80 FR 32861 - Rulemaking Procedures-Federal Motor Carrier Safety Regulations; Treatment of Confidential Business Information
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration Federal Register Volume 80, Issue 111 (June 10, 2015)
Federal Motor Carrier Safety Administration
Federal Register Volume 80, Issue 111 (June 10, 2015)
| Page Range | 32861-32865 | |
| FR Document | 2015-14181 |
[Federal Register Volume 80, Number 111 (Wednesday, June 10, 2015)] [Rules and Regulations] [Pages 32861-32865] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-14181] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Part 389 [Docket No. FMCSA-2015-0168] RIN 2126-AB79 Rulemaking Procedures--Federal Motor Carrier Safety Regulations; Treatment of Confidential Business Information AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: FMCSA amends its Rulemaking Procedures by adding a new section establishing the standards and procedures that the Agency will use regarding the submission of certain [[Page 32862]] confidential commercial or financial information that is referred to in this rule as ``confidential business information'' (CBI). This rule also sets forth the procedures for asserting a claim of confidentiality by parties who voluntarily submit CBI to the Agency in connection with a notice-and-comment rulemaking and in a manner consistent with the standards adopted in today's rule. DATES: This final rule is effective June 10, 2015. FOR FURTHER INFORMATION CONTACT: Kim McCarthy, Office of Chief Counsel, Regulatory Affairs Division (MC-CCR), Federal Motor Carrier Safety Administration, 1200 New Jersey Ave. SE., Washington, DC 20590; by telephone at 202-366-0834. If you have questions on viewing or submitting material to the public docket, contact Docket Services, telephone (202) 366-9826. SUPPLEMENTARY INFORMATION: Legal Basis for Rulemaking Section 552(b)(4) of the Freedom of Information Act (FOIA) exempts from public disclosure ``trade secrets and commercial or financial information obtained from a person and privileged or confidential''. 5 U.S.C. 552(b)(4). There is a substantial body of Federal case law interpreting and upholding this exemption, commonly referred to as ``FOIA Exemption 4.'' An underlying theme of the FOIA Exemption 4 cases is that the exemption is ``intended to protect the government as well as the individual,'' including advancing the efficiency of government operations. National Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 767 (D.C. Cir. 1974). Like other Federal agencies, FMSCA has adopted procedural rules implementing the FOIA. 49 CFR 389.7. Agencies' procedures for exempting CBI from disclosure under FOIA vary. In today's rule, FMCSA establishes procedures that the Agency will use for the submission of certain CBI that is presumptively exempt from public disclosure under FOIA Exemption 4. These procedures apply to information voluntarily submitted to the Agency in response to a notice-and-comment rulemaking and that falls within the designated classes of information established in accordance with the rule. Today's rule incorporates the confidentiality standard for CBI adopted by the U.S. Court of Appeals for the D.C. Circuit in Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992) (en banc), in which the court distinguished between information the government compels and that which is voluntarily submitted to help further government functions, such as rulemakings. The court held that information voluntarily submitted to the government should be treated as confidential under FOIA Exemption 4 as long as the submitter can show that it is not customarily released to the general public. Id. at 880. This regulation is published as a final rule and effective on June 10, 2015. Under the Administrative Procedure Act (APA), agencies may promulgate final rules only after providing notice and an opportunity for public comment. 5 U.S.C. 553(b) and (c). This requirement does not apply, however, to ``interpretative rules, general statements of policy, or rules of agency organization, procedure or practice.'' 5 U.S.C. 553(b)(A) (emphasis added). Today's final rule establishes procedures for submitting CBI, and FMCSA therefore determines that notice and comment is unnecessary. In addition, this rule makes no substantive changes to the motor carrier safety regulations and is therefore not a substantive rule subject to the APA's requirement that publication be made at least 30 days before its effective date. 5 U.S.C. 553(d). Before prescribing any regulations, FMCSA must also consider their benefits and costs. 49 U.S.C. 31136(c)(2)(A) and 31502(d). Those factors are discussed in this final rule. Background Information FMCSA has a recurring occasional need to receive CBI in order to improve the Agency's ability to promulgate regulations that: (1) Are evidence-based; (2) take into account the operational and financial realities of regulated parties; and (3) result in improved safety for motor carriers, drivers, and the general public. Historically, FMCSA has received limited amounts of usable data submitted as part of the rulemaking comment process, even in response to specific requests for data on particular topics. FMCSA believes that the procedures and confidentiality protections set forth in today's rule will optimize the Agency's ability to receive necessary CBI in response to notice-and- comment rulemakings. The Agency recognizes the need to add confidentiality assurances to commenters who provide CBI. Today's rule balances the interests of FMCSA, persons who choose to submit CBI to the Agency, and the public. First, this rule responds to FMCSA's need for pertinent data by facilitating its ability to obtain information necessary for the development of particular rulemakings. Today's rule authorizes the FMCSA Administrator to define classes of information, which are presumptively confidential, based on the confidentiality standard for voluntarily submitted information adopted by the D.C. Circuit in Critical Mass, as noted above. Under the procedures adopted, the specific items of information included within a class will be determined on an as needed basis, depending on the informational requirements of each particular rulemaking. Because the Agency will invite the submission of CBI that is specifically calibrated to inform the rulemaking, FMCSA believes this procedure will significantly enhance the efficacy of responsive comments and, ultimately, the final rule. Second, by making confidential class determinations, this rule will alleviate the burden on commenters to submit individual claims for confidential treatment, as well as the Agency's burden to evaluate requests for confidential treatment submitted on an individual basis. Third, this rule responds to the interests of commenters who wish to protect their submitted information from disclosure in the public domain because it is confidential within the meaning of the FOIA. It establishes the standards and procedures by which submitters of CBI must substantiate their request for confidential treatment. Today's rule also states that, if those qualifying requirements are met and maintained, the Agency will not disclose the CBI in the public docket or in response to a FOIA request. Fourth, this rule responds to the public's interest in transparency and disclosure in the rulemaking process. It requires FMCSA to describe through summarization, aggregation, or some other de-identified means, any CBI submitted in accordance with these procedures and on which the Agency relies in developing a final rule. FMCSA must also explain how such CBI assisted in formulating that final rule. Finally, this rule permits the public disclosure of information initially designated as confidential by the submitter if the Agency finds that the submitter fails to meet or maintain the confidentiality criteria established in this rule. In addition, to the extent that commenters who choose to submit CBI in accordance with the adopted procedures also wish to provide non-confidential information, their comments must be segregated and filed in the rulemaking's public docket. [[Page 32863]] Regulatory Analyses Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review), and DOT Regulatory Policies and Procedures FMCSA considered the impact of this procedural rule under Executive Orders 12866 and 13563 and DOT's regulatory policies and procedures (44 FR 11034; February 26, 1979). The Agency has determined this rule does not constitute a significant regulatory action within the meaning of Executive Order 12866, as supplemented by Executive Order 13563, or DOT's regulatory policies and procedures. FMCSA expects that the economic impact of this rule will be minimal, as it merely codifies the procedures by which CBI may be voluntarily submitted to FMCSA in connection with notice-and-comment rulemakings. This rule does not alter the confidentiality threshold established by FOIA Exemption 4, as currently reflected in the FOIA procedures of both FMCSA (49 CFR 389.5(b)) and the DOT (49 CFR part 7). It is adopted to address the concerns of potential submitters of CBI as well as the Agency's need to receive certain commercial and financial information that is eligible for confidential treatment under FOIA Exemption 4. Today's rule imposes a minimal additional burden on parties who elect to submit CBI to FMCSA since they will now be required to complete a standardized affidavit certifying that the submitted information meets the confidentiality threshold established by FOIA Exemption 4. FMCSA expects that the amount of time and resources that CBI submitters will devote to completing the standardized CBI affidavit will be minimal. This rule does not change the current burden imposed on submitters to ensure that the information they designate as confidential meets the established FOIA criteria. The Agency may realize additional costs associated with its use of resources to review submitted CBI, subjected to request for public disclosure under the FOIA, in order to confirm that the information is withheld from the public in accordance with FOIA Exemption 4. We expect the increase in the use of Agency resources devoted to FOIA review will be minimal. Although this rule does not change the Agency's current role in reviewing confidential information subject to request for disclosure under the FOIA, we anticipate that the volume of FOIA requests may increase due to the fact that FMCSA will specifically solicit CBI for submission under informational categories established in accordance with today's final rule. Today's rule is intended to increase the amount of CBI submitted to the Agency. FMCSA expects any additional FOIA review costs will be minimal, however, since CBI will be submitted under informational categories already determined by the Agency to be presumptively confidential. FMCSA believes the potential marginal increase in costs associated with the adoption of this rule is more than outweighed by the benefits for both submitters of CBI and for the Agency. In addition, this rule enhances FMCSA's ability to promulgate rules that are data-driven and evidence-based; therefore, regulated entities and the public will also benefit. Regulatory Flexibility Act Pursuant to the Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FMCSA is not required to prepare a final regulatory flexibility analysis under 5 U.S.C. 604(a) for this final rule because the agency has not issued a notice of proposed rulemaking prior to this action. FMCSA has therefore determined that it has good cause to adopt the rule without notice-and- comment. Assistance to Small Entities In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, FMCSA wants to assist small entities in understanding this final rule so that they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the final rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the FMCSA point of contact, Ms. Kim McCarthy, listed in the FOR FURTHER INFORMATION CONTACT section of this final rule. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $151 million (which is the value equivalent of $100 million in 1995, adjusted for inflation to 2012 levels) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Paperwork Reduction Act This final rule will call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Executive Order 13132 (Federalism) A rule has implications for Federalism under Section 1(a) of Executive Order 13132 if it has ``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.'' FMCSA has determined that this final rule will not have substantial direct costs on or for States, nor would it limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation. Therefore, this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. Executive Order 12988 (Civil Justice Reform) This final 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. Executive Order 13045 (Protection of Children) E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies issuing ``economically significant'' rules, if the regulation also concerns an environmental health or safety risk that an agency has reason to believe may disproportionately affect children, to include an evaluation of the regulation's environmental health and safety effects on children. The Agency determined this final rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, the Agency does not anticipate that this regulatory action could in any respect present an environmental or safety risk that could disproportionately affect children. Executive Order 12630 (Taking of Private Property) FMCSA reviewed this final rule in accordance with E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property [[Page 32864]] Rights, and has determined it will not effect a taking of private property or otherwise have taking implications. Privacy The Consolidated Appropriations Act, 2005, (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note) requires the Agency to conduct a privacy impact assessment (PIA) of a regulation that will affect the privacy of individuals. This rule does not involve the collection of personally identifiable information (PII). The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies and any non-Federal agency which receives records contained in a system of records from a Federal agency for use in a matching program. The E-Government Act of 2002, Public Law 107-347, Sec. 208, 116 Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct a privacy impact assessment for new or substantially changed technology that collects, maintains, or disseminates information in an identifiable form. No new or substantially changed technology would collect, maintain, or disseminate information as a result of this rule. Accordingly, FMCSA has not conducted a privacy impact assessment. Executive Order 12372 (Intergovernmental Review of Federal Programs) The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs do not apply to this program. Executive Order 13211 (Energy Supply, Distribution or Use) FMCSA has analyzed this final rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that it is not a ``significant energy action'' under that order because it is not a ``significant regulatory action'' likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects under E.O. 13211. Indian Tribal Governments (E.O. 13175) This rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. National Technology Transfer and Advancement Act (Technical Standards) The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) are standards that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment (NEPA, CAA, Environmental Justice) FMCSA analyzed this final rule for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and determined that this action is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under FMCSA Order 5610.1 (69 FR 9680, March 1, 2004), Appendix 2, paragraph (6b) that covers editorial and procedural regulations. The CE is available for inspection or copying in the Regulations.gov Web site listed under ADDRESSES. FMCSA also analyzed this action under the Clean Air Act, as amended (CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's general conformity requirement since it does not affect direct or indirect emissions of criteria pollutants. Under E.O. 12898, each Federal agency must identify and address, as appropriate, ``disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations'' in the United States, its possessions, and territories. FMCSA evaluated the environmental justice effects of this rule in accordance with the E.O. and has determined that no environmental justice issue is associated with this rule, nor is there any collective environmental impact that would result from its promulgation. List of Subjects in 49 CFR Part 389 Administrative practice and procedure, Highway safety, Motor carriers, Motor vehicle safety. In consideration of the foregoing, FMCSA amends 49 CFR part 389 to read as follows: PART 389--RULEMAKING PROCEDURES--FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION 0 1. The authority citation for part 389 continues to read as follows: Authority: 49 U.S.C. 113, 501 et seq., subchapters I and III of chapter 311, chapter 313, and 31502; 42 U.S.C. 4917; and 49 CFR 1.87. 0 2. Add a definition of ``Confidential business information'' to Sec. 389.3 in alphabetical order to read as follows: Sec. 389.3 Definitions. * * * * * Confidential business information means trade secrets or commercial or financial information that is privileged or confidential, as described in 5 U.S.C. 552(b)(4). Commercial or financial information is considered confidential if it was voluntarily submitted and is the type of information that is customarily not released to the general public by the person or entity from whom it was obtained. 0 3. Add Sec. 389.9 to subpart A to read as follows: Sec. 389.9 Treatment of confidential business information. (a) Purpose. This section establishes the standards and procedures by which the Agency will solicit and receive certain confidential commercial or financial information, as that term is used in the Freedom of Information Act (5 U.S.C. 552(b)(4)), categorically referred to below as ``confidential business information,'' and the manner in which the Agency will protect such information from public disclosure in accordance with 5 U.S.C. 552(b)(4). (b) Confidential class determinations. The Administrator may make and issue a class determination, which shall pertain to a specified rulemaking and shall clearly identify categories of information included within the class. Information submitted under the class determination and conforming to the characteristics of the class will be treated as presumptively confidential and accorded the non- disclosure protections described in paragraph (h) of this section. The Administrator may establish a class upon finding that: (1) FMCSA seeks to obtain related items of commercial or financial [[Page 32865]] information as described in 5 U.S.C. 552(b)(4); (2) The class determination would facilitate the voluntary submission of information necessary to inform the rulemaking; and (3) One or more characteristics common to each item of information in the class will necessarily result in identical treatment, and that it is therefore appropriate to treat all such items as a class under this section. (c) Frequency and content of class determinations. Class determinations may be defined by the Administrator on an as needed basis and shall include substantive criteria established in accordance with the informational needs of the particular rulemaking. (d) Modification or amendment. The Administrator may amend or modify any class determination established under this section. (e) Publication. Once the Administrator has made a class determination, the Agency shall publish the class determination in the Federal Register. If the Administrator amends or modifies any class determination established and published in accordance with this section, such changes will be published in the Federal Register. (f) Submission of confidential business information. Persons wishing to submit information in accordance with a class determination established under authority of this section must complete and sign, under penalties of perjury, an Affidavit in Support of Request for Confidentiality (Affidavit), as set forth in Appendix A to this part. In the event that information is submitted under more than one designated class, each submission must include an executed Affidavit, asserting, among other factors, that: (1) The information is submitted to the Agency voluntarily; (2) The information is of a type customarily not disclosed to the public by the submitter; (3) The information, to the best of the submitter's knowledge and belief, has not been disclosed to the public; and (4) The information satisfies the substantive criteria for the class as established by the Administrator under authority of paragraph (b) of this section. (g) Submission of comments not containing confidential business information. If a submitter elects to provide commentary in addition to the confidential business information submitted under one or more classes designated under this section, any portion of a submitter's additional commentary that does not contain confidential business information shall be filed in the public docket in the form and manner set forth in the rulemaking. (h) Non-disclosure of confidential business information. In accordance with the provisions of 5 U.S.C. 552(b)(4), information submitted under this section shall not be available for inspection in the public docket, nor shall such information be provided by the Agency in response to any request for the information submitted to the Agency under 5 U.S.C. 552, except as provided for in paragraph (j) of this section. (1) If a requester brings suit to compel the disclosure of information submitted under this section, the Agency shall promptly notify the submitter. (2) The submitter may be joined as a necessary party in any suit brought against the Department of Transportation or FMCSA for non- disclosure. (i) Use of confidential business information. To the extent that the Agency relies upon confidential business information submitted under paragraph (f) of this section in formulating a particular rule, the Agency shall, in the preamble of the final rule, disclose its receipt of such information under a designated class and shall describe the information in a de-identified form, including by summary, aggregation or other means, as necessary, to sufficiently explain the Agency's reasoning while maintaining the confidentiality of the information. (j) Disclosure of confidential business information. (1) If the Administrator finds that information submitted to the Agency under paragraph (f) of this section fails to satisfy the requirements set forth in paragraphs (f)(2), (3) or (4), or that the Affidavit accompanying the information submitted under paragraph (f) is false or misleading in any material respect, the Agency shall disclose the non- conforming information by placing it in the public docket for the particular rulemaking, within 20 days following written notice to the submitter of its decision to do so, except that: (i) Submitters may, within 10 days of receipt of such notice, provide the Agency with a written statement explaining why the submitted information conforms to the requirements of paragraph (f) of this section and thus, should not be disclosed. The Agency shall continue to withhold the information from the public docket until completing its review of the submitter's statement. The Agency may, following timely review of the submitter's statement, determine that disclosure is not required under this paragraph. In any event, the Agency shall advise the submitter in writing of its decision concerning whether the information shall be disclosed in the public docket. (ii) [Reserved] (2) Notice of the Agency's intention to disclose the submitted information is not required if the Administrator determines that the entity submitting such information has authorized its disclosure to the public. (3) If, at the time the Administrator determines that the submitted information fails to comply with the requirements set forth in paragraph (f), such information is the subject of a FOIA request, the requirements of 49 CFR 7.29 shall apply. 0 4. Add Appendix A to Part 389 to read as follows: APPENDIX A TO PART 389 AFFIDAVIT IN SUPPORT OF REQUEST FOR CONFIDENTIALITY I, _______, pursuant to the provisions of 49 CFR part 389, section 389.9, state as follows: (1) I am [insert official's name, title] and I am authorized by [insert name of entity] to execute this Affidavit on its behalf; (2) I certify that the information contained in the document(s) attached to this Affidavit is submitted voluntarily, with the claim that the information is entitled to confidential treatment under 5 U.S.C. 552(b)(4); (3) I certify that the information contained in the documents attached to this Affidavit is of a type not customarily disclosed to the general public by [insert name of entity]; (4) I certify that, to the best of my knowledge, information and belief, the information contained in the documents attached to this Affidavit, for which confidential treatment is claimed, has never been released to the general public or been made available to any unauthorized person outside [insert name of entity]; (5) I certify that this information satisfies the substantive criteria set forth in the notice published in the Federal Register on ___[insert date of rule-specific publication in month/day/year format] under FMCSA Docket Number [insert docket number]. (6) I make no representations beyond those made in this Affidavit, and, in particular, I make no representations as to whether this information may become available outside [insert name of entity] due to unauthorized or inadvertent disclosure; and (7) I certify under penalties of perjury that the foregoing statements are true and correct. Executed on this __day of __, __. _________(signature of official) Issued under the authority of delegation in 49 CFR 1.87. May 27, 2015. T.F. Scott Darling III, Chief Counsel. [FR Doc. 2015-14181 Filed 6-9-15; 8:45 am] BILLING CODE 4910-EX-P
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§ 1652.215–70 Rate Reduction for periods the overcharge was retained by period, except as noted in paragraph
Defective Pricing or Defective Cost or the Carrier shall be used; (b)(3)(iii) of this clause.
Pricing Data. (2) A penalty equal to the amount of (ii) If, at the time of the rate
* * * * * overpayment, if the Carrier knowingly reconciliation, the subscription rates are
(a) If any rate established in submitted cost or pricing data which found to be higher than the equivalent
connection with this contract was was incomplete, inaccurate, or rates for the SSSG, the carrier shall
increased because: noncurrent; and, reimburse the Fund, for example, by
(1) The Carrier submitted, or kept in (3) Simple interest on the MLR reducing the FEHB rates for the next
its files in support of the FEHBP rate, penalty from the date on which the contract term to reflect the difference
cost or pricing data that were not penalty should have been paid to the between the estimated rates and the
complete, accurate, or current as FEHB Fund to the date on which the rates which are derived using the
certified in one of the Certificates of penalty was or will be actually paid to methodology of the SSSG, except as
Accurate Cost or Pricing Data (FEHBAR the FEHB fund. The interest rate shall noted in paragraph (b)(3)(iii) of this
1615.406–2); be calculated as specified in paragraph clause.
(2) The Carrier submitted, or kept in (c)(1) of this section. (iii) Carriers may provide additional
its files in support of the FEHBP rate, ■ 9. In § 1652.216–70, revise paragraphs guaranteed discounts to the FEHBP that
cost or pricing data that were not (b)(2), (3), (7), and (8) to read as follows: are not given to the SSSG. Any such
accurate as represented in the rate guaranteed discounts must be clearly
reconciliation documents or MLR § 1652.216–70 Accounting and price identified as guaranteed discounts. After
adjustment.
Calculation; the beginning of the contract year for
(3) The Carrier developed FEHBP * * * * * which the rates are set, these guaranteed
rates for traditional community rated (b) * * * FEHBP discounts may not be adjusted.
(2). Effective January 1, 2013 all
plans with a rating methodology and * * * * *
community rated plans must develop
structure inconsistent with that used to (7) Carriers may provide additional
the FEHBP’s rates using their State-filed
develop rates for a similarly sized guaranteed discounts to the FEHBP.
rating methodology or, if not required to
subscriber group (see FEHBAR Any such guaranteed discounts must be
file with the State, their standard
1602.170–13) as certified in the clearly identified as guaranteed
written and established rating
Certificate of Accurate Cost or Pricing discounts. After the beginning of the
methodology. A carrier who mandated
Data for Community Rated Carriers; contract year for which the rates are set,
by the State to use traditional
(4) The Carrier, who is not mandated these guaranteed FEHBP discounts may
community rating will be subject to
by the State to use traditional not be adjusted.
paragraph (b)(2)(ii) of this clause. All
community rating, developed FEHBP (8) Carriers may not impose
other carriers will be subject to
rates with a rating methodology and surcharges (loadings not defined based
paragraph (b)(2)(i) of this clause.
structure inconsistent with its State- on an established rating method) on the
(i) The subscription rates agreed to in
filed rating methodology (or if not FEHBP subscription rates or use
this contract shall meet the FEHB-
required to file with the State, their surcharges in the rate reconciliation
specific MLR threshold as defined in
standard written and established rating process. If the carrier is subject to the
FEHBAR 1602.170–14. The ratio of a
methodology) or inconsistent with the SSSG rules and imposes a surcharge on
plan’s incurred claims, including the
FEHB specific medical loss ratio (MLR) the SSSG, the carrier cannot impose the
carrier’s expenditures for activities that
requirements (see FEHBAR 1602.170– surcharge on FEHB.
improve health care quality, to total
13); or * * * * *
premium revenue shall not be lower
(5) The Carrier submitted or, kept in than the FEHB-specific MLR threshold [FR Doc. 2015–14219 Filed 6–9–15; 8:45 am]
its files in support of the FEHBP rate, published annually by OPM in its rate BILLING CODE 6325–63–P
data or information of any description instructions.
that were not complete, accurate, and (ii) The subscription rates agreed to in
current—then, the rate shall be reduced this contract shall be equivalent to the DEPARTMENT OF TRANSPORTATION
in the amount by which the price was subscription rates given to the carrier’s
increased because of the defective data similarly sized subscriber group (SSSG) Federal Motor Carrier Safety
or information. as defined in FEHBAR 1602.170–13. Administration
* * * * * The subscription rates shall be
(c) When the Contracting Officer determined according to the carrier’s 49 CFR Part 389
determines that the rates shall be established policy, which must be [Docket No. FMCSA–2015–0168]
reduced and the Government is thereby applied consistently to the FEHBP and
entitled to a refund or that the to the carrier’s SSSG. If the SSSG RIN 2126–AB79
Government is entitled to a MLR receives a rate lower than that
penalty, the Carrier shall be liable to Rulemaking Procedures—Federal
determined according to the carrier’s
and shall pay the FEHB Fund at the Motor Carrier Safety Regulations;
established policy, it is considered a
time the overpayment is repaid or at the Treatment of Confidential Business
discount. The FEHBP must receive a
time the MLR penalty is paid— Information
discount equal to or greater than the
(1) Simple interest on the amount of carrier’s SSSG discount. AGENCY: Federal Motor Carrier Safety
the overpayment from the date the
wreier-aviles on DSK5TPTVN1PROD with RULES
(3) If subject to paragraph (b)(2)(ii) of Administration (FMCSA), DOT.
overpayment was paid from the FEHB this clause, then: ACTION: Final rule.
Fund to the Carrier until the date the (i) If, at the time of the rate
overcharge is liquidated. In calculating reconciliation, the subscription rates are SUMMARY: FMCSA amends its
the amount of interest due, the quarterly found to be lower than the equivalent Rulemaking Procedures by adding a
rate determinations by the Secretary of rates for the SSSG, the carrier may new section establishing the standards
the Treasury under the authority of 26 include an adjustment to the Federal and procedures that the Agency will use
U.S.C. 6621(a)(2) applicable to the group’s rates for the next contract regarding the submission of certain
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information as described in 5 U.S.C. confidential business information shall shall advise the submitter in writing of
552(b)(4); be filed in the public docket in the form its decision concerning whether the
(2) The class determination would and manner set forth in the rulemaking. information shall be disclosed in the
facilitate the voluntary submission of (h) Non-disclosure of confidential public docket.
information necessary to inform the business information. In accordance (ii) [Reserved]
rulemaking; and with the provisions of 5 U.S.C.
(3) One or more characteristics 552(b)(4), information submitted under (2) Notice of the Agency’s intention to
common to each item of information in this section shall not be available for disclose the submitted information is
the class will necessarily result in inspection in the public docket, nor not required if the Administrator
identical treatment, and that it is shall such information be provided by determines that the entity submitting
therefore appropriate to treat all such the Agency in response to any request such information has authorized its
items as a class under this section. for the information submitted to the disclosure to the public.
(c) Frequency and content of class Agency under 5 U.S.C. 552, except as (3) If, at the time the Administrator
determinations. Class determinations provided for in paragraph (j) of this determines that the submitted
may be defined by the Administrator on section. information fails to comply with the
an as needed basis and shall include (1) If a requester brings suit to compel requirements set forth in paragraph (f),
substantive criteria established in the disclosure of information submitted such information is the subject of a
accordance with the informational under this section, the Agency shall FOIA request, the requirements of 49
needs of the particular rulemaking. promptly notify the submitter. CFR 7.29 shall apply.
(d) Modification or amendment. The (2) The submitter may be joined as a
Administrator may amend or modify necessary party in any suit brought ■ 4. Add Appendix A to Part 389 to read
any class determination established against the Department of as follows:
under this section. Transportation or FMCSA for non-
APPENDIX A TO PART 389
(e) Publication. Once the disclosure.
Administrator has made a class (i) Use of confidential business AFFIDAVIT IN SUPPORT OF REQUEST
determination, the Agency shall publish information. To the extent that the FOR CONFIDENTIALITY
the class determination in the Federal Agency relies upon confidential I, _______, pursuant to the provisions of 49
Register. If the Administrator amends or business information submitted under CFR part 389, section 389.9, state as follows:
modifies any class determination paragraph (f) of this section in (1) I am [insert official’s name, title] and I
established and published in formulating a particular rule, the am authorized by [insert name of entity] to
accordance with this section, such Agency shall, in the preamble of the execute this Affidavit on its behalf;
changes will be published in the final rule, disclose its receipt of such (2) I certify that the information contained
Federal Register. information under a designated class in the document(s) attached to this Affidavit
(f) Submission of confidential and shall describe the information in a is submitted voluntarily, with the claim that
de-identified form, including by the information is entitled to confidential
business information. Persons wishing
summary, aggregation or other means, as treatment under 5 U.S.C. 552(b)(4);
to submit information in accordance
necessary, to sufficiently explain the (3) I certify that the information contained
with a class determination established in the documents attached to this Affidavit
under authority of this section must Agency’s reasoning while maintaining
is of a type not customarily disclosed to the
complete and sign, under penalties of the confidentiality of the information.
general public by [insert name of entity];
perjury, an Affidavit in Support of (j) Disclosure of confidential business
(4) I certify that, to the best of my
Request for Confidentiality (Affidavit), information. (1) If the Administrator
knowledge, information and belief, the
as set forth in Appendix A to this part. finds that information submitted to the information contained in the documents
In the event that information is Agency under paragraph (f) of this attached to this Affidavit, for which
submitted under more than one section fails to satisfy the requirements confidential treatment is claimed, has never
designated class, each submission must set forth in paragraphs (f)(2), (3) or (4), been released to the general public or been
include an executed Affidavit, asserting, or that the Affidavit accompanying the made available to any unauthorized person
among other factors, that: information submitted under paragraph outside [insert name of entity];
(1) The information is submitted to (f) is false or misleading in any material (5) I certify that this information satisfies
the Agency voluntarily; respect, the Agency shall disclose the the substantive criteria set forth in the notice
(2) The information is of a type non-conforming information by placing published in the Federal Register on lll
customarily not disclosed to the public it in the public docket for the particular [insert date of rule-specific publication in
by the submitter; rulemaking, within 20 days following month/day/year format] under FMCSA
(3) The information, to the best of the written notice to the submitter of its Docket Number [insert docket number].
submitter’s knowledge and belief, has decision to do so, except that: (6) I make no representations beyond those
(i) Submitters may, within 10 days of made in this Affidavit, and, in particular, I
not been disclosed to the public; and
receipt of such notice, provide the make no representations as to whether this
(4) The information satisfies the
information may become available outside
substantive criteria for the class as Agency with a written statement
[insert name of entity] due to unauthorized
established by the Administrator under explaining why the submitted
or inadvertent disclosure; and
authority of paragraph (b) of this information conforms to the (7) I certify under penalties of perjury that
section. requirements of paragraph (f) of this the foregoing statements are true and correct.
(g) Submission of comments not section and thus, should not be Executed on this llday of ll, ll.
containing confidential business disclosed. The Agency shall continue to
wreier-aviles on DSK5TPTVN1PROD with RULES
lllllllll(signature of official)
information. If a submitter elects to withhold the information from the
Issued under the authority of delegation in
provide commentary in addition to the public docket until completing its
49 CFR 1.87. May 27, 2015.
confidential business information review of the submitter’s statement. The
submitted under one or more classes Agency may, following timely review of T.F. Scott Darling III,
designated under this section, any the submitter’s statement, determine Chief Counsel.
portion of a submitter’s additional that disclosure is not required under [FR Doc. 2015–14181 Filed 6–9–15; 8:45 am]
commentary that does not contain this paragraph. In any event, the Agency BILLING CODE 4910–EX–P
VerDate Sep<11>2014 15:10 Jun 09, 2015 Jkt 235001 PO 00000 Frm 00011 Fmt 4700 Sfmt 9990 E:\FR\FM\10JNR1.SGM 10JNR1](https://thefederalregister.org/doc/80_FR_32972/page/5.svg)
Document Created: 2015-12-15 15:17:34
Document Modified: 2015-12-15 15:17:34
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule is effective June 10, 2015. | |
| Contact | Kim McCarthy, Office of Chief Counsel, Regulatory Affairs Division (MC-CCR), Federal Motor Carrier Safety Administration, 1200 New Jersey Ave. SE., Washington, DC 20590; by telephone at 202-366-0834. If you have questions on viewing or submitting material to the public docket, contact Docket Services, telephone (202) 366-9826. | |
| FR Citation | 80 FR 32861 | |
| RIN Number | 2126-AB79 | |
| CFR Associated | Administrative Practice and Procedure; Highway Safety; Motor Carriers and Motor Vehicle Safety |
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