Rural Housing Service
Economic Development Administration
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Navy Department
Energy Efficiency and Renewable Energy Office
Federal Energy Regulatory Commission
Trade Representative, Office of United States
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Coast Guard
Transportation Security Administration
U.S. Citizenship and Immigration Services
Fish and Wildlife Service
Land Management Bureau
National Park Service
Alcohol, Tobacco, Firearms, and Explosives Bureau
Antitrust Division
Justice Programs Office
Trade Representative, Office of United States
Committee for the Implementation of Textile Agreements
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
National Archives and Records Administration (NARA).
Final rule.
NARA is revising its regulations relating to reproduction of records and other materials in the custody of the Archivist of the United States. We have determined that it is not appropriate to include in those regulations the reproduction of records of other Federal agencies stored in NARA Federal records centers that are not in our legal custody. This final rule will affect individuals and Federal agencies who request copies of Federal agency records in NARA Federal records centers.
Jennifer Davis Heaps at 301-837-1850 or fax at 301-837-0319.
On February 26, 2007, NARA published an interim final rule (72 FR 8279) for a 60-day public comment period removing records center holdings from our reproduction fee schedule. We received one responsive comment on the interim final rule. Other comments received through
This final rule is not a significant regulatory action for the purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget. As required by the Regulatory Flexibility Act, I certify that this rule will not have a significant impact on a substantial number of small entities because it affects individual researchers. This regulation does not have any federalism implications. This rule is not a major rule as defined in 5 U.S.C. Chapter 8, Congressional Review of Agency Rulemaking.
Archives and records.
Environmental Protection Agency (EPA).
Final rule.
EPA is approving revisions to Kansas' State Implementation Plan (SIP) to include updates to its Prevention of Significant Deterioration (PSD) of Air Quality rule, which incorporate portions of the New Source Review (NSR) program promulgated by the Environmental Protection Agency in December 2002. Specifically, these revisions adopt by reference provisions of 40 CFR 52.21 as in effect July 1, 2004, except for subsections with references to the clean unit exemptions, pollution control projects, and the record keeping provisions for the actual-to-projected-actual emissions applicability test. Kansas did not adopt the latter provisions because of the June 2005 decision by the United States Court of Appeals for the District of Columbia Circuit, which vacated the clean unit exemption and pollution control project provisions and remanded back to EPA the record keeping provisions for the actual-to-projected-actual emissions applicability test. We proposed to approve the revisions on January 31, 2007, and received no comments on the proposal.
This rule is effective on June 28, 2007.
EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2006-0973. All documents in the docket are listed on the
Gina Grier at (913) 551-7078, or by e-mail at
Throughout this document whenever “we”, “us”, or “our” is used, we mean
In order for state regulations to be incorporated into the Federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.
Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.
All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.
The 2002 NSR Reform rules made changes to five areas of the NSR programs. In summary, the 2002 rules: (1) Provide a new method for determining baseline actual emissions; (2) adopt an actual-to-projected-actual methodology for determining whether a major modification has occurred; (3) allow major stationary sources to comply with plant-wide applicability limits (PALs) to consider plant-wide emission changes in order to determine whether or not a significant emission increase has been triggered under the requirements of the major NSR program; (4) provide a new applicability provision for emissions units that are designated clean units; and (5) exclude pollution control projects (PCPs).
After the 2002 NSR Reform rules were finalized and effective, various petitioners challenged numerous aspects of these rules, along with portions of EPA's 1980 NSR rules (45 FR 5276, August 7, 1980). On June 24, 2005, the District of Columbia Circuit Court of Appeals issued a decision on the challenges to the 2002 NSR Reform Rules. See
The Kansas rule was submitted to EPA on July 25, 2006. The submission included comments on the rules made during the state's adoption process, the state's response to comments and other information necessary to meet EPA's completeness criteria.
This rule adopts by reference sections of 40 CFR 52.21 as in effect July 1, 2004, except for subsections with references to the clean unit exemptions, pollution control projects, and the record keeping provisions for the actual-to-projected-actual emissions applicability test. Kansas did not adopt the latter provisions because of the June 24, 2005, District of Columbia Court of Appeals decision.
In this action, we are approving revisions to Kansas' air quality regulation, K.A.R. 28-19-350, entitled Prevention of Significant Deterioration (PSD) of Air Quality, into the SIP. The final action described in this section is identical to the action we proposed in the January 31, 2007, notice of proposed rulemaking (72 FR 4472). The rationale for this action is described in more detail in the proposal. EPA received no comments on the proposal. This SIP amendment incorporates by reference the Federal PSD program in 40 CFR 52.21, including the 2002 NSR Reform rules, except for subsections with references to the clean unit exemptions, pollution control projects, and the recordkeeping provisions for the actual-to-projected-actual emissions applicability test.
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. In addition, as explained above and in more detail in the proposed rule, EPA believes that the revisions meet the substantive SIP requirements of the CAA, including section 110 and implementing regulations.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this final action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This final 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 final 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 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
This final rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This final 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
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 SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the 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 final rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule 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 July 30, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
(c) * * *
Department of Energy.
Final rule.
The Department of Energy (DOE) is amending the Department of Energy Acquisition Regulation (DEAR) to remove clauses concerning simplified acquisition procedures and facilities management contracting and to add a clause addressing work authorization. This rule also revises associated regulatory coverage, as necessary.
Sandra Cover at (202) 287-1344 or
On July 29, 2005, DOE published in the
DOE received comments from interested parties and based upon our review and consideration DOE issues a final rule that: (1) Deletes DEAR 913.4, Fast Payment Procedure; (2) adds DEAR 970.5211-1, Work authorization, with prescriptive language at 970.1170-1 and a contract clause instruction at DEAR 970.1170-2; and (3) deletes DEAR 970.5237-2, Facilities Management System, and the corresponding instruction at DEAR 970.37, Facilities management contracting.
The proposed changes to DEAR 909.406, Debarment; DEAR 970.5204-2, Laws, Regulations, and DOE Directives', and DEAR 970.5223-1, Integration of Environment, Safety, and Health into Work Planning and Execution are withdrawn after reviewing comments and further consideration.
DOE received three comments concerning the proposal to amend DEAR 909.406-2, the Debarment clause. The proposed amendment would have permitted the debarring officials to debar a contractor if it was established by a preponderance of evidence that the contractor falsely self-certified itself as falling into one of the business categories aided by the Small Business Administration Act. The commenters argued that the proposed rule is not a technical amendment and could harm the small business community. Commenters further argued that Congress vested Small Business Administration (SBA) with exclusive jurisdiction to determine small business size standards and eligibility. Current SBA regulations contain size rules, which differ depending on whether a company is subject to employee-based size standards or revenue-based size standards. Because small businesses self-certify their size, SBA affiliation determinations are made after the fact, and there is a risk of erroneous self-certification. Therefore, it was argued, the proposed rule could result in debarment of small businesses that unintentionally misrepresented their size status.
DOE has further considered the proposed revisions to clauses DEAR 970.5204-2, Laws, Regulations, and DOE Directives and DEAR 970.5223-1, Integration of Environment, Safety and Health into Work Planning and Execution, and decided not to promulgate the proposed revisions. After, further considering the proposed revisions, DOE has decided to retain the current clauses.
DOE is amending the DEAR as follows:
1. DEAR subpart 913.4, Fast Payment Procedure, is deleted in its entirety. DEAR 913.402 currently prohibits the use of fast payment procedures. Upon review of DOE's policy and the FAR, DOE has determined that FAR coverage in subpart 13.4, Fast Payment Procedure, is adequate to protect the DOE interests. DOE will now use fast payment procedures under FAR 13.4.
2. A new section 970.1170, Work authorization, is added. It consists of DEAR 970.1170-1, Policy, and 970.1170-2, Contract provision.
3. DEAR 970.5211-1, Work authorization, is added. This clause incorporates requirements that are presently located in the contractor requirements document attached to Directive DOE O 412.1A, Work Authorization System. That Order establishes an assignment and control process for budget of estimated costs, description of work, and schedule of performance, and for individual work activities performed by designated contractors within the contract scope of work. The DEAR clause eliminates the need for a contractor requirements document.
4. DEAR 970.5237-2, Facilities management, and the corresponding instruction at DEAR 970.37, Facilities Management Contracting, are deleted. They currently provide guidance concerning site development planning, design criteria, energy management, and subcontract requirements. DOE has decided that other DOE directives, such as DOE O 430.1B, Real Property Asset Management, already provide sufficient guidance.
Today's regulatory action has been determined not to be a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” (58 FR 51735, October 4, 1993). Accordingly, this rulemaking is not subject to review under that Executive Order by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB).
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires
The Regulatory Flexibility Act (5 U.S.C. 601
DOE has reviewed today's rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. While rule requirements may flow down to subcontractors in certain circumstances, the costs of compliance are not estimated to be large and, in any event, would be reimbursable expenses under the contract or subcontract. On the basis of the foregoing, DOE certifies that this rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE's certification and supporting statement of factual basis will be provided to the Chief Counsel for Advocacy of the Small Business Administration pursuant to 5 U.S.C. 605(b).
This rulemaking contains information collection requirements associated with the contract clause Work authorization at 970.5211-1. The information collection requirements were forwarded to OMB under the Paperwork Reduction Act (44 U.S.C. 3501
DOE has concluded that promulgation of this rule falls into a class of actions which would not individually or cumulatively have significant impact on the human environment, as determined by DOE's regulations (10 CFR part 1021, subpart D) implementing the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321
Executive Order 13132 (64 FR 43255, August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. The Executive Order requires agencies to have an accountability process to ensure meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations (65 FR 13735). DOE has examined today's rule and has determined that it does not preempt State law and does 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. No further action is required by Executive Order 13132.
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104(4) generally requires a Federal agency to perform a written assessment of costs and benefits of any rule imposing a Federal Mandate with costs to State, local or tribal governments, or to the private sector, of $100 million or more. This rulemaking would only affect private sector entities, and the impact is less than $100 million.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a Family Policymaking Assessment for any rulemaking or policy that may affect family well-being. This rulemaking will have no impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, (66 FR 28355, May 22, 2001) requires Federal agencies to prepare and submit to OIRA, of the OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today's rule is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.
The Treasury and General Government Appropriations Act., 2001 (44 U.S.C. 3516, note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
As required by 5 U.S.C. 801, the Department will report to Congress promulgation of this rule prior to its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(3).
Issuance of this rule has been approved by the Office of the Secretary.
Government procurement.
42 U.S.C. 7101
42 U.S.C. 2201, 2282a, 2282b, 2282c; 42 U.S.C. 7101
Each contract for the management and operation of a DOE site or facility, and other contracts designated by the DOE or NNSA Procurement Executive, must contain a scope of work section that describes, in general terms, work planned and/or required to be performed. Work to be performed under the contract shall be assigned through the use of a work authorization to control individual work activities performed within the scope of work. Work authorizations must be issued prior to the commencement of the work and incurrence of any costs.
The Contracting Officer shall insert the clause at 48 CFR 970.5211-1, Work authorization, in each solicitation and contract for the management and operation of a DOE site or facility and in other contracts designated by the DOE or NNSA Procurement Executive.
As prescribed in 970.1170-2, insert the following clause:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
National Highway Traffic Safety Administration (NHTSA), DOT.
Final rule.
This rule amends certain provisions of the early warning reporting rule published pursuant to the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act. The amendments modify and clarify some of the manufacturers' reporting requirements under the rule. The rule identifies a subclass of field reports referred to as product evaluation reports and eliminates the requirement that manufacturers submit copies of them to the agency, revises the definition of fire, and limits the time period for required updates to a few data elements in reports of deaths and injuries.
Petitions for reconsideration should refer to the docket number above and be submitted to: Administrator, Room 5220, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590.
The following persons at the National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590.
This rule completes the first phase of NHTSA's review and update of the early warning reporting (EWR) rule, as required under 49 U.S.C. 30166(m)(5). As explained below, this rule amends certain EWR reporting requirements. Some changes enhance the early warning program by eliminating provisions for submissions of information that have not been valuable to NHTSA in identifying possible defect trends in motor vehicles and motor vehicle equipment. Other changes provide for more focused reporting. Overall, this rule reduces burdens on the agency to review EWR information that has not advanced our mission in identifying potential defects and facilitates our focus on more probative information. It will also reduce the reporting burden on manufacturers. It does not change the basic structure of the early warning reporting program.
In general, the EWR rule requires certain vehicle and equipment manufacturers to submit to NHTSA numerical tallies on property damage claims, consumer complaints, warranty claims and field reports, which are collectively known as EWR aggregate data, and copies of certain field reports. 49 CFR part 579, subpart C. As originally promulgated, the EWR rule excluded a subset of reports known as dealer field reports from the requirement to submit copies of field reports. Today's rule denominates another subset of field reports known as “product evaluation reports” and eliminates the requirement that manufacturers submit copies of them to NHTSA. In general, product evaluation reports are evaluations by manufacturers' employees who as part of a program fill out evaluations of the vehicles provided to them for personal use.
Second, this rule amends the definition of fire that applies across the EWR program. Manufacturers are required to submit aggregate data subcategorized by specified systems and components and to report whether it involved a fire. They are also required to provide field reports involving fires. The regulatory definition of fire includes fires and precursors of fires and includes illustrative examples of phenomena within the latter category. The final rule amends the definition of a fire to eliminate two illustrative examples of precursors of fire—the terms “sparks” and “smoldering”—and adds one term, “melt”, to the definition.
Last, the EWR rule requires manufacturers to submit reports of incidents involving death or injury, and to update these reports to include missing vehicle identification numbers (VINs), tire identification numbers (TINs) and codes on systems or components that allegedly contributed to the incident and whether the incident involved a fire or rollover, if this information is later identified by the manufacturer. This final rule temporally limits the requirement to submit updates of the missing VIN/TIN or components on incidents of death or injury to a period of no more than one year after NHTSA receives the initial report.
In November 2000, Congress enacted and the President signed the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act, Public Law 106-414, which was, in part, a response to the controversy surrounding the recall of certain tires that had been involved in numerous fatal crashes. Up until that time, in its efforts to identify safety-related defects in motor vehicles and equipment, NHTSA relied primarily on its analysis of complaints from consumers and technical service bulletins from manufacturers. Congress concluded that NHTSA did not have access to data that may have provided an earlier warning of the safety defects that existed in the tires that were eventually recalled. Accordingly, the TREAD Act included a requirement that NHTSA prescribe rules establishing early warning reporting requirements.
In response to the TREAD Act requirements, NHTSA issued rules (49 CFR part 579; 67 FR 45822; 67 FR 63295) that, in addition to the information motor vehicle and equipment manufacturers were already required to provide, required that they provide certain additional information on foreign recalls and early warning indicators. The rules require:
• Monthly reporting of manufacturer communications (e.g., notices to distributors or vehicle owners, customer satisfaction campaign letters, etc.) concerning defective equipment or repair or replacement of equipment;
• Reporting (within five days of a determination to take such an action) of information concerning foreign safety recalls and other safety campaigns in foreign countries; and
• Quarterly reporting of early warning information: Production information; information on incidents involving death or injury; aggregate data on property damage claims, consumer complaints, warranty claims, and field reports; and copies of field reports (other than dealer reports) involving specified vehicle components, a fire, or a rollover.
We use the term “Early Warning Reporting” (EWR) here to apply to the requirements in the third category above, which are found at 49 CFR part 579, subpart C. As described more fully below, the requirements vary somewhat depending on the nature of the reporting entity (motor vehicle manufacturers, child restraint system manufacturers, tire manufacturers, and other equipment manufacturers) and the annual production of the entity.
EWR reporting was phased in. The first quarterly aggregate EWR reports were submitted on about December 1, 2003. However, actual copies of field reports were first submitted on about July 1, 2004. 68 FR 35145, 35148 (June 11, 2003). Accordingly, NHTSA has three years of experience using the EWR information.
The TREAD Act requires NHTSA periodically to review the EWR rule. 49 U.S.C. 30166(m)(5). In previous EWR rulemakings, the agency indicated that we would begin a review of the EWR rule after two full years of reporting experience.
NHTSA is evaluating the EWR rule in two phases. The first phase covers the definitional issues that are addressed in this document. We were able to evaluate these issues within a short period of time based on available information and based on the comments we received in response to the September 1, 2006 Notice of Proposed Rulemaking (NPRM), 71 FR 52040.
The second phase of our evaluation will address issues that require more analysis than those addressed in the first phase. For example, in the second phase we expect to evaluate whether there is a need to adjust any of the reporting thresholds and whether any categories of aggregate data should either be enhanced or eliminated. With regard to the specific categories of aggregate data (e.g., data concerning light vehicles), we expect to address whether the information being provided has had or may reasonably have value in the future in terms of helping identify defects and, if not, how the requirement might be adjusted to provide such value. These tasks will require considerable time, but we want to ensure that any significant changes in EWR requirements, or decisions not to make such changes, are based on sound analysis. We anticipate that the agency's internal evaluation of phase two issues will be completed in the latter part of 2007 and that a
On July 10, 2002, NHTSA published a rule implementing the early warning reporting provisions of the TREAD Act, 49 U.S.C. 30166(m). 67 FR 45822. The rule requires certain motor vehicle manufacturers and motor vehicle equipment manufacturers to report information and submit documents to NHTSA's Office of Defects Investigation (ODI) that could be used to identify potential safety-related defects. Thereafter, in response to petitions for reconsideration, NHTSA amended the EWR rule.
The EWR regulation divides manufacturers of motor vehicles and motor vehicle equipment into two groups with different reporting responsibilities for reporting information. The first group consists of (a) larger vehicle manufacturers (manufacturers of 500 or more vehicles annually) that produce light vehicles, medium-heavy vehicles and buses, trailers and/or motorcycles; (b) tire manufacturers that produce over a certain number per tire line; and (c) all manufacturers of child restraints. The first group must provide comprehensive reports. 49 CFR 579.21-26. The second group consists of smaller vehicle manufacturers (e.g., manufacturers of fewer than 500 vehicles annually) and all motor vehicle equipment manufacturers other than those in the first group. The second group has limited reporting responsibility. 49 CFR 579.27.
On a quarterly basis, manufacturers in the first group must provide comprehensive reports for each make and model for the calendar year of the report and nine previous model years. Tire and child restraint manufacturers must provide comprehensive reports for the calendar year of the report and four previous model years. Each report is subdivided so that the information on each make and model is provided by specified vehicle systems and components. The vehicle systems or components on which manufacturers provide information vary depending upon the type of vehicle or equipment manufactured.
In addition to the systems and components reported by light vehicle manufacturers, medium-heavy vehicle and bus manufactures must report on the following systems or components: service brake system air, fuel system diesel, fuel system other and trailer hitch.
Motorcycle manufacturers report on thirteen (13) systems or components: steering, suspension, service brake system, engine and engine cooling system, fuel system, power train, electrical, exterior lighting, structure, vehicle speed control, tires, wheels and fire.
Trailer manufacturers report on twelve (12) systems or components: suspension, service brake system-hydraulic, service brake system-air, parking brake, electrical system, exterior lighting, structure, latch, tires, wheels, trailer hitch and fire.
Child restraint and tire manufacturers report on fewer systems or components for the calendar year of the report and four previous model years. Child restraint manufacturers must report on four (4) systems or components: buckle and restraint harness, seat shell, handle and base. Tire manufacturers must report on four (4) systems or components: tread, sidewall, bead and other.
In general (not all of these requirements apply to manufacturers of child restraints or tires), manufacturers that provide comprehensive reports must provide information relating to:
• Production (the cumulative total of vehicles or items of equipment manufactured in the year)
• Incidents involving death or injury based on claims and notices received by the manufacturer
• Claims relating to property damage received by the manufacturer
• Consumer complaints (a communication by a consumer to the manufacturer that expresses dissatisfaction with the manufacturer's product or performance of its product or an alleged defect)
• Warranty claims paid by the manufacturer (in the tire industry these are warranty adjustment claims)
• Field reports (a communication by an employee or representative of the manufacturer concerning the failure, malfunction, lack of durability or other performance problem of a motor vehicle or item of motor vehicle equipment).
Most of the provisions summarized above (i.e., property damage claims, consumer complaints, warranty claims and field reports) require manufacturers to submit information in the form of
In contrast to the comprehensive reports provided by manufacturers in the first group, the second group of manufacturers reports only incidents relating to death and any injuries associated with the reported death incident.
All of the EWR information NHTSA receives is stored in a database called ARTEMIS (which stands for Advanced Retrieval, Tire, Equipment, and Motor Vehicle Information System), which also contains additional information (e.g., recall details and complaints filed directly by consumers) related to defects and investigations.
The September 1, 2006 NPRM proposed to create an exception to the requirement to submit copies of field reports that must be sent to NHTSA. We proposed to eliminate the requirement that manufacturers would submit a class of field reports denominated as “product evaluation reports” to NHTSA. We also proposed a definition for product evaluation type field reports. We did not propose to eliminate the requirement that manufacturers covered by the rule include in their quarterly submissions on field reports the numbers of product evaluation field reports received.
We also proposed to amend the regulatory definition of “fire.” The regulatory definition of fire includes fires and precursors of fires and illustrative examples of such precursors. We proposed to change the definition of a fire to eliminate two illustrative examples of precursors of fire—the terms “sparks” and “smoldering”—and add one term, “melt”, to the definition.
In addition, our NPRM included a proposal to amend the scope of a category of components addressed in reports the medium-heavy and bus vehicle category. We proposed to change the category “Fuel System Other” to “Fuel System Other/Unknown”. We anticipated that this expanded category would include vehicles for which the type of fuel system in the vehicle is not known.
Further, for reports on incidents involving a death or an injury, the NPRM proposed to limit the time period in which manufacturers are required to update missing vehicle identification numbers (VINs), tire identification numbers (TINs) and codes indicating systems or components that allegedly contributed to an incident and whether the incident involved a fire or rollover, if this information is later identified by the manufacturer. We proposed to limit the requirement to submit updates to a period of no more than one year after NHTSA receives the initial report.
Finally, in the preamble to the NPRM, we noted that the scope of this rulemaking was limited to those issues proposed by the NPRM and any logical outgrowths of those proposals. We specifically noted that we planned to evaluate the reporting threshold issue, and other issues, in the second phase of our evaluation.
In response to the NPRM, we received comments from several sources. In general, the industry commenters supported the minor adjustments to the definitions in the proposal, with some exceptions. Motor vehicle manufacturers and associated trade organizations that commented were the Alliance of Automobile Manufacturers (Alliance), Association of International Automobile Manufacturers (AIAM), Harley-Davidson Motor Company (Harley-Davidson), Motorcycle Industry Council (MIC), Motor & Equipment Manufacturers Association (MEMA), National Truck Equipment Associated (NTEA)
We also received comments from consultants Safety Research & Strategies, Inc. (SRS) and Quality Control Systems Corporation (QCS). While SRS and QCS did not oppose the proposed amendments in the NPRM, they commented that NHTSA should delay any changes to the EWR rule until EWR data is available for review by the public.
The EWR regulation requires manufacturers of light vehicles, medium-heavy vehicles and buses, motorcycles, trailers and child restraint systems to submit numerical tallies of field reports and submit copies of certain field reports. 49 CFR 579.21(d), 579.22(d), 579.23(d), 579.24(d) and 579.25(d).
The NPRM identified another subcategory of field reports referred to as “product evaluations” that the agency proposed to treat in the same manner as dealer field reports. We proposed to define product evaluation report as follows:
Comments were submitted by the AIAM, Alliance, Harley-Davidson, MIC, QCS, SRS and TMA. AIAM, Harley-Davidson, MIC and TMA supported the proposed change to the reporting requirement and the definition of product evaluation report as written. The Alliance agreed with eliminating the requirement that manufacturers submit copies of product evaluation reports to the agency, but proposed an alternate definition for product evaluation report. QCS and SRS noted the proposed changes the EWR rule regarding product evaluations and recommended that the agency delay any changes until the public had an opportunity to review the EWR data.
The Alliance focused in part on the clause “a manufacturer's employee who is required to submit the report * * * as a condition of the employee's personal use.” The Alliance stated that not all product evaluation reports are required by manufacturers (some are merely requested rather than formally required) and that the exclusion of them from the general requirement that copies of field reports be submitted turns on the lack of technical content in the reports, rather than the existence of a manufacturer's requirement that employees submit them to the manufacturer. In addition, the Alliance addressed the clause “has no responsibility with respect to engineering or technical analysis of the subjects mentioned in the report.” This language, according to the Alliance, would require manufacturers to determine whether the employee who submitted the report had duties that “coincidentally related” to one of the subject areas addressed in the report before determining whether to submit the product evaluation report to NHTSA. Such language, therefore, would increase the manufacturers' reporting burden. To address its concerns, the Alliance suggested that the definition of product evaluation report be changed to read:
We agree with the Alliance's view that it is the limited technical content in product evaluations, rather than an internal corporate reporting requirement, that warrants their exclusion from the requirement that manufacturers submit copies of them to the agency. In other words, the fact that a report was merely requested from the employee but not required should not determine whether it is a product evaluation report. Thus, we are eliminating the phrases “is required to submit” and “as a condition of” from the definition we proposed and replacing them with, respectively, the word “submitted” and the phrase “as a part of”.
While we agree in part with some of the Alliance's concerns regarding burdens associated with the phrase the employee “has no responsibility with respect to engineering or technical analysis of the subjects mentioned in the report,” we do not agree that the solution is simply to eliminate it. We remain concerned that, were we to simply drop that language, the exclusion could be misapplied such that the manufacturer would not submit reports by employees who have actually been assigned to perform technical or engineering evaluation of a known or suspected problem with the vehicle. Such reports have technical merit and should not be excluded from EWR reporting merely because such employees submit such reports while the vehicle is available for the employee's personal use.
To preclude this, we believe that the revised definition should make clear that it does not cover reports by employees who have been granted personal use of a vehicle or child restraint system for the specific purpose of performing technical or engineering evaluation of a known or suspected problem with vehicle or child restraint system (CRS), even if such employees use the vehicle or CRS as part of a broader manufacturer program authorizing personal use. The burden that would be imposed by the language contained in the proposed rule, as the Alliance persuasively explained in its comments, would be to try to determine “whether a particular evaluation report regarding a particular vehicle was submitted by an employee whose duties might be coincidentally related to one of the subject areas addressed in the report.” The proposed language would have required the manufacturer to look for matches between the range of an employee's duties and the range of issues covered in a product evaluation report.
At the same time, the Alliance recognizes that NHTSA has a legitimate need for “a technical or analytical report undertaken in response to a consumer complaint or some other indication of a potential problem.” What NHTSA is trying to ensure is that it does not lose access to such reports (which are likely to have technical value) that might be prepared in connection with the employee's personal use of the vehicle or CRS.
Accordingly, we have amended the definition to make this clear. Manufacturers could objectively apply this with a very limited additional burden, if any. While the proposed definition would have required the manufacturer to look for any commonalities between an employee's full range of duties and the issues covered in the evaluation report, the final rule definition does not impose that burden. Manufacturers certainly know what vehicles or equipment have been made available for personal use and whether the employee who has been granted that personal use has also been assigned the duty to provide a technical or engineering assessment of a known or suspected problem with that vehicle or equipment. This could occur either as part of a broad manufacturer program permitting personal use or a separate program in which technical personnel are granted personal use to assist his or her analysis of a particular problem. If a manufacturer never authorizes personal use of a vehicle or child restraint system by an employee to facilitate an employee's technical analysis of a previously known or suspected problem with that particular vehicle or system, this definition will present no burden at all. Similarly, if a manufacturer has completely separate programs involving personal use for product evaluation purposes and personal use to facilitate technical analysis of a particular issue, the manufacturer's existing distinctions between these programs mirror the new definition. If, however, a manufacturer
Therefore, we are adopting the following definition:
The EWR regulation requires manufacturers of light vehicles, medium-heavy vehicles and buses, motorcycles and trailers to include in EWR reports incidents involving fires, as well as the underlying component or system where it originated if included in specified reporting elements. 49 CFR 579.21-24. The EWR regulation defines fire as:
Combustion or burning of material in or from a vehicle as evidence [sic] by flame. The term also includes, but is not limited to, thermal events and fire-related phenomena such as smoke, sparks, or smoldering, but does not include events and phenomena associated with a normally functioning vehicle, such as combustion of fuel within an engine or exhaust from an engine.
The Alliance and TMA initially requested that we amend the fire definition because, in their view, it is inappropriately broad.
Following our consideration of this request, in the NPRM, we proposed to amend the fire definition to read:
Fire means combustion or burning of material in or from a vehicle as evidenced by flame. The term also includes, but is not limited to, thermal events and fire-related phenomena such as smoke and melting, but does not include events and phenomena associated with a normally functioning vehicle such as combustion of fuel within an engine or exhaust from an engine.
Harley-Davidson and the MIC agreed with the proposed definition. However, the Alliance, TMA and MEMA objected to the proposed definition. They commented that the proposed definition of fire would not alleviate the burden associated with the current fire definition. In their view, the terms used to describe precursors to fire in the proposed definition will increase the number of reports that manufacturers will have to review, potentially increasing the number of irrelevant reports to NHTSA. In addition, the Alliance commented that the changed definition may require some manufacturers to reprogram their text mining applications used in preparing EWR reports, thus increasing costs. However, none of the commenters that objected to the proposed definition offered an alternative definition, other than the one initially recommended by the Alliance, which we addressed in the NPRM. The Alliance, TMA and MEMA requested that NHTSA not adopt the proposed definition at this time.
We have decided to adopt the amended fire definition as proposed. Our review of fire-related field reports
There may be a small, one-time burden on manufacturers associated with this amendment. The burden would arise in the formulation of amendments to the manufacturers' text mining tools so that the search function utilized by manufacturers captures the additional term “melt”, if not already included. After adjusting the text mining tools, however, the burden in reporting fires under the new definition should be comparable to the burden under the definition that has applied to date. This follows from the structure of the definition of fire. Both before and after the amendments being adopted today, the first sentence and opening clause of the second sentence of the definition of fire provided that it means “combustion or burning of material in or from a vehicle as evidenced by flame. The term also includes, but is not limited to, thermal events and fire-related phenomena such as smoke * * * ” Following the words “such as”, the words “smoke”, “sparks” and “smoldering” under the initial definition in the EWR rule and “smoke” and “melt” under the new definition are illustrative examples of “thermal events” and fire-related phenomena and are not all-inclusive terms. That phrase has required and continues to require a good faith review of fire-related reports to determine if the incident is within the scope of the fire definition. Of course, there is a burden associated with such a review, but the manufacturers have not shown that it would increase beyond this potential one-time text mining change.
The EWR regulation requires manufacturers of medium-heavy vehicles and buses (MHB) to report the numbers of property damage claims, consumer complaints, warranty claims and field reports (aggregate data) regarding brake systems separately depending on the type of brake system. The types of brake systems identified by the EWR regulation are: “03 service brake system, hydraulic”; and “04 service brake system, air”. 49 CFR 579.22(b)(2), (c). Similarly, MHB manufacturers must report EWR aggregate data on fuel systems separately depending on the type of systems. The types of fuel systems identified by the EWR regulation are: “07 fuel system, gasoline, 08 fuel system, diesel, and 09 fuel system, other”. Id.
The Alliance and TMA initially raised concerns of incorrect binning of reports in the MHB brake and fuel systems subcategories because of the inability to identify the particular brake or fuel system in documents on some vehicles. They placed claims and complaints on vehicles with unknown brake systems or fuel systems in the EWR component category with the most vehicle production, which they observed leads to comparisons that might not be accurate. They recommended that the two brake systems be combined into “Service Brake System” and the three fuel systems be combined into “Fuel System”.
The NPRM explained that NHTSA is also concerned with the precise binning of the EWR data. Because of our concern, we declined to propose an amendment that combined the subcategories as requested due to the potentially less accurate reporting on MHB models with multiple brake or fuel systems. We stated that there is considerable value in knowing the nature of the underlying brake or fuel system. We pointed out that ODI's investigations related to brake and fuel systems frequently involve only one of the multiple brake or fuel systems offered on a particular model of vehicle. Combining the brake and fuel system categories would have diminished ODI's ability to identify trends because aggregating the data into a single category for brake or fuel systems could mask potential problems in one particular type of brake or fuel system. In addition, we noted that in virtually all of the EWR MHB aggregate data, the vehicle identification number (VIN) identifies the type of brake or fuel system on the vehicle.
In an attempt to improve the accuracy of the data that we are receiving, we proposed to amend the MHB fuel system subcategory. The agency proposed to amend the component category “09 fuel system, other” to “09 fuel systems, other/unknown”. We also requested comment on whether the agency should add new subcategories to one or both of the brake and fuel component categories. The NPRM suggested that by segregating out the unknown fuel systems, the accuracy of the other fuel system categories could increase.
We received comments from the Alliance and TMA on the MHB vehicle brake and fuel subcategory proposals. The Alliance agreed with our view that manufacturers can identify the particular type of brake and fuel systems in vehicles in the MHB category through the VIN in almost all the EWR aggregate data. The Alliance concurred with the agency's view that there is very little chance of inaccurate reporting under the current regulatory structure and recommended that the agency retain the existing system, without change. TMA commented that there is limited potential for erroneous reporting based on the current brake and fuel categories and opposed the proposed changes to the brake and fuel subcategories due to the burden associated with such changes.
We have decided not to adopt the proposed change to the MHB fuel subcategory or to change the MHB brake category. As noted in the NPRM and as the Alliance and TMA recognize, the frequency of inaccurate reporting due to an unknown brake or fuel system on a subject vehicle is very low because the VIN identifies the type of brake or fuel system on the vehicle. Therefore, the potential for inaccurate data and erroneous comparisons within the EWR aggregate data is negligible.
The EWR rule requires manufacturers of light vehicles, medium-heavy vehicles and buses, motorcycles, trailers and child seats and tires to submit information on incidents involving death or injury identified in a notice or claim received by a manufacturer in the specified reporting period. 49 CFR 579.21(b), 579.22 (b), 579.23(b), 579.24(b), 579.25(b) and 579.26(b). For vehicles, these reports include the VIN; for tires they include the tire identification number (TIN). Generally, these reports include the system or component, by codes specified in the rule, that allegedly contributed to the incident. Manufacturers must submit reports on incidents involving death and injury even if they do not know the VIN, TIN or system or component. The EWR regulation requires manufacturers to update their reports on incidents involving death or injury if the manufacturer becomes aware of (i) the VIN/TIN that was previously unknown or (ii) one or more of the specified systems or components that allegedly contributed to the incident. 49 CFR 579.28(f)(2). The requirement to update is unlimited in time.
In the NPRM, we proposed to limit the requirement to update to four calendar quarters or less after the submission of the initial report. Based on over two years of EWR data, after one
The Alliance, AIAM, Harley-Davidson, MIC, RMA and TMA all supported the proposed amendment limiting the requirement to update reports of incidents involving death or injury to a period of no more than one year after NHTSA receives the initial report. We did not receive any comments that opposed the proposal to limit temporally the requirement to update. NHTSA, therefore, is adopting the amendments to 49 CFR 579.28(f)(2)(i) and 49 CFR 579.28(f)(2)(ii) as proposed.
In addition to expressing support for limiting the requirement to update incidents involving death or injury, RMA recommended that manufacturers should have the ability to delete reported claims or notices of injury or death that erroneously included a tire that the manufacturer later learns from the TIN is outside the scope of EWR reporting. RMA contends that while this problem happens infrequently, a correction to the system is necessary to maintain the integrity of the EWR data.
We decline to adopt RMA's recommendation to permit tire manufacturers to delete data from the ARTEMIS database. First, the magnitude of the alleged problem of errors is not significant. RMA noted that it occurs infrequently. ODI is aware of only 12 tire incidents (less than 1 percent of all tire death and injury claims and notices) where the manufacturer initially submitted a death or injury incident in a quarterly report, but later learned that the tire allegedly was outside the reporting requirements of the rule. RMA's suggestion would open the door to questionable data deletions. The EWR data base is electronic; manufacturers transmit data without concurrent review by ODI. If manufacturers were given the ability to delete death and injury incidents, a manufacturer could potentially delete an incident from ARTEMIS without NHTSA knowing why it was deleted. ODI would expend substantial resources to determine which records were deleted from prior submissions and to ascertain the rationale. In addition, RMA's proposal would require a major change to ARTEMIS. Currently, ARTEMIS permits only updates to incidents of death and injury, not the ability to delete data. To change this protocol, NHTSA would have to undergo a costly systems change. We cannot justify the cost of such a change to ARTEMIS protocol when the need to delete an out of scope tire happens so infrequently. Finally, the change that RMA suggests is not within the scope of the agency's proposal, which did not touch on possible deletions from EWR data that have been submitted.
Accordingly, as stated above, NHTSA is adopting the proposal as written. Thus, 49 CFR 579.28(f)(2)(i) will be revised to read:
If a vehicle manufacturer is not aware of the VIN, or a tire manufacturer is not aware of the TIN, at the time the incident is initially reported, the manufacturer shall submit an updated report of such incident in its report covering the reporting period in which the VIN or TIN is identified. A manufacturer need not submit an updated report if the VIN or TIN is identified by the manufacturer in a reporting period that is more than one year later than the initial report to NHTSA.
The agency also revises 49 CFR 579.28(f)(2)(ii) to read:
If a manufacturer indicated code 99 in its report because a system or component had not been identified in the claim or notice that led to the report, and the manufacturer becomes aware during a subsequent calendar quarter that one or more of the specified systems or components allegedly contributed to the incident, the manufacturer shall submit an updated report of such incident in its report covering the reporting period in which the involved specified system(s) or component(s) is (are) identified. A manufacturer need not submit an updated report if the system(s) or component(s) is (are) identified by the manufacturer in a reporting period that is more than one year later than the initial report to NHTSA.
The Alliance correctly pointed out that we did not propose any effective date for the proposed amendments to the EWR rule. It suggested that for any changes that relax existing requirements, such as eliminating product evaluation reports, should be made effective immediately upon publication of the final rule. For changes that would require manufacturers to modify their existing EWR databases and/or IT systems, such as amending the fire definition, the Alliance recommended at least twelve (12) months of lead time. The Alliance did not explain why twelve (12) months lead time is necessary for the minor definitional changes proposed in the NPRM.
While lead time associated with changes to EWR reporting was implicitly part of our NPRM, we left it to commenters to provide information and justification. Some lead time is appropriate so manufacturers may modify their existing EWR databases and/or IT systems for the one amendment adopted by this final rule that may require such modifications. Manufacturers will have to modify their EWR databases and/or IT systems due to the amended fire definition. However, we do not believe twelve (12) months is appropriate for such a minor change. The change to the fire definition may require some manufacturers to amend their text-mining tools to include the term “melt”. Some other minor modifications may be necessary. Moreover, manufacturers already review their field reports and aggregate date for incidents related to a fire, which include precursors to fire. Manufacturers should not have to modify their review of fire related incidents due to the adoption of the amended fire definition. Accordingly, the effective date for the amended definition of fire will be for the reporting period beginning on January 1, 2008.
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
Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993) provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines as “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
This document was not reviewed under E.O. 12866 or the Department of Transportation's regulatory policies and procedures. This rulemaking action is not significant under Department of Transportation policies and procedures. The impacts of this final rule are expected to be so minimal as not to warrant preparation of a full regulatory evaluation because this rule would alleviate some of the burden on manufacturers to provide EWR reports by eliminating the requirement to submit copies of product evaluation field reports, modifying the definition of a fire, and temporally limiting the requirement to update reports on incidents of death and injury.
The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601
This final rule would affect all EWR manufacturers, of which there are currently about 540. NHTSA estimates that a majority of these EWR manufacturers are small entities. Therefore, NHTSA has determined that this final rule would have an impact on a substantial number of small entities.
However, NHTSA has determined that the impact on the entities affected by the final rule would not be significant. This final rule eliminates the reporting of product evaluation field reports, revises the definition of fire, and limits the time period for required updates to a few data elements in reports of deaths and injuries. The effect of these changes would be to reduce annual reporting costs to manufacturers. NHTSA expects the impact of the final rule would be a reduction in the paperwork burden for EWR manufacturers. NHTSA asserts that the economic impact of the reduction in paperwork, if any, would be minimal and entirely beneficial to small EWR manufacturers. Accordingly, I certify that this final rule would not have a significant economic impact on a substantial number of small entities.
NHTSA has examined today's final rule pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999). This action would not have “federalism implications” because it would not have “substantial direct effects on 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 section 1 of the Executive Order.
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in expenditures by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted annually for inflation with base year of 1995). The Final Rule implementing EWR did not have unfunded mandates implications. 67 FR 49263 (July 30, 2002). Today's final rule would alleviate some of the burden for manufacturers to provide EWR reports by eliminating the requirement to submit copies of product evaluation field reports, and temporally limiting the requirement to update reports on incidents of death and injury.
With respect to the review of the promulgation of a new regulation, section 3(b) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996) requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement.
NHTSA notes that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceedings before they may file suit in court.
Today's final rule does not create new information collection requirements, as that term is defined by the Office of Management and Budget (OMB) in 5 CFR part 1320. If anything, it reduces the information collection burden of reporting EWR data by manufacturers of motor vehicles and motor vehicle equipment. To the extent that this final rule implicates the Paperwork Reduction Act, we rely upon our previous clearance from OMB. To obtain a three-year clearance for information collection for the EWR rule, NHTSA published a Paperwork Reduction Act notice on April 27, 2005 pursuant to the requirements of that Act (44 U.S.C. 3501
Executive Order 13045 applies to any rule that: (1) Is determined to be “economically significant” as defined under E.O. 12866, and (2) concerns an environmental, health or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by us.
This rulemaking is not economically significant.
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in
Executive Order 12866 requires each agency to write all rules in plain language. In the NPRM, we requested comments regarding our application of the principles of plain language in the proposal. We did not receive any comments on this issue.
Section 515 of the FY 2001 Treasury and General Government Appropriations Act (Pub. L. 106-554, section 515, codified at 44 U.S.C. 3516 historical and statutory note), commonly referred to as the Data Quality Act, directed OMB to establish government-wide standards in the form of guidelines designed to maximize the “quality,” “objectivity,” “utility,” and “integrity” of information that Federal agencies disseminate to the public. As noted in the EWR final rule (67 FR 45822), NHTSA has reviewed its data collection, generation, and dissemination processes in order to ensure that agency information meets the standards articulated in the OMB and DOT guidelines. The changes adopted by today's document would alleviate some of the burden for manufacturers to provide EWR reports by eliminating the requirement to submit copies of product evaluation field reports, modifying the definition of a fire, and temporally limiting the requirement to update reports on incidents of death and injury.
Imports, Motor vehicle safety, Motor vehicles, Reporting and recordkeeping requirements.
49 U.S.C. 30102-103, 30112, 30117-121, 30166-167; delegation of authority at 49 CFR 1.50.
(c)
(d)
(d)
(d)
(d)
(d)
(f) * * *
(2) * * *
(i) If a vehicle manufacturer is not aware of the VIN, or a tire manufacturer is not aware of the TIN, at the time the incident is initially reported, the manufacturer shall submit an updated report of such incident in its report covering the reporting period in which the VIN or TIN is identified. A manufacturer need not submit an updated report if the VIN or TIN is identified by the manufacturer in a reporting period that is more than one year later than the initial report to NHTSA.
(ii) If a manufacturer indicated code 99 in its report because a system or component had not been identified in the claim or notice that led to the report, and the manufacturer becomes aware during a subsequent calendar quarter that one or more of the specified systems or components allegedly contributed to the incident, the manufacturer shall submit an updated report of such incident in its report covering the reporting period in which the involved specified system(s) or component(s) is (are) identified. A manufacturer need not submit an updated report if the system(s) or component(s) is(are) identified by the manufacturer in a reporting period that is more than one year later than the initial report to NHTSA.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS closes the commercial fishery for deep-water grouper (misty grouper, snowy grouper, yellowedge grouper, warsaw grouper, and speckled hind) in the exclusive economic zone (EEZ) of the Gulf of Mexico. NMFS has determined that the deep-water grouper quota for the commercial fishery will have been reached by June 2, 2007. This closure is necessary to protect the deep-water grouper resource.
Closure is effective 12:01 a.m., local time, June 2, 2007, until 12:01 a.m., local time, on January 1, 2008.
Jason Rueter, telephone 727-824-5350, fax 727-824-5308,
The reef fish fishery of the Gulf of Mexico is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. Those regulations set the commercial quota for deep-water grouper in the Gulf of Mexico at 1.02 million lb (463,636 kg) for the current fishing year, January 1 through December 31, 2007.
Under 50 CFR 622.43(a), NMFS is required to close the commercial fishery for a species or species group when the quota for that species or species group is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. Based on current statistics, NMFS has determined that the available commercial quota of 1.02 million lb (463,636 kg) for deep-water grouper will be reached on or before June 2, 2007. Accordingly, NMFS is closing the commercial deep-water grouper fishery in the Gulf of Mexico EEZ from 12:01 a.m., local time, on June 2, 2007, until 12:01 a.m., local time, on January 1, 2008. The operator of a vessel with a valid commercial vessel permit for Gulf reef fish having deep-water grouper aboard must have landed and bartered, traded, or sold such deep-water grouper prior to 12:01 a.m., local time, June 2, 2007.
During the closure, the sale or purchase of deep-water grouper taken from the Gulf EEZ is prohibited and the bag and possession limits specified in 50 CFR 622.39(b) apply to all harvest or possession of deep-water grouper in or from the Gulf EEZ, except that no such bag limits may be possessed aboard a vessel with commercial quantities of Gulf reef fish (
This action responds to the best available scientific information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to close the fishery constitutes good cause to waive the requirements to provide prior notice
This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Raytheon (Beech) Model 400, 400A, and 400T series airplanes. This proposed AD would require modifying the attachment fasteners on the engine cowling panels. This proposed AD results from several reports of loose attachment fasteners found on the engine cowling panels, and subsequently the panels either peeling back or separating from the airplane during flight. We are proposing this AD to prevent failure of the attachment fasteners on the engine cowling panels, which could result in separation of a panel from the airplane, and consequent damage to airplane structure. These conditions could adversely affect continued safe flight and landing of the airplane, or cause injury to people or damage to property on the ground.
We must receive comments on this proposed AD by July 13, 2007.
Use one of the following addresses to submit comments on this proposed AD.
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Contact Raytheon Aircraft Company, Department 62, P.O. Box 85, Wichita, Kansas, 67201-0085, for the service information identified in this proposed AD.
William Griffith, Aerospace Engineer, Airframe and Services Branch, ACE-118W, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas 67209; telephone (316) 946-4116; fax (316) 946-4107.
We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the
We will post all comments we receive, without change, to
You may examine the AD docket on the Internet at
We have received several reports indicating loose attachment fasteners (
We have reviewed Raytheon Service Bulletin SB 54-3788, dated December, 2006. The service bulletin describes procedures for modifying the attachment fasteners on the engine cowling panels. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.
We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in
There are about 757 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 575 airplanes of U.S. registry. The proposed actions would take about 10 work hours per airplane, at an average labor rate of $80 per work hour. Required parts would cost about $400 per airplane. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $690,000, or $1,200 per airplane.
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 have 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 that the 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); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The Federal Aviation Administration (FAA) amends § 39.13 by adding the following new airworthiness directive (AD):
(a) The FAA must receive comments on this AD action by July 13, 2007.
(b) None.
(c) This AD applies to Raytheon (Beech) Model 400, 400A, and 400T series airplanes, certificated in any category; as identified in Raytheon Service Bulletin SB 54-3788, dated December, 2006.
(d) This AD results from several reports of loose attachment fasteners found on the engine cowling panels, and subsequently the panels either peeling back or separating from the airplane during flight. We are issuing this AD to prevent failure of the attachment fasteners on the engine cowling panels, which could result in separation of a panel from the airplane, and consequent damage to airplane structure. These conditions could adversely affect continued safe flight and landing of the airplane, or cause injury to people or damage to property on the ground.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 200 flight hours after the effective date of this AD: Modify the attachment fasteners on the engine cowling panels by doing all the actions in accordance with the Accomplishment Instructions of Raytheon Service Bulletin SB 54-3788, dated December, 2006.
(g)(1) The Manager, Wichita Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all McDonnell Douglas Model MD-11 and MD-11F airplanes and certain Model DC-10-10, DC-10-10F, DC-10-15, DC-10-30 and DC-10-30F (KC-10A and KDC-10), DC-10-40, DC-10-40F, MD-10-10F, and MD-10-30F airplanes. This proposed AD would require rerouting system 3 hydraulic piping, installing new pipe assemblies and unions, and installing redesigned support brackets for the system 3 hydraulic piping. This proposed AD results from a report of damage to the hydraulic system that occurred when pieces of a ruptured tire from the left main landing gear penetrated the wing trailing edge access panel during takeoff. We are proposing this AD to prevent damage to the system 3 hydraulic piping, which could result in loss of the hydraulic system.
We must receive comments on this proposed AD by July 13, 2007.
Use one of the following addresses to submit comments on this proposed AD.
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•
•
•
•
Contact Boeing Commercial Airplanes, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, CA 90846,
Ken Sujishi, Aerospace Engineer, Cabin Safety/Mechanical and Environmental Systems Branch, ANM-150L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; telephone (562) 627-5353; fax (562) 627-5210.
We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the
We will post all comments we receive, without change, to
You may examine the AD docket on the Internet at
We have received a report of damage to the hydraulic system that occurred when pieces of a ruptured tire from the left main landing gear (MLG) penetrated the wing trailing edge access panel during takeoff. During the incident, hydraulic piping routed in the wing trailing edge was damaged, which resulted in the loss of two of the three hydraulic systems. Boeing's analysis of the hydraulic piping for systems 1, 2, and 3, in the area above the left and right wing MLG tires, revealed the need to enhance the protection of the system 3 hydraulic pipes. Rerouting and installing thicker-walled system 3 hydraulic piping in the wing trailing edge areas will enhance the protection of the hydraulic pipes in the event of an MLG tireburst. If not corrected, damage to the system 3 hydraulic piping could result in possible loss of the hydraulic system.
We have reviewed Boeing Alert Service Bulletin DC10-29A147, dated February 9, 2007; and Boeing Alert Service Bulletin MD11-29A068, Revision 1, dated February 9, 2007. The service bulletins describe procedures for rerouting system 3 hydraulic piping, installing new pipe assemblies and unions, and installing redesigned support brackets for the system 3 hydraulic piping. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.
We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously.
There are about 430 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority
We have 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 that the 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); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The Federal Aviation Administration (FAA) amends § 39.13 by adding the following new airworthiness directive (AD):
(a) The FAA must receive comments on this AD action by July 13, 2007.
(b) None.
(c) This AD applies to the following McDonnell Douglas airplanes, certificated in any category:
(1) All Model MD-11 and MD-11F airplanes.
(2) DC-10-10, DC-10-10F, DC-10-15, DC-10-30 and DC-10-30F (KC-10A and KDC-10), DC-10-40, DC-10-40F, MD-10-10F, and MD-10-30F airplanes; as identified in Boeing Alert Service Bulletin DC10-29A147, dated February 9, 2007.
(d) This AD results from a report of damage to the hydraulic system that occurred when pieces of a ruptured tire from the left main landing gear penetrated the wing trailing edge access panel during takeoff. We are issuing this AD to prevent damage to the system 3 hydraulic piping, which could result in loss of the hydraulic system.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 24 months after the effective date of this AD, reroute system hydraulic piping, install new pipe assemblies and unions, and install redesigned support brackets for system 3 hydraulic piping. Do these actions in accordance with the Accomplishment Instructions of McDonnell Douglas Service Bulletin MD11-29A068, Revision 1, dated February 9, 2007 (for Model MD-11 and MD-11F airplanes), or McDonnell Douglas Service Bulletin DC10-29A147, dated February 9, 2007 (for Model DC-10-10, DC-10-10F, DC-10-15, DC-10-30 and DC-10-30F (KC-10A and KDC-10), DC-10-40, DC-10-40F, MD-10-10F, and MD-10-30F airplanes).
(g) Accomplishment before the effective date of this AD of the modification required by paragraph (f) of this AD in accordance with McDonnell Douglas Alert Service Bulletin MD11-29A068, dated January 23, 2007, is acceptable for compliance with the requirements of paragraph (f) of this AD.
(h)(1) The Manager, Los Angeles Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. 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:
The Chromic Acid Anodising (CAA) Lead Fleet Program was established in 1989 to observe corrosion/debonding behaviour of CAA-treated panels. CAA lead fleet includes the inspection of lap joints, circumferential joints, stringers and doublers on selected aircraft.
The findings in combination with analytical corrosion investigations have been analysed by the TC (type certificate) holder and an appropriate inspection program for debonding has been developed.
This airworthiness directive requires inspection of the concerned areas to detect any corrosion and/or debonding which could affect the structural integrity. * * *
The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI.
We must receive comments on this proposed AD by June 28, 2007.
You may send comments by any of the following methods:
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•
•
•
•
You may examine the AD docket on the Internet at
Tom Stafford, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-1622; fax (425) 227-1149.
The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and
This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2006-0369, dated December 12, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
The Chromic Acid Anodising (CAA) Lead Fleet Program was established in 1989 to observe corrosion/debonding behaviour of CAA-treated panels. CAA lead fleet includes the inspection of lap joints, circumferential joints, stringers and doublers on selected aircraft.
The findings in combination with analytical corrosion investigations have been analysed by the TC (type certificate) holder and an appropriate inspection program for debonding has been developed.
This airworthiness directive requires inspection of the concerned areas [including repetitive inspections of certain areas] to detect any corrosion and/or debonding which could affect the structural integrity. * * *
If any discrepancies are found, repair and follow-up actions (additional inspections for debonding and corrosion depth) are required. You may obtain further information by examining the MCAI in the AD docket.
Airbus has issued Service Bulletin A300-53-0378, dated September 4, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. The compliance times for the initial inspections range between 36,800 to 44,600 total flight cycles and between 18 and 20 years since new. The grace period for the initial inspections is 2,000 flight cycles or 2 years, whichever occurs first. The compliance times for the repairs range from before further flight to within 2,000 flight cycles after doing the inspection. The repetitive inspection intervals range from 500 flight cycles to 3 years.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 12 products of U.S. registry. We also estimate that it would take 102 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $97,920, or $8,160 per product.
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); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by June 28, 2007.
(b) None.
(c) This AD applies to Airbus Model A300 series aircraft, certificated in any category, manufacturing serial numbers (MSN) 0105 through 0107, 0116, 0117, 0121, 0123 through 0126, 0128, 0129, 0133 through 0141, 0146 through 0152, 0154 through 0157, 0160, 0163, 0170, 0173, 0175 through 0177, and 0180 through 0183.
(d) Fuselage.
(e) The mandatory continuing airworthiness information (MCAI) states:
The Chromic Acid Anodising (CAA) Lead Fleet Program was established in 1989 to observe corrosion/debonding behaviour of CAA-treated panels. CAA lead fleet includes the inspection of lap joints, circumferential joints, stringers and doublers on selected aircraft.
The findings in combination with analytical corrosion investigations have been analysed by the TC (type certificate) holder and an appropriate inspection program for debonding has been developed.
This airworthiness directive requires inspection of the concerned areas [including repetitive inspections of certain areas] to detect any corrosion and/or debonding which could affect the structural integrity. * * *
If any discrepancies are found, repair and follow-up actions (additional inspections for debonding and corrosion depth) are required.
(f) Unless already done, do the following actions.
(1) Except as provided by paragraphs (f)(2), (f)(3), and (f)(4) of this AD: Do the initial and repetitive inspections (including follow-up actions), as applicable; and do all applicable repairs; of the areas specified in paragraphs (f)(1)(i), (f)(1)(ii), (f)(1)(iii), and (f)(1)(iv) of this AD, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-53-0378, dated September 4, 2006, and within the timescales specified in paragraph 1.E.(2), the Accomplishment Instructions, and the figures of the service bulletin.
(i) The bonded doubler in the longitudinal lap joint area between frame (FR)18 and FR80 (configurations 01 and 02 inspect FR18 through FR40; configuration 03 inspects FR18 through FR80).
(ii) The bonded wing doublers between stringer (STGR)22 LH/RH (left-hand/right-hand) and STGR43 LH/RH for debonding (configuration 01 of the service bulletin only).
(iii) The bonded doublers in the circumferential joint area between FR26 and FR80 (configurations 01 and 02 inspect FR26 through FR40; configuration 03 inspects FR26 through FR80).
(iv) The bonded doublers in the manhole area between FR23 RH and FR24 RH and between FR38.1 RH and FR38.2 RH.
(2) Where paragraph 1.E.(2) of Airbus Service Bulletin A300-53-0378, dated September 4, 2006, specifies a grace period from CN (Consigne de Navigabilité) issuance, this AD requires a grace period relative to the effective date of this AD.
(3) Where paragraph 1.E.(2) of Airbus Service Bulletin A300-53-0378, dated September 4, 2006, specifies a threshold, this AD requires that the inspections be done within the specified threshold relative to the first flight of the airplane.
(4) Where the Accomplishment Instructions and figures of Airbus Service Bulletin A300-53-0378, dated September 4, 2006, specify that inspections be done yearly, this AD requires those inspections to be done at intervals not to exceed 1 year.
This AD differs from the MCAI and/or service information as follows: No differences.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to MCAI European Aviation Safety Agency Airworthiness Directive 2006-0369, dated December 12, 2006; and Airbus Service Bulletin A300-53-0378; dated September 4, 2006, for related information.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes; and Model 767-200 and -300 series airplanes equipped with certain Goodrich evacuation systems. For certain airplanes, this proposed AD would require replacing the evacuation systems shear-pin restraints with new ones. For certain other airplanes, this proposed AD would require an inspection for manufacturing lot numbers; and a general visual inspection of the shear-pin restraints for discrepancies, and corrective actions if necessary. This proposed AD results from several reports of corroded shear-pin restraints that prevented Goodrich evacuation systems from deploying properly. We are proposing this AD to prevent failure of the evacuation system, which could impede an emergency evacuation and increase the chance of injury to passengers and flightcrew during the evacuation.
We must receive comments on this proposed AD by July 13, 2007.
Use one of the following addresses to submit comments on this proposed AD.
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•
•
•
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Contact Goodrich, Aircraft Interior Products, ATTN: Technical Publications, 3414 South Fifth Street, Phoenix, AZ 85040-1169, for the service information identified in this proposed AD.
Tracy Ton, Aerospace Engineer, Cabin Safety/Mechanical and Environmental Systems Branch, ANM-150L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone (562) 627-5352; fax (562) 627-5210.
We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Include the docket number “FAA-2007-28299; Directorate Identifier 2005-NM-139-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments.
We will post all comments we receive, without change, to
You may examine the AD docket on the Internet at
We have received several reports indicating that Goodrich evacuation systems have not deployed properly on certain Boeing Model 747 and 767 airplanes due to corroded shear-pin restraints. The corrosion problem arose concurrently with a 1998 change in the anodize specification for restraint bodies. Corrosion of the shear-pin restraints, if not corrected, could lead to higher than designed release values, and in severe cases, could cause the two halves of the restraints to freeze up, which could lead to improper deployment and/or loss of use of the evacuation system. That loss could impede passengers during an emergency evacuation and increase the chance of injury to passengers and flightcrew during an evacuation.
Although there have been no reported deployment difficulties of certain Goodrich evacuation systems installed as a technical standard order (TSO) appliance on certain Airbus and McDonnell Douglas transport category airplanes, and certain Boeing Model 737 and 777 airplanes, the Goodrich evacuation systems installed on those airplanes use the same shear-pin restraints as those affected evacuation systems installed on the Boeing Model 747 and 767 airplanes affected by this proposed AD. Therefore, all technical standard ordered and type certificated Goodrich evacuation systems are subject to the identified unsafe condition. We are planning to issue similar rulemaking (Directorate Identifier 2003-NM-239-AD) for certain Goodrich units installed as a TSO appliance on certain Airbus, McDonnell Douglas, and Boeing Model 737 and 777 transport category airplanes.
We have reviewed Goodrich Service Bulletin 25-343, Revision 3, dated January 12, 2007. For certain evacuation systems, the service bulletin describes procedures for replacing the shear-pin restraints with new, improved restraints. For certain other evacuation systems, the service bulletin describes procedures for an inspection to verify the manufacturing lot number of the restraints; and a general visual inspection of the restraints for discrepancies (
We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between the Proposed AD and the Service Bulletin.”
Although the service bulletin recommends accomplishing the replacement or inspection “at the next shop visit,” we have determined that this imprecise compliance time would not address the identified unsafe condition soon enough to ensure an adequate level of safety for the affected fleet. In developing an appropriate compliance time for this AD, we considered the manufacturer's recommendation, the degree of urgency associated with the subject unsafe condition, and the average utilization of the affected fleet. In light of all of these factors, we find that a compliance time of 36 months represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety. We have coordinated this difference with the manufacturer.
There are about 1,063 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 144 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have 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 that the 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); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The Federal Aviation Administration (FAA) amends § 39.13 by adding the following new airworthiness directive (AD):
(a) The FAA must receive comments on this AD action by July 13, 2007.
(b) None.
(c) This AD applies to Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes; and Model 767-200 and -300 series airplanes; certificated in any category; equipped with any Goodrich evacuation system listed in Table 1 of this AD.
(d) This AD results from several reports of corroded shear-pin restraints that prevented Goodrich evacuation systems from deploying properly. We are issuing this AD to prevent failure of the evacuation system, which could impede an emergency evacuation and increase the chance of injury to passengers and flightcrew during the evacuation.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) The term “service bulletin,” as used in this AD, means the Accomplishment Instructions of Goodrich Service Bulletin 25-343, Revision 3, dated January 12, 2007.
(g) Within 36 months after the effective date of this AD, do the actions specified in paragraph (g)(1) or (g)(2) of this AD in accordance with the service bulletin.
(1) For airplanes equipped with any Goodrich evacuation system identified in paragraph (c)(1) or (c)(2) of this AD: Replace the shear-pin restraints with new restraints.
(2) For airplanes equipped with any Goodrich evacuation system identified in paragraphs (c)(3) through (c)(27) of this AD: Do an inspection to verify the manufacturing lot number of the shear-pin restraint. A review of airplane maintenance records is acceptable in lieu of this inspection if the manufacturing lot number of the shear-pin restraint can be conclusively determined from that review.
(i) If a manufacturing lot number from 3375 through 5551 inclusive is found, before further flight, replace the shear-pin restraint with a new restraint.
(ii) If a manufacturing lot number from 3375 through 5551 inclusive is not found, do a general visual inspection of the shear-pin restraints for discrepancies (i.e., corrosion, security of pin retainer/label, overall condition, and lack of play). If any discrepancy is found, before further flight, replace the shear-pin restraint with a new restraint.
For the purposes of this AD, a general visual inspection is: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to ensure visual access to all surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
(h) As of the effective date of this AD, no Goodrich evacuation system with a part number and serial number identified in paragraph (c)(1) or (c)(2) of this AD may be installed on any airplane, unless the shear-pin restraints have been replaced with new restraints in accordance with paragraph (g)(1) of this AD.
(i) As of the effective date of this AD, no Goodrich evacuation system with a part number and serial number identified in paragraphs (c)(3) through (c)(27) of this AD may be installed on any airplane, unless the shear-pin restraints have been inspected and found acceptable in accordance with paragraph (g)(2) of this AD.
(j) Replacements and inspections done before the effective date of this AD in accordance with Goodrich Service Bulletin 25-343, dated October 15, 2003; Revision 1, dated January 31, 2005; or Revision 2, dated October 11, 2006; are acceptable for compliance with the requirements of paragraph (h) of this AD.
(k)(1) The Manager, Los Angeles Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2) Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking.
This action proposes to modify Class D airspace at Castle Airport, Atwater, CA. This proposal would reduce the ceiling of the Atwater, CA, Class D airspace to below 2,000 feet mean sea level (MSL), change the southern boundary of the airspace and add an extension to the north to provide controlled airspace for the safety of aircraft executing Standard Instrument Approach Procedures (SIAPs) and other Instrument Flight Rules (IFR) operations at Castle Airport.
Comments must be received on or before July 13, 2007.
Send comments on this proposal to the Docket Management System, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Ave., SE., Washington, DC 20590;
Kathryn Higgins, Team Manager, System Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 917-6715.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (Docket No. FAA-2007-28139/Airspace Docket No. 07-AWP-3) and be submitted in triplicate to the Docket Management System (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2007-28139 and Airspace Docket No. 07-AWP-3.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of the comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 to modify Class D airspace at Castle Airport, Atwater, CA. Local communities and aviation concerns met with the FAA on April 26, 2007, at Atwater, CA, to present alternative airspace designs for the existing Class D airspace at Atwater, CA, Castle Airport. The various airspace alternatives presented were designed to accommodate IFR and Visual Flight Rules (VFR) operations in and out of Merced Airport located 6 miles to the south. The FAA, local communities, and aviation concerns agreed on an alternative that would reduce the ceiling of the Class D airspace, modify the southern border, and add an extension on the north side of the Class D for the safety of aircraft executing SIAP's and other IFR operations at Castle Airport. Class D airspace will be effective during specified dates and times established in advance by a Notice to Airmen. The effective date and time will, thereafter, be published in the Airport/Facility Directory.
Class D airspace designations for airspace areas extending upward from the surface of the earth are published in Paragraph 5000 of FAA Order 7400.9P, dated September 1, 2006, and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation; (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for 14 CFR part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9P, Airspace Designations and Reporting Points, dated September 1, 2006, and effective September 15, 2006, is amended as follows:
That airspace extending upward from the surface to but not including 2,000 feet MSL beginning at lat. 37°20′22″ N., long. 120°38′49″ W. and extending clockwise around the 4.5 nautical mile radius of the Castle Airport to lat. 37°20′02″ N., long. 120°29′39″, thence to the point of beginning and within 1.9 miles each side of the El Nido VORTAC 320° radial from the 4.5 nautical mile radius to 17.6 miles from the El Nido VORTAC. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective dates and time will thereafter be continuously published in the Airport/Facility Directory.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking.
This document contains proposed regulations providing mortality tables to be used in determining present value or making any computation for purposes of applying certain pension funding requirements. These regulations affect sponsors, administrators, participants, and beneficiaries of certain retirement plans.
Written or electronic comments and requests for a public hearing must be received by August 27, 2007.
Send submissions to: CC:PA:LPD:PR (REG-143601-06), room 5203, Internal Revenue Service, PO 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-143601-06), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC, or sent electronically, via the Federal eRulemaking Portal at
Concerning the regulations, Bruce Perlin, Lauson C. Green, or Linda S.F. Marshall at (202) 622-6090; concerning submissions and requests for a public hearing, Kelly Banks at (202) 622-7180 (not toll-free numbers).
Section 412 provides minimum funding requirements for defined benefit pension plans. The Pension Protection Act of 2006 (PPA), Public Law 109-280 (120 Stat. 780), makes extensive changes to those minimum funding requirements that generally apply for plan years beginning on or after January 1, 2008. Section 430, which was added by PPA, specifies the minimum funding requirements that apply to defined benefit plans that are not multiemployer plans pursuant to
Section 430(h)(3) provides rules regarding the mortality tables to be used under section 430. Under section 430(h)(3)(A), except as provided in section 430(h)(3)(C) or (D), the Secretary is to prescribe by regulation mortality tables to be used in determining any present value or making any computation under section 430. Those tables are to be based on the actual experience of pension plans and projected trends in such experience. In prescribing those tables, the Secretary is required to take into account results of available independent studies of mortality of individuals covered by pension plans. This standard for issuing the mortality table under section 430(h)(3)(A) is the same as the standard for issuing updated mortality tables pursuant to the review under section 412(l)(7)(C)(ii)(III) of the mortality table used in determining a plan's current liability pursuant to section 412(l)(7)(C)(ii)(I) for plan years before the effective date of the PPA changes.
Section 430(h)(3)(C) provides rules for a plan sponsor's use of substitute mortality tables. Upon the request of a plan sponsor and approval by the Secretary, mortality tables that meet the requirements for substitute mortality tables are used in determining present value or making any computation under section 430 during the period of consecutive plan years (not to exceed 10) specified in the request. Substitute mortality tables cease to be in effect as of the earliest of the date on which there is a significant change in the participants in the plan by reason of a plan spinoff or merger or otherwise, or the date on which the plan actuary determines that those tables do not meet the requirements for substitute mortality tables. The plan sponsor's request to use substitute mortality tables is to be made at least 7 months before the first day of the first plan year for which substitute mortality tables are to apply. A request to use substitute mortality tables is deemed approved unless the Secretary denies approval for the use of those mortality tables within 180 days of the request (subject to extension of this period by mutual agreement).
Mortality tables meet the requirements for substitute mortality tables if the pension plan has a sufficient number of plan participants and the plan has been maintained for a sufficient period of time in order to have credible mortality experience, and such tables reflect the actual experience of the plan and projected trends in general mortality experience of participants in pension plans. Except as provided by the Secretary, a plan sponsor cannot use substitute mortality tables for any plan unless substitute mortality tables are established and used for each other plan maintained by the plan sponsor and the plan sponsor's controlled group.
Section 430(h)(3)(D) provides for the use of separate mortality tables with respect to certain individuals who are entitled to benefits on account of disability. These separate mortality tables are permitted to be used with respect to disabled individuals in lieu of the generally applicable mortality tables provided pursuant to section 430(h)(3)(A) or the substitute mortality tables under section 430(h)(3)(C). The Secretary is to establish separate tables for individuals with disabilities occurring in plan years beginning before January 1, 1995, and in later plan years, with the mortality tables for individuals with disabilities occurring in those later plan years applying only to individuals who are disabled within the meaning of Title II of the Social Security Act.
Section 431, which was added by PPA, specifies the minimum funding requirements that apply to multiemployer plans. Under section 431(c)(6)(B), a plan's full funding limitation cannot be less than the excess (if any) of 90 percent of the current liability of the plan (including the expected increase in current liability due to benefits accruing during the plan year) over the value of the plan's assets. Section 431(c)(6)(D)(iv)(II) provides that the Secretary may by regulation prescribe mortality tables to be used in determining a plan's current liability for purposes of section 431(c)(6). The standards for these mortality tables are the same as the standards for mortality tables to be prescribed under section 430(h)(3)(A). Section 431(c)(6)(D)(iv)(I) provides that, until mortality tables are prescribed under section 431(c)(6)(D)(iv)(II), the mortality table used in determining a plan's current liability for purposes of section 431(c)(6) is the table prescribed by the Secretary that is based on the prevailing commissioners' standard table (described in section 807(d)(5)(A)) used to determine reserves for group annuity contracts issued on January 1, 1993.
Notice 2003-62 (2003-2 CB 576) was issued as part of the periodic review pursuant to section 412(l)(7)(C)(ii)(III) of the mortality tables used in determining current liability pursuant to section 412(l)(7)(C)(ii)(I). At the time Notice 2003-62 was issued, the IRS and the Treasury Department were aware of two reviews of mortality experience for pension plan participants undertaken by the Retirement Plans Experience Committee of the Society of Actuaries (the UP-94 Study and the RP-2000 Mortality Tables Report),
On December 2, 2005, the IRS issued proposed regulations under section 412(l)(7) (REG-124988-05, 70 FR 72260-01) setting forth mortality tables to be used for nondisabled pension plan participants (the 2005 proposed regulations). Those proposed regulations would have required plans of 500 or more participants (including both active and inactive participants) to use separate mortality tables for nonannuitant and annuitant periods. Those separate tables were derived from the RP-2000 mortality tables, with different projection periods for annuitants and nonannuitants based on an estimate of the duration of the respective liabilities. Small plans, defined as those with fewer than 500 participants, would have been permitted to use a combined table that applied the
The 2005 proposed regulations were finalized in the
These proposed regulations set forth the methodology the IRS and the Treasury Department would use to establish mortality tables as provided under section 430(h)(3)(A) to be used for participants and beneficiaries to determine present value or make any computation under section 430. These mortality tables would apply as well for purposes of determining the current liability of a multiemployer plan pursuant to section 431(c)(6)(D)(iv)(II). In addition, pursuant to § 1.412(l)(7)-1(a), these proposed regulations would apply for purposes of determining the current liability of a plan for which application of the PPA changes to section 412 is delayed (see sections 104 through 106 of PPA). Under the proposed regulations, mortality tables to be used with respect to disabled individuals would be provided in guidance published in the Internal Revenue Bulletin (IRB).
The new mortality tables under section 430(h)(3)(A) would be based on the tables contained in the RP-2000 Mortality Tables Report. In response to Notice 2003-62, commentators generally recommended that the RP-2000 mortality tables be the basis for the mortality tables used under section 412(l)(7)(C)(ii). The IRS and the Treasury Department reviewed the RP-2000 mortality tables and the accompanying report published by the Society of Actuaries, and determined to use the RP-2000 mortality tables as the basis for final regulations under section 412(l)(7)(C)(ii) because the RP-2000 mortality tables form the best available basis for predicting mortality of pension plan participants and beneficiaries (other than disabled individuals) based on pension plan experience, including expected trends. Because section 430 applies this same standard, the mortality tables set forth in these proposed regulations under section 430 are also based on the RP-2000 mortality tables. Like the mortality tables provided in the final section 412(l) regulations, the mortality tables set forth in these proposed regulations are gender-distinct because of significant differences between expected male mortality and expected female mortality. See § 601.601(d)(2)(ii)(
The mortality tables set forth in these proposed regulations would provide separate mortality rates for annuitants and nonannuitants. This distinction has been made because the RP-2000 Mortality Tables Report indicates that these two groups have significantly different mortality experience. This is particularly true at typical ages for early retirees, where the number of health-induced early retirements results in a population that has higher mortality rates than the population of currently employed individuals. While the use of separate mortality rates for these groups of individuals will likely entail changes in programming of actuarial software, the IRS and the Treasury Department believe that the improvement in accuracy resulting from the use of separate mortality tables for annuitants and nonannuitants more than offsets the added complexity.
Under these proposed regulations, the annuitant mortality tables would be applied to determine the present value of benefits for annuitants. The annuitant mortality tables are also used for nonannuitants (active employees and terminated vested participants) for the periods beginning when the nonannuitants are projected to commence receiving benefits, while the nonannuitant mortality tables are applied for the periods before nonannuitants are projected to commence receiving benefits. For any period in which an annuitant is projected to be receiving benefits, the mortality table applicable to any beneficiary of that annuitant is the annuitant mortality table.
The RP-2000 Mortality Tables Report sets forth mortality tables that reflect expected mortality as of 2000, along with projection factors that are used to reflect the impact of expected improvements in mortality. Similarly, the mortality tables set forth in the proposed regulations are based on expected mortality as of 2000 and reflect the impact of expected improvements in mortality. Commentators to prior guidance generally stated that the projection of mortality improvement is desirable because it reflects expected mortality more accurately than using mortality tables that do not reflect such projection. The IRS and the Treasury Department agree with these comments, and believe that failing to project mortality improvement in determining the funding target would tend to result in underfunding. The proposed regulations permit plan sponsors to apply the projection of mortality improvement in either of two ways: Through use of static tables that are updated annually to reflect expected improvements in mortality, or through use of generational tables.
The proposed regulations set forth base tables for annuitants and nonannuitants, as well as a set of projection factors. The base tables set forth in the proposed regulations generally provide the same rates as the RP-2000 mortality tables, except that they have been extended so that the annuitant and nonannuitant tables have mortality rates available at each age. The RP-2000 Mortality Tables Report did not develop annuitant rates before age 50 or nonannuitant rates after age 70. The extended nonannuitant tables in these proposed regulations were created by (1) using nonannuitant rates through age 70, (2) using annuitant rates for ages over 80, and (3) blending the rates to produce a smooth transition between the two tables, using increasing fractions. The total difference between the rates at ages 70 and 80 is divided by 55; the rate at age 71 is set equal to the rate at age 70 plus 1/55 of the total difference, the age 72 rate is equal to the rate at age 71 plus 2/55 of the total difference, etc.
A similar approach was used to develop the base tables for annuitants. For male annuitants, annuitant rates from the RP-2000 Mortality Tables Report were used for ages 50 and over, nonannuitant rates from the RP-2000 Mortality Tables Report were used through age 40, and rates between ages 41 and 49 were smoothed to create a smooth transition using the same methodology as was used for the nonannuitant tables. For female annuitants, annuitant rates from the RP-2000 Mortality Tables Report were used for ages 50 and over. However, to avoid anomalous results, female nonannuitant
For a plan sponsor that chooses to use the generational mortality tables, the mortality rate for each particular age would be projected for each individual participant to reflect projected improvement for the period of time until the participant reaches the particular age using the applicable base table along with the projection factors provided under the proposed regulations. These projection factors are from Mortality Projection Scale AA, which was recommended for use in the UP-94 Study and in the RP-2000 Mortality Tables Report. For example, to obtain the age 54 mortality rate for a male annuitant born in 1974 using the generational mortality tables, the age 54 male annuitant table rate is projected 28 years using the age 54 male Projection Scale AA rate set forth in the proposed regulations. The projection period is 28 years because a participant born in 1974 would attain age 54 in 2028, 28 years after the base year of the tables set forth in the proposed regulations. In this instance, because the male age 54 annuitant rate is .005797 under the base table, and the male age 54 Projection Scale AA rate set forth in paragraph (d) of § 1.430(h)(3)-1 is .020, the age 54 male annuitant rate for participants born in 1974 is .003293 (.005797 * (1-.020)
The static mortality tables that would be permitted to be used under the proposed regulations are constructed from the base table used for purposes of the generational mortality tables. The static mortality tables are projected from the base table for the year 2000 through the year of valuation with further projection to reflect the approximate expected duration of liabilities. The static mortality tables for annuitants under the proposed regulations reflect projection through the year of valuation with a further projection period of 7 years, and the static mortality tables for nonannuitants under the proposed regulations reflect projection through the year of valuation with a further projection period of 15 years. These projection periods were selected as the expected average duration of liabilities and are consistent with projection periods suggested by commentators. To be consistent with the original construction of the RP-2000 mortality tables, both the static annuitant and nonannuitant tables use the rates from the projected annuitant table for ages 80 and over and from the projected nonannuitant table for ages 40 and younger (ages 44 and younger for females). For a smooth transition between the different projection periods for annuitants versus nonannuitants, the rates for ages 71 through 79 and for ages 41 through 49 (ages 45 through 49 for females) were smoothed using the same technique as that used in constructing the base tables.
The static mortality tables that would apply with respect to valuation dates occurring during 2008 are set forth in the proposed regulations. The mortality tables to be used for valuation dates in subsequent years would be published in the IRB. Comments are requested regarding whether it would be desirable to publish a series of tables for each of a number of years (such as five years) along with final regulations, with tables for subsequent years to be published in the IRB.
As an example of the use of the static tables for the 2008 calendar plan year, with respect to a 45-year-old active participant who is projected to commence receiving an annuity at age 55, the funding target would be determined using the applicable nonannuitant mortality table for the period before the participant attains age 55 (so that the probability of an active male participant living from age 45 to the age of 55 using the mortality table that would apply in 2008 is 98.61%) and the applicable annuitant mortality table after the participant attains age 55. Similarly, if a 45-year-old terminated vested participant is projected to commence an annuity at age 65, the funding target would be determined using the applicable nonannuitant mortality table for the period before the participant attains age 65 and the applicable annuitant mortality table for ages 65 and above.
These proposed regulations would provide an option for smaller plans (plans where the total of active and inactive participants is less than 500) that choose to use static mortality tables to use a single blended static table for all participants—in lieu of the separate tables for annuitants and nonannuitants—in order to simplify the actuarial valuation for these plans. This blended table would be constructed from the separate nonannuitant and annuitant tables using the nonannuitant/annuitant weighting factors published in the RP-2000 Mortality Tables Report. However, because the RP-2000 Mortality Tables Report does not provide weighting factors before age 51 or after age 69, the IRS and the Treasury Department would extend the table of weighting factors (using straight-line interpolation) for ages 41 through 50 (ages 45-50 for females) and for ages 70 through 79 in order to develop the blended table.
These proposed regulations would set forth the framework for the development and use of substitute mortality tables in connection with present value determinations and other computations under section 430(h)(3)(C). The provision generally provides for the use of substitute mortality tables by a plan that is subject to section 430, in lieu of the mortality tables provided under section 430(h)(3)(A) and § 1.430(h)(3)-1, upon written request of the plan sponsor and approval of the Commissioner.
Substitute mortality tables must reflect the actual mortality experience of the pension plan maintained by the plan sponsor for which the tables are to be used and that mortality experience must be credible. Separate mortality tables must be established for each gender under the plan, and a substitute mortality table is permitted to be established for a gender only if the plan has credible mortality experience with respect to that gender. If the mortality experience for one gender is credible but the mortality experience for the other gender is not credible, the substitute mortality tables are used for the gender that has credible mortality experience, and the mortality tables under § 1.430(h)(3)-1 are used for the gender that does not have credible mortality experience. If separate mortality tables under section 430(h)(3)(D) are used for certain disabled individuals under a plan, then those individuals are disregarded for all purposes with respect to substitute mortality tables under section 430(h)(3)(C). Thus, if the mortality tables under section 430(h)(3)(D) are used for certain disabled individuals under a plan, mortality experience with respect to those individuals must be excluded in determining mortality rates for substitute mortality tables with respect to a plan.
Under the proposed regulations, a substitute mortality table is based on credible mortality experience for a gender within a plan if and only if the mortality experience is based on at least 1,000 deaths within that gender over the period covered by the experience study. The experience study must be based on mortality experience data over a 2, 3, or 4-consecutive year period, the last day of which must be less than 3 years
Development of a substitute mortality table under the proposed regulations requires creation of a base table and identification of a base year, which are then used to determine a substitute mortality table. The base table would be developed from a study of the mortality experience of the plan using amounts-weighted data. The proposed regulations set forth rules regarding development of amounts-weighted mortality rates for an age and the determination of the base year. The proposed regulations provide that amounts-weighted mortality rates may be derived from amounts-weighted mortality rates for age groups. Guidance issued by the Commissioner may specify grouping rules (for example, 5-year age groups, except for extreme ages) and methods for developing amounts-weighted mortality rates for individual ages from amounts-weighted mortality rates initially determined for each age group. In addition, the proposed regulations would provide that base tables may be constructed either directly through graduation of amounts-weighted mortality rates or indirectly by applying a level percentage to tables prescribed by section 430(h)(3)(A), provided that the resulting tables sufficiently reflect the plan's mortality experience. The Commissioner may permit the construction of base tables through application of a level percentage to other recognized mortality tables, applying similar standards to ensure that the resulting tables are sufficiently reflective of the plan's mortality experience.
In general, substitute mortality tables are permitted to be used for a plan only if the use of substitute mortality tables is approved for each other pension plan subject to the requirements of section 430 that is maintained by the plan sponsor or by a member of the sponsor's controlled group. However, under the proposed regulations, the use of substitute mortality tables for one plan would not be prohibited merely because another plan subject to section 430 that is maintained by the plan sponsor (or by a member of the plan sponsor's controlled group) cannot use substitute mortality tables because neither the males nor the females under that plan have credible mortality experience for a plan year. Thus, if a sponsor's controlled group contains two pension plans subject to section 430, each of which has credible mortality experience for at least one gender, either both plans must obtain approval from the Commissioner to use substitute mortality tables or neither plan may use substitute mortality tables. By contrast, if for one of those plans neither males nor females have credible mortality experience, then the plan without credible mortality experience will not interfere with the ability of the plan with credible mortality experience to use substitute mortality tables.
Under the proposed regulations, the requirement that the plan sponsor demonstrate the lack of credible mortality experience for both the male and female populations in other plans maintained by the plan sponsor (and by members of the plan sponsor's controlled group) must be satisfied annually. For each plan year in which a plan uses substitute mortality tables, the demonstration that both genders of another plan maintained by the plan sponsor do not have credible mortality experience (that is, there are less than 1,000 deaths within each gender) must be made using a 4-year period for mortality experience that ends less than 3 years before the first day of that plan year.
For example, a plan sponsor that requests to use substitute mortality tables for a plan for the plan year that begins January 1, 2008, would have to show, as part of its submission to the Commissioner, that both the male and female populations in all other defined benefit plans of the plan sponsor (and in the plan sponsor's controlled group) that are subject to section 430 and that do not use substitute mortality tables do not have credible mortality experience using a 4-year period that ends no earlier than January 2, 2005 (that is, each gender in those plans did not experience 1,000 deaths during that 4-year period). If the plan sponsor chooses to use the 4-year period from January 1, 2003, through December 31, 2006, to demonstrate the lack of credible mortality experience for the other plans, then the plan can rely on this same data to demonstrate the lack of credible mortality experience for 2009 as well because the less-than-3-years requirement is still met with respect to the 2009 plan year. However, the plan would not be able to use this same data to demonstrate lack of credibility for the 2010 plan year because the last day of the experience study used for the demonstration (the January 1, 2003-December 31, 2006 period) is too distant in time (3 or more years) from the first day of the plan year (January 1, 2010).
Although the proposed regulations permit a plan sponsor to use an experience study to demonstrate a lack of credible mortality experience for a plan population for multiple years, plan sponsors are encouraged to update experience studies annually as new mortality data become available for the plan population. In such a case, if an updated test reveals 1,000 or more deaths for the more recent 4-year period, the plan sponsor nonetheless will be able to continue to use substitute mortality tables for one plan year by demonstrating that the other plans in the controlled group do not have credible mortality experience based on the earlier experience study. This will give the plan sponsor sufficient time to develop substitute mortality tables for the plan population with newly credible mortality experience and to obtain the Commissioner's approval to use those tables prior to the first year substitute mortality tables are to be used for that population.
Under the proposed regulations, a plan's substitute mortality tables must be generational mortality tables. Substitute mortality tables are determined using the base mortality tables developed from the experience study and the projection factors provided in Projection Scale AA, as set forth in § 1.430(h)(3)-1(d). Under the generational mortality tables, the probability of an individual's death at a particular age is determined as the individual's base mortality rate (that is, the applicable base mortality rate from the base mortality table for the age for which the probability of death is being determined) multiplied by the mortality improvement factor. The mortality improvement factor is equal to (1—projection factor for that age)
The proposed regulations would require separate tables to be established for males and females under a plan. Under the proposed regulations, separate substitute mortality tables would be permitted (but not required) to be established for separate populations within a gender, such as annuitants and nonannuitants or hourly and salaried individuals. The proposed regulations would provide that separate substitute mortality tables are permitted to be used for a separate population within a gender under a plan only if all
The requirement that each separate population have credible mortality experience does not apply in the case of separate mortality tables that are developed for annuitant and nonannuitant populations within a gender. Thus, the proposed regulations would provide that substitute mortality tables for separate annuitant and nonannuitant populations may be used within a gender even if only one of those separate populations has credible mortality experience. Similarly, if separate populations with credible mortality experience are established within a gender, then any of those populations may be further subdivided into separate annuitant and nonannuitant subpopulations, provided that at least one of the two resulting subpopulations has credible mortality experience. In such a case, the standard mortality tables under § 1.430(h)(3)-1 must be used for a resulting subpopulation that does not have credible mortality experience. For example, in the case of a plan that has credible mortality experience for both its male hourly and salaried individuals, if the male salaried annuitant population has credible mortality experience, it may use substitute mortality tables with respect to that population even if the male salaried nonannuitant population uses the standard mortality tables under § 1.430(h)(3)-1 (because that nonannuitant population does not have credible mortality experience). For purposes of demonstrating that an annuitant or nonannuitant population within a gender or within a separate population does not have credible mortality experience, the demonstration of lack of credible mortality experience is made on the same basis as for purposes of demonstrating a lack of credible mortality experience for a gender.
The proposed regulations would provide a limited time period during which a newly acquired plan that does not use substitute mortality tables does not prevent another plan from using substitute mortality tables. Under the proposed regulations, the use of substitute mortality tables for a plan is not prohibited merely because a newly acquired plan does not use substitute mortality tables, but only through the last day of the plan year of the plan using substitute mortality tables that contains the end of the period described in section 410(b)(6)(C). For the following plan year, the mortality tables prescribed under § 1.430(h)(3)-1 would apply with respect to the plan (and all other plans within the plan sponsor's controlled group, including the acquired plan) unless approval to use substitute mortality tables has been obtained with respect to the acquired plan, or the acquired plan cannot use substitute mortality tables because neither the males nor the females under the plan have credible mortality experience. For example, if the employer acquires a plan in September 2009 that does not use substitute mortality tables and that has a plan year that ends June 30, the acquisition of that plan will not impair the continued use of substitute mortality tables by a pre-existing calendar year plan of the employer through the end of the 2011 calendar year. This is because the section 410(b)(6)(C) transition period for the newly acquired plan will end on June 30, 2011. Under the proposed regulations, a plan is treated as a newly acquired plan if it is acquired or otherwise becomes maintained by the plan sponsor (or by a member of the plan sponsor's controlled group) in connection with a merger, acquisition, or similar transaction described in § 1.410(b)-2(f). The proposed regulations would provide that a plan is also treated as a newly acquired plan if it is established in connection with a transfer in accordance with section 414(l) of assets and liabilities from another employer's plan in connection with a merger, acquisition, or similar transaction described in § 1.410(b)-2(f).
In the case of a newly acquired plan, the demonstration of whether credible mortality experience exists for the plan may be made by either including or excluding mortality experience data for the period prior to the date the plan becomes maintained by a member of the new plan sponsor's controlled group. If a plan sponsor excludes mortality experience data prior to the date the plan became maintained within the new plan sponsor's controlled group, the exclusion must apply for all populations within the plan. For example, it is impermissible to include the data for hourly individuals for the pre-acquisition period but exclude the data for salaried individuals for that same period.
In order to demonstrate a lack of credible mortality experience with respect to a gender for a plan year, a special rule applies if the plan's mortality experience demonstration for a plan year is made by excluding mortality experience for the period prior to the date the newly acquired plan becomes maintained within the new plan sponsor's controlled group. In such a case, an employer is permitted to demonstrate a plan's lack of credible mortality experience using an experience study period of less than four years, provided that the experience study period begins with the date the plan becomes maintained within the employer's controlled group and ends not more than one year and one day before the first day of the plan year with respect to which the lack of credible mortality experience demonstration is made.
The proposed regulations would provide rules for aggregating plans for purposes of using substitute mortality tables. Under the proposed regulations, in order to use a set of substitute mortality tables for two or more plans, the applicable rules are applied by treating those plans as a single plan. In such a case, the substitute mortality tables must be used for all such plans and must be based on data collected with respect to all such plans. Although plans generally are not required to be aggregated, the proposed regulations would require a plan to be aggregated with any plan that was previously spun off from that plan if one purpose of the spinoff was to avoid the use of substitute mortality tables for any of the plans involved in the spinoff.
Under the proposed regulations, in order to use substitute mortality tables with respect to a plan, a plan sponsor must submit a written request to the Commissioner that demonstrates that those substitute mortality tables comply with applicable requirements. A request to use substitute mortality tables must state the first plan year and the term of years (not more than 10) that the tables are requested to be used. In general, substitute mortality tables cannot be used for a plan year unless the plan sponsor submits the written request to use substitute mortality tables at least 7 months prior to the first day of the first
Under the proposed regulations, experience data cannot be used to develop a base table if the number of individuals in the population covered by the table (for example, the male annuitants) as of the last day of the plan year before the year the request to use substitute mortality tables is made (or a reasonable estimate of that number), compared to the average number of individuals in that population over the years covered by the experience study on which the substitute mortality tables are based, reflects a difference of 20 percent or more, unless it is demonstrated to the satisfaction of the Commissioner that the experience data is accurately predictive of future mortality of that plan population (taking into account the effect of the change in individuals) after appropriate adjustments to the data are made (for example, excluding data from individuals with respect to a spun-off portion of the plan).
Under the proposed regulations, the Commissioner may, in revenue rulings and procedures, notices and other guidance published in the IRB (see § 601.601(d)(2)(ii)(
In general, the Commissioner has a 180-day period to review a request for the use of substitute mortality tables. If the Commissioner does not issue a denial within this 180-day period, the request is deemed to have been approved unless the Commissioner and the plan sponsor have agreed to extend that period. The Commissioner may request additional information with respect to a submission. Failure to provide that information on a timely basis is grounds for denial of the plan sponsor's request. In addition, the Commissioner will deny a request if the request fails to meet the requirements to use substitute mortality tables or if the Commissioner determines that a substitute mortality table does not sufficiently reflect the mortality experience of the applicable plan population.
The proposed regulations would provide rules regarding the duration of use of substitute mortality tables. Under the proposed regulations, substitute mortality tables generally are used with respect to a plan for the term of consecutive plan years specified in the plan sponsor's written request to use such tables and approved by the Commissioner, or such shorter period prescribed by the Commissioner in the approval to use substitute mortality tables. If the term of use of a substitute mortality table ends for any reason, the mortality tables specified in § 1.430(h)(3)-1 will apply with respect to the plan unless the plan sponsor has obtained approval to use substitute mortality tables for a further term. The proposed regulations would provide that a plan's substitute mortality tables cannot be used as of the earliest of the following: the second plan year following the plan year in which there is a significant change in the population covered by the substitute mortality table (generally, a change of at least 20% from the average number of individuals included in the experience study); or the plan year following the plan year in which a substitute mortality table for a plan population is no longer accurately predictive of future mortality of that population, as determined by the Commissioner or as certified by the plan's actuary to the satisfaction of the Commissioner. In addition, the proposed regulations would provide that a plan's substitute mortality tables cannot be used after the date specified in guidance published in the IRB (see § 601.601(d)(2)(ii)(
These regulations are proposed to apply to plan years beginning on or after January 1, 2008.
Section 417(e)(3)(B)(i), as amended by PPA, provides that the applicable mortality table (which is used to determine the minimum present value of certain distributions as required by section 417(e)(3)) is a mortality table, modified as appropriate by the Secretary of the Treasury, based on the mortality table specified for the plan year under section 430(h)(3)(A) (without regard to the option to use substitute mortality tables under section 430(h)(3)(C) or the separate mortality tables for disabled individuals under section 430(h)(3)(D)). This change is effective for plan years beginning after December 31, 2007. Comments are requested regarding how the mortality tables provided under proposed § 1.430(h)(3)-1 should be modified for use in applying the minimum present value rules of section 417(e)(3).
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, 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 these 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 IRS and the Treasury Department specifically request comments on the clarity of the proposed regulations and how they may be made easier to understand. All comments will be available for public inspection and copying. A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the
The principal authors of these regulations are Bruce Perlin, Lauson C. Green, and Linda S. F. Marshall, Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
(a)
(2)
(3)
(4)
(ii)
(b)
(ii)
(2)
(c)
(2)
(3)
(d)
(e)
(f)
(a)
(b)
(ii)
(B)
(2)
(ii)
(iii)
(iv)
(c)
(ii)
(iii)
(B)
(iv)
(2)
(ii)
(B)
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(A) All individuals of that gender in the plan are divided into separate populations;
(B) Each separate population has credible mortality experience as provided in paragraph (c)(4)(iii) of this section; and
(C) The separate substitute mortality table for each separate population is developed using mortality experience data for that population.
(ii)
(iii)
(d)
(ii)
(B)
(iii)
(
(
(B)
(iv)
(B)
(C)
(2)
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(ii)
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(A) The plan year in which the plan fails to satisfy the requirements of paragraph (c)(1) of this section (regarding credible mortality experience requirements and demonstrations);
(B) The plan year in which the plan fails to satisfy the requirements of paragraph (d)(1) of this section (regarding use of substitute mortality tables by controlled group members);
(C) The second plan year following the plan year in which there is a significant change in individuals covered by the plan as described in paragraph (d)(4)(ii) of this section;
(D) The plan year following the plan year in which a substitute mortality table used for a plan population is no longer accurately predictive of future mortality of that population, as determined by the Commissioner or as certified by the plan's actuary to the satisfaction of the Commissioner; or
(E) The date specified in guidance published in the Internal Revenue Bulletin (see § 601.601(d)(2)(ii)(
(ii)
(B)
(e)
The mortality assumptions that apply to a defined benefit plan for the plan year pursuant to section 430(h)(3)(A) and § 1.430(h)(3)-1(a)(2) are used to determine a multiemployer plan's current liability for purposes of applying the rules of section 431(c)(6). A multiemployer plan is permitted to apply either the static mortality tables used pursuant to § 1.430(h)(3)-1(a)(3) or generational mortality tables used pursuant to § 1.430(h)(3)-1(a)(4) for this purpose. However, for this purpose, a multiemployer plan is not permitted to use substitute mortality tables under § 1.430(h)(3)-2.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of proposed rulemaking.
This proposed rule would establish annual fees and a fee bracket structure for the Unified Carrier Registration Agreement as required under the Unified Carrier Registration Act of 2005, enacted as Subtitle C of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users.
You must submit comments on or before June 13, 2007.
You may submit comments, identified by DOT DMS Docket Number FMCSA-2007-27871, by any of the following methods:
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•
•
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Mr. Greg Parks, Regulatory Development Division, (202) 366-5370, FMCSA, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590 or by e-mail at:
This proposed rule involves the fees to be set for the Unified Carrier Registration Agreement established by 49 U.S.C. 14504a, enacted by section 4305(b) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (119 Stat. 1144, 1764 (2005)). New section 14504a establishes the Unified Carrier Registration Plan, “an organization * * * responsible for developing, implementing, and administering the unified carrier registration agreement” (49 U.S.C. 14504a(a)(9)). The Unified Carrier Registration Agreement is “an interstate agreement governing the collection and distribution of registration and financial responsibility information provided and fees paid by motor carriers, motor private carriers, brokers, freight forwarders and leasing companies * * * ” (49 U.S.C. 14504a(a)(8)).
Congress also repealed the statutory provisions of 49 U.S.C. 14504 governing the Single State Registration System (SSRS) (SAFETEA-LU section 4305(a)).
The statute provides for a 15-member Board of Directors for the UCR Plan and Agreement to be appointed by the Secretary of Transportation. The establishment of the UCR Board (“Board”) was announced in the
The statute specifies several relevant factors that must be considered by the Board and FMCSA in setting the fees (see 49 US.C. 14504a(d)(7)(A), (f)(I) and (g)). It specifies that fees are to be determined by FMCSA based upon the recommendation of the Board. In
1. Administrative costs associated with the Unified Carrier Registration Plan and Agreement.
2. Whether the revenues generated in the previous year and any surplus or shortage from that or prior years enable the participating States to achieve the revenue levels set by the Board.
3. Provisions governing fees in 49 U.S.C. 14504a(f)(1).
Subsection (f)(1) provides that the fees charged must satisfy the following criteria:
a. Fees charged to a motor carrier, motor private carrier, or freight forwarder in connection with the filing of proof of financial responsibility under the UCR Agreement shall be based on the number of commercial motor vehicles owned or operated by the motor carrier, motor private carrier, or freight forwarder.
b. Fees charged to a broker or leasing company in connection with the filing of proof of financial responsibility under the UCR Agreement shall be equal to the smallest fee charged to a motor carrier, motor private carrier, and freight forwarder, or to the smallest fee charged under the UCR Agreement.
Section 14504a(f)(1) also stipulates that for the purpose of charging fees the Board shall develop no more than 6 and no less than 4 brackets of carriers (including motor private carriers) based on the size of the fleet, i.e., the number of commercial motor vehicles owned or operated. Finally, the fee scale is required to be progressive in the amount of the fee.
Overall, the fees assessed under the UCR Agreement must produce a level of revenues established by the statute. Section 14504a(g) establishes the revenue entitlements for States that choose to participate in the UCR Plan. That section provides that a participating State, which participated in the SSRS in the registration year prior to the enactment of the Unified Carrier Registration Act of 2005 (i.e., the 2004 registration year), is entitled to receive revenues under the UCR Agreement equivalent to the revenues it received in 2004. Participating States that also collected intrastate registration fees from interstate motor carrier entities (whether or not they participated in SSRS) are also entitled to receive revenues of this type under the UCR Agreement equivalent to the amount received in the 2004 registration year. The section also requires that States which did not participate in SSRS in 2004, but which choose to participate in the UCR Plan, will receive revenues not to exceed $500,000 per year.
As mentioned in I. above, the statute provides for a 15-member Board of Directors for the UCR Plan and Agreement to be appointed by the Secretary of Transportation. Section 14504a(d) specifies that the UCR Board of Directors must consist of representatives from the following groups:
U.S. Department of Transportation: One individual, either the FMCSA Deputy Administrator or another Presidential appointee from the Department as selected by the Secretary. The FMCSA Deputy Administrator was selected to represent the Department.
State Chief Administrative Officers: Four directors, one from each of the FMCSA service areas (as defined by FMCSA on January 1, 2005
State Agencies: Five directors from among the professional staffs of State agencies responsible for overseeing the administration of the UCR Agreement who must be nominated by the National Conference of State Transportation Specialists (NCSTS), a non-profit organization founded in 1959 and consisting of State agencies involved in transportation safety, insurance and consumer protection. Directors appointed in this category include: Mr. Avelino A. Gutierrez, Staff Counsel, New Mexico Public Regulation Commission (NMPRC); Ms. Barbara Hague, Special Projects Coordinator, Missouri Department of Transportation Motor Carrier Services (MODOT); Mr. Dave Lazarides, Director of Processing and Information, Illinois Commerce Commission, Transportation Bureau; Mr. William Leonard, Director of the Freight Compliance and Safety Bureau, New York Department of Transportation (NYDOT); and Mr. Terry Willert, Chief, Transportation Section, Colorado Public Utility Commission (COPUC).
Motor Carrier Industry: Five directors must represent the motor carrier industry. At least one of the five motor carrier industry representatives must be from “a national trade association representing the general motor carrier of property industry” and one of them must be from “a motor carrier that falls within the smallest fleet fee bracket.” FMCSA recognizes the American Trucking Associations, Inc. (ATA) as the national trade association representing the general motor carrier of property industry. ATA is a national affiliation of State trucking organizations representing the national, State and local interests of the 50 affiliated State trucking associations; and the interests of specialized areas of the trucking industry through conferences and councils. The ATA representative is Mr. Robert Pitcher, Vice President, State Laws Division. The agency has selected the Owner-Operator Independent Drivers Association (OOIDA) as the organization from which to appoint an individual to represent motor carriers comprising the smallest fleet fee bracket. OOIDA is a national trade association representing the interests of small trucking companies and drivers. The OOIDA representative is Mr. Rick Craig, Treasurer and Director of Regulatory Affairs. The statute gives the Secretary discretion to appoint the remaining three industry representatives. In order to ensure participation on the Board by segments of the industry newly subject to the SSRS replacement system, the Secretary appointed three members as follows: (1) One director from the Transportation Intermediaries Association (TIA), Mr.
As required by section 14504a(d)(7), the UCR Board prepared and submitted to FMCSA a recommendation of initial fee brackets and annual fees for calendar year 2007. The Board assigned a Revenue and Fees Subcommittee to calculate the overall revenue requirement and to recommend fees and brackets. The Board then reviewed the analysis conducted by the Revenue and Fees Subcommittee and selected a bracket structure and fees that it recommended to FMCSA.
The Board first canvassed the States to determine how many States would participate in the UCR Agreement. The Board set a deadline of November 1, 2006, for the submission of plans by the States with their intent to participate in 2007. Although the State of Tennessee submitted its plan on November 6, 2006, the Board, on November 7, 2006, voted to allow Tennessee to participate for 2007.
Of the 38 States that participated in SSRS in 2006, all but two, California and North Carolina, agreed to participate in the UCR in registration year 2007.
To develop a nationwide figure for the replacement revenues needed under the UCR Agreement, the Board next asked SSRS States to provide information on the revenues they received for the registration year 2004, the year specified in the statute as mentioned above. In their responses, the SSRS States that agreed to participate under the UCR Agreement for 2007 certified their revenue figures for 2004. The total certified SSRS State revenue figure was $101,272,400, as shown in Appendix E to the Board's recommendation.
SAFETEA-LU caps the maximum revenue figure for UCR States that did not participate in SSRS at $500,000 per year (49 U.S.C. 14504a(g)(3)). Because only one non-SSRS State agreed to participate in the UCR for registration year 2007 (Oregon), the Board added $500,000 to the total entitlement figure, bringing the total State revenue requirement under the UCR to $101,772,400.
Under section 14504a(d)(7) of the statute, the costs incurred by the Board to administer the UCR Agreement are eligible for inclusion in the total revenue to be collected. The Board considered that these administrative costs would include, but would not be limited to, meeting costs and start up costs of a web-based registration system that will allow the motor carrier industry to register and pay required fees on-line. In addition, the administrative costs would include costs of a repository for the administration of the Board and a depository for the revenues generated under the UCR Agreement to be distributed among the participating States. The Board estimated $5,000,000 for administrative expenses for the first year of the UCR Plan and Agreement, as shown in Appendix F to the Board's recommendation.
The Board's revenue target for 2007 is $107,306,262, which is composed of $101,772,400 for State revenue as discussed above in “III.B. Certification of State Revenues,” plus the Board's estimate of $5,000,000 for administrative expenses as discussed above in “III.C. Administrative Costs”. The Board also included in its revenue target recommendation to FMCSA an additional amount of $533,862, equal to one-half of one percent of the State revenue total and administrative expenses. The Board stated that it added this additional amount as a reserve to offset the risk of faulty data.
The Board's recommendation is based on the premise that revenues will be generated “from all motor carrier entities involved in interstate commerce.” Each of the five categories of motor carrier entities is defined by statute (in some cases with modifications or additions found in section 14504a) as shown in Table 1 below.
To estimate the number of carriers subject to the UCR Agreement, the Board sought an approach that would provide a number of carriers for which active status could be estimated to allow for a conservative universe of interstate carriers. FMCSA maintains the most comprehensive databases describing the entities that are subject to the UCR Agreement. The Motor Carrier Management Information System (MCMIS) and the License and Insurance System (L&I) maintained by FMCSA house information about the known universe of the motor carrier industry (in MCMIS) and brokers and freight forwarders (in L&I). Carriers that operate commercial motor vehicles in interstate commerce are required to register with FMCSA by providing carrier census data and acquiring a USDOT number. The carrier census data resides in MCMIS, and similar information on brokers and freight forwarders is in the L&I System. The States have access to data derived from MCMIS through the SafetyNet system. To determine an estimate of the active population of motor carriers, the Board used the SafetyNet system maintained by New York State to identify carriers. The Board filtered data from the SafetyNet data base to exclude carriers that neither had updated their MCS-150 census file nor had an inspection, crash, safety audit, or compliance review recorded within the past 12 months (March 1, 2006, through
In establishing the number and composition of the brackets, under the statute the Board had the option of choosing among four, five, or six brackets for the distribution of the 365,273 entities it determined would be expected to pay the fee as set forth above in “III.E. Estimate of Carrier Population.” Given the huge range of fleet sizes (from none to over 100,000 commercial motor vehicles), the Board decided to use the maximum allowable number of brackets, thereby helping to reduce the range of sizes within individual brackets. The Board decided to make the first bracket include no more than two CMV s, recognizing the large fraction of very small carriers, as shown in Table 2 below in “III.G. Fee Levels for Each Bracket.” The Board's analysis of the population showed that 182,782 of the total of 365,273 carriers, or more than half of the carriers, operated just one or two commercial motor vehicles (e.g., one tractor and one trailer). The Board also decided that a “high-end” bracket with more than 1,000 commercial motor vehicles was necessary. The Board performed a special analysis of carriers with more than 1,000 commercial motor vehicles and calculated the high-end (sixth) bracket under the assumption that, due to errors in reporting and uncertainty in the data, only 75 percent of the carriers indicating more than 1,000 commercial motor vehicles actually operate that many. Based on a survey it undertook, the Board estimated that only 85 percent of the number of carriers listed in MCMIS as having more than 1,000 power units actually operated that many vehicles. Addition of trailers to the universe of power units adds an additional degree of uncertainty and inaccuracy. The Board, therefore, decided to further reduce the reliability rate for the top bracket to 75 percent, to account for the inclusion of trailers. This adjustment reduced the total number of motor carrier entities to 365,071.
The Board assigned the second bracket to contain carriers having no more than five motor vehicles because it found, based on its analysis of the distribution of motor vehicles across carriers as shown in Table 2, that just over 70 percent of all carriers (182,782 + 72,910/365,071) have fewer than six motor vehicles. The remaining three brackets were assigned in such a way that they built a reasonable bridge between 6 and 1,000 motor vehicles: One bracket covered carriers with 6 through 20 motor vehicles, the next covered carriers with 21 through 100 motor vehicles, and the next covered carriers with 101 through 1000 motor vehicles.
As discussed above under “III. D. Revenue Target,” the Board's target revenue figure with administrative costs and reserve is $107,306,262. To determine how to allocate that sum among the six brackets, the Board relied upon an interactive model that calculated the number of entities in each bracket; the revenues generated by each bracket at different fee amounts; total revenues; and any surplus or deficit from the $107,306,262 target figure. The Board also considered fairness in terms of fees per motor vehicle while assigning the fees for each bracket. The Board agreed to make sure that the maximum fee per commercial motor vehicle in a given bracket would be no higher than the maximum fee per commercial motor vehicle in the next smaller bracket, a criterion that was unanimously regarded as fair by the Board. In addition, the Board obtained data from a few States on the average fees currently paid under SSRS to provide the Board with a benchmark figure. Using these tools and after deliberations and debate, the Board agreed upon the proposed fee amounts.
The fees recommended by the Board range from a low of $39 for carriers in the lowest bracket (0 to 2 CMVs) to a high of $37,500 (the 1001-or-greater CMVs bracket). The Board estimated that this fee structure would generate $107,352,364 in revenues, meeting the target figure with a projected reserve of $579,964 for the UCR registration year 2007. Table 2 provides the bracket and fee structure recommended by the Board to FMCSA on April 2, 2007. The table is based on Page 10 of the report submitted by the Board to USDOT and FMCSA dated March 23,2007, entitled “Report of the Revenues and Fees Subcommittee Recommended Fee Structure Discussion Pursuant to the Unified Carrier Registration Agreement.”
Section 14504a requires FMCSA and the Board to consider the relevant factors laid out in detail above in “II. Statutory Requirements for UCR Fees.” That statutory section also requires FMCSA to consider the recommendation of the UCR Board and the same statutory requirements in setting the UCR fees. FMCSA carefully examined the Board's entire fee recommendation including the methodology and specific findings of the Board. FMCSA also independently considered the factors specified in SAFETEA-LU, and verified and utilized the data and analysis provided by the Board in its fee recommendation. As discussed in detail below, FMCSA has concluded that the Board's recommendations are reasonable and that the Board considered all required factors specified by SAFETEA-LU. The Board satisfied the requirements for establishing the fees to be charged under the unified carrier registration agreement in the following areas:
States may choose to participate in the UCR Plan and Agreement for 2007 by submitting the State plan that complies with section 14505a( e). The Board provided adequate opportunity for all States to participate in the UCR Plan and Agreement for registration year 2007, even going so far as to make an exception for the State of Tennessee when it filed its plan after the cutoff date set by the Board. The Board's allowance of participation by Tennessee is permitted by section 14504a(e)(1), which establishes a final deadline of August 10, 2008 for participation by the States.
The Board's calculation of the total revenue to be collected under the UCR was properly based upon the revenues collected by the participating States (both under SSRS and for intrastate registrations of interstate carriers) for the calendar year 2004. The Board provided FMCSA with the certifications from every participating State so FMCSA could independently verify the amounts, as shown in Table 3. From Table 3, it can be seen that the Board included the revenue collected by the States that participated in the SSRS as well as the UCR Agreement while determining the revenue required from the UCR Agreement. The addition of $500,000 for the inclusion of Oregon to the UCR Agreement is also in accordance with the revenue requirement. FMCSA has verified that the Board has accurately reflected in its recommendations the revenue entitlements certified by each participating State for 2007. In accordance with 49 U.S.C. 14504a(g)(4), FMCSA proposes to approve the amount of revenue under the UCR Agreement which each State participating in 2007 is entitled, as specified in Table 3. The Board's addition of a revenue reserve, equal to one half of one percent of the State revenue entitlement and administrative costs, offsets the risk of faulty data, especially on trailers. The intent of this addition is to offset the risk of undercollection, rather than to accumulate excess revenues.
The Board provided an estimate of the administrative costs associated with the unified carrier registration plan and agreement, as required by section 14504a(d)(7)(A)(i)). The Board's estimate includes the following:
• The Board estimated the cost of setting a web-based registration and payment system as $2,000,000. FMCSA believes, based upon our experience with development of information technology (IT) systems, that this amount may be within the range of appropriate costs for the rapid development of IT systems. However, FMCSA requests comments on the reasonableness of the Board's estimate.
• The Board assumed that approximately half of the revenue will be collected online ($50,000,000) and that credit card operating expenses would amount to 3 percent, or $1,500,000. FMCSA believes this to be a reasonable estimate, based on its own investigation into the cost of credit card payments. FMCSA found that the expenses associated with accepting payments through credit cards arise from discount rate, fixed transaction fee, chargeback fee and other miscellaneous fees. A typical merchant discount rate ranges from 1.5 to 3 percent, the fixed transaction fee can cost between 20 and 30 cents per transaction, and chargeback fees range from 10 to 25 dollars per chargeback. Given that the costs could be as high as 3 percent as a result of the discount rate alone, the Board's estimate of a total cost of 3 percent of the payments charged is within the normal range.
• The Board intends to send a UCR application package to all interstate carriers currently listed in MCMIS, approximately 700,000 carriers. Communication costs of $650,000 for 700,000 mailings appears to be reasonable, given postage and printing costs.
• The Board estimated the travel cost to total $100,000, based on the Board's projection of five meetings per year and 15 Board members. This total amounts to $1,333 per member per meeting, which FMCSA agrees is a reasonable estimate.
• Help desk and assistance cost to address phone queries is projected at $150,000 (5 full-time employees*40 hours/week*50 weeks*$25 per hour). FMCSA considers this estimate to be somewhat high, but not unreasonable given uncertainty about the volume of inquiries.
• The Depository cost of $500,000 is only 0.5% of the total revenue collected ($100 million). Charging a fee of 0.5% of the total money managed is not unusual.
The Board's calculation of the revenue target to be collected under the UCR was properly based upon the revenues collected by the participating States for the calendar year 2004, plus $500,000 for each non-SSRS State as required by the statute, plus administrative costs. The Board also included a one half of one percent addition to all fees as a “reserve.” Because the Board's fees recommendation pertains to the first year in which fees will be collected, the Board did not need to address whether revenues generated in the previous year and any surplus or shortage from that or prior years would enable the participating States to achieve the revenue levels set by the Board, as required by section 14504a(d)(7)(A)(ii).
The Board based its fee recommendation on a reasonable estimate of the number of commercial motor vehicles owned or operated by motor carriers, motor private carriers, and freight forwarders, as specified by section 14504a(f)(l)(A)(i). The key question of whether the recommended fee structure would generate enough revenue to meet the statutory requirement depended on the Board's estimates of the number of motor carrier entities in each size category. FMCSA carefully reviewed the method the Board used to make these estimates and replicated to a high level of accuracy the Board's estimates of the number of affected entities and the size distribution using its own data base. Using the same filters employed by the Board, FMCSA was able to generate the distribution and population of active carriers from the MCMIS database. The time frame for the filters in FMCSA's analysis was the calendar year 2006 while that of the Board was March 1, 2006 to February 26, 2007. In spite of this difference, FMCSA's estimate of the total affected population data differs from the Board's estimate by less than one percent. The high degree of correspondence between the two estimates gave FMCSA confidence that it understood the Board's analysis and that the Board's estimates are reasonable.
FMCSA worked with the Board to select the filters that were used to remove database entries that might not represent active interstate carriers, thereby ensuring that the filters used were reasonable: Carriers were included only if they showed recent evidence of activity. FMCSA also reviewed the Board's estimate of the total number of freight forwarders and brokers and concluded that it was likely to result in an accurate estimate. Though there was no attempt to filter them on the basis of signs of recent activity, FMCSA expects that even if any such measures were taken to determine whether they are active, the overall change that would occur in the total carrier population would be insignificant. FMCSA reached this conclusion based on the fact that the 14,575 freight forwarders and property brokers found in the L&I system represented only four percent of the total affected population, and (because they are included in the bracket with the smallest fee) an even smaller fraction of total revenue.
FMCSA notes that the Board did not separately consider the number of leasing companies when calculating the affected population or the revenues that the fees would raise. Because leasing companies that do not operate motor vehicles are assigned to the lowest bracket, and thus will pay no more than $39 per year, this omission is not significant. FMCSA estimates, on the basis of data from the US Census that there are only about 2,000 leasing companies that would be affected by the UCR rule. NAICS code 53212 (Truck, utility trailer, and recreational vehicle rental and leasing) represents the industry into which leasing companies fall. There are a total of 3,942 Truck rental (Product line code 52503) and 2,723 Truck leasing (Product line code 52504) establishments, for a total of 6,647 establishments. At most 6,647 leasing companies are affected by the rule. Because many firms have multiple establishments, the number of separate firms is considerably smaller. Although the Census does not show the exact number of firms, it does give enough information on firms with multiple establishments to determine a reasonable upper bound on total firms. The census data show that the largest 50 firms in this industry own a total of 4,115 establishments. The other firms must then own the remaining 2,532 establishments. Even assuming that all the remaining firms own only one establishment each, the total number of firms cannot be greater than the sum of 2,532 single-establishment firms and the 50 largest firms, or 2,582. At $39 each, the total revenues owed by this sector would be about $101,000. This amount is less than a tenth of one percent of total UCR revenues and would not change the fee in any bracket by more than the rounding error. Accordingly, inclusion of this amount would have a negligible or perhaps no impact on the proposed fee structure and fee levels. We do, however, invite comment on this point.
As Table 4 shows, FMCSA's estimates of the population of carriers in the various brackets corresponds closely to the estimates prepared by the Board. The high degree of correspondence between the two estimates, as shown in Table 4, gave FMCSA confidence that it understood the Board's analysis and that the Board's estimates are reasonable.
The Board used a 75 percent reliability factor while calculating the number of companies that own more then 1,000 motor vehicles. The Board determined the reliability rate to be 85 percent for carriers that own more than 1,000 power units based on their in-depth analysis. Though the Board provided no quantitative basis for lowering the reliability factor to 75 percent after the inclusion of trailers, FMCSA agrees that the addition of trailers to the universe of power units increases the degree of uncertainty and unreliability in the data, and that the change to 75 percent was reasonable.
The Board's recommendation satisfied the requirements of section 14504a(f)(1)(C) by specifying no more than 6 brackets of carriers based on the size of the fleet. FMCSA adopts as reasonable the six brackets and the fleet size distribution among the brackets.
FMCSA found that the Board recommended a fee scale that is progressive in the amount of the fee, as required by section 14504a(f)(1)(D), when assessed from bracket to bracket. There are six brackets, each one defined by carrier size in terms of the numbers of CMVs. The fees per carrier clearly increase as the size of the carriers in the brackets increases, thereby meeting the Board's understanding of a fee scale that is progressive.
The fee levels for brokers and leasing companies are based on the smallest fee charged under the UCR agreement, as specified by section 14504a(f)(1)(A)(ii). As mentioned above under “IV.D. Revenue Target,” the Board added one half of one percent to its revenue requirement to create what it termed a revenue reserve of $533,862. FMCSA examined the rationale for adding this amount and determined that it had a reasonable basis. FMCSA noted that the Board provided for fees that would collect an extra $533,862 because of the additional uncertainty resulting from data on trailers. Though it would be difficult to determine the true extent to which the accuracy of data on trailer use and ownership differs from that for power units, FMCSA did observe that the prevalence of trip-leasing of trailers is greater than that for trucks or tractors. The use of trip leases could create problems for the collection of revenues under UCR: The statute specifies that only commercial motor vehicles controlled under a long-term lease are to be included for the purpose of determining the applicable UCR fees (49 U.S.C. 14504a(f)(2)). However, the MCS-150 form includes a category for trip-leased vehicles. That data may be included in the MCMIS database, but motor carrier entities may choose to exclude trip-leased vehicles when selecting their fee bracket. The statute also provides alternative methods by which motor carrier entities may calculate the number of commercial motor vehicles in their fleet for the purpose of determining the applicable fees (49 U.S.C. 14504a(f)(3)). These factors all introduce a degree of uncertainty in the fleet sizes upon which the fees are based, and, therefore, in the total amount of fees collected.
By examining data on a large subset of the carrier population, FMCSA determined that omitting all trip-leased vehicles from carriers' vehicle counts could reduce the UCR revenues collected from the first five brackets by on the order of $1 million. Because carriers are not likely to omit all trip-leased vehicles, it appears that the Board would be justified in anticipating a loss of a half million for the first five brackets. There would be additional losses for the top bracket, but FMCSA considers those losses to be taken into account appropriately by the 75 percent factor used in projecting revenues from the top bracket. Thus, FMCSA concluded that the Board's
To get a better sense of the distribution of the fees, FMCSA calculated the average fee per motor vehicle by carrier size. Table 5 shows these averages for six carrier size groups that correspond to the fee brackets in the recommended fee structure.
Based on a careful evaluation and a point-by-point comparison of the Board's process with the statutory requirements, and upon an independent analysis and consideration of the required statutory provisions, FMCSA proposes to adopt the Board's recommended fees and fee structure.
The Board provided FMCSA with information on the process it anticipates following to collect the revenues under the UCR Plan and Agreement. The Board indicated that the participating States (see Table 3 above) will send a mailing to all active interstate carriers residing in FMCSA's Motor Carrier Management Information System (MCMIS) and to all brokers and freight forwarders found in FMCSA's Licensing and Insurance database. In the mailing the Board will provide contact numbers for all participating States, informational Web sites, and the Board may also establish a national call center to answer questions and direct covered entities to the appropriate State officials. The application form in the mailing will direct the entity to pay an amount based on the number of Commercial Motor Vehicles listed in their MCMIS data. The application will also allow carriers to amend that data for UCR purposes. The mailing will also direct covered entities that are domiciled in a participating State to register in that State and to pay the required fee to their State of registration or “base” State. Entities located in non-participating jurisdictions will be directed to register in the participating State that has the highest percentage of their operations. Entities that operate only in non-participating jurisdictions will be directed to choose a participating State located in their FMCSA Service Center Region. Canadian and Mexican entities will also be directed to choose the participating State with the highest percentage of their operations or to choose a contiguous State such as Maine, New York or Michigan for a Canadian entity. Covered entities will be given a set timeframe in which to register and enforcement will not begin for at least 90 days after the beginning
FMCSA has concluded that this action is a significant regulatory action within the meaning of Executive Order 12866 due to its subject matter.
This rule is not significant based on the size of the fees to be collected under the UCR. The costs of the rule are required pursuant to an explicit Congressional mandate in SAFETEA-LU. Because a majority of the fees under the proposed rule will replace fees currently being paid under the SSRS system, the total cost of the proposed rule will be substantially less than $100 million per year. New entities paying fees under UCR that did not pay under SSRS are estimated to account for slightly less than half the fees, or about $50 million in new costs per year. The Agency has prepared a preliminary regulatory analysis analyzing the rule. A copy of the preliminary analysis document is included in the docket referenced at the beginning of this notice.
In compliance with the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), (5 U.S.C. 601-612), FMCSA has considered the effects of this proposed regulatory action on small entities. The fees being proposed in this rule would affect large numbers of small entities because the proposed rule sets fees for hundreds of thousands of carriers of all sizes, and small entities are defined to include all entities that are not dominant in their industries. In previous rulemakings, FMCSA identified for-hire carriers with fewer than 145 power units i.e., trucks or tractors) as small. FMCSA estimates that carrier size to be equivalent to about 300 CMVs. Thus, all of the for-hire carriers in Brackets 1 through 4 would be considered small, as would many of those in Bracket 5.
After careful consideration, however, FMCSA has determined that the recommended UCR fee will, in every case involving a viable small entity, be well below the threshold level of one percent of revenues used for determining significant impacts. This conclusion is based on the observation that the maximum fee per vehicle is $39, which is less than one percent of the annual salary of even a single employee working 40 hours per week for 50 weeks per year and earning the current Federal minimum wage of $5.15. Because an entity without sufficient revenues to pay even one employee per vehicle would not be viable, it is clear that the recommended UCR fees will not reach the threshold of one percent of revenues. Additionally, more than 50 percent of the fees collected under the new UCR system were already being paid by many of these entities under the SSRS system, meaning the UCR fees will simply serve as substitutes for the SSRS fees these firms were previously being assessed. Thus, FMCSA certifies that the rule will not have a significant economic impact on a substantial number of small entities.
This rulemaking would not impose any unfunded Federal mandate, as defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532,
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
FMCSA has analyzed this proposed action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. We have determined preliminarily that this rulemaking would not create an environmental risk to health or safety that would disproportionately affect children.
This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132. FMCSA has preliminarily determined that this rulemaking would not have a substantial direct effect on States, nor would it limit the policy-making discretion ofthe States. Nothing in this proposal would preempt any State law or regulation. As detailed above, the UCR Board of Directors includes substantial State representation. The States have already had notice of this action and opportunity for input through their representatives. FMCSA also requests comments on any substantial direct effect on the States as outlined in Executive Order 13132.
The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.
The Paperwork Reduction Act of 1995 (44 US.C. 3507(d) requires that FMCSA consider the impact of paperwork and other information collection burdens imposed on the public. We have determined that there are no current new information collection requirements by FMCSA associated with this proposed rule.
The agency analyzed this final rule for the purpose of the National Environmental Policy Act of 1969 (NEPA) (42 D.S.C. 4321
We have also analyzed this rule under the Clean Air Act, as amended (CAA), section 176(c) (42 D.S.C. 7401
FMCSA has analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or VSE. We have determined preliminarily that it would not be a “significant energy action” under that Executive Order because it would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.
Commercial motor vehicle, Financial responsibility, Motor carriers, Motor vehicle safety, Registration, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Federal Motor Carrier Safety Administration proposes to amend 49 CFR part 367 as follows:
1. The authority citation for part 367 is amended to read as follows:
49 U.S.C. 13301, 14504, 14504a; and 49 CFR 1.73.
2. Add a new Subpart A heading preceding § 367.1 to read as follows:
3. Add a new Subpart B to read as follows: Subpart B—Fees Under the Unified Carrier Registration Plan and Agreement
Rural Housing Service, USDA.
Notice; correction.
The Rural Housing Service is correcting a notice published in the
Accordingly, the notice published on April 19, 2007 (72 FR 19680-19684) is corrected as follows:
On page 19680, in the third column under the heading, “Submission Address,” the Idaho State Office address is added to read as follows: Idaho State Office, 9173 West Barnes Drive, Suite A1, Boise, ID 83709, (208) 378-5627, Roni Atkins.
For general information, applicants may contact Henry Searcy, Senior Loan Specialist, Multi-Family Housing Processing Division, Rural Housing Service, United States Department of Agriculture, Stop 0781, 1400 Independence Avenue, SW., Washington, DC, 20250-0781, telephone (202) 720-1753 (voice) (this is not a toll free number) or (800) 877-8339 (TDD-Federal Information Relay Service) or via e-mail at,
Economic Development Administration, Department of Commerce.
Notice and opportunity for public comment.
Pursuant to Section 251 of the Trade Act of 1974 (19 U.S.C. 2341
Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Office of Performance Evaluation, Room 7009, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10)
The Bureau of Industry and Security, U.S. Department of Commerce (“BIS”) has initiated an administrative proceeding against Data Physics Corporation (hereinafter referred to as “Data Physics”), case number 06-BIS-21, through the issuance of a charging letter, pursuant to Section 766.3 of the Export Administration Regulations (currently codified as 15 CFR parts 730-774 (2007)) (“Regulations”)
On or about December 20, 2001, Data Physics engaged in conduct prohibited by the Regulations when it exported a DP 550 Vibration Controller, an item subject to the Regulations, to the Chines Academy of Launch Vehicle Technology (“CALT”) in the People's Republic of China (“China”), an organization on BIS's Entity List,
On or about December 20, 2001, in connection with the transaction described in Charge 1 above, Data Physics sold and/or forwarded a DP 550 Vibration Controller with knowledge that a violation of the Regulations would occur in connection with the item. At all times relevant hereto, Data Physics knew or should have known that an export license was required to ship a DP 550 Vibration Controller, an item subject to the Regulation, from the United States to CALT, an entity on BIS's Entity List. Data Physics had reason to know that a license was required for this export since,
On or abut March 15, 2002, Data Physics engaged in conduct prohibited by the Regulations when it exported a Signalstar Vector (DP 560) vibration controller, an item subject to the Regulations, to the Beijing Automation Equipment Institute (“BACEI”) in China, an organization on BIS's Entity List,
On or about March 15, 2002, in connection with the transaction described in Charge 3 above, Data Physics sold and/or forwarded a Signalstar Vector (DP 560) vibration controller with knowledge that a violation of the Regulations would occur in connection with the item. At all times relevant hereto, Data Physics knew or should have known hereto, Data Physics knew or should have known that an export license was required to ship a Signalstar Vector (DP 560) vibration controller, an item subject to the Regulations, from the United States to BACEI, an entity on BIS's Entity List. Data Physics had reason to know that a license was required for this export since,
On or about March 15, 2002, in connection with the transaction described in Charges 3 and 4 above, Data Physics made a false statement to the U.S. Government in connection with the submission of an export control document. Specifically, Data Physics filed a Shipper's Export Declaration (“SED”) with the U.S. Government stating that the items that were the subject of the SED qualified for export as “NLR,” i.e., that no license was required.This representation was false, as a license was required for the Signalstar Vector (DP 560) vibration controller to be exported to the Beijing Automation Control Equipment Institute. In so doing, Data Physics committed one violation of Section 764.2(g) of the Regulations.
BIS and Data Physics having entered into a Settlement Agreement pursuant to Section 766.18(b) of the Regulations whereby they agreed to settle this matter in accordance with the terms and conditions set forth therein, and the terms of the Settlement Agreement having been approved by me;
A. Pursuant to the Debt Collection Act of 1982, as amended 931 U.S.C. 3701-3720E (1983 and Supp. 2000)), the civil penalty owed under this Order accrues interest as more fully described in the attached Notice, and, if payment is not made by the due date specified herein, Data Physics will be assessed, in addition to the full amount of the civil penalty and interest, a penalty charge and an administrative charge, as more fully described in the attached Notice.
B. The timely payment of the civil penalty set forth above is hereby made a condition to the granting, restoration, or continuing validity of any export license, license exception, permission, or privilege granted, or to be granted, to Data Physics. Accordingly, if Data Physics should fail to pay the civil penalty in a timely manner, the undersigned may enter an Order
C. Data Physics shall perform an audit of its internal compliance program within 12 months from the date of entry of this Order. Said audit shall be in substantial compliance with the Export management Systems audit module, which is available from the BIS Web site at
A. Applying for, obtaining, or using any license, License Exception, or export control document that involves export to China;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item that is subject to the Regulations and that is exported or to be exported from the United States to China, or in any other activity subject to the Regulations that involves China; or
C. Benefiting in any way from any transaction involving any item exported or to be exported from the United States to China that is subject to the Regulations, or in any other activity subject to the Regulations that involves China.
A. Export or reexport to or on behalf of a Denied Person any item subject to the Regulations to China;
B. Take any action that facilitates the acquisition or attempted acquisition by a Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States to China, including financing or other support activities related to a transaction whereby a Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from a denied person of any item subject to the Regulations that has been exported from the United States to China;
D. Obtain from a Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States to China; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States to China and that is owned, possessed or controlled by a Denied person, or service any item, of whatever origin, that is owned, possessed or controlled by a Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States to China. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
F. This Order does not prohibit any export, reexport, or other transaction subject to the Regulations where the only items involved that are subject to the Regulations are the foreign-produced direct product of U.S.-origin technology.
Fourth, that, after notice and opportunity for coment as provided in Section 766.23 of the Regulations, any person, firm, corporation, or business orgnaization related to Data Physics by affiliation, ownership, control, or postiion of responsibility in the conduct of trade or related services may also be made subject to the provisions of the Order
Fifth, that the charging letter, amended charging letter, the Settlement Agreement, and this Order, and the record of the cases as defined by Section 766.20 of the Regulations shall be made available to the public. BIS shall notify the administrative law judge that case 06-BIS-21 is withdrawn from adjudication.
Sixth, that this Order shall be served on the Denied Person and on BIS, and shall be pub lished in the
This Order, which constitutes the final agency action in this matter, is effective immedicately.
The Regulations and procedures Technical Advisory Committee (RPTAC) will meet June 12, 2007, 9 a.m., Room 3884, in the Herbert C. Hoover Building, 14th Street between Constitution and Pennsylvania Avenues, NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on implementation of the Export Administration Regulations (EAR) and provides for continuing review to update the EAR as needed.
1. Opening remarks by the Chairman.
2. Presentation of papers or comments by the Public.
3. Opening remarks by the Bureau of Industry and Security.
4. Published regulation update.
5. Automated Export System (AES) update.
6. Working group reports.
7. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3).
A limited number of seats will be available for the public session. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate the distribution of public presentation materials to the Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Yvette Springer at
The Assistant Secretary for Administration, with the concurrence of
For more information, call Yvette Springer at (202) 482-2813.
Import Administration, International Trade Administration, Department of Commerce.
May 29, 2007.
Brian Smith or Gemal Brangman, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-1766 or (202) 482-3773, respectively.
On October 31, 2006, the Department published in the
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), requires the Department of Commerce (“Department”) to issue the preliminary results of an administrative review within 245 days after the last day of the anniversary month of an order for which a review is requested and a final determination within 120 days after the date on which the preliminary results are published. If it is not practicable to complete the review within the time period, section 751(a)(3)(A) of the Act allows the Department to extend these deadlines to a maximum of 365 days and 180 days, respectively.
The Department requires additional time to review and analyze the sales and cost information submitted by the respondent in this administrative review and, if necessary, issue an additional supplemental questionnaire. Thus, it is not practicable to complete this review within the original time limit. Therefore, the Department is partially extending the time limit for completion of the preliminary results by 90 days to 335 days, in accordance with section 751(a)(3)(A) of the Act. The preliminary results are now due no later than August 31, 2007. The final results continue to be due 120 days after publication of the preliminary results.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Notice and request for comments.
The International Trade Administration proposes to organize a “Green Manufacturing Day”, aimed at enhancing public-private interaction in the field of sustainable manufacturing. This notice seeks public input on areas of interest for discussion at the proposed “Green Manufacturing Day”.
Submit comments no later than 30 days after the date of this notice.
Address all comments concerning this notice and requests to participate to William McElnea, U.S. Department of Commerce, Room 2213, 1401 Constitution Ave. NW., Washington, DC 20230 (or via the Internet at
William McElnea, 202-482-2831.
Sustainable manufacturing has garnered increasing attention among the manufacturing industry as firms have recognized its cost-effectiveness and profitability. For the purposes of this notice, “sustainable manufacturing” is defined as the creation of manufactured products that use processes that are non-polluting, conserve energy and natural resources, are economically sound, and safe for employees, communities, and consumers. At this early stage in sustainable manufacturing's development, increased public-private interaction can be an effective means for government and industry to (a) identify the opportunities and challenges faced by manufacturers in pursuing sustainable production practices and (b) promote capacity-building among individual firms and industry sectors as a whole.
The purpose of the proposed “Green Manufacturing Day”, tentatively scheduled for September 2007, will be to: (1) Disseminate and promote best business practices in sustainable manufacturing, (2) assist small-and-medium-sized enterprises in identifying and implementing practical sustainable manufacturing solutions, (3) provide information on relevant emerging technologies, (4) educate participants on federal government efforts to promote sustainable manufacturing, and (5) provide information on international sustainable manufacturing initiatives, projects, and opportunities. The event will include presenters/speakers from a variety of stakeholder groups (
Topic areas covered may include, but are not limited to, industrial recycling, natural resource conservation, water supply and waste-water treatment, solid-waste management, hazardous waste management, environmental assessment, environmental accounting, lean and clean manufacturing, regulatory compliance, renewable energy, remanufacturing, refurbishing/reconditioning, environmental technology research and development, and air pollution control.
In preparation for the proposed event, the U.S. Department of Commerce is requesting feedback from the public on the following:
• Topic areas of interest to U.S. businesses with regard to sustainable manufacturing (responses may reference those topic areas mentioned above or other related topic areas not mentioned);
• The types of information U.S. businesses seek in these topic areas (
• Sustainable manufacturing implementation issues affecting small and medium-sized enterprises;
• Emerging technologies for clean manufacturing that are technologically-proven, but are not yet widely recognized or used;
• Federal government practices or voluntary programs that have been particularly useful in promoting clean or sustainable manufacturing or business practices.
In the notice published in the
DoD.
Notice.
Under the provisions of the Federal Advisory Committee Act of 1072, (5 U.S.C. Appendix, as amended), the sunshine in the Government Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.65, The Department of Defense gives notice that it intents to establish the Department of Defense Audit Advisory Committee, as a discretionary Federal advisory committee.
This committee will provide the Secretary of Defense, through the Under Secretary of Defense (Comptroller)/Chief Financial Officer, independent advice on DoD's financial management, including the financial reporting process, systems of internal controls, audit process and processes for monitoring compliance with applicable laws and regulations. In accordance with DoD policy and procedures, the Under Secretary of Defense (Comptroller)/Chief Financial Officer is authorized to act upon the advice emanating from this advisory committee.
The Department of Defense Audit Advisory Committee shall be composed of no more than five members who are eminent authorities in the fields of financial management and audit. Committee members appointed by the Secretary of Defense, who are not full-time Federal officers or employees, shall serve as Special Government Employees under the authority of 5 U.S.C. 3109.
The Department of Defense Audit Advisory Committee, in keeping with DoD policy to make every effort to achieve a balanced membership, includes a cross section of experts directly affected, interested and qualified to advice on financial and audit matters. Committee members shall be appointed on an annual basis by the Secretary of Defense, and with the exception of travel and per diem for official travel, shall serve without compensation. The Under Secretary of Defense (Comptroller)/Chief Financial Officer shall select the committee's chairperson from the committee's membership at large.
The Department of Defense Audit Advisory Committee shall meet at the call of the committee's Designated Federal Officer, in consultation with the Chairperson, and the estimated number of committee meetings if four per year. The Designated Federal Officer shall be a full-time or permanent part-time DoD employee, and shall be appointed in accordance with established DoD policies and procedures. The Designated Federal Officer or duly appointed Alternate Designated Federal Officer shall attend all committee meetings and subcommittee meetings.
The Department of Defense Audit Advisory Committee shall be authorized to establish subcommittees, as necessary and consistent with its mission, and these subcommittees or working groups shall operate under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Sunshine in the Government Act of 1976 (5 U.S.C. 552b, as amended), and other appropriate Federal regulations.
Such committees or workgroups shall not work independently of the chartered committee, and shall report all their recommendations and advice to the Department of Defense Audit Advisory Committee for full deliberation and discussion. Subcommittees or workgroups have no authority to make decisions on behalf of the chartered committee nor can they report directly to the Department of Defense or any Federal officers or employees who are not members of the Department of Defense Audit Advisory Committee.
Frank Wilson, DoD Committee Management Officer, 703-601-2554.
United States Marine Corps, DoD.
Notice to delete three systems of records.
The U.S. Marine Corps is deleting three systems of records notices from its inventory of records systems subject to the Privacy Act of 1974, as amended (5 U.S.C. 552a).
Effective May 29, 2007.
Send comments to Headquarters, U.S. Marine Corps, FOIA/PA Section (CMC-ARSE), 2 Navy Annex, Room 1005, Washington, DC 20380-1775.
Ms. Tracy D. Ross at (703) 614-4008.
The U.S. Marine Corps' records system notices for records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a) as amended, have been published in the
The U.S. Marine Corps proposes to delete three systems of records notices from its inventory of record systems subject to the privacy Act of 974 (5 U.S.C. 552a), as amended. The changes to the system of records are not within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of new or altered systems reports.
MMN00009
Military Police Information System (MILPINS) (October 22, 1999, 64 FR 57071).
Information is now filed under NM05580-1, Security Incident System; NM08370-1, Weapons Registration, NM05512-1, Vehicle Parking Permit and License Control System and A0040-905 DASG, Defense Privately Owned Animal Record Files.
MMN00014
Work Measurement Labor Distribution Cards (November 4, 1999, 64 FR 60174).
Information is now filed under NM12610-1, Hours of Duty Records (November 16, 2004, 69 FR 67138).
MMN00037
Library Patron File (January 4, 2000, 65 FR 291).
Information combined in NM05070-1, Library Patron File (August 15, 2006, 71 FR 46899).
Department of the Navy, DoD.
Notice to amend a system of records.
The Department of the Navy is amending a system of records notice in its existing inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice on June 28, 2007 unless comments are received which result in a contrary determination.
Send comments to the Department of the Navy, PA/FOIA Policy Branch, Chief of Naval Operations (DNS-36), 2000 Navy Pentagon, Washington, DC 20350-2000.
Mrs. Doris Lama at (202) 685-6545.
The Department of the Navy systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The specific changes to the record system being amended are set forth below followed by the notice, as amended, published in its entirety. The proposed amendments are not within the purview of subsection (r) of the Privacy Act of 1974, (5 U.S.C. 52a), as amended, which requires the submission of a new or altered system report.
Property Accountability Records (May 31, 2006, 71 FR 30894).
At end of first para delete
Delete entry and replace with “To identify individuals to whom government property has been issued and provide a record of loss or deterioration of clothing and equipment assigned to each individual.”
Delete entry and replace with “Paper records in file folders and electronic media.”
Delete entry and replace with “Property accounting records are destroyed when two years old. Custody receipts are destroyed when material or equipment is destroyed or individual is separated.”
Delete entry and replace with “Command officer of the activity in question. Official mailing addresses are published in the Standard Navy Distribution List (SNDL) that is available at
Delete first para and replace with “Individuals seeking to determine whether system records contain information pertaining to them may do so by making application to the commanding officer or officer in charge of the activity where the receipts are located. Individuals making applications must have an identification card. Official mailing addresses are published in the Standard Navy Distribution List (SNDL) that is available at
Delete first para and replace with “Individuals seeking access to information about themselves contained in this system should address written inquiries to the commanding officer or officer in charge of the activity where the receipts are located. Individuals making application must have an identification card. Official mailing addresses are published in the Standard Navy Distribution List (SNDL that is available at
Delete entry and replace with “Individual and command reports.”
Property Accountability Records
Organizational elements of the Department of the Navy. Official mailing addresses are published in the Standard Navy Distribution List (SNDL) that is available at
Commander, U.S. Joint Forces Command, 1562 Mitscher Avenue, Suite 200, Norfolk, VA 23551-2488.
Commander, U.S. Pacific Command, P.O. Box 64028, Camp H.M. Smith, HI 96861-4028.
Any individual who receives and signs for government property.
The receipts maintained are any of the following: Logbooks, property passes, custody chits, charge tickets, sign out cards, tool tickets, sign out forms, photographs, charge cards, or any other statement of individual accountability for receipt of government property.
10 U.S.C. 5013, Secretary of the Navy; 10 U.S.C. 5041, Headquarters, Marine Corps; and E.O. 9397 (SSN).
To identify individuals to whom government property has been issued and provide a record of loss or deterioration of clothing and equipment assigned to each individual.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD “Blanket Routine Uses” that appear at the beginning of the Navy's compilation of systems of records notices apply to this system.
Paper records in file folders and electronic media.
Individual's name, Social Security Number (SSN), badge number, tool number, property serial number, or any other locally determined method of property receipt accountability.
Access is limited and provided on a need-to-know basis only. Computerized data bases are password protected.
Property accounting records are destroyed when two years old. Custody receipts are destroyed when material or equipment is destroyed or individual is separated.
Commanding officer of the activity in question. Official mailing addresses are published in the Standard Navy Distribution List (SNDL) that is available at
Individuals seeking to determine whether system records contain information pertaining to them may do so by making application to the commanding officer or officer in charge of the activity where the receipts are located. Individuals making applications must have an identification card. Official mailing addresses are published in the Standard Navy Distribution List (SNDL) that is available at
Written requests must contain individual's name, Social Security Number (SSN), and signed.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the commanding officer or officer in charge of the activity where the receipts are located. Individuals making application must have an identification card. Official mailing addresses are published in the Standard Navy Distribution List (SNDL that is available at
Written request must contain individual's name, Social Security number (SSN), and signed.
The Navy's rules for accessing records, and for contesting contents and appealing initial agency determinations are published in Secretary of the Navy Instruction 5211.5; 32 CFR part 701; or may be obtained from the system manager.
Individual and command reports.
None.
Department of Energy, Office of Energy Efficiency and Renewable Energy.
Notice of open teleconference.
This notice announces a teleconference of the State Energy Advisory Board (STEAB). The Federal Advisory Committee Act (Pub. L 92-463; 86 Stat. 770) requires that public notice of these teleconferences be announced in the
Gary Burch, STEAB Designated Federal Officer, Assistant Manager, Intergovernmental Projects & Outreach, Golden Field Office, U.S. Department of Energy, 1617 Cole Boulevard, Golden, CO 80401, Telephone 303/275-4801.
Purpose of the Board: To make recommendations to the Assistant Secretary for Energy Efficiency and Renewable Energy regarding goals and objectives, programmatic and administrative policies, and to otherwise carry out the Board's responsibilities as designated in the State Energy Efficiency Programs Improvement Act of 1990 (Pub. L. 101-440).
The notes of the teleconference will be available for public review and copying within 60 days at the Freedom of Information
Federal Energy Regulatory Commission.
Notice.
In compliance with the requirements of section 3506(c)(2)(a) of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), the Federal Energy Regulatory Commission (Commission) is soliciting public comment on the specific aspects of the information collection described below.
Comments on the collection of information are due July 31, 2007.
Copies of sample filings of the proposed collection of information can be obtained from the Commission's Web site (
Documents filed electronically via the Internet must be prepared in WordPerfect, MS Word, Portable Document Format, or ASCII format. To file the document, access the Commission's Web site at
All comments may be viewed, printed or downloaded remotely via the Internet through FERC's homepage using the eLibrary link. For user assistance, contact
Michael Miller may be reached by telephone at (202) 502-8415, by fax at (202) 273-0873, and by e-mail at
The information collected under the requirements of FERC-574 “Gas Pipeline Certificates: Hinshaw Exemption” (OMB No. 1902-0116) is used by the Commission to implement the statutory provisions of Sections 1(c), 4 and 7 of the Natural Gas Act (NGA) (Pub. L. 75-688) (15 U.S.C. 717-717w). Natural gas pipeline companies file applications with the Commission furnishing information in order for a determination to be made as to whether the applicant qualifies for an exemption under the provisions of the Natural Gas Act (Section 1(c)). If the exemption is granted, the pipeline is not required to file certificate applications, rate schedules, or any other applications or forms prescribed by the Commission.
The exemption applies to companies engaged in the transportation or sale for resale of natural gas in interstate commerce if: (a) If they receive gas at or within the boundaries of the state from another person; (b) such gas is transported, sold, consumed within such state; (c) the rates, service and facilities of such company are subject to regulation by a State Commission. The data required to be filed by pipeline companies for an exemption is specified by 18 Code of Federal Regulations (CFR) Part 152.
The estimated total cost to respondents is $14,386 (245 hours divided by 2,080 hours per employee per year times $122,137 per year average salary (including overhead) per employee.
The reporting burden includes the total time, effort, or financial resources expended to generate, maintain, retain, disclose, or provide the information including: (1) Reviewing instructions; (2) developing, acquiring, installing, and utilizing technology and systems for the purposes of collecting, validating, verifying, processing, maintaining, disclosing and providing information; (3) adjusting the existing ways to comply with any previously applicable instructions and requirements; (4) training personnel to respond to a collection of information; (5) searching data sources; (6) completing and reviewing the collection of information; and (7) transmitting, or otherwise disclosing the information.
The estimate of cost for respondents is based upon salaries for professional and clerical support, as well as direct and indirect overhead costs. Direct costs include all costs directly attributable to providing this information, such as administrative costs and the cost for information technology. Indirect or overhead costs are costs incurred by an organization in support of its mission. These costs apply to activities which benefit the whole organization rather than any one particular function or activity.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance
Take notice that on May 15, 2007, Alliance Pipeline L.P. (Alliance) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, Second Revised Sheet No. 256, the following tariff sheet, to become effective June 15, 2007.
Alliance states that the purpose of this tariff change is to modify the assignment provisions of Alliance's Tariff.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on May 14, 2007, Calnev Pipe Line LLC (Calnev) pursuant to Rule 207(a)(2) of the Commission's Rules of Practice and Procedure, 18 CFR 385.207(a)(2)(2007) tendered for filing a petition to the Commission to issue a declaratory order confirming the proposed rate structure for Calnev's planned mainline expansion. Calnev requests a Commission decision on its petition by July 16, 2007.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on May 15, 2007, Central Kentucky Transmission Company (Central Kentucky) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, Substitute Third Revised Sheet No. 6, with a proposed effective date of April 1, 2007.
On April 2, 2007, Central Kentucky submitted a revised tariff sheet in accordance with Section 32 of its Tariff setting forth a retainage percentage reflecting the lost and unaccounted-for (LAUF) component of Columbia Gas Transmission Corporation's (Columbia) Transportation Retainage percentage. On April 30, the Commission accepted Central Kentucky's tariff filing, but directed that the effective date be changed from May 1, 2007 to April 1, 2007, “to accurately track Columbia's revised lost and unaccounted-for
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Such protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on May 15, 2007, Columbia Gas Transmission Corporation (Columbia) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following tariff sheets, with a proposed effective date of June 14, 2007:
Columbia states that it is making this filing to provide tariff authority addressing operational purchases and sales of natural gas by Columbia.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on May 15, 2007, Columbia Gas Transmission Corporation (Columbia Gas) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Second Revised sheet No. 283A, with an effective date of April 26, 2007.
Columbia states that the filing is being made in compliance with the Commission's Order on April 25, 2007, in Docket No. RP07-362-000.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Such protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on May 4, 2007, Commonwealth Edison Company (ComEd) tendered for filing additional information to a Construction Agreement between ComEd and High Trail Wind Farm, LLC, as requested by FERC staff on April 4, 2007.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all the parties in this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on May 16, 2007, Eastern Shore Natural Gas Company (Eastern Shore) tendered for filing its Interruptible Revenue Sharing Report pursuant to Section 37 of the General Terms and Conditions of its FERC Tariff and Article V, Paragraph 6 of the Stipulation and Agreement in Docket No. RP02-34-000.
Eastern Shore states that it intends to credit a total of $144,925, inclusive of $6,033 of interest, to its firm transportation customers on or about July 1, 2007.
Eastern states that the credit amount represents 90 percent of the net revenues received by Eastern Shore under Rate Schedule IT in excess of the cost of service allocated to such rate schedule for the period April 2006 through March 2007.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on May 14, 2007, Eastern Shore Natural Gas Company (Eastern Shore) tendered for as part of its FERC Gas Tariff, Second Revised Volume No. 1, the tariff sheets attached in Appendix A to the filing, to become effective May 15, 2007.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Such protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible online at
Take notice that on May 15, 2007, National Fuel Gas Supply Corporation (National Fuel) tendered for filing as part of its FERC Gas Tariff, Fourth Revised Volume No. 1, the following tariff sheets, with a proposed effective date of June 14, 2007.
National Fuel states that the purpose of this filing is to eliminate its two merchant service rate schedules—FMS and IMS—from its tariff. National Fuel's occasional operational sales of gas are now addressed by new GT&C section 40.
National Fuel states that copies of this filing were served upon its customers and interested state commissions.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on May 15, 2007, Northern Natural Gas Company (Northern) tendered for filing as part of its FERC Gas Tariff, Fifth Revised Volume No. 1, the following tariff sheets, with an effective date of June 15, 2007:
Northern states that the above referenced tariff sheets are being filed to add Mustang Station Unit 5 to the list of available storage points for receipt and delivery of storage services.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on May 11, 2007, Northwest Pipeline Corporation (Northwest) tendered for filing a refund report pursuant to the Commission's Order Approving Settlement issued on March 30, 2007 in Northwest's general rate proceeding in the above referenced docket.
Northwest states that the refund covers the period from January 1, 2007 through March 31, 2007.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on May 15, 2007, TransColorado Gas Transmission Company (TransColorado) tendered for filing an original and five copies of its revenue sharing report in accordance with the provisions of the Settlement in Docket No. RP99-106 and the Commission's Order dated April 24, 2002.
TransColorado states that a copy of this filing has been served upon all parties listed on the official service list in this proceeding.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Such protests must be filed on or before the date as indicated below. Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on May 1, 2007, Californians for Renewable Energy, Inc. (CARE) tendered for filing the first amendment to its complaint against the California Public Utilities Commission, Southern California Edison Company and Blythe Energy, LLC. CARE states that it filed a formal complaint against the respondents on February 28, 2007.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on April 24, 2007, Californians for Renewable Energy, Inc. (CARE) tendered for filing the first
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. We are asking federal, state, local, and tribal agencies with jurisdiction and/or special expertise with respect to environmental issues to cooperate with us in the preparation of the environmental document. Agencies who would like to request cooperating status should follow the instructions for filing comments described in paragraph n below.
k.
l. Vermont Marble Power Division of Omya Inc. filed a Pre-Application Document (PAD); including a proposed process plan and schedule with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
m. Copies of the PAD and Scoping Document 1 (SD1) are available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site (
Register online at
n. With this notice, we are soliciting comments on the PAD and SD1 as well as study requests. All comments on the PAD and SD1, and study requests should be sent to the address above in paragraph h. In addition, all comments on the PAD and SD1, study requests, requests for cooperating agency status, and all communications to Commission staff related to the merits of the potential application (original and eight copies) must be filed with the Commission at the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. All filings with the Commission must include on the first page, the project name (Otter Creek Hydroelectric Project) and number (P-2558-025), and bear the heading “Comments on Pre-Application Document,” “Study Requests,” “Comments on Scoping Document 1,” “Request for Cooperating Agency Status,” or “Communications to and from Commission Staff.” Any individual or entity interested in submitting study requests, commenting on the PAD or SD1, and any agency requesting cooperating status must do so by July 27, 2007.
Comments on the PAD and SD1, study requests, requests for cooperating agency status, and other permissible forms of communications with the Commission may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
o. At this time, Commission staff intends to prepare an Environmental Assessment for the project, in accordance with the National Environmental Policy Act. However,
We will hold a daytime and night time scoping meeting at the times and places noted below. We invite all interested individuals, organizations, and agencies to attend one or both of the meetings, and to assist staff in identifying particular study needs, as well as the scope of environmental issues to be addressed in the environmental document. The time and location of these meetings are as follows:
Scoping Document 1 (SD1), which outlines the subject areas to be addressed in the environmental document, has been mailed to the individuals and entities on the Commission's mailing list. Copies of SD1 will be available at the scoping meetings, or may be viewed on the web at
The applicant and Commission staff will conduct a site visit of the proposed project on Tuesday, June 5, 2007, starting at 9:30 a.m. All participants should meet at Vermont Marble Power Division of Omya Inc., located at 61 Main Street, Proctor, Vermont, 05765. All participants are responsible for their own transportation. Anyone with questions about the site visit should contact Mr. Todd Allard at (802) 770-7138 on or before June 5, 2007.
Meeting participants should come prepared to discuss their issues and/or concerns. Please review the Pre-Application Document in preparation for the scoping meeting. Directions on how to obtain a copy of the PAD and SD1 are included in item m of this document.
The scoping meeting will be recorded by a stenographer and will become part of the formal Commission record on the project.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before June 28, 2007.
Submit your comments, referencing docket ID number EPA-HQ-OW-2007-0142, to (1) EPA online using www.regulations.gov (our preferred method), by e-mail to
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; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On March 1, 2007 (72 FR 9328), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments on the draft ICR.
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OW-2007-0142, which is available for public viewing online at
Any comments related to this ICR should be submitted to EPA and OMB within 30 days of this notice. EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at
On January 25, 2007, the United States Court of Appeals for the Second Circuit remanded to EPA certain provisions in the 2004 Final Regulations to Establish Requirements for Cooling Water Intake Structures at Phase II Existing Facilities (See
Environmental Protection Agency (EPA).
Notice; Renewal of a Federal Advisory Committee on Detection and Quantitation in Clean Water Act Programs.
The Charter for the Environmental Protection Agency's Federal Advisory Committee on Detection and Quantitation Approaches and Uses in Clean Water Act (CWA) Programs (FACDQ) will be renewed for an additional two year period, to allow the committee to complete its work. This is a necessary committee which is in the public interest, in accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. App.2 section 9(c). The purpose of the FACDQ is to provide advice and recommendations to the EPA Administrator on policy issues related to detection and quantitation, and on the scientific and technical aspects associated with monitoring and
Copies of the Committee Charter will be filed with the appropriate committees of Congress and the Library of Congress.
Meghan Hessenauer, Engineering and Analysis Division, MC4303T, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; Telephone number: (202) 566-1040; Fax number: (202) 566-1053; E-mail address:
Environmental Protection Agency (EPA).
Notice.
The U.S. Environmental Protection Agency (EPA) is providing preliminary notice of its intention to solicit competitive applications for cooperative agreements to support contamination warning system demonstration pilots. These pilots will be part of the Agency's Water Security (WS) initiative (formerly WaterSentinel), which addresses the risk of contamination of drinking water distribution systems. Local governments or institutions (either public or private nonprofit organizations) that operate community water systems serving at least 750,000 people will be eligible to compete for these cooperative agreements. The purpose of this notice is to alert potential applicants to this future opportunity.
EPA intends to issue the Request for Applications (RFA) for contamination warning system cooperative agreements in June 2007.
For further information, contact Dan Schmelling, Water Security Division, Office of Ground Water and Drinking Water (MC 4601M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number (202) 564-5281;
The WS initiative is an EPA program that includes piloting contamination warning systems at drinking water utilities. This initiative is responsive to Homeland Security Presidential Directive 9, under which the Agency must “develop robust, comprehensive, and fully coordinated surveillance and monitoring systems * * * for * * * water quality that provides early detection and awareness of disease, pest, or poisonous agents.” The purpose of these pilots is to demonstrate warning systems that achieve timely detection and appropriate response to drinking water contamination incidents.
Under the WS initiative, EPA anticipates awarding four cooperative agreements for contamination warning system demonstration pilots, with individual award amounts between $3 and $12 million. A minimum 20 percent cost-share, which may include in-kind services, would be required. Contamination warning systems must address five monitoring and surveillance components, (1) online water quality monitoring, (2) contaminant sampling and analysis, (3) enhanced security monitoring, (4) consumer complaint surveillance, and (5) public health surveillance, along with a consequence management plan.
EPA has developed a document, Water Security Initiative: Interim Guidance on Planning for Contamination Warning System Deployment, to assist utilities with demonstrating these components. It is available at
Funding may be used by recipients to acquire services and fund contracts or to fund partnerships through subgrants, provided recipients follow applicable contracting and subgrants procedures. Please note that recipients may not award sole source contracts to consulting, engineering or other firms assisting applicants with the proposal based on the firm's role in preparing the proposal.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA or Agency) Science Advisory Board (SAB) Staff Office announces a public teleconference and a public meeting of the SAB Panel for the Review of EPA's 2007 Report on the Environment. The teleconference and meeting are being held to conduct a peer review of the EPA's draft Report on the Environment 2007: Science Report.
The public teleconference will be held on June 22, 2007 from 1 p.m. to 4 p.m. (Eastern Daylight Time). The public meeting will be held from 9 a.m. to 5:15 p.m. on July 10, 2007; 8:30 a.m. to 5:15 p.m. on July 11, 2007; and 8 a.m. to 12:15 p.m. on July 12, 2007 (Eastern Daylight Time).
The public meeting of the Panel will be held in the Washington, DC metropolitan area at a location that will be announced on the SAB Web site:
Any member of the public who wishes to obtain the teleconference call-in number and access code; submit a written or brief oral statement; or receive further information concerning the teleconference or meeting must contact Dr. Thomas Armitage, Designated Federal Officer (DFO). Dr. Armitage may be contacted at the EPA Science Advisory Board (1400F), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; or via telephone/voice mail: (202) 343-9995; fax
(202) 233-0643; or e-mail at:
Pursuant to the Federal Advisory Committee Act, Public Law 92-463, notice is hereby given that the SAB Panel for the Review of EPA's 2007 Report on the Environment will hold a public teleconference and public meeting to conduct a peer review of EPA's draft Report on the Environment 2007: Science Report. The SAB was established by 42 U.S.C. 4365 to provide independent scientific and technical advice to the Administrator on the technical basis for Agency positions and regulations. The SAB is a Federal Advisory Committee chartered under the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C., App. The SAB will comply with the provisions of FACA and all appropriate SAB Staff Office procedural policies.
EPA's Office of Research and Development has requested that the SAB review the ROE 2007 Science Report. The ROE 2007 Science Report asks key questions about the current status of, and trends in, the condition of the environment and human health. These questions are intended to be relevant to EPA's current regulatory and programmatic activities and mission, and they have been answered using a suite of environmental and human health indicators. The SAB has been asked to comment on: (1) The adequacy of the formulation and scope of the questions addressed in the ROE 2007 Science Report, (2) the appropriateness of the indicators used to answer the questions in the report, (3) the accuracy of the characterization of gaps and limitations in the indicators used in the report, (4) the appropriateness of regionalization of national indicators in the report, (5) the utility of regional indicators in the report, and (6) the overall quality of the report with respect to technical accuracy, clarity, and appropriateness of level of communication.
In response to EPA's request, the SAB Staff Office formed the SAB Panel for the Review of EPA's 2007 Report on the Environment. Background on the Panel formation process was provided in a
Environmental Protection Agency (EPA).
Notice of settlement.
Under Section 122(h) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the United States Environmental Protection Agency has entered into a settlement for reimbursement of past response concerning the Performance Advantage, Inc. Superfund Site located in Weogufka, Coosa County, Alabama.
The Agency will consider public comments on the settlement until June 28, 2007. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate.
Copies of the settlement are available from Ms. Paula V. Batchelor. Submit your comments, identified by Docket ID No. EPA-RO4-SFUND-2007-0427 or Site name Perfomance Advantage, Inc. Superfund Site by one of the following methods:
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•
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Written comments may be submitted to Ms. Batchelor within 30 calendar days of the date of this publication.
Paula V. Batchelor at 404/562-8887.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than June 22, 2007.
Board of Governors of the Federal Reserve System, May 23, 2007.
Department of Health and Human Services, Office of the Secretary, Office of Public Health and Science.
Notice.
As stipulated by the Federal Advisory Committee Act, the U.S. Department of Health and Human Services (DHHS) is hereby giving notice that the presidential Advisory Council on HIV/AIDS (PASCHA) will hold a meeting. the meeting will be open to the public.
The meeting will be held onTuesday, June 12, 2007 and Wednesday, June 13, 2070. The meeting will be held from 9 a.m. to approximately 5 p.m. on both days.
Department of Health and Human Services, Room 505A Hubert H. Humphrey Building; 200 Independence Avenue, SW.; Washington, DC 20201.
Ms. Mary (Marty) McGeein, Executive Director, Presidential Advisory Council on HIV/AIDS, Department of Health and Human Services, Independence Avenue, SW., Room 716G Hubert H. Humphrey Building, Washington, DC 20201; (202) 690-7694. More detailed information about PACHA can be obtained by accessing the Council's Web site at
PACHA was established by Executive Order 12963, dated June 14, 1995, as amended by Executive Order 13009, dated June 14, 1996. The Council wa established to provide advice, information, and recommendations to the Secretary regarding programs and policies intended to (a) promote effective prevention of HIV disease, (b) advance research on HIV and AIDS, and (c) promote quality services to persons living with HIV disease and AIDS. PACHA was established to serve solely as an advisory body to the Secretary of Health and Human Services. The Council is composed of not more than 21 members. Council membership is selected by the Secretary from individuals who are considered authorities with particular expertise in, or knowledge of, matters concerning HIV and AIDS.
The agenda for this Council meeting is being developed. The meeting agenda will be posted on the Council's Web site when it is drafted.
Public attendance at the meeting is limited to space available. Individuals
Members of the public will have the opportunity to provide comments at the meeting. Preregistration is required for public comment. Any individual who wishes to participate in the public comment session must register online at
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:
Topics include: Excessive alcohol consumption; adolescent health; worksite health promotion; asthma; controlling obesity; updating existing Community Guide reviews; and dissemination activities and projects in which the Community Guide is used.
Agenda items are subject to change as priorities dictate.
Persons interested in reserving a space for this meeting should call Tony Pearson-Clarke at 404.498.0972 by close of business on June 6, 2007.
Announcement (FOA) IP07-001, Effectiveness of an Intervention to Promote Comprehensive Vaccination Programs in the Obstetrician-Gynecologist Setting, FOA IP07-008, and Impact of New Adolescent Vaccines on the Delivery of Recommended Clinical Preventive Services, FOA IP07-009
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 a meeting of the aforementioned Special Emphasis Panel.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
The National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of public meeting.
Tuesday, June 26, 2007, opening session will begin at 9 a.m. EDT and the meeting will adjourn in mid-afternoon. Registration will be held from 8 a.m. to 9 a.m.
The Embassy Suites Pittsburgh International Airport, 550 Cherrington Parkway, Coraopolis, Pennsylvania 15108.
The NIOSH National Personal Protective Technology Laboratory (NPPTL) will hold a public meeting to discuss a proposed Total Inward Leakage (TIL) program for half-mask air-purifying particulate filtering respirator certification with plans to later include similar requirements for all respirator certifications.
Recent trends in the field of personal protective equipment (PPE) testing have focused on the need to effectively evaluate PPE systems performance for TIL under laboratory conditions. While TIL testing performed under laboratory conditions does not necessarily reflect expected actual field level PPE performance, it does represent a criterion for performance that
This meeting will be open to the public, limited only by the space available. The meeting room will accommodate approximately 75 people. Interested parties should make hotel reservations directly with the Embassy Suites Hotel at 412-269-9070 (ask for Lauren) before the cut-off date of June 11, 2007. A special group rate of $100 per night for meeting guests has been negotiated for this meeting. The NIOSH-NPPTL Public Meeting must be referenced to receive this rate.
Interested parties should confirm their attendance to this meeting by completing a registration form and forwarding it by e-mail (
Comments on the topics presented in this notice and at the meeting should be mailed to: NIOSH Docket Office, Robert A. Taft Laboratories, M/S C34, 4676 Columbia Parkway, Cincinnati, Ohio 45226, telephone 513-533-8303, fax 513-533-8285. Comments may also be submitted by e-mail to
NPPTL Event Management, 3604 Collins Ferry Road, Suite 100, Morgantown, West Virginia 26505-2353, Telephone 304-225-5138, Fax 304-225-2003, E-mail
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice
This notice describes, in accordance with the provisions of the National Institutes of Health Reform Act of 2006 (NIHRA), the methodology and process used for determining the amounts of unexpended Federal fiscal year (FY) 2004 SCHIP allotments remaining at the end of FY 2006, and the amounts of unexpended FY 2005 SCHIP allotments available mid-FY 2007, to be redistributed to certain States to eliminate these States' SCHIP funding shortfalls in FY 2007. In accordance with this methodology, this notice also contains the amounts of States' redistributed FY 2004 and FY 2005 allotments.
This notice also describes the amendments to the SCHIP statute, in accordance with the NIHRA, relating to the provisions for “qualifying States” to elect to receive a portion of their available SCHIP allotments as increased Federal matching funds for certain expenditures in their Medicaid programs.
Richard Strauss, (410) 786-2019.
Title XXI of the Social Security Act (the Act) sets forth the State Children's Health Insurance Program (SCHIP) to enable States, the District of Columbia, and specified Commonwealths and Territories to initiate and expand health insurance coverage to uninsured, low-income children. The 50 States, the District of Columbia, and the Commonwealths and Territories may implement SCHIP through a separate child health program under title XXI of the Act, an expanded program under title XIX of the Act, or a combination of both.
Section 2104(e) of the Act specifies that SCHIP allotments for a Federal fiscal year are available for payment to States' for their expenditures under an approved State child health plan for an initial 3-fiscal year period of availability, including the fiscal year for which the allotment was provided. Section 2104(f) of the Act specifies that the amounts of States' allotments, which are not expended during the initial 3-year period of availability, are to be redistributed to those States that have fully spent these fiscal year allotments during this period of availability in accordance with an appropriate procedure determined by the Secretary. Furthermore, section 2104(e) of the Act specifies that the amounts of the redistributed allotments continue to be available for expenditure by the States receiving these redistributions to the end of the fiscal year in which these funds are redistributed.
B. Enactment of the NIHRA and Special Rules for Addressing FY 2007 SCHIP Funding Shortfalls
In general, under section 2104(e) and (f) of the Act, any unexpended SCHIP allotments remaining following the end of the initial 3-year period of availability would otherwise be redistributed in accordance with an appropriate procedure determined by the Secretary. However, section 201(a) of the recently enacted National Institutes of Health Reform Act of 2006 (Pub. L. 109-482) (NIHRA) amended the SCHIP statute to add a new section 2104(h) of the Act. This new subsection provides for special rules to address States' FY 2007 SCHIP funding shortfalls. Specifically, in order to address States' FY 2007 SCHIP funding shortfalls, section 2104(h) of the Act provides for the redistribution in FY 2007 of the unexpended FY 2004 allotments remaining at the end of FY 2006, and the redistribution of certain amounts of unexpended FY 2005 allotments which are available for redistribution in months after March 31, 2007. This notice describes the implementation of section 201(a) of the NIHRA and contains the amounts of the States' redistributed FY 2004 and FY 2005 allotments determined in accordance with these provisions.
Under section 2105(a)(1)(A) through (D) and (a)(2) of the Act, and before enactment of Public Law 108-74 (Extension of Availability of SCHIP Allotment Act, enacted on August 15, 2003), only Federal payments for the following Medicaid and SCHIP expenditures were applied against States' available SCHIP allotments: (1) Medical assistance provided under title XIX (Medicaid) to targeted low-income children in a SCHIP-related Medicaid expansion, for which the enhanced SCHIP Federal Medical assistance program( FMAP) rate is available; (2) medical assistance provided on behalf of a child during a period of presumptive eligibility under section 1920A of the Act (these funds are matched at the regular Medicaid FMAP rate); (3) child health assistance to targeted low income children that meets minimum benefit requirements under SCHIP; and (4) expenditures in the SCHIP that are subject to the 10-percent limit on non-primary expenditures (including other child health assistance for targeted low-income children, health services initiatives, outreach, and administrative costs).
Section 1(b) of Public Law 108-74, as amended by Public Law 108-127 (Social Security Act, Technical corrections, enacted November 17, 2003), added new section 2105(g) to the Act under which certain “qualifying States” that met prescribed criteria could elect to use up to 20 percent of any of the States' available SCHIP allotments for FY 1998, 1999, 2000, or 2001 to increase the FMAP rate for regular Medicaid expenditures to the enhanced FMAP rate available under SCHIP. As described in the
Section 6103 of the Deficit Reduction Act of 2005 (Pub.L. 109—171, enacted on February 8, 2006) amended section 2105(g) of the Act to provide for continued authority for qualifying States to use a portion of their available FY 2004 and FY 2005 SCHIP allotments to allow the use of the enhanced (FMAP) rate (as determined under section 2105(b) of the Act) for certain expenditures made under the Medicaid program.
Section 201(b) of the NIHRA amended section 2105(g) of the Act to provide for continued authority for qualifying States to use a portion of their available FY 2006 and FY 2007 SCHIP allotments to allow the use of the enhanced Federal Medical assistance percentage (FMAP) rate (as determined under section 2105(b) of the Act) for certain expenditures made under the Medicaid program.
The purpose of this notice is to set forth our procedure for redistributing unexpended FY 2004 and FY 2005 allotments in accordance with section 2104(h) of the Act as added by the NIHRA. In this regard, this notice applies solely to the redistribution of unexpended FY 2004 and FY 2005 allotments and does not describe the procedure for the redistribution of any other unexpended fiscal year allotments. This notice also implements the continued authority for “qualifying States” to elect to receive a portion of certain of their available FY 2006 and FY 2007 SCHIP allotments as increased Federal matching funds for certain expenditures in their Medicaid programs.
Section 2104(f) of the Act provides for the Secretary to determine an appropriate procedure to redistribute the entire amount of States' unexpended SCHIP allotments following the end of the related initial 3-year period of availability only to those States that fully expended the allotments by the end of the initial 3-year period of availability. However, section 2104(h)(1) of the Act as added by section 201(a) of the NIHRA, specifies the application of special rules for the redistribution of the unexpended FY 2004 allotments in FY 2007 with respect to certain “shortfall States.” As described below, the procedure for redistribution of States' unexpended FY 2004 allotments remaining at the end of FY 2006 will be in accordance with the provisions of section 2104(h)(1) of the Act relating to the elimination of funding shortfalls in the SCHIP in FY 2007.
Under section 2104(h)(7) of the Act as amended by the NIHRA, the special rules for the redistribution of the unexpended FY 2004 and FY 2005 allotments in FY 2007 to address FY 2007 SCHIP funding shortfalls apply only to the 50 States and the District of Columbia; that is, this provision refers only to States which received an allotment under section 2104(
Under section 2104(h)(1)(B) of the Act, a shortfall State is a State with an approved child health plan under title XXI of the Act, for which the Secretary estimates, on a monthly basis using the most recent data available to the Secretary, that the State's projected FY 2007 expenditures under this plan will exceed the sum of:
i. The amount of the State's allotments for each of FY's 2005 and 2006 that were not expended by the end of FY 2006;
ii. The amount of the State's allotment for FY 2007.
Furthermore, in determining whether a States' estimated FY 2007 expenditures are in excess of the State's available allotment funds specified above, these expenditures are determined subject to the provisions of section 2104(h)(4) of the Act. In the context of the FY 2004 redistributed allotments, section 2104(h)(4) of the Act indicates that these redistributed funds may only be used to make payments to States with respect to expenditures for (1) providing child health assistance or other health benefits coverage for populations eligible under the State child health plan (including under a waiver of this plan) on October 1, 2006; and (2) providing child health assistance or other health benefits coverage to an individual who is not a child or a pregnant woman at the
In determining the amount of any unexpended FY 2004 allotments that might be redistributed to address a State's FY 2007 SCHIP funding shortfall, we first determined the amount, if any, of each State's FY 2004 allotments that were not expended by the end of FY 2006 based on States' quarterly expenditure reports (Forms CMS-21 and CMS-64) as submitted and certified by States through November 30, 2006. We also determined the amounts of each States' unexpended FY 2005 and FY 2006 allotments that were not expended by the end of FY 2006, also based on States' quarterly expenditure reports (Forms CMS-21 and CMS-64) as submitted and certified by States through November 30, 2006. The amounts of the States' allotments for FY 2007 are as published in the
The next step was to determine on a monthly basis, beginning with October 2006, whether these shortfall States had sufficient allotment funds available to meet their estimated SCHIP expenditures. As indicated previously, this determination was made subject to the provisions of section 2104(h)(4)(B) of the Act, under which the FY 2004 redistributed funds are only available for expenditures for populations eligible on October 1, 2006 and for an individual other than a child or pregnant woman at the regular FMAP rate. Under the standard operational procedures in the SCHIP program, States report their actual expenditures on a quarterly basis, and only after the end of the quarter. This process has been explicitly recognized in the SCHIP statute with respect to previous fiscal year reallotment determinations (for example, see section 2104(g)(3) of the Act, which references a November 30th date (that is, 2 months following the end of the associated fiscal year)). Accordingly, we have used 2 months as a reasonable time period for States to report their expenditures following the end of a fiscal year quarter. The most recent quarterly expenditure report submitted by States was for the fourth quarter of FY 2006, and as indicated previously, we obtained the final States' submissions for this quarter/fiscal year by November 30, 2006. Using the 2 month period, the next expenditure report for the first quarter of FY 2007 (October 1, 2006 through December 31, 2006) would be expected as of the end of February 2007.
With respect to States' estimated expenditures, a quarterly reporting process also applies. The most recent expenditure estimates for FY 2007 were submitted by States through their February 2007 submissions of the Forms CMS-37 and CMS-21B. Typically, the reports of States' quarterly estimates are completed/certified by States before the beginning of the following quarter; for example, the States' submissions of their February 2007 quarterly estimate reports were completed/certified by the end of March 2007. The next scheduled quarterly estimate reports due from States would be the May 2007 quarterly submission which would not be completed/certified by States until mid to late June 2007.
Because of the timing and availability of the States' quarterly expenditure reports and the States' quarterly expenditure estimate reports, and in order to comply timely with the provisions of section 2104(h)(1) of the Act (which requires that States' FY 2007 SCHIP funding shortfalls be addressed on a monthly basis), we propose to use the States' submissions of their February 2007 quarterly expenditure estimate reports to determine and estimate the amounts of the States' monthly SCHIP funding shortfalls through March 2007. That is, the February 2007 quarterly expenditure estimate reports submitted by States represent the most recent official/certified estimates that States have submitted and that were available through the end of March 2007.
In order to determine States' monthly SCHIP funding shortfalls, and in order to address the “varying FMAP” provision (in section 2104(h)(4)(B) of the Act), we used the States' expenditure estimates for FY 2007 to determine an expenditure per diem amount for shortfall States; this was calculated by dividing the total projected expenditures for the first two quarters of FY 2007 by 182, the number of days in the period October 1, 2007 through March 31, 2007, the period ending with the date specified in section 2104(h)(2) of the Act as amended by NIHRA, and which is the end of the second quarter FY 2007. Furthermore, in applying the States' estimates for determining the monthly SCHIP funding shortfalls, we assumed that the expenditures represented by these fiscal year estimates would be presented for payment to the State in each quarter without regard to the type of individual the expenditure is associated with. Finally, we determined two different expenditure per diem amounts. The first expenditure per diem amount was determined as if payment for the entire amount of a State's estimated expenditures for the first two quarters of FY 2007 were available at the enhanced FMAP rate, without regard to the type of populations (children/pregnant women or non-pregnant adults) such expenditures represented. Therefore, the first expenditure per diem amount was determined by dividing the States' projected FY 2007 expenditures through March 31, 2007 (representing the first two quarters of FY 2007), with no adjustment for the type of individual (child/pregnant woman or non-pregnant adult) for whom the expenditure was associated, by 182. This expenditure per diem amount is applied under the premise that payment for a State's expenditures prior to a SCHIP funding shortfall occurring (the point in time when all allotments have been exhausted) for the State would be made from the State's other allotments available in FY 2007 (specifically, the States' available FY 2005, 2006 and 2007 allotments, not including any FY 2004 redistribution). The varying FMAP provision is not applicable with respect to the other fiscal year allotment funds available to the State (the allotments other than the FY 2004 allotments).
The second expenditure per diem amount is determined by adjusting the States' projected expenditures for the first two quarters of FY 2007 to reflect the provision under section 2104(h)((4) of the Act, as amended by NIHRA, that payment for expenditures for an individual who is not a child or pregnant woman (that is, a non-pregnant adult) which is made from the FY 2004 redistribution amounts available to the shortfall States would be at the regular FMAP rate. This reflects the premise that once a State experiences a SCHIP funding shortfall situation during a month, that is, the point in time when all other available allotments (other than the potential FY 2004 redistribution amounts) have been exhausted, payment for the State's expenditures could only
For each shortfall state, we then divided its total allotments available in FY 2007 (not including any FY 2004 redistribution amounts) by the unadjusted expenditure per diem amount to determine the total number of days funded by the other allotments available to the State before it would experience a SCHIP funding shortfall. Again, in this regard, “other allotments” refers to the allotments available to the State not including any FY 2004 redistributed allotments. Using this approach, we determined the month and the day on which each shortfall state would no longer have any other SCHIP allotment funds available during the period ending March 31, 2007. Then, for days in the month after the shortfall occurred, the State would be in a shortfall situation and as available, amounts of unexpended FY 2004 allotment would be redistributed to these State(s) in amounts intended to eliminate this shortfall. Using this approach, on a month by month basis for the period ending March 31, 2007, we determined the FY 2004 redistribution amounts for shortfall States for months in the first two quarters of FY 2007. This monthly amount is equal to the SCHIP funding shortfall amounts in the month, unless there were not sufficient FY 2004 allotments remaining available to meet this monthly SCHIP funding shortfall. The SCHIP funding shortfall amount for a month is equal to the number of days in the month in which the State is estimated to experience a shortfall multiplied by the adjusted per diem rate. In a month when the amounts of the unexpended FY 2004 allotment available for redistribution is less than the total allotment funds needed by shortfall States, per section 2104(h)(1)(D) of the Act, these amounts available for redistribution in this month would need to be prorated, based on the shortfall expenditures in this month for the identified shortfall States.
Using the approach described above, we identified the shortfall States in FY 2007, determined the amounts of these States' monthly shortfalls through the end of March 2007, and the amounts of the redistributed unexpended FY 2004 allotments determined to meet these shortfalls for the period ending March 2007. The monthly amounts of the redistributed FY 2004 allotments are included in this notice.
Under section 2104(f) of the Act, the Secretary is required to determine an appropriate procedure to redistribute the entire amount of States' unexpended SCHIP allotments following the end of the associated initial 3-year period of availability only to those States that fully expended the allotments by the end of the initial 3-year period of availability. However, section 2104(h)(2) of the Act as amended by the NIHRA, provides for an earlier redistribution of certain amounts of States' FY 2005 allotments. Specifically, this section requires the redistribution in FY 2007 of certain amounts of States' unexpended FY 2005 allotments estimated to be available in months following March 31, 2007, in order to address and reduce certain identified States' SCHIP funding shortfalls occurring in FY 2007.
Under section 2104(h)(7) of the Act as amended by the NIHRA, the special rules for the redistribution of the unexpended FY 2004 and FY 2005 allotments in FY 2007 to address FY 2007 SCHIP funding shortfalls apply only to the 50 States and the District of Columbia. That is, this provision refers only to States which received an allotment under section 2104(b) of the Act, and under this section a State means only the 50 States and the District of Columbia, as appropriate. Therefore, section 2104(h)(2) of the Act does not apply to the Commonwealths and Territories, which received SCHIP allotments for FY 2007 under the authority of section 2104(c) of the Act. Accordingly, unless otherwise indicated in this notice in referring to the redistribution of the FY 2005 allotments the term “State” means only the 50 States and the District of Columbia, as applicable.
Under section 2104(h)(2)(B) of the Act, a shortfall State is a State with an approved child health plan under title XXI of the Act, for which the Secretary estimates, subject to paragraph (4)(B) and on a monthly basis using the most recent data available to the Secretary as of March 31, 2007, that its projected FY 2007 expenditures under this plan will exceed the sum of:
i. The amount of the State's allotments for each of FYs 2005 and 2006 that were not expended by the end of FY 2006;
ii. The amount, if any, of the State's FY 2004 redistribution, as determined above, in accordance with section 2104(h)(1) of the Act; and
iii. The amount of the State's allotment for FY 2007.
In determining whether a State's estimated FY 2007 expenditures are in excess of the State's allotment funds available in FY 2007, these expenditures are determined, in accordance with section 2104(h)(4) of the Act. Section 2104(h) (4) of the Act indicates that Federal payments to a State from the FY 2005 redistributed allotment amounts with respect to expenditures for providing child health assistance or other health benefits coverage is for populations eligible under the State child health plan (including under a waiver of this plan) on October 1, 2006 and payment to an individual who is not a child or a pregnant woman, using the FY 2005 redistributed allotments may only be at the regular FMAP (not the enhanced FMAP). Federal payments from the FY 2005 redistributed allotments for expenditures for a child or a pregnant woman using the redistributed FY 2005 allotments would be available at the enhanced FMAP.
Section 2104(h)(2) of the Act provides for a redistribution of States' unexpended FY 2005 allotments in FY 2007. However, section 2104(h)(3) of the Act limits the amounts and the States from which these unexpended FY 2005 allotments would be redistributed. Specifically, the States from which these unexpended FY 2005 allotment funds would be redistributed are identified as follows, based on the most recent data as of March 31, 2007:
i. The States have not expended all of their FY 2005 allotments by March 31, 2007.
ii. The total of these States' estimated available allotments (as of March 31, 2007) is at least equal to 200 percent of the States' total projected SCHIP expenditures for FY 2007.
In the case of States identified as meeting the above conditions, the amount of the FY 2005 allotments that would be redistributed from them is limited to the lesser of:
i. 50 percent of their unexpended FY 2005 allotments available as of March 31, 2007, or
ii. $20 million.
By March 31, 2007, all States submitted their first quarter FY 2007 expenditure reports; however, at that
• The amounts of SCHIP allotment funds (including the FY 2005 allotments and any redistributed amounts of unexpended FY 2004 allotments) that would be available as of March 31, 2007; and
• The amounts of States' estimated expenditures for FY 2007 on an annual basis and for each quarter of the fiscal year.
Using this information we were able to determine projected estimates of States' SCHIP funding shortfalls for months after March 31, 2007, and the amount of the unexpended FY 2005 allotments available as of that date to be used to address these SCHIP funding shortfalls.
In order to determine States' monthly SCHIP funding shortfalls after March 31, 2007, and in order to address the “varying FMAP” provision (referenced in section 2104(h)(4)(B) of the Act), we used the States' expenditure estimates for FY 2007 obtained from the February 2007 quarterly expenditure estimate reports to determine expenditure per diem amounts for the FY 2007 shortfall States, identified as discussed in section A above. The per diem amounts for the period after March 31, 2007 were calculated by dividing the total projected expenditures for the period April 1, 2007 through September 30, 2007 (as provided by States' February 2007 submission) by 183, the number of days in that period. Furthermore, in applying the States' estimates for determining the monthly SCHIP funding shortfalls after March 31, 2007, we assume that the expenditures represented by these estimates would be presented for payment to the State without regard to the type of individual (child/pregnant woman or non-pregnant adult) with which the expenditure is associated. Finally, we determined two different expenditure per diem amounts. The first per diem amount was determined as if payment for all of the State's estimated expenditures for the period April 1, 2007 through September 30, 2007 were available at the enhanced FMAP rate. Therefore, the first expenditure per diem amount is determined by dividing the States' projected FY 2007 expenditures for the period after March 31, 2007, with no adjustment made for the type of individual (child/pregnant woman or adult) for whom the expenditure was associated, by 183. This first expenditure per diem amount is applied under the premise that a State's expenditures prior to a shortfall occurring for the State (the point in time when all allotments have been exhausted) would be matched with the other (if any) fiscal year allotments available to the State in FY 2007 (that is, the States' available FY 2005, 2006 and 2007 allotments, and also including any FY 2004 redistribution amounts available to the State). The varying FMAP provision would not be applicable for these other allotment funds available to the State (not including the FY 2004 and FY 2005 redistributions).
The second expenditure per diem amount is determined by adjusting the States' projected FY 2007 expenditures to reflect the condition that payment for expenditures for an individual who is not a child or pregnant woman would be made at the regular FMAP rate using any FY 2005 redistribution amounts available to the shortfall State. This reflects the premise that once a State reaches a shortfall situation during a month (that is, all other available allotments, other than the FY 2005 redistribution amounts have been exhausted), payment for the FY 2007 shortfall State's expenditures would only be made from the FY 2005 redistributed amounts that might be made available. Since application of the FY 2005 redistributed allotments is conditioned by the varying FMAP provision (refer to section 2104(h)(4)(B) of the Act), the second expenditure per diem amount is determined by dividing the estimated expenditures for FY 2007 for the period after March 31, 2007 (as adjusted to reflect the adult expenditures affected by the varying FMAP provision for States that have these expenditures) by 183.
For each shortfall state, we divided its total available allotments (other than the potential FY 2005 redistributed amounts, if any) by the unadjusted expenditure per diem amount to determine the total number of funded days the State had before it was in a shortfall situation. This would determine the month and the day on which the shortfall State would no longer have any (other) allotment funds available. For days in the month beginning with the day the SCHIP funding shortfall occurs, the State is in shortfall and as available, amounts of the unexpended FY 2004 allotments (remaining after the redistributions for the months prior to April 2007) and the unexpended FY 2005 allotments (estimated to be unexpended at the end of March 2007 and available for redistribution on April 1, 2007) would be redistributed to these State(s). On a month by month basis, we determined the FY 2004 and FY 2005 redistribution amounts to be provided to shortfall States for months after March 31, 2007.
In particular, beginning with April 1, 2007, we determined the amount of the remaining unexpended FY 2004 allotments to be redistributed to each shortfall state with a shortfall projected for April by determining the April 2007 shortfall amount. The April shortfall amount for each shortfall State was determined by multiplying the State's number of shortfall days in April by the adjusted expenditure per diem amount. The remaining unexpended FY 2004 allotments were then prorated by the April shortfall amounts for each State (since the amounts of the remaining unexpended FY 2004 allotments were not sufficient to meet the entire April shortfall). That is, per section 2104(h)(1)(D) of the Act, unexpended FY 2004 allotment amounts available for redistribution in a month must be prorated or reduced proportionally, based on the shortfall expenditures in the month. From the unexpended FY 2005 allotments determined to be available as of April 1, 2005 to meet the remaining April shortfall, we then redistributed to each shortfall state with a projected April shortfall an amount equal to the remaining April shortfall after the provision of the FY 2004 redistribution for April.
Finally, we determined the redistribution of FY 2005 allotments for May 2007. This was determined by multiplying the number of shortfall days in May for each shortfall State by the adjusted per diem amount. Since the remaining unexpended FY 2005 allotments available for redistribution in May 2007 (after the April redistribution) were projected to be insufficient to meet the total projected May 2007 shortfall, the final FY 2005 redistribution amounts for May were prorated, based on the total shortfall for the month. That is, per section 2104(h)(2)(D) of the Act, FY 2005 allotment amounts available for redistribution in a month must be prorated or reduced proportionally, based on the shortfall expenditures in the month.
Section 2104(h)(5) of the Act provides discretion for the Secretary to adjust the estimates and determinations of FY
In applying State's expenditures against their available SCHIP allotments, we follow the order of expenditures as provided under section 2105(a)(1)(A) through (D) and (a)(2) of the Act as follows:
(i) Title XIX SCHIP-related expenditures for which payment is made at the enhanced FMAP (section 2105(a)(1)(A) of the Act);
(ii) Title XIX expenditures for medical assistance provided during a presumptive eligibility period under section 1920A of the Act (section 2105(a)(1)(B) of the Act);
(iii) Child health assistance for targeted low-income children in the form of providing health benefits coverage that meets the requirements of section 2103 (per section 2105(a)(1)(C) of the Act);
(iv) Expenditures listed in section 2105(a)(1)(D)(i) through (iv) of the Act, respectively: Other child health assistance for targeted low-income children; health services initiatives under the plan for improving the health of children (including targeted low-income children and other low-income children); expenditures for outreach activities; and administration expenditures.
As discussed previously, Public Law 108-74, as amended by Public Law 108-127, also added a new section 2105(g) to the Act, under which a “qualifying State” meeting specified criteria could, at its option, elect to use up to 20 percent of any of the state's available SCHIP allotments for FY 1998, 1999, 2000, or 2001 for payments under the State's Medicaid program, instead of expenditures under the State's SCHIP. Furthermore, as amended by section 6103 of the DRA, qualifying States may elect to use up to 20 percent of their available FY 2004 and FY 2005 allotments for this purpose. Finally, as amended by section 201(b) of the NIHRA, qualifying States may elect to use up to 20 percent of their available FY 2006 and FY 2007 allotments. As described in the
In general, in accordance with the ordering of allotments and expenditures provisions, the expenditures of States eligible for the FY 2004 and FY 2005 redistribution amounts will be applied against the FY 2004 and FY 2005 redistribution amounts.
In the past, for purposes of applying States' expenditures against the redistributed allotments, States receiving redistributed allotment amounts were given flexibility to decide the ordering of the redistributed allotments with respect to the States' other available allotments. This allowed the redistribution States to optimize the use of these redistributed funds. However, because of the statutory provisions made by the NIHRA related to the determination of shortfall States and the amount of the funding shortfalls on a monthly basis, and the requirement that these redistributed allotments be available only after the States' other SCHIP allotment funds have been exhausted, we believe that the FY 2004 and FY 2005 redistributed allotments must be ordered after the States' other available allotments are exhausted. Therefore, shortfall States must spend their available FY 2005, FY 2006 and FY 2007 allotments first, before any redistributed FY 2004 and FY 2005 allotment amounts. Furthermore, since the unexpended FY 2004 allotments must be redistributed before any redistribution of the FY 2005 allotments, the FY 2004 redistributed allotment amounts must be ordered prior to any FY 2005 redistributed allotment amounts.
As specified in section 2104(h)(6) of the Act, as added by section 201(a) of the NIHRA, the amounts of the unexpended FY 2004 and FY 2005 allotments redistributed to a State in FY 2007 are only available for expenditure by the State through September 30, 2007; and any amounts of these redistributed allotments remaining at the end of FY 2007, shall not be subject to redistribution under section 2104(f) of the Act.
As part of the redistribution process, prior to making the FY 2004 and FY 2005 redistribution funds actually available, we contacted all of the States we estimated to be eligible for these fiscal year redistributions and all of the States contributing towards the FY 2005 redistribution (as identified in section 2104(h)(3) of the Act) in order to explain the redistribution process and associated SCHIP allotment amounts as described in this notice. The amounts of such States' FY 2004 and FY 2005 redistributed allotment amounts and the reduction of the FY 2005 allotments, will be incorporated into the Form CMS-21C (Allocation of Title XIX and Title XXI Expenditures to the SCHIP Fiscal Year Allotment). Form CMS-21C is used for tracking States' expenditures against their available SCHIP allotments. The amounts of the FY 2004 and the FY 2005 redistributed allotments and the reduction to the FY 2005 allotments will be entered on this form, and the Medicaid and SCHIP expenditure system will automatically apply expenditures reported on the quarterly expenditure reports for FY 2007 against the FY 2004 and FY 2005 redistributed amounts and the revised FY 2005 allotments available in FY 2007, and the other SCHIP allotments available in FY 2007.
Under section 2104(h)(4)(A) of the Act, as added by the NIHRA, a State may use amounts of FY 2004 allotments or FY 2005 allotments, redistributed under section 2104(h) of the Act, only for expenditures for providing child health assistance or other health benefits coverage for populations eligible for assistance or benefits under
Section 1(b) of Public Law 108-74, as amended by Public Law 108-127, added new section 2105(g) to the Act under which certain “qualifying States” that met prescribed criteria could elect to use up to 20 percent of the States' available SCHIP allotments for FY 1998, 1999, 2000, or 2001 as additional Federal financial participation for expenditures under the State's Medicaid program, instead of expenditures under the State's SCHIP. The
In Table 1 of this notice we set forth the unexpended FY 2004 SCHIP allotments remaining at the end of FY 2006. We established the amount of States' unexpended FY 2004 allotments at the end of the initial 3-year period of availability, based on the SCHIP-related expenditures, as reported and certified by States to us on the quarterly expenditure reports (Form CMS-64 and/or Form CMS-21) by November 30, 2006. These expenditures are applied and tracked against the States' FY 2004 allotments (as published in the
By November 30, 2006, all States reported and certified their FY 2006 fourth quarter expenditures (representing the last quarter of the 3-year period of availability for FY 2004). Expenditures reflected in Table 1 below were taken from our Medicaid Budget and Expenditure System/State Children's Health Program Budget and Expenditure System (MBES/CBES) “master file,” which represents the State's official certified SCHIP and Medicaid expenditure reporting system records related to the determination of the amounts of the unexpended FY 2004 allotments. Based on States' expenditure reports submitted and certified through November 30, 2006, the total amount of States' FY 2004 SCHIP allotments that were unexpended at the end of the 3-year period ending September 30, 2006, is $146,879,932. These amounts were used to determine the States' FY 2004 redistributed allotment amounts set forth in Table 3 of this notice.
The following describes Tables 1 through Table 3, which together presents the redistributed amounts of the unexpended FY 2004 and FY 2005 SCHIP allotments for purposes of eliminating FY 2007 SCHIP funding shortfalls.
A total of $3,175,200,000 was allotted nationally for FY 2004, representing $3,142,125,000 in allotments to the 50 States and the District of Columbia, and $33,075,000 in allotments to the Commonwealths and Territories. Based on the quarterly expenditure reports, submitted and certified by November 30, 2006, 44 States and the District of Columbia fully expended their FY 2004 allotments, 7 States did not fully expend their FY 2004 allotments, and all 5 of the Commonwealths and Territories fully expended their FY 2004 allotments. For the 7 States that did not fully expend their FY 2004 allotments, the total unexpended FY 2004 allotments is $146,879,932; this amount is available for redistribution to States with shortfalls in FY 2007, in accordance with the provisions of the NIHRA in FY 2007. The calculation of the total unexpended FY 2004 allotments remaining at the end of FY 2006 is detailed in Table 1 below.
Based on the States' February 2007 projections of their FY 2007 SCHIP expenditures, there are 11 States projected to have a SCHIP shortfall in FY 2007 totaling about $932 million. However, only 5 of these States are projected to have a shortfall for the period October 1, 2006 through March 31, 2007 (Illinois, Maryland, Massachusetts, New Jersey, and Rhode Island); in particular, we projected that the shortfalls for these states begin in January 2007. In accordance with the provisions of section 2104(h)(1) of the Act, as amended by NIHRA, we estimated the shortfalls for the 5 States for the months of January through March 2007 total about $86.5 million. Since there is a total of about $146.9 million in unexpended FY 2004 allotments available for redistribution in FY 2007, the entire shortfall for months prior to April 2007 can be met, The redistribution of unexpended FY 2004 allotments for the months of January through March 2007 shortfalls is included in Table 3 below.
There were 13 States identified under section 2104(h)(3) of the Act, as amended by NIHRA, as having unexpended FY 2005 allotment amounts available as of March 31, 2007 and that also had total available allotments equal to at least 200 percent of their projected FY 2007 expenditures available as of March 31, 2007. We determined this using the States' February 2007 submissions of their FY 2007 projected expenditures. For these States, the lesser of $20 million, or fifty percent of their unexpended FY 2005 allotments, available as of March 31,
Of the 11 States projected to have shortfalls in FY 2007, 6 of them are projected to have shortfalls in April and May 2007 (Georgia, Illinois, Maryland, Massachusetts, New Jersey, and Rhode Island). Based on the February 2007 estimates of States' projected FY 2007 expenditures, the total shortfall for these 6 States for the month of April is estimated at about $96.9 million. About $60.3 million in unexpended FY 2004 allotments remained after the redistribution for the months prior to April 2007; therefore, this amount is available to meet the FY 2007 shortfall for the month of April. The remaining April shortfall after the FY 2004 redistribution is about $36.6 million ($96.9 million minus $60.3 million). This remaining April shortfall is fully covered by the $137.8 million in unexpended FY 2005 allotments available for redistribution for months after March 2007. The remaining $101.2 million in unexpended FY 2005 allotments is available to be applied to projected May 2007 shortfall amounts. The projected May 2007 shortfall for the 6 states projected to have shortfalls in May is about $116.6 million; therefore, the remaining $101.2 million in FY 2005 allotments available for redistribution to address May 2007 shortfalls has been prorated among the 6 May shortfall States, based on the May shortfall projections. The amounts of the remaining redistributed FY 2004 allotments and the redistribution of the FY 2005 allotments for the April and May 2007 shortfalls is included in Table 3 below.
Table 1 presents the amounts of the unexpended FY 2004 allotments remaining at the end of FY 2006 and available for redistribution in FY 2007 to address the FY 2007 SCHIP funding shortfalls for the 50 States and the District of Columbia.
Column A = State. Name of State, District of Columbia, the Commonwealth or Territory.
Column B = FY 2004 Allotments. This column contains the FY 2004 SCHIP allotments for all States, which were published in the
Column C = Expenditures Applied Against FY 2004 Allotment. This column contains the cumulative expenditures applied against the FY 2004 allotments, as reported and certified by all States through November 30, 2006.
Column D = Unexpended FY 2004 Allotments or “None”. This column contains the amounts of unexpended FY 2004 SCHIP allotments for States that did not fully expend the allotments during the 3-year period of availability for FY 2004 (FYs 2004 through 2006), and is equal to the difference between the amounts in Column B and Column C. For States that did fully expend their FY 2004 allotments during the 3-year period of availability, the entry in this column is “None.” The total of the entries in Column D, $146,879,932, represents the total amount of unexpended FY 2004 allotments remaining at the end of FY 2006 and available for redistribution in FY 2007.
Table 2 reflects the amounts of unexpended FY 2005 allotments determined to be available as of March 31, 2007 based on the States' February 2007 submissions of their FY 2007 estimated expenditures, determined in accordance with the provisions of section 2104(h)(3) of the Act, as amended by the NIHRA and as described in this
Column A = STATE. Column A contains the name of the State or the District of Columbia.
Column B = Total Allots. Remaining 3/31/2007. Column B contains the total allotments remaining available to each State in FY 2007 as of March 31, 2007. These amounts were determining by applying the projected expenditures for each State for the first two quarters of FY 2007 (October 1, 2006 through March 31, 2007) against the State's available allotments in that period (including the State's unexpended FY 2005 allotments carried over from FY 2006, unexpended FY 2006 allotments carried over from FY 2006, and FY 2007 allotments).
Column C = FY 2005 Allots. Remaining 3/31/2007. Column C contains the total FY 2005 allotments remaining available to each State in FY 2007 as of March 31, 2007. These amounts were determining by applying the projected expenditures for each State for the first two quarters of FY 2007 (October 1, 2006 through March 31, 2007) against the State's available allotments in that period (including the State's unexpended FY 2005 allotments carried over from FY 2006, unexpended FY 2006 allotments carried over from FY 2006, and FY 2007 allotments).
Column D = Total Yearly Projected FY 2007 Expenditures. Column D contains the total Federal share projected SCHIP expenditures for FY 2007, as projected by the State and submitted to CMS in its February 2007 submission.
Column E = 200 Percent of FY 2007 Proj. Expends, 2 x D. Column E contains 200 percent of the amount of the State's projected Federal share SCHIP FY 2007 expenditures contained in Column D.
Column F = 2104(h)(3)(B) Test, Tot. Mid-FY07 Est. Exp., B >= E. Column F contains the results of the test applied under section 2104(h)(3)(B) of the Act. That test, is whether the total available SCHIP allotments projected to be available as of March 31, 2007 (indicated in Column B) is at least equal to 200 percent of the State's projected FY 2007 SCHIP expenditures (indicated in Column E). If the amounts for the State meet this test, the entry in Column E will indicate “YES”. If the amounts for the State do not meet this test, the entry in Column E will indicate “Not Met”.
Column G = Amount Contributed to FY 05 Redist., Min (.5xC, $20M). For the States that Column F indicates the test is met (Column F indicates “YES”), Column G contains the portion of that State's FY 2005 allotment that is available as of March 31, 2007 which will be adjusted applied to the FY 2007 SCHIP funding shortfalls. For the States meeting the test, the amount in Column G is determined as the lesser of $20 million, or 50 percent of the amount of the State's available FY 2005 allotment as of March 31, 2007 (indicated in Column C).
Table 3 contains the redistributed amounts of unexpended FY 2004 allotments and FY 2005 allotments for addressing States' funding shortfalls in FY 2007, determined in accordance with section 2104(h) of the Act, as
Column A = STATE. Column A contains the name of the State or the District of Columbia.
Column B = FY 2007 Tot. Avail. Allots NOT Including Redist. Amounts. Column B contains the total allotments available to each State in FY 2007, not including any potential unexpended fiscal year allotments a State may receive in FY 2007 as a redistribution such as the FY 2004 or FY 2005 redistributed allotments. Specifically, this amount includes, if any, the sum of the amounts of each State's: Unexpended FY 2005 allotments carried over from FY 2006, unexpended FY 2006 allotments carried over from FY 2006, and FY 2007 allotments.
Column C = FY 2007 Projected Fed. Share Expenditures. Column C contains the Federal share amount of each State's projected FY 2007 SCHIP expenditures, as contained in the February 2007 States' quarterly budget submissions of the CMS-37 and CMS-21B. These amounts reflect the availability of a Federal matching rate for the State's expenditures equal to the full SCHIP enhanced FMAP rate for all individuals.
Column D = FY 2007 Projected Shortfall. Col C—B. Column D contains the amount, if any, of the State's shortfall for the entire FY 2007, calculated as the amount in Column C minus the amount in Column B. If the amount in Column B is greater than or equal to the amount in Column C, there would be no shortfall in FY 2007 and the entry in Column D is “No SF”.
Column E = FY 04 SF Redist. For JAN. 2007. Column E contains the amount of the unexpended FY 2004 allotments redistributed to address estimated SCHIP funding shortfalls for the State for January 2007.
Column F = FY 04 SF Redist. For FEB. 2007. Column F contains the amount of the unexpended FY 2004 allotments redistributed to address estimated SCHIP funding shortfalls for the State for February 2007.
Column G = FY 04 SF Redist. For Mar. 2007. Column G contains the amount of the unexpended FY 2004 allotments redistributed to address estimated SCHIP funding shortfalls for the State for March 2007.
Column H = FY 04 SF Redist. For Apr. 2007. Column H contains the amount of the unexpended FY 2004 allotments redistributed to address estimated SCHIP funding shortfalls for the State for April 2007.
Column I = Total FY 2004 Redist. E+F+G+H. Column I contains the total unexpended FY 2004 allotments redistributed to each State for January, February, March, and April 2007, respectively, calculated as the sum of the amounts in Column E, F, G, and H. With respect to States for which there is no redistribution of FY 2004 allotments for these months, the entry in Column I is $0.
Column J = FY 05 SF Redist. For Apr. 2007. Column J contains the amount of the estimated FY 2005 allotments available as of March 31, 2007 and redistributed to address estimated SCHIP funding shortfalls for the State for April 2007.
Column K = FY 05 SF Redist. For May 2007. Column K contains the amount of the estimated FY 2005 allotments available as of March 31, 2007 and redistributed to address estimated SCHIP funding shortfalls for the State for May 2007.
Column L = Total FY 2005 Redist. J + K. Column L contains the total estimated FY 2005 allotments available as of March 31, 2007 and redistributed to each State for April and May 2007, respectively, calculated as the sum of the amounts in Column J and K. With respect to States for which there is no redistribution of FY 2005 allotments for these months, the entry in Column L is $0.
We have examined the impact of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 19, 1980 Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) and Executive Order 13132.
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any one year). We have determined that with respect to the FY 2004 and FY 2005 redistribution amounts, totaling
Because State participation in the SCHIP program is voluntary, any payments and expenditures States make or incur on behalf of the program that are not reimbursed by the Federal Government are made voluntarily.
The RFA requires agencies to analyze options for regulatory relief of small businesses. 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 $6 million to $29 million in any 1 year. Individuals and States are not included in the definition of a small entity. We are not preparing an analysis for the RFA because we have determined that this notice 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 Core-Based Statistical Area and has fewer than 100 beds. We are not preparing an analysis for section 1102(b) of the Act because we have determined that this notice will not have a significant impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. That threshold level is currently approximately $120 million. This notice will not create an unfunded mandate on States, tribal, or local governments. Therefore, we are not required to perform an assessment of the costs and benefits of this notice.
Executive Order 13132 establishes certain requirements that an agency must meet when it publishes 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. We have reviewed this notice and have determined that it does not significantly affect States' rights, roles, and responsibilities.
Low-income children will benefit from payments under this program through increased opportunities for health insurance coverage. We believe this notice will have an overall positive impact by informing States, the District of Columbia, and Commonwealths and Territories of the extent to which they are permitted to expend funds under their child health plans using the FY 2004 or FY 2005 allotment's redistribution amounts.
In accordance with the provisions of Executive Order 12866, this notice was reviewed by the Office of Management and Budget.
We ordinarily publish a proposed notice in the
We find there is good cause to waive notice of proposed rulemaking and the delay in the effective date of this issuance of the FY 2004 redistributed allotments and the methodology for determining the FY 2005 redistributed allotment amounts to eliminate the FY 2007 funding shortfalls in SCHIP because a comment period and delay in effective date are unnecessary because: (1) States were already given informal notice of proposed amounts; and (2) redistribution was carried out in accordance with a statutory formula that permitted limited discretion.
We determined the amounts of the FY 2004 redistributed allotments and the amounts of the FY 2005 redistributed allotments to eliminate the FY 2007 SCHIP funding shortfall as expeditiously as possible in order to make them available to the States as soon as possible. To that end, all States had until November 30, 2006 to submit their required fourth quarter FY 2006 expenditure reports. In determining both the FY 2004 redistributed amounts and the FY 2005 redistributed amounts we used State FY 2007 projected expenditures as contained in the most recent (February 2007) States' quarterly budget report submissions. The redistributed FY 2004 and FY 2005 allotments make available Federal funds to the recipient redistribution States, which is especially important for those redistribution States that may need these funds.
Furthermore, under section 2104(h)(6) of the Act, the FY 2004 and FY 2005 redistributed allotments to eliminate the FY 2007 shortfalls in SCHIP funding, are only available through September 30, 2007. We believe it is important that we issue these redistributed allotments and additional allotments as soon as possible. Delay in States receiving those funds could result in disruption of program operations. Therefore, in the interest of ensuring that the FY 2004 and FY 2005 redistributed allotments to eliminate the FY 2007 shortfall in SCHIP funding are made available without delay to those States that need these funds, we are waiving notice of proposed rulemaking and the 30-day delay in effective date, and are publishing this issuance of the
In accordance with the provisions of this notice, we have determined the amounts of the FY 2004 and FY 2005 redistributed allotment funds to eliminate the FY 2007 shortfalls in SCHIP funding available to shortfall States effective immediately upon publication of this notice. These FY 2004 and FY 2005 redistributed allotment funds are subject to final adjustment based on comments received in response to this notice.
(Section 1102 of the Social Security Act (42 U.S.C. 1302) (Catalog of Federal Domestic Assistance Program No. 93.767, State Children's Health Insurance Program))
The Section 510
The Section 510
Estimated Total Annual Burden Hours: 10,030.
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. E-mail address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by June 28, 2007.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs,
Jonna Capezzuto, Office of the Chief Information Officer (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857,301-827-4659.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Sections 525 through 526 of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360aa through 360dd) give FDA statutory authority to do the following: (1) Provide recommendations on investigations required for approval of marketing applications for orphan drugs, (2) designate eligible drugs as orphan drugs, (3) set forth conditions under which a sponsor of an approved orphan drug obtains exclusive approval, and (4) encourage sponsors to make orphan drugs available for treatment on an “open protocol” basis before the drug has been approved for general marketing. The implementing regulations for these statutory requirements have been codified under part 316 (21 CFR part 316) and specify procedures that sponsors of orphan drugs use in availing themselves of the incentives provided for orphan drugs in the act and sets forth procedures FDA will use in administering the act with regard to orphan drugs. Section 316.10 specifies the content and format of a request for written recommendations concerning the non-clinical laboratory studies and clinical investigations necessary for approval of marketing applications. Section 316.12 provides that, before providing such recommendations, FDA may require results of studies to be submitted for review. Section 316.14 contains provisions permitting FDA to refuse to provide written recommendations under certain circumstances. Within 90 days of any refusal, a sponsor may submit additional information specified by FDA. Section 316.20 specifies the content and format of an orphan drug application which includes requirements that an applicant document that the disease is rare (affects fewer than 200,000 persons in the United States annually) or that the sponsor of the drug has no reasonable expectation of recovering costs of research and development of the drug. Section 316.26 allows an applicant to amend the applications under certain circumstances. Section 316.30 requires submission of annual reports, including progress reports on studies, a description of the investigational plan, and a discussion of changes that may affect orphan status. The information requested will provide the basis for an FDA determination that the drug is for a rare disease or condition and satisfies the requirements for obtaining orphan drug status. Secondly, the information will describe the medical and regulatory history of the drug. The respondents to this collection of information are biotechnology firms, drug companies, and academic clinical researchers.
The information requested from respondents represents, for the most part, an accounting of information already in the possession of the applicant. It is estimated, based on frequency of requests over the past 5 years, that 171 persons or organizations per year will request orphan-drug designation and none will request formal recommendations on design of preclinical or clinical studies.
In the
(Comment 1) The comment suggested that our burden estimate to prepare an Orphan Drug Annual Report is too low.
(Response 1) Section 316.30 pertains to annual reporting, a brief progress report which is a requirement after orphan designation has been granted to a sponsor. We estimate this takes 1 hour professional time and 1 hour support time.
(Comment 2) The comment suggested that our estimate of 130 hours to prepare and submit an orphan drug application is too high.
(Response 2) We disagree with the comment because some sponsors have more experience with submitting Orphan Drug Designation applications/requests and, therefore, may require less human resource hours to compile all required information. Many other sponsors, which include foreign sponsors, do not have such experience.
The estimated 130 hours pertains to §§ 316.20, 316.21, and 316.26. These apply primarily to initial applications/requests seeking orphan drug designation. Many applications/requests received in the Office of Orphan Products Development contain multiple volumes; include an exact duplicate copy of the original; and may include 50 or more documented references. Additional information is requested when an application/request is denied. The sponsor usually supplies the requested information in the form of an amendment.
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing its intention to take enforcement action against unapproved drug products in timed-release dosage forms containing guaifenesin and persons who cause the manufacture or interstate shipment of such products. Hundreds of unapproved drug products in timed-release form containing guaifenesin, alone or in combination with other ingredients, are marketed to relieve the symptoms associated with cough, cold, and similar conditions. Such drug products require approved applications because they are not generally recognized as safe and effective for these uses. One firm has obtained approved applications to market timed-release products containing guaifenesin. Other firms who wish to market a drug product in timed-release form containing guaifenesin must obtain FDA approval of a new drug application (NDA) or an abbreviated new drug application (ANDA).
This notice is effective May 29, 2007.
For marketed, unapproved drug products in timed-release form containing guaifenesin that have a National Drug Code (NDC) number that is listed with FDA under section 510 of the act (21 U.S.C. 360) on the effective date of this notice (i.e., “currently marketed products”), the agency intends to exercise its enforcement discretion to permit products properly marketed with those NDC numbers a brief period of continued marketing after May 29, 2007 as follows. FDA does not intend to initiate enforcement actions against firms that are manufacturing such currently marketed products unless those firms are still manufacturing the products on or after August 27, 2007. Further, FDA does not intend to initiate enforcement actions related to the shipment in interstate commerce of currently marketed products made by such firms unless they are still being shipped on or after November 26, 2007. Unapproved drug products in timed-release form containing guaifenesin that are not currently marketed products on the date of this notice must, as of the date of this notice, have approved applications prior to their shipment in interstate commerce. Submission of an application does not excuse timely compliance with this notice.
All communications in response to this notice should be identified with Docket No. 2007N-0193 and directed to the appropriate office listed as follows:
Sakineh Walther, Center for Drug Evaluation and Research (HFD-310), Food and Drug Administration, 11919 Rockville Pike, Rockville, MD 20852, 301-827-8964, e-mail:
Guaifenesin is an expectorant that has been marketed for decades. Thousands of products intended to relieve symptoms associated with cough, colds, allergies and similar conditions are marketed containing guaifenesin, alone or in combination with other active ingredients, such as antitussives (for instance, dextromethorphan or hydrocodone), nasal decongestants (for instance, pseudoephedrine or phenylephrine), and analgesics (for instance, acetaminophen). These products are marketed both over-the-counter (OTC) and by prescription, and in immediate- and timed-release dosage forms.
Guaifenesin in immediate-release form was reviewed in the OTC drug review and is covered by the OTC monograph in part 341 (21 CFR part 341), “Cold, Cough, Allergy, Bronchodilator, and Antiasthmatic Drug Products for Over-the-Counter Human Use.” OTC products that comply with this monograph may be marketed without approval.
The OTC monograph system does not include timed-release drug products, a dosage form that is designed to release the active ingredients over a prolonged period of time. Since 1959, the agency has stated that all products in timed-release dosage forms also described as, for example, sustained release, extended release, controlled release, or long-acting—are new drugs requiring approved applications (24 FR 3756, May 9, 1959). Agency review of individual applications is needed to ensure that the finished product releases its active ingredients at a rate that is both safe, without “dumping” of the dose, and effective, sustaining the intended effect over the entire period during which the therapeutic benefit is claimed. Firms submitting applications are required to establish appropriate release specifications supported by clinical evidence, along with data showing that the finished product as manufactured by the firm releases its active ingredient according to these specifications. The agency's determination that all products in timed-release form are new drugs requiring approved applications is codified in § 310.502(a)(14) (21 CFR 310.502(a)(14)). The regulation applies to all products in this dosage form containing guaifenesin, alone or in combination with other active ingredients.
One firm has obtained approved applications for products in timed-release dosage forms containing guaifenesin. Adams Respiratory Therapeutics, formerly known as Adams Laboratories, Inc. (Adams), submitted an NDA for single-ingredient guaifenesin tablets in timed-release form (NDA 021-282), which was approved by FDA on July 12, 2002. These products are sold OTC under the trade names of MUCINEX (600 milligrams (mg)) and HUMIBID (1,200 mg), with labeling for uses consistent with expectorant products marketed under an OTC monograph (§ 341.78(b)). Specifically, MUCINEX and HUMIBID are intended to help “loosen phlegm (mucus) and thin bronchial secretions to rid the bronchial passageways of bothersome mucus, and make coughs more productive.” On October 11, 2002, the agency notified firms marketing single-
Subsequently, Adams submitted applications for OTC timed-release combination products containing guaifenesin and dextromethorphan, an antitussive (NDA 21-620), and guaifenesin and pseudoephedrine, a decongestant (NDA 21-585). The agency approved these applications on April 29, 2004, and June 22, 2004, respectively. These products are marketed OTC under the trade names MUCINEX-DM and MUCINEX-D, respectively. Both products are labeled for use as expectorants. In addition, MUCINEX-DM is labeled for antitussive uses as permitted under the OTC monographs (§ 341.74(b)) and MUCINEX-D is labeled for nasal decongestant uses as permitted under the OTC monographs (§ 341.80(b)).
Hundreds of products in timed-release form containing guaifenesin in combination with other active ingredients such as antitussives and decongestants are marketed without approved applications for relief of various symptoms associated with cough, cold, allergy, and similar conditions. Because no applications have been filed and reviewed by the agency for these products, the safety and effectiveness of the products cannot be ensured. For instance, the agency does not know if the firms that market them have established appropriate specifications for release of the active ingredients; whether the products are properly formulated and manufactured so as to release their ingredients at a rate that is both safe and effective; and whether each active ingredient in the combination makes a contribution to the claimed effect, as required by 21 CFR 300.50.
Many of these unapproved drug products in timed-release form containing guaifenesin are marketed, labeled, and dispensed as prescription products. Section 503(b)(1) of the act (21 U.S.C. 353(b)(1)) establishes the definition of a prescription drug. Drug products that do not meet the definition of a prescription drug but are labeled for prescription use are considered misbranded under section 503(b)(4) of the act. Some firms choose to market drugs as prescription, even though those drugs do not meet the prescription drug definition, either because of the availability of reimbursement by insurers or because of familiarity with the distribution channels for prescription drugs. This is contrary to the act.
Under § 310.502(a)(14), drug products in timed-release dosage forms containing guaifenesin are not generally recognized as safe and effective for any use because of the need for agency review of individual applications to ensure the safe and effective release of active ingredients. Therefore, a drug product in timed-release form containing guaifenesin, alone or in combination with other drugs, is regarded as a new drug, as defined in section 201(p) of the act (21 U.S.C. 321(p)), and is subject to the requirements of section 505 of the act. As set forth in this notice, approval of an NDA under section 505(b) of the act (including section 505(b)(2)) and 21 CFR 314.50 or an ANDA under section 505(j) of the act and 21 CFR 314.94 is required as a condition for manufacturing or marketing all such products. After the dates identified in this notice (see
The Adams timed-release products containing 1,200 mg of guaifenesin marketed under NDA 021-282, NDA 21-620, and NDA 21-585, as described in section I of this notice, have been designated as reference listed drug products. The review and approval of any applications for timed-release drug products containing guaifenesin will be subject to the patent rights of the current NDA holder.
Although not required to do so by the Administrative Procedure Act, the act, or any rules issued under its authority, or for any other legal reason, FDA is providing this notice to firms that are marketing timed-release drug products containing guaifenesin without an approved application that the agency intends to take enforcement action against such products and those who cause them to be manufactured or shipped in interstate commerce. Consistent with the priorities identified in the agency's guidance entitled “Marketed Unapproved Drugs—Compliance Policy Guide” (the Marketed Unapproved Drugs CPG), the agency is taking action at this time against these products because the agency has approved applications to market timed-release drug products containing guaifenesin, alone and in combination with other active ingredients, for relief of cough, cold, and allergy symptoms; thus, the continued marketing of unapproved timed-release guaifenesin products is a direct challenge to the drug approval process. Manufacturing or shipping such unapproved products may result in seizure, injunction, or other judicial proceeding. Consistent with policies described in the Marketed Unapproved Drugs CPG, the agency does not expect to issue a warning letter or any other further warning to firms marketing unapproved timed-release drug products containing guaifenesin prior to taking enforcement action. The agency also reminds firms that, as stated in the Marketed Unapproved Drugs CPG, any unapproved drug marketed without a required approved drug application is subject to agency enforcement action at any time. The issuance of this notice does not in any way obligate the agency to issue similar notices or any notice in the future regarding other marketed unapproved drugs.
As described in the Marketed Unapproved Drugs CPG, the agency may, in its discretion, exercise enforcement discretion and identify a period of time during which the agency does not intend to initiate an enforcement action against a currently marketed unapproved drug on the grounds that it lacks an approved application under section 505 of the act, to preserve access to medically necessary drugs, or ease disruption to affected parties, for instance. The agency notes that there are numerous marketed products that have approved applications or comply with an applicable OTC drug monograph and that are used to treat conditions for which products in timed-release form containing guaifenesin are commonly used. Therefore, the agency intends to implement this notice as follows.
This notice is effective May 29, 2007. Unapproved timed-release drug products containing guaifenesin, alone
Drug manufacturers and distributors should be aware that the agency is exercising its enforcement discretion as described previously only in regard to timed-release drug products containing guaifenesin that are marketed under an NDC number listed with the agency on the effective date of this notice. Such unapproved drug products that are not currently marketed and listed with the agency on the effective date of this notice must, as of the effective date of this notice, have approved applications prior to their shipment in interstate commerce. Moreover, submission of an application does not excuse timely compliance with this notice.
Some firms may have previously discontinued the manufacturing or distribution of products covered by this notice without removing them from the listing of their products under section 510(j) of the act. Other firms may discontinue manufacturing or marketing listed products in response to this notice. Firms that wish to notify the agency of product discontinuation should send a letter, signed by the firm's chief executive officer, fully identifying the discontinued product(s), including its NDC number(s), and stating that the product(s) has (have) been discontinued and will not be marketed again without FDA approval, to Sakineh Walther (see
In addition to discontinuing the manufacturing of products covered by this notice, FDA cautions firms against reformulating their products into guaifenesin-free unapproved new drugs that are marketed under the same name or substantially the same name (including a new name that contains the old name). In the Marketed Unapproved Drugs CPG, FDA states that it intends to give higher priority to enforcement actions involving unapproved drugs that are reformulated to evade an FDA enforcement action. In addition, reformulated products marketed under a name previously identified with a different active ingredient or combination of active ingredients have the potential to confuse health care practitioners and harm patients. Depending on the circumstances, these products may be considered misbranded under section 502(a) or (i) of the act (21 U.S.C. 352(a) and (i)).
This notice is issued under the act (sections 502 and 505) and under authority delegated to the Deputy Commissioner for Policy under section 1410.10 of the FDA Staff Manual Guide.
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Victoria Ferretti-Aceto at least 7 days in advance of the meeting.
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact AnnMarie Williams, Conference Management Staff, at 240-276-8932, at least 7 days in advance of the meeting.
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the Communication Disorders Review Committee, June 21, 2007, 8 a.m. to June 22, 2007, 5 p.m., Wyndham Hotel, 101 W. Fayette Street, Baltimore, MD 21202 which was published in the
The meeting will be held June 20-21, 2007. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), 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. Appendix 2), 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. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public 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. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Notice is hereby given of a change in the meeting of the Ethical, Legal, and Social Implications of Human Genetics Study Section, June 21, 2007, 7:30 a.m. to June 22, 2007, 4 p.m., The Watergate, 2650 Virginia Avenue, NW., Washington, DC, 20037 which was published in the
The starting time of the meeting on June 21, 2007 has been changed to 5:30 p.m. until adjournment. The meeting dates and location remain the same. The meeting is closed to the public.
Notice is hereby given of a change in the meeting of the Center for Scientific Review Special Emphasis Panel, June 11, 2007, 7 a.m. to June 11, 2007, 6 p.m., Holiday Inn Georgetown, 2101 Wisconsin Avenue, NW., Washington, DC 20007 which was published in the
The meeting title has been changed to “Small Business: Biomedical Devices and Bioengineering”. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Notice is hereby given of a change in the meeting of the Center for Scientific Review Special Emphasis Panel, June 1, 2007, 11 a.m. to June 1, 2007, 1 p.m., National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD, 20892 which was published in the
The meeting has been changed to a virtual meeting starting June 7, 2007, 11 a.m. to June 9, 2007, 11 p.m. The meeting location remains the same. The meeting is closed to the public.
Notice is hereby given of a change in the meeting of the Biophysics of Neural Systems Study Section, June 21, 2007, 8 a.m. to June 22, 2007, 4 p.m. Jurys Washington Hotel, 1500 New Hampshire Avenue, NW., Washington, DC 20032 which was published in the
The meeting will be held on June 21, 2007, from 8 a.m. to 8 p.m. The meeting location remains the same. The meeting is closed to the public.
Notice is hereby given of a change in the meeting of the Development—1 Study Section, June 7, 2007, 8 a.m. to June 8, 2007, 5 p.m., Georgetown Suites, 1000 29th Street, Washington, DC 20007 which was published in the
The meeting will be held on June 7, 2007, from 8 a.m. to 8 p.m. The meeting location remains the same. The meeting is closed to the public.
Directorate for National Protection and Programs, Department of Homeland Security.
Committee management; notice of federal advisory council meeting.
The National Infrastructure Advisory Council will meet on July 10, 2007 in Washington, DC. The meeting will be open to the public.
The National Infrastructure Advisory Council will meet Tuesday, July 10 from 1:30 p.m. to 4:30 p.m. Please note that the meeting may close early if the committee has completed it business. The time of the meeting is also subject to change. For the most current information, please consult the NIAC Web site,
The meeting will be held at the National Press Club, 529 14th Street, NW., Washington, DC 20045. Send written material, comments, and requests to make oral presentations to Gail Kaufman, Department of Homeland Security, Directorate for National Protection and Programs, Washington, DC 20528. Written materials, comments, and requests to make oral presentations at the meeting should reach the contact person listed below by June 10, 2007. Requests to have a copy of your material distributed to each member of the committee prior to the meeting should reach the contact person at the address below by June 10, 2007. Comments must be identified by DHS-2007-0036 and may be submitted by one of the following methods:
•
• E-mail:
•
•
Gail Kaufman, NIAC Designated Federal Officer, Department of Homeland Security, Washington, DC 20528; telephone 703-235-5352.
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. (Pub. L. 92-463). The National Infrastructure Advisory Council shall provide the President through the Secretary of Homeland Security with advice on the security of the critical infrastructure sectors and their information systems.
The National Infrastructure Advisory Council will meet to address issues relevant to the protection of critical infrastructure as directed by the President. The July 10, 2007 meeting will also include the presentation of initial findings from the two open Working Groups:
(1) Chemical, Biological, and Radiological Events and Critical Infrastructure Workers and (2) The Insider Threat to Critical Infrastructures.
This meeting is open to the public. Please note that the meeting may close early if all business is finished. Participation in The National Infrastructure Advisory Council deliberations is limited to committee members, Department of Homeland Security officials, and persons invited to attend the meeting for special presentations.
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact Gail Kaufman as soon as possible.
Coast Guard, DHS.
Notice of meetings.
A Merchant Marine Personnel Advisory Committee (MERPAC) working group will meet to discuss an issue relating to the fitness of merchant marine personnel. MERPAC advises the Secretary of Homeland Security on matters relating to the training, qualifications, licensing, and certification of seamen serving in the U.
A MERPAC working group will meet on Wednesday, June 27, 2007, and on Thursday, June 28, 2007, from 8:30 a.m. to 4:30 p.m. Requests to make oral presentations should reach the Coast Guard on or before June 15, 2007. Written material and requests to have a copy of your material distributed to each member of the subcommittee should reach the Coast Guard on or before June 15, 2007.
The MERPAC working group will meet in Room A129 of the South Academic Building (#4) of the Maritime Institute of Technology and Graduate Studies (MITAGS), 692 Maritime Boulevard, Linthicum Heights, MD 21090-1952. Further directions regarding the location of MITAGS may be obtained at the following link:
For questions on this notice, contact Mr. Gould, Assistant to the Executive Director, telephone 202-372-1409, fax 202-372-1926, or e-mail
Notice of these meetings is given under the Federal Advisory Committee Act, 5 U.S.C. App. (Pub. L. 92-463, 86 Stat. 770).
There will be additional meetings concerning this task statement in the future. The Coast Guard plans to conduct teleconference meetings every two weeks until work on the task statement has been completed. However, notice of these meetings will not be announced in the
The working group for Task Statement 61, concerning “Merchant mariner medical waiver evaluation guidelines,” will meet to conduct deliberations in preparation for delivering proposed MERPAC recommendations to the full committee.
All meetings are open to the public. Please note that the meetings may adjourn early if all business is finished. At the Chair's discretion, members of the public may make oral presentations during the meetings. If you would like to make an oral presentation at a meeting, please notify Mr. Gould no later than June 15, 2007. Written material for distribution at a meeting should reach the Coast Guard no later than June 15, 2007. If you would like a copy of your material distributed to each member of the subcommittee in advance of the meeting, please submit 25 copies to Mr. Gould no later than June 15, 2007.
For information on facilities or services for individuals with disabilities or to request special assistance at the meetings, contact Mr. Gould as soon as possible.
Transportation Security Administration, DHS.
Notice.
The Transportation Security Administration's (TSA) official regulatory docket is maintained in electronic form at the U.S. Department of Transportation's (DOT) Docket Management System (DMS) docket facilities. This notice announces two service disruptions relating to the relocation of those facilities. The DOT Docket Operations facility, equipment, and staff is moving to 1200 New Jersey Avenue, SE., Washington, DC 20590, and will be located on the West Building Ground Floor, Room W12-140. Hours for the new facility will continue to be 9 a.m. to 5 p.m., Monday through Friday, excluding legal holidays. The Docket Operations telephone number will continue to be (202) 366-9826.
1. To prepare for the relocation to the new facility, the DOT Docket Operations office will be closed to the public on Friday, May 25, 2007, through Tuesday, May 29, 2007. The office will reopen to the public on Wednesday, May 30, 2007 at the new facility.
2. To move the computers that host the electronic dockets, the DMS will be unavailable for use from Wednesday, June 13, 2007, through Sunday, June 17, 2007. The electronic docket will be available to users on June 18, 2007.
This notice applies to the Department of Homeland Security operating administrations of the Transportation Security Agency (TSA) and the United States Coast Guard (USCG), as well as all DOT operating administrations and the Office of Secretary (OST).
During the closure of the Dockets Operations Facility, May 25, 2007, through May 29, 2007, docket materials will remain available to the public through the DMS at
You may submit public docket material by one of the following methods:
1. During the office closure May 25, 2007, through May 29, 2007:
a. Electronically through the DMS at
b. By mail that will be forwarded to the new building during this transition period through the U.S. Postal Service after Thursday, May 24, 2007, addressed to: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Ave SE., Washington, DC 20590.
2. When the DMS computer is down from June 13, 2007, through June 17, 2007:
a. By mail addressed to: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Ave SE., Washington, DC 20590.
b. By hand delivery to the same address.
Note, however, that office staff will not begin to place documents received during this period into the DMS electronic system until the computer goes back on line June 18, 2007.
Docket Operations staff will continue to accept deliveries at 400 7th Street, SW., Room PL-401, Washington, DC, until 5 p.m., Thursday, May 24, 2007.
Beginning at 9 a.m. on Wednesday, May 30, 2007, Docket Operations staff will be available to accept deliveries at the new DOT facility on the West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590.
The Docket Operations staff will still receive electronic submissions during the office move May 25, 2007, through May 29, 2007, but not during the period the computers are down from June 13, 2007, through June 17, 2007. These submissions, however, will not be immediately entered onto the Internet Web site. Hard copy submissions delivered to Docket Operations by May 30, 2007, will be treated as received in a timely manner, if they were due during the office's closure.
Generally, time periods/due dates for responsive filings for submissions due during the May office closure will be extended from May 30, 2007, and June 18, 2007, when DMS operations resume. These periods of closure and computer inaccessibility will be considered “holidays” for purposes of procedural rules.
Persons filing emergency applications or other such documents should contact TSA with specific questions about deadlines and extensions.
30-day notice of information collection under review: Form I-824, Application for Action on an Approved Application or Petition; OMB Control No. 1615-0044.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until June 28, 2007. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), USCIS, Chief, Regulatory Management Division, Clearance Office, 111 Massachusetts Avenue, 3rd floor, Washington, DC 20529. Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at
When submitting comments by e-mail please make sure to add OMB Control Number 1615-0044 in the subject box. Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the information collection instrument, please contact Richard A. Sloan, Chief, Regulatory Management Division, U.S. Citizenship and Immigration Services, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529; Telephone 202-272-8377.
30-day notice of information collection under review: Form I-643, Health and Human Services Statistical Data for Refugee/Asylee Adjusting Status; OMB Control No. 1615-0070.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until June 28, 2007. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), USCIS, Chief, Regulatory Management Division, Clearance Office, 111 Massachusetts Avenue, 3rd floor, Washington, DC 20529. Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at rfs.regs@dhs.gov, and to the OMB USCIS Desk Officer via facsimile at 202-395-6974 or via e-mail at
When submitting comments by e-mail please make sure to add OMB Control Number 1615-0070 in the subject box. Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the information collection instrument, please contact Richard A. Sloan, Chief, Regulatory Management Division, U.S. Citizenship and Immigration Services, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529; Telephone 202-272-8377.
U.S. Citizenship and Immigration Services, DHS.
Notice of extension of temporary protected status designation of Honduras.
This Notice announces that the designation of Honduras for Temporary Protected Status (TPS) has been extended for 18 months to January 5, 2009, from its current expiration date of July 5, 2007. This Notice also sets forth procedures necessary for nationals of Honduras (or aliens having no nationality who last habitually resided in Honduras) with TPS to re-register and to apply for an extension of their Employment Authorization Documents (EADs) for the additional 18-month period. Re-registration is limited to persons who have previously registered for TPS under the designation of Honduras and whose application has been granted or remains pending. Certain nationals of Honduras (or aliens having no nationality who last habitually resided in Honduras) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions.
Given the timeframes involved with processing TPS re-registrants, the Department of Homeland Security (DHS) recognizes that re-registrants may not receive a new EAD until after their current EAD expires on July 5, 2007. Accordingly, this Notice automatically extends the validity of EADs issued under the TPS designation of Honduras for six months, through January 5, 2008, and explains how TPS beneficiaries and their employers may determine which EADs are automatically extended. New EADs with the January 5, 2009,
The extension of the TPS designation of Honduras is effective July 6, 2007, and will remain in effect until 11:59 p.m. on January 5, 2009. The 60-day re-registration period begins May 29, 2007, and will remain in effect until July 30, 2007. To facilitate processing applications, applicants are strongly encouraged to file as soon as possible after the start of the 60-day re-registration period beginning on May 29, 2007.
Matthew Horner, Status and Family Branch, Office of Service Center Operations, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529, telephone (202) 272-1533. This is not a toll-free call. Further information will also be available at local USCIS offices upon publication of this Notice and on the USCIS Web site at
the phone number provided here is solely for questions regarding this notice and the information contained herein. It is not for individual case status inquiries. Applicants seeking information about the status of their individual case can look up cases in Case Status Online available at the USCIS Web site listed above, or applicants may call the USCIS National Customer Service Center at 1-800-375-5283 (TTY 1-800-767-1833).
Section 244(b)(1) of the Immigration and Nationality Act (Act), 8 U.S.C. 1254a(b)(1), authorizes the Secretary of Homeland Security (Secretary), after consultation with appropriate agencies of the Government, to designate a foreign state (or part thereof) for TPS. The Secretary may then grant TPS to eligible nationals of that foreign state (or aliens having no nationality who last habitually resided in that state). 8 U.S.C. 1254a(a)(1)(A).
At least 60 days before the expiration of the TPS designation, or any extension thereof, the Secretary, after consultations with appropriate agencies of the Government, must review the conditions in a foreign state designated for TPS to determine whether the conditions for the TPS designation continue to be met and, if so, the length of an extension. 8 U.S.C. 1254a(b)(3)(A), (C). If the Secretary determines that the foreign state no longer meets the conditions for the TPS designation, he must terminate the designation. 8 U.S.C. 1254a(b)(3)(B).
On January 5, 1999, the Attorney General published a Notice in the
On February 21, 2007, the Government of Honduras requested an extension of the TPS designation of Honduras. Over the past year, DHS and the Department of State have continued to review conditions in Honduras. Based on this review, the Secretary has concluded that an 18-month extension is warranted because there continues to be a substantial, but temporary, disruption of living conditions in Honduras resulting from Hurricane Mitch and Honduras remains unable, temporarily, to adequately handle the return of its nationals, as required for TPS designations based on environmental disasters. 8 U.S.C. 1254a(b)(1)(B).
The Government of Honduras has realized some success in disaster mitigation and prevention projects, as well as in rebuilding infrastructure since Hurricane Mitch. The country, however, still faces significant social and economic stress caused by the environmental disaster.
Estimates of severely damaged or destroyed dwellings as a result of the hurricane ranged from 80,000 to 200,000. By 2004, the United States Agency for International Development (USAID) had completed the construction of 6,100 permanent housing units. By early 2005, nongovernmental organizations had repaired or built over 15,000 housing units, but housing reconstruction had still not been completed in many areas and much of the housing that was built lacked water and electricity. In those cases where people were required to be relocated, infrastructure and personnel for health and education services, as well as employment opportunities, were unavailable.
An estimated 70 to 80 percent of Honduras' transportation infrastructure was destroyed. The majority of the country's bridges and secondary roads were washed away, including 163 bridges and 6,000 km of roads. In November 2006, the road network had been restored and transport infrastructure continued to improve. Infrastructure, however, remains basic and vulnerable to additional damage depending on weather conditions. The “Road Reconstruction and Improvement Project” funded by the World Bank is scheduled to be completed during 2007.
All health centers were fully operational and almost all schools had reopened by the end of 1999, and by the end of 2005, USAID and some other donors had completed their reconstruction projects in Honduras. The country continues, however, to rely heavily on outside assistance and faces daunting long-term development challenges with hundreds of thousands of people living in areas designated as “high risk,” awaiting completion of additional disaster mitigation projects. Current unemployment and underemployment rates range from 20 to 40 percent.
Based upon this review, the Secretary finds, after consultation with the appropriate Government agencies, that the conditions that prompted the designation of Honduras for TPS continue to be met.
By the authority vested in me as Secretary of Homeland Security under section 244 of the Act, 8 U.S.C. 1254a, I have determined, after consultation with the appropriate Government agencies that the conditions that prompted designation of Honduras for TPS in January 1999 continue to be met.
Yes. If you already have received TPS benefits through the designation of Honduras for TPS, your benefits will expire at 11:59 p.m. on July 5, 2007. All TPS beneficiaries must comply with the re-registration requirements described in this Notice in order to maintain TPS benefits through January 5, 2009. TPS benefits include temporary protection against removal from the United States and employment authorization during the TPS designation period. 8 U.S.C. 1254a(a)(1). Failure to re-register without good cause will result in the withdrawal of your TPS and possibly your removal from the United States. 8 U.S.C. 1254a(c)(3)(C).
Please submit the proper forms and fees according to Table 1 below. All applicants are strongly encouraged to pay close and careful attention when filling out the required forms to help ensure that their dates of birth, alien registration numbers, spelling of their names, and other required information is correctly entered on the forms. Aliens who have previously registered for TPS, but whose applications remain pending, should follow these instructions if they wish to renew their TPS benefits. All TPS re-registration applications submitted without the required fees will be returned to the applicant. All fee waiver requests should be filed in accordance with 8 CFR 244.20. If you received an EAD during the most recent registration period, please submit a photocopy of the front and back of your EAD.
Certain applicants must also submit a Biometric Service Fee (See Table 2).
Only the edition of Form I-821 dated November 5, 2004, or later will be accepted. The revision date can be found in the bottom right corner of the form. The proper form can be found on the Internet at
Please reference Table 3 below to see where to mail your specific application.
See Table 4 below to determine if you need to submit supporting documentation.
If you are filing for re-registration and
Some persons may be eligible for late initial registration under 8 CFR 244.2. In order to be eligible for late initial registration, an applicant must:
(1) Be a national of Honduras (or an alien who has no nationality and who last habitually resided in Honduras);
(2) Have continuously resided in the United States since December 30, 1998;
(3) Have been continuously physically present in the United States since January 5, 1999; and
(4) Be both admissible as an immigrant, except as provided under section 244(c)(2)(A) of the Immigration and Nationality Act (Act), and not ineligible under section 244(c)(2)(B) of the Act.
Additionally, the applicant must be able to demonstrate that, during the initial registration period (from January 5, 1999 to August 20, 1999), he or she:
(1) Was a nonimmigrant or had been granted voluntary departure status or any relief from removal;
(2) Had an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal or change of status pending or subject to further review or appeal;
(3) Was a parolee or had a pending request for reparole; or
(4) Is the spouse or child of an alien currently eligible to be a TPS registrant.
An applicant for late initial registration must file an application for late registration no later than 60 days after the expiration or termination of the conditions described above. 8 CFR 244.2(g). All late initial registration applications for TPS, pursuant to the designation of Honduras, should be submitted to the appropriate address in Chicago, Illinois, as defined in Table 3.
Yes. There are certain criminal and terrorism-related inadmissibility grounds that render an alien ineligible for TPS. See 8 U.S.C. 1254a(c)(2)(A)(iii). Further, aliens who have been convicted of any felony or two or more misdemeanors committed in the United States are ineligible for TPS under section 244(c)(2)(B)(i) of the Act, 8 U.S.C. 1254a(c)(2)(B)(i), as are aliens described in the bars to asylum in section 208(b)(2)(A) of the Act, 8 U.S.C. 1158(b)(2)(A). See 8 U.S.C. 1254a(c)(2)(B)(ii).
An individual granted TPS will have his or her TPS withdrawn if the alien is not in fact eligible for TPS, if the alien fails to timely re-register for TPS without good cause, or if the alien fails to maintain continuous physical presence in the United States. See 8 U.S.C. 1254a(c)(3)(A)-(C).
No. TPS is a temporary benefit that does not lead to lawful permanent residence or confer any other immigration status. 8 U.S.C. 1254a, (f)(1), and (h). When a country's TPS designation is terminated, TPS beneficiaries will maintain the same immigration status that they held prior to TPS (unless that status has since expired or been terminated), or any other status they may have acquired while registered for TPS. Accordingly, if an alien held no lawful immigration status prior to being granted TPS and did not obtain any other status during the TPS period, he or she will revert to unlawful status upon the termination of the TPS designation. Once the Secretary determines that a TPS designation should be terminated, aliens who had TPS under that designation are expected to plan for their departure from the United States.
Yes. Registration for TPS does not prevent you from applying for non-immigrant status, filing for adjustment of status based on an immigrant petition, or applying for any other immigration benefit or protection. 8 U.S.C. 1254a(a)(5). For the purposes of change of status and adjustment of status, an alien is considered as being in, and maintaining, lawful status as a nonimmigrant during the period in which the alien is granted TPS.
An application for TPS does not affect an application for asylum or any other immigration benefit. Denial of an application for asylum or any other immigration benefit does not affect an applicant's TPS eligibility, although the grounds for denying one form of relief may also be grounds for denying TPS. For example, a person who has been convicted of a particularly serious crime is not eligible for asylum or TPS. See 8 U.S.C. 1158(b)(2)(A)(ii) and 8 U.S.C. 1254a(c)(2)(B)(ii).
No. An extension of a TPS designation does not change the required dates of continuous residence and continuous physical presence in the United States. This extension does not expand TPS eligibility to those that are not eligible currently. To be eligible for benefits under this extension, nationals of Honduras (or aliens having no nationality who last habitually resided in Honduras) must have continuously resided in the United States since December 30, 1998, and been continuously physically present in the United States since January 5, 1999, the date of the initial designation of Honduras for TPS.
To receive an automatic extension of an EAD, an individual must be a national of Honduras (or an alien having no nationality who last habitually resided in Honduras) who has applied for and received an EAD under the designation of Honduras for TPS and who has not had TPS withdrawn or denied. This automatic extension is limited to: (1) EADs issued on Form I-766, Employment Authorization Document, bearing an expiration date of July 5, 2006 on the face AND that have a July 2007 DHS-issued extension sticker on the back of the card; and (2) EADs issued on Form I-766, bearing an expiration date of July 31, 2007. These EADs must also bear the notation “A-12” or “C-19” on the face of the card under “Category.”
You will receive a notice in the mail with instructions as to whether or not you will be required to appear at a USCIS Application Support Center (ASC) for biometrics collection. To increase efficiency and improve customer service, whenever possible USCIS will reuse previously-captured biometrics and conduct the security checks using those biometrics such that you may not be required to appear at an ASC.
Regardless of whether you are required to appear at an ASC, you are required to pay the biometrics fee during this re-registration. USCIS fees fund the cost of processing applications and petitions for immigration benefits and services, and USCIS' associated operating costs. A detailed description of how USCIS developed its current fee schedule is contained in the proposed rule, Adjustment of Certain Fees of the Immigration Examinations Fee Account, 63 FR 1775 (Jan. 12, 1998).
If you are required to report to an ASC, you must bring the following documents: (1) Your receipt notice for your re-registration application; (2) your ASC appointment notice; and (3) your current EAD. If no further action is required for your case, you will receive a new EAD by mail, valid through January 5, 2009. If your case requires further resolution, USCIS will contact you in writing to explain what additional information, if any, is necessary to resolve your case. Once your case is resolved and if your application is approved, you will receive a new EAD in the mail with an expiration date of January 5, 2009.
No. USCIS will not be issuing interim EADs to TPS applicants and re-registrants at District Offices.
An EAD that has been automatically extended for six months by this Notice through January 5, 2008, will be a Form I-766 bearing the notation “A-12” or “C-19” on the face of the card under “Category,” and either: (1) have an expiration date of July 5, 2006 on the face of the card and a July 2007 DHS-
Employers should accept an EAD as a valid “List A” document and not ask for additional Form I-9, Employment Eligibility Verification, documentation if presented with an EAD that has been extended pursuant to this
Employers are reminded that the laws requiring employment eligibility verification and prohibiting unfair immigration-related employment practices remain in full force. This Notice does not supersede or in any way limit applicable employment verification rules and policy guidance, including those setting forth re-verification requirements.
Eligible TPS aliens will possess an EAD with an expiration date of January 5, 2009. The EAD will be a Form I-766 bearing the notation “A-12” or “C-19” on the face of the card under “Category,” and should be accepted for the purposes of verifying identity and employment authorization.
During the first six months of this extension, qualified individuals who have received a six-month automatic extension of their EADs by virtue of this
After the first six months of this extension and continuing until the end of the extension period, January 5, 2009, a qualified individual may present a new EAD valid through January 5, 2009.
In the alternative, any legally acceptable document or combination of documents listed in List A, List B, or List C of the Form I-9 may be presented as proof of identity and employment eligibility.
U.S. Citizenship and Immigration Services, DHS.
Notice of extension of temporary protected status designation of Nicaragua.
This Notice announces that the designation of Nicaragua for Temporary Protected Status (TPS) has been extended for 18 months to January 5, 2009, from its current expiration date of July 5, 2007. This Notice also sets forth procedures necessary for nationals of Nicaragua (or aliens having no nationality who last habitually resided in Nicaragua) with TPS to re-register and to apply for an extension of their Employment Authorization Documents (EADs) for the additional 18-month period. Re-registration is limited to persons who have previously registered for TPS under the designation of Nicaragua and whose application has been granted or remains pending. Certain nationals of Nicaragua (or aliens having no nationality who last habitually resided in Nicaragua) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions.
Given the timeframes involved with processing TPS re-registrants, the Department of Homeland Security (DHS) recognizes that re-registrants may not receive a new EAD until after their current EAD expires on July 5, 2007. Accordingly, this Notice automatically extends the validity of EADs issued under the TPS designation of Nicaragua for six months, through January 5, 2008, and explains how TPS beneficiaries and their employers may determine which EADs are automatically extended. New EADs with the January 5, 2009 expiration date will be issued to eligible TPS beneficiaries who timely re-register and apply for an EAD.
The extension of the TPS designation of Nicaragua is effective July 6, 2007, and will remain in effect until 11:59 p.m. on January 5, 2009. The 60-day re-registration period begins May 29, 2007, and will remain in effect until July 30, 2007. To facilitate processing of applications, applicants are strongly encouraged to file as soon as possible after the start of the 60-day re-registration period beginning on May 29, 2007.
Matthew Horner, Status and Family Branch, Office of Service Center Operations, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW, 2nd Floor, Washington, DC 20529, telephone (202) 272-1533. This is not a toll-free call. Further information will also be available at local USCIS offices upon publication of this Notice and on the USCIS Web site at
Section 244(b)(1) of the Immigration and Nationality Act (Act), 8 U.S.C. 1254a(b)(1), authorizes the Secretary of Homeland Security (Secretary), after consultation with appropriate agencies of the Government, to designate a foreign state (or part thereof) for TPS. The Secretary may then grant TPS to eligible nationals of that foreign state (or aliens having no nationality who last habitually resided in that state). 8 U.S.C. 1254a(a)(1)(A).
At least 60 days before the expiration of the TPS designation, or any extension thereof, the Secretary, after consultations with appropriate agencies of the Government, must review the conditions in a foreign state designated for TPS to determine whether the conditions for the TPS designation continue to be met and, if so, the length of an extension. 8 U.S.C. 1254a(b)(3)(A), (C). If the Secretary determines that the foreign state no longer meets the conditions for the TPS designation, he must terminate the designation. 8 U.S.C. 1254a(b)(3)(B).
On January 5, 1999, the Attorney General published a Notice in the
On February 2, 2007, the Government of Nicaragua requested an extension of the TPS designation of Nicaragua. Over the past year, DHS and the Department of State have continued to review conditions in Nicaragua. Based on this review, the Secretary has concluded that an 18-month extension is warranted because there continues to be a substantial, but temporary, disruption of living conditions in Nicaragua resulting from Hurricane Mitch and Nicaragua remains unable, temporarily, to adequately handle the return of its nationals, as required for TPS designations based on environmental disasters. 8 U.S.C. 1254a(b)(1)(B)(i-iii).
Significant progress has been made in reconstruction following Hurricane Mitch. However, Nicaragua has not fully recovered from the environmental disaster.
An estimated 145,000 homes were destroyed by the hurricane, leaving an estimated 400,000 to 800,000 people homeless. Health clinics and schools were also impacted with 90 clinics, 400 health posts, and over 500 primary schools suffering structural damage. While much of the large-scale post-disaster aid and reconstruction projects were completed years ago, these projects were focused on temporary buildings that have not been replaced with permanent cement structures and are now largely deteriorated.
Hurricane Mitch destroyed or disabled 70 percent of the roads and severely damaged 71 bridges. Over 1,700 miles of highway and access roads needed replacement. The Pan-American Highway has been repaired, but reconstruction efforts continue with the focus shifted to improving secondary and rural roads.
Nicaragua also suffered significant economic damage and reduced access to food following Hurricane Mitch. Over 100,000 acres of crops were destroyed by the hurricane, half of them life-sustaining food crops such as beans and corn. The regions hardest hit by the hurricane continue to be the poorest and least developed in Nicaragua and the Government of Nicaragua is reporting hunger cases in the northern mountainous region. Additionally, landslides triggered by the heavy and sustained rains of the hurricane resulted in the loss of forest canopy. This problem has affected the environment, resulting in reduced rainfall and agricultural yields that are consistently below average. Export crops, such as coffee, sugar cane and bananas were also destroyed, to a lesser extent but not without resulting reductions in export income.
While the damage resulting from Hurricane Mitch in 1998 formed the basis of the initial designation of Nicaragua for TPS, the country has remained vulnerable and suffered damage during subsequent storms. Hurricane Beta and Tropical Storm Stan severely affected thousands of people, destroying houses, medical centers, and schools in October 2005.
Based upon this review of conditions in Nicaragua, the Secretary finds, after consultation with the appropriate Government agencies, that the conditions that prompted the designation of Nicaragua for TPS continue to be met.
By the authority vested in me as Secretary of Homeland Security under section 244 of the Act, 8 U.S.C. 1254a, I have determined, after consultation with the appropriate Government agencies, that the conditions that prompted designation of Nicaragua for TPS in January 1999 continue to be met.
Yes. If you already have received TPS benefits through the designation of Nicaragua for TPS, your benefits will expire at 11:59 p.m. on July 5, 2007. All TPS beneficiaries must comply with the re-registration requirements described in this Notice in order to maintain TPS benefits through January 5, 2009. TPS
Please submit the proper forms and fees according to the Table 1 below. All applicants are strongly encouraged to pay close and careful attention when filling out the required forms to help ensure that their dates of birth, alien registration numbers, spelling of their names, and other required information is correctly entered on the forms. Aliens who have previously registered for TPS, but whose applications remain pending, should follow these instructions if they wish to renew their TPS benefits. All TPS re-registration applications submitted without the required fees will be returned to the applicant. All fee waiver requests should be filed in accordance with 8 CFR 244.20. If you received an EAD during the most recent registration period, please submit a photocopy of the front and back of your EAD.
Certain applicants must also submit a Biometric Service Fee (See Table 2).
Only the edition of Form I-821 dated November 5, 2004, or later will be accepted. The revision date can be found in the bottom right corner of the form. The proper form can be found on the Internet at
Please reference Table 3 below to see where to mail your specific application.
See Table 4 below to determine if you need to submit supporting documentation.
If you are filing for re-registration and
Some persons may be eligible for late initial registration under 8 CFR 244.2. In order to be eligible for late initial registration, an applicant must:
(1) Be a national of Nicaragua (or an alien who has no nationality and who last habitually resided in Nicaragua);
(2) Have continuously resided in the United States since December 30, 1998;
(3) Have been continuously physically present in the United States since January 5, 1999; and
(4) Be both admissible as an immigrant, except as provided under section 244(c)(2)(A) of the Immigration and Nationality Act (Act), and not ineligible under section 244(c)(2)(B) of the Act.
Additionally, the applicant must be able to demonstrate that, during the initial registration period (from January 5, 1999 to August 20, 1999), he or she:
(1) Was a nonimmigrant or had been granted voluntary departure status or any relief from removal;
(2) Had an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal or change of status pending or subject to further review or appeal;
(3) Was a parolee or had a pending request for reparole; or
(4) Is the spouse or child of an alien currently eligible to be a TPS registrant.
An applicant for late initial registration must file an application for late registration no later than 60 days after the expiration or termination of the conditions described above. 8 CFR 244.2(g). All late initial registration applications for TPS, pursuant to the designation of Nicaragua, should be submitted to the appropriate address in Chicago, Illinois as defined in Table 3.
Yes. There are certain criminal and terrorism-related inadmissibility grounds that render an alien ineligible for TPS.
An alien granted TPS will have his or her TPS withdrawn if the alien is not in fact eligible for TPS, if the alien fails to timely re-register for TPS without good cause, or if the alien fails to maintain continuous physical presence in the United States.
No. TPS is a temporary benefit that does not lead to lawful permanent residence or confer any other immigration status. 8 U.S.C. 1254a, (f)(1), and (h). When a country's TPS designation is terminated, TPS beneficiaries will maintain the same immigration status that they held prior to TPS (unless that status has since expired or been terminated), or any other status they may have acquired while registered for TPS. Accordingly, if an alien held no lawful immigration status prior to being granted TPS and did not obtain any other status during the TPS period, he or she will revert to unlawful status upon the termination of the TPS designation. Once the Secretary determines that a TPS designation should be terminated, aliens who had TPS under that designation are expected
Yes. Registration for TPS does not prevent you from applying for non-immigrant status, filing for adjustment of status based on an immigrant petition, or applying for any other immigration benefit or protection. 8 U.S.C. 1254a(a)(5). For the purposes of change of status and adjustment of status, an alien is considered as being in, and maintaining, lawful status as a nonimmigrant during the period in which the alien is granted TPS.
An application for TPS does not affect an application for asylum or any other immigration benefit. Denial of an application for asylum or any other immigration benefit does not affect an applicant's TPS eligibility, although the grounds for denying one form of relief may also be grounds for denying TPS. For example, a person who has been convicted of a particularly serious crime is not eligible for asylum or TPS. See 8 U.S.C. 1158(b)(2)(A)(ii) and 8 U.S.C. 1254a(c)(2)(B)(ii).
No. An extension of a TPS designation does not change the required dates of continuous residence and continuous physical presence in the United States. This extension does not expand TPS eligibility to those that are not eligible currently. To be eligible for benefits under this extension, nationals of Nicaragua (or aliens having no nationality who last habitually resided in Nicaragua) must have continuously resided in the United States since December 30, 1998 and been continuously physically present in the United States since January 5, 1999, the date of the initial designation of Nicaragua for TPS.
To receive an automatic extension of an EAD, an individual must be a national of Nicaragua (or an alien having no nationality who last habitually resided in Nicaragua) who has applied for and received an EAD under the designation of Nicaragua for TPS and who has not had TPS withdrawn or denied. This automatic extension is limited to: (1) EADs issued on Form I-766, Employment Authorization Document, bearing an expiration date of July 5, 2006 on the face AND that have a July 2007 DHS-issued extension sticker on the back of the card; and (2) EADs issued on Form I-766, Employment Authorization Document, bearing an expiration date of July 31, 2007. These EADs must also bear the notation “A-12” or “C-19” on the face of the card under “Category.”
You will receive a notice in the mail with instructions as to whether or not you will be required to appear at a USCIS Application Support Center (ASC) for biometrics collection. To increase efficiency and improve customer service, whenever possible USCIS will reuse previously-captured biometrics and conduct the security checks using those biometrics such that you may not be required to appear at an ASC.
Regardless of whether you are required to appear at an ASC, you are required to pay the biometrics fee during this re-registration. The fee will cover the USCIS costs associated with the use of the collected biometrics for FBI and other background checks. USCIS fees fund the cost of processing applications and petitions for immigration benefits and services, and USCIS' associated operating costs. A detailed description of how USCIS developed its current fee schedule is contained in the proposed rule, Adjustment of Certain Fees of the Immigration Examinations Fee Account, 63 FR 1775 (Jan. 12, 1998).
If you are required to report to the ASC, you must bring the following documents: (1) Your receipt notice for your re-registration application; (2) your ASC appointment notice; and (3) your current EAD. If no further action is required for your case, you will receive a new EAD through the mail that is valid through January 5, 2009. If your case requires further resolution, USCIS will contact you in writing to explain what additional information, if any, is necessary to resolve your case. Once your case is resolved and if your application is approved, you will receive a new EAD in the mail with an expiration date of January 5, 2009.
No. USCIS will not be issuing interim EADs to TPS applicants and re-registrants at District Offices.
An EAD that has been automatically extended for six months by this Notice through January 5, 2008, will be a Form I-766 bearing the notation “A-12” or “C-19” on the face of the card under “Category,” and either: (1) have an expiration date of July 5, 2006 on the face of the card and have a July 2007 DHS-issued extension sticker on the back; or (2) have an expiration date of July 31, 2007 on the face of the card. New EADs or extension stickers showing the January 5, 2008, expiration date of the six-month automatic extension will not be issued. Employers should not request proof of Nicaraguan citizenship.
Employers should accept an EAD as a valid “List A” document and not ask for additional Form I-9, Employment Eligibility Verification documentation if presented with an EAD that has been extended pursuant to this
Employers are reminded that the laws requiring employment eligibility verification and prohibiting unfair immigration-related employment practices remain in full force. This Notice does not supersede or in any way limit applicable employment verification rules and policy guidance, including those setting forth re-verification requirements.
Eligible TPS aliens will possess an EAD with an expiration date of January 5, 2009. The EAD will be a Form I-766 bearing the notation “A-12” or “C-19” on the face of the card under “Category,” and should be accepted for the purposes of verifying identity and employment authorization.
During the first six months of this extension, qualified individuals who have received a six-month automatic extension of their EADs by virtue of this
After the first six months of this extension, and continuing until the end of the extension period, January 5, 2009, a qualified individual may present a new EAD valid through January 5, 2009.
In the alternative, any legally acceptable document or combination of documents listed in List A, List B, or List C of the Form I-9 may be presented as proof of identity and employment eligibility.
Office of Community Planning and Development, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Lillian L. Deitzer, Departmental Reports Management Officer, QDAM, Department or Housing and Urban Development, 451 Seventh Street, SW., Room 4176, Washington, DC 20410; telephone: 202-708-2374, (this is not a toll-free number) or e-mail Ms. Deitzer at
William Rudy, Deputy Director, Office of HIV/AIDS Housing, U.S. Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; telephone 202-708-1934 (this is not a toll-free number).
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Lillian Deitzer, Reports Management Officer, Department of Housing and Urban Development, 451 7th Street, SW, Room 4178, Washington, DC 20410 or
Gail Williamson, Director, Housing Assistance Policy Division, Office of Multifamily Housing, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410, telephone (202) 708-3300 ext. 2473 (this is not a toll free number) for copies of the proposed forms and other available information.
The Department is submitting the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This Notice also lists the following information:
The Paperwork Reduction Act of 1995, 44 U.S.C., Chapter 35, as amended.
Office of the Assistant Secretary for Housing-Federal Housing. Commissioner, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Lillian Dietzer, Reports Management Officer, Department of Housing and Urban Development, 451 7th Street, SW., Room 4178, Washington, DC 20410 or
Kimberly R. Munson, Housing Program Manager, Office of Asset Management, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410, telephone (202) 708-1320 (this is not a toll free number) for copies of the proposed forms and other available information.
The Department is submitting the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This Notice also lists the following information:
The Paperwork Reduction Act of 1995, 44 U.S.C., Chapter 35, as amended.
Fish and Wildlife Service, Interior.
Notice of issuance of permits for endangered species and/or marine mammals.
The following permits were issued.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358-2281.
Division of Management Authority, telephone 703/358-2104.
Notice is hereby given that on the dates below, as authorized by the provisions of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
The public is invited to comment on the following applications to conduct certain activities with endangered species and/or marine mammals.
Written data, comments or requests must be received by June 28, 2007.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358-2281.
Division of Management Authority, telephone 703/358-2104.
The public is invited to comment on the following applications for a permit to conduct certain activities with endangered species. This notice is provided pursuant to Section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a permit to import up to 70 juvenile wood bison (
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The public is invited to comment on the following applications for a permit to conduct certain activities with marine mammals. The applications were submitted to satisfy requirements of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
The applicant requests a permit to import a polar bear (
The applicant requests a permit to import a polar bear (
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications; request for comment.
We invite the public to comment on the following applications to conduct certain activities with endangered species.
Comments on these permit applications must be received on or before June 28, 2007.
Written data or comments should be submitted to the U.S. Fish and Wildlife Service, Endangered Species Program Manager, California/Nevada Operations Office (CNO), 2800 Cottage Way, Room W-2606, Sacramento, California, 95825 (
Daniel Marquez, Fish and Wildlife Biologist, at the above CNO address, (
The following applicants have applied for scientific research permits to conduct certain activities with endangered
The applicant requests an amendment to take (capture, and release) the Moapa Dace (
The applicant requests a permit to take (harass by survey, and nest monitor) the least Bell's vireo in conjunction with surveys and monitoring throughout the range of the species in California for the purpose of enhancing its survival.
The permittee requests a permit to take (harass by survey, capture, and release) the California tiger salamander (
The applicant requests a permit to take (capture, and collect and kill) the Conservancy fairy shrimp (
The applicant requests a permit to take (harass by survey) the Southwestern willow flycatcher (
The applicant requests a permit to take (harass by survey) the Southwestern willow flycatcher (
The applicant requests a permit to take (capture, and collect and kill) the Conservancy fairy shrimp (
The applicant requests a permit to take (survey by pursuit) the El Segundo blue butterfly (
The applicant requests an amendment to take (monitor) the California least tern (
The permittee requests an amendment to take (harass by survey) the Southwestern willow flycatcher (Empidonax traillii extimus) in conjunction with surveys throughout the range of the species in California, for the purpose of enhancing its survival.
The applicant requests an amendment to take (capture, collect, and kill) the Conservancy fairy shrimp (
We solicit public review and comment on each of these recovery permit applications. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home addresses from the record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment, but you should be aware that we may be required to disclose your name and address pursuant to the Freedom of Information Act. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.
Fish and Wildlife Service, Interior.
Notice of document availability.
The U.S. Fish and Wildlife Service (Service) announces the availability of the revised Recovery Plan for the Whooping Crane (
Copies of the recovery plan on CD may be obtained from the Whooping Crane Coordinator, U.S. Fish and Wildlife Service, Aransas National Wildlife Refuge, P.O. Box 100, Austwell, Texas 77950, or the plan may be downloaded from the Internet at
Tom Stehn, USFWS Whooping Crane Coordinator, Aransas National Wildlife Refuge, P.O. Box 100, Austwell, Texas 77950; telephone (361) 286-3559, ext. 221, facsimile (361) 286-3722, e-mail:
Restoring an endangered or threatened animal or plant to the point where it is again a secure, self-sustaining member of its ecosystem is a primary goal of the Service's endangered species program. To help guide the recovery effort, the Service is working to prepare recovery plans for most of the listed species native to the United States. Recovery plans describe actions considered necessary for conservation of species, establish criteria for downlisting or delisting them, and estimate time and cost for implementing the recovery measures needed.
The Endangered Species Act of 1973 (Act), as amended (16 U.S.C. 1531
In the United States, the whooping crane (
Whooping cranes occur only in North America. Approximately 343 individuals exist in the wild at 3 locations, and 135 whooping cranes are in captivity at 9 sites. Only the Aransas—Wood Buffalo National Park population (AWBP) that nests in Canada and winters in coastal marshes in Texas is self-sustaining, with approximately 220 in the flock. With so few individuals surviving, the population remains in danger of extinction. Historic population declines resulted from habitat destruction, shooting, and displacement by activities of man. Current threats include limited genetics, loss and degradation of migration stopover habitat, collisions with power lines, and degradation of coastal habitat and threat of chemical spills.
The revised recovery plan includes scientific information about the species and provides objectives and actions needed to downlist the species. Recovery actions designed to achieve these objectives include protection and enhancement of the breeding, migration, and wintering habitat for the AWBP to allow the wild flock to grow and reach ecological and genetic stability; reintroduction and establishment of geographically separate self-sustaining wild flocks to ensure resilience to catastrophic events; and maintenance of a captive breeding flock to protect against extinction that is genetically managed to retain a minimum of 90 percent of the whooping crane's genetic material for 100 years.
The current recovery goal is to reclassify (downlist) the species from endangered to threatened status. Criteria to delist the species are not being proposed at this time because the status and biology of the species dictate that considerable time (over 20 years) is needed to reach downlisting goals. Additional threats are expected to arise and will have to be overcome before downlisting occurs. Additional information is also needed on the conservation biology of small populations, including a determination of effective population size (N
Downlisting can be achieved when (1) There are a minimum of 40 productive pairs in the AWBP and 25 productive pairs in each of two additional self-sustaining populations, or (1A) there are 100 productive pairs in the AWBP and 30 productive pairs in a second self-sustaining population, or (1B) there are 250 productive pairs in the AWBP, and (2) there are at least 21 productive pairs in the captive population.
This revision to the recovery plan was developed by an international recovery team, and will be jointly adopted by the United States and Canada.
The authority for this action is Section 4(f) of the Endangered Species Act, 16 U.S.C. 1533(f).
Editorial Note: This document was received at the Office of the Federal Register on May 22, 2007.
Bureau of Land Management, Interior.
Notice of decision approving lands for conveyance.
As required by 43 CFR 2650.7(d), notice is hereby given that an appealable decision approving lands for conveyance pursuant to the Alaska Native Claims Settlement Act will be issued to Gana-a'Yoo, Limited, Successor in Interest to Notaaghleedin, Limited. The lands are in the vicinity of Galena, Alaska, and are located in:
Lots 7, 9, 10, 11, and 13, U.S. Survey No. 6664, Alaska.
Containing 101.65 acres.
Containing 1,775.79 acres.
Containing 4,345.45 acres.
Aggregating 6,222.89 acres.
The subsurface estate in these lands will be conveyed to Doyon, Limited when the surface estate is conveyed to Gana-a'Yoo, Limited. Notice of the decision will also be published four times in the Fairbanks Daily News-Miner.
The time limits for filing an appeal are:
1. Any party claiming a property interest which is adversely affected by the decision shall have until 30 days after publication in the
2. Parties receiving service of the decision by certified mail shall have 30 days from the date of receipt to file an appeal.
Parties who do not file an appeal in accordance with the requirements of 43 CFR part 4, subpart E, shall be deemed to have waived their rights.
A copy of the decision may be obtained from: Bureau of Land Management, Alaska State Office, 222 West Seventh Avenue, #13, Anchorage, Alaska 99513-7504.
The Bureau of Land Management by phone at 907-271-5960, or by e-mail at
Bureau of Land Management, Interior.
Notice of seasonal closure.
The San Juan Public Lands Center, Bureau of Land Management (BLM) is giving notice that public lands near the Silverton Ski Area as described below, will be seasonally closed to all entry, from November 1
The lands affected by this closure are described as a portion of those federal lands administered by the Bureau of Land Management within sections 20, 21, 27, 28, 29, 30, 31, 32, 33, 34 of protracted Township 42 N., R.7 W., New Mexico Principal Meridian. These lands are further described as: beginning at a point 0.5 mile north of Cascade Gulch and extending northeasterly along the east side of Colorado State highway #110A to the junction of San Juan County #52, thence southeasterly along the Middle Fork of Cement Creek to the divide between the Middle Fork Cement Creek and the South Fork of the Animas River, thence south along the ridge line forming the Colorado Basin to Storm Peak, thence west along a descending ridge line to the tree line between Grassy Gulch and Cascade Gulch, thence, northwest to the point of the beginning.
The BLM will post closure signs in this area. You may obtain maps of the closure area and information from the San Juan Public Lands Center in Durango, CO.
You must not enter the closed area between November 1st
Charlie Higby, BLM Realty Specialist, (970) 385-1374; San Juan Public Lands Center, 15 Burnett Court, Durango, Colorado 81301.
Bureau of Land Management, Interior.
Notice of intent.
In accordance with Section 102(2)(C) of the National Environmental Policy Act of 1969 and 43 CFR part 3809, the Bureau of Land Management (BLM), Elko Field Office will be preparing a Supplemental Environmental Impact Statement (SEIS) to analyze the environmental effects of the proposed amendment to the Plan of Operations for the Goldstrike Mine also known as the Betze Project, 25 miles north of Carlin, Nevada. The original EIS was completed in 1991. The Goldstrike Mine has continued in operation since that date.
Public comments must be received in the Elko Field Office within 30 days after publication of this notice in the
You may submit comments by any of the following methods:
Kirk Laird, Project Manager at the Elko Field Office, 3900 E. Idaho, Elko, NV 89801. Telephone (775) 753-0200.
The current amendment proposes to expand the Goldstrike Mine from 7,771 acres of disturbance to 9,031 acres of which 493 acres of new disturbance will be on public land managed by the BLM Elko
Bureau of Land Management, Department of the Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management, New Mexico Resource Advisory Council (RAC), will meet as indicated below.
the meeting dates are July 24-25, 2007, at the Convention Center, 302 South Canal Street, Carlsbad, New Mexico, Room 3. the public comment period is scheduled July 24, 2007, from 6-7 p.m. at the Convention Center. the public may present written comments to the RAC. Depending on the number of individuals wishing to comment and time available, oral comments may be limited. The three established RAC working groups may have a later afternoon or an evening meeting.
The 15-member RAC advises the Secretary of the Interior, through the Bureau of Land Management, on a variety of planning and management issues associated with public land management in New Mexico. All meetings are open to the public. At this meeting, topics include issues on renewable and nonrenewable resources.
Theresa Herrera, New Mexico State Office, Office of External Affairs, Bureau of Land Management, P.O. Box 27115, Santa Fe, New Mexico 87502-0115, 505.438.7517.
Bureau of Land Management, Interior.
Notice of intent.
The Bureau of Land Management (BLM) proposes to amend the Las Vegas Resource Management Plan (RMP) to allow for the relocation of a section of a BLM utility corridor, and to prepare an environmental assessment (EA), pursuant to Section 102 of the National Environmental Policy Act of 1969 (NEPA) to analyze the effects of that action. The BLM proposes to relocate an 11.4-mile length of the half-mile wide BLM Utility Corridor that currently extends across the southern portion of Indian Springs in Clark County, NV. The Corridor as designated overlaps private lands. The amendment would relocate the Corridor further south behind Grandpa Mountain to avoid the private lands.
The scoping comment period will commence with the publication of this notice and will end 30 days after its publication. Comments should be submitted in writing to the address below and will be accepted throughout the scoping period. Any scoping meetings will be announced 15 days in advance through the local news media, newsletters, and the BLM Web site at
Please mail written comments to the Bureau of Land Management, Las Vegas Field Office, 4701 North Torrey Pines Drive, Las Vegas, NV, 89130-2301, (fax (702) 515-5023) attention Mark R. Chatterton.
Mark R. Chatterton at the Las Vegas Field Office (see address above), telephone (702) 515-5049; e-mail
The Las Vegas RMP was approved on October 5, 1998. The BLM Utility Corridor in the vicinity of Indian Springs (see Map 2-4 of Volume II of the Las Vegas RMP) was established along an existing power line. The existing BLM Utility Corridor is approximately 2,640 feet wide in the vicinity of Indian Springs. This half-mile wide utility corridor extends northwest from T. 16 S., R. 57 E., sec. 33, M.D.M. along U.S. Highway 95 to the community of Indian Springs where the corridor diverges south around Indian Springs. Approximately one-quarter-mile of the Corridor width extends into private property. This RMP amendment is intended to relocate 11.4 miles of the half-mile wide corridor, centered on Indian Springs, further south behind Grandpa Mountain to avoid abutting any private lands. Beyond Indian Springs, the Corridor continues west parallel to U.S. Highway
The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis, including concerns, or proposed alternatives that should be considered. Please note that public comments and information submitted, including names, addresses, and email addresses of the respondents will be available for public review at the Las Vegas Field Office during regular business hours from 7:30 a.m. to 4:15 p.m., Monday through Friday, except holidays. Before including your address, phone number, e-mail address, or other personal identifying information in your comments, you should be aware that your entire comment—including your personal identifying information—may be 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 be able to do so.
BLM will notify the public through local news media and the BLM website when the draft plan amendment and the EA will be available for public comment. Preliminary issues and concerns have been identified by BLM personnel, other agencies, and individuals. Disciplines involved in the planning process will include specialists with expertise in wildlife management, minerals and geology, outdoor recreation, archaeology, lands and realty, and botany. The alternative to the proposed action will be the No Action Alternative (keeping the existing BLM Utility Corridor).
Planning documents, environmental information, and other associated information are available for public review at the Las Vegas Field Office during regular business hours from 7:30 a.m. to 4:15 p.m., Monday through Friday, except holidays.
The authority for the
Bureau of Land Management, Montana State Office, Interior.
Notice of filing of plat of survey.
The Bureau of Land Management (BLM) will file the plat of survey of the lands described below in the BLM Montana State Office, Billings, Montana, (30) days from the date of publication in the
Marvin Montoya, Cadastral Surveyor, Branch of Cadastral Survey, Bureau of Land Management, 5001 Southgate Drive, Billings, Montana 59101-4669, telephone (406) 896-5124 or (406) 896-5009.
This survey was executed at the request of the Rocky Mountain Regional Director, Bureau of Indian Affairs, and was necessary to determine Trust and Tribal land.
The lands we surveyed are:
The plat, in 1 sheet, representing the survey of the meanders of the present left bank of the Big Horn River, through section 18 and a portion of section 19, the medial lines of certain relicted channels of the Big Horn River, through sections 18 and 19, and an island (Tract No. 37), Township 5 South, Range 32 East, Principal Meridian, Montana, was accepted May 10, 2007.
We will place a copy of the plat, in 1 sheet, and related field notes we described in the open files. They will be available to the public as a matter of information.
If BLM receives a protest against this survey, as shown on this plat, in 1 sheet, prior to the date of the official filing, we will stay the filing pending our consideration of the protest.
We will not officially file this plat, in 1 sheet, until the day after we have accepted or dismissed all protests and they have become final, including decisions or appeals.
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before May 12, 2007. Pursuant to section 60.13 of 36 CFR part 60 written comments concerning the significance of these properties under the National Register criteria for evaluation may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St. NW., 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service,1201 Eye St. NW, 8th floor, Washington DC 20005; or by fax, 202-371-6447. Written or faxed comments should be submitted by June 13, 2007.
A request for removal has been made for the following resource:
International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 9) issued by the presiding administrative law judge (“ALJ”) extending the target date for completion of the above-captioned investigation to February 25, 2008.
Christal A. Sheppard, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 708-2301. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
This investigation was instituted on September 22, 2006, based on a complaint filed by Merck & Co., Inc., of Whitehouse Station, New Jersey. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain alendronate salts and products containing the same by reason of infringement of claims 1—5 of United States Patent No. 4,922,007. The complainant requests that the ITC issue a permanent limited exclusion order and a permanent cease and desist order. The complaint further alleges that an industry exists as required by subsection (a)(2) of section 337. The complaint named CIPLA, Ltd., of Mumbai, India as respondent in this investigation.
On January 16, 2007, the ALJ issued an ID (Order No. 9) extending the target date of this investigation by five months to February 25, 2008, and the deadline for his final initial determination to October 25, 2007. The Commission has determined not to review this ID.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in section 210.42 of the Commission's Rules of Practice and Procedure (19 CFR 210.42).
By order of the Commission.
United States International Trade Commission.
May 31, 2007 at 11 a.m.
Room 101, 500 E Street SW., Washington, DC 20436,
Open to the public.
1. Agenda for future meetings: none.
2. Minutes.
3. Ratification List.
4. Inv. Nos. 731-TA-711 and 713-716 (Second Review)(Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico)—briefing and vote. (The Commission is currently scheduled to transmit its determination and Commissioners' opinions to the Secretary of Commerce on or before June 15, 2007.)
5. Outstanding action jackets: none.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
60-day notice of information collection under review: Application to Register as an Importer of U.S. Munitions Import List Articles.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until July 30, 2007. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Marie Pollard, Firearms and Explosives Import Branch, 244 Needy Road, Martinsburg, WV 25405.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Lynn Bryant, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, Patrick Henry Building, Suite 1600, 601 D Street, NW., Washington, DC 20530.
Notice is hereby given that, on April 3, 2007, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and Semiconductor Test Consortium, Inc., intends to file additional written notifications disclosing all changes in membership.
On May 27, 2003, Semiconductor Test Consortium, Inc. filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on January 17, 2007. A notice was published in the
60-day notice of information collection under review: Grants Management System Online Application.
The Department of Justice (DOJ), Office of Justice Programs, Bureau of Justice Statistics, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until July 30, 2007. This process is conducted in accordance with 5 CFR 1320.10.
If you have additional comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact: Bruce Whitlock, (202) 353-1551, Office of The Chief Information Officer, Office of Justice Programs, Department of Justice, 810 Seventh Street, NW., Washington, DC 20531 or
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Mrs. Lynn Bryant, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Patrick Henry Building, Suite 1600, 601 D Street, NW., Washington, DC 20530.
60-day notice of information collection under review: 2007 Survey of Law Enforcement Gang Units.
The Department of Justice (DOJ), Office of Justice Programs, Bureau of Justice Statistics, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until July 30, 2007. This process is conducted in accordance with 5 CFR 1320.10.
If you have additional comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact: Matthew Hickman, (202) 353-1631, Bureau of Justice Statistics, Office of Justice Programs, Department of Justice, 810 Seventh Street, NW., Washington, DC 20531 or
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Mrs. Lynn Bryant, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Patrick Henry Building, Suite 1600, 601 D Street, NW., Washington, DC 20530.
National Aeronautics and Space Administration.
Notice of availability of inventions for licensing.
The inventions listed below assigned to the National Aeronautics and Space Administration, have been filed in the United States Patent and Trademark Office, and are available for licensing.
May 29, 2007.
James J. McGroary, Patent Counsel, Marshall Space Flight Center, Mail Code LS01, Huntsville, AL 35812; telephone (256) 544-0013; fax (256) 544-0258.
National Aeronautics and Space Administration.
Notice of availability of inventions for licensing.
The inventions listed below assigned to the National Aeronautics and Space Administration, have been filed in the United States Patent and Trademark Office, and are available for licensing.
May 29, 2007.
Robert M. Padilla, Patent Counsel, Ames Research Center, Code 202A-4, Moffett Field, CA 94035-1000; telephone (650) 604-5104; fax (650) 604-2767.
National Aeronautics and Space Administration.
Notice of availability of inventions for licensing.
The inventions listed below assigned to the National Aeronautics and Space Administration, have been filed in the United States Patent and Trademark Office, and are available for licensing.
May 29, 2007.
Kaprice L. Harris, Attorney Advisor, Glenn Research Center at Lewis Field, Code 500-118, Cleveland, OH 44135; telephone (216) 433-5754; fax (216) 433-6790.
National Aeronautics and Space Administration.
Notice of availability of inventions for licensing.
The inventions listed below assigned to the National Aeronautics and Space Administration, have been filed in the United States Patent and Trademark office, and are available for licensing.
May 29, 2007.
Bryan A. Geurts, Patent Counsel, Goddard Space Flight Center, Mail Code 140.1, Greenbelt, MD 20771-0001;
National Aeronautics and Space Administration.
Notice of availability of inventions for licensing.
The invention listed below is assigned to the National Aeronautics and Space Administration, is the subject of a patent application that has been filed in the United States Patent and Trademark office, and is available for licensing.
May 29, 2007.
Mark W. Homer, Patent Counsel, NASA Management Office—JPL, 4800 Oak Grove Drive, Mail Stop 180-200, Pasadena, CA 91109; telephone (818) 354-7770.
National Aeronautics and Space Administration.
Notice of availability of inventions for licensing.
The inventions listed below assigned to the National Aeronautics and Space Administration, have been filed in the United States Patent and Trademark office, and are available for licensing.
May 29, 2007.
Edward K. Fein, Patent Counsel, Johnson Space Center, Mail Code AL, Houston, TX 77058-8452; telephone (281) 483-4871; fax (281) 483-6936.
National Aeronautics and Space Administration.
Notice of availability of inventions for licensing.
The inventions listed below assigned to the National Aeronautics and Space Administration, have been filed in the United States Patent and Trademark office, and are available for licensing.
May 29, 2007.
Linda B. Blackburn, Patent Counsel, Langley Research Center, Mail Code 141, Hampton, VA 23681-2199; telephone (757) 864-3221; fax (757) 864-9190.
Nuclear Regulatory Commission.
Issuance of Environmental Assessment and Finding of No Significant Impact for License Amendment.
Rachel S. Browder, M.S., Health Physicist, Nuclear Materials Licensing Branch, Division of Nuclear Materials Safety, Region IV, U.S. NRC, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011; telephone (817) 276-6552; fax number (817) 860-8188; or by e-mail:
The U.S. Nuclear Regulatory Commission (NRC) is considering the issuance of a license amendment to NRC Source Materials License No. SUB-1382. This license is held by ExxonMobil Refining & Supply Co., (the Licensee) for its ExxonMobil Billings Refinery (the Facility) located at 700 ExxonMobil Road, Billings, Montana. Issuance of the amendment would authorize release of the Facility for unrestricted use and termination of the NRC license. The Licensee requested this action by letters dated February 10 and July 6, 2006. The NRC has prepared this Environmental Assessment (EA) in support of this proposed action in accordance with the requirements of Title 10, Code of Federal Regulations (CFR), Part 51 (10 CFR Part 51).
The proposed action would release the Facility for unrestricted use. NRC License No. SUB-1382 was issued on September 9, 1980, pursuant to 10 CFR Part 40, and has been amended periodically since that time. This license authorized the Licensee to use depleted uranium (DU) catalysts in 84 furnace tubes of a F-551 Reformer Furnace (furnace) at a hydrogen manufacturing plant. Hydrogen carbon gas was passed through the tubes with the rings acting as a catalyst, to produce hydrogen and carbon dioxide. The Licensee used this process from 1980 to 1986.
In 1986, all of the furnace tubes were removed and surveyed. The tubes were replaced with a non-radioactive nickel-molybdenum catalyst. Residual radioactivity was detected at the bottom of some of the furnace tubes that had previously contained the DU catalysts. Those areas were decontaminated and a survey was subsequently performed. The survey results indicated that the residual radioactivity had been reduced to less than 83 becquerels per 100-square centimeter (Bq/100 cm
In 2005, the Licensee replaced all of the tubes during furnace maintenance. During the 2005 maintenance, several areas of the furnace were made accessible which were normally not accessible during operations. The Licensee performed surveys based on process knowledge of the system. The highest survey readings were found in the manifold that carried the product from the furnace tubes to the collection basin refractory drum. A pipe elbow was removed from the manifold which allowed access to the manifold piping near the removal point. Four residual radioactivity measurements were taken upstream of the elbow. The mean of the measurements was 220 Bq/100 cm
Based on process knowledge of the system and the conditions of the Facility, the Licensee determined that only routine decontamination activities, in accordance with their radiation safety procedures, were required. The Licensee was not required to submit a decommissioning plan to the NRC. The Licensee conducted surveys of the Facility and provided information to the NRC to demonstrate that the furnace component contributed less than 0.01 millisievert/year (mSv/yr) (1 millirem(mrem)/year) and therefore, the Facility meets the criteria in Subpart E of 10 CFR Part 20 for unrestricted release and for license termination. By letters of February 10 and July 6, 2006, the Licensee requested termination of its NRC source materials license.
The Licensee has ceased conducting licensed activities at the Facility and seeks the unrestricted use of its Facility which can be accomplished by the termination of its NRC source materials license.
ExxonMobil Refining & Supply Co., is located on a 778 acre site in Billings, Montana. This site is primarily considered a rural area and is bounded by the Montana Rail Link and Interstate-90 on the south side and the Yellowstone River on the north side. The furnace is located within the processing area of the refinery, which is a restricted site. Access to the area is given by permission only, and the area is actively monitored by security personnel.
The Licensee elected to demonstrate compliance with the radiological criteria for unrestricted release as specified in 10 CFR 20.1402 by developing derived concentration guideline levels (DCGLs) for its Facility. The Licensee considered two site-specific exposure scenarios and two generic exposure scenarios as documented in NUREG-1640, “Radiological Assessments for Clearance of Materials from Nuclear Facilities.” The exposure scenarios were analyzed for the critical group to demonstrate that the residual radioactivity remaining on the furnace components at the facility was less than the derived concentration guideline level (DCGL) corresponding to 0.01 mSv/yr (1 mrem/yr). The critical group is the group of individuals reasonably expected to receive the greatest exposure to residual radioactivity for any applicable set of circumstances.
The two site-specific scenarios analyzed the potential exposure to: (1) A worker due to continued furnace operation and, (2) an on-site demolition worker who uses a torch-cutter to cut the manifold piping into shorter lengths for disposal or recycling. The two generic scenarios analyzed the exposure to: (1) A resident living near an industrial landfill and who drinks the groundwater contaminated with landfill leachate, and (2) workers handling and processing steel slag for road construction. Based on the evaluation of all four exposure scenarios, the Licensee concluded that the critical group was the workers handling or processing steel slag. Therefore, this scenario was used as the bounding scenario. The calculated DCGL that would result in a dose of 0.01 mSv/yr (1 mrem/yr) to the critical group of a worker handling or processing steel slag was determined to be 400 Bq/100 cm
Based on surveys performed during 2005, the Licensee calculated that the residual low-level contamination within the furnace components remaining at the facility, were less than the calculated DCGL. There was one small area (100 cm
Based on its review, the staff has determined that the affected environment and any environmental impacts associated with the proposed action are bounded by the impacts evaluated by the “Generic Environmental Impact Statement in Support of Rulemaking on Radiological Criteria for License Termination of NRC-Licensed Nuclear Facilities” (NUREG-1496) Volumes 1-3 (ML042310492, ML042320379, and ML042330385). Further, no incidents were recorded involving spills or releases of radioactive material at the Facility. Accordingly, there were no significant environmental impacts from the use of radioactive material at the Facility. The NRC staff reviewed the docket file records and the final status survey report to identify any non-radiological hazards that may have impacted the environment surrounding the Facility. No such hazards or impacts to the environment were identified.
The NRC staff finds that the proposed release of the Facility for unrestricted use and the termination of the NRC source materials license is in compliance with 10 CFR 20.1402. The NRC has found no other activities in the area that could result in cumulative environmental impacts. Based on its review, the staff considered the impact of the residual radioactivity at the Facility and concluded that the proposed action will not have a significant effect on the quality of the human environment.
Due to the environmental impacts of the proposed action identified above, impact of alternatives to the proposed action must be considered. Alternatives to the proposed action discussed below are: (1) The no-action alternative, or (2) disposal of the low-level contaminated components at a low-level disposal facility and replace the respective equipment at the Licensee's facility.
1.
2.
The NRC staff has concluded that the proposed action is consistent with the NRC's unrestricted release criteria in 10 CFR 20.1402. Because the proposed action will not significantly impact the quality of the human environment, the NRC staff concludes that the propose action is the preferred alternative.
NRC provided a draft of the Environmental Assessment to Mr. Roy Kemp of the Montana Department of Public Health and Human Services, Division of Quality Assurance, for review on February 6, 2007. Mr. Kemp declined the opportunity to comment on the draft EA.
The NRC staff has determined that the proposed action is of a procedural nature, and will not affect listed species or critical habitat. Therefore, no further consultation is required under Section 7 of the Endangered Species Act. The NRC staff has also determined that the proposed action is not the type of activity that has the potential to cause effects on historic properties. Therefore, no further consultation is required under Section 106 of the National Historic Preservation Act.
On the basis of this EA, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined that preparation of an environmental impact statement is not warranted.
Documents related to this action, including the application for amendment and supporting documentation, are available electronically at the NRC's Electronic Reading Room at
1. NRC, “Radiological Assessment for Clearance of Materials from Nuclear Facilities,” NUREG-1640, Volume 1, June 2003 (ML032250178).
2. Title 10 Code of Federal Regulations, Part 20, Subpart K, “Waste Disposal.”
3. Title 10 Code of Federal Regulations, Part 40, “Domestic Licensing of Source Material.”
4. Title 10, Code of Federal Regulations, Part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions.”
5. ExxonMobil, “Radiological Survey & Dose Modeling for Termination of License SUB-1382” February 10, 2006, (ML060520239).
6. ExxonMobil, “Justification for Free Release of F-551 Furnace in Support of License Termination” July 6, 2006, (ML061910360).
7. Flanders, Scott D., Technical Review of Title 10 of the Code of Federal Regulations Part 20.2002 Request by ExxonMobil, Refining & Supply Company, October 6, 2006, (ML062760642).
If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of availability for public comment.
The Nuclear Regulatory Commission (NRC) has amended its regulations to include jurisdiction over certain radium sources, accelerator-produced radioactive materials, and certain naturally occurring radioactive material, as required by the Energy Policy Act of 2005 (EPAct), which was signed into law on August 8, 2005. The EPAct expanded the Atomic Energy Act of 1954 definition of byproduct material to include these radioactive materials. Subsequently, these radioactive materials were placed under NRC's regulatory authority. NRC is revising its regulations to provide a regulatory framework that includes these newly added radioactive materials. See SECY-07-0062, “Final Rule: Requirements for Expanded Definition of Byproduct Material,” dated April 3, 2007, for information on that rulemaking.
Two licensing guidance documents in the NUREG-1556 series are being revised along with these new regulations to provide guidance related to the new requirements: (1) NUREG-1556, Volume 13, Revision 1, “Consolidated Guidance About Materials Licenses—Program-Specific Guidance About Commercial Radiopharmacy Licenses,” and (2) NUREG-1556, Volume 9, Revision 2, “Consolidated Guidance About Materials Licenses—Program Specific Guidance About Medical Use Licenses.” A new volume in the NUREG-1556 series is also being developed to address the production of radioactive material using an accelerator. This NUREG is entitled, “NUREG-1556, Volume 21, “Consolidated Guidance About Materials Licenses—Program-Specific Guidance About Possession Licenses for Production of Radioactive Material Using an Accelerator.”
This notice is announcing the availability of one of these three licensing guidance documents for public comment: NUREG-1556, Volume 21. NUREG-1556, Volume 13, Revision 1, and NUREG-1556, Volume 9, Revision 2, will be available for public comment in the near future by separate notices in the
Please submit comments by June 28, 2007. Comments received after this date will be considered if practical to do so, but the NRC staff is able to ensure consideration only for those comments received on or before this date.
Volume 21, “Consolidated Guidance About Materials Licenses—Program-Specific Guidance About Possession Licenses for Production of Radioactive Material Using an Accelerator” is available for inspection and copying for a fee at the NRC's Public Document Room (PDR), Public File Area O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. Publicly available documents created or received at the NRC after November 1, 1999, are available electronically at the NRC's Electronic Reading Room at
A free single copy, to the extent of supply, may be requested by writing to Office of the Chief Information Officer, Reproduction and Distribution Services, U.S. Nuclear Regulatory Commission, Printing and Graphics Branch, Washington, DC 20555-0001; facsimile: 301-415-2289; e-mail:
Please submit comments to Chief, Rulemakings, Directives, and Editing Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC, 20555-0001. You may also deliver comments to 11545 Rockville Pike, Rockville, MD, between 7:30 a.m. and 4:30 p.m. Federal workdays, or by e-mail to:
Torre Taylor, Division of Intergovernmental Liaison and Rulemaking, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-7900, e-mail:
On August 8, 2005, the President signed into law the EPAct. Among other provisions, Section 651(e) of the EPAct expanded the definition of byproduct material as defined in Section 11e. of the Atomic Energy Act of 1954 (AEA), placing additional byproduct material under the NRC's jurisdiction, and required the Commission to provide a regulatory framework for licensing and regulating these additional byproduct materials.
Specifically, Section 651(e) of the EPAct expanded the definition of byproduct material by: (1) adding any discrete source of radium-226 that is produced, extracted, or converted after extraction, before, on, or after the date of enactment of the EPAct for use for a commercial, medical, or research activity; or any material that has been made radioactive by use of a particle accelerator and is produced, extracted, or converted after extraction, before, on, or after the date of enactment of the EPAct for use for a commercial, medical, or research activity (Section 11e.(3) of the AEA); and (2) adding any discrete source of naturally occurring radioactive material, other than source material, that the Commission, in consultation with the Administrator of the Environmental Protection Agency (EPA), the Secretary of the Department of Energy (DOE), the Secretary of the Department of Homeland Security (DHS), and the head of any other appropriate Federal agency, determines would pose a threat similar to the threat posed by a discrete source of radium-226 to the public health and safety or the common defense and security; and is extracted or converted after extraction before, on, or after the date of enactment of the EPAct for use in a commercial, medical, or research activity (Section 11e.(4) of the AEA).
NRC is revising its regulations to provide a regulatory framework that includes these newly added radioactive materials. See SECY-07-0062, “Final
As part of the rulemaking effort to address the mandate of the EPAct, the NRC also evaluated the need to revise certain licensing guidance to provide necessary guidance to applicants in preparing license applications to include the use of the newly added radioactive materials as byproduct material. Two NUREG-1556 documents are being revised to provide additional guidance to licensees: (1) NUREG-1556, Volume 13, Revision 1, “Consolidated Guidance About Materials Licenses—Program-Specific Guidance About Commercial Radiopharmacy Licenses,” and (2) NUREG-1556, Volume 9, Revision 2, “Consolidated Guidance About Materials Licenses—Program-Specific Guidance About Medical Use Licenses.” Additionally, a new NUREG-1556 volume is also being developed to address production of radioactive material using an accelerator. This NUREG-1556 volume is entitled: Volume 21, “Consolidated Guidance About Materials Licenses—Program-Specific Guidance About Possession Licenses for Production of Radioactive Material Using an Accelerator.”
At this time, NRC is announcing the availability for public comment NUREG-1556, Volume 21, “Consolidated Guidance About Materials Licenses—Program-Specific Guidance About Possession Licenses for Production of Radioactive Material Using an Accelerator.” The remaining two NUREG-1556 volumes, (1) NUREG-1556, Volume 13, Revision 1, “Consolidated Guidance About Materials Licenses—Program-Specific Guidance About Commercial Radiopharmacy Licenses,” Draft Report for Comment, and (2) NUREG-1556, Volume 9, Revision 2, “Consolidated Guidance About Materials Licenses—Program-Specific Guidance About Medical Use Licenses,” will be available for public comment in the near future.
NUREG-1556, Volume 21, provides guidance on preparing a license application for the production of radioactive material using an accelerator(s). It also includes the criteria that NRC staff will use in evaluating license applications for this use. This document includes guidance that is specific to the activities that take place once radioactive materials are produced by the accelerator, which include material in the target and associated activation products. This document does not include information for the operation of the accelerator as NRC does not regulate the accelerator or its operation.
Volume 21 provides guidance related to each of the items that applicants should address in their materials license application, which includes items such as radioactive material that will be produced and its purpose; information on individuals responsible for the radiation safety program; training for individuals that will handle radioactive material; description of the facilities and equipment used; and the radiation safety program. There are some aspects of producing radioactive materials using an accelerator that are unique to this type of use and are discussed in the document. Some examples include training and experience for individuals who will handle radioactive material during the maintenance and repair of the accelerator and other associated equipment, and guidance on the facility design and type of equipment needed to transfer and handle large radioactive materials with high activities. This document will also include guidance on the production and noncommercial distribution of positron emission tomography radioactive drugs to consortium members.
For the Nuclear Regulatory Commission.
Office of the United States Trade Representative.
Notice of a partially opened meeting.
The Industry Trade Advisory Committee on Small and Minority Business (ITAC-11) will hold a meeting on Sunday, June 10, 2007, from 1 p.m. to 4:30 p.m. The meeting will be closed to the public from 1 p.m. to 3 p.m. and opened to the public from 3 p.m. to 4:30 p.m.
The meeting is scheduled for June 10, 2007, unless otherwise notified.
The meeting will be held at the Marriott Marquis Hotel, Atlanta, Georgia.
Laura Hellstern, DFO for ITAC-11 at (202)482-3222, Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
During the opened portion of the meeting the following agenda items will be considered.
• Overview of the structure/existence of trade advisory organizations, programs, and systems within Latin American governments, that assist and/or give voice to the needs of small and medium sized businesses in Latin America. Overview will be provided by Department of Commerce Commercial Officers and Trade Ministers from Latin American Countries.
Office of Personnel Management.
Notice.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, May 22, 1995), this notice announces that the Office of Personnel Management (OPM) intends to submit to the Office of Management and Budget (OMB) a request for review of a revised information collection. SF 2802, Application for Refund of Retirement Deductions (Civil Service Retirement System) is used to support the payment of monies from the Retirement Fund. It identifies the applicant for refund of retirement deductions. SF 2802A, Current/Former Spouse's Notification of Application for Refund of Retirement Deductions, is used to comply with the legal requirement that any spouse or former spouse of the applicant has been notified that the former employee is applying for a refund.
Approximately 3,741 SF 2802 forms are completed annually. We estimate it takes approximately one hour to complete the form. The annual estimated burden is 3,741 hours. Approximately 3,389 SF 2802A forms are processed annually. We estimate it takes approximately 15 minutes to complete this form. The annual burden
Comments are particularly invited on: whether this information is necessary for the proper performance of functions of the Office of Personnel Management, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
For copies of this proposal, contact Mary Beth Smith-Toomey on (202) 606-8358, FAX (202) 418-3251 or via e-mail to
Comments on this proposal should be received within 60 calendar days from the date of this publication.
Send or deliver comments to—Pamela S. Israel, Chief, Operations Support Group, Center for Retirement and Insurance Services, U.S. Office of Personnel Management, OPM Desk Offices OMB.
Office of Personnel Management.
Notice.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, May 22, 1995), this notice announces that the Office of Personnel Management (OPM) intends to submit to the Office of Management and Budget (OMB) a request for review of a revised information collection. RI 92-19, Application for Deferred or Postponed Retirement: Federal Employees Retirement System (FERS), is used by separated employees to apply for either a deferred or a postponed FERS annuity benefit.
Comments are particularly invited on: Whether this information is necessary for the proper performance of functions of the Office of Personnel Management, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Approximately 1,693 forms are completed annually. We estimate it takes approximately 60 minutes to complete the form. The annual estimated burden is 1,693 hours.
For copies of this proposal, contact Mary Beth Smith-Toomey on (202) 606-8358, FAX (202) 418-3251 or via e-mail to
Comments on this proposal should be received within 60 calendar days from the date of this publication.
Send or deliver comments to—Pamela S. Israel, Chief, Operations Support Group, Center for Retirement and Insurance Services, U.S. Office of Personnel Management, 1900 E Street, NW., Room 3349, Washington, DC 20415-3540.
Cyrus S. Benson, Team Leader, Publications Team, RIS Support Services/Support Group, (202) 606-0623.
U.S. Office of Personnel Management.
Office of Personnel Management.
Notice.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, May 22, 1995), this notice announces that the Office of Personnel Management (OPM) intends to submit to the Office of Management and Budget (OMB) a request for the extension of a currently approved information collection. SF 2809, Health Benefit Election Form, is used by Federal employees, annuitants other than those under the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS) [including individuals receiving benefits from the Office of Workers' Compensation Programs], former spouses eligible for benefits under the Spouse Equity Act of 1984, and separated employees and former dependents eligible to enroll under the Temporary Continuation of Coverage provisions of the FEHB law (5 U.S.C. 8905a). A different form (OPM 2809) is used by CSRS and FERS annuitants whose health benefit enrollments are administered by OPM's Retirement Services Program.
Approximately 18,000 SF 2809 forms are completed annually. Each form takes approximately 30 minutes to complete. The annual estimated burden is 9,000 hours.
Comments are particularly invited on: whether this information is necessary for the proper performance of functions of the Office of Personnel Management, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
For copies of this proposal, contact Mary Beth Smith-Toomey on (202) 606-8358, FAX (202) 418-3251 or via e-mail to
Comments on this proposal should be received within 60 calendar days from the date of this publication.
Send or deliver comments to—Jay Fritz, Insurance Services Program, Center for Retirement and Insurance Services, U.S. Office of Personnel Management, 1900 E Street, NW., Room 3415, Washington, DC 20415.
Cyrus S. Benson, Team Leader, Publications Team, RIS Support Services/Support Group, (202) 606-0623.
U.S. Office of Personnel Management.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Pub. L. 94-409, that the Securities and Exchange Commission will hold the following meeting during the week of May 29, 2007:
A Closed Meeting will be held on Wednesday, May 30, 2007 at 10 a.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters may also be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), (8), (9)(B), and (10) and 17 CFR 200.402(a)(3), (5), (7), (8), 9(ii) and (10), permit consideration of the scheduled matters at the Closed Meeting.
Commissioner Casey, as duty officer, voted to consider the items listed for the closed meeting in closed session.
The subject matter of the Closed Meeting scheduled for Wednesday, May 30, 2007 will be:
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to adopt generic listing standards for commodity-linked securities (“Commodity-Linked Securities”) and currency-linked securities (“Currency-Linked Securities”) under new Sections 107E and 107F of the Amex
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 III 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 enable the listing and trading of Commodity-Linked Securities and Currency-Linked Securities pursuant to Rule 19b-4(e) under the Act.
Rule 19b-4(e) provides that the listing and trading of a new derivative securities product by a self-regulatory organization (“SRO”) shall not be deemed a proposed rule change, pursuant to paragraph (c)(1) of Rule 19b-4,
The general criteria set forth in Section 107D of the Company Guide for Index-Linked Securities will equally apply to Commodity-Linked Securities and Currency-Linked Securities, respectively, in proposed Sections 107E(a)-(f) and 107F(a)-(f).
The Exchange will apply the following requirements to all issuers of Commodity-Linked and Currency-Linked Securities:
• The issuer will be expected to have a minimum tangible net worth of $250,000,000. In the alternative, the issuer will be expected: (1) To have a minimum tangible net worth of $150,000,000 and (ii) not to issue index-linked note offerings (including Commodity-Linked and Currency-Linked Securities), the original issue price of which, combined with all the issuer's other index-linked note offerings listed on a national securities exchange, exceeds 25% of the issuer's tangible net worth at the time of issuance; and
• The issuer must be in compliance with Rule 10A-3 under the Act.
The Exchange will also apply the following requirements to each issue of Commodity-Linked and Currency-Linked Securities:
• The issue must have a minimum public distribution of at least one million trading units and a minimum of 400 public shareholders. This minimum public distribution and minimum public shareholders requirement will not be applicable to an issue traded in thousand dollar denominations. In addition, the minimum public shareholders requirement will not apply if the securities are redeemable at the option of the holders thereof on at least a weekly basis;
• The issue must have a principal amount/aggregate market value of not less than $4 million;
• The issue must have a term of at least one year, but not greater than thirty years;
• The issue must be the non-convertible debt of the issuer; and
• The issue must not base its payment at maturity on a multiple of the negative performance of the Commodity Reference Asset or Currency Reference Asset, as applicable, although the payment at maturity may or may not provide for a multiple of the positive performance of such Commodity Reference Asset or Currency Reference Asset.
Commodity-Linked Securities will also be subject to the specific criteria proposed in new Section 107E of the
An issue of Commodity-Linked Securities must meet either of the following initial listing standards:
• The Commodity Reference Asset to which the Commodity-Linked Security is linked must have been reviewed and approved for the trading of Commodity-Based Trust Shares, options, or other derivatives by the Commission under Section 19(b)(2) of the Act
• The pricing information for each component of a Commodity Reference Asset must be derived from a market (1) that is a SRO member or affiliate member of the Intermarket Surveillance Group (“ISG”) or (2) with which the Exchange has a comprehensive surveillance sharing agreement. Pricing information for gold and silver bullion, however, may be derived from the London Bullion Market Association in connection with Commodity-Linked Securities, without regard to provisions (1) and (2) above.
In addition, an issue of Commodity-Linked Securities must also meet the following initial listing criteria:
• The value of the Commodity Reference Asset must be calculated and widely disseminated on at least a 15-second basis during the time the corresponding Commodity-Linked Securities trade on the Exchange; and
• In the case of Commodity-Linked Securities that are periodically redeemable, the indicative value of the subject Commodity-Linked Securities must be calculated and widely disseminated by one or more major market data vendors on at least a 15-second basis during the time such Commodity-Linked Securities trade on the Exchange.
The Exchange submits that it will commence delisting or removal proceedings if any of the foregoing initial listing criteria are not continuously maintained. However, a particular issue of Commodity-Linked Securities will not be delisted for a failure to have comprehensive surveillance sharing agreements in place if the underlying Commodity Reference Asset has at least 10 components, and the Exchange has comprehensive surveillance sharing agreements with respect to at least 90% of the dollar weight of the Commodity Reference Asset. The Exchange will also commence delisting or removal proceedings:
• If the aggregate market value or the principal amount of the Commodity-Linked Securities publicly held is less than $400,000;
• The value of the Commodity Reference Asset is no longer calculated or available and a new Commodity Reference Asset is substituted, unless the new Commodity Reference Asset meets the requirements of Section 107E of the
• If such other event shall occur or condition exists which in the opinion of the Exchange makes further dealings on the Exchange inadvisable.
Currency-Linked Securities will also be subject to the specific criteria in proposed new Section 107F of the
An issue of Currency-Linked Securities must meet either of the following initial listing standards:
• The Currency Reference Asset to which the Currency-Linked Security is linked must have been reviewed and approved for the trading of Currency Trust Shares, options, or other derivatives by the Commission under Section 19(b)(2) of the Act
• The pricing information for each component of the Currency Reference Asset must be (1) the generally accepted spot price for the currency exchange rate in question or (2) derived from a market (a) which is an ISG SRO member or affiliate member or with which the Exchange has a comprehensive surveillance sharing agreement and (b) which is the pricing source for components of a Currency Reference Asset that has previously been approved by the Commission.
In addition, an issue of Currency-Linked Securities must also meet the following initial listing criteria:
• The value of the Currency Reference Asset must be calculated and widely disseminated on at least a 15-second basis during the time the corresponding Currency-Linked Securities trade on the Exchange; and
• In the case of Currency-Linked Securities that are periodically redeemable, the indicative value of the subject Currency-Linked Securities must be calculated and widely disseminated by one or more major market data vendors on at least a 15-second basis during the time such Currency-Linked Securities trade on the Exchange.
The Exchange submits that it will commence delisting or removal proceedings if any of the foregoing initial listing criteria are not continuously maintained. An issue of Currency-Linked Securities will not be delisted, however, for a failure to have comprehensive surveillance sharing agreements in place if the underlying Currency Reference Asset has at least 10 components, and the Exchange has comprehensive surveillance sharing agreements with respect to at least 90% of the dollar weight of the Currency Reference Asset. The Exchange will also commence delisting or removal proceedings under any of the following circumstances:
• If the aggregate market value or the principal amount of the Currency-Linked Securities publicly held is less than $400,000;
• If the value of the Currency Reference Asset is no longer calculated or available and a new Currency Reference Asset is substituted, unless the new Currency Reference Asset meets the requirements of Section 107F of the
• If such other event shall occur or condition exists which in the opinion of the Exchange makes further dealings on the Exchange inadvisable.
Proposed Sections 107E(h)(3) and 107F(h)(3) state that if the indicative value, the Commodity Reference Asset value, or Currency Reference Asset value, as the case may be, applicable to a series of Commodity-Linked or Currency-Linked Securities, is not being calculated and disseminated as required, the Exchange may halt trading during the day on which such interruption first occurs. If such interruption persists past the trading day on which it occurred, the Exchange will halt trading no later than the beginning of the trading day following the interruption. Similarly, with respect to the proposed changes in Section 107D, if the value of the underlying index is not being disseminated as required, the Exchange may halt trading of Index-Linked Securities during the day on which the interruption first occurs. If such interruption persists past the trading day on which it occurred, the Exchange will halt trading no later than the beginning of the trading day following the interruption.
Proposed Sections 107E(i) and 107F(i) state that if an underlying index (or group of commodities or currencies, as the case may be) is maintained by a broker-dealer, the broker-dealer will be required to erect a “firewall” around the personnel responsible for the maintenance of such underlying index or who have access to information concerning changes and adjustments to the underlying index, and the underlying index will be calculated by a third party who is not a broker-dealer. In addition, any advisory committee, supervisory board, or similar entity that advises a Reporting Authority (as defined in Amex Rule 1000A-AEMI(b)(3)) or that makes decisions regarding the underlying index or portfolio composition, methodology, and related matters must implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material, non-public information regarding the applicable underlying index or portfolio. The Exchange submits that Amex Rules 1203A and 1203B, which impose certain restrictions on specialist firms and their affiliates, would also apply to the trading of Commodity-Linked and Currency-Linked Securities, respectively.
Proposed Sections 107E(j) and 107F(j) state that the Exchange will implement written surveillance procedures for Commodity-Linked and Currency-Linked Securities, respectively, including adequate comprehensive surveillance sharing agreements, as applicable. The Exchange represents that it will closely monitor activity in the Commodity-Linked and Currency-Linked Securities to identify and deter any potential improper trading activity. In addition, the Exchange represents that its surveillance procedures are adequate to properly monitor the trading of such securities. Specifically, the Exchange will rely on its existing surveillance procedures governing equities, options, and exchange-traded funds. The Exchange states that it has developed procedures to closely monitor activity in such securities and the underlying indexes, instruments, and/or portfolios to identify and deter potential improper trading activity. To the extent applicable, the Exchange will also be able to obtain trading and beneficial holder information from the primary trading markets for the components comprising the Commodity Reference Assets or Currency Reference Assets, as the case may be, either pursuant to bilateral information sharing agreements with those markets or because those markets are SRO or affiliate members of ISG.
Proposed Sections 107D(k), 107E(k), and 107F(k) state that Index-Linked Securities, Commodity-Linked Securities, and Currency-Linked Securities, respectively, traded on the Exchange's equity trading floor will be subject to all Exchange rules governing the trading of equity securities. The Exchange's equity margin rules and the Exchange's regular trading hours (9:30 a.m. to 4 p.m. Eastern Time) will apply to transactions in such securities. Index-Linked Securities, Commodity-Linked Securities, and Currency-Linked Securities listed and traded as bond or debt securities will be subject to the
Upon evaluating the nature and complexity of a Commodity-Linked or Currency-Linked Security, as the case may be, the Exchange represents that it will prepare and distribute, if appropriate, an Information Circular to member organizations describing each product. Accordingly, the particular structure and corresponding risks of such securities will be highlighted and disclosed. The Information Circular will also disclose whether such securities will trade as equity or debt subject to appropriate trading rules including, among others, rules governing priority, parity and precedence of orders, specialist responsibilities, account opening, margin, and customer suitability requirements.
The proposal is consistent with Section 6(b) of the Act,
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 purpose of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
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 e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-Amex-2007-45. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
After careful consideration, the Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
To list and trade Commodity-Linked and Currency-Linked Securities, the Exchange currently must file a proposed rule change with the Commission pursuant to Section 19(b)(1) of the Act
The Exchange's ability to rely on Rule 19b-4(e) to list and trade Commodity-Linked and Currency-Linked Securities that meet the requirements of proposed Sections 107E and 107F of the
The Commission has previously approved generic listing standards that are substantially similar to Amex's
Taken together, the Commission finds that Amex's proposal contains adequate rules and procedures to govern the listing and trading of Index-Linked, Commodity-Linked, and Currency-Linked Securities listed pursuant to Rule 19b-4(e) on the Exchange. All such securities listed under their respective generic standards will be subject to the full panoply of Amex rules and procedures that currently govern the trading of equity or debt securities on the Exchange, as applicable.
As set forth more fully above, Amex has proposed size, earnings, and minimum tangible net worth requirements for each issuer, as well as minimum public distribution and shareholder, principal amount/aggregate market value, and minimum term thresholds for each issuance of Commodity-Linked and Currency-Linked Securities. In addition, the Exchange's proposal requires that the assets (or their derivatives) underlying such securities must either have been reviewed and approved for trading by the Commission or their pricing information must be derived from certain required sources. These requirements are designed to ensure that the trading markets for the underlying components are adequately capitalized and sufficiently liquid. The Commission believes that these requirements should minimize the potential for manipulation.
The Commission also finds that, in the case of Commodity-Linked and Currency-Linked Securities with at least 10 components, the requirement that at least 90% of the dollar weight of the corresponding Commodity Reference Asset or Currency Reference Asset, as the case may be, must have comprehensive surveillance sharing agreements with the Exchange should permit the Exchange to identify potential trading and other violations of its rules. The Commission believes that such a requirement will contribute to the transparency of the Commodity Reference Asset or Currency Reference Asset. The Commission also notes that, by requiring pricing information for the relevant components to be readily available, the proposed listing standards of Sections 107E and 107F of the
The Exchange has also developed delisting criteria that will permit it to suspend trading of Commodity-Linked and Currency-Linked Securities in circumstances that make further dealings in such products inadvisable. The Commission believes that the delisting criteria should help ensure that a minimum level of liquidity exists for each such security to allow for the maintenance of fair and orderly markets. Also, in the event that the value of the underlying index for Index-Linked Securities, or the applicable Commodity Reference Asset or Currency Reference Asset or, in the case of Commodity-Linked and Currency-Linked Securities that are periodically redeemable, the corresponding indicative value, is no longer calculated and widely disseminated on at least a 15-second basis, the Exchange may halt trading during the day on which the interruption first occurs; however, if the interruption persists past the trading day on which it occurred, the Exchange will halt trading no later than the beginning of the trading day following the interruption and will commence delisting proceedings.
The Commission notes that any Commodity-Linked and Currency-Linked Securities approved for listing and trading would be subject to the Exchange's existing surveillance procedures governing equities, options, and exchange-traded funds, as well as procedures the Exchange represents it has developed to closely monitor activity in such securities and the underlying indexes and/or portfolios. The Exchange also has represented that its surveillance procedures are adequate to properly monitor the trading of Commodity-Linked and Currency-Linked Securities listed pursuant to the proposed generic listing standards and that it will be able to obtain necessary trading and beneficial holder information from the primary trading markets for the underlying components, either pursuant to bilateral information sharing agreements with those markets or because those markets are full or affiliate members of ISG.
The Exchange has represented that it will distribute, as appropriate, an Information Memorandum to members describing the product, the specific structure of the product, and the corresponding risks of Commodity-Linked and Currency-Linked Securities. In addition, the Information Memorandum will set forth the Exchange's suitability requirements with respect to recommendations in transactions in Commodity-Linked and Currency-Linked Securities to customers and the prospectus delivery requirements. The Memorandum will also identify and describe the applicable Exchange trading rules governing such securities.
The Exchange has further represented that if the underlying index is maintained by a broker-dealer, such broker-dealer will establish a “firewall” around personnel responsible for the maintenance of such underlying index or who have access to information concerning changes and adjustments to the underlying index. As an added measure, a third-party who is not a broker-dealer will be required to calculate the value of the Commodity Reference Asset or Currency Reference Asset, as applicable. In addition, the Exchange has stated that any advisory committee, supervisory board, or similar entity that advises a Reporting Authority (as defined in Amex Rule 1000A-AEMI(b)(3)) or that makes decisions regarding the underlying index or portfolio composition, methodology, and related matters must implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material, non-public information regarding the applicable underlying index or portfolio. With respect to trading on Amex, the Exchange has stated that, with respect to any issue of Commodity-Linked or Currency-Linked Securities, specialists and their affiliates will be restricted from making markets in and trading the components underlying the Commodity Reference Asset or Currency
The Commission finds good cause for approving the proposed rule change, as modified by Amendment No. 1 thereto, before the 30th day after the date of publication of notice of filing thereof in the
It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On February 14, 2007, the Chicago Board Options Exchange, Incorporated (“CBOE” or “Exchange”), filed with the Securities and Exchange Commission (“Commission”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposed to amend Rule 3.9, entitled “Application Procedures and Approval or Disapproval,” which requires any person applying to the Exchange to (i) have completed the Exchange's Member Orientation Program (“Orientation Program”) and (ii) passed an Exchange Trading Member Qualification Exam (“Qualification Exam”). A person who fulfills these requirements but does not possess an authorized trading function for more than one year must complete the Orientation Program and pass the Qualification Exam again before becoming a member.
CBOE proposed that PAR Officials and Order Book Officials (“OBOs”), as well as others acting in a similar capacity (
In 2005, CBOE amended its rules to remove a Designated Primary Market-Maker's (“DPM's”) obligation to act as an agent or Floor Broker in its allocated securities on the Exchange.
In addition to PAR Officials, the Exchange also employs OBOs whose responsibilities include, among other things, (i) maintaining the book with respect to the classes of options assigned to them, (ii) effecting proper executions of orders placed with them, (iii) displaying bids and offers, and (iv) monitoring the market for the classes of options assigned to them.
The Exchange may employ a former member, who acted in the capacity of a DPM before CBOE established the PAR Official position, to act on behalf of the Exchange in a trading floor capacity. If these PAR Officials and OBOs become members of the Exchange after working for the Exchange in a trading floor capacity for longer than one year, these individuals would have to complete the Orientation Program and pass the Qualification Exam again under current Rule 3.9, since it would have been longer than one year since they had been acting in a capacity that has an authorized trading function.
These PAR Officials and OBOs, while acting in an Exchange trading floor capacity, are ultimately acting in the same capacity as when they were operating in a DPM capacity before the CBOE established the PAR Official trading floor capacity. Therefore, the Exchange believes it is appropriate to amend its procedures to allow for the one-year period under CBOE Rule 3.9(g) to be applied to an individual who has acted in an Exchange trading floor capacity.
The Commission has carefully reviewed the proposed rule change and finds that it is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission believes that the amendment to CBOE's rules to permit persons who had been acting in an exchange trading floor capacity within the last year to become members without completing the Orientation Program and passing the Qualification Examination again is a reasonable expansion of the exception to the rule. The functions performed by such persons are similar to those performed by members possessing an authorized trading function.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On November 24, 2006, the Municipal Securities Rulemaking Board (“MSRB”), filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed amendments to Rule G-27 incorporate most of the NASD requirements contained in its Rules 3010 (Supervision) and 3012 (Supervisory Control System) in order to promote regulatory consistency and make these requirements specifically applicable to the municipal securities activities of securities firms and bank dealers. The MSRB intends generally that the provisions of Rule G-27 be read consistently with the analogous NASD provisions, unless the MSRB specifically indicates otherwise. The MSRB believes that adopting most of the requirements of NASD Rules 3010 and 3012 will help ensure a coordinated regulatory approach in the area of supervision, and will facilitate inspection and enforcement.
SIFMA's comment letter requests clarification that the proposed rule change would allow principals to delegate day-to-day supervisory activities to non-principals. SIFMA points out that under current MSRB Rule G-27 and NASD Rule 3010, principals regularly delegate day-to-day supervisory activities to appropriately trained employees who are not principals even though the principals are ultimately responsible for supervision.
In response to SIFMA's request for clarification concerning delegation, the MSRB notes that the proposed rule change states that the MSRB intends generally that the provisions of Rule G-27 be read consistently with the analogous NASD provisions, unless the MSRB specifically indicates otherwise. Thus, relevant NASD interpretations would be presumed to apply to the comparable MSRB provision, subject to the MSRB's right to make distinctions when necessary and appropriate. The MSRB also notes that NASD has previously stated that “certain supervisory tasks may be delegated to a registered representative. However, in all cases, ultimate supervisory responsibility * * *must be assigned to one or more appropriately registered principals.” [Emphasis in original.]
Banc of America's comment letter supports the proposed rule change in principle but believes that the proposed rule change will, if adopted, create an unnecessary hardship on dealers in municipal securities, and ultimately to issuers of municipal securities, in one specific area. Banc of America understands the requirement to designate one or more appropriately registered principals in each office of supervisory jurisdiction (“OSJ”) to mean that an appropriately registered municipal securities principal must be located on site in each OSJ. However, Banc of America believes this requirement is not practical in instances where a particular office's activities are such that the office meets the definition of an OSJ in the proposed rule change but there is a very small number of registered associates located in that office (and in many cases, only one). Banc of America further states that
The MSRB states in its response that under current NASD requirements and the MSRB's proposed amendments, dealers must designate one or more appropriately registered principals in each OSJ and each such principal must be located on site in each OSJ. The MSRB understands that in the equities market, which is subject to NASD's supervisory requirements, there are many one-person offices which, as OSJs, are involved in structuring corporate financing. The MSRB further understands that such functions, when performed at an OSJ, are significant enough to warrant supervision by an on-site principal who is permanently located in that office. The MSRB concluded that in the case of the one-person OSJ described by Banc of America, the practical effect of the proposed rule change on bank dealers would be to require that one person to be registered as a municipal securities principal, just as NASD requires securities firms to register as a principal any one-person OSJ. The MSRB further noted that the purpose of the proposed rule change is to promote regulatory consistency, and that the MSRB does not believe that the situation described by Banc of America justifies deviating from this purpose. After considering Banc of America's comment letter and the MSRB's response, the Commission finds that the proposed rule change conforms Rule G-27 to the relevant NASD rules on supervision and does not believe that the proposed rule change is inconsistent with the Act.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to the MSRB
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On April 4, 2007, The NASDAQ Stock Market LLC (“Nasdaq”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange
It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On March 9, 2007, the New York Stock Exchange LLC (the “NYSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1)
The Exchange proposes to exempt limited partnerships from the obligation to obtain shareholder approval under the circumstances set forth in Manual Sections 312.03(b), (c), and (d) for the issuance of common stock and securities convertible into or exchangeable for common stock.
Subject to certain exceptions specified therein, Manual Sections 312.03(b), (c), and (d) require listed issuers to obtain shareholder approval prior to the issuance of common stock or securities convertible into or exchangeable for common stock in any transaction or series of related transactions in the following situations:
• Where the potential dilution exceeds either one percent of the number of shares of common stock or one percent of the voting power outstanding before the issuance to: (a) a director, officer or substantial security holder of the company (each a “Related Party”); (b) a subsidiary, affiliate or other closely-related person of a Related Party; or (c) any company or entity in which a Related Party has a substantial direct or indirect interest.
• If the Related Party involved in a transaction covered by the preceding bullet is classified as such solely because such person is a substantial security holder, and if the issuance relates to a sale of stock for cash at a price at least as great as each of the book and market value of the issuer's common stock, then shareholder approval will not be required unless the number of shares of common stock to be issued, or unless the number of shares of common stock into which the securities may be convertible or exercisable, exceeds either five percent of the number of shares of common stock or five percent of the voting power outstanding before the issuance.
• If: (a) the common stock has, or will have upon issuance, voting power equal to or in excess of 20 percent of the voting power outstanding before the issuance of such stock or of securities convertible into or exercisable for common stock; or (b) the number of shares of common stock to be issued is, or will be upon issuance, equal to or in excess of 20 percent of the number of shares of common stock outstanding before the issuance of the common stock or of securities convertible into or exercisable for common stock.
• If the issuance will result in a change of control of the issuer.
The Exchange stated that the policy underlying these requirements is that shareholders should have the right to vote on any issuance of common stock that is materially dilutive of either their voting or economic interest in the company, and that Nasdaq has similar shareholder approval requirements to those of the NYSE. The Exchange stated, however, that Nasdaq exempts limited partnerships (“LPs”) from those requirements,
The Exchange stated several reasons that it believes LPs may be appropriately excluded from certain shareholder approval rules. First, the Exchange stated that to be treated as a partnership for federal tax purposes, an LP must ensure that 90% of its income is derived from “qualified sources,” which generally refers only to income derived from natural resource-related activities. Most listed LPs are engaged in energy-related businesses. The typical business model of LPs in the energy industry is to use their capital to acquire assets (e.g., pipelines) that produce predictable revenue streams and to commit in their partnership agreements to distribute most of their profits to the LP's unit holders. These LPs acquire assets frequently and pay for them by issuing additional LP units. The Exchange believes that the ability of an LP listed on Nasdaq to issue additional LP units without the expense and uncertainty of obtaining shareholder approval provides Nasdaq with an advantage over the Exchange in attracting and retaining listings of LPs.
The Exchange also stated its belief that an analysis of the policies regarding voting and economic dilution underpinning its shareholder approval requirements demonstrates that it is appropriate to exempt LPs from their application. Listed LPs generally provide very limited voting rights to their unit holders, and typically, control of the LP resides with the general partner (“GP”) and the LP's board is that of the GP. The owner of the GP appoints the board and the common unit holders of the LP have no voting rights with respect to the election of directors. LP partnership agreements often provide that LP unit holders can vote only on a merger or dissolution of the LP or on any amendment to the partnership agreement that is adverse to their interests. As such, the Exchange believes that investors who buy LP units generally have no expectation that they will be able to vote. Therefore, the Exchange believes that the policy that shareholders should be able to vote on any stock issuances that are materially dilutive of their voting power is of less relevance to LPs than to regular corporations. Furthermore, the Exchange states that because LP unit holders generally do not have the right to elect directors, most LPs do not hold annual meetings. Therefore, it would not be possible for an LP to arrange for shareholder approval to be obtained in conjunction with an annual meeting, as would be possible for a regular company, and an LP could potentially have to call a special meeting every time it needed approval of an issuance pursuant to the shareholder approval rules.
The Exchange also believes that the economic dilution concerns underpinning the shareholder approval rules are also less relevant in the case of LPs. Listed LPs typically are required
After careful review of the proposal, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On March 22, 2007, the New York Stock Exchange LLC (“NYSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Commission has reviewed carefully the proposed rule change and finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
NYSE Arca is proposing to modify Exchange Rules 6.35, 6.38, 6.92, and 6.93 to allow an option issue to trade without designating a Lead Market Maker (“LMM”). In those options without an LMM, the Exchange will designate a Market Maker as the sender of a Principal Acting as Agent (“P/A”) Order
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 proposed rule changes would allow the Exchange to trade a class of options without designating an LMM, yet still meet the requirements of the Linkage Plan.
An LMM designation on the Exchange obligates a Market Maker to a 99% quoting requirement in all appointed series of an underlying class,
To accommodate the Linkage Plan, the Exchange proposes modifications to its Rules 6.35, 6.38, 6.92, and 6.93 to allow for the designation of an Exchange Market Maker, assigned on a rotating basis, as the responsible Intermarket Linkage Market Maker (“IMM”) on outbound P/A Orders.
Under Section 2(16)(a) of the Linkage Plan, however, a P/A Order may be routed to another exchange only through the principal account of a market maker that is authorized to represent customer orders, “reflecting the terms of a related unexecuted Customer order for which the Market Maker is acting as agent.” Market Makers on the Exchange other than LMMs, however, are not permitted to act as an agent on behalf of an order submitted to the Exchange, so as to avoid any appearance of a conflict of interest.
The Exchange also proposes to amend Exchange Rule 6.93 to clarify that the Exchange will be responsible for the receipt, processing, and execution of inbound Linkage orders received from other Participant exchanges. Inbound Linkage orders sent to NYSE Arca are routed directly to the trading system for immediate automatic execution; any remaining unexecuted portion, or any order not executable because a quote is no longer available, will be immediately
The proposed rule change is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be 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 e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule change would amend OCC's By-Laws and Rules to provide for close-out netting procedures to be followed in the highly unlikely event that OCC becomes insolvent or otherwise defaults on its clearing obligations. The proposed rule would clarify the impact of transactions between OCC and its Clearing Members on the capital requirements applicable to Clearing Members and other affiliated entities on a consolidated basis.
In its filing with the Commission, OCC 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. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements.
OCC has been asked by several of its Clearing Members to consider adopting a rule that would allow for close-out netting of obligations running between OCC and Clearing Members in the event of an OCC default or insolvency. Such a rule could reduce applicable capital requirements for a Clearing Member's parent company where the parent is a U.S. or non-U.S. bank or part of a Consolidated Supervised Entity (“CSE”). The absence of a netting agreement that would apply in a default or insolvency of OCC could cause the minimum capital requirement applicable to such a parent company and its subsidiaries on a consolidated basis to be substantially larger than it would be otherwise. In the absence of a netting agreement, applicable banking regulations generally prohibit offsetting the Clearing Member's obligations to OCC on short positions in options and on other obligations against the Clearing Member's credit exposure to OCC with respect to long options positions and other obligations of OCC. In addition, OCC believes that a close-out netting rule would clarify the accounting treatment of obligations between OCC and its Clearing Members.
The proposed rule change is designed to allow Clearing Members to comply with international standards under the Basel Capital Accord adopted by the Basel Committee on Banking Supervision relating to bilateral netting (“Basel Netting Standards”).
Chapter XI of OCC's Rules, Suspension of a Clearing Member, provides in considerable detail for liquidation of the accounts of an insolvent Clearing Member including provisions for close-out netting of the Clearing Member's obligations against its assets to the extent permitted by customer protection rules under the Act and under the Commodity Exchange Act (“CEA”). However, OCC's rules do not presently contain any provisions that specifically permit close-out netting in the event of a default or insolvency of OCC. Indeed, an OCC default or insolvency has always been considered so unlikely that OCC's rules do not contain any provisions whatever contemplating such events. OCC's management does not believe that an OCC default or insolvency has become any more likely. On the contrary, OCC's long track record of safe operation and continually improved methods of risk management suggest that such an event is more remote than ever. Nevertheless, the Basel Netting Standards make it desirable for OCC to put in place such a netting provision in order to clarify the capital requirements applicable on a consolidated basis to parent companies of Clearing Members that are subject to the Basel Netting Standards.
The Basel Netting Standards are not directly applicable to the determination of net capital requirements for broker-dealers under Commission Rule 15c3-1.
The Basel Netting Standards and FIN 39 (collectively “Netting Standards”) are stated in general terms and do not contain detailed requirements. OCC's proposed close-out netting procedures would, in the event of an OCC default or insolvency, expressly permit Clearing Members to treat their obligations to OCC on a net basis to the fullest extent consistent with the Commission's customer protection rules. However, the proposed rule change is also intended to protect the clearing system from being thrown out of balance or forced into a disorderly liquidation by a single Clearing Member's exercise of netting rights. Unlike typical, purely bilateral OTC derivatives relationships, OCC's contractual rights and obligations—while bilateral between OCC and any individual Clearing Member—represent a balanced structure in which every obligation owed by OCC to a Clearing Member is in turn matched by a corresponding obligation of a Clearing Member to OCC. The creation of individually exercisable netting rights that could be exercised independently by each Clearing Member in the event of an OCC default or insolvency could result in unfairness if no coordination is imposed.
The Basel Netting Standards are contained in Basel II: International Convergence of Capital Measurement and Capital Standards: A Revised Framework—Comprehensive Version (June 2006) (“Basel II Accord”). The Basel Netting Standards provide that a bank
The Basel Netting Standards also require that the bank have certain “written and reasoned legal opinions that, in the event of a legal challenge, the relevant courts and administrative authorities would find the bank's exposure to be the net amount.” The national supervisor must be satisfied that the netting is enforceable under the laws of each relevant jurisdiction. The proposed close-out netting procedures are intended to support such an opinion.
The Basel Netting Standards have been incorporated in applicable bank regulatory laws or regulations in various jurisdictions. For example, the substance of this standard appears in Article 12f of the Swiss Banking Ordinance. It has also been incorporated into the capital guidelines for various U.S. financial institutions.
The proposed close-out netting procedures are designed to take advantage of the netting provisions of Title IV of the Federal Deposit Insurance Corporation Improvement Act of 1991 (“FDICIA”) and the applicable provisions of the United States Bankruptcy Code. Section 404 of FDICIA generally validates netting contracts among members of clearing organizations notwithstanding any other provision of law.
Section 362(b) of the United States Bankruptcy Code
OCC previously submitted and subsequently withdrew a proposed rule change with respect to close-out netting (“Prior Netting Filing”).
1. The definition of insolvency in the Prior Netting Filing, which covered only voluntary or involuntary cases under Chapter 7, needed to be expanded to include other types of bankruptcies, particularly Chapter 11 cases, and non-bankruptcy defaults;
2. The procedures set forth in the Prior Netting Filing complied with the Netting Standards in light of the inability of the Clearing Members, as the non-defaulting parties, to initiate the netting process; and
3. The proposed procedures gave Clearing Members the ability to promptly net and close out positions as required to comply with the Netting Standards given the degree of control that OCC reserved to itself in the process.
After considering the Clearing Members' comments, OCC withdrew the Prior Netting Filing and made modifications to the proposed netting provisions which are reflected in the current filing. The primary differences between the currently-proposed close-out netting procedures and those contained in the Prior Netting Filing is that the currently-proposed procedures:
1. Significantly expand the definition of insolvency to include non-bankruptcy defaults, specifically any failure by OCC to comply with an undisputed obligation to deliver money or property to a Clearing Member for a period of thirty days after the obligation becomes due, and to include bankruptcy or insolvency proceedings under statutory provisions other than Chapter 11 of the U.S. Bankruptcy Code;
2. Provide that upon the occurrence of an event of default or insolvency, any Clearing Member that is neither suspended nor in default with regard to an obligation of OCC may provide a notice to OCC of its intention to terminate all cleared contracts and stock loan and borrow positions in all of its accounts; and
3. Establish a fixed termination time for all cleared contracts and stock loan and borrow positions, which would be the close of business on the third business day after OCC's receipt of the prescribed notice from a Clearing Member, unless a different time is mandated by the Bankruptcy Code, and to provide that the liquidation settlement date will occur as promptly as practicable after the termination time; (the original provisions granted OCC the discretion to establish the termination time and provided that the liquidation settlement date would occur no earlier than the business day following the termination date).
OCC believes that the above modifications address the Clearing Members' concerns while still permitting the liquidation process to proceed in an orderly manner and for the clearance system to remain in balance.
The proposed rule change consists of a single new Section 27, Close-Out Netting, of Article VI of OCC's By-Laws, Clearance of Exchange Transactions. Consistent with the requirements of the Basel Netting Standards, the netting provision would be applicable in the event that OCC fails to perform its obligations with respect to cleared contracts as the result of defaults by OCC in performing its obligations under its rules, or as the result of bankruptcy, a liquidation of OCC or similar circumstances. The proposed close-out netting procedures are drafted in such a way that they would only be triggered by an event of default, as defined in new Section 27(a). The rule would not be triggered by any delay in performance that is permitted under OCC's By-Laws or Rules. For example, Section 19 of Article VI permits OCC to take specified actions, including suspension of settlement obligations, in the event of a shortage of underlying securities. These delays would not be considered an event of default under Section 27 and therefore would not allow a Clearing Member to initiate the close-out netting procedures. In the event of such delays OCC would notify Clearing Members of the reason for the delay.
Under the proposed close-out netting procedures, in the event of a default or insolvency by OCC, OCC would be
The proposed close-out netting procedures provide that when a triggering event occurs, rights and obligations within and between accounts of each Clearing Member will be netted to the same extent as if the Clearing Member had been suspended and its accounts were being liquidated under Chapter XI of the Rules. This is an appropriate result in that those rules generally provide for the netting of assets against liabilities to the extent permitted under applicable law, including the customer protection rules referred to above. Assets remaining after all legally permissible offsets would be returned to the Clearing Member entitled to them, and the Clearing Member would remain obligated to OCC only to the extent of any remaining net liabilities following such permitted offsets.
If close-out netting were ever required because of the default or insolvency of OCC, it seems likely that there would be no market available in which to liquidate positions in cleared contracts through market transactions. Accordingly, the proposed procedures contain a provision for valuation of open cleared contracts based upon market values of underlying interests and provide a reasonable means for OCC to fix all necessary values of assets and liabilities for purposes of the netting. Under the procedures, OCC is to provide valuations as promptly as practicable, but in any event within thirty days of the termination time. Valuations would be based upon available market information.
In addition to the potential benefit of the proposed close-out netting procedures with respect to capital requirements applicable to certain Clearing Members and their affiliates on a consolidated basis under the Basel Netting Standards, OCC believes that the proposed close-out netting procedures should also clarify the accounting treatment of mutual obligations running between OCC and its Clearing Members. OCC's Clearing Members most commonly prepare their financial statements using United States generally accepted accounting principles (“US GAAP”). FIN 39 responds to certain questions relating to the circumstances in which assets and liabilities may be treated as offsetting in financial statements. FIN 39 is an interpretation of Accounting Principles Board (“APB”) Opinion No. 10 which states: “It is a general principle of accounting that the offsetting of assets and liabilities in the balance sheet is improper except where a right of setoff exists.” FIN 39 provides a definition of a right of setoff and a statement of the conditions under which a right of setoff exists. The definition is as follows: “A right of setoff is a debtor's legal right, by contract or otherwise, to discharge all or a portion of the debt owed to another party by applying against the debt an amount that the other party owes to the debtor.” FIN 39, paragraph 5 contains the following four conditions under which a right of setoff exists:
(a) Each of
(b) The reporting party has the right to set off the amount owed with the amount owed by the other party.
(c) The reporting party intends to set off.
(d) The right of setoff is enforceable at law.
The text of proposed new Section 27 of Article VI of the By-Laws is largely self-explanatory in light of the foregoing discussion of its purpose. A few comments may nevertheless be helpful.
Under proposed Sections 27(a) and (b), if OCC should ever give notice of its default or insolvency and a Clearing Member in turn provide a notice of termination, the termination time may be later than the time at which a Clearing Member's liquidation notice is given.
Proposed Section 27(b) provides that in the event of a default or insolvency and the requisite notice by a Clearing Member, positions of all Clearing Members will be liquidated to the maximum extent permitted by law and the By-Laws and Rules. The limitations on netting under OCC's By-Laws and Rules are in general those mandated by applicable law, such as the Commission's Rule 15c3-3. For example, where a Clearing Member carries both proprietary and customer account types netting across accounts could cause the Clearing Member to be in violation of Rule 15c3-3 and other customer protection rules. Accordingly, Section 27 generally provides for netting within and not across different accounts, with specific exceptions set forth in Section 27(d). In addition, CEA segregation rules require separate segregation of customer funds of futures customers. Accordingly, netting across futures segregated funds accounts and other accounts is also generally prohibited. Otherwise, the provisions of Section 27(d) are intended to maximize netting where consistent with customer protection rules. While securities market makers and specialists are generally not customers within the meaning of Rule 15c3-3, they are ordinarily “customers” within the meaning of the Commission's hypothecation rules.
The proposed rule change is consistent with Section 17A of the Act because it promotes the safeguarding of securities and funds and reduces costs to persons facilitating transactions by and on behalf of investors by providing Clearing Members that are a part of a CSE with the opportunity to reduce their applicable capital requirements. In addition, the proposed rule change would clarify the accounting treatment of obligations between OCC and each of its Clearing Members. The proposed rule change is not inconsistent with the rules of OCC, including any rules proposed to be amended.
OCC does not believe that the proposed rule change would impose any burden on competition.
OCC received comments on the Prior Netting Filing from certain Clearing Members by telephone. These comments are discussed above under the heading “Prior Netting Filing and Clearing Member Comments.” A draft of the proposed rule change was submitted to the Dealer Accounting Committee of the Securities Industry Association for review, and the rule change as filed reflects certain comments made by the Committee. OCC has not otherwise solicited written comments on the Prior Netting Filing or this filing, and none have been received.
Within 35 days of the date of publication of this notice in the
(A) By order approve the proposed rule change or
(B) Institute proceedings to determine whether the proposed rule change should be 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 e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
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-OCC-2006-19 and should be submitted on or before June 19, 2007.
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
U.S. Small Business Administration.
Amendment 3.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Maine (FEMA-1693-DR), dated 4/25/2007.
Submit completed loan applications to : U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Maine, dated 4/25/2007, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the Commonwealth of Massachusetts (FEMA-1701-DR), dated 5/16/2007.
Submit completed loan applications to :
U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 5/16/2007, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 10880.
Pursuant to the Federal Advisory Committee Act, Appendix 2 of title 5, United States Code Public Law 92-463, notice is hereby given that the U.S. Small Business Administration, National Small Business Development Center Advisory Board will host a public meeting via conference call to discuss such matters that may be presented by members, and the staff of the U.S. Small Business Administration or interested others. The conference call will take place at the U.S. Small Business Administration on Tuesday, June 19, 2007 at 1 p.m. Eastern Standard Time.
The purpose of the meeting is to discuss the upcoming Board Site Visit to the Ohio Small Business Development Center network on July 8-11, 2007; and the draft white paper regarding Small Business Development Center program management. Anyone wishing to attend the board conference call must contact Erika Fischer, Senior Program Analyst, U.S. Small Business Administration, Office of Small Business Development Centers, 409 3rd Street, SW., Washington, DC 20416, telephone (202) 205-7045 or fax (202) 481-0681.
Social Security Administration (SSA).
Notice of a renewal computer matching program, which is expected to begin October l, 2007.
In accordance with the provisions of the Privacy Act, as amended, this notice announces a computer matching program that SSA plans to conduct with the IRS.
SSA will file a report of the subject matching program with the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Oversight and Government Reform of the House of Representatives, and the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). The matching program will be effective as indicated below.
Interested parties may comment on this notice by either telefaxing to (410) 965-8582 or writing to the Associate Commissioner, Office of Income Security Programs, 252 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401. All comments received will be available for public inspection at this address.
The Associate Commissioner for Income Security Programs as shown above.
The Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503), amended the Privacy Act (5 U.S.C. 552a) by describing the manner in which computer matching involving Federal agencies could be performed and adding certain protections for individuals applying for and receiving Federal benefits. Section 7201 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508) further amended the Privacy Act regarding protections for such individuals. The Privacy Act, as amended, regulates the use of computer matching by Federal agencies when records in a system of records are matched with other Federal, State, or local government records.
It requires Federal agencies involved in computer matching programs to:
(1) Negotiate written agreements with the other agency or agencies participating in the matching programs;
(2) Obtain the Data Integrity Boards' approval of the match agreements;
(3) Publish notice of the computer matching program in the
(4) Furnish detailed reports about matching programs to Congress and OMB;
(5) Notify applicants and beneficiaries that their records are subject to matching; and
(6) Verify match findings before reducing, suspending, terminating, or denying an individual's benefits or payments.
We have taken action to ensure that all of SSA's computer matching programs comply with the requirements of the Privacy Act, as amended.
SSA and IRS.
The purpose of this matching program is to establish conditions under which IRS agrees to disclose to SSA certain return information necessary, to verify an individual's self-certification of
Section 6103(1)(7) of the Internal Revenue Code (26 U.S.C. 6103(1)(7)) authorizes the IRS to disclose return information with respect to unearned income to Federal, State, and local agencies administering certain benefit programs under the Social Security Act. Section 1860D-14 of title I of the MMA requires the Commissioner of SSA to verify the eligibility of an individual who seeks to be considered as an individual eligible for the prescription drug subsidy under the MMA, and who self-certifies his/her income, resources and family size.
SSA will provide the IRS with identifying information with respect to applicants for and recipients of the Medicare Part D Prescription Drug Subsidy from the Medicare Database (MDB File) system of records, SSA/ORSIS 60-0321, originally published at 69 FR 77816 (December 28, 2004), and as revised at 71 FR 42159 (July 25, 2006). IRS will extract return information with respect to unearned income from the Information Returns Master File (IRMF), Treasury/IRS 22.061, as published at 66 FR 63797 (December 10, 2001), using the same extract as the Disclosure of Information to Federal, State and Local Agencies (DIFSLA) program. SSA will maintain return information provided by the IRS through this match in the MBD File system of records.
The matching program will become effective no sooner than 40 days after notice of the matching program is sent to Congress and OMB, or 30 days after publication of this notice in the
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (
The Shipping Coordinating Committee (SHC) will conduct an open meeting at 9:30 a.m. on Thursday, June 28, 2007, in room 6103, at U.S. Coast Guard Headquarters, 2100 2nd Street SW., Washington, DC. The purpose of the meeting is to prepare for the 53rd session of the Subcommittee on Safety of Navigation (NAV) of the International Maritime Organization (IMO) which is scheduled for July 23 through 27, to be held at the Royal Horticultural Halls and Conference Centre, 81 Vincent Square, London, England.
Members of the public may attend these meetings up to the seating capacity of the room. To facilitate the building security process, those who plan to attend should call or send an e-mail two days before the meeting to
Federal Aviation Administration, DOT.
Notice
The Federal Aviation Administration (FAA) announces its findings on the Noise Compatibility Program submitted by the Jacksonville Airport Authority under the provisions of 49 U.S.C. (the Aviation Safety and Noise Abatement Act, hereinafter referred to as “the Act”) and 14 CFR part 150. These findings are made in recognition of the description of Federal and nonfederal responsibilities in Senate Report No. 96-52 (1980). On December 22, 2006, the FAA determined that the noise exposure maps submitted by the Jacksonville Airport Authority under Part 150 were in compliance with applicable requirements. On May 14, 2007, the FAA approved the Craig Municipal Airport noise compatibility program. All of the recommendations of the program were approved.
Lindy McDowell, Federal Aviation Administration, Orlando Airports District Office, 5950 Hazeltine National Dr., Suite 400, Orlando, Florida 32822-5024,
This notice announces that the FAA has given its overall approval to the Noise Compatibility Program for Craig Municipal Airport, effective May 14, 2007.
Under Section 47504 of the Act, an airport operator who has previously submitted a Noise Exposure Map may submit to the FAA a Noise Compatibility Program which sets forth the measures taken or proposed by the airport operator for the reduction of existing non-compatible land uses and prevention of additional non-compatible land uses within the area covered by the Noise Exposure Maps. The Act requires such programs to be developed in consultation with interested and affected parties including local communities, government agencies, airport users, and FAA personnel.
Each airport noise compatibility program developed in accordance with Federal Aviation Regulations (FAR) Part 150 is a local program, not a Federal Program. The FAA does not substitute its judgment for that of the airport operator with respect to which measure should be recommended for action. The FAA's approval or disapproval of FAR Part 150 program recommendations is measured according to the standards expressed in FAR part 150 and the Act, and is limited to the following determinations;
a. The Noise Compatibility Program was developed in accordance with the provisions and procedures of FAR Part 150;
b. Program measures are reasonably consistent with achieving the goals of reducing existing non-compatible land uses around the airport and preventing the introduction of additional non-compatible land uses;
c. Program measures would not create an undue burden on interstate or foreign commerce, unjustly discriminate against types of classes of aeronautical uses, violate the terms of airport grant agreements, or intrude into areas preempted by the Federal government; and
d. Program measures relating to the use of flight procedures can be implemented within the period covered by the program without derogating safety, adversely affecting the efficient use and management of the navigable airspace and air traffic control systems, or adversely affecting other powers and responsibilities of the Administrator prescribed by law.
Specific limitations with respect to FAA's approval of an airport Noise Compatibility Program are delineated in FAR Part 150, Section 150.5. Approval is not a determination concerning the acceptability of land uses under Federal, state, or local law. Approval does not by itself constitute an FAA implementing action. A request for Federal action or approval to implement specific noise compatibility measures may be required, and an FAA decision on the request may require an environmental assessment of the proposed action. Approval does not constitute a commitment by the FAA to financially assist in the implementation of the program nor a determination that all measures covered by the program are eligible for grant-in-aid funding from the FAA. Where Federal funding is sought, requests for project grants must be submitted to the FAA Airports District Office in Orlando, Florida.
Jacksonville Airport Authority submitted to the FAA on February 14, 2006, the Noise Exposure Maps, descriptions, and other documentation produced during the noise compatibility planning study conducted from August 2004, through November 2005. The Craig Municipal Airport Noise Exposure Maps were determined by FAA to be in compliance with applicable requirements on December 22, 2006. Notice of the determination was published in the
The Craig Municipal Airport study contains a proposed Noise Compatibility Program comprised of actions designed for phased implementation by airport management and adjacent jurisdictions from the year 2006 to the year 2009. It was requested that FAA evaluate and approve this material as a Noise Compatibility Program as described in Section 47504 of the Act. The FAA began its review of the Program on December 22, 2006, and was required by a provisions of the Act to approve or disapprove the program within 180-days (other than the use of new or modified flight procedures for noise control). Failure to approve or disapprove such program within the 180-day period shall be deemed to be an approval of such program.
The submitted program contained nine (9) proposed actions for noise mitigation on the airport. The FAA completed its review and determined that the procedural and substantive requirements of the Act and FAR part 150 have been satisfied. The overall program, therefore, was approved by the FAA effective May 14, 2007.
Outright approval was granted for eight of the specific program elements. Operational measure number five (5) was approved in part and does not extend to the use of monitoring equipment for enforcement of any voluntary measure.
These determinations are set forth in detail in a Record of Approval signed by the FAA on May 14, 2007. The Record of Approval, as well as other evaluation materials and the documents comprising the submittal, are available for review at the FAA office listed above and at the administrative office of the Jacksonville Airport Authority. The Record of Approval also will be available on-line at:
Federal Aviation Administration (FAA), DOT.
Notice of RTCA Special Committee 203, Minimum Performance Standards for Unmanned Aircraft Systems and Unmanned Aircraft.
The FAA is issuing this notice to advise the public of a meeting of RTCA Special Committee 203, Minimum Performance Standards for Unmanned Aircraft Systems and Unmanned Aircraft.
The meeting will be held June 19-21, 2007 from 9-5 p.m.
The meeting will be held at RTCA, Inc., 1828 L Street, NW., Suite 805 Washington, DC 20036.
Dress is Business Casual.
(1) RTCA Secretariat, 1828 L Street, NW., Suite 805, Washington, DC, 20036; telephone (202) 833-9339; fax (202) 833-9434; Web site:
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., Appendix 2), notice is hereby given for a Special Committee 203 meeting. The agenda will include:
Attendance is open to the interested public but limited to space availability. With the approval of the chairmen, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) received a request for a waiver of compliance from certain requirements of its safety standards. The individual petition is described below, including the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favor of relief.
The Red River Valley & Western Railroad (RRVW) has petitioned FRA to grant a waiver of compliance from the Safety Glazing Standards of 49 CFR part 223, for a change within an existing waiver, docket number noted above. The request is to allow Locomotive Number RRVW 1213 to service new business within an extended 25-mile radius of Breckenridge, MN. There has been no record of vandalism or any record of any accident/incident and/or injury to any railroad employee prior to the issuance of the present glazing waiver and up to present time. The track speed will remain the same and will not exceed 25 miles per hour. Most of the area is remote and not heavily populated.
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA in writing before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number (
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
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995 (PRA), this notice requests public participation in the Office of Management and Budget (OMB) approval process for the renewal of existing leak detection information collection. PHMSA invites the public to submit comments over the next 60 days on whether the existing information collection is necessary for the proper performance of the functions of the Department of Transportation.
Submit comments on or before July 30, 2007.
Reference Docket No. PHMSA-98-4957 and submit in one of the following ways:
•
•
•
•
• E-Gov Web Site:
PHMSA posts all comments without changes or edits to http://dms.dot.gov, including any personal information provided.
Anyone can search the electronic form of all comments received in response to 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.). DOT's complete Privacy Act Statement was published in the
Joy Kadnar at (202) 366-0568, or by e-mail at joy.kadnar@dot.gov.
Sections 195.134 and 195.444 of the Federal pipeline safety regulations require operators of hazardous liquid pipeline facilities installing new computational pipeline monitoring (CPM) leak detection systems or replacing components of existing CPM systems to comply with section 4.2 of American Petroleum Institute (API) recommended practice API 1130, “Computational Pipeline Monitoring for Liquid Pipelines.” API 1130 section 4.2 provides information collection and maintenance guidance on many factors such as measurement capabilities, communications reliability, pipeline operating condition, and product type. PHMSA reviews the information during pipeline inspection. The information supports the pipeline inspection and improves pipeline safety by providing early detection of a pipeline leak. A copy of API 1130 is available in the docket.
Pursuant to 44 U.S.C. 3506(c)(2)(A) of the PRA, PHMSA invites comments on whether the renewal of the existing leak detection information collection is necessary for the proper performance of the functions of the Department of Transportation. As used in this notice, the term “information collection” includes all work related to the preparing and disseminating information in accordance with the recordkeeping requirements. The comments may include (1) whether the information will have practical utility; (2) the accuracy of the Department's estimate of the burden of the proposed information collection; (3) ways to enhance the quality, utility, and clarity of the information collection; and (4) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology.
Internal Revenue Service (IRS), Treasury.
Notice.
An open meeting of the Area 7 Committee of the Taxpayer Advocacy Panel will be conducted (via teleconference). The Taxpayer Advocacy Panel (TAP) is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service. The TAP will use citizen input to make recommendations to the Internal Revenue Service.
The meeting will be held Wednesday, June 20, 2007.
Janice Spinks at 1-888-912-1227, or 206-220-6096.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Area 7 Committee of the Taxpayer Advocacy Panel will be held Wednesday, June 20, 2007 from 2 p.m. to 3:30 p.m. Pacific Time via a telephone conference call. The public is invited to make oral comments. Individual comments will be
Wednesday, June 13, 2007 (9 a.m.-8 p.m.) Thursday, June 14, 2007 (9:30 a.m.-4 p.m.)
NDU—National War College, Roosevelt Hall, Ft. McNair, 300 5th Avenue, Washington, DC.
Open Session—Portions may be closed pursuant to Subsection (c) of Section 552(b) of Title 5, United States Code, as provided in subsection 1706(h)(3) of the United States Institute of Peace Act, Public Law 98-525.
June 2007 Board Meeting; Approval of Minutes of the One Hundred Twenty-Sixth Meeting (March 12, 2007) of the Board of Directors; Chairman's Report; President's Report; Program Updates; Selection of National Peace Essay Contest Winners; Selection of Peace Scholars; Other General Issues.
Tessie F. Higgs, Executive Office, Telephone: (202) 429-3836.
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of intent to distribute offset for Fiscal Year 2007.
Pursuant to the Continued Dumping and Subsidy Offset Act of 2000, this document is the U.S. Customs and Border Protection's notice of intent to distribute assessed antidumping or countervailing duties (known as the continued dumping and subsidy offset) for Fiscal Year 2007 in connection with countervailing duty orders, antidumping duty orders, or findings under the Antidumping Act of 1921. This document sets forth the case name and number of each order or findings for which funds may become available for distribution, together with the list of affected domestic producers, based on the list supplied by the United States International Trade Commission (USITC) associated with each order or finding, who are potentially eligible to receive a distribution. This document also provides the instructions for affected domestic producers to file certifications to claim a distribution in relation to the listed orders or findings.
Certifications to obtain a continued dumping and subsidy offset under a particular order or finding must be received by July 30, 2007. Any certification received after July 30, 2007 will be denied, making claimants ineligible for the distribution.
Certifications and any other correspondence should be addressed to the Assistant Commissioner, Office of Finance, U.S. Customs and Border Protection, Revenue Division, Attention: Leigh Redelman, P.O. Box 68940, Indianapolis, IN 46268. Any delivery by an express or courier service requiring a street address may be addressed to 6650 Telecom Drive, Suite 100, Indianapolis, IN 46278.
For general questions regarding preparation of certifications, contact Leigh Redelman, Revenue Division, (317) 614-4462. For questions regarding legal aspects, contact William G. Rosoff, Office of International Trade, Regulations and Rulings, (202) 572-8807.
The Continued Dumping and Subsidy Offset Act of 2000 (CDSOA) was enacted on October 28, 2000, as part of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2001 (“Act”). The provisions of the CDSOA are contained in title X (sections 1001-1003) of the Act.
The CDSOA, in section 1003 of the Act, amended title VII of the Tariff Act of 1930, as amended, by adding a new section 754 (codified at 19 U.S.C. 1675c) in order to provide that assessed duties received pursuant to a countervailing duty order, an antidumping duty order, or a finding under the Antidumping Act of 1921 will be distributed to affected domestic producers for certain qualifying expenditures that these producers incur after the issuance of such an order or finding. The term “affected domestic producer” means any manufacturer, producer, farmer, rancher or worker representative (including associations of such persons) who:
(A) Was a petitioner or interested party in support of a petition with respect to which an antidumping order, a finding under the Antidumping Act of 1921, or a countervailing duty order that has been entered,
(B) remains in operation continuing to produce the product covered by a countervailing duty order, an antidumping duty order, or a finding under the Antidumping Act of 1921, and
(C) if a company, has not been acquired by another company or business that is related to a company that opposed the antidumping or countervailing duty investigation that led to the order or finding,
The distribution that these parties may receive is known as the continued dumping and subsidy offset.
It is the responsibility of the U.S. International Trade Commission (USITC) to ascertain and timely forward to U.S. Customs and Border Protection (CBP) a list of the affected domestic producers that are potentially eligible to receive an offset in connection with an order or finding.
To this end, it is noted that the USITC has supplied CBP with the list of individual antidumping and countervailing duty cases, and the affected domestic producers associated with each case who are potentially eligible to receive an offset. This list appears at the end of this document. Claimants who are not on the USITC list but believe they are nonetheless eligible for a CDSOA distribution under one or more antidumping and/or countervailing duty cases must, as do all claimants that expressly appear on the list, file their certification(s) within 60 days after this notice is published. Certifications not timely filed within the requisite 60 days will be summarily denied.
It is noted that CBP published Treasury Decision (T.D.) 01-68 (Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers) in the
This document announces that CBP intends to distribute to affected domestic producers the assessed antidumping or countervailing duties that are available for distribution in Fiscal Year 2007 in connection with those antidumping duty orders or findings or countervailing duty orders that are listed in this document. Section 159.62(a) of title 19 (19 CFR 159.62(a)) provides that CBP will publish such a notice of intention to distribute assessed duties at least 90 calendar days before the end of a fiscal year. Failure to publish said notice at least 90 calendar days before the end of the fiscal year shall in no way impact an affected domestic producer's obligation to file a timely certification within 60 days after the notice is published.
To obtain a distribution of the offset under a given order or finding, an affected domestic producer must submit a certification for each order or finding under which a distribution is sought, to CBP, indicating the affected domestic producer's desire to receive a distribution. To be eligible to obtain a distribution, certifications must be received by CBP no later than 60 calendar days after the date of publication of this notice of intent to distribute in the
As required by 19 CFR 159.62(b), this notice provides the case name and number of the order or finding concerned, as well as the specific instructions for filing a certification under § 159.63 to claim a distribution. Section 159.62(b) also provides that the dollar amounts subject to distribution that are contained in the Special Account for each listed order or finding are to appear in this notice. However, these dollar amounts were not available in time for inclusion in this publication. The preliminary amounts will be posted on the CBP Web site (http://www.cbp.gov), for purposes of enabling affected domestic producers to determine whether it would be worthwhile to file a certification in a given case. The final amounts available for distribution may be higher or lower than the preliminary amounts.
CBP will provide general information to claimants regarding the preparation of certification(s). However, it remains the sole responsibility of the domestic producer to ensure that the certification is correct, complete and accurate so as to demonstrate the eligibility of the domestic producer for the distribution requested. Failure to ensure that the certification is correct, complete, and accurate as provided in this notice will result in the domestic producer not receiving a distribution.
Specifically, to obtain a distribution of the offset under a given order or finding, each affected domestic producer must timely submit a certification containing the required information detailed below as to the eligibility of the producer to receive the requested distribution and the total amount of the distribution that the producer is claiming. Certifications should be submitted to the Assistant Commissioner, Office of Finance, Revenue Division. The certification must enumerate the qualifying expenditures incurred by the domestic producer since the issuance of an order or finding and it must demonstrate that the domestic producer is eligible to receive a distribution as an affected domestic producer.
A successor to a company that was an affected domestic producer at the time of acquisition should consult 19 CFR 159.61(b)(1)(i). We note that the successor company may assume joint and several liability for the return of any overpayments arising under § 159.64(c)(3) that were previously paid to the predecessor. CBP may require the successor company to provide documents to support its eligibility to receive a distribution as set out in § 159.63(e).
A member company (or its successor) of an association that appears on the list of affected domestic producers in this notice, where the member company itself does not appear on the list, should consult 19 CFR 159.61(b)(1)(ii). Specifically, for a certification under 19 CFR 159.61(b)(1)(ii), the claimant must name the association of which it is a member and specifically establish that it was a member of the association at the time the association filed the petition with the USITC and establish that the company is a current member of the association. In order to promote accurate filings and more efficiently process the distributions, we offer the following guidance. If claimants are members of an association but the association does not file on their behalf, each association will need to provide their members with a statement which contains notarized company specific information including dates of membership, and an original signature from an authorized representative of the association. An association filing a certification on behalf of a member must also provide a power of attorney or other evidence of legal authorization from each of the affected domestic producers it is representing. An association filing a certification on behalf of a member is responsible for verifying the accuracy of the member's financial records, which support their claim, and is responsible for that certification. Any association filing a certification on behalf of a member is responsible for verifying the legal sufficiency and accuracy of the member's financial records, which support the claim and may be liable for repayment of any claim found to have been paid in error.
The association may file a certification in its own right to claim an offset for that order or finding, but its qualifying expenditures would be limited to those expenditures that the association itself has incurred after the date of the order or finding in connection with the particular case.
As provided in 19 CFR 159.63(a), certifications to obtain a distribution of an offset must be received by CBP no later than 60 calendar days after the date of publication of the notice of intent in the
A list of all certifications received will be published on the CBP website shortly after the receipt deadline. This publication will not confirm acceptance or validity of the certification, but merely receipt of the certification. Due to the high volume of certifications, CBP is unable to respond to individual telephone or written inquiries regarding the status of a certification appearing on the list.
While there is no required format for a certification, CBP has developed a standard certification form to aid claimants in filing certifications. The certification form is available at
Regardless of the format for a certification, per 19 CFR 159.63(b), the certification must contain the following information:
1. The date of this
2. The Commerce case number;
3. The case name (producer/country);
4. The name of the domestic producer and any name qualifier, if applicable (for example, any other name under which the domestic producer does business or is also known);
5. The mailing address of the domestic producer (if a post office box, the physical street address must also appear) including, if applicable, a specific room number or department;
6. The Internal Revenue Service (IRS) number (with suffix) of the domestic producer, employer identification number, or social security number, as applicable;
7. The specific business organization of the domestic producer (corporation, partnership, sole proprietorship);
8. The name(s) of any individual(s) designated by the domestic producer as the contact person(s) concerning the certification, together with the phone number(s), mailing address and, if available, facsimile transmission number(s) and electronic mail (e-mail) address(es) for the person(s). Correspondence from CBP will be directed to the designated contact(s) by either mail or phone or both;
9. The total dollar amount claimed;
10. The dollar amount claimed by category, as described in the section below entitled “Amount Claimed for Distribution”;
11. A statement of eligibility, as described in the section below entitled “Eligibility to Receive Distribution”; and
12. For certifications not submitted electronically through
Qualifying expenditures which may be offset by a distribution of assessed antidumping and countervailing duties encompass those expenditures that are incurred by the affected domestic producer after the issuance of an antidumping duty order or finding or a countervailing duty order, and prior to its termination, provided that such expenditures fall within certain categories. For the convenience and ease of the domestic parties, CBP is providing guidance on what the agency takes into consideration when making a calculation for each of the following categories: (1) Manufacturing facilities: (Any facility used for the transformation of raw material into a finished product that is the subject of the related order or finding); (2) Equipment: (Goods that are used in a business environment to aid in the manufacturing of a product that is the subject of the related order or finding); (3) Research and development: (Seeking knowledge and determining the best techniques for production of the product that is the subject of the related order or finding); (4) Personnel training: (Teaching of specific useful skills to personnel, that will improve performance in the production process of the product that is the subject of the related order or finding); (5) Acquisition of technology: (Acquisition of applied scientific knowledge and materials to achieve an objective in the production process of the product that is the subject of the related order or finding); (6) Health care benefits for employees paid for by the employer: (Health care benefits paid to employees who are producing the specific product that is the subject of the related order or finding); (7) Pension benefits for employees paid for by the employer: (Pension benefits paid to employees who are producing the specific product that is the subject of the related order or finding); (8) Environmental equipment, training, or technology: (Equipment, training, or technology used in the production of the product that is the subject of the related order or finding, that will assist in preventing potentially harmful factors from impacting the environment); (9) Acquisition of raw materials and other inputs: (Purchase of unprocessed materials or other inputs needed for the production of the product that is the subject of the related order or finding); and (10) Working capital or other funds needed to maintain production: (Assets of a business that can be applied to its production of the product that is the subject of the related order or finding).
In calculating the amount of the distribution being claimed as an offset, the certification must indicate: (1) The total amount of any qualifying expenditures currently and previously certified by the domestic producer, and the amount certified by category; (2) The total amount of those expenditures which have been the subject of any prior distribution for the order or finding being certified under 19 U.S.C. 1675c; and (3) The net amount for new and remaining qualifying expenditures being claimed in the current certification (the total amount currently and previously certified as noted in item “(1)” above minus the total amount that was the subject of any prior distribution as noted in item “(2)” above). In accordance with 19 CFR 159.63(b)(2)(i)-(b)(2)(iii), CBP will deduct the amount of any prior distribution from the producer's claimed amount for that case. Total amounts disbursed by CBP under the CDSOA for Fiscal Years 2001 through 2006 are available on the CBP Web site.
Additionally, under 19 CFR 159.61(c), these qualifying expenditures must be related to the production of the same product that is the subject of the order or finding, with the exception of expenses incurred by associations which must relate to a specific case.
As noted, the certification must contain a statement that the domestic producer desires to receive a distribution and is eligible to receive the distribution as an affected domestic producer. Also, the domestic producer must affirm that the net amount certified for distribution does not encompass any qualifying expenditures for which distribution has previously been made (19 CFR 159.63(b)(3)(i)).
Furthermore, under 19 CFR 159.63(b)(3)(ii), where a party is listed as an affected domestic producer on more than one order or finding covering the same product and files a separate certification for each order or finding using the same qualifying expenditures as the basis for distribution in each case, each certification must list all the other orders or findings where the producer is claiming the same qualifying expenditures.
Moreover, as required by 19 U.S.C. 1675c(b)(1) and 19 CFR 159.63(b)(3)(iii), the certification must include information as to whether the domestic producer remains in operation at the time the certifications are filed and continues to produce the product covered by the particular order or finding under which the distribution is sought. If a domestic producer is no longer in operation, or no longer produces the product covered by the order or finding, the producer will not be considered an affected domestic producer entitled to receive a distribution.
In addition, as required by 19 U.S.C. 1675c(b)(5) and 19 CFR 159.63(b)(3)(iii), the domestic producer must state whether it has been acquired by a company that opposed the investigation or was acquired by a business related to a company that opposed the investigation. If a domestic producer has been so acquired, the producer will not be considered an affected domestic producer entitled to receive a distribution.
The certification must be executed and dated by a party legally authorized to bind the domestic producer and it must state that the information contained in the certification is true and accurate to the best of the certifier's knowledge and belief under penalty of law, and that the domestic producer has records to support the qualifying expenditures being claimed (see section below entitled “Verification of Certification”).
A certification that is submitted in response to this notice of distribution and received within 60 calendar days after the date of publication of the notice in the
Certifications are subject to CBP's verification. Claimants may also be required to provide copies of additional records for further review by CBP. Therefore, parties are required to maintain records supporting their claims for a period of five years after the filing of the certification (19 CFR 159.63(d)). The records must support each qualifying expenditure enumerated in the certification and they must support how the qualifying expenditures are determined to be related to the production of the product covered by the order or finding. Although CBP will accept comments and information from the public and other domestic producers, CBP retains complete discretion regarding the initiation and conduct of investigations stemming from such information.
The name of the affected domestic producer, the total dollar amount claimed by the party on the certification, as well as the total dollar amount that CBP actually disburses to that affected domestic producer as an offset, will be available for disclosure to the public, as specified in 19 CFR 159.63(e). To this extent, the submission of the certification is construed as an understanding and acceptance on the part of the domestic producer that this information will be disclosed to the public. Alternatively, a statement in a certification that this information is proprietary and exempt from disclosure will result in CBP's rejection of the certification.
The list of individual antidumping duty orders or findings and countervailing duty orders is set forth below, together with the affected domestic producers associated with each order or finding who are potentially eligible to receive an offset.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Final rule.
This final rule establishes standards for recipients under the Indian Housing Block Grant (IHBG) program to purchase insurance through nonprofit insurance entities owned and controlled by Indian tribes and tribally designated housing entities (TDHEs). This rule follows publication of a March 7, 2006, proposed rule, and takes into account the public comments received on the proposed rule. This final rule provides additional clarifications in the preamble and adopts, with one change, the regulations in the March 7, 2006, proposed rule.
Rodger J. Boyd, Deputy Assistant Secretary for Native American Programs, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 4126, Washington, DC 20410-5000; telephone (202) 401-7914 (this is not a toll-free number). Hearing- and speech-impaired persons may access this number through TTY by calling the Federal Information Relay Service at (800) 877-8339 (this is a toll-free number).
The Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA) (25 U.S.C. 4101
Section 203(c) of NAHASDA requires recipients of IHBG program assistance to “maintain adequate insurance coverage for housing units that are owned and operated or assisted with grant amounts provided under this Act.” (See 25 U.S.C. 4133(c).) Section 102 of NAHASDA requires each Indian Housing Plan (IHP) to include a certification that “the recipient will maintain adequate insurance coverage for housing units that are owned and operated with grant amounts provided under this Act, in compliance with such requirements as may be established by the Secretary.”
Current regulatory requirements for housing insurance in the Native American housing program are found at 24 CFR 1000.38, 1000.136, and 1000.138. Section 1000.38 delineates when flood insurance is necessary. Section 1000.136(a) requires the funding recipient under the program to provide casualty insurance against fire, weather, and liability claims for all housing units owned or operated by the recipient. Section 1000.136(b) allows for cases where the recipient does not have to provide insurance. These exceptions apply to non-repayable grants to families for housing under the following conditions: there is no risk of loss or substantial financial exposure to the recipient, or the amount of the assistance is less than $5,000. Section 1000.136(c) requires the funding recipient to require that contractors and subcontractors have adequate insurance or indemnification coverage to cover their activities. Section 1000.136(d) clarifies that the insurance requirements of that section are in addition to the flood insurance requirements of § 1000.38.
Section 1000.138 defines what is considered “adequate insurance.” Insurance must be purchased from an insurance provider or plan of self-insurance “in an amount that will protect the financial stability of the recipient's IHBG program.” Insurance may be purchased from nonprofit entities without regard to competitive selection if the entities are owned and controlled by the recipients under the program and have been approved by HUD.
On March 7, 2006, HUD published a proposed rule (71 FR 11464) to establish specific standards under which IHBG assisted housing units may be insured by nonprofit Indian housing risk pools. Historically, commercial insurers have been unwilling to provide insurance for Indian housing at an affordable rate so HUD encouraged the National American Indian Housing Council (NAIHC) to form a risk pool composed solely of Indian housing authorities to provide the legally required insurance coverage. Current regulations in 24 CFR part 1000 generally address required insurance, but do not set specific standards under which IHBG-assisted housing units may be insured by nonprofit Indian housing risk pools. The proposed rule was intended to ensure that the statutory requirement of NAHASDA regarding the maintenance of adequate insurance is met in a cost-effective manner by regulating the provision of insurance for IHBG-assisted properties. A detailed description of the proposed rule can be found at 71 FR 11464-11468.
This final rule follows publication of the March 7, 2006, proposed rule and takes into account the six public comments received. After careful consideration of the public comments, HUD is making one change to § 1000.139(g) concerning the scope of preemption of this rule. In the proposed rule, § 1000.139(g) stated, in relevant part, “The [self-insurance] plan shall not be bound by or subject to any state or local law that imposed conflicting or additional requirements * * * ” At this final rule stage, HUD is amending § 1000.139(g) to more closely reflect the scope of preemption discussed in the preamble of the proposed rule. In the preamble to the proposed rule, HUD stated that its intention in establishing this regulation governing self-insurance plans is to provide a limited preemption necessary to ensure that insurance services for federally assisted housing on tribal lands are provided as required by federal law. (See 71 FR 11465.)
HUD believes that revising paragraph (g) in § 1000.139 to preempt conflicting state laws that impose widely varying and costly requirements on tribally owned housing entities that provide insurance for IHBG-assisted housing best reflects the limited preemption contemplated by HUD by this rule. The preemptive effect of this rule applies to matters covered in § 1000.139, including, for example, the existence, operation, and organization of the self-insurance plan; however, this rule is not intended to apply to external matters such as, for example, laws governing liability, tort actions, and jurisdictional issues.
As described in further detail in section IV, the issues raised by the commenters primarily requested clarifications in the preamble to the proposed rule and did not seek the changes to the proposed regulatory text. Although the regulatory provisions, with the exception as discussed above, are not revised at this final rule stage, HUD is providing additional explanation in this preamble to the final rule about two matters raised by the commenters.
First, this final rule applies to insurance under section 203(c) of NAHASDA and 24 CFR 1000.136 and 1000.138, which, among other things, require insurance in adequate amounts to indemnify the recipient against loss from liability claims. Second, HUD affirms that the phrase “tribal lands,” which was used in the preamble to the proposed rule, is ambiguous and should refer to insurance for “IHBG-assisted housing,” as utilized in the regulation at § 1000.139(g).
The public comment period on the proposed rule closed on May 8, 2006. HUD received six public comments. Comments were received from a tribally owned nonprofit Indian housing risk pool, an Indian housing authority, a national Indian housing organization, an Indian tribe, an inter-tribal council, and a state insurance division.
In general, all of the commenters expressed general support for the proposed rule but requested that HUD make changes to the preamble and, in one case, to the rule. The summary of comments that follows presents the major issues and questions raised by the public commenters on the March 7, 2006, proposed rule.
In accordance with Executive Order 13132 (Federalism), and the Department's own policy on federalism, the Department, by letter dated December 16, 2004, notified the attorneys general of each of the 50 states of its intention to promulgate regulations that would govern the insurance of tribal housing under the IHBG program. Because insurance is regulated by state law, HUD recognized the necessity to consult and solicit the views of state governments on this issue. NAHASDA requires tribes and TDHEs to maintain adequate insurance for housing owned and operated using funds that the government provides under NAHASDA. Indian tribes may meet this statutory requirement through tribally owned and operated insurance entities. There is currently one such self-insurance entity, although, once the rule is promulgated, Indian tribes could establish additional ones.
The Department's December 16, 2004, letter described the current regulatory environment and stated the reason for promulgating the rule. While NAHASDA requires IHBG program recipients to maintain adequate insurance, HUD investigation, including feedback from IHBG program recipients, has determined that in many areas, adequate insurance for federally assisted Indian housing is either unavailable from private insurance companies or prohibitively expensive. The Department believes that the final rule will effectively address this issue by providing regulations under which IHBG program recipients can establish new self-insurance entities, and under which the sole existing IHBG self-insurance risk pool, AMERIND, can operate. Because state insurance laws could potentially conflict with the regulation intended to be established by this rulemaking and, thereby, defeat the important federal purpose underlying this rulemaking by subjecting tribal housing self-insurance entities to widely
On January 27, 2005, a trade association wrote to HUD on behalf of its members seeking an extension of time until February 15, 2005, for the association and its members to provide any additional comments they might have. HUD agreed to this extension. HUD did not receive further correspondence from the association or its members.
HUD believes that regulatory preemption is appropriate in this case, given the limited nature of the preemption, the fact that the limited preemption is necessary to ensure that insurance services for IHBG-assisted housing are provided as required by federal law, and the limited number of self-insurance entities involved.
HUD's policy is to consult with Indian tribes early in the rulemaking process on matters that have tribal implications. Accordingly, on April 12, 2005, HUD sent letters to all eligible funding recipients under NAHASDA and their TDHEs informing them of the nature of the forthcoming rule and soliciting comments. The deadline for comments under this informal consultation was June 3, 2005. The Department received five responses to the April 12, 2005, consultation letter. HUD considered their comments on the proposed changes in the preparation of the March 7, 2006, proposed rule for publication. In the proposed rule, HUD attempted to address all the issues raised by the tribes. In addition, the proposed rule provided Indian tribes with an additional opportunity to comment on the proposed regulatory changes.
The information collection requirements contained in this final rule have been approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB control number 2577-0218. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid OMB control number.
This rule does not direct, provide for assistance or loan or mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
The Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-1538) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and on the private sector. This rule does not impose a federal mandate on any state, local, or tribal government, or on the private sector, within the meaning of UMRA.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. HUD has determined that the policies contained in this rule have federalism implications and are subject to review under the order. Specifically, the rule provides for preemption of state regulation of tribal housing self-insurance entities in their coverage of federally assisted housing. HUD's federalism summary impact statement, as required by section 6(b)(2)(B) of the Executive Order, and which discusses this matter in more detail, is presented in Section V of this preamble.
OMB reviewed this rule under Executive Order 12866 (entitled “Regulatory Planning and Review”). OMB determined that this rule is a “significant regulatory action,” as defined in section 3(f) of the order (although not an economically significant regulatory action under the order). The docket file is available for public inspection in the Regulations Division, Office of General Counsel, 451 Seventh Street, SW., Room 10276, Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the public comments by calling the Regulations Division at (202) 708-3055 (this is not a toll-free number).
Aged, Grant programs—housing and community development, Grant programs—Indians, Individuals with disabilities, Low- and moderate-income housing, Public housing, Reporting and recordkeeping requirements.
25 U.S.C. 4101
(a)
(b)
(c)
(1) The plan is organized as an insurance entity, tribal self-insurance plan, tribal risk retention group, or Indian housing self-insurance risk pool;
(2) The plan limits participation to IHBG recipients;
(3) The plan operates on a nonprofit basis;
(4)(i) The plan employs or contracts with a third party to provide competent underwriting and management staff;
(A) The underwriting staff must be composed of insurance professionals with an average of at least five years of experience in large risk commercial underwriting exceeding $100,000 in annual premiums or at least five years of experience in underwriting risks for public entity plans of self-insurance;
(B) The management staff must have at least one senior manager who has a minimum of five years of insurance experience at the level of vice president of a property or casualty insurance entity; as a senior branch manager of a branch office with annual property or casualty premiums exceeding five million dollars; or as a senior manager of a public entity self-insurance risk pool;
(ii) Satisfaction of this requirement may be demonstrated by evidence such as résumés and employment history of the underwriting staff for the plan and of the key management staff with day-to-day operational oversight of the plan;
(5) The plan maintains internal controls and cost containment measures, as shown by the annual budget;
(6) The plan maintains sound investments consistent with its articles of incorporation, charter, bylaws, risk pool agreement, or other applicable organizational document or agreement concerning investments;
(7) The plan maintains adequate surplus and reserves, as determined by HUD, for undischarged liabilities of all types, as shown by a current audited financial statement and an actuarial review conducted in accordance with paragraph (e) of this section;
(8) The plan has proper organizational documentation, as shown by copies of the articles of incorporation, charter, bylaws, subscription agreement, business plan, contracts with third-party administrators, and other organizational documents; and
(9) A plan's first successful application for approval under this section must also include an opinion from the plan's legal counsel that the plan is properly chartered, incorporated, or otherwise formed under applicable law.
(d)
(e)
(1) The annual financial statement must be prepared in accordance with generally accepted accounting principles (GAAP) and audited by an independent auditor in accordance with generally accepted government auditing standards. The independent auditor shall state in writing an opinion on whether the plan's financial statement is presented fairly, in accordance with GAAP;
(2) The actuarial review of the plan shall be done consistently with requirements established by the Association of Governmental Risk Pools and conducted by an independent property or casualty actuary who is a member of a recognized professional actuarial organization, such as the American Academy of Actuaries. The report issued and submitted to HUD must include the actuary's written opinion on any over- or under-reserving and the adequacy of the reserve maintained for open claims and for incurred but unreported claims;
(3) The management review must be prepared by an independent insurance consultant who has received the professional designation of a chartered property/casualty underwriter (CPCU), associate in risk management (ARM), or associate in claims (AIC), and must cover the following:
(i) The efficiency of the management or third-party administrator of the plan;
(ii) Timeliness of the claim payments and reserving practices; and
(iii) The adequacy of reinsurance or excess insurance coverage.
(f)
(g)
Office of the Assistant Secretary for Public and Indian Housing; HUD.
Proposed rule.
This proposed rule would revise HUD's regulations for the homeownership option authorized under the Housing Choice Voucher (HCV) program. Through the homeownership option, a public housing agency may provide voucher assistance for an eligible family that purchases a dwelling unit for residence by the family. The current homeownership option regulations provide that, to be eligible for purchase with voucher assistance, a unit must be either an existing unit or under construction at the time the family enters into the contract for sale. This proposed rule would permit the use of voucher homeownership assistance for the purchase of units not yet under construction at the time the family contracts to purchase the home. This proposed rule also makes conforming changes for purposes of the homeownership option. These revisions would expand the housing choices available to families participating in the homeownership option under the HCV program.
Interested persons are invited to submit comments regarding this proposed rule to the Office of the General Counsel, Rules Docket Clerk, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 10276, Washington, DC 20410-0001. Communications should refer to the above docket number and title.
Alfred C. Jurison, Office of Public and Indian Housing, 451 Seventh Street SW., Room 4210, Washington, DC 20410-8000; telephone (202) 708-0477 (this is not a toll-free number). Hearing- or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
Through the HCV program, HUD pays rental subsidies so that eligible families can afford decent, safe, and sanitary housing. Under the homeownership option of the HCV program, a public housing agency (PHA) may provide voucher assistance for an eligible family to purchase, rather than rent, a dwelling unit for residence by the family. The regulations for the homeownership option are codified in subpart M of the HCV program regulations at 24 CFR part 982. Subpart M describes program requirements for alternatives to the basic HCV program.
In general, a PHA that administers assistance under the HCV program may offer homeownership assistance as an option for qualified families. Before commencing homeownership assistance for a family, the PHA determines whether the family is qualified, the unit is eligible, and the family has satisfactorily completed the required PHA program of pre-assistance homeownership counseling.
The current homeownership option regulations provide that, to be eligible for purchase with voucher assistance, a unit must be either an existing unit or under construction at the time the family enters into the contract for sale. Upon re-consideration, HUD believes that the housing eligibility requirements may be overly restrictive.
For example, job growth in an area will frequently trigger the construction of new housing developments. The current eligibility prohibition has the potential to deter voucher families from moving to such an area in search of employment opportunities. In addition, the current requirements hamper efforts to use homeownership voucher assistance in combination with mutual self-help or other sweat-equity programs in those high-cost market areas where affordable homeownership opportunities otherwise remain elusive for participating homeownership voucher families. Further, many localities have established affordable housing requirements on developers of new housing subdivisions mandating that a specified percentage of the homes to be constructed be set aside for purchase by low-income families. The current eligibility restriction prohibits voucher families from benefiting from these local affordable housing initiatives prior to the construction of new homes.
Since few existing homes are accessible to persons with impaired mobility, the current prohibition also has the potential to make it more difficult for persons with disabilities to purchase a home with voucher assistance. Modification of the home following purchase may not be easily accomplished, and may require the purchaser to incur significant additional costs. Allowing the purchase of units not yet under construction would allow individuals with disabilities to make design changes for accessibility purposes while the home is being built, thus minimizing homeownership costs.
To address the programmatic concerns described above, this proposed rule would permit the use of voucher homeownership assistance for the purchase of units not yet under construction at the time the family contracts to purchase the home. However, the PHA may not commence homeownership assistance for the family until: (1) HUD has approved an environmental certification and request
Since the regulatory amendment authorizes the provision of federal homeownership assistance to be used for units not yet under construction, the assistance must comply with applicable federal environmental review requirements. Individual actions on up to four dwelling units are generally excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Under 24 CFR part 58, a unit of general local government, a county, or a state (referred to in 24 CFR part 58 as the “responsible entity”) is responsible for the required federal environmental reviews, pursuant to a number of HUD program statutes, including Title I of the United States Housing Act of 1937, which authorizes the HCV program. If a PHA objects in writing to the performance of the federal environmental review by the responsible entity, or if the responsible entity declines to perform the review, then HUD may perform the environmental review itself (see 24 CFR 58.11). HUD's performance of the environmental review is governed by 24 CFR part 50.
The proposed rule reflects the environmental review requirements applicable to the use of federal assistance in connection with housing construction. The proposed rule would also require additional terms to be included in the contract of sale if the unit is not yet under construction and instructs PHAs when it is appropriate to begin providing homeownership assistance. Specifically, the contract of sale between the family and the seller must provide that: (1) The purchaser is not obligated to purchase the unit unless an environmental review has been performed and the site has received environmental approval prior to commencement of construction, in accordance with 24 CFR 982.628; (2) construction will not commence until the required environmental review has been completed and the seller has received written notice from the PHA that environmental approval has been obtained. Conduct of the environmental review may not necessarily result in environmental approval, and environmental approval may be conditioned on the contracting parties' agreement to modifications to the unit design or to mitigation actions; and (3) commencement of construction in violation of the preceding clause voids the purchase contract and renders homeownership assistance under this part unavailable for purchase of the unit. A PHA may not commence homeownership assistance for the family until either: (1) The responsible entity has completed the environmental review procedures required by 24 CFR part 58, and HUD has approved the environmental certification and request for release of funds; or (2) HUD has performed an environmental review under 24 CFR part 50 and has notified the PHA in writing of environmental approval of the site. This proposed rule would permit voucher families to benefit from local affordable housing initiatives and in areas where job growth is occurring, as well as aid in reducing the cost of making homes accessible to persons with mobility impairments while still complying with applicable federal environmental review requirements.
In conformity with the regulatory changes described above, this proposed rule also would make explicit that the initial environmental review requirements for units not yet under construction are broader than for those units that are constructed or that are under construction. Similarly, this proposed rule emphasizes that when a family receiving homeownership assistance chooses to move to another unit, environmental review requirements must be satisfied for that unit in order for the family to continue receiving tenant-based assistance. This includes completing a new environmental review for any unit not yet under construction.
Under section 3504(h) of the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a current valid control number. This rule does not contain information collection requirements, as defined under the PRA.
The Office of Management and Budget (OMB) reviewed this rule under Executive Order 12866 (entitled “Regulatory Planning and Review”). OMB determined that this rule is a “significant regulatory action” as defined in section 3(f) of the Order (although not an economically significant regulatory action, as provided under section 3(f)(1) of the Order). Any changes made to the rule subsequent to its submission to OMB are identified in the docket file, which is available for public inspection in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 10276, Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the docket file by calling the Regulations Division at (202) 708-3055 (this is not a toll-free number).
A Finding of No Significant Impact with respect to the environment has been made, in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). That finding is available for public inspection between the hours of 8 a.m. and 5 p.m. weekdays in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 10276, Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the finding by calling the Regulations Division at (202) 708-3055 (this is not a toll-free number).
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Notwithstanding HUD's determination that this rule will not have a significant economic effect on a substantial number of small entities, HUD specifically invites comments regarding less burdensome alternatives to this rule that will meet HUD's objectives as described in this preamble.
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rule will not have federalism implications and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-1538) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This rule will not impose any federal mandates on any state, local, or tribal governments, or on the private sector, within the meaning of the UMRA.
Grant programs—housing and community development, Housing, Low- and moderate-income housing, Rent subsidies, Reporting and recordkeeping requirements.
Accordingly, for the reasons described in the preamble, HUD proposes to amend 24 CFR part 982 as follows:
1. The authority citation for 24 CFR part 982 continues to read as follows:
42 U.S.C. 1437f and 3535(d).
2. Revise § 982.626(c) to read as follows:
(c)
3. Amend § 982.628 as follows:
a. Remove paragraph (a)(2);
b. Redesignate paragraphs (a)(3), (a)(4), and (a)(5) as paragraphs (a)(2), (a)(3), and (a)(4), respectively; and
c. Add paragraph (e) to read as follows:
(e)
(1) Either:
(i) The responsible entity completed the environmental review procedures required by 24 CFR part 58, and HUD approved the environmental certification and request for release of funds prior to commencement of construction; or
(ii) HUD performed an environmental review under 24 CFR part 50 and notified the PHA in writing of environmental approval of the site prior to commencement of construction;
(2) Construction of the unit has been completed; and
(3) The unit has passed the required Housing Quality Standards (HQS) inspection (see § 982.631(a)) and independent inspection (see § 982.631(b)).
4. Add § 982.631(c)(3) to read as follows:
(c) * * *
(3) In addition to the requirements contained in paragraph (c)(2) of this section, a contract for the sale of units not yet under construction at the time the family is to enter into the contract for sale must also provide that:
(i) The purchaser is not obligated to purchase the unit unless an environmental review has been performed and the site has received environmental approval prior to commencement of construction in accordance with 24 CFR 982.628.
(ii) The construction will not commence until the environmental review has been completed and the seller has received written notice from the PHA that environmental approval has been obtained. Conduct of the environmental review may not necessarily result in environmental approval, and environmental approval may be conditioned on the contracting parties' agreement to modifications to the unit design or to mitigation actions.
(iii) Commencement of construction in violation of paragraph (c)(3)(ii) of this section voids the purchase contract and renders homeownership assistance under 24 CFR part 982 unavailable for purchase of the unit.
5. Revise § 982.637(b) to read as follows:
(b)
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule with comment period.
This regulation clarifies that entities involved in the financing of the non-Federal share of Medicaid payments must be a unit of government; clarifies the documentation required to support a Medicaid certified public expenditure; limits Medicaid reimbursement for health care providers that are operated by units of government to an amount that does not exceed the health care provider's cost of providing services to Medicaid individuals; requires all health care providers to receive and retain the full amount of total computable payments for services furnished under the approved Medicaid State plan; and makes conforming changes to provisions governing the State Child Health Insurance Program (SCHIP) to make the same requirements applicable, with the exception of the cost limit on reimbursement.
The Medicaid cost limit provision of this regulation does not apply to: Stand-alone SCHIP program payments made to governmentally-operated health care providers; Indian Health Service (IHS) facilities and tribal 638 facilities that are paid at the all-inclusive IHS rate; Medicaid Managed Care Organizations (MCOs), Prepaid Inpatient Health Plans (PIHPs), and Prepaid Ambulatory Health Plans (PAHPs); Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs). Moreover, disproportionate share hospital (DSH) payments and payments authorized under Section 701(d) and Section 705 of the Benefits Improvement Protection Act of 2000 are not subject to the newly established Medicaid cost limit for governmentally-operated health care providers.
Except as noted above, all Medicaid payments and SCHIP payments made under the authority of the State plan and under waiver and demonstration authorities, as well as associated State Medicaid and SCHIP financing arrangements, are subject to all provisions of this regulation. Finally, this regulation solicits comments from the public on issues related to the definition of the Unit of Government.
In commenting, please refer to file code CMS-2258-FC. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
You may submit comments in one of three ways (no duplicates, please):
1.
2.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
4.
(Because access to the interior of the HHH Building is not readily available to persons without Federal Government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)
Comments mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.
For information on viewing public comments, see the beginning of the
Aaron Blight, (410) 786-9560.
Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951.
This
[If you choose to comment only on issues related to Unit of Government Definition (§ 433.50) in this section, please include the caption “Background” at the beginning of your comments.]
The Medicaid program is a cooperative Federal-State program established in 1965 for the purpose of providing Federal financial participation (FFP) to States that choose to reimburse certain costs of medical treatment for needy persons. It is authorized under title XIX of the Social Security Act (the Act), and is administered by each State in accordance with an approved Medicaid State plan. States have considerable flexibility in designing their programs, but must comply with Federal requirements specified in the Medicaid statute, regulations, and program guidance.
FFP is available under section 1903(a)(1) of the Act only when there is a corresponding State expenditure for a covered Medicaid service to a Medicaid recipient. Federal payment is based on statutorily-defined percentages of total computable State expenditures for medical assistance provided to recipients under the approved Medicaid State plan, and of State expenditures related to the cost of administering the Medicaid State plan. CMS has the responsibility to ensure that Medicaid payment and financing arrangements comply with statutory intent.
Sections 1902(a)(2), 1903(a) and 1905(b) of the Act require States to share in the cost of medical assistance and in the cost of administering the State plan. Under section 1905(b) of the Act, the Federal medical assistance percentage (FMAP) is defined as “100 per centum less the State percentage,” and section 1903(a) of the Act requires Federal reimbursement to the State of the FMAP of expenditures for medical assistance under the plan (and 50 percent of expenditures necessary for the proper and efficient administration of the plan). Section 1902(a)(2) of the Act and implementing regulations at 42 CFR 433.50(a)(1) require States to share in the cost of medical assistance expenditures but permit the State to delegate some responsibility for the non-Federal share of medical assistance expenditures to local sources under some circumstances.
Under Pub. L. 102-234, which inserted significant restrictions on States' use of provider related taxes and donations at section 1903(w) of the Act, the Congress made clear that participation by local sources was limited to: (1) Permissible taxes or donations and (2) intergovernmental transfers (IGTs) and certified public expenditures (CPEs) from units of government. Specifically, units of government were permitted to participate in the funding of the non-Federal share of Medicaid payments through an exemption from provider tax or donation restrictions at section 1903(w)(6)(A) of the Act that reads:
Notwithstanding the provisions of this subsection, the Secretary may not restrict States' use of funds where such funds are derived from State or local taxes (or funds appropriated to State university teaching hospitals) transferred from or certified by units of government within a State as the non-Federal share of expenditures under this title, regardless of whether the unit of government is also a health care provider, except as provided in section 1902(a)(2), unless the transferred funds are derived by the unit of government from donations or taxes that would not otherwise be recognized as the non-Federal share under this section.
Subsequent regulations implementing Pub. L. 102-234 give effect to this statutory language. Amendments made to the regulations at 42 CFR part 433, at 47 FR 55119 (November 24, 1992) explained:
Funds transferred from another unit of State or local government which are not restricted by the statute are not considered a provider-related donation or health care-related tax. Consequently, until the Secretary adopts regulations changing the treatment of intergovernmental transfer, States may continue to use, as the State share of medical assistance expenditures, transferred or certified funds derived from any governmental source (other than impermissible taxes or donations derived at various parts of the State government or at the local level).
The above statutory and regulatory authorities clearly specify that in order for an intergovernmental transfer (IGT) or certified public expenditure (CPE) from a health care provider or other entity to be exempt from analysis as a provider-related tax or donation, it must be from a unit of State or local government. Section 1903(w)(7)(G) of the Act identifies the four types of local entities that, in addition to the State, are considered a unit of government: A city, a county, a special purpose district, or other governmental units in the State. The provisions of this final regulation conform our regulations to the aforementioned statutory language and further define the characteristics of a unit of government for purposes of Medicaid financing.
In the January 18, 2007 proposed rule, we proposed to (1) clarify that only units of government are able to participate in the financing of the non-Federal share of Medicaid expenditures; (2) establish minimum requirements for documenting Medicaid cost when using a CPE; (3) limit health care providers operated by units of government to Medicaid reimbursement that does not exceed the cost of providing covered services to eligible Medicaid recipients; (4) explicitly require that all health care providers receive and retain the total computable amount of their Medicaid payments; and (5) make conforming changes to the SCHIP regulations to make the same requirements applicable, with the exception of the cost limit on reimbursement.
We proposed that the Medicaid cost limit provision of this regulation would apply to Medicaid payments to all governmentally-operated health care providers of Medicaid services, except Medicaid payments to governmentally-operated managed care organizations. We proposed that stand-alone SCHIP program payments made to governmentally-operated health care providers would not be subject to the Medicaid cost limit provision of this regulation. Except as noted above, we proposed that all Medicaid and SCHIP payments made to governmentally-operated providers under the authority of the State plan and under waiver and demonstration authorities would be subject to all provisions of the proposed regulation.
Specifically, under the proposed regulation, we provided the following changes to our existing regulations:
• We proposed to add new language to § 433.50 to define a unit of government to conform to the provisions of section 1903(w)(7)(G) of the Act.
• We proposed to amend the provisions of § 433.51 to conform the language to the provisions of sections 1903(w)(6)(A) and 1903(w)(7)(G) of the Act and to clarify that the State share of Medicaid expenditures may be contributed only by units of government.
• We proposed to include provisions requiring auditable documentation of CPEs that are used as part of the State share of claimed expenditures.
• We proposed that the Secretary would issue a form (or forms) that would be required for governments using a CPE for certain types of Medicaid services where we have found improper claims.
• We proposed to limit reimbursement for governmentally-operated health care providers to amounts consistent with economy and efficiency by establishing a limit of reimbursement not to exceed cost. The proposed Medicaid cost limit in § 447.206 specified that the Secretary will determine a reasonable method for identifying allowable Medicaid costs that incorporates not only OMB Circular A-87 cost principles but also Medicare cost principles, as appropriate, and the
• We proposed a new regulatory provision at § 447.207 requiring that all health care providers receive and retain the full amount of the total computable payment provided to them for services furnished under the approved State plan (or the approved provisions of a waiver or demonstration, if applicable).
• We proposed to eliminate § 447.271(b), as this provision would no longer be relevant due to the proposed Medicaid cost limit for units of government.
• We proposed a corresponding modification to the Medicaid upper payment limit (UPL) rules found at § 447.272 for inpatient hospital, nursing facility and intermediate care facilities for the mentally retarded (ICFs/MR) services and § 447.321 for outpatient hospital and clinic services, to incorporate by reference the proposed cost limit for providers operated by units of government and to make the defined UPL facility groups consistent with proposed § 433.50. We proposed that formerly established UPL transition periods remain unchanged.
• We proposed to make conforming changes to § 457.220 to mirror § 433.51.
• We proposed to make conforming changes to § 457.628 to incorporate § 433.50.
• We proposed incorporating proposed § 447.207 requiring retention of payments in § 457.628 because this provision applies to SCHIP payments as well as Medicaid payments.
• We developed a form questionnaire to collect information necessary to determine whether or not individual health care providers are units of government.
[If you choose to comment only on issues related to Unit of Government Definition (§ 433.50) in this section, please include the caption “
We received 422 items of timely public correspondence, containing over 1,000 public comments that raised over 260 individual issues, in response to the January 18, 2007 proposed rule (72 FR 2236 through 2248). The comments came from a variety of correspondents, including professional associations, national and State organizations, physicians, hospitals, advocacy groups, State Medicaid programs, State and local government agencies, and members of the Congress. The majority of commenters urged us to reconsider the proposed criteria for defining a unit of government for purposes of Medicaid State financing and Medicaid reimbursement. The majority of commenters also expressed concern with the administrative burden and cost of properly documenting services to Medicaid individuals. The following is a summary of the comments received and our response to those comments.
In this final rule, we are providing that States must apply the statutory and regulatory criteria to each individual health care provider to make initial determinations of governmental status. As we indicated in the proposed rule, we have developed a “Tool to Evaluate the Governmental Status of Health Care Providers.” In response to comments on this rule, we have modified that form to allow States to indicate their initial determination of a health care provider's governmental status.
We recognize that there is considerable variation in organizational arrangements and financial relationships between health care providers and units of government, and their treatment under State law. Therefore, application of the statutory and regulatory criteria to specific health care providers will require careful evaluation of the circumstances and applicable State law. We believe the statutory and regulatory criteria provide a consistent framework and yet have sufficient flexibility to accommodate these differences. We see this flexibility as essential to ensuring accurate and consistent determinations within each State.
Because we recognize that this is a complex determination that providers and States may rely upon, we agree that changes in the determination resulting either from a more careful evaluation, or from a change in circumstances, should be applied prospectively only (in the absence of fraud). Thus, to the extent that a State had previously applied the statutory and regulatory criteria to a health care provider's governmental status, in the absence of fraud, CMS intends to consider changes to that status on a prospective basis and does not intend to require retrospective changes in treatment of a provider.
States will be required to maintain these determinations on file and will be required to submit these forms to CMS upon request, in connection with CMS review of Medicaid institutional and non-institutional reimbursement State plan amendments involving governmental providers and with Medicaid or SCHIP financial management reviews. In addition, we intend to request, under our general authority to require supporting documentation for claimed expenditures, and the existing regulatory authority at 42 CFR § 431.16, that States submit a complete list of governmentally-operated health care providers to the Associate Regional Administrator for Medicaid of each State's respective CMS Regional Office with the first quarterly expenditure report due after 90 days of the effective date of the regulation.
If CMS disagrees with a State's initial determination of governmental status, CMS intends to request a timely change in the State's determination prior to pursuing any other measures including, but not limited to, denial of Medicaid reimbursement SPAs and/or disallowances of claims for Federal financial participation. States can appeal such actions through existing appeal processes.
A State's determination of governmental status must be applied in two ways, to ensure consistent treatment. First, a health care provider, determined by a State to be governmentally-operated, would be eligible to participate in financing the non-Federal share of Medicaid payments (that is, IGTs and CPEs). Second, Medicaid payments to a health care provider, determined by a State to be governmentally-operated, would be limited to the cost of providing services to Medicaid individuals. States must apply the statutory and regulatory criteria regarding governmental status consistently to each health care provider and the initial State determination of governmental status must be consistent. In other words, States cannot consider a health care provider to be governmentally-operated for purposes of participation in IGTs or CPEs, but consider the health care provider non-governmentally operated for purposes of the Medicaid cost limit.
CMS has responsibility to ensure that the determinations of governmental status made by States are consistent with the Federal statutory and regulatory criteria. To the extent that a State had previously applied the statutory and regulatory criteria to a health care provider's governmental status, absent fraud, CMS intends to consider changes to that status on a prospective basis and does not intend to require retroactive changes in treatment of the provider. If CMS disagrees with a State's initial determination of governmental status, CMS intends to request a timely change in the State's determination prior to pursuing other measures including, but not limited to, denial of Medicaid reimbursement SPAs and/or disallowances of claims for Federal financial participation. States can appeal such actions through existing appeal processes.
The provisions of the regulation were designed to ensure consistent application of the Federal statutory instructions regarding what constitutes a unit of government for purposes of Medicaid financing and payment. CMS recognizes that States play a major role in the administration of the Medicaid program and that legal and financial arrangements between health care providers and units of government vary on a case by case basis. Therefore, CMS has developed standardized and impartial regulatory criteria based upon the provisions of Federal statute that States must apply on a consistent basis to each health care provider within the State.
The reference to “any other public agency” in § 432.50 and the exemption from solvency standards for public entities are unaffected by this regulation. As part of this final regulation, the reference to public institutions that provide inpatient hospital services for free or at nominal charges has been deleted in light of the new upper payment limit structure. It is our understanding that virtually every health care provider has a customary charge structure used to bill patients who have sufficient resources and third
Another commenter suggested that the criteria at § 433.50(a)(1)(i) used to define a “unit of government” be modified as follows: “A unit of government is a State, a city, a county, a special district, a health authority, or other governmental unit in the State that has taxing authority, or is specifically established as a unit of government under the State's constitution.”
Finally, another commenter suggested a new subsection (C) to the proposed § 433.50(a)(1)(ii) to read: “(C) The health care provider, although it does not meet the requirements of subparagraphs (A) or (B), is able to demonstrate to CMS that the sources of its funding are of a nature that would permit a finding that it is a unit of government for purposes of this section.”
Moreover, we believe that it is essential to have a clear and uniform standard that can be consistently applied in every State and to every provider. Thus we do not see a justification to include open-ended language in the regulatory definition. We have, however, made clear in the final rule our intent to permit flexibility to accommodate entities that do not have independent taxing authority but have direct access to tax revenues. We discuss this further below.
In sum, our reading of the Medicaid statute is that the type of services provided by a health care provider, its reasonable expectation to receive direct government subsidies when at-risk for discontinuing operations, its specific establishment under State constitution, or its funding sources are not characteristics contemplated under the statute as representative of a unit of government that can participate in financing the non-federal share of Medicaid expenditures. The criteria we have set forth are based on our reading of the Medicaid statute, and are intended to permit flexibility to recognize different characterizations of arrangements that fall within a uniform, consistent framework.
With respect to the availability of federal financial participation, CMS is responsible to ensure that the
The Tenth Amendment to the U.S. Constitution does not accord any special privileges with respect to Medicaid funding, and the provisions of this regulation would not affect a State's ability to organize itself for other purposes.
Nevertheless, we have determined in response to comments to provide States with the primary role in identifying units of government using the criteria set forth under this regulation, as long as the identification is consistently applied. This responsibility falls within the overall duty to document claims for federal financial participation.
This rule also sets forth a consistent definition of entities that must be treated as governmentally-operated in determining the reasonableness of Medicaid payment rates. It does not “coerce” the State to take any action outside of the scope of the Medicaid program enacted under the Spending Clause. Nor do the provisions of this regulation affect rights of others outside of the operation of the Medicaid program.
Indeed, the provisions of the regulation were actually designed to protect health care providers. Non-governmentally operated health care providers, including many of the “public” safety net providers, are not affected by the cost limit provision of the regulation and therefore, may continue to receive Medicaid payments
Moreover, § 447.207 protects health care providers because it requires that health care providers be allowed to fully retain their Medicaid payments. This requirement assures that payments to providers are actual expenditures and are available to support the provision of services to Medicaid beneficiaries. These requirements demonstrate the Federal government's intent to protect the nation's public safety net providers and the ability of those providers to serve our nation's most vulnerable populations.
In other words, the provisions of the regulation were actually designed to protect health care providers, including the safety net providers. Under the provisions of the regulation, governmentally-operated health care providers are assured opportunity to receive full cost reimbursement for serving Medicaid individuals. Non-governmentally-operated health care providers, including many of the “public” safety net hospitals, are not affected by the Medicaid cost limit provision of the regulation and therefore, may continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements. Moreover, the final rule provides that payments to these health care providers cannot be diverted, but must be retained by the providers and available to support provider services.
For example, a provider that is truly independent of any governmental unit (for example, a former county hospital leased by a private corporation) would not be permitted to contribute the non-federal share of Medicaid expenditures. To the extent that such a provider had claims for covered services to Medicaid eligible individuals, a governmental
We believe the uniform regulatory definition of a unit of government in this final rule will guide States, localities and providers in arranging their relationships to comply with the Medicaid statute. At the same time, as discussed above, the uniform regulatory definition will protect the fiscal integrity of the program by ensuring that claims for federal financial participation are supported by actual non-federal expenditures that meet statutory requirements. And this rule will protect health care providers and ensure that Medicaid payments are available for covered care to eligible individuals.
One commenter observed that Local Education Agencies (LEAs) without taxing authority may be currently involved in certified public expenditures (CPEs) but may also be fiscally independent from county governments. The commenter is concerned that such a LEA would not qualify as a unit of government under the provisions of the regulation, eliminating existing CPE practices and placing school based services or school-based administrative claims at risk. Several commenters stated that the definition of “unit of government” would no longer permit many public health care providers that operate under public benefit corporations from helping States finance the non-Federal share of Medicaid funding.
Several commenters stated that the definition of “unit of government” would no longer permit many State universities from helping States finance the non-Federal share of Medicaid funding.
One commenter opined that under the regulation's definition of governmental providers, Regional Councils of Governments would not be eligible to provide matching funds for the non-Federal share of Medicaid payments. The commenter states that the Federal government created Councils of Governments to assist in the implementation of programs such as Medicaid, that State and local governments should have the prerogative of decision making with respect to operational responsibility for Medicaid, and that the unit of government definition compromises such arrangements at the State and local levels. One commenter made a suggestion that CMS modify the provisions of the regulation to recognize the public status of public community hospitals organized and operated in the State of Mississippi under Miss. Code Ann §§ 41-13-10, et seq. (1972 and supplements) and include these hospitals under the unit of government definition.
A number of commenters wrote concerning the impact the regulation's definition of unit of government may have on “public entity” (PE) community health centers (CHCs), which may current certify public expenditures within a State. PE model CHCs are created by units of government but generally do not have taxing authority. However, they must adhere to governance rules established by the Health Resources and Services Administration (HRSA) that mandate a Board of Directors comprised of at least 51 percent users of the CHC. Each of the PE models has a slight variation in governance structure. The commenters are concerned that some of these PE model CHCs would not be recognized under the provisions of the regulation as a unit of government and would therefore lose the federal funding based on expenditures they are currently certifying via the CPE process.
One commenter wanted to know whether or not a State's regional school districts, charter schools, and municipal school districts would qualify as units of government under the provisions of the regulation.
As discussed previously, some of the commenters appear to be confusing public mission with governmental status. Neither section 1903(w)(6)(A) nor section 1903(w)(7)(G) of the Act refer to a public mission; instead these sections refer to specific governmental entities, governmental status, and the use of State and local tax revenues. Moreover, while a provider determined to be non-governmental cannot participate in financing the non-federal share of Medicaid expenditures, units of government that fund covered services to Medicaid eligible individuals at the provider can certify a public expenditure (at rates under the approved State plan) to support a claim for federal financial participation.
We have modified the regulation at § 433.50 to address concerns regarding taxing authority as a requirement for an entity to be considered a unit of government. The regulation has been revised to indicate that a unit of government must have either taxing authority or direct access to tax revenues. We have added the phrase “has direct access to tax revenues” to recognize as governmental those entities that do not have taxing authority, and may not have immediate needs for tax support, but do have direct access to tax revenues of a related unit of government because of the direct responsibility of that unit of government for the provider.
The provision of the regulation regarding certified public expenditures is a clarification to existing Federal statutory instruction at section 1903(w)(6)(A) of the Act. Consistent with this explicit statutory instruction, a certified public expenditure (CPE) means that State or local tax dollars were used to satisfy the cost of serving Medicaid individuals (and the cost of providing inpatient and outpatient hospital services to the uninsured for purposes of Medicaid DSH payments).
Under the provisions of the regulation, all health care providers maintain some level of ability to participate in the CPE process. Governmentally-operated health care providers are able to certify their costs without having to demonstrate that State or local tax dollars were used to provide Medicaid services. This policy is based on the fact that governmentally-operated health care providers always have the ability to access State and/or local tax dollars as an integral component of State or local government. Governmentally-operated health care providers need only produce cost documentation via national, standardized cost reporting to receive Federal matching funds as a percentage of such allowable Medicaid (and DSH) costs.
Non-governmentally-operated health care providers may also produce cost documentation to support the costs of providing services to Medicaid individuals (and certain uninsured costs for purposes of Medicaid DSH payments). However, in order to maintain consistency with the Federal statutory instruction governing CPEs, a State or local government must actually certify that tax dollars were provided to the non-governmentally-operated health care provider. Federal matching funds can be available, to the extent consistent with the approved State plan, for allowable Medicaid costs incurred by the non-governmentally-operated health care provider that are funded with such State and/or local tax support.
Further, they argued that the fact that an enterprise is organized in corporate form is not inconsistent with its being a public entity. The commenters cited examples of federal public entities that operate in corporate form, including the Federal Deposit Insurance Corporation, the Tennessee Valley Authority, and the Communications Satellite Corporation.
Similarly, multiple commenters observed that frequently, State laws creating hospital districts allow the hospital to operate as a 501(c)(3) nonprofit corporation, while the authorizing legislation vests the hospital with governmental status. The commenters assert that hospitals operated under these hospital district laws have, until this rulemaking, been viewed as public hospitals.
Many other commenters stated that nonprofit corporations have many attributes of public entities and should therefore be allowed to qualify for purposes of financing the non-Federal share of Medicaid. The commenters remarked that not for profit corporations are required to serve a “public interest,” 26 CFR. § 1.501(c)(3)-l(d)(1)(ii). They note that unlike for-profit corporations, there are no shareholders, and no private persons can have any ownership interest in the nonprofit corporation. Nonprofit corporations can have “members” (though this is not required), but members have no ownership interest in the assets or business of the nonprofit corporation. Further, the commenters observe that when a nonprofit corporation terminates its operations, its assets must (depending on the applicable State law) be contributed either to another nonprofit or to the federal, State, or local government for a public purpose. In other words, once assets are committed to a benevolent purpose being carded out through a nonprofit corporation, those assets must remain available for a benevolent purpose. The commenters also point out that localities or hospital districts frequently choose to organize a hospital as a 501(c)(3) organization in order to ensure that the hospital will be able to accept private charitable donations, which would be permitted under Section 1903(w) of the Act. These commenters essentially argue that the public-oriented nature of non-profit corporations should be sufficient to allow such corporations to be considered tantamount to units of government for purposes of Medicaid financing.
Medicaid is a shared responsibility between Federal and State government. State governments may share their fiscal obligation to the Medicaid program with local governments according to the instruction of Congress. Under Public Law 102-234, the Congress made clear that States may allow governmentally-operated health care providers to participate in a State's fiscal obligation to the Medicaid program through the use of intergovernmental transfers and certified public expenditures. However, the Congress was also clear that States may not receive funds from non-governmentally-operated health care providers for purposes of financing Medicaid payments.
This final rule will assist States in identifying the universe of governmentally-operated health care providers that could receive Medicaid revenues up to the full cost of providing services to Medicaid individuals and clarifies which types of health care providers can participate in financing of the non-Federal share of Medicaid payments.
As important, the purpose of the provider tax and donation restrictions in general was to prevent situations in which the health care provider contributed a non-federal share of claimed expenditures but was
As discussed previously, we read the statutory definition of governmental entities to require certain common qualities, such as taxing authority, or the ability to directly access tax funding. Moreover, we believe this requirement is consistent with the overall statutory rationale. The governmental exception from provider tax and donation restrictions at section 1903(w)(6)(A) of the Act is limited to the “use of funds where such funds are derived from State or local taxes” (with a special provision for State university teach hospitals that receive appropriated funds which we discuss in the following response). We read the exception to be intended to permit wide flexibility in the use of tax funds, whether State or local. The limitation of this exception to the use of tax funds supports our interpretation that the reference to “units of government” was intended only to include entities with access to such tax funds.
Under Public Law 102-234, Congress included an exception to a general prohibition on the receipt of voluntary contributions from health care providers by allowing units of government, including governmentally-operated health care providers, to participate in the intergovernmental transfer and certified public expenditure process. Specifically, section 1903(w)(6)(A) of the Social Security Act states:
Notwithstanding the provisions of this subsection, the Secretary may not restrict States' use of funds where such funds are derived from State or local taxes (or funds appropriated to State university teaching hospitals) transferred from or certified by units of government within a State as the non-Federal share of expenditures under this title, regardless of whether the unit of government is also a health care provider, except as provided in section 1902(a)(2), unless the transferred funds are derived by the unit of government from donations or taxes that would not otherwise be recognized as the no-Federal share under this section.
This statutory language is very clear in its direction regarding eligibility to participate in financing the non-federal share of Medicaid payments. There is nothing in the Medicaid statute that would indicate non-governmental units could help a State finance its share of Medicaid payments, particularly in light of the significant statutory penalties States face for receiving provider-related donations as the non-Federal share of Medicaid payments (that is, non-bona fide provider-related donations).
For example, when a tax is imposed and collected by a State but is dedicated for use by a municipality or other entity, that entity would satisfy the criteria of direct access to tax revenues. Similarly, a county-operated hospital that is recognized in the county's budget to receive local tax subsidies via the county appropriation process, and without the need to contract for such tax revenues, would satisfy the criteria of direct access to tax revenues.
We disagree that this definition removes flexibility to finance Medicaid programs with state or local tax funds. The accounting treatment for such financing, however, may need to change to ensure program integrity consistent with the requirements of the new regulatory definition. This definition means that, for permissible financing arrangements, the entity that has taxing authority or direct access to tax funds must be the entity that either transfers the funds to the control of the State Medicaid agency, or that certifies expenditures eligible for FFP. For example, if a hospital district does not have taxing authority or direct access to tax revenues, it would not meet the requirements as a unit of government. To the extent that a county government, which had taxing authority or direct access to tax revenues, was funding Medicaid services through payments to the hospital district, however, the county could use that funding to make intergovernmental transfers, or could (with supporting documentation from the hospital) certify public expenditures based on that funding.
As important, the purpose of the provider tax and donation restrictions in general was to prevent situations in which the State claimed that the health care provider contributed a non-federal share of claimed expenditures but the health care provider may have been actually discounting its rate or repaid through Medicaid or other payments. The provision at section 1903(w)(6)(A) of the Act was based on the rationale that this concern does not arise when the health care provider is a governmental entity using state or local tax funding for its contribution. To give that full effect, the health care provider needs to have either taxing authority or direct access to tax funding.
As discussed previously, we read the statutory definition of governmental entities to require certain common qualities, such as taxing authority, or the ability to directly access tax funding. Moreover, we believe this requirement is consistent with the overall statutory rationale. The governmental exception from provider tax and donation restrictions at section 1903(w)(6)(A) of the Act is limited to the “use of funds where such funds are derived from State or local taxes.” We read the exception to be intended to permit wide flexibility in the use of tax funds, whether State or local. The limitation of this exception to the use of tax funds supports our interpretation that the reference to “units of government” was intended only to include entities with access to such tax funds.
Other commenters recommended that CMS clarify that it will not view the transfer of taxpayer funding for a specific health care provider as an indirect provider donation and allow those appropriations to be considered IGTs. The commenters pointed to language in the preamble that stipulates that “health care providers that forego tax revenue that has been contractually obligated for the provision of health care services to the indigent * * * are making provider-related donations.” A commenter also questioned whether the following situation with respect to appropriated funds would be considered an indirect provider donation or an eligible IGT: a county that is statutorily required to provide a fixed appropriation to a private hospital, and the statute expressly allows that appropriation to be used as IGT. The commenter provided another scenario and questioned if this would quality as an appropriate IGT: a formerly public hospital received a State appropriation, which it currently uses as an IGT.
Such funds could not be used to contribute the non-Federal share of Medicaid expenditures because they are derived from the operations of the health care provider, rather than from State or local tax revenues. We recognize that funds received for specific costs, such as capital improvements or employee costs, may in part fund the costs of Medicaid services. These funds could be used to fund the non-Federal share to the extent that those specific costs may be properly allocated to Medicaid services, in accordance with the governmentally-operated health care provider's approved cost allocation plan. We also recognize that funds from different sources can be commingled in health care provider accounts. As a result, in this regulation we are not requiring that governmentally-operated health care providers trace funding precisely. We are requiring that, to qualify as a unit of government, the entity must have taxing authority or direct access to State or local tax funds in at least the amount of the IGT or CPE; and we are requiring that a health care provider retain the full amount of the total computable payment claimed by the State under the Medicaid State plan.
States must apply the statutory and regulatory criteria to each individual health care provider to make initial determinations of governmental status. We have modified the “Tool to Evaluate the Governmental Status of Health Care Providers” to allow States to indicate their initial determination of a health care provider's governmental status.
States will be required to maintain these determinations on file and will be required to submit these forms to CMS upon request, in connection with CMS review of Medicaid institutional and non-institutional reimbursement State plan amendments involving governmental providers and with Medicaid or SCHIP financial management reviews. In addition, we intend to request, under our general authority to require supporting documentation for claimed expenditures, and the existing regulatory authority at 42 CFR § 431.16, that States submit a complete list of governmentally-operated health care providers to the Associate Regional Administrator for Medicaid of each State's respective CMS Regional Office with the first quarterly expenditure report due after 90 days of the effective date of the regulation.
CMS is not requiring States to complete the “Tool to Evaluate the Governmental Status of Health care Providers” form for each Indian tribe and tribal organization within the State, because the unique criteria for determining the governmental status of tribes and tribal organizations makes the tool inapplicable to these entities. However, CMS will require each State to identify the qualifying tribes and tribal organizations (per the criteria at § 433.50) in any list of governmentally-operated health care providers submitted to CMS. Although tribal facilities are exempt from the Medicaid cost limit, the inclusion of tribes and tribal organizations in this list will comprehensively identify the universe of entities that have been determined by the State as eligible to participate in financing the non-Federal share of Medicaid payments.
CMS does not believe the information required in the form requires the extensive, legal research and analysis as the commenters suggest. CMS has the responsibility to ensure that the State's initial determinations are consistent with the Federal statutory and regulatory criteria and reserves the right to take any appropriate action including, but not limited to denial of Medicaid reimbursement State plan amendments and/or disallowances of claims for Federal financial participation, in the event of noncompliance with any provision of this regulation. States can appeal such actions through existing appeals processes.
We considered the possibility of deferring to State determinations but we concluded that it was important for effective oversight review to receive standardized information and establish a clear, uniform and enforceable standard.
We believe the form will be useful to States which will have to apply the statutory and regulatory criteria to each individual health care provider to make initial determinations of governmental status. CMS has the responsibility to ensure that the State's initial determinations are consistent with the Federal statutory and regulatory criteria and reserves the right to take any appropriate action including, but not limited to, denial of Medicaid reimbursement State plan amendments and/or disallowances of claims for Federal financial participation, in the event of noncompliance with any provision of this regulation.
We have modified the form to allow States to indicate their initial determination of a health care provider's governmental status. We understand that there will be challenges in implementing the determination process. As States apply the statutory and regulatory criteria, CMS will exercise oversight review and will issue guidance on the implementation of the
We understand that there will be challenges in implementing the determination process. As States apply the statutory and regulatory criteria, CMS will exercise oversight review and will issue guidance on the implementation of the statutory and regulatory criteria if warranted.
CMS has the responsibility to ensure that the initial determinations are consistent with the Federal statutory and regulatory criteria and reserves the right to take any appropriate action including, but not limited to, denial of Medicaid reimbursement State plan amendments and/or disallowances of claims for Federal financial participation, in the event of noncompliance with any provision of this regulation.
States will be required to maintain these determinations on file and will be required to submit these forms to CMS upon request, in connection with CMS review of Medicaid institutional and non-institutional reimbursement State plan amendments involving governmental providers and with Medicaid or SCHIP financial management reviews.
Notwithstanding the provisions of this subsection, the Secretary may not restrict States' use of funds where such funds are derived from State or local taxes (or funds appropriated to State university teaching hospitals) transferred from or certified by units of government within a State as the non-Federal share of expenditures under this title, regardless of whether the unit of government is also a health care provider, except as provided in section 1902(a)(2), unless the transferred funds are derived by the unit of government from donations or taxes that would not otherwise be recognized as the no-Federal share under this section.
Governmentally-operated health care providers may maintain accounts separate from the general fund to finance the operations of the governmentally-operated health care provider. The governmentally-operated health care provider's account may include patient care revenues from other third party payers and other revenues similar to those listed above. Such revenues would also be acceptable sources of financing the non-Federal share of Medicaid payments, as long as the governmentally-operated health care provider's operating account does not derive any of its revenue from impermissible sources (such as, “recycled” Medicaid payments, Federal grants precluded from use as State match, impermissible taxes, non-bona fide provider-related donations).
As previously explained, governmentally-operated health care providers are not required to demonstrate that funds transferred are, in fact, tax revenues. A governmentally-operated health care provider is always able to access tax revenue, a characteristic of which reflects a health care provider's governmental status, and helps to define eligibility to participate in IGTs.
A health care provider that is not recognized as governmentally-operated under the Federal statutory and regulatory criteria would not be affected by the cost limitation on Medicaid payments. Therefore, such health care providers may receive Medicaid payments up to the applicable regulatory upper payment limit, to the extent States use permissible sources of non-federal share funding to make such payments. Furthermore, a health care provider that is not recognized as governmentally-operated by a State when applying the statutory criteria would not be subjected to non-federal share obligations under a State's Medicaid program. For any health care provider previously obligated to fund certain Medicaid payments, total Medicaid revenues to that facility can be sustained through alternative permissible sources of non-federal share funding. Health care providers determined to be ineligible to participate in the State financing of Medicaid payments can actually realize greater net Medicaid revenues if State or local government funding sources are utilized to fund non-federal share obligations to Medicaid payments that may have been historically financed by non-governmentally-operated health care providers.
Funds may be transferred by units of government that are not health care providers to the State Medicaid agency either before or after the payment to the provider is made, provided that the requirements of § 447.207 are satisfied. A principal concern in evaluating compliance with § 447.207 will be the determination as to whether or not the funding obligation to the non-Federal share of Medicaid payments has been fully satisfied by the State or local government. IGTs from a local or other State Agency unit of government's general fund may be considered a permissible source of the non-Federal share of Medicaid payments when: (1) Monies from the general fund are transferred to the State Medicaid agency; (2) such monies are used to fund the non-Federal share of Medicaid payments to the governmentally-operated health care provider; (3) the health care provider deposits such Medicaid payments into its operating account (a governmentally-operated health care provider will always maintain an operating account that is separate from the general fund managed by the corresponding unit of
Governmentally-operated health care providers may
The provision of the regulation regarding certified public expenditures is a clarification to existing Federal statutory instruction at 1903(w)(6)(A). Consistent with this explicit statutory instruction, a certified public expenditure means that State or local tax dollars were used to satisfy the cost of serving Medicaid individuals (and the cost of providing inpatient and outpatient hospital services to the uninsured for purposes of Medicaid DSH payments).
Under the provisions of the regulation, all health care providers maintain some level of ability to participate in the certified public expenditure (CPE) process. Governmentally-operated health care providers are able to certify their costs without having to demonstrate that State or local tax dollars were used to provide Medicaid services. This policy is based on the fact that governmentally-operated health care providers always have the ability to directly access State and/or local tax dollars as an integral component of State or local government. Governmentally-operated health care providers need only produce cost documentation via national, standardized cost reporting to receive Federal matching funds as a percentage of such allowable Medicaid (and DSH) costs.
Non-governmentally-operated health care providers may also produce cost documentation to support the costs of providing services to Medicaid individuals (and certain uninsured costs for purposes of Medicaid DSH payments). However, in order to maintain consistency with the Federal statutory instruction governing CPEs, a State or local government must actually certify that tax dollars were provided to the non-governmentally-operated health care provider. Federal matching funds will be available as a percentage of the allowable Medicaid costs incurred by the non-governmentally-operated health care provider up to the level of such State and/or local tax support.
The options available to a unit of government for purposes of compliance with the CPE provisions of the regulation depend on whether or not the unit of government is the provider of the service. A governmental entity that is not a health care provider and that pays for a covered Medicaid service furnished by a health care provider (whether governmentally-operated or not) can certify its actual expenditure in an amount equal to the Medicaid State plan rate (or the approved provisions of a waiver or demonstration, if applicable) for the service. In this case, the CPE would represent the expenditure by the governmental unit to the service provider on behalf of the State Medicaid agency(and would not necessarily be related to the actual cost to the health care provider for providing the service).
If the unit of government is the health care provider, then it may generate a CPE from its own costs if the Medicaid State plan (or the approved provisions of a waiver or demonstration, if applicable) contains cost reimbursement methodology. If this is the case, the governmentally-operated health care provider may certify the costs that it actually incurred that would be reimbursed under the Medicaid State plan. If the Medicaid State plan does not contain an actual cost reimbursement methodology, then the governmentally-operated health care provider may not use a CPE because it would not be able to establish an expenditure under the authority of the Medicaid State plan. This is consistent with the requirements of 45 CFR 95.13, where there was no cost incurred that would be recognized under the Medicaid State plan. A governmentally-operated health care provider cannot establish an expenditure under the Medicaid State
Further, we found that in many instances State Medicaid agencies do not currently review the CPE submitted by another unit of government to confirm that the CPE properly reflects the actual expenditure by the unit of government for providing Medicaid services or performing administrative activities. These circumstances do not serve to advance or promote the fiscal integrity of the Medicaid program. By establishing minimum standards for the documentation supporting CPEs, we anticipate that the provisions of this regulation would serve to enhance the fiscal integrity of CPE practices within the Medicaid program.
The provision of the regulation regarding certified public expenditures is also a clarification to existing Federal statutory instruction at 1903(w)(6)(A). Consistent with this explicit statutory instruction, a certified public expenditure means that State or local tax dollars were used to satisfy the cost of serving Medicaid individuals (and the cost of providing inpatient and outpatient hospital services to the uninsured for purposes of Medicaid DSH payments). It is not clear what method other than identification of the cost of providing services to Medicaid individuals (and certain uninsured costs for purposes of Medicaid DSH payments) would be appropriate to make Federal matching funds available for purposes of health care providers certifying public expenditures.
The cost documentation process is necessary to demonstrate the services that have been provided to Medicaid individuals. The burden associated with cost reporting for hospitals and nursing facilities should be minimal because nationally recognized cost reports are already utilized by these health care providers. For non-hospital and non-nursing facility services in Medicaid, we note that a nationally recognized, standard cost report does not exist. Because of this, we are publishing a standardized cost reporting form that can be used to document the costs of providing non-institutional services to Medicaid individuals. The purpose of this standardized form is to minimize the burden associated with the review of expenditures for non-institutional services provided to Medicaid individuals.
CMS has developed a general Medicaid Cost Reporting Protocol available on the CMS Web site at
A governmental entity that is not a health care provider which pays for a covered Medicaid service furnished by a health care provider (whether governmentally-operated or not) can certify its actual expenditure, in an amount equal to the Medicaid State plan rate (or the approved provisions of a waiver or demonstration, if applicable) for the service. In this case, the CPE would represent the expenditure by the governmental unit to the service provider (and would not necessarily be related to the actual cost to the health care provider for providing the service) on behalf of the State Medicaid agency. The governmental entity that is not a health care provider must submit a certification statement to the State Medicaid agency attesting that the total computable amount of its claimed expenditures are eligible for FFP, in accordance with the Medicaid State plan and the revised provisions of § 433.51. That certification must be submitted and used as the basis for a State claim for FFP within 2 years from the date of the expenditure.
The statement within the preamble of the regulation was included to ensure compliance with section 1132(a)(2) of the Act and 45 CFR 95.7 which require that any claim by a State for payment with respect to an expenditure made be filed within the 2 year period.
CMS has developed a general Medicaid Cost Reporting Protocol available on the CMS website that specifically addresses methods under which institutional and non-institutional Medicaid costs will be determined for purposes of CPEs.
For hospital and nursing facility services, nationally recognized cost reports are already available and are already audited by the Medicare fiscal intermediary. Therefore, the State's burden to review these cost reports should be minimal. For non-hospital and non-nursing facility services in Medicaid, we note that a nationally recognized, standard cost report does not exist. Because of this, we are publishing a standardized cost reporting form that can be used to document the costs of providing non-institutional services to Medicaid individuals. The purpose of this standardized form is to minimize the burden associated with the review of expenditures for non-institutional services.
CMS has developed a general Medicaid Cost Reporting Protocol available on the CMS website that specifically addresses the methods under which institutional and non-institutional costs will be determined for purposes of CPEs.
CMS has developed a general Medicaid Cost Reporting Protocol available on the CMS website that specifically addresses the methods under which institutional and non-institutional costs will be determined for purposes of CPEs.
Under the provisions of this regulation, the UPL for governmentally-operated health care providers is Medicaid cost. Any revenues received by a governmentally-operated health care provider under the authority of the Medicaid State plan must be offset prior to determining if any uncompensated Medicaid costs exist that would be eligible under the CPE funding source.
The second part of the question raises the possibility of a State university certifying the expenditures for the portion of a faculty physician's salary associated with the delivery of clinical services to Medicaid individuals. CMS notes that the relationships between a faculty physician's clinical practice and the State university vary on a case by case basis. For example, some State universities require faculty physicians to provide clinical services in private faculty practice groups, while other State universities consider faculty physicians employees of the university when providing clinical care. In light of these arrangements, the response to the second part of this question can only be answered based on whether or not the State university is considered a unit of government (State university teaching hospitals are recognized as units of government in the statute and regulation) and whether or not the faculty physician is actually considered an integral part of that unit of government when delivering clinical care. If the State university is a unit of government and is the health care provider of the physician services, then the State university teaching hospital may generate a CPE from its own costs if the Medicaid State plan (or the approved provisions of a waiver or demonstration, if applicable) contains an actual cost reimbursement methodology. If this is the case, the State university may certify the costs that it actually incurred that would be paid under the Medicaid State plan. If the State plan does not contain an actual cost reimbursement methodology, then the State university may not use a CPE because it would not be able to establish an expenditure under the plan, consistent with the requirements of 45 CFR 95.13.
Moreover, as defined at 45 CFR 95.13(b), a Medicaid expenditure occurs when any State agency makes a payment to the service provider. Pursuant to § 433.10(a), the expenditure must be a total computable payment, including both Federal and State share, which forms the basis of the claim to draw down the corresponding FFP in accordance with the Federal Medical Assistance Percentage (FMAP) rate. These provisions clearly demonstrate that a unit of government cannot merely submit claims that would be considered somehow equivalent to certified public expenditures in order for the State to receive Federal matching funds.
The options available to a unit of government for purposes of compliance with the CPE provisions of the regulation depend on whether or not the unit of government is the provider of the service. A governmental entity that is not a health care provider and that pays for a covered Medicaid service furnished by a health care provider (whether governmentally-operated or not) can certify its actual expenditure in an amount equal to the Medicaid State plan rate (or the approved provisions of a waiver or demonstration, if applicable) for the service. In this case, the CPE would represent the expenditure by the governmental unit to the service provider on behalf of the State Medicaid agency (and would not necessarily be related to the actual cost to the health care provider for providing the service).
If the unit of government is the health care provider, then it may generate a CPE from its own costs if the Medicaid State plan (or the approved provisions of a waiver or demonstration, if applicable) contains a cost reimbursement methodology. If this is the case, the governmentally-operated health care provider may certify the costs that it actually incurred that would be reimbursed under the Medicaid State plan. If the Medicaid State plan does not contain an actual cost reimbursement methodology, then the governmentally-operated health care provider may not use a CPE because it would not be able to establish an expenditure under the authority of the Medicaid State plan. This is consistent with the requirements of 45 CFR 95.13, where there was no cost incurred that would be recognized under the Medicaid State plan. A governmentally-operated health care provider cannot establish an expenditure under the Medicaid State plan by asserting that it would pay itself the Medicaid State plan rate.
The options available to a unit of government for purposes of compliance with the CPE provisions of the regulation depend on whether or not the unit of government is the provider of the service. A governmental entity that is not a health care provider and that pays for a covered Medicaid service furnished by a health care provider (whether governmentally-operated or not) can certify its actual expenditure in an amount equal to the Medicaid State plan rate (or the approved provisions of a waiver or demonstration, if applicable) for the service. In this case, the CPE would represent the expenditure by the governmental unit to the service provider on behalf of the State Medicaid agency (and would not necessarily be related to the actual cost to the health care provider for providing the service).
If the unit of government is the health care provider, then it may generate a CPE from its own costs if the Medicaid State plan (or the approved provisions of a waiver or demonstration, if applicable) contains a cost reimbursement methodology. If this is the case, the governmentally-operated health care provider may certify the costs that it actually incurred that would be reimbursed under the Medicaid State plan. If the Medicaid State plan does not contain an actual cost reimbursement methodology, then the governmentally-operated health care provider may not use a CPE because it would not be able to establish an expenditure under the authority of the Medicaid State plan. This is consistent with the requirements of 45 CFR 95.13, where there was no cost incurred that would be recognized under the Medicaid State plan. A governmentally-operated health care provider cannot establish an expenditure under the Medicaid State plan by asserting that it would pay itself the Medicaid State plan rate.
Several commenters noted that the current Administration has repeatedly asked Congress to impose a cost limit on payments to public health care providers and Congress has refused to legislate this action. The commenters believe that because the Administration's request and the Congress' refusal to legislate only highlight the lack of authority for the proposed cost limit. Other commenters specified that State Medicaid programs feature a variety of targeted supplemental payments that enable States to tailor their Medicaid programs to meet the unique needs of their population. Eliminating the aggregate nature of the UPL restricts States' flexibility to address local needs through reimbursement policies and runs counter to the Administration's commitment and Congress' efforts to enhance State flexibility in managing their Medicaid program. Other commenters mentioned that the proposed cost limit is contrary to section 1902(a)(13) of the Act, which has always been interpreted to support rate setting flexibility on the part of States. One commenter questioned why CMS wants to limit States' flexibility in distributing supplemental payments.
Moreover, a provider-specific cost limit does not restrict State flexibility to use flexible rate systems for governmentally-operated health care providers that might, for example, encourage certain types of care or include performance incentives. All such a limit does is ensure that any such flexible rate system not result in payment in excess of actual documented costs. Such a limit is not designed to restrict the ability of the State to address local needs, since States may provide for payment of the full cost of Medicaid services.
Several other commenters cited specific Departmental Appeals Board (DAB) decisions that reviewed CMS’ authority to hold government health care providers to a different standard than applied to private health care providers, or to limit government health care providers to actual-cost reimbursement. The commenters cited one DAB decision (Ill. Dept. of Pub. Aid, DAB No. 467 (1983)) that stated “cost principles [do] not impose an actual cost ceiling on claims for reimbursement for medical assistance provided by state-owned [facilities],” and that a State does not impermissibly profit where its claim for FFP is based on the cost it incurs in reimbursing facilities according to a prospective class rate.
By requiring that Medicaid payments align with Medicaid costs, we are ensuring that governmentally-operated providers use resources available through Medicaid payment rates to serve the Medicaid individuals. In other words, because anticipated Medicaid payments are an element in setting budgets, we anticipate that limiting matchable Medicaid revenues to Medicaid costs will result in the expansion of resources available to serve Medicaid individuals. With respect to the comment regarding the use of prospective rate systems, several OIG audits have found that such prospective systems have not resulted in accurate determinations of uncompensated care costs related to the disproportionate share hospital hospital-specific limits. Thus, we have elected not to provide any special rule for prospective payment systems in the new upper payment provisions.
The cited Departmental Appeals Board cases were decided under a different regulatory framework and do not limit our authority to issue new regulations to address the issue of governmentally-operated health care providers. Moreover, as States have evolved specialized payment systems to address the needs of governmentally-operated health care providers, it has become necessary to ensure the reasonableness of such payment systems using a specialized upper payment limit measure.
In other words, governmentally-operated health care providers that need additional Medicaid funds to serve their Medicaid individuals will continue to have access to those funds. By requiring that Medicaid payments align with Medicaid costs, we are ensuring that governmentally-operated health providers use resources available through Medicaid payment rates to serve Medicaid individuals. It is true that the provider-specific payment limits would prevent health care providers from diverting Medicaid funds for other purposes since, in that circumstance, Medicaid payments would not align with Medicaid costs. Thus, the provider-specific limits protect Medicaid individuals by ensuring that Medicaid resources are available for their care. We anticipate that, because Medicaid revenues are an element in setting budgets, the provider-specific limit will actually result in the expansion of resources available to serve Medicaid individuals.
The new upper payment limit for governmentally-operated health care providers will more accurately ensure efficient and effective payment levels for the full cost of Medicaid services, and will ensure that higher Medicaid payments result in improved quality of care for Medicaid individuals. Governmentally-operated health care providers would be able to receive full payment for Medicaid costs, and those with particularly high costs to provide Medicaid services would be able to receive Medicaid payments to support those costs. The provider-specific payment limits would limit health care providers from diverting excess Medicaid funds for other purposes since, in that circumstance, Medicaid payments would not align with Medicaid costs. In doing so, the provider-specific limits protect Medicaid individuals by ensuring that Medicaid resources are available for their care. We anticipate that, because Medicaid revenues are an element in setting budgets, the provider-specific limit will actually result in the expansion of resources available to serve Medicaid individuals.
We also disagree with the premise that the new upper payment limit will jeopardize access to Medicaid services. Payment to government providers may cover the full cost of Medicaid services. Indeed, the new limit will ensure that Medicaid revenues are used to support Medicaid services and are not diverted for other purposes.
Under the new upper payment limit, States may continue to make increased Medicaid payments for particular governmentally-operated health care providers that have higher cost structures because of high low-income patient loads and decreased payment levels for other governmentally-operated health care providers with lower cost structures because they serve fewer low-income patient loads. These payments may provide full payment for the costs of serving Medicaid individuals. Governmentally-operated health care providers not receiving Medicaid payments in excess of costs would not be adversely impacted by the cost limit and would actually be eligible to receive greater Medicaid revenues up to the cost limit.
We recognize that some States have made excessive payments in an attempt to address burdens providers may face in furnishing non-Medicaid uncompensated care. While that goal is laudable, Medicaid funding is limited to authorized purposes. In general, those purposes are limited under section 1905(a) of the Act to covering costs of covered services for eligible individuals. The Medicaid statute expressly permits States to make disproportionate share hospital payments up to specified limits, which can address certain non-Medicaid costs. If Congress had wished to provide other mechanisms to address non-Medicaid costs, it could have done so.
Non-governmentally-operated health care providers, including many of the “public” safety net health care providers, are not affected by the cost limit provision of the regulation and may therefore continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements.
States with remaining UPL transition periods will be permitted to make their UPL transition payments to health care providers as they deem appropriate. Such UPL transition payments, payment levels of which have been previously determined, should not be factored into a specific health care provider's cost limit to demonstrate compliance with the new provisions at § 447.206. We have modified the regulation at §§ 447.272(c)(3) and 447.321(c)(3) to recognize that such transition payments, as expressly authorized by section 705 of BIPA, are not subject to the Medicaid cost limit.
In addition, the proposed regulation does not require States to abandon existing DRG based payment systems or any other existing Medicaid reimbursement rate methodologies currently utilized to pay governmentally-operated health care providers. Under the Medicaid cost limit, States may continue to use existing Medicaid reimbursement rate methodologies, but will need to compare such rates to the actual cost of providing services to Medicaid individuals and make reconciling adjustments in the event of overpayments to a particular governmentally-operated health care provider. States may find such cost reconciliations to be useful inasmuch as they will permit States to better analyze the reasonableness of their Medicaid reimbursement rates.
The Medicaid program is jointly funded by Federal, State, and local governments. We do not find it appropriate that units of State or local government would “profit” from Federal taxpayer dollars that are intended to match a percentage of the cost of providing services to Medicaid individuals.
Non-governmentally-operated health care providers, including many of the “public” safety net health care providers, are not affected by the cost limit provision of the regulation and may therefore continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements. It is unclear how a limit that does not apply to non-governmentally-operated health care providers would reduce services or limit access to Medicaid individuals or to the uninsured.
The Medicaid cost limit provision is consistent with the statutory establishment of the hospital specific DSH limit, enacted under the Omnibus Budget Reconciliation Act of 1993 (OBRA ‘93). DSH payments are limited to each qualifying hospital's uncompensated care costs of providing inpatient and outpatient hospital services to Medicaid individuals and to individuals with no source of third party coverage for the inpatient and outpatient hospital services they received. Under the Medicare Modernization Act of 2005 (MMA), Congress enacted DSH audit and reporting requirements to ensure compliance with the OBRA ‘93 hospital-specific DSH limits. For purposes of DSH payments, States may utilize a prospective DSH payment methodology, but need to ensure actual DSH payments do not exceed actual eligible DSH costs under the hospital-specific limit consistent with OBRA ‘93 and the MMA. It should be noted that HMO revenues must be considered in the calculation of the hospital-specific DSH limit.
The commenters questioned whether it is CMS’ intent to either (1) apply the cost limit only to fee-for-service payments by the state agency for services provided to Medicaid individuals while relying on separate statutory or waiver-based authority to impose cost limits on DSH, or (2) to apply the cost limit more broadly than the language of the proposed regulation would suggest. If the limit is to apply only to fee-for-service rates, then DSH should be explicitly exempted. If the limit is to be more broadly applied, then costs for the uninsured or non-covered Medicaid services for purposes of DSH payments must be included. CMS should also clarify that the limitation to cost of Medicaid services for Medicaid individuals is not intended to limit Medicaid DSH payments.
We note that the Congress has expressly provided for certain kinds of limited Federal participation in the costs of providing services to non-Medicaid individuals and public health activities. Examples of limited Congressional authorization of Federal financing for non-Medicaid individuals and public health activities include the following. The Congress authorized disproportionate share hospital (DSH) payments to assist hospitals that serve a disproportionate share of low income individuals which may include hospitals that furnish significant amounts of inpatient hospital services and outpatient hospital services to individuals with no source of third party coverage (that is, the uninsured). Under section 4723 of the Balanced Budget Act of 1997, the Congress also provided direct funding to the States to offset expenditures on behalf of aliens. Additional funding for payments to eligible health care providers for emergency health services to undocumented aliens was also provided by Congress under Section 1011 of the Medicare Modernization Act. The Congress has periodically, and as recently as the Deficit Reduction Act of 2005 (DRA, Pub. L. 109-171, enacted on February 8, 2006), adjusted FMAPs for certain States and certain activities such as an enhanced FMAP to create incentives for States to assist individuals in institutions return to their homes. These examples are provided to illustrate that the Congress has previously authorized limited Federal financing of non-Medicaid individuals and public health activities, but has not to date authorized wider use of Federal Medicaid funding for these purposes. Indeed, the Congress indicated that Medicaid funding was not to be used for non-Medicaid purposes when in the Balanced Budget Act of 1997 (BBA, Pub.L.105-33, enacted on August 5, 1997), it added section 1903(i)(17) to the Act to prohibit the use of FFP “with respect to any amount expended for roads, bridges, stadiums, or any other item or service not covered under a State plan under this title.” Non-Medicaid individuals and non-Medicaid services simply are not eligible for Federal reimbursements except where expressly provided for by the Congress.
The Medicaid cost limit provision of the regulation will ensure that governmentally-operated health care providers may receive up to 100 percent of the cost of serving Medicaid individuals, while non-Medicaid costs to the governmentally-operated health care provider will be more appropriately borne by those who are obligated to finance non-Medicaid costs.
Although there is already an exception for DSH payments in § 447.272(c)(2), we have made other conforming changes. Sections 447.206(c) and 447.321(c) have been modified to include express exceptions to exclude DSH payments from the determination of the individual health care provider's cost of providing covered Medicaid services to eligible Medicaid individuals.
Non-governmentally-operated health care providers, including many of the “public” safety net health care providers, are
Moreover, the provisions of the regulation reaffirms State Medicaid financing policy requiring that health care providers be allowed to fully retain their Medicaid payments, another provision of which clearly demonstrates the Federal government's intent to protect the nation's public safety net and its ability to continue delivering critical health care services to Medicaid individuals and the uninsured. Any health care providers that become ineligible to participate in the State financing of Medicaid payments following the effective date of the provisions of this regulation can realize greater net revenues if State or local government funding sources are utilized to fund non-Federal share obligations to Medicaid payments historically financed by non-governmentally-operated “public” health care providers.
We note that the Congress has expressly provided for certain kinds of limited Federal participation in the costs of providing services to non-Medicaid individuals and public health activities. Examples of limited Congressional authorization of Federal financing for non-Medicaid individuals and public health activities include the following. The Congress authorized disproportionate share hospital (DSH) payments to assist hospitals that serve a disproportionate share of low income individuals which may include hospitals that furnish significant amounts of inpatient hospital services and outpatient hospital services to individuals with no source of third party coverage (that is, the uninsured). Under section 4723 of the Balanced Budget Act of 1997, the Congress also provided direct funding to the States to offset expenditures on behalf of aliens. Additional funding for payments to eligible health care providers for emergency health services to undocumented aliens was also provided by Congress under Section 1011 of the Medicare Modernization Act. The Congress has periodically, and as recently as the Deficit Reduction Act of 2005 (DRA, Pub. L. 109-171, enacted on February 8, 2006), adjusted FMAPs for certain States and certain activities such as an enhanced FMAP to create incentives for States to assist individuals in institutions return to their homes. These examples are provided to illustrate that the Congress has previously authorized limited Federal financing of non-Medicaid individuals and public health activities, but has not to date authorized wider use of Federal Medicaid funding for these purposes. Indeed, the Congress indicated that Medicaid funding was not to be used for non-Medicaid purposes when in the Balanced Budget Act of 1997 (BBA, Pub.L.105-33, enacted on August 5, 1997), it added section 1903(i)(17) to the Act to prohibit the use of FFP “with respect to any amount expended for roads, bridges, stadiums, or any other item or service not covered under a State plan under this title.” Non-Medicaid individuals and non-Medicaid services simply are not eligible for Federal reimbursements except where expressly provided for by the Congress.
The Medicaid cost limit provision of the regulation will ensure that governmentally-operated health care providers may receive up to 100 percent of the cost of serving Medicaid individuals, while non-Medicaid costs to the governmentally-operated health care provider will be more appropriately borne by those who are obliged to finance non-Medicaid costs.
Non-governmentally-operated health care providers, including many of the “public” safety net hospitals, are
Moreover, the provision of the regulation that requires that health care providers be allowed to fully retain their Medicaid payments demonstrates the Federal government's intent to protect the nation's public safety net and its ability to continue delivering critical health care services to Medicaid individuals and the uninsured. This ensures that the full amount of Medicaid payment is available to support services to this vulnerable population. Moreover, health care providers that become ineligible to participate in financing of Medicaid payments following the effective date of the provisions of this regulation can realize greater net revenues if State or local government funding sources are utilized to fund non-Federal share obligations to Medicaid payments historically financed by non-governmentally-operated “public” health care providers.
Other commenters stated that health care providers cannot survive without positive operating margins. Any well-run business needs to achieve some margin in order to invest in the future, establish a prudent reserve fund, and achieve the stability which will allow it access to needed capital. Particularly in public hospitals, margins on Medicare and commercial insurance alone are not sufficient to keep public hospitals solvent. Various commenters stated examples of levels of Medicaid and uninsured in public health care providers. One commenter noted that Medicare and commercial insurance amount to less than 45 percent of public hospitals' average net revenues, while self-pay individuals comprise 24 percent of the population served in those hospitals. Therefore the commenters believed it is unfair to expect these health care providers, with their disproportionate share of uninsured populations to survive and thrive.
Many commenters stated that States traditionally pay limited numbers of health care providers more than their Medicaid costs. Those health care providers that do receive payments above cost are located in areas where, in addition to caring for large numbers of Medicaid individuals, they also care for large numbers of uninsured individuals and without such payments the financial viability of these providers would be in jeopardy. These providers would be unable to serve all of their patients. These commenters believe it is entirely appropriate for Medicaid programs to pay some health care providers more than their costs. Hospitals that care for large numbers of Medicaid individuals inevitably care for larger numbers of uninsured individuals as well. Several health care providers also commented on the amount of supplemental Medicaid funding they receive and the fact that those payments are critical to their ability to serve as a health care safety net provider in their respective communities.
Numerous other commenters pointed out all of the activities that health care providers use supplemental Medicaid payments to support are in fact integrally related to Medicaid. The commenters were disturbed that CMS
Further, we understand that governmentally-operated health care providers have numerous goals and objectives that extend beyond the Medicaid program and that Medicaid individuals may ultimately benefit from the governmentally-operated health care provider's broader activities. Under the cost limit of the regulation, Medicaid will continue to be permitted to pay for its share of costs associated with a governmentally-operated health care provider's services that benefit Medicaid individuals in accordance with applicable statutory and regulatory requirements. However, when Medicaid is viewed as a primary source of revenue for a government's non-Medicaid activities, no matter how noble such activities may be, the statutory purpose of the Medicaid program has been undermined. We note that the Congress has expressly provided for certain kinds of limited Federal participation in the costs of providing services to non-Medicaid individuals and public health activities. Examples of limited Congressional authorization of Federal financing for non-Medicaid individuals and public health activities include the following. The Congress authorized disproportionate share hospital (DSH) payments to assist hospitals that serve a disproportionate share of low income individuals which may include hospitals that furnish significant amounts of inpatient hospital services and outpatient hospital services to individuals with no source of third party coverage (that is, the uninsured). Under section 4723 of the Balanced Budget Act of 1997, the Congress also provided direct funding to the States to offset expenditures on behalf of aliens. Additional funding for payments to eligible health care providers for emergency health services to undocumented aliens was also provided by Congress under Section 1011 of the Medicare Modernization Act. The Congress has periodically, and as recently as the Deficit Reduction Act of 2005 (DRA, Pub. L. 109-171, enacted on February 8, 2006), adjusted FMAPs for certain States and certain activities such as an enhanced FMAP to create incentives for States to assist individuals in institutions return to their homes. These examples are provided to illustrate that the Congress has previously authorized limited Federal financing of non-Medicaid individuals and public health activities, but has not to date authorized wider use of Federal Medicaid funding for these purposes. Indeed, the Congress indicated that Medicaid funding was not to be used for non-Medicaid purposes when in the Balanced Budget Act of 1997 (BBA, Pub. L. 105-33, enacted on August 5, 1997), it added section 1903(i)(17) to the Act to prohibit the use of FFP “with respect to any amount expended for roads, bridges, stadiums, or any other item or service not covered under a State plan under this title.” Non-Medicaid individuals and non-Medicaid services simply are not eligible for Federal reimbursements except where expressly provided for by the Congress.
Additionally, many of the expressed concerns about the potential impact of the cost limit are overstated. Under the provisions of the regulation, governmentally-operated health care providers will be permitted to receive up to 100 percent of the cost of serving Medicaid individuals. We do not agree that an allowance for payments up to cost would violate the provision of section 1902(a)(30)(A) of the Act which requires that Medicaid payment be sufficient to enlist enough health care providers so that care and services are available to Medicaid individuals because all of the health care provider's Medicaid costs can be satisfied. We are unclear how limiting Medicaid reimbursement to the full cost of providing services to Medicaid individuals would adversely affect a governmentally-operated health care provider, unless as some commenters note, the health care provider had been historically receiving Medicaid payments above cost and using excess Medicaid revenues to subsidize costs outside of the Medicaid program. In such a situation, the proposed cost limit could cause a net reduction in Medicaid revenue to the health care provider, but the amount of the reduction would directly correspond with the amount of Medicaid revenues that had been used for non-Medicaid purposes. We do not believe Medicaid is responsible to the profit margins of governmentally-operated health care providers and question the appropriateness of such a suggestion.
Non-governmentally-operated health care providers, including many of the “public” safety net hospitals referenced by the commenters, are
Moreover, one provision of the regulation reaffirms State Medicaid financing policy requiring that health care providers be allowed to fully retain their Medicaid payments, another provision of which clearly demonstrates the Federal government's intent to protect the nation's public safety net and its ability to continue delivering critical health care services to Medicaid individuals and the uninsured. Any health care providers that become ineligible to participate in the State financing of Medicaid payments following the effective date of the provisions of this regulation can realize greater net revenues if State or local government funding sources are utilized to fund non-Federal share obligations to Medicaid payments historically financed by non-governmentally-operated “public” health care providers.
A few other commenters noted that a return to cost-based reimbursement for public providers will permit them to break even at best, while permitting costs to spiral upwards. These commenters urged CMS to proceed with the development of innovative ways to reimburse providers as opposed to reverting solely to cost based methodologies.
The Medicare cost allocation process utilized for institutional health care providers is considered a key component in determining Medicaid cost under the provisions of the regulation. Institutional governmentally-operated health care providers (
For non-institutional services provided to Medicaid eligible individuals, a nationally recognized, standard cost report does not currently exist. Because of this, we intend to publish a standardized cost reporting form to document the cost of such services. The purpose of this standardized form is to document in a uniform manner the cost of providing non-institutional services to Medicaid individuals. The period of time to which this cost report applies will be the Medicaid State plan rate year.
CMS has developed a general Medicaid Cost Reporting Protocol that will be on the CMS website that specifically addresses the methods under which institutional and non-institutional Medicaid costs will be determined. The protocol was designed to provide States with detailed instructions to determine compliance with Federal requirements.
Finally, it is important to note that non-governmentally-operated health care providers, including many of the “public” safety net health care providers referenced by the commenters, are not affected by the Medicaid cost limit provision of the regulation and may, therefore, continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements.
For purposes of institutional governmentally-operated health care providers, the Medicaid cost limit determination will rely on existing reporting tools used by institutional health care providers. States will not be required to audit financial and cost information provided by individual institutional governmentally-operated health care providers as part of the Medicaid cost limit review. Each of the source documents is subject to reporting and auditing rules specific to the original purpose of that document and independent of the Medicaid cost limit and State review process. The State must render an determination on the cost limit methodology applied to the source documents but will not be required to validate the accuracy of the information and data within the source documents.
For non-institutional services provided to Medicaid eligible individuals, we note that a nationally recognized, standard cost report does not exist. Because of this, we intend to publish a standardized cost reporting form to document the cost of such services. The purpose of this standardized form is to document in a uniform manner the cost of providing non-institutional services to Medicaid individuals. The period of time to which this cost report applies will be the Medicaid State plan rate year.
CMS has modified the regulation to include a transition period to allow States and governmentally operated non-institutional health care providers sufficient time to develop and implement Medicaid cost documentation and reporting processes consistent with the cost report template issued by CMS (including but not limited to changes in State/provider reporting systems, changes to the Medicaid State plan, changes to time studies, establish periodic review and audit processes, etc.), States will not be required to document and report cost information associated with non-institutional Medicaid services until the State's Medicaid State plan rate year 2009. Actual submission of the State's summary report on the Medicaid cost limit for non-institutional services will not be due to CMS until December 31, 2011, which allows States an opportunity to implement periodic review and audit processes for Medicaid non-institutional costs starting in Medicaid State plan rate year 2009.
CMS has developed a general Medicaid Cost Reporting Protocol that will be on the CMS website that specifically addresses the methods under which institutional and non-institutional Medicaid costs will be determined. The protocol was designed to provide States with detailed instructions to determine compliance with Federal requirements.
For purposes of institutional governmentally-operated health care providers, the Medicaid cost limit determination will rely on existing cost reporting tools used by institutional health care providers. States will not be required to audit financial and cost information provided by individual institutional governmentally-operated health care providers as part of the Medicaid cost limit review. Each of the source documents is subject to reporting and auditing rules specific to the original purpose of that document and independent of the Medicaid cost limit and State review process. The State must render an determination on the cost limit methodology applied to the source documents but will not be required to validate the accuracy of the information and data within the source documents.
For non-institutional services provided to Medicaid eligible individuals, we note that a nationally recognized, standard cost report does not exist. Because of this, we are publishing a standardized cost reporting form to document the costs of such services. The purpose of this standardized form is to document in a uniform manner the cost of providing non-institutional services to Medicaid individuals. The period of time to which this cost report applies will be the Medicaid State plan rate year.
CMS has modified the regulation to include a transition period to allow States and governmentally operated non-institutional health care providers sufficient time to develop and implement Medicaid cost documentation and reporting processes consistent with the cost report template issued by CMS (including but not limited to changes in State/provider reporting systems, changes to the Medicaid State plan, changes to time studies, establish periodic review and audit processes, etc.), States will not be required to document and report cost information associated with non-institutional Medicaid services until the State's Medicaid State plan rate year 2009. Actual submission of the State's summary report on the Medicaid cost limit for non-institutional services will not be due to CMS until December 31, 2011, which allows States an opportunity to implement periodic review and audit processes for Medicaid non-institutional costs starting in Medicaid State plan rate year 2009.
CMS has developed a general Medicaid Cost Reporting Protocol that will be on the CMS website that specifically addresses the methods under which institutional and non-institutional Medicaid costs will be determined.
The Medicaid cost limit provision neither requires nor precludes interim and final Medicaid payment rates for governmentally-operated health care providers. The Medicaid cost limit provision also does not require States to abandon existing DRG based payment systems or any other existing Medicaid reimbursement rate methodologies currently utilized to pay governmentally-operated health care providers. Under the Medicaid cost limit, States may continue to use existing Medicaid reimbursement rate methodologies, but will need to compare such rates to the actual cost of providing services to Medicaid individuals and make reconciling adjustments in the event of overpayments to a governmentally-operated health care provider. The Medicaid cost limit provision does not require Medicaid payments to be equal to a governmentally-operated health care provider's cost of providing services to Medicaid individuals. The Medicaid cost limit provision instead stipulates that Medicaid payments must be no more than a governmentally-operated health care provider's cost of such services.
The Medicaid cost limit provision does not make all payments received by governmentally operated health providers “interim” in nature. The Medicaid cost limit provision also does not require States to replace existing Medicaid reimbursement rate methodologies currently utilized to pay governmentally-operated health care providers. Under the Medicaid cost limit, States may continue to use existing Medicaid reimbursement rate methodologies, but will need to compare such rates to the actual cost of providing services to Medicaid individuals and make reconciling adjustments in the event of overpayments to a governmentally operated provider.
The Medicaid cost limit provision does not require Medicaid payments to be equal to a governmentally-operated health care provider's cost of providing services to Medicaid individuals. The Medicaid cost limit provision instead stipulates that Medicaid payments must be no more than a governmentally-operated health care provider's cost for such services.
We do not believe the cost limit will impose significant administrative burden on States particularly since such limit applies only to governmentally-operated health care providers. These providers are governmental partners in providing health care and anticipate that there will be a degree of cooperation in complying with State implementation of these Medicaid requirements.
For purposes of institutional governmentally-operated health care providers, the Medicaid cost limit determination will rely on existing cost reporting tools used by institutional health care providers. States will not be required to audit financial and cost information provided by individual institutional governmentally-operated health care providers as part of the Medicaid cost limit review. Each of the source documents is subject to reporting and auditing rules specific to the original purpose of that document and independent of the Medicaid cost limit and State review process. The State must render a determination on the cost limit methodology applied to the source documents but will not be required to validate the accuracy of the information and data within the source documents.
The Medicaid cost limit provision also does not require the development of a cost-based rate for governmentally-operated health care providers, nor does it require States to abandon existing Medicaid reimbursement rate methodologies currently utilized to pay governmentally-operated health care providers. Under the Medicaid cost limit provision, States may continue to use existing Medicaid reimbursement rate methodologies, but will need to compare such rates to the individual health care provider's actual cost of providing services to Medicaid individuals and make reconciling adjustments in the event of overpayments to a governmentally operated provider.
As important, the cost upper payment limit is provider-specific but it does not require reconciliation of every individual service to cost. Moreover, this regulation would not require time studies or sampling. These methods are used to determine the cost of Medicaid when the provider does not have other methods of establishing the proportion of costs attributable to the Medicaid program. In some circumstances, these methods may be less expensive and more efficient than maintaining detailed records of individual service encounters and patient eligibility.
For purposes of institutional governmentally-operated health care providers, the Medicaid cost limit determination will rely on existing reporting tools used by institutional health care providers. States will not be required to audit financial and cost information provided by individual institutional governmentally-operated health care providers as part of the Medicaid cost limit review. Each of the source documents is subject to reporting and auditing rules specific to the original purpose of that document and independent of the Medicaid cost limit and State review process. The State must render a determination on the cost limit methodology applied to the source documents but will not be required to validate the accuracy of the information and data within the source documents.
For non-institutional services provided to Medicaid eligible individuals, a nationally recognized, standard cost report does not currently exist. Because of this, we are publishing a standardized cost reporting form to document the costs of such services. The purpose of this standardized form is to document in a uniform manner the cost of providing non-institutional services to Medicaid individuals. The period of time to which this cost report applies will be the Medicaid State plan rate year.
CMS has modified the regulation to include a transition period to allow States and governmentally operated non-institutional health care providers sufficient time to develop and implement Medicaid cost documentation and reporting processes consistent with the cost report template issued by CMS (including but not limited to changes in State/provider reporting systems, changes to the Medicaid State plan, changes to time studies, establish periodic review and audit processes, etc.), States will not be required to document and report cost information associated with non-institutional Medicaid services until the State's Medicaid State plan rate year 2009. Actual submission of the State's summary report on the Medicaid cost limit for non-institutional services will not be due to CMS until December 31, 2011, which allows States an opportunity to implement periodic review and audit processes for Medicaid non-institutional costs starting in Medicaid State plan rate year 2009.
CMS has developed a general Medicaid Cost Reporting Protocol that will be on the CMS Web site that specifically addresses the methods under which institutional and non-institutional Medicaid costs will be determined.
Other commenters stated that if the proposed cost limit is consistent with section 1902(a)(30)(A) of the Act, then there is no rational basis for distinguishing between public and private providers. Requiring differential treatment of public and private Medicaid providers is inconsistent with the equal protection clause of the Constitution as well as CMS’ own repeated statements regarding the importance of payment equality for all categories of Medicaid providers. In fact, in its 2002 final UPL rule CMS agreed that “one group of providers should not have a financial benefit over another group of providers who provide the same type of services.” CMS went on to explain that its intent was “to treat all facilities equally, and apply the same aggregate UPL for each group of facilities, regardless of who owns or operates the facilities.”
As we discussed in the preamble to the provisions of the regulation, there are different incentives at work in setting Medicaid payment rates to governmentally-operated health care providers that are not relevant for private health care providers. There is the potential for an inherent conflict of interest in setting Medicaid payment rates to governmentally-operated health care providers, arising from the ability of governmental providers to contribute the non-federal share of Medicaid expenditures and from the interrelated nature of governmental units within a State. Limits based on documented costs results in an objective basis to assess whether a rate is consistent with efficiency, economy and quality of care, because it provides for full payment for the costs of furnishing covered services to eligible individuals.
The rational basis for distinguishing between governmentally-operated and private health care providers is shown by the preponderance of States that have separate payment methodologies for governmentally-operated and private health care providers.
In our 2002 issuance, this was not an issue upon which we focused; this regulation reflects additional consideration and analysis obtained through oversight reviews of Medicaid State plans and programs.
Another commenter provided an example of how States design their reimbursement systems to differentiate payments between an acute care hospital and a psychiatric care facility. The commenter stated that public and private entities in the acute care hospital category would be paid the same rate based on the services they provide and the State would develop a separate rate for a psychiatric care facility and apply it to both the public and private entities. The commenter stated that the proposed cost limit would force States to dismantle this reasonable payment methodology.
The limit on reimbursement not to exceed cost for individual health care providers operated by units of government is consistent with statutory construction that the Federal government pays only its proportional cost for the delivery of Medicaid services. Because the Medicaid program is jointly funded by Federal, State, and local governments, we do not find it appropriate that units of State or local government would “profit” from Federal taxpayer dollars that are intended to match a percentage of the cost of providing services to Medicaid individuals.
In addition, the provisions of the regulation do not force States to dismantle any of the existing Medicaid reimbursement rate methodologies they are currently utilizing to reimburse health care providers. Under the Medicaid cost limit, States may continue to use Medicaid reimbursement rate methodologies, but will need to compare such rates to the actual cost of providing services to Medicaid individuals and make reconciling adjustments in the event of overpayments to a particular governmentally-operated health care provider. States may find such cost reconciliations to be useful inasmuch as they will permit States to better analyze the reasonableness of their Medicaid reimbursement rates.
We considered imposing cost limits on Medicaid payments to governmentally-operated health care providers only when those health care providers were paid differently than private health care providers. This approach, however, would have required considerably more oversight resources and would be subject to abuse. We foresaw that States could evade the intended limits by segmenting generally applicable payment rates in ways that effectively distinguished between governmentally-operated and private health care providers (for example, by developing a generally applicable payment rate that included a special payment for providers operating in a city with a population between 300,000 and 350,000 that has no less than 1350 beds and no more than 1360 beds). This outcome would not be consistent with the overall principle to end excessive payments to governmental providers.
An upper payment limit based on documented cost provides a clear, objective test of the reasonableness of a payment methodology for government providers regardless of whether the provider participates in financing the Medicaid program. The cost limit on Medicaid reimbursement is consistent with the overall Federal, State and local partnership under which the Federal government pays only its proportional cost for the delivery of Medicaid services. It is not appropriate that units of State or local government would “profit” from Federal taxpayer dollars that are intended to match a percentage of the cost of providing services to Medicaid individuals.
As important, a separate test for governmental providers that participate in financing the Medicaid program could be viewed as contrary to the statutory protection of such financing arrangements. State governments may share their fiscal obligation to the Medicaid program with local governments according to the instruction of Congress. Under Public Law 102-234, the Congress made clear that States may allow governmentally-operated health care providers to participate in a State's fiscal obligation to the Medicaid program through the use of intergovernmental transfers and certified public expenditures.
Under this regulation, States may continue to pay governmentally-operated and non-governmentally-operated health care providers under the same Medicaid reimbursement rate, as long as the applicable upper payment limits are met for each category of provider. The provisions of the regulation do not require States to dismantle any of the existing Medicaid reimbursement rate methodologies they are currently utilizing to reimburse providers. Under the Medicaid cost limit, States may continue to use existing Medicaid reimbursement rate methodologies, but will need to compare such rates to the actual cost of providing services to Medicaid individuals and make reconciling adjustments in the event of overpayments to a particular governmentally-operated health care provider.
The Medicaid program is jointly funded by Federal, State, and local governments. We do not find it appropriate that units of State or local government would “profit” from Federal taxpayer dollars that are intended to match a percentage of the cost of providing services to Medicaid individuals. As we have examined Medicaid financing arrangements across the country, we have found that many States make payments to governmentally operated providers that are in excess of cost. These providers, in turn, use the excess of Medicaid revenue over cost to subsidize health care operations that are unrelated to Medicaid, or they may return a portion of such payments to the State as a source of revenue. In either case, we do not find that Medicaid payments in excess of cost to governmentally-operated health care providers are consistent with the statutory principles of economy and efficiency as required by section 1902(a)(30)(A) of the Act, nor do we find such excessive payments to be consistent with the statutory structure requiring that the Federal government match a percentage of State or local government expenditures for the provision of services to Medicaid individuals.
Non-governmentally-operated health care providers, including many of the “public” safety net hospitals, are
States will not be required to audit financial and cost information provided by individual institutional governmentally-operated health care providers as part of the Medicaid cost limit review. Each of the source documents is subject to reporting and auditing rules specific to the original purpose of that document and independent of the Medicaid cost limit and State review process. The State must render an determination on the cost limit methodology applied to the source documents but will not be required to validate the accuracy of the information and data within the source documents.
For non-institutional services provided to Medicaid eligible individuals, a nationally recognized, standard cost report does not exist. Because of this, we intend to publish a standardized cost reporting form to document the costs of such services. The purpose of this standardized form is to document in a uniform manner the cost of providing non-institutional services to Medicaid individuals. The period of time to which this cost report applies will be the Medicaid State plan rate year.
CMS has developed a general Medicaid Cost Reporting Protocol that
Another commenter was concerned about the impact on home and community based waiver programs and the imposition of these requirements threatens to undermine the viability of these very important programs. The commenters stated that it is difficult to gauge the impact since cost data for non-institutional services has never been captured. But regardless, this will encompass many providers and will require great effort by States and providers to collect, report, analyze and reconcile these costs annually. Other commenters noted that many of these non-institutional providers are generally paid on a fee-based system, which is relatively inexpensive and easy to administer. These commenters believe that imposing cost reporting requirements on these providers will be difficult and in many cases impossible for them to manage. They further believe that these providers may then find it no longer worthwhile to continue providing Medicaid services.
For non-institutional services provided to Medicaid eligible individuals, a nationally recognized, standard cost report does not currently exist. Because of this, we intend to publish a standardized cost reporting form to document the costs of such services. The purpose of this standardized form is to document in a uniform manner the cost of providing non-institutional services to Medicaid individuals. The period of time to which this cost report applies will be the Medicaid State plan rate year.
Another commenter stated that Medicare rates used by States as payments for their Medicaid programs should be exempt from the cost settlement process. This commenter explained that if this proposed cost limit extends to programs that currently do not have a cost report, but some of these programs may use Medicare rates, the State may need to develop a new cost report that applies only to government providers solely to determine their cost for cost settlement.
For non-institutional services provided to Medicaid eligible individuals, a nationally recognized, standard cost report does not exist. Because of this, we intend to publish a standardized cost reporting form to document such services. The purpose of this standardized form is to document in a uniform manner the cost of providing non-institutional services to Medicaid individuals. The period of time to which this cost report applies will be the Medicaid State plan rate year.
CMS has modified the regulation to include a transition period to allow States and governmentally operated non-institutional health care providers sufficient time to develop and implement Medicaid cost documentation and reporting processes consistent with the cost report template issued by CMS (including but not limited to changes in State/provider reporting systems, changes to the Medicaid State plan, changes to time studies, establish periodic review and audit processes, etc.). States will not be required to document and report cost information associated with non-institutional Medicaid services until the State's Medicaid State plan rate year 2009. Actual submission of the State's summary report on the Medicaid cost limit for non-institutional services will not be due to CMS until December 31, 2011, which allows States an opportunity to implement periodic review and audit processes for Medicaid non-institutional costs starting in Medicaid State plan rate year 2009.
CMS has developed a general Medicaid Cost Reporting Protocol that will be available on the CMS website
It is important to note that “public” providers are not subject to the Medicaid cost limit. Only governmentally-operated health care providers will be subject to the Medicaid cost limit. Non-governmentally-operated health care providers, including many of the “public” safety net health care providers, are
The Medicaid Cost Reporting Protocol that will be available on the CMS Web site addresses the methods under which institutional and non-institutional Medicaid costs will be determined. The protocol was designed to provide States with detailed instructions to determine compliance with the Federal requirements.
For purposes of institutional governmentally-operated health care providers, the Medicaid cost limit determination will rely on existing reporting tools used by institutional health care providers. States will not be required to audit financial and cost information provided by individual institutional governmentally-operated health care providers as part of the Medicaid cost limit review. Each of the source documents is subject to reporting and auditing rules specific to the original purpose of that document and independent of the Medicaid cost limit and State review process. The State must render an determination on the cost limit methodology applied to the source documents but will not be required to validate the accuracy of the information and data within the source documents.
CMS has modified the regulation to include a transition period to allow States and governmentally-operated non-institutional health care providers sufficient time to develop and implement Medicaid cost documentation and reporting processes consistent with the cost report template issued by CMS (including but not limited to changes in State/provider reporting systems, changes to the
CMS has developed a general Medicaid Cost Reporting Protocol that will be on the CMS website that specifically addresses the methods under which non-institutional (and institutional) Medicaid costs will be determined. The protocol was designed to provide States with detailed instructions to determine compliance with the Federal requirements.
States must utilize cost reimbursement methodologies for Medicaid payments that are funded by CPEs. Section 447.206(d)(2) indicates that States may utilize interim rates and may trend those interim rates by an applicable health care-related index. If interim rates are used, then interim reconciliations must be performed by reconciling the interim Medicaid payment rates to the “as filed” cost report for the spending year in which interim Medicaid payment rates were made. Paragraph (3) of this provision also establishes that final reconciliation must be performed annually by reconciling any Medicaid interim payments to the finalized cost report for the spending year in which all interim payments were made. As stated previously, these procedures related to interim and final reconciliations at § 447.206(d) are applicable when States utilize cost reimbursement methodologies that are funded by CPEs.
States must utilize cost reimbursement methodologies for Medicaid payments that are funded by CPEs. Section 447.206(d)(2) indicates that States may utilize interim rates and may trend those interim rates by an applicable health care-related index. If interim rates are used, then interim reconciliations must be performed by reconciling the interim Medicaid payment rates to the “as filed” cost report for the spending year in which interim Medicaid payment rates were made. Paragraph (3) of this provision also establishes that final reconciliation must be performed annually by reconciling any Medicaid interim payments to the finalized cost report for the spending year in which all interim payments were made. As stated previously, these procedures related to interim and final reconciliations at § 447.206(d) are applicable when States utilize cost reimbursement methodologies that are funded by CPEs.
States will not be required to audit financial and cost information provided by individual institutional governmentally-operated health care providers as part of the Medicaid cost limit review. Each of the source documents is subject to reporting and auditing rules specific to the original purpose of that document and independent of the Medicaid cost limit and State review process. The State must render an determination on the cost limit methodology applied to the source documents but will not be required to validate the accuracy of the information and data within the source documents.
We understand that there may be delays with the Medicare fiscal intermediary finalizing the Medicare cost report. To ensure compliance with the Medicaid cost limit, we have modified the final regulation to provide a generous but definite timeframe for a State's review of Medicaid payments made to institutional governmentally-operated health care providers. For any cost reports that are not finalized in that timeframe, the State should use the “as filed” report and indicate such in the summary report to CMS. The State should then submit a corrected summary report to CMS within 30 days of the finalization of the Medicare cost report.
Non-institutional governmentally-operated health care providers must use the standardized cost reporting form issued by CMS, which will be subject to a State established review and audit process that must also include interim and final reconciliations for purposes of CPE.
CMS has modified the regulation to include a transition period to allow States and governmentally-operated non-institutional health care providers sufficient time to develop and implement Medicaid cost documentation and reporting processes consistent with the cost report template issued by CMS (including but not limited to changes in State/provider reporting systems, changes to the Medicaid State plan, changes to time studies, establish periodic review and audit processes, etc.), States will not be required to document and report cost information associated with non-institutional Medicaid services until the State's Medicaid State plan rate year 2009. Actual submission of the State's summary report on the Medicaid cost limit for non-institutional services will not be due to CMS until December 31, 2011, which allows States an opportunity to implement periodic review and audit processes for Medicaid non-institutional costs starting in Medicaid State plan rate year 2009.
Several commenters disagreed with CMS’ statements in the proposed rule that States operate inappropriate financing structures. The commenters stipulated the States have worked to ensure that their financing policies do not denigrate the integrity of the Medicaid program and have received approval by CMS for these systems. Further, States have been subject to significant State and federal audit reviews and the commenters argued that these audit reviews and oversight mechanisms are sufficient for identifying any future potential threats to the integrity of the Medicaid program rather than the burdensome provisions within this proposed rule.
Similarly, one commenter discussed their example of working with CMS to approve a nursing facility reimbursement methodology that authorized payments to county-operated nursing facilities at 94 percent of the Medicare payment rate with the understanding that the counties would be contributing, through IGTs, to the
Under the provisions of the regulation, governmentally-operated health care providers will be permitted to receive up to 100 percent of the cost of serving Medicaid individuals. It does not appear that limiting Medicaid reimbursement to full cost would hurt a governmentally-operated health care provider, unless the governmentally-operated health care provider had been historically receiving Medicaid payments above cost and using excess Medicaid revenues to subsidize costs outside of the Medicaid program. In such a situation, the Medicaid cost limit could cause a net reduction in Medicaid revenue to the governmentally-operated health care provider, but the amount of the reduction would directly correspond with the amount of Medicaid revenues that had been used to satisfy non-Medicaid activities.
A few commenters inquired as to what cost finding principles will be used to determine which costs are associated with the provision of the Medicaid service. One commenter further questioned whether the cost finding principles would be standardized, how will they differ from existing cost finding guidance and, why. This commenter stipulated that a more comprehensive definition of costs is needed since CMS has decided not to use Medicare's cost principles or the principles of OMB Circular A-87.
The commenters also noted that some costs on a hospital's cost report are allocated to cost centers judged to be unreimbursable for purposes of Medicare, but are appropriately reimbursed under Medicaid or DSH. Such costs include costs for a clinic that exclusively serves Medicaid and uninsured individuals.
The Medicare cost allocation process utilized for institutional health care providers is considered a key component in determining Medicaid cost under the regulation. Institutional governmentally-operated health care providers (that is, hospitals (encompassing both inpatient and outpatient hospital services), nursing facilities, and intermediate care facilities for the mentally retarded (ICFs/MR)) will be required to provide the State with data extracted from primary source documents as well as copies of the source documents. These documents would include the governmentally-operated health care provider's Medicare cost report (or Medicaid cost report for intermediate nursing facility care and ICFs/MR consistent with Medicare cost reporting principles), and audited financial statements that will be used in conjunction with information provided by the States' Medicaid Management Information Systems (MMIS).
For non-institutional services provided to Medicaid eligible individuals, use of a standardized form will document in a uniform manner the cost of providing non-institutional services to Medicaid individuals. The period of time to which this cost report applies will be the Medicaid State plan rate year.
CMS has developed a general Medicaid Cost Reporting Protocol that will be available on the CMS website that specifically addresses the information utilized from each source document and the methods under which institutional and non-institutional Medicaid costs will be determined. The protocol was designed to provide States with detailed instructions to determine compliance with the Federal requirements.
While Medicare does not have an equivalent cost report for the services provided in ICFs/MR, we recognize that States typically follow Medicare cost principles in determining Medicaid payment rates for ICFs/MR. We further note that the services provided in ICFs/MR are predominately delivered to Medicaid eligible individuals. Therefore, cost data should be extracted from existing State cost reports for services provided in ICFs/MR. Such cost reports must be generally consistent with Medicare cost reporting principles.
For non-institutional services provided to Medicaid eligible individuals, a nationally recognized, standard cost report does not currently exist. Because of this, we are publishing a standardized cost reporting form to document the costs of such services. The purpose of this standardized form is to document in a uniform manner the cost of providing non-institutional services to Medicaid individuals. The period of time to which this cost report applies will be the Medicaid State plan rate year.
The Medicare cost allocation process utilized for institutional health care providers is considered a key component in determining Medicaid cost under the regulation. Institutional governmentally-operated health care providers (that is, hospitals, nursing facilities, and intermediate care facilities for the mentally retarded (ICFs/MR)) will be required to provide the State with data extracted from primary source documents as well as copies of the source documents. These documents would include the governmentally-operated health care provider's Medicare cost report (or Medicaid cost report for intermediate nursing facility care and ICFs/MR consistent with Medicare cost reporting principles), and audited financial statements that will be used in conjunction with information provided by the States' Medicaid Management Information Systems (MMIS).
For non-institutional services provided to Medicaid eligible individuals, a nationally recognized, standard cost report does not currently exist. Because of this, we are publishing a standardized cost reporting form to document the costs of such services. The purpose of this standardized form is to document in a uniform manner the cost of providing non-institutional services to Medicaid individuals. The period of time to which this cost report applies will be the Medicaid State plan rate year.
The commenters preferred that documentation requirements accommodate both administrative claiming and/or collection of the cost to provide a service, avoiding a duplicative reporting process.
It is important to note that non-governmentally-operated health care providers, including many of the “public” safety net health care providers referenced by the commenters, are not affected by the Medicaid cost limit provision of the regulation and may, therefore, continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements.
We will be publishing a standardized non-institutional services cost reporting form that can be used for school-based services in order to have such services documented in a uniform manner across the country. This standardized form should minimize the burden associated with the review of expenditures for school-based services. We expect that States with currently accessible and verifiable cost documentation will find it easier to transition into use of the new school-based services cost report template.
Another commenter expressed concern that those States which opted to implement SCHIP as a Medicaid expansion are being retroactively penalized for not implementing SCHIP as a stand alone program. This commenter stated that given the SCHIP implementation options included in the statute, this proposed regulation must clearly define the criteria and characteristics of what is; and, what is not an SCHIP provider for application of the regulation's provisions. For example, the commenter questioned whether providers are considered SCHIP providers when they provide the same service package to both Medicaid and SCHIP eligibles and are reimbursed at the same payment rates.
To the extent a State's SCHIP program is established as a Medicaid expansion program, payments to governmentally-operated health care providers for SCHIP individuals are Medicaid payments and are subject to the Medicaid cost limit. If a State operates its SCHIP program as an SCHIP stand-alone program, payments to governmentally-operated health care providers are not subject to the Medicaid cost limit. This distinction is consistent with the different nature of a separate State SCHIP and a Medicaid expansion. A Medicaid expansion is an integral part of the Medicaid program, subject to all Medicaid requirements, including beneficiary protections and payment limitations. A separate State SCHIP is not part of the Medicaid program and affords States greater flexibility, particularly in the area of provider payment and beneficiary protections. Only certain specified Medicaid requirements apply including, at section 2107(e)(1)(C), the Medicaid provider tax and donation restrictions of section 1903(w). CMS has interpreted this to include restrictions on non-governmental providers participating in the financing of the program. As a result, this rule would make applicable to separate State SCHIPs all requirements other than the Medicaid cost limits.
The regulation does not make a distinction between what is and is not an SCHIP provider. Rather the determining factor is the structure of the State's SCHIP program and what type of payments (for example, Medicaid expansion or SCHIP stand-alone) are received by governmentally-operated health care providers for individuals covered under SCHIP.
The provision at § 447.207 requiring that health care providers actually receive and retain the full amount of the total computable payment provided for services furnished under the approved State plan is consistent with section 1903(w)(6)(A) of the Act because that provision protects only those IGTs that are “derived from State or local taxes (or funds appropriated to State university teaching hospitals).” Since this regulation addresses only the use of Medicaid revenues, not State or local taxes, there is no conflict.
This provision specifically addresses those instances in which States make claims that are based on health care provider payments that are never actually made, are based on amounts paid with such conditions that the health care provider never actually becomes the beneficial owner of the funding (for example, when the health care provider is required to return the funding to a State agency or State directed purpose), or are otherwise diverted from use for Medicaid services by operation of law, contract or other mechanism. When the health care provider is not permitted to receive and retain the funds, the regulation would reflect the fact that the health care provider is acting simply as a conduit or agent rather than a recipient of a Medicaid payment. This means that there is no actual expenditure for Medicaid purposes.
In addition, these commenters specified that this requirement will not be an effective means of addressing State funding abuses. These commenters felt as though this provision is unnecessary and that if CMS is concerned that Medicaid expenditures are not consistent with legal requirements, then CMS should impose regulations on the calculation of those expenditures. Another commenter felt that this provision is also unnecessary since CMS has eliminated recycling and the purpose of the regulation is to formalize current practice, not to accomplish anything new.
Numerous other commenters requested that the authority claimed by CMS to review “associated transactions” be deleted. The commenters stated that this proposed requirement would prohibit providers from making expenditures with Medicaid reimbursement funds and that any routine payments from providers to State or local governmental items for items or services unrelated to Medicaid payments would come under suspicion. The commenters pointed out that financial arrangements with State and local governments require money flows for a variety of reasons. These commenters strongly argued that CMS’ review and audit authority is limited to payments made under the Medicaid program and that it does not have authority over providers' use of Medicaid payments received. A few commenters requested that CMS should clarify what it considers an associated transaction in the regulation text itself. Another commenter stated that CMS has overlooked the funding realities that face public health providers and that requiring providers to retain payments may have the unintended consequence of preventing the efficient and economical flow of funding streams within and between governmental entities. Most of these commenters specified that CMS has more effective mechanisms to limit the potential for abuse involving the re-direction of Medicaid payments by IGTs. Other commenters stated that they are also concerned that CMS may use its disallowance authority to pressure public providers to dismantle such arrangements.
Another commenter stated that this requirement would be nearly impossible to track. Once funds are deposited into operating accounts, funds cannot be traced, segregated or separately identified. The commenter indicated that the proposed facility-specific cost limits would make any tracking unnecessary. The commenter argued that where a governmentally-operated health care provider is funded fully by a State or county agency, it is entirely appropriate for the provider to return to its funding agency any revenues received from payers, regardless of payer source. The commenter went on to further state that in Medicaid the governmental expenditure is always made prior to the receipt of the reimbursement and there is no valid argument that the governmental provider should not return to the original source of its expenditures the portion of the payment that was provided in the first place.
Specifically, health care providers were required to return a significant portion of a particular Medicaid payment to State or local government either directly upon receipt of such payment or indirectly through a transfer of funds in an amount greater than the non-Federal share to generate such payment. States and local governments would then use these funds to draw additional Federal matching dollars for other Medicaid payments and/or satisfy other non-Medicaid activities. In addition, health care providers were required to redirect a particular Medicaid payment to other non-Medicaid health programs to satisfy certain non-Medicaid activities, which were otherwise State only or local government only obligations often involving health care services to a non-Medicaid individual.
These arrangements are inconsistent with statutory construction that the Federal government pays its statutorily identified share of the payments for the provision of the delivery of Medicaid services. The retention of payments provision is intended to clarify the Federal government's authority to identify and correct such abuses.
The retention of payments provision was not designed to interfere with the normal operating expenses of conducting business, such as payments related to taxes, (including health-care provider-related taxes), fees, business relationships with governments unrelated to Medicaid in which there is no connection to Medicaid payment. Such normal operating expenses would not be considered “returning/redirecting” a Medicaid payment, we have modified the regulation to clarify this point. However, when a governmentally-operated health care provider participates in a pre-arranged agreement with the State or local government to return or re-direct a particular Medicaid payment to which it is otherwise entitled, the expenditure claimed by a State is in excess of the actual payment ultimately retained by the governmentally-operated health care provider (that is, the net expenditure). The result of such an arrangement is that the Federal government provided matching funds in excess of the net expenditure made by the State to the health care provider.
We have revised the regulation text to clarify that this requirement is not intended to burden providers, but instead is intended to be a condition for the allowability of Medicaid payment methodologies. In general, we intend to continue to focus our enforcement efforts on prospective review of proposed State payment methodologies. Indeed, this requirement should protect providers by ensuring that claimed Medicaid payments are actually available to support Medicaid services furnished by the providers.
Governmentally-operated health care providers may only transfer funds prior to receiving a Medicaid payment. This ensures that funds were actually available to the governmentally-operated health care provider to satisfy the non-Federal share obligation to the Medicaid payment it receives and were not derived from, and effectively a reduction in, the Medicaid payment received. To permit IGTs made by a governmentally-operated health care provider after the Medicaid payment is received would effectively allow a Medicaid Agency to “loan” the non-Federal share obligation to the governmentally-operated health care provider. (Upon receipt of the Medicaid payment, the governmentally-operated health care provider would “return” the “loan” to the Medicaid Agency through an IGT.) The end result of a post payment IGT would be that a State is able to send Federal matching funds into a governmentally-operated health care provider without any unit of government satisfying the non-Federal share obligation. The State could then use the same funds to make additional Medicaid payments and attract new Federal matching funds.
Other commenters stated that it is common for States or local governments to provide full funding to their health care providers, in the expectation of receiving the federal portion back from the health care provider when it has been reimbursed for providing Medicaid services. These commenters pointed out discrepancy between the proposed regulatory provision and preamble justification. The commenters noted that the preamble only specifies that when a governmental operated health care provider transfers to the State an amount more than the non-Federal share is there a situation where the net Medicaid payment is “necessarily reduced.” However the provisions of the proposed rule itself would preclude any transfer to the State from the payment received by the health care provider. The commenters questioned whether the prohibition is meant to apply to any portion of the Medicaid payment or only to the federal portion and again noted that CMS lacks any statutory basis.
Many of these commenters stated that it is more appropriate to continue to use the SPA process to deal with perceived impermissible financing arrangements and to separate the benign transfers that do not present issues of concern from those that CMS believes present problems.
These arrangements are inconsistent with statutory construction that the Federal government pays its statutorily identified share of the payments for the provision of the delivery of Medicaid services. The retention of payments provision is intended to clarify the Federal government's authority to identify and correct such abuses.
The retention of payments provision was not designed to interfere with the normal operating expenses of conducting business, such as payments related to taxes, (including health-care provider-related taxes), fees, business relationships with governments unrelated to Medicaid in which there is no connection to Medicaid payment and we have modified the regulation to clarify this point. However, when a governmentally-operated health care provider participates in a pre-arranged agreement with the State or local government to return or re-direct a particular Medicaid payment to which it is otherwise entitled, the expenditure claimed by a State is in excess of the actual payment ultimately retained by the governmentally-operated health care provider (that is, the net expenditure). The result of such an arrangement is that the Federal government provided matching funds in excess of the net expenditure made by the State to the governmentally-operated health care provider.
A principal concern in evaluating compliance with § 447.207 will be the determination as to whether or not the funding obligation to the non-Federal share of Medicaid payments has been fully satisfied by the State or local government. IGTs from a local or other State Agency unit of government's general fund may be considered a permissible source of the non-Federal share of Medicaid payments when: (1) Monies from the general fund are transferred to the State Medicaid agency; (2) such monies are used to fund the non-Federal share of Medicaid payments to the governmentally-operated health care provider; (3) the health care provider deposits such Medicaid payments into its operating account (a governmentally-operated health care provider will always maintain an operating account that is separate from the general fund managed by the corresponding unit of government); and (4) no portion of Medicaid payments deposited into the operating account is sent back to the general fund to replenish the loss of funds resulting from the IGT. These conditions would demonstrate that the burden of the non-Federal share of the Medicaid payment was satisfied by the local government or other State Agency.
A certified public expenditure (CPE) means that State or local tax dollars were used to satisfy the cost of providing services to Medicaid individuals. The expenditure that is claimed for Federal matching funds based on a CPE (that is, total computable expenditure) is inherently equal to the net expenditure. The Federal matching funds, therefore, are available as a percentage of this actual certified public expenditure. Under the CPE process, a unit of government (including a governmentally-operated health care provider) has expended funds to provide services to Medicaid individuals, which means that the unit of government has satisfied both the Federal and State share of these Medicaid costs. Therefore, Federal matching funds are effectively repayment of the Federal share of the total computable expenditure initially satisfied at State or local government level. CMS would assume that as the entity authorized to draw Federal funds, Medicaid agencies would distribute the Federal matching funds in a manner that is proportionate to the total computable expenditure by the certifying unit of government. To the extent a State agency chooses to distribute those Federal funds in a manner that is not proportional to the costs incurred by other governmental units within the State, CMS does not plan to interfere with such decisions between States, local governments and/or governmentally-operated health care providers.
Under the provisions of the regulation, all health care providers maintain some level of ability to participate in the certified public expenditure (CPE) process. Governmentally-operated health care providers are able to certify their costs without having to demonstrate that State or local tax dollars were used to provide Medicaid services. This policy is based on the fact that governmentally-operated health care providers always have the ability to access State and/or local tax dollars as an integral component of State or local government. Governmentally-operated health care providers need only produce cost documentation via national, standardized cost reporting to receive Federal matching funds as a percentage of such allowable Medicaid (and DSH) costs.
Non-governmentally-operated health care providers may also produce cost documentation to support the costs of providing services to Medicaid individuals (and certain uninsured costs for purposes of Medicaid DSH payments). However, in order to maintain consistency with the Federal statutory instruction governing CPEs, a State or local government must actually certify that tax dollars were provided to the non-governmentally-operated health care provider. Federal matching funds will be available as a percentage of the allowable Medicaid costs incurred by the non-governmentally-operated health care provider up to the level of such State and/or local tax support.
The commenter also stipulated that requiring a transfer within the same unit
A principal concern in evaluating compliance with § 447.207 will be the determination as to whether or not the funding obligation to the non-Federal share of Medicaid payments has been fully satisfied by the State or local government. IGTs from a local or other State Agency unit of government's general fund may be considered a permissible source of the non-Federal share of Medicaid payments when: (1) Monies from the general fund are transferred to the State Medicaid agency; (2) such monies are used to fund the non-Federal share of Medicaid payments to the governmentally-operated health care provider; (3) the health care provider deposits such Medicaid payments into its operating account (a governmentally-operated health care provider will always maintain an operating account that is separate from the general fund managed by the corresponding unit of government); and (4) no portion of Medicaid payments deposited into the operating account is sent back to the general fund to replenish the loss of funds resulting from the IGT. These conditions would demonstrate that the burden of the non-Federal share of the Medicaid payment was satisfied by the local government or other State Agency.
Governmentally-operated health care providers may only transfer prior to receiving a Medicaid payment to ensure funds were actually available to the governmentally-operated health care provider to satisfy the non-Federal share obligation to the Medicaid payment it receives. To permit non-Federal share transfer obligations made by a governmentally-operated health care provider after the Medicaid payment is received would allow a Medicaid Agency to “loan” the non-Federal share obligation to the governmentally-operated health care provider (as described previously).
Administrative costs and medical service costs are separately recognized in the Medicaid statute for purposes of Federal financial participation (FFP). Administrative costs and medical service costs must also be separately reported on the CMS 64 report for purposes of State expenditures eligible for FFP.
An arrangement in which administrative costs are offset from a medical service payment has two major problems: (i) Administrative costs are effectively matched with Federal funds at the FMAP rate instead of the 50 percent administrative matching rate; and, (ii) the governmentally-operated health care provider realizes a net reduction to its Medicaid medical service payment because it must redirect a portion of the Federal funding associated with the Medicaid medical service payment it receives to pay another agency for administrative costs.
In some instances, a mandatory assessment or “fee” imposed on a health care provider could be viewed as a health care-related tax. All health care-related taxes must meet the specified statutory criteria, including the broad based requirement to avoid penalties against a State's Medicaid expenditures. The broad based provision of the statute requires that all health care providers of the service must be subject to the tax or “fee.”
Another commenter disagreed that § 447.271(b) becomes irrelevant due to the proposed cost limit. The commenter stated that the existing regulation at § 447.271(b) is related to limitations based on provider charges not provider costs and allows Medicaid payments in excess of a provider's charges if those charges are nominal or do not exist. The commenter argued that eliminating this regulatory provision would restrict Medicaid reimbursement to nominal charge providers or require them to implement unnecessary or artificial charge structures.
Another commenter stated that with this elimination, nominal charge providers would be limited to charges as its total payment. The commenter argued the proposed cost limit does not affect the operation of the charge limit rule where charges are less than cost and should be maintained.
However, we do not believe the Medicaid cost limit will impose significant administrative burden on States particularly since the limit applies only to governmentally-operated health care providers.
For purposes of institutional governmentally-operated health care providers, the Medicaid cost limit determination will rely on existing reporting tools used by institutional health care providers. States will not be required to audit financial and cost information provided by individual institutional governmentally-operated health care providers as part of the Medicaid cost limit review. Each of the source documents is subject to reporting and auditing rules specific to the original purpose of that document and independent of the Medicaid cost limit and State review process. The State must render an determination on the cost limit methodology applied to the source documents but will not be required to validate the accuracy of the information and data within the source documents.
For non-institutional services provided to Medicaid eligible individuals, a nationally recognized, standard cost report currently does not exist. Because of this, we will be publishing a standardized cost reporting form that should be used to document such services. The purpose of this standardized form is to document in a uniform manner the cost of providing non-institutional services to Medicaid individuals. The period of time to which this cost report applies will be the Medicaid State plan rate year.
CMS has modified the regulation to include a transition period to allow States and governmentally operated non-institutional health care providers sufficient time to develop and implement Medicaid cost documentation and reporting processes consistent with the cost report template issued by CMS (including but not limited to changes in State/provider reporting systems, changes to the Medicaid State plan, changes to time studies, establish periodic review and audit processes, etc.), States will not be required to document and report cost information associated with non-institutional Medicaid services until the State's Medicaid State plan rate year 2009. Actual submission of the State's summary report on the Medicaid cost limit for non-institutional services will not be due to CMS until December 31, 2011, which allows States an opportunity to implement periodic review and audit processes for Medicaid non-institutional costs starting in Medicaid State plan rate year 2009.
CMS has developed a general Medicaid Cost Reporting Protocol available on the CMS Web site that specifically addresses the methods under which institutional and non-institutional Medicaid costs will be determined. The protocol was designed to provide States with detailed instructions to determine compliance with Federal requirements.
For purposes of institutional governmentally-operated health care providers, the Medicaid cost limit determination will rely on existing reporting tools used by institutional health care providers. States will not be required to audit financial and cost information provided by individual institutional governmentally-operated health care providers as part of the Medicaid cost limit review. Each of the source documents is subject to reporting and auditing rules specific to the original purpose of that document and independent of the Medicaid cost limit and State review process. The State must render a determination on the cost limit methodology applied to the source documents but will not be required to
For non-institutional services provided to Medicaid eligible individuals, a nationally recognized, standard cost report currently does not exist. Because of this, we will be publishing a standardized cost reporting form that should be used to document such services. The purpose of this standardized form is to document in a uniform manner the cost of providing non-institutional services to Medicaid individuals. The period of time to which this cost report applies will be the Medicaid State plan rate year.
CMS has modified the regulation to include a transition period to allow States and governmentally operated non-institutional health care providers sufficient time to develop and implement Medicaid cost documentation and reporting processes consistent with the cost report template issued by CMS (including but not limited to changes in State/provider reporting systems, changes to the Medicaid State plan, changes to time studies, establish periodic review and audit processes, etc.), States will not be required to document and report cost information associated with non-institutional Medicaid services until the State's Medicaid State plan rate year 2009. Actual submission of the State's summary report on the Medicaid cost limit for non-institutional services will not be due to CMS until December 31, 2011, which allows States an opportunity to implement periodic review and audit processes for Medicaid non-institutional costs starting in Medicaid State plan rate year 2009.
CMS has developed a general Medicaid Cost Reporting Protocol available on the CMS Web site that specifically addresses the methods under which institutional and non-institutional Medicaid costs will be determined. The protocol was designed to provide States with detailed instructions to determine compliance with Federal requirements.
We believe the tool is useful to States and actually reduces the State's burden by putting complex statutory and regulatory standards into a practical and user friendly format.
The provision of the regulation that addresses a unit of government codifies the existing statutory definitions of a unit of government. This codification of existing Federal statute was established in an effort to assist States in identifying the universe of governmentally-operated health care providers that could receive Medicaid revenues up to the full cost of providing services to Medicaid individuals and clarifies which types of health care providers can participate in financing of the non-Federal share of Medicaid payments.
Medicaid is a vitally important program that serves very vulnerable individuals, and the Federal government remains committed to funding its share of the cost of providing Medicaid services to eligible individuals. We also note that State decisions will be the major factor in the actual financial impact this regulation will have within each State. CMS recognizes that States play a major role in the administration of the Medicaid program and that legal and financial arrangements between health care providers and units of government vary on a case by case basis. Therefore, CMS has developed standardized and impartial regulatory criteria based upon Federal statue that States must apply on a consistent basis to each health care provider within the State to determine whether or not the health care provider is considered a unit of government under the regulation.
Non-governmentally-operated health care providers, including many of the “public” safety net health care providers, are not affected by the cost limit provision of the regulation and may therefore continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements.
Moreover, the regulation reaffirms State Medicaid financing policy requiring that health care providers be allowed to fully retain their Medicaid payments, another provision of which clearly demonstrates the Federal government's intent to protect the nation's public safety net and its ability to continue delivering critical health care services to Medicaid individuals and the uninsured. Any health care providers that become ineligible to participate in the State financing of Medicaid payments following the effective date of the provisions of this
The provision of the regulation that addresses a unit of government codifies the existing statutory definitions of a unit of government. This codification of existing Federal statute was established in an effort to assist States in identifying the universe of governmentally-operated health care providers that could receive Medicaid revenues up to the full cost of providing services to Medicaid individuals and clarifies which types of health care providers can participate in financing of the non-Federal share of Medicaid payments. CMS has developed standardized and impartial regulatory criteria based upon Federal statue that States must apply on a consistent basis to each health care provider within the State to determine whether or not the health care provider is considered a unit of government under the regulation.
Non-governmentally-operated health care providers, including many of the “public” safety net health care providers, are not affected by the cost limit provision of the regulation and may therefore continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements.
Moreover, one provision of the regulation reaffirms State Medicaid financing policy requiring that health care providers be allowed to fully retain their Medicaid payments, another provision of which clearly demonstrates the Federal government's intent to protect the nation's public safety net and its ability to continue delivering critical health care services to Medicaid individuals and the uninsured. Any health care providers that become ineligible to participate in the State financing of Medicaid payments following the effective date of the provisions of this regulation can realize greater net revenues if State or local governments choose to utilize their funding sources to fund non-Federal share obligations to Medicaid payments historically financed by non-governmentally-operated “public” health care providers.
All States could be affected by the provisions of the regulation if the State currently:
• Reimburses governmentally-operated health care providers in excess of the cost to provide services to Medicaid individuals;
• Accepts funds from non-governmentally-operated health care providers to help fund the non-Federal share of Medicaid payments; and/or,
• Requires the return of Medicaid payments.
State-specific effects of the regulation can only be determined by the States as each State administers its own Medicaid program. We also note that State decisions will be the major factor in the actual financial impact this regulation will have within each State.
The provision of the regulation that addresses a unit of government codifies the existing statutory definitions of a unit of government. This codification of existing Federal statute was established in an effort to assist States in identifying the universe of governmentally-operated health care providers that could receive Medicaid revenues up to the full cost of providing services to Medicaid individuals and clarifies which types of health care providers can participate in financing of the non-Federal share of Medicaid payments. CMS has developed standardized and impartial regulatory criteria based upon Federal statue that States must apply on a consistent basis to each health care provider within the State to determine whether or not the health care provider is considered a unit of government under the regulation.
For non-institutional services provided to Medicaid eligible individuals, a nationally recognized, standard cost report currently does not exist. Because of this, we will be publishing a standardized cost reporting form that should be used to document such services. The purpose of this standardized form is to document in a uniform manner the cost of providing non-institutional services to Medicaid individuals. The period of time to which this cost report applies will be the Medicaid State plan rate year.
CMS has modified the regulation to include a transition period to allow States and governmentally operated non-institutional health care providers sufficient time to develop and implement Medicaid cost documentation and reporting processes consistent with the cost report template issued by CMS (including but not limited to changes in State/provider reporting systems, changes to the Medicaid State plan, changes to time studies, establish periodic review and audit processes, etc.), States will not be required to document and report cost information associated with non-institutional Medicaid services until the State's Medicaid State plan rate year 2009. Actual submission of the State's summary report on the Medicaid cost limit for non-institutional services will not be due to CMS until December 31, 2011, which allows States an opportunity to implement periodic review and audit processes for Medicaid non-institutional costs starting in Medicaid State plan rate year 2009.
Each State is responsible for the proper and efficient administration of its Medicaid program. Expenses incurred for administration of the Medicaid program are eligible for Federal matching funds at the at the regular 50 percent administrative matching rate.
Under the provisions of the regulation, governmentally-operated health care providers will be permitted to receive up to 100 percent of the cost of serving Medicaid individuals. We are unclear how limiting Medicaid reimbursement to the full cost or providing services to Medicaid individuals would adversely affect a governmentally-operated health care provider, unless the health care provider had been historically receiving Medicaid payments above cost and using excess Medicaid revenues to subsidize other costs outside of the Medicaid program. In such a situation, the proposed cost limit could cause a net reduction in Medicaid revenue to the health care provider, but the amount of the reduction would directly correspond with the amount of Medicaid revenues that had been used for non-Medicaid purposes.
Non-governmentally-operated health care providers, including many of the “public” safety net health care providers, are not affected by the cost limit provision of the regulation and may therefore continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements. It remains unclear how a limit that does not apply to public hospitals could adversely impact quality and patient safety and vital community services.
Moreover, the provisions of the regulation reaffirms State Medicaid financing policy requiring that health care providers be allowed to fully retain their Medicaid payments, another provision of which clearly demonstrates the Federal government's intent to protect the nation's public safety net and its ability to continue delivering critical health care services to Medicaid individuals and the uninsured. Any health care providers that become ineligible to participate in the State financing of Medicaid payments following the effective date of the provisions of this regulation can realize greater net revenues if State or local government funding sources are utilized to fund non-Federal share obligations to Medicaid payments historically financed by non-governmentally-operated “public” health care providers.
Non-governmentally-operated health care providers, including many of the “public” safety net health care providers, are not affected by the cost limit provision of the regulation and may therefore continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements. Any health care providers that become ineligible to participate in the State financing of Medicaid payments following the effective date of the provisions of this regulation can realize greater net revenues if State or local governments choose to utilize their funding sources to fund non-Federal share obligations to Medicaid payments historically financed by non-governmentally-operated “public” health care providers.
For non-institutional services provided to Medicaid eligible individuals, a nationally recognized, standard cost report does not currently exist. Because of this, we will be publishing a standardized cost reporting form that should be used to document such services. The purpose of this standardized form is to document in a uniform manner the cost of providing non-institutional services to Medicaid individuals. The period of time to which this cost report applies will be the Medicaid State plan rate year.
CMS has modified the regulation to include a transition period to allow States and governmentally operated non-institutional health care providers sufficient time to develop and implement Medicaid cost documentation and reporting processes consistent with the cost report template issued by CMS (including but not limited to changes in State/provider reporting systems, changes to the Medicaid State plan, changes to time studies, establish periodic review and audit processes, etc.), States will not be required to document and report cost information associated with non-institutional Medicaid services until the State's Medicaid State plan rate year 2009. Actual submission of the State's summary report on the Medicaid cost limit for non-institutional services will not be due to CMS until December 31, 2011, which allows States an opportunity to implement periodic review and audit processes for Medicaid non-institutional costs starting in Medicaid State plan rate year 2009.
Each State is responsible for the proper and efficient administration of its Medicaid program. Expenses incurred for administration of the Medicaid program are eligible for Federal matching funds at the regular 50 percent administrative matching rate.
For non-institutional services provided to Medicaid eligible individuals, a nationally recognized, standard cost report currently does not exist. Because of this, we will be publishing a standardized cost reporting form that should be used to document such services. The purpose of this standardized form is to document in a uniform manner the cost of providing non-institutional services to Medicaid individuals. The period of time to which this cost report applies will be the Medicaid State plan rate year.
CMS has modified the regulation to include a transition period to allow States and governmentally operated non-institutional health care providers sufficient time to develop and implement Medicaid cost documentation and reporting processes consistent with the cost report template issued by CMS (including but not limited to changes in State/provider reporting systems, changes to the Medicaid State plan, changes to time studies, establish periodic review and audit processes, etc.), States will not be required to document and report cost information associated with non-
Each State is responsible for the proper and efficient administration of its Medicaid program. Expenses incurred for administration of the Medicaid program are eligible for Federal matching funds at the regular 50 percent administrative matching rate.
Different reasons were proffered to argue for transitional periods or phase-in processes. Many commenters noted that the changes proposed in this rule would require action by State legislatures in order to assure compliance. However, these commenters contend that factoring the States' established legislative cycles, there would not be enough time for State legislatures to act to ensure compliance with the rule by the currently proposed effective date of September 1, 2007. In fact, many States have nearly completed or already finalized the budget and all associated Medicaid funding for State fiscal year 2008, but some of the existing funding arrangements or state statutes will need to be modified due to the rule. Some legislatures may not be in session prior to September 1, 2007. Therefore, these commenters have requested a transition period for States, local governments, and providers to adjust to the changes proposed by the rule. Other commenters stated that longstanding payment methodologies and financing arrangements, many of which were previously approved by CMS, would be disrupted by this rule. Based on the administrative and financial changes required, the commenters requested a transition period for States, local governments, and providers to adjust to the proposed rule. Several commenters noted that the proposed rule would require States to submit amendments to their Medicaid State Plan for approval by CMS before they can come into compliance, noting the length of time it takes to develop a State plan amendment, vet it with the public, and receive approval by CMS.
A number of commenters pointed out that States are not obligated to modify their programs based on the provisions of a proposed regulation; therefore, States may not have done anything thus far to comply with the proposed rule. These commenters justified a lack of action based on the possibility that the rule may be altered following the public comment period.
Some commenters opined that establishing appropriate cost reporting mechanisms, as envisioned in the proposed rule, will require months of work, based on the need to define how costs should be allocated and reported and implement any systems changes that will become necessary. Additionally, some of these commenters note that the nature and extent of documentation required to support costs by governmental providers has not been disclosed by CMS. In addition to the cost reporting and State plan changes cited, one commenter noted that government hospitals would need to be removed from the DRG methodology, after which DRG weights would have to be recalibrated and peer groupings excluding these facilities. Therefore, the commenters have asked for a transition period for compliance following the effective date of the rule.
Some commenters observed that the cost limit provision proposed at § 447.206 would become effective on September 1, 2007, while effective dates for other provisions were not specified in the rule. These commenters asked CMS to clarify when all provisions of the proposed rule would be effective.
With respect to the new cost limit for governmentally-operated health care providers established at § 447.206, a period of transition is warranted in order to ensure that governmentally-operated health care providers document and report their Medicaid costs in a consistent manner. In order to assist States in their obligation to ensure that Medicaid reimbursements to governmentally-operated health care providers do not exceed the individual governmentally-operated health care provider's costs, CMS has developed a general Medicaid cost reporting protocol available on the CMS Web site that specifically addresses the information utilized from each source document and the methods under which costs and revenues will be determined. These protocols have been developed in an effort to address concerns regarding requirements to properly document, audit, and review the costs associated with the provision of Medicaid services in both institutional and non-institutional environments. Timelines for implementation of the cost limit are included in the protocols for both institutional and non-institutional
CMS has developed a general Medicaid Cost Reporting Protocol available on the CMS Web site that specifically addresses the methods under which institutional and non-institutional Medicaid costs will be determined. The protocol was designed to provide States with detailed instructions to determine compliance with Federal requirements.
For purposes of institutional governmentally-operated health care providers, the Medicaid cost limit determination will rely on existing reporting tools used by institutional health care providers. States will not be required to audit financial and cost information provided by individual institutional governmentally-operated health care providers as part of the Medicaid cost limit review. Each of the source documents is subject to reporting and auditing rules specific to the original purpose of that document and independent of the Medicaid cost limit and State review process. The State must render an determination on the cost limit methodology applied to the source documents but will not be required to validate the accuracy of the information and data within the source documents. The Medicaid State plan rate year 2008 will be the first time period subject to the Medicaid cost limit for institutional governmentally-operated health care providers.
For non-institutional services provided to Medicaid eligible individuals, a nationally recognized, standard cost report currently does not exist. Because of this, we will be publishing a standardized cost reporting form that should be used to document such services. The purpose of this standardized form is to document in a uniform manner the cost of providing non-institutional services to Medicaid individuals. The period of time to which this cost report applies will be the Medicaid State plan rate year.
CMS has modified the regulation to include a transition period to allow States and governmentally-operated non-institutional health care providers sufficient time to develop and implement Medicaid cost documentation and reporting processes consistent with the cost report template issued by CMS (including but not limited to changes in State/provider reporting systems, changes to the Medicaid State plan, changes to time studies, establish periodic review and audit processes, etc.), States will not be required to document and report cost information associated with non-institutional Medicaid services until the State's Medicaid State plan rate year 2009. Actual submission of the State's summary report on the Medicaid cost limit for non-institutional services will not be due to CMS until December 31, 2011, which allows States an opportunity to implement periodic review and audit processes for Medicaid non-institutional costs starting in Medicaid State plan rate year 2009.
CMS has modified the regulation to address transitional periods where necessary and detailed cost documentation instructions are available to States as explained above.
Medicaid is a vitally important program that serves very vulnerable individuals, and the Federal government remains committed to funding its share of the cost of providing Medicaid services to eligible individuals. We also note that State decisions will be the major factor in the actual financial impact this regulation will have within each State. CMS recognizes that States play a major role in the administration of the Medicaid program and that legal and financial arrangements between health care providers and units of government vary on a case by case basis. Therefore, CMS has developed standardized and impartial regulatory criteria based upon Federal statue that States must apply on a consistent basis to each health care provider within the State to determine whether or not the health care provider is considered a unit of government under the regulation.
Non-governmentally-operated health care providers, including many of the “public” safety net health care providers, are not affected by the cost limit provision of the regulation and may therefore continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements.
Moreover, the regulation reaffirms State Medicaid financing policy requiring that health care providers be allowed to fully retain their Medicaid payments, another provision of which clearly demonstrates the Federal government's intent to protect the nation's public safety net and its ability to continue delivering critical health care services to Medicaid individuals and the uninsured. Any health care providers that become ineligible to participate in the State financing of Medicaid payments following the effective date of the provisions of this regulation can realize greater net revenues if State or local governments choose to utilize their funding sources to fund non-Federal share obligations to Medicaid payments historically financed by non-governmentally-operated “public” health care providers.
Non-governmentally-operated health care providers, including many of the “public” safety net health care providers, are not affected by the cost limit provision of the regulation and may therefore continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements.
Moreover, one provision of the regulation reaffirms State Medicaid
For the above reasons, we do not believe it is appropriate to delay the regulation.
In a related comment, one commenter expressed an opinion that the criteria of the proposed rule to require Indian Tribes to have generally applicable taxing authority to be considered a unit of government or a governmental health provider contradicts over 100 years of treaties, statutes, executive orders, and court decisions recognizing and cementing the unique government-to-government relationship the United States has with Tribal governments. The commenter noted that some tribal governments have taxing authority but do not exercise their taxing authority. The commenter indicated that since many tribal organizations do not have taxing authority, they would not qualify as a unit of government under the proposed rule. The commenter therefore believed that this criteria for purposes of the Medicaid program is both morally wrong and possibly illegal.
In light of the above, commenters suggested amending proposed § 433.50(a)(1)(i) to specifically address this issue.
CMS has modified the regulation at § 433.50(a)(1)(i) to address Indian tribes as units of government irrespective of their taxing authority.
In addition, CMS is not requiring States to complete the “Tool to Evaluate the Governmental Status of Health care Providers” form for each Indian tribe and tribal organization within the State, because the unique criteria for determining the governmental status of tribes and tribal organizations makes the tool inapplicable to these entities. However, CMS does require each State to specify the qualifying tribes and tribal organizations (per the criteria at § 433.50) in the list of all governmentally-operated health care providers that will be submitted to the CMS Regional Office within 90-days of the effective date of this regulation. Although tribal facilities are exempt from the Medicaid cost limit, the inclusion of tribes and tribal organizations in this list will clarify which entities have been determined by the State as eligible to participate in financing the non-Federal share of Medicaid payments.
We note that currently § 433.51(c) already indicates that “Federal funds authorized by Federal law to be used to match other Federal funds” are permissible sources of financing the non-Federal share of Medicaid expenditures. We further recognize that Federally-granted ISDEAA funds continue to be permissible sources of funding for the non-Federal share of Medicaid expenses.
Other commenters requested that CMS clarify that the provisions of the
Adjustments to budget neutrality are made generally to address the effects on FFP of Federal Medicaid changes (limits or expansions) to benefits, coverage or eligibility under a Medicaid State Plan. For instance, if there was a change in federal law that required a new Medicaid service to be offered to all Medicaid eligible individuals, a State with a comprehensive section 1115 demonstration may request to open their budget neutrality agreements to include the cost of this new service within the agreement because they are required to provide it under the demonstration. This regulation only affects FFP available for Medicaid payments to select providers and not the services and eligibility categories that defined the budget neutrality calculation. Therefore, CMS would not consider this regulation a change that would require the recalculation of existing budget neutrality agreements.
Governmentally-operated health care hospitals that realize a Medicaid managed care “shortfall” may continue to receive Medicaid DSH payments to satisfy such unreimbursed Medicaid costs. The “UPL” referenced by the commenters is a ceiling on Medicaid fee-for-service reimbursement systems and is calculated based on the Medicaid populations covered under such fee-for-service reimbursement system. The inclusion of managed care days in a fee-for-service payment limit demonstration is inconsistent with the purpose of such a demonstration.
The regulations governing payment under the fee for service program are separate from the authority located in § 438 for rates paid under capitated arrangements. Federal regulation requires that rates established for services under capitation arrangements be considered as payment in full. Further, Medicaid capitation payments are rooted in actuarial principles and practices and are appropriate for the individuals covered, and the services to be furnished under the contract. All of these provisions taken together should ensure that every Medicaid provider is paid appropriately for the services they deliver and has the ability to ensure continued access to services delivered on either a fee-for-service or capitated basis.
If a managed care organization were determined to be governmental, we find it illogical that such an entity would utilize CPEs for the financing of its capitation payments. Such participation would not appear to create any benefit over private MCOs as suggested by the commenters. This seems to be counter intuitive to the very nature of managed care. First, a CPE would require reconciliation to actual costs of
A few commenters requested that CMS clarify the proposed rule's applicability to MCOs. The commenters specifically inquired as to how the cost limit applies to government providers participating in an MCO network. Other commenters stated that the proposed rule be clarified to indicate that MCOs, including prepaid inpatient health plans, are not subject to the proposed rule's cost limitation requirements with respect to both a State's payment to a MCO and to a MCO's payment to governmental providers. The commenters recommended that this be specifically articulated within the regulation text itself at §§ 447.206, 447.272(b)(4) and 447.321(b)(4).
One commenter stated that Pre-Paid Inpatient Health Plans (PIHPs) bear risk and must retain the ability to have risk reserves and carry forward funds for services and supports to Medicaid individuals that are specifically approved as part of reinvestment planning. Therefore, limiting these entities to actual cost will cause harm to the Medicaid individuals served.
The commenters questioned whether it is CMS’ intent to either (1) apply the cost limit only to fee-for-service payments by the state agency for services provided to Medicaid individuals while relying on separate statutory or waiver-based authority to impose cost limits or demonstration program expenditures, or (2) to apply the cost limit more broadly than the language of the proposed rule would suggest. The commenters stated that preamble guidance regarding the ongoing validity of expenditure authority granted through existing demonstration projects would help reduce confusion about the intended scope. CMS should also clarify that the limitation to cost of Medicaid services for Medicaid individuals is not intended to limit CMS approved payments under demonstration programs that expressly allow payment for individuals or services not covered under the State Medicaid plan.
The provision of the regulation that addresses a unit of government codifies the existing statutory definitions of a unit of government. This codification of existing Federal statute was established in an effort to assist States in identifying the universe of governmentally-operated health care providers that could receive Medicaid revenues up to the full cost of providing services to Medicaid individuals and clarifies which types of health care providers can participate in financing of the non-Federal share of Medicaid payments.
Another commenter requested that CMS include specific language in the regulatory text at §§ 447.207 and 447.272 to exempt payments authorized by sections 701(d) and 705 of BIPA. These payments allow the State to contribute to its entire safety net for needy individuals.
Further, the commenters questioned how any State can move forward with reimbursement policies incorporating quality measures if they won't apply to all providers of a service.
Under this regulation, governmentally-operated health care providers are assured the opportunity to receive full reimbursement for the cost of serving Medicaid individuals and except when a CPE is utilized as the non-Federal share of Medicaid payments, a cost reimbursement methodology within the Medicaid State plan is not required. States have the flexibility to pay the rate they choose as long as it does not result in Medicaid payments being greater than Medicaid costs in the governmentally-operated health care provider. Non-governmentally-operated health care providers may continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements.
Another commenter stated that the proposed rule could derail their efforts to cover more uninsured through their State's health care improvement act, which follows the President's proposal of shifting Federal funding to help the uninsured buy private insurance and take ownership of their healthcare.
States maintain flexibility, within established Federal statute and regulations, to decide on medically necessary services that will be covered, populations that will be covered and rates that will be paid to health care providers. We will continue to work with States to determine the proper methods to implement such initiatives. There continue to be a variety of mechanisms States can use to achieve its specific goals for its Medicaid program including, but not limited to State plan changes, a Medicaid 1115 demonstration project application or amendment, or through a section 1915(b) or 1915(c) waiver.
The purpose of the regulation was to ensure proper State financing of their share of Medicaid program costs in accordance with Federal statutory and regulatory requirements. The regulation was actually designed to protect health care providers, including safety net providers. Under the provisions of the regulation, governmentally-operated health care providers are assured the opportunity to receive full cost reimbursement for serving Medicaid individuals.
Non-governmentally-operated health care providers are not affected by the cost limit provision of the regulation and therefore may continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements. Moreover, one provision of the regulation reaffirmed State Medicaid financing policy requiring that health care providers be allowed to fully retain their Medicaid payments, another provision which clearly demonstrates the Federal government's intent to protect the nation's safety net and its ability to continue delivering critical health care services to Medicaid individuals and the uninsured. In fact, with regard to participation in the State Medicaid financing, non-governmentally-operated health care providers can realize greater net revenues if State or local government funding sources are utilized to fund non-Federal share obligations to Medicaid payments historically financed by non-governmentally operated “public” health care providers.
Non-governmentally-operated health care providers, including many of the “public” safety net health care providers, are not affected by the cost limit provision of the regulation and may therefore continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements.
Moreover, the regulation reaffirms State Medicaid financing policy requiring that health care providers be allowed to fully retain their Medicaid payments, another provision of which clearly demonstrates the Federal government's intent to protect the nation's public safety net and its ability to continue delivering critical health care services to Medicaid individuals and the uninsured. Any health care providers that become ineligible to participate in the State financing of Medicaid payments following the effective date of the provisions of this regulation can realize greater net revenues if State or local governments choose to utilize their funding sources to fund non-Federal share obligations to Medicaid payments historically financed by non-governmentally-operated “public” health care providers.
Under the provisions of the regulation, governmentally-operated health care providers are assured the opportunity to receive full cost reimbursement for serving Medicaid individuals. Non-governmentally-operated health care providers are not affected by the cost limit provision of the regulation and therefore may continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements.
Moreover, one provision of the regulation reaffirms State Medicaid financing policy requiring that health care providers be allowed to fully retain their Medicaid payments, another provision which clearly demonstrates the Federal government's intent to protect the nation's safety net and its ability to continue delivering critical health care services to Medicaid individuals and the uninsured. In fact, with regard to participation in the State Medicaid financing, non-
The provisions of the regulation did not propose the elimination of any funding for health care providers participating in the Medicaid program, including DSH funding. Rather the purpose of the regulation is to ensure proper State financing of their share of Medicaid program costs in accordance with Federal statutory and regulatory requirements. The regulation was actually designed to protect health care providers, including safety net providers.
Under the provisions of the regulation, governmentally-operated health care providers are assured the opportunity to receive full cost reimbursement for serving Medicaid individuals. Non-governmentally-operated health care providers are not affected by the cost limit provision of the regulation and therefore may continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements.
Moreover, one provision of the regulation reaffirms State Medicaid financing policy requiring that health care providers be allowed to fully retain their Medicaid payments, another provision which clearly demonstrates the Federal government's intent to protect the nation's safety net and its ability to continue delivering critical health care services to Medicaid individuals and the uninsured. In fact, with regard to participation in the State Medicaid financing, non-governmentally-operated health care providers can realize greater net revenues if State or local government funding sources are utilized to fund non-Federal share obligations to Medicaid payments historically financed by non-governmentally operated “public” health care providers.
Some commenters expressed concern regarding the impact the substantial cuts the proposed rule will cause on other types of health care providers, including emergency physicians, nurses and physical therapists. With respect to physicians, a commenter stated that as physician practice costs grow, fewer and fewer physicians will be willing to participate in Medicaid, resulting in more and more individuals utilizing emergency room departments and further straining the health care safety net.
Other commenters expressed that the nation's health safety net is fragile and warned against the cuts in Medicaid spending that would occur under the proposed rule, saying that harm to the safety net will ultimately harm the most vulnerable people in our communities.
Non-governmentally-operated health care providers, including many of the “public” safety net health care providers, are not affected by the cost limit provision of the regulation and may therefore continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements.
Moreover, the regulation reaffirms State Medicaid financing policy requiring that health care providers be allowed to fully retain their Medicaid payments, another provision of which clearly demonstrates the Federal government's intent to protect the nation's public safety net and its ability to continue delivering critical health care services to Medicaid individuals and the uninsured. Any health care providers that become ineligible to participate in the State financing of Medicaid payments following the effective date of the provisions of this regulation can realize greater net revenues if State or local governments choose to utilize their funding sources to fund non-Federal share obligations to Medicaid payments historically
Non-governmentally-operated health care providers, including many of the “public” safety net hospitals, are not affected by the cost limit provision of the regulation and therefore, may continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements. Moreover, one provision of the regulation reaffirms State Medicaid financing policy requiring that health care providers be allowed to fully retain their Medicaid payments, another provision of which clearly demonstrates the Federal government's intent to protect the nation's public safety net and its ability to continue delivering critical health care services to Medicaid individuals and the uninsured.
Teaching hospitals have the newest and most advanced treatments and technologies, and today they are also viewed as front-line responders in the event of a biological, chemical, or nuclear attack or a natural disaster. In many States, teaching hospitals are the only providers of specialized medical services for individuals with serious health conditions. Teaching hospitals also tend to be among the largest Medicaid providers in their States; in fact, one commenter observed that teaching hospitals represent only 6 percent of all hospitals nationally, but about 25 percent of Medicaid discharges are from teaching hospitals. Significant financial investments are necessary for teaching hospitals to continue to fill their critical safety net role in our health care system. The commenters noted that Medicaid is a significant source of revenue for teaching hospitals, commenting that cuts in Medicaid spending and the provisions of the proposed rule could upset the delicate balance of resources that teaching hospitals rely upon to maintain their operations. These commenters suggested that the proposed rule may jeopardize the financial state of teaching hospitals, resulting in potential losses of critical services and reduced access to specialty care.
Another commenter argued that teaching hospitals should not be subject to the proposed cost limit by noting that in prior court filings, CMS has explicitly recognized the value of allowing flexibility for States to direct higher payments to certain hospitals having special needs. The commenter also stated that private hospitals and other hospitals should have the same upper payment limit (UPL) and that a distinct UPL for governmental providers would be unequal and unwarranted.
The DSH program is available to States to provide payments for uncompensated care costs associated with inpatient and outpatient hospital services provided to individuals with no source of third party coverage (that is, uninsured).
The DSH program is available to States to provide payments for uncompensated care costs associated with inpatient and outpatient hospital services provided to individuals with no source of third party coverage (that is, uninsured).
Many other commenters expressed a belief that despite assertions by CMS, the proposed regulation is actually nothing more than an effort to cut Federal Medicaid spending.
The provisions of the regulation were not designed to reduce health care services to Medicaid individuals. Instead the Medicaid cost limit permits all governmentally-operated health care providers the opportunity to receive Medicaid revenues up to the full cost of providing services to Medicaid individuals. Non-governmentally-operated health care providers, including many of the “public” health care providers, are not affected by the Medicaid cost limit provision and may therefore continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements.
Moreover, the regulation reaffirms State Medicaid financing policy requiring that health care providers be allowed to fully retain their Medicaid payments, another provision of which clearly demonstrates the Federal government's intent to protect the nation's public safety net and its ability to continue delivering critical health care services to Medicaid individuals and the uninsured. Any health care providers that become ineligible to participate in the State financing of Medicaid payments following the effective date of this regulation can realize greater net revenues if State or local government funding sources are utilized to fund non-Federal share obligations to Medicaid payments historically financed by non-governmentally-operated “public” health care providers.
The provisions of the regulation were not designed to reduce health care services to Medicaid individuals. Instead the Medicaid cost limit permits all governmentally-operated health care providers the opportunity to receive Medicaid revenues up to the full cost of providing services to Medicaid individuals. Non-governmentally-operated health care providers, including many of the “public” health care providers, are not affected by the Medicaid cost limit provision and may therefore continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements.
Moreover, the regulation reaffirms State Medicaid financing policy requiring that health care providers be allowed to fully retain their Medicaid payments, another provision of which clearly demonstrates the Federal government's intent to protect the nation's public safety net and its ability to continue delivering critical health care services to Medicaid individuals and the uninsured. Any health care providers that become ineligible to participate in the State financing of Medicaid payments following the effective date of this regulation can realize greater net revenues if State or local government funding sources are utilized to fund non-Federal share obligations to Medicaid payments historically financed by non-governmentally-operated “public” health care providers.
The provisions of the regulation were not designed to reduce health care services to Medicaid individuals. Instead the Medicaid cost limit permits all governmentally-operated health care providers the opportunity to receive Medicaid revenues up to the full cost of providing services to Medicaid individuals. Non-governmentally-operated health care providers, including many of the “public” health care providers, are not affected by the Medicaid cost limit provision and may therefore continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements.
Moreover, the regulation reaffirms State Medicaid financing policy requiring that health care providers be allowed to fully retain their Medicaid payments, another provision of which clearly demonstrates the Federal government's intent to protect the nation's public safety net and its ability to continue delivering critical health care services to Medicaid individuals and the uninsured. Any health care providers that become ineligible to participate in the State financing of Medicaid payments following the effective date of this regulation can realize greater net revenues if State or local government funding sources are utilized to fund non-Federal share obligations to Medicaid payments historically financed by non-governmentally-operated “public” health care providers.
For purposes of institutional governmentally-operated health care providers, the Medicaid cost limit determination will rely on existing reporting tools used by institutional health care providers. States will not be required to audit financial and cost information provided by individual institutional governmentally-operated health care providers as part of the Medicaid cost limit review. Each of the source documents is subject to reporting and auditing rules specific to the original purpose of that document and independent of the Medicaid cost limit and State review process. The State must render an determination on the cost limit methodology applied to the source documents but will not be required to validate the accuracy of the information and data within the source documents.
For non-institutional services provided to Medicaid eligible individuals, a nationally recognized, standard cost report currently does not exist. Because of this, we will be publishing a standardized cost reporting form that should be used to document such services. The purpose of this standardized form is to document in a uniform manner the cost of providing non-institutional services to Medicaid individuals. The period of time to which this cost report applies will be the Medicaid State plan rate year.
CMS has modified the regulation to include a transition period to allow States and governmentally operated non-institutional health care providers
CMS has developed a general Medicaid Cost Reporting Protocol available on the CMS website that specifically addresses the methods under which institutional and non-institutional Medicaid costs will be determined. The protocol was designed to provide States with detailed instructions to determine compliance with Federal requirements.
[If you choose to comment only on issues related to Unit of Government Definition (§ 433.50) in this section, please include the caption “Provisions of the Final Regulations” at the beginning of your comments.]
As a result of our review of the comments we received during the public comment period, as discussed in section III of this preamble, we are making the following revisions to the regulation published on January 18, 2007.
We have modified the regulation at § 433.50 to address concerns regarding taxing authority as a requirement for an entity to be considered a unit of government. The regulation has been revised to indicate that a unit of government is a State, a city, a county, a special purpose district, or other governmental unit in the State that has taxing authority or direct access to tax revenues. We have added the phrase “has direct access to tax revenues” to recognize as governmental those entities that do not have taxing authority, but do have direct access to tax revenues that are imposed by a parent or related unit of government. For example, when a tax is imposed and collected by a State but is dedicated for use by a municipality or other entity, that entity would satisfy the criteria of direct access to tax revenues. Similarly, a county-operated hospital that is recognized in the county's budget to receive local tax subsidies via the county appropriation process, and without the need to contract for such tax revenues, would satisfy the criteria of direct access to tax revenues. We have deleted the phrase “generally applicable” because we do not believe it is necessary since the provider tax rules already require that permissible taxes be broad based and uniform. But we interpret the term “taxing authority” in this context to exclude authority to levy user fees in exchange for benefits specific to the payer, even though those fees would be considered a tax for other purposes.
We have also modified the regulation to recognize the explicit reference to State university teaching hospitals in section 1903(w)(6)(A) of the Act. We have added § 433.50(a)(1)(ii)(C) to recognize State university teaching hospitals as a unit of government eligible to participate in the financing of the non-Federals hare of Medicaid payments.
We have also modified the regulation at § 433.50 to address concerns raised about the unique governance arrangements of Indian tribes and tribal organizations. Specifically, paragraph § 433.50(a)(1)(i) has been modified to consider as a unit of government “an Indian tribe as defined in section 4 of the Indian Self-Determination and Education Assistance Act, as amended.” Additionally, we have amended proposed language at § 433.50(a)(1)(ii) by adding a new section (D) to define the criteria under which a health care provider operated by a tribe or tribal organization may also be considered a unit of government under this section. This criteria is consistent with policy articulated in State Medicaid Director (SMD) letters previously issued on October 18, 2005 and June 9, 2006.
In the summary section of the proposed regulation, we indicated that Medicaid managed care organizations (MCOs) are not subject to the Medicaid cost limit provision of this regulation, but this was not expressly identified in § 447.206. In recognition of existing statutory and regulatory instruction applicable to Medicaid reimbursement to Medicaid MCOs, Prepaid Inpatient Health Plans (PIHPs) and Prepaid Ambulatory Health Plans (PAHPs) we have modified the regulation at § 447.206(b) to specifically exempt MCOs, PIHPs and PAHPs from the Medicaid cost limit.
In addition, in recognition of existing statutory instruction applicable to Medicaid reimbursement to Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs), we have modified the regulation at § 447.206(b) to also specifically exempt FQHCs and RHCs from the Medicaid cost limit.
In addition to the exceptions listed above, § 447.206(b) has also been modified to exclude disproportionate share hospital (DSH) payments from the Medicaid cost limit provision at § 447.206. DSH payment adjustments are instead subject to limitations and requirements under section 1923 of the Act.
A primary purpose of the regulation was to limit Medicaid payments to governmentally operated health care providers to the cost of providing services to Medicaid individuals. States will have an obligation to ensure that Medicaid reimbursements to governmentally operated health care providers do not exceed the individual governmentally operated health care provider's costs of serving Medicaid individuals (the newly established a “cost limit”). CMS has modified the regulation and developed protocols in an effort to address concerns regarding requirements to properly document, audit, and review the costs associated with the provision of Medicaid services in both institutional and non-institutional environments.
The Medicare cost allocation process utilized for institutional health care providers is considered a key component in determining Medicaid cost under the rule. Institutional governmentally-operated health care providers (i.e. hospitals, nursing facilities, and intermediate care facilities for the mentally retarded (ICFs/MR)) will be required to provide the State with data extracted from primary source documents as well as copies of the source documents. These documents would include the provider's Medicare cost report (or Medicaid cost report for intermediate nursing facility care and ICFs/MR consistent with Medicare cost reporting principles), and audited financial statements that will be used in conjunction with information provided by the States' Medicaid Management Information Systems (MMIS).
CMS has modified the regulation to provide that the State's review of Medicaid payments to institutional governmentally operated providers to
For all non-institutional services provided to Medicaid eligible individuals, we note that a nationally recognized, standard cost report does not exist. Because of this, we are publishing a standardized cost reporting form that should be used to document such services. The purpose of this standardized form is to document in a uniform manner the cost of providing non-institutional services to Medicaid individuals.
CMS has modified the regulation to include a transition period to allow States and governmentally operated non-institutional providers sufficient time to develop and implement Medicaid cost documentation and reporting processes consistent with the cost report template issued by CMS (including but not limited to changes in State/provider reporting systems, changes to the Medicaid State plan, changes to time studies, etc.), States will not be required to document and report cost information associated with non-institutional Medicaid services until the State's Medicaid State plan rate year 2009. Actual submission of the State's summary report on the Medicaid cost limit for non-institutional services will not be due to CMS until December 31, 2011, which allows States an opportunity to establish periodic review and audit processes for Medicaid non-institutional costs starting in Medicaid State plan rate year 2009.
CMS has developed a general Medicaid Cost Reporting Protocol available on the CMS website that specifically addresses the information utilized from each source document and the methods under which institutional and non-institutional Medicaid costs will be determined. The protocol was designed to provide States with detailed instructions to determine compliance with the Federal requirements.
Each subsequent State review of Medicaid payments to governmentally operated health care providers, after the Medicaid State plan rate years identified above, must be performed annually and completed by the last day of the federal fiscal year ending two years from the Medicaid State plan rate year under review. Each State must submit a summary report to CMS showing the results of the State's review of payments to ensure compliance with the Medicaid cost limit for governmentally-operated health care providers by the last day of the calendar year ending two years from the Medicaid State plan rate year under review.
We have revised some of the introductory wording of this provision to make clear that the requirements of this section are applicable to State Medicaid payment methodologies and do not impose a specific mandate on providers. We have also added a paragraph (b) to § 447.207 to note that payments authorized by Sections 701(d) and 705 of the Benefits Improvement Act of 2000 (BIPA), taxes that are permissible under Section 1903(w) of the Act, and normal operating expenses of conducting business shall not be questioned for purposes of compliance with the provision.
To address concerns that § 447.321 does not identify disproportionate share hospital payments (DSH) as an exception to the Medicaid cost limit and to maintain consistency with the purpose of the Medicaid cost limit and with the statutory provision governing DSH at section 1923 of the Act, § 447.321(c) has been modified to include an exemption for DSH payment adjustments from the application of outpatient hospital upper payment limit.
To address concerns about the impact the proposed regulation might have on payments authorized by Sections 701(d) and 705 of the Benefits Improvement Act of 2000 (BIPA), we have modified the regulation at § 447.207, § 447.272, and § 447.321 to clarify that these unique and statutorily authorized payments are not subject to the upper payment limits or retention provisions of this regulation.
States will be required to apply the statutory and regulatory criteria to each individual health care provider to make initial determinations of governmental status. In connection with the proposed regulation, CMS published an instrument to collect information about the governmental nature of health care providers, referenced herein as the “Tool to Evaluate the Governmental Status of Health Care Provider.” Based on comments received, this tool has been modified to guide States in applying the statutory and regulatory criteria to make the initial determination of a health care provider's governmental status and to create a record supporting this determination relative to each governmentally operated health care provider in the State.
States will be required to keep copies of each completed “Tool to Evaluate the Governmental Status of Health Care Provider” form on file in order to maintain a record of the official State determination regarding the governmentally operated status of individual health care providers. States must report the universe of governmental health care providers in each State by submitting a complete list of such providers to the Associate Regional Administrator for Medicaid of each State's respective CMS Regional Office within 90 days of the effective date of the regulation. CMS reserves the right to disagree with a State's initial determination of governmental status if we believe the State has not consistently applied the statutory and regulatory criteria. In addition, States will be required to submit these forms to CMS for any Medicaid institutional and non-institutional reimbursement State plan amendments and as requested under Medicaid financial management reviews performed by CMS.
[If you choose to comment only on issues related to Unit of Government Definition (§ 433.50) in this section, please include the caption “Collection of Information Requirements” at the beginning of your comments.]
Under the Paperwork Reduction Act of 1995, we are required to provide 30-day notice in the
• The need for the information collection and its usefulness in carrying out the proper functions of our agency.
• The accuracy of our estimate of the information collection burden.
• The quality, utility, and clarity of the information to be collected.
• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
We are soliciting public comment on each of these issues for the following sections of this document that contain information collection requirements (ICRs):
Section 433.51 requires that a certified public expenditure (CPE) be supported by auditable documentation in a form(s) approved by the Secretary that, at a minimum, identifies the relevant category of expenditures under the Medicaid State Plan, demonstrates the cost of providing services to Medicaid recipients, and is subject to periodic State audit and review.
The burden associated with this requirement is the time and effort put forth by a provider to complete the approved form(s) to be submitted with a CPE. Depending upon provider size, we believe that it could take approximately 10-80 hours to fill out the form(s) that would be required for an annual certified public expenditure. We estimate that governmentally-operated health care providers in 50 States will be affected by this requirement. The total number of health care providers affected and the estimated total aggregate hours of paperwork burden for all health care providers (that is, both institutional and non-institutional government health care providers) will be a direct result of the number of health care providers that are determined to be governmentally-operated.
Section 447.206(e) states that each governmentally-operated health care provider must submit annually a cost report to the Medicaid agency which reflects the individual governmentally-operated health care provider's cost of serving Medicaid recipients during the year. The Medicaid Agency must review the cost report to determine that costs on the report were properly allocated to Medicaid and verify that Medicaid payments to the governmentally-operated health care provider during the year did not exceed the governmentally-operated health care provider's cost.
States will have an obligation to ensure that Medicaid reimbursements to governmentally operated health care providers do not exceed the individual governmentally operated health care provider's costs of serving Medicaid individuals (the newly established “cost limit”). CMS has modified the regulation and developed protocols in an effort to address concerns regarding requirements to properly document, audit, and review the costs associated with the provision of Medicaid services in both institutional and non-institutional environments.
The Medicare cost allocation process utilized for institutional health care providers is considered a key component in determining Medicaid cost under the rule. Institutional governmentally-operated health care providers (i.e. hospitals, nursing facilities, and intermediate care facilities for the mentally retarded (ICFs/MR)) will be required to provide the State with data extracted from primary source documents as well as copies of the source documents. These documents would include the provider's Medicare cost report (or CMS-approved cost report for intermediate nursing facility care and ICFs/MR consistent with Medicare cost reporting principles), and audited financial statements that will be used in conjunction with information provided by the States' Medicaid Management Information Systems (MMIS). The protocols provide guidance regarding the methodology States must utilize for determining Medicaid costs associated with these existing cost reporting documents.
For all non-institutional services provided to Medicaid eligible individuals, we note that a nationally recognized, standard cost report does not exist. Because of this, we are establishing a standardized cost reporting form that should be used to document such services. The purpose of this standardized form is to document in a uniform manner the cost of providing non-institutional services to Medicaid individuals. We will submit this information collection for the non-institutional cost documentation to OMB for its review and approval. This information collection is not effective until OMB approves it.
The burden associated with this requirement is the time and effort for the institutional governmentally-operated health care provider to report the cost information annually to the Medicaid Agency and the time and effort involved in the review and verification of the report by the Medicaid Agency. We estimate that it will take a governmentally-operated health care provider 1 hour to prepare and submit the report annually to the Medicaid Agency. We estimate it will take the Medicaid Agency 1 to 10 hours to review and verify the information provided. We are unable to identify the total number of governmentally-operated health care providers affected or the estimated total aggregate hours of paperwork burden for all governmentally-operated health care providers, as such this information will be a direct result of the number of health care providers that are determined to be governmentally operated.
The burden associated with this requirement is the time and effort for the governmentally-operated health care provider to report the cost information annually to the Medicaid Agency and the time and effort involved in the review and verification of the report by the Medicaid Agency. We estimate that it will take a governmentally-operated health care provider 2 to 90 hours to prepare and submit the report annually to the Medicaid Agency. We estimate it will take the Medicaid Agency 1 to 10 hours to review and verify the information provided. We are unable to identify the total number of governmentally-operated health care providers affected or the estimated total aggregate hours of paperwork burden for all governmentally-operated health care providers, as such this information will be a direct result of the number of health care providers that are determined to be governmentally operated.
In the preamble of this final regulation, under the section titled “
As required by section 3504(h) of the Paperwork Reduction Act of 1995, we have submitted a copy of this final regulation to OMB for its review of these information collection requirements described above.
If you comment on these information collection and record keeping requirements, please mail copies directly to the following:
[If you choose to comment only on issues related to Unit of Government Definition (§ 433.50) in this section, please include the caption “Regulatory Impact Analysis” at the beginning of your comments.]
We have examined the impacts of this regulation as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.
Executive Order 12866 (as amended by Executive Order 13258, which merely reassigns responsibility of duties) directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year).
The RFA requires agencies to analyze options for regulatory relief of small businesses. 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 $6.5 million to $31.5 million in any 1 year. Individuals and States are not included in the definition of a small entity.
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 603 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. For the reasons cited below, we have determined that this regulation may have a significant impact on small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. That threshold level is currently approximately $120 million. We are not imposing any unfunded mandates on States that would rise to the $120 million threshold level established by Section 202 of the Unfunded Mandates Reform Act of 1995.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. The provisions of this regulation were designed to ensure consistent application of the Federal statutory instructions regarding the definition of a unit of government for purposes of Medicaid reimbursement and State financing. States continue to maintain flexibility, within Federal statute and regulation, to decide on medically necessary services that will be covered, populations that will be covered and rates that will be paid to health care providers. This regulation merely ensures the fiscal integrity of the Medicaid program. Consistent with this analysis, for purposes of Executive Order 13132, we do not find that this regulation will have a substantial effect on State or local governments.
This rule is a major rule because it is estimated to result in $120 million in savings during the first year and $3.87 billion in savings over five years.
As CMS has examined Medicaid State financing arrangements across the country, we have identified numerous instances in which State financing practices do not comport with the Medicaid statute. Since the summer of 2003, we have reviewed and processed over 1,400 State plan amendments related to State payments to health care providers. Through this examination we have developed a greater understanding of how to ensure that payment and financing arrangements comply with statutory intent. We found that many States make supplemental payments to governmentally-operated health care providers that are in excess of cost. These health care providers, in turn, use that excess of Medicaid revenue over cost to subsidize health care (or other) operations that are unrelated to Medicaid, or they may return a portion of the supplemental payments in excess of cost to the States and/or local government. This regulation strengthens accountability to ensure that statutory requirements within the Medicaid program are met in accordance with sections 1902, 1903, and 1905 of the Act.
As explained in the background section of the preamble, section 1903(w) of the Act permits units of government to participate in the financing of the non-Federal share; however, in some instances States rely on funding from non-governmental entities for the non-Federal share. Because such practices are expressly prohibited by the donations and taxes amendments at section 1903(w) of the Act, we are issuing this regulation to clarify the requirements of entities and health care providers that are able to finance the non-Federal share.
Arrangements in which health care providers did not retain the full amount of their Medicaid payments is inappropriate and inconsistent with statutory construction that the Federal government pays only its proportional cost for the delivery of Medicaid services. When a State claims Federal reimbursement in excess of net payments to health care providers, the FMAP rate has effectively been increased, and federal Medicaid funds are redirected toward non-Medicaid services. When a State chooses to recycle FFP in this manner, the Federal taxpayers in other States disproportionately finance the Medicaid program in the State that is recycling FFP. This regulation is designed to eliminate such practices.
The regulation should also have a beneficial distributive impact on governmentally-operated health care providers because in many States there are a few selected governmentally-operated health care providers receiving payments in excess of cost, while other governmentally-operated health care providers receive a lower rate of reimbursement. This regulation will reduce inflated payments to those few
We have observed that there are a variety of practices used by State and local governments in identifying costs and submitting a CPE as the basis of matching FFP for the provision of Medicaid services. These different cost methods and CPE practices make it difficult to (1) align claimed expenditures with specific services covered under the State plan or identifiable administrative activities; (2) properly identify the actual cost to the governmental entity of providing services to Medicaid recipients or performing administrative activities; and (3) audit and review Medicaid claims to ensure that Medicaid payments are appropriately made. Such circumstances present risks of inflationary costs being certified and excessive claims of FFP. This regulation will facilitate a more consistent methodology in Medicaid cost identification and allocation across the country, thereby improving the fiscal integrity of the program.
Because the RFA includes small governmental jurisdictions in its definition of small entities, we expect this regulation to have a significant economic impact on a substantial number of small entities, specifically health care providers that are operated by units of government, including governmentally-operated small rural hospitals, as they will be subject to the new Medicaid cost limit imposed by this regulation. We have previously reviewed CMS” Online Survey and Certification and Reporting System (OSCAR) data for information about select provider types that may be impacted by this rule. According to the OSCAR data, there are:
• 1,153 hospitals that have identified themselves as operated by local governments or hospital districts/authorities;
• 822 nursing facilities that have identified themselves as operated by counties, cities, or governmental hospital districts;
• 113 intermediate care facilities for the mentally retarded (ICF/MR) that have identified themselves as operated by cities, towns, or counties.
We have not counted State operated facilities in the above numbers because for purposes of the RFA, States are not included in the definition of a small entity. Note further that OSCAR data is self-reported, so the figures provided above do not necessarily reflect the number of governmentally-operated health care providers according to the provisions of this regulation.
Small governmental jurisdictions (population under 50,000) may be impacted by this regulation depending upon their responsibilities for participating in financing of the non-Federal share of Medicaid payments and other governmental obligations to uninsured individuals. If a governmentally-operated health care provider within the small governmental jurisdiction was receiving Medicaid payments in excess of its Medicaid costs of providing health care services to Medicaid individuals, the governmentally-operated health care provider will experience a reduction in Medicaid revenues. While this itself would not result in a direct impact on the small governmental jurisdiction there could be an indirect impact. If the small governmental jurisdiction was not responsible for financing the non-Federal share of such payments and those Medicaid payments above cost were being used to subsidize uninsured health care costs, the small governmental jurisdiction may now have to subsidize the uninsured health care costs out of its own revenues.
On the other hand, if the small governmental jurisdiction was responsible for financing the non-Federal share of Medicaid payments above the individual governmentally-operated health care provider's Medicaid costs, it will no longer have to finance Medicaid payments above costs. The small governmental jurisdiction could then use these previously obligated revenues to satisfy other costs or obligations within its jurisdiction.
This analysis is not unique to small governmental jurisdictions and would hold true for both States and larger local governmental jurisdictions.
Under the provisions of the regulation, all governmentally-operated health care providers will be permitted to receive no more than 100 percent of the cost of serving Medicaid individuals. Some of the governmentally-operated health care providers identified as small entities for RFA purposes may have been receiving Medicaid payments in excess of cost. If a health care provider operated by a small unit of government has been historically receiving Medicaid payments above cost and using excess Medicaid revenues to subsidize other costs outside of the Medicaid program, this regulation would cause a net reduction in revenue to the health care provider.
Governmentally-operated health care providers, including those operated by small units of local government, that are not receiving Medicaid payments in excess of costs would not be adversely impacted by the Medicaid cost limit and would be eligible to receive greater Medicaid revenues, up to the cost limit.
There are health care providers that are considered under the RFA as small entities (including small rural hospitals) but are not governmentally operated; to the extent these providers have been involved in financing the non-Federal share of Medicaid payments, this regulation will clarify whether or not such practices may continue. Non-governmentally-operated health care providers are not affected by the cost limit provision of the regulation and may therefore continue to receive Medicaid payments in excess of the cost of providing services to Medicaid individuals within existing Federal requirements.
Moreover, the provisions of the regulation reaffirm State Medicaid financing policy requiring that health care providers be allowed to fully retain their Medicaid payments. Any health care providers that become ineligible to participate in the State financing of Medicaid payments following the effective date of the provisions of this regulation can realize greater net revenues if State or local government funding sources are utilized to fund non-Federal share obligations to Medicaid payments historically financed by non-governmentally-operated “public” health care providers. On the other hand, if States reduce payment rates to such governmentally operated health care providers after this regulation is effective, such governmentally-operated health care providers may experience a decrease in net revenue.
As stated earlier, for purposes of the RFA, the small entities principally affected by this regulation are governmentally-operated health care providers. In light of the specific universe of small entities impacted by the regulation, the fact that this regulation requires States to allow governmentally-operated health care providers to receive and retain their Medicaid payments, and the allowance for governmentally operated health care providers to receive a Medicaid rate up to cost, we have not identified a need for regulatory relief under the RFA.
Ultimately, this regulation is designed to ensure that Medicaid payments to governmentally-operated health care
With respect to clinical care, we anticipate that this regulation's effect on actual patient services to be minimal. The regulation presents no changes to coverage or eligibility requirements under Medicaid. The rule clarifies statutory financing requirements and allows governmentally-operated health care providers to be reimbursed at levels up to the full cost of providing services to Medicaid individuals. Federal matching funds will continue to be made available based on expenditures for appropriately covered and financed services. While States may need to change reimbursement or financing methods, we do not anticipate that services delivered by governmentally-operated health care providers or private health care providers will change.
The following chart summarizes our estimate of the anticipated effects of this regulation.
These estimates are based on recent reviews of state Medicaid spending. Payment reform addresses both spending through intergovernmental transfers (IGT) and limiting payments to governmentally-operated health care providers to the cost or providing services to Medicaid individuals. For IGT spending, recent reports on spending on Disproportionate Share Hospitals (DSH) and Upper Payment Limit (UPL) spending were reviewed. From these reports, an estimate of the total spending that would be subject to the net expenditure policy was developed and then projected forward using assumptions consistent with the most recent President's Budget projections. The estimate of the savings in federal Medicaid spending as a result of this policy factors in the current authority and efforts of CMS and the impact of recent waivers; the estimate also accounts for the potential effectiveness of future efforts. There is uncertainty in this estimate to the extent that the projections of IGT spending may not match actual future spending and to the extent that the effectiveness of this policy is greater than or less than assumed.
Reports on UPL spending following the most recent legislation concerning UPL were reviewed to develop a projection for total enhanced payments in Medicaid spending. The estimate of savings from this policy reflects both estimates of the amount of UPL spending that exceeds cost and the effectiveness of this policy in limiting payments to cost. The estimate also accounts for transitional UPL payments, which are unchanged under this policy, and for the impact of recent waivers. There is uncertainty in this estimate to the extent that the projections of UPL spending may not match actual future spending, to the extent that the amount of UPL spending above cost differs from the estimated amount, and to the extent that the effectiveness of this policy is greater than or less than assumed.
In developing this regulation various options were considered. We considered seeking to implement policies requiring provider retention of payments, greater accountability for certified public expenditures, and clarification of the definition of a unit of government without any new regulation (using existing statutory and regulatory authority). We determined that the rulemaking process would be a more effective method of implementing these policies because the rulemaking process would better inform affected parties, allow for public input, and make clear that the standards set forth are uniform, fair and consistent with the underlying statutory intent.
We considered deferring to States and local governments to define which entities are units of government for purposes of Medicaid financing. We considered this possibility of deferring to State determinations, but we concluded that it was important for effective oversight review to receive standardized information under a clear, uniform and enforceable standard.
Similarly, we considered allowing governmentally-operated health care providers to be reimbursed at current rates and not be limited to the cost of serving Medicaid individuals. Given the information CMS has gathered regarding the use of Medicaid payments to governmentally-operated health care providers, we find that the provision to limit governmentally-operated health care providers to Medicaid cost offers a way to reasonably reimburse governmentally-operated health care providers while ensuring that Federal matching funds are used for their intended purpose, which is to pay for a covered Medicaid service to a Medicaid beneficiary and not non-Medicaid activities.
Likewise, we considered the option of limitomg only those governmentally-operated health care providers that participate in IGTs and CPEs to the cost of providing Medicaid services to Medicaid individuals. However, we believe it is not appropriate that units of State or local government would “profit” from Federal taxpayer dollars that are intended to match a percentage of the cost of providing services to Medicaid individuals. We do not find that Medicaid payments in excess of cost to governmentally-operated health care providers are consistent with the statutory principles of economy and efficiency.
With respect to the timeframe for implementation of the Medicaid cost
As required by OMB Circular A-4 (available at MACROBUTTON HtmlResAnchor
We expect that this regulation will promote the fiscal integrity of the Medicaid program. The regulation will enhance accountability for States to properly finance the non-Federal share of Medicaid expenditures and allow them to pay reasonable rates to governmentally-operated health care providers. To the extent prior Medicaid payments to governmentally-operated health care providers were inflated, the regulation will reduce such payments to levels that more accurately reflect the actual cost of Medicaid services and ensure that the non-Federal share of Medicaid payments has been satisfied in a manner consistent with the statute. Private health care providers are predominately unaffected by the regulation, and the effect on actual patient services should be minimal.
In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.
Administrative practice and procedure, Child support, Claims, Grant programs-health, Medicaid, Reporting and recordkeeping requirements.
Accounting, Administrative practice and procedure Drugs, Grant programs-health, Health facilities, Health professions, Medicaid Reporting and recordkeeping requirements, Rural areas.
Administrative practice and procedure, Grant programs-health, Health insurance, Reporting and recordkeeping requirements.
Sec. 1102 of the Social Security Act (42 U.S.C. 1302).
(a) * * *
(1) Section 1902(a)(2) and section 1903(w)(7)(G) of the Act, which require States to share in the cost of medical assistance expenditures and permit State and local units of government to participate in the financing of the non-Federal portion of medical assistance expenditures.
(i) A unit of government is a State, a city, a county, a special purpose district, or other governmental unit in the State that: has taxing authority, has direct access to tax revenues, is a State university teaching hospital with direct appropriations from the State treasury, or is an Indian tribe as defined in Section 4 of the Indian Self-Determination and Education Assistance Act, as amended [25 U.S.C. 450b].
(ii) A health care provider may be considered a unit of government only when it is operated by a unit of government as demonstrated by a showing of the following:
(A) The health care provider has generally applicable taxing authority; or
(B) The health care provider has direct access to generally applicable tax revenues. This means the health care provider is able to directly access funding as an integral part of a unit of government with taxing authority which is legally obligated to fund the health care provider's expenses, liabilities, and deficits, so that a contractual arrangement with the State or local government is not the primary or sole basis for the health care provider to receive tax revenues;
(C) The health care provider receives appropriated funding as a State university teaching hospital providing supervised teaching experiences to graduate medical school interns and residents enrolled in a State university in the State; or
(D) The health care provider is an Indian Tribe or Tribal organization (as those terms are defined in Section 4 of the Indian Self-Determination and Education Assistance Act (ISDEAA); 25 U.S.C. 450b) and meets the following criteria:
(
(
(
(a) Funds from units of government may be considered as the State's share in claiming FFP if they meet the conditions specified in paragraphs (b) and (c) of this section.
(b) The funds from units of government are appropriated directly to the State or local Medicaid agency, or are transferred from other units of government (including Indian tribes) to the State or local agency and are under its administrative control, or are certified by the contributing unit of government as representing expenditures eligible for FFP under this section. Certified public expenditures must be expenditures within the meaning of 45 CFR 95.13 that are supported by auditable documentation in a form approved by the Secretary that, at a minimum—
(1) Identifies the relevant category of expenditures under the State plan;
(2) Explains whether the contributing unit of government is within the scope of the exception to limitations on provider-related taxes and donations;
(3) Demonstrates the actual expenditures incurred by the contributing unit of government in providing services to eligible individuals receiving medical assistance or in administration of the State plan; and
(4) Is subject to periodic State audit and review.
(c) The funds from units of government are not Federal funds, or are Federal funds authorized by Federal law to be used to match other Federal funds.
Sec. 1102 of the Social Security Act (42 U.S.C. 1302).
(a)
(b)
(1) Indian Health Services facilities and tribal facilities that are funded through the Indian Self-Determination and Education Assistance Act (Pub. L. 93-638);
(2) Managed Care Organizations (MCOs), Prepaid Inpatient
Health Plans (PIHPs), and Prepaid Ambulatory Health Plans (PAHPs) which are organized and operating in accordance with the provisions of 42 CFR 438;
(3) Federally Qualified Health Centers (FQHCs) and Rural
Health Clinics (RHCs) reimbursed in accordance with Section 1902(bb) of the Act; and
(4)
(i) The aggregate DSH limit using the Federal share of the DSH limit under section 1923(f) of the Act.
(ii) The hospital-specific DSH limit in section 1923(g) of the Act.
(iii) The aggregate DSH limit for institutions for mental disease (IMDs) under section 1923(h) of the Act.
(a)
(2) Reasonable methods of identifying and allocating costs to Medicaid will be determined by the Secretary in accordance with sections 1902, 1903, and 1905 of the Act, as well as 45 CFR 92.22 and Medicare cost principles when applicable.
(3) Institutional governmentally-operated health care providers (i.e., hospitals, nursing facilities, and ICFs/MR) are required to provide the State with data extracted from primary source documents as well as copies of the source documents. These source documents would include the health care provider's Medicare cost report (or Medicaid cost report for intermediate nursing facility care and ICFs/MR consistent with Medicare cost reporting principles, and audited financial statements that will be used in conjunction with information provided by the States' Medicaid Management Information System (MMIS).
(4) Medicaid costs for non-institutional governmentally-operated health care providers must be supported by auditable documentation in a form approved by the Secretary that is consistent with § 433.51(b)(1) through (b)(4) of this chapter.
(d)
(1) In accordance with paragraph (c) of this section, each provider must submit annually a cost report to the Medicaid agency that reflects the individual provider's cost of serving Medicaid recipients during the year.
(2) States may utilize most recently filed cost reports to develop interim rates and may trend those interim rates by an applicable health care-related index. Interim reconciliations must be performed by reconciling the interim Medicaid payment rates to the filed cost report for the spending year in which interim payment rates were made.
(3) Final reconciliation must be performed annually by reconciling any interim payments to the finalized cost report for the spending year in which any interim payment rates were made.
(4) Non-institutional governmentally-operated health care providers must utilize a cost report, approved by the Secretary, beginning in their Medicaid State plan rate year 2009. Interim rates set by States for purposes of Medicaid payments funded by certified public expenditures in Medicaid State plan rate year 2009 must be calculated based on cost data from at least one quarter of their Medicaid State plan rate year 2008 documented in accordance with the cost report approved by the Secretary. Existing certified public expenditure methodologies can be used to make Medicaid payments during Medicaid State plan rate year 2008.
(e)
(f)
(g)
(1)
(2)
(3)
(i) For any cost reports that are not finalized at the time the State performs the review of Medicaid payments to institutional governmentally-operated health care providers, the State should use the “as filed” cost report and indicate such in the summary report to CMS. The State should then submit a corrected summary report to CMS within 30 days of the finalization of the cost report.
(a) Payment methodologies must permit the provider to receive and retain the full amount of the total computable payment for services furnished under the approved State plan (or the approved provisions of a waiver or demonstration if applicable). The Secretary will determine compliance with this provision by examining any associated transactions that are related to the provider's total computable payment to ensure that the State's claimed expenditure, which serves as the basis for Federal Financial Participation, is equal to the State's net expenditure, and that the full amount of the non-Federal share of the payment has been satisfied.
(b)
(1) Use of Medicaid revenues to fund payments that are normal operating expenses of conducting business, such as payments related to taxes (including permissible health-care related taxes), fees, or business relationships with governments unrelated to Medicaid in which there is no connection to Medicaid payment.
(2) Payments authorized by Sections 701(d) and 705 of the Benefits Improvement Act of 2000 (BIPA).
(a) The agency may not pay a provider more for inpatient hospital services under Medicaid than the provider's customary charges to the general public for the services.
(b) [Reserved]
(a)
(1) State government operated facilities (that is, all facilities that are operated by the State) as defined at § 433.50(a) of this chapter.
(2) Non-State government operated facilities (that is, all governmentally operated facilities that are not operated by the State) as defined at § 433.50(a) of this chapter.
(3) Privately operated facilities, that is, all facilities that are not operated by a unit of government as defined at § 433.50(a) of this chapter.
(b)
(2) For State government operated facilities and for non-State government operated facilities, upper payment limit refers to the individual health care provider's Medicaid cost as defined at § 447.206.
(3) Except as provided in paragraph (c) of this section, aggregate Medicaid payments to the group of privately operated facilities described in paragraph (a) of this section may not exceed the upper payment limit described in paragraph (b)(1) of this section.
(4) Except as provided in paragraph (c) of this section, Medicaid payments to State government operated facilities and non-State government operated facilities must not exceed the individual health care provider's Medicaid cost as documented in accordance with § 447.206.
(c)
(2)
(i) The aggregate DSH limit using the Federal share of the DSH limit under section 1923(f) of the Act.
(ii) The hospital-specific DSH limit in section 1923(g) of the Act.
(iii) The aggregate DSH limit for institutions for mental disease (IMDs) under section 1923(h) of the Act.
(3) The limitation in paragraph (b) of this section does not apply to payments authorized by Sections 701(d) and 705 of the Benefits Improvement Protection Act of 2000 (BIPA).
(d)
(1) For State government operated and non-State government operated hospitals, nursing facilities and ICFs/MR “ Medicaid State plan rate year 2008.
(2) For all other facilities—March 13, 2001.
(a)
(1) State government operated facilities (that is, all facilities that are operated by the State) as defined at § 433.50(a) of this chapter.
(2) Non-State government operated facilities (that is, all governmentally operated facilities that are not operated by the State) as defined at § 433.50(a) of this chapter.
(3) Privately operated facilities that is, all facilities that are not operated by a unit of government as defined at § 433.50(a) of this chapter.
(b)
(2) For State government operated facilities and for non-State government operated facilities, upper payment limit refers to the individual health care provider's Medicaid cost as defined at § 447.206.
(3) Except as provided in paragraph (c) of this section, aggregate Medicaid payments to the group of privately operated facilities within one of the categories described in paragraph (a) of this section may not exceed the upper payment limit described in paragraph (b)(1) of this section.
(4) Except as provided in paragraph (c) of this section, Medicaid payments to State government operated facilities and non-State government operated facilities must not exceed the individual health care provider's Medicaid cost as documented in accordance with § 447.206.
(c)
(2)
(i) The aggregate DSH limit using the Federal share of the DSH limit under section 1923(f) of the Act.
(ii) The hospital-specific DSH limit in section 1923(g) of the Act.
(iii) The aggregate DSH limit for institutions for mental disease (IMDs) under section 1923(h) of the Act.
(3) The limitation in paragraph (b) of this section does not apply to payments authorized by Sections 701(d) and 705 of the Benefits Improvement Protection Act of 2000 (BIPA).
(d)
(1) For State government operated and non-State government operated hospitals—Medicaid State plan rate year 2008.
(2) For State government operated and non-State government operated clinics—Medicaid State plan rate year 2009.
(3) For all other facilities—March 13, 2001.
Sec. 1102 of the Social Security Act (42 U.S.C. 1302).
(a) Funds from units of government may be considered as the State's share in claiming FFP if they meet the conditions specified in paragraphs (b) and (c) of this section.
(b) The funds from units of government are appropriated directly to the State or local Medicaid agency, or are transferred from other units of government (including Indian tribes) to the State or local agency and are under its administrative control, or are certified by the contributing unit of government as representing expenditures eligible for FFP under this section. Certified public expenditures must be expenditures within the meaning of 45 CFR 95.13 that are supported by auditable documentation in a form approved by the Secretary that, at a minimum—
(1) Identifies the relevant category of expenditures under the State plan;
(2) Explains whether the contributing unit of government is within the scope of the exception to limitations on provider-related taxes and donations;
(3) Demonstrates the actual expenditures incurred by the contributing unit of government in providing services to eligible individuals receiving medical assistance or in administration of the State plan; and
(4) Is subject to periodic State audit and review.
(c) The funds from units of government are not Federal funds, or are Federal funds authorized by Federal law to be used to match other Federal funds.
The republication and revision read as follows:
Other regulations applicable to SCHIP programs include the following:
(a) HHS regulations in § 433.50 through § 433.74 of this chapter (sources of non-Federal share and Health Care-Related Taxes and Provider-Related Donations) and § 447.207 of this chapter (Retention of payments) apply to States' SCHIP programs in the same manner as they apply to States' Medicaid programs.