for program approval revisions to 567-22.100(455B) to adopt by reference the definition of “EPA reference method”. Also adopted by reference is the revised version of the Title V “Periodic Monitoring Guidance” at 567-22.108. These revisions to the Iowa program are approved effective
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Direct final rule.
The Department of Health and Human Services (HHS) intends to amend its regulations pertaining to occupational safety and health investigations of places of employment conducted by the National Institute for Occupational Safety and Health (NIOSH) in the Centers for Disease Control and Prevention (CDC), to update outdated terminology and strike references to obsolete government offices or divisions. These changes will not affect current practices.
This rule is effective April 16, 2014 without further action, unless significant adverse comment is received by March 17, 2014. If significant adverse comment is received, HHS will publish a withdrawal of the rule in the
•
•
Teresa Schnorr Ph.D., Director NIOSH Division of Surveillance, Hazard Evaluations and Field Studies (DSHEFS); 4676 Columbia Parkway, Cincinnati, OH 45226; 513-841-4428 (this is not a toll-free number).
This notice is organized as follows:
The purpose of this direct final rule (DFR) is to make minor technical changes to HHS regulations in 42 CFR part 85a, pertaining to occupational safety and health investigations of places of employment. Amendments to the existing rule include striking references to obsolete government offices or agencies, updating the proper NIOSH office from which to request specific reports of investigations, and correcting outdated terms such as “motion pictures.” Obsolete terms and outdated language in Part 85a were identified during the agency's retrospective analysis of existing regulations, in accordance with Executive Order 13563.
Amendments are made to 42 CFR 85a.2 (alphabetize definitions and strike definitions of “NIOSH Regional Office,” and “BOM (Bureau of Mines)” and remove reference to “Public Health Service” within the definition of “NIOSH”), 85a.4 (clarify that the union at the place of employment must be notified of the investigation, and strike reference to BOM), 85a.5 (replace “motion pictures or videotapes” with “video recordings” and “Humans Subjects Review Board” with “Institutional Review Board”), and 85a.8 (replace “NIOSH Regional Consultant for Occupational Safety and Health” with “NIOSH Education and Information Division.”
Because there are no substantive changes to 42 CFR part 85a, there are no changes made to current practices. Therefore, there are no costs or benefits associated with this rulemaking.
This DFR is being published because HHS finds that the updates to Part 85a add clarity to the regulation and are non-controversial; HHS does not expect to receive any significant adverse comments on this rulemaking. However, HHS is publishing a companion notice of proposed rulemaking in this issue of the
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 do not wish to be disclosed. You may submit comments on any topic related to this DFR.
Subsection 20(b) of the Occupational Safety and Health (OSH) Act of 1970 authorizes the Secretary of Health and Human Services to make inspections and question employers and employees as provided in section 8 of the OSH Act in order to carry out the Secretary's functions and responsibilities under section 20 [29 U.S.C. 669; 29 U.S.C. 657]. Section 8(g)(2) instructs the Secretary to prescribe such regulations as are deemed necessary to carry out the responsibilities of the agency to conduct inspections of an employer's establishment. Sections 103 and 501 of the Federal Mine Safety and Health (FMSH) Act of 1977 authorize the Secretary to make inspections and investigations at coal mines in order to conduct research as may be appropriate to improve working conditions [30 U.S.C. 813(a)] and 951, respectively].
The provisions in Part 85a govern procedures NIOSH follows in conducting safety and health investigations at places of employment. The amendments described below are all non-substantive and will have no practical effect on NIOSH procedures or practices, but are being made in accordance with Executive Order 13563, section 6, which requires that Federal agencies conduct retrospective analyses of existing rules. In conducting the analysis, NIOSH discovered that certain terms and references in part 85a were outdated.
Section 85a.1 states that the provisions in Part 85a pertain to investigations of places of employment conducted by NIOSH pursuant to the statutory authorities noted above. The section also affirms that the provisions in this part do not apply to activities
Section 85a.2 offers definitions for terms used in this part. HHS is making a number of changes to this section. First, the paragraph designations are removed and the terms are listed alphabetically. Next, the definitions of BOM (Bureau of Mines) and NIOSH Regional Office are stricken from § 85a.2, because BOM is obsolete and because the addresses of the regional offices referenced here are no longer relevant to this rule. The phrase “Public Health Service” is stricken from the definition of “NIOSH,” and the definition of “FMSH Act,” is teased apart from the existing definition of “OSH Act” and is made a stand-alone definition. None of the changes to this section are substantive.
Section 85a.3 establishes procedures by which NIOSH authorized representatives may enter a place of employment for the purpose of conducting investigations under the OSH Act and the FMSH Act. This section also establishes that investigations will be conducted in a reasonable manner. HHS is making a minor change to this section to correct punctuation.
Section 85a.4 states that the NIOSH authorized representative will contact an official representative of the place of employment prior to a site visit. The NIOSH official will also notify a representative of the appropriate State agency, the local union at the place of employment, the appropriate OSHA Assistant Regional Director, and the appropriate MSHA District Office. HHS is making minor changes to § 85a.4(a)(2) to strike unnecessary language specifying which union official must be notified, thereby clarifying that the union must be notified; a change is also made to § 85a.4(a)(4) to remove reference to the obsolete Bureau of Mines. Section 85a.4(b) is edited to correspond with the change in paragraph (a)(2). One final change is made to § 85a.4(c) to add the term “or organizations” to specify that the investigating NIOSH official will notify the individuals or organizations referenced above. HHS is making no further changes to this section.
Section 85a.5 establishes the procedures NIOSH representatives will follow to conduct a workplace investigation. HHS is amending this section to replace the outdated terms “motion pictures or videotapes” with “video recordings” and “Human Subjects Review Board” with “Institutional Review Board,” and correcting “contact agreement,” which should properly be “contract agreement” in paragraph (b)(2). HHS is making no further changes to this section.
Section 85a.6 requires that the employer, owner, operator, or agent in charge at the investigated place of employment must provide a suitable space for the NIOSH representative to conduct private interviews. HHS is making no changes to this section.
Section 85a.7 authorizes the NIOSH representative to advise the employer, owner, operator, or agent in charge, any employees who appear to be in danger, and any of the individuals or agencies identified in § 85a.4 that an imminent danger exists. HHS is making no changes to this section.
Section 85a.8 states that NIOSH will make specific reports of investigations available to the employer, owner, operator, or agent in charge, as well as to those individuals or agencies identified in § 85a.4. HHS is amending § 85a.8(a)(2) to strike reference to “NIOSH Regional Consultant for Occupational Safety and Health” and replace it with the name of the office that will make specific reports available, the “NIOSH Education and Information Division.” HHS is making no further changes to this section.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
This direct final rule has been determined not to be a “significant regulatory action” under section 3(f) of E.O. 12866. The amendments in this notice alphabetize the definitions section, strike reference to the former Bureau of Mines and NIOSH Regional Office, update where specific reports of investigations may be obtained, and update language used to describe “motion pictures.” Because this DFR is entirely administrative and does not affect the economic impact, cost, or policies of the activities authorized by part 85a, HHS has not prepared an economic analysis and the Office of Management and Budget (OMB) has not reviewed this rulemaking.
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501
As required by Congress under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531
This direct final rule has been drafted and reviewed in accordance with Executive Order 12988, “Civil Justice Reform,” and will not unduly burden the Federal court system. This rule has been reviewed carefully to eliminate drafting errors and ambiguities.
HHS has reviewed this direct final rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” The rule does not “have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
In accordance with Executive Order 13045, HHS has evaluated the environmental health and safety effects of this direct final rule on children. HHS has determined that the rule would have no environmental health and safety effect on children.
In accordance with Executive Order 13211, HHS has evaluated the effects of this direct final rule on energy supply, distribution or use, and has determined that the rule will not have a significant adverse effect.
Under Public Law 111-274 (October 13, 2010), executive Departments and Agencies are required to use plain language in documents that explain to the public how to comply with a requirement the Federal Government administers or enforces. HHS has attempted to use plain language in promulgating the direct final rule consistent with the Federal Plain Writing Act guidelines.
Archives and records, Employee management relations, Hazardous substances, Health hazards, Health records, Industry, Investigations, Labor, Mine safety and health, Occupational injury, Occupational safety and health, Reporting and recordkeeping requirements, Research, Respiratory diseases, Right of entry, Toxic substances, Unions.
For the reasons discussed in the preamble, the Department of Health and Human Services amends 42 CFR part 85a as follows:
Sec. 8(g), 84 Stat. 1600; 29 U.S.C. 657(g) and sec. 508, 83 Stat. 803; 30 U.S.C. 957.
Any term defined in the Occupational Safety and Health Act of 1970 or the Federal Mine Safety and Health Act of 1977 and not defined below shall have the meaning given it in the Acts. As used in this part:
(1) A fair explanation of the procedures to be followed, and their purposes, including identification of any procedures which are experimental;
(2) A description of any attendant discomforts and risks reasonably to be expected;
(3) A description of any benefits reasonably to be expected;
(4) A disclosure of any appropriate alternative procedures that might be advantageous for the subject;
(5) An offer to answer any inquiries concerning the procedures; and
(6) An instruction that the person is free to withdraw his consent and to discontinue participation in the investigation any time without prejudice to the subject.
(a) * * *
(2) The local union at the place of employment, if any;
(4) The appropriate MSHA District Office when investigations are conducted under the FMSH Act.
(b) Advance notice of site visits will not be given to the place of employment
(c) In those instances where site visits are not necessary to the conduct of an investigation, the NIOSH authorized representatives will contact an official representative of the place of employment either verbally or through a written communication and provide the details of why an investigation of the place of employment is being conducted. If appropriate, the NIOSH authorized representatives will contact those individuals or organizations stipulated in paragraphs (a)(1) through (4) of this section about the nature and details of the investigation.
(b) * * *
(2) In those instances where the NIOSH authorized representative is a person fulfilling a contract agreement with NIOSH or is serving as an expert or consultant to NIOSH pursuant to the Act, the employer, owner, operator or agent in charge at the place of employment may, after advising the NIOSH contractor or consultant in writing, elect to withhold information deemed to be a trade secret from such a NIOSH authorized representative or prohibit entry into the area of the place of employment where such entry will reveal trade secrets. In those instances, where the subject information is needed or access to the area of the place of employment is necessary, in the judgment of NIOSH, to fulfill the goals of the investigation, NIOSH regular employees will then obtain the information or enter the subject area of the place of employment.
(d)(1) NIOSH authorized representatives are authorized: To collect environmental samples and samples of substances; to measure environmental conditions and employee exposures (including measurement of employee exposure by the attachment of personal sampling devices to employees with their consent); to take or obtain photographs, video recordings related to the purpose of the investigation; to employ other reasonable investigative techniques, including medical examinations, anthropometric measurements and standardized and experimental functional tests of employees with the informed consent of such employees; to review, abstract, and duplicate such personnel records as are pertinent to mortality, morbidity, injury, safety, and other similar studies; and to question and interview privately any employer, owner, operator, agency, or employee from the place of employment. The employer, owner, operator, or agency shall have the opportunity to review photographs, and video recordings taken or obtained for the purpose of identifying those which contain or might reveal a trade secret.
(2) Prior to the conduct of medical examinations, anthropometric measurements or functional tests of any employees, the NIOSH authorized representatives will obtain approval of the procedures to be utilized from the NIOSH Institutional Review Board and no employee examination, measurement or test will be undertaken without the informed consent of such employee.
Whenever, during the course of, or as a result of, an investigation under this part, the NIOSH authorized representatives believe there is a reasonable basis for an allegation of an imminent danger, NIOSH will immediately advise the employer, owner, operator or agent in charge at the place of employment and those employees who appear to be in immediate danger of such allegation and will inform the agencies identified in § 85a.4(a) through (4).
(a) * * *
(2) All specific reports of investigations of each place of employment under this part will be available to the public from the NIOSH Education and Information Division, 4676 Columbia Parkway, Cincinnati, Ohio 45226.
Federal Communications Commission.
Final rule; correction.
In this document, the Federal Communications Commission (Commission) corrects a document published December 27, 2013. The
Effective January 16, 2014, and applicable beginning December 27, 2013.
Nancy Brooks, Policy and Rules Division, Office of Engineering and Technology, (202) 418-2454, email
The final rules that are the subject of this correction relate to “Medical Body Area Networks” under 47 CFR 95.1215(c), 95.1217(a)(3), 95.1223 and 95.1225 of the rules.
In FR Doc. 2013-30649, published on December 27, 2013, on page 78769, in the second column, correct the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS issues regulations to implement Amendment 89 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (GOA groundfish FMP) and revise regulations governing the configuration of modified nonpelagic trawl gear. First, this rule establishes a protection area in Marmot Bay, northeast of Kodiak Island, and closes that area to fishing with trawl gear except for directed fishing for pollock with pelagic trawl gear. The closure will reduce bycatch of Tanner crab (
Effective February 18, 2014.
Electronic copies of Amendment 89 to the GOA groundfish FMP, the proposed rule, the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) for the Area Closures for Tanner Crab Protection in Gulf of Alaska Groundfish Fisheries (Area Closures EA/RIR/IRFA), and the EA/RIR/IRFA for Trawl Sweep Modification in the Flatfish Fishery in the Central Gulf of Alaska (Trawl Sweep EA/RIR/IRFA) are available from
Melanie Brown, 907-586-7228.
NMFS manages the groundfish fisheries in the exclusive economic zone off Alaska under the GOA groundfish FMP and under the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area. The North Pacific Fishery Management Council (Council) prepared the fishery management plans under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801
The Notice of Availability of Amendment 89 was published in the
This final rule implements the following actions for the management of the trawl fisheries in the Central GOA Regulatory Area and for modified nonpelagic trawl gear construction standards for the GOA and Bering Sea (BS) flatfish fisheries. The proposed rule preamble provides additional information on the three regulatory actions implemented by this final rule, including detailed information on the development of the actions, the impacts and effects of the actions, and the Council's and NMFS' rationale for the actions (78 FR 36150, June 17, 2013). The proposed rule is available from the NMFS Alaska Region Web site (see
This rule establishes a protection area called the Marmot Bay Tanner Crab Protection Area (Marmot Bay Area). The Marmot Bay Area is northeast of Kodiak Island and extends westward from 151 degrees 47 minutes W longitude to State waters between 58 degrees N latitude and 58 degrees 15 minutes N latitude. With one exception, this rule closes the Marmot Bay Area year-round to directed fishing for groundfish by vessels using trawl gear. Directed fishing for pollock by vessels using pelagic trawl gear is exempt from this closure. The term “directed fishing” is defined in regulation at § 679.2.
The Marmot Bay Area shares borders with the Marmot Flats and Outer Marmot Bay Areas, shown in Figure 5 to part 679. The Marmot Flats Area is closed year-round to directed fishing with nonpelagic trawl gear (see § 679.22(b)(1)(i) and Figure 5 to part 679). The Outer Marmot Bay Area is open to directed fishing with nonpelagic trawl gear unless otherwise closed. The Marmot Bay Area overlaps with a portion of the Outer Marmot Bay Area. In this area of overlap, the more restrictive measures implemented for the Marmot Bay Area apply. Overall, the effect of the Marmot Bay Area closure is to extend, to the north and east, areas of State and Federal waters that are closed year-round to nonpelagic trawl gear. Additionally, the Marmot Bay Area closure prohibits the use of all trawl gear, other than pelagic trawl gear used to conduct directed fishing for pollock.
This rule requires vessels using nonpelagic trawl gear when directed fishing for flatfish in the Central GOA to comply with the gear performance standard and construction requirements specified in § 679.24(f). Section 679.24(f) requires the use of elevating devices to raise the elevated section of the sweeps at least 2.5 inches and requires these elevating devices be installed on each end of the elevated section and be spaced along the entire length of the elevated section of the sweeps no less than 30 feet (9.1 m) apart. These are the same performance standard and gear construction requirements applied to vessels in the Bering Sea flatfish fisheries.
To allow for construction flexibility and wear and tear that might occur during a tow, § 679.24(f) provides for
This rule implements a revision to one component of the regulations at § 679.24(f) concerning construction requirements for modified nonpelagic trawl gear to increase the length limit for the lines that connect the doors and the net to the elevated portions of the sweeps from 180 feet (54.8 m) to 185 feet (56.4 m). This limit is shown on Figure 26 to part 679. Specifically, the revision slightly increases the maximum length to 185 feet (56.4 m) for the lines between the door bridles and the elevated section of the trawl sweeps, and between the net, or headline extension, and the elevated section of the trawl sweeps. This revision applies to the construction requirements for modified nonpelagic trawl gear currently required in the Bering Sea flatfish fisheries and in this rule for the Central GOA flatfish fisheries.
The actions described above require the following changes to regulations. This final rule revises two definitions and adds one definition in regulations at § 679.2. The definition of “federally permitted vessel” is revised to include the application of this definition to those vessels required to use modified nonpelagic trawl gear in the Central GOA flatfish fisheries. This revision identifies vessels required to comply with the modified nonpelagic trawl gear requirements and is consistent with existing modified nonpelagic trawl gear requirements.
The definition of “directed fishing” is revised to add a definition of the directed flatfish fisheries in the GOA. This revision lists the flatfish target species that are used in determining when modified nonpelagic trawl gear is required under § 679.24(f) based on directed fishing for flatfish. This revision is necessary to identify the target species that determines when a vessel is directed fishing for flatfish so the requirement to use modified nonpelagic trawl gear can be applied.
A definition of the Marmot Bay Tanner Crab Protection Area is added to § 679.2. This definition is necessary to identify the location of the area and to define this area consistent with other fishery management areas with similar restrictions.
Section 679.7(b) is revised to prohibit a federally permitted vessel from directed fishing for flatfish in the Central GOA without using modified nonpelagic trawl gear. This revision is necessary to require the use of modified nonpelagic trawl gear for directed fishing for flatfish in the Central GOA Regulatory Area and to ensure that the modified nonpelagic trawl gear meets the performance standard and construction requirements specified at § 679.24(f).
Section 679.22 is revised to add the Marmot Bay Tanner Crab Protection Area as an area closed to trawling in the GOA. The closure includes an exemption for vessels directed fishing for pollock with pelagic trawl gear. This revision is necessary to identify the area closed, the applicable gear type, and the target fishery exempted from the closure.
Section 679.24(f) is revised to include reference to the Central GOA flatfish fisheries. This revision is necessary to require vessels using nonpelagic trawl gear to directed fish for flatfish in the Central GOA to comply with the modified nonpelagic trawl gear requirements in this section.
Figure 5 to part 679 is revised to add an illustration and definition of the Marmot Bay Tanner Crab Protection Area. This area includes Federal waters westward from 151 degrees 47 minutes W longitude to State waters between 58 degrees 0 minutes N latitude and 58 degrees 15 minutes N latitude. Use of trawl gear, other than pelagic trawl gear used in directed fishing for pollock, is prohibited at all times in the Marmot Bay Tanner Crab Protection Area. This revision is necessary to identify the Marmot Bay Tanner Crab Protection Area as described in Amendment 89. Due to the revision of Figure 5 to part 679, the table of coordinates for this figure is revised to reflect the removal of letters that identified coordinate locations on several, already established protection areas. In addition, the coordinates in the current table are corrected from degree, minutes, seconds to degree, decimal minutes. This revision improves the clarity of the table coordinates in combination with the revised figure and ensures the correct coordinates are listed in the consistent format used for other closure areas in the regulations.
Figure 26 to part 679 is revised to show the 185-foot (56.4 m) limit for the lines connecting the elevated section of the sweeps to the door bridles and to the net or headline extensions. The revision to Figure 26 is necessary to illustrate the changes to the construction requirements for modified nonpelagic trawl gear.
NMFS did not make any changes in this final rule to the regulatory text contained in the proposed rule.
NMFS received 8 letters of comment containing 11 unique comments on the notice of availability for Amendment 89 (78 FR 33040, June 3, 2013) and on the proposed rule (78 FR 36150, June 17, 2013). A summary of the comments received and NMFS' responses follow.
NMFS determined that the Council's recommended closure of the Marmot Bay Area is necessary and appropriate based on: (1) The high rate of Tanner crab mortality by vessels using nonpelagic trawl gear in the Marmot Bay Area relative to other areas in the Central GOA; (2) the observation of mature male and female Tanner crab populations within the Marmot Bay Area; (3) the occurrence of known Tanner crab habitat within the Marmot Bay Area; (4) the high rate of Tanner crab bycatch by vessels using trawl gear relative to pot gear within the Marmot Bay Area; and (5) the limited historical fishing in this area overlapping with the occurrence of Tanner crab, which reduces the economic impact on fishery participants while minimizing the adverse impacts to Tanner crab from nonpelagic trawl gear.
NMFS agrees with the commenter's assertion that avoiding salmon and halibut bycatch may include moving fishing activities to other locations and that having fewer locations to choose from may reduce fishing efficiency. However, only two to three percent of the annual nonpelagic trawl shallow-water flatfish catch, which includes the rock sole fishery, has occurred in the Marmot Bay Area compared to total shallow-water flatfish catch in Area 630, the area of the Central GOA affected by this rule (see Table 37 in the Area Closures EA/RIR/IRFA). Based on these data indicating limited historical flatfish fishing activity in the closure area, it is likely that these vessels can find efficient and safe locations outside the closure area to fish for rock sole and other flatfish species and avoid halibut and salmon bycatch.
Consistent with National Standards 1, 5, and 9, the Council and NMFS determined that the Marmot Bay Area closure, relative to other closure areas considered, balances the requirement to minimize bycatch to the extent practicable while continuing to allow the GOA groundfish fisheries the opportunity to achieve optimal yield efficiently. Though the potential impact on Tanner crab mortality in the closure area is small in relation to the entire Tanner crab stock in the GOA, the Council determined and NMFS agrees that the Marmot Bay Area closure will benefit Tanner crab through a reduction in PSC and unobserved mortality while minimizing the economic impact on participants in nonpelagic trawl fisheries. Moroever, data shows limited historical flatfish fishing activity in the closure area, and it is likely that these vessels can find efficient and safe locations outside the closure area to continue fishing. (See Section 6.5.2 of the Area Closures EA/RIR/IRFA.)
National Standard 9 states that conservation and management measures shall, to the extent practicable, minimize bycatch and, to the extent bycatch cannot be avoided, minimize the mortality of such bycatch. In establishing the Marmot Bay Area closure, the Council and NMFS determined what Tanner crab bycatch management measures were practicable for the GOA groundfish fisheries. The Council and NMFS have not established a Tanner crab bycatch rate that applies to all Federal fisheries. Instead, the Council and NMFS have developed management measures for the various Federal fisheries that minimize bycatch to the extent practicable for that fishery. Tanner crab bycatch in the scallop dredge fishery is controlled through the use of crab bycatch limits. The Scallop FMP does not include provisions defining “prohibited species,” thus the distinction made under the Groundfish FMPs between bycatch and PSC does not apply to this (or other) non-groundfish FMPs regulating the BSAI and GOA (See Section 3.4.2 of the Area Closures EA/RIR/IRFA). Section 3.4.2 of the Area Closures EA/RIR/IRFA provides information showing that although Tanner crab bycatch limits for the scallop fishery are set at 0.5 percent or 1.0 percent of the total Tanner crab stock abundance estimate based on most recent survey data, estimated catch of Tanner crab in the Kodiak Northeast District scallop fishery between 2000 and 2009 has been significantly less than the annual Tanner crab bycatch limit.
The closure of the Marmot Bay Area and the modified trawl gear requirement were based on the analysis of alternative methods to reduce adverse effects on Tanner crab to the extent practicable and based on the best available information. The opening of existing closure areas would require analysis of the potential impacts of opening closed areas to determine if the closures are not effective at reducing Tanner crab bycatch to the extent practicable and the other environmental and economic effects that may occur with the opening of an existing closure area. The analyses for this rule did not examine the effects of King crab closures on Tanner crab stocks, modifying existing closure areas, or other measures to improve the abundance of Tanner crab stocks as those actions are not within the scope of this action.
This rule is consistent with effective past measures the Council has recommended, and NMFS has implemented, to reduce impacts of nonpelagic trawl gear on crab populations, directly by limiting injury and mortality, and indirectly by reducing potential adverse habitat impacts. Because overall Tanner crab bycatch in the GOA groundfish fisheries can be small in relation to the Tanner crab population, but potentially concentrated in certain areas or at certain times, the Council and NMFS determined that time and area closures are more effective than Tanner crab PSC limits in reducing the potential impacts of nonpelagic trawl gear on Tanner crab stocks. Additionally, this rule requires that nonpelagic trawl gear used in the directed flatfish fisheries in the Central GOA be modified to raise portions of the gear off the sea floor. This requirement can reduce the adverse effects of nonpelagic trawl gear on Tanner, snow, and red king crabs by reducing the unobserved mortality and injury of these species.
The NMFS Assistant Administrator determined that Amendment 89 to the GOA groundfish FMP is necessary for the conservation and management of the GOA groundfish fishery and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable law.
This rule has been determined to be not significant for the purposes of Executive Order 12866.
A final regulatory flexibility analysis (FRFA) is required by the Regulatory Flexibility Act (RFA). This FRFA incorporates the initial regulatory flexibility analyses (IRFAs) prepared for the proposed rule and addresses the applicable requirements of section 604 of the RFA. A statement of the need for, and objectives of, this final rule is described in the preamble to this rule and is not repeated here. This information also was provided in the preamble to the proposed rule.
NMFS published a proposed rule to implement Amendment 89 and a regulatory amendment on June 17, 2013 (78 FR 36150), with comments invited through July 17, 2013. NMFS received 8 letters of comment from the public on Amendment 89 and the proposed rule. None of these comments specifically addressed the IRFAs, but Comments 2 and 3 expressed concerns about the potential cost of the Marmot Bay Area closure to commercial fishermen. NMFS' responses to these comments explain that the Council and NMFS considered potential costs to industry and recommended the smallest possible closure area to accomplish the objective of crab protection measures. In addition, the Council noted, and NMFS agrees that fishermen prohibited from fishing in the Marmot Bay Area have other fishing opportunities elsewhere in the GOA.
No comments on the proposed rule were filed with NMFS by the Chief Counsel for Advocacy of the Small Business Administration.
The determination of the number and description of small entities regulated by these actions is based on small business size standards established by the Small Business Administration (SBA). On June 20, 2013, the SBA issued a final rule revising the small business size standards for several industries effective July 22, 2013 (78 FR 37398, June 20, 2013). The rule increased the size standard for Finfish Fishing from $ 4.0 million to $ 19.0 million, Shellfish Fishing from $ 4.0 million to $ 5.0 million, and Other Marine Fishing from $ 4.0 million to $ 7.0 million. Id., at 37400 (Table 1).
Pursuant to the RFA, and prior to SBA's June 20, 2013, final rule, two IRFAs were prepared for these actions using SBA's former size standards. The IRFAs were summarized in the “Classification” section of the preamble to the proposed rule. NMFS has reviewed the IRFAs in light of the new size standards. NMFS did not conduct a re-analysis of how many entities directly regulated by these actions
The entities directly regulated by Action 1 are those entities that participate in the groundfish fisheries using trawl gear in the Marmot Bay Area (except for pelagic trawl vessels directed fishing for pollock). From 2003 through 2009, 68 vessels used nonpelagic trawl gear in the Central GOA and therefore would be directly regulated by Action 1. Of these 68 vessels, 26 vessels had gross earnings of less than $4.0 million so were categorized as small entities in the IRFA. For purposes of this FRFA, all 68 nonpelagic trawl vessels directly regulated by Action 1 are assumed to be small entities.
The entities directly regulated by Action 2 are those entities that participate in the Central GOA flatfish fisheries. For Action 2, 51 vessels participated in the Central GOA flatfish fisheries in one or more years between 2003 and 2010, making these vessels directly regulated under Action 2. Of these 51 vessels, two catcher/processors and eight catcher vessels that participated in the Central GOA flatfish fisheries had gross earnings of less than $4.0 million so were categorized as small entities in the IRFA. For purposes of this FRFA, all 51 vessels are assumed to be small entities.
For Action 3, the same 51 vessels that are assumed to be small entities under Action 2 also would be small entities for Action 3. Because Action 3 also affects gear construction by flatfish vessels fishing in the Bering Sea subarea, this FRFA includes small entity information published in the Final Rule for Amendment 94 to the BSAI groundfish FMP (75 FR 61642, October 6, 2010). In 2007, all of the catcher/processors (CPs) targeting flatfish in the Bering Sea subarea (46 vessels) exceeded the $4.0 million threshold that the SBA used at that time to define small fishing entities. Due to their combined groundfish revenues, the CPs would be considered large entities for purposes of the RFA at that time, but due to the increase in the SBA small business size standard some of these vessels may not exceed the new threshold and may be considered small entities. Based on their combined groundfish revenues, none of the four catcher vessels that participated in 2007 exceeded the SBA's small entity threshold, and these vessels are considered small entities for purposes of the RFA. It is likely that some of these vessels also are linked by company affiliation, which may then categorize them as large entities, but there is no available information regarding the ownership status of these vessels at an entity level. Because NMFS is unable to conduct a thorough re-analysis of how many entities directly regulated by these actions would be categorized as small entities under the new size standards, all the vessels directly regulated by Action 3 are assumed to be small entities. Therefore, the FRFA may overestimate the number of small entities directly regulated by Action 3.
These actions will not change recordkeeping and reporting requirements. Vessel operators will be required to comply with the specified area closure and gear requirements. Description of Significant Alternatives to the Final Action that Minimize Adverse Impacts on
An FRFA must describe the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency that affect the impact on small entities was rejected. “Significant alternatives” are those that achieve the stated objectives for the action, consistent with prevailing law with potentially lesser adverse economic impacts on small entities, as a whole.
During consideration of this action, the Council evaluated a number of alternatives to the preferred alternative, including (1) no action, (2) four permanent or seasonal area closures in which trawl or pot fishing would be prohibited, (3) four area closures in which trawl and pot fishing would only be allowed with increased observer coverage, (4) an exemption to the closures for vessels using pelagic trawl gear, and (5) an exemption to the closures for vessels using modified nonpelagic trawl gear. The “No Action” alternative would not have met the Council's objectives for this action, and would have provided no specific conservation measures in the GOA to address adverse interactions with Tanner crab by trawl and pot sectors targeting groundfish.
None of the other alternatives would have both met the objectives of the action and had a smaller adverse economic impact on small entities when compared with the preferred alternative. Under the second alternative described above, the impact on these vessels would be proportional to the extent that they rely on the area for target fishing, the extent to which they are able to offset catches foregone in the closed areas, and the net costs of making the adjustment. Observer data suggests that the nonpelagic trawl fisheries would be most impacted by area closures. Seasonal closures might reduce the adverse impacts on groundfish fishermen as vessels could fish in the areas for the remainder of the year, but would not meet the objectives of the action. Under the third alternative above, costs would increase to owners of 90 vessels that continued to fish in the closure areas that are not already required to have 100 percent or greater observer coverage. Table 57 in the Area Closures EA/RIR/IRFA shows the increased costs for observer coverage for vessels fishing in the proposed closure area. The fourth alternative, to exempt vessels using pelagic trawl gear from the Marmot Bay Area closure, would have the same effect as the preferred alternative because vessels using pelagic trawl gear in this area are directed fishing for pollock. The preferred alternative would prevent the use of pelagic trawl gear to directly fish for other groundfish species in this area, further protecting the area to any potential effects of pelagic trawl gear on habitat. Under the fifth alternative, an exemption to the closures for vessels using modified nonpelagic trawl gear, the average cost of the modification to fishermen using net reels, for the gear configuration used in the Central GOA, is initially approximately $12,600 and approximately $3,000 in annual maintenance. For vessels using main line winches to set and haul back the modified sweeps there may also be one-time costs for modifying the vessel to accommodate the sweep modification of $20,000 to $25,000 or higher, depending on current vessel configuration. This cost may be offset if the modification extends the useful life of the sweeps and reduces the frequency with which new gear must be purchased (See Section 6.6 of the Area Closures EA/RIR/IRFA).
Six of the eight public comments asked for the Marmot Bay Area to be either reduced or not implemented to
The Council considered two alternatives for Actions 2 and 3. The first is the “No Action” alternative, which does not require any modification to trawl sweeps for vessels targeting GOA flatfish, nor does it change the maximum length for the lines that connect the doors and the net to the elevated portions of the sweeps from 180 feet to 185 feet. The other alternative, the Council's preferred alternative, requires vessels targeting Central GOA flatfish to modify their gear to reduce bottom contact. For all vessels, the additional cost of purchasing the modified gear appears to be $3,000 to $3,400, annually. Additionally, for vessels with net reels, there may be an additional cost for keeping replacement elevating devices on board, at a cost of approximately $700 for a full replacement set. For vessels requiring a structural change to accommodate the modified trawls sweeps and continue to maintain the same catch rates, estimates provided by industry range from $20,000 to $25,000 (see Section 2.11 of the Trawl Sweep EA/RIR/IRFA).
The preferred alternative also extends the areas exempted from elevating devices on the net bridles and door bridles from 180 feet to 185 feet to accommodate hammerlocks attached to net and door bridles. This extension of the exempt areas applies to trawl sweep gear modifications in the Bering Sea and Central GOA. This change to the gear construction requirement allows for accommodating the connecting devices with the current trawl sweeps, thus saving industry costs by constructing the gear using standardized parts. Based upon the best available scientific information, the aforementioned analyses, as well as consideration of the objectives of the action, it appears that there are no alternatives to this action with potentially less adverse economic impact while also accomplishing the stated objectives of the Magnuson-Stevens Act and other applicable statutes.
Taking public comment into consideration, NMFS has identified no additional significant alternatives that accomplish statutory objectives and minimize any significant economic impacts of the proposed rule on small entities.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall also explain the actions a small entity is required to take to comply with a rule or group of rules. The preambles to the proposed rule and this final rule serve as the small entity compliance guide. This action does not require any additional compliance from small entities that is not described in the preambles. Copies of this final rule are available from NMFS at the following Web site:
Alaska, Fisheries, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 679 is amended as follows:
16 U.S.C. 773
(6)
(b) * * *
(9) Conduct directed fishing for flatfish, as defined in § 679.2, with a vessel required to be federally permitted in the Central GOA Regulatory Area, as defined in Figure 3 to this part, without meeting the requirements for modified nonpelagic trawl gear specified at § 679.24(f) and illustrated in Figures 25, 26, and 27 to this part.
(b) * * *
(3)
(f)
This figure shows the location of elevating devices in the elevated section of modified nonpelagic trawl gear, as specified under § 679.24(f). The top image shows the location of the end elevating devices in the elevated section for gear with net bridles no greater than
Agricultural Marketing Service, USDA.
Reopening and extension of comment period.
Notice is hereby given that the comment period on the proposed rule establishing an industry-funded promotion, research and information program for hardwood lumber and hardwood plywood is reopened and extended. The comment period is also extended for the new hardwood lumber and hardwood plywood information collection requirements by the Office of Management and Budget (OMB) for the operation of the proposed program. The proposed Hardwood Lumber and Hardwood Plywood Promotion, Research and Information Order, was submitted to the U.S. Department of Agriculture (USDA) by the Blue Ribbon Committee, a committee of 14 hardwood lumber and hardwood plywood industry leaders representing small and large manufacturers and geographically distributed throughout the United States.
The comment period for the proposed rule published November 13, 2013 (78 FR 68298), is extended. Comments must be received by February 18, 2014. Pursuant to the Paperwork Reduction Act (PRA), comments on the information collection burden that would result from this proposal must be received by February 18, 2014.
Interested persons are invited to submit written comments on the Internet at
Pursuant to the PRA, comments regarding the accuracy of the burden estimate; ways to minimize the burden, including the use of automated collection techniques or other forms of information technology; or any other aspect of this collection of information; should be sent to the above address. In addition, comments concerning the information collection should also be sent to the Desk Office for Agriculture, Office of Information and Regulatory Affairs, OMB, New Executive Office Building, 725 17th Street NW., Room 725, Washington, DC 20503.
Patricia A. Petrella, Marketing Specialist, Promotion and Economics Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., Room 1406-S, Stop 0244, Washington, DC 20250-0244; telephone: (301) 334-2891; or facsimile: (301) 334-2896; or email:
A proposed rule was issued on November 6, 2013, and published in the
USDA received congressional inquiries and letters from industry members requesting that the comment period be extended to allow additional time for interested persons to review the proposal and submit comments.
USDA is reopening and extending the comment period an additional 30 days to allow interested persons more time to review the proposed rule, perform a complete analysis, and submit written comments.
This notice is issued pursuant to the Commodity Promotion, Research, and Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for British Aerospace (Operations) Limited Model HP.137 Jetstream Mk.1, Jetstream Series 200, and Jetstream Series 3101 airplanes that would supersede an existing AD. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as cracking of the forward main landing gear yoke pintle resulting from corrosion pits leading to stress corrosion. We are issuing this proposed AD to require actions to address the unsafe condition on these products.
We must receive comments on this proposed AD by March 3, 2014.
You may send comments by any of the following methods:
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•
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For service information identified in this proposed AD, contact BAE Systems (Operations) Ltd, Customer Information Department, Prestwick International Airport, Ayrshire, KA9 2RW, Scotland, United Kingdom; phone: +44 1292 675207, fax: +44 1292 675704; email:
You may examine the AD docket on the Internet at
Taylor Martin, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4138; fax: (816) 329-4090; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On December 16, 1986, we issued AD 87-02-04, Amendment 39-5497 (51 FR 47211, December 31, 1986). That AD required actions intended to address an unsafe condition on the products listed above.
Since we issued AD 87-02-04, Amendment 39-5497 (51 FR 47211, December 31, 1986), there has been a reported failure of the main landing gear (MLG) on a Jetstream Series 3100 airplane. An investigation revealed stress corrosion cracking of the MLG yoke pintle housing as a root cause of the MLG failure.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD No.: 2013-0208, dated September 10, 2013 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Prompted by occurrences of the main landing gear (MLG) yoke pintle housing cracking, the United Kingdom Civil Aviation Authority (UK CAA) issued AD G-003-01-86 to require repetitive inspections to identify any crack in the yoke pintle housing on MLG fitted to Jetstream 3100 aeroplanes in accordance with BAE Systems (Operations) Ltd Service Bulletin (SB) 32-A-JA851226, and depending on findings, corrective action. After that AD was issued, an occurrence of Jetstream 3100 MLG failure was reported after landing. The subsequent investigation revealed stress corrosion cracking of the MLG yoke pintle housing as a root cause of the MLG failure. Furthermore, the investigation report recommended a review of the effectiveness of UK CAA AD G-003-01-86 in identifying cracks in the yoke pintle housing on MLG fitted to Jetstream 3100 aeroplanes.
Degradation of the surface protection by abrasion can occur when the forward face of the yoke pintle rotates against the pintle bearing, which introduces corrosion pits and, consequently, stress corrosion cracking.
This condition, if not detected and corrected, could lead to structural failure of the MLG, possibly resulting in loss of control of the aeroplane during take-off or landing runs.
To provide protection of the affected area of the MLG assembly spigot housing, BAE Systems (Operations) Ltd issued SB 32-JM7862 to provide instructions for installation of a protective washer, fitted at the forward spigot on both, left hand (LH) and right hand (RH), MLG. Consequently, BAE Systems (Operations) Ltd issued SB32-A-JA851226 at Revision 5 to provide additional accomplishment instructions for Non-destructive testing inspection (NDT) of MLG equipped with the protective washer installed in accordance with BAE Systems (Operations) Ltd SB 32-JM7862 and to introduce reference to MLG manufacturer APPH Ltd SB 32-19 at Revision 4, providing instructions for re-protection of the yoke pintle.
For the reasons described above, this AD retains the requirements of AD G-003-01-86, which is superseded, and requires implementation of revised inspection requirements, and depending on findings, corrective action. This AD introduces an optional modification, which constitutes terminating action for the inspections required by this AD.
British Aerospace (Operations) Limited issued Jetstream Series 3100 & 3200 Service Bulletin No. 32-A-JA851226, Revision 5, dated April 30, 2013; Jetstream Service Bulletin 32-JA880340, dated January 6, 1989; which references British Aerospace Dynamics Division Service Bulletin 32-36, dated July 20, 1988; APPH Ltd. Service Bulletin No. 32-19, Revision 4, dated April 3, 2013; and APPH Ltd. Service Bulletin No. 32-40, Revision 1, dated February 2003. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
We estimate that this proposed AD will affect 44 products of U.S. registry. We also estimate that it would take about 14 work-hours per product to comply with the inspection requirements of this proposed AD. The average labor rate is $85 per work-hour.
Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $52,360, or $1,190 per product.
In addition, we estimate that any necessary follow-on actions would take about 10 work-hours and require parts costing $5,000, for a cost of $5,850 per
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by March 3, 2014.
This AD supersedes AD 87-02-04, Amendment 39-5497 (51 FR 47211, December 31, 1986).
This AD applies to British Aerospace (Operations) Limited Model HP.137 Jetstream Mk.1, Jetstream Series 200, and Jetstream Series 3101 airplanes, all serial numbers, certificated in any category.
Air Transport Association of America (ATA) Code 32: Landing Gear.
This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as cracking of the forward main landing gear (MLG) yoke pintle that resulted from corrosion pits leading to stress corrosion. We are issuing this AD to prevent failure of the MLG, which could result in loss of control of the airplane during take-off or landing.
Unless already done, do the following actions specified in paragraphs (f)(1) through (f)(11) of this AD:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(i) 100 hours TIS × .75 = 75 cycles; and
(ii) 1,000 hours TIS × .75 = 750 cycles.
This AD allows credit for the initial inspection required in paragraph (f)(7) of this AD if done before the effective date of this AD following APPH Ltd. Service Bulletin 32-40, at Initial Issue dated June 21, 1989.
The following provisions also apply to this AD:
(1)
(2)
(3)
Refer to MCAI European Aviation Safety Agency (EASA) AD No.: 2013-0208, dated September 10, 2013, for related information. You may examine the MCAI on the Internet at
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the State Implementation Plan (SIP) for the state of Iowa. These revisions will amend the Iowa air quality rules to eliminate state-only emissions testing procedures and adopt Federal methods; to reduce notification time for portable plant relocations, and allow electronic submittals of notifications; to update air quality definitions to be consistent with Federal definitions, and to place into rule the specific procedures for conducting emissions testing.
EPA is also proposing to approve revisions to the Iowa Title V Operating Permits Program to revise the definition of “EPA Reference Method,” and to adopt by reference the revised Title V Periodic Monitoring Guidance.
Comments on this proposed action must be received in writing by February 18, 2014.
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2013-0483 by one of the following methods:
1.
2.
3.
4.
Please see the direct final rule which is located in the Rules section of this
Amy Algoe-Eakin at (913) 551-7942, or by email at
In the final rules section of the
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of proposed rulemaking; technical amendments.
The Department of Health and Human Services (HHS) proposes to amend its regulations pertaining to occupational safety and health investigations of places of employment conducted by the National Institute for Occupational Safety and Health (NIOSH) in the Centers for Disease Control and Prevention (CDC), to update outdated terminology and strike references to obsolete government offices or divisions. These proposed changes will not affect current practices.
Comments must be received by March 17, 2014.
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Teresa Schnorr Ph.D., Director, NIOSH Division of Surveillance, Hazard Evaluations and Field Studies (DSHEFS); 4676 Columbia Parkway, Cincinnati, OH 45226; 513-841-4428 (this is not a toll-free number).
This notice is organized as follows:
The purpose of this proposed rule is to make minor technical changes to HHS regulations in 42 CFR part 85a, pertaining to occupational safety and health investigations of places of employment. Proposed amendments to the existing rule include striking references to obsolete government offices or agencies, updating the proper NIOSH office from which to request specific reports of investigations, and correcting outdated terms such as “motion pictures.” Obsolete terms and outdated language in Part 85a were identified during the agency's retrospective analysis of existing regulations, in accordance with Executive Order 13563.
Proposed amendments to 42 CFR part 85a include the following: § 85a.2 (alphabetize definitions and strike definitions of “NIOSH Regional Office,” and “BOM (Bureau of Mines)” and remove reference to “Public Health Service” within the definition of “NIOSH”), § 85a.4 (clarify that the union at the place of employment must be notified of the investigation, and strike reference to BOM), § 85a.5 (replace “motion pictures or videotapes” with “video recordings” and “Human Subjects Review Board” with “Institutional Review Board”), and § 85a.8 (replace “NIOSH Regional Consultant for Occupational Safety and Health” with “NIOSH Education and Information Division.”
Because HHS is proposing no substantive changes to 42 CFR part 85a, there would be no changes made to current practices. Therefore, there are no costs or benefits associated with this rulemaking.
Interested parties may participate in this rulemaking by submitting written views, opinions, recommendations, and data. This notice of proposed rulemaking is published in conjunction with a direct final rule (DFR) because HHS finds that the updates to Part 85a add clarity to the regulation and are non-controversial; HHS does not expect to receive any significant adverse comments on this rulemaking. If significant adverse comments are received, HHS will publish a notice in the
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 do not wish to be disclosed. You may submit comments on any topic related to this notice of proposed rulemaking.
Subsection 20(b) of the Occupational Safety and Health (OSH) Act of 1970 authorizes the Secretary of Health and Human Services to make inspections and question employers and employees as provided in section 8 of the OSH Act in order to carry out the Secretary's functions and responsibilities under section 20 [29 U.S.C. 669; 29 U.S.C. 657]. Section 8(g)(2) instructs the Secretary to prescribe such regulations as are deemed necessary to carry out the responsibilities of the agency to conduct inspections of an employer's establishment. Sections 103 and 501 of the Federal Mine Safety and Health (FMSH) Act of 1977 authorize the Secretary to make inspections and investigations at coal mines in order to conduct research as may be appropriate
The provisions in Part 85a govern procedures NIOSH follows in conducting safety and health investigations at places of employment. The proposed amendments described below are all non-substantive and would have no practical effect on NIOSH procedures or practices, but are being proposed in accordance with Executive Order 13563, section 6, which requires that Federal agencies conduct retrospective analyses of existing rules. In conducting the analysis, NIOSH discovered that certain terms and references in Part 85a were outdated.
Section 85a.1 states that the provisions in Part 85a pertain to investigations of places of employment conducted by NIOSH, pursuant to the statutory authorities noted above. The section also affirms that the provisions in this part do not apply to activities covered by HHS regulations in 42 CFR part 85. HHS proposes no changes to this section.
Section 85a.2 offers definitions for terms used in this part. HHS proposes a number of changes to this section. First, HHS proposes to remove the paragraph designations and instead to list the terms alphabetically. Next, HHS proposes to strike the definitions of BOM (Bureau of Mines) and NIOSH Regional Office from § 85a.2, because BOM is obsolete and because the addresses of the regional offices referenced here are no longer relevant to this rule. The phrase “Public Health Service” is proposed to be stricken from the definition of “NIOSH,” and the definition of “FMSH Act,” is teased apart from the existing definition of “OSH Act” and is proposes as a stand-alone definition. None of the changes to this section would be substantive.
Section 85a.3 establishes procedures by which NIOSH authorized representatives may enter a place of employment for the purpose of conducting investigations under the OSH Act and the FMSH Act. This section also establishes that investigations will be conducted in a reasonable manner. HHS proposes a minor change to this section to correct punctuation.
Section 85a.4 states that the NIOSH authorized representative will contact an official representative of the place of employment prior to a site visit. The NIOSH official will also notify a representative of the appropriate State agency, the local union at the place of employment, the appropriate OSHA Assistant Regional Director, and the appropriate MSHA District Office. HHS proposes minor changes to § 85a.4(a)(2) to strike unnecessary language specifying which union official must be notified, thereby clarifying that the union must be notified; a proposed change to § 85a.4(a)(4) would remove reference to the obsolete Bureau of Mines. Section 85a.4(b) is edited to correspond with the change in paragraph (a)(2). One final proposed change to § 85a.4(c) would add the term “or organizations” to specify that the investigating NIOSH official would notify the individuals or organizations referenced above. HHS proposes no further changes to this section.
Section 85a.5 establishes the procedures NIOSH representatives will follow to conduct a workplace investigation. HHS proposes amending this section to replace the outdated terms “motion pictures or videotapes” with “video recordings” and “Human Subjects Review Board” with “Institutional Review Board,” and correcting “contact agreement,” which should properly be “contract agreement” in paragraph (b)(2). HHS proposes no further changes to this section.
Section 85a.6 requires that the employer, owner, operator, or agent in charge at the investigated place of employment must provide a suitable space for the NIOSH representative to conduct private interviews. HHS proposes no changes to this section.
Section 85a.7 authorizes the NIOSH representative to advise the employer, owner, operator, or agent in charge, any employees who appear to be in danger, and any of the individuals or agencies identified in § 85a.4 that an imminent danger exists. HHS proposes no changes to this section.
Section 85a.8 states that NIOSH will make specific reports of investigations available to the employer, owner, operator, or agent in charge, as well as to those individuals or agencies identified in § 85a.4. HHS proposes amending § 85a.8(a)(2) to strike reference to “NIOSH Regional Consultant for Occupational Safety and Health” and replace it with the name of the office that will make specific reports available, the “NIOSH Education and Information Division.” HHS proposes no further changes to this section.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
This proposed rule has been determined not to be a “significant regulatory action” under section 3(f) of E.O. 12866. The proposed amendments in this notice would alphabetize the definitions section, strike reference to the former Bureau of Mines and NIOSH Regional Office, update where specific reports of investigations may be obtained, and update language used to describe “motion pictures.” Further, because this proposed rule is administrative and would not affect the cost of the activities authorized by Part 85a, HHS has not prepared an economic analysis. Accordingly, the Office of Management and Budget (OMB) has not reviewed this rulemaking.
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501
As required by Congress under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531
This proposed rule has been drafted and reviewed in accordance with Executive Order 12988, “Civil Justice Reform,” and will not unduly burden the Federal court system. This rule has been reviewed carefully to eliminate drafting errors and ambiguities.
HHS has reviewed this proposed rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” The rule does not “have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
In accordance with Executive Order 13045, HHS has evaluated the environmental health and safety effects of this proposed rule on children. HHS has determined that the rule would have no environmental health and safety effect on children.
In accordance with Executive Order 13211, HHS has evaluated the effects of this proposed rule on energy supply, distribution or use, and has determined that the rule will not have a significant adverse effect.
Under Public Law 111-274 (October 13, 2010), executive Departments and Agencies are required to use plain language in documents that explain to the public how to comply with a requirement the Federal Government administers or enforces. HHS has attempted to use plain language in promulgating the proposed rule consistent with the Federal Plain Writing Act guidelines.
Archives and records, Employee management relations, Hazardous substances, Health hazards, Health records, Industry, Investigations, Labor, Mine safety and health, Occupational injury, Occupational safety and health, Reporting and recordkeeping requirements, Research, Respiratory diseases, Right of entry, Toxic substances, Unions.
For the reasons discussed in the preamble, the Department of Health and Human Services proposes to amend 42 CFR part 85a as follows:
Sec. 8(g), 84 Stat. 1600; 29 U.S.C. 657(g) and sec. 508, 83 Stat. 803; 30 U.S.C. 957.
Any term defined in the Occupational Safety and Health Act of 1970 or the Federal Mine Safety and Health Act of 1977 and not defined below shall have the meaning given it in the Acts. As used in this part:
(1) A fair explanation of the procedures to be followed, and their purposes, including identification of any procedures which are experimental;
(2) A description of any attendant discomforts and risks reasonably to be expected;
(3) A description of any benefits reasonably to be expected;
(4) A disclosure of any appropriate alternative procedures that might be advantageous for the subject;
(5) An offer to answer any inquiries concerning the procedures; and
(6) An instruction that the person is free to withdraw his consent and to discontinue participation in the investigation any time without prejudice to the subject.
(a) * * *
(2) The local union at the place of employment, if any;
(4) The appropriate MSHA District Office when investigations are conducted under the FMSH Act.
(b) Advance notice of site visits will not be given to the place of employment or local union at the place of employment when, in the judgment of the NIOSH authorized representatives, giving such notice would adversely affect the validity and effectiveness of an investigation. Those individuals and organizations specified in § 85a.4(a)(1), (a)(3), and (a)(4) will be notified prior to the initiation of such a site visit. After the site visit has been initiated, and, as soon as possible thereafter, the NIOSH authorized representatives will contact the organizations specified in § 85a.4(a)(2) concerning the nature and details of the site visit.
(c) In those instances where site visits are not necessary to the conduct of an investigation, the NIOSH authorized representatives will contact an official representative of the place of employment either verbally or through a written communication and provide the details of why an investigation of the place of employment is being conducted. If appropriate, the NIOSH authorized representatives will contact those individuals or organizations stipulated in paragraphs (a)(1) through (4) of this section about the nature and details of the investigation.
(b) * * *
(2) In those instances where the NIOSH authorized representative is a person fulfilling a contract agreement with NIOSH or is serving as an expert or consultant to NIOSH pursuant to the Act, the employer, owner, operator or agent in charge at the place of employment may, after advising the NIOSH contractor or consultant in writing, elect to withhold information deemed to be a trade secret from such a NIOSH authorized representative or prohibit entry into the area of the place of employment where such entry will reveal trade secrets. In those instances, where the subject information is needed or access to the area of the place of employment is necessary, in the judgment of NIOSH, to fulfill the goals of the investigation, NIOSH regular employees will then obtain the information or enter the subject area of the place of employment.
(d)(1) NIOSH authorized representatives are authorized: To collect environmental samples and samples of substances; to measure environmental conditions and employee exposures (including measurement of employee exposure by the attachment of personal sampling devices to employees with their consent); to take or obtain photographs, video recordings related to the purpose of the investigation; to employ other reasonable investigative techniques, including medical examinations, anthropometric measurements and standardized and experimental functional tests of employees with the informed consent of such employees; to review, abstract, and duplicate such personnel records as are pertinent to mortality, morbidity, injury, safety, and other similar studies; and to question and interview privately any employer, owner, operator, agency, or employee from the place of employment. The employer, owner, operator, or agency shall have the opportunity to review photographs, and video recordings taken or obtained for the purpose of identifying those which contain or might reveal a trade secret.
(2) Prior to the conduct of medical examinations, anthropometric measurements or functional tests of any employees, the NIOSH authorized representatives will obtain approval of the procedures to be utilized from the NIOSH Institutional Review Board and no employee examination, measurement or test will be undertaken without the informed consent of such employee.
Whenever, during the course of, or as a result of, an investigation under this part, the NIOSH authorized representatives believe there is a reasonable basis for an allegation of an imminent danger, NIOSH will immediately advise the employer, owner, operator or agent in charge at the place of employment and those employees who appear to be in immediate danger of such allegation and will inform the agencies identified in § 85a.4(a) through (4).
(a) * * *
(2) All specific reports of investigations of each place of employment under this part will be available to the public from the NIOSH Education and Information Division, 4676 Columbia Parkway, Cincinnati, Ohio 45226.
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), New Executive Office Building, 725 17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
This is a reinstatement with changes of a previously approved collection.
Agricultural Marketing Service, USDA.
Notice, new collection.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Agricultural Marketing Service's (AMS) intention to request approval of a new collection, titled: Local Food Directories and Survey, from the Office of Management and Budget (OMB). Upon approval, we request that this collection be merged into OMB 0581-0169, National Farmers Market Directory and Survey with Modules, which was approved April 19, 2013.
Comments on this document must be received by March 17, 2014 to be assured of consideration.
You may submit written, faxed, or internet comments to:
• Edward Ragland, Marketing Services Division, Transportation and Marketing Programs, Agricultural Marketing Service, U.S. Department of Agriculture, 1400 Independence Ave. SW., Room 4523 South Building, Ag Stop 0269, Washington, DC 20250-0269.
•
•
All written comments should be identified with the document number AMS-TM-13-0092. All comments received will be available for public inspection during regular business hours at the same address. It is our intention to have all comments whether
On-farm markets, community supported agriculture (CSAs) as well as food hubs comprise an integral part of the urban/farm linkage and have continued to rise in popularity, mostly due to the growing consumer interest in obtaining fresh products directly from the farm. The use of these marketing channels has enabled farmers to receive a larger share of consumer's food dollar. On-farm markets, community supported agriculture (CSAs) and food hubs allow consumers to have access to locally grown, farm fresh produce, enables farmers the opportunity to develop a personal relationship with their customers, and cultivate consumer loyalty with the farmers. They are also providing greater access to fresh locally grown fruits and vegetables, as well as playing increasing role in encouraging healthier eating.
An
This information will be used to build three web-based directories and describe the characteristics of on-farm markets, CSAs, and food hubs and to identify trends in their communities.
Topic areas in the survey:
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
The information collected is used only by authorized employees of the USDA, AMS.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.
Agricultural Marketing Service, USDA.
Notice.
The Agricultural Marketing Service (AMS) held meetings of the Universal Cotton Standards Advisory Committee in Raleigh, North Carolina on June 19, 20 and 21, 2013. This notice announces the Advisory Committee's recommendation to adopt USDA's HVI (High Volume Instrument) Cotton Trash Standards as Universal Standards and to change the frequency of Universal Cotton Standards Conferences from once every three years to once every four years. The meeting agenda, minutes, and recommendations from the Advisory Committee are posted at the following Web address:
Comments must be received on or before February 18, 2014.
Interested persons are invited to submit comments concerning
•
•
James Knowlton, Designated Federal Official, Cotton & Tobacco Programs, AMS, USDA, 3275 Appling Road, Room 5, Memphis, TN 38133. Telephone (901) 384-3030, facsimile (901) 384-3032, or email Telephone (901) 384-3030, or email:
The purpose of the Universal Cotton Standards Advisory Committee is to consider any necessary changes to the Universal Cotton Standards and to review and approve freshly prepared sets of the Universal Cotton Grade Standards for conformity with the existing standards.
At the Universal Cotton Standards Conference on June 19-21, 2013, the Advisory Committee recommended revising the Universal Cotton Standards Agreement in regards to its recommendations of adopting a Universal HVI Cotton Trash Standard and changing the frequency of Universal Cotton Standards Conferences from once every three years to once every four years.
The Universal Cotton Standards Agreement is an Agreement between USDA, the U.S. cotton industry and overseas cotton associations of merchants and textile manufacturers that provides for the trading of U.S. cotton on the official standards of the U.S. for Upland cotton. Adoption of the Universal HVI Cotton Trash Standard will ensure that the USDA's cotton trash measurement serves as the internationally accepted universal language for cotton trash measurements. Adoption of the frequency of Universal Cotton Standards Conferences to be held once every four years will provide improved cost efficiency while continuing to provide the necessary framework for future considerations to the Universal Cotton Standards.
7 U.S.C. 51-65.
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on the proposed collection.
Form FNS-245, is currently used in the Quality Control process for the Supplemental Nutrition Assistance Program. This is a revision of a currently approved collection in the Supplemental Nutrition Assistance Program and concerns the Negative QC Review Schedule.
Written comments must be received on or before March 17, 2014.
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 has practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical or other technological collection techniques or other forms of information technology.
Comments may be sent to: Patrick Lucrezio, Chief, Quality Control Branch, Program Accountability and Administration Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 822, Alexandria, VA 22302. You may also download an electronic version of this notice at
All written comments will be open for public inspection at the FNS office located at 3101 Park Center Drive, Room 822, Alexandria, VA 22302, during regular business hours (8:30 a.m. to 5 p.m. Monday through Friday). All responses to this notice will be included in the request for Office of Management and Budget approval. All comments will also become a matter of public record.
Requests for additional information, copies or to view a draft version of the information collection form and instructions should be directed to SNAP QC at
Form FNS-245, Negative Case Action Review Schedule:
The reporting and recordkeeping burden associated with the completion of form FNS-245, has decreased from approximately 177,351 hours to 121,784.1602 hours. The decrease in total burden is largely a result of the
United States Commission on Civil Rights.
Notice of business meeting.
Friday, January 24, 2014; 9:30 a.m. EST.
1331 Pennsylvania Ave. NW., Suite 1150, Washington, DC 20425.
Lenore Ostrowsky, Acting Chief, Public Affairs Unit (202) 376-8591.
Hearing-impaired persons who will attend the meeting and require the services of a sign language interpreter should contact Pamela Dunston at (202) 376-8105 or at
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).
The National Oceanic and Atmospheric Administration (NOAA) collects vessel license, vessel registration, catch, and unloading information from operators of United States (U.S.) purse seine vessels fishing within a large region of the western and central Pacific Ocean, which is governed by the Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America. The Treaty, along with its annexes, schedules and implementing agreements, was signed in Port Moresby, Papua New Guinea, in 1987. This collection of information is required to meet U.S. obligations under the Treaty.
The Treaty authorizes United States (U.S.) tuna vessels to fish within fishing zones of a large region of the Pacific Ocean. The South Pacific Tuna Act of 1988 (16 U.S.C. 973-973r) and U.S. implementing regulations (50 CFR Part 300, Subpart D) authorize the collection of information from participants in the Treaty fishery. Vessel operators who wish to participate in the Treaty Fishery must submit annual vessel license and registration (including registration of VMS) units) applications and periodic written reports of catch and unloading of fish from licensed vessels. They are also required to ensure the continued operation of VMS units on board licensed vessels, which is expected to require periodic maintenance of the
Copies of the above information collection proposal can be obtained by calling or writing Jennifer Jessup, Departmental Paperwork Clearance Officer, (202) 482-0336, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Bureau of Industry and Security, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before March 17, 2014.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Larry Hall, BIS ICB Liaison, (202) 482-4895,
All parties involved in export transactions and the U.S. party involved in a boycott action are required to maintain records of these activities for a period of five years. These records can include memoranda, correspondence, contracts, invitations to bid, books of account, financial records, restrictive trade practice or boycott documents and reports. The five-year record retention period corresponds with the five-year statute of limitations for criminal actions brought under the Export Administration Act of 1979 and predecessor acts, and the five-year statute for administrative compliance proceedings. Without this authority, potential violators could discard records demonstrating violations of the Export Administration Regulations prior to the expiration of the five-year statute of limitations.
No information is provided to BIS.
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 (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 March 17, 2014.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be
The National Marine Fisheries Service (NMFS), West Coast Region, manages the United States (U.S.)—Canada Albacore Tuna Treaty of 1981 (Treaty). Owners of vessels that fish from U.S. West Coast ports for albacore tuna will be required to notify the National Marine Fisheries Service (NMFS) West Coast Region of their desire to be on the list of vessels provided to Canada each year indicating vessels eligible to fish for albacore tuna in waters under the jurisdiction of Canada. Additionally, vessel operators are required to report in advance their intention to fish in Canadian waters prior to crossing the maritime border as well as to mark their fishing vessels to facilitate enforcement of the effort limits under the Treaty. Vessel operators are also required to maintain and submit a logbook of all catch and fishing effort. The regulations implementing the reporting and vessel marking requirements under the Treaty are at 50 CFR part 300.172-300.176.
The estimated burden below includes hours to complete the logbook requirement, although it is assumed that most if not all of the respondents already complete the required logbook under the mandatory West Coast Highly Migratory Species Fishery Management Plan (HMS FMP), OMB Control No. 0648-0223. Duplicate reporting under the Treaty and HMS FMP is not required. Most years, there will be much less fishing (and thus less reporting) under the Treaty than the level on which the estimate is based.
Requests to be placed on the vessel eligibility list may be made in writing via mail, fax, by email, by telephone, or through online registration if available. Communications to comply with `hail in' and `hail out' requirements are made via ship to shore radio or via telephone and are compiled in an electronic database by Canada Department of Fisheries and Oceans. Summaries of hail reports are provided to NMFS on a periodic basis. Vessel marking requirements entail painting the letter `U' immediately after the U.S. Coast Guard documentation identification number already on the vessel. Logbooks are maintained in pre-printed paper format and submitted via mail.
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 (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 March 17, 2014.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Walter Ikehara, (808) 944-2275 or
This request is for extension of a currently approved information collection.
As part of fishery management plans developed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act, owners of commercial fishing vessels in the Hawaii pelagic longline fishery, American Samoa pelagic longline fishery (only vessels longer than 50 feet), Northwestern Hawaiian Islands lobster fishery (currently inactive), and Northern Mariana Islands bottomfish fishery (only vessels longer than 40 feet) must allow the National Oceanic and Atmospheric Administration (NOAA) to install vessel monitoring system (VMS) units on their vessels when directed to do so by NOAA enforcement personnel. VMS units automatically send periodic reports on the position of the vessel. NOAA uses the reports to monitor the vessel's location and activities, primarily to enforce regulated fishing areas. NOAA pays for the units and messaging. There is no public burden for the automatic messaging; however, VMS installation and annual maintenance are considered public burden.
Automatic electronic submission.
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.
Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of open meeting.
Notice is hereby given of a meeting of the Sanctuary System Business Advisory Council. The meeting is open to the public, and participants may provide comments at the appropriate time during the meeting.
The meeting will be held Wednesday, January 29, from 9:00 a.m. to 5:00 p.m. EST. Opportunity for public comment will be provided at 4:30. These times and the agenda topics described below are subject to change.
The meeting will be held in the Polaris Suite of the Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Avenue NW., Washington, DC, 2004.
Elizabeth Moore, Office of National Marine Sanctuaries, 1305 East West Highway, Silver Spring, Maryland 20910. (Phone: 301-713-7270, Fax: 301-713-0404; email:
ONMS serves as the trustee for 14 marine protected areas encompassing more than 170,000 square miles of ocean and Great Lakes waters from the Hawaiian Islands to the Florida Keys, and from Lake Huron to American Samoa. National marine sanctuaries protect our Nation's most vital coastal and marine natural and cultural resources, and through active research, management, and public engagement, sustains healthy environments that are the foundation for thriving communities and stable economies. One of the many ways ONMS ensures public participation in the designation and management of national marine sanctuaries is through the formation of advisory councils. The Sanctuary System Business Advisory Council (Council) has been formed to provide advice and recommendations to the Director regarding the relationship of the ONMS with the business community. Additional information on the Council can be found at
16 U.S.C. 1431,
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The North Pacific Fishery Management Council (Council) and its advisory committees will hold public meetings in Seattle, WA.
The meetings will be held February 3 through February 11, 2014. See
The meetings will be held at the Renaissance Hotel, 515 Madison Street, Seattle, WA.
David Witherell, Council staff; telephone: (907) 271-2809.
The Council will begin its plenary session at 8 a.m. on Wednesday, February 5, continuing through Tuesday, February 11, 2014. The Scientific Statistical Committee (SSC) will begin at 8 a.m. on Monday, February 3 and continue through Wednesday, February 5, East Room. The Council's Advisory Panel (AP) will begin at 8 a.m. on Tuesday, February 4 and continue through Saturday, February 8, Northwest Room. The Observer Advisory Committee will meet February 3, 8 a.m.-5 p.m., South Room. The Ecosystem Committee will meet Tuesday, February 4, at 8:30 a.m., Marion Room. The Enforcement Committee will meet February 4, 1 p.m.-4 p.m., Marion Room. The Bering Sea Canyon Workshop will meet February 3, 12:30 p.m.-5:30 p.m., Northwest Room. The Community Fishing Associations Workshop will meet February 10, 1 p.m.-6 p.m., South Room. All meetings are open to the public, except executive sessions.
1. Executive Director's Report (including review of Magnuson Stevens Act (MSA) legislation and review of Regional Operating agreement)
NMFS Management Report
ADF&G Report
USCG Report
IPHC Report
USFWS Report
Protected Species Report
2. Gulf (GOA) of Alaska pot cod sector participation—discussion paper
3. GOA of Alaska Tendering—update/discussion paper
4. Charter Halibut Common Pool proposal—review (T)
5. Definition of Fishing Guide—Final action
6. Grenadier Management—Final action
7. Bering Sea Aleutian Island (BSAI) Crab Bycatch Limits—Expanded Discussion paper
8. BSAI Halibut Prohibited Species Catch (PSC)—updated discussion paper
9. Community Development Quota (CDQ) Pacific cod fishery development—discussion paper
10. Aleutian Islands Pacific cod catcher vessel allocation/delivery—Update/Discussion paper
11. Steller Sea Lion (SSL) Environmental Impact Statement (EIS)—action as necessary (T)
12. Observer Program performance-review outline
13. Electronic monitoring-update
14. Observer program regulatory amendments—discussion paper
15. Observer Advisory Committee Report
16. Ecosystem approach Vision Statement—review
17. Bering Sea Fishery Ecosystem plan (FEP)—discussion paper
18. Chinook salmon Economic Data Report (EDR) from Alaska Fishery Science Center
19. Crab Modeling Workshop Report (SSC Only)
20. Groundfish and Crab Economic Stock Assessment Fishery Evaluation (SAFE) reports (SSC review)
21. Staff Tasking—Committees and Staff Tasking
The Advisory Panel will address most of the same agenda issues as the Council except B reports.
The SSC agenda will include the following issues:
1. Chinook EDR
2. BSAI Canyons Workshop
3. Crab Remodeling
4. Economic SAFES
5. Ecosystem Vision
6. Bering Sea FEP
In addition to providing ongoing scientific advice for fishery management decisions, the SSC functions as the Councils primary peer review panel for scientific information as described by the Magnuson-Stevens Act section 302(g)(1)(e), and the National Standard 2 guidelines (78 FR 43066). The peer review process is also deemed to satisfy the requirements of the Information Quality Act, including the OMB Peer Review Bulletin guidelines.
The Agenda is subject to change, and the latest version will be posted at
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen at (907) 271-2809 at least 7 working days prior to the meeting date
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Gulf of Mexico Fishery Management Council (Council) will hold meetings of the Administrative Policy, Outreach and Education, Shrimp, Sustainable Fisheries/Ecosystem, Reef Fish, Mackerel, and Gulf SEDAR Management Committees; and a meeting of the Full Council. The Council will also hold an informal public question and answer session regarding agenda items and a formal public comment session.
The Council meeting will be held from 8:30 a.m. on Monday, February 3 until 4:30 p.m. on Thursday, February 6, 2014.
Mr. Douglas Gregory, Executive Director, Gulf of Mexico Fishery Management Council; telephone: (813) 348-1630; fax: (813) 348-1711; email:
The items of discussion for each individual management committee agenda are as follows:
Review of Draft Revised Administrative Handbook
1. Review of Stakeholder Communication Survey Results
2. Summary of December 6, 2013 Outreach and Education Advisory Panel Webinar
3. Review of Gulfwide Recreational Angler Participation Sessions
1. Report from NOAA General Counsel
2. Appointment of member to Ad Hoc Artificial Substrate Advisory Panel
1. Review of Draft Options Paper for
2. Discussion of ACL Adjustment and Accountability Measures for
1. Scientific and Statistical Committee Recommendations and Discussion of Draft Framework Action—Update Tier 3 ACLS with Revised MRIP Landings
2. Discussion of Draft Framework Action to Define For-Hire Fishing in the Gulf of Mexico EEZ
1. Summary of the Joint Council Committee on South Florida Management Issues and the Ad Hoc
2. NMFS Update on Current MRIP Estimates
3. Discussion of Public Hearing Draft Amendment 28—
4. Report of the Ad Hoc
5. Discussion of Amendment 39—Recreational
6. Discussion of Amendment 40 Options Paper—Sector Separation
7. Discussion on Final Action of Framework Action to Rescind Amendment 30B Permit Conditions
8. Discussion of Standing and Reef Fish Scientific and Statistical Committee Report
9. Discussion on Exempted Fishing Permits Related to Reef Fish
—Recess—
Immediately following recess will be the Informal Question & Answer Session on Gulf of Mexico fishery management issues.
1. Final Action on CMP Amendment 20B Boundaries and Transit Provisions
2. Discussion of Options Paper for 2014 Joint Framework Action to Modify
3. Discussion of Purpose and Timing of Scoping Document for CMP Amendment 24—Reallocation of Gulf
4. Discussion of Purpose and Timing of Scoping Document for CMP Amendment 26—Split Permits between the Gulf and South Atlantic for
1. Update on SEDAR 33: Gulf of Mexico
2. Update on SEDAR 38: Gulf of Mexico and South Atlantic King
3. Update on SEDAR Steering Committee
4. Review of SEDAR Schedule
1:30 p.m.-1:45 p.m.: Call to Order and Introductions, Adoption of Agenda and Approval of Minutes.
1:45 p.m.-4:30 p.m.: The Council will receive public testimony on Final Action—
4:30 p.m.-4:45 p.m.: The Council will review and vote on Exempted Fishing Permits (EFP), if any.
4:45 p.m.-5:15 p.m.: The Council will receive a committee report from the Outreach and Education Management Committee.
5:15 p.m.-5:30 p.m.: The Council will receive a committee report from the Shrimp Management Committee.
8:30 a.m.-11:30 a.m.: The Council will receive a committee report from the
1 p.m.-1:30 p.m.: The Council will receive a committee report from the Sustainable Fisheries/Ecosystem Management Committee.
1:30 p.m.-2:30 p.m.: The Council will receive a committee report from the
2:30 p.m.-3:30 p.m.: The Council will receive a committee report from the Administrative Policy Management Committee.
3:30 p.m.-4 p.m.: The Council will receive a committee report from the Gulf SEDAR Management Committee.
4 p.m.-4:30 p.m.: The Council will review Other Business items: Summary of Electronic Monitoring meeting, MREP Summary, and Discussion on the Reauthorization of the Magnuson-Stevens Fishery Conservation and Management Act.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Council Office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
United States Patent and Trademark Office, Commerce.
Notice of interim patent term extension.
The United States Patent and Trademark Office has issued an order granting interim extension under 35 U.S.C. 156(d)(5) for a one-year interim extension of the term of U.S. Patent No. 5,593,823.
Mary C. Till by telephone at (571) 272-7755; by mail marked to her attention and addressed to the Commissioner for Patents, Mail Stop Hatch-Waxman PTE, P.O. Box 1450, Alexandria, VA 22313-1450; by fax marked to her attention at (571) 273-7755; or by email to
Section 156 of Title 35, United States Code, generally provides that the term of a patent may be extended for a period of up to five years if the patent claims a product, or a method of making or using a product, that has been subject to certain defined regulatory review, and that the patent may be extended for interim periods of up to one year if the regulatory review is anticipated to extend beyond the expiration date of the patent.
On December 3, 2013, Cerus Corporation, the patent owner of record, timely filed an application under 35 U.S.C. 156(d)(5) for an interim extension of the term of U.S. Patent No. 5,593,823. The patent claims the medical device INTERCEPT® Blood System for Plasma. The application indicates that a Premarket Approval Application (PMA) was submitted to the Food and Drug Administration (FDA) in four modules. The PMA Shell number BM120078 was assigned on December 5, 2012. The first module was received by the FDA on March 1, 2013, the second module was received on June 3, 2013, by the FDA, the third module was received by the FDA on September 3, 2013, and the fourth module was received by the FDA
Review of the application indicates that, except for permission to market or use the product commercially, the subject patent would be eligible for an extension of the patent term under 35 U.S.C. 156, and that the patent should be extended for one year as required by 35 U.S.C. 156(d)(5)(B). Because the regulatory review period will continue beyond the original expiration date of the patent, January 14, 2014, interim extension of the patent term under 35 U.S.C. 156(d)(5) is appropriate.
An interim extension under 35 U.S.C. 156(d)(5) of the term of U.S. Patent No. 5,593,823 is granted for a period of one year from the original expiration date of the patent.
Department of Education (ED), Institute of Education Sciences/National Center for Education Statistics (IES).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before February 18, 2014.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
For questions related to collection activities or burden, please call Katrina Ingalls, 703-620-3655 or electronically mail
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
U.S. Department of Energy.
Notice and Request for OMB Review and Comment.
The Department of Energy (DOE) has submitted an information collection request to the OMB for extension under the provisions of the Paperwork Reduction Act of 1995. The information collection requests a three-year extension of its Occupational Radiation Protection Program, OMB Control Number 1910-5105. This information collection request covers information necessary to permit DOE and its contractors to provide management control and oversight over health and safety programs concerning worker exposure to ionizing radiation. The Estimated Number of Total Responses in the previously published request for comments, 34, is incorrect; the correct Estimated Number of Total Responses is 170.
Comments regarding this collection must be received on or before February 18, 2014.
If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, please advise the OMB Desk Officer of your intention to make a submission as soon as possible. The Desk Officer may be telephoned at (202) 395-4650 or contacted by e-email at
Written comments should be sent to:
DOE Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10102, 735 17th Street NW., Washington, DC 20503,
And to: U.S. Department of Energy, 1000 Independence Avenue SW., Attn: Dr. Judith D. Foulke, HS-11, Washington, DC 20585,
Request for additional information should be directed to Judith D. Foulke, telephone (301) 903-5865, by fax at (301) 903-7773 or by email at
Information about the collection instrument may be obtained at:
This information collection request contains: (1) OMB No: 1910-5105; (2)
Title 10, Code of Federal Regulations, Part 835, Subpart H.
Office of Science, Department of Energy.
Notice of Open Teleconference Meeting.
This notice announces a meeting of the Advanced Scientific Computing Advisory Committee (ASCAC). Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Tuesday, January 21, 2014, 11:00 a.m. to 12:00 p.m. ET
The meeting is open to the public. To access the call:
1. Dial Toll-Free Number: 866-740-1260 (U.S. & Canada).
2. International participants dial:
3. Enter access code 8083012, followed by “#”.
To ensure we have sufficient access lines for the public, we request that members of the public notify the DFO, Christine Chalk, that you intend to call-into the meeting via email at
Melea Baker, Office of Advanced Scientific Computing Research; SC-21/Germantown Building; U.S. Department of Energy; 1000 Independence Avenue SW., Washington, DC 20585-1290; Telephone (301) 903-7486, (Email:
Agenda Topics:
• Subcommittee Exascale Report
This announcement is being published outside the normal publication guidelines due to the timing of the conference call meeting which had to be accelerated in order to meet the schedule of a related DOE effort.
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
This is a supplemental notice in the above-referenced proceeding of Pleasant Valley Wind, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is January 29, 2014.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of Border Winds Energy, LLC's application for market-based rate authority, with an accompanying rate tariff, noting That such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is January 29, 2014.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Office of Nonproliferation and International Security, Department of Energy.
Proposed subsequent arrangement.
This notice is being issued under the authority of section 131a. of the Atomic Energy Act of 1954, as amended. The Department is providing notice of a proposed subsequent
This subsequent arrangement will take effect no sooner than January 31, 2014.
Ms. Katie Strangis, Office of Nonproliferation and International Security, National Nuclear Security Administration, Department of Energy. Telephone: 202-586-8623 or email:
This subsequent arrangement concerns a request for a three-year extension (April 2014 to April 2017) of the current programmatic approval for retransfer of U.S.-obligated irradiated fuel rods between Studsvik Nuclear AB, Sweden, and Institutt for Energiteknikk, IFE facilities Halden and Kjeller, Norway. The rods are being transferred for irradiation service, various tests and examinations, and will be returned to Studsvik Nuclear, Sweden for further test and final disposal. The total shipping amounts will be the same as allowed under the current approval—a maximum of 30,000 grams uranium, 400 grams U-235 and 400 grams plutonium in all shipments, combined, with a maximum of 100 grams of plutonium per shipment.
The current extension was approved in April 2011 and published in the
In accordance with section 131a. of the Atomic Energy Act of 1954, as amended, it has been determined that this subsequent arrangement concerning the retransfer of nuclear material of United States origin will not be inimical to the common defense and security of the United States of America.
For the Department of Energy.
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before February 18, 2014.
Submit your comments, referencing Docket ID No. EPA-HQ-OW-2008-0719, to (1) EPA online using
Amelia Letnes, State and Regional Branch, Water Permits Division, OWM Mail Code: 4203M, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564-5627; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
(1) Cooling Water Intake Structure Phase II Existing Facilities (Renewal), EPA ICR No. 2060.06, OMB Control No. 2040-0257; expiration date 01/31/2014.
(2) Cooling Water Intake Structures at Phase III Facilities (Renewal), EPA ICR No. 2169.05, OMB Control No. 2040-0268, expiration date 01/31/2014.
(3) NPDES Animal Sectors (Renewal); EPA ICR No. 1989.09; OMB Control No. 2040-0250, expiration date 01/31/2014.
(1) Cooling Water Intake Structure Phase II Existing Facilities (Renewal)
On July 30, 2012, EPA published its most recent revisions to the NPDES CAFO regulations (77 FR 44494). These revisions were necessary as a result of a court decision in 2011 by the United States Court of Appeals for the Fifth Circuit in litigation relating to the NPDES CAFO permitting program (
The Effluent Limitations Guidelines and Standards for the Concentrated Aquatic Animal Production (CAAP) Point Source Category establish specific reporting requirements for a portion of CAAP facilities through NPDES permits. The rule covers facilities which are defined as CAAP facilities (see 40 CFR 122.24 and 40 CFR Part 122) and produce at least 100,000 pounds of fish per year in flow through, recirculating and net pen systems. The special reporting and record-keeping requirements under the rule are the subject of this ICR. CAAP facility owners or operators are also required to file reports with the permitting authority when drugs with special approvals are applied to the production units or a failure in the structural integrity occurs in the aquatic animal containment system.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “NSPS for Onshore Natural Gas Processing Plants (40 CFR Part 60, Subparts KKK and LLL) (Renewal)” (EPA ICR No. 1086.10, OMB Control No. 2060-0120), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before February 18, 2014.
Submit your comments, referencing Docket ID Number EPA-HQ-OECA-2013-0316, to: (1) EPA online, using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Learia Williams, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564-4113; fax number: (202) 564-0050; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
It should be noted that the wage rates in this ICR have been updated resulting in an increase of the cost of labor.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “Annual Public Water System Compliance Report (Renewal) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before February 18, 2014.
Submit your comments, referencing Docket ID Number EPA-HQ-OECA-2013-0667, to: (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Joyce Chandler, Monitoring, Assistance and Media Programs Division, Office of Compliance, MC-2227A, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 564-7073; fax number: (202) 564-0050; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at www.regulations.gov or in person at the EPA Docket Center, WJC West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The telephone number for the Docket Center is 202-566-1744. For additional information about EPA's public docket, visit
Fifty-five states (including Puerto Rico, the Virgin Islands, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, and Navajo Nation) currently have primary enforcement authority under the Safe Drinking Water Act. The Navajo Nation was approved for primacy on December 6, 2000. Currently the State of Wyoming and the District of Columbia neither have primary enforcement authority nor are they seeking primary authority, so the number of 55 states is unlikely to change over the next three years of this ICR.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency is planning to submit an information collection request (ICR), “Proposed Information Collection Request; Comment Request; Application Requirements for the Approval and Delegation of Federal Air Toxics Programs to State, Territorial, Local, and Tribal Agencies” (EPA ICR No. 1643.08, OMB Control No. 2060-0264) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before March 17, 2014.
Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2004-0065, online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Paula Hirtz, OAQPS/SPPD, E143-01, Environmental Protection Agency, RTP, NC 27711; telephone number: 919-541-2618; fax number: 919-541-0246; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before March 17, 2014. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
Video description is the insertion of audio narrated descriptions of a television program's key visual elements into natural pauses in the program's dialogue, makes video programming more accessible to individuals who are blind or visually impaired. In 2000, the Commission adopted rules requiring certain broadcasters and MVPDs to carry programming with video description. The United States Court of Appeals for the District of Columbia Circuit vacated the rules due to insufficient authority soon after their initial adoption. As directed by the CVAA, the Commission's Report and Order reinstated the video description rules, with certain modifications, effective October 8, 2011. The reinstated rules require large-market broadcast affiliates of the top four national networks and multichannel video programming distributor (“MVPD”) systems with more than 50,000 subscribers to provide video description.
Federal Communications Commission.
Notice.
The Federal Communications Commission (FCC) has received Office of Management and Budget (OMB) approval for the following public information collection requirements under OMB Control Number 3060-0819, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). An agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number, and no person is required to respond to a collection of information unless it displays a currently valid control number. Comments concerning the accuracy of the burden estimates and any suggestions for reducing the burden should be directed to the person listed in the
Leslie F. Smith, Office of the Managing Director, at (202) 418-0217,
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before February 18, 2014. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information or copies of the information collection, contact Cathy Williams at (202) 418-2918. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page
47 CFR 76.54(c) is used to notify interested parties, including licensees or permittees of television broadcast stations, about audience surveys that are being conducted by an organization to demonstrate that a particular broadcast station is eligible for significantly viewed status under the Commission's rules. The notifications provide interested parties with an opportunity to review survey methodologies and file objections.
47 CFR 76.54(e) and (f), are used to notify television broadcast stations
47 CFR 74.793(d) require that certain digital low power and TV translator stations submit information as to vertical radiation patterns as part of their applications (FCC Forms 346 and 301-CA) for new or modified construction permits.
47 CFR 74.787(c) require that all low power station with facilities on out-of-core channels (channels 52-59) submit a digital displacement (FCC Form 346) application proposing an in-core channel (channels 2-51, excluding channel 37) not later than September 1, 2011.
ATSC PSIP standard A/65C requires broadcasters to provide detailed programming information when transmitting their broadcast signal. This standard enhances consumers' viewing experience by providing detailed information about digital channels and programs, such as how to find a program's closed captions, multiple streams and V-chip information. This standard requires broadcasters to populate the Event Information Tables (“EITs”) (or program guide) with accurate information about each event (or program) and to update the EIT if more accurate information becomes available. The previous ATSC PSIP standard A/65-B did not require broadcasters to provide such detailed programming information but only general information.
The purpose of this information collection is to continually streamline and simplify processes for wireless applicants and licensees, who previously used a myriad of forms for various wireless services and types of requests, in order to provide the Commission information that has been collected in separate databases, each for a different group of services. Such processes have resulted in unreliable reporting, duplicate filings for the same licensees/applicants, and higher cost burdens to licensees/applicants. By streamlining the Universal Licensing System (ULS), the Commission eliminates the filing of duplicative applications for wireless carriers; increases the accuracy and reliability of licensing information; and enables all wireless applicants and licensees to file all licensing-related applications and other filings electronically, thus increasing the speed and efficiency of the application process. The ULS also benefits wireless applicants/licensees by reducing the cost of preparing applications, and speeds up the licensing process in that the Commission can introduce new entrants more quickly into this already competitive industry. Finally, ULS enhances the availability of licensing information to the public, which has access to all publicly available wireless licensing information on-line, including maps depicting a licensee's geographic service area.
On (date of waiver request was filed with the Commission), (cable operator's name) filed with the Federal Communications Commission a request for waiver of the rule prohibiting scrambling of channels on the basic tier of service. The request for waiver states (a brief summary of the waiver request). A copy of the request for waiver is on file for public inspection at (the address of the cable operator's local place of business).
Individuals who wish to comment on this request for waiver should mail comments to the Federal Communications Commission by no later than 30 days from (the date the notification was mailed to subscribers). Those comments should be addressed to the: Federal Communications Commission, Media Bureau, Washington, DC 20554, and should include the name of the cable operator to whom the comments are applicable. Individuals should also send a copy of their comments to (the cable operator at its local place of business). Cable operators may file comments in reply no later than 7 days from the date subscriber comments must be filed.
47 CFR 76.1621 states a cable system operators that use scrambling, encryption or similar technologies in conjunction with cable system terminal devices, as defined in § 15.3(e) of this chapter, that may affect subscribers' reception of signals shall offer to supply each subscriber with special equipment that will enable the simultaneous reception of multiple signals. The equipment offered shall include a single terminal device with dual descramblers/decoders and/or timers and bypass switches. Other equipment, such as two independent set-top terminal devices may be offered at the same time that the single terminal device with dual tuners/descramblers is offered. For purposes of this rule, two set-top devices linked by a control system that provides functionality equivalent to that of a single device with dual descramblers is considered to be the same as a terminal device with dual descramblers/decoders.
(a) The offer of special equipment shall be made to new subscribers at the time they subscribe and to all subscribers at least once each year (i.e., in subscriber billings or pre-printed information on the bill).
(b) Such special equipment shall, at a minimum, have the capability:
(1) To allow simultaneous reception of any two scrambled or encrypted signals and to provide for tuning to alternative channels on a pre-programmed schedule; and
(2) To allow direct reception of all other signals that do not need to be processed through descrambling or decryption circuitry (this capability can generally be provided through a separate by-pass switch or through internal by-pass circuitry in a cable system terminal device).
(c) Cable system operators shall determine the specific equipment needed by individual subscribers on a case-by-case basis, in consultation with the subscriber. Cable system operators are required to make a good faith effort to provide subscribers with the amount and types of special equipment needed to resolve their individual compatibility problems.
(d) Cable operators shall provide such equipment at the request of individual subscribers and may charge for purchase or lease of the equipment and its installation in accordance with the provisions of the rate regulation rules for customer premises equipment used to receive the basic service tier, as set forth in § 76.923. Notwithstanding the required annual offering, cable operators shall respond to subscriber requests for special equipment for reception of multiple signals that are made at any time.
In October 2012, the Commission loosened its prohibition on encryption of the basic service tier. This rule change allows all-digital cable operators to encrypt, subject to certain consumer protection measures. 77 FR 67290 (Nov. 9, 2012); 47 CFR 76.630(a)(1). Encryption of all-digital cable service will allow cable operators to activate and/or deactivate cable service remotely, thus relieving many consumers of the need to wait at home to receive a cable technician when they sign up for or cancel cable service, or expand service to an existing cable connection in their home.
In addition, encryption will reduce service theft by ensuring that only paying subscribers have decryption equipment. Encryption could reduce cable rates and reduce the theft that often degrades the quality of cable service received by paying subscribers. Encryption also will reduce the number of service calls necessary for manual installations and disconnections, which may have beneficial effects on vehicle traffic and the environment.
Because this rule change allows cable operators to encrypt the basic service tier without filing a request for waiver, we expect that the number of requests for waiver will decrease significantly.
47 CFR 76.1622 states that Cable system operators shall provide a consumer education program on compatibility matters to their subscribers in writing, as follows:
(a) The consumer information program shall be provided to subscribers at the time they first subscribe and at least once a year thereafter. Cable operators may choose the time and means by which they comply with the annual consumer information requirement. This requirement may be satisfied by a once-a-year mailing to all subscribers. The information may be included in one of the cable system's regular subscriber billings.
(b) The consumer information program shall include the following information:
(1) Cable system operators shall inform their subscribers that some models of TV receivers and videocassette recorders may not be able to receive all of the channels offered by the cable system when connected directly to the cable system. In conjunction with this information, cable system operators shall briefly explain, the types of channel compatibility problems that could occur if subscribers connected their equipment directly to the cable system and offer suggestions for resolving those problems. Such suggestions could include, for example, the use of a cable system terminal device such as a set-top channel converter. Cable system operators shall also indicate that channel compatibility problems associated with reception of programming that is not scrambled or encrypted programming could be resolved through use of simple converter devices without descrambling or decryption capabilities that can be obtained from either the cable system or a third party retail vendor.
(2) In cases where service is received through a cable system terminal device, cable system operators shall indicate that subscribers may not be able to use special features and functions of their TV receivers and videocassette recorders, including features that allow the subscriber to: View a program on one channel while simultaneously recording a program on another channel; record two or more consecutive programs that appear on different channels; and, use advanced picture generation and display features such as “Picture-in-Picture,” channel review and other functions that necessitate channel selection by the consumer device.
(3) In cases where cable system operators offer remote control capability with cable system terminal devices and other customer premises equipment that is provided to subscribers, they shall advise their subscribers that remote control units that are compatible with that equipment may be obtained from other sources, such as retail outlets. Cable system operators shall also provide a representative list of the models of remote control units currently available from retailers that are compatible with the customer premises equipment they employ. Cable system operators are required to make a good faith effort in compiling this list and will not be liable for inadvertent omissions. This list shall be current as of no more than six months before the date the consumer education program is distributed to subscribers. Cable operators are also required to encourage subscribers to contact the cable operator to inquire about whether a particular remote control unit the subscriber might be considering for purchase would be compatible with the subscriber's customer premises equipment.
Federal Communications Commission.
Federal Communications Commission.
Notice; request for comments.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s). Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB Control Number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid Control Number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before March 17, 2014. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Submit your PRA comments to Leslie F. Smith, Federal Communications Commission (FCC), via the Internet at
For additional information, contact Leslie F. Smith at (202) 418-0217, or via the Internet at
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, 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 the renewal of existing information collections, as required by
Comments must be submitted on or before March 17, 2014.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
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All comments should refer to the relevant OMB control number. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Gary A. Kuiper, at the FDIC address above.
257 respondents; 82,223 reporting burden hours
257 record keepers; 83,233 recordkeeping burden hours
4781 respondents @ 10 hours = 47,810 total disclosure burden hours.
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Comments are invited on: (a) Whether the collections of information are necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within twelve days of the date this notice appears in the
By Order of the Federal Maritime Commission.
As authorized by the America COMPETES Act Reauthorization Act of 2011, Public Law 111-358, the Federal Maritime Commission's Maritime Environmental Committee (MEC) announces the FMC Chairman's Earth Day Award. This award seeks to recognize members of the maritime transportation industry for innovations and successes in developing environmentally sustainable shipping practices. Specifically, this award will seek to highlight technologies, programs, or practices of the maritime transportation industry that, through efficiency or innovation, benefit our environment.
The Chairman's Earth Day Award is open to participants that meet the following requirements:
(1) In the case of a private entity, shall be incorporated in and maintain a primary place of business in the United States.
(2) In the case of an individual, whether participating singly or in a group, shall be a citizen or permanent resident of the United States.
(3) Shall not be a Federal entity or Federal employee acting within the scope of their employment.
At the end of the submission period, eligible submissions will be evaluated by members of the MEC based on the following criteria:
(1) Programs or practices that provide an environmental benefit or reduction in environmental harm, including but not limited to efforts that encourage a reduction in emissions or pollutants.
(2) Programs or practices that are sustainable and also serve as models for others to follow or replicate.
(3) Efforts that increase the public's awareness of the maritime transportation industry's efforts to protect the environment.
Important Dates for this award are:
Submission Period Begins: January 13, 2014.
Submission Period Ends: March 10, 2014.
Submissions should include a title and a description of the program or practice in the form of a document (5 page maximum) or a slide presentation (10 slides maximum). A web address for the program or practice along with pictures and video are optional but helpful. Email submissions to
At the end of the submission period, all eligible entries will be reviewed by members of the MEC. This is a non-monetary award and no prize money or funding will be distributed to the award winner. This is an award of recognition and past winners have been presented with a commemorative plaque at Commission headquarters in Washington, DC.
The Chairman reserves the right to cancel, suspend, and/or modify the award process, or any part of it, for any reason, at the Chairman's sole discretion. No rights are created by this
The award winner may not claim FMC or MEC endorsement. This award does not constitute an endorsement of a specific product, program or practice by the FMC, MEC, or the U.S. Federal Government.
For more information about the FMC and the Chairman's Earth Day Award, please contact Mary Hoang at 202-521-5733 or visit:
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than February 10, 2014.
A. Federal Reserve Bank of New York (Ivan Hurwitz, Vice President) 33 Liberty Street, New York, New York 10045-0001:
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Board of Governors of the Federal Reserve System.
Policy statement; request for comment.
The Board of Governors of the Federal Reserve System (Board) is proposing to revise part I of its
The Board is proposing to (1) revise the Board's existing minimum risk-management standards in the PSR policy to reflect the PFMI, which now represents the relevant set of international standards; (2) include all central securities depositories, securities settlement systems, and central counterparties in the scope of part I of the PSR policy; (3) introduce trade repositories to the scope of part I of the PSR policy; (4) clarify the Board's risk-management expectations for six mutually exclusive categories of FMI; (5) replace the existing self-assessment framework with a broader disclosure expectation; and (6) recognize responsibility E from the PFMI, in addition to other relevant international guidance, as the basis for cooperation with other authorities in regulating, supervising, and overseeing FMIs. The Board also proposes several conforming and technical changes to the introduction, the discussion of risks in payment, clearing, and settlement systems, and part I of the PSR policy.
Comments are due on or before March 31, 2014.
You may submit comments, identified by Docket No. OP-1478, by any of the following methods:
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All public comments are available from the Board's Web site at
Jennifer A. Lucier, Deputy Associate Director (202) 872-7581, Emily A. Caron, Senior Financial Services Analyst (202) 452-5261, or Kathy C. Wang, Senior Financial Services Analyst (202) 872-4991, Division of Reserve Bank Operations and Payment Systems; Christopher W. Clubb, Special Counsel (202) 452-3904 or Kara L. Handzlik, Counsel (202) 452-3852,
In adopting the PSR policy, the Board's objectives have been to foster the safety and efficiency of payment, clearing, and settlement systems. Part I of the current policy sets forth the Board's views, and related principles and minimum standards, regarding the management of risks in payment, clearing, and settlement systems, including those operated by the Federal Reserve Banks (Reserve Banks).
Since the early 1980s, the Board has published and periodically revised a series of policies encouraging the reduction and management of risks in payment and securities settlement systems.
Specifically, in 2004, the Board incorporated two key sets of standards into the PSR policy: the Committee on Payment and Settlement Systems (CPSS) report on the
In the 2007 revisions, the Board established an expectation for certain payment, clearing, and settlement systems to disclose publicly self-assessments against the standards incorporated in the policy, as appropriate. The Board expected these self-assessments to contain sufficient information to allow users and other stakeholders to identify, understand, and evaluate the risks of using the system's services. In addition to disclosing this information, systems were asked to assign themselves a rating with respect to observance of the standards. Systems were expected to review and update their self-assessments at least once every two years.
The 24 principles are organized such that each principle comprises (1) a headline standard, (2) a list of key considerations that further elaborate on the headline standard, and (3) accompanying explanatory notes that discuss the objective and rationale of the principle and provide additional guidance on how the principle may be implemented. Some headline standards and key considerations set out a specific minimum requirement to ensure that a minimum level of risk management is achieved across FMI types and across jurisdictions. The principles, however, do not typically prescribe a specific tool or arrangement to achieve their requirements in recognition that the means to satisfy a given requirement may vary by the type of entity or the market it serves.
The PFMI contains new and heightened requirements and more-extensive guidance for FMIs than did the previous set of international standards, such as providing more-extensive guidance on governance of an FMI and placing greater emphasis on transparency. It also requires that certain FMIs maintain a higher level of financial resources to address credit risk than in the past; it provides a separate set of requirements with respect to liquidity risk; and it contains higher requirements with respect to the type and frequency of testing to assess the sufficiency of financial resources to address both credit and liquidity risks. Additionally, the PFMI sets forth new requirements for FMIs to plan for recovery and orderly wind-down, to manage general business risk, to manage the risks associated with tiered participation, and for central counterparties to have rules and procedures that enable segregation and portability.
In addition to the 24 principles, the PFMI sets out five responsibilities for authorities responsible for effective regulation, supervision, and oversight of FMIs, including central banks. The five responsibilities call for (A) FMIs to be subject to appropriate and effective regulation, supervision, and oversight, (B) FMI authorities to have the powers and resources necessary to carry out effectively their responsibilities with respect to FMIs, (C) FMI authorities to clearly define and disclose their policies with respect to FMIs, (D) FMI authorities to adopt the PFMI and apply it consistently, and (E) FMI authorities to cooperate with each other, as appropriate, in promoting the safety and efficiency of FMIs.
Overall, the PFMI reflects more than a decade of experience with international standards for FMIs, important lessons from recent financial crises, and other relevant policy work by the international standard-setting bodies. The Federal Reserve, along with the U.S. Securities and Exchange Commission (SEC) and the U.S. Commodity Futures Trading Commission (CFTC), had a significant role in the development of this document. The report also reflects broad market input, including from U.S. FMIs and market participants.
The Board is proposing to revise part I of its PSR policy in light of the international risk-management standards in the PFMI. The Board is also revising part I in light of the enhanced supervisory framework for designated financial market utilities set forth in Title VIII of the Dodd-Frank Act. In particular, certain revisions are intended to clarify that designated financial market utilities that are required to comply with Regulation HH are not also subject to the risk-management or transparency expectations set out in the policy.
The Board requests comments on its proposal to (1) revise the Board's existing minimum risk-management standards in the PSR policy to reflect the PFMI, (2) include all central securities depositories, securities settlement systems, and central counterparties in the scope of part I of the PSR policy, (3) introduce trade repositories to the scope of part I of the PSR policy, (4) clarify the Board's risk-management expectations for six mutually exclusive categories of FMI, (5) replace the existing self-assessment framework with a broader disclosure expectation, and (6) recognize responsibility E from the PFMI, in addition to other relevant international guidance, as the basis for cooperation with other authorities in regulating, supervising, and overseeing FMIs. The Board also proposes several conforming and technical changes to the introduction, the discussion of risks in payment, clearing, settlement systems, and part I of the PSR policy.
The Board proposes that the revised policy become effective when the final version is published in the
The Board proposes to incorporate the PFMI in part I of the PSR policy by incorporating the headline standards from the 24 principles with no modification as the relevant risk-
The Board believes these standards should be incorporated into part I of the PSR policy because the PFMI establishes an important framework for promoting sound risk management in FMIs, both domestically and internationally. The safety and efficiency of FMIs affect the safety and soundness of U.S. financial institutions and, in many cases, are vital to the financial stability of the United States. The Board has recognized and endorsed the PFMI as integral to strengthening the stability of the broader financial system. In addition, the Financial Stability Board (FSB) has replaced the CPSIPS, RSSS, and RCCP with the PFMI in its Key Standards for Sound Financial Systems.
In a separate, related
Consistent with the scope of the PFMI, the Board proposes to expand the scope of part I of the PSR policy to include all central securities depositories, securities settlement systems, and central counterparties, irrespective of the value or nature of transactions processed by the system. The scope of the current part I of the PSR policy includes only those central securities depositories, securities settlement systems, and central counterparties that expect to settle a daily aggregate gross value of U.S. dollar-denominated transactions exceeding $5 billion on any day during the next 12 months. The Board believes all of these types of FMIs should be within the scope of the policy because they perform activities that are critical to the functioning of the financial markets or support the transparency of the market they serve. As discussed further below, part I is not intended to exert supervisory or regulatory authority over any particular class of institutions or arrangements where the Board does not have such authority.
The Board also proposes to revise part I of the PSR policy to reflect the functional definitions of “securities settlement system” and “central securities depository” in the PFMI. The current PSR policy is based on the definitions for these terms provided in the RSSS, which defines a securities settlement system as “the full set of institutional arrangements for confirmation, clearance, and settlement of securities trades and safekeeping of securities” and a central securities depository as “an institution for holding securities that enables securities transactions to be processed by means of book entries.” For consistency with the PFMI, the Board proposes to revise the policy to define securities settlement system more narrowly as an entity that “enables securities to be transferred and settled by book entry and allows transfers of securities free of or against payment” and to define a central securities depository as an entity that “provides securities accounts and central safekeeping services.”
Consistent with the scope of the PFMI, the Board proposes to expand the scope of part I of the PSR policy to include trade repositories. (The Board notes that it does not have any direct supervisory authority over a trade repository at this time.) Trade repositories are entities that maintain a centralized electronic record of transaction data and have emerged as an important type of FMI, especially in the over-the-counter derivatives market. This type of FMI improves market transparency by providing data to relevant authorities and the public in line with their respective information needs. Timely and reliable access to data stored in a trade repository can improve the ability of relevant authorities and the public to identify and evaluate potential risks to the broader financial system. Trade repositories should be expected to manage their risks in a manner consistent with the PFMI to help ensure that these public interest objectives are met.
The Board proposes revisions to the PSR policy that define six mutually exclusive categories of FMI and set forth separately the Board's risk-management expectations for each category. Five of the proposed categories are set out in section I.B.1 of the revised policy; these are (1) the Fedwire Funds Service and the Fedwire Securities Service (collectively, Fedwire Services); (2) designated financial market utilities for which the Board is the Supervisory Agency under Title VIII of the Dodd-Frank Act; (3) other FMIs that are subject to the Board's supervisory authority under the Federal Reserve Act; (4) all other central securities depositories, securities settlement systems, central counterparties, and trade repositories; and (5) other systemically important offshore and cross-border payment systems. An additional category for other payment systems within the scope of the policy is set out in section I.C of the revised policy. The Board believes the categories are necessary to avoid confusion about how the policy addresses each category of FMI in light
Consistent with the previous international standards, the PFMI recognizes that flexibility in implementation is warranted for central bank-operated systems to meet the objectives of the standards because of central banks' roles as monetary authorities and liquidity providers. The Board believes that these principles may include principle 2 on governance, principle 3 on the framework for the comprehensive management of risks, principle 4 on credit risk, principle 5 on collateral, principle 7 on liquidity risk, principle 13 on participant-default rules and procedures, principle 15 on general business risk, and principle 18 on access and participation requirements.
One example of a principle where the Board proposes to allow flexibility in application for the Fedwire Services is principle 15 on general business risk. A key consideration in principle 15 requires FMIs to maintain viable recovery or orderly wind-down plans that consider general business risk and to hold sufficient liquidity and capital reserves to implement the plans. The Fedwire Services do not face the risk that a business shock would cause the service to wind down in a disorderly manner and disrupt the stability of the financial system. The Federal Reserve, as the central bank, would support a recovery or orderly wind-down of the service, as appropriate to meet public policy objectives. Therefore, the Board proposes not to require the Fedwire Services to develop recovery or orderly wind-down plans.
The current part I of the PSR policy follows an organizational approach that establishes general policy expectations for all payment, clearing, and settlement systems within the scope of the policy and then adds heightened expectations for systemically important systems. In light of the PFMI and Regulation HH, the Board is proposing to modify this approach to clarify its expectations. Under the proposed revisions, the general expectations would now be confined to “other payment systems within the scope of the policy” for purposes of simplicity and clarity. There would be no need to apply separately the general expectations to the other categories of FMIs. The general expectations themselves are consistent in substance with principles 1 through 3 of the PFMI and would remain unchanged.
The Board proposes to replace the existing self-assessment framework for systemically important systems, as previously set out in section I.C.3, with a broader expectation of public disclosure set out in proposed section I.B.2 on transparency. The Board would expect the FMIs addressed in section I.B.1 that are subject to its authority, except designated financial market utilities that are subject to Regulation HH, to complete the disclosure framework and to disclose their responses to the public.
The Board believes that comprehensive public disclosures by FMIs will promote increased understanding among participants, authorities, and the broader public of the activities of an FMI, its risk profile, and its risk-management practices and will thus support sound decisionmaking by FMIs and their stakeholders. Comprehensive disclosures will also facilitate the implementation and ongoing monitoring of observance of the risk-management standards in the appendix. Consequently, comprehensive disclosures are a means to achieve greater stability in the financial system.
The Board believes that the disclosure framework is an appropriate template for these disclosures because it provides an international baseline that will promote consistent disclosures by FMIs around the world. The disclosure framework includes background information on the FMI's function and the market it serves, basic performance statistics for the FMI, and a description of the FMI's organization, legal and regulatory framework, system design, and operations as well as a narrative for each principle that summarizes the FMI's approach to observing the principle. The accompanying assessment methodology provides guiding questions that an FMI may use to guide the content and level of detail of its narrative. Unlike the existing self-assessment framework, however, the Board does not expect the FMI to assign itself a rating of observance for each standard.
Many of the expectations in the existing self-assessment framework with respect to frequency of updates, review and approval, and publication of the disclosure will remain the same. The Board will continue to expect an FMI to update the relevant parts of its disclosure following changes to the FMI or the environment in which it operates that would significantly change the accuracy of its public disclosure. At a minimum, an FMI would be expected to review and update as warranted its disclosure every two years. The Board will continue to expect an FMI's senior management and board of directors to review and approve the FMI's disclosure. Lastly, the Board continues to expect the FMI to make its disclosure readily available to the public, such as by posting it on the FMI's public Web site.
The Board proposes to incorporate responsibility E from the PFMI in the PSR policy, in addition to existing international guidance, as the basis for its cooperation with other authorities in the regulation, supervision, and oversight of FMIs. The Board has a long-standing history of cooperation with other authorities. The Board believes that cooperative arrangements among authorities are an effective and practical means to promote effective risk management and transparency by FMIs. As stated in the proposed revisions, where the Board does not have statutory or exclusive authority over an FMI covered by the policy, the Board will be guided in its interactions with other domestic and foreign authorities by international principles on cooperative arrangements for the regulation, supervision, and oversight of FMIs, including responsibility E in the PFMI and part B of the CPSS
The Board requests comment on the proposed revisions to its PSR policy. Where possible, commenters should provide both quantitative data and detailed analysis in their comments, particularly with respect to suggested alternatives to the proposed revisions. Commenters should also explain the rationale for their suggestions. In particular, the Board requests comment on whether the revisions are sufficiently clear and achieve the Board's intended objectives. The Board also requests comment on the following specific questions:
1. Should the Board incorporate only the headline standards from the PFMI in the PSR policy or should the Board also incorporate key considerations?
2. Has the Board clearly articulated the applicability of the risk-management expectations in the PSR policy to each category and type of FMI?
3. Are there other risk-management expectations that the Board should include in the PSR policy?
4. Should the Board provide specific standards for the Fedwire Services in an appendix to the PSR policy to clarify how the PFMI will be applied to these central bank-operated systems?
5. Is the proposed application of principle 15 in the appendix to the Fedwire Funds Service appropriate? The Board considered the alternative of
6. Are the proposed triggers for reviewing and updating a disclosure appropriate? If not, what other triggers would ensure published disclosures remain accurate?
7. As discussed above, the Board recognizes that certain expectations in the policy may require additional time to implement. Besides those expectations listed above, are there other expectations that may require additional time to implement? Is six months sufficient to implement changes to meet these expectations?
The Board has established procedures for assessing the competitive impact of rule or policy changes that have a substantial impact on payment system participants.
The proposed policy revisions provide that Reserve Bank systems will be treated similarly to private-sector systems and thus will have no material adverse effect on the ability of other service providers to compete effectively with the Reserve Banks in providing payment and securities settlement services. As stated above, there are several risk-management standards in the appendix for which flexibility in implementation will be necessary for the Fedwire Services given the Federal Reserve's legal framework and structure and its roles as monetary authority and liquidity provider. The Board recognizes, however, the critical role that the Fedwire Services play in the financial system and will require them to meet or exceed the applicable international standards incorporated into the PSR policy. Where appropriate to foster competition with private-sector systems, the Board proposes to incorporate the cost of certain requirements into the pricing of Fedwire Services. Furthermore, if the Board determines that its approach to applying the standards in the appendix to the Fedwire Services creates a competitive imbalance between the Fedwire Services and any private-sector competitors that provide similar services, the Board may reexamine the requirements for the Fedwire Services. Therefore, the Board believes the proposed policy will have no material adverse effect on the ability of other service providers to compete effectively with the Reserve Banks in providing payment and securities settlement services.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR part 1320, Appendix A.1), the Board reviewed the proposed policy under the authority delegated to the Board by the Office of Management and Budget. For purposes of calculating burden under the Paperwork Reduction Act, a “collection of information” involves 10 or more respondents. Any collection of information addressed to all or a substantial majority of an industry is presumed to involve 10 or more respondents (5 CFR 1320.3(c), 1320.3(c)(4)(ii)). The Board estimates there are fewer than 10 respondents, and these respondents do not represent all or a substantial majority of payment, clearing, and settlement systems. Therefore, no collections of information pursuant to the Paperwork Reduction Act are contained in the proposed policy.
Financial market infrastructures (FMIs) are critical components of the nation's financial system. FMIs are multilateral systems among participating financial institutions, including the system operator, used for the purposes of clearing, settling, or recording payments, securities, derivatives, or other financial transactions.
Part I of this policy sets out the Board's views, and related standards, regarding the management of risks in FMIs, including those operated by the Reserve Banks. In setting out its views, the Board seeks to encourage FMIs and their primary regulators to take the standards in this policy into consideration in the design, operation, monitoring, and assessment of these systems. The Board will be guided by this part, in conjunction with relevant laws, regulations, and other Federal Reserve policies, when exercising its supervisory and regulatory authority over FMIs or their participants, providing accounts and services to FMIs, participating in cooperative oversight and similar arrangements for FMIs with other authorities, or providing intraday credit to eligible Federal Reserve account holders. Designated financial market utilities subject to Regulation HH are not subject to the risk-management or transparency expectations set out in this policy.
Part II of this policy governs the provision of intraday credit or “daylight overdrafts” in accounts at the Reserve Banks and sets out the general methods used by the Reserve Banks to control their intraday credit exposures.
Through this policy, the Board expects financial system participants, including private-sector FMIs and the Reserve Banks, to reduce and control settlement and other systemic risks arising in FMIs, consistent with the smooth operation of the financial system. This policy is also designed to govern the provision of intraday balances and credit while controlling the Reserve Banks' risk by (1) making financial system participants and FMIs aware of the types of basic risk that may arise in the payment, clearing, settlement, or recording process; (2) setting explicit risk-management expectations; (3) promoting appropriate transparency by FMIs to help inform participants and the public; and (4) establishing the policy conditions governing the provision of Federal Reserve intraday credit to eligible account holders. The Board's adoption of this policy in no way diminishes the primary responsibilities of financial system participants to address the risks that may arise through their operation of or participation in FMIs.
The basic risks in payment, clearing, settlement, and recording systems may include credit risk, liquidity risk, operational risk, and legal risk. In the context of this policy, these risks are defined as follows:
• Credit risk: the risk that a counterparty, whether a participant or other entity, will be unable to meet fully its financial obligations when due, or at any time in the future.
• Liquidity risk: the risk that a counterparty, whether a participant or other entity, will be unable to meet fully its financial obligations when due, although it may be able to do so in the future. An FMI, through its design or operation, may bear or generate liquidity risk in one or more currencies in its payment or settlement process. In this context, liquidity risk may arise between or among the system operator and the participants in the FMI, the system operator and other entities (such as settlement banks, nostro agents, or liquidity providers), the participants in the FMI and other entities, or two or more participants in the FMI.
• Operational risk: the risk that deficiencies in information systems or internal processes, human errors, management failures, or disruptions from external events will result in the reduction, deterioration, or breakdown of services provided by the FMI.
• Legal risk: the risk of loss from the unexpected or uncertain application of a law or regulation.
These risks also arise between financial institutions as they clear, settle, and record payments and other financial transactions and must be managed by institutions, both individually and collectively.
Further, FMIs may increase, shift, concentrate, or otherwise transform risks in unanticipated ways. FMIs, for example, may pose systemic risk to the financial system because the inability of one or more of its participants to perform as expected may cause other participants to be unable to meet their obligations when due. The failure of one or more of an FMI's participants to settle their payments or other financial transactions as expected, in turn, could create credit or liquidity problems for participants and their customers, the system operator, other financial institutions, and the financial market the FMI serves. Thus, such a failure might lead ultimately to a disruption in the financial markets more broadly and undermine public confidence in the nation's financial system.
Mitigating the risks that arise in FMIs is especially important because of the interdependencies such systems inherently create among financial institutions. In many cases, interdependencies are a normal part of an FMI's structure or operations. Although they can facilitate the safety and efficiency of
The Board recognizes that the Reserve Banks, as settlement institutions, have an important role in providing intraday balances and credit to foster the smooth operation and timely completion of money settlement processes among financial institutions and between financial institutions and FMIs. To the extent that the Reserve Banks are the source of intraday credit, they may face a risk of loss if such intraday credit is not repaid as planned. In addition, measures taken by Reserve Banks to limit their intraday credit exposures may shift some or all of the associated risks to financial institutions and FMIs.
In addition, mitigating the risks that arise in certain FMIs is critical to the areas of monetary policy and banking supervision. The effective implementation of monetary policy, for example, depends on both the orderly settlement of open market operations and the efficient movement of funds throughout the financial system via the financial markets and the FMIs that support those markets. Likewise, supervisory objectives regarding the safety and soundness of financial institutions must take into account the risks FMIs, both in the United States and abroad, pose to financial institutions that participate directly or indirectly in, or provide settlement, custody, or credit services to, such systems.
This part sets out the Board's views, and related standards, regarding the management of risks in FMIs, including those operated by the Reserve Banks. The Board will be guided by this part, in conjunction with relevant laws, regulations, and other Federal Reserve policies, when exercising its authority in (1) supervising the Reserve Banks under the Federal Reserve Act; (2) supervising state member banks, Edge and agreement corporations, and bank holding companies, including the exercise of authority under the Bank Service Company Act, where applicable; (3) carrying out certain of its responsibilities under Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act); (4) setting or reviewing the terms and conditions for the use of Reserve Bank accounts and services; and (5) developing and applying policies for the provision of intraday liquidity to eligible Reserve Bank account holders.
FMIs within the scope of part I include public- and private-sector payment systems that expect to settle a daily aggregate gross value of U.S. dollar-denominated transactions exceeding $5 billion on any day during the next 12 months.
Part I does not apply to market infrastructures such as trading exchanges, trade-execution facilities, or multilateral trade-compression systems. This part is also not intended to apply to bilateral payment, clearing, or settlement relationships, where an FMI is not involved, between financial institutions and their customers, such as traditional correspondent banking and government securities clearing services. The Board believes that these market infrastructures and relationships do not constitute FMIs for purposes of this policy and that risk-management issues associated with these market infrastructures and relationships are more appropriately addressed through other relevant supervisory and regulatory processes.
This section sets out the Board's views, and related standards, with respect to risk-management and transparency for the Reserve Banks' Fedwire Funds Service and Fedwire Securities Service (collectively, Fedwire Services), designated financial market utilities that are subject to Regulation HH, other FMIs that are subject to the Board's supervisory authority under the Federal Reserve Act, all other central securities depositories, securities settlement systems, central counterparties, and trade repositories, as well as other systemically important offshore and cross-border payment systems. Because these FMIs have the potential to be a source of risk or channel for the transmission of financial shocks across the financial system, or are critical to market transparency in the case of trade repositories, the Board believes these FMIs should have comprehensive risk management as well as a high degree of transparency.
Authorities, including central banks, have promoted sound risk-management practices by developing internationally accepted minimum standards that promote the safety and efficiency of FMIs. Specifically, the Committee on Payment and Settlement Systems (CPSS) and Technical Committee of the International Organization of Securities Commissions (IOSCO) report on
The Board believes that the implementation of the PFMI by the FMIs within the scope of this section will help promote their safety and efficiency in the financial system and foster greater financial stability in the domestic and global economy. Accordingly, the Board has incorporated into the PSR policy principles 1 through 24 from the PFMI, as set forth in the appendix. In addition, the Board's Regulation HH contains risk-management standards that are based on the PFMI for certain designated financial market utilities.
The Board recognizes the critical role the Reserve Banks' Fedwire Services play in the financial system and requires them to meet or exceed the standards set forth in the appendix to this policy, consistent with the guidance on central bank-operated systems provided in the PFMI and with the requirements in the Monetary Control Act.
The Board's Regulation HH imposes risk-management standards applicable to a designated financial market utility for which the Board is the Supervisory Agency.
The Board expects all other FMIs that are subject to its supervisory authority under the Federal Reserve Act, including FMIs that are members of the Federal Reserve System, to meet or exceed the risk-management standards in the appendix.
The Board encourages all other central securities depositories, securities settlement systems, central counterparties, and trade repositories, whether located within or outside the United States, to meet or exceed the risk-management standards in the appendix to this policy. Where the Board does not have authority over a central securities depository, securities settlement system, central counterparty, or trade repository, the Board will be guided by this policy in its cooperative efforts with other FMI authorities.
The Board encourages systemically important offshore and cross-border payment systems that are not included in any of the categories above to meet or exceed the risk-management standards in the appendix to this policy.
Transparency helps ensure that relevant information is provided to an FMI's participants, authorities, and the public to inform sound decisionmaking, improve risk management, enable market discipline, and foster confidence in markets more broadly. In particular, public disclosures play a critical role in allowing current and prospective participants, as well as other stakeholders, to understand an FMI's operations and the risks associated with using its services and to manage more effectively their risks with respect to the FMI. The Board believes that FMIs are well-positioned to provide the information necessary to support greater market transparency and to maintain financial stability.
The Board expects an FMI that is subject to its supervisory authority but not subject to Regulation HH, to disclose to its participants information about the risks and costs that they incur by participating in the FMI, consistent with the requirements in principle 23 in the appendix.
In addition, the Board expects such an FMI to complete the disclosure framework set forth in the CPSS-IOSCO
To ensure each FMI's accountability for the accuracy and completeness of its disclosure, the Board expects the FMI's senior management and board of directors to review and approve each disclosure upon completion. Further, in order for an FMI's disclosure to reflect its current rules, procedures, and operations, the Board expects the FMI to update the relevant parts of its disclosure following changes to the FMI or the environment in which it operates, which would significantly change the accuracy of the statements in its disclosure. At a minimum, the FMI is expected to review and update as warranted its disclosure every two years.
As part of its ongoing oversight of FMIs, the Board will review public disclosures by FMIs subject to its authority to ensure that the Board's policy objectives and
The Board encourages payment systems within the scope of this policy, but that are not included in any of the categories in section B above, to implement a general risk-management framework appropriate for the risks the payment system poses to the system operator, system participants, and other relevant parties as well as the financial system more broadly.
A risk-management framework is the set of objectives, policies, arrangements, procedures, and resources that a system employs to limit and manage risk. Although there are a number of ways to structure a sound risk-management framework, all frameworks should
a. identify risks clearly and set sound risk-management objectives;
b. establish sound governance arrangements to oversee the risk-management framework;
c. establish clear and appropriate rules and procedures to carry out the risk-management objectives; and
d. employ the resources necessary to achieve the system's risk-management objectives and implement effectively its rules and procedures.
The first element of a sound risk-management framework is the clear identification of all risks that have the potential to arise in or result from the system's settlement process and the development of clear and transparent objectives regarding the system's tolerance for and management of such risks. System operators should identify the forms of risk present in their system's settlement process as well as the parties posing and bearing each risk. In particular, system operators should identify the risks posed to and borne by them, the system participants, and other key parties such as a system's settlement banks, custody banks, and third-party service providers. System operators should also analyze whether risks might be imposed on other external parties and the financial system more broadly.
In addition, system operators should analyze how risk is transformed or concentrated by the settlement process. System operators should also consider the possibility that attempts to limit one type of risk could lead to an increase in another type of risk. Moreover, system operators should be aware of risks that might be unique to certain instruments, participants, or market practices. Where payment systems have inter-relationships with or dependencies on other FMIs, system operators should also analyze whether and to what extent any cross-system risks exist and who bears them.
Using their clear identification of risks, system operators should establish the risk tolerance of the system, including the levels of risk exposure that are acceptable to the system operator, system participants, and other relevant parties. System operators should then set risk-management objectives that clearly allocate acceptable risks among the relevant parties and set out strategies to manage this risk. Risk-management objectives should be consistent with the objectives of this policy, the system's business purposes, and the type of payment instruments and markets for which the system clears and settles. Risk-management objectives should also be communicated to and understood by both the system operator's staff and system participants.
System operators should reevaluate their risks in conjunction with any major changes in the settlement process or operations, the transactions settled, a system's rules or procedures, or the relevant legal and market environments. System operators should review the risk-management objectives regularly to ensure that they are appropriate for the risks posed by the system, continue to be aligned with the system's purposes, remain consistent with this policy, and are being effectively adhered to by the system operator and participants.
Systems should have sound governance arrangements to implement and oversee their risk-management frameworks. The responsibility for sound governance rests with a system operator's board of directors or similar body and with the system operator's senior management. Governance structures and processes should be transparent; enable the establishment of clear risk-management objectives; set and enforce clear lines of responsibility and accountability for achieving these objectives; ensure that there is appropriate oversight of the risk-management process; and enable the effective use of information reported by the system operator's management, internal auditors, and external auditors to monitor the performance of the risk-management process.
Systems should have rules and procedures that are appropriate and sufficient to carry out the system's risk-management objectives and that are consistent with its legal framework. Such rules and procedures should specify the respective responsibilities of the system operator, system participants, and other relevant parties. Rules and procedures should establish the key features of a system's settlement and risk-management design and specify clear and transparent crisis management procedures and settlement failure procedures, if applicable.
System operators should ensure that the appropriate resources and processes are in place to allow the system to achieve its risk-management objectives and effectively implement its rules and procedures. In particular, the system operator's staff should have the appropriate skills, information, and tools to apply the system's rules and procedures and achieve the system's risk-management objectives. System operators should also ensure that their facilities and contingency arrangements, including any information system resources, are sufficient to meet their risk-management objectives.
Payment systems differ widely in form, function, scale, and scope of activities, and these characteristics result in differing combinations and levels of risks. Thus, the exact features of a system's risk-management framework should be tailored to the risks of that system. The specific features of a risk-management framework may entail tradeoffs between efficiency and risk reduction, and payment systems will need to consider these tradeoffs when designing appropriate rules
To determine whether a system's current or proposed risk-management framework is consistent with this policy, the Board will seek to understand how a system achieves the four elements of a sound risk-management framework set out above. In this context, the Board may seek to obtain information from system operators regarding their risk-management framework, risk-management objectives, rules and procedures, significant legal analyses, general risk analyses, analyses of the credit and liquidity effects of settlement disruptions, business continuity plans, crisis management procedures, and other relevant documentation.
When the Board does not have statutory or exclusive authority over an FMI covered by this policy, this section will guide the Board, as appropriate, in its interactions with other domestic and foreign authorities to promote effective risk management in and transparency by FMIs. For example, the Federal Reserve may have an interest in the safety and efficiency of FMIs outside the United States that are subject to regulation, supervision, or oversight by another authority but that provide services to financial institutions supervised by the Board or conduct activity that involves the U.S. dollar.
In working with other authorities, the Board will seek to establish arrangements for effective and practical cooperation that promote sound risk-management outcomes. The Board believes that cooperative arrangements among relevant authorities can be an effective mechanism for, among other things, (1) sharing relevant information concerning the policies, procedures, and operations of an FMI; (2) sharing supervisory views regarding an FMI; (3) discussing and promoting the application of robust risk-management standards; and (4) serving as a forum for effective communication, coordination, and consultation during normal circumstances, as well as periods of market stress.
When establishing such cooperative arrangements, the Board will be guided, as appropriate, by international principles on cooperative arrangements for the regulation, supervision, and oversight of FMIs. In particular, responsibility E in the PFMI addresses domestic and international cooperation among central banks, market regulators, and other relevant authorities and provides guidance to these entities for supporting each other in fulfilling their respective mandates with respect to FMIs. The CPSS report on
[No change to existing part II of the policy.]
An FMI should have a well-founded, clear, transparent, and enforceable legal basis for each material aspect of its activities in all relevant jurisdictions.
An FMI should have governance arrangements that are clear and transparent, promote the safety and efficiency of the FMI, and support the stability of the broader financial system, other relevant public interest considerations, and the objectives of relevant stakeholders.
An FMI should have a sound risk-management framework for comprehensively managing legal, credit, liquidity, operational, and other risks.
An FMI should effectively measure, monitor, and manage its credit exposures to participants and those arising from its payment, clearing, and settlement processes. An FMI should maintain sufficient financial resources to cover its credit exposure to each participant fully with a high degree of confidence. In addition, a central counterparty that is involved in activities with a more-complex risk profile or that is systemically important in multiple jurisdictions should maintain additional financial resources sufficient to cover a wide range of potential stress scenarios that should include, but not be limited to, the default of the two participants and their affiliates that would potentially cause the largest aggregate credit exposure to the central counterparty in extreme but plausible market conditions. All other central counterparties should maintain additional financial resources sufficient to cover a wide range of potential stress scenarios that should include, but not be limited to, the default of the participant and its affiliates that would potentially cause the largest aggregate credit exposure to the central counterparty in extreme but plausible market conditions.
An FMI that requires collateral to manage its or its participants' credit exposure should accept collateral with low credit, liquidity, and market risks. An FMI should also set and enforce appropriately conservative haircuts and concentration limits.
A central counterparty should cover its credit exposures to its participants for all products through an effective margin system that is risk-based and regularly reviewed.
An FMI should effectively measure, monitor, and manage its liquidity risk. An FMI should maintain sufficient liquid resources in all relevant currencies to effect same-day and, where appropriate, intraday and multiday settlement of payment obligations with a high degree of confidence under a wide range of potential stress scenarios that should include, but not be limited to, the default of the participant and its affiliates that would generate the largest aggregate liquidity obligation for the FMI in extreme but plausible market conditions.
An FMI should provide clear and certain final settlement, at a minimum by the end of the value date. Where necessary or preferable, an FMI should provide final settlement intraday or in real time.
An FMI should conduct its money settlements in central bank money where practical and available. If central bank money is not used, an FMI should minimise and strictly control the credit and liquidity risk arising from the use of commercial bank money.
An FMI should clearly state its obligations with respect to the delivery of physical instruments or commodities and should identify, monitor, and manage the risks associated with such physical deliveries.
A central securities depository should have appropriate rules and procedures to help ensure the integrity of securities issues and minimise and manage the risks associated with the safekeeping and transfer of securities. A central securities depository should maintain securities in an immobilised or dematerialised form for their transfer by book entry.
If an FMI settles transactions that involve the settlement of two linked obligations (for example, securities or foreign exchange transactions), it should eliminate principal risk by conditioning the final settlement of one obligation upon the final settlement of the other.
An FMI should have effective and clearly defined rules and procedures to manage a participant default. These rules and procedures should be designed to ensure that the FMI can take timely action to contain losses and liquidity pressures and continue to meet its obligations.
A central counterparty should have rules and procedures that enable the segregation and portability of positions of a participant's customers and the collateral provided to the central counterparty with respect to those positions.
An FMI should identify, monitor, and manage its general business risk and hold sufficient liquid net assets funded by equity to cover potential general business losses so that it can continue operations and services as a going concern if those losses materialise. Further, liquid net assets should at all times be sufficient to ensure a recovery or orderly wind-down of critical operations and services.
An FMI should safeguard its own and its participants' assets and minimise the risk of loss on and delay in access to these assets. An FMI's investments should be in instruments with minimal credit, market, and liquidity risks.
An FMI should identify the plausible sources of operational risk, both internal and external, and mitigate their impact through the use of appropriate systems, policies, procedures, and controls. Systems should be designed to ensure a high degree of security and operational reliability and should have adequate, scalable capacity. Business continuity management should aim for timely recovery of operations and fulfilment of the FMI's obligations, including in the event of a wide-scale or major disruption.
An FMI should have objective, risk-based, and publicly disclosed criteria for participation, which permit fair and open access.
An FMI should identify, monitor, and manage the material risks to the FMI arising from tiered participation arrangements.
An FMI that establishes a link with one or more FMIs should identify, monitor, and manage link-related risks.
An FMI should be efficient and effective in meeting the requirements of its participants and the markets it serves.
An FMI should use, or at a minimum accommodate, relevant internationally accepted communication procedures and standards in order to facilitate efficient payment, clearing, settlement, and recording.
An FMI should have clear and comprehensive rules and procedures and should provide sufficient information to enable participants to have an accurate understanding of the risks, fees, and other material costs they incur by participating in the FMI. All relevant rules and key procedures should be publicly disclosed.
A trade repository should provide timely and accurate data to relevant authorities and the public in line with their respective needs.
Public Buildings Service, Office of Leasing, General Services Administration (GSA).
Notice.
This notice provides submitters notice pursuant to Executive Order 12600 that the GSA, Public Buildings Service, Office of Leasing is complying with the Office of Management and Budget's (OMB) Open Government Directive issued December 8, 2009, as M-10-06, to implement the principles of transparency and openness in government by posting certain GSA real property lease documents with private sector landlords on GSA's public online portal.
Comments must be received on or before February 18, 2014.
Submit comments identified by “Notice-PBS-2013-04”, by any of the following methods:
•
•
Mr. John D. Thomas at 202-501-2454.
[OMB's Open Government Directive issued December 8, 2009, as M-10-06, instructs federal agencies, including GSA, to take specific actions to implement the principles of transparency, participation, and collaboration. More specifically, the directive asks agencies to expand access to information by making it available online in open formats. To comply with this initiative, certain GSA real property lease documents with private sector landlords will be posted on GSA's public online portal, with specific data elements being redacted to protect privacy, personal, and proprietary information as outlined under the Freedom of Information Act (FOIA) and the Privacy Act. As such, this notice describes typical data elements contained in these lease documents and their exemption status under the FOIA statute.]
GSA, the nation's largest public real estate organization, provides workspace
The following table contains a description of these data fields and their exempt status under FOIA:
Office of the Secretary, HHS.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, announces plans to submit a new Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). Prior to submitting that ICR to OMB, OS seeks comments from the public regarding the burden estimate below or any other aspect of the ICR.
Comments on the ICR must be received on or before March 17, 2014.
Submit your comments to
Information Collection
When submitting comments or requesting information, please include the document identifier 21226-60D for reference.
Information Collection Request Title: ASPE Generic Clearance for the Collection of Qualitative Research and Assessment.
The goal of developing these activities is to identify emerging policy issues and research gaps to ensure the successful implementation of HHS programs.
Burden Statement: Burden in this context means the time expended by persons to generate, maintain, retain, disclose or provide the information requested. This includes the time needed to review instructions, to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information, to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information, and to transmit or otherwise disclose the information. The total annual burden hours estimated for this ICR are summarized in the table below.
OS specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Department of Health and Human Services, Office of the Secretary.
Notice.
The Department of Health and Human Services (HHS) Office of the
CAPT Charlotte Spires, DVM, MPH, DACVPM, Executive Director and Designated Federal Official, National Advisory Committee on Children and Disasters, Office of the Assistant Secretary for Preparedness and Response, U.S. Department of Health and Human Services, Thomas P. O'Neill Federal Building, Room number 14F18, 200 C St. SW., Washington, DC 20024; Office: 202-260-0627, Email address:
Pursuant to the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), and section 2811A of the Public Health Service (PHS) Act (43 U.S.C. 300hh-10a), as added by section 103 of the Pandemic and All Hazards Preparedness Reauthorization Act of 2013 (Pub. L. 113-5), the HHS Secretary, in consultation with the Secretary of the U.S. Department of Homeland Security, established the National Advisory Committee on Children and Disasters (NACCD). The purpose of the NACCD is to provide advice and consultation to the HHS Secretary with respect to the medical and public health needs of children in relation to disasters. The Office of the Assistant Secretary for Preparedness and Response provides management and administrative oversight to support the activities of the NACCD.
• The Assistant Secretary for Preparedness and Response;
• The Director of the Biomedical Advanced Research and Development Authority;
• The Director of the Centers for Disease Control and Prevention;
• The Commissioner of Food and Drugs;
• The Director of the National Institutes of Health;
• The Assistant Secretary for the Administration for Children and Families;
• The Administrator of the Federal Emergency Management Agency;
• At least two non-federal health care professionals with expertise in pediatric medical disaster planning, preparedness, response, or recovery;
• At least two representatives from state, local, territorial, or tribal agencies with expertise in pediatric disaster planning, preparedness, response, or recovery; and
• Representatives from such federal agencies (such as the Department of Education and the Department of Homeland Security) as determined necessary to fulfill the duties of the Advisory Committee.
A member of the Advisory Committee will serve for a term of four years, except that the Secretary may adjust the terms of the initial Advisory Committee appointees in order to provide for a staggered term of appointment of all members. Members who are not full-time or permanent part-time federal employees shall be appointed by the Secretary as Special Government Employees (5 U.S.C. 3109).
Office of the National Coordinator for Health Information Technology, Department of Health and Human Services.
Notice.
This notice announces the 30-day period for submission of requests for ONC-Approved Accreditor (ONC-AA) status.
42 U.S.C. 300jj-11.
The 30-day submission period begins January 16, 2014 and will end on February 18, 2014.
Judy Murphy, Deputy National Coordinator for Programs and Policy, Office of the National Coordinator for Health Information Technology, 202-690-7151.
On June 6, 2011, ONC approved the American National Standards Institute (ANSI) as the ONC-AA. In accordance with 45 CFR § 170.503(f)(2), an ONC-AA's status will expire not later than 3 years from the date its status was granted by the National Coordinator. To ensure the continuity of the accreditation process and the ongoing responsibilities of the ONC-AA under the ONC HIT Certification Program, we are seeking requests for ONC-AA status for the 3-year term that would follow the term of
(1) A detailed description of the accreditation organization's conformance to ISO/IEC17011:2004 (incorporated by reference in § 170.599) and experience evaluating the conformance of certification bodies to ISO/IEC Guide 65:1996 (incorporated by reference in § 170.599);
(2) A detailed description of the accreditation organization's accreditation requirements[,] as well as how those requirements would complement the Principles of Proper Conduct for ONC-ACBs and ensure the surveillance approaches used by ONC-ACBs include the use of consistent, objective, valid, and reliable methods;
(3) Detailed information on the accreditation organization's procedures that would be used to monitor ONC-ACBs;
(4) Detailed information, including education and experience, about the key personnel who review organizations for accreditation; and
(5) Procedures for responding to, and investigating, complaints against ONC-ACBs.
Requests for ONC-AA status may be submitted by email to
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC), announces the following meeting of the aforementioned committee:
Please note that the public comment period ends at the time indicated above or following the last call for comments, whichever is earlier. Members of the public who want to comment must sign up by providing their name by mail, email, or telephone, at the addresses provided below, by February 10, 2014. Each commenter will be provided up to five minutes for comment. A limited number of time slots are available and will be assigned on a first come-first served basis. Written comments will also be accepted from those unable to attend the public session.
The agenda is subject to change as priorities dictate.
To view the notice, visit
Public Comment Sign-up and Submissions to the Docket: To sign up to provide public comments or to submit comments to the docket, send information to the NIOSH Docket Office by one of the following means:
In the event an individual cannot attend, written comments may be submitted. The comments should be limited to two pages and submitted through
Policy on Redaction of Committee Meeting Transcripts (Public Comment): Transcripts will be prepared and posted to
The Director, Management Analysis and Services Office, has been delegated the authority to sign
The meeting announced below concerns Occupational Safety and Health Education and Research Centers (ERC) PAR 10-217, initial review.
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the aforementioned meeting:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
The Centers for Disease Control and Prevention (CDC) is soliciting nominations for possible membership on the Advisory Committee on Breast Cancer in Young Women (ACBCYW).
The Committee provides advice and guidance to the Secretary, HHS; the Assistant Secretary for Health; and the Director, CDC, regarding the formative research, development, implementation and evaluation of evidence-based activities designed to prevent breast cancer (particularly among those at heightened risk) and promote the early detection and support of young women who develop the disease. The advice provided by the Committee will assist in ensuring scientific quality, timeliness, utility, and dissemination of credible appropriate messages and resource materials.
Nominations are being sought for individuals who have expertise and qualifications necessary to contribute to the accomplishments of the committee's objectives.
The Secretary, HHS, acting through the Director, CDC, shall appoint to the advisory committee nominees with expertise in breast cancer, disease prevention, early detection, diagnosis, public health, social marketing, genetic screening and counseling, treatment, rehabilitation, palliative care, and survivorship in young women, or in related disciplines with a specific focus on young women. Members may be invited to serve for up to four years. The next cycle of selection of candidates
Selection of members is based on candidates' qualifications to contribute to the accomplishment of ACBCYW's objectives
Current curriculum vitae or resume, including complete contact information (name, affiliation, mailing address, telephone numbers, fax number, email address); A 150 word biography for the nominee; At least one letter of recommendation from a person(s) not employed by the U.S. Department of Health and Human Services. Candidates may submit letter(s) from current HHS employees if they wish, but at least one letter must be submitted by a person not employed by HHS.
Nominations should be submitted (postmarked or received) by February 25, 2014.
Electronic submission: You may submit nominations, including attachments, electronically to
Telephone and facsimile submissions cannot be accepted. Nominations may be submitted by the candidate or by the person/organization recommending the candidate.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
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:
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.
National Institutes of Health, HHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209 and 37 CFR part 404, that the National Institutes of Health, Department of Health and Human Services, is contemplating the grant of a Start-Up Exclusive Patent License Agreement to Paris Therapeutics, a company having a place of business in Santee, CA, to practice the inventions embodied in the following patent applications:
The patent rights in these inventions have been assigned to the Government of the United States of America. The territory of the prospective Start-Up Exclusive Patent License Agreement may be worldwide, and the field of use may be limited to “Antibodies against TL1A for the Treatment of Inflammatory Bowel Disease (IBD), including Ulcerative Colitis and Crohn's Disease.”
Only written comments and/or applications for a license which are received by the NIH Office of Technology Transfer on or before January 31, 2014 will be considered.
Requests for copies of the patent application(s), inquiries, comments, and other materials relating to the contemplated Start-Up Exclusive Patent License Agreement should be directed to: Jaime M. Greene, M.S., Licensing and Patenting Manager, Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, MD 20852-3804; Telephone: (301) 435-5559; Facsimile: (301) 402-0220; Email:
This technology concerns anti-mouse TNF family ligand Tumor Necrosis Factor (ligand) Superfamily, Member 15 (TL1A) and anti-human TL1A monoclonal antibodies and the hybridoma cell lines generating these antibodies, as well as methods of treating autoimmune inflammatory diseases by blocking the interaction between TL1A and Tumor Necrosis Factor Receptor superfamily, Member 25 (DR3). This technology may be useful for the development of diagnostics and therapeutics for autoimmune inflammatory disease.
The prospective Start-Up Exclusive Patent License Agreement is being considered under the small business initiative launched on October 1, 2011 and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR part 404. The prospective Start-Up Exclusive Patent License Agreement may be granted unless the NIH receives written evidence and argument, within fifteen (15) days from the date of this published notice, that establishes that the grant of the contemplated Start-Up Exclusive Patent License Agreement would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR part 404.
Complete applications for a license in the prospective field of use that are filed in response to this notice will be treated as objections to the grant of the contemplated Start-Up Exclusive Patent License Agreement. Comments and objections submitted to this notice will not be made available for public inspection and, to the extent permitted by law, will not be released under the
60-day notice.
To comply with the Paperwork Reduction Act of 1995 (PRA), BSEE is inviting comments on a collection of information that we will submit to the Office of Management and Budget (OMB) for review and approval. The information collection request (ICR) concerns a renewal to the paperwork requirements in the regulations under Subpart I,
You must submit comments by March 17, 2014.
You may submit comments by either of the following methods listed below:
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Nicole Mason, Regulations and Standards Branch at (703) 787-1605 to request additional information about this ICR.
In addition to the general rulemaking authority of the OCSLA at 43 U.S.C. 1334, section 301(a) of the Federal Oil and Gas Royalty Management Act (FOGRMA), 30 U.S.C. 1751(a), grants authority to the Secretary to prescribe such rules and regulations as are reasonably necessary to carry out FOGRMA's provisions. While the majority of FOGRMA is directed to royalty collection and enforcement, some provisions apply to offshore operations. For example, section 108 of FOGRMA, 30 U.S.C. 1718, grants the Secretary broad authority to inspect lease sites for the purpose of determining whether there is compliance with the mineral leasing laws. Section 109(c)(2) and (d)(1), 30 U.S.C. 1719(c)(2) and (d)(1), impose substantial civil penalties for failure to permit lawful inspections and for knowing or willful preparation or submission of false, inaccurate, or misleading reports, records, or other information. Because the Secretary has delegated some of the authority under FOGRMA to BSEE, 30 U.S.C. 1751 is included as additional authority for these requirements.
The Independent Offices Appropriations Act (31 U.S.C. 9701), the Omnibus Appropriations Bill (Pub. L. 104-133, 110 Stat. 1321, April 26, 1996), and OMB Circular A-25, authorize Federal agencies to recover the full cost of services that confer special benefits. Under the Department of the Interior's implementing policy, BSEE is required to charge the full cost for services that provide special benefits or privileges to an identifiable non-Federal recipient above and beyond those that accrue to the public at large. Several requests for approval required in Subpart I are subject to cost recovery, and BSEE regulations specify service fees for these requests.
Regulations implementing these responsibilities are among those delegated to BSEE to ensure that operations in the OCS will meet statutory requirements; provide for safety and protection of the environment; and result in diligent exploration, development, and production of OCS leases. This ICR addresses the regulations at 30 CFR part 250, Subpart I, and the associated supplementary notices to lessees and operators (NTLs) intended to provide clarification, description, or explanation of these regulations.
We use the information to determine the structural integrity of all OCS platforms and floating production facilities and to ensure that such integrity will be maintained throughout the useful life of these structures. We use the information to ascertain, on a case-by-case basis, that the fixed and floating platforms and structures are structurally sound and safe for their intended use to ensure safety of personnel and prevent pollution. More specifically, we use the information to:
• Review data concerning damage to a platform to assess the adequacy of proposed repairs.
• Review applications for platform construction (construction is divided into three phases—design, fabrication, and installation) to ensure the structural integrity of the platform.
• Review verification plans and third-party reports for unique platforms to ensure that all nonstandard situations are given proper consideration during the platform design, fabrication, and installation.
• Review platform design, fabrication, and installation records to ensure that the platform is constructed according to approved applications.
• Review inspection reports to ensure that platform integrity is maintained for the life of the platform.
We protect proprietary information according to the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR 2), and under regulations at 30 CFR 250.197 and 30 CFR 252, which addresses disclosure of data and information to be made available to the public. No items of a sensitive nature are collected. Responses are mandatory or are required to obtain a benefit.
Agencies must also estimate the non-hour paperwork cost burdens to respondents or recordkeepers resulting from the collection of information. Therefore, if you have other than hour burden costs to generate, maintain, and disclose this information, you should comment and provide your total capital and startup cost components or annual operation, maintenance, and purchase of service components. For further information on this burden, refer to 5 CFR 1320.3(b)(1) and (2), or contact the Bureau representative listed previously in this notice.
We will summarize written responses to this notice and address them in our submission for OMB approval. As a result of your comments, we will make any necessary adjustments to the burden in our submission to OMB.
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of a draft comprehensive conservation plan (CCP) and environmental assessment (EA) for Conboy Lake National Wildlife Refuge (NWR or refuge) in Klickitat County, Washington. The draft CCP/EA describes our proposals for managing the refuge for the next 15 years.
To ensure consideration, please send your written comments by February 18, 2014.
Send your comments or requests for more information by any of the following methods:
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Rich Albers, Refuge Manager, Conboy Lake National Wildlife Refuge, (509) 546-8317;
With this notice, we continue the CCP process for Conboy Lake NWR. We started this process through a notice in the
Conboy Lake National Wildlife Refuge encompasses approximately 7,000 acres in Klickitat County, Washington. The refuge exists in the transition zone between arid eastern Washington and wet western Washington, near the southern base of Mt. Adams. The refuge manages wet prairie, emergent marsh, scrub-shrub, and forest land habitats. Conboy Lake NWR is managed with special emphasis on greater Sandhill cranes, Oregon spotted frogs, Mardon skippers, Ames' milk-vetch, and Oregon coyote thistle.
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee) (Refuge Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify compatible wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation and photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years in accordance with the Refuge Administration Act.
A press release was sent to all media outlets in the area on June 1, 2011, and we held a public open house on June 14, 2011. A
To address the issues raised during the public scoping process, we developed and evaluated the following alternatives, briefly summarized below. A full description of each alternative is in the EA.
Under Alternative 1, we would continue with current management of the refuge. Most management actions are aimed at protection, enhancement, and restoration of habitats. We would continue the current water flooding/drawdown regime. Haying would be used to control invasive reed canarygrass in meadow habitats, and meadows would continue to benefit from tree removal measures. Excess vegetation would be removed in all aquatic habitats. Prescribed fire and other integrated pest management techniques would continue to control invasive species.
Visitor services would continue in limited capacities. Wildlife observation and photography would still occur on limited parts of the refuge. Hunting and fishing would remain as-is. Cultural resources would continue to be protected as mandated by law and policy.
Under Alternative 2, grazing would be added to haying to control reed canarygrass. An aggressive bullfrog and bullhead fish control program would be implemented. Actively creating snags in all forest types would occur to benefit insectivorous birds, including woodpeckers, and cavity-nesting species. Forest thinning would allow for structural diversity and regeneration of understory species and young trees.
The Willard Springs Trail would be realigned, lengthened, and given a new interpretive emphasis. Environmental education would receive greater attention. The recruitment and use of volunteers would be expanded for all visitor services, especially education. New exhibits would be installed at refuge headquarters and along the Willard Springs Trail, Observation Overlook, and the Whitcomb-Cole Hewn Log House. Hunting and fishing would remain the same, with the exception of eliminating deer hunting.
Additional cultural resources activities would take place, including a resources overview, establishing new tribal partnerships, evaluating the National Register eligibility of archeological sites, and developing a new inadvertent discovery plan.
In addition to the methods listed in
• Hood River Library, 502 W State St., Hood River, OR 97031
• White Salmon Valley Community Library, 77 NE Wauna Ave., White Salmon, WA 98672
• Foley Center Library, Gonzaga University, 502 E Boone Ave., Spokane, WA 99258-0095
There will be additional opportunities to provide public input throughout the CCP process; they will be announced in press releases, planning updates, and on our Web site at
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Notice of Change in Public Meeting Date.
In accordance with the Federal Land Policy and Management Act of 1976 and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management (BLM), Arizona Resource Advisory Council (RAC) will
The January 28-29, 2014, Arizona RAC meeting has been rescheduled for Wednesday, January 29, and Thursday, January 30, 2014.
The meeting will be held at the BLM National Training Center located at 9828 North 31st Avenue, Phoenix, Arizona 85051.
Dorothea Boothe, Arizona RAC Coordinator at the Bureau of Land Management, Arizona State Office, One North Central Avenue, Suite 800, Phoenix, Arizona 85004-4427, 602-417-9504. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The 15-member Council advises the Secretary of the Interior, through the BLM, on a variety of planning and management issues associated with public land management in Arizona. Planned agenda items include: a welcome and introduction of Council members; BLM State Director's update on BLM programs and issues; updates on the RAC's Colorado River District Grazing Subcommittee; Section 106 Consultation Process; Department of the Interior Themes and Landscape Level Opportunities for BLM; Sonoran Landscape Pilot; U.S. Forest Service Recreation Fee Program Proposals; reports by the RAC Working Groups; RAC questions on BLM District Manager Reports; and other items of interest to the RAC. The Recreation RAC (RRAC) Working Group will review and make recommendations on U.S. Forest Service recreation fee program proposals. Members of the public are welcome to attend the Working Group and Business meetings. A public comment period is scheduled on the second day (Business meeting) from 11:15 a.m. to 11:45 a.m. during the RRAC Session for any interested members of the public who wish to address the Council on BLM or Forest Service recreation fee programs, and again from 1:30 p.m. to 2 p.m. for any interested members of the public who wish to address the Council on any other BLM programs and business. Depending on the number of persons wishing to speak and time available, the time for individual comments may be limited. Written comments may also be submitted during the meeting for the RAC's consideration. The final meeting agenda will be available one week prior to the meeting and posted on the BLM Web site at
Under the Federal Lands Recreation Enhancement Act, the RAC has been designated as the RRAC and has the authority to review all BLM and Forest Service recreation fee proposals in Arizona. The RRAC will review recreation fee program proposals at this meeting.
In notice document 2013-31597 appearing on pages 840 through 842 in the issue of Tuesday, January 7, 2014, make the following correction.
1. On page 840, in the second column, in the
National Park Service, Interior.
Notice.
The U.S. Army Corps of Engineers, Little Rock District (Little Rock District) has completed an inventory of human remains and associated funerary objects in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the Little Rock District. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Little Rock District at the address in this notice by February 18, 2014.
Mr. Rodney Parker, District Archaeologist, U.S. Army Corps of Engineers, Little Rock District, P.O. Box 867, Little Rock, AR 72203, telephone (501) 324-5752, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the Little Rock District and in the physical custody of the University of Arkansas, Fayetteville. The human remains and associated funerary objects were removed from Millwood Lake, in Howard, Little River, and Sevier Counties, AR.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Little Rock District and the St. Louis District's Mandatory Center of Expertise for the Curation and Management of Archaeological Collections professional staff in consultation with
In 1961, human remains representing, at minimum, three individuals were removed from 3HO11 (the Bell site), Millwood Reservoir, Howard County, AR. The burials were excavated during legally authorized excavations by the University of Arkansas, and the human remains have been housed at the University of Arkansas, Fayetteville, since their excavation. No known individuals were identified. No associated funerary objects are present.
Based on the physical preservation of the remains and associated archeological context, the human remains are determined to be of Native American ancestry. Archeological evidence indicates a late Fourche Maline phase with a Caddoan Mississippian occupation of the site from 500 A.D. to the Contact Period.
In 1962, human remains representing, at minimum, 11 individuals were removed from 3HO1 (the Mineral Springs site), Millwood Reservoir, Howard County, AR. The burials were excavated during legally authorized excavations by the University of Arkansas, and the human remains and associated funerary objects have been housed at the University of Arkansas, Fayetteville, since their excavation. No known individuals were identified. The 106 associated funerary objects are 10 lithic flakes, 12 chipped stone tools, 1 quartz crystal, 1 polished stone celt, 13 ceramic sherds, 32 complete ceramic vessels, 5 fragmented ceramic vessels, 3 ear spools, 7 fragments of shell, 1 lot of shell fragments, 8 beads, 8 clay pipes, and 5 fragments of baked clay.
Based on the physical preservation of the remains and associated archeological context, the human remains are determined to be of Native American ancestry. Archeological evidence indicates a Fourche Maline phase with a Caddoan Mississippian occupation of the site from 500 B.C. to the Contact Period.
In the early 1960s, human remains representing, at minimum, 47 individuals were removed from 3LR49 (the Old Martin Place site), Millwood Reservoir, Little River County, AR. The burials were excavated during legally authorized excavations by the University of Arkansas, and the human remains and associated funerary objects have been housed at the University of Arkansas, Fayetteville, since their excavation. No known individuals were identified. The 8 associated funerary objects are three bone hairpins, one complete ceramic vessel, one conch shell effigy vessel, one bone tube, one piece of chert, and one carved animal bone.
Based on the physical preservation of the remains and associated archeological context, the human remains are determined to be of Native American ancestry. Archeological evidence indicates a Fourche Maline phase with a Caddoan Mississippian occupation for the site from 500 B.C. to the Contact Period.
In the early 1960s, human remains representing, at minimum, 11 individuals were removed from 3LR12 (the White Cliffs site), Millwood Reservoir, Little River County, AR. The burials were excavated during legally authorized excavations by the University of Arkansas, Fayetteville, and the human remains and associated funerary objects have been housed at the University of Arkansas, Fayetteville, since their excavation. No known individuals were identified. The 19 associated funerary objects are three lithic flakes, one ceramic sherd, three modified faunal bones, two unmodified pieces of fauna, one pipe stem, seven projectile points, one tool kit (including a sandstone abrader, flakes, and pigment), and one clay ball.
Based on the physical preservation of the remains and associated archeological context, the human remains are determined to be of Native American ancestry. Archeological evidence indicates an early Caddoan Mississippian occupation of the site from 900-1200 A.D.
In the early 1960s, human remains representing, at minimum, seven individuals were removed from 3SV10 (the Millers Crossing site), Millwood Reservoir, Sevier County, AR. The burials were excavated during legally authorized excavations by the University of Arkansas, Fayetteville, and the human remains and associated funerary objects have been housed at the University of Arkansas, Fayetteville, since their excavation. No known individuals were identified. The 16 associated funerary objects are five reconstructed vessels, two lumps of pigment, three pebbles, two stone fragments, three projectile points, and one sandstone fragment.
Based on the physical preservation of the remains and associated archeological context, the human remains are determined to be of Native American ancestry. Archeological evidence indicates a early Caddoan Mississippian occupation of the site from 900-1200 A.D.
In the early 1960s, human remains representing, at minimum, five individuals were removed from 3SV15 (the Graves Chapel site), Millwood Reservoir, Sevier County, AR. The burials were excavated during legally authorized excavations by the University of Arkansas, Fayetteville, and the human remains have been housed at the University of Arkansas, Fayetteville, since their excavation. No known individuals were identified. No associated funerary objects are present.
Based on the physical preservation of the remains and associated archeological context, the human remains are determined to be of Native American ancestry. Archeological evidence indicates Late Archaic period (3000-650 B.C.) and Late Woodland A.D. (500-900) to Early Caddoan Mississippian (A.D. 900-1200) components of the site.
In the early 1960s, human remains representing, at minimum, two individuals were removed from 3SV21, Millwood Reservoir, Sevier County, AR. The burials were excavated during legally authorized excavations by the University of Arkansas, Fayetteville, and the human remains have been housed at the University of Arkansas, Fayetteville, since their excavation. No known individuals were identified. No associated funerary objects are present.
Based on the physical preservation of the remains and associated archeological context, the human remains are determined to be of Native American ancestry. Archeological evidence indicates a late prehistoric period occupation of the site from 900-1500 A.D.
In the late 1950's, human remains representing, at minimum, two individuals were removed from an unknown site on the Millwood Reservoir, in Howard, Little River, or Sevier Counties, AR. The burials were excavated during legally authorized excavations by the University of Arkansas, and the human remains and associated funerary objects have been housed at the University of Arkansas, Fayetteville, since their excavation. No known individuals were identified. The three associated funerary objects are ceramic sherds.
The remains were recovered during the initial testing of prehistoric sites with Native American cultural contexts in the Millwood Reservoir area and are likely from a prehistoric site in the area. Based on the physical preservation of the remains and the likely Native American prehistoric archeological context, the human remains are
Five lines of evidence support a cultural affiliation finding for the site including geographical, archeological, anthropological, historical, and oral history information gathered during consultation. The Caddo have a long association with the territory in which they were first encountered by the Europeans including in southwestern Arkansas. The emergence of the Caddo culture in the region of southwestern Arkansas, northern Louisiana, southeastern Oklahoma, and eastern Texas is documented by 900 A.D. or shortly thereafter. The distinctive ceramics and specific artifacts made of stone, bone, antler, and marine shell form a line of evidence archeologically connecting historic Caddo groups with this region. Historic records and ethnographic accounts place the Caddo in this region in the 1600s. Based on the cultural material, geographic location, dates of occupation, 18th and 19th century accounts of the occupants of the area, and information gained during consultation, Little Rock District has determined that the human remains and associated funerary objects from the sites listed in this notice are culturally affiliated with the Caddo Nation of Oklahoma.
Officials of the Little Rock District have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 88 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 152 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Caddo Nation of Oklahoma.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Mr. Rodney Parker, District Archaeologist, U.S. Army Corps of Engineers, Little Rock District, P.O. Box 867, Little Rock AR 72203, telephone (501) 324-5752, email
The Little Rock District is responsible for notifying the Caddo Nation of Oklahoma; The Chickasaw Nation; The Choctaw Nation of Oklahoma; The Quapaw Tribe of Indians; The Osage Nation (previously listed as the Osage Tribe); and the United Keetoowah Band of Cherokee Indians in Oklahoma that this notice has been published.
National Park Service, Interior.
Notice.
The Tennessee Valley Authority (TVA) has completed an inventory of human remains in consultation with the appropriate Federally recognized Indian tribes, and has determined that there is no cultural affiliation between the human remains and any present-day Federally recognized Indian tribes. Representatives of any Federally recognized Indian tribe not identified in this notice that wish to request transfer of control of these human remains should submit a written request to TVA. If no additional requestors come forward, transfer of control of the human remains to the Federally recognized Indian tribe stated in this notice may proceed.
Representatives of any Federally recognized Indian tribe not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to TVA at the address in this notice by February 18, 2014.
Dr. Thomas O. Maher, TVA, 400 West Summit Hill Drive, WT11D, Knoxville TN 37902-1401, telephone (865) 632-7458, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of TVA. The human remains were removed from the Rudder site in Jackson County, AL.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by TVA professional staff in consultation with representatives of the University of Alabama and the Absentee-Shawnee Tribe of Oklahoma; Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas); Alabama-Quassarte Tribal Town; Cherokee Nation; Eastern Band of Cherokee Indians; Eastern Shawnee Tribe of Oklahoma; Kialegee Tribal Town; Poarch Band of Creeks (previously listed as the Poarch Band of Creek Indians of Alabama); Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)); Shawnee Tribe; The Chickasaw Nation; The Muscogee (Creek) Nation; The Seminole Nation of Oklahoma; Thlopthlocco Tribal Town; and the United Keetoowah Band of Cherokee Indians in Oklahoma.
From March 13 to November 14, 1939, human remains representing, at minimum, 5 individuals were removed from the Rudder site (1JA180), in Jackson County, AL. The Rudder site was excavated as part of TVA's Guntersville reservoir project by the Alabama Museum of Natural History (AMNH) at the University of Alabama, using labor and funds provided by the Works Progress Administration. Excavation of the land commenced after TVA had acquired this land for the Guntersville project. The excavation site was composed of a truncated trapezoidal mound with multiple construction periods and a smaller mound containing most of the burial units. This site was occupied during the
At the time of the excavation and removal of these human remains, the land from which the remains were removed was not the tribal land of any federally recognized Indian tribe. In October 2013, TVA consulted with all federally recognized Indian tribes who are recognized as aboriginal to the area from which these Native American human remains were removed. These tribes are the Cherokee Nation, Eastern Band of Cherokee Indians, and United Keetoowah Band of Cherokee Indians in Oklahoma. None of these Indian tribes agreed to accept control of the human remains. After further consultation with the parties that were a part of this overall consultation, TVA has decided to transfer control of the human remains to the Muscogee (Creek) Nation of Oklahoma.
Officials of TVA have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on their presence below, but not derived from, a large trapezoidal mound built during the Henry Island phase (AD 1200-1400).
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 5 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• Pursuant to 43 CFR 10.11(c)(2)(i), TVA has decided to transfer control of the culturally unidentifiable human remains to the Muscogee (Creek) Nation.
Representatives of any Federally recognized Indian tribe not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Dr. Thomas O. Maher, TVA, 400 West Summit Hill Drive, WT11D, Knoxville, TN 37902-1401, telephone (865) 632-7458, email
TVA is responsible for notifying the University of Alabama and the Absentee-Shawnee Tribe of Oklahoma; Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas); Alabama-Quassarte Tribal Town; Cherokee Nation; Eastern Band of Cherokee Indians; Eastern Shawnee Tribe of Oklahoma; Kialegee Tribal Town; Poarch Band of Creeks (previously listed as the Poarch Band of Creek Indians of Alabama); Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)); Shawnee Tribe; The Chickasaw Nation; The Muscogee (Creek) Nation; The Seminole Nation of Oklahoma; Thlopthlocco Tribal Town; and the United Keetoowah Band of Cherokee Indians in Oklahoma, that this notice has been published.
National Park Service, Interior.
Notice.
The California State University, Fullerton, has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the California State University, Fullerton. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the California State University, Fullerton, at the address in this notice by February 18, 2014.
Dr. Mitchell Avila, California State University, Fullerton, P.O. Box 6850, Fullerton, CA 92834-6850, telephone (657) 278-3528, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the California State University, Fullerton. The human remains and associated funerary objects were removed from Inyo County, CA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the California State University, Fullerton, professional staff in consultation with representatives of Big Pine Paiute Tribe of the Owens Valley (previously listed as the Big Pine Band of Owens Valley Paiute Shoshone Indians of the Big Pine Reservation, California); Bishop Paiute Tribe (previously listed as the Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony, California); Death Valley Timbi-sha Shoshone Tribe (previously listed as the Death Valley Timbi-Sha Shoshone Band of California); Fort Independence Indian Community of Paiute Indians of the Fort Independence Reservation, California; Lone Pine Paiute-Shoshone Tribe (previously listed as the Paiute-Shoshone Indians of the Lone Pine
In 1966, human remains representing, at minimum, one individual were removed from an undesignated site in Inyo County, CA. The human remains were reportedly excavated and collected from a small cave in the vicinity of Fossil Falls in the Little Lake lava flow by Mr. W. Riffle, Mr. M. Purkiss, and two other, unnamed, individuals. The excavation and collection was not archeological. The exact burial site location is unidentifiable, but was most probably private land. The human remains were reportedly in Purkiss' possession until he donated the remains to California State University, Fullerton, in 1973. The human remains are a partial skeleton, including cranial and a few post-cranial bones, of a female, age 20-30, with significant teeth wear. No known individuals were identified. The three associated funerary objects are three small pottery fragments.
The Little Lake lava flow contains numerous archeological sites and petroglyphs which archeological investigations have identified as prehistoric in age. The three pottery fragments are archeologically consistent with the late prehistoric Intermountain Brownware pottery of the region. During consultation, Ms. Irene Button, Tribal Elder, Lone Pine Paiute-Shoshone Tribe, suggested that the pottery fragments may have been placed to cover the face of the deceased. The skeletal morphology is osteologically consistent with that of Native Americans. The teeth wear is anthropologically consistent with habitual practice of the traditional Paiute and Shoshone method of preparing plant material for basket weaving by mastication. The burial site is located within the traditional territory of the Lone Pine Paiute-Shoshone Tribe (previously listed as the Paiute-Shoshone Indians of the Lone Pine Community of the Lone Pine Reservation, California) whose members are, based on oral tradition, historic, and ethnographic evidence, descendants of the prehistoric Owens Valley Paiute and Western Shoshone population of the burial site area.
Officials of the California State University, Fullerton, have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the three objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Lone Pine Paiute-Shoshone Tribe (previously listed as the Paiute-Shoshone Indians of the Lone Pine Community of the Lone Pine Reservation, California).
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Dr. Mitchell Avila, California State University, Fullerton, P.O. Box 6850, Fullerton, CA 92834-6850, telephone (657) 278-3528, email
The California State University, Fullerton, is responsible for notifying the Big Pine Paiute Tribe of the Owens Valley (previously listed as the Big Pine Band of Owens Valley Paiute Shoshone Indians of the Big Pine Reservation, California); Bishop Paiute Tribe (previously listed as the Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony, California); Death Valley Timbi-sha Shoshone Tribe (previously listed as the Death Valley Timbi-Sha Shoshone Band of California); Fort Independence Indian Community of Paiute Indians of the Fort Independence Reservation, California; Lone Pine Paiute-Shoshone Tribe (previously listed as the Paiute-Shoshone Indians of the Lone Pine Community of the Lone Pine Reservation, California); and the Kern Valley Indian Council, a non-Federally recognized Indian group that this notice has been published.
National Park Service, Interior.
Notice.
The State Historical Society of Wisconsin (WHS) has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and associated funerary objects and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the State Historical Society of Wisconsin. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the State Historical Society of Wisconsin at the address in this notice by February 18, 2014.
Jennifer Kolb, Wisconsin Historical Museum, 30 North Carroll Street, Madison, WI 53703, telephone (608) 261-2461, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the State Historical Society of Wisconsin, Madison, WI. The human remains and
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the State Historical Society of Wisconsin professional staff in consultation with representatives of the Forest County Potawatomi Community, Wisconsin; Ho-Chunk Nation of Wisconsin; and the Menominee Indian Tribe of Wisconsin.
In 1931, human remains representing, at minimum, three individuals (1996.93.2) were removed from the Outlet Site (47-DA-0003) in Dane County, WI. Road construction cut into Mound 5 on the site, disturbing a burial. Charles E. Brown, founder of the Wisconsin Archeological Society and director of the State Historical Society, excavated the mound and discovered two more burials. All three burials were described as bundle burials. The remains were determined to be those of two adult males and one adult female. No known individuals were identified. No associated funerary objects are present.
In 1934, human remains representing, at minimum, one individual (A12808) were removed from the Outlet Site (47-DA-0003) in Dane County, WI. The remains were discovered in 1933 by the owner of the property while digging for a septic tank and were subsequently excavated by Charles E. Brown in 1934. The remains were determined to be those of an adult, possibly male. No known individuals were identified. No associated funerary objects are present.
In 1935, human remains representing, at minimum, three individuals (A12844) were removed from the Yahara Hoyt Site (47-DA-0026) in Dane County, WI. The remains were discovered in an oval mound by members of the Wisconsin Outers Association of Madison and excavated under the direction of Charles E. Brown. The remains were determined to be those of three adults—one female, one male, and one individual of indeterminate sex. No known individuals were identified. No associated funerary objects are present.
In 1987, human remains representing, at minimum, one individual (HP.DA-0029.1) were removed from the Koshkonong Mound Group (47-DA-0029) in Dane County, WI. The remains were disturbed during excavation for a house foundation. State Historical Society of Wisconsin staff investigated and discovered that a mound was being disturbed. The burial was discovered in backfill dirt, meaning the primary location of the burial within the mound could not be determined. The remains were determined to be those of an adult male. No known individuals were identified. No associated funerary objects are present.
In 1962, human remains representing, at minimum, two individuals (F1996.21.1 and F1996.21.2) were removed from the Olson Site (47-DA-0089) in Dane County, WI. The remains were excavated by a WHS archeological crew from two sub-floor burial pits in a partially destroyed conical mound. They were determined to be those of an adult, possibly female, and a child of indeterminate sex. No known individuals were identified. No associated funerary objects are present.
In 1934, human remains representing, at minimum, one individual (H13016) were removed from the Fuller Woods Mound Group (47-DA-0118) in Dane County, WI. The remains were excavated by a WHS archeological crew from a partially disturbed linear mound. The archeologists recovered numerous cranial fragments from a burial located beneath an ash pit that were determined to be from an adult of indeterminate sex. No known individuals were identified. The one associated funerary object is a partially reconstructed grit-tempered pottery vessel (1982.46.1.1-.97).
In 1935, human remains representing, at minimum, one individual (A12843 and A12843.1) were removed from the Willow Drive Mounds (47-DA-0119) in Dane County, WI. The remains were excavated from a bird effigy mound on the University of Wisconsin-Madison campus by Charles E. Brown. Three mandible fragments were loaned to the University of Wisconsin-Madison Anthropology Department at an unknown time and returned to the WHS in 2011. The remains were determined to be those of a young adult male. No known individuals were identified. The one associated funerary object is a single fragmentary coyote mandible (1950.1627).
In 1937, human remains representing, at minimum, one individual (A12957) were removed from the Willow Drive Mounds (47-DA-0119) in Dane County, WI. The remains were excavated from a linear mound on the University of Wisconsin-Madison campus by Charles E. Brown. They were determined to be those of a young adult male. No known individuals were identified. The one associated funerary object is the fragmentary remains of a red fox (1984.16).
In 1939, human remains representing, at minimum, three individuals (1996.93.4 and 1996.93.5) were removed from the Picnic Point Mound Group (47-DA-0121) in Dane County, WI. The remains were discovered and excavated by a Works Progress Administration (WPA) mound repair crew and Charles E. Brown. They were determined to be those of an adult female, an adult male, and a young adult female. No known individuals were identified. No associated funerary objects are present.
In 1973, human remains representing, at minimum 78 individuals (1986.417.1—1986.417.15) were removed from the Mendota Beach Mound Group (47-DA-0129). The remains were removed by WHS archeologist John Halsey from three conical mounds, which have since been destroyed. The remains were determined to be those of 30 subadults, 23 adult males, 11 adult females, and 14 adults of indeterminate sex. No known individuals were identified. The three associated funerary objects are a group of chert flakes (1986.417.42), a chert biface fragment (1986.417.43), and a group of faunal bones (1986.417.44).
In 1915, human remains representing, at minimum, one individual (A02522 and 2011.115.11) were removed from the Dividing Ridge Mound Group (47-DA-0145) in Dane County, WI. The remains were discovered during the destruction of a linear mound above the Pieh gravel pit on the Lake Wingra Ridge. WHS archeologist Marion Cranefield was on site when a construction worker discovered the remains and assisted in the excavation. A portion of the remains were loaned to the University of Wisconsin-Madison Anthropology Department in 1967 and returned to the WHS in 2011. They were determined to be those of an adult male. No known individuals were identified. The associated funerary object is a wood fragment (2011.115.11.1).
In 1939, human remains representing, at minimum, two individuals (A12982) were removed from the Edgewood Mound Group (47-DA-0147) in Dane County, WI. A WPA work group working to repair mounds in Madison found a human bone in a conical mound. Charles E. Brown excavated and discovered two burials in the mound floor. The remains were determined to
At an unknown date, human remains representing, at minimum, two individuals (F2013.199.1) were removed from the Arboretum Woods site (47-DA-0152) in Dane County, WI. The remains were excavated from a conical mound in the University of Wisconsin-Madison Arboretum. They were determined to be those of an adult male and a sub-adult of indeterminate sex. No known individuals were identified. No associated funerary objects are present.
In 1922, human remains representing, at minimum, five individuals (1996.93.8) were removed from the Mendota Beach site (47-DA-0172) in Dane County, WI. The five burials were disturbed during excavation for a barn on land belonging to Magnus Swenson. Either Swenson or David Atwood donated the remains to the WHS the same year. The remains were determined to be those of five individuals—three elderly adults, one adult, and one juvenile—all of indeterminate sex. No known individuals were identified. No associated funerary objects are present.
In 1991, human remains representing, at minimum, one individual (HP.DA-0237.1) were removed from the Springdale Mound Group (47-DA-0237) in Dane County, WI. The WHS was notified that a proposed Wisconsin Department of Transportation frontage road was going to be constructed through an area where an Indian mound once existed, possibly disturbing any burials that could remain. Staff monitored machine-stripping of the area to look for evidence of intact burials, and a small concentration of human bone was discovered and excavated. The remains were determined to be from an adult, possibly female. No known individuals were identified. No associated funerary objects are present.
In 1929, human remains representing, at minimum, two individuals (1950.1624) were removed from the Farwell's Point Mound Group (47-DA-0255) in Dane County, WI. The remains were excavated by Charles E. Brown from a small conical mound. They were determined to be those of an adult and juvenile, both of indeterminate sex. No known individuals were identified. No associated funerary objects are present.
In 1952, human remains representing, at minimum, one individual (1952.339) were removed from the Farwell's Point Mound Group (47-DA-0255) in Dane County, WI. A femur fragment was discovered by WHS archeologists during the excavation of a mound adjacent to the superintendent's residence at Mendota State Hospital. The mound had been disturbed in the recent past and an attempt had been made to restore it. The femur fragment was found in the disturbed area, suggesting that the burial had been destroyed by this disturbance. It was determined that the fragment was from a young adult of indeterminate sex. No known individuals were identified. No associated funerary objects are present.
At an unknown date, human remains representing, at minimum, one individual (1969A.42.104-.109) were removed from the Farwell's Point Mound Group (47-DA-0255) in Dane County, WI. The remains were uncovered and donated to the WHS by Charles E. Brown. Neither sex nor age could be determined for the remains. No known individuals were identified. No associated funerary objects are present.
In 1985, human remains representing, at minimum, one individual (1987.33.3) were removed from the Morris Park Mound Group (47-DA-0267) in Dane County, WI. An excavation of the site was conducted by Victoria Dirst of the Wisconsin Department of Natural Resources, Bureau of Parks and Recreation in preparation for a road construction project. When the site was originally mapped in 1902, it contained six conical mounds, three panther effigy mounds, and two linear mounds. At the time of excavation, four of these mounds had been largely destroyed, but seven were still intact. The partially cremated remains were excavated from pit feature 3, located about 10 meters from Mound 1. The remains and associated funerary objects were given to the WHS in 1987 as part of a cooperative agreement between the Wisconsin Department of Natural Resources and the WHS. Neither sex nor age could be determined for the remains. No known individuals were identified. The one associated funerary object consists of a group of chert fragments (1987.33.3.1).
In 1928, human remains representing, at minimum, one individual (A10120) were removed from the Crystal Lake Burials and Village site (47-DA-0335) in Dane County, WI. The remains were discovered by a road crew while excavating gravel. The burial was removed and reported to Sheriff Fred Finn, who gave the remains to the WHS. The remains were determined to be those of an adult male. No known individuals were identified. No associated funerary objects are present.
In 1929, human remains representing, at minimum, three individuals (A12857) were removed from the Crystal Lake Burials and Village site (47-DA-0335) in Dane County, WI. The remains were discovered by a road crew while plowing the crest of a hill to excavate gravel. They notified the WHS of their discovery, and Charles E. Brown excavated the burials. Brown donated the remains to the WHS in 1935. The remains were determined to be those of an adult male, an adult female, and a fetus of indeterminate sex. No known individuals were identified. The associated funerary objects are a group of chert flakes and a fragmentary turtle carapace (A12857.1 and A12857.2).
In 1932, human remains representing, at minimum, two individuals (F1996.22.1) were removed from the Mendota Beach Burials site (47-DA-0382) in Dane County, WI. The burials were disturbed during road construction and were located about 300 feet from one another. One of the burials had previously been partially disturbed by digging for a flower bed on the neighboring property. William F. Wagner donated the remains to the WHS the same year. The remains were determined to be those of two adults, possibly a male and a female. No known individuals were identified. No associated funerary objects are present.
In 1954, human remains representing, at minimum, one individual (1956.9) were removed from the Mendota Hills Bird Effigy site (47-DA-0409) in Dane County, WI. The remains were discovered during the mapping and partial excavation of a bird effigy mound by WHS archeologist Warren Wittry and a group of University of Wisconsin-Madison archeology graduate students. WHS was notified of the mound by a construction company after a bulldozer partially destroyed it during construction of the Mendota Hills Subdivision. During excavation, it was determined that the site had recently been looted, but the looters had not disturbed the burial pit. The remains were determined to be those of a child of indeterminate sex. No known individuals were identified. No associated funerary objects are present.
In 1929, human remains representing, at minimum, one individual (F2008.42.1) were removed from the Woodward Shores Mound Group (47-DA-0530) in Dane County, WI. The remains were discovered when a bird effigy mound was dug into during construction of a home. The landowners, Dr. and Mrs. Samuel Harper, had been told to watch for burials as they dug into the mound and excavated the remains before continuing with the construction project. Three burials were found, but two of the burials were in a very poor state of preservation and were not saved by the
In 1986, human remains representing, at minimum, one individual (1994.113.53) were removed from the Camp Indianola site (47-DA-0533) in Dane County, WI. Archeologist Victoria Dirst discovered the burial during an excavation of the site for the Department of Natural Resources, who transferred them to the WHS as part of cooperative agreement. The remains were determined to be those of an adult female. No known individuals were identified. No associated funerary objects are present.
In 1915, human remains representing, at minimum, one individual (1950.1225) were removed from the Nichols Mortuary Site (47-DA-1284) in Dane County, WI. William McClean uncovered two burials while plowing near the Yahara River Bank at the Nichols farm. McClean donated only a lumbar vertebra with a projectile point embedded in it, and none of the other human remains, to the WHS in 1917. The projectile point was recorded at the time of donation but was not present during re-cataloging in 1950. The vertebra was determined to be from an adult. No known individuals were identified. No associated funerary objects are present.
In 1954, human remains representing, at minimum, two individuals (1956.23.1) were removed from the Nichols Mortuary Site (47-DA-1284) in Dane County, WI. The remains were excavated from Mound 2 by WHS archeologist Warren Wittry. The mound was excavated because it was being destroyed by a construction project. The remains were determined to be those of an adult female and an individual of indeterminate age and sex. No known individuals were identified. No associated funerary objects are present.
In 1995, human remains representing, at minimum, one individual (HP.DA-1395.1) were removed from the Birmingham's Knee Site (47-DA-1395) in Dane County, WI. A femoral condyle fragment was discovered by then state archeologist Bob Birmingham eroding out of tree roots along the lakeshore. No other skeletal material was recovered. The bone fragment was determined to be from an adult of indeterminate sex. No known individuals were identified. No associated funerary objects are present.
In 1900, human remains representing, at minimum, six individuals (A00031 and A02580.1) were removed from a gravel pit at an unknown site along Oregon Road in South Madison, Dane County, WI. Mr. Absalom Van Deusen donated the remains to the WHS that same year. The remains were loaned to the University of Wisconsin-Madison Anthropology Department in 1949 and returned to the WHS in 2011. The remains were determined to be those of three adult males, one juvenile female, and two adults of indeterminate sex. No known individuals were identified. No associated funerary objects are present.
In 1939, human remains representing, at minimum, three individuals (2011.115.3) were removed from an unknown site on the west end of Mendota Beach, in Dane County, WI. The remains were discovered by the landowner, Mr. F.W. Burton, while digging a cellar for his home. Burton contacted Charles E. Brown, who excavated the remains. At an unknown date, the remains were loaned to the University of Wisconsin-Madison Anthropology Department and were returned to the WHS in 2011. The remains were determined to be those of two adult males and one adult of indeterminate sex. No known individuals were identified. No associated funerary objects are present.
Officials of the State Historical Society of Wisconsin have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on WHS records, discovery location and context of burial sites, the reported presence of funerary objects in some instances, and skeletal analysis in some instances.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 132 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the ten objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of the Ho-Chunk Nation of Wisconsin.
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of the Ho-Chunk Nation of Wisconsin.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains and associated funerary objects may be to the Ho-Chunk Nation of Wisconsin.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Jennifer Kolb, Wisconsin Historical Museum, 30 North Carroll Street, Madison, WI 53703, telephone (608) 261-2461, email
The State Historical Society of Wisconsin is responsible for notifying the Forest County Potawatomi Community, Wisconsin; the Ho-Chunk Nation of Wisconsin; and the Menominee Indian Tribe of Wisconsin that this notice has been published.
National Park Service, Interior.
Notice.
The University of Denver Museum of Anthropology has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the University of Denver
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the University of Denver Museum of Anthropology at the address in this notice by February 18, 2014.
Anne Amati, University of Denver Museum of Anthropology, 2000 E Asbury Avenue, Denver, CO 80208, telephone (303) 871-2687, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the University of Denver Museum of Anthropology, Denver, CO. The human remains were removed from an unknown site in the Southwestern region of the United States.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the University of Denver Museum of Anthropology professional staff in consultation with representatives of tribes with aboriginal territory in the Southwestern region of the United States. The consultant tribes with aboriginal territory in the Southwestern region include: Hopi Tribe of Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; Jicarilla Apache Nation, New Mexico; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Navajo Nation, Arizona, New Mexico & Utah; Ohkay Owingeh, New Mexico (formerly Pueblo of San Juan); Pueblo of Cochiti, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Jemez, New Mexico; Pueblo of San Felipe, New Mexico; Pueblo of San Ildefonso, New Mexico; Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado; Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah; and Zuni Tribe of the Zuni Reservation, New Mexico.
The following tribes with aboriginal territory in the Southwestern region of the United States were also invited to participate but were not involved in consultations: Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona; Apache Tribe of Oklahoma; Fort McDowell Yavapai Nation, Arizona; Fort Sill Apache Tribe of Oklahoma; Gila River Indian Community of the Gila River Indian Reservation, Arizona; Havasupai Tribe of the Havasupai Reservation, Arizona; Kewa Pueblo, New Mexico; Pueblo of Acoma, New Mexico; Pueblo of Laguna, New Mexico; Pueblo of Nambe, New Mexico; Pueblo of Picuris, New Mexico; Pueblo of Pojoaque, New Mexico; Pueblo of Sandia, New Mexico; Pueblo of Santa Ana, New Mexico; Pueblo of Santa Clara, New Mexico; Pueblo of Taos, New Mexico; Pueblo of Tesuque, New Mexico; Pueblo of Zia, New Mexico; Quechan Tribe of the Fort Yuma Indian Reservation, California and Arizona; Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; San Juan Southern Paiute Tribe of Arizona; Tohono O'odham Nation of Arizona; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona; Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona; and Ysleta Del Sur Pueblo of Texas.
Hereafter, all tribes listed in this section are referred to as “The Consulted and Notified Tribes.”
At an unknown date, human remains representing, at minimum, 1 individual (DU 6065) were removed from an unknown site in the Southwestern region of the United States. They were removed by E.B. Renaud or H.B. Roberts of the University of Denver Department of Anthropology during expeditions in the Southwest between the 1920s and 1950s. The individual is identified as an adult female. No known individuals were identified. No associated funerary objects are present.
Pursuant to 43 CFR 10.16, the Secretary of the Interior may make a recommendation for a transfer of control of culturally unidentifiable human remains. On November 6, 2013, the University of Denver Museum of Anthropology requested that the Secretary, through the Native American Graves Protection and Repatriation Review Committee, recommend the proposed transfer of control of the culturally unidentifiable Native American human remains in this notice to the Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado, and the Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah. The Review Committee, acting pursuant to its responsibility under 25 U.S.C. 3006(c)(5), considered the request at its November 2013 meeting and recommended to the Secretary that the proposed transfer of control proceed. A December 11, 2013, letter on behalf of the Secretary of Interior from the Designated Federal Official transmitted the Secretary's independent review and concurrence with the Review Committee that:
• the University of Denver Museum of Anthropology consulted with every appropriate Indian tribe or Native Hawaiian organization,
• none of The Consulted and Notified Tribes objected to the proposed transfer of control, and
• the University of Denver Museum of Anthropology may proceed with the agreed upon transfer of control of the culturally unidentifiable human remains to the Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado, and the Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah.
Transfer of control is contingent on the publication of a Notice of Inventory Completion in the
Officials of the University of Denver Museum of Anthropology have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on inscriptions on the remains and the findings of a physical anthropologist employed by the University of Denver prior to November 1995.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• Pursuant to 43 CFR 10.16, the disposition of the human remains will be to Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado and Ute Mountain Tribe of the Ute Mountain
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Anne Amati, University of Denver Museum of Anthropology, 2000 E Asbury Avenue, Denver, CO, telephone (303) 871-2687, email
The University of Denver Museum of Anthropology is responsible for notifying The Consulted and Notified Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, National Park Service, Tonto National Monument has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to Tonto National Monument. If no additional requestors come forward, transfer of control of the human remains to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Tonto National Monument at the address in this notice by February 18, 2014.
Duane Hubbard, Acting Superintendent, Tonto National Monument, 26260 N AZ Hwy 188, Lot 2, Roosevelt, AZ 85545, telephone (928) 467-2241, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of Tonto National Monument, Roosevelt, AZ. The human remains were removed from Tonto National Monument, Gila County, AZ.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the Superintendent, Tonto National Monument.
A detailed assessment of the human remains was made during a region-wide, multi-park process by Tonto National Monument professional staff in consultation with representatives of the Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona; Gila River Indian Community of the Gila River Indian Reservation, Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Moapa Band of Paiute Indians of the Moapa River Indian Reservation, Nevada; Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes) (formerly Paiute Indian Tribe of Utah (Cedar City Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes)); Paiute-Shoshone Tribe of the Fallon Reservation and Colony, Nevada; Pueblo of Santa Ana, New Mexico; Pueblo of Santa Clara, New Mexico; Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; San Juan Southern Paiute Tribe of Arizona; Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado; Tohono O'odham Nation of Arizona; Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah; and Utu Utu Gwaitu Paiute Tribe of the Benton Paiute Reservation, California (hereafter referred to as “The Consulted Tribes”).
The following tribes were invited to consult but did not participate in the face-to-face consultation meeting: Apache Tribe of Oklahoma; Arapaho Tribe of the Wind River Reservation, Wyoming; Big Pine Paiute Tribe of the Owens Valley (previously listed as the Big Pine Band of Owens Valley Paiute Shoshone Indians of the Big Pine Reservation, California); Bishop Paiute Tribe (previously listed as the Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony, California); Bridgeport Indian Colony (previously listed as the Bridgeport Paiute Indian Colony of California); Burns Paiute Tribe (previously listed as the Burns Paiute Tribe of the Burns Paiute Indian Colony of Oregon); Cheyenne and Arapaho Tribes, Oklahoma (previously listed as the Cheyenne-Arapaho Tribes of Oklahoma); Comanche Nation, Oklahoma; Fort Independence Indian Community of Paiute Indians of the Fort Independence Reservation, California; Fort McDermitt Paiute and Shoshone Tribes of the Fort McDermitt Indian Reservation, Nevada and Oregon; Fort McDowell Yavapai Nation, Arizona; Fort Sill Apache Tribe of Oklahoma; Hopi Tribe of Arizona; Jicarilla Apache Nation, New Mexico; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona; Kewa Pueblo, New Mexico (previously listed as the Pueblo of Santo Domingo); Kiowa Indian Tribe of Oklahoma; Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony, Nevada; Lone Pine Paiute-Shoshone Tribe (previously listed as the Paiute-Shoshone Indians of the Lone Pine Community of the Lone Pine Reservation, California); Lovelock Paiute Tribe of the Lovelock Indian Colony, Nevada; Navajo Nation, Arizona, New Mexico & Utah; Ohkay Owingeh, New Mexico (previously listed as the Pueblo of San Juan); Pueblo of Acoma, New Mexico; Pueblo of Cochiti, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Jemez, New Mexico; Pueblo of Laguna, New Mexico; Pueblo of Nambe, New Mexico; Pueblo of Picuris, New Mexico; Pueblo of
At unknown dates, human remains representing, at minimum, two individuals were removed from unknown locations in Gila County, AZ. The human remains were found in Tonto National Monument's collections storage area and so were likely removed from sites within the boundaries of Tonto National Monument. No known individuals were identified. No associated funerary objects are present.
Officials of Tonto National Monument have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on osteological analysis and the known archeological context of Tonto National Monument.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of two individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains were removed is the aboriginal land of the Apache Tribe of Oklahoma; Fort McDowell Yavapai Nation, Arizona; Fort Sill Apache Tribe of Oklahoma; Jicarilla Apache Nation, New Mexico; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona; and Yavapai-Prescott Indian Tribe (previously listed as the Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona).
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains were removed is the aboriginal land of the Apache Tribe of Oklahoma; Fort Sill Apache Tribe of Oklahoma; Jicarilla Apache Nation, New Mexico; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Tonto Apache Tribe of Arizona; and White Mountain Apache Tribe of the Fort Apache Reservation, Arizona.
• Other credible lines of evidence, including relevant and authoritative governmental determinations and information gathered during government-to-government consultation from subject matter experts, indicate that the land from which the Native American human remains were removed is the aboriginal land of the Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona; Gila River Indian Community of the Gila River Indian Reservation, Arizona; Hopi Tribe of Arizona; Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; and Zuni Tribe of the Zuni Reservation, New Mexico.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains may be to the Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona; Apache Tribe of Oklahoma; Fort McDowell Yavapai Nation, Arizona; Fort Sill Apache Tribe of Oklahoma; Gila River Indian Community of the Gila River Indian Reservation, Arizona; Hopi Tribe of Arizona; Jicarilla Apache Nation, New Mexico; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona; Yavapai-Prescott Indian Tribe (previously listed as the Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona); and Zuni Tribe of the Zuni Reservation, New Mexico.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Duane Hubbard, Acting Superintendent, Tonto National Monument, 26260 N AZ Hwy 188, Lot 2, Roosevelt, AZ 85545, telephone (928) 467-2241, email
Tonto National Monument is responsible for notifying The Consulted Tribes and The Invited Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The Arizona State Museum, University of Arizona, has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the Arizona State Museum, University of Arizona. If no additional requestors come forward, transfer of control of the human remains to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the Arizona State Museum, University of Arizona at the address in this notice by February 18, 2014.
John McClelland, NAGPRA Coordinator, Arizona State Museum, University of Arizona, P.O. Box 210026, Tucson, AZ 85721, telephone (520) 626-2950.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the Arizona State Museum, University of Arizona, Tucson, AZ. The human remains were removed from an unknown location in Tennessee.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Arizona State Museum professional staff in consultation with representatives of the Cherokee Nation, Eastern Band of Cherokee Indians, Eastern Shawnee Tribe of Oklahoma, Poarch Band of Creeks (previously listed as the Poarch Band of Creek Indians of Alabama), The Chickasaw Nation, The Muscogee (Creek) Nation, The Quapaw Tribe of Indians, Thlopthloco Tribal Town, and the United Keetoowah Band of Cherokee Indians in Oklahoma.
In 1997, human remains representing, at minimum, one individual were removed from a private residence in Maricopa County, AZ, by the Phoenix Police Department. It was determined that the human remains had been obtained on an unknown date from an unknown archeological site in Tennessee. It was suggested that the site was about 700 years old, but no further information is available. In 1999, the human remains were transferred from the Maricopa County Medical Examiner's Office to the Arizona State Museum. No known individuals were identified. No associated funerary objects are present.
Officials of the Arizona State Museum, University of Arizona have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on morphological characteristics of the cranium, the condition of the remains, and the suggested antiquity of the site.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains were removed is the aboriginal land of the Cherokee Nation, Eastern Band of Cherokee Indians, and United Keetoowah Band of Cherokee Indians in Oklahoma.
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains were removed is the aboriginal land of the Cherokee Nation, Eastern Band of Cherokee Indians, The Chickasaw Nation, and United Keetoowah Band of Cherokee Indians in Oklahoma.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains may be to the Cherokee Nation, Eastern Band of Cherokee Indians, The Chickasaw Nation, and United Keetoowah Band of Cherokee Indians in Oklahoma.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to John McClelland, NAGPRA Coordinator, Arizona State Museum, University of Arizona, P.O. Box 210026, Tucson, AZ 85721, telephone (520) 626-2950, by February 18, 2014. After that date, if no additional requestors have come forward, transfer of control of the human remains to the Cherokee Nation, Eastern Band of Cherokee Indians, The Chickasaw Nation, and United Keetoowah Band of Cherokee Indians in Oklahoma may proceed.
The Arizona State Museum is responsible for notifying the Cherokee Nation, Eastern Band of Cherokee Indians, The Chickasaw Nation, and United Keetoowah Band of Cherokee Indians in Oklahoma that this notice has been published.
National Park Service, Interior.
Notice.
The Thomas Burke Memorial Washington State Museum, University of Washington (Burke Museum), has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the Burke Museum. If no additional requestors come forward, transfer of control of the human remains to the Indian tribes or Native Hawaiian
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the Burke Museum at the address in this notice by February 18, 2014.
Peter Lape, Burke Museum, University of Washington, Box 353010, Seattle, WA 98195-3010, telephone (206) 685-3849, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the Burke Museum. The human remains were removed from an unknown location in Sandpoint, ID.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Burke Museum professional staff in consultation with representatives of the Coeur D'Alene Tribe (previously listed as the Coeur D'Alene Tribe of the Coeur D'Alene Reservation, Idaho); Confederated Salish and Kootenai Tribes of the Flathead Reservation; Kalispel Indian Community of the Kalispel Reservation; Kootenai Tribe of Idaho; and the Lower Pend D'Oreille Tribe of Indians, a non-Federally recognized Indian group (hereafter referred to as “Consulted Tribes and Group”).
In 1949, human remains representing, at minimum, one individual were removed from Sandpoint in Bonner County, ID. The human remains were removed by Mr. Clark Craig and donated to the Burke Museum in 1950 (Burke Accn. #3607). No known individuals were identified. No associated funerary objects are present.
Officials of the Burke Museum have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on osteological evidence.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains were removed is the aboriginal land of Kalispel Indian Community of the Kalispel Reservation.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains may be to Kalispel Indian Community of the Kalispel Reservation.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Peter Lape, Burke Museum, University of Washington, Box 353010, Seattle, WA 98195-3010, telephone (206) 685-3849, email
The Burke Museum is responsible for notifying the Consulted Tribes and Group that this notice has been published.
National Park Service, Interior.
Notice.
The American Museum of Natural History has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the American Museum of Natural History. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the American Museum of Natural History at the address in this notice by February 18, 2014.
Nell Murphy, Director of Cultural Resources, American Museum of Natural History, Central Park West at 79th Street, New York, NY 10024-5192, telephone (212) 769-5837, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the American Museum of Natural History, New York, NY. The human remains and associated funerary objects were removed from the Sebonac site, Shinnecock Hills, Suffolk County, NY.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the American Museum of Natural History professional staff in consultation with representatives of Cayuga Nation; Delaware Tribe of Indians; Mashantucket Pequot Tribe (previously listed as the Mashantucket Pequot Tribe of Connecticut); Mohegan Indian Tribe of Connecticut; Narragansett Indian Tribe; Oneida Nation of New York; Oneida Tribe of Indians of Wisconsin; Onondaga Nation; Seneca Nation of Indians (previously listed as the Seneca Nation of New York); Seneca-Cayuga Tribe of Oklahoma; Shinnecock Indian Nation; Saint Regis Mohawk Tribe (previously listed as the St. Regis Band of Mohawk Indians of New York); Stockbridge-Munsee Community, Wisconsin; Tuscarora Nation; and the Wampanoag Tribe of Gay Head (Aquinnah).
In 1902, human remains representing, at minimum, 15 individuals, including 1 adult female, 1 adult of unknown sex, and 13 subadults of unknown sex, were removed from the Sebonac site, Shinnecock Hills, Suffolk County, NY, during Raymond M. Harrington's excavations, sponsored by Frederick Ward Putnam and the American Museum of Natural History. No known individuals were identified. The 76 associated funerary objects are 46 ceramic sherds, 6 pieces of chipped stone, 22 pieces of non-human bone, 1 ground stone vessel fragment, and 1 turtle shell cup.
These remains have not been directly dated. Thermoluminescence dating of a cord-marked sherd associated with a wigwam floor at Sebonac yielded a date of A.D. 1405±101, but it is not clear that this sherd was associated with the human remains included in this inventory. The site falls within the Late Woodland Sebonac phase, and we thus infer that the human remains are Late Woodland in age. The Sebonac culture persisted into protohistoric and possibly post-contact period. Sebonac was located in the contact period territory of the Shinnecock Indians and the archeology and oral tradition indicates considerable continuity for the Shinnecock in this area. During consultation, Shinnecock informants pointed to oral traditions that reflect continuity in Shinnecock house structures as recently as the mid-19th century as well as similarities in subsistence practices evidenced at the Sebonac site, such as cooking shellfish in subterranean baking pits, a practice that has endured among the present-day Shinnecock.
Officials of the American Museum of Natural History have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 15 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 76 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Shinnecock Indian Nation.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Nell Murphy, Director of Cultural Resources, American Museum of Natural History, Central Park West at 79th Street, New York, NY 10024-5192, telephone (212) 769-5837, email
The American Museum of Natural History is responsible for notifying the Cayuga Nation; Delaware Tribe of Indians; Mashantucket Pequot Tribe (previously listed as the Mashantucket Pequot Tribe of Connecticut); Mohegan Indian Tribe of Connecticut; Narragansett Indian Tribe; Oneida Nation of New York; Oneida Tribe of Indians of Wisconsin; Onondaga Nation; Seneca Nation of Indians (previously listed as the Seneca Nation of New York); Seneca-Cayuga Tribe of Oklahoma; Shinnecock Indian Nation; Saint Regis Mohawk Tribe (previously listed as the St. Regis Band of Mohawk Indians of New York); Stockbridge-Munsee Community, Wisconsin; Tuscarora Nation; and the Wampanoag Tribe of Gay Head (Aquinnah) that this notice has been published.
National Park Service, Interior.
Notice.
The Tennessee Valley Authority (TVA) has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Federally recognized Indian tribes, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and a present-day Federally recognized Indian tribe. Lineal descendants or representatives of any Federally recognized Indian tribe not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to TVA. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the Federally recognized Indian tribe stated in this notice may proceed.
Lineal descendants or representatives of any Federally recognized Indian tribe not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to TVA at the address in this notice by February 18, 2014.
Dr. Thomas O. Maher, TVA, 400 West Summit Hill Drive, WT11D, Knoxville, TN 37902-1401, telephone (865) 632-7458, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of TVA. The human remains and associated funerary objects were removed from the Rudder site in Jackson County, AL.
This notice is published as part of the National Park Service's administrative
A detailed assessment of the human remains was made by TVA professional staff in consultation with representatives of the University of Alabama and the Absentee-Shawnee Tribe of Oklahoma; Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas); Alabama-Quassarte Tribal Town; Cherokee Nation; Eastern Band of Cherokee Indians; Eastern Shawnee Tribe of Oklahoma; Kialegee Tribal Town; Poarch Band of Creeks (previously listed as the Poarch Band of Creek Indians of Alabama); Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)); Shawnee Tribe; The Chickasaw Nation; The Muscogee (Creek) Nation; The Seminole Nation of Oklahoma; Thlopthlocco Tribal Town; and the United Keetoowah Band of Cherokee Indians in Oklahoma.
From March 13 to November 14, 1939, human remains representing, at minimum, 67 individuals were removed from the Rudder site (1JA180), in Jackson County, AL. The Rudder site was excavated as part of TVA's Guntersville reservoir project by the Alabama Museum of Natural History (AMNH) at the University of Alabama, using labor and funds provided by the Works Progress Administration. Excavation of the land commenced after TVA had acquired this land for the Guntersville project. The excavation site was composed of a truncated trapezoidal mound with multiple construction periods and a smaller mound containing most of the burial units. This site was occupied during the Henry Island phase of the Mississippian culture (ca. A.D. 1200-1400). Details regarding this site may be found in
Although there is no scientific certainty that Native Americans of the Henry Island phase are directly related to modern Federally recognized tribes, Spanish and French explorers of the 16th and 17th centuries do indicate the presence chiefdom level tribal entities in the southeastern United States. The Coosa paramount chiefdom noted in historical chronicles is the most likely entity related to Henry Island phase sites in this part of the Guntersville Reservoir. Tribal groups or towns now part of The Muscogee (Creek) Nation claim descent from the Coosa chiefdom. The preponderance of the evidence indicates that in this part of the Guntersville Reservoir area, Henry Island phase sites are most likely culturally associated with groups now part of the Muscogee (Creek) Nation.
Officials of TVA have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 67 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 6,122 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and The Muscogee (Creek) Nation.
Lineal descendants or representatives of any Federally recognized Indian tribe not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Dr. Thomas O. Maher, TVA, 400 West Summit Hill Drive, WT11D, Knoxville, TN 37902-1401, telephone (865) 632-7458, email
TVA is responsible for notifying the University of Alabama and the Absentee-Shawnee Tribe of Oklahoma; Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas); Alabama-Quassarte Tribal Town; Cherokee Nation; Eastern Band of Cherokee Indians; Eastern Shawnee Tribe of Oklahoma; Kialegee Tribal Town; Poarch Band of Creeks (previously listed as the Poarch Band of Creek Indians of Alabama); Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)); Shawnee Tribe; The Chickasaw Nation; The Muscogee (Creek) Nation; The Seminole Nation of Oklahoma; Thlopthlocco Tribal Town; and the United Keetoowah Band of Cherokee Indians in Oklahoma, that this notice has been published.
National Park Service, Interior.
Notice.
The Thomas Burke Memorial Washington State Museum, University of Washington (Burke Museum), has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Burke Museum at the address in this notice by February 18, 2014.
Peter Lape, Burke Museum, University of Washington, Box 353010, Seattle, WA 98195, telephone (206) 685-3849, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the Burke Museum. The human remains and associated funerary objects were removed from Grays Harbor County, WA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains and associated funerary objects was made by the Burke Museum professional staff in consultation with representatives of the Confederated Tribes of the Chehalis Reservation and the Quinault Indian Nation (previously listed as the Quinault Tribe of the Quinault Reservation, Washington).
In 1947, human remains representing, at minimum, four individuals were removed from Grays Harbor County, WA. The human remains and associated funerary objects were collected on an expedition led by Richard Daugherty, as a part of a survey of Grays Harbor County. Three of these individuals are possibly from a site designated by Daugherty as UW Site 15, which was on the Minard Ranch (45-GH-15). This site corresponds with the Native American town of Oyhut. The provenience of the fourth individual collected by Daugherty during his survey of Grays Harbor County is unknown. The human remains and funerary objects were donated to the Burke Museum in 1947 (Burke Accn. #3583). Additional human remains and associated funerary objects from this site were previously published in Notices of Inventory Completion in the
In 1960, human remains representing, at minimum, one individual were removed from south of Ocean City in Grays Harbor County, WA. Michael Mattbey donated the remains to the Burke Museum in 1962 (Burke Accn. #1963-75). No known individuals were identified. No funerary objects are present.
Osteological and anthropological evidence indicates that the human remains are Native American. The Minard Ranch Site (45-GH-15) is located at or near the traditional Copalis village of Oyhut. The Copalis are a subgroup of the Lower Chehalis of Southwestern Coast Salish culture area. The Copalis speak the Quinault language, while other Lower Chehalis groups speak Lower Chehalis. The traditional territory of the Copalis encompasses the area surrounding the Copalis River and stretching southward to North Bay (Hajda 1990; Spier 1936). Archeological evidence at the site suggests the site was occupied from approximately 1,000 years before the present until the early 19th century. The Chehalis Reservation was created in 1864 for the Upper Chehalis, Cowlitz, and coastal groups south of Quinault, including the Lower Chehalis. Many Lower Chehalis chose not to be removed from their aboriginal land. Individuals of Lower Chehalis descent are also members of the Shoalwater Bay Indian Tribe of the Shoalwater Bay Indian Reservation (previously listed as the Shoalwater Bay Tribe of the Shoalwater Bay Indian Reservation, Washington) and the Quinault Indian Nation (previously listed as the Quinault Tribe of the Quinault Reservation, Washington). Today, the Lower Chehalis are represented by the Confederated Tribes of the Chehalis Reservation.
Officials of the Burke Museum have determined that:
• Based on anthropological and biological evidence, the human remains are Native American.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of five individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the seven objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Confederated Tribes of the Chehalis Reservation.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Peter Lape, Burke Museum, University of Washington, Box 353010, Seattle, WA 98195, telephone (206) 685-3849, email
The Burke Museum is responsible for notifying the Confederated Tribes of the Chehalis Reservation and the Quinault Indian Nation (previously listed as the Quinault Tribe of the Quinault Reservation, Washington) that this notice has been published.
National Park Service, Interior.
Notice.
The American Museum of Natural History has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the American Museum of Natural History. If no additional requestors come forward, transfer of control of the human remains to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the American Museum of Natural History at the address in this notice by February 18, 2014.
Nell Murphy, Director of Cultural Resources, American Museum of Natural History, Central Park West at 79th Street, New York, NY 10024-5192, telephone (212) 769-5837, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the American Museum of Natural History, New York, NY. The human remains are believed to have been removed from the Missouri River region, ND.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the American Museum of Natural History professional staff in consultation with representatives of the Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota.
On an unknown date, human remains representing, at minimum, 1 individual, were removed from what we believe to be the Missouri River region of North Dakota. The remains of one adult of unknown sex were found among the American Museum of Natural History's collections during a recent collections review. The American Museum of Natural History has no information on the circumstances of the acquisition of these remains. No known individuals were identified. No associated funerary objects are present. The individual has been identified as Native American based on museum documentation that refers to the remains as “Arikikara Indianer.”
These remains have not been directly dated and although no information regarding the initial recovery of these remains is available, a provenience tag reading “Arikikara Indianer Missouri” was present. “Arikikara” likely represents an alternate spelling of Arikara and the mention of Missouri likely denotes the portion of the Missouri River drainage included in Sahnish (Arikara) aboriginal lands.
Officials of the American Museum of Natural History have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 1 individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Nell Murphy, Director of Cultural Resources, American Museum of Natural History, Central Park West at 79th Street, New York, NY 10024-5192, telephone (212) 769-5837, email
The American Museum of Natural History is responsible for notifying the Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota, that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of Agriculture, Forest Service, Coconino National Forest and the Arizona State Museum, University of Arizona, have completed an inventory of human remains, in consultation with the appropriate Indian tribes, and have determined that there is a cultural affiliation between the human remains and a present-day Indian tribe. Lineal descendants or representatives of any Indian tribe not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the U.S. Department of Agriculture, Forest Service, Southwestern Region. If no additional requestors come forward, transfer of control of the human remains to the Indian tribes stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the U.S. Department of Agriculture, Forest Service, Southwestern Region at the address in this notice by February 18, 2014.
Dr. Frank E. Wozniak, NAGPRA Coordinator, Southwestern Region, USDA Forest Service, 333 Broadway Blvd. SE., Albuquerque, NM 87102, telephone (505) 842-3238, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the U.S. Department of Agriculture, Forest Service, Southwestern Region. The human remains were removed from the Big Park Ruin in Coconino County, AZ, and a site in the Sycamore Canyon Wilderness in the vicinity of Camp Verde, Yavapai County, AZ.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the U.S. Department of Agriculture, Forest Service, Coconino National Forest, and the Arizona State Museum professional staffs in consultation with representatives of the Hopi Tribe of Arizona.
In 1927, human remains representing, at minimum, one individual were removed from Big Park Ruin (Verde:2:1(GP)), Coconino County, AZ, during legally authorized excavations conducted by Gila Pueblo Foundation. The remains were transferred to the Arizona State Museum in early 1950s at the demise of the Gila Pueblo Foundation. No known individual was identified. There are no funerary objects associated with these remains.
In 1994, human remains representing, at minimum, one individual were found by hikers at a site in the Sycamore Canyon Wilderness near Camp Verde, Yavapai County, AZ, and subsequently removed by the Yavapai County Sheriff's Office and curated at Arizona State Museum since 1997. No known individual was identified. There are no funerary objects associated with these remains.
Big Park Ruin is a cliff dwelling located in the vicinity of the present day Oak Creek, AZ. The characteristics of material culture at this site indicate that this cliff dwelling is associated with the archeologically defined Southern Sinagua culture of north central Arizona. The material culture, architecture, and site organization indicate that the site was occupied between A.D. 1050 and 1200.
The site in the Sycamore Canyon Wilderness near Camp Verde is a prehistoric burial location. Prehistoric sites in Sycamore Canyon are associated with the archeologically defined Southern Sinagua Culture of north central Arizona. These sites were occupied between A.D. 1000 and 1200.
The Southern Sinagua culture is considered to be ancestral to the Hopi Tribe of Arizona. Oral traditions presented by representatives of the Hopi Tribe support cultural affiliation.
Officials of the U.S. Department of Agriculture, Forest Service, Southwestern Region have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of two individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Hopi Tribe of Arizona.
Lineal descendants or representatives of any Indian tribe not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Dr. Frank E. Wozniak, NAGPRA Coordinator, Southwestern Region, USDA Forest Service, 333 Broadway Blvd. SE., Albuquerque, NM 87102, telephone (505) 842-3238, email
The U.S. Department of Agriculture, Forest Service, Southwestern Region is responsible for notifying the Hopi Tribe of Arizona that this notice has been published.
National Park Service, Interior.
Notice.
The Field Museum of Natural History, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of sacred objects and objects of cultural patrimony. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to the Field Museum of Natural History. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to the Field Museum of Natural History at the address in this notice by February 18, 2014.
Helen Robbins, Repatriation Director, Field Museum of Natural History, 1400 South Lake Shore Drive, Chicago, IL 60605, telephone (312) 665-7317, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the Field Museum of Natural History, Chicago, IL, that meet the definition of sacred objects and objects of cultural patrimony under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
The two cultural items are Tlingit ceremonial items collected near Juneau, AK, in the mid- to late 1800s.
In 1902, the Field Museum of Natural History (Field Museum) purchased a large collection of Tlingit cultural items from George Thornton Emmons known as the Spuhn Collection. It is unknown whether Emmons or Carl Spuhn, a manager with the Northwest Trading Company, originally acquired the two cultural items. The requested items consist of a large wooden box drum painted with the design of a wolf (Wolf Drum) and a steel, double-bladed dagger decorated with a design of a shark (Shark Dagger). Field Museum records indicate that the Wolf Drum was acquired sometime before 1900 from a Chief of the Taku Tribe who originally lived at Taku Harbor, AK, and who later moved to Gastineau Channel below Juneau. Field Museum records indicate that the Shark Dagger was acquired before 1900, and came from the Auk tribe living in Juneau, AK. The short upper blade is ornamented as a ground shark which was the totemic emblem of the family of the owner. Its eyes and teeth are embellished with Abalone shell. The dagger appears to be hafted, in part, with copper.
The cultural affiliation of the Wolf Drum is Taku Tlingit as indicated through museum records and consultation with representatives of the Central Council of the Tlingit & Haida Indian Tribes (Central Council). The Central Council has requested the Drum on behalf of the
The 2 cultural items have been identified as Native American sacred objects and objects of cultural patrimony through museum records, scholarly publications, primary documents, and consultation information provided by representatives of Central Council.
Officials of the Field Museum have determined that:
• Pursuant to 25 U.S.C. 3001(3)(C), the two cultural items described above are specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.
• Pursuant to 25 U.S.C. 3001(3)(D), the two cultural items described above have ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the sacred objects and objects of cultural patrimony and the Central Council of the Tlingit & Haida Indian Tribes.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Helen Robbins, Repatriation Director, Field Museum of Natural History, 1400 South Lake Shore Drive, Chicago, IL 60605, telephone (312) 665-7317, email
The Field Museum is responsible for notifying the Central Council of the Tlingit & Haida Indian Tribes and the Douglas Indian Association.
National Park Service, Interior.
Notice.
The Tennessee Valley Authority (TVA), in consultation with the appropriate Federally recognized Indian tribes has determined that the cultural items listed in this notice meet the definition of unassociated funerary objects. Lineal descendants or representatives of any Federally recognized Indian tribe not identified in this notice that wish to claim these cultural items should submit a written request to the TVA. If no additional claimants come forward, transfer of control of the cultural items to the Federally recognized Indian tribe stated in this notice may proceed.
Lineal descendants or representatives of any Federally recognized Indian tribe not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to TVA at the address in this notice by February 18, 2014.
Dr. Thomas O. Maher, TVA, 400 West Summit Hill Drive, WT11D, Knoxville, TN 37902-1401, telephone (865) 632-7458, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of TVA that meet the definition of unassociated funerary objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
From March 13 to November 14, 1939, 205 cultural items were removed from the Rudder site (1JA180), in Jackson County, AL. The Rudder site was excavated as part of TVA's Guntersville reservoir project by the Alabama Museum of Natural History (AMNH) at the University of Alabama, using labor and funds provided by the Works Progress Administration. Excavation of the land commenced after TVA had acquired this land for the Guntersville project. The excavation site was composed of a truncated trapezoidal mound w ith multiple construction periods and a smaller mound containing most of the burial units. This site was occupied during the Henry Island phase of the Mississippian culture (ca. A.D. 1200-1400). Details regarding this site may be found in
These unassociated funerary objects were recovered from six burial features. The human remains from these burial features were either not collected during excavation or have been misplaced in the last 74 years. These burial features, however, were derived from Henry Island phase strata in the mounds at this site. These unassociated funerary objects are, therefore, from Mississippian culture burials.
Although there is no scientific certainty that Native Americans of the Henry Island phase are directly related to modern Federally recognized tribes, Spanish and French explorers of the 16th and 17th centuries do indicate the presence chiefdom level tribal entities in the southeastern United States. The Coosa paramount chiefdom noted in historical chronicles is the most likely entity related to Henry Island phase sites in this part of the Guntersville Reservoir. Tribal groups or towns now part of The Muscogee (Creek) Nation claim descent from the Coosa chiefdom. The preponderance of the evidence indicates that in this part of the Guntersville Reservoir area, Henry Island phase sites are most likely culturally associated with groups now part of the Muscogee (Creek) Nation.
Officials of TVA have determined that:
• Pursuant to 25 U.S.C. 3001(3)(B), the 205 cultural items described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from the specific burial sites of a Native American individuals.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and The Muscogee (Creek) Nation.
Lineal descendants or representatives of any Federally recognized Indian tribe not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Dr. Thomas O. Maher, TVA, 400 West Summit Hill Drive, WT11D, Knoxville, TN 37902-1401, telephone (865) 632-7458, email
TVA is responsible for notifying the University of Alabama and the Absentee-Shawnee Tribe of Oklahoma; Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas); Alabama-Quassarte Tribal Town; Cherokee Nation; Eastern Band of Cherokee Indians; Eastern Shawnee Tribe of Oklahoma; Kialegee Tribal Town; Poarch Band of Creeks (previously listed as the Poarch Band of Creek Indians of Alabama); Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)); Shawnee Tribe; The Chickasaw Nation; The Muscogee (Creek) Nation; The Seminole Nation of Oklahoma; Thlopthlocco Tribal Town; and the United Keetoowah Band of Cherokee Indians in Oklahoma, that this notice has been published.
On the basis of the record
The Commission instituted this investigation effective November 15, 2012, following receipt of a petition filed with the Commission and Commerce by Utah Refractories Corp., Lehi, UT. The final phase of the investigation was scheduled by the Commission following notification of a preliminary determination by Commerce that imports of silica bricks and shapes from China were being sold at LTFV within the meaning of section 733(b) of the Act (19 U.S.C. 1673b(b)). Notice of the scheduling of the final phase of the Commission's investigation and of a public hearing to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission transmitted its determination in this investigation to the Secretary of Commerce on January 9, 2014. The views of the Commission are contained in USITC Publication 4443 (January 2014), entitled
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of full reviews pursuant to section 751(c)(5) of the Tariff Act of 1930 (19 U.S.C. 1675(c)(5)) (the Act) to determine whether revocation of the countervailing duty order on PET film from India and/or revocation of the antidumping duty orders on PET film from India and Taiwan would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. The Commission has determined to exercise its authority to extend the review period by up to 90 days pursuant to 19 U.S.C. 1675(c)(5)(B). For further information concerning the conduct of this review and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
Cynthia Trainor (202-205-3354), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the reviews must be served on all other parties to the reviews (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These reviews are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, Stipulation and Competitive Impact Statement have been filed with the United States District Court for the District of Columbia in
Copies of the Complaint, proposed Final Judgment and Competitive Impact Statement are available for inspection at the Department of Justice, Antitrust Division, Antitrust Documents Group, 450 Fifth Street NW., Suite 1010, Washington, DC 20530 (telephone: 202-514-2481), on the U.S. Department of Justice's Web site at
Public comment is invited within 60 days of the date of this notice. Such comments, including the name of the submitter, and responses thereto, will be posted on the U.S. Department of Justice, Antitrust Division's Internet Web site, filed with the Court and, under certain circumstances, published in the
The United States of America, acting under the Attorney General of the United States, brings this civil antitrust action seeking equitable relief to remedy the actual and potential anticompetitive effects of the September 2012 acquisition by Defendant Heraeus Electro-Nite Co., LLC (“Heraeus”) of substantially all of the assets of Midwest Instrument Company, Inc. (“Minco”). The United States alleges as follows:
1. In 2012, Defendant Heraeus surveyed the U.S. market for single-use sensors and instruments used to measure and monitor the temperature and chemical composition of molten steel (“S&I”) and found that its once-commanding 85% market share had been reduced to an estimated 60%, while its closest competitor, Minco, had gained substantially, reaching about a 35% share. Consequently, Heraeus decided to restore its “market leadership” in the United States by acquiring Minco and thereby eliminating Minco's production capacity. The acquisition removed significant head-to-head competition between Minco and Heraeus on price, innovation and service, and created a near-monopoly in the supply of S&I in the United States. Accordingly, Heraeus' acquisition of Minco's assets was unlawful and violated Section 7 of the Clayton Act, 15 U.S.C. § 18.
2. Nearly 100 million tons of steel were produced in the United States in 2012. Steelmaking is a continuous process during which the chemistry and temperature of each batch of steel must be measured and monitored in order to ensure the quality, reliability, and consistency of the finished steel, as well as the safety and efficiency of the manufacturing operation. S&I products are integral to the steel making process; indeed, steel makers cannot produce steel without using the S&I that is developed, produced and sold by companies such as Heraeus and, previously, Minco. Steel companies also rely on S&I suppliers as virtual partners in the steel-making process.
3. Heraeus became the dominant S&I supplier in the United States after it acquired its main rival, Leeds & Northrup (“L&N”), in 1995.
4. Until the mid-1990s, Minco was a small company that supplied low-end equipment to steel mill chemistry labs. Heraeus' acquisition of L&N left steel mill customers looking for alternatives. As a result, Minco made a strategic decision to enter the high-tech, higher-end of the market and offer customers an alternative to Heraeus. Over a period of years, Minco slowly gained market share by offering superior customer service and innovation. In 2010, as the steel industry recovered from the economic downturn, Minco sales increased significantly when it introduced user-friendly, innovative products, such as a combination 3-in-1 sensor and a wireless transmitter. By 2012, Minco's market share had increased to 35%, while Heraeus' market share had decreased to about 60%.
5. Given the competitive threat presented by Minco, Heraeus' parent company determined in July 2012 that that the acquisition of Minco presented the “[o]pportunity to improve and defend [Heraeus'] position in the North American market.”
6. Accordingly, Heraeus acquired substantially all of Minco's assets on September 7, 2012. The transaction was not reportable under the filing thresholds of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and therefore was not subject to antitrust review prior to being consummated. Instead, the transaction was brought to the attention of the United States Department of Justice after the fact by customers concerned that the acquisition of Minco by Heraeus substantially lessened competition in the S&I market in the United States.
7. Defendant Heraeus, a Delaware corporation with its headquarters in Langhorne, Pennsylvania, is a subsidiary of Heraeus Electro-Nite International N.V. (“HEN”), a Belgian company, which itself is a subsidiary of Heraeus Holding GmbH, a privately held German corporation based in Hanau, Germany. HEN's U.S. subsidiary Heraeus had approximately $92 million in revenue in fiscal year 2011.
8. Prior to being acquired by Heraeus, Minco was a privately held company headquartered in Hartland, Wisconsin that sold S&I. In 2011, Minco's U.S. revenues were approximately $29 million. Minco's manufacturing facilities were located in Hartland, Wisconsin, Johnson City, Tennessee and Monterrey, Mexico.
9. On September 7, 2012, Heraeus and Minco completed a $42 million asset sale whereby Heraeus acquired all of Minco's business engaged in the development, production, sale, and service of S&I in the United States and certain other countries, including Canada, Brazil and Australia.
10. The United States brings this action against Defendant Heraeus under Section 15 of the Clayton Act, 15 U.S.C. § 25, as amended, to prevent and restrain Heraeus from continuing to violate Section 7 of the Clayton Act, 15 U.S.C. § 18.
11. Heraeus sells S&I in the flow of interstate commerce, and its development, production, sale, and service of S&I substantially affects interstate commerce. This Court has subject matter jurisdiction over this action and over Heraeus pursuant to Section 15 of the Clayton Act, 15 U.S.C. § 25, 28 U.S.C. §§ 1331 and 1337(a) and 1345.
12. Heraeus has consented to personal jurisdiction and venue in this District.
13. The temperature and chemical composition of molten steel must be measured and monitored throughout the steel-making process. Each stage of production has specific chemical concentration and temperature requirements. The accuracy, reproducibility and reliability of molten steel temperature measurements and chemical properties directly influence the quality of the end product, as well as the safety and productivity of the steel mill. As the finished steel product may be used in demanding applications, such as steel beams for a building or automotive exterior panels, steel mills must ensure the molten steel exactly meets the required specifications. Testing and sampling the molten steel to ensure that it meets these specifications is a critical aspect of the steel-making process. S&I systems play a vitally important role in this essential aspect of the steel-making process.
14. An S&I system consists of four basic parts: (1) The single-use sensor; (2) the cardboard tube; (3) the pole; and (4) the instrument, or display. The single-use sensor, typically encased in heavy paper or cardboard and attached to a cardboard tube, contains the actual measurement device. The cardboard encasement provides momentary protection to allow the single-use sensor to transmit a reading to the instrument before the heat from the molten steel consumes the sensor. For standard single-use sensors, the cardboard tube is attached to a long, hollow metal pole that allows a steel mill worker safely to dip the sensor into the liquid steel to obtain the desired measurement. The instrument is a specialized electronic component or computer that interprets the signal from the single-use sensor and displays the temperature or chemical content measurement on a display screen or print-out. Unlike the single-use sensor, which is consumed by the molten steel, the instrument is a long-lived component that can be used for years.
15. S&I are used to monitor temperature, oxygen content, steel and slag chemistry, hydrogen concentration and the carbon content of molten steel and are differentiated primarily by the type of sensor used. A particular steel mill may utilize one type or multiple types of S&I during a particular batch, depending upon its proprietary steel-making process and the specifications of the steel's end use. The three main categories of S&I used by steel mills are thermocouples, sensors and samplers, though “combination” sensors are designed to conduct two or more tests at once.
a.
b.
c.
16. Although single-use sensors appear to be simple, each one consists of tiny platinum wires and specialized electronic controls. The lowest-priced single-use sensors may be one to two dollars per unit, while higher-end single-use sensors may be priced at ten to twenty dollars per unit.
17. The high temperature and harsh environment of the furnace necessitates the use of S&I capable of reliable, accurate measurement in extreme conditions. Temperatures in the furnace can approach or exceed 3,000 degrees Fahrenheit, and a variation of only 20 to 30 degrees can critically affect the quality and properties of the final steel product. Failure of a single-use sensor can have catastrophic results. For example, if the molten steel overheats, the steel can melt through the vessel or “break-out,” which is extremely dangerous and costly. Similarly, if the molten steel cools too quickly, or has the wrong chemical composition, it may slow or stall the production process and/or produce low-quality steel. The failure of a single-use sensor can thus potentially cost a steel mill hundreds of thousands of dollars whenever the steel fails to meet the desired physical characteristics and specifications.
18. Single-use sensors are the consumable component of the S&I system. Because single-use sensors are used continuously in the steel-making process, steel mills can use hundreds of units daily and up to millions of units annually. S&I suppliers must therefore be capable of producing thousands of these high-precision, high-reliability products daily at a very low cost.
19. Within the broad category of S&I, each type of single-use sensor performs a distinct function and cannot be substituted for another type of sensor or a different type of measuring device. For example, a hydrogen sensor cannot detect temperature and a thermocouple does not detect hydrogen. Accordingly, single-use sensors are not interchangeable or substitutable for one another. There is separate demand for thermocouples, oxygen sensors, carbon sensors, hydrogen sensors, and other sensors. In the event of a small but significant price increase for a given type of single-use sensor, customers would not stop using that sensor in sufficient numbers so as to defeat the price increase. Thus, each type of S&I is a separate line of commerce and a relevant product market within the meaning of Section 7 of the Clayton Act.
20. Each steel-making customer purchases a different mix of S&I to suit the specific needs of its steel mill, steel-making process, and application. Prior to the acquisition, Minco and Heraeus produced a full range of S&I and were, by far, the two producers with the largest market shares for each individual product. Minco and Heraeus competed across the full product line of S&I and typically provided customers with a mix of various single-use thermocouples, sensors and samplers. Although numerous narrower product markets also may be defined, the competitive dynamic for each individual single-use thermocouple, sensor and sampler is nearly identical. Therefore, these products can all be aggregated for analytical convenience into a single relevant product market for the purpose of assigning market shares and evaluating the competitive impact of the acquisition. Accordingly, the development, production, sale and service of S&I is a line of commerce and a relevant product market within the meaning of Section 7 of the Clayton Act.
21. The United States is a relevant geographic market because suppliers of S&I cannot make sales in the United States without having a U.S. service and sales network and U.S. manufacturing presence. The consumable portion of S&I consists of a single-use sensor and a cardboard tube. A single-use sensor is small and light and can be shipped economically from overseas. However, the cardboard tubes for S&I can be four to eight feet long and are mostly air. They have a low value-to-volume ratio, so they cannot be shipped from overseas economically. For this reason, Heraeus, Minco and the one other existing U.S. competitor manufacture finished S&I in the United States.
22. Steel manufacturers can use up to hundreds of single-use sensors each day. The steel manufacturers are staffed leanly and do not employ in-house technicians or engineers to service S&I. A defective single-use sensor or malfunctioning instrument can shut down an entire steel line, so the steel manufacturers rely on the S&I suppliers to provide on-site technical service and support that is on call at all times. Heraeus and Minco have provided experienced service technicians and product engineers on-site to assist with inventory management, trouble-shooting, calibration, and other critical services. These service technicians and product engineers routinely visit a busy mill multiple times per week and often increase the number of their visits when the mill is implementing a new process or is having trouble with a particular S&I. These service technicians also make service calls in the middle of the night to fix a problem that has shut down a line. Service and technical support have been critical to the success of Heraeus and Minco in selling S&I in the United States.
23. Given that (1) it is uneconomic to ship fully assembled S&I from overseas to the
24. Heraeus' acquisition of Minco greatly increased the already high level of concentration in the S&I market in the United States. Concentration in relevant markets typically is measured by the Herfindahl-Hirschman Index (“HHI”) (defined and explained in Appendix A). The more concentrated a market, and the more a transaction would increase concentration in a market, the greater the likelihood that the transaction will result in a meaningful reduction in competition. Markets in which the HHI is in excess of 2500 points are considered highly concentrated, and an increase in concentration by 150 points or more is considered significant.
25. Prior to the acquisition, Heraeus had a 60% market share, Minco had a 35% market share and a third firm had the remaining 5% market share. The pre-acquisition HHI was 4850, and the post-acquisition HHI is 9050, an increase of 4200. The pre- and post-acquisition market concentration measures demonstrate that Heraeus' acquisition of Minco is presumptively anticompetitive.
26. Prior to the acquisition, U.S. customers could turn to Minco as a viable alternative source of S&I, which forced Heraeus to compete with Minco on price, service and innovation. Customers benefitted from this robust competition between Heraeus and Minco.
27. Heraeus became the dominant supplier in the United States by acquiring its competitor L&N in 1995. Around 2000, Heraeus owned 85% of the S&I market in the United States.
28. In or about 1994, Minco decided to build its own research furnace to facilitate its product development. In 2000, after several years of development, Minco began introducing high-tech products in order to compete against Heraeus. Over the next several years, Minco began selling an oxygen sensor, a hydrogen sensor and a modern instrument based on the familiar Microsoft Windows software. Minco's “Big 3” product innovations helped it to gain acceptance with steel mill customers that produce higher grades of steel. Minco expressly marketed itself to customers as a service-oriented, high-quality alternative to the dominant Heraeus and dedicated significant effort and resources toward meeting this standard. During the 2000s, Minco chipped away at Heraeus' share by competing on price, service and technology.
29. After slowly gaining market share throughout the 2000s, Minco broke through in 2010 when it introduced two more innovations that significantly raised its profile and threatened what Heraeus called its market “leadership.” First, Minco introduced its combination 3-in-1 sensor head, which both increased plant efficiency and reduced the risk to steel mill workers by reducing the number of necessary measurements.
30. Second, Minco introduced its wireless transmitter, which sends the sensor's signal from the pole to the instrument. Customers viewed this technology as a “game-changer” because it eliminated a cable dragging along the floor of the steel-making facility. This innovation enhanced worker safety by eliminating a tripping hazard, and it also saved customers money because the long cables need to be replaced frequently.
31. Prior to the acquisition, Minco and Heraeus competed head-to-head on price. Post-acquisition, Heraeus' steel mill customers are vulnerable to price increases because of the critical function of S&I and their small cost relative to the value of the finished steel product. The lowest-priced single-use sensors may be one to two dollars per unit, while higher-end single-use sensors can be ten to twenty dollars per unit. Only a few dollars worth of single-use sensors are used in each batch of steel, which makes numerous tons of steel that sell for about $600 per ton at current prices. As a result, the per-ton cost of single-use sensors is measured in fractions of a percent of the sales price of finished steel. Moreover, because the process of making steel costs thousands of dollars per minute, any interruption of the steel-making process caused by a defective single-use sensor can be extremely costly.
32. Prior to the acquisition, Minco and Heraeus also competed to provide a high level of service to steel mills. Each company had service representatives that would visit the mills multiple times each week, sometimes daily at the largest mills, to repair equipment, perform routine maintenance, and train mill employees. Post-acquisition, Heraeus has the incentive to impose on customers less favorable terms of service than those that were provided before the acquisition. Thus, the acquisition likely has led to deterioration of service, longer delivery times and less certain delivery, which have imposed significant risks and delays on the U.S. steel industry. Indeed, Heraeus began cutting its marketing and service staff immediately after the acquisition.
33. Prior to the acquisition, Heraeus monitored Minco's innovative efforts and attempted to match or exceed Minco's offerings. Post-acquisition, Heraeus has less incentive to continue its research and development efforts on new and innovative product offerings.
34. The elimination of Minco as an independent and strong competitor likely will lead to higher prices, reduced service, and less innovation. Through its acquisition of the Minco assets, Heraeus has substantially lessened competition in the U.S. market for the development, production, sale and service of S&I, in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18.
35. Entry and/or expansion into the development, production, sale and service of S&I will not be timely, likely or sufficient to counteract the anticompetitive effects of Heraeus' acquisition of Minco. The development, production, sale and servicing of S&I requires highly specialized know-how, specialized equipment, a full-line of S&I products, a U.S. production facility, and a U.S.-based sales and service network.
36. The machinery used to manufacture S&I is highly specialized to meet exacting mass production requirements. For example, it took one S&I supplier two years of engineering time to develop a customized machine that could mass produce reliable and accurate single-use oxygen sensors. Thus, entry by producers of other types of measurement devices will not be likely, timely or sufficient.
37. S&I suppliers currently outside the United States cannot sell into the United States because it is uneconomic to transport fully assembled S&I into the United States and because they do not have a U.S. sales and service network, which is a prerequisite to selling to U.S. customers. The development of a U.S. production/assembly facility and, even more importantly, a dependable sales and service network often can take a significant period during which the potential entrant is not making sales. U.S-based customers will not purchase S&I from a foreign supplier that does not maintain a dependable sales/support network that can provide on-call service for its S&I products.
38. Establishing a reputation for successful performance and gaining customer confidence in a specific firm's S&I are also significant barriers to expansion and/or entry. Establishing a reputation for dependable, accurate supply and service is critical to success in the S&I market. A track record and reputation for reliability must be earned over years.
39. The United States incorporates the allegations of paragraphs 1 through 38 above as if set forth fully herein.
40. Heraeus' acquisition of the assets of Minco is likely to substantially lessen competition in interstate trade and commerce in violation of Section 7 of the Clayton Act.
41. The transaction has had or will have the following effects, among others:
a. Competition between Heraeus and Minco in the development, production, sale and service of S&I in the United States has been eliminated;
b. Heraeus has significantly reduced incentives to discount prices, increase the quality of its services, or invest in innovation;
c. Prices for S&I will likely increase above levels that would have prevailed absent the transaction, leading steel mills and other customers to pay higher prices for S&I for molten steel; and
d. Innovation will likely decrease, delivery times likely will lengthen, and the
42. The United States requests that this Court:
a. Adjudge and decree the acquisition by defendant Heraeus of the assets of Minco to violate Section 7 of the Clayton Act, 15 U.S.C. § 18;
b. Compel Heraeus to divest all of Minco's tangible and intangible assets related to the development, production, sale and service of S&I and to take any further actions necessary to restore the market to the competitive position that existed prior to the acquisition;
c. Award such temporary and preliminary injunctive and ancillary relief as may be necessary to avert the likelihood of the dissipation of Minco's tangible and intangible assets during the pendency of this action and to preserve the possibility of effective final relief;
d. Award the United States the cost of this action; and
e. Grant the United States such other further relief as the case requires and the Court deems just and proper.
“HHI” means the Herfindahl-Hirschman Index, a commonly accepted measure of market concentration. It is calculated by squaring the market share of each firm competing in the market and then summing the resulting numbers. For example, for a market consisting of four firms with shares of thirty, thirty, twenty, and twenty percent, the HHI is 2600 (30
Markets in which the HHI is between 1,500 and 12,500 points are considered to be moderately concentrated and those in which the HHI is in excess of 2,500 points are considered to be highly concentrated.
Plaintiff United States of America (“United States”), pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act (“APPA” or “Tunney Act”), 15 U.S.C. § 16(b)-(h), files this Competitive Impact Statement relating to the proposed Final Judgment submitted for entry in this civil antitrust proceeding.
On September 7, 2012, defendant Heraeus Electro-Nite Co., LLC (“Heraeus”) acquired substantially all of the assets of Midwest Instrument Company, Inc. (“Minco”). After investigating the competitive impact of that acquisition, the United States filed a civil antitrust Complaint on January 2, 2014, seeking an order compelling Heraeus to divest certain assets and other relief to restore competition. The Complaint alleges that the acquisition substantially lessened competition in the U.S. market for the development, production, sale and service of single-use sensors and instruments used to measure and monitor the temperature and chemical composition of molten steel (“S&I”), in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18. As a result of the acquisition, prices for these products did or would have increased, delivery times would have lengthened, and terms of service would have become less favorable.
Concurrent with the filing of this Competitive Impact Statement, the United States and Heraeus have filed an Asset Preservation Stipulation and Order and a proposed Final Judgment. These filings are designed to eliminate the anticompetitive effects of Heraeus' acquisition of Minco. The proposed Final Judgment, which is explained more fully below, requires Heraeus, among other things, to divest the assets that it acquired from Minco that are located in the United States and Mexico.
The United States and Heraeus have stipulated that the proposed Final Judgment may be entered after compliance with the APPA. Entry of the proposed Final Judgment would terminate this action, except that the Court would retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgment and to punish violations thereof.
Defendant Heraeus, a Delaware corporation with its headquarters in Langhorne, Pennsylvania, is a subsidiary of Heraeus Electro-Nite International N.V. (“HEN”), a Belgian company, which itself is a subsidiary of Heraeus Holding GmbH, a privately held German corporation based in Hanau, Germany. HEN's U.S. subsidiary, Heraeus, had approximately $92 million in revenue in fiscal year 2011.
Minco was a privately held company headquartered in Hartland, Wisconsin that also sold S&I. In 2011, Minco's U.S. revenues were approximately $29 million. Minco's manufacturing facilities were located in Hartland, Wisconsin, Johnson City, Tennessee and Monterrey, Mexico.
On September 7, 2012, Heraeus acquired substantially all of the assets of Minco. The transaction was not subject to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”), which requires companies to notify and provide information to the Department of Justice and the Federal Trade Commission before consummating certain acquisitions. As a result, the Department of Justice did not learn of the transaction until after it had been consummated.
S&I products are integral to the steel-making process. Steel makers cannot produce steel without using S&I such as those developed, produced and sold by Heraeus and, formerly, by Minco. Steel making is a continuous process, in which the chemistry and temperature of each batch of steel must be measured and monitored in order to ensure the quality, reliability, and consistency of the finished steel, as well as the safety and efficiency of the manufacturing operation. S&I are used to measure and monitor the temperature and chemical composition of the molten steel. Steel companies rely on S&I; moreover, they rely on S&I suppliers as virtual partners in the steel-making process.
The temperature and chemical composition of molten steel must be measured and monitored throughout the steel-making process, and each stage of production has specific chemical concentration and temperature requirements. The accuracy, reproducibility and reliability of the measurement of molten steel temperature and chemical properties directly
An S&I system consists of four basic parts: (1) The single-use sensor; (2) the cardboard tube; (3) the pole; and (4) the instrument, or display. The single-use sensor, typically encased in heavy paper or cardboard and attached to a cardboard tube, contains the actual measurement device. The cardboard encasement provides momentary protection to allow the single-use sensor to transmit a reading to the instrument before the heat from the molten steel consumes the sensor. For standard single-use sensors, the cardboard tube is attached to a long, hollow metal pole that allows a steel mill worker safely to dip the sensor into the liquid steel to obtain the desired measurement. The instrument is a specialized electronic component or computer that interprets the signal from the single-use sensor and displays the temperature or chemical content measurement on a display screen or print-out. Unlike the single-use sensor, which is consumed in molten steel, the instrument is a long-lived component that can be used for years. S&I are used to monitor temperature, oxygen content, steel and slag chemistry, hydrogen concentration and the carbon content of molten steel and are differentiated primarily by the type of sensor used. A particular steel mill may utilize one type or multiple types of S&I during a particular batch depending upon its proprietary steel-making process and the specifications of the steel's end use. The three main categories of S&I used by steel mills are thermocouples, sensors and samplers, though “combination” single-use sensors are designed to conduct two or more tests at once. Thermocouples measure the temperature of molten steel in the furnace and in other stages of steel processing. Sensors measure the dissolved oxygen, carbon, hydrogen, or other elements present in molten steel. Oxygen and carbon sensors are used in most steel-making processes, while hydrogen sensors typically are needed to produce high-purity, high-grade steel. Each type of sensor has a distinct design. Samplers are used during the steel-making process to withdraw a sample of molten steel for analysis outside of the molten bath. While most samplers do not contain internal electronics, they can be manufactured as a combination unit that includes a thermocouple or a type of sensor.
Although single-use sensors appear to be simple, each one consists of tiny platinum wires and specialized electronic controls. The lowest-priced single-use sensors may be one to two dollars per unit, while higher-end single-use sensors may be priced at ten to twenty dollars per unit. Because single-use sensors are used continuously in the steel-making process, steel mills can use hundreds of units daily and up to millions of units annually. S&I suppliers must therefore be capable of producing thousands of these high-precision, high-reliability products daily at a very low cost.
The high temperature and harsh environment of the furnace necessitates the use of S&I capable of reliable, accurate measurement in extreme conditions. Temperatures in the furnace can approach or exceed 3,000 degrees Fahrenheit, and variation of only 20 to 30 degrees can critically affect the quality and properties of the final steel product. Failure of a single-use sensor can have catastrophic results. For example, if the molten steel overheats, the steel can melt through the vessel or “break-out,” which is extremely dangerous and costly. Similarly, if the molten steel cools too quickly, or has the wrong chemical composition, it may slow or stall the production process and/or produce low-quality steel. The failure of a single-use sensor may cost a steel mill hundreds of thousands of dollars, if the steel fails to meet the desired physical characteristics and specifications.
Within the broad category of S&I, each type of single-use sensor performs a distinct function and cannot be substituted for another type of sensor or a different type of measuring device. For example, a hydrogen sensor cannot detect temperature and a thermocouple does not detect hydrogen. Accordingly, they are not interchangeable or substitutable for one another. There is separate demand for thermocouples, oxygen sensors, carbon sensors, hydrogen sensors, and other sensors. In the event of a small but significant price increase for a given type of single-use sensor, customers would not stop using that sensor in sufficient numbers so as to defeat the price increase. Thus, each type of S&I is a separate line of commerce and a relevant product market within the meaning of Section 7 of the Clayton Act.
Each steel-making customer purchases a different mix of S&I to suit the needs of the customer's steel mill, steel-making process, and application. Prior to the acquisition, Minco and Heraeus produced a full range of S&I and were, by far, the two producers with the largest market shares for each individual product. Minco and Heraeus competed across the full product line of S&I and typically provided customers with a mix of various single-use thermocouples, sensors and samplers. Although numerous narrower product markets also may be defined, the competitive dynamic for each individual single-use thermocouple, sensor and sampler is nearly identical. Therefore, they all may be aggregated for analytical convenience into a single relevant product market for the purpose of assigning market shares and evaluating the competitive impact of the acquisition. Accordingly, the development, production, sale and service of S&I is a line of commerce and a relevant product market within the meaning of Section 7 of the Clayton Act.
The United States is a relevant geographic market because suppliers of S&I cannot make sales in the United States without having a U.S. service and sales network and U.S. manufacturing presence. The consumable portion of S&I consists of a single-use sensor and a cardboard tube. A single-use sensor is small and light and can be shipped economically from overseas. However, the cardboard tubes for S&I can be four to eight feet long and are mostly air. They have a low value-to-volume ratio, so they cannot be shipped from overseas economically. For this reason, Heraeus and Minco both manufactured finished S&I in the United States.
Steel manufacturers can use up to hundreds of single-use sensors each day. The steel manufacturers are staffed leanly and do not employ in-house technicians or engineers to service S&I. A defective single-use sensor or malfunctioning instrument can shut down an entire steel line, so the steel manufacturers rely on the S&I suppliers to provide on-site technical service and support that is on call at all times. Heraeus and Minco have provided experienced service technicians and product engineers on-site to assist with inventory management, trouble-shooting, calibration, and other critical services. These service technicians and product engineers may visit a busy mill once or twice a week or more on a routine basis, and more frequently if the mill is implementing a new process, or is having trouble with a particular S&I. They also make service calls in the middle of the night to fix a problem that has shut down a line. Service and technical support have been critical to the success of Heraeus and Minco in selling S&I in the United States.
Because it is uneconomic to ship fully assembled S&I from overseas to the United States and U.S. customers require extensive on-site service, customers would not switch to producers outside the United States to defeat a small but significant price increase. Accordingly, the United States is a relevant geographic market for the development, production, sale and service of S&I within the meaning of Section 7 of the Clayton Act, as amended, 15 U.S.C. § 18.
Heraeus' acquisition of Minco has increased concentration in a highly concentrated market. Concentration in relevant markets typically is measured by the Herfindahl-Hirschman Index (“HHI”), which is defined and explained in Appendix A to the Complaint. The more concentrated a market, and the more a transaction would increase concentration in a market, the more likely it is that a transaction would result in a meaningful reduction in competition. Markets in which the HHI is in excess of 2500 points are considered highly concentrated, and an increase in concentration by 150 points or more is considered significant.
Prior to the acquisition, Heraeus had a 60% market share, Minco had a 35% market share and a small third firm had the remaining five percent. Thus, the pre-acquisition HHI was 4850, and the post-acquisition HHI is 9050, an increase of 4200. Based on the pre- and post-acquisition market concentration measures, the acquisition is presumptively anticompetitive.
Prior to the acquisition, Minco was the best alternative source to Heraeus for S&I, and
Entry and/or expansion into the development, production, sale and service of S&I will not be timely, likely or sufficient to counteract the anticompetitive effects of Heraeus' acquisition of Minco. The development, production, sale and servicing of S&I requires highly specialized know-how, specialized equipment, a full-line of S&I products, a U.S. production facility, and a U.S.-based sales and service network. S&I suppliers currently outside the United States cannot sell into the United States because it is uneconomic to transport fully assembled S&I into the United States and they do not have a U.S. sales and service network, which is a prerequisite to selling to U.S. customers. Development of a U.S. production/assembly facility, and even more importantly, development of a dependable sales and service network can take a long time, during which the potential entrant is not making sales. U.S.-based customers will not purchase S&I from a foreign supplier that does not maintain a dependable sales and support network that can provide on-call service for its S&I products.
Establishing a reputation for successful performance and gaining customer confidence in a specific firm's S&I are also significant barriers to expansion. Establishing a reputation for dependable, accurate supply and service is critical to success in the market. A track record and reputation for reliability must be earned over years. Entry in the development, production, sale, and service of S&I in the United States would not be timely, likely, or sufficient to counteract the anticompetitive effects of Heraeus' acquisition of Minco.
The United States opened its investigation of the transaction in December 2012, three months after the transaction was consummated. Heraeus had by then integrated the former Minco assets into Heraeus' S&I business, including terminating certain supply contracts and closing foreign production facilities. The United States therefore designed the partial divestiture required by the proposed Final Judgment to facilitate entry of a new firm or expansion of an existing competitor in the S&I industry by providing that firm with market-specific assets needed for successful competition.
The proposed Final Judgment directs Heraeus to sell a package of assets in the United States and Mexico, including the former Minco facilities located in Hartland, Wisconsin and Johnson City, Tennessee, along with tangible and intangible assets associated with those facilities (the “Divestiture Assets”). Heraeus is required to sell the Divestiture Assets to a qualified Acquirer that has the intention and ability to compete in the development, production, sale, and service of S&I in the United States. Thus, the divestiture provisions of the proposed Final Judgment are designed to make available to an Acquirer all of the remaining Minco assets acquired by Heraeus for the purpose of remedying the competitive harm from the acquisition. Under the proposed Final Judgment, however, the Acquirer, at its option, and with the consent of the United States, may elect to acquire less than the entire package of assets.
The goal of the proposed Final Judgment is to restore the competition in the development, production, sale, and service of S&I that was lost as a result of the transaction. The United States favors the divestiture of an existing business unit that has the necessary experience to compete in the relevant market. In this case, however, the divestiture of an existing, intact business is impossible because of the integration of assets undertaken by Heraeus. Under these circumstances, the United States may consider the divestiture of less than an existing business and may identify and approve an Acquirer at the outset to ensure that the sale of the assets will create a viable entity that will restore effective competition.
In the proposed Final Judgment, the designated Acquirer of the Divestiture Assets is a new entrant, Keystone Sensors LLC, (“Keystone”), which was formed in May 2013 for the purpose of entering the U.S. market for S&I to provide an alternative to Heraeus. The founders have significant experience in the S&I industry and bring together experience in the U.S. market, as well as an innovative technology concept. Initially, Keystone had intended to enter the market with a limited portfolio of high-technology products and build sales incrementally. Through the purchase of the Divestiture Assets, Keystone will be able to enter the market more rapidly and compete more effectively with Heraeus and the other U.S. supplier. After its investigation, the United States has concluded that Keystone has the intention and ability to compete in the development, production, sale and service of S&I in the United States.
The proposed Final Judgment requires Heraeus to divest the Divestiture Assets to Keystone within sixty (60) calendar days after the Court signs the Asset Preservation Stipulation and Order in this matter. The Divestiture Assets must be divested in such a way as to satisfy the United States, in its sole discretion, that the Divestiture Assets can and will be used by the Acquirer to compete effectively in the relevant market. Heraeus must take all reasonable steps necessary to accomplish the divestiture quickly and must cooperate with the Acquirer.
In the unlikely event that the sale to Keystone does not occur as anticipated, the proposed Final Judgment provides that a trustee would be appointed to effect the sale of the Divestiture Assets. In that event, the alternative Acquirer similarly would be able to determine which portion of the Divestiture Assets it would need to compete in the development, production, sale, and service of S&I in the United States.
To be an effective S&I supplier, a firm must employ a network of dedicated sales and service representatives that can provide on-call service to steel mill customers. A robust sales and service organization is critical to establishing the firm's reputation to provide accurate and reliable service. Following the transaction, Heraeus terminated several experienced sales and service employees of Minco and/or Heraeus, and imposed, as a condition of the employees' severance agreements, a two-year ban on employment in the S&I industry. The United States has concluded that, under the facts and circumstances of this case, these noncompete provisions are overbroad and have impeded the expansion and/or entry of other S&I firms. Accordingly, the proposed Final Judgment requires Heraeus to waive any existing noncompete agreement or other restrictive covenant that may bind any former employee of either Heraeus or Minco in the United States, without imposing any financial penalty on any such former employee. Heraeus also shall not enter into any noncompete or other restrictive covenant with any former, current, or future employee of Heraeus or Minco during the two years following the filing of the Complaint. The United States has determined that the availability of experienced personnel may help facilitate the entry and/or expansion of other S&I firms in the United States.
Because the transaction was not reportable under the HSR Act, the Division did not learn of the transaction until after it was consummated and Heraeus had undertaken significant integration of the former Minco assets. The proposed Final Judgment requires Heraeus to provide the United States with notice (similar to HSR Act notice) of any future acquisition by Heraeus of any firm that provides S&I in the United States. This provision will ensure that the United States has the opportunity to review any future transaction before the assets are integrated.
The proposed Final Judgment provides that, at the Acquirer's option, Heraeus shall enter into an agreement to provide training
Moreover, because the customer qualification process can be a high barrier to entry, the proposed Final Judgment provides that Heraeus shall allow customers to use Heraeus products and equipment in the testing and/or qualification of any S&I, and that Heraeus must waive any contractual restrictions that otherwise would preclude such usage.
Section 4 of the Clayton Act, 15 U.S.C. § 15, provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in federal court to recover three times the damages the person has suffered, as well as costs and reasonable attorneys' fees. Entry of the proposed Final Judgment will neither impair nor assist the bringing of any private antitrust damage action. Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. § 16(a), the proposed Final Judgment has no prima facie effect in any subsequent private lawsuit that may be brought against Heraeus.
The United States and Heraeus have stipulated that the proposed Final Judgment may be entered by the Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry upon the Court's determination that the proposed Final Judgment is in the public interest.
The APPA provides a period of at least sixty (60) days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed Final Judgment. Any person who wishes to comment should do so within sixty (60) days of the date of publication of this Competitive Impact Statement in the
Written comments should be submitted to:
The proposed Final Judgment provides that the Court retains jurisdiction over this action, and the parties may apply to the Court for any order necessary or appropriate for the modification, interpretation, or enforcement of the Final Judgment.
The United States considered, as an alternative to the proposed Final Judgment, a full trial on the merits against Heraeus. The United States could have continued the litigation and sought divestiture of the Minco assets. The United States is satisfied, however, that the divestiture of assets described in the proposed Final Judgment will preserve competition for the provision of S&I in the relevant market identified by the United States. Thus, the proposed Final Judgment would achieve all or substantially all of the relief the United States would have obtained through litigation, and avoids the time, expense, and uncertainty of a full trial on the merits of the Complaint.
The Clayton Act, as amended by the APPA, requires that proposed consent judgments in antitrust cases brought by the United States be subject to a sixty-day comment period, after which the court shall determine whether entry of the proposed Final Judgment “is in the public interest.” 15 U.S.C. § 16(e)(1). In making that determination, the court, in accordance with the statute as amended in 2004, is required to consider:
(A) the competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest; and
(B) the impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial.
As the United States Court of Appeals for the District of Columbia Circuit has held, under the APPA a court considers, among other things, the relationship between the remedy secured and the specific allegations set forth in the government's complaint, whether the decree is sufficiently clear, whether enforcement mechanisms are sufficient, and whether the decree may positively harm third parties.
Courts have greater flexibility in approving proposed consent decrees than in crafting their own decrees following a finding of liability in a litigated matter. “[A] proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability or is `within the reaches of public interest.' ”
Moreover, the court's role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its Complaint, and does not authorize the court to “construct [its] own hypothetical case and then evaluate the decree against that case.”
In its 2004 amendments, Congress made clear its intent to preserve the practical benefits of utilizing consent decrees in antitrust enforcement, adding the unambiguous instruction that “[n]othing in this section shall be construed to require the court to conduct an evidentiary hearing or to require the court to permit anyone to intervene.” 15 U.S.C. § 16(e)(2). The language wrote into the statute what Congress intended when it enacted the Tunney Act in 1974, as Senator Tunney explained: “[t]he court is nowhere compelled to go to trial or to engage in extended proceedings which might have the effect of vitiating the benefits of prompt and less costly settlement through the consent decree process.” 119 Cong. Rec. 24,598 (1973) (statement of Senator Tunney). Rather, the procedure for the public interest determination is left to the discretion of the court, with the recognition that the court's “scope of review remains sharply proscribed by precedent and the nature of Tunney Act proceedings.”
There are no determinative materials or documents within the meaning of the APPA that were considered by the United States in formulating the proposed Final Judgment.
It is hereby stipulated and agreed by and between the undersigned parties, subject to approval and entry by the Court, that:
As used in this Asset Preservation Stipulation and Order:
A. “Heraeus” means defendant Heraeus Electro-Nite Co., LLC, a Delaware corporation with its headquarters in Langhorne, Pennsylvania, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
B. “Minco” means Midwest Instrument Company, Inc., a Wisconsin corporation with its headquarters in Hartland, Wisconsin, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
C. “S&I” means single-use sensors and instruments used to measure and monitor the temperature and chemical composition of molten steel.
D. “Acquirer” means Keystone Sensors, LLC or another entity to which Heraeus divests the Divestiture Assets.
E. “Keystone” means Keystone Sensors, LLC, a Delaware corporation headquartered in Cranberry Township, Pennsylvania, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
F. “Divestiture Assets” means all assets of Heraeus that (1) were acquired from Minco pursuant to the Asset Purchase Agreement between the companies dated August 29, 2012 (and subject to the conditions and limitations specified in that agreement), and (2) are located in the United States or Mexico, including, but not limited to:
1. The former Minco facilities located at 541 Industrial Drive, Hartland, Wisconsin and at 2735 E. Oakland Avenue, Johnson City, Tennessee;
2. All remaining assets from the former Minco facility, located at Avenida Letra D No. 1005, Monterrey, Mexico;
3. All remaining tangible assets, including, but not limited to, all manufacturing equipment, tooling and fixed assets, personal property, remaining finished or partially finished inventory, office furniture, materials, supplies, other tangible property, and all other assets, used in connection with the Divestiture Assets; all licenses, permits and authorizations issued by any governmental organization relating to the Divestiture Assets; all teaming arrangements, agreements, leases, commitments, certifications, and understandings, relating to the Divestiture Assets, including supply agreements; all customer lists, accounts, and credit records; all repair and performance records and all other records relating to the Divestiture Assets; and
4. All intangible assets, including, but not limited to, all intellectual property, including, but not limited to, patents, licenses and sublicenses, copyrights, trademarks, trade names, service marks, service names, technical information, computer software and related documentation, know-how, trade secrets, drawings, blueprints, designs, design protocols, specifications for materials, specifications for parts and devices, safety procedures for the handling of materials and substances, quality assurance and control procedures, design tools and simulation capability, all manuals and technical information Heraeus provides to its own employees, customers, suppliers, agents or licensees, and all research data concerning historic and current research and
The proposed Final Judgment filed in this case is meant to ensure Heraeus' prompt divestiture of the Divestiture Assets for the purpose of remedying the loss of competition alleged in the Complaint. This Asset Preservation Stipulation and Order ensures that, until such divestiture required by the Proposed Final Judgment has been accomplished, the Divestiture Assets will remain as economically viable, competitive, and saleable assets.
The Court has jurisdiction over the subject matter of this action and over each of the parties hereto, and venue of this action is proper in the United States District Court for the District of Columbia.
A. The parties stipulate that a Final Judgment in the form attached hereto as Exhibit A may be filed with and entered by the Court, upon the motion of any party or upon the Court's own motion, at any time after compliance with the requirements of the Antitrust Procedures and Penalties Act (“APPA”), 15 U.S.C. § 16, and without further notice to any party or other proceedings, provided that the United States has not withdrawn its consent, which it may do at any time before the entry of the proposed Final Judgment by serving notice thereof on Heraeus and by filing that notice with the Court. Heraeus agrees to arrange, at its expense, publication as quickly as possible of the newspaper notice required by the APPA, which shall be drafted by the United States, in its sole discretion. The publication shall be arranged no later than three business days after Heraeus' receipt from the United States of the text of the notice and the identity of the newspaper within which the publication shall be made. Heraeus shall promptly send to the United States (1) confirmation that publication of the newspaper notice has been arranged, and (2) the certification of the publication prepared by the newspaper within which the notice was published.
B. Heraeus shall abide by and comply with the provisions of the proposed Final Judgment, pending the proposed Final Judgment's entry by the Court, or until expiration of time for all appeals of any Court ruling declining entry of the proposed Final Judgment, and shall, from the date of the signing of this Asset Preservation Stipulation and Order by the parties, comply with all the terms and provisions of the proposed Final Judgment. The United States shall have the full rights and enforcement powers in the proposed Final Judgment as though the same were in full force and effect as an order of the Court.
C. This Asset Preservation Stipulation and Order shall apply with equal force and effect to any amended proposed Final Judgment agreed upon in writing by the parties and submitted to the Court.
D. In the event (1) the United States has withdrawn its consent, as provided in Section IV(A) above, or (2) the proposed Final Judgment is not entered pursuant to this Asset Preservation Stipulation and Order, the time has expired for all appeals of any court ruling declining entry of the proposed Final Judgment, and the Court has not otherwise ordered continued compliance with the terms and provisions of the proposed Final Judgment, then Heraeus is released from all further obligations under this Asset Preservation Stipulation and Order, and the making of this Asset Preservation Stipulation and Order shall be without prejudice to any party in this or any other proceeding.
E. Heraeus represents that the divestiture ordered in the proposed Final Judgment can and will be made, and that Heraeus will later raise no claim of mistake, hardship or difficulty of compliance as grounds for asking the Court to modify any of the provisions contained therein.
Until the divestiture required by the proposed Final Judgment have been accomplished:
A. Heraeus will not destroy, sell, lease, assign, transfer, pledge, or otherwise dispose of any of the Divestiture Assets, even if those assets are no longer used by Heraeus, except that Heraeus may continue to use, sell or dispose of inventory formerly owned by Minco in the normal course of business. Within twenty (20) days after the entry of the Asset Preservation Stipulation and Order, Heraeus will inform the United States of the steps it has taken to comply with this Asset Preservation Stipulation and Order.
B. Heraeus will preserve all corporate and commercial books and records formerly belonging to Minco that are currently in Heraeus' possession.
C. Heraeus will not terminate (except for cause) any United States-based full-time employee formerly employed by Minco. Heraeus' employees with primary responsibility for the productive use of the Divestiture Assets shall not be transferred or reassigned to other areas within the company except for transfer bids initiated by employees pursuant to defendant's regular, established job posting policy. Heraeus shall provide the United States with ten (10) calendar days' notice of such transfer.
D. Heraeus will preserve the tooling, equipment, product and process drawing and specifications, and other items necessary to manufacture products formerly manufactured by Minco.
E. Heraeus shall take no action that would jeopardize, delay, or impede the sale of the Divestiture Assets.
F. Heraeus shall take no action that would interfere with the ability of any trustee appointed pursuant to the Final Judgment to complete the divestitures pursuant to the Final Judgment to an Acquirer acceptable to the United States.
G. Subject to the approval of the United States, Heraeus shall appoint a person or persons to oversee the Divestiture Assets, and who will be responsible for Heraeus' compliance with this section. This person shall have complete managerial responsibility for the Divestiture Assets, subject to the provisions of this Final Judgment. In the event such person is unable to perform his duties, Heraeus shall appoint, subject to the approval of the United States, a replacement within ten (10) working days. Should Heraeus fail to appoint a replacement acceptable to the United States within this time period, the United States shall appoint a replacement.
Heraeus' obligations under Section V of this Asset Preservation Stipulation and Order shall remain in effect until (1) consummation of the divestitures required by the proposed Final Judgment or (2) until further order of the Court. If the United States voluntarily dismisses the Complaint in this matter, Heraeus is released from all further obligations under this Asset Preservation Stipulation and Order.
WHEREAS, Plaintiff, United States of America, filed its Complaint on January 2, 2014, the United States and Defendant Heraeus Electro-Nite Co., LLC (“Heraeus”), by their respective attorneys, have consented to the entry of this Final Judgment without trial or adjudication of any issue of fact or law, and without this Final Judgment constituting any evidence against or admission by any party regarding any issue of fact or law;
AND WHEREAS, Heraeus agrees to be bound by the provisions of this Final Judgment pending its approval by the Court;
AND WHEREAS, the essence of this Final Judgment is the prompt and certain divestiture of certain rights or assets by Heraeus to assure that competition is substantially restored;
AND WHEREAS, the United States requires Heraeus to divest certain assets and take certain other actions for the purpose of remedying the loss of competition alleged in the Complaint;
AND WHEREAS, Heraeus has represented to the United States that the divestiture required below can and will be made and that Heraeus will later raise no claim of hardship or difficulty as grounds for asking the Court to modify any of the provisions contained below;
NOW THEREFORE, before any testimony is taken, without trial or adjudication of any issue of fact or law, and upon consent of the parties, it is ORDERED, ADJUDGED AND DECREED:
This Court has jurisdiction over the subject matter of and each of the parties to this action. The Complaint states a claim upon which relief may be granted against Heraeus under Section 7 of the Clayton Act, as amended (15 U.S.C. § 18).
As used in this Final Judgment:
A. “Heraeus” means defendant Heraeus Electro-Nite Co., LLC, a Delaware corporation with its headquarters in Langhorne, Pennsylvania, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
B. “Minco” means Midwest Instrument Company, Inc., a Wisconsin corporation with its headquarters in Hartland, Wisconsin, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
C. “S&I” means single-use sensors and instruments used to measure and monitor the temperature and chemical composition of molten steel.
D. “Acquirer” means Keystone Sensors, LLC or another entity to which Heraeus divests the Divestiture Assets.
E. “Keystone” means Keystone Sensors, LLC, a Delaware corporation headquartered in Cranberry Township, Pennsylvania, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
F. “Divestiture Assets” means all assets of Heraeus that (1) were acquired from Minco pursuant to the Asset Purchase Agreement between the companies dated August 29, 2012 (and subject to the conditions and limitations specified in that agreement), and (2) are located in the United States or Mexico, including, but not limited to:
1. The former Minco facilities located at 541 Industrial Drive, Hartland, Wisconsin and at 2735 E. Oakland Avenue, Johnson City, Tennessee;
2. All remaining assets from the former Minco facility, located at Avenida Letra D No. 1005, Monterrey, Mexico;
3. All remaining tangible assets, including, but not limited to, all manufacturing equipment, tooling and fixed assets, personal property, remaining finished or partially finished inventory, office furniture, materials, supplies, other tangible property, and all other assets, used in connection with the Divestiture Assets; all licenses, permits and authorizations issued by any governmental organization relating to the Divestiture Assets; all teaming arrangements, agreements, leases, commitments, certifications, and understandings, relating to the Divestiture Assets, including supply agreements; all customer lists, accounts, and credit records; all repair and performance records and all other records relating to the Divestiture Assets; and
4. All intangible assets, including, but not limited to, all intellectual property, including, but not limited to, patents, licenses and sublicenses, copyrights, trademarks, trade names, service marks, service names, technical information, computer software and related documentation, know-how, trade secrets, drawings, blueprints, designs, design protocols, specifications for materials, specifications for parts and devices, safety procedures for the handling of materials and substances, quality assurance and control procedures, design tools and simulation capability, all manuals and technical information Heraeus provides to its own employees, customers, suppliers, agents or licensees, and all research data concerning historic and current research and development efforts relating to S&I, including, but not limited to, designs of experiments and the results of successful and unsuccessful designs and experiments.
This Final Judgment applies to Heraeus, as defined above, and all other persons in active concert or participation with Heraeus who receive actual notice of this Final Judgment by personal service or otherwise.
A. Heraeus is ordered and directed, within sixty (60) calendar days after the signing of the Asset Preservation Stipulation and Order in this matter, to divest the Divestiture Assets in a manner consistent with this Final Judgment to an Acquirer acceptable to the United States, in its sole discretion. The United States, in its sole discretion, may agree to an extension of this time period not to exceed thirty (30) calendar days, and shall notify the Court in such circumstances. Heraeus agrees to use its best efforts to divest the Divestiture Assets as expeditiously as possible.
B. Notwithstanding the provisions of Paragraph IV.A, upon written request from Heraeus, the United States, in its sole discretion, may agree to exclude from the Divestiture Assets any portion thereof that the Acquirer, at its option, elects not to acquire.
C. Heraeus shall offer to furnish to the Acquirer, subject to customary confidentiality assurances, all information and documents relating to the Divestiture Assets customarily provided in a due diligence process except such information or documents subject to the attorney-client privilege or work-product doctrine. Heraeus shall make available such information to the United States at the same time that such information is made available to any other person.
D. Heraeus shall provide the Acquirer and the United States with the name, job title and other contact information relating to all Heraeus personnel in the United States who were formerly employed by Minco, excluding shareholders and former shareholders of Minco, to enable the Acquirer to make offers of employment. Heraeus shall also provide the Acquirer and the United States with the name, last job title, and last known address and other contact information for former employees of Minco or Heraeus in the United States whose employment ended on or after January 1, 2012, to enable the Acquirer to make offers of employment to such persons. Heraeus shall not interfere with any negotiations by the Acquirer to employ any such current or former Heraeus or Minco employee described in this section.
E. Heraeus shall permit the Acquirer to have reasonable access to personnel and to make inspections of the physical facilities included in the Divestiture Assets; access to any and all environmental, zoning, and other permit documents and information; and access to any and all financial, operational, or other documents and information customarily provided as part of a due diligence process.
F. Should the Acquirer elect to acquire the Johnson City, Tennessee and/or Hartland, Wisconsin facilities that Heraeus acquired from Minco, Heraeus shall assign the lease(s) to these facilities to the Acquirer, subject to the landlord(s) permission, and shall not interfere with any negotiations between the Acquirer and the landlord(s) concerning assignment of the lease(s).
G. At the option of the Acquirer, Heraeus shall enter into an agreement to provide training and technical support regarding the operation of any purchased Divestiture Asset to the personnel of the Acquirer.
H. Heraeus shall warrant to the Acquirer that each asset that is currently operational will be operational on the date of sale.
I. Heraeus shall not take any action that will impede in any way the permitting, operation, or divestiture of the Divestiture Assets.
J. Heraeus shall warrant to the Acquirer that there are no material defects in the environmental, zoning or other permits pertaining to the operation of each asset, and that following the sale of the Divestiture Assets, Heraeus will not undertake, directly or indirectly, any challenge to the environmental, zoning, or other permits relating to the operation of the Divestiture Assets.
K. At the option of Heraeus, the Acquirer shall provide Heraeus with a non-exclusive, non-transferable license for the intangible assets described in II(F)(4), above, that prior to the filing of the Complaint in this matter were used in connection with the design, development, production, marketing, servicing, distribution, and/or sale of S&I.
L. Unless the United States otherwise consents in writing, the divestiture pursuant to Section IV, or by trustee appointed pursuant to Section V, of this Final Judgment, shall include the entire Divestiture Assets, and shall be accomplished in such a way as to satisfy the United States, in its sole discretion, that the Divestiture Assets can and will be used by the Acquirer as part of a viable, ongoing business of the development, production, sale and service of S&I in the United States. The divestiture shall be accomplished in such a way so as to satisfy the United States, in its sole discretion, that the Divestiture Assets will remain viable and the divestiture of such assets will remedy the competitive harm alleged in the Complaint. The divestiture, whether pursuant to Section IV or Section V of this Final Judgment,
(1) shall be made to an Acquirer that, in the United States' sole judgment, has the intent and capability (including the necessary managerial, operational, technical and financial capability) of competing effectively in the business of the development, production, sale and service of S&I; and
(2) shall be accomplished so as to satisfy the United States, in its sole discretion, that none of the terms of any agreement between the Acquirer and Heraeus gives Heraeus the ability unreasonably to raise the Acquirer's costs, to lower the Acquirer's efficiency, or otherwise to interfere in the ability of the Acquirer to compete effectively.
A. If Heraeus has not divested the Divestiture Assets within the time period specified in Section IV(A), Heraeus shall notify the United States of that fact in writing. Upon application of the United States, the Court shall appoint a trustee selected by the United States and approved by the Court to effect the divestiture of the Divestiture Assets.
B. After the appointment of a trustee becomes effective, only the trustee shall have the right to sell the Divestiture Assets. The trustee shall have the power and authority to accomplish the divestiture to an Acquirer acceptable to the United States at such price and on such terms as are then obtainable upon reasonable effort by the trustee, subject to the provisions of Sections IV, V, and VI of this Final Judgment, and shall have such other powers as this Court deems appropriate. Subject to Section V(D) of this Final Judgment, the trustee may hire at the cost and expense of Heraeus any investment bankers, attorneys, or other agents, who shall be solely accountable to the trustee, reasonably necessary in the trustee's judgment to assist in the divestiture.
C. Heraeus shall not object to a sale by the trustee on any ground other than the trustee's malfeasance. Any such objections by Heraeus must be conveyed in writing to the United States and the trustee within ten (10) calendar days after the trustee has provided the notice required under Section VI.
D. The trustee shall serve at the cost and expense of Heraeus, on such terms and conditions as the United States approves, and shall account for all monies derived from the sale of the assets sold by the trustee and all costs and expenses so incurred. After approval by the Court of the trustee's accounting, including fees for its services and those of any professionals and agents retained by the trustee, all remaining money shall be paid to Heraeus and the trust shall then be terminated. The compensation of the trustee and any professionals and agents retained by the trustee shall be reasonable in light of the value of the Divestiture Assets and based on a fee arrangement providing the trustee with an incentive based on the price and terms of the divestiture and the speed with which it is accomplished, but timeliness is paramount.
E. Heraeus shall use its best efforts to assist the trustee in accomplishing the required divestiture. The trustee and any consultants, accountants, attorneys, and other persons retained by the trustee shall have full and complete access to the personnel, books, records, and facilities of the business to be divested, and Heraeus shall develop financial and other information relevant to such business as the trustee may reasonably request, subject to reasonable protection for trade secret or other confidential research, development, or commercial information. Heraeus shall take no action to interfere with or to impede the trustee's accomplishment of the divestiture.
F. After its appointment, the trustee shall file monthly reports with the United States and the Court setting forth the trustee's efforts to accomplish the divestiture ordered under this Final Judgment. To the extent such reports contain information that the trustee deems confidential, such reports shall not be filed in the public docket of the Court. Such reports shall include the name, address, and telephone number of each person who, during the preceding month, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Divestiture Assets, and shall describe in detail each contact with any such person. The trustee shall maintain full records of all efforts made to divest the Divestiture Assets.
G. If the trustee has not accomplished the divestiture ordered under this Final Judgment within six months after its appointment, the trustee shall promptly file with the Court a report setting forth (1) the trustee's efforts to accomplish the required divestiture, (2) the reasons, in the trustee's judgment, why the required divestiture has not been accomplished, and (3) the trustee's recommendations. To the extent such reports contain information that the trustee deems confidential, such reports shall not be filed in the public docket of the Court. The trustee shall at the same time furnish such report to the United States which shall have the right to make additional recommendations consistent with the purpose of the trust. The Court thereafter shall enter such orders as it shall deem appropriate to carry out the purpose of the Final Judgment, which may, if necessary, include extending the trust and the term of the trustee's appointment by a period requested by the United States.
A. Unless the Acquirer is Keystone, within two (2) business days following execution of a definitive divestiture agreement, Heraeus or the trustee, whichever is then responsible for effecting the divestiture required herein, shall notify the United States of any proposed divestiture required by Section IV or V of this Final Judgment. If the trustee is responsible, it shall similarly notify Heraeus. The notice shall set forth the details of the proposed divestiture and list the name, address, and telephone number of each person not previously identified who offered or expressed an interest in or desire to acquire any ownership interest in the Divestiture Assets, together with full details of the same.
B. Within fifteen (15) calendar days of receipt by the United States of such notice, the United States may request from Heraeus, the proposed Acquirer, any other third party, or the trustee, if applicable, additional information concerning the proposed divestiture, the proposed Acquirer, and any other potential Acquirer of the Divestiture Assets. Heraeus and the trustee shall furnish any additional information requested within fifteen (15) calendar days of the receipt of the
C. Within thirty (30) calendar days after receipt of the notice or within twenty (20) calendar days after the United States has been provided the additional information requested from Heraeus, the Acquirer, any third party, and the trustee, whichever is later, the United States shall provide written notice to Heraeus and the trustee, if there is one, stating whether or not it objects to the proposed divestiture. If the United States provides written notice that it does not object, the divestiture may be consummated, subject only to Heraeus' limited right to object to the sale under Section V(C) of this Final Judgment. Absent written notice that the United States does not object to the Acquirer or upon objection by the United States, a divestiture proposed under Section IV or Section V shall not be consummated. Upon objection by Heraeus under Section V(C), a divestiture proposed under Section V shall not be consummated unless approved by the Court.
Heraeus shall not finance all or any part of any purchase made pursuant to Section IV or V of this Final Judgment.
Until the divestiture required by this Final Judgment has been accomplished, Heraeus shall take all steps necessary to comply with the Asset Preservation Order entered by this Court. Heraeus shall take no action that would jeopardize the divestiture ordered by this Court.
A. Heraeus shall waive any existing noncompete agreement or other restrictive covenant that may bind any former employee of either Heraeus or Minco in the United States, without imposing any financial penalty on any such employee. Heraeus shall, no later than twenty-one (21) calendar days after the filing of the Complaint in this matter, provide each such former employee with written notice of the waiver and provide copies of each such waiver to the United States.
B. For a period of two years following Heraeus' agreement to the terms of this Final Judgment, Heraeus shall not require any employee in the United States to agree to a noncompete restriction or other restrictive covenant as a condition of severance or any other agreement relating to an employee's termination of employment.
C. This provision shall not apply to any current or former shareholder of Minco.
Heraeus shall allow customers, and shall so notify them, to use without consequence Heraeus products and equipment in the testing and/or qualification of any S&I, including waiving any contractual restrictions or the imposition of any warranty- or usage-related defenses to claims that may arise.
A. Within twenty (20) calendar days of the filing of the Complaint in this matter, and every thirty (30) calendar days thereafter until the divestiture has been completed under Section IV or V, Heraeus shall deliver to the United States an affidavit as to the fact and manner of its compliance with Section IV or V of this Final Judgment. Each such affidavit shall include the name, address, and telephone number of each person who, during the preceding thirty (30) calendar days, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Divestiture Assets, and shall describe in detail each contact with any such person during that period. Each such affidavit shall also include a description of the efforts Heraeus has taken to solicit buyers for the Divestiture Assets, and to provide required information to the prospective Acquirers, including the limitations, if any, on such information. Assuming the information set forth in the affidavit is true and complete, any objection by the United States to information provided by Heraeus, including limitation on information, shall be made within fourteen (14) calendar days of receipt of such affidavit.
B. Within twenty (20) calendar days of the filing of the Complaint in this matter, Heraeus shall deliver to the United States an affidavit that describes in reasonable detail all actions Heraeus has taken and all steps Heraeus has implemented on an ongoing basis to comply with Section VIII of this Final Judgment. Heraeus shall deliver to the United States an affidavit describing any changes to the efforts and actions outlined in Heraeus' earlier affidavits filed pursuant to this section within fifteen (15) calendar days after the change is implemented.
C. Heraeus shall keep all records of all efforts made to preserve and divest the Divestiture Assets until one year after such divestiture has been completed.
A. For the purposes of determining or securing compliance with this Final Judgment, the Asset Preservation Order, or any related orders, or of determining whether the Final Judgment should be modified or vacated, and subject to any legally recognized privilege, from time to time authorized representatives of the United States Department of Justice, including consultants and other persons retained by the United States, shall, upon written request of an authorized representative of the Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to Heraeus, be permitted:
(1) access during Heraeus' office hours to inspect and copy, or at the option of the United States, to require Heraeus to provide hard copy or electronic copies of, all books, ledgers, accounts, records, data, and documents in the possession, custody, or control of Heraeus, relating to any matters contained in this Final Judgment; and
(2) to interview, either informally or on the record, Heraeus' officers, employees, or agents, who may have their individual counsel present, regarding such matters. The interviews shall be subject to the reasonable convenience of the interviewee and without restraint or interference by Heraeus.
B. Upon the written request of an authorized representative of the Assistant Attorney General in charge of the Antitrust Division, Heraeus shall submit written reports or response to written interrogatories, under oath if requested, relating to any of the matters contained in this Final Judgment as may be requested.
C. No information or documents obtained by the means provided in this section shall be divulged by the United States to any person other than an authorized representative of the executive branch of the United States, except in the course of legal proceedings to which the United States is a party (including grand jury proceedings), or for the purpose of securing compliance with this Final Judgment, or as otherwise required by law.
D. If at the time information or documents are furnished by Heraeus to the United States, Heraeus represents and identifies in writing the material in any such information or documents to which a claim of protection may be asserted under Rule 26(c)(7) of the Federal Rules of Civil Procedure, and Heraeus marks each pertinent page of such material, “Subject to claim of protection under Rule 26(c)(7) of the Federal Rules of Civil Procedure,” then the United States shall give Heraeus ten (10) calendar days notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding).
Unless such transaction is otherwise subject to the reporting and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 15 U.S.C. § 18a (the “HSR Act”), Heraeus, without providing advance notification to the Antitrust Division, shall not directly or indirectly acquire any assets of or any interest, including any financial, security, loan, equity or management interest, in any entity engaged in the development, production, sale or service of S&I in the United States during the term of this Final Judgment.
Such notification shall be provided to the Antitrust Division in the same format as, and per the instructions relating to the Notification and Report Form set forth in the Appendix to Part 803 of Title 16 of the Code of Federal Regulations as amended, except that the information requested in Items 5 through 9 of the instructions must be provided only about the development, production, sale and service of S&I. Notification shall be provided at least thirty (30) calendar days prior to acquiring any such interest, and shall include, beyond what may be required by the applicable instructions, the names of the principal representatives of the parties to the agreement who negotiated the agreement, and any management or strategic plans discussing the proposed transaction. If within the 30-day period after notification, representatives of the Antitrust Division make a written request for additional
During the term of this Final Judgment, Heraeus may not reacquire any part of the Divestiture Assets purchased by the Acquirer.
This Court retains jurisdiction to enable any party to this Final Judgment to apply to this Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify any of its provisions, to enforce compliance, and to punish violations of its provisions.
Unless this Court grants an extension, this Final Judgment shall expire ten (10) years from the date of its entry.
Entry of this Final Judgment is in the public interest. The parties have complied with the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16, including making copies available to the public of this Final Judgment, the Competitive Impact Statement, and any comments thereon and the United States' responses to comments. Based upon the record before the Court, which includes the Competitive Impact Statement and any comments and response to comments filed with the Court, entry of this Final Judgment is in the public interest.
Employment and Training Administration, Labor.
Notice.
The U.S. Department of Labor (Department) produces trigger notices indicating which states qualify for EUC08 benefits, and provides the beginning and ending dates of payable periods for each qualifying state. The trigger notices covering state eligibility for this program can be found at:
The following changes have occurred since the publication of the last notice regarding states' EUC08 trigger status:
• Colorado triggers “off” Tier 3 of EUC08 effective 12/14/2013.
Based on data released by the Bureau of Labor Statistics on November 22, 2013, the three month average, seasonally adjusted total unemployment rate in Colorado was 6.9%, falling below the 7.0% trigger rate threshold necessary to remain “on” Tier 3 of EUC08. The week ending December 14, 2013, will be the last week in which EUC08 claimants in Colorado who have exhausted Tier 2, and are otherwise eligible, can establish Tier 3 eligibility.
• Florida triggers “off” Tier 3 of EUC08 effective 12/14/2013.
Based on data released by the Bureau of Labor Statistics on November 22, 2013, the three month average, seasonally adjusted total unemployment rate in Florida was 6.8%, falling below the 7.0% trigger rate threshold necessary to remain “on” Tier 3 of EUC08. The week ending December 14, 2013, will be the last week in which EUC08 claimants in Florida who have exhausted Tier 2, and are otherwise eligible, can establish Tier 3 eligibility.
• Michigan triggers “on” Tier 4 of EUC08 effective 12/8/2013.
Based on data released by the Bureau of Labor Statistics on November 22, 2013, the three month average, seasonally adjusted total unemployment rate in Michigan was 9.0%, meeting the 9.0% trigger rate threshold necessary to trigger “on” Tier 4 of EUC08. The week beginning December 8, 2013, will be the first week in which EUC08 claimants in Michigan who have exhausted Tier 3, and are otherwise eligible, can establish Tier 4 eligibility.
• Rhode Island triggers “on” Tier 4 of EUC08 effective 12/8/2013.
Based on data released by the Bureau of Labor Statistics on November 22, 2013, the three month average, seasonally adjusted total unemployment rate in Rhode Island was 9.1%, exceeding the 9.0% trigger rate threshold necessary to trigger “on” Tier 4 of EUC08. The week beginning December 8, 2013, will be the first week in which EUC08 claimants in Rhode Island who have exhausted Tier 3, and are otherwise eligible, can establish Tier 4 eligibility.
• Washington triggers “on” to Tier 3 of EUC08 effective 12/8/2013.
Based on data released by the Bureau of Labor Statistics on November 22, 2013, the three month average, seasonally adjusted total unemployment rate in Washington was 7.0%, meeting the 7.0% trigger rate threshold necessary to trigger “on” Tier 3 of EUC08. The week beginning December 8, 2013, will be the first week in which EUC08 claimants in Washington who have exhausted Tier 2, and are otherwise eligible, can establish Tier 3 eligibility.
• The Virgin Islands triggers “on” to Tier 4 of EUC08 effective 11/10/2013.
Based on data released by the Bureau of Labor Statistics on October 22, 2013, the estimated three month average, seasonally adjusted total unemployment rate in the Virgin Islands was 9.8%, exceeding the 9.0% trigger rate threshold necessary to trigger “on” in Tier 4 of EUC08. The week beginning November 10, 2013, was the first week in which EUC08 claimants in the Virgin Islands who had exhausted Tier 3 and were otherwise eligible, could establish Tier 4 eligibility.
The duration of benefits payable in the EUC08 program, and the terms and conditions under which they are payable, are governed by Public Laws 110-252, 110-449, 111-5, 111-92, 111-118, 111-144, 111-157, 111-205, 111-312, 112-96, and 112-240, and the operating instructions issued to the states by the Department.
In the case of a state beginning or concluding a payable period in EUC08, the State Workforce Agency (SWA) will furnish a written notice of any change in potential entitlement to each individual who could establish, or had established, eligibility for benefits (20 CFR 615.13 (c)(1) and (c)(4)). Persons who believe they may be entitled to benefits in the EUC08 program, or who
Tony Sznoluch, U.S. Department of Labor, Employment and Training Administration, Office of Unemployment Insurance, 200 Constitution Avenue NW., Frances Perkins Bldg. Room S-4524, Washington, DC 20210, telephone number (202) 693-3176 (this is not a toll-free number) or by email:
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers by (TA-W) number issued during the period of
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Under Section 222(a)(2)(A), the following must be satisfied:
(1) a significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the sales or production, or both, of such firm have decreased absolutely; and
(3) One of the following must be satisfied:
(A) imports of articles or services like or directly competitive with articles produced or services supplied by such firm have increased;
(B) imports of articles like or directly competitive with articles into which one or more component parts produced by such firm are directly incorporated, have increased;
(C) imports of articles directly incorporating one or more component parts produced outside the United States that are like or directly competitive with imports of articles incorporating one or more component parts produced by such firm have increased;
(D) imports of articles like or directly competitive with articles which are produced directly using services supplied by such firm, have increased; and
(4) the increase in imports contributed importantly to such workers' separation or threat of separation and to the decline in the sales or production of such firm; or
II. Section 222(a)(2)(B) all of the following must be satisfied:
(1) a significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) One of the following must be satisfied:
(A) there has been a shift by the workers' firm to a foreign country in the production of articles or supply of services like or directly competitive with those produced/supplied by the workers' firm;
(B) there has been an acquisition from a foreign country by the workers' firm of articles/services that are like or directly competitive with those produced/supplied by the workers' firm; and
(3) the shift/acquisition contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in public agencies and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) a significant number or proportion of the workers in the public agency have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the public agency has acquired from a foreign country services like or directly competitive with services which are supplied by such agency; and
(3) the acquisition of services contributed importantly to such workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected secondary workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(c) of the Act must be met.
(1) a significant number or proportion of the workers in the workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the workers' firm is a Supplier or Downstream Producer to a firm that employed a group of workers who received a certification of eligibility under Section 222(a) of the Act, and such supply or production is related to the article or service that was the basis for such certification; and
(3) either—
(A) the workers' firm is a supplier and the component parts it supplied to the firm described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) a loss of business by the workers' firm with the firm described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in firms identified by the International Trade Commission and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(f) of the Act must be met.
(1) the workers' firm is publicly identified by name by the International Trade Commission as a member of a domestic industry in an investigation resulting in—
(A) an affirmative determination of serious injury or threat thereof under section 202(b)(1);
(B) an affirmative determination of market disruption or threat thereof under section 421(b)(1); or
(C) an affirmative final determination of material injury or threat thereof under section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) the petition is filed during the 1-year period beginning on the date on which—
(A) a summary of the report submitted to the President by the International Trade Commission under section 202(f)(1) with respect to the affirmative determination described in paragraph (1)(A) is published in the
(B) notice of an affirmative determination described in subparagraph (1) is published in the
(3) the workers have become totally or partially separated from the workers' firm within—
(A) the 1-year period described in paragraph (2); or
(B) notwithstanding section 223(b)(1), the 1-year period preceding the 1-year period described in paragraph (2).
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production or services) of the Trade Act have been met.
After notice of the petitions was published in the
The following determinations terminating investigations were issued because the petitioning groups of workers are covered by active certifications. Consequently, further investigation in these cases would serve no purpose since the petitioning group of workers cannot be covered by more than one certification at a time.
I hereby certify that the aforementioned determinations were issued during the period of
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Office of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than January 27, 2014.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than January 27, 2014.
The petitions filed in this case are available for inspection at the Office of the Director, Office of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on June 17, 2013, applicable to workers of Campbell Soup Company, Finance Department, including on-site leased workers from Aerotek Professional Services, Magellan Search & Staffing, TAPFIN, and ACCU Staffing Services, Camden, New Jersey (TA-W-82,774). The Department's notice of determination was published in the
At the request of a state workforce office, the Department reviewed the certification for workers of the subject firm. The workers are engaged in finance support services.
The state workforce office reports that the workers at Pepperidge Farm, Finance Department, a subsidiary of Campbell Soup Company, including on-site leased workers from McIntyre Corporate Accounting & Finance, Norwalk, Connecticut (TA-W-82,774A)
The amended notice applicable to TA-W-82,774 is hereby issued as follows:
“All workers of Campbell Soup Company, Finance Department, including on-site leased workers from Aerotek Professional Services, Magellan Search & Staffing, TAPFIN, and ACCU Staffing Services, Camden, New Jersey (TA-W-82,774) and Pepperidge Farm, Finance Department, a subsidiary of Campbell Soup Company, including on-site leased workers from McIntyre Corporate Accounting & Finance, Norwalk, Connecticut (TA-W-82,774A) who became totally or partially separated from employment on or after May 31, 2012, through June 17, 2015, and all workers in the group threatened with total or partial separation from employment on date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.”
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers by (TA-W) number issued during the period of
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Under Section 222(a)(2)(A), the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the sales or production, or both, of such firm have decreased absolutely; and
(3) One of the following must be satisfied:
(A) Imports of articles or services like or directly competitive with articles produced or services supplied by such firm have increased;
(B) imports of articles like or directly competitive with articles into which one or more component parts produced by such firm are directly incorporated, have increased;
(C) imports of articles directly incorporating one or more component parts produced outside the United States that are like or directly competitive with imports of articles incorporating one or more component parts produced by such firm have increased;
(D) imports of articles like or directly competitive with articles which are produced directly using services supplied by such firm, have increased; and
(4) the increase in imports contributed importantly to such workers' separation or threat of separation and to the decline in the sales or production of such firm; or
II. Section 222(a)(2)(B) all of the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) One of the following must be satisfied:
(A) There has been a shift by the workers' firm to a foreign country in the production of articles or supply of services like or directly competitive with those produced/supplied by the workers' firm;
(B) there has been an acquisition from a foreign country by the workers' firm of articles/services that are like or directly competitive with those produced/supplied by the workers' firm; and
(3) the shift/acquisition contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in public agencies and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) a significant number or proportion of the workers in the public agency have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the public agency has acquired from a foreign country services like or directly competitive with services which are supplied by such agency; and
(3) the acquisition of services contributed importantly to such workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected secondary workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(c) of the Act must be met.
(1) a significant number or proportion of the workers in the workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the workers' firm is a Supplier or Downstream Producer to a firm that employed a group of workers who received a certification of eligibility under Section 222(a) of the Act, and such supply or production is related to the article or service that was the basis for such certification; and
(3) either—
(A) the workers' firm is a supplier and the component parts it supplied to the firm described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) a loss of business by the workers' firm with the firm described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in firms identified by the International Trade Commission and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(f) of the Act must be met.
(1) the workers' firm is publicly identified by name by the International Trade Commission as a member of a domestic industry in an investigation resulting in—
(A) an affirmative determination of serious injury or threat thereof under section 202(b)(1);
(B) an affirmative determination of market disruption or threat thereof under section 421(b)(1); or
(C) an affirmative final determination of material injury or threat thereof under section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) the petition is filed during the 1-year period beginning on the date on which—
(A) a summary of the report submitted to the President by the International Trade Commission under section 202(f)(1) with respect to the affirmative
(B) notice of an affirmative determination described in subparagraph (1) is published in the
(3) the workers have become totally or partially separated from the workers' firm within—
(A) the 1-year period described in paragraph (2); or
(B) notwithstanding section 223(b)(1), the 1-year period preceding the 1-year period described in paragraph (2).
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production or services) of the Trade Act have been met.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
The investigation revealed that the criteria under paragraphs (a)(2)(A) (increased imports) and (a)(2)(B) (shift in production or services to a foreign country) of section 222 have not been met.
After notice of the petitions was published in the
The following determinations terminating investigations were issued because the petitioner has requested that the petition be withdrawn.
The following determinations terminating investigations were issued in cases where these petitions were not filed in accordance with the requirements of 29 CFR 90.11. Every petition filed by workers must be signed by at least three individuals of the petitioning worker group. Petitioners separated more than one year prior to the date of the petition cannot be covered under a certification of a petition under Section 223(b), and therefore, may not be part of a petitioning worker group. For one or more of these reasons, these petitions were deemed invalid.
The following determinations terminating investigations were issued because the petitioning groups of workers are covered by active certifications. Consequently, further investigation in these cases would serve no purpose since the petitioning group of workers cannot be covered by more than one certification at a time.
I hereby certify that the aforementioned determinations were issued during the period of
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Office of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than January 27, 2014.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than January 27, 2014.
The petitions filed in this case are available for inspection at the Office of the Director, Office of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room N-5428, 200 Constitution Avenue NW., Washington, DC 20210.
Occupational Safety and Health Administration (OSHA), Labor.
Announcement of a meeting of NACOSH.
NACOSH will meet February 12, 2014, in Washington, DC. In conjunction with the committee meeting, a NACOSH Work Group will meet February 11, 2014.
OSHA will post in the public docket, without change, any comments, requests to speak, and speaker presentations, including any personal information that you provide. Therefore, OSHA cautions you about submitting personal information such as Social Security numbers and birthdates.
NACOSH will meet February 12, 2014, in Washington, DC. Some NACOSH members may attend the meeting electronically. The NACOSH meeting is open to the public.
Section 7(a) of the Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 651, 656) authorizes NACOSH to advise the Secretary of Labor and the Secretary of Health and Human Services on matters relating to the administration of the OSH Act. NACOSH is a continuing advisory body and operates in compliance with the OSH Act, the Federal Advisory Committee Act (5 U.S.C. App. 2), and regulations issued pursuant to those statutes (29 CFR part 1912a, 41 CFR part 102-3).
The tentative agenda for the NACOSH meeting includes:
Remarks from the Assistant Secretary of Labor for Occupational Safety and Health (OSHA);
Remarks from the Director of the National Institute of Occupational Safety and Health (NIOSH);
NACOSH Work Group report and consideration of work group recommendations; and
Public comments.
OSHA transcribes NACOSH meetings and prepares detailed minutes of NACOSH meetings. OSHA posts in the public docket NACOSH meeting transcripts, minutes, written comments, speaker presentations, and other materials submitted to NACOSH or presented at NACOSH and NACOSH Work Group meetings.
A NACOSH Work Group will meet February 11, 2014. The meeting is open to the public. The purpose of the NACOSH Work Group is to discuss issues affecting the occupational safety and health of temporary workers and to provide recommendations to NACOSH on best practices for ensuring the workplace safety and health of temporary workers. The NACOSH Work Group will present a report and recommendations to NACOSH at the February 12, 2014, meeting for the Committee's consideration and deliberation.
Individuals requesting special accommodation to attend the NACOSH and NACOSH Work Group meeting should contact Ms. Owens.
Because of security-related procedures, submissions by regular mail may experience significant delays. For information about security procedures for submitting materials by hand delivery, express mail, and messenger or courier service, please contact the OSHA Docket Office (see
• The amount of time requested to speak;
• The interest you represent (e.g., business, organization, affiliation), if any; and
• A brief outline of the presentation.
PowerPoint presentations and other electronic materials must be compatible with PowerPoint 2010 and other Microsoft Office 2010 formats. The NACOSH Chair may grant requests to address NACOSH as time and circumstances permit.
OSHA also places in the public docket meeting transcripts, meeting minutes, documents presented at the NACOSH meeting, and other documents pertaining to NACOSH and NACOSH Work Group meetings. These documents may be available online at
Electronic copies of this
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, authorized the preparation of this notice under the authority granted by 29 U.S.C. 656; 5 U.S.C. App. 2; 29 CFR part 1912a; 41 CFR part 102-3; and Secretary of Labor's Order No. 1-2012 (77 FR 3912 (1/25/2012)).
Nuclear Regulatory Commission.
Exemption and combined license amendment; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is granting an exemption to allow a departure from the certification information of Tier 1 of the generic design control document (DCD) and is issuing License Amendment No. 16 to Combined Licenses (COL), NPF-91 and NPF-92. The COLs were issued to Southern Nuclear Operating Company, Inc., and Georgia Power Company, Oglethorpe Power Corporation, Municipal Electric Authority of Georgia, and the City of Dalton, Georgia (the licensee) for construction and operation of the Vogtle Electric Generating Plant (VEGP), Units 3 and 4, located in Burke County, Georgia. The amendment changes the VEGP Tier 1 (COL Appendix C) Figure 2.3.10-1, Liquid Radwaste System (WLS), and Updated Final Safety Analysis Report (UFSAR) Tier 2 tables, text and figures to align VEGP Tier 1 with Tier 2 information provided in the UFSAR and to achieve consistency within VEGP Tier 1 material by (1) changing the safety classification of the Passive Core Cooling System (PXS) and Chemical and Volume Control System (CVS) compartment drain hubs, (2) changing the connection type from the PXS Compartments drains A and B to a header to match the design description, (3) changing the valve types for three valves in the Tier 1 figure to conform to the design description and (4) changing depiction of Tier 1 WLS components to conform to Tier 1 Figure Conventions.
The granting of the exemption allows the changes to Tier 1 information asked for in the license amendment request. Because the acceptability of the exemption was determined in part by the acceptability of the amendment, the exemption and amendment are being issued concurrently.
Please refer to Docket ID NRC-2008-0252 when contacting the NRC about the availability of information regarding this document. You may access publicly-available information related to this document using any of the following methods:
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David H. Jaffe, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1439; email:
The NRC is granting an exemption from Paragraph B of Section III, “Scope and Contents,” of Appendix D, “Design Certification Rule for the AP1000,” to part 52 of Title 10 of the
Part of the justification for granting the exemption was provided by the review of the amendment. Because the exemption is necessary in order to issue the requested license amendment, the NRC granted the exemption and issued the amendment concurrently, rather than in sequence. This included issuing a combined safety evaluation containing the NRC staff's review of both the exemption request and the license amendment. The exemption met all applicable regulatory criteria set forth in 10 CFR 50.12, 10 CFR 52.7, and Section VIII.A.4, Appendix D to 10 CFR Part 52. The license amendment was found to be acceptable as well. The combined safety evaluation is available in ADAMS under Accession No. ML13308A013.
Identical exemption documents (except for referenced unit numbers and license numbers) were issued to the licensee for Vogtle Units 3 and 4 (COLs NPF-91 and NPF-92); these documents can be found in ADAMS under
Reproduced below is the exemption document issued to Vogtle Units 3 and 4. It makes reference to the combined safety evaluation that provides the reasoning for the findings made by the NRC (and listed under Item 1) in order to grant the exemption:
1. In a letter dated August 6, 2013, and as supplemented by the letters dated September 16, 2013, and September 27, 2013, Southern Nuclear Operating Company (licensee) requested from the Nuclear Regulatory Commission (Commission) an exemption from the provisions of Title 10 of the
For the reasons set forth in Section 3.1 of the NRC staff Safety Evaluation which can be found at ADAMS Accession No. ML13308A013, the Commission finds that:
A. The exemption is authorized by law;
B. the exemption presents no undue risk to public health and safety;
C. the exemption is consistent with the common defense and security;
D. special circumstances are present in that the application of the rule in this circumstance is not necessary to serve the underlying purpose of the rule;
E. the special circumstances outweigh any decrease in safety that may result from the reduction in standardization caused by the exemption; and
F. the exemption will not result in a significant decrease in the level of safety otherwise provided by the design.
2. Accordingly, the licensee is granted an exemption to the provisions of 10 CFR part 52, Appendix D, Section III.B, to allow deviations from the certified DCD Tier 1, Figure 2.3.10-1 as part of license amendment request (LAR) 13-015, “Liquid Radwaste System Consistency Changes.”
3. As explained in Section 5.0 of the NRC staff Safety Evaluation (ADAMS Accession No. ML13308A013), this exemption meets the eligibility criteria for categorical exclusion set forth in 10 CFR 51.22(c)(9). Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment needs to be prepared in connection with the issuance of the exemption.
4. This exemption is effective as of the date of its issuance.
By letter dated August 6, 2013, the licensee requested that the NRC amend the COLs for VEGP, Units 3 and 4, and COLs NPF-91 and NPF-92. The licensee supplemented this application on September 16, 2013, and September 27, 2013. The proposed amendment changes the VEGP Tier 1 (COL Appendix C) Figure 2.3.10-1, WLS, and UFSAR Tier 2 tables, text and figures to align VEGP Tier 1 with Tier 2 information provided in the UFSAR and to achieve consistency within VEGP Tier 1 material by (1) changing the safety classification of the PXS and CVS compartment drain hubs, (2) changing the connection type from the PXS Compartments drains A and B to a header to match the design description, (3) changing the valve types for three valves in the Tier 1 figure to conform to the design description and (4) changing depiction of Tier 1 WLS components to conform to Tier 1 Figure Conventions.
The Commission has determined for these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed no significant hazards consideration determination, and opportunity for a hearing in connection with these actions, was published in the
The Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22(c)(9). Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments.
Using the reasons set forth in the combined safety evaluation, the staff granted the exemption and issued the amendment that the licensee requested on August 6, 2013, and supplemented by letters dated September 16 and September 27, 2013. The exemptions and amendments were issued to the licensee on December 5, 2013 as part of a combined package (ADAMS Accession No. ML13305B061). In the course of the issuance of Amendment 16 and the associated exemptions, an error was made in the date of the initial application; the date which appeared as “August 16, 2013” should have been “August 6, 2013.” The NRC corrected Amendment No. 16 and the associated exemptions for VEGP Units 3 and 4 in a letter dated December 24, 2013 (ADAMS Accession No. ML13354B940). The ADAMS Accession numbers for the corrected exemptions and amendments are unchanged.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Policy statement; revision.
The U.S. Nuclear Regulatory Commission (NRC) is updating its policy statement on products intended for use by the general public (consumer products). The update reflects our current approach to radiation protection, legislation that has been enacted since the policy was published in 1965, and subsequent approaches taken in the NRC's regulatory framework for exemptions.
This revised policy statement becomes effective on January 16, 2014.
Please refer to Docket ID NRC-2010-0292 when contacting the NRC about the availability of information for this policy statement revision. You may access publicly-
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Shirley Xu, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-7640; email:
On March 16, 1965, the Atomic Energy Commission (AEC), the NRC's predecessor agency, issued its policy statement on products intended for use by the general public (consumer products) (30 FR 3462). Under this policy, the AEC and subsequently, the NRC have periodically reevaluated the overall public safety impact to the public of products allowed to be distributed for use by the general public, which are normally used under an exemption from licensing and from all associated regulatory requirements. The NRC staff has reevaluated the policy periodically and found that it has served the agency well and withstood the passage of time. The policy was written in general terms, which contributed to its continuance of use. However, the NRC is updating the policy to include approaches and terminology more consistent with the agency's current approach to radiation protection and to recognize relevant legislative and regulatory actions taken since the policy was originally issued.
The 1965 policy used terms consistent with the approach to radiation protection represented primarily in the early documents of the International Commission on Radiation Protection (ICRP). These include “permissible dose to the gonads” and “permissible body burden.” Newer approaches to radiation protection do not apply such standards. The recommendations of the ICRP originally included control of dose to the gonads because of concern for potential genetic risks (i.e., risks to future generations). Since that time, the ICRP has updated its recommendations, which no longer include separate limits for doses to the gonads, because genetic risks are much lower than estimated at the time the policy was written. Also, early approaches to radiation protection included limits on body burden (i.e., the amount of a radionuclide present in a person's body). In newer approaches radiation protection is achieved by summing the dose from external radiation and the doses from inhaled and ingested radioactive material.
Additional updating is needed due to Federal legislation that has been enacted since 1965. The Energy Reorganization Act of 1974 revised the Atomic Energy Act in a number of ways, primarily to separate the regulatory responsibilities from the AEC and to create the NRC. Relevant AEC policies, such as the subject policy, became the NRC's policies. Also in 1974, the Commission was given the authority to create exemptions from licensing for special nuclear material in addition to byproduct material and source material. The Commission has not issued any exemptions from licensing for products containing special nuclear material, but the revised policy recognizes the authority to do so.
Another relevant legislative action was the National Environmental Policy Act (NEPA) of 1969. In subparagraph 9(c), the policy addresses the consideration of potential impacts to the environment from the possible dispersion of radioactive material and the uncontrolled disposal of products used under exemption. This is generally the primary environmental impact to be considered when evaluating a potential exemption from licensing. Specific procedures for complying with NEPA have been developed and are addressed in part 51 of Title 10 of the
Since the issuance of the 1965 policy, the Commission has issued class exemptions, under which additional products belonging to an identified class of products can be approved through a licensing action, if an applicant proposing to manufacture or distribute a product demonstrates that the product is within the class and meets certain safety criteria. This approach to exemptions from licensing is also being recognized in the policy.
Also, the safety criteria for the class exemptions include more specific criteria for accidents than were reflected in the 1965 policy. The revised policy better addresses the level of risk that is acceptable for accident and misuse scenarios. However, the guidance remains relatively general.
The policy directly applies to any potential rulemaking to add or modify exemptions from licensing that cover consumer products and usually does not apply to individual licensing actions involving such products. However, when there is need for interpretation or judgment in the ultimate decision to approve a product, the licensing staff may look to the policy for additional direction. The policy has been reflected in the applicable provisions in the regulations, including specifically the class exemptions, so that the approval of specific products in licensing actions will be consistent with the policy.
In accordance with the policy, the NRC staff has occasionally reevaluated the relevant exemptions. Three of the NRC's recent rulemaking actions included changes that reflected findings of the latest reevaluation (
Finally, the example products noted in paragraphs 5 and 6 of the policy statement are revised to be more relevant and up to date. For example, thoriated tungsten welding rods, while available to the public as off-the-shelf items, are not intended for widespread personal or household use. Likewise, shipping containers constructed with uranium as shielding are not used by the public in the form of consumer
A proposed revision of the Consumer Product Policy Statement was published for public comment on October 14, 2011 (76 FR 63957). The comment period closed December 28, 2011, and four comment letters were received. The comment letters came from the Health Physics Society, a member of a State regulatory staff, an organization representing the industry of manufacturers and distributors, and two certified health physicists (commenting together). There was general support for the policy and the intent to update it. There were no objections to the policy or to the specific changes proposed.
One commenter noted the long history of use of certain products with low dose potential to users and stated that the NRC has had a comprehensive and successful system in place for many years for evaluating the safety of devices in broad context of use in addition to the radionuclide and activity in the product. Another expressed support for the principal considerations in the policy, stating that the changes are reasonable in light of the newer approaches to radiation protection; this commenter also stated agreement with a number of specific points such as that justifiable sources of radiation exposure of the public include those that result in an overall net benefit to society. Most comments reflected a desire for the policy to be more clear or specific, with suggestions made for including additional topics and certain definitions.
One of these commenters suggested that more specificity in paragraph 1 of the Statement of Policy would also be helpful. That paragraph states that at the present time it appears unlikely that the total contribution to exposure of the general public would exceed a “fraction of limits recommended for exposure to all radiation sources” but if in the future radioactive materials were used in such quantities as to raise a question of the combined exposure from multiple products becoming a “significant fraction” of the permissible dose to the public, the Commission would reconsider its policy. This commenter indicated that it would be helpful if the “fraction of limits recommended for exposure to all radiation sources” could be quantified as well as the “significant fraction. . . ” of the public dose limit that will be used as the basis for reconsidering the policy. However, this commenter stated that there was no problem with the proposed revised policy as long as those fractions are no less restrictive than whatever is currently used.
There is no single dose level that is acceptable for all products. For example, there are two relevant class exemptions for which dose criteria form the primary basis for approving a particular product in licensing. The associated regulations present examples of specific acceptable doses for specific classes of products. One covers self-luminous products, which can be used for a multitude of purposes. For these products, the primary routine dose criterion is 1 mrem (10 µSv)/year. The class exemption for gas and aerosol detectors allows for a more limited set of purposes, which more clearly present a benefit to society, as their purpose must be to protect health, safety, or property. The primary routine dose criterion for the gas and aerosol detector exemption is 5 mrem (50 µSv)/year. These limits are both a small fraction of the current limit for doses to the public of 100 mrem (1 mSv)/year. At the time the policy was written, the recommended limit for exposures to individual members of the public was 500 mrem (5 mSv)/year to the whole body, with additional specific organ limits. As a result, somewhat higher doses from the use of consumer products could have been acceptable at that time. Providing general guidelines in terms of fractions of the recommended limits to the public from all sources continues to be considered the best approach because it is appropriate for the acceptable levels to be in proportion to the overall limits and for more beneficial products to be allowed to result in a somewhat larger fraction of the overall recommended limit than products with limited benefit.
Paragraph 1 provides a general statement of the current level of impact from all consumer products and a level of dose from the combined effect of multiple products at which the NRC will reconsider this policy. There is no way to fully quantify the total doses that individuals in the population are likely to receive as the net effect of products distributed for use under exemptions. The policy is intended to minimize the possibility that members of the public will receive a total dose from exposure to all sources (excluding natural background and medical exposures) that exceeds the public dose limit. Putting a specific value on the significant fraction of the public dose limit that might trigger the Commission to reconsider the policy would not be appropriate because (1) a specific value could imply a higher degree of certainty in any estimate of the actual cumulative impact than is possible, (2) the value may depend on how much other sources are expected to be contributing to the exposure of the public at any given time, and (3) the value may depend on the degree of benefit being obtained from the products most contributing to the cumulative exposure.
In general, the NRC does not expect the cumulative impact of consumer products to ever reach a level triggering a concern because the policy is designed to prevent unnecessary exposures and to keep individual doses a fraction of the public dose limit and as low as reasonably achievable. The balancing of impacts and benefits inherent in the policy is intended to ensure that only products that present a positive net benefit to society (i.e., justified products) are approved. Although justification of practice is a concept that applies to all practices involving the use of radioactive material, it is particularly relevant to the approval of consumer products. This is primarily because a large portion of, or essentially the entire,
Although new products have continued to be developed and approved for use by the general public, the NRC did not need to revise the policy to be more restrictive based on the criterion in paragraph 1 of the policy. This is because, in addition to the application of the justification principle limiting the total number of products approved, some products approved and used in the past have declined in use for various reasons. In addition, as the industry has matured, the amount of radioactive material used in products has often been reduced.
Finally, this update of the policy does not constitute a substantive change to the Commission's basis for decisions in this area. There is no intent to be less restrictive as a result. For all of these reasons, no changes to the Statement of Policy have been made in response to these comments.
The policy does not include a specific criterion of being able to foresee the end use of a product. However, the NRC must be able to determine whether the product warrants exemption from licensing and being unable to foresee the end use of a product limits the ability of the NRC to evaluate a number of considerations that
The Commission did, however, include a criterion in the regulations of being able to foresee the end use of a product for approval of specific products proposed for use under the class exemption for self-luminous products. These regulations specifically provide that the NRC may deny an application for a distribution license if the end uses of the product cannot be reasonably foreseen. The commenter is incorrect, however, in the interpretation of this criterion in the regulations that this means that possible misuses of the product can be foreseen. This criterion is not related primarily to misuse but rather to the ability to project how people are likely to be exposed to the radioactive material within or the radiation produced by a product, as well as the conditions under which the product would be used. Self-luminous products in particular have a wide range of potential applications and might easily be widely used for purposes other than those originally intended if not clearly designed for a specific use. This criterion also ensures that the uses (not the occasional misuse) of radioactive material in products are justified. The NRC considers the potential for unintended end uses that may occur on a widespread basis differently from misuse or “mishandling” as used in paragraph 4 of the policy, although the NRC recognizes that, in some cases, a product with relatively wide open end uses might also be more likely to be misused.
New products expected to be widely distributed and to expose much of the population warrant a more careful weighing of impacts and benefits, and more attention to ensuring that doses will be as low as is reasonably achieveable (ALARA), if the product is approved, than those that are likely to have limited distribution. This helps ensure minimization of the likelihood that large segments of the population would receive a significant cumulative radiation dose from being exposed to many exempt products.
The NRC notes that, while labeling was considered an important issue for some products, the agency has not had a uniform policy of always requiring labeling of consumer or other products for the purpose of informing purchasers and others of the presence of radioactive material. In the past, the Commission was more inclined to require labeling when it was a matter of safety (i.e., when a user may reasonably minimize one's exposure with proper handling). This practice is indeed consistent with the ALARA principle. The description in the comment letter of the evolving practice of requiring labeling, when practical, is correct, at least as new exemptions were added. With the recent revisions made to 10 CFR part 40 (May 29, 2013; 78 FR 32310), this practice has been more uniformly applied by adding labeling requirements for some older exemptions from licensing.
The draft Statement of Policy published for public comment has been further revised to clarify points not addressed by the comments. Most importantly, in the area of accident risks in paragraph 2 of the draft Statement of Policy, the upper limit of potential doses to individuals was characterized as approaching a level that could cause immediate effects being negligible. This has been revised to state that the probability of individual doses exceeding a level that could cause effects for which there is a threshold dose must be negligible.
The U.S. Nuclear Regulatory Commission (NRC) issues this Policy Statement to set forth its policy with respect to approval of the use of byproduct material, source material, and special nuclear material in products intended for use by the general public (consumer products) without the imposition of regulatory controls on the consumer-user. This is accomplished by the exemption, on a case-by-case basis, of the possession and use of the approved items from the licensing requirements for byproduct, source, or special nuclear material of the Atomic Energy Act of 1954, as amended, and of the Commission's regulations in 10 CFR part 30, “Rules of General Applicability to Domestic Licensing of Byproduct Material,” 10 CFR part 40, “Domestic Licensing of Source Material,” or 10 CFR part 70, “Domestic Licensing of Special Nuclear Material.”
1. At the present time it appears unlikely that the total contribution to the exposure of the general public to radiation from the use of radioactivity in consumer products will exceed a fraction of limits recommended for exposure to radiation from all sources. Information as to total quantities of radioactive materials being used in such products and the number of items being
2. Approval of a proposed consumer product, and adding a new exemption from licensing provision to the regulations, depends upon associated exposures of persons to radiation and the apparent usefulness of the product. In general, risks of exposure to radiation will be considered to be acceptable if it is shown that in handling, use, and disposal of the product, it is unlikely that individuals in the population will receive more than a small fraction, less than a few hundredths, of individual dose limits in the NRC's regulations and as recommended by such groups as the International Commission on Radiological Protection, the National Council on Radiation Protection and Measurements, and the U.S. Environmental Protection Agency, and that the probability of individual doses exceeding the limits is low. Otherwise, a decision will be more difficult and will require a careful weighing of all factors, including benefits that will accrue or be denied to the public as a result of the Commission's action. Factors that may be pertinent are listed in paragraphs 9 and 10. However, in any case, the probability of individual doses exceeding a level that could cause effects for which there is a threshold dose must be negligible, even in the event of severe accidents involving the numbers of a product that may be present during distribution.
3. Products proposed for distribution will be useful to some degree. Normally, the Commission will not attempt an extensive evaluation of the degree of benefit or usefulness of a product to the public. However, in cases where tangible benefits to the public are questionable and approval of a product may result in widespread use of radioactive material, such as in common household items, the degree of usefulness and benefit to the public may be a deciding factor. In particular, the Commission considers that the use of radioactive material in toys, novelties, and adornments may be of marginal benefit.
4. Applications for approval of “off-the-shelf” items that are subject to mishandling, especially by children, will be approved only if they are found to combine an unusual degree of utility and safety.
5. The Commission has approved certain long-standing uses of source material, many of which predate the atomic energy program. These include:
(a) Use of uranium to color glass for certain decorative purposes; and
(b) Thorium in various alloys and products (e.g., gas mantles, optical lenses, and tungsten wire in such things as electric lamps and vacuum tubes) to impart desirable physical properties.
6. The Commission has also approved the use of tritium as a substitute luminous material for the long-standing use of radium for this purpose on watch and clock dials and hands.
7. The Commission has approved additional uses of byproduct and source material in consumer products. These include the following:
(a) Tritium and other radionuclides in electron tubes;
(b) Americium-241 in smoke detectors; and
(c) Thorium and uranium in piezoelectric ceramic, which is used in many electronic products and other consumer products.
8. In approving uses of byproduct, source, or special nuclear material in consumer products, the Commission establishes limits on quantities or concentrations of radioactive materials and, if appropriate, on radiation emitted. In the case of class exemptions covering a class of products, specific safety criteria are included in the regulations, which require the applicant to evaluate many pathways of exposure of the public. In some cases, other limitations considered important to health and safety, such as quality control and testing, are also specified. In most cases, labeling of the product, when practical, or the point-of-sale packaging is required to inform purchasers and others of the presence of radioactive material.
9. In evaluating proposals for the use of radioactive materials in consumer products the principal considerations are:
(a) The potential external and internal exposure of individuals in the population to radiation from the handling, use, storage, and disposal of individual products;
(b) The potential total cumulative radiation dose to individuals in the population who may be exposed to radiation from a number of products;
(c) The long-term potential external and internal dose to the general population from the uncontrolled disposal and dispersal into the environment of radioactive materials from products authorized by the Commission; and
(d) The societal benefit that will accrue to or be denied because of the usefulness of the product by approval or disapproval of a specific product.
10. The general criteria for approval of individual products are set forth in paragraph 2. Detailed evaluation of potential doses will take into consideration the following factors, together with other considerations that may appear pertinent in the particular case:
(a) The external radiation levels from the product.
(b) The proximity of the product to human tissue during use.
(c) The area of tissue exposed. A dose to the skin of the whole body would be considered more significant than a similar dose to a small portion of the skin of the body.
(d) Potential of the radionuclides to cause doses from intakes. Materials that result in lower dose when taken into the body would be considered more favorably than materials that result in higher doses from intakes.
(e) The quantity of radioactive material per individual product. The smaller the quantity, the more favorably would the product be considered.
(f) Form of material. Materials with a low solubility in body fluids and the environment will be considered more favorably than those with a high solubility.
(g) Containment of the material. Products that contain the material under very severe environmental conditions will be considered more favorably than those that will not contain the material under such conditions.
(h) Degree of access to product during normal handling and use. Products that are inaccessible to children and other persons during use will be considered more favorably than those that are accessible.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Draft regulatory issue summary; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is seeking public comment on a draft regulatory issue summary (RIS) that reminds holders of renewed licenses of the requirements to maintain the effectiveness of their aging management programs and activities. The RIS explains that, in general, renewed license holders are obligated to maintain these programs and activities under their quality assurance program used to meet existing regulatory requirements.
Submit comments by February 18, 2014. Comments received after this date will be considered if it is practical to do so, but the NRC is able to assure consideration only for comments received on or before this date.
You may submit comment by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
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For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
James Keene, telephone: 301-415-1994, email:
Please refer to Docket ID NRC-2014-0009 when contacting the NRC about the availability of information regarding this document. You may access publicly-available information related to this action by the following methods:
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Please include Docket ID NRC-2014-0009 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC posts all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The NRC issues RISs to communicate with stakeholders on a broad range of regulatory matters. This may include communicating staff technical positions on matters that have not been communicated to or are not broadly understood by the nuclear industry.
The NRC staff has developed draft RIS 201X-XX, “Maintaining the Effectiveness of License Renewal Aging Management Programs,” to remind holders of renewed licenses of the requirements to maintain the effectiveness of their aging management programs and activities. The RIS explains that, in general, renewed license holders are obligated to maintain these programs and activities under their quality assurance program used to meet existing regulatory requirements. The draft RIS is available electronically under ADAMS Accession No. ML13231A033.
For the Nuclear Regulatory Commission.
Thursday, January 23, 2014 from 1:00 p.m.-2:00 p.m. (Eastern standard time).
Will be announced on the
This meeting will be open to the public.
The Privacy and Civil Liberties Oversight Board will meet for the disposition of official business. At the meeting, the Board will be voting on the issuance of its report on the surveillance program operated pursuant to Section 215 of the USA PATRIOT Act and the operations of the Foreign Intelligence Surveillance Court. Additional information on the Board's review of this program, such as the prior public workshop and hearing, is available at
The meeting is open to the public. Pre-registration is not required. Individuals who plan to attend and
Ms. Susan Reingold, Chief Management Officer, 202-331-1986.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to adopt a Priority Customer Rebate Program. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to continue its Priority Customer Rebate Program (the “Program”) on an ongoing basis beyond the current expiration date of December 31, 2013. The Program currently applies to the period beginning December 1, 2013 and ending December 31, 2013.
The Exchange will aggregate the contracts resulting from Priority Customer orders transmitted and executed electronically on the Exchange from affiliated Members for purposes of the thresholds above, provided there is at least 75% common ownership between the firms as reflected on each firm's Form BD, Schedule A. In the event of a MIAX System outage or other interruption of electronic trading on MIAX, the Exchange will adjust the national customer volume in multiply-listed options for the duration of the outage. A Member may request to receive its credit under the Priority Customer Rebate Program as a separate direct payment.
In addition, the rebate payments will be calculated from the first executed contract at the applicable threshold per contract credit with the rebate payments made at the highest achieved volume tier for each contract traded in that month. For example, if Member Firm XYZ, Inc. (“XYZ”) has enough Priority Customer contracts to achieve 2.5% of the national customer volume in multiply-listed option contracts during the month of October, XYZ will receive a credit of $0.18 for each Priority Customer contract executed in the month of October.
The purpose of the Program is to encourage Members to direct greater Priority Customer trade volume to the Exchange. Increased Priority Customer volume will provide for greater liquidity, which benefits all market participants. The practice of incentivizing increased retail customer order flow in order to attract professional liquidity providers (Market-Makers) is, and has been, commonly practiced in the options
The specific volume thresholds of the Program's tiers were set based upon business determinations and an analysis of current volume levels. The volume thresholds are intended to incentivize firms that route some Priority Customer orders to the Exchange to increase the number of orders that are sent to the Exchange to achieve the next threshold and to incent new participants to send Priority Customer orders as well. Increasing the number of orders sent to the Exchange will in turn provide tighter and more liquid markets, and therefore attract more business overall. Similarly, the different credit rates at the different tier levels were based on an analysis of revenue and volume levels and are intended to provide increasing “rewards” for increasing the volume of trades sent to the Exchange. The specific amounts of the tiers and rates were set in order to encourage suppliers of Priority Customer order flow to reach for higher tiers.
The Exchange proposes limiting the Program to multiply-listed options classes on MIAX because MIAX does not compete with other exchanges for order flow in the proprietary, singly-listed products.
The Exchange proposes excluding mini-options and executions related to contracts that are routed to one or more exchanges in connection with the Options Order Protection and Locked/Crossed Market Plan referenced in Exchange Rule 1400 from the Program. The Exchange notes these exclusions are nearly identical to the ones made by CBOE.
The credits paid out as part of the program will be drawn from the general revenues of the Exchange.
The Exchange believes that its proposal to amend its fee schedule is consistent with Section 6(b) of the Act
The Exchange believes that the proposed Priority Customer Rebate Program is fair, equitable and not unreasonably discriminatory. The Program is reasonably designed because it will incent providers of Priority Customer order flow to send that Priority Customer order flow to the Exchange in order to receive a credit in a manner that enables the Exchange to improve its overall competitiveness and strengthen its market quality for all market participants. The proposed rebate program is fair and equitable and not unreasonably discriminatory because it will apply equally to all Priority Customer orders. All similarly situated Priority Customer orders are subject to the same rebate schedule, and access to the Exchange is offered on terms that are not unfairly discriminatory. In addition, the Program is equitable and not unfairly discriminatory because, while only Priority Customer order flow qualifies for the Program, an increase in Priority Customer order flow will bring greater volume and liquidity, which benefit all market participants by providing more trading opportunities and tighter spreads. Similarly, offering increasing credits for executing higher percentages of total national customer volume (increased credit rates at increased volume tiers) is equitable and not unfairly discriminatory because such increased rates and tiers encourage Members to direct increased amounts of Priority Customer contracts to the Exchange. The resulting increased volume and liquidity will benefit those Members who receive the lower tier levels, or do not qualify for the Program at all, by providing more trading opportunities and tighter spreads.
Limiting the Program to multiply-listed options classes listed on MIAX is reasonable because those parties trading heavily in multiply-listed classes will now begin to receive a credit for such trading, and is equitable and not unfairly discriminatory because the Exchange does not trade any singly-listed products at this time. If at such time the Exchange develops proprietary products, the Exchange anticipates having to devote a lot of resources to develop them, and therefore would need to retain funds collected in order to recoup those expenditures.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that the proposed change would increase both intermarket and intramarket competition by incenting Members to direct their Priority Customer orders to the Exchange, which will enhance the quality of quoting and increase the volume of contracts traded here. To the extent that there is additional competitive burden on non-Priority Customers, the Exchange believes that this is appropriate because the rebate program should incent Members to direct additional order flow to the Exchange and thus provide additional liquidity that enhances the quality of its markets and increases the volume of contracts traded here. To the extent that this purpose is achieved, all the Exchange's market participants should benefit from the improved market liquidity. Enhanced market quality and
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The purpose of the proposed rule change is to expand on the Exchange's past description of the PULSe workstation. There are no proposed changes to the text of the Exchange's rules.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to expand on the Exchange's past description of the PULSe workstation. By way of background, the PULSe workstation is a front-end order entry system designed for use with respect to orders that may be sent to the trading systems of CBOE and CBOE Stock Exchange, LLC (“CBSX”), CBOE's stock trading facility. In addition, the PULSe workstation provides a user with the capability to send options orders to other U.S. options exchanges and/or stock orders to other U.S. stock exchanges and trading centers
The PULSe workstation is made available to Trading Permit Holders by Signal Trading Systems, LLC (“STS”).
The Exchange is proposing to allow a Trading Permit Holder that licenses the PULSe workstation and makes workstations available to its customers (including sponsored users) to “co-brand” the workstations used by those customers.
The Exchange notes that if a Trading Permit Holder elects to co-brand PULSe workstations, the PULSe logo will continue to be on the workstation screen. The PULSe workstation functionality will not change and will
The Exchange notes that FlexTrade
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, describing the new “co-branding” service available to PULSe Trading Permit Holder users provides more information to the public about PULSe, which information benefits investors and the public. Permitting PULSe Trading Permit Holder users to have their branding included on PULSe workstations that they make available to their customers (including sponsored users) is reasonable given that, as discussed above, Trading Permit Holders are responsible for their customers' orders entered into PULSe workstations, as well as for any applicable PULSe fees related to workstations used and orders entered into those workstations by their customers. Trading Permit Holder users' election to co-brand those workstations is consistent with those responsibilities and provides those users with more freedom in their uses of the PULSe workstations, which perfects the mechanism of a free and open market and a national market system.
The PULSe functionality remains unchanged. If a Trading Permit Holder elects to use the co-branding service, STS would merely add information (such as a name or logo) to the workstation screen and change nothing else with respect to PULSe. PULSe currently competes with similar products offered by other technology providers as well as other options exchanges. Additionally, firms can continue to create their own proprietary front-end order entry software. Given the robust competition for volume among options exchanges, offering additional services on PULSe that may attract order flow is consistent with the above-mentioned goals of the Act.
The Exchange believes that the proposed rule change does not discriminate between Trading Permit Holders because the use by Trading
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange will make the co-branding service described in this rule filing available to all Trading Permit Holders that use PULSe on the same terms and conditions, and use of the co-branding service is completely voluntary. As discussed above, the Exchange believes it is reasonable to not offer the co-branding service to non-Trading Permit Holder customers of PULSe.
Trading Permit Holders (and their customers) will continue to have the flexibility to use any order-entry technology they choose to access the Exchange and may elect not to use the co-branding service if they elect to use PULSe. The PULSe functionality remains unchanged and continues to be made available as described in this and previous rule filings. The Exchange is merely offering Trading Permit Holder that use PULSe the opportunity to add branding to the workstation screens used by their customers (including sponsored users) for which workstations and orders entered through those workstations the Trading Permit Holders are responsible. This service would only add information to the workstation screen and change nothing else with respect to PULSe. The Exchange's offering of the co-branding service is another effort to have PULSe compete with the numerous other order-entry systems available in the marketplace. If Trading Permit Holders believe that other order-entry systems available in the marketplace are more beneficial than PULSe, then Trading Permit Holders may simply use those products instead. Orders sent to the Exchange for execution by Trading Permit Holders that use PULSe, whether they co-brand or not, will receive no preferential treatment.
CBOE believes that the proposed rule change will relieve any burden on, or otherwise promote, competition. CBOE will be offering a service with respect to PULSe that is available or could be made available on similar products throughout the industry. Market participants can also develop their own proprietary products with the same functionality, which they can offer to their customers. Market participants are also able to become Trading Permit Holders and license PULSe, and elect to co-brand PULSe workstations for their customers, if they believe the new co-branding service makes CBOE and PULSe more attractive.
The Exchange neither solicited nor received comments on the proposed rule change.
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 Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 14, 2013, Topaz Exchange, LLC (d/b/a ISE Gemini) (the “Exchange”) filed with the Securities and Exchange Commission
The Exchange's MRVP specifies those uncontested minor rule violations with sanctions not exceeding $2,500 that would not be subject to the provisions of Rule 19d-1(c)(1) of the Act,
According to the Exchange's proposed MRVP, under Exchange Rule 1614, the Exchange may impose a fine (not to exceed $2,500) on any Member, or person associated with or employed by any Member, with respect to any rule listed in Exchange Rule 1614(d).
Upon the Commission's declaration of effectiveness of the Exchange's MRVP, the Exchange will provide the Commission a quarterly report for any actions taken on minor rule violations under the MRVP. The quarterly report will include: The Exchange's internal file number for the case, the name of the individual and/or organization, the nature of the violation, the specific rule provision violated, the sanction imposed, the number of times the rule violation occurred, and the date of disposition.
The Commission finds that the proposed MRVP is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange. In particular, the Commission believes that the proposal is consistent with Section 6(b)(5) of the Act,
Finally, the Commission finds that the proposal is consistent with the public interest, the protection of investors, or otherwise in furtherance of the purposes of the Act, as required by Rule 19d-1(c)(2) under the Act,
In declaring the Exchange's MRVP effective, the Commission in no way minimizes the importance of compliance with Exchange rules and all other rules subject to the imposition of sanctions under Exchange Rule 1614. The Commission believes that the violation of an SRO's rules, as well as Commission rules, is a serious matter. However, Exchange Rule 1614 provides a reasonable means of addressing violations that do not rise to the level of requiring formal disciplinary proceedings, while providing greater flexibility in handling certain violations. The Commission expects that the Exchange will continue to conduct surveillance with due diligence and make determinations based on its findings, on a case-by-case basis, regarding whether a sanction under the MRVP is appropriate, or whether a violation requires formal disciplinary action.
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 Interpretation and Policy .02 to Rule 11.8, entitled “Competitive Liquidity Provider Program.”
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 purpose of this filing is to amend Interpretation and Policy .02 to Rule 11.8 in order to allow both corporate issues and ETPs
When the Program was first proposed,
The Exchange believes that its proposal 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(b) of the Act.
The proposal is designed to maintain and further enhance the Exchange's competitiveness as a listing venue and its market quality for Exchange-listed securities. The Exchange believes that the proposed change will enhance market quality by extending the period of eligibility for CLP Securities to participate in the Program, which will further incent Exchange Market Makers to register as CLPs and quote in Exchange-listed securities, thus maintaining or improving the quality of quoting in Exchange-listed securities subject to the Program and helping to reduce imbalances in Exchange auctions. The Exchange also believes that the proposed change will further assist the Exchange in competing as a listing venue by providing an even longer window during which the Program is applied and competitive quoting is incented on the Exchange. Accordingly, the Exchange believes that the proposal will enhance the existing Program for CLP Securities subject to the Program, which will, in turn, provide issuers of CLP Securities with another option for raising capital in the public markets, thereby promoting the principles discussed in Section 6(b)(5) of the Act.
The proposed rule change does not impose any burden on competition. The
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, the proposed rule change 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.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the fee schedule under Exchange Rule 7018(a) with respect to transactions in securities priced at $1 per share or more. The Exchange will implement the proposed rule change on January 2, 2014.
The text of the proposed rule change is also available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to adopt a new tier with respect to the rebates it pays for orders that access liquidity in securities priced at $1 or more. The new tier applies to members that are active in both the NASDAQ OMX BX Equities System (the “BX Equities System”) and BX Options. As such, the tier is similar to various tiers that have previously been introduced by the NASDAQ Stock Market for members of that exchange that are active in both the NASDAQ Market Center and the NASDAQ Options Market, as well as a tier with respect to charges of providing liquidity that was introduced by the Exchange in December 2013.
The proposed tier recognizes the prevalence of trading in which members simultaneously trade different asset classes within the same strategy. Because cash equities and options markets are linked, with liquidity and trading patterns on one market affecting those on the other, the Exchange believes that a pricing incentive that encourages market participant activity in BX Options will also support price discovery and liquidity provision in the BX Equities System.
BX believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The change with respect to a new tier for members active in both the BX Equities System and BX Options is reasonable because it reflects the availability of a price reduction for members that support liquidity on both markets. The change is consistent with an equitable allocation of fees because the pricing tier requires significant levels of activity in both markets, and is therefore consistent with volumetric pricing tiers at BX and many other exchanges, which offer better pricing to members that make significant use of an Exchange's services. The change is also consistent with an equitable allocation of fees because activity in BX Options also supports price discovery and liquidity provision in the BX Equities System due to the increasing propensity of market participants to be active in both markets and the influence of each market on the pricing of securities in the other. Moreover, the new tier has the potential to reduce fees for a wider range of market participants by introducing a new means of qualifying for a higher credit for accessing liquidity. The change is not unreasonably discriminatory because market participants may qualify for a comparable credit without participating in BX Options through another volumetric pricing tier that BX offers.
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.
No written comments were either solicited or received.
The foregoing 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 Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number SR-BX-2013-065 and should be submitted on or before February 6, 2014.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 13, 2013, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change and the comment received. The proposed rule change would, among other things, provide for post-trade transparency of transactions in certain asset-backed securities.
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
FINRA is proposing to extend the expiration date of FINRA Rule 0180 (Application of Rules to Security-Based Swaps) to February 11, 2015. FINRA Rule 0180 temporarily limits, with certain exceptions, the application of FINRA rules with respect to security-based swaps.
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
On July 1, 2011, the SEC issued an Order granting temporary exemptive relief (the “Temporary Exemptions”) from compliance with certain provisions of the Exchange Act in connection with the revision, pursuant to Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”),
The Commission, noting the need to avoid a potential unnecessary disruption to the security-based swap market in the absence of an extension of the Temporary Exemptions, and the need for additional time to consider the potential impact of the revision of the Exchange Act definition of “security” in light of recent Commission rulemaking efforts under Title VII of the Dodd-Frank Act, issued an Order extending the expiration date of the Temporary Exemptions until February 11, 2014.
The Commission's rulemaking and development of guidance in relation to security-based swap activities is ongoing. As such, FINRA believes it is appropriate and in the public interest, in light of the Commission's goals as set forth in the Exemptive Release and the Temporary Exemptions Extension Release, to extend FINRA Rule 0180 for a limited period, to February 11, 2015, so as to avoid undue market disruptions resulting from the change to the definition of “security” under the Act. As noted in the FINRA Rule 0180 Notice of Filing, FINRA will amend the expiration date of Rule 0180 in subsequent filings as necessary such that the expiration date will be coterminous with the termination of relevant provisions of the Temporary Exemptions.
FINRA has filed the proposed rule change for immediate effectiveness. FINRA is proposing that the implementation date of the proposed rule change will be February 11, 2014.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. FINRA believes that the proposed rule change would prevent undue market disruption that would otherwise result if security-
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-FINRA-2014-001 and should be submitted on or before February 6, 2014.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Section 209(a) of the Foreign Missions Act (22 U.S.C. 4309(a)) (hereinafter “the Act”) authorizes the Secretary of State to make any provision of the Act applicable with respect to international organizations to the same extent that it is applicable with respect to foreign missions when he determines that such application is necessary to carry out the policy set forth in section 201(b) of the Act (22 U.S.C. 4301(b)) and to further the objectives set forth in section 204(b) of the Act (22 U.S.C. 4304(b)).
Section 209(b) of the Act (22 U.S.C. 4309(b)) defines “international organization” as (1) a public international organization designated as such pursuant to the International Organizations Immunities Act (22 U.S.C. § 288
Pursuant to the authority vested in the Secretary of State by the Act, and delegated by the Secretary of State to me as the Under Secretary of State for Management in Delegation of Authority No. 198, dated September 16, 1992, I hereby determine that the application of all provisions of the FMA to international organizations, as that term is defined in section 209(b), is necessary to facilitate the secure and efficient operation of public international organizations and the official missions to such organizations, to assist in obtaining benefits, privileges and immunities for these organizations, and to require their observance of corresponding obligations in accordance with international law. It will also further the objectives set forth in section 204(b) of the Act as it will assist in protecting the interests of the United States.
Furthermore, I determine that the principal offices of an international organization used for diplomatic or related purposes, and annexes to such offices (including ancillary offices and support facilities), and the site and any
This action supersedes the determinations under the Foreign Missions Act relating to permanent missions to the United Nations made by the Acting Secretary of State on December 7, 1982, and by the Secretary of State on June 6, 1983.
Pursuant to the authority vested in the Secretary of State by the laws of the United States, including the Foreign Missions Act (codified at 22 U.S.C. 4301-4316) (hereinafter “the Act”), and delegated by the Secretary to me as the Under Secretary of State for Management in Delegation of Authority No. 198, dated September 16, 1992, and after due consideration of the benefits, privileges, and immunities provided to missions of the United States abroad, as well as matters related to the protection of the interests of the United States, I hereby designate as a benefit for purposes of the Act: exemption from taxes associated with the purchase, ownership, and disposition of real property, other than such as represent payment for specific services rendered (hereinafter collectively referred to as “real estate taxes”)—including, but not limited to, annual property tax, recordation tax, transfer tax, and the functional equivalent of deed registration charges and stamp duties—by a foreign mission on the basis of the property's authorized use for diplomatic or consular purposes or by an international organization on the basis of the property's authorized use for the official business of the organization.
Exemption from real estate taxes on the basis of a property's authorized use for diplomatic or consular purposes or for the official business of an international organization is available to a foreign mission or international organization only with respect to property authorized by the Department of State's Office of Foreign Missions (OFM) for use as:
1. the premises of a bilateral diplomatic mission or consular post, headed by a career consular officer, that is owned by the respective foreign government or the head of the mission or consular post;
2. the premises of a consular post, headed by an honorary consular officer, that is owned by the respective foreign government;
3. the primary residence of the head of a bilateral diplomatic mission or a career head of a consular post, that is owned by the respective foreign government or the head of the mission or consular post;
4. the primary residence of a member or members of the staff of a bilateral diplomatic mission or career consular post, that is owned by the respective foreign government;
5. the premises of the Organization of American States (OAS) or the United Nations (UN), that is owned by the respective organization;
6. the primary residence of the head (Secretary General) of the OAS Secretariat or the UN Secretariat, that is owned by the respective organization;
7. the primary residence of a member or members of the staff of the OAS or the UN, that is owned by the respective organization;
8. the premises of a permanent mission to the OAS or the UN, that is owned by the respective foreign government;
9. the primary residence of a principal representative or resident representative of a permanent mission to the OAS or the UN with a rank of ambassador or minister plenipotentiary, that is owned by the respective foreign government;
10. the primary residence of a member or members of the staff of a permanent mission to the OAS or the UN, that is owned by the respective foreign government;
11. the premises of an observer mission to the OAS or the UN of a state recognized by the United States, that is owned by the respective foreign government;
12. the primary residence of a principal representative or resident representative of an observer mission to the OAS or the UN of a state recognized by the United States with a rank of ambassador or minister plenipotentiary, that is owned by the respective foreign government;
13. the primary residence of a member or members of the staff of an observer mission to the OAS or the UN of a state recognized by the United States, that is owned by the respective foreign government;
14. the premises of an international organization designated under the International Organization Immunities Act (IOIA), other than the OAS or UN, that is owned by the respective organization and is located in the District of Columbia;
15. the primary residence of the head of an international organization designated under the IOIA, other than the OAS or UN, that is owned by the respective organization and is located in the District of Columbia;
16. the primary residence of a member or members of the staff of an international organization designated under the IOIA, other than the OAS or UN, that is owned by the respective organization and is located in the District of Columbia;
17. a residence used for temporarily lodging representatives or employees of a government of a state recognized by the United States, who visit the United States for bilateral or multilateral diplomatic or consular purposes, that is owned by the respective foreign government; or
18. another category of property authorized by OFM.
Property that is owned by a foreign government or international organization for the purpose of constructing or renovating facilities and that OFM has authorized for use for any of the purposes described above is eligible for an exemption from real estate taxes, provided that OFM authorized the acquisition of such property.
I similarly designate as a benefit for purposes of the Act an exemption from real estate taxes on mission premises and residences described above that are in the custody or control of the United States pursuant to 22 U.S.C. 4305(c).
I determine that exemption from real estate taxes on the basis of a property's authorized use for diplomatic or consular purposes or for the official business of an international organization shall be provided on such terms and conditions as OFM may approve. The manner in which such benefits shall be extended by states, counties, municipalities, and territories shall also be subject to such terms and conditions as OFM may approve.
Following are the current terms and conditions governing the provision of exemptions from real estate taxes to foreign missions and international organizations on the basis of a property's authorized use for diplomatic or consular purposes or for the official business of an international organization:
• The determination of a foreign mission or international organization's entitlement to an exemption from real estate taxes associated with a property of a type described above, on the basis of the property's authorized use for
• All such letters will be signed by the Director of OFM's Office of Diplomatic Property, Tax, Services and Benefits (OFM/PTSB), or a successor office.
• Such letters serve as official notice to the relevant state, county, municipality, or territory that the described property or transaction is or is not entitled to an exemption from real estate taxes on the basis of the property's authorized use for diplomatic or consular purposes or for the official business of an international organization.
• States, counties, municipalities, and territories are prohibited from extending to a foreign mission or international organization an exemption from real estate taxes associated with a property on the basis of the property's authorized use for diplomatic or consular purposes or for the official business of the international organization, except on the basis of written authorization from OFM.
• Conversely, on the basis of a letter as described above, states, counties, municipalities, and territories are required to extend to a foreign mission or international organization an exemption from real estate taxes to which OFM determines a foreign mission or international organization is entitled. If a state, county, municipality or territory has concerns regarding the extension of such exemption benefits, it should raise the matter directly with OFM.
• Unless otherwise determined by OFM, the effective date of OFM's authorization of an exemption from real estate taxes is the date the property deed in question is signed or transferred.
• States, counties, municipalities, and territories may establish additional procedures to ensure the proper extension of such exemption benefits, provided that:
○ such procedures, including the establishment and use of any forms, serve only to facilitate the state, county, municipality, or territory's extension of exemption benefits to a foreign mission or international organization and not as a means to determine the foreign mission's or international organization's entitlement to the exemption benefit associated with a property on the basis of the property's authorized use for diplomatic or consular purposes or for the official business of the international organization, which determination is committed to the sole discretion of the Department of State; and
○ the state, county, municipality, or territory obtain written approval from the Director of OFM/PTSB confirming that the proposed procedural requirements do not violate or infringe on any benefits, privileges, or immunities enjoyed by foreign missions or international organizations.
Finally, I further determine that any state or local laws to the contrary are hereby preempted.
The exemption from real estate taxes provided by this designation and determination shall apply to taxes that have been or will be assessed against any foreign mission or international organization with respect to property subject to this determination and shall nullify any existing tax liens with respect to any covered property. This determination shall not require the refund of any taxes previously paid by any foreign mission or international organization regarding such property. These actions are not exclusive and are independent of alternative legal grounds that support the tax exemption afforded herein.
The actions taken in this Designation and Determination are necessary to facilitate relations between the United States and foreign states, protect the interests of the United States, adjust for costs and procedures of obtaining benefits for missions of the United States abroad, and carry out the policy set forth in 22 U.S.C. 4301(b).
This action supersedes the Designation and Determination under the Foreign Missions Act made by the Deputy Secretary of State for Management and Resources on June 23, 2009.
Federal Aviation Administration (FAA), DOT.
Notice of public meeting.
This notice announces a public meeting via teleconference of the FAA's Aviation Rulemaking Advisory Committee (ARAC) Transport Airplane and Engine (TAE) Subcommittee to discuss TAE issues.
The teleconference is scheduled for Monday, February 10, 2014, starting at 8:00 a.m. PST/11:00 a.m. EST. The public must make arrangements by February 5, 2014, to present oral statements at the meeting.
N/A.
Ralen Gao, Office of Rulemaking, ARM-209, FAA, 800 Independence Avenue SW., Washington, DC 20591, Telephone (202) 267-3168, FAX (202) 267-5075, or email at
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463; 5 U.S.C. app. 2), notice is given of an ARAC Subcommittee meeting via teleconference to be held February 10, 2014.
The agenda for the meeting is as follows:
Participation is open to the public, but will be limited to the availability of teleconference lines.
To participate, please contact the person listed in
The public must make arrangements by February 5, 2014, to present oral or written statements at the meeting. Written statements may be presented to the Subcommittee by providing a copy to the person listed in the
If you need assistance or require a reasonable accommodation for the meeting or meeting documents, please contact the person listed in the
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before February 5, 2014.
You may send comments identified by Docket Number FAA-2013-0982 using any of the following methods:
•
•
•
•
Katherine L. Haley, ARM-203, Federal Aviation Administration, Office of Rulemaking, 800 Independence Ave. SW., Washington, DC 20591; email
This notice is published pursuant to 14 CFR 11.85.
Docket No.: FAA-2013-0982
Petitioner: Hartzell Propeller Inc.
Section of 14 CFR Affected:
14 CFR part: 45.13(a)(4)
Description of Relief Sought:
The petitioner is requesting relief from having type certificate markings on the blades of propellers.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before January 27, 2014.
You may send comments identified by Docket Number FAA-2002-13734 using any of the following methods:
•
•
•
•
Keira Jones (202) 267-4024, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Docket No.: FAA-2002-13734
Petitioner: Republic Airlines, Shuttle America Corporation and Chautauqua Airlines
Section of 14 CFR Affected:
14 CFR 93.123
Description of Relief Sought:
Republic Airlines and Shuttle America Corporation seek authorization for Shuttle America to use Slot 1497 for continued service to DCA-Madison for
Federal Transit Administration, DOT.
Notice of charter renewal.
The Federal Transit Administration (FTA) announces the charter renewal of the Transit Advisory Committee for Safety (TRACS), a Federal Advisory Committee established by the U.S. Secretary of Transportation (the Secretary) in accordance with the Federal Advisory Committee Act to provide information, advice, and recommendations to the Secretary and the Federal Transit Administrator on matters relating to the safety of public transportation systems. This charter will be effective for two years from the date of this
This notice is provided in accordance with the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. App. 2). As noted above, TRACS is a Federal Advisory Committee established to provide information, advice, and recommendations to the Secretary and the Administrator of the Federal Transit Administration on matters relating to the safety of public transportation systems. With the renewed charter, TRACS is renamed as the Transit Advisory Committee for Safety (for continuity the acronym will remain TRACS). The term “RAIL” is omitted from the original title of the advisory committee to reflect the broader current mandate of TRACS to advise on all public transportation safety matters. In addition, TRACS is increased to approximately 29 members representing a broad base of expertise necessary to discharge its responsibilities. Please see the TRACS Web site for additional information at
Federal Transit Administration (FTA), DOT.
Notice of availability of final circular
The Federal Transit Administration (FTA) has placed in the docket and on its Web site, guidance, in the form of a Circular, to assist recipients in their implementation of the Urbanized Area Formula Program. The purpose of this Circular is to provide recipients of FTA financial assistance with instructions and guidance on the program's administration and the grant application process.
For program matters, Adam Schildge, Office of Project Management, Federal Transit Administration, 1200 New Jersey Ave. SE.; (202) 366-0778 or
This notice provides a summary of changes to the Urbanized Area Formula Program Circular 9030.1E, and responses to comments. The final Circular itself is not included in this notice; instead, an electronic version may be found on FTA's Web site, at
FTA is updating its Circular 9030.1D, “Urbanized Area Formula Program: Program Guidance and Application Instructions,” last revised on May 10, 2010, to incorporate changes made to the section 5307 Urbanized Area Formula Program (section 5307 Program) by the Moving Ahead for Progress in the 21st Century Act (MAP-21, Pub. L. 112-141), signed into law on July 6, 2012. The section 5307 Program authorizes Federal financial assistance for public transportation in urbanized areas for capital and planning projects, job access and reverse commute projects, and, in some cases, operating assistance. This notice provides a summary of changes to FTA Circular 9030.1D and addresses comments received in response to the proposed Circular that was published in the
MAP-21 made several significant changes to the laws authorizing the Federal transit programs. Many of the changes have cross-cutting impacts across all of FTA's programs and further several important goals of the Department of Transportation (DOT). Most notably, MAP-21 grants FTA significant new authority to oversee and regulate the safety of public transportation systems throughout the United States. The Act also puts new emphasis on restoring and replacing the Nation's aging public transportation infrastructure by establishing a new State of Good Repair Formula Program and new asset management requirements. In addition, it aligns Federal funding with key performance goals and tracks recipients' progress towards these goals. Finally, MAP-21 improves the efficiency of program administration through program consolidation and streamlining. For example, job access and reverse commute activities, previously included in a separate Federal transit assistance
The final Circular reflects changes in the law to the section 5307 Program and, where applicable, changes to other programs and provisions. The final Circular has also been reorganized and revised to improve clarity and to achieve consistency with FTA's other guidance documents. FTA expects the additional updates and clarification provided by the final Circular to provide recipients with the guidance and direction they need to properly apply for funding and comply with the requirements of the section 5307 Program.
The final Circular will apply to all new grants made on or after the effective date of the final Circular with FY 2013 or later funds. The requirements of the section 5307 Program under the Safe Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU, Pub. L. 109-59 (2005) and the guidance provided in the old Circular, 9030.1D, will continue to apply to grants made with FY 2012 or earlier funds after the effective date of the final Circular. In accordance with FTA's Master Agreement, MAP-21 cross cutting provisions will apply to each new grant, despite funding year.
A total of 58 commenters responded to the proposed Circular. The majority of the comments received pertained to eligibility and other requirements for job access and reverse commute projects. A number of commenters made suggestions or recommendations that were outside the scope of this Circular. For example, comments were made about the process for recipient oversight assessments, and reporting requirements for the National Transit Database. In addition, a number of commenters suggested that FTA reference updated FTA guidance documents on others issues in this Circular, requested minor clarifications to statements or terms that did not impact the substance of the Circular, and commented on other issues that were not directly relevant to section 5307 program requirements.
Several commenters suggested that FTA clarify language regarding particular points of guidance provided in the previous Circular that had either been misinterpreted by grantees or pertain to issues that arise under relatively uncommon circumstances. Where possible, FTA has made edits to clarify the language in the Circular. For example, FTA revised language that provided guidance on the provision which allows up to 10 percent of an apportionment to be used for paratransit operations as a capital project. This provision does not preclude paratransit operations from being eligible to receive additional funding for operating expenses under standard operating expense eligibilities. In other cases, FTA inserted clarifying language from other circulars when a cross-cutting provision was mentioned.
Chapter I of the final Circular is an introductory chapter that covers general information about FTA, provides a brief history of the 5307 Program (49 U.S.C. 5307), including changes MAP-21 made to the section 5307 Program, and defines terms applicable across all FTA programs. The final Circular includes the following statutory definitions:
• Associated transit improvements (previously “transit enhancements”)
• Bus rapid transit (BRT) system
• Commuter highway vehicle or vanpool vehicle
• Disability
• Fixed guideway
• Job access and reverse commute project
• Low income individual
• Private provider of public transportation by vanpool
• Public transportation
• Regional transportation planning organization
• Senior
Definitions have also been added to this section for terms that are unclear or currently undefined in Federal transit law, regulation or guidance. Where applicable, we have used the same definitions found in statute, rulemakings or other circulars to ensure consistency.
There were several comments that suggested revisions to the definitions section. One commenter suggested that FTA revise the definitions of “capital asset” and “operating expenses” to account for variations of these definitions in State laws. FTA believes that the definition of terms must be applied uniformly to its Federal transit assistance programs for purposes of administration and, therefore, declines to accept the suggested revisions. Another commenter suggested that FTA clarify whether the definition of “force account” requires grantees to use force accounts for work completed by in-house staff in the process of supervising contractor work. FTA clarified the definition of force account to state that force account does not include project administration, preventive maintenance, mobility management, or other non-traditional capital project types. FTA has also included a reference to Circular 5010.1D, “Grant Management Requirements,” which provides additional guidance on force accounts.
Chapter II covers general information about the 5307 Program, including revisions to the section entitled “Statutory Authority,” to add references to MAP-21. As a result of MAP-21, section 5307 Program funds are available for certain new and redefined activities, including job access and reverse commute projects, operating costs, and associated transit improvements.
The Circular includes a new section entitled “Census Designation of Urbanized Areas” (UZA). This section describes the designation of UZAs based on the 2010 Census. Beginning in fiscal year (FY) 2013, FTA incorporated the results of the 2010 Census into its formula apportionments. The 2010 Census data shows that the number of UZAs increased from 465 in 2000 to 497 in 2010, and the total population residing in UZAs increased from 195 to 223 million-an increase of approximately 12 percent. As a result, some UZAs have crossed statutorily-mandated population thresholds resulting in changes to the amount of formula funds that those areas can receive, and possibly resulting in changes to eligible uses of those funds.
The section entitled “FTA's Role in Program Administration” was revised to clarify that funds are apportioned to States and designated recipients (DR), only: States for small UZAs; and DRs for large UZAs. One commenter suggested that a regional body be permitted to serve as a designated recipient for small UZAs. Federal law does not allow a regional planning organization to serve as a designated recipient for the purpose of allocating apportioned funds to small UZAs. Only governors have the authority to approve the allocation of funds in small UZAs. Therefore, FTA treats the State as the designated recipient for these areas and expects them to approve the individual allocations for the small UZAs.
A new section was added to this chapter entitled, “Direct Recipient and Sub-recipient Eligibility.” This section clarifies the process for selecting and establishing a direct recipient, and clarifies the process for allocating funds to direct recipients and for sub-awarding funds to subrecipients. Direct recipients must be public entities that are legally eligible to apply for FTA
One commenter suggested that FTA allow private for-profit transit operators to be eligible subrecipients under the section 5307 Program. In addition, several commenters, particularly those located in newly- classified urbanized areas as a result of the 2010 Census, requested that FTA consider allowing non-profits to be eligible subrecipients under the section 5307 program. Historically, the only eligible subrecipients under this program have been public entities otherwise eligible to be direct recipients. However, FTA proposed and is continuing its position that non-profit agencies be eligible subrecipients for job access and reverse commute projects only. This is described in more detail in Section E of this notice and Chapter IV of the Circular. Outside of this allowance, private for-profit and non-profit operators may receive 5307 funding through a contracted service arrangement with an eligible FTA recipient.
A Section 5307 recipient, whether a designated recipient or direct recipient, may choose to pass its grant funds through to another eligible entity (sub-recipient) to carry out a project eligible under Section 5307. Designated recipients must inform FTA of specific allocations for direct recipients in a “split letter,” which establishes the allocation of section 5307 funds in a large UZA. With respect to associated transit improvement projects, one commenter suggested that the split letter include the agencies undertaking associated transit improvements, and not specific projects. The Circular explicitly states that specific projects do not need to be identified. However, FTA made a minor change to the circular language to clarify that a designated recipient's sub-area allocation documentation should identify the use of funds for eligible associated transit improvements and how the requirement will be met.
Added to the final Circular was further clarification of subrecipient arrangements that may arise as a result of revisions to urbanized area boundaries based on the U.S. Census. Designated recipients and direct recipients may enter into a contract for service with private non-profits who once provided public transportation service in a rural area that has been re-designated as an urbanized area. FTA acknowledges that some localities may consider other alternatives, including providing the service directly.
Also included in this Chapter in the section entitled “Relationship to Other Programs,” is discussion on the relationship between the section 5307 Program and the Safe, Accountable, Efficient Transportation Equity Act, a Legacy for Users (Pub. L. 109-59, SAFETEA-LU) programs that were repealed by MAP-21, including the following:
• Clean Fuels Grant Program (former section 5308)
• Bus and Bus Facilities Discretionary Program (former section 5309(b)(3)
• Job Access and Reverse Commute Program (former section 5316)
• New Freedom Program (former section 5317)
• Paul S. Sarbanes Transit in the Parks Program (former section 5320)
• Alternatives Analysis Program (former section 5339)
Funds previously authorized for programs that were repealed by MAP-21 may remain available for obligation unless Congress rescinds or redirects them to other programs. Funds made available to carry out the above programs are subject to the program rules and requirements at the time funds were appropriated.
This section also discusses the relations between the section 5307 Program and programs that were either added or amended by MAP 21, including the following:
Once commenter requested clarification of the transfer provision described under the discussion of the section 5339 Bus and Bus Facilities Formula Program. Under the section 5339 Bus and Bus Facilities formula program, a portion of the funds are allocated through an initial national distribution to States. The remaining funds are apportioned consistent with the formula under section 5336 (other than subsection (b)) to States and UZAs on the basis of population, vehicle revenue miles and passenger miles. In general, section 5307 Program requirements apply to section 5339 grants. The Governor of a State or the Governor's designee may transfer funds apportioned under the national distribution only to supplement amounts apportioned under the Rural Area (section 5311(c)) or section 5307 Program. The law does not allow section 5339 funds apportioned pursuant to the section 5336 formula to be transferred to the section 5307 or 5311 programs. FTA revised the final Circular to address this comment. Further information on section 5339 will be published in a separate proposed Circular for notice and comment.
This chapter discusses in more detail the apportionments for the section 5307 Program. It also discusses the Federal share of projects costs, local share, other sources of financing, and the new Passenger Ferry Discretionary Grant Program. Discussion of eligible projects was moved from chapter III in the previous Circular, to chapter IV in the final Circular.
The section entitled “Apportionment of Program Funds,” provides the revised apportionment calculations, including the new set-asides and formula calculations established by MAP-21. Section 5336(h) of title 49, U.S.C., now provides that 3.07 percent of section 5307 funds available for apportionment are allocated on the basis of low-income persons residing in UZAs, with 25 percent of these funds allocated to areas below 200,000 in population and the remaining 75 percent allocated to areas 200,000 and over in population. MAP-21 also increased the percentage of funds allocated on the basis of Small Transit Intensive Cities (STIC) factors from 1 to 1.5 percent. Finally, MAP-21 established a new 0.5 percent takedown from the 5307 program for the State Safety Oversight Grant Program and a $30 million takedown for the new Passenger Ferry Discretionary Grant Program.
Generally, MAP-21 extended the number of years that apportioned funds remain available for obligation from 4 to 6 years. As a result, apportioned funds are now available for obligation for a total of 6 years, including the year of apportionment.
One commenter requested clarification on whether the Governor of a State is permitted to redirect funds apportioned to a large UZA within 90 days of lapsing. This is not permitted under MAP-21, nor was it permitted
This chapter also provides a brief introduction of the new Passenger Ferry Grants Discretionary Program. Each fiscal year, a total of $30 million is authorized to be set aside from the 5307 program to support passenger ferry projects that will be selected on a competitive basis. One commenter suggested that consideration be given to making the application process for discretionary ferry grants as streamlined as possible to reduce the administrative burden on transit operators who are preparing proposals. It was also requested that funding be made predictable, to the extent possible. FTA has coordinated extensively with the passenger ferry industry in developing the Passenger Ferry Discretionary Program. By statute, funds are allocated on a competitive basis, and cannot be entirely predictable due to the differences in the applications submitted from year to year.
Generally, and consistent with MAP-21, the final Circular does not change the local match requirements—there is a 20 percent local match requirement for capital assistance and a 50 percent requirement for operating assistance. However, MAP-21 expanded the category of funds that can be used as local match. In addition to those sources of local match previously authorized under SAFETEA-LU, local match may also be derived from the following newly authorized sources:
• Amounts appropriated or otherwise made available to a department of or agency of the Government (other than DOT), such as Community Development Block Grant Funds administered by the Department of Housing and Urban Development.
• Any amount expended by providers of public transportation by vanpool for the acquisition of rolling stock to be used in the recipient's service area, excluding any amounts the provider may have received in Federal, State or local government assistance for such acquisition. The provider is required to have a binding agreement with the public transportation agency to provide service in the relevant UZA.
The final Circular has been revised to clarify that the Federal share of vehicle acquisition for purposes of complying with the Clean Air Act or the Americans with Disabilities Act, is 85 percent. The Federal share is 90 percent for vehicle related equipment and facilities. One commenter identified a discrepancy in the
Lastly, the section entitled “Alternative Financing” includes discussion of updated eligibility criteria for capital projects seeking Transportation Infrastructure Finance and Innovation Act (TIFIA) financing, pursuant to section 2002 of MAP-21 (23 U.S.C. 601 et seq). Eligible projects include any transit capital project which is anticipated to meet the minimum statutory monetary threshold size for TIFIA financing.
In the final Circular, project eligibility and requirements was moved from chapter III into a new chapter IV. This chapter discusses the types of projects and activities that may be funded under the 5307 program. One commenter suggested that FTA clarify whether the list of eligible projects provided in the proposed Circular was exhaustive, and to include reference to bus rapid transit projects in this list. FTA accepts this suggestion and has revised the final Circular accordingly. In response to other comments received, FTA also made a number of clarifying edits which are reflected in the final Circular.
Most of the comments received on the proposed Circular pertained to the section entitled “Job Access and Reverse Commute Projects.” MAP-21 repealed the Job Access and Reverse Commute (JARC) Program, (former section 5316); however, job access and reverse commute projects are now eligible under the section 5307 Program. Job access and reverse commute projects are transportation projects “to finance planning, capital, and operating costs that support the development and maintenance of transportation services designed to transport welfare recipients and eligible low-income individuals to and from jobs and activities related to their employment, including transportation projects that facilitate the provision of public transportation services from urbanized areas and rural areas to suburban employment locations.” 49 U.S.C. 5302(9).
Under the former section 5316 JARC Program, funds were apportioned to States and designated recipients which were then required to expend those funds on eligible JARC projects. Under the section 5307 Program, designated recipients are not required to expend funds on job access and reverse commute projects. Job access reverse commute projects are now similar to other types of projects that are eligible under the section 5307 Program. Several commenters requested that FTA require designated recipients to continue to fund existing JARC projects, or that they conduct an analysis or otherwise demonstrate that the needs of the target population are being met without funding for such services. The law does not authorize FTA to require recipients to spend funds on JARC projects, nor does FTA have the statutory authority to require that an analysis be completed prior to allocating funds. Designated recipients have the authority to determine how program funds are allocated in their urbanized area. The metropolitan planning process and the statutory requirement for a program of projects (POP) provide opportunities for public review and comment on which projects are selected for funding. As stated in the final Circular, FTA strongly encourages recipients to conduct proactive outreach to representatives of human services transportation providers, representatives of low-income populations, and welfare recipients in developing the program of projects.
In the proposed Circular, FTA proposed that the car loan program and the voucher program, which were previously eligible under the section 5316 JARC Program, no longer be eligible JARC projects under the section 5307 Program. Numerous commenters requested that JARC activities eligible under the former section 5316 JARC Program also be eligible under the section 5307 Program, including car loan and voucher programs that would not otherwise be consistent with the definition of public transportation. FTA concurs that all categories of projects that were previously eligible under the former section 5316 JARC Program remain eligible for funding under the section 5307 Program. All other section 5307 Program requirements would apply to such projects as well.
Each potential project must be for the “development” or “maintenance” of transportation services designed to transport welfare recipients and eligible low-income individuals to and from jobs and employment-related activities and also must be otherwise eligible under the 5307 Program. FTA defines “development of transportation services” to mean new projects that were not in service on October 1, 2012. New JARC projects may include the expansion or extension of an existing service, so long as the new service was designed to support the target populations; however, such projects are not required to be designed for the sole use of the target populations.
One commenter requested clarification on whether JARC projects in large UZAs were eligible for operating assistance, where operating assistance may otherwise be restricted or prohibited. Consistent with the definition of “job access reverse commute project,” provided in the final Circular, such projects may include operating assistance in a large UZA, where operating assistance is otherwise not an eligible expense. Operating assistance for eligible job access and reverse commute projects are not limited by the “100-bus” special rule for operating assistance pursuant to 49 U.S.C. 5307(a)(2).
One commenter requested that FTA clarify the planning requirements for JARC projects. Previously, under the section 5316 JARC Program, recipients were required to engage in a coordinated planning process. There is no longer a statutory requirement that recipients engage in a coordinated planning process for JARC projects that are eligible under the section 5307 Program and funded with FY 2013 funds and beyond. However, the coordinated planning process is still required for projects that are funded with section 5316 funds appropriated prior to FY 2013. Unobligated FY 2012 and prior JARC program funds remain available to FTA for obligation until Congress rescinds or redirects the funds to other programs. Recipients must obligate apportioned FY 2012 and prior JARC program funds through the period of availability and must follow the SAFETEA-LU requirements. For example, section 5316 JARC projects must still be derived from a human service public transportation coordinated plan and must also be selected by the designated recipient through an area-wide or statewide competitive selection process.
Although current law does not require JARC projects to be developed through a coordinated planning process, the project must be identified by the MPO and designated recipient as a JARC project in the designated recipient's annual Program of Projects, which must be developed in consultation with interested parties, published with the opportunity for comments, and subject to a public hearing.
Consistent with their prior eligibility under the section 5316 JARC Program, the final Circular reflects FTA's policy to include private non-profits as eligible sub-recipients for JARC projects. Several commenters commended FTA for allowing private non-profits as sub-recipients for JARC projects. Subrecipients will still be required to comply with the section 5307 and other Federal grant requirements for such projects. Relatedly, one commenter suggested that FTA clarify whether recipients may contract for service for JARC projects. Consistent with other types of projects eligible under this program, recipients have the option of contracting for service with private operators. Information on contracting for service is provided in detail elsewhere in the circular.
One commenter noted that under SAFETEA-LU, National Transit Database (NTD) reporting was not required of JARC subrecipients, and requested that FTA make subrecipients exempt from this requirement if they are receiving section 5307 Program funds for JARC projects. While FTA appreciates the comment and the potential burden that this requirement may pose on recipients of funding for JARC projects, by statute all 5307 recipients and subrecipients must report to the NTD. (49 U.S.C. 5335(b)) Operators of services with fewer than 30 vehicles may submit a streamlined report. Recipients that do not operate public transportation may submit a pro-forma NTD report, such as those submitted by State DOTs that use 5307 funds only for planning.
One commenter proposed also that subrecipients not be required to provide non-peak discounts, noting that under SAFETEA-LU, non-peak discounts were not required of JARC subrecipients. The commenter proposed that in order to be consistent with the previous JARC guidance and to reduce the administrative burden on non-profits who do not provide traditional transit services, FTA make subrecipients exempt from this requirement if they are receiving section 5307 Program funds for JARC project purposes only. While FTA appreciates the comment and the potential burden that this requirement may pose on recipients of funding for JARC projects, FTA cannot waive the half fare requirement as it is established by statute. (49 U.S.C. 5307(c)(1)(D))
Associated transit improvements are also eligible under the section 5307 Program. However, under MAP-21, “public art” is no longer an eligible associated transit improvement (formerly “transit enhancement”). Incorporation of design and artistic considerations into public transportation projects may still be an allowable cost, so long as it is an integral part of the project. For example, an artist may be employed as part of the construction design team, or art can be incorporated into functional elements such as walls, seating, lighting, or railings.
One commenter requested that “transit-oriented carsharing” should be an eligible expense under the associated transit improvements category and others. Some expenses associated with car sharing may be eligible projects under the JARC program. Eligible uses of funds for associated transit improvements are enumerated in law and addressed in the final Circular.
This chapter also includes a section entitled “Operating Assistance.” Recipients in UZAs under 200,000 in population may use 5307 program funds for operating assistance at a 50 percent Federal share. There is no cap on the amount that can be used in these areas for operating assistance. Unless specifically authorized, recipients in UZAs of 200,000 or more in population are not permitted to use program funds for operating assistance.
Under MAP-21, a special rule (49 U.S.C. 5307(a)(2)) hal allows recipients in UZAs with populations of 200,000 or above and that operate 100 or fewer buses in fixed route service during peak hours, to receive a grant for operating assistance subject to the following criteria:
• Public transportation systems that operate a minimum of 76 buses and a maximum of 100 buses in fixed route service during peak service hours may receive operating assistance in an amount not to exceed 50 percent of the share of the apportionment that is attributable to such systems within the UZA, as measured by vehicle revenue hours.
• Public transportation systems that operate 75 or fewer buses in fixed route service during peak service hours may receive operating assistance in an amount not to exceed 75 percent of the share of the apportionment that is attributable to such systems within the UZA, as measured by vehicle revenue hours.
One commenter suggested that operators that only provide demand-
The final Circular also clarifies that “revenues”, as used to determine eligible operating costs, are farebox revenues. FTA has made this definition consistent throughout the circular, including deleting park and ride lot revenues from the sample operating expense worksheet.
Not included in the final Circular is the section on Debt Service Reserve because MAP-21 repealed the 5307 debt service reserve pilot program at 49 U.S.C. 5323(e)(4)(A), as amended by SAFETEA-LU.
This new chapter replaces the chapter in the previous Circular entitled “Coordinated Planning.” Under SAFETEA-LU, certain eligible projects were required to be developed under a locally developed, coordinated planning process. Under MAP-21, coordinated planning is only a requirement of eligibility under the section 5310 program. However, 5307 recipients who apply for section 5310 funds are still required to participate in the local planning process for coordinated public transit-human services. Moreover, FTA strongly encourages 5307 recipients to engage in a coordinated planning process.
One commenter stated that FTA appeared to establish a new certification requirement in the section of the Circular that discusses the coordinated planning process, and requested clarification as to which entity is responsible for this certification. FTA removed the language, which was intended to refer to existing certification requirements that are discussed elsewhere in FTA guidance and is not the subject of this Circular.
This chapter includes a revised discussion of Transportation Management Areas (TMAs) for planning purposes. The statutory definition of a TMA is a UZA with a population of over 200,000 individuals. There is also reference to the joint FTA/FHWA transportation planning regulations at 23 CFR part 40, which include guidelines on determining the boundaries of a Metropolitan Planning Area (MPA).
The Performance Based Planning Section in this chapter is a new addition to the Circular and discusses the requirements of MAP-21's new broad performance management program which supports the seven national performance goals. The performance management framework attempts to improve project decision-making through performance-based planning and programming and through fostering a transparent and accountable decision-making process for MPOs, States, and providers of public transportation.
The section entitled “Availability of FHWA Flexible Funds for Transit Projects” clarifies the availability of FHWA funds for eligible transit projects. FHWA flexible funds may be available to FTA recipients for planning and capital projects, and operating expenses. This section also clarifies the requirements for transfer of Congestion Mitigation and Air Quality (CMAQ) Improvement Program funds for transit purposes.
This chapter also includes a section entitled “Associated Transit Improvements.” MAP-21 changed the term “transit enhancements” to “associated transit improvements.” An associated transit improvement is a project “designed to enhance public transportation service or use and that [is] physically or functionally related to transit facilities.” This section of the proposed circular discusses the requirements to expend a percentage of a UZA's 5307 program funds on associated transit improvements and also discusses eligible projects.
At least one percent of large UZA's apportionment must be expended on associated transit improvements. One commenter noted that this requirement is too burdensome for small transit agencies. This is a statutory requirement and cannot be waived by FTA (49 U.S.C. 5307 (c)(1)(K). Recipients may expend funds for associated transit improvements on a wide variety of project types, including landscaping and streetscaping, to improve the public environment in which transit operates. This requirement can be met at the UZA level if other providers have eligible projects and does not apply in UZAs with populations of under 200,000.
Also, at least one percent of a UZA's apportioned funds must be expended on transportation security projects unless it is decided that the expenditure is not necessary. Eligible projects are limited to those explicitly stated in statute.
Previously, FTA applied the one percent requirement for transportation security projects at the recipient level. One commenter supported the proposed change to the calculation of the one percent expenditure requirement for public transportation security projects allowing this requirement to be applied at the urbanized area level, rather than at the grant level. This commenter requested that this change apply first in the fiscal year after the final Circular is adopted. In general, policy changes reflected in the final Circular will take effect immediately upon publication. Changes that affect procedures or steps required for allocating funds or receiving a grant will take effect at the next time that such procedures are initiated, whether that occurs in the current fiscal year or the next. For example, if a recipient has initiated the TIP or POP approval process under the prior requirements, the new requirements will apply in the next fiscal year.
This chapter also includes a section on “Undertaking Projects in Advance.” The final Circular revises this section to explain the different authorities that allow a recipient to incur costs on a project before grant approval, while still retaining their eligibility for reimbursement after grant approval. The three types of authorities are pre-award authority, letters of no prejudice (LONP), and advanced construction authority (ACA). This section discusses the distinction among these three authorities and the terms and conditions that apply equally to all three.
A few commenters su ggested that the POP only be required to contain information relating to the designated recipient and that information required by the Circular may not be available. Several commenters noted that the roles of the MPO and designated recipient may differ among UZAs, and suggested that FTA provide flexibility by allowing an MPO to communicate suballocations to FTA rather than the designated recipients. FTA allows for flexibility by allowing multiple designated recipients to submit their POPs to FTA in multiple parts. If an MPO is responsible for determining the suballocation, the MPO may be assigned as the designated recipient and given the formal role of determining suballocations.
Another commenter requested that FTA retain flexibility in allowing fixed allocation percentages for sub-area allocations when they have been determined to be the most appropriate method by the MPO members. FTA has made a minor change to the Circular language to indicate that the use of a fixed percentage may not be appropriate, rather than “is not considered satisfactory.”
This chapter has also been revised to clarify that recipients should consult with FTA regarding the proper level of environmental review prior to expending funds for a project.
Lastly, two commenters suggested that, in cases of loss through a natural disaster, the Circular state that FTA's requirement for early disposition reimbursement may be waived. While FTA has the authority to grant such a waiver, it has not determined that such a waiver will be granted in the future, and does not want to create an expectation that such a waiver will be granted.
The proposed circular updates this section to add the requirement that recipients certify compliance with 49 U.S.C. 5329(d), which requires recipients and States to develop and implement a Public Transportation Agency Safety Plan.
The final Circular reflects three major changes to this Chapter. First, all references to FTA's current Electronic Grants Management System (commonly known as “TEAM”) have been removed in consideration of a new system, currently under development. That system is now generically identified as the Electronic Award Management System in this circular. Second, a new section was added to discuss the Federal Funding Accountability and Transparency Act (FFATA) Requirement which requires recipients report information about each first tier sub-award over $25,000 by the end of the month following the month the direct recipient makes any sub-award or obligation.
Lastly, the final Circular clarifies the discussion in the proposed circular on NTD Reporting regarding waivers. The proposed circular stated that FTA would no longer issue any NTD waivers. However, FTA has implemented a reduced reporting requirement for small systems. Where, under certain circumstances described in NTD Reporting Manuals, grant recipients may apply for reduced NTD reporting requirements. For instance, under the Small Systems Waiver, grantees with fewer than 30 vehicles in maximum (peak) service do not have to report some data items. There are waivers of other data reporting requirements for planning/capital only reporters, reporters that have experienced natural disasters, and for reporters that are not able to generate specific data elements.
This section of the Circular was revised pursuant to the changes to the State Safety Oversight (SSO) Program and the requirements of 49 CFR part 659 made by MAP-21. Section 5330, which authorizes the SSO Program, will be repealed three years from the effective date of the new regulations implementing the new section 5329 safety requirements. Until then, the current requirements of 49 CFR part 659 will continue to apply.
There were no changes made to this section of the Circular.
There were no substantive changes made to this section of the Circular.
National Highway Traffic Safety Administration (NHTSA), U.S. Department of Transportation.
Request for public comment on renewal of existing information collections.
Before a Federal agency can collect certain information from the public, it must receive approval from the Office of Management and Budget (OMB). Under procedures established by the Paperwork Reduction Act of 1995, before seeking OMB approval, Federal agencies must solicit public comment on proposed collections of information, including extensions and reinstatement of previously approved collections. This document describes a renewal of existing information collections for which NHTSA intends to seek OMB approval.
Comments must be received by March 17, 2014.
You may submit comments, identified by one or both of the docket numbers in the heading of this document, by any of the following methods:
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Andréa A. Noel, Office of Defects Investigation, NHTSA, 1200 New Jersey Avenue SE., West Building, NVS-210, Washington, DC 20590. Telephone: (202) 493-0210. For access to background documents, please contact Ms. Noel.
Under the Paperwork Reduction Act of 1995 (PRA), before an agency submits a proposed collection of information to OMB for approval, it must first publish a document in the
(i) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(ii) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) How to enhance the quality, utility, and clarity of the information to be collected;
(iv) How to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
In compliance with these requirements, NHTSA asks for public
To ensure that NHTSA will have access to this type of information, the agency exercised the authority granted in 49 U.S.C. 30166(e) and promulgated 49 CFR Part 576, Record Retention, initially published on August 20, 1974 (39 FR 30045) and most recently amended on July 10, 2002 (67 FR 45873), requiring manufacturers to retain one copy of all records that contain information concerning malfunctions that may be related to motor vehicle safety for a period of five calendar years after the record is generated or acquired by the manufacturer. Part 576 also requires manufacturers to retain for five years the underlying records related to early warning reporting (EWR) information submitted under 49 CFR part 579.
Below are detailed instructions for submitting comments on this collection and additional information on the commenting process.
Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.
Your comments must not be more than 15 pages long. (49 CFR 553.21). We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.
Comments may be submitted to the docket electronically by logging onto the Docket Management System Web site at
You may also submit two copies of your comments, including the attachments, to Docket Management at the address given above under
Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at
If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at 1200 New Jersey Avenue SE., West Building, Washington, DC 20590. In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under
We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under
You may read the comments received by Docket Management at the address given above under
Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material.
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Surface Transportation Board, DOT.
Notice of exemption.
The Board is granting an exemption under 49 U.S.C. 10502 from the prior approval requirements of 49 U.S.C. 10902 for Iowa Interstate Railroad, Ltd. (IAIS), a Class II rail carrier, to acquire approximately 0.75-miles of rail line in Council Bluffs, Iowa, from BNSF Railway Company (BNSF), subject to employee protective conditions.
The exemption will be effective on February 5, 2014. Petitions to stay must be filed by January 27, 2014. Petitions for reconsideration must be filed by January 31, 2014.
An original and 10 copies of all pleadings, referring to Docket No. FD 35751, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, one copy of each pleading must be served on IAIS's representative: Thomas J. Litwiler, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 920, Chicago, IL 60606-2832.
Jonathon Binet, (202) 245-0368. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877-8339.
Additional information is contained in the Board's decision. Board decisions and notices are available on our Web site at
By the Board, Chairman Elliott and Vice Chairman Begeman.
Surface Transportation Board, Department of Transportation (DOT).
60-day notice of request for approval: Waybill Sample.
As required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3519 (PRA), the Surface Transportation Board (STB or Board) gives notice of its intent to seek from the Office of Management and Budget (OMB) an extension of approval for the collection of the Waybill Sample.
Comments are requested concerning: (1) The accuracy of the Board's burden estimates; (2) ways to enhance the quality, utility, and clarity of the information collected; (3) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology when appropriate; and (4) whether the collection of information is necessary for the proper performance of the functions of the Board, including whether the collection has practical utility. Submitted comments will be summarized and included in the Board's request for OMB approval.
Comments on this information collection should be submitted by March 17, 2014.
Direct all comments to Marilyn Levitt, Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001, or to
Marilyn Levitt at (202) 245-0269 or at
Under the PRA, a Federal agency conducting or sponsoring a collection of information must display a currently valid OMB control number. A collection of information, which is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c), includes agency requirements or requests that persons submit reports, keep records, or provide information to the agency, third parties, or the public. Under § 3506(c)(2)(A) of the PRA, Federal agencies are required to provide, prior to an agency's submitting a collection to OMB for approval, a 60-day notice and comment period through publication in the
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 17, 2014.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 632-8924 or FAX (202) 632-8925.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501—3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 17, 2014.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 632-8924 or FAX (202) 632-8925.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 17, 2014.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 632-8924 or FAX (202) 632-8925.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 17, 2014.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 632-8924 or FAX (202) 632-8925.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility;
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 17, 2014.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 632-8924 or FAX (202) 632-8925.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 17, 2014.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 632-8924 or FAX (202) 632-8925.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
b. Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) Secondary to Personal Assault, VA Form 21-0781a.
a. Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD), VA Form 21-0781—16,800 hours.
b. Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) Secondary to Personal Assault, VA Form 21-0781a—980 hours.
a. Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD), VA Form 21-0781—70 minutes.
b. Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) Secondary to Personal Assault, VA Form 21-0781a—70 minutes.
a. Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD), VA Form 21-0781—14,400.
b. Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) Secondary to Personal Assault, VA Form 21-0781a—840.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 17, 2014.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 632-8924 or FAX (202) 632-8925.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 17, 2014.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 632-8924 or FAX (202) 632-8925.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 17, 2014.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 632-8924 or FAX (202) 632-8925.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
a. Application for VA Education Benefits, VA Form 22-1990.
b. Application for Family Member to Use Transferred Benefits, VA Form 22-1990E.
c. Application for VA Education Benefits Under the National Call to Service (NCS) Program, VA Form 22-1990N.
a. Claimants complete VA Form 22-1990 to apply for education assistance allowance.
b. Claimants who signed an enlistment contract with the Department of Defense for the National Call to Service program and elected one of the two education incentives complete VA Form 22-1990E.
c. VA Form 22-1990N is completed by claimants who wish to transfer his or her Montgomery GI Bill entitlement their dependents.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 17, 2014.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 632-8924 or FAX (202) 632-8925.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 17, 2014.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 632-8924 or FAX (202) 632-8925.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 17, 2014.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 632-8924 or FAX (202) 632-8925.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule.
This final rule amends the Medicaid regulations to define and describe state plan section 1915(i) home and community-based services (HCBS) under the Social Security Act (the Act) amended by the Affordable Care Act. This rule offers states new flexibilities in providing necessary and appropriate services to elderly and disabled populations. This rule describes Medicaid coverage of the optional state plan benefit to furnish home and community based-services and draw federal matching funds.
This rule also provides for a 5-year duration for certain demonstration projects or waivers at the discretion of the Secretary, when they provide medical assistance for individuals dually eligible for Medicaid and Medicare benefits, includes payment reassignment provisions because state Medicaid programs often operate as the primary or only payer for the class of practitioners that includes HCBS providers, and amends Medicaid regulations to provide home and community-based setting requirements related to the Affordable Care Act for Community First Choice State plan option. This final rule also makes several important changes to the regulations implementing Medicaid 1915(c) HCBS waivers.
Kathy Poisal, (410)786-5940.
Because of the many terms to which we refer by acronym in this final rule, we are listing the acronyms used and their corresponding terms in alphabetical order below.
This final rule amends Medicaid regulations consistent with the requirements of section 2601 of the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act), which added section 1915(h)(2) to the Act to provide authority for a 5-year duration for certain demonstration projects or waivers under sections 1115, 1915(b), (c), or (d) of the Act, at the discretion of the Secretary, when they provide medical assistance to individuals who are dually eligible for both Medicaid and Medicare benefits.
This final rule also provides additional limited exception to the general requirement that payment for services under a state plan must be made directly to the individual practitioner providing a service when the Medicaid program is the primary source of reimbursement for a class of individual practitioners. This exception will allow payments to be made to other parties to benefit the providers by ensuring workforce stability, health and welfare, and trainings, and provide added flexibility to the state. We are including the payment reassignment provision, because states' Medicaid programs often operate as the primary or only payer for the class of practitioners that includes HCBS providers.
In addition, this final rule also amends Medicaid regulations to provide home and community-based setting requirements related to section 2401 of the Affordable Care Act for section
This final rule further amends the Medicaid regulations to define and describe state plan home and community-based services (HCBS). This regulation outlines the optional state plan benefit to furnish home and community-based state plan services and draw federal matching funds. As a result, states will be able to design and tailor Medicaid services to better accommodate individual needs. This may result in improved patient outcomes and satisfaction, while enabling states to effectively manage their Medicaid resources.
This final rule also revises the regulations implementing Medicaid home and community-based services (HCBS) waivers under section 1915(c) of the Social Security Act (the Act) by providing states the option to combine the existing three waiver targeting groups identified in § 441.301. In addition, this final rule will include other changes to the HCBS waiver provisions to convey expectations regarding person-centered plans of care, to provide characteristics of settings that are home and community-based as well as settings that may not be home and community-based, to clarify the timing of amendments and public input requirements when states propose modifications to HCBS waiver programs and service rates, and to describe the additional strategies available to CMS to ensure state compliance with the statutory provisions of section 1915(c) of the Act. The final rule also includes requirements for person-centered plans of care that document, among other things, an individual's choice of a HCB setting from among options that meet the individual's needs.
The Deficit Reduction Act (DRA) added a new provision to the Medicaid statute entitled “Expanded Access to Home and Community-Based Services for the Elderly and Disabled.” This provision allows states to provide HCBS (as an optional program) under their state Medicaid plans. This option allows states to receive federal financial participation for services that were previously eligible for federal funds only under waiver or demonstration projects. This provision was further amended by the Affordable Care Act. The statute now provides additional options for states to design and implement HCBS under the Medicaid state plan. In the April 4, 2008,
This final rule provides for a 5-year approval or renewal period, subject to the discretion of the Secretary, for certain Medicaid waivers. Specifically, this time period applies for demonstration and waiver programs through which a state serves individuals who are dually eligible for both Medicare and Medicaid benefits.
Section 1902(a)(32) of the Act provides that state plans can allow payments to be made only to certain individuals or entities. Specifically, payment may only be made to an individual practitioner who provided the service. The statute provides several specific exceptions to the general principle of direct payment to the individual practitioner.
Over the years, some states have requested that we consider adopting additional exceptions to the direct payment principle to permit withholding from the payment due to the individual practitioner for amounts paid by the state directly to third parties for health and welfare benefits, training costs and other benefits customary for employees. These amounts would not be retained by the state, but would be remitted to third parties on behalf of the practitioner for the stated purpose.
While the statute does not expressly provide for additional exceptions to the direct payment principle, we believe the circumstances at issue were not contemplated under the statute. Therefore, we proposed that the direct payment principle should not apply because we think its application would contravene the fundamental purpose of this provision. The apparent purpose of the direct payment principle was to prohibit factoring arrangements, and not to preclude a Medicaid program that is functioning as the practitioner's primary source of revenue from fulfilling the basic responsibilities that are associated with that role. Therefore, we proposed an additional exception to describe payments that we do not see as within the intended scope of the statutory direct payment requirement, that would allow the state to claim as a provider payment amounts that are not directly paid to the provider, but are withheld and remitted to a third party on behalf of the provider for health and welfare benefit contributions, training costs, and other benefits customary for employees.
Section 1915(k)(1)(A)(ii) of the Act provides that home and community-based attendant services and supports must be provided in a home and community-based setting. The statute specifies that home and community-based settings do not include a nursing facility, institution for mental diseases, or an intermediate care facility for individuals with intellectual disabilities. We have adopted this statutory language in our regulations. Additionally, to provide greater clarity, we have established that home and community-based settings must exhibit specific qualities to be eligible sites for delivery of home and community-based services.
After consideration of comments received in response to the Community First Choice (CFC) proposed rule published in the
Section 1915(c) of the Act authorizes the Secretary of Health and Human Services to waive certain Medicaid statutory requirements so that a state may offer Home and Community-Based Services (HCBS) to state-specified group(s) of Medicaid beneficiaries who otherwise would require services at an institutional level of care. This final rule will give states the option to combine the existing three waiver targeting groups as identified in § 441.301. In addition, it will implement requirements regarding person-centered service plans, clarify the timing of amendments when states modify HCBS waiver programs and service rates, and describe the additional strategies available to us to ensure state compliance with the provisions of section 1915(c) of the Act. This final rule also establishes home and community-based setting requirements. We will allow states a transition/phase-in period for current approved 1915(c) HCBS waivers to demonstrate compliance with these requirements.
On February 8, 2006, the Deficit Reduction Act (DRA) of 2005 (Pub. L. 109-171) was signed into law. Section 6086 of the DRA is entitled “Expanded Access to Home and Community-Based Services for the Elderly and Disabled.” Section 6086(a) of the DRA adds a new section 1915(i) to the Act that allows states, at their option, to provide home and community-based services (HCBS) under their regular state Medicaid plans. This option allows states to receive federal financial participation (FFP) for services that were previously eligible for the funds only under waiver or demonstration projects, including those under sections 1915(c) and 1115 of the Act. Section 1915(i) of the Act was later amended by sections 2402(b) through (g) of the Patient Protection and Affordable Care Act of 2010 (Pub. L. 111-148, enacted March 23, 2010) (Affordable Care Act) to provide additional options for states to design and implement HCBS under the Medicaid state plan.
In the following discussion of this regulation, we refer to particular home and community-based service(s) offered under section 1915(i) of the Act as “State plan HCBS” or simply “HCBS”
Under section 1915(i) of the Act, states can provide HCBS to individuals who require less than institutional level of care (LOC) and who would, therefore, not be eligible for HCBS under section 1915(c) waivers, in addition to serving individuals who have needs that would meet entry requirements for an institution. As with other state plan services, the benefits must be provided statewide, and states must not limit the number of eligible people served.
Section 1915(i) of the Act explicitly provides that State plan HCBS may be provided without determining that, but for the provision of these services, individuals would require the LOC provided in a hospital, a nursing facility (NF), or an intermediate care facility for individuals with intellectual disabilities
To be eligible for the State plan HCBS benefit, an individual must be included in an eligibility group that is contained in the state plan, including if the state elects, the new eligibility group defined at section 1902(a)(10)(A)(ii)(XXII) of the Act. Each individual must meet all financial and non-financial criteria set forth in the plan for the applicable eligibility group.
HCBS benefits that are not otherwise available through section 1905(a) of the Act state plan services under the Medicaid Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) benefit may be furnished to Medicaid eligible children who meet the State plan HCBS needs-based eligibility criteria, and who meet the state's medical necessity criteria for the receipt of services. In addition to meeting EPSDT requirements through the provision of 1905(a) services, a state may also meet, in part, a particular child's needs under EPSDT through services that are also available through the 1915(i) benefit. However, all Medicaid-eligible children must have full access to services required under EPSDT, and the provision of 1915(i) State plan HCBS should in no way hinder their access to such services.
Section 1915(i)(1)(H)(i) of the Act requires the state to ensure that the State plan HCBS benefit meets federal and state guidelines for quality assurance, which we interpret as assurances of quality improvement. Consistent with current trends in health care, the language of quality assurance has evolved to mean quality improvement, a systems approach designed to continuously improve services and support and prevent or minimize problems prior to occurrences. Guidelines for quality improvement have been made available through CMS policies governing section 1915(c) HCBS waivers available at
Section 1915(i) provides states the option to provide home and community-based services, but does not define “home and community-based.” Along with our overarching goal to improve Medicaid HCBS, we seek to ensure that Medicaid is supporting needed strategies for states in their efforts to meet their obligations under the ADA and the Supreme Court decision in
We noted in the May 3, 2012 proposed rule published in the
While HCBS are not available while an individual resides in an institution, HCBS may be available to assist individuals to transition from an institution to the community. Recognizing that individuals leaving institutions require assistance to establish themselves in the community, we would allow states to include in a section 1915(i) benefit, as an “other” service, certain transition services to be offered to individuals to assist them in their transition to the community. We proposed that community transition services could be commenced prior to discharge and could be used to assist individuals during the period of transition from an institutional residence. Additionally, services could be provided to assist individuals transitioning to independent living in the community, as described in a letter to the State Medicaid Directors on May 9, 2002 (SMDL #02-008). We further recognize that, for short hospital stays, an individual may benefit from ongoing support through the State plan HCBS benefit to meet needs not met through the provision of hospital services that are identified in the individual's person-centered service plan, to ensure smooth transitions between acute care settings and home and community-based settings, and to preserve the individual's functions. Importantly, these services must be exclusively for the benefit of the individual, not the hospital, and must not substitute for services that the hospital is obligated to provide through its conditions of participation or under federal or state laws. However, payments for room and board are expressly prohibited by section 1915(i)(1) of the Act, except for respite care furnished in a setting approved by the state that is not the individual's residence.
Section 2601 of the Affordable Care Act adds a new paragraph to section 1915(h) of the Act to permit the Secretary, at her discretion, to approve a waiver that provides medical assistance for individuals dually eligible for Medicare and Medicaid (“dual eligibles”) for an initial period of up to 5 years and renewed for up to 5 years, at the state's request. The statute defines a dual eligible as: “an individual who is entitled to, or enrolled for, benefits under part A of title XVIII, or enrolled for benefits under part B of title XVIII, and is eligible for medical assistance
Section 1902(a)(32) of the Act generally states that “no payment under the plan for care and services provided to an individual shall be made to anyone other than such individual or the person or institution providing such care or service, under an assignment or power of attorney or otherwise.” However, section 1902(a)(32) of the Act contains several specific exceptions to the general principle of direct payment to individual practitioners. There are exceptions for payments for practitioner services where payment is made to the employer of the practitioner, and the practitioner is required as a condition of employment to turn over fees to the employer; payments for practitioner services furnished in a facility when there is a contractual arrangement under which the facility bills on behalf of the practitioner; reassignments to a governmental agency, through a court order, or to a billing agent; payments to a practitioner whose patients were temporarily served by another identified practitioner; or payments for a childhood vaccine administered before October 1, 1994.
Section 1915(k)(1)(A)(ii) of the Act provides that home and community-based attendant services and supports must be provided in a home and community-based setting. The statute specifies that home and community-based settings do not include a nursing facility, institution for mental diseases, or an intermediate care facility for the mentally retarded.
For a detailed description of the background of this rule, please refer to “State Plan Home and Community-Based Services, 5-Year Period for Waivers, Provider Payment Reassignment, and Setting Requirements for Community First Choice” proposed rule published in the May 3, 2012
On May 3, 2012, we published a proposed rule (77 FR 26362) in the
We received a total of 401 timely comments from state agencies, advocacy groups, health care providers, employers, health insurers, health care associations, and the general public. The comments ranged from general support or opposition to the proposed provisions to very specific questions or comments regarding the proposed changes. We note that many expressed overall satisfaction with the benefit as a whole, in that it offers another opportunity for individuals served through the Medicaid program to return or remain in the community with family and friends. A couple stated that this opportunity offers additional flexibility and will not only provide people the opportunity to live and thrive where they choose, but also has the potential to save states' dollars.
After consideration of comments received in response to the Community First Choice (CFC) proposed rule published in the
Brief summaries of each proposed provision, a summary of public comments we received (with the exception of specific comments on the paperwork burden or the economic impact analysis), and our responses to the comments follow. Comments related to the paperwork burden and the impact analyses are addressed in the “Collection of Information Requirements” and “Regulatory Impact Analysis” sections in this preamble.
In accordance with section 2601 of the Affordable Care Act, we proposed a 5-year approval or renewal period, subject to the discretion of the Secretary, for Medicaid waivers under sections 1915(b), 1915(c), 1915(d) and 1115 of the Act. Specifically, this time period applies for demonstration and waiver programs through which a state serves individuals who are dually eligible for both Medicare and Medicaid benefits. While section 2601 of the Affordable Care Act did not provide a new type of waiver, it did provide an important opportunity for states to simplify the operation of existing or future waivers under current authorities that serve dually eligible individuals, especially important when states combine waiver authorities that have different approval periods. The approval of such periods is at the Secretary's discretion, and determinations will be made regarding applications for 5-year waivers in a manner consistent with the interests of beneficiaries and the objectives of the Medicaid program. We proposed that if a demonstration or waiver program does not serve or excludes dually eligible individuals, the 5-year approval period will not be available under this authority, and existing approval period requirements will apply. In addition, we proposed that in order for coverage-related waivers to be approved for 5 years periods, they must meet all necessary programmatic, financial, and quality requirements.
In § 431.54, we proposed to add paragraphs (a)(3) and (h) to include state plan HCBS as exceptions to comparability and community income and resource rules. For specific discussion, see the published May 3, 2012 proposed rule (77 FR 2012 through 10385).
• For § 431.54 (a)(3): Section 1915(i) of the Act provides that if a state may provide, as medical assistance, home and community-based services under an approved state plan amendment that meets certain requirements, it may elect to do so without regard to the requirements of sections 1902(a)(10)(B) and 1902(a)(10)(C)(i)(III) of the Act, with respect to such services only.
• For § 431.54(h): State plan home and community-based services. If the state so elects, the requirements of § 440.240 of this chapter related to comparability of services do not apply with respect to State plan home and community-based services defined in § 440.182 of this chapter.
We received several comments that were in support of the eligibility policies pertaining to the new eligibility group specified at § 435.219 and § 436.219. Commenters were pleased that the regulation offers states flexibility in providing HCBS to elderly and disabled populations who do not meet an institutional level of care. Commenters were also pleased that the methodology proposed for the new eligibility group described at § 435.219(a) & (c) did not have a resource test and that the income standard for this new eligibility group is set at 150 percent of the FPL. Comments on eligibility policies not contained in this rule are not addressed.
Section 1915(i)(1) of the Act grants states the option to provide, under the state plan, the services and supports listed in section 1915(c)(4)(B) of the Act governing HCBS waivers. The HCBS may not include payment for room and board. Eligibility for this option is based upon several different factors that are either specified by the statute or that a state may define. These include financial eligibility, the establishment of needs-based criteria, and the state option to target the benefit and to offer benefits differing in type, amount, duration or scope to specific populations. Section 1915(i) of the Act provides that State plan HCBS may be provided without determining that, but for the provision of these services, individuals would require the LOC provided in a hospital, a nursing facility (NF), or an intermediate care facility for individuals with intellectual disabilities (ICF/IID) as is required in section 1915(c) HCBS waivers. While HCBS provided through section 1915(c) waivers must be “cost-neutral” as compared to institutional services, no cost neutrality requirement applies to the section 1915(i) State plan HCBS benefit. State plan HCBS are intended to enable individuals to receive needed services in their own homes, or in alternative living arrangements in what is collectively termed the “community” in this context.
However, another commenter was supportive of allowing HCBS to continue, as applicable for people who are temporarily hospitalized, stating that based on the needs of the individual, there could be a genuine necessity for HCBS while an individual is hospitalized in a short-term acute care setting and would not be a duplication of hospital care services:
“Some individuals may need assistance from their personal care provider to communicate their needs, medical history, redirect behaviors, and provide consistent person-directed physical assistance. Most hospitals do not have adequate, nor trained staff to provide the level and type of ongoing ‘personal care' many people using HCBS
With regard to rate methodologies, while rate determination methods may vary, payments for Medicaid services must be consistent with the provision of section 1902(a)(30)(A) of the Act (that is, “payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers”) and the related federal regulations at § 447.200 through 205. If the state-established rates will vary for different providers of a service (including a service that is also available under a section 1915(c) of the Act waiver), the state must explain the basis for the variation.
Provider qualifications must be reasonable and appropriate to the nature of the service, reflect sufficient training, experience and education to ensure that individuals will receive services in a safe and effective manner, and not have the effect of limiting the number of providers by the inclusion of requirements that are unrelated to quality and effectiveness. If the state-established minimum provider qualifications will vary for a service that is also available under a section 1915(c) of the Act waiver, the state must explain the basis for the variation.
Section 1915(i)(1) of the Act requires that in order to receive State plan HCBS, individuals must be eligible for Medicaid under an eligibility group covered under the State's Medicaid plan. In determining whether either of the relevant income requirements (discussed) is met, the regular rules for determining income eligibility for the individual's eligibility group apply, including any less restrictive income rules used by the state for that group under section 1902(r)(2) of the Act.
Section 2402(b) of the Affordable Care Act added a new option at section 1915(i)(6) of the Act, to allow states, in addition to continuing to provide services to individuals described in section 1915(i)(1) of the Act, to provide section 1915(i) of the Act services to certain individuals who meet the needs-based criteria, who would be eligible for HCBS under sections 1915(c), (d) or (e) of the Act waivers or a section 1115 waiver approved for the state, and who have income up to 300 percent of the Supplemental Security Income Federal Benefit Rate (SSI/FBR).
Section 2402(d) of the Affordable Care Act also amended section 1902(a)(10)(A)(ii) of the Act by adding a new optional categorically needy eligibility group specified at section 1902(a)(10)(A)(ii)(XXII) of the Act to provide full Medicaid benefits to certain individuals who will be receiving section 1915(i) services. This eligibility group has two parts, and states can cover individuals under either or both parts of the group. Under this group, states can elect to cover individuals who are not otherwise eligible for Medicaid who meet the needs-based criteria of the section 1915(i) of the Act benefit, have income up to 150 percent of the Federal poverty line (FPL) with no resource test
a. Home and Community-Based Settings Under 1915(i) and 1915(k) of the Act
To implement the statutory requirement that the benefit be “home and community-based,” we proposed to require in § 441.656(a) that the individual reside in the home or community, not in an institution, and that the settings must have qualities of community-based settings prescribed by the Secretary. We stated our recognition of the need for a consistent definition of this term across Medicaid HCBS, and our goal to align the final language pertaining to this topic across the regulations for sections 1915(i), 1915(k), and 1915(c) of the Act Medicaid HCBS authorities.
Section 1915(i) of the Act provides states the option to provide home and community-based services, but does not define “home and community-based.” Along with our overarching interest in making improvements to Medicaid HCBS, we seek to ensure that Medicaid is supporting needed strategies for States in their efforts to meet their obligations under the ADA and the Supreme Court decision in
In the proposed rule, we stated that we would permit states with approved section 1915(i) of the Act SPAs a reasonable transition period, a minimum of one year, to come into compliance with the HCBS setting requirements that are promulgated in our final rule.
Overall, we received 280 comments in response to the HCB settings section of the proposed rule regarding 1915(i) State plan HCBS and 1915(k) CFC. Commenters included advocacy organizations, individuals receiving services, family members, friends and guardians of individuals receiving services as well as providers, government entities and the general public. Because we are proposing the same requirements for home and community-based settings in regulations implementing 1915(i) and 1915(k), we are discussing comments pertaining to both in this section. The comments were mixed, with commenters providing both support and disagreement within subsections of the HCBS settings provision. A few of the issues that elicited a substantial number of comments are: qualities, integration, providers, choice, accessibility and privacy in addition to general comments.
Many commenters expressed concern about the effect the criteria will have on existing home and community-based services, and expressed concern that the proposed rule will eliminate community based-services that elderly individuals and people with disabilities are currently receiving. Several commenters suggested eliminating all provisions that restrict the consumer's freedom of choice regarding the residential settings in which they can utilize their Medicaid funds, stating that the qualities and characteristics of home are determined by the individual.
Some commenters stated that affordable rental options, especially those in apartment complexes where home maintenance responsibilities are handled by the landlord, are hard to find or non-existent in some communities. They indicated that lack of affordable housing is a huge challenge for people seeking to live in the community while being supported for severe disabilities, and that many individuals who experience multiple disabilities need housing that is tailored for their specific physical needs. These commenters stressed that group homes that were built and owned by a third party, specifically for the purpose of serving people with disabilities, would not be available if they tried to rent on the open market and that ruling out such homes for HCBS funding imposes further hardship and segregation on the population in need of HCBS.
One commenter believes the requirements will drive up costs.
Some commenters believe that the changes would effectively eliminate their freedom to provide their adult child a setting that is protected from exposure to community members that do not understand the effect of a community's environment on individuals with disabilities.
One commenter indicated that if adopted, the criteria would have a significant adverse impact on its ability to continue to serve individuals with the most significant disabilities in the community. The language included in the proposed regulation would: (1) Thwart informed choice by negating or severely restricting longstanding program options and opportunities to provide services and supports expressly authorized by the HCBS provisions of
Some commenters stated within the broad disability community, different groups have different needs and desires and any definition of home and community-based needs to be broad enough to encompass these divergent needs and desires with one not outweighing others. They indicated that it may not be possible to have a single definition to meet these needs.
One commenter stated that the standards proposed for home and community-based settings are impractical, overly prescriptive, inappropriate for persons with cognitive impairments and neurobehavioral challenges, and cannot be delivered at a rate that states and taxpayers can afford.
Another commenter disagreed with eliminating congregate care options and requested CMS clearly state policies which encourage states to operate a range of services for people with disabilities which reflect the diversity of their care and that of their families, including congregate care.
Several commenters disagreed with the notion embedded in the CMS proposal that “community based” can only be defined as a totally independent setting or small stand-alone group home in an urban or suburban environment.
We received many comments supporting the proposed criteria. These indicate that the criteria are a step in the right direction and support the goal of HCBS to assist individuals to be able to live fully in the greater community. One of these commenters stated that the criteria proposed appropriately establish the essential elements of resident autonomy and person-centered care.
Many commenters stated their belief that the provisions are key to assisting states with complying with the
Another indicated that the requirements appropriately ensure that individuals have control over their care environment while also making allowances for serving people with cognitive disabilities. Several commenters stated that the rule offers appropriate flexibility to ensure that individuals can remain in the community for as long as possible.
Many commenters commended CMS for its efforts to promote the rights of people with disabilities to live in the most integrated setting possible. They stated that the proposed rule has the potential to improve the care of many adults and children in the public mental health and developmental disabilities system.
A few commenters stated that making an institutional setting more “homelike” does not mean that it becomes community-based, and that the intent is to ensure that people with disabilities have more self-direction and ability to govern and control important components of their personal living environment.
One commenter stated appreciation and support for criteria that support individual choice, the ability for a recipient to exercise control over his or her immediate environment and day to day activities, and that do not restrict the individual's ability to live in the community in which his or her residence is located. However, the commenter is concerned that residency in some of the more creative congregated living arrangements may be disqualified. The commenter added that CMS should be as flexible as possible to ensure that these homes are able to continue to support individuals with disabilities and illnesses in the least restrictive environment possible.
(A)Individual has a lease, residency agreement or other form of written agreement that includes the ability to appeal move-out decisions to an objective third-party. Reasonable accommodations are made both by the provider and the state to accommodate aging in place. An appeal of a move-out decision should not prevent the move-out when there is a significant risk of harm to the resident, other residents, or staff. The appeal process will include nonpayment of fees unless the state has a demonstrated alternative process for addressing payment disputes. All appeals should be pursued expeditiously and should not take longer than 30 days.
We would like to clarify that this regulation does not require individuals to provide keys to anyone. The language is meant to curtail the issuing of resident keys to all employees or staff regardless of the employee's responsibilities, thus granting employees unlimited access to an individual's room. This provision indicates that only appropriate individuals should have access to an individual's room. For example, it may be appropriate for the property manager to have keys, but it might not be appropriate for the individual working at a reception area.
• Revise the rule to say “Individuals in shared rooms will have a choice of roommate.”
• Revise the rule to say “Individual roommate preferences are accommodated to the maximum extent practical and documented in the individual's person-centered service plan.”
• Revise the rule to add a requirement that individuals should not have to share a unit unless it is with a spouse, partner, or other family member.
• One commenter recommended that sharing a bedroom is clearly documented as the choice of the individual and that the room is shared only with a person of the individual's choosing.
• One commenter suggested that the rule needs to make it clear that a resident's choice acknowledges his economic situation.
• Other commenters noted that if the requirement is finalized, CMS needs to add an exception to the requirement for residential settings that do not meet the private room/living space requirement but are appropriate to meet the waiver client's needs and preferences according to the individual, the client's designated representative and the case manager.
• Revise the rule to say ” Individuals with disabilities receiving HCBS share units with other individuals with disabilities receiving HCBS, whether the unit is a single bedroom or a multi-room living space, only at the choice of the individual with disabilities receiving HCBS, at all times and under all circumstances. Individuals with disabilities receiving HCBS may share such units with a person who is present to provide services to the individual if necessary for safety reasons, if appropriately justified and documented.”
Conversely, another commenter expressed concern that people with disabilities are being served in segregated work and day settings that do not meet the “most integrated setting” definition and do not comply with guidance related to the ADA and the
We believe it would be a best practice for there to be communication between those settings and the program that will assist the individual in the community. However, such communication should not supplant the discharge planning activities that hospitals and long-term care settings are required to perform for any individual leaving its setting.
Several commenters recommend the regulation be revised to remove “disability specific housing complex” as a setting in which HCBS may not be provided. The commenters believe that people with disabilities should be able to choose to live in disability specific housing if the housing addresses their needs. One commenter stated that being a disability focused apartment building does not warrant the need for extra scrutiny. There are significant differences between an institution and a housing development.
Many commenters requested the rule clarify that the reference to a “disability-specific housing complex” was intended to refer to settings located in a disability-specific housing complex—as well as on the grounds of, or immediately adjacent to, such a complex.
Many commenters expressed concern that the proposed regulations would eliminate or severely restrict HCB services to residents with disabilities in supported living arrangements authorized under and meeting the requirements of HUD Section 811 and Section 202 multi-family housing units, because the homes built under HUD Section 811 or 202 are specifically restricted to people with specific disabilities. They believe the proposed rule appears to conflict with HUD policies.
Several commenters believe that regulatory language will result in the elimination of longstanding services that meet the needs of a large number of individuals. The commenters recommended that CMS issue interpretive guidance accompanying the final regulation to explain that a program located in a building on the premises of a disability-specific housing complex may receive HCBS if the housing complex is in compliance with the underlying laws and implementing regulations, including Section 811 of the National Affordable Housing Act of 1990, as amended and implementing regulations (supported housing for persons with disabilities), the Fair Housing Act, and the ADA.
Many commenters expressed concern that the use of the term disability specific complex would eliminate or severely restrict the provision of HCBS in group homes set around a courtyard where individuals with disabilities have many needed services and supports built into their day-to-day living and have transportation and other assistance to access the general community.
Many commenters requested the regulation provide a definition of the term “disability-specific housing complex.” Many commenters believe that undefined, the term is unclear, and too broad.
Several commenters requested we clarify that “CMS did not intend to include group homes located in and fully integrated into typical neighborhoods within the meaning of “disability-specific housing complex.”
A few commenters requested the rule clarify whether the presumption that a disability-specific complex is not a home and community based setting applies only if the setting does not meet the other criteria established in the regulation.
One commenter believes the potential elimination of disability-specific housing complexes as home and community-based settings will compromise viable housing alternatives in a housing market that is already in crisis, devastate the ability of providers to deliver services in settings that promote health and safety, and force individuals with developmental disabilities to move from their homes or lose their services and supports.
One commenter expressed opposition to the heightened scrutiny level of review, as proposed in the regulation. According to the commenter, families believe their loved ones benefit from these settings. Some planned residential communities are much like retirement communities where amenities such as bowling alleys, theatre, community centers, restaurants and shopping are readily available, along with necessary health care, support staff, vocational training. The commenter further stated that while the rule seems to embrace certain principles of community, such as individual choice and person-centered planning, there remains a bias that characterizes any sort of program-wide structure and safety measures as too “institutional” without any regard to the input of individuals, their families and their legal guardians. This commenter also stated that given that there is already a Medicaid definition of institution, it is improper for CMS to be proposing an expansion of current Medicaid law redefining the term. Another commenter believes that the proposed rule that considers a “disability-specific housing complex” an “institution” could be confusing and a barrier to effective community housing options for those with intellectual disabilities.
Many commenters objected to the inclusion of disability specific housing as institutional in that many people choose, as a function of age, to live with others with similar needs. The commenters indicated that senior housing, assisted living, and other such options are freely chosen by seniors without disabilities and inquired why people with disabilities who are eligible for HCBS be denied the same array of options available to their peers without disabilities. The commenter noted that the key is that the person-centered plan should provide for individuals making free choices in where they live as long as they do not include nursing facilities, institutions for mental diseases, intermediate care facilities for mentally retarded, hospitals, or other locations that have the qualities of an institutional setting as determined by the Secretary. Other commenters suggested that seniors often choose to live together in a variety of settings and request that CMS respect this preference by establishing exemptions from the proposed setting requirements for continuing care campuses, assisted living settings, and other housing for older persons. The commenter stated that CMS should not preclude successful options for people with disabilities simply based on location or proximity. Alternatively, one commenter indicated that he does not have the same philosophy and asserted that this provision must remain in these regulations. This opinion is based on the commenter's experience with the deinstitutionalization of people with intellectual and developmental disabilities and the commenter's knowledge of recent efforts in certain states to try and use waivers to fund settings that do not promote full inclusion in community life. If CMS does decide to create an exception, the commenter urges we keep it very narrowly tailored to senior communities only, so that it cannot be used to limit the opportunities of people with intellectual and developmental disabilities to experience true integration.
A few commenters requested the regulation clarify if housing or units within general housing, designated for persons with dementia or other cognitive impairments would meet the definition of disability-specific housing complexes. Other commenters added that it is discriminatory to deny HCBS waivers to individuals residing in an Assisted Living Facility providing care specifically to those with Alzheimer's
Other commenters expressed concern that many seniors living in age-specific communities will inadvertently be prohibited from receiving HCBS due to proximity to a hospital or nursing facility. The rule, they believe, will lead to more nursing home admissions among seniors and limit choices available to them to receive services in an assisted living facility (ALF). The commenters also stated the proposed language would likely reduce the number of individuals in nursing homes who are able to transition to a more integrated setting, because many individuals transition to ALFs. It should be considered desirable that those served by Medicaid would have the same array of choices as those not on Medicaid.
The Affordable Care Act added section 1915(i)(7) to the Act, which allows states to target the section 1915(i)
Section 1915(i)(1)(A) of the Act requires states to establish needs-based criteria for eligibility for the State plan HCBS benefit. Institutional level of care criteria must be more stringent than the needs-based criteria for the State plan HCBS benefit. Additionally, the state may establish needs-based criteria for each specific State plan home and community-based service that an individual would receive.
We note that there are issues for states to consider other than section 1915(i) of the Act that will influence decisions on levels of care and needs-based criteria,
Section 1915(i)(1)(E) of the Act describes the relationship of several required functions. Section 1915(i)(1)(E)(i) of the Act refers to the independent evaluation of eligibility in section 1915(i)(1)(A) and (B) of the Act, emphasizing the independence requirement. Section 1915(i)(1)(E)(ii) of the Act introduces the requirement of an independent assessment following the independent evaluation. Thus, there are two steps to the process: The eligibility determination, which requires the application of the needs-based criteria and any additional targeting criteria the state elects to require; and the assessment for individuals who were determined to be eligible under the first step, to determine specific needed services and supports. The assessment also applies the needs-based criteria for each service (if the state has adopted such criteria). Like the eligibility evaluation, the independent assessment is based on the individual's needs and strengths. The Act requires that both physical and mental needs and strengths are assessed. We note that while section 1915(i)(1)(F)(i) of the Act requires that the independent assessment include an objective evaluation of an individual's inability or need for assistance to perform 2 or more ADLs, this is only a suggested element at section 1915(i)(1)(D)(i) of the Act and thus, not required for an individual to be determined eligible for 1915(i) State plan HCBS.
These requirements describe a person-centered assessment including behavioral health, which will take into account the individual's total support needs as well as the need for the HCBS to be offered. Section 1915(i)(1)(E)(ii) of the Act requires that states use the assessment to: determine the necessary level of services and supports to be provided; prevent the provision of unnecessary or inappropriate care; and establish a written individualized service plan.
To achieve the three purposes of the assessment listed above, the assessor must be independent; that is, free from conflict of interest with regard to providers, to the individual and related parties, and to budgetary concerns. Therefore, we proposed specific requirements for independence of the assessor in accordance with section 1915(i)(1)(H)(ii) of the Act, and we will apply these also to the evaluator and the person involved with developing the person-centered service plan, where the effects of conflict of interest would be equally deleterious. These considerations of independence inform the discussion below under section 1915(i)(1)(H)(ii) of the Act regarding conflict of interest standards.
“No State plan HCBS are provided which would otherwise be available in the same amount, scope, and duration to the individual through other Medicaid services or other federally funded programs available under Section 110 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Improvement Act of 2004.”
Some commenters stated concern that a state might deny an individual's ability to choose to receive a service through the section 1915(i) of the Act benefit, if that service would be theoretically available under another federal program but the fact that the individual was not provided with assistance in applying for those services would result in delayed access to services or no access to services. They instead proposed a “no wrong door” policy in enrolling individuals in the section 1915(i) of the Act State plan benefit, so that regardless of their eligibility status for services under other programs the individual begins receiving the services they are determined to need through their individualized assessment without having to apply or complete additional eligibility determinations. They also stated that individuals should be able to utilize the program that best meets their needs and preferences, and provides for the greatest degree of service coordination and administrative simplification.
Section 1915(i)(1)(G) of the Act requires that the State plan HCBS benefit be furnished under an individualized care plan based on the assessment. The terms “care plan” and “service plan” are used interchangeably in practice. As explained in the May 3, 2012 proposed rule (77 FR 2012-10385), we have adopted the term “person-centered service plan” in this regulation. To fully meet individual needs and ensure meaningful access to their surrounding community, systems that deliver HCBS must be based upon a strong foundation of person-centered planning and approaches to service delivery. Thus, we proposed to require such a process be used in the development of the individualized person-centered service plan for all individuals to be served by section 1915(i) of the Act benefit. We proposed certain requirements for developing the person-centered service plan, but noted that the degree to which the process achieves the goal of person-centeredness can only be known with appropriate quality monitoring by the state, which should include substantial feedback provided by individuals who received or are receiving services.
In the proposed rule, we proposed to require states to provide assurance that necessary safeguards have been taken to protect the health and welfare of the enrollees in State plan HCBS by provision of adequate standards for all types of providers of HCBS. States must define qualifications for providers of HCBS, and for those persons who conduct the independent evaluation of eligibility for State plan HCBS and independent assessment of need, and who are involved with developing the person-centered service plan. We noted that we will refer to the individuals and entities involved with determining access to care as “agents” to distinguish this role from providers of services. We also noted that the proposal in no way preempts broad Medicaid requirements, such as an individual's right to obtain services from any willing and qualified provider of a service.
We believe that these qualifications are important safeguards for individuals enrolled in the State plan HCBS benefit and proposed that they be required whether activities of the agents are provided as an administrative activity or whether some of the activities are provided as a Medicaid service. At a minimum, these qualifications include conflict of interest standards, and for providers of assessment and person-centered service plan development, these qualifications must include training in assessment of individuals whose physical or mental condition may trigger a need for HCBS and supports, and an ongoing knowledge of current best practices to improve health and quality of life outcomes.
The minimum conflict of interest standards we proposed to require would ensure that the agent is not a relative of the individual or responsible for the individual's finances or health-related decisions. The standards also require that the agent must not hold a financial interest in any of the entities that
In § 441.671, we proposed to define the term “individual's representative” to encompass any party who is authorized to represent the individual for the purpose of making personal or health care decisions, either under state law or under the policies of the State Medicaid agency. We did not propose to regulate the relationship between an individual enrolled in the State plan HCBS benefit and his or her authorized representative, but noted that states should have policies to assess for abuse or excessive control and ensure that representatives conform to applicable state requirements. We noted that states must not refuse to allow a freely-chosen person to serve as a representative unless the state has tangible evidence that the representative is not acting in the best interest of the individual, or that the representative is incapable of performing the required functions.
“When the state authorizes representatives in accordance with paragraph (b) of this section, the state must have policies describing the process for authorization; the extent of decision-making authorized; and safeguards to ensure that the representative uses substituted judgment on behalf of the individual. State policies must address exceptions to using substituted judgment when the individual's wishes cannot be ascertained or when the individual's wishes would result in substantial harm to the
“States must continue to meet the requirements regarding the person-centered planning process at Section 441.725 of this rule.”
Section 1915(i)(1)(G)(iii)(I) and (II) of the Act provides that states may offer enrolled individuals the option to self-direct some or all of the State Plan HCBS that they require. Self-directed State plan HCBS allow states another avenue by which they may afford individuals maximum choice and control over the delivery of services, while comporting with all other applicable provisions of Medicaid law. We have urged all states to afford waiver participants the opportunity to direct some or all of their waiver services, without regard to their support needs. With the release of an updated, revised section 1915(c) of the Act waiver application in 2008, we refined the criteria and guidance to states surrounding self-direction (also referred to as participant-direction), and established a process by which states are encouraged, to whatever degree feasible, to include self-direction as a component of their overall HCBS waiver programs. While section 1915(i) of the Act does not require that states follow the guidelines for section 1915(c) of the Act waivers in implementing self-direction in the State plan HCBS benefit, we anticipate that states will make use of their experience with section 1915(c) of the Act waivers to offer a similar pattern of self-directed opportunities with meaningful supports and effective protections.
“Voluntary training on how to select, manage, and dismiss providers of State plan HCBS.”
We note that many states currently have existing training programs available that could potentially be leveraged or modified to meet such a requirement. Training programs should be able to meet the needs of individuals at varying levels of need with regard to selecting, managing, and dismissing providers. Consistent with the philosophy of self-direction, this training must be voluntary, and may not be a mandatory requirement for the individual to receive services under this option.
States are required to provide CMS annually with the projected number of individuals to be enrolled in the benefit, and the actual number of unduplicated individuals enrolled in the State plan HCBS benefit in the previous year. Section 1915(i) of the Act authorizes a state to elect not to apply comparability requirements, thus permitting states to target the entire section 1915(i) of the Act benefit, specific services within the benefit, or both. Under § 441.745(a)(1)(ii), we specify that the state may not limit enrollee access to services in the benefit for any reason other than assessed need or targeting criteria. This includes the requirement that services be provided to all individuals who are assessed to meet the targeting criteria and needs-based criteria, regardless of income. This is an important distinction between the limits states place on the services to be offered when they design the benefit, as opposed to limiting access to the services that are in the benefit for particular enrolled individuals. As discussed in the proposed rule, states have a number of permitted methods to control utilization. We proposed that once an individual is found eligible and enrolled in the benefit, access to covered services can be limited on the basis of the needs-based criteria as evaluated by the independent assessment and incorporated into the person-centered service plan. By not limiting access, we mean that an enrollee must receive any or all of the HCBS offered by the benefit, in scope and frequency up to any limits on those services defined in the state plan, to the degree the enrollee is determined to need them. Enrollees should receive no more, and no fewer, HCBS than they are determined to require.
We proposed in § 441.677(a)(2)(i) an option for presumptive payment. In accordance with section 1915(i) of the Act, the state may provide for a period of presumptive payment, not to exceed 60 days, for evaluation of eligibility for the State plan HCBS benefit and assessment of need for HCBS. This period of presumptive payment would be available for individuals who have been determined to be Medicaid eligible, and whom the state has reason to believe may be eligible for the State plan HCBS benefit. We proposed that FFP would be available for evaluation and assessment as administration of the approved state plan prior to an individual's determination of eligibility for and receipt of other section 1915(i) of the Act services. If the individual is found not eligible for the State plan HCBS benefit, the state may claim the evaluation and assessment as administration, even though the individual would not be considered to have participated in the benefit for purposes of determining the annual number of individuals served by the benefit. FFP would not be available during this presumptive period for receipt of State plan HCBS.
In § 441.677(a)(2)(ii), we proposed that a state may elect to phase-in the provision of services or the enrollment of individuals if the state also elects not to apply comparability requirements and to target the benefit to specific populations. However, there is no authority to limit the numerical enrollment in the benefit or to create waiting lists. Therefore, we proposed that any phase-in of services may not be based on a numerical cap on enrollees. Instead, a state may choose to phase-in the benefit or the provision of specific services based on the assessed needs of individuals, the availability of infrastructure to provide services, or both. Infrastructure is defined as the availability of qualified providers or of physical structures and information technology necessary to provide any service or set of services. A state that elects to phase-in the benefit must submit a plan, subject to CMS approval, that details the criteria used for phasing in the benefit. In the event that a state elects to phase-in the benefit based on needs, all individuals who meet the criteria described in the phase-in plan must receive covered services. If a state elects to phase-in services based upon infrastructure, the plan must describe the capacity limits, strategies to increase capacity, and must assure that covered services will be provided to all individuals who are able to acquire a willing and qualified provider. Any phase-in plan must provide assurance that the benefit, and all included services, will be available statewide to all eligible individuals within the first 5-year approval period.
In § 441.677(a)(2)(iii), we proposed that a state plan amendment submitted to establish the State plan HCBS benefit must include a reimbursement methodology for each covered service. In some states, reimbursement methods for self-directed services may differ from the same service provided without self-direction. In such cases, the reimbursement methodology for the self-directed services must also be described.
In § 441.677(a)(2)(iv), we proposed that the state Medicaid agency describe the line of authority for operating the State plan HCBS benefit. The State plan HCBS benefit requires several functions to be performed in addition to the service(s) provided, such as eligibility evaluation, assessment, and developing a person-centered service plan. To the extent that the state Medicaid agency delegates these functions to other entities, we proposed that the agency describe the methods by which it will retain oversight and responsibility for those activities, and for the operation and quality improvement of the benefit as a whole. Delegation of responsibilities by the state Medicaid agency must comply with the single state agency requirements of section 1902(a)(5) of the Act and § 431.10.
In § 441.677(a)(2)(v), we included a provision regarding the effective dates of amendments with substantive changes. Substantive changes may
In § 441.677(a)(2)(vi), we indicated that State plan amendments including targeting criteria are subject to a 5-year approval period and that successive approval periods are subject to CMS approval, contingent upon state adherence to federal requirements. In order to renew State plan HCBS for an additional 5-year period, the state must provide a written request for renewal to CMS at least 180 days prior to the end of each approval period.
We proposed in § 441.677(b) requirements for quality assurance which states are required to meet under section 1915(i)(1)(H)(i) of the Act. We proposed to require a state, for quality assurance purposes, to maintain a quality improvement strategy for its State plan HCBS benefit. The state's quality improvement strategy should reflect the nature and scope of the benefit the State will provide. We proposed that the State plan HCBS benefit include a quality improvement strategy consisting of a continuous quality improvement process, and outcome measures for program performance, quality of care, and individual experience, as approved and prescribed by the Secretary, and applicable to the nature of the benefit. In § 441.677(b), we proposed to require states to have program performance measures, appropriate to the scope of the benefit, designed to evaluate the state's overall system for providing HCBS. Program performance measures can be described as process and infrastructure measures, such as whether plans of care are developed in a timely and appropriate manner, or whether all providers meet the required qualifications to provide services under the benefit. In § 441.677(b)(1), we also proposed to require states to have quality of care measures as approved or prescribed by the Secretary. Quality of care measures may focus on program standards, systems performance, and individual outcomes.
• “CMS should clarify that home and community-based services furnished to individuals in the 3 months prior to a final determination of eligibility are also eligible for FFP once eligibility has been confirmed.”
• “Presumptive Eligibility is confusing, and should not be limited to evaluations and assessment; however, if someone needed medical data to prove eligibility including disability determination, those services should be provided.”
• “. . . encourages CMS to take this authority one step further to permit, on a time limited basis, federal financial participation for State plan HCBS furnished to consumers who are presumptively enrolled.”
• “Please clarify that the availability of Federal financial participation for medically necessary State plan HCBS benefit payments under this option when the individual beneficiary has been found not to be eligible, allows states to hold the beneficiary harmless for the state financial portion.”
• “We strongly encourage CMS to use its discretion, if possible, to include payment for the HCBS which a state believes the individual would be eligible to receive. This expanded authority is especially important in emergency situations, such as avoiding institutional care.”
• “We support the creation of flexibility for states to provide HCBS based on presumed eligibility for assessment due to the fact that many disabilities occur rather suddenly, and because there is no guarantee as to when informal support networks may give out or end.”
• “We commend the inclusion of authority in § 441.677(a)(2) to allow presumptive payment for HCBS evaluations and assessments, and the provision to allow FFP in the cases where presumptive payment was made based on good faith.”
Regarding the proposed provider payment reassignment provision, we received a total of 7 timely items of correspondence from home care provider representatives and other professional associations, state Medicaid directors, non-profit organizations, and other individuals. These comments ranged from general support for the proposed provision, to specific questions and detailed comments and recommendations regarding the proposed changes. A summary of the public comments and our responses are set forth below.
The proposed rule included a provision, retained in this final rule, that will allow states to enter into third party payment arrangements on behalf of individual practitioners for health and welfare benefit contributions, training costs, and other costs customary for employees.
Section 1915(c) of the Social Security Act (the Act) authorizes the Secretary of Health and Human Services to waive certain Medicaid statutory requirements so that a state may offer Home and Community-Based Services (HCBS) to state-specified group(s) of Medicaid beneficiaries who otherwise would require services at an institutional level of care. This provision was added to the Act by the Omnibus Budget and Reconciliation Act of 1981 (Pub. L. 97-35, enacted August 13, 1981) (OBRA'81) (with a number of subsequent amendments). Regulations were published to effectuate this statutory provision, with final regulations issued on July 25, 1994 (59 FR 37719). In the June 22, 2009
We have earlier explained our purpose for proposing definitions regarding home and community-based settings (see discussion under section II.A. of this rule).
We believe that these final changes will have numerous benefits for individuals and states alike. In addition to addressing individual and stakeholder input, these changes will improve HCBS waiver programs and support beneficiaries by enabling services to be planned and delivered in a manner driven by individual needs rather than diagnosis. These changes will enable states to realize administrative and program design simplification, as well as improve efficiency of operation. The changes related to clarification of HCBS settings will maximize the opportunities for waiver participants to have access to the benefits of community living and to receive services in the most integrated setting, and will effectuate the law's intention for Medicaid home and community-based services to provide alternatives to services provided in institutions.
On April 15, 2011, we published a proposed rule (76 FR 21311) entitled, “Medicaid Program: Home and Community-Based Services (HCBS) Waivers” which proposed revising the regulations implementing Medicaid home and community-based services under section 1915(c) of the Act in several key policy areas. First, the proposed rule provides states the option to combine the existing three waiver targeting groups as identified in § 441.301. In addition, we proposed changes to the HCBS waiver provisions to convey requirements regarding person-centered service plans, characteristics of settings that are, as well as are not, home and community-based, to clarify the timing of amendments and public input requirements when states propose modifications to HCBS waiver programs and service rates, and to describe the additional strategies available to us to ensure state compliance with the statutory provisions of section 1915(c) of the Act.
We received a total of 1653 comments from State Medicaid agencies, advocacy groups, health care providers, employers, health insurers, and health care associations. The comments ranged from general support or opposition to the proposed provisions to very specific questions or comments regarding the proposed changes.
Brief summaries of each proposed provision, a summary of the public comments we received (with the exception of specific comments on the paperwork burden or the economic impact analysis), and our responses to the comments are as follows.
The following summarizes a few general comments received regarding the notice of proposed rulemaking and also comments regarding issues not contained in specific provisions. We appreciate and thank the commenters for these various remarks. We realize these commenters raise important considerations in support of persons receiving Medicaid HCBS living in community settings, in integrated
We plan to continue to communicate with states and build upon state experience as we work with states to implement new policies and program changes as a means of ensuring a successful partnership between states and federal government. In addition, we will provide technical assistance and support to states. We encourage states to share across states as implementation continues. The public comments we receive will inform the development of future operational guidance and tools that will be designed to support state implementation efforts.
The provisions of this final rule will apply to all states offering Medicaid HCBS waivers under section 1915(c) of the Act. Comments were supportive of our interest in setting forth requirements regarding person-centered service and support plans that reflect what is important to the individual. The final revisions to § 441.301(c)(1) (proposed § 441.301(b)(1)(i)(A)) will require that a written services and support plan be based on the person-centered approach. This provision includes minimum requirements for this approach.
At § 441.301(b)(1)(i)(A) we proposed that a state request for a waiver must include explanation of how the state will use a person-centered process to develop a written services and support plan, subject to approval by the Medicaid agency. We received 286 comments about person-centered planning, most indicating how important it is to individuals that HCBS are provided in a manner that supports their values and preferences, rather than to satisfy an impersonal or provider-centered plan of care. In the comments immediately below we outline the suggestions that do not directly affect the regulatory language, and indicate in some cases where we will consider these ideas in developing future guidance. Comments that pertain to the proposed regulation language will be considered in more detail, under the corresponding section of proposed text.
In § 441.301(b)(1)(i)(A)(1) through (7), we proposed requirements for the Person-Centered Planning Process. Following are general comments we received on these requirements.
Following are the comments we received on § 441.301(b)(1)(i)(A)(
Following are the comments we received on § 441.301(b)(1)(i)(A)(
Many commenters urged us to favor empowering the individual; others urged empowering those who believe they have the best insight into the individual's needs and wishes. The regulation does not put these interests in competition. This final rule requires a process that puts the individual in the center, driving the process to the extent feasible, and recognizes the other persons' insights into the individual's strengths, needs, and preferences. The supports help to identify and sort out differing views among those present. At § 441.301(c)(1)(v) we discuss further the role of the facilitation process in managing disagreements and the inherent differences in self-interest present in any diverse team.
We agree that some of the specific types of support commenters suggested will be valuable for some individuals, but we do not prescribe in regulation all the specific supports that can be offered. These vary according to many factors including the type of disability.
We have revised this final rule to read: “Provides necessary information and support to ensure that the individual directs the process to the maximum extent possible, and is enabled to make informed choices and decisions.”
Following are the comments we received on § 441.301(b)(1)(i)(A)(
Following are the comments we received on § 441.301(b)(1)(i)(A)(
Following are the comments we received on § 441.301(b)(1)(i)(A)(
We note that some commenters confused a provider being in attendance with a provider being in charge of the process or the plan. The latter (a provider being in charge of the process or plan) is not appropriate; the former (the provider being in attendance) depends on the circumstance and is not a matter subject to blanket requirements. Individuals may choose, or not, to include a provider of service in the planning team. In some situations a direct care worker or a therapist has worked so long and closely with the individual that his or her perspective is very important. Also, some providers point out that they should be able to voice any limits in what they can provide, so that a plan for someone with intense need does not commit providers to services they are not able to provide. In other situations, for example, if the individual is anxious about repercussions from voicing problems, or has a tendency to defer to a provider, that provider's presence would be detrimental. Clearly some actions, such as intimidating the individual, are unacceptable.
We do not believe it is possible to define more specific conflict of interest requirements that would be meaningful in the variety of arrangements currently used to develop person-centered service and support plans. We have strengthened the language by requiring that the state devise clear conflict of interest guidelines addressed to all parties who participate in the planning process.
Following are the comments we received on § 441.301(b)(1)(i)(A)(
Following are the comments we received on § 441.301(b)(1)(i)(A)(
At § 441.301(b)(1)(i)(B) we proposed that the Person-Centered Service Plan must include specific content. After further review, we believe the requirement at § 441.301(b)(1)(i)(A)(
Following are the comments we received on § 441.301(b)(1)(i)(B)(
Following are the comments we received on § 441.301(b)(1)(i)(B)(
Following are the comments we received on § 441.301(b)(1)(i)(B)(
Following are the comments we received on § 441.301(b)(1)(i)(B)(
Following are the comments we received on § 441.301(b)(1)(i)(B)(
Following are the comments we received on § 441.301(b)(1)(i)(B)(
Following are the comments we received on § 441.301(b)(1)(i)(B)(
Most of the comments we received on this proposed requirement were more applicable to other requirements and are summarized under those headings. The requirements at § 441.301(c)(1)(iii) regarding timeliness and the requirements at § 441.301(c)(1)(viii) regarding a method for individuals to request updates to the plan are sufficient and respectful of the individual's timeframe as reflected in the person-centered planning process. Therefore, we are removing this proposed requirement from the final rule. We did not receive comments on the proposed requirement at § 441.301(b)(1)(i)(B)(
Following are the comments we received on § 441.301(b)(1)(i)(B)(
If the latter, concerns were expressed that parts of a true person-centered plan include very personal information, as required in § 441.301(c)(2)(iv) above—such as the individual's needs, aspirations, and even complaints—making it inappropriate to distribute the plan to everyone (that is, a housekeeper does not need to know about an individual's relationship goals).
Following are the comments we received on § 441.301(b)(1)(i)(B)(
Following are the comments we received on § 441.301(b)(1)(i)(B)(
Other commenters addressed the process of choice. They agreed with the planning process as proposed and stated that setting should be addressed, in terms of the individual's needs and goals. They asked that in the planning process no types of residential provider or housing options being offered to section 1915(c) of the Act HCBS waiver participants be omitted from the discussion. They and some others also suggested that this subject could be raised at regular intervals when appropriate, as the person centered service plan is updated. Their position was that competition among providers of residential settings for waiver participants is a good thing and will promote growth of the types of settings CMS seems to want to encourage, but will only work if it is a fair competition with all approved settings presented neutrally to the individual.
Some comments about settings in person-centered planning had more to do with the definition of setting than with the planning process.
We also agree that part of meaningful choice is to be presented with all available options. A person-centered planning process is not about promoting certain options deemed to be more “person-centered” or otherwise desirable, than other options. A person-centered process is one that puts the individual in the center, facilitated to make choices that may be agreeable or disagreeable to some participating in the process.
Therefore, we will require that the process of informed choice be documented. Best practices that develop will inform future policy. A new provision has been added at § 441.301(c)(2)(i) to read: “Reflect that the setting in which the individual resides is chosen by the individual. The state must ensure that the setting chosen by the individual is integrated in, and supports full access of individuals receiving Medicaid HCBS to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources and receive services in the community to the same degree of access as individuals not receiving Medicaid HCBS.”
Through the proposed rule, we proposed to clarify and sought public input on how to define the characteristics of home and community-based (HCB) settings where waiver participants may receive services. In new paragraph, § 441.301(b)(1)(iv), we proposed clarifying language regarding settings that will not be considered home and community-based under section 1915(c) of the Act. We clarified that HCBS settings are integrated in the community and may not include: facilities located in a building that is also a publicly or privately-operated facility that provides inpatient institutional treatment or custodial care; or in a building on the grounds of, or immediately adjacent to, a public or private institution; or a disability-specific housing complex designed expressly around an individual's diagnosis, that is segregated from the larger community, as determined by the Secretary.
We noted that this rule change does not exclude living settings on tribal lands that reflect cultural norms or ALS for persons who are older regardless of disability, when the conditions noted above in the background section are met.
The clarification and request for input was partially in response to instances in
CMS' definition of HCBS setting characteristics has evolved over the past four years, based on experience and learning from throughout the country and feedback about the best way to differentiate between institutional and community-based care. For example, in our April 4, 2008, proposed rule, Medicaid Program; Home and Community-Based State Plan Services, (73 FR 18676), we used the number of unrelated people living together in a facility to define whether or not a setting was HCB. Our April 15, 2011,proposed rule, Medicaid Program; Home and Community-Based Services (HCBS) Waivers, (76 FR 21432), no longer included the number of residents as an HCB characteristic, but did include a detailed list of the types of settings that do not qualify for HCBS waivers because they are not integrated into the community. Based on further public comment on these proposed regulations and on the comments we received on the 1915(i) and 1915(k) proposed rule, we are moving away from defining HCB settings by what they are not, and towards defining them by the nature and quality of beneficiaries' experiences. These final regulations establish a more outcome-oriented definition of HCB settings, rather than one based solely on a setting's location, geography, or physical characteristics.
We agree that the definition we included in the proposed rule for HCBS settings may have had the result of restricting the settings in which HCB waiver services can be provided in a way that we did not intend and in narrowing choices for participants. The final rule is more flexible and less prescriptive in that it does not preclude certain settings per se but rather establishes affirmative, outcome-based criteria for defining whether a setting is or is not home and community-based. The language in the final rule specifies that any setting that is located in a building that is also a publicly or privately operated facility that provides inpatient treatment, or in a building on the grounds of, or immediately adjacent to, a public institution, or any other setting that has the effect of isolating individuals receiving Medicaid HCBS from the broader community of individuals not receiving Medicaid HCBS, will be presumed to be a setting that has the qualities of an institution unless the Secretary determines, through heightened scrutiny, based on information presented by the state or other parties, that the setting does not have the qualities of an institution and that the setting does have the qualities of home and community-based settings. Therefore, states and others have the opportunity to refute this categorization by providing sufficient evidence that the individuals in the facility are, in fact, integrated in the community in a manner that overcomes any institutional appearance of the setting. This means
Under section 1915(c) of the Act, the Secretary is authorized to waive section 1902(a)(10)(B) of the Act, allowing states not to apply requirements that the medical assistance available to categorically-eligible Medicaid individuals must not be less in amount, duration or scope than the medical assistance made available to any other such individual, or the medical assistance available to medically needy individuals. We have interpreted this authority to permit States to target an HCBS waiver program to a specified group of individuals who would otherwise require institutional care. A single section 1915(c) waiver may, under current regulation, serve one of the three target groups identified in § 441.301(b)(6). As provided in the rule, these target groups are: “Aged or disabled, or both; Individuals with intellectual or developmental disabilities, or both; and Mentally ill.” States must currently develop separate section 1915(c) waivers in order to serve more than one of the specified target groups. A federal regulatory change that permits combining targeted groups within one waiver will remove a barrier for states that wish to design a waiver that meets the needs of more than one target population.
This regulatory change will enable states to design programs to meet the needs of Medicaid-eligible individuals and potentially achieve administrative efficiencies. For example, a growing number of Medicaid-eligible individuals with intellectual disabilities reside with aging caregivers who are also eligible for Medicaid. The proposed change will enable the state to design a coordinated section 1915(c) waiver structure that meets the needs of the entire family that, in this example, includes both an aging parent and a person with intellectual disabilities. In this illustration, the family currently would be served in two different waivers, but with the proposed change, both could now be served under the same waiver program.
The revisions to § 441.301(b)(6) will allow states, but not require them, to combine target groups. Under this rule, states must still determine that without the waiver, participants will require institutional level of care, in accordance with section 1915(c) of the Act. The regulation will not affect the cost neutrality requirement for section 1915(c) waivers, which requires the state to assure that the average per capita expenditure under the waiver for each waiver year not exceed 100 percent of the average per capita expenditures that will have been made during the same year for the level of care provided in a hospital, nursing facility, or ICF/IID under the state plan had the waiver not been granted. We will provide states with guidance on how to demonstrate cost neutrality for a waiver serving multiple target groups.
The comments provided on this provision were largely positive, advising CMS to carefully consider quality elements and protections needed to ensure that all target groups are protected sufficiently in such a structure. Through this final rule, we include the requirements that each individual within the waiver, regardless of target group, has equal access to the services necessary to meet their unique needs.
In an effort to ensure that safeguards are in place to protect the health and welfare of each waiver participant, we proposed in a new paragraph § 441.302(a)(4) that to choose the option of more than one target group under a single waiver, states must assure CMS that they are able to meet the unique service needs that each individual may have regardless of target group, and that each individual in the waiver has equal access to all needed services.
In addition, to ensure that services are provided in settings that are home and community-based, we proposed in a new paragraph § 441.302(a)(5) that states provide assurance that the settings where services are provided are home and community based, and comport with new paragraph § 441.301(c)(4). While we are not changing the existing quality assurances through this rule, we clarified that states must continue to assure health and welfare of all participants when target groups are combined under one waiver, and assure that they have the mechanisms in place to demonstrate compliance with that assurance.
We received no comments on § 441.302(a)(5) and we will adopt the proposed language.
At § 441.304, we made minor revisions to the heading to indicate the rules addressed under this section. We revised § 441.304(d) and redesignated current § 441.304(d) as new § 441.304(g).
The new § 441.304(d) will codify and clarify our guidance (
CMS received 43 comments regarding § 441.304(d), which will clarify and codify existing technical guidance governing the effective dates of waiver amendments that make substantive changes.
Given the important requirement at § 447.205, which describes states' responsibilities to provide public notice when states propose significant changes to their methods and standards for setting payment rates for services, we added a new paragraph § 441.304(e) to remind states of their obligations under § 447.205. We further included a new paragraph § 441.304(f) directing that states establish public input processes specifically for HCBS changes. These processes, commensurate with the change, could include formalized information dissemination approaches, conducting focus groups with affected parties, and establishing a standing advisory group to assist in waiver policy development. These processes must be identified expressly within the waiver document and used for waiver policy development. The input process must be accessible to the public (including individuals with disabilities) and states must make significant efforts to ensure that those who want to participate in the process are able to do so. These processes must include consultation with federally-recognized Indian Tribes in accordance with federal requirements and the state must seek advice from Indian health programs or Urban Indian Organizations prior to submission of a waiver request, renewal, amendment or action that would have a direct effect on Indians or Indian health providers or Urban Indian Organizations in accordance with section 5006(e) of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5, enacted on February 17, 2009).
We received 102 comments regarding § 441.304(e) and (f), which would clarify the public input and notice requirements for all section 1915(c) waiver actions.
In new paragraph, § 441.304(g), we added language describing additional strategies we may employ to ensure state compliance with the requirements of a waiver, short of termination or non-renewal. Our regulation at new § 441.304(g) reflects an approach to encourage state compliance. We are interested in working with states to achieve full compliance without having to resort to termination of a waiver. Therefore, we proposed strategies to ensure compliance in serious situations short of termination. These strategies include use of a moratorium on waiver enrollments or withholding federal payment for waiver services or administration of waiver services in accordance with the seriousness and nature of the state's noncompliance. These strategies could continue, if necessary, as the Secretary determines whether termination is warranted. Our primary objective is to use such strategies rarely, only after other efforts to resolve issues to ensure the health and welfare of individuals served or to resolve other serious non-compliance issues have not succeeded.
Once CMS employs a strategy to ensure compliance, the state must submit an acceptable corrective action plan in order to resolve all areas of noncompliance. The corrective action plan must include detail on the actions and timeframe the state will take to correct each area of noncompliance, including necessary changes to the quality improvement strategy and a detailed timeline for the completion and implementation of corrective actions.
We received 50 comments on § 441.304(g) regarding the actions we can take if a Medicaid agency is substantively out of compliance with waiver requirements.
The provisions proposed as new subpart L, consisting of § 441.650 through § 441.677, added to part 441 will be codified as subpart M, consisting of § 441.700 through § 441.745.
For the most part, this final rule incorporates the provisions of the proposed rule. In response to comments as explained in the responses in the above section, those provisions of this final rule that differ from the proposed rule are as follows:
Under § 430.25 (waivers of State plan requirements), we added “and in a manner consistent with the interests of beneficiaries and the objectives of the Medicaid program.” This was language from the preamble of the proposed rule, for which we received a comment requesting that it also be incorporated into the text of the final regulation.
In response to many comments received, and for the reasons provided in the responses above for each specific provision, we revised and added new language to § 441.530(a), regarding home and community-based setting requirements for 1915(k) and to § 441.710(a), regarding home and community-based setting requirements for 1915(i). In addition to those specific provisions, we examined the overall themes of the commentary received and our basis for the HCB settings requirements as a whole. All of the overall ideas may be found within the summary of comments and our responses in the above section, which are organized by specific provisions of the proposed rules.
In § 440.182(c)(8), which refers to conditions set forth at § 440.180 for persons with chronic mental illness, we have revised this reference to § 440.180(d)(2) to be more precise.
Under eligibility for home and community-based services under § 441.710(d), we corrected the reference to target criteria from (b)(2) to (e)(2).
Under § 441.710(e)(2)(ii), we corrected the reference to § 440.182(b) to § 440.182(c).
We have corrected § 441.715(b)(2) to replace the reference to (c)(7) to instead specify (c)(6).
We have corrected § 441.715(c) by replacing “the Secretary will approve” with “the Secretary may approve.”
We have corrected § 441.715(d) to replace the reference to section 441.710(a)(1) to § 441.658.
In § 441.715(d)(2), we have revised the reference to § 441.656 so that it now reads correctly as a reference to § 435.219 and § 436.219.
At § 441.720(a)(1), we made a minor correction and added a cross reference after “person-centered process” to § 441.725(a).
At § 441.720(a)(1)(i)(A), we revised the language to be consistent with other language in this regulation.
We added “cognitive” to § 441.720(a)(4) in response to comments received, to specifically include assessment of needs related to cognitive impairment.
We have revised the first sentence of § 441.720(a)(5).
In response to numerous comments received regarding the section 1915(i) of
In § 441.730(c), we added “cognitive” and current knowledge of “available resources, service options, and providers” to this requirement.
We added a new statement to § 441.735(a) regarding the definition of individual's representative to indicate that in instances where state law confers decision-making authority to the individual representative, the individual will lead the service planning process where possible and the individual representative will have a participatory role, as needed and as defined by the individual.
We revised § 441.735(c).
We revised § 441.740(b)(4).
For clarity, we have moved the requirement regarding financial management supports that was previously at both § 441.674(c)(2) and § 441.674(d)(4) of the proposed rule, to a new (5) under § 441.740(b) of this final rule.
We edited employer authority at § 441.740(c) to ensure consistency with statutory language, by replacing “or” with “and” so that it now reads as “the ability to select, manage, and dismiss providers of State plan HCBS.”
We revised § 441.740(e)(3).
Since advance notice is a topic in part 431, subpart E, we have added “advance notice” to the regulation at § 441.745(a)(1)(iii).
We revised § 441.745(a)(2)(vi) to specify that for renewal, the state's 1915(i) benefit must meet the state's objectives with respect to quality improvement and beneficiary outcomes.
We revised § 441.745(b)(1)(ii) to add language that was in the preamble of the proposed rule.
We have outlined in section III of this preamble the revisions in response to the public comments. Those provisions of this final rule that differ from the proposed rule are as follows:
Based upon the complexities of the comments received, we have reorganized the regulations to finalize the provisions proposed at § 441.301(b)(1)(i)(A) through § 441.301(b)(1)(i)(B)(
At § 441.301(c)(1) and (2), we made some general revisions to the terminology utilized to strengthen language regarding services. We added the term “supports” when referencing services to now use the language “services and supports.” We also revised person-centered plan as “person-centered service plan.”
At § 441.301(c)(1)(i) we added language to more clearly define the role of the individual's representative and refer to the 1915(i) definition of the individual's representative at § 441.735 in this rule.
We have revised § 441.301(c)(i)(ii) to more clearly state the individual's role in directing the person-centered planning process.
We have revised § 441.301(c)(1)(iii) to include a requirement for timeliness.
We have revised § 441.301(c)(1)(v) to strengthen this language to direct that the state devise clear conflict-of-interest guidelines addressed to all parties who participate in the person-centered planning process.
We have added a new provision at § 441.301(c)(1)(vi) to clarify conflict of interest standards pertaining to providers of HCBS. The proposed text at § 441.301(b)(1)(i)(A)(
We have revised § 441.301(c)(1)(vii) to clarify that individuals should be informed of all the possibilities from which they may choose regarding services, as well as the consequences of these choices.
We added a new provision at § 441.301(c)(1)(ix) to clarify that the setting in which an individual resides is an important part of the person-centered planning process.
We have revised § 441.301(c)(2) to align the language with other HCBS authorities.
We have added a new provision at § 441.301(c)(2)(i) to ensure that the individual's choice of setting is documented in the person-centered service plan. The proposed text at 441.301(b)(1)(i)(B)(
We have revised § 441.301(c)(2)(iii) and (iv) to align the language with other HCBS authorities.
We have revised § 441.301(c)(2)(v) by adding further clarifying language regarding “natural supports.”
We have revised previously numbered § 441.301(b)(1)(i)(B)(
We have revised § 441.301(c)(2)(vi) to strengthen the language regarding risks for individuals.
We removed § 441.301(b)(1)(i)(B)(
We revised § 441.301(c)(2)(xi) to provide clarifying language regarding the requirement for self-direction of services.
We revised § 441.301(c)(2)(xii) to replace the term “care” with the term “services and supports.”
We added new language at § 441.301(c)(2)(xiii) and at § 441.301(c)(3) to align with other HCBS authorities.
We revised § 441.301(c)(4) by replacing the language with new standards for HCBS settings that are aligned with other HCBS authorities.
We added a provision at § 441.301(c)(5) to specify the settings that are not home and community-based.
We added a new provision at § 441.301(c)(6)to specify the requirements for States to achieve compliance with the HCB settings standards.
We revised § 441.302(a)(4) to clarify the expectations that each individual within a waiver, regardless of target group, has equal access to the services necessary to meet their unique needs. In addition, we made a technical correction by changing “selects to serve” to “elects to serve.”
We have added a new provision at § 441.302(a)(4)(i) directing states to annually report data in the quality section of the CMS-372 regarding serving multiple target groups in a single waiver to ensure that a single target group is not being prioritized to the detriment of other groups.
We revised § 441.304(d)(1) to be more specific about the kind of change that constitutes a “substantive change” regarding HCBS waiver amendments.
We added a new provision at § 441.304(f)(2) to strengthen the public notice and input process by including a minimum time limit for posting notice of changes.
We added a new provision at § 441.304(f)(3) to clarify when the public input process applies.
We revised § 441.304(g)(3)(i) to clarify that additional options for promoting and ensuring state compliance with
Under the Paperwork Reduction Act of 1995, we are required to provide 60-day notice in the
• The need for the information collection and its usefulness in carrying out the proper functions of our agency.
• The accuracy of our estimate of the information collection burden.
• The quality, utility, and clarity of the information to be collected.
• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
We solicited public comment on each of these issues for the following sections of this document that contain information collection requirements:
To cover the categorically needy eligibility group, the State would be required to submit a SPA and may elect to cover individuals who meet certain requirements in § 435.219(a) or § 436.219(a). The burden associated with this requirement is the time and effort put forth by the State to complete, review, process and transmit/submit the pre-print which describes the eligibility criteria for the group. We estimate it would take each State 30 hours to meet this one-time requirement. We estimate that on an annual basis, 3 States will submit a SPA to meet these requirements; therefore, the total annual burden hours for this requirement are 90 hours. We believe that a State employee, with pay equivalent to GS-13 step one ($34.34 per hour) would be responsible for this requirement. Thus, the cost for each State is anticipated to be $1,030; this equates to an annual cost of $3,091.
If a State elects to target the benefit to specific populations, § 441.710(e)(2) requires submission of targeting criteria to CMS. The burden associated with this requirement is the time and effort put forth by the State to establish such criteria. We estimate it would take 1 State 10 hours to meet this one-time requirement. We estimate that on an annual basis, 3 States will submit a SPA to offer the State plan HCBS benefit that targets specific populations, and be affected by this requirement; therefore, the total annual burden hours for this requirement is 30 hours. We believe that a State employee, with pay equivalent to GS-13 step one ($34.34 per hour) would be responsible for this requirement. Thus, the cost for each State is anticipated to be $343; this equates to an annual cost of $1,030.
Section 441.715(a) requires a State to establish needs-based criteria for determining an individual's eligibility under the State plan for the HCBS benefit, and may establish needs-based criteria for each specific service. The burden associated with this requirement is the time and effort put forth by the State to establish such criteria. We estimate it would take 1 State 24 hours to meet this requirement. We estimate that on an annual basis, 3 States will submit a SPA to offer the State plan HCBS benefit, and be affected by this one-time requirement; therefore, the total annual burden hours for this requirement is 72 hours. We believe that a State employee, with pay equivalent to GS-13 step one ($34.34 per hour) would be responsible for this requirement. Thus, the cost for each responding State is anticipated to be $824; this equates to an annual cost of $2,472.
Section 441.715(b) reads that if a State defines needs-based criteria for individual State plan home and community-based services, the needs-based institutional eligibility criteria must be more stringent than the combined effect of needs-based State plan HCBS benefit eligibility criteria and individual service criteria. Section 441.715(b)(1)(ii) requires the State to submit the more stringent criteria to CMS for inspection with the State plan amendment that establishes the State Plan HCBS benefit.
The burden associated with this requirement is the time and effort for the State to define the more stringent criteria and submit it to CMS along with the State plan amendment that establishes the HCBS benefit. We anticipate 3 States would be affected by this requirement on an annual basis and it would require 1 hour to prepare and submit this information. The one-time burden associated with this requirement is 3 hours. We believe that a State employee, with pay equivalent to GS-13 step one ($34.34 per hour) would be responsible for this requirement. Thus, the cost for each State is anticipated to be $34; this equates to an annual cost of $102. This would be a one-time burden for each responding State.
Section 441.715(c) reads that a state may modify the needs-based criteria established under paragraph (a) of this section, without prior approval from the Secretary, if the number of individuals enrolled in the state plan HCBS benefit exceeds the projected number submitted annually to CMS.
Section 441.715(c)(1) requires the state to provide at least 60 days notice of the proposed modification to the Secretary, the public, and each individual enrolled in the State plan HCBS benefit. The State notice to the Secretary will be considered an amendment to the State plan.
Section 441.715(c)(2) requires the State notice to the Secretary be submitted as an amendment to the State plan.
The burden associated with the requirements found under § 441.715(c) is the time and effort put forth by the State to modify the needs-based criteria and provide notification of the proposed modification to the Secretary. We estimate it would take 1 State 24 hours to make the modifications and provide notification. This would be a one-time burden.
The total annual burden of these requirements (§ 441.715(c), § 441.715(c)(1), and § 441.715(c)(2)) would vary according to the number of States who choose to modify their needs-based criteria. We do not expect any States to make this modification in the next 3 years, thus there is no anticipated burden.
Section 441.715(d) states that eligibility for the State plan HCBS benefit is determined, for individuals who meet the requirements of § 441.710(a)(1) through (5), through an independent evaluation of each individual that meets the specified requirements. Section 441.715(d)(5) requires the evaluator to obtain information from existing records, and when documentation is not current and accurate, obtain any additional information necessary to draw a valid conclusion about the individual's support needs. Section 441.715(e) requires at least annual reevaluations.
The burden associated with this requirement is the time and effort put forth by the evaluator to obtain information to support their conclusion. We estimate it would take one evaluator 2 hours per participant to obtain
Section 441.720 requires the State to provide for an independent assessment of need in order to establish a person-centered service plan. At a minimum, the person-centered service plan must meet the requirements as discussed under § 441.725.
While the burden associated with the requirements under § 441.720 is subject to the PRA, we believe the burden is exempt as defined in 5 CFR 1320.3(b)(2) because the time, effort, and financial resources necessary to comply with this requirement would be incurred by persons in the normal course of their activities.
Section 441.745(a)(1)(i) reads that a State will annually provide CMS with the projected number of individuals to be enrolled in the benefit, and the actual number of unduplicated individuals enrolled in State plan HCBS in the previous year.
The burden associated with this requirement is the time and effort put forth by the state to annually project the number of individuals who will enroll in State plan HCBS. We estimate it will take one state 2 hours to meet this requirement. The total annual burden of these requirements would vary according to the number of States offering the State plan HCBS benefit. The maximum total annual burden is 112 hours (56 States x 2 hours = 112 hours). We believe that a state employee, with pay equivalent to GS-13 step one ($34.34 per hour) would be responsible for this requirement. Thus, the anticipated for each state is anticipated to be $69; this equates to a maximum annual cost of $3,864 if all 56 states elect to provide this benefit. There are currently six states with approved State plan HCBS benefits. Thus, we anticipate based on current benefits that the total annual aggregated burden will be $414.
Section 441.745(a)(2)(iii) reads that the SPA to provide State plan HCBS must contain a description of the reimbursement methodology for each covered service.
The burden associated with this requirement is the time and effort put forth by the state to describe the reimbursement methodology for each State plan HCBS. We estimate that it will take one state an average of 2 hours to determine the reimbursement methodology for one covered HCBS. This would be a one-time burden. The total annual burden for this requirement would vary according to the number of services that the state chooses to include in the state plan HCBS benefit. We believe that a state employee, with pay equivalent to GS-13 step one ($34.34 per hour) would be responsible for this requirement. Thus, the cost to each state for each covered service is anticipated to be $69; this would vary based upon the number of services covered. This would be an annual burden for each responding state. Since we have estimated that 3 states will annually describe the reimbursement methodology, the total annual aggregated burden associated with this requirement is estimated to be $207.
Section 441.745(a)(2)(iv) reads that the SPA to provide State plan HCBS must contain a description of the State Medicaid agency line of authority for operating the State plan HCBS benefit, including distribution of functions to other entities.
The burden associated with this requirement is the time and effort put forth by the state to describe the State Medicaid agency line of authority. We estimate it will take one state 2 hours to meet this requirement. Since we have estimated that 3 states will annually request State plan HCBS, the total annual burden associated with this requirement is estimated to be 6 hours. This would be a one-time burden for each responding state. We believe that a state employee, with pay equivalent to GS-13 step one ($34.34 per hour) would be responsible for this requirement. Thus, the cost for each State is anticipated to be $69.
Section 441.745(a)(2)(vi) limits the approval period for states that target the benefit to specific populations. If a state elects to target the benefit, this section requires a renewal application every 5 years in order to continue operation of the benefit. Actual time to meet this requirement will vary depending on the scope of the program and any changes the state includes. However, we estimate that it will take one state an average of 40 hours to meet this requirement. This includes reviewing the previous submission, making any necessary changes to the state plan document(s), and communicating with CMS regarding the renewal. This burden would occur once every five years and would be recurring. We estimate that, beginning in 2016, 3 states will annually request renewal and the total burden will be 120 hours. We believe that a state employee, with pay equivalent to GS-13 step one ($34.34 per hour) would be responsible for this requirement. Thus, the cost for each State is anticipated to be $1,374; this equates to an annual cost of $4,122. This would be a burden for each State that targets its benefit once every 5 years; however, this burden will not take effect until 2016.
Section 441.745(b) requires States to develop and implement a quality improvement strategy that includes methods for ongoing measurement of program performance, quality of care, and mechanisms for remediation and improvement proportionate to the scope of services in the State plan HCBS benefit and the number of individuals to be served, and make this information available to CMS upon the frequency determined by the Secretary or upon request.
The burden associated with this requirement is the time and effort put forth by the state to develop and implement a quality improvement strategy, and to make this information available to CMS upon the frequency determined by the Secretary or upon request. We estimate it will take one state 45 hours for the development of the strategy, and for making information available to CMS. The total annual burden of these requirements would vary according to the number of states offering the state plan HCBS benefit. The maximum total annual burden is estimated to be 2,520 hours (56 states × 45 hours = 2,520 hours). We estimate that the burden associated with implementation of the quality improvement strategy will greatly vary, as the necessary time and effort to perform these activities is dependent upon the scope of the benefit and the number of persons receiving state plan HCBS. We believe that a state employee, with pay equivalent to GS-13 step one ($34.34 per hour) would be responsible
The state plan HCBS benefit is authorized under section 1915(i) of the Act. Section 1915(i) was created by the Deficit Reduction Act of 2005 (DRA) and was amended by the Affordable Care Act of 2010. The resulting statute provides states with authority to establish state plan HCBS benefits in their Medicaid program.
These regulations are necessary in order to include the state plan HCBS within the Code of Federal Regulations (CFR). Additionally, these regulations provide states with direction and clarity regarding the framework under which the programs can be established.
We have examined the impacts of this rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993) and Executive 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C. 804(2).
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). 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 major rules with economically significant effects ($100 million or more in any one year). This final rule has been designated an “economically significant” rule under section 3(f)(1) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.
We estimate that, as a result of this final rule, the Medicaid cost impact for provisions under 1915(i) for fiscal year (FY) 2014 will be $150 million for the federal share and $115 million for the state share. The estimates are adjusted for a phase-in period during which states gradually elected to offer the state plan HCBS benefit. Furthermore, the estimated total annual collection of information requirements cost (including fringe benefits and overhead) to states is $21,805 (see section V. Collection of Information Requirements).
Provisions in this rule pertaining to section 2601 of the Affordable Care Act: 5-Year Period for Demonstration Projects (Waivers), Provider Payment Reassignments, section 2401 of the Affordable Care Act: 1915(k) Community First Choice State Plan Option: Home and Community-Based Setting Requirements, and 1915(c) Home and Community-Based Services Waivers will not impact federal or state Medicaid funding. While States may incur costs in coming into compliance with these provisions in this rule, given the variability in State programs, and the varying extent to which some are already complying, it is difficult to estimate these costs.
State Medicaid programs will make use of the optional flexibility afforded by the state plan HCBS benefit to provide needed long-term care HCBS to eligible individuals the state has not had means to serve previously, or to provide services to these individuals more efficiently and effectively. The state plan HCBS benefit will afford states a new means to comply with requirements of the
The cost of these services will be dependent upon the number of states electing to offer the benefit, the scope of the benefits states design, and the degree to which the benefits replace existing Medicaid services. States have more control over expenditures for this benefit than over other state plan services. For states that choose to offer these services, states may specify limits to the scope of HCBS, target the benefit to specific populations, and have the option to adjust needs-based criteria
If states elect to include the new optional group, eligibility could be expanded because the group may include individuals who would not otherwise be eligible for Medicaid. However, costs of the state plan HCBS benefit may be offset by lowered potential federal and state costs of more expensive institutional care. Additionally, the requirement for a written person-centered service plan, and the provision of needed HCBS in accordance with the person-centered service plan, may discourage inappropriate utilization of costly services such as emergency room care for routine procedures, which may be beneficial to Medicare and Medicaid when individuals are eligible for both programs. If a state targets this benefit, only individuals who meet the targeting criteria would receive 1915(i) services and be eligible for the group, thus limiting Medicaid HCBS expansion.
After considering these factors, we assumed that, if all states adopted this measure, program expenditures would increase by 1 percent of current HCBS expenditure projections. We further assumed that ultimately, states representing 50 percent of the eligible population would elect to offer this benefit, and that this ultimate level would be reached in FY 2014,. Based on these assumptions, the federal and state cost estimates are shown in Table 2.
The effect on Medicaid beneficiaries who receive the state plan HCBS benefit will be substantial and beneficial in States where optional 1915(i) state plan HCBS are included, as it will provide eligible individuals with the opportunity to receive needed long-term care services and supports in their homes and communities.
The state plan HCBS benefit will afford business opportunities for providers of the HCBS. We do not anticipate any effects on other providers. Section 1915(i) of the Act delinks the HCBS from institutional LOC, and requires that eligibility criteria for the benefit include a threshold of need less than that for institutional LOC, so that it is unlikely that large numbers of participants in the state plan HCBS benefit will be discharged from the facilities of Medicaid institutional providers. There may be some redistribution of services among providers of existing non-institutional Medicaid services into State plan HCBS, but providers who meet qualifications for the state plan HCBS benefit have the option to enroll as providers of HCBS.
This rule has no direct effect on the Medicare program; however, an indirect and beneficial effect may occur if individuals eligible for both Medicare and Medicaid are enrolled in a state plan HCBS benefit.
This final rule incorporates provisions of new section 1915(i) of the Act into federal regulations, providing for Medicaid coverage of a new optional state plan benefit to furnish home and community-based state plan services. The statute provides states with an option under which to draw federal matching funds; it does not impose any requirements or costs on existing state programs, on providers, or upon beneficiaries. States retain their authority to offer HCBS through the existing authority granted under section 1915(c) waivers and under section 1115 waivers. States can also continue to offer, and individuals can choose to receive, some but not all components of HCBS allowable under section 1915(i) through existing state plan services such as personal care or targeted case management services.
Section 1915(i) of the Act was effective January 1, 2007. States may propose state plan amendments (SPAs) to establish the state plan HCBS benefit with or without this final rule. We considered whether this statute could be self-implementing and require no regulation. Section 1915(i) of the Act is complex; many states have contacted us for technical assistance in the absence of published guidance, and some have indicated they are waiting to submit a state plan amendment until there is a rule. We further considered whether a State Medicaid Director letter would provide sufficient guidance regarding CMS review criteria for approval of an SPA. We concluded that section 1915(i) of the Act establishes significant new features in the Medicaid program, and that it was important to provide states and the public the published invitation for comment provided by the proposed rule. Finally, state legislation and judicial decisions are not alternatives to a federal rule in this case since section 1915(i) of the Act provides federally funded benefits.
We considered modifying existing regulations at § 440.180, part 441 subpart G, Home and Community-Based Services: Waiver Requirements, which implement the section 1915(c) HCBS waivers, to include the authority to offer the state plan HCBS benefit. This would have the advantage of not duplicating certain requirements common to both types of HCBS. However, we believe that any such efficiency would be outweighed by the substantial discussion that would be required of the differences between the Secretary's discretion to approve waivers under section 1915(c) of the Act, and authority to offer HCBS under the State plan at section 1915(i) of the Act. While Congress clearly considered the experience to date with HCBS under waivers when constructing section 1915(i) of the Act, it did not choose to modify section 1915(c) of the Act, but chose instead to create a new authority at section 1915(i) of the Act.
As required by OMB Circular A-4 (available at
We anticipate that states will make widely varying use of the section 1915(i) state plan HCBS benefit to provide needed long-term care services for Medicaid beneficiaries. These services will be provided in the home or alternative living arrangements in the community, which is of benefit to the beneficiary and is less costly than institutional care. Requirements for independent evaluation and assessment, individualized care planning, and requirements for a quality improvement program will promote efficient and effective use of Medicaid expenditures for these services.
The Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), as modified by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (Pub. L. 104-121), requires agencies to analyze options for regulatory relief of small entities, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of less than $7.0 million to $34.5 million in any 1 year. Medicaid providers are required, as a matter of course, to follow the guidelines and procedures as specified in state and federal laws and regulations. Furthermore, this final rule imposes no requirements or costs on providers or suppliers for their existing activities. The rule implements a new optional state plan benefit established in section 1915(i) of the Act. Small entities that meet provider qualifications and choose to provide HCBS under the state plan will have a business opportunity under this final rule. The Secretary has determined that this final rule will not have a significant economic impact on a substantial number of small entities.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a metropolitan statistical area and has fewer than 100 beds. This final rule does not offer a change in the administration of the provisions related to small rural hospitals. Therefore, the Secretary has determined that this final rule will not have a significant impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995, Pub. L. 104-4) 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 2013, that threshold is approximately $141 million. This final rule does not mandate any spending by state, local, or tribal governments, in the aggregate, or by the private sector, of $141 million.
Executive Order 13132 on Federalism (August 4, 1999) 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 E.O. 13132 are not applicable.
Administrative practice and procedure, Grant programs-health, Medicaid, Reporting and recordkeeping requirements.
Grant programs-health, Health facilities, Medicaid, Privacy, Reporting and recordkeeping requirements.
Aid to Families With Dependent Children, Grant programs-health, Medicaid, Reporting and recordkeeping requirements, Supplemental Security Income, Wages.
Aid to Families With Dependent Children, Grant programs-health, Guam, Medicaid, Puerto Rico, Supplemental Security Income (SSI), Virgin Islands.
Grant programs-health, Medicaid.
Aged, Family planning, Grant programs-health, Infants and children, Medicaid, Penalties, Reporting and recordkeeping requirements.
Accounting, Administrative practice and procedure, Drugs, Grant programs-health, Health facilities, Health professions, Medicaid, Reporting and recordkeeping requirements, Rural areas.
For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services amends 42 CFR chapter IV as set forth below:
Sec. 1102 of the Social Security Act (42 U.S.C. 1302).
(h) * * *
(2)
(A) The initial waiver is for a period of 3 years and may be renewed thereafter for periods of 5 years.
(B) For waivers that include individuals who are dually eligible for Medicare and Medicaid, 5-year initial approval periods may be granted at the discretion of the Secretary for waivers meeting all necessary programmatic, financial and quality requirements, and in a manner consistent with the interests of beneficiaries and the objectives of the Medicaid program.
(ii)
(A) The initial waiver is for a period of 2 years and may be renewed for additional periods of up to 2 years as determined by the Administrator.
(B) For waivers that include individuals who are dually eligible for Medicare and Medicaid, 5-year initial and renewal approval periods may be granted at the discretion of the Secretary for waivers meeting all necessary programmatic, financial and quality requirements, and in a manner consistent with the interests of beneficiaries and the objectives of the Medicaid program.
(iii)
Sec. 1102 of the Social Security Act (42 U.S.C. 1302).
(a) * * *
(3) Section 1915(i) of the Act provides that a State may provide, as medical assistance, home and community-based services under an approved State plan amendment that meets certain requirements, without regard to the requirements of sections 1902(a)(10)(B) and 1902(a)(10)(C)(i)(III) of the Act, with respect to such services.
(h)
Sec. 1102 of the Social Security Act (42 U.S.C. 1302).
If the agency provides State plan home and community-based services to individuals described in section 1915(i)(1), the agency, under its State plan, may, in addition, provide Medicaid to individuals in the community who are described in one or both of paragraphs (a) or (b) of this section.
(a) Individuals who—
(1) Are not otherwise eligible for Medicaid;
(2) Have income that does not exceed 150 percent of the Federal poverty line (FPL);
(3) Meet the needs-based criteria under § 441.715 of this chapter; and
(4) Will receive State plan home and community-based services as defined in § 440.182 of this chapter.
(b) Individuals who—
(1) Would be determined eligible by the agency under an existing waiver or demonstration project under sections 1915(c), 1915(d), 1915(e) or 1115 of the Act, but are not required to receive services under such waivers or demonstration projects;
(2) Have income that does not exceed 300 percent of the Supplemental Security Income Federal Benefit Rate (SSI/FBR); and
(3) Will receive State plan home and community-based services as defined in § 440.182 of this chapter.
(c) For purposes of determining eligibility under paragraph (a) of this section, the agency may not take into account an individual's resources and must use income standards that are reasonable, consistent with the objectives of the Medicaid program, simple to administer, and in the best interests of the beneficiary. Income methodologies may include use of existing income methodologies, such as the SSI program rules. However, subject to the Secretary's approval, the agency may use other income methodologies that meet the requirements of this paragraph.
Sec. 1102 of the Social Security Act (42 U.S.C. 1302).
If the agency provides State plan home and community-based services to individuals described in section 1915(i)(1) of the Act, the agency, under its State plan, may, in addition, provide Medicaid to of individuals in the community who are described in one or both of paragraphs (a) or (b) of this section.
(a) Individuals who—
(1) Are not otherwise eligible for Medicaid;
(2) Have income that does not exceed 150 percent of the Federal poverty line (FPL);
(3) Meet the needs-based criteria under § 441.715 of this chapter; and
(4) Will receive State plan home and community-based services as defined in § 440.182 of this chapter.
(b) Individuals who—
(1) Would be determined eligible by the agency under an existing waiver or demonstration project under sections 1915(c), 1915(d), 1915(e) or 1115 of the Act, but are not required to receive services under such waivers or demonstration projects;
(2) Have income that does not exceed 300 percent of the Supplemental Security Income Federal Benefit Rate (SSI/FBR); and
(3) Will receive State plan home and community-based services as defined in § 440.182 of this chapter.
(c) For purposes of determining eligibility under paragraph (a) of this section, the agency may not take into account an individual's resources and must use income standards that are reasonable, consistent with the objectives of the Medicaid program, simple to administer, and in the best interests of the beneficiary. Income methodologies may include use of existing income methodologies, such as the rules of the OAA, AB, APTD or AABD programs. However, subject to the Secretary's approval, the agency may use other income methodologies that meet the requirements of this paragraph.
Sec. 1102 of the Social Security Act (42 U.S.C. 1302).
1915(i) Home and community-based services furnished under a State plan to elderly and disabled individuals.
(a)
(b)
(1) Are eligible under the State plan and have income, calculated using the otherwise applicable rules, including any less restrictive income disregards used by the State for that group under section 1902(r)(2) of the Act, that does not exceed 150 percent of the Federal Poverty Line (FPL); and
(2) In addition to the individuals described in paragraph (b)(1) of this section, to individuals based on the State's election of the eligibility groups described in § 435.219(b) or § 436.219(b) of this chapter.
(c)
(1) Case management services.
(2) Homemaker services.
(3) Home health aide services.
(4) Personal care services.
(5) Adult day health services.
(6) Habilitation services, which include expanded habilitation services as specified in § 440.180(c).
(7) Respite care services.
(8) Subject to the conditions in § 440.180(d)(2), for individuals with chronic mental illness:
(i) Day treatment or other partial hospitalization services;
(ii) Psychosocial rehabilitation services;
(iii) Clinic services (whether or not furnished in a facility).
(9) Other services requested by the agency and approved by the Secretary as consistent with the purpose of the benefit.
(d)
(1) The cost of temporary food and shelter provided as an integral part of respite care services in a facility approved by the State.
(2) Meals provided as an integral component of a program of adult day health services or another service and consistent with standard procedures in the State for such a program.
(3) A portion of the rent and food costs that may be reasonably attributed to an unrelated caregiver providing State plan HCBS who is residing in the same household with the recipient, but not if the recipient is living in the home of the caregiver or in a residence that is owned or leased by the caregiver.
Sec. 1102 of the Social Security Act (42 U.S.C. 1302).
(b) * * *
(1) * * *
(i) Under a written person-centered service plan (also called plan of care) that is based on a person-centered approach and is subject to approval by the Medicaid agency.
(6) Be limited to one or more of the following target groups or any subgroup thereof that the State may define:
(i) Aged or disabled, or both.
(ii) Individuals with Intellectual or Developmental Disabilities, or both.
(iii) Mentally ill.
(c) A waiver request under this subpart must include the following—
(1)
(i) Includes people chosen by the individual.
(ii) Provides necessary information and support to ensure that the individual directs the process to the maximum extent possible, and is enabled to make informed choices and decisions.
(iii) Is timely and occurs at times and locations of convenience to the individual.
(iv) Reflects cultural considerations of the individual and is conducted by providing information in plain language and in a manner that is accessible to individuals with disabilities and persons who are limited English proficient, consistent with § 435.905(b) of this chapter.
(v) Includes strategies for solving conflict or disagreement within the process, including clear conflict-of-interest guidelines for all planning participants.
(vi) Providers of HCBS for the individual, or those who have an interest in or are employed by a provider of HCBS for the individual must not provide case management or develop the person-centered service plan, except when the State demonstrates that the only willing and qualified entity to provide case management and/or develop person-centered service plans in a geographic area also provides HCBS. In these cases, the State must devise conflict of interest protections including separation of entity and provider functions within provider entities, which must be approved by CMS. Individuals must be provided with a clear and accessible alternative dispute resolution process.
(vii) Offers informed choices to the individual regarding the services and supports they receive and from whom.
(viii) Includes a method for the individual to request updates to the plan as needed.
(ix) Records the alternative home and community-based settings that were considered by the individual.
(2)
(i) Reflect that the setting in which the individual resides is chosen by the individual. The State must ensure that the setting chosen by the individual is integrated in, and supports full access of individuals receiving Medicaid HCBS to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community to the same degree of access as individuals not receiving Medicaid HCBS.
(ii) Reflect the individual's strengths and preferences.
(iii) Reflect clinical and support needs as identified through an assessment of functional need.
(iv) Include individually identified goals and desired outcomes.
(v) Reflect the services and supports (paid and unpaid) that will assist the individual to achieve identified goals, and the providers of those services and supports, including natural supports. Natural supports are unpaid supports that are provided voluntarily to the individual in lieu of 1915(c) HCBS waiver services and supports.
(vi) Reflect risk factors and measures in place to minimize them, including individualized back-up plans and strategies when needed.
(vii) Be understandable to the individual receiving services and supports, and the individuals important in supporting him or her. At a minimum, for the written plan to be understandable, it must be written in plain language and in a manner that is accessible to individuals with disabilities and persons who are limited English proficient, consistent with § 435.905(b) of this chapter.
(viii) Identify the individual and/or entity responsible for monitoring the plan.
(ix) Be finalized and agreed to, with the informed consent of the individual in writing, and signed by all individuals and providers responsible for its implementation.
(x) Be distributed to the individual and other people involved in the plan.
(xi) Include those services, the purpose or control of which the individual elects to self-direct.
(xii) Prevent the provision of unnecessary or inappropriate services and supports.
(xiii) Document that any modification of the additional conditions, under paragraph (c)(4)(vi)(A) through (D) of this section, must be supported by a specific assessed need and justified in the person-centered service plan. The following requirements must be documented in the person-centered service plan:
(A) Identify a specific and individualized assessed need.
(B) Document the positive interventions and supports used prior to any modifications to the person-centered service plan.
(C) Document less intrusive methods of meeting the need that have been tried but did not work.
(D) Include a clear description of the condition that is directly proportionate to the specific assessed need.
(E) Include a regular collection and review of data to measure the ongoing effectiveness of the modification.
(F) Include established time limits for periodic reviews to determine if the modification is still necessary or can be terminated.
(G) Include informed consent of the individual.
(H) Include an assurance that interventions and supports will cause no harm to the individual.
(3)
(4)
(i) The setting is integrated in and supports full access of individuals receiving Medicaid HCBS to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community, to the same degree of access as individuals not receiving Medicaid HCBS.
(ii) The setting is selected by the individual from among setting options including non-disability specific settings and an option for a private unit in a residential setting. The setting options are identified and documented in the person-centered service plan and are based on the individual's needs, preferences, and, for residential settings, resources available for room and board.
(iii) Ensures an individual's rights of privacy, dignity and respect, and freedom from coercion and restraint.
(iv) Optimizes, but does not regiment, individual initiative, autonomy, and independence in making life choices, including but not limited to, daily activities, physical environment, and with whom to interact.
(v) Facilitates individual choice regarding services and supports, and who provides them.
(vi) In a provider-owned or controlled residential setting, in addition to the qualities at § 441.301(c)(4)(i) through (v), the following additional conditions must be met:
(A) The unit or dwelling is a specific physical place that can be owned, rented, or occupied under a legally enforceable agreement by the individual receiving services, and the individual has, at a minimum, the same responsibilities and protections from eviction that tenants have under the landlord/tenant law of the State, county, city, or other designated entity. For settings in which landlord tenant laws do not apply, the State must ensure that a lease, residency agreement or other form of written agreement will be in place for each HCBS participant, and that the document provides protections that address eviction processes and appeals comparable to those provided under the jurisdiction's landlord tenant law.
(B) Each individual has privacy in their sleeping or living unit:
(
(
(
(C) Individuals have the freedom and support to control their own schedules and activities, and have access to food at any time.
(D) Individuals are able to have visitors of their choosing at any time.
(E) The setting is physically accessible to the individual.
(F) Any modification of the additional conditions, under § 441.301(c)(4)(vi)(A) through (D), must be supported by a specific assessed need and justified in the person-centered service plan. The following requirements must be documented in the person-centered service plan:
(
(
(
(
(
(
(
(
(5)
(i) A nursing facility;
(ii) An institution for mental diseases;
(iii) An intermediate care facility for individuals with intellectual disabilities;
(iv) A hospital; or
(v) Any other locations that have qualities of an institutional setting, as determined by the Secretary. Any setting that is located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment, or in a building on the grounds of, or immediately adjacent to, a public institution, or any other setting that has the effect of isolating individuals receiving Medicaid HCBS from the broader community of individuals not receiving Medicaid HCBS will be presumed to be a setting that has the qualities of an institution unless the Secretary determines through heightened scrutiny, based on information presented by the State or other parties, that the setting does not have the qualities of an institution and that the setting does have the qualities of home and community-based settings.
(6)
(i) States submitting new and initial waiver requests must provide assurances of compliance with the requirements of this section for home and community-based settings as of the effective date of the waiver.
(ii) CMS will require transition plans for existing section 1915(c) waivers and approved state plans providing home and community-based services under section 1915(i) to achieve compliance with this section, as follows:
(A) For each approved section 1915(c) HCBS waiver subject to renewal or submitted for amendment within one year after the effective date of this regulation, the State must submit a transition plan at the time of the waiver renewal or amendment request that sets forth the actions the State will take to bring the specific waiver into compliance with this section. The waiver approval will be contingent on the inclusion of the transition plan approved by CMS. The transition plan must include all elements required by the Secretary; and within one hundred and twenty days of the submission of the first waiver renewal or amendment request the State must submit a transition plan detailing how the State will operate all section 1915(c) HCBS waivers and any section 1915(i) State plan benefit in accordance with this section. The transition plan must include all elements including timelines and deliverables as approved by the Secretary.
(B) For States that do not have a section 1915(c) HCBS waiver or a section 1915(i) State plan benefit due for renewal or proposed for amendments within one year of the effective date of this regulation, the State must submit a transition plan detailing how the State will operate all section 1915(c) HCBS waivers and any section 1915(i) State plan benefit in accordance with this section. This plan must be submitted no later than one year after the effective date of this regulation. The transition plan must include all elements including timelines and deliverables as approved by the Secretary.
(iii) A State must provide at least a 30-day public notice and comment period regarding the transition plan(s) that the State intends to submit to CMS for review and consideration, as follows:
(A) The State must at a minimum provide two (2) statements of public notice and public input procedures.
(B) The State must ensure the full transition plan(s) is available to the public for public comment.
(C) The State must consider and modify the transition plan, as the State deems appropriate, to account for public comment.
(iv) A State must submit to CMS, with the proposed transition plan:
(A) Evidence of the public notice required.
(B) A summary of the comments received during the public notice period, reasons why comments were not adopted, and any modifications to the transition plan based upon those comments.
(v) Upon approval by CMS, the State will begin implementation of the transition plans. The State's failure to submit an approvable transition plan as required by this section and/or to comply with the terms of the approved transition plan may result in compliance actions, including but not limited to deferral/disallowance of Federal Financial Participation.
(a) * * *
(4) Assurance that the State is able to meet the unique service needs of the individuals when the State elects to serve more than one target group under a single waiver, as specified in § 441.301(b)(6).
(i) On an annual basis the State will include in the quality section of the CMS-372 form (or any successor form designated by CMS) data that indicates the State continues to serve multiple target groups in the single waiver and that a single target group is not being prioritized to the detriment of other groups.
(5) Assurance that services are provided in home and community based settings, as specified in § 441.301(c)(4).
The additions and revisions read as follows:
(d) The agency may request that waiver modifications be made effective retroactive to the first day of a waiver year, or another date after the first day of a waiver year, in which the amendment is submitted, unless the amendment involves substantive changes as determined by CMS.
(1) Substantive changes include, but are not limited to, revisions to services available under the waiver including elimination or reduction of services, or reduction in the scope, amount, and duration of any service, a change in the qualifications of service providers, changes in rate methodology or a constriction in the eligible population.
(2) A request for an amendment that involves a substantive change as determined by CMS, may only take effect on or after the date when the amendment is approved by CMS, and must be accompanied by information on how the State has assured smooth transitions and minimal effect on individuals adversely impacted by the change.
(e) The agency must provide public notice of any significant proposed change in its methods and standards for setting payment rates for services in accordance with § 447.205 of this chapter.
(f) The agency must establish and use a public input process, for any changes in the services or operations of the waiver.
(1) This process must be described fully in the State's waiver application and be sufficient in light of the scope of the changes proposed, to ensure meaningful opportunities for input for individuals served, or eligible to be served, in the waiver.
(2) This process must be completed at a minimum of 30 days prior to implementation of the proposed change or submission of the proposed change to CMS, whichever comes first.
(3) This process must be used for both existing waivers that have substantive changes proposed, either through the renewal or the amendment process, and new waivers.
(4) This process must include consultation with Federally-recognized Tribes, and in accordance with section 5006(e) of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5), Indian health programs and Urban Indian Organizations.
(g)(1) If CMS finds that the Medicaid agency is not meeting one or more of the requirements for a waiver contained in this subpart, the agency is given a notice of CMS' findings and an opportunity for a hearing to rebut the findings.
(2) If CMS determines that the agency is substantively out of compliance with this subpart after the notice and any hearing, CMS may employ strategies to ensure compliance as described in paragraph (g)(3) of this section or terminate the waiver.
(3)(i) Strategies to ensure compliance may include the imposition of a moratorium on waiver enrollments, other corrective strategies as appropriate to ensure the health and welfare of waiver participants, or the withholding of a portion of Federal payment for waiver services until such time that compliance is achieved, or other actions as determined by the Secretary as necessary to address non-compliance with 1915(c) of the Act, or termination. When a waiver is terminated, the State must comport with § 441.307.
(ii) CMS will provide states with a written notice of the impending strategies to ensure compliance for a waiver program. The notice of CMS' intent to utilize strategies to ensure compliance would include the nature of the noncompliance, the strategy to be employed, the effective date of the compliance strategy, the criteria for removing the compliance strategy and the opportunity for a hearing.
(a) States must make available attendant services and supports in a home and community-based setting consistent with both paragraphs (a)(1) and (a)(2) of this section.
(1) Home and community-based settings must have all of the following qualities, and such other qualities as the Secretary determines to be appropriate, based on the needs of the individual as indicated in their person-centered service plan:
(i) The setting is integrated in and supports full access of individuals receiving Medicaid HCBS to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community, to the same degree of access as individuals not receiving Medicaid HCBS.
(ii) The setting is selected by the individual from among setting options, including non-disability specific settings and an option for a private unit in a residential setting. The setting options are identified and documented in the person-centered service plan and are based on the individual's needs, preferences, and, for residential settings, resources available for room and board.
(iii) Ensures an individual's rights of privacy, dignity and respect, and freedom from coercion and restraint.
(iv) Optimizes but does not regiment individual initiative, autonomy, and independence in making life choices, including but not limited to, daily activities, physical environment, and with whom to interact.
(v) Facilitates individual choice regarding services and supports, and who provides them.
(vi) In a provider-owned or controlled residential setting, in addition to the above qualities at paragraphs (a)(1)(i) through (v) of this section, the following additional conditions must be met:
(A) The unit or dwelling is a specific physical place that can be owned, rented or occupied under a legally enforceable agreement by the individual receiving services, and the individual has, at a minimum, the same responsibilities and protections from eviction that tenants have under the landlord tenant law of the State, county, city or other designated entity. For settings in which landlord tenant laws do not apply, the State must ensure that a lease, residency agreement or other form of written agreement will be in
(B) Each individual has privacy in their sleeping or living unit:
(
(
(
(C) Individuals have the freedom and support to control their own schedules and activities, and have access to food at any time.
(D) Individuals are able to have visitors of their choosing at any time.
(E) The setting is physically accessible to the individual.
(F) Any modification of the additional conditions, under paragraphs (a)(1)(vi)(A) through (D) of this section, must be supported by a specific assessed need and justified in the person-centered service plan. The following requirements must be documented in the person-centered service plan:
(
(
(
(
(
(
(
(
(2) Home and community-based settings do not include the following:
(i) A nursing facility;
(ii) An institution for mental diseases;
(iii) An intermediate care facility for individuals with intellectual disabilities;
(iv) A hospital providing long-term care services; or
(v) Any other locations that have qualities of an institutional setting, as determined by the Secretary. Any setting that is located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment, or in a building on the grounds of, or immediately adjacent to, a public institution, or any other setting that has the effect of isolating individuals receiving Medicaid HCBS from the broader community of individuals not receiving Medicaid HCBS will be presumed to be a setting that has the qualities of an institution unless the Secretary determines through heightened scrutiny, based on information presented by the State or other parties, that the setting does not have the qualities of an institution and that the setting does have the qualities of home and community-based settings.
(b) [Reserved]
Section 1915(i) of the Act permits States to offer one or more home and community-based services (HCBS) under their State Medicaid plans to qualified individuals with disabilities or individuals who are elderly. Those services are listed in § 440.182 of this chapter, and are described by the State, including any limitations of the services. This optional benefit is known as the State plan HCBS benefit. This subpart describes what a State Medicaid plan must provide when the State elects to include the optional benefit, and defines State responsibilities.
A State plan that provides section 1915(i) of the Act State plan home and community-based services must meet the requirements of this subpart.
(a) Home and Community-Based Setting. States must make State plan HCBS available in a home and community-based setting consistent with both paragraphs (a)(1) and (a)(2) of this section.
(1) Home and community-based settings must have all of the following qualities, and such other qualities as the Secretary determines to be appropriate, based on the needs of the individual as indicated in their person-centered service plan:
(i) The setting is integrated in and supports full access of individuals receiving Medicaid HCBS to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community, to the same degree of access as individuals not receiving Medicaid HCBS.
(ii) The setting is selected by the individual from among setting options, including non-disability specific settings and an option for a private unit in a residential setting. The setting options are identified and documented in the person-centered service plan and are based on the individual's needs, preferences, and, for residential settings, resources available for room and board.
(iii) Ensures an individual's rights of privacy, dignity and respect, and freedom from coercion and restraint.
(iv) Optimizes, but does not regiment, individual initiative, autonomy, and independence in making life choices, including but not limited to, daily activities, physical environment, and with whom to interact.
(v) Facilitates individual choice regarding services and supports, and who provides them.
(vi) In a provider-owned or controlled residential setting, in addition to the above qualities at paragraphs (a)(1)(i) through (v) of this section, the following additional conditions must be met:
(A) The unit or dwelling is a specific physical place that can be owned, rented, or occupied under a legally enforceable agreement by the individual receiving services, and the individual has, at a minimum, the same responsibilities and protections from eviction that tenants have under the landlord/tenant law of the state, county, city, or other designated entity. For settings in which landlord tenant laws do not apply, the State must ensure that
(B) Each individual has privacy in their sleeping or living unit:
(
(
(
(C) Individuals have the freedom and support to control their own schedules and activities, and have access to food at any time;
(D) Individuals are able to have visitors of their choosing at any time;
(E) The setting is physically accessible to the individual; and
(F) Any modification of the additional conditions, under paragraphs (a)(1)(vi)(A) through (D) of this section, must be supported by a specific assessed need and justified in the person-centered service plan. The following requirements must be documented in the person-centered service plan:
(
(
(
(
(
(
(
(
(2) Home and community-based settings do not include the following:
(i) A nursing facility.
(ii) An institution for mental diseases.
(iii) An intermediate care facility for individuals with intellectual disabilities.
(iv) A hospital.
(v) Any other locations that have qualities of an institutional setting, as determined by the Secretary. Any setting that is located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment, or in a building on the grounds of, or immediately adjacent to, a public institution, or any other setting that has the effect of isolating individuals receiving Medicaid HCBS from the broader community of individuals not receiving Medicaid HCBS will be presumed to be a setting that has the qualities of an institution unless the Secretary determines through heightened scrutiny, based on information presented by the State or other parties, that the setting does not have the qualities of an institution and that the setting does have the qualities of home and community-based settings.
(3) Compliance and transition:
(i) States submitting state plan amendments for new section 1915(i) of the Act benefits must provide assurances of compliance with the requirements of this section for home and community-based settings as of the effective date of the state plan amendment;
(ii) CMS will require transition plans for existing section 1915(c) waivers and approved state plans providing home and community-based services under section 1915(i) to achieve compliance with this section, as follows:
(A) For each approved section 1915(i) of the Act benefit subject to renewal or submitted for amendment within one year after the effective date of this regulation, the State must submit a transition plan at the time of the renewal or amendment request that sets forth the actions the State will take to bring the specific 1915(i) State plan benefit into compliance with this section. The approval will be contingent on the inclusion of the transition plan approved by CMS. The transition plan must include all elements required by the Secretary; and within one hundred and twenty days of the submission of the first renewal or amendment request the State must submit a transition plan detailing how the State will operate all section 1915(c) HCBS waivers and any section 1915(i) State plan benefit in accordance with this section. The transition plan must include all elements including timelines and deliverables as approved by the Secretary.
(B) For States that do not have a section 1915(c) waiver or a section 1915(i) State plan benefit due for renewal or proposed for amendments within one year of the effective date of this regulation, the State must submit a transition plan detailing how the State will operate all section 1915(c) waivers and any section 1915(i) State plan benefit in accordance with this section. This plan must be submitted no later than one year after the effective date of this regulation. The transition plan must include all elements including timelines and deliverables as approved by the Secretary.
(iii) A State must provide at least a 30-day public notice and comment period regarding the transition plan(s) that the State intends to submit to CMS for review and consideration, as follows:
(A) The State must at a minimum provide two (2) statements of public notice and public input procedures.
(B) The State must ensure the full transition plan(s) is available to the public for public comment.
(C) The State must consider and modify the transition plan, as the State deems appropriate, to account for public comment.
(iv) A State must submit to CMS, with the proposed transition plan:
(A) Evidence of the public notice required.
(B) A summary of the comments received during the public notice period, reasons why comments were not adopted, and any modifications to the transition plan based upon those comments.
(v) Upon approval by CMS, the State will begin implementation of the transition plans. The State's failure to submit an approvable transition plan as required by this section and/or to comply with the terms of the approved transition plan may result in compliance actions, including but not limited to deferral/disallowance of Federal Financial Participation.
(b)
(c)
(d)
(e)
(1) Section 1902(a)(10)(C)(i)(III) of the Act, pertaining to income and resource eligibility rules for the medically needy living in the community, but only for the purposes of providing State plan HCBS.
(2) Section 1902(a)(10)(B) of the Act, pertaining to comparability of Medicaid services, but only for the purposes of providing section 1915(i) State plan HCBS. In the event that a State elects not to apply comparability requirements:
(i) The State must describe the group(s) receiving State plan HCBS, subject to the Secretary's approval. Targeting criteria cannot have the impact of limiting the pool of qualified providers from which an individual would receive services, or have the impact of requiring an individual to receive services from the same entity from which they purchase their housing. These groups must be defined on the basis of any combination of the following:
(A) Age.
(B) Diagnosis.
(C) Disability.
(D) Medicaid Eligibility Group.
(ii) The State may elect in the State plan amendment to limit the availability of specific services defined under the authority of § 440.182(c) of this chapter or to vary the amount, duration, or scope of those services, to one or more of the group(s) described in this paragraph.
(a)
(b)
(1) These more stringent criteria must meet the following requirements:
(i) Be included in the LOC determination process for each institutional service and waiver.
(ii) Be submitted for inspection by CMS with the State plan amendment that establishes the State Plan HCBS benefit.
(iii) Be in effect on or before the effective date of the State plan HCBS benefit.
(2) In the event that the State modifies institutional LOC criteria to meet the requirements under paragraph (b) or (c)(6) of this section that such criteria be more stringent than the State plan HCBS needs-based eligibility criteria, States may continue to receive FFP for individuals receiving institutional services or waiver HCBS under the LOC criteria previously in effect.
(c)
(1) The State provides at least 60 days notice of the proposed modification to the Secretary, the public, and each individual enrolled in the State plan HCBS benefit.
(2) The State notice to the Secretary is submitted as an amendment to the State plan.
(3) The adjusted needs-based eligibility criteria for the State plan HCBS benefit are less stringent than needs-based institutional and waiver LOC criteria in effect after the adjustment.
(4) Individuals who were found eligible for the State plan HCBS benefit before modification of the needs-based criteria under this adjustment authority must remain eligible for the HCBS benefit until such time as:
(i) The individual no longer meets the needs-based criteria used for the initial determination of eligibility; or
(ii) The individual is no longer eligible for or enrolled in Medicaid or the HCBS benefit.
(5) Any changes in service due to the modification of needs-based criteria under this adjustment authority are treated as actions as defined in § 431.201 of this chapter and are subject to the requirements of part 431, subpart E of this chapter.
(6) In the event that the State also needs to modify institutional level of care criteria to meet the requirements under paragraph (b) of this section that such criteria be more stringent than the State plan HCBS needs-based eligibility criteria, the State may adjust the modified institutional LOC criteria under this adjustment authority. The adjusted institutional LOC criteria must be at least as stringent as those in effect before they were modified to meet the requirements in paragraph (b) of this section.
(d)
(1) Is performed by an agent that is independent and qualified as defined in § 441.730.
(2) Applies the needs-based eligibility criteria that the State has established under paragraph (a) of this section, and the general eligibility requirements under § 435.219 and § 436.219 of this chapter.
(3) Includes consultation with the individual, and if applicable, the individual's representative as defined under § 441.735.
(4) Assesses the individual's support needs.
(5) Uses only current and accurate information from existing records, and obtains any additional information necessary to draw valid conclusions about the individual's support needs.
(6) Evaluations finding that an individual is not eligible for the State plan HCBS benefit are treated as actions defined in § 431.201 of this chapter and are subject to the requirements of part 431 subpart E of this chapter.
(e)
(a)
(1) Perform a face-to-face assessment of the individual by an agent who is independent and qualified as defined in § 441.730, and with a person-centered process that meets the requirements of § 441.725(a) and is guided by best practice and research on effective strategies that result in improved health and quality of life outcomes.
(i) For the purposes of this section, a face-to-face assessment may include assessments performed by telemedicine, or other information technology medium, if the following conditions are met:
(A) The agent performing the assessment is independent and qualified as defined in § 441.730 and meets the provider qualifications defined by the State, including any additional qualifications or training requirements for the operation of required information technology.
(B) The individual receives appropriate support during the assessment, including the use of any necessary on-site support-staff.
(C) The individual provides informed consent for this type of assessment.
(ii) [Reserved]
(2) Conduct the assessment in consultation with the individual, and if applicable, the individual's authorized representative, and include the opportunity for the individual to identify other persons to be consulted, such as, but not limited to, the individual's spouse, family, guardian, and treating and consulting health and support professionals responsible for the individual's care.
(3) Examine the individual's relevant history including the findings from the independent evaluation of eligibility, medical records, an objective evaluation of functional ability, and any other records or information needed to develop the person-centered service plan as required in § 441.725.
(4) Include in the assessment the individual's physical, cognitive, and behavioral health care and support needs, strengths and preferences, available service and housing options, and if unpaid caregivers will be relied upon to implement any elements of the person-centered service plan, a caregiver assessment.
(5) For each service, apply the State's additional needs-based criteria (if any) that the individual may require. Individuals are considered enrolled in the State plan HCBS benefit only if they meet the eligibility and needs-based criteria for the benefit, and are also assessed to require and receive at least one home and community-based service offered under the State plan for medical assistance.
(6) Include in the assessment, if the State offers individuals the option to self-direct a State plan home and community-based service or services, any information needed for the self-directed portion of the service plan, as required in § 441.740(b), including the ability of the individual (with and without supports) to exercise budget or employer authority.
(7) Include in the assessment, for individuals receiving habilitation services, documentation that no Medicaid services are provided which would otherwise be available to the individual, specifically including but not limited to services available to the individual through a program funded under section 110 of the Rehabilitation Act of 1973, or the Individuals with Disabilities Education Improvement Act of 2004.
(8) Include in the assessment and subsequent service plan, for individuals receiving Secretary approved services under the authority of § 440.182 of this chapter, documentation that no State plan HCBS are provided which would otherwise be available to the individual through other Medicaid services or other Federally funded programs.
(9) Include in the assessment and subsequent service plan, for individuals receiving HCBS through a waiver approved under § 441.300, documentation that HCBS provided through the State plan and waiver are not duplicative.
(10) Coordinate the assessment and subsequent service plan with any other assessment or service plan required for services through a waiver authorized under section 1115 or section 1915 of the Social Security Act.
(b)
(a)
(1) Includes people chosen by the individual.
(2) Provides necessary information and support to ensure that the individual directs the process to the maximum extent possible, and is enabled to make informed choices and decisions.
(3) Is timely and occurs at times and locations of convenience to the individual.
(4) Reflects cultural considerations of the individual and is conducted by providing information in plain language and in a manner that is accessible to individuals with disabilities and persons who are limited English proficient, consistent with § 435.905(b) of this chapter.
(5) Includes strategies for solving conflict or disagreement within the process, including clear conflict of interest guidelines for all planning participants.
(6) Offers choices to the individual regarding the services and supports the individual receives and from whom.
(7) Includes a method for the individual to request updates to the plan, as needed.
(8) Records the alternative home and community-based settings that were considered by the individual.
(b) The person-centered service plan. The person-centered service plan must reflect the services and supports that are important for the individual to meet the needs identified through an assessment of functional need, as well as what is important to the individual with regard to preferences for the delivery of such services and supports. Commensurate with the level of need of the individual, and the scope of services and supports available under the State plan HCBS benefit, the written plan must:
(1) Reflect that the setting in which the individual resides is chosen by the individual. The State must ensure that the setting chosen by the individual is integrated in, and supports full access of individuals receiving Medicaid HCBS to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community to the same degree of access as individuals not receiving Medicaid HCBS.
(2) Reflect the individual's strengths and preferences.
(3) Reflect clinical and support needs as identified through an assessment of functional need.
(4) Include individually identified goals and desired outcomes.
(5) Reflect the services and supports (paid and unpaid) that will assist the individual to achieve identified goals, and the providers of those services and supports, including natural supports. Natural supports are unpaid supports that are provided voluntarily to the individual in lieu of State plan HCBS.
(6) Reflect risk factors and measures in place to minimize them, including individualized backup plans and strategies when needed.
(7) Be understandable to the individual receiving services and supports, and the individuals important in supporting him or her. At a minimum, for the written plan to be understandable, it must be written in plain language and in a manner that is accessible to individuals with disabilities and persons who are limited English proficient, consistent with § 435.905(b) of this chapter.
(8) Identify the individual and/or entity responsible for monitoring the plan.
(9) Be finalized and agreed to, with the informed consent of the individual in writing, and signed by all individuals and providers responsible for its implementation.
(10) Be distributed to the individual and other people involved in the plan.
(11) Include those services, the purchase or control of which the individual elects to self-direct, meeting the requirements of § 441.740.
(12) Prevent the provision of unnecessary or inappropriate services and supports.
(13) Document that any modification of the additional conditions, under § 441.710(a)(1)(vi)(A) through (D) of this chapter, must be supported by a specific assessed need and justified in the person-centered service plan. The following requirements must be documented in the person-centered service plan:
(i) Identify a specific and individualized assessed need.
(ii) Document the positive interventions and supports used prior to any modifications to the person-centered service plan.
(iii) Document less intrusive methods of meeting the need that have been tried but did not work.
(iv) Include a clear description of the condition that is directly proportionate to the specific assessed need.
(v) Include a regular collection and review of data to measure the ongoing effectiveness of the modification.
(vi) Include established time limits for periodic reviews to determine if the modification is still necessary or can be terminated.
(vii) Include informed consent of the individual; and
(viii) Include an assurance that the interventions and supports will cause no harm to the individual.
(c) Reviewing the person-centered service plan. The person-centered service plan must be reviewed, and revised upon reassessment of functional need as required in § 441.720, at least every 12 months, when the individual's circumstances or needs change significantly, and at the request of the individual.
(a)
(b)
(1) Related by blood or marriage to the individual, or to any paid caregiver of the individual.
(2) Financially responsible for the individual.
(3) Empowered to make financial or health-related decisions on behalf of the individual.
(4) Holding financial interest, as defined in § 411.354 of this chapter, in any entity that is paid to provide care for the individual.
(5) Providers of State plan HCBS for the individual, or those who have an interest in or are employed by a provider of State plan HCBS for the individual, except when the State demonstrates that the only willing and qualified agent to perform independent assessments and develop person-centered service plans in a geographic area also provides HCBS, and the State devises conflict of interest protections including separation of agent and provider functions within provider entities, which are described in the State plan for medical assistance and approved by the Secretary, and individuals are provided with a clear and accessible alternative dispute resolution process.
(c)
In this subpart, the term
(a) The individual's legal guardian or other person who is authorized under State law to represent the individual for the purpose of making decisions related to the person's care or well-being. In instances where state law confers decision-making authority to the individual representative, the individual will lead the service planning process to the extent possible.
(b) Any other person who is authorized under § 435.923 of this chapter, or under the policy of the State Medicaid Agency to represent the individual, including but not limited to, a parent, a family member, or an advocate for the individual.
(c) When the State authorizes representatives in accordance with paragraph (b) of this section, the State must have policies describing the process for authorization; the extent of decision-making authorized; and safeguards to ensure that the representative uses substituted judgment on behalf of the individual. State policies must address exceptions to using substituted judgment when the individual's wishes cannot be ascertained or when the individual's wishes would result in substantial harm to the individual. States may not refuse the authorized representative that the individual chooses, unless in the process of applying the requirements for authorization, the State discovers and can document evidence that the representative is not acting in accordance with these policies or cannot perform the required functions. States must continue to meet the requirements regarding the person-
(a)
(b)
(1) Specify the State plan HCBS that the individual will be responsible for directing.
(2) Identify the methods by which the individual will plan, direct or control services, including whether the individual will exercise authority over the employment of service providers and/or authority over expenditures from the individualized budget.
(3) Include appropriate risk management techniques that explicitly recognize the roles and sharing of responsibilities in obtaining services in a self-directed manner and assure the appropriateness of this plan based upon the resources and support needs of the individual.
(4) Describe the process for facilitating voluntary and involuntary transition from self-direction including any circumstances under which transition out of self-direction is involuntary. There must be state procedures to ensure the continuity of services during the transition from self-direction to other service delivery methods.
(5) Specify the financial management supports, as required in paragraph (e) of this section, to be provided.
(c)
(d)
(1) Describe the method for calculating the dollar values in the budget, based on reliable costs and service utilization.
(2) Define a process for making adjustments in dollar values to reflect changes in an individual's assessment and service plan.
(3) Provide a procedure to evaluate expenditures under the budget.
(4) Not result in payment for medical assistance to the individual.
(e)
(1) Information and assistance consistent with sound principles and practice of self-direction.
(2) Financial management supports to meet the following requirements:
(i) Manage Federal, State, and local employment tax, labor, worker's compensation, insurance, and other requirements that apply when the individual functions as the employer of service providers.
(ii) Make financial transactions on behalf of the individual when the individual has personal budget authority.
(iii) Maintain separate accounts for each individual's budget and provide periodic reports of expenditures against budget in a manner understandable to the individual.
(3) Voluntary training on how to select, manage, and dismiss providers of State plan HCBS.
(a)
(1)
(i)
(ii)
(A) A State must determine that provided services meet medical necessity criteria.
(B) A State may limit access to services through targeting criteria established by § 441.710(e)(2).
(C) A State may not limit access to services based upon the income of eligible individuals, the cost of services, or the individual's location in the State.
(iii)
(2)
(i)
(A) The State may provide for a period of presumptive payment, not to exceed 60 days, for Medicaid eligible individuals the State has reason to believe may be eligible for the State plan HCBS benefit. FFP is available for both services that meet the definition of medical assistance and necessary administrative expenditures for evaluation of eligibility for the State plan HCBS benefit under § 441.715(d) and assessment of need for specific HCBS under § 441.720(a), prior to an individual's receipt of State plan HCBS or determination of ineligibility for the benefit.
(B) If an individual the State has reason to believe may be eligible for the State plan HCBS benefit is evaluated and assessed under the presumptive payment option and found not to be eligible for the benefit, FFP is available for services that meet the definition of medical assistance and necessary administrative expenditures. The individual so determined will not be considered to have enrolled in the State plan HCBS benefit for purposes of determining the annual number of participants in the benefit.
(ii)
(A) In the event that a State elects to establish targeting criteria through § 441.710(e)(2), the State may limit the enrollment of individuals or the provision services to enrolled individuals based upon criteria described in a phase-in plan, subject to CMS approval. A State which elects to target the State plan HCBS benefit and to phase-in enrollment and/or services must submit a phase-in plan for approval by CMS that describes, at a minimum:
(
(
(
(B) If a State elects to phase-in the enrollment of individuals based on highest need, the phase-in plan must use the needs-based criteria described in § 441.715(a) to establish priority for enrollment. Such criteria must be based upon the assessed need of individuals, with higher-need individuals receiving services prior to individuals with lower assessed need.
(C) If a State elects to phase-in the provision of any services, the phase-in plan must include a description of the services that will not be available to all eligible individuals, the rationale for limiting the provision of services, and assurance that all individuals with access to a willing and qualified provider may receive services.
(D) The plan may not include a cap on the number of enrollees.
(E) The plan must include a timeline to assure that all eligible individuals receive all included services prior to the end of the first 5-year approval period, described in paragraph (a)(2)(vi) of this section.
(iii)
(iv)
(v)
(A) Revisions to services available under the benefit including elimination or reduction in services, and changes in the scope, amount and duration of the services.
(B) Changes in the qualifications of service providers, rate methodology, or the eligible population.
(
(
(
(
(vi)
(A) If a State elects to establish targeting criteria through § 441.710(e)(2)(i), the approval of the State Plan Amendment will be in effect for a period of 5 years from the effective date of the amendment. To renew State plan HCBS for an additional 5-year period, the State must provide a written request for renewal to CMS at least 180 days prior to the end of the approval period. CMS approval of a renewal request is contingent upon State adherence to Federal requirements and the state meeting its objectives with respect to quality improvement and beneficiary outcomes.
(B) If a State does not elect to establish targeting criteria through § 441.710(e)(2)(i), the limitations on length of approval does not apply.
(b)
(1)
(i) Incorporate a continuous quality improvement process that includes monitoring, remediation, and quality improvement.
(ii) Be evidence-based, and include outcome measures for program performance, quality of care, and individual experience as determined by the Secretary.
(iii) Provide evidence of the establishment of sufficient infrastructure to implement the program effectively.
(iv) Measure individual outcomes associated with the receipt of HCBS, related to the implementation of goals included in the individual service plan.
(2) [Reserved]
Sec. 1102 of the Social Security Act (42 U.S.C. 1302).
(g) * * *
(4) In the case of a class of practitioners for which the Medicaid program is the primary source of service revenue, payment may be made to a third party on behalf of the individual practitioner for benefits such as health insurance, skills training and other benefits customary for employees.
(Catalog of Federal Domestic Assistance Program No. 93.778, Medical Assistance Program)
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking and notice of public hearing.
The proposed regulations provide guidance on certain provisions of the American Jobs Creation Act of 2004 and conform the regulations to statutory changes in the Taxpayer Relief Act of 1997. The proposed regulations also modify the basis allocation rules to prevent certain unintended consequences of the current basis allocation rules for substituted basis transactions. Finally, the proposed regulations provide additional guidance on allocations resulting from revaluations of partnership property. The proposed regulations affect partnerships and their partners. This document also contains a notice of a public hearing on these proposed regulations.
Comments must be received by April 16, 2014. Requests to speak and outlines of the topics to be discussed at the public hearing scheduled for April 30, 2014, at 10 a.m., must be received by April 16, 2014.
Send submissions to: CC:PA:LPD:PR (REG-144468-05), room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG-144468-05), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC. Alternatively, taxpayers may submit comments electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Wendy Kribell or Benjamin Weaver at (202) 317-6850; concerning submissions of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Oluwafunmilayo (Funmi) Taylor, (202) 317-6901 (not toll-free numbers).
The collection of information contained in this notice of proposed rulemaking has been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Comments on the collection of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224. Comments on the collection of information should be received by March 17, 2014. Comments are specifically requested concerning:
Whether the proposed collection of information is necessary for the proper performance of the functions of the IRS, including whether the information will have practical utility;
The accuracy of the estimated burden associated with the proposed collection of information; and
Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
The collections of information in the proposed regulations are in proposed §§ 1.704-3(f), 1.734-1(d), 1.743-1(k), and 1.743-1(n). This information will be used by the IRS to assure compliance with certain provisions of the American Jobs Creation Act of 2004. The collections of information are either required to obtain a benefit or are mandatory. The likely respondents are individuals and partnerships.
The burden for the collection of information in § 1.704-3(f) is as follows:
Estimated total annual reporting burden: 324,850 hours.
Estimated average annual burden per respondent: 2 hours.
Estimated number of respondents: 162,425.
Estimated annual frequency of responses: On occasion.
The burden for the collection of information in § 1.734-1(d) is as follows:
Estimated total annual reporting burden: 1,650 hours.
Estimated average annual burden per respondent: 3 hours.
Estimated number of respondents: 550.
Estimated annual frequency of responses: On occasion.
The burden for the collection of information in § 1.743-1(k)(1) is as follows:
Estimated total annual reporting burden: 1,650 hours.
Estimated average annual burden per respondent: 3 hours.
Estimated number of respondents: 550.
Estimated annual frequency of responses: On occasion.
The burden for the collection of information in § 1.743-1(k)(2) is as follows:
Estimated total annual reporting burden: 550 hours.
Estimated average annual burden per respondent: 1 hour.
Estimated number of respondents: 550.
Estimated annual frequency of responses: On occasion.
The burden for the collection of information in § 1.743-1(n)(10) is as follows:
Estimated total annual reporting burden: 3,600.
Estimated average annual burden per respondent: 1 hour.
Estimated number of respondents: 3,600.
Estimated annual frequency of responses: Various.
The burden for the collection of information in § 1.743-1(n)(11) is as follows:
Estimated total annual reporting burden: 2,700.
Estimated average annual burden per respondent: 1.5 hours.
Estimated number of respondents: 1,800.
Estimated annual frequency of responses: On occasion
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.
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 section 6103.
Under section 721(a) of the Internal Revenue Code (the Code), if a partner contributes property in exchange for a partnership interest, neither the partners
Section 833(a) of the American Jobs Creation Act of 2004, Public Law 108-357, 118 Stat. 1418 (the AJCA) added section 704(c)(1)(C) to the Code for contributions of built-in loss property to partnerships after October 22, 2004. In general, section 704(c)(1)(C) provides that a partner's built-in loss may only be taken into account in determining the contributing partner's share of partnership items. Prior to the AJCA, a contributing partner could transfer losses to a transferee partner or other partners when the contributing partner was no longer a partner in the partnership.
The mandatory basis adjustment provisions in section 833(b) and (c) of the AJCA reflect Congress' belief that the “electivity of partnership basis adjustments upon transfers and distributions leads to anomalous tax results, causes inaccurate income measurement, and gives rise to opportunities for tax sheltering.”
Before the enactment of the AJCA, under section 743(a), upon the transfer of a partnership interest by sale or exchange or upon the death of a partner, a partnership was not required to adjust the basis of partnership property unless the partnership had a section 754 election in effect. If the partnership had a section 754 election in effect at the time of a transfer, section 743(b) required the partnership to increase or decrease the adjusted basis of the partnership property to take into account the difference between the transferee's proportionate share of the adjusted basis of the partnership property and the transferee's basis in its partnership interest.
As amended by the AJCA, section 743(a) and (b) require a partnership to adjust the basis of partnership property upon a sale or exchange of an interest in the partnership or upon the death of a partner if there is a section 754 election in effect, or, for transfers after October 22, 2004, if the partnership has a substantial built-in loss immediately after the transfer (regardless of whether the partnership has a section 754 election in effect). Section 743(d)(1) provides that, for purposes of section 743, a partnership has a substantial built-in loss if the partnership's adjusted basis in the partnership property exceeds the fair market value of the property by more than $250,000. Section 743(d)(2) provides that the Secretary shall prescribe such regulations as may be appropriate to carry out the purposes of section 743(d)(1), including regulations aggregating related partnerships and disregarding property acquired by the partnership in an attempt to avoid such purposes.
Section 833(b) of the AJCA also added section 743(e) to the Code, which provides alternative rules for electing investment partnerships (EIPs). According to the legislative history, Congress was aware that mandating section 743(b) adjustments would impose administrative difficulties on certain types of investment partnerships that are engaged in investment activities and that typically did not make section 754 elections prior to the AJCA, even when the adjustments to the bases of partnership property would be upward adjustments.
Section 743(e)(6) defines an
According to the legislative history, Congress expected EIPs to include venture capital funds, buyout funds, and funds of funds.
Section 743(e)(4) also provides that section 743(e) shall be applied without regard to any termination of a partnership under section 708(b)(1)(B). Finally, section 743(e)(7) provides that the Secretary shall prescribe such regulations as may be appropriate to carry out the purposes of section 743(e), including regulations for applying section 743(e) to tiered partnerships.
Section 833(b) of the AJCA prescribed certain reporting requirements for EIPs by adding section 6031(f) to the Code. Section 6031(f) provides that in the case of an EIP, the information required under section 6031(b) (relating to furnishing copies of returns of partnership income to partners) to be furnished to a partner to whom section 743(e)(2) applies shall include information as is necessary to enable the partner to compute the amount of losses disallowed under section 743(e).
On April 1, 2005, the Treasury Department and the IRS issued Notice 2005-32 (2005-1 CB 895), which provides, in part, interim procedures and reporting requirements for EIPs; interim procedures for transferors of EIP interests; and guidance regarding whether a partnership is engaged in a trade or business for purposes of section 743(e)(6)(C). Public comments on Notice 2005-32 are discussed in Parts 2.a.i and 2.a.ii of the Explanation of Provisions section of this preamble.
Finally, section 833 of the AJCA added section 743(f) to the Code, which provides an exception from the mandatory basis adjustment provisions in section 743(a) and (b) for securitization partnerships. Section 743(f)(1) states that for purposes of section 743, a securitization partnership shall not be treated as having a substantial built-in loss with respect to any transfer. Section 743(f)(2) provides that the term
Section 734(b) requires a partnership to increase or decrease the adjusted basis of partnership property to take into account any gain or loss recognized to the distributee and the difference between the partnership's and the distributee's bases in distributed property. Similar to section 743, prior to the AJCA, section 734(a) did not require a partnership to adjust the basis of partnership property upon a distribution of partnership property to a partner unless the partnership had a section 754 election in effect.
Consistent with the amendments to section 743, section 833(c) of the AJCA amended section 734(a) and (b) to require a partnership to adjust the basis of partnership property upon a distribution of partnership property to a partner if there is a section 754 election in effect or, for distributions occurring after October 22, 2004, if there is a substantial basis reduction with respect to the distribution. Section 734(d)(1) provides that for purposes of section 734, there is a substantial basis reduction with respect to a distribution if the sum of the amounts described in section 734(b)(2)(A) and 734(b)(2)(B) exceeds $250,000. The amount described in section 734(b)(2)(A) is the amount of loss recognized to the distributee partner with respect to the distribution under section 731(a)(2). The amount described in section
As with section 743(b) adjustments, section 734(e) provides an exception to the mandatory basis adjustment provisions in section 734 for securitization partnerships. A securitization partnership (which is defined by reference to section 743(f)) is not treated as having a substantial basis reduction with respect to any distribution of property to a partner.
The Treasury Department and the IRS issued general interim procedures for mandatory basis adjustments under sections 734 and 743. These interim procedures, which are described in Notice 2005-32, state that until further guidance is provided, partnerships required to reduce the bases of partnership properties under the substantial basis reduction provisions in section 734 must comply with § 1.734-1(d) as if an election under section 754 were in effect at the time of the relevant distribution. Similarly, partnerships that are required to reduce the bases of partnership properties under the substantial built-in loss provisions in section 743 must comply with § 1.743-1(k)(1), (3), (4), and (5) as if an election under section 754 were in effect at the time of the relevant transfer. Furthermore, a transferee of an interest in a partnership that is required to reduce the bases of partnership properties under the substantial built-in loss provisions must comply with § 1.743-1(k)(2) as if an election under section 754 were in effect at the time of the relevant transfer.
If section 734(a) requires a basis adjustment (either because the partnership has a section 754 election in effect or because there is a substantial basis reduction with respect to the distribution), section 734(b) provides that the partnership increases or decreases the basis of partnership property by any gain or loss recognized by the distributee and the difference (if any) between the partnership's and the distributee's adjusted bases in the distributed property. Section 755(a) generally provides that any increase or decrease in the adjusted basis of partnership property under section 734(b) shall be allocated in a manner that: (1) reduces the difference between the fair market value and the adjusted basis of partnership properties, or (2) in any other manner permitted by regulations. Generally, section 755(b) requires a partnership to allocate increases or decreases in the adjusted basis of partnership property arising from the distribution of property to property of a like character to the property distributed (either to (1) capital assets and property described in section 1231(b), or (2) any other property).
According to the Joint Committee on Taxation's (the JCT's) investigative report of Enron Corporation (
In response to these recommendations, section 834(a) of the AJCA enacted section 755(c), which provides that in making an allocation under section 755(a) of any decrease in the adjusted basis of partnership property under section 734(b)—(1) no allocation may be made to stock in a corporation (or any person related (within the meaning of sections 267(b) and 707(b)(1)) to such corporation) that is a partner in the partnership, and (2) any amount not allocable to stock by reason of section 755(c)(1) shall be allocated under section 755(a) to other partnership property. The flush language of section 755(c) further provides that a partnership recognizes gain to the extent that the amount required to be allocated under section 755(c)(2) to other partnership property exceeds the aggregate adjusted basis of such other property immediately before the required allocation.
A basis adjustment under section 743(a) is determined in accordance with section 743(b). The partnership must allocate any increase or decrease in the adjusted basis of partnership property required under section 743(b) under the rules of section 755. Section 1.755-1(b)(5) provides additional guidance on how to allocate basis adjustments under section 743(b) that result from substituted basis transactions, which are defined as exchanges in which the transferee's basis in the partnership interest is determined in whole or in part by reference to the transferor's basis in that interest. For exchanges on or after June 9, 2003, § 1.755-1(b)(5) also applies to basis adjustments that result from exchanges in which the transferee's basis in the partnership interest is determined by reference to other property held at any time by the transferee.
Generally, § 1.755-1(b)(5)(ii) provides that if there is an increase in basis to be allocated to partnership assets, the increase must be allocated to capital
Section 1.755-1(b)(5)(iii) provides rules for allocating increases or decreases in basis within the classes of property. Of note, in the case of a decrease, § 1.755-1(b)(5)(iii)(B) states that the decrease must be allocated first to properties with unrealized depreciation in proportion to the transferee's shares of the respective amounts of unrealized depreciation before the decrease (but only to the extent of the transferee's share of each property's unrealized depreciation). Any remaining decrease must be allocated among the properties within the class in proportion to the transferee's shares of their adjusted bases (as adjusted under the preceding sentence) (subject to a limitation in decrease of basis in § 1.755-1(b)(5)(iii)(C) and a carryover rule in § 1.755-1(b)(5)(iii)(D)).
In addition, § 1.743-1(f) provides that, when there has been more than one transfer of a partnership interest, a partnership determines a transferee's basis adjustment without regard to any prior transferee's basis adjustment. Accordingly, if a partner acquires its partnership interest in a transaction other than a substituted basis transaction and then subsequently transfers its interest in a substituted basis transaction, the transferee's basis adjustment may shift among partnership assets.
Property contributed to a partnership by a partner is section 704(c) property if, at the time of contribution, the property has a built-in gain or built-in loss (“forward section 704(c) gain or loss”). Section 704(c)(1)(A) requires a partnership to allocate income, gain, loss, and deduction so as to take into account the built-in gain or built-in loss. For this purpose, § 1.704-3(a)(3)(ii) provides that a built-in gain or built-in loss is generally the difference between the property's book value and the contributing partner's adjusted tax basis upon contribution (reduced by decreases in the difference between the property's book value and adjusted tax basis). Section 1.704-3(a)(6)(i) provides that the principles of section 704(c) also apply to allocations with respect to property for which differences between book value and adjusted tax basis are created when a partnership revalues property pursuant to § 1.704-1(b)(2)(iv)(
On August 12, 2009, the Treasury Department and the IRS published Notice 2009-70, 2009-2 CB 255, which requested comments on the proper application of the rules relating to the creation and maintenance of forward and multiple reverse section 704(c) allocations (referred to as “section 704(c) layers” in this preamble). Specifically, Notice 2009-70 requested comments on, among other things, whether taxpayers should net reverse section 704(c) allocations against existing section 704(c) layers or maintain separate section 704(c) layers if the section 704(c) layers offset one another; how partnerships should allocate tax depreciation, depletion, amortization, and gain or loss between multiple section 704(c) layers (including any offsetting section 704(c) layers); and whether there are other issues relating to section 704(c) layers. Public comments on Notice 2009-70 are discussed in Part 4.a of the Explanation of Provisions section of this preamble.
The Taxpayer Relief Act of 1997 (Pub. Law 105-34, 111 Stat. 788) extended the time period in sections 704(c)(1)(B) and 737(b)(1) for taxing precontribution gain for property contributed to a partnership after June 8, 1997, from five years to seven years (the rule does not, however, apply to any property contributed pursuant to a written binding contract in effect on June 8, 1997, and at all times thereafter before such contribution if such contract provides for the contribution of a fixed amount of property). The regulations under sections 704, 737, and 1502 have not been revised to reflect this statutory change.
Section 704(c)(1)(C)(i) provides that if property contributed to a partnership has a built-in loss (“section 704(c)(1)(C) property”), such built-in loss shall be taken into account only in determining the amount of items allocated to the contributing partner (“section 704(c)(1)(C) partner”). Section 704(c)(1)(C)(ii) further provides that, except as provided by regulations, in determining the amount of items allocated to other partners, the basis of the contributed property in the hands of the partnership is equal to its fair market value at the time of the contribution. For purposes of section 704(c)(1)(C), the term
The Treasury Department and the IRS believe additional guidance is needed with respect to the application of section 704(c)(1)(C). Accordingly, the proposed regulations provide rules regarding: (1) the scope of section 704(c)(1)(C); (2) the effect of the built-in loss; (3) distributions by partnerships holding section 704(c)(1)(C) property; (4) transfers of a section 704(c)(1)(C) partner's partnership interest; (5) transfers of section 704(c)(1)(C) property; and (6) reporting requirements.
The proposed regulations define section 704(c)(1)(C) property as section
The Treasury Department and the IRS considered whether the principles of section 704(c)(1)(C) should apply to reverse section 704(c) allocations (within the meaning of § 1.704-3(a)(6)(i)). The Treasury Department and the IRS concluded that applying the proposed regulations to reverse section 704(c) allocations would be difficult for taxpayers to comply with and for the IRS to administer. Therefore, the proposed regulations do not apply to reverse section 704(c) allocations.
The Treasury Department and the IRS also considered whether section 704(c)(1)(C) should apply to § 1.752-7 liabilities. Under § 1.752-7(b)(3)(i), a § 1.752-7 liability is an obligation described in § 1.752-1(a)(4)(ii) (generally any fixed or contingent obligation to make payment without regard to whether the obligation is otherwise taken into account for purposes of Code) to the extent that the obligation either is not described in § 1.752-1(a)(4)(i) or the amount of the obligation exceeds the amount taken into account under § 1.752-1(a)(4)(i). The preamble to the final regulations under § 1.752-7, published on May 26, 2005, acknowledges that the rules in section 704(c)(1)(C) and the rules under § 1.752-7 are similar.
The legislative history indicates that Congress intended the built-in loss attributable to section 704(c)(1)(C) property to be for the benefit of the contributing partner only. Conceptually, the built-in loss is similar to a section 743(b) adjustment, which is an adjustment to the basis of partnership property solely with respect to the transferee partner. The current regulations under section 743 provide detailed rules regarding accounting for, maintenance of, recovery of, and transfers of assets with, section 743(b) adjustments. The Treasury Department and the IRS believe it is appropriate that the proposed regulations provide rules similar to those applicable to positive basis adjustments under section 743(b). The Treasury Department and the IRS believe that this approach simplifies the application and administration of section 704(c)(1)(C) and provides a framework of rules familiar to partners, partnerships, and the IRS. Even though the proposed regulations generally adopt the approach taken with respect to section 743(b) adjustments, the Treasury Department and the IRS believe that some of the rules governing section 743(b) adjustments should not apply with respect to a built-in loss and that additional rules are necessary for section 704(c)(1)(C). Thus, the proposed regulations import and specifically apply certain concepts contained in the section 743 regulations to section 704(c)(1)(C), as opposed to simply providing that principles similar to those contained in the regulations under section 743 apply to section 704(c)(1)(C) by cross-reference. The following discussion describes both the substantive rules applied under section 704(c)(1)(C) and, where applicable, how those rules differ from their counterparts under section 743(b).
The proposed regulations create the concept of a section 704(c)(1)(C) basis adjustment. The section 704(c)(1)(C) basis adjustment is initially equal to the built-in loss associated with the section 704(c)(1)(C) property at the contribution and then is adjusted in accordance with the proposed regulations. For example, if A contributes, in a section 721 transaction, property with a fair market value of $6,000 and an adjusted basis of $11,000 to a partnership, the partnership's basis in the property is $6,000, A's basis in its partnership interest is $11,000, and A has a section 704(c)(1)(C) basis adjustment of $5,000. Similar to basis adjustments under section 743(b), a section 704(c)(1)(C) basis adjustment is unique to the section 704(c)(1)(C) partner and does not affect the basis of partnership property or the partnership's computation of any item under section 703. The rules regarding the effect of the section 704(c)(1)(C) basis adjustment are similar to the rules for section 743(b) adjustments in §§ 1.743-1(j)(1) through (j)(3), including: (1) the effect of the section 704(c)(1)(C) basis adjustment on the basis of partnership property; (2) the computation and allocation of the partnership's items of income, deduction, gain, or loss; (3) adjustments to the partners' capital accounts; (4) adjustments to the section 704(c)(1)(C) partner's distributive share; and (5) the determination of a section 704(c)(1)(C) partner's income, gain, or loss from the sale or exchange of section 704(c)(1)(C) property. The Treasury Department and the IRS believe the rule regarding recovery of the section 704(c)(1)(C) basis adjustment should be consistent with the rule regarding recovery of the adjusted tax basis in the property that is not subject to section 704(c)(1)(C). Thus, for property eligible for cost recovery, the proposed regulations provide that, regarding the effect of the basis adjustment in determining items of deduction, if section 704(c)(1)(C) property is subject to amortization under section 197, depreciation under section 168, or other cost recovery in the hands of the section 704(c)(1)(C) partner, the section 704(c)(1)(C) basis adjustment associated with the property is recovered in accordance with section 197(f)(2), section 168(i)(7), or other applicable Code sections. Similar to section 743, the proposed regulations further provide that the amount of any section 704(c)(1)(C) basis adjustment that is recovered by the section 704(c)(1)(C) partner in any year is added to the section 704(c)(1)(C) partner's distributive share of the partnership's depreciation or amortization deductions for the year. The section 704(c)(1)(C) basis adjustment is adjusted under section 1016(a)(2) to reflect the recovery of the section 704(c)(1)(C) basis adjustment.
The proposed regulations provide guidance on current distributions of section 704(c)(1)(C) property to the section 704(c)(1)(C) partner; distributions of section 704(c)(1)(C) property to another partner; and liquidating distributions to a section 704(c)(1)(C) partner. The Treasury Department and the IRS believe it is appropriate to apply principles similar to section 743 to simplify the administration of section 704(c)(1)(C)
Under the proposed regulations, the adjusted partnership basis of section 704(c)(1)(C) property distributed to the section 704(c)(1)(C) partner includes the section 704(c)(1)(C) basis adjustment for purposes of determining the amount of any adjustment under section 734. However, the proposed regulations provide that section 704(c)(1)(C) basis adjustments are not taken into account in making allocations under § 1.755-1(c).
Under the proposed regulations, if a partner receives a distribution of property in which another partner has a section 704(c)(1)(C) basis adjustment, the distributee partner does not take the section 704(c)(1)(C) basis adjustment into account under section 732. However, the Treasury Department and the IRS request comments on whether a section 704(c)(1)(C) adjustment to distributed stock should be taken into account for purposes of section 732(f) notwithstanding the general rule that section 704(c)(1)(C) adjustments are not taken into account under section 732.
Upon the distribution of section 704(c)(1)(C) property to another partner, the section 704(c)(1)(C) partner reallocates its section 704(c)(1)(C) basis adjustment relating to the distributed property among the remaining items of partnership property under § 1.755-1(c), which is similar to the rule in § 1.743-1(g)(2)(ii) for reallocating section 743(b) adjustments. This rule allocates the basis adjustment to partnership property without regard to the section 704(c)(1)(C) partner's allocable share of income, gain, or loss in each partnership asset. The Treasury Department and the IRS request comments on whether the reallocations of section 704(c)(1)(C) basis adjustments and section 743(b) basis adjustments should instead be made under the principles of § 1.755-1(b)(5)(iii) to take into account the partner's allocable share of income, gain, or loss from each partnership asset.
The proposed regulations further provide that if section 704(c)(1)(B) applies to treat the section 704(c)(1)(C) partner as recognizing loss on the sale of the distributed property, the section 704(c)(1)(C) basis adjustment is taken into account in determining the amount of loss. Accordingly, when the section 704(c)(1)(C) property is distributed to a partner other than the contributing partner within seven years of its contribution to the partnership, the loss will be taken into account by the contributing partner. The Treasury Department and the IRS considered extending the seven-year period so that the loss will be taken into account by the contributing partner on any distribution of section 704(c)(1)(C) property to a partner other than the contributing partner. The Treasury Department and the IRS do not adopt this approach in the proposed regulations because it would be inconsistent with section 704(c)(1)(B) generally and would be more difficult to administer.
The proposed regulations provide that if a section 704(c)(1)(C) partner receives a distribution of property (whether or not the property is section 704(c)(1)(C) property) in liquidation of its interest in the partnership, the adjusted basis to the partnership of the distributed property immediately before the distribution includes the section 704(c)(1)(C) partner's section 704(c)(1)(C) basis adjustment for the property in which the section 704(c)(1)(C) partner relinquished an interest (if any) by reason of the liquidation. For purposes of determining the redeemed section 704(c)(1)(C) partner's basis in distributed property under section 732, the partnership reallocates any section 704(c)(1)(C) basis adjustment from section 704(c)(1)(C) property retained by the partnership to distributed properties of like character under the principles of § 1.755-1(c)(i), after applying sections 704(c)(1)(B) and 737. If section 704(c)(1)(C) property is retained by the partnership, and no property of like character is distributed, then that property's section 704(c)(1)(C) basis adjustment is not reallocated to the distributed property for purposes of applying section 732.
If any section 704(c)(1)(C) basis adjustment is not reallocated to the distributed property in connection with the distribution, then that remaining section 704(c)(1)(C) basis adjustment shall be treated as a positive section 734(b) adjustment. If the distribution also gives rise to a negative section 734(b) adjustment, then the negative section 734(b) adjustment and the section 704(c)(1)(C) basis adjustment reallocation are netted together, and the net amount is allocated under § 1.755-1(c). If the partnership does not have a section 754 election in effect at the time of the liquidating distribution, the partnership shall be treated as having made a section 754 election solely for purposes of computing any negative section 734(b) adjustment that would arise from the distribution.
Under section 722, a section 704(c)(1)(C) partner's basis in its partnership interest fully reflects the built-in loss portion of the basis of the contributed property and the built-in loss generally is taken into account by the section 704(c)(1)(C) partner upon disposition of the partnership interest. Therefore, in accordance with section 704(c)(1)(C)'s overall policy objective of preventing the inappropriate transfer of built-in losses through partnerships, the proposed regulations provide that the transferee of a section 704(c)(1)(C) partner's partnership interest generally does not succeed to the section 704(c)(1)(C) partner's section 704(c)(1)(C) basis adjustment. Instead, the share of the section 704(c)(1)(C) basis adjustment attributable to the interest transferred is eliminated. For example, if a section 704(c)(1)(C) partner sells 20 percent of its interest in a partnership, the partner recognizes its outside loss with respect to that 20 percent but 20 percent of the partner's section 704(c)(1)(C) basis adjustment for each section 704(c)(1)(C) property contributed by the partner is eliminated. The transferor remains a section 704(c)(1)(C) partner with respect to any remaining section 704(c)(1)(C) basis adjustments. The proposed regulations provide exceptions to this general rule for nonrecognition transactions, which are discussed in Part 1.e.ii of the Explanation of Provisions section of this preamble.
Under the proposed regulations, the general rule that a section 704(c)(1)(C) basis adjustment is not transferred with the related partnership interest does not apply to the extent a section 704(c)(1)(C) partner transfers its partnership interest in a nonrecognition transaction, with certain exceptions. The legislative history notes that Congress intended to treat a corporation succeeding to the attributes of a contributing corporate partner under section 381 in the same manner as the contributing partner.
The Treasury Department and the IRS believe that a section 743(b) adjustment generally will prevent inappropriate duplication of loss when a partnership has a section 754 election in effect or a substantial built-in loss with respect to the transfer. (
The proposed regulations also provide that the general rule regarding nonrecognition transactions does not apply to the transfer of all or a portion of a section 704(c)(1)(C) partner's partnership interest by gift because the gift recipient does not fit within Congress's notion of a successor as described in the legislative history.
The proposed regulations also provide guidance on the treatment of the section 704(c)(1)(C) partner and the section 704(c)(1)(C) basis adjustment when the partnership transfers section 704(c)(1)(C) property. Consistent with the rules under section 743, a section 704(c)(1)(C) partner's section 704(c)(1)(C) basis adjustment is generally taken into account in determining the section 704(c)(1)(C) partner's income, gain, loss, or deduction from the sale or exchange of section 704(c)(1)(C) property.
With certain exceptions, if section 704(c)(1)(C) property is transferred in a nonrecognition transaction, the proposed regulations provide that the section 704(c)(1)(C) partner retains the section 704(c)(1)(C) basis adjustment in the replacement property (in the case of a section 1031 transaction), in stock (in the case of a section 351 transaction), in a lower-tier partnership interest (in the case of a section 721 transaction), or in the same property held by a new partnership (in the case of a section 708(b)(1)(B) technical termination). The proposed regulations also provide additional rules for section 721 and section 351 transactions, which are described in the following sections.
The proposed regulations provide rules for when, after a section 704(c)(1)(C) partner contributes section 704(c)(1)(C) property to an upper-tier partnership, the upper-tier partnership contributes the property to a lower-tier partnership in a transaction described in section 721(a). The proposed regulations ensure that the section 704(c)(1)(C) adjustment amount is ultimately tracked back to the initial contributing partner, similar to the rules for section 721 contributions of property in which a partner has a section 743(b) adjustment.
In particular, the proposed regulations provide that the interest in the lower-tier partnership received by the upper-tier partnership is treated as the section 704(c)(1)(C) property with the same section 704(c)(1)(C) basis adjustment as the contributed property. The lower-tier partnership determines its basis in the contributed property by excluding the existing section 704(c)(1)(C) basis adjustment. However, the lower-tier partnership also succeeds to the upper-tier partnership's section 704(c)(1)(C) basis adjustment. The portion of the upper-tier partnership's basis in its interest in the lower-tier partnership attributable to the section 704(c)(1)(C) basis adjustment must be segregated and allocated solely to the section 704(c)(1)(C) partner for whom the initial section 704(c)(1)(C) basis adjustment was made. Similarly, the section 704(c)(1)(C) basis adjustment to which the lower-tier partnership succeeds must be segregated and allocated solely to the upper-tier partnership, and the section 704(c)(1)(C) partner for whom the initial section 704(c)(1)(C) basis adjustment was made. If gain or loss is recognized on the transaction, appropriate adjustments must be made to the section 704(c)(1)(C) basis adjustment.
The proposed regulations provide that to the extent that any section 704(c)(1)(C) basis adjustment in a tiered partnership is recovered (for example, by sale or depreciation of the property), or is otherwise reduced, upper or lower partnerships in the tiered structure must make conforming reductions to related section 704(c)(1)(C) basis adjustments to prevent duplication of loss.
The proposed regulations recognize that the contribution from the upper-tier partnership to the lower-tier partnership will give rise to an additional section 704(c)(1)(C) basis adjustment if the value of the property has fallen below its common basis to the upper-tier partnership; this additional section 704(c)(1)(C) adjustment will be allocated among the partners of the upper-tier partnership in a manner that reflects their relative shares of that loss.
The transfer of the section 704(c)(1)(C) property by a partnership to a corporation in a section 351 transaction severs the contributing partner's connection with the section 704(c)(1)(C) property at the partnership level. The section 704(c)(1)(C) partner, now an indirect shareholder of the corporation, no longer has a section 704(c)(1)(C) basis adjustment with respect to the property. The proposed regulations provide that if, in an exchange described in section 351, a partnership transfers section 704(c)(1)(C) property to a corporation, the stock the partnership receives in the exchange is treated, solely with respect to the section 704(c)(1)(C) partner, as section 704(c)(1)(C) property that generally has the same section 704(c)(1)(C) basis adjustment as the section 704(c)(1)(C) property transferred to the corporation (reduced by any portion of the section 704(c)(1)(C) basis adjustment that reduced the partner's share of any gain on the transaction). The transferee corporation's adjusted basis in the transferred property is determined under section 362 (including by applying section 362(e)), taking into account any section 704(c)(1)(C) basis adjustments in the transferred property. However, the proposed regulations provide that, if a partnership recognizes gain on the transfer, the partnership's gain is determined without regard to any section 704(c)(1)(C) basis adjustment, but the section 704(c)(1)(C) partner's gain does take into account the section 704(c)(1)(C) basis adjustment.
The proposed regulations provide that a partner with a section 704(c)(1)(C) basis adjustment in section 704(c)(1)(C) property held by a partnership that terminates under section 708(b)(1)(B) will continue to have the same section 704(c)(1)(C) basis adjustment with respect to section 704(c)(1)(C) property deemed contributed by the terminated partnership to the new partnership under § 1.708-1(b)(4). In addition, the deemed contribution of property by a terminated partnership to a new partnership is not subject to the proposed regulations and does not create a section 704(c)(1)(C) basis adjustment.
The proposed regulations also provide additional rules for like-kind exchanges of section 704(c)(1)(C) property, dispositions of section 704(c)(1)(C) property in installment sales, and contributed contracts.
The proposed regulations prescribe certain reporting requirements for section 704(c)(1)(C) basis adjustments that are similar to the requirements for section 743(b) adjustments. Specifically, the proposed regulations provide that a partnership that owns property for which there is a section 704(c)(1)(C) basis adjustment must attach a statement to the partnership return for the year of the contribution of the section 704(c)(1)(C) property setting forth the name and taxpayer identification number of the section 704(c)(1)(C) partner as well as the section 704(c)(1)(C) basis adjustment and the section 704(c)(1)(C) property to which the adjustment relates.
The proposed regulations generally restate the statutory language in section 743(a) and (b) regarding substantial built-in losses, but provide additional guidance in several areas. The proposed regulations clarify that, if a partnership has a substantial built-in loss immediately after the transfer of a partnership interest, the partnership is treated as having a section 754 election in effect for the taxable year in which the transfer occurs, but only with respect to that transfer (unless another transaction is also subject to the mandatory basis adjustment provisions of sections 734 or 743).
The proposed regulations also provide that in determining whether there is a substantial built-in loss, section 743(b) adjustments and section 704(c)(1)(C) basis adjustments (except the transferee's section 743(b) adjustments and section 704(c)(1)(C) basis adjustments, if any) are disregarded.
The proposed regulations also provide special rules for determining fair market value in the case of a tiered partnership. The Treasury Department and the IRS are aware that there is some uncertainty as to how to determine the fair market value of a lower-tier partnership interest for purposes of determining whether the partnership has a substantial built-in loss in its assets when the upper-tier partnership is allocated a share of the lower-tier partnership's liabilities under section 752. The Treasury Department and the IRS believe it is appropriate for this purpose to gross up the fair market value of the lower-tier partnership interest by the upper-tier partnership's allocated share of liabilities; otherwise, the regulations could inappropriately treat a lower-tier partnership interest as a loss asset. Thus, under the proposed regulations, the fair market value of a lower-tier partnership interest (solely for purposes of computing the upper-tier partnership's basis adjustment under section 743(b)) is equal to the sum of: (i) the amount of cash that the upper-tier partnership would receive if the lower-tier partnership sold all of its property for cash to an unrelated person for an amount equal to the fair market value of such property, satisfied all of its liabilities, and liquidated; and (ii) the upper-tier partnership's share of the lower-tier partnership's liabilities (as determined under section 752 and the regulations).
In addition, the proposed regulations provide special rules for basis adjustments with respect to tiered partnerships. Under the authority granted by section 743(d)(2), the proposed regulations provide that if a partner transfers an interest in an upper-tier partnership that holds a direct or indirect interest in a lower-tier partnership, and the upper-tier partnership has a substantial built-in loss with respect to the transfer, each lower-tier partnership is treated, solely with respect to the transfer, as if it had made a section 754 election for the taxable year of the transfer. The Treasury Department and the IRS are aware of the practical and administrative difficulties associated with requiring a lower-tier partnership that has not elected under section 754 to adjust the basis of its assets in connection with the transfer of an interest in an upper-tier partnership. Comments are requested on the scope of this rule and on measures to ease administrative burdens while still accomplishing the objective of the statute.
These proposed regulations also provide guidance on the application of section 743(b) adjustments in tiered partnership situations generally. Consistent with Rev. Rul. 87-115, 1987-2 CB 163, the proposed regulations provide that if an interest in an upper-tier partnership that holds an interest in a lower-tier partnership is transferred by sale or exchange or upon the death of a partner, and the upper-tier partnership and the lower-tier partnership both have elections in effect under section 754, then an interest in the lower-tier partnership will be deemed to have been transferred by sale or exchange or
Section 743(e)(7) provides that the Secretary may prescribe regulations for applying the EIP rules to tiered partnerships, and the legislative history makes clear that Congress did not intend for EIPs to avoid the mandatory basis adjustment provisions through the use of tiered partnerships.
The proposed regulations provide anti-abuse rules. The purpose of the amendments to section 743 is to prevent a partner that purchases an interest in a partnership with an existing built-in loss and no election under section 754 in effect from being allocated a share of the loss when the partnership disposes of the property or takes cost recovery deductions with respect to the property. Accordingly, consistent with the purpose of the amendments and the specific grant of regulatory authority in section 743(d)(2), the proposed regulations provide that the provisions of section 743 and the regulations thereunder regarding substantial built-in loss transactions must be applied in a manner consistent with the purpose of such provisions and the substance of the transaction. Thus, if a principal purpose of a transaction is to avoid the application of the substantial built-in loss rules with respect to a transfer, the Commissioner can recast the transaction for Federal income tax purposes as appropriate to achieve tax results that are consistent with the purpose of the provisions. Whether a tax result is inconsistent with the purpose of the substantial built-in loss provisions is determined based on all the facts and circumstances. For example, under the proposed regulations, property held by related partnerships may be aggregated and a contribution of property to a partnership may be disregarded in applying the substantial built-in loss provisions in section 743 and the regulations thereunder if the property was transferred with a principal purpose of avoiding the application of such provisions.
Finally, the proposed regulations clarify that a partnership that has a substantial built-in loss immediately following the transfer of a partnership interest must comply with certain provisions of § 1.743-1(k). In this case, the partnership must attach a statement of adjustments to its partnership return as if an election under section 754 were in effect at the time of the transfer solely with respect to the transfer for which there is a substantial built-in loss.
One commenter on the Notice requested that the Treasury Department and the IRS provide a de minimis exception for the substantial built-in loss provisions for transfers of small interests (subject to an annual limit on aggregate transfers during a taxable year). The substantial built-in loss provisions are intended to prevent the inappropriate shifting of losses among partners, and neither the legislative history nor the statute suggests that Congress intended to limit the scope of the rule to the transfer of large interests. Accordingly, the Treasury Department and the IRS decline to provide an exception to the substantial built-in loss rules based on the size of the interest transferred. The Treasury Department and the IRS will continue to study, and request comments on, whether a rule is warranted that excludes de minimis basis adjustments from the mandatory adjustment provisions.
The proposed regulations generally adopt the statutory language in section 743(e) and the provisions in the Notice. The Notice requested comments on certain aspects of the interim procedures for EIPs, and the Treasury Department and the IRS received comments in response to that request, which are described in this section.
The Notice detailed reporting requirements for transferors of EIP interests so that transferees could comply with the loss limitation rule in section 743(e)(2). The proposed regulations clarify that the reporting requirements with respect to transferors of an interest in an EIP described in the Notice do not apply if the transferor recognizes gain on the transfer and no prior transferor recognized a loss on any transfer. The Treasury Department and the IRS do not believe reporting is necessary in this limited circumstance because the transferee should not be subject to the loss limitation rule of section 743(e)(2).
In regard to the requirement in section 743(e)(6)(I) that the partnership agreement provide for a term that is not in excess of 15 years, one commenter requested that regulations provide that a partnership may still qualify as an EIP even if the partnership's initial term is greater than 15 years, particularly in cases in which the amount of the partnership's equity investment in the remaining assets is small (for example, 25 percent of the total committed capital). However, Congress considered the circumstances in which it would be appropriate to provide an extension of the term and specifically provided an exception to the 15-year requirement for EIPs in existence on June 4, 2004. Accordingly, the Treasury Department and the IRS decline to adopt this comment in the proposed regulations.
The Notice also provides guidance on whether a partnership has ever been engaged in a trade or business for purposes of section 743(e)(6)(C). The Notice provides that until further guidance is issued, an upper-tier partnership will not be treated as engaged in the trade or business of a lower-tier partnership if, at all times during the period in which the upper-tier partnership owns an interest in the lower-tier partnership, the adjusted basis of its interest in the lower-tier partnership is less than 25 percent of the total capital that is required to be contributed to the upper-tier partnership by its partners during the entire term of the upper-tier partnership (the “25% Rule”). The Notice specifically requests comments on rules that would be appropriate for future guidance in determining whether an upper-tier partnership is treated as engaged in a trade or business that is conducted by a lower-tier partnership. One commenter requested that the Treasury Department and the IRS confirm whether the 25% Rule is a safe harbor or whether a violation of the 25% Rule disqualifies a partnership from being an EIP. This commenter also requested that the Treasury Department and the IRS clarify the 25% Rule in the case of borrowing. The commenter noted that lower-tier partnership interests are often acquired with capital contributions and the proceeds of borrowing. Therefore, the commenter requested that any safe harbor take into account leverage. This commenter further suggested that rules similar to the rules in § 1.731-2(e)(3) (providing circumstances in which a partnership would not be treated as engaged in a trade or business for purposes of section 731(c)(3)(C)) should apply for purposes of section 743(e)(6)(C). Finally, the
The Treasury Department and the IRS view the 25% Rule as a bright-line rule. Therefore, a failure to meet the 25% Rule will mean that the partnership fails to qualify as an EIP. The Treasury Department and the IRS agree that the rules in § 1.731-2(e)(3) should apply for purposes of section 743(e)(6)(C). Therefore, the proposed regulations provide a safe harbor by cross-referencing those rules. Under the proposed regulations, if a partnership would not be treated as engaged in a trade or business under § 1.731-2(e)(3) for purposes of section 731(c)(3)(C), the partnership also will not be treated as engaged in a trade or business for purposes of section 743(e)(6)(C). The Treasury Department and the IRS believe the 25% Rule and the cross-reference to § 1.731-2(e)(3) provide appropriate guidance under section 743(e)(6)(C) and therefore the proposed regulations do not provide any additional safe harbors. The Treasury Department and the IRS are continuing to study the extent to which borrowing should be taken into account in applying the 25% Rule and therefore request comments on appropriate rules.
A commenter also requested additional guidance regarding section 743(e)(6)(H), which provides that one of the eligibility requirements for an EIP is that the partnership agreement have substantive restrictions on each partner's ability to cause a redemption of the partner's interest. The proposed regulations follow the examples in the legislative history and provide that substantive restrictions for purposes of section 743(e)(7)(H) include cases in which a redemption is permitted under a partnership agreement only if the redemption is necessary to avoid a violation of state, federal, or local laws (such as ERISA or the Bank Holding Company Act) or the imposition of a federal excise tax on, or a change in the federal tax-exempt status of, a tax-exempt partner.
The proposed regulations provide that the EIP election must be made on a timely filed original return, including extensions. One commenter requested relief for certain instances in which the partnership fails to make a valid EIP election. The commenter requested relief when: (1) A partnership makes an EIP election, but did not qualify to make the election; (2) the partnership attempts to make an EIP election, but it is defective; or (3) the partnership makes an EIP election, but fails to continue to qualify. In each case, the commenter believes that the Treasury Department and the IRS should treat the partnership as an EIP if: (a) Its failure to qualify or the defect was inadvertent; (b) the partners and the partnership consistently treated the partnership as an EIP; (c) steps were taken to cure the defect in a reasonable period of time; and (d) the partners and the EIP agree to make any necessary adjustments. The Treasury Department and the IRS do not adopt this comment in the proposed regulations because there are existing procedures for situations in which a regulatory election is defective.
The Treasury Department and the IRS request comments on appropriate rules for situations in which a partnership that has elected to be an EIP fails to qualify in a particular year, but then qualifies again in a future year. The Treasury Department and the IRS also request comments on the circumstances in which a qualifying partnership that has revoked an EIP election should be permitted to reelect and the rules and procedures that should apply to the reelection.
The proposed regulations generally restate the statutory provisions relating to the exception from the substantial built-in loss provisions for securitization partnerships.
The proposed regulations generally follow the statutory provisions regarding substantial basis reductions. Questions have been raised whether the $250,000 threshold in section 734(d)(1) applies to a partnership's aggregate distributions for a taxable year. The Treasury Department and the IRS believe that the better interpretation of section 734(a), (b), and (d) is that the threshold applies separately with respect to each distributee because: (1) Both section 734(a) and (b) refer to a distribution of property to “a partner;” and (2) section 734(b)(2)(A) and (B), referenced in section 734(d), refer to the “distributee partner” or the “distributee.” These references indicate that the substantial built-in loss provisions apply to each partner-distributee separately, but with respect to the entire distribution made to the distributee. That is, where multiple properties are distributed to a partner-distributee, the $250,000 threshold is determined by reference to all properties distributed to the partner-distributee as part of the same distribution.
The proposed regulations also provide additional guidance in several areas. The proposed regulations provide that if there is a substantial basis reduction, the partnership is treated as having an election under section 754 in effect for the taxable year in which the distribution occurs, but solely for the distribution to which the substantial basis reduction relates (unless another transaction is subject to the mandatory basis adjustment provisions of sections 734 or 743). For example, if a partnership without a section 754 election in effect has a substantial basis reduction with respect to a distribution, and a partner in the partnership in that same year transfers a partnership interest (and the partnership does not have a substantial built-in loss immediately after the transfer), the partnership will be treated as having a section 754 election in effect for the distribution but not the transfer.
The same issues exist in the context of section 734(b) adjustments and tiered partnerships as exist with respect to section 743(b) adjustments and tiered partnerships. Thus, the proposed regulations also provide guidance for substantial basis reductions in tiered partnership arrangements. Under the proposed regulations, if there is a substantial basis reduction with respect to a distribution by an upper-tier partnership that (either directly or indirectly through one or more partnerships) holds an interest in a lower-tier partnership, each lower-tier partnership is treated, solely with respect to the distribution, as if it had made an election under section 754 for the taxable year in which the distribution occurs.
These proposed regulations also provide guidance on the application of section 734(b) adjustments in tiered partnership situations generally. Consistent with Rev. Rul. 92-15, 1992-1 CB 215, if an upper-tier partnership makes an adjustment under section 734(b) to the basis of an interest it holds in a lower-tier partnership that has an
The Treasury Department and the IRS are aware of the practical and administrative difficulties associated with the requirement that a lower-tier partnership adjust the basis of its assets with respect to adjustments under both section 734 and section 743 and request comments on the scope of this rule and measures to ease the administrative burden while still accomplishing the objective of the statute.
The proposed regulations also update § 1.734-1(d) to clarify that its reporting requirements apply if there is a substantial basis reduction with respect to a distribution. In this case, the provisions of § 1.734-1(d) apply solely with respect to the distribution to which the substantial basis reduction relates as if an election under section 754 were in effect at the time of the transfer.
The proposed regulations generally restate the statutory provisions relating to the exception from the substantial basis reduction provisions for securitization partnerships.
The proposed regulations generally restate the statutory provisions of section 755(c) and provide rules applicable to an allocation of a downward adjustment in the basis of partnership property under sections 734(b) and 755(a). As discussed in Part 3 of the Background section of this preamble, Congress enacted section 755(c) in response to the JCT's investigation of Enron Corporation. In addressing transactions among related parties, the JCT Enron Report specifically provides that:
Partnership allocations between members of the same affiliated group (and, in general, related parties) may not have the same economic consequences as allocations between unrelated partners. As a result, related partners can use the partnership allocation rules inappropriately to shift basis among assets . . . The Joint Committee staff recommends that . . . the partnership basis rules should be altered to preclude an increase in basis to an asset if the offsetting basis reduction would be allocated to stock of a partner (or related party).
JCT Enron Report, at 29-30. The proposed regulations provide that in making an allocation under section 755(a) of any decrease in the adjusted basis of partnership property under section 734(b), no allocation may be made to stock in a corporation (or any person related (within the meaning of sections 267(b) or 707(b)(1)) to such corporation) that is a partner in the partnership. Given Congress's intent to prevent taxpayers from shifting tax gain to stock of a corporate partner or corporation related to a corporate partner, the Treasury Department and the IRS believe it is appropriate to interpret section 755(c) to apply broadly to related persons under either section 267(b) or section 707(b)(1).
The Treasury Department and the IRS are aware that the current basis allocation rules for substituted basis transactions can result in unintended consequences, particularly with regard to the “net gain” and “net loss” requirement in § 1.755-1(b)(5)(ii). The net gain or net loss requirement in § 1.755-1(b)(5)(ii) may, in certain situations, cause a partnership to be unable to properly adjust the basis of partnership property with respect to a transferee partner. For example, when there is an increase in basis to be allocated to partnership assets and the property of the partnership does not have overall unrealized net gain or net income, the basis increase cannot be allocated under § 1.755-1(b)(5). Conversely, if there is a decrease in basis to be allocated to partnership assets and the property of the partnership does not have overall unrealized net loss, the basis decrease cannot be allocated under § 1.755-1(b)(5). The Treasury Department and the IRS believe this result is inappropriate. Accordingly, the Treasury Department and the IRS propose to amend the current regulations as described in this preamble.
The proposed regulations provide that if there is an increase in basis to be allocated to partnership assets under § 1.755-1(b)(5), the increase must be allocated between capital gain property and ordinary income property in proportion to, and to the extent of, gross gain or gross income (including any remedial allocations under § 1.704-3(d)) that would be allocated to the transferee (to the extent attributable to the acquired partnership interest) from the hypothetical sale of all property in each class. The proposed regulations further provide that any remaining increase must be allocated between the classes in proportion to the fair market value of all property in each class.
If there is a decrease in basis to be allocated to partnership assets under § 1.755-1(b)(5), the proposed regulations provide that the decrease must be allocated between capital gain property and ordinary income property in proportion to, and to the extent of, the gross loss (including any remedial allocations under § 1.704-3(d)) that would be allocated to the transferee (to the extent attributable to the acquired partnership interest) from the hypothetical sale of all property in each class. Any remaining decrease must be allocated between the classes in proportion to the transferee's shares of the adjusted bases of all property in each class (as adjusted under the preceding sentence). Thus, the proposed regulations remove the requirements that (1) there be an overall net gain or net income in partnership property for an increase in basis to be allocated to a particular class of property; and (2) there be an overall net loss in partnership property for a decrease in basis to be allocated to a particular class of property.
The Treasury Department and the IRS are aware that there is uncertainty regarding whether the transferee's shares of unrealized appreciation and depreciation described in § 1.755-1(b)(5)(iii)(A) and (B) include only amounts attributable to the acquired partnership interest. The proposed regulations clarify that the transferee's shares of the items are limited to the amounts attributable to the acquired partnership interest.
In addition, § 1.755-1(b)(5)(iii)(C) has a limitation that provides that a transferee's negative basis adjustment is limited to the transferee's share of the partnership's adjusted basis in all
The proposed regulations amend the regulations under section 743 to provide an exception to the rule that a transferee's basis adjustment is determined without regard to any prior transferee's basis adjustment. The Treasury Department and the IRS believe that this rule can lead to inappropriate results when the transferor transfers its partnership interest in a substituted basis transaction (within the meaning of § 1.755-1(b)(5)) and the transferor had a basis adjustment under section 743(b) attributable to the transferred interest that was allocated pursuant to § 1.755-1(b)(2) through (b)(4). Under the current regulations, the transferee does not succeed to the transferor's section 743(b) adjustment but, rather, is entitled to a new section 743(b) adjustment that is allocated under a different set of rules, which may result in the inappropriate shifting of basis among the partnership's assets. The proposed regulations provide that the transferee in a substituted basis transaction succeeds to that portion of the transferor's basis adjustment attributable to the transferred partnership interest and that the adjustment is taken into account in determining the transferee's share of the adjusted basis to the partnership for purposes of §§ 1.743-1(b) and 1.755-1(b)(5).
One commenter on Notice 2009-70 noted that the definitions of the terms “built-in gain” and “built-in loss” in § 1.704-3(a)(3)(ii) imply that section 704(c) layers with “different signs” should be netted against each other because the regulations provide that built-in gain or built-in loss is reduced by differences in the property's adjusted tax basis and book value.
In response to this comment, the proposed regulations provide that built-in gain and built-in loss do not take into account any decreases or increases, as the case may be, to the property's book value pursuant to a revaluation of partnership property under § 1.704-1(b)(2)(iv)(
The Treasury Department and the IRS also received several comments regarding the proper treatment of section 704(c) layers, suggesting one of two approaches. Under the layering approach, a partnership would create and maintain multiple section 704(c) layers for the property. Under the netting approach, a partnership would net multiple section 704(c) layers for the property and therefore each section 704(c) property would have one section 704(c) layer. One commenter recommended that the layering approach be the default rule, but that certain partnerships should be permitted to adopt a netting approach depending on the value of the partnership's assets. This commenter believed that the layering approach is more appropriate because the netting approach can result in distortions when partnerships use the traditional method of allocating section 704(c) amounts and the ceiling rule is implicated. The commenter also argued that the layering approach better maintains the economic expectations of the partners and is generally more consistent with the policy underlying section 704(c). However, this commenter also acknowledged that the netting approach is simpler to apply, and that in many cases both approaches will reach the same result. Another commenter suggested that partnerships be given the option of using either the layering approach or the netting approach. According to the commenter, this would allow partnerships to avoid the burden and expense of maintaining section 704(c) layers, particularly when maintaining section 704(c) layers is unnecessary.
The proposed regulations do not permit taxpayers to use a netting approach because a netting approach could lead to distortions. The Treasury Department and the IRS understand, however, that maintaining section 704(c) layers may result in additional administrative burdens and, therefore, request comments on when it is appropriate for partnerships to use a netting approach (for example, small partnerships).
One commenter noted that guidance was necessary with respect to how to allocate tax items among multiple section 704(c) layers. This commenter suggested three methods for allocating tax items: (1) Allocate tax items to the oldest layer first; (2) allocate tax items to the newest section 704(c) layers first; and (3) allocate tax items among the section 704(c) layers pro rata based on the amount of each layer. The commenter suggested that the Treasury Department and the IRS provide a default rule that would allocate to the oldest section 704(c) layers first, but permit partnerships to elect any reasonable method (such as the three methods described).
The Treasury Department and the IRS agree that partnerships should be permitted to use any reasonable method in allocating tax items. The Treasury Department and the IRS decline to adopt a default rule for allocating tax items because no single method is more appropriate than other methods. Therefore, the proposed regulations provide that a partnership may use any reasonable method to allocate items of income, gain, loss, and deduction associated with an item of property among the property's forward and reverse section 704(c) layers subject to the anti-abuse rule in § 1.704-3(a)(10). The partnership's choice of method is also subject to § 1.704-3(a)(2), which provides that a partnership may use different methods with respect to different items of contributed property, provided that the partnership and the partners consistently apply a single reasonable method for each item of contributed property and that the overall method or combination of methods is reasonable based on the facts and circumstances and consistent with the purpose of section 704(c). The Treasury Department and the IRS are considering providing examples of reasonable methods in future guidance and therefore request comments on these and other methods for allocating tax items.
The proposed regulations amend various provisions in §§ 1.704-4, 1.737-1, and 1.1502-13 to reflect the amendments to sections 704(c)(1)(B) and 737(b)(1) that lengthen the period of time for taxing precontribution gain from five years to seven years. The
These regulations are generally proposed to apply to partnership contributions and transactions occurring on or after the date final regulations are published in the
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that the collection of information in this notice of proposed rulemaking will not have a significant economic impact on a substantial number of small entities within the meaning of section 601(6) of the Regulatory Flexibility Act (5 U.S.C. chapter 6). The Treasury Department and the IRS believe that the economic impact on small entities as a result of the collection of information in this notice of proposed rulemaking will not be significant. The small entities subject to the collection are business entities formed as partnerships that: (1) Receive a contribution of built-in loss property; (2) are required to make a mandatory basis adjustment under section 734 or section 743; and/or (3) are eligible for, and elect to apply, the electing investment partnership provisions in section 743(e). In the case of the contribution of built-in loss property, the partnership is required to provide a statement in the year of contribution setting forth basic information that the partnership will need in order to properly apply the rules. Similarly, in the case of the mandatory basis adjustment provisions, the partnership will already have the information subject to the collection in order to comply with the rules. In the case of EIPs, the collections are either one-time (election) or annual (annual statement). The collection only applies if the partnership elects to be an EIP. Furthermore, the proposed regulations provide the specific language for the annual statement. Finally, the collection regarding the mandatory basis adjustment provisions and the EIP rules have been in effect since 2005, as required by Notice 2005-32, and the Treasury Department and the IRS have not received comments that the collections have a significant economic impact. For these reasons, the Treasury Department and the IRS do not believe that the collection of information in this notice of proposed rulemaking has a significant economic impact. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before the proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The Treasury Department and the IRS request comments on all aspects of the proposed rules. All comments will be available for public inspection and copying.
A public hearing has been scheduled for April 30, 2014 beginning at 10:00 a.m. in the Auditorium, Internal Revenue Building, 1111 Constitution Avenue NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit electronic or written comments by April 16, 2014, and an outline of the topics to be discussed and the time to be devoted to each topic (signed original and eight (8) copies) by April 16, 2014. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.
The principal authors of these regulations are Wendy L. Kribell and Benjamin H. Weaver, Office of the Associate Chief Counsel (Passthroughs & Special Industries). However, other personnel from the Treasury Department and the IRS participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR Part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
The revisions and additions read as follows.
(a) * * *
(3) * * *
(ii)
(iii)
(6) (i)
(iii)
(iv)
(7)
(f)
(ii)
(2)
(i)
(ii)
(iii)
(3)
(ii)
(B)
(C)
(D)
A contributes Property, with an adjusted basis of $12,000 and a fair market value of $5,000 on January 1 of the year of contribution, and B contributes $5,000 to PRS, a partnership. Prior to the contribution, A depreciates Property under section 168 over 10 years using the straight-line method and the half-year convention. On the contribution date, Property has 7.5 years remaining in its recovery period. Property is section 704(c)(1)(C) property, and A's section 704(c)(1)(C) basis adjustment is $7,000. PRS's basis in Property is $5,000 (fair market value) and, in accordance with section 168(i)(7), the depreciation is $667 per year ($5,000 divided by 7.5 years), which is shared equally between A and B. A's $7,000 section 704(c)(1)(C) basis adjustment is subject to depreciation of $933 per year in accordance with section 168(i)(7) ($7,000 divided by 7.5 years), which is taken into account by A.
(iii)
(B)
(
(C)
(ii) Under paragraph (f)(3)(iii)(B)(
(iii) In Year 3, PRS sells Property for its fair market value of $5,000. PRS realizes no gain or loss on the sale. Pursuant to paragraph (f)(3)(ii)(C) of this section, PRS reduces UTP's allocable gain from the sale of Property ($0) by the amount of UTP's section 704(c)(1)(C) basis adjustment for Property ($6,000). Thus, UTP is allocated a $6,000 loss. Pursuant to paragraph (a)(9) of this section, UTP must allocate the $6,000 loss with respect to the section 704(c)(1)(C) basis adjustment to A. A's basis in UTP decreases from $11,000 to $5,000 and its section 704(c)(1)(C) basis adjustment in UTP is eliminated.
(ii) A and Y Corp do not elect to apply the provisions of section 362(e)(2)(C). Therefore, section 362(e)(2)(A) will apply because Y Corp's basis in PRS ($11,000) would exceed the fair market value of PRS ($5,000) immediately after the transaction. Thus, pursuant to section 362(e)(2)(B), Y Corp's basis in PRS will be $5,000. Y Corp succeeds to A's $6,000 section 704(c)(1)(C) basis adjustment in Property pursuant to paragraph (f)(3)(iii)(B)(
(iv)
A contributes Property 1 with an adjusted basis of $12,000 and a fair market value of $10,000 and B contributes $10,000 cash to PRS, a partnership. A has a $2,000 section 704(c)(1)(C) basis adjustment in Property 1, and PRS has an adjusted basis in Property 1 of $10,000, or its fair market value. PRS subsequently engages in a like-kind exchange under section 1031 of Property 1 when the fair market value of Property 1 is $13,000 and receives Property 2 with a fair market value of $12,000 and $1,000 cash in exchange. PRS's gain on the transaction is $3,000 ($13,000 minus PRS's $10,000 adjusted basis) but is recognized only to the extent of the cash received of $1,000, of which $500 is allocable to A. As provided in paragraph (f)(3)(iv)(A)(
(B)
(
(
(i) In Year 1, A contributes Property with an adjusted basis of $11,000 and a fair market value of $5,000, and B contributes $5,000 cash to UTP, a partnership. Later in Year 1, when Property's basis has not changed, and Property is worth at least $5,000, UTP contributes Property to LTP in a section 721 transaction for a 50-percent interest in LTP. In Year 2, LTP sells Property for its fair market value of $29,000.
(ii) A has a $6,000 section 704(c)(1)(C) basis adjustment in Property. After the section 721 transaction, A's section 704(c)(1)(C) basis adjustment in Property becomes A's section 704(c)(1)(C) adjustment in UTP's interest in LTP. UTP has a section 704(c)(1)(C) adjustment in Property in the amount of A's section 704(c)(1)(C) adjustment in Property. This section 704(c)(1)(C) adjustment must be segregated and allocated solely to A. UTP's basis in its interest in LTP is determined without reference to the section 704(c)(1)(C) adjustment. Thus, UTP's basis in LTP is $5,000. LTP's basis in Property is determined without reference to the section 704(c)(1)(C) basis adjustment; therefore, LTP's basis in Property is $5,000.
(iii) Upon the sale of Property, LTP realizes a gain of $24,000 ($29,000 fair market value minus $5,000 adjusted basis). UTP's allocable share of the $24,000 gain from the sale of Property by LTP is $12,000, reduced by UTP's $6,000 section 704(c)(1)(C) basis adjustment in Property. Because UTP's section 704(c)(1)(C) basis adjustment must be segregated and allocated solely to A, UTP allocates the $12,000 of gain equally between A and B, but allocates the recovery of the $6,000 section 704(c)(1)(C) basis adjustment to A. Therefore, pursuant to paragraph (f)(3)(ii)(C) of this section, A recognizes no gain or loss on the sale (A's $6,000 share of UTP's gain minus the $6,000 section 704(c)(1)(C) basis adjustment). Because UTP's section 704(c)(1)(C) adjustment in Property is used, A's section 704(c)(1)(C) basis adjustment in UTP's interest in LTP is reduced to $0 to prevent duplication of loss pursuant to paragraph (f)(3)(iv)(B)(
Assume the same facts as
(i) Assume the same facts as
(ii) A has a $6,000 section 704(c)(1)(C) basis adjustment in Property. After the section 721 transaction, pursuant to paragraph (f)(3)(iv)(B)(
(iii) Upon the sale of Property, LTP recognizes no gain or loss ($2,000 sales price minus $2,000 adjusted basis). However, the sale of Property triggers UTP's two separate section 704(c)(1)(C) basis adjustments. First, UTP applies the $3,000 section 704(c)(1)(C) adjustment attributable to the built-in loss in Property arising after A contributed Property to UTP. This results in an allocation of ($1,500) of loss to each of A and B. Next, UTP applies the $6,000 section 704(c)(1)(C) basis adjustment attributable to A's initial contribution of Property to UTP, resulting in an additional ($6,000) of loss allocated to A. Thus, the sale of Property by LTP results in A recognizing ($7,500) of loss, and B recognizing ($1,500) of loss. Pursuant to paragraph (f)(3)(iv)(B)(
(C)
(
(
(
(ii) In Year 2, Y Corp sells Property for its fair market value of $10,000. Y Corp recognizes no gain or loss on the sale of Property. Pursuant to paragraph (f)(3)(iv)(C)(
(D)
A contributes Property with an adjusted basis of $11,000 and a fair market value of $5,000 and B contributes $5,000 cash to PRS, a partnership. B sells its entire interest in PRS to C for its fair market value of $5,000, which terminates PRS under section 708(b)(1)(B). Under § 1.708-1(b)(4), PRS is deemed to contribute all of its assets and liabilities to a new partnership (New PRS) in exchange for an interest in New PRS. Immediately thereafter, PRS is deemed to distribute its interest in New PRS equally to A and C in complete liquidation of PRS. New PRS takes Property with a basis of $5,000 and A retains its $6,000 section 704(c)(1)(C) basis adjustment related to Property inside New PRS.
(E)
(F)
(v)
(B)
(C)
(D)
(ii) Property 1 has an adjusted basis to PRS of $10,000, and A has a section 704(c)(1)(C) basis adjustment of $5,000 in Property 1. Pursuant to § 1.732-2(c) and paragraph (f)(3)(v)(A) of this section, for purposes of section 732(a)(1), the adjusted basis of Property 1 to PRS immediately before the distribution is $15,000 (PRS's $10,000 adjusted basis increased by A's $5,000 section 704(c)(1)(C) basis adjustment for Property 1) and, therefore. A takes a $15,000 adjusted basis in Property 1 upon the distribution. Accordingly, no adjustment is required to PRS's property under section 734.
(i)
(ii) Property 2 has an adjusted basis to PRS of $5,000, and A has a section 704(c)(1)(C) basis adjustment of $5,000 in Property 1. Pursuant to § 1.732-2(c) and paragraph (f)(3)(v)(C) of this section, for purposes of section 732(b), the adjusted basis of Property 2 to PRS immediately before the distribution is $10,000 (PRS's $5,000 adjusted basis in Property 2 increased by A's $5,000 section 704(c)(1)(C) basis adjustment for Property 1), and A's adjusted basis in Property 2 upon the distribution is $10,000 (A's $20,000 basis in PRS minus the $10,000 cash distributed). Therefore, no adjustment is required to PRS's property under section 734.
(vi)
(g) * * *. The provisions of paragraph (f) of this section apply to partnership contributions occurring on or after the date of publication of the Treasury decision adopting these rules as final regulations in the
The revision and addition read as follows:
(a) * * *
(4)
(g) * * * The provisions of this section relating to the seven-year period for determining the applicability of section 704(c)(1)(B) are applicable for partnership contributions occurring on or after the date of publication of the Treasury decision adopting these rules as final regulations in the
The revisions and addition reads as follows:
(b)
(2)
(c)
(2)
The revisions and additions read as follows:
(a)
(2)
(ii)
(iii)
(b) * * *
(2)
(ii) * * *
—(i) A, B, and C each contribute $2 million to PRS, a partnership. PRS purchases Property 1 and Property 2, both of which are capital assets, for $1 million and $5 million respectively. In Year 2, the fair market value of Property 1 increases to $3 million and the fair market value of Property 2 increases to $6 million. Also in Year 2, PRS distributes Property 1 to C in liquidation of C's interest in PRS at a time when C's basis in its PRS interest is still $2 million. PRS does not have an election under section 754 in effect.
(ii) Under section 732, the basis of Property 1 in the hands of C is $2 million. Because the excess of C's adjusted basis in Property 1 ($2 million) over PRS's adjusted basis in Property 1 ($1 million) is $1 million, the amount described in section 734(b)(2)(B) ($1 million) exceeds $250,000, and therefore, there is a substantial basis reduction with respect to the distribution. Accordingly, pursuant to paragraph (a)(2)(i) of this section, PRS is treated as having a section 754 election in effect in Year 2 and must reduce its basis in Property 2 in accordance with paragraph (b)(2)(i) of this section.
(d) * * * A partnership required to adjust the basis of partnership property following the distribution of property because there is a substantial basis reduction (within the meaning of paragraph (a)(2)(i) of this section) with respect to the distribution is subject to, and required to comply with, the provisions of this paragraph (d) solely with respect to the distribution to which the substantial basis reduction relates.
(f)
—(i)
UTP also owns a 50 percent interest in LTP, a partnership. UTP's interest in LTP has an adjusted basis of $4 million and a fair market value of $3 million. LTP owns one asset, Property 3, a capital asset, which has an adjusted basis of $8 million and a fair market value of $6 million. Neither UTP nor LTP has an election under section 754 in effect.
(ii)
(g)
(h)
(c)(1) Section 704(c)(1)(C) basis adjustments will be taken into account in determining the basis adjustment under section 734(b). However, section 704(c)(1)(C) basis adjustments, other than a section 704(c)(1)(C) basis adjustment applied as an adjustment to the basis of partnership property pursuant to paragraph (c)(2) of this section, will not be taken into account in making allocations under § 1.755-1(c).
(2)
(3) The following examples illustrate the provisions of this paragraph (c).
—(i) In Year 1, A contributes $5,000 cash and Property A, a capital asset, with an adjusted basis of $7,000 and a fair market value of $5,000; B contributes $8,000 cash and Property B, a capital asset, with an adjusted basis and fair market value of $2,000; and C contributes $7,000 cash and Property C, a capital asset, with an adjusted basis and fair market value of $3,000 to PRS, a partnership. In Year 3, Property B has appreciated in value to $8,000. PRS distributes Property B and $4,000 to C in complete liquidation of C's interest in PRS at a time when no partner's basis in PRS has changed. PRS revalues its property under § 1.704-1(b)(2)(iv)(
(ii) C receives Property B with a basis of $6,000 (C's adjusted basis in PRS of $10,000 minus the $4,000 cash distributed). Because PRS has an election under section 754 in effect, PRS must reduce its basis in remaining partnership property under § 1.734-1(b)(2)(ii) by $4,000 (C's $6,000 basis in Property B minus PRS's $2,000 adjusted basis in Property B prior to the distribution. Under § 1.755-1(c)(2)(ii), that basis reduction must be allocated within a class first to properties with unrealized depreciation in proportion to their respective amounts of unrealized depreciation. Any remaining decrease must be allocated in proportion to the properties' adjusted bases. Because there is no unrealized depreciation in either Property A (disregarding A's section 704(c)(1)(C) basis adjustment) or Property C, the decrease must be allocated between the two properties in proportion to their adjusted bases, $2,500 ($4,000 multiplied by $5,000 divided by $8,000) to Property A and $1,500 ($4,000 multiplied by $3,000 divided by $8,000) to Property C.
(iii) In a subsequent year, PRS sells Property A for its fair market value of $7,500 and recognizes $5,000 of gain ($7,500 amount realized minus adjusted basis of $2,500). Pursuant to § 1.704-3(f)(3)(ii)(B), A's $2,500 distributive share of the $5,000 gain from the sale of Property A is reduced by A's $2,000 section 704(c)(1)(C) basis adjustment. Therefore, A recognizes a gain of $500 on the sale.
—(i) A contributes Property 1 with an adjusted basis of $15,000 and a fair market value of $10,000 and Property 2 with an adjusted basis of $15,000 and a fair market value of $20,000, and B and C each contribute $30,000 cash to PRS, a partnership. A has a section 704(c)(1)(C) basis adjustment of $5,000 with respect to Property 1. PRS's adjusted bases in Property 1 and Property 2 are $10,000 and $15,000, respectively. When the fair market value of A's interest in PRS is still $30,000, and no partner's basis in its PRS interest has changed, PRS makes a liquidating distribution to A of $30,000 cash, which results in A realizing no gain or loss. PRS has an election under section 754 in effect.
(ii) A is unable to take into account A's section 704(c)(1)(C) basis adjustment in Property 1 upon the distribution of the cash as described in paragraph (c)(2) of this section because A cannot increase the basis of cash under § 1.704-3(f)(v)(C). Thus, A's $5,000 section 704(c)(1)(C) basis adjustment is treated as a positive section 734(b) adjustment to the partnership's assets retained. PRS's $5,000 section 734(b) adjustment will be allocated to Property 2, increasing its basis from $15,000 to $20,000 under § 1.755-1(c).
—(i) A contributes Property 1 with an adjusted basis of $35,000 and a fair market value of $30,000, B contributes Property 2 with an adjusted basis and fair market value of $30,000, and C contributes $30,000 cash to PRS, a partnership. Property 1 is a capital asset, and Property 2 is inventory (as defined in section 751(d)). PRS's adjusted basis in Property 1 is $30,000 under section 704(c)(1)(C)(ii), and A has a section 704(c)(1)(C) basis adjustment of $5,000 with respect to Property 1. Later, at a time when the value and bases of the properties have not changed, PRS distributes $30,000 cash to A in complete liquidation of A's interest. A recognizes a ($5,000) loss under section 731(a)(2) on the distribution. PRS has an election under section 754 in effect.
(ii) The distribution results in a negative section 734(b) adjustment to capital gain property of ($5,000) (the amount of loss A recognizes under section 731(a)(2)). Additionally, because A is unable to take into account A's section 704(c)(1)(C) basis adjustment in Property 1 upon the distribution of the cash, A's $5,000 section 704(c)(1)(C) basis adjustment is treated as a positive section 734(b) adjustment. Pursuant to paragraph (c)(2) of this section, these two adjustments are netted together, resulting in no adjustment under section 734(b). Therefore, the partnership's basis in Property 1 and Property 2 remains $30,000.
—(i) Assume the same facts as in
(ii) Pursuant to § 1.704-3(f)(v)(C), A cannot include A's section 704(c)(1)(C) basis adjustment in the basis of the distributed property, because the section 704(c)(1)(C) property and the distributed property are not of like character. Accordingly, the basis to A of Property 2 is $30,000. A also recognizes a $5,000 capital loss under section 731(a)(2), resulting in a ($5,000) basis adjustment under section 734(b). Because the section 704(c)(1)(C) basis adjustment to Property 1 was not reallocated in connection with the distribution, that remaining $5,000 section 704(c)(1)(C) basis adjustment is treated as a positive section 734(b) adjustment. Pursuant to paragraph (c)(2) of this section, these two adjustments are netted together, resulting in no adjustment under section 734(b). Therefore, the basis of Property 1 remains $30,000.
(4)
(c)
(3)
(ii)
(4)
The revisions and additions read as follows:
(a)
(2)
(ii)
(iii)
(A) The amount of cash that the upper-tier partnership would receive if the lower-tier partnership sold all of its property for cash to an unrelated person for an amount equal to the fair market value of such property, satisfied all of its liabilities (other than § 1.752-7 liabilities), paid an unrelated person to assume all of its § 1.752-7 liabilities in a fully taxable, arm's-length transaction, and liquidated; and
(B) The upper-tier partnership's share of the lower-tier partnership's liabilities as determined under section 752 and the regulations.
A and B are equal partners in PRS, a partnership. PRS owns Property 1, with an adjusted basis of $3 million and a fair market value of $2 million, and Property 2, with an adjusted basis of $1 million and a fair market value of $1 million. In Year 2, A sells 50 percent of its interest in PRS to C for its fair market value of $750,000. PRS does not have section 754 election in effect. Under paragraph (a)(2)(i) of this section, PRS has a substantial built-in loss because, immediately after the transfer, the adjusted basis of PRS's property ($4 million) exceeds the fair market value of the property ($3 million) by more than $250,000. Thus, pursuant to paragraph (a)(1) of this section, PRS must adjust the bases of its properties as if PRS had made a section 754 election for Year 2.
(b)
(f)
(2)
—(i) A and B are partners in LTP, a partnership. A owns a 60 percent interest, and B owns a 40 percent interest, in LTP. B owns the LTP interest with an adjusted basis of $50 and a fair market value of $70. LTP owns two assets: Capital Asset 1 with an adjusted basis of $25 and a fair market value of $100, and Capital Asset 2 with an adjusted basis of $100 and a fair market value of $75. B sells its interest in LTP to UTP. Both LTP and UTP have a section 754 election in effect. Pursuant to § 1.755-1(b)(3), UTP's $20 section 743(b) adjustment is allocated $30 to Capital Asset 1 and ($10) to Capital Asset 2.
(ii) UTP distributes its LTP interest to C, a partner in UTP, when the adjusted bases and fair market values of the LTP interest and LTP's assets have not changed. C's adjusted basis in its UTP interest at the time of the distribution is $40. Pursuant to paragraph (f)(2) of this section, C succeeds to UTP's section 743(b) adjustment. Also pursuant to paragraph (f)(2) of this section, the section 743(b) adjustment is taken into account in determining C's share of the adjusted basis of LTP property. Thus, C also has a $30 negative section 743(b) adjustment that must be allocated pursuant to § 1.755-1(b)(5). That is, C's interest in the partnership's previously taxed capital is $70 (C would be entitled to $70 cash on liquidation and there is no increase or decrease for tax gain or tax loss from the hypothetical transaction, taking into account UTP's section 743(b) adjustment to which C succeeds). Pursuant to § 1.755-1(b)(5)(iii)(B), the $30 negative section 743(b) adjustment must be allocated within the capital class first to properties with unrealized depreciation in proportion to C's share of the respective amounts of unrealized depreciation before the decrease. Taking into account UTP's section 743(b) adjustment to which C succeeds, C has no share of LTP's unrealized depreciation. Pursuant to § 1.755-1(b)(5)(iii)(B), any remaining decrease must be allocated among Capital Asset 1 and Capital Asset 2 in proportion to C's share of their adjusted bases. Taking into account UTP's section 743(b) adjustment to which C succeeds, C's share of the adjusted basis in Capital Asset 1 is $40 ($10 share of LTP's basis and $30 of UTP's section 743(b) adjustment to which C succeeded) and in Capital Asset 2 is $30 ($40 share of LTP's basis and ($10) of UTP's section 743(b) adjustment). Thus, 40/70 of the $30 adjustment, $17.14, is allocated to Capital Asset 1 and 30/70 of the $30 adjustment, $12.86, is allocated to Capital Asset 2. The decrease allocated to Capital Asset 1 first reduces UTP's section 743(b) adjustment to which C succeeds. Thus, C has a net section 743(b) adjustment in Capital Asset 1 of $12.86 ($30 minus $17.14) and in Capital Asset 2 of ($22.86) (($10) plus ($12.86)). If Capital Asset 1 is subject to the allowance for depreciation or amortization, C's net $12.86 positive basis adjustment is recovered pursuant to paragraph (j)(4)(i)(B).
(iii) If C later transfers its LTP interest to D in a transaction that is not a substituted basis transaction within the meaning of § 1.755-1(b)(5), under paragraph (f)(1) of this section, D does not succeed to any of C's section 743(b) adjustment.
(j) * * *
(3) * * *
(ii) * * *
A and B form equal partnership PRS. A and B each contribute $100 cash, and PRS purchases nondepreciable property for $200. Later, at a time when the property value has decreased to $100, C contributes $50 cash for a 1/3 interest in PRS. Under § 1.704-1(b)(2)(iv)(
A and B form equal partnership PRS. A and B each contribute $75 cash. PRS purchases nondepreciable property for $150. Later, at a time when the property value has decreased to $100, C contributes $50 cash for a 1/3 interest in PRS. Under § 1.704-1(b)(2)(iv)(
(k) * * *
(1) * * *
(iii)
(2) * * *
(iv)
(l)
(2)
A and B are equal partners in UTP, a partnership. UTP has no liabilities and owns a 25 percent interest in LTP, a partnership. UTP's interest in LTP has a fair market value of $100,000 and an adjusted basis of $500,000. LTP has no liabilities and owns Land, which has a fair market value of $400,000 and an adjusted basis of $2 million. In Year 3, when UTP and LTP do not have section 754 elections in effect, B sells 50 percent of its interest in UTP to C for its fair market value of $25,000. Because the adjusted basis of UTP's interest in LTP ($500,000) exceeds the fair market value of UTP's interest in LTP ($100,000) by more than $250,000 immediately after the transfer, UTP has a substantial built-in loss with respect to the transfer. Thus, pursuant to paragraph (l) of this section, UTP must adjust the basis of its interest in LTP, and LTP must adjust the basis of Land, as if it had made a section 754 election for Year 3.
(m)
(1) Property held by related partnerships may be aggregated if the properties were transferred to the related partnerships with a principal purpose of avoiding the application of the substantial built-in loss provisions in section 743 and the regulations; and
(2) A contribution of property to a partnership may be disregarded if the transfer of the property was made with a principal purpose of avoiding the application of the substantial built-in loss provisions in section 743 and the regulations thereunder.
(n)
(2)
(3)
(4)
(5)
(6)
(i) The partnership makes an election under paragraph (n)(10) of this section to have this paragraph (n) apply;
(ii) The partnership would be an investment company under section 3(a)(1)(A) of the Investment Company Act of 1940 but for an exemption under paragraph (1) or (7) of section 3(c) of such Act;
(iii) The partnership has never been engaged in a trade or business (see paragraph (n)(7) of this section for additional rules regarding this paragraph (n)(6)(iii));
(iv) Substantially all of the assets of the partnership are held for investment;
(v) At least 95 percent of the assets contributed to the partnership consist of money;
(vi) No assets contributed to the partnership had an adjusted basis in excess of fair market value at the time of contribution;
(vii) All partnership interests of the partnership are issued by the partnership pursuant to a private offering before the date that is 24 months after the date of the first capital contribution to the partnership;
(viii) The partnership agreement of the partnership has substantive restrictions on each partner's ability to cause a redemption of the partner's interest (see paragraphs (n)(8) and (n)(9) of this section for additional rules regarding this paragraph (n)(6)(viii)); and
(ix) The partnership agreement of the partnership provides for a term that is not in excess of 15 years (see paragraph (n)(9) of this section for additional rules regarding this paragraph (n)(6)(ix)).
(7)
(i) A partnership will not be treated as engaged in a trade or business if, based on all the facts and circumstances, the partnership is not engaged in a trade or business under the rules in § 1.731-2(e)(3).
(ii) In the case of a tiered partnership arrangement, a partnership (upper-tier partnership) will not be treated as engaged in a trade or business of a partnership in which it owns an interest (lower-tier partnership) if the upper-tier partnership can establish that, at all times during the period in which the upper-tier partnership owns an interest in the lower-tier partnership, the adjusted basis of its interest in the lower-tier partnership is less than 25 percent of the total capital that is required to be contributed to the upper-tier partnership by its partners during the entire term of the upper-tier partnership. Otherwise, the upper-tier partnership will be treated as engaged in the trade or business of the lower-tier partnership.
(8)
(9)
(10)
(ii)
(A) Set forth the name, address, and tax identification number of the partnership making the election;
(B) Contain a representation that the partnership is eligible to make the election; and
(C) Contain a declaration that the partnership elects to be treated as an electing investment partnership.
(iii)
(iv)
(B)
(v)
(B)
(11)
(A) The name, address, and tax identification number of the transferor;
(B) The name, address, and tax identification number of the transferee (if ascertainable);
(C) The name of the electing investment partnership;
(D) The date of the transfer (and, in the case of the death of a partner, the date of the death of the partner);
(E) The amount of loss, if any, recognized by the transferor on the transfer of the interest, together with the computation of the loss;
(F) The amount of losses, if any, recognized by any prior transferors to the extent the losses were subject to disallowance under paragraph (n)(2) of this section in the hands of a prior transferee and have not been offset by prior loss disallowances under paragraph (n)(2) of this section; and
(G) Any other information necessary for the transferee to compute the amount of loss disallowed under paragraph (n)(2) of this section.
(ii)
(iii)
(iv)
(12)
(ii)
(A) A statement that the partnership has elected to be treated as an electing investment partnership;
(B) A statement that, unless the transferor partner recognizes a gain on the transfer and no prior transferor recognized a loss on any transfer, if a partner transfers an interest in the partnership to another person, the transferor partner must, within 30 days after receiving a Schedule K-1 from the partnership for the taxable year that includes the date of the transfer, provide the transferee with certain information, including the amount, if any, of loss that the transferor recognized on the transfer of the partnership interest, and the amount of losses, if any, recognized by prior transferors with respect to the same interest; and
(C) A statement that if an interest in the partnership is transferred to a transferee partner, the transferee is required to reduce its distributive share of losses from the partnership, determined without regard to gains from the partnership, to the extent of any losses recognized by the transferor partner when that partner transferred the partnership interest to the transferee (and to the extent of other losses recognized on prior transfers of the same partnership interest that have not been offset by prior loss disallowances). The statement must also notify the transferee that it is required to reduce its share of losses as reported to the transferee by the partnership each year by the amount of any loss recognized by the transferor partner (or any prior transferor to the extent not already offset by prior loss disallowances) until the transferee has reduced its share of partnership losses by the total amount of losses required to be disallowed. Finally, the statement must state that if the transferor partner (or its nominee), or its legal representative in the case of a transfer by death, fails to provide the transferee with the required statement, the transferee must treat all losses allocated from the partnership as disallowed unless the transferee obtains, from the partnership or otherwise, the information necessary to determine the proper amount of losses disallowed.
(o)
(2)
(p)
The revisions and addition read as follows:
(b) * * *
(5)
(ii)
(B)
(C)
(iii)
(B)
(C)
(D)
(iv)
* * *
* * *
—(i) A is a one-third partner in UTP, a partnership, which has a valid election in effect under section 754. The three partners in UTP have equal interests in the capital and profits of UTP. UTP has three assets with the following adjusted bases and fair market values:
LTP, a partnership, has a section 754 election in effect for the year of the distribution. LTP owns three assets with the following adjusted bases and fair market values:
UTP distributes its interest in LTP in redemption of A's interest in UTP. At the time of the distribution, A's adjusted basis in its UTP interest is $140. A recognizes no gain or loss on the distribution. Under section 732(b), A's basis in the distributed LTP interest is $140. Under sections 734(b) and 755, UTP increases its adjusted basis in Intangible 1 by $50, the amount of the basis adjustment to the LTP interest in the hands of A.
(ii) The amount of the basis adjustment with respect to LTP under section 743(b) is the difference between A's basis in LTP of $140 and A's share of the adjusted basis to LTP of partnership property. A's share of the adjusted basis to LTP of partnership property is equal to the sum of A's share of LTP's liabilities of $0 plus A's interest in the previously taxed capital of LTP of $190 ($200, A's cash on liquidation, increased by $120, the amount of tax loss allocated to A from the sale of Intangible 2 in the hypothetical transaction, decreased by $130, the amount of tax gain allocated to A from the sale of Intangible 3 in the hypothetical transaction). Therefore, the amount of the negative basis adjustment under section 743(b) to partnership property is $50.
(iii) Under this paragraph (b)(5), LTP must allocate $50 of A's negative basis adjustment between capital gain property and ordinary income property in proportion to, and to the extent of, the gross loss (including any remedial allocations under § 1.704-3(d)) that would be allocated to A from the hypothetical sale of all property in each class. If LTP disposed of its assets in a hypothetical sale, A would be allocated $120 of gross loss from Intangible 2 only. Accordingly, the $50 negative adjustment must be allocated to capital assets. Under paragraph (b)(5)(iii)(B) of this section, the $50 negative adjustment must be allocated to the assets in the capital class first to properties with unrealized depreciation in proportion to the transferee's shares of the respective amounts of unrealized depreciation. Thus, the $50 negative adjustment must be allocated entirely to Intangible 2.
—(i) A is a one-third partner in LTP, a partnership that has made an election under section 754. The three partners in LTP have equal interests in the capital and profits of LTP. LTP has two assets: accounts receivable with an adjusted basis of $300 and a fair market value of $240 and a nondepreciable capital asset with an adjusted basis of $60 and a fair market value of $240. A contributes its interest in LTP to UTP in a transaction described in section 721. At the time of the transfer, A's basis in its LTP interest is $150. Under section 723, UTP's basis in its interest in LTP is $150.
(ii) The amount of the basis adjustment under section 743(b) is the difference between UTP's $150 basis in its LTP interest and UTP's share of the adjusted basis to LTP of LTP's property. UTP's share of the adjusted basis to LTP of LTP's property is equal to the sum of UTP's share of LTP's liabilities of $0 plus UTP's interest in the previously taxed capital of LTP of $120 ($160, the amount of cash on liquidation, increased by $20, the amount of tax loss allocated to UTP from the hypothetical transaction, and decreased by $60, the amount of tax gain allocated to UTP from the hypothetical transaction). Therefore, the amount of the negative basis adjustment under section 743(b) to partnership property is $30.
(iii) The total amount of gross loss that would be allocated to UTP from the hypothetical sale of LTP's ordinary income property is $20 (one third of the excess of the basis of the accounts receivable ($300) over their fair market value ($240)). The hypothetical sale of LTP's capital gain property would result in a net gain. Therefore, under this paragraph (b)(5), $20 of the $30 basis adjustment must be allocated to ordinary income property. Because LTP holds only one ordinary income property, the $20 decrease must be allocated entirely to the accounts receivable. Pursuant to paragraph (b)(5)(ii)(C) of this section, the remaining $10 basis adjustment must be allocated between ordinary income property and capital gain property according to UTP's share of the adjusted bases of such properties. Therefore, $8 ($10 multiplied by $80 divided by $100) would be allocated to the accounts receivable and $2 ($10 multiplied by $20 divided by $100) would be allocated to the nondepreciable capital asset. * * *
(e)
(A) No allocation may be made to stock in a corporation (or any person related (within the meaning of sections
(B) Any amount not allocable to stock by reason of paragraph (c)(1) of this section shall be allocated under section 755(a) to other partnership property.
(2)
A, B, and C are equal partners in PRS, a partnership. C is a corporation. The adjusted basis and fair market value for each of their interests in PRS are $100. PRS owns Capital Asset 1 with an adjusted basis of $0 and a fair market value of $100, Capital Asset 2 with an adjusted basis of $150 and a fair market value of $50, and stock in Corp, a corporation that is related to C under section 267(b), with an adjusted basis and fair market value of $150. PRS has a section 754 election in effect. PRS distributes Capital Asset 1 to A in liquidation of A's interest in PRS. PRS will reduce the basis of its remaining assets under section 734(b) by $100, to be allocated under section 755. The entire adjustment is allocated to Capital Asset 2, reducing its basis by $100 to $50. Pursuant to the general rule of paragraph (c) of this section, PRS would reduce the basis of Capital Asset 2 by $50 and the stock of Corp by $50. However, Pursuant to paragraph (e)(1)(A) of this section, the basis of the Corp stock is not adjusted. Thus, the basis of Capital Asset 2 is reduced by $100 from $150 to $50.
(f)
(2)