| Page Range | 59021-59548 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 59545 - National Arts and Humanities Month, 2015 | |
| 80 FR 59201 - Notice of Submission for Approval under Emergency Clearance: Information Collection 3206-XXXX; Privacy Act Request for Completed Standard Form SF85/SF85P/SF86, INV 100A | |
| 80 FR 59138 - Mission-Aransas, Texas National Estuarine Research Reserve Management Plan Revision; Notice of Public Comment Period | |
| 80 FR 59202 - Submission for Review: White House Fellows Application, 3206-XXXX | |
| 80 FR 59151 - Sunshine Act Notice | |
| 80 FR 59198 - Publication Procedures for Federal Register Documents During a Funding Hiatus | |
| 80 FR 59179 - Notice of Inventory Completion: U.S. Department of Defense, Army Corps of Engineers, Omaha District, Omaha, NE., and State Archaeological Research Center, Rapid City, SD | |
| 80 FR 59174 - Notice of Inventory Completion: U.S. Department of Defense, Army Corps of Engineers, Omaha District, Omaha, NE., and State Archaeological Research Center, Rapid City, SD | |
| 80 FR 59182 - Notice of Inventory Completion: U.S. Department of Defense, Army Corps of Engineers, Omaha District, Omaha, NE, and State Archaeological Research Center, Rapid City, SD | |
| 80 FR 59181 - Notice of Inventory Completion: U.S. Department of the Interior, National Park Service, Hubbell Trading Post National Historic Site, Ganado, AZ; Correction | |
| 80 FR 59222 - In the Matter of the Designation of Islamic State of Iraq and the Levant-Caucasus Province, Also Known as Vilayat Kavkaz, Also Known as Wilayat Qawqaz, Also Known as Wilayah Qawkaz, Also Known as Caucasus Wilayah, Also Known as Caucasus Province as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as Amended | |
| 80 FR 59080 - New Equipment Contract for Telecommunications and Broadband Borrowers | |
| 80 FR 59196 - Meeting of the Global Justice Information Sharing Initiative Federal Advisory Committee | |
| 80 FR 59221 - In the Matter of the Designation of Rustam Aselderov, aka Abu Mukhammad al-Kadar, aka Abu Mukhammad Kadarsky, aka Abu Mukhammad Kadarskiy, aka Abu Mohammad al-Qadari, aka Abu Muhammad al-Kadarskii, aka Rustam Asildarov, aka Rustam Aseldarov as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as Amended | |
| 80 FR 59180 - Notice of Inventory Completion: U.S. Department of the Interior, National Park Service, Canaveral National Seashore, Titusville, FL | |
| 80 FR 59220 - In the Matter of the Designation of Shamil Izmaylov, aka Abu Khalif, aka Abu Hani, aka Abu Khanif, aka Abu Hanif as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as Amended | |
| 80 FR 59173 - Notice of Inventory Completion: Thomas Burke Memorial Washington State Museum, University of Washington, Seattle, WA | |
| 80 FR 59221 - In the Matter of the Designation of Nasser Muthana, aka Abu Muthanna al-Yemeni, aka Abu Muthanna al Yemeni, aka Abu Muthana Al Yemeni as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as Amended | |
| 80 FR 59143 - Orders Granting Authority To Import and Export Natural Gas, and To Import and Export Liquefied Natural Gas During November 2014 | |
| 80 FR 59177 - Notice of Inventory Completion: Arizona State Museum, University of Arizona, Tucson, AZ | |
| 80 FR 59172 - Extension of Agency Information Collection Activity Under OMB Review: Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP) | |
| 80 FR 59169 - The National Institutes of Health FY 2016-2020 Strategic Plan To Advance Research on the Health and Well-Being of Sexual and Gender Minorities (SGM) Request for Comments | |
| 80 FR 59148 - Proposed Information Collection Request; Comment Request; Generic Clearance for Citizen Science and Crowdsourcing Projects (New) | |
| 80 FR 59175 - Notice of Inventory Completion: U.S. Department of the Interior, National Park Service, Big Bend National Park, TX | |
| 80 FR 59168 - Proposed Collection; 60-Day Comment Request; Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery (NIAID) | |
| 80 FR 59221 - In the Matter of the Designation of Jund al-Khilafah in Algeria, aka Jak-A, aka Jund al-Khalifa fi Ard al-Jazayer, aka Jund al-Khilafah fi Ard al-Jaza'ir, aka Soldiers of the Caliphate in Algeria, aka Caliphate Soldiers of Algeria, aka Soldiers of the Caliphate in the Land of Algeria, aka Jund al Khalifa-Algeria, aka Jund al-Khalifa, aka Jund al-Khilafa Group as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as Amended | |
| 80 FR 59165 - Submission for OMB Review; 30-Day Comment Request; Evaluation of the Science Education Partnership Award (SEPA) Program (OD) | |
| 80 FR 59220 - In the Matter of the Designation of Tarkhan Ismailovich Gaziyev as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as Amended | |
| 80 FR 59057 - Medicare Program; Inpatient Psychiatric Facilities Prospective Payment System-Update for Fiscal Year Beginning October 1, 2014 (FY 2015); Correction | |
| 80 FR 59220 - 30-Day Notice of Proposed Information Collection: Affidavit of Physical Presence or Residence, Parentage and Support | |
| 80 FR 59219 - California Disaster Number CA-00238 | |
| 80 FR 59218 - Interest Rates | |
| 80 FR 59218 - Revocation of License of Small Business Investment Company | |
| 80 FR 59133 - Initiation of Five-Year (“Sunset”) Review | |
| 80 FR 59219 - California Disaster #CA-00238 | |
| 80 FR 59135 - Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review | |
| 80 FR 59142 - Meeting of the Board of Visitors of Marine Corps University | |
| 80 FR 59200 - Sunshine Act Meeting Notice | |
| 80 FR 59141 - Notice of Intent To Grant Partially Exclusive Patent License; OLII Technology Corporation | |
| 80 FR 59161 - Notice of Class Deviation From Competition Requirements | |
| 80 FR 59165 - National Organizations for State and Local Officials (NOSLO) Cooperative Agreement | |
| 80 FR 59137 - Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Advance Notification of Sunset Reviews | |
| 80 FR 59133 - Foreign-Trade Zone (FTZ) 64-Jacksonville, Florida; Authorization of Production Activity; Saft America Inc. (Lithium-Ion Batteries); Jacksonville, Florida | |
| 80 FR 59164 - National Center for Medical Home Implementation Cooperative Agreement at the American Academy of Pediatrics | |
| 80 FR 59222 - Schedule of Charges Outside the United States | |
| 80 FR 59139 - Information Collection; Submission for OMB Review, Comment Request | |
| 80 FR 59149 - 2015 Fall Joint Meeting of the Ozone Transport Commission and the Mid-Atlantic Northeast Visibility Union | |
| 80 FR 59162 - National Vaccine Injury Compensation Program; List of Petitions Received | |
| 80 FR 59021 - Changes to Production Certificates and Approvals | |
| 80 FR 59148 - Klouda Estate Superfund Site, Fort Valley, Peach County, Georgia; Notice of Settlement | |
| 80 FR 59075 - Fisheries of the Exclusive Economic Zone Off Alaska; “Other Rockfish” in the Central and Western Regulatory Areas of the Gulf of Alaska | |
| 80 FR 59154 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 80 FR 59246 - Advisory Committee on Disability Compensation, Notice of Meeting | |
| 80 FR 59197 - NASA Advisory Council; Science Committee; Meeting | |
| 80 FR 59197 - National Space-Based Positioning, Navigation, and Timing (PNT) Advisory Board; Meeting | |
| 80 FR 59144 - Orders Granting Authority To Import and Export Natural Gas, To Import and Export Liquefied Natural Gas To Export Compressed Natural Gas, To Vacate Prior Authority, To Amend Application and Errata During October 2014 | |
| 80 FR 59147 - DOE Proposals for the 2018 International Energy Conservation Code (IECC) | |
| 80 FR 59137 - Smart Cities Infrastructure Business Development Mission to India | |
| 80 FR 59195 - Prestressed Concrete Steel Wire Strand From China | |
| 80 FR 59188 - Certain Protective Cases for Electronic Devices and Components Thereof Notice of a Commission Determination Not To Review an Initial Determination Terminating the Investigation in Its Entirety Based Upon Withdrawal of the Complaint | |
| 80 FR 59225 - Qualification of Drivers; Exemption Applications; Vision | |
| 80 FR 59196 - Notice of Filing of Proposed Bankruptcy Stipulation and Agreed Order Under the Oil Pollution Act | |
| 80 FR 59230 - Qualification of Drivers; Exemption Applications; Vision | |
| 80 FR 59223 - Qualification of Drivers; Exemption Applications; Diabetes Mellitus | |
| 80 FR 59229 - Qualification of Drivers; Exemption Applications; Diabetes Mellitus | |
| 80 FR 59227 - Qualification of Drivers; Application for Exemptions; Hearing | |
| 80 FR 59237 - Qualification of Drivers; Exemption Applications; Diabetes Mellitus | |
| 80 FR 59192 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest | |
| 80 FR 59132 - Federal Motor Vehicle Safety Standards; Correction | |
| 80 FR 59133 - Humboldt County Resource Advisory Committee | |
| 80 FR 59200 - Information Collection: “Operators' Licenses” | |
| 80 FR 59198 - Information Collection: Disposal of High-Level Radioactive Wastes in Geologic Repositories | |
| 80 FR 59199 - Information Collection: Financial Protection Requirements and Indemnity Agreements | |
| 80 FR 59152 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 80 FR 59138 - Agency Information Collection Activities; Submission for OMB Review; Comment Request-Safety Standard for Play Yards | |
| 80 FR 59143 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Progress in International Reading Literacy Study (PIRLS 2016) Main Study | |
| 80 FR 59196 - Data Users Advisory Committee; Notice of Meeting and Agenda | |
| 80 FR 59102 - Request for Information Regarding Implementation of the Merit-Based Incentive Payment System, Promotion of Alternative Payment Models, and Incentive Payments for Participation in Eligible Alternative Payment Models | |
| 80 FR 59142 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Middle Grades Longitudinal Study of 2017-18 (MGLS: 2017) 2016 Item Validation Field Test (IVFT) Data Collection | |
| 80 FR 59170 - Current List of HHS-Certified Laboratories and Instrumented Initial Testing Facilities Which Meet Minimum Standards To Engage in Urine Drug Testing for Federal Agencies | |
| 80 FR 59141 - Proposed Collection; Comment Request | |
| 80 FR 59140 - Proposed Collection; Comment Request | |
| 80 FR 59052 - Approval and Promulgation of Air Quality Implementation Plans; Delaware; 2011 Base Year Inventories for the 2008 8-Hour Ozone National Ambient Air Quality Standard for New Castle and Sussex Counties | |
| 80 FR 59209 - Submission for OMB Review; Comment Request | |
| 80 FR 59203 - Notice of Applications for Deregistration Under Section 8(f) of the Investment Company Act of 1940 | |
| 80 FR 59215 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing of a Proposed Rule Change To Amend FINRA Rule 8312 (FINRA BrokerCheck Disclosure) To Reduce the Waiting Period for the Release of Information Reported on Form U5 | |
| 80 FR 59210 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing of Proposed Rule Change To Amend Rule 4758 | |
| 80 FR 59204 - Self-Regulatory Organizations: Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the MIAX Options Fee Schedule | |
| 80 FR 59213 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Adding to the Rules of the Exchange the Third Amended and Restated Certificate of Incorporation of NYSE Market, Inc., and the Eighth Amended and Restated Operating Agreement of New York Stock Exchange LLC | |
| 80 FR 59207 - Self-Regulatory Organizations; ICE Clear Europe Limited; Order Approving Proposed Rule Change Relating to CDS End-of-Day Price Discovery Policy | |
| 80 FR 59244 - Hazardous Materials: New York City Permit Requirements for Transportation of Certain Hazardous Materials | |
| 80 FR 59094 - Approval and Promulgation of Air Quality Implementation Plans; Delaware; 2011 Base Year Inventories for the 2008 8-Hour Ozone National Ambient Air Quality Standard for New Castle and Sussex Counties | |
| 80 FR 59083 - Request for Comment on the Effectiveness of Financial Disclosures About Entities Other Than the Registrant | |
| 80 FR 59152 - National Association of Animal Breeders, Inc.; Analysis To Aid Public Comment | |
| 80 FR 59035 - Establishment of Class E Airspace; Sheridan, AR | |
| 80 FR 59036 - Establishment of Class E Airspace; Springfield, MO | |
| 80 FR 59140 - Privacy Act of 1974; System of Records | |
| 80 FR 59155 - Proposed Information Collection Activity; Comment Request | |
| 80 FR 59055 - Approval and Promulgation of Air Quality Implementation Plans; Maryland; Adoption of Control Techniques Guidelines for Metal Furniture Coatings and Miscellaneous Metal Parts Coatings | |
| 80 FR 59094 - Federal Management Regulation (FMR); Transportation Payment and Audit | |
| 80 FR 59037 - International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species; Fishing Effort and Catch Limits and Other Restrictions and Requirements | |
| 80 FR 59150 - Information Collection Being Submitted for Review and Approval to the Office of Management and Budget | |
| 80 FR 59156 - Joint Meeting of the Antimicrobial Drugs Advisory Committee (Formerly Known as the Anti-Infective Drugs Advisory Committee) and the Drug Safety and Risk Management Advisory Committee; Notice of Meeting | |
| 80 FR 59156 - Request for Nominations for Individuals and Consumer Organizations for Advisory Committees | |
| 80 FR 59160 - Pharmacy Compounding Advisory Committee; Notice of Meeting | |
| 80 FR 59171 - Merchant Marine Personnel Advisory Committee | |
| 80 FR 59092 - Federal Policy for the Protection of Human Subjects | |
| 80 FR 59049 - Safety Zone; West Larose Vertical Lift Bridge; Houma, LA | |
| 80 FR 59223 - Petition for Exemption; Summary of Petition Received; Robert Ponti | |
| 80 FR 59222 - Petition for Exemption; Summary of Petition Received; Marco Epifanio | |
| 80 FR 59170 - National Institute of Allergy and Infectious Diseases; Notice of Closed Meetings | |
| 80 FR 59167 - Center for Scientific Review; Notice of Closed Meetings | |
| 80 FR 59167 - National Institute of Neurological Disorders and Stroke; Notice of Closed Meetings | |
| 80 FR 59166 - Eunice Kennedy Shriver National Institute of Child Health and Human Development; Notice of Closed Meeting | |
| 80 FR 59202 - New Postal Product | |
| 80 FR 59077 - Grapes Grown in a Designated Area of Southeastern California and Imported Table Grapes; Revision to the Administrative Rules and Regulations for Shipments to Charitable Organizations | |
| 80 FR 59385 - Medicare Program; Medicare Clinical Diagnostic Laboratory Tests Payment System | |
| 80 FR 59081 - Airworthiness Directives; Engine Alliance Turbofan Engines | |
| 80 FR 59189 - Certain Coated Paper Suitable for High-Quality Print Graphics Using Sheet-Fed Presses From China and Indonesia; Institution of Five-Year Reviews | |
| 80 FR 59183 - Certain Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe From China; Institution of Five-Year Reviews | |
| 80 FR 59113 - Procedures for Reestablishing a Formal Government-to-Government Relationship With the Native Hawaiian Community | |
| 80 FR 59032 - Airworthiness Directives; Airbus Airplanes | |
| 80 FR 59192 - Iron Construction Castings From Brazil, Canada, and China; Institution of Five-Year Reviews | |
| 80 FR 59245 - Privacy Act of 1974; Computer Matching Program | |
| 80 FR 59186 - Seamless Refined Copper Pipe and Tube From China and Mexico; Institution of Five-Year Reviews | |
| 80 FR 59065 - General Technical, Organizational, Conforming, and Correcting Amendments to the Federal Motor Carrier Safety Regulations | |
| 80 FR 59423 - Endangered and Threatened Wildlife and Plants; Endangered Status for 16 Species and Threatened Status for 7 Species in Micronesia | |
| 80 FR 59247 - Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Dakota Skipper and Poweshiek Skipperling | |
| 80 FR 59514 - Recognition of Organizations and Accreditation of Non-Attorney Representatives | |
| 80 FR 59503 - List of Pro Bono Legal Service Providers for Individuals in Immigration Proceedings | |
| 80 FR 59499 - Separate Representation for Custody and Bond Proceedings |
Agricultural Marketing Service
Forest Service
Rural Utilities Service
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Navy Department
Energy Efficiency and Renewable Energy Office
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
Transportation Security Administration
Fish and Wildlife Service
National Park Service
Executive Office for Immigration Review
Justice Programs Office
Labor Statistics Bureau
Federal Register Office
Federal Aviation Administration
Federal Motor Carrier Safety 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, 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.thefederalregister.org and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is amending certification procedures and marking requirements for aeronautical products and articles. The amendment requires production approval holders to identify an accountable manager who is responsible for, and has authority over, their production operations and serves as the primary contact with the FAA; allows production approval holders to issue authorized release documents for aircraft engines, propellers, and articles; permits production certificate holders to manufacture and install interface components; requires production approval holders to ensure that each supplier-provided product, article, or service conforms to the production approval holder's requirements and establish a supplier-reporting process for products, articles, or services that have been released from or provided by the supplier and subsequently found not to conform to the production approval holder's requirements; removes the requirement that fixed-pitch wooden propellers be marked using an approved fireproof method; and changes the title of part 21 of title 14 of the Code of Federal Regulations. This amendment updates FAA regulations to reflect the current global aeronautical manufacturing environment, thereby promoting aviation safety.
Effective March 29, 2016.
For information on where to obtain copies of rulemaking documents and other information related to this final rule, see How To Obtain Additional Information in the
For technical questions concerning this action, contact Priscilla Steward or Robert Cook, Aircraft Certification Service, Production Certification Section, AIR-112, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-1656; email:
For legal questions concerning this action, contact Benjamin Jacobs, Office of the Chief Counsel, Regulations Division, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-7240; email:
The Department of Transportation (DOT) is responsible for developing transportation policies and programs that contribute to providing fast, safe, efficient, and convenient transportation under § 101 of Title 49, United States Code (49 U.S.C.). The Federal Aviation Administration (FAA, we, us, or our) is an agency of DOT. The FAA has general authority to issue rules regarding aviation safety, including minimum standards for articles and for the design, material, construction, quality of work, and performance of aircraft, aircraft engines, and propellers under 49 U.S.C. 106(g), 44104, and 44701.
The FAA is amending its regulations governing certification procedures for products and articles, and its requirements for identification and registration marking. These changes improve the quality standards applicable to manufacturers and help to ensure that products and articles are produced as designed and safe to operate. For those reasons, these amendments are a reasonable and necessary exercise of our rulemaking authority and obligations.
This final rule changes certification and marking requirements for products and articles. In particular, this final rule:
• Requires applicants for a production approval and production approval holders (PAHs) to identify an accountable manager;
• Allows a production certificate (PC) holder to manufacture and install interface components (IC) under certain conditions and limitations;
• Clarifies that a PAH must ensure that each supplier-provided product, article, or service conforms to the PAH's requirements;
• Requires a PAH to establish a supplier-reporting process for products, articles, or services released from or provided by a supplier and subsequently found not to conform to the PAH's requirements;
• Allows a PAH that establishes an FAA-approved process in its quality system to issue authorized release documents (using FAA Form 8130-3) for new and used aircraft engines, propellers, and articles produced by that PAH; and
• Excludes fixed-pitch wooden propellers from the requirement that a propeller, propeller blade, or propeller hub be marked using an approved fireproof method.
Regulations pertaining to certification requirements for products and articles are in part 21 of Title 14 of Code of Federal Regulations (14 CFR). Marking requirements are in 14 CFR part 45.
This final rule requires applicants for a production approval and production approval holders (PAHs) to identify an accountable manager who is responsible for, and has authority over, a PAH's operations. This individual would also serve as a PAH's primary contact with the FAA. Additionally, this amendment requires PAHs to amend, where applicable, the documents required by §§ 21.135, 21.305, and 21.605 to reflect the appointment of an accountable manager.
This final rule allows a production certificate
This final rule clarifies that a PAH must ensure that each supplier-provided product, article, or service conforms to the PAH's requirements. This final rule also requires a PAH to establish a supplier-reporting process for products, articles, or services released from or provided by a supplier and subsequently found not to conform to the PAH's requirements. A PAH's reporting system may require suppliers to report nonconformances to the PAH directly, or to other suppliers in the supply chain.
This final rule allows a PAH that establishes an FAA-approved process in its quality system to issue authorized release documents (using FAA Form 8130-3) for new and used aircraft engines, propellers, and articles produced by that PAH. This provision allows PAHs privileges similar to those afforded European- and Canadian-approved manufacturers.
This final rule amends part 45 to exclude fixed-pitch wooden propellers from the requirement that a propeller, propeller blade, or propeller hub be marked using an approved fireproof method. This exclusion allows manufacturers to mark their products in a practical manner that takes account of the inherent nature of wooden propellers.
This final rule amends the title of part 21 to include articles. The title is now “Certification Procedures for Products and Articles.”
The provisions of this final rule (1) are minimal cost, (2) impose no additional costs because the provisions clarify only, or are current practice, or (3) are voluntary and therefore inherently cost-beneficial. Our analysis described in the notice of proposed rulemaking (NPRM) regulatory evaluation has not changed. The FAA received no comments to the docket on the NPRM regulatory evaluation.
Part 21 of 14 CFR contains the FAA's regulations concerning certification procedures for products, articles, and parts. Since the FAA codified part 21 in 1964, it has been amended numerous times. Additionally, the origins of many part 21 regulations can be traced to the Civil Air Regulations codified in 1937.
When part 21 was first codified, most manufacturers of aviation products and articles had a small, local supplier base. Production certificate holders oversaw the manufacture of replacement parts, and the international market for aviation products was relatively small. As a result, for many years the U.S. had few bilateral agreements with other countries for the export and import of aviation products, and these agreements were limited in scope.
Today, aviation products are manufactured world-wide. The number of suppliers has increased dramatically, and these suppliers manufacture an increasing percentage of a given product or article. Furthermore, due to the global nature of manufacturing, forming business partnerships and agreements across large geographic areas is now a common strategy to lower costs, share risks, and expand markets. Manufacturers collaborate globally to reduce duplicate requirements for shared suppliers. Accordingly, the international market for aviation products and the production of replacement parts under parts manufacturer approvals (PMAs) have increased dramatically.
In recognition of these and other related considerations, the FAA published an NPRM,
In response to the FAA's NPRM, we received comments from 19 commenters, raising 32 issues. Commenters included aviation manufacturers and equipment manufacturers, such as Boeing, Garmin, General Electric, HEICO, Textron, Timken, and Williams International; industry groups and associations, such as Aerospace Industry Association (AIA), Aviation Suppliers Association (ASA), and Modification and Replacement Parts Association (MARPA); and numerous individuals. The comments covered five main topics and a range of various responses to the rulemaking proposal, which are discussed in more detail below.
This final rule makes two amendments to § 21.137(c)(1) & (2). First, as proposed, § 21.137(c)(1), which previously required a PAH to develop procedures to ensure that a supplier-provided product or article conforms to its approved design, now also requires those procedures to account for supplier-provided services. Second, as proposed, the standard for supplier control is revised in both § 21.137(c)(1) & (2) to require suppliers to furnish products, articles, or services that conform to the PAH's requirements. Prior to this final rule, supplier-provided goods and services had to conform to FAA-approved design data.
HEICO recommended amending the proposed § 21.137(c)(1) to include services provided to a design approval holder. The commenter noted that many design approval holders outsource portions of the overall design process and these `services' must also be properly controlled. The commenter's recommendation is outside the scope of this rulemaking, which focuses on production approvals and PAH activities, and not on design approval certification activities. PAHs are not responsible, under § 21.137, for design approval holder activities.
ASA and MARPA recommended that, in addition to requiring a PAH to require suppliers to provide products, articles, or services to meet the PAH requirements, the FAA should also continue to allow a PAH to accept products, articles, or services that conform to the PAH's approved design. The commenters' rationale was that this final rule creates two separate rules with respect to conformity of products and articles; one standard for when a company is acting as a supplier, and another standard when it is acting as a distributor. The commenters claimed that an entity functioning as a supplier to a PAH would be required to ensure that the product or article conformed to the PAH's requirements. However, if that same entity, operating as a distributor, were to sell their products in the aftermarket as replacement parts, for instance to a repair station or an air carrier, they would still be required to ensure that the product or article conforms to its approved design. Both commenters suggested that this situation could result in confusion and unintended harm to suppliers, and recommended revising proposed § 21.137(c)(1) to allow products, articles, or services to conform to either the PAH's requirements
The FAA disagrees with the recommendation. With respect to the commenters' claim that this final rule creates two separate rules for suppliers and distributors in the aftermarket, we presume that the commenters used the term “aftermarket distributor” to mean that the distributor is acting as a supplier to an entity other than a PAH. Regardless, this provision does not create two separate standards. All suppliers to any purchaser continue to be bound by contract to the terms of any relevant purchase order. In the case of suppliers to a PAH, the final rule removes the requirement to report deliveries that conform to the purchase order but do not conform to the PAH's final approved design. Aftermarket distributors who are not suppliers, on the other hand, are outside of the scope of part 21. The FAA does not regulate aftermarket distributers under these regulations.
The commenters also suggested that, under this final rule, a supplier providing the same part with different specifications to both a PAH and an aftermarket customer, such as a maintenance provider, could be at risk of inadvertently sending design-conforming parts (intended for the aftermarket customer) to a PAH, instead of parts that met the PAH's unique specifications. The commenters suggested that the supplier in that situation should not be punished for providing an article that conforms to its approved design.
The FAA disagrees with the comment that this change will punish any supplier who provides nonconforming products, articles, or services. This provision is not intended as a means to punish suppliers. The FAA does not directly regulate suppliers; instead, this final rule requires that a PAH's quality system include a supplier-reporting system. Under this final rule, a PAH must establish procedures for supplier reporting of supplier-provided products, articles, or services that deviate from the requirements of the PAH's purchase order. This gives a PAH flexibility to determine the appropriate level of reporting because it is the PAH and only the PAH who knows what is needed, and in what condition, for the production process. To clarify, this final rule does not require a PAH to report to the FAA those supplier nonconformances that remain within the PAH's quality system.
Relatedly, ASA and MARPA stated that the proposed rule could indirectly require a supplier to report nonconformance higher up the supply chain, even when the supplier provided a product or article that conformed to its approved design. The commenters again recommended that the final rule allow suppliers to provide products or articles that conform to either the PAH's requirements
The FAA disagrees with the recommendation. This final rule replaces the existing requirement that a supplier-provided product, article, or service conform to the PAH's approved design with a requirement that it conform to the PAH's requirements. The purpose of this amendment is to tailor the regulation to its original intent. For example, a PAH may issue a purchase order for sheet metal parts, and state on the purchase order that the rivet holes are to be drilled to less than the finished dimensions of the approved design. The PAH may request pilot drilling by the supplier because the PAH will itself drill the holes to the finished size upon assembly. If the supplier provides the items with the holes drilled to the finished dimension, the sheet metal parts would not conform to the PAH's requirements. The supplier would be supplying nonconforming material even though it would conform to the approved design. Under this final rule, therefore, a supplier may not deviate from the requirements of the PAH. It is the PAH, and only the PAH, that knows what is needed, and in what condition, for the production process.
An individual commenter stated that the NPRM changes the definition of “quality escape,” as the phrase is used in § 21.137(n), from nonconforming products or articles which escaped a PAH's quality system to products or articles which do not conform to their approved design but are contained within the quality system. The commenter recommended that we distinguish between nonconforming products or articles still within the PAH's quality system, and nonconforming products or articles that escape a PAH's quality control system.
Section 21.137(n), which is not revised by this rule, addresses quality escapes by requiring a PAH to have procedures for, among other things, identifying and taking corrective action whenever a PAH releases a nonconforming product or article from its quality system. In our NPRM, we stated that this proposal would require a PAH to establish a supplier reporting process for products, articles, or services that have been released from a supplier and subsequently found not to conform (hereafter referred to as a quality escape) to the PAH's requirements. We believe the commenter's confusion derives from our use of the term “quality escape” to describe the transfer of nonconforming items or services between tiers in the supply chain, instead of its traditional meaning of nonconforming products or articles that leave a PAH's quality system. We acknowledge that our preamble discussion in the NPRM used the term in a confusing manner. However, we determine that no change to the terms of § 21.137, as originally proposed, are necessary. The reporting requirements of § 21.137(c) apply when a supplier to a PAH determines that it has released or provided a product, article, or service subsequently found not to conform to the PAH's requirements, and do not include the phrase “quality escape.”
Boeing recommended that the FAA require PAHs to communicate design change notifications throughout the supply chain, and adopt the industry's SAE
The FAA disagrees with the recommendation to regulate PAHs' use of SAE AS9016 because we believe this subject is adequately addressed by our current regulation, § 21.137(a),
Williams International stated that it is unnecessary to require a PAH to report supplier nonconformances that remain contained within the PAH quality system. Williams International further stated that the proposed requirement for reporting of released nonconformances is already required by a PAH. FAA Advisory Circular (AC) 00-58,
Although the commenter did not provide a recommendation, the FAA disagrees with the commenter's premise. Before this final rule, a PAH's supplier-reporting process required each supplier, at any tier, to report to the PAH any product, article, or service that did not conform to the PAH's FAA-approved design. The FAA recognizes that this requirement had the potential to impose significant burdens on a PAH
An individual commenter suggested that all tiers in the supply chain should report to a PAH any nonconforming products, articles, or services that have been released from or provided by that supplier and subsequently found not to conform to the PAH's requirements. More specifically, the commenter suggested that the FAA require each supplier, in some instances, to report a nonconformance to each level up the supply chain, and ultimately to the PAH and the PAH's customer. Another individual recommended the FAA keep the current regulation which requires suppliers to report quality escapes to the PAH, and provided no further rationale.
The FAA disagrees with the commenters' recommendations. In the past, a PAH's supplier-reporting system required every manufacturing supplier and affected downstream suppliers to report to the PAH all products or articles which did not meet the PAH's approved design, even if those products or articles met the PAH's actual requirements. The FAA recognizes that this past requirement could have imposed a significant burden on PAHs, and this final rule is intended to maintain safety while also providing PAHs with the flexibility to determine which suppliers should report, and to whom.
As the FAA proposed in the NPRM, this final rules amends §§ 21.135, 21.305, and 21.605 to require a PAH to provide the FAA with a document identifying the organization's accountable manager. The accountable manager is responsible for, and has authority over, all part 21 production activities. It is not the FAA's intent that this provision dictates who is responsible for PAH production operations. It is also not the FAA's intent that this provision imposes personal liability for production operations on the accountable manager. The FAA is simply requiring each PAH to identify for the FAA the individual or individuals within the PAH's organization who the PAH considers responsible for all production operations.
Boeing, MARPA, and Timken Aerospace recommended that an accountable manager have the ability to identify and delegate functions to alternate points of contact. These commenters noted that the person responsible for accountability may be a company president or chief executive who cannot reasonably be available at all times. Allowing delegation increases the FAA's access to the PAH and provides redundancy in the event of personnel turnover, in accordance with the intent of this final rule.
The FAA agrees with the commenters with respect to delegation, but determines that no change to the proposed rule language is necessary. To clarify, the accountable manager may delegate functions and identify alternate points of contact. These actions should be noted in the PAH's organization document. Additional guidance may be found in FAA AC 21-43,
Boeing and an individual commenter requested that we revise the rule to require two accountable managers—one for production activities and one for design activities. These commenters claimed that two such accountable managers would better reflect the various responsibilities of PAH personnel, including those responsible for coordinating with FAA manufacturing inspection district offices (MIDOs) and aircraft certification offices (ACOs).
The FAA disagrees with the commenters' recommendation. The commenters are describing design-related activities and responsibilities. Because the public was not provided an opportunity to comment on an FAA requirement for an accountable manager for design activities, the FAA considers the recommendation to be outside the scope of this rulemaking. To clarify, the accountable manager described in this rule is required only to have responsibility for production operations, not design activities.
Garmin International and Williams International stated that there is no need for an accountable manager, and recommended instead a requirement that the PAH identify an FAA point of contact. In addition, Garmin stated that a better means to improve the FAA's access would be to require a PAH to clearly indicate how its organization will communicate. Williams recommended that if the FAA has difficulty communicating with a particular PAH, that PAH should be required to clarify its own existing procedures.
The FAA disagrees with the commenters' recommendations. An accountable manager is not simply a point of contact. When issuing an approval or performing certificate management, the FAA must know who from the PAH has the authority to speak for the PAH and ensure compliance with all applicable regulatory requirements. Requiring a PAH to identify such an individual, one who is knowledgeable of and accountable for maintaining the PAH's FAA production approval, will improve communication between the PAH and the FAA offices responsible for certificate management of their production approval. A simple point of contact would not create the same benefits.
Universal Avionics Systems Corporation (UASC), Textron, and an individual commenter suggested identifying the accountable manager as the “Quality Manager.” Textron stated that the rule could be misinterpreted as describing the PAH official in charge of production operations, instead of the person who runs the quality system. UASC and the individual commenter both observed that the FAA already requires accountable managers for repair stations. The individual commenter further stated that organizational differences between a typical PAH and a typical repair station make identifying a general manager as an accountable manager less appropriate for a PAH than for a repair station. Finally, UASC recommended incorporating the definition of “directly in charge” from part 145 (Repair Stations) into part 21, to better explain the role of “accountable manager.” UASC stated that it believes the Accountable Manager is intended to be a quality person whom may not have responsibility for and authority over production operations.
The FAA disagrees with the commenters' recommendations. Although the FAA requires the establishment of a quality system as a prerequisite to obtaining a production approval, nowhere do we require a PAH to create an organizational position responsible solely for the PAH's quality system. Moreover, under this rule, the accountable manager must be at a sufficient level within the organization to have responsibility over all production operations, not just the quality system. For example, the accountable manager should have responsibility for, among other things, formally applying to add a new product or article to the PAH's production approval; formally requesting FAA approval for a change in location; amending the PAH's organization document and submitting that document to the FAA; ensuring support for design approval holders, as required by § 21.137(m); and formally submitting
We also disagree with the commenters' comparisons of part 21 and part 145 accountable managers. A PAH's accountable manager has different duties and responsibilities from the accountable manager of a repair station. Furthermore, the “directly in charge” definition from part 145 does not apply to a PAH's accountable manager. We are not requiring a PAH accountable manager to be “directly in charge” of the work performed by the production organization.
This final rule creates § 21.137(o), which permits a PAH to issue authorized release documents for new aircraft engines, propellers, and articles manufactured by that PAH, and for used aircraft engines, propellers, and articles rebuilt or altered in accordance with § 43.3(j), provided the PAH establishes and adheres to certain quality assurance procedures as part of its quality system. This final rule marks a slight change from what the FAA initially proposed: In response to comments, we explicitly restrict each PAH to issuing authorized release documents for products and articles manufactured by the PAH itself.
Boeing recommended that the FAA consider requiring PAH personnel selected to issue authorized release documents to receive FAA training equivalent to what is currently required for designees. The FAA disagrees with the recommendation. Under this final rule, a PAH that chooses to issue authorized release documents must establish a training process for individuals the PAH selects to issue those documents. The PAH may choose to send its personnel to FAA designee training (if available), establish its own in-house training, or meet the requirement in some other manner. The rule establishes minimum requirements and permits the PAH to establish FAA-approved procedures to meet those requirements.
ASA stated that the rule does not give a PAH authority to issue FAA Form 8130-3 because the term “authorized release document” is not defined. The commenter also suggested changing the definition of airworthiness approval to add Airworthiness approval means a document issued by the FAA,
The FAA disagrees with ASA's recommendations. As stated in § 21.1(b)(1), an airworthiness approval is a document that must be issued by the FAA. By this final rule, however, the FAA will now permit an authorized PAH to issue authorized release documents, using an FAA Form 8130-3, for new aircraft engines, propellers, and articles, and for used aircraft engines, propellers, and articles when rebuilt or altered in accordance with § 43.3(j). PAHs that intend to issue these documents must detail the appropriate procedures in their quality manual. To be clear, FAA regulations and policy distinguish between a document issued by the FAA (an airworthiness approval) and one issued by the PAH (an authorized release document). In addition, the latest version of FAA AC 21-43, released concurrently with this final rule, clearly states that a PAH should use FAA Form 8130-3 when issuing an authorized release document.
ASA recommended extending the privilege of issuing an authorized release document beyond PAHs, to include distributors accredited in accordance with FAA AC 00-56,
The FAA disagrees with the recommendation. The FAA cannot extend this privilege to non-manufacturer distributors because they are not recognized PAHs and, therefore, lack FAA-approved quality systems. Quality systems are necessary to ensure that products and articles conform to their approved design and are in a condition for safe operation. The intent of this provision is to maintain the high level of safety achieved under the prior rules, while allowing FAA-approved PAHs to engage in a practice that is permitted by other authorities, such as the European Union and Canada, for their PAHs.
One individual commenter suggested that the FAA limit a PAH's authority so that the PAH could only issue authorized release documents for new or used aircraft engines, propellers, and articles that the PAH itself manufactured under part 21.
The FAA agrees with the commenter's proposal. Where a PAH was not involved in manufacturing a product or article, the PAH may not have the ability to make the appropriate conformity determination. Accordingly, this final rule limits a PAH's authority to issue authorized release documents to only those products and articles that particular PAH has manufactured.
Two individual commenters stated that allowing a PAH to issue Form 8130-3 as an authorized release document will reduce or be detrimental to aviation safety. One of these commenters pointed out that, prior to this final rule, FAA designees assigned to complete Form 8130-3 would occasionally turn back parts and articles due to issues discovered during the FAA conformity inspections. For that reason, the commenters claimed that eliminating designees' continued, objective inspections would reduce safety. Both commenters suggested keeping the current system.
The FAA disagrees with the commenters' characterization of how FAA Form 8130-3 has been used previously, as well as their recommendations. With respect to products and articles produced under a production approval, issuance of an FAA Form 8130-3 indicates that that the product or article conforms to its type design and is in a condition for safe operation, unless otherwise specified. Even prior to this rulemaking, FAA Form 8130-3 did not (and does not now) indicate that a particular product or article has been inspected by the FAA or its designee.
Additionally, allowing a PAH, as opposed to an FAA employee or designee, to issue FAA Form 8130-3 will not cause a decrease in safety. Currently, Designated Manufacturing Inspection Representatives (DMIRs) or Organization Designation Authorization (ODA) unit members issue the vast majority of FAA Form 8130-3s. These designees are employed by the PAH and authorized by the FAA, and the FAA requires them to possess at least certain minimum qualifications and training, such as those described in FAA Orders 8100.8, 8000.95 and 8100.15. Similarly, under this final rule, any PAH seeking authority to issue FAA Form 8130-3 must first get FAA approval. As described in FAA AC 21-43, the FAA will not approve a PAH to issue FAA Form 8130-3 unless the PAH demonstrates that its authorized personnel possess the same qualifications and receive training equivalent to what is required by FAA Orders 8100.8, 8000.95 and 8100.15 for FAA designees.
Timken Aerospace suggested that allowing PAHs to issue authorized release documents would add complexity to the existing process and increase the FAA's workload. The commenter recommended instead developing a system to assist PAHs in obtaining additional DMIRs.
The FAA disagrees with the recommendation. The FAA anticipates that permitting PAHs to issue authorized release documents will
Textron Aviation recommended that the FAA remove the regulatory language in our 2014 NPRM proposing to allow the use of authorized release documents for work performed under § 43.3(j). The commenter stated that this type of rebuilding work, and related use of FAA Form 8130-3, is already performed by PAH manufacturers.
The FAA disagrees with the recommendation. The commenter is correct that FAA Order 8130.21 allows certain entities to use FAA Form 8130-3 when returning to service rebuilt or altered engines, propellers, or articles in accordance with § 43.3(j). However, the FAA's final rule codifies our authorization of that practice and extends the same privilege to PAHs producing new aircraft engines, propellers, and articles.
Textron Aviation also claimed that FAA Order 8130.21 requires authorized persons to document inspection activity on an FAA Form 8100-1 when required by the managing office, and recommended revising either § 21.137 or FAA Order 8130.21 to indicate that a PAH is not required to use FAA Form 8100-1 when issuing authorized release documents.
The FAA disagrees with both the commenter's claim and recommendation. Neither our prior rules, nor this final rule, requires a PAH to comply with the internal guidance in FAA Order 8130.21. More specifically, § 21.137(o) does not require any PAH to use FAA Form 8100-1 when issuing an FAA Form 8130-3. Furthermore, FAA Order 8130.21 does not require the use of FAA Form 8100-1, but an FAA managing office may determine that a conformity inspection report is necessary to substantiate an FAA-issued FAA Form 8130-3.
One individual commenter stated that allowing a PAH to develop its own procedures for signing authorized release documents will reduce or eliminate the standardization that exists among designees. The commenter recommended that requiring PAH personnel to take FAA training would facilitate greater standardization.
The FAA disagrees with the recommendation. When a PAH signs an authorized release document, the PAH is not signing that document on behalf of the FAA Administrator. The FAA requires any PAH that chooses to issue authorized release documents to establish minimum procedures, including training the employees responsible for issuing those documents. These procedures will be reviewed and, if acceptable, approved by the FAA, which will be conducive to standardization. Ultimately, however, the current proposal gives each PAH the flexibility to choose to send its personnel to FAA designee training (if available), establish their own in-house training, or meet the requirement in some other manner.
This final rule revises one definition and adds two new definitions to § 21.1. The definition of “airworthiness approval,” in § 21.1(b)(1), is expanded to account for the issuance of an airworthiness approval in instances where an aircraft, aircraft engine, propeller, or article does not conform to its approved design or may not be in a condition for safe operation at the time the airworthiness approval is generated and that nonconformity or condition is specified on the airworthiness approval document. In response to comments, we revised the definition proposed in our NPRM to account for the fact that an airworthiness approval may in some cases be issued for products or articles that are not in a condition for safe operation, such as when those products or articles are packed for shipment.
As proposed, § 21.1(b)(5) defines an “interface component” as a functional interface between an aircraft and an aircraft engine, an aircraft engine and a propeller, or an aircraft and a propeller. Furthermore, an interface component is designated by the holder of the type certificate or the supplemental type certificate who controls the approved design data for that article. This definition is necessary because this final rule also promulgates § 21.147(c), which permits a PAH to apply to the FAA to amend its production certificate to allow the PAH to manufacture and install interface components. No change was made to the definition in this final rule from the NPRM.
Finally, as proposed, § 21.1(b)(10) defines a “supplier” as any person at any tier in the supply chain who provides a product, article, or service that is used or consumed in the design or manufacture of, or installed on, a product or article. This definition is necessary to clarify existing FAA requirements. No change was made to the definition in this final rule from the NPRM.
Timken Aerospace and one individual commenter recommended we revise our proposed airworthiness approval definition by moving “unless otherwise specified” to be the final clause. In other words, these commenters recommended changing the definition to a document which certifies that the aircraft, aircraft engine, propeller, or article conforms to its approved design and is in a condition for safe operation, unless otherwise specified. The commenters noted, for example, that an engine is not shipped from a factory in a complete and final condition, since it is prepped for shipping, and is therefore not in a condition for safe operation.
The FAA agrees with the commenters' recommendation. There are many instances in which the FAA issues an airworthiness approval but, at the time of issuance, the product or article neither fully conforms to its approved design, nor is it in a condition for safe operation. For example, the FAA may issue an airworthiness approval for an aircraft that has been disassembled for shipping, for an engine that has preservation fluids installed prior to shipping, or for used aircraft engines and propellers that are not in a condition for safe operation (see § 21.331, Issuance of export airworthiness approvals for aircraft engines, propellers, and articles). We therefore revise the definition of airworthiness approval to a document, issued by the FAA for an aircraft, aircraft engine, propeller, or article, which certifies that the aircraft, aircraft engine, propeller, or article conforms to its approved design and is in a condition for safe operation, unless otherwise specified.
Also with respect to the airworthiness approval definition, Timken Aerospace recommended we use the phrase “except for deviations noted” instead of “unless otherwise specified,” to be more consistent with FAA Form 8130-9,
The FAA disagrees with the recommendation. The concept of airworthiness is generally composed of two factors: Conformity with an approved design and being in a condition for safe operation. In this context, the term “deviation” would indicate a variation from an approved design or quality system, but would not necessarily convey the fact that a product is not in a condition for safe operation. Accordingly, we determine that the phrase “unless otherwise specified” more accurately reflects the intent of our proposal.
Two individual commenters expressed concern that adding “unless otherwise specified” to the definition of airworthiness approval would change a fundamental premise of airworthiness approvals, that a product or article must conform to its design. The commenters recommended that the definition not be changed.
The FAA disagrees with the commenters. The issuance of an airworthiness approval, such as an export certificate of airworthiness, does not necessarily mean that a product is airworthy. FAA regulations, such as § 21.331, allow FAA personnel and designees to issue an airworthiness approval for a product or article that does not conform to its approved design, as long as the nonconforming condition is stated on the approval document and, in the case of export, the receiving authority agrees to accept the product or article as described. This final rule, therefore, simply brings the definition of Airworthiness Approval in line with current FAA practice and with part 21, subpart L. Contrary to the commenters' suggestion, we are not changing the fundamental concept of airworthiness. Under current practices, an airworthiness approval is a means to show that the product or article conforms to its approved design and is in a condition for safe operation, unless otherwise specified.
One individual commenter stated that the definition of “supplier” is overbroad because it includes distributors of commercial off the shelf parts or parts not originally manufactured for aviation use. The same commenter also stated that the addition of the term “at any tier” will cause inconsistent and disparate interpretation within the FAA and undue burden to industry. The commenter did not provide any recommendations.
The FAA recognizes that by including the term “at any tier,” the proposed definition of “supplier” applies to all suppliers throughout the supply chain. Contrary to the commenter's statement, the FAA believes including suppliers “at any tier” will reduce inconsistencies by confirming that the FAA definition of “supplier” applies to all suppliers, regardless of their position within the supply chain. Furthermore, the FAA does not believe this definition will unduly burden industry. To the extent that a supplier has only a tenuous connection to a PAH, perhaps because the supplier produces parts that are not specifically designed for use in aviation, it may be appropriate for the PAH to account for that attenuation when designing its supplier-reporting protocols. A PAH has always been responsible for assuring that its products and articles conform and are in a condition for safe operation. The inclusion of all suppliers within the regulatory definition of supplier should therefore impose no additional burden on either the PAH or its suppliers.
The same individual commenter also stated that there is no guidance for the suppliers of off-the-shelf parts, described above, who may not anticipate that their parts will be used or installed on type certificated aircraft and approved.
The FAA agrees with the commenter's observation that there is no guidance provided specifically for distributors of parts not originally manufactured for aviation use or installation on type certificated aircraft and approved under § 21.8(c). The FAA provides guidance to PAHs, repair stations, and other FAA-regulated entities. The FAA does not provide guidance for entities that fall outside the scope of FAA regulations.
As proposed, § 21.147(c) now permits a PAH to apply to the FAA for an amendment to the PAH's production limitation record (PLR), authorizing the PAH to manufacture and install interface components. If granted, the FAA will amend the PAH's PLR to add the interface components (IC). ICs are defined in the new § 21.1(b)(5). The FAA had previously granted exemptions to engine manufacturers, allowing them to manufacture and install airframe components that interface between the engine and the airframe, provided the engine manufacturer owned or licensed the ICs design and installation data.
Boeing and General Electric supported the rule change. Boeing also suggested the FAA allow engine manufacturers to install and certify airplane manufacturers' ICs during the engine type certification process.
The FAA disagrees with this recommendation as it is outside the scope of this rulemaking. Allowing engine manufacturers to install and certify airplane manufacturers' ICs during the engine TC process is a design issue, not a production issue. Our 2014 NPRM and this final rule focus on amendments to the production approval provisions in subpart G.
Williams International recommended that our final rule distinguish between all potential ICs versus those that are licensed to be both manufactured and installed by a PAH. The commenter suggested that defining ICs more narrowly would enable the FAA to include fewer items on the PAH's PLR, and as a result would require fewer PLR updates and impose less of a burden on the FAA.
The FAA agrees with the concerns raised byWilliams International, but we have determined that the rule as drafted adequately addresses these concerns. Under §§ 21.1(b)(5) and 21.147(c), a component must meet certain criteria before it is considered an “interface component” eligible for the PAH's PLR. For example, § 21.1(b)(5) requires, among other things, that an IC be designated as such by the TC or STC holder. The rule requires only those ICs the PAH intends to produce be listed on the PLR and not all possible ICs, so the PLR should not be an exhaustive list or a burden on the FAA.
HEICO requested that the FAA define authorized release documents, to establish who is issuing the document. The FAA disagrees with the recommendation. The FAA does not believe it is necessary to provide a definition in the text of the rule. The FAA provides additional guidance on authorized release documents in the revised AC 21.43, Appendix B, which is applicable to any PAH.
One individual commenter stated that the title of the NPRM did not reflect recent changes from parts to articles in our 2009 final rule,
HEICO requested that we revise FAA Form 8130-3 attached as Appendix A, Figure A-1 to FAA Order 8130.21 to explicitly indicate who, including a PAH, is allowed to issue the document. The FAA disagrees with HEICO's recommendation to revise the form. Instead, we have revised FAA Order 8130.21 and ACs 21-43 and 21-44 to reflect the rule change allowing a properly authorized PAH to issue an authorized release document. In the ACs we also provide guidance to on how to complete FAA Form 8130-3.
Textron Aviation recommended that the FAA remove the requirement for the issuance of export airworthiness approvals for articles, believing that this change would better align FAA regulations with those of foreign authorities. The recommendation is outside the scope of this rulemaking. The FAA notes that the requirements for
Changes to Federal regulations must undergo several economic analyses. First, Executive Orders 12866 and 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354), as codified in 5 U.S.C. 603
Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it be included in the preamble if a full regulatory evaluation of the costs and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for this determination follows.
As summarized in the table below, the provisions of this final rule (1) are minimal cost, (2) will impose no additional costs because the provisions will clarify only, or are current practice, or (3) are voluntary and therefore inherently cost-beneficial. Our determination has not changed from that made in the NPRM regulatory evaluation. The FAA received no comments to the docket on the NPRM regulatory evaluation. More detailed explanations follow the table.
Under this provision, the FAA will require each applicant for, or holder of, a Production Certificate (PC), Parts Manufacturer Approval (PMA), or Technical Standard Order (TSO) authorization to identify an accountable manager, who is responsible for, and has authority over, a PAH's operations, as a PAH's primary contact with the FAA. This provision is not intended to require the PAH to create a new position within its organization and will not mandate that an individual in a specific position be identified as the accountable manager. Consequently, the costs, if any, associated with this requirement are minimal.
PC holders previously could not install interface components (ICs) on their type-certificated products without an exemption. Previous regulations governing the production limitation record and the amendment of PCs restricted the PC holder to the manufacture of products only (aircraft, aircraft engines, or propellers) and did not authorize installation.
Codifying the previous practice of allowing PC holders to manufacture and install ICs implies no change in safety
With this provision, the FAA intends to clarify existing requirements that the PAH is responsible for (1) conformity throughout the supply chain and (2) establishing a supplier reporting process for nonconforming releases. As there was no definition of supplier in the previous regulations, the final rule defines supplier as a person that provides a product, article, or service at any tier in the supply chain that is used or consumed in the design or manufacture of, or installed on, a product or article.
The final rule changes the language to § 21.137(c) as shown in the following table:
As provision (1) clarifies the FAA's intent and current practice and provision (2) gives PAHs greater flexibility, there will be no additional cost resulting from these provisions.
Previously, only the FAA was allowed to document that an aircraft engine, propeller, or article conforms to its approved design and is in condition for safe operation. The FAA provides documentation with an airworthiness approval, using FAA Form 8130-3, “Authorized Release Certificate, Airworthiness Approval Tag.” This provision allows, but does not require, qualified PAHs to issue authorized release documents, using FAA Form 8130-3, for aircraft engines, propellers, and articles for which the PAH has a production approval. We refer to the issuance of Form 8130-3 by a PAH as an “authorized release document” because, as defined by 14 CFR 21.1(b)(1), only the FAA is allowed to issue an airworthiness approval. PAHs choosing not to issue these authorized release documents may continue to obtain approvals from the FAA.
Although such airworthiness documentation is required only when requested by a foreign civil aviation authority, it has become increasingly valued in the aviation industry. Several U.S. manufacturers have requested the privilege to issue such documentation, which is already enjoyed by their European and Canadian counterparts. As it is voluntary, this provision is inherently cost beneficial.
As noted in the preamble above, the FAA granted an exemption to Sensenich Wood Propeller Company from the regulations requiring that a propeller, propeller blade, or propeller hub be marked using an approved fireproof method. In granting the exemption, the FAA found that stamping the hub of the propeller with the identification markers will achieve an equivalent level of safety to the rule. The FAA maintains that finding in this final rule and, in any case, codifying the practice, previously allowed by exemption, implies no change in safety benefits.
The FAA made this minimal cost determination for the proposed rule. As no comments were received, the FAA concludes the expected cost is minimal.
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
The provisions of this final rule (1) are minimal cost, (2) would impose no additional costs because the provisions would clarify only, or are current practice, or (3) are voluntary. We received no comments regarding our determination that there was no significant impact on a substantial number of small entities in the NPRM.
Therefore, as provided in section 605(b), the head of the FAA certifies that this final rule will not have a significant economic impact on a substantial number of small entities.
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the
The FAA has assessed the potential effect of this final rule and determined that the rule's provision allowing PAHs to issue authorized release documents for purposes of export would be in accordance with the Trade Agreements Act as this provision uses European standards as the basis for United States regulation. The remaining provisions have a minimal domestic impact only and therefore no effect on international trade.
Title II of the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new requirement for information collection associated with this final rule.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA reviewed the corresponding ICAO Standards and Recommended Practices and identified no differences with these regulations.
Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA analyzed this action under the policies and agency responsibilities of Executive Order 13609, and determined that this action has no significant effect on international regulatory cooperation. To the extent that this final rule may conflict with the implementing protocols of any FAA bilateral aviation safety agreements, the FAA will amend those protocols in coordination with our international partners.
FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 312f and involves no extraordinary circumstances.
The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. The agency determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have Federalism implications.
The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it is not a “significant energy action” under the executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
An electronic copy of a rulemaking document may be obtained by using the Internet by—
1. Search the Federal eRulemaking Portal (
2. Visit the FAA's Regulations and Policies Web page at
3. Access the Government Printing Office's Web page at
Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.
Comments received may be viewed by going to
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document, may contact its local FAA official, or the person listed under the
Aircraft, Aviation safety, Exports, Imports, Reporting and recordkeeping requirements.
Aircraft, Exports, Signs and symbols.
In consideration of the foregoing, and under the authority of 49 U.S.C. 106(f) and 44701(a)(5), the Federal Aviation Administration proposes to amend
42 U.S.C. 7572; 49 U.S.C. 106(g), 40105, 40113, 44701-44702, 44704, 44707, 44709, 44711, 44713, 44715, 45303.
(b) * * *
(1)
(5)
(10)
(a) Each applicant for or holder of a production certificate must provide the FAA with a document—
(1) Describing how its organization will ensure compliance with the provisions of this subpart;
(2) Describing assigned responsibilities, delegated authorities, and the functional relationship of those responsible for quality to management and other organizational components; and
(3) Identifying an accountable manager.
(b) The accountable manager specified in paragraph (a) of this section must be responsible within the applicant's or production approval holder's organization for, and have authority over, all production operations conducted under this part. The accountable manager must confirm that the procedures described in the quality manual required by § 21.138 are in place and that the production approval holder satisfies the requirements of the applicable regulations of subchapter C, Aircraft. The accountable manager must serve as the primary contact with the FAA.
(c) * * *
(1) Ensure that each supplier-provided product, article, or service conforms to the production approval holder's requirements; and
(2) Establish a supplier-reporting process for products, articles, or services that have been released from or provided by the supplier and subsequently found not to conform to the production approval holder's requirements.
(o)
The FAA issues a production limitation record as part of a production certificate. The record lists the type certificate number and model of every product that the production certificate holder is authorized to manufacture, and identifies every interface component that the production certificate holder is authorized to manufacture and install under this part.
(a) A holder of a production certificate must apply for an amendment to a production certificate in a form and manner prescribed by the FAA.
(b) An applicant for an amendment to a production certificate to add a type certificate or model, or both, must comply with §§ 21.137, 21.138, and 21.150.
(c) An applicant may apply to amend its production limitation record to allow the manufacture and installation of an interface component, provided—
(1) The applicant owns or has a license to use the design and installation data for the interface component and makes that data available to the FAA upon request;
(2) The applicant manufactures the interface component;
(3) The applicant's product conforms to its approved type design and the interface component conforms to its approved type design;
(4) The assembled product with the installed interface component is in a condition for safe operation; and
(5) The applicant complies with any other conditions and limitations the FAA considers necessary.
(a) Each applicant for or holder of a PMA must provide the FAA with a document—
(1) Describing how its organization will ensure compliance with the provisions of this subpart;
(2) Describing assigned responsibilities, delegated authorities, and the functional relationship of those responsible for quality to management and other organizational components; and
(3) Identifying an accountable manager.
(b) The accountable manager specified in paragraph (a) of this section must be responsible within the applicant's or production approval holder's organization for, and have authority over, all production operations conducted under this part. The accountable manager must confirm that the procedures described in the quality manual required by § 21.308 are in place and that the production approval holder
(a) Each applicant for or holder of a TSO authorization must provide the FAA with a document—
(1) Describing how its organization will ensure compliance with the provisions of this subpart;
(2) Describing assigned responsibilities, delegated authorities, and the functional relationship of those responsible for quality to management and other organizational components; and
(3) Identifying an accountable manager.
(b) The accountable manager specified in paragraph (a) of this section must be responsible within the applicant's or production approval holder's organization for, and have authority over, all production operations conducted under this part. The accountable manager must confirm that the procedures described in the quality manual required by § 21.608 are in place and that the production approval holder satisfies the requirements of the applicable regulations of subchapter C, Aircraft. The accountable manager must serve as the primary contact with the FAA.
49 U.S.C. 106(g), 40103, 40113-40114, 44101-44105, 44107-44111, 44504, 44701, 44708-44709, 44711-44713, 44725, 45302-45303, 46104, 46304, 46306, 47122.
(c)
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
We are superseding Airworthiness Directive (AD) 2013-02-10 for all Airbus Model A330-200 Freighter series airplanes; Model A330-200 and -300 series airplanes; and Model A340-200 and -300 series airplanes. AD 2013-02-10 required an inspection of the rods to determine the manufacturer; and for affected parts, an inspection for any cracking of the rods, and related investigative and corrective actions if necessary. This AD revises the affected airplanes of a certain paragraph of AD 2013-02-10 due to the discovery of an error. We are issuing this AD to detect and correct cracking of the rods, which could result in rupture of rods that attach the belly fairing to the airframe, leading to separation of the belly fairing from the airframe, and consequent damage to airplane structure and airplane systems.
This AD becomes effective October 16, 2015.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of March 8, 2013 (78 FR 7257, February 1, 2013).
We must receive comments on this AD by November 16, 2015.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 45 80; email:
You may examine the AD docket on the Internet at
Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-227-1138; fax: 425-227-1149.
On January 16, 2013, we issued AD 2013-02-10, Amendment 39-17331 (78 FR 7257, February 1, 2013), which applied to all Airbus Model A330-200 Freighter series airplanes; Model A330-200 and -300 series airplanes; and Model A340-200 and -300 series airplanes. AD 2013-02-10 was prompted by a report of a manufacturing defect in certain rods installed in the belly fairing, which could lead to cracks at the crimped end of the rod. AD 2013-02-10 required an inspection of the rods to determine the manufacturer; and for
Since we issued AD 2013-02-10, Amendment 39-17331 (78 FR 7257, February 1, 2013), we have discovered an inadvertent error in the identification of the affected airplane models in the inspection requirements of AD 2013-02-10. Paragraph (g) of AD 2013-02-10 referred to Model A340-211, -212, -213, -311, -312, and -313 airplanes, but did not limit the affected airplanes to certain manufacturer serial numbers.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2012-0005, dated January 10, 2012 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for Airbus Model A330-200 Freighter series airplanes; Model A330-200 and -300 series airplanes; and Model A340-200 and -300 series airplanes. The MCAI states:
A rod manufacturing process defect has been identified at the supplier, Technical Airborne Components Industries (TAC), which could lead to cracks at the crimped end of the rod.
A design review of all affected rods has demonstrated that rupture of rods which attach the belly fairing can lead to separation of the belly fairing from the airframe, which would constitute an unsafe condition.
For the reasons described above, this AD requires detailed visual inspections of the 21 affected rods installed in the belly fairing for manufacturer identification, and if TAC is identified as manufacturer, or if the manufacturer cannot be identified, to further inspect the rods to find any crack, using a high frequency eddy current (HFEC) method and, depending on findings, accomplishment of the applicable corrective actions, to ensure structural integrity of the belly fairing rods. This AD also prohibits installation of an affected TAC rod as replacement part in the belly fairing to all aeroplanes.
You may examine the MCAI on the Internet at
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 issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of these same type designs.
Airbus has issued Service Bulletins A330-53-3186 and A340-53-4185, both Revision 01, both dated April 7, 2011. The service information describes procedures for an inspection of the rods to determine the manufacturer; and for affected parts, an inspection for any cracking of the rods, and related investigative and corrective actions if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are superseding AD 2013-02-10, Amendment 39-17331 (78 FR 7257, February 1, 2013), to correct an error in the identification of the affected airplane models in the inspection requirements of paragraph (g) of AD 2013-02-10. We have made no other changes to the requirements published in AD 2013-02-10. Also, we have determined that this change is relieving to certain operators of the Airbus Model A340-211, -212, -213, -311, -312, and -313 airplanes and imposes no additional burden on any operator. Therefore, we determined that notice and opportunity for public comment before issuing this AD are unnecessary.
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD affects 54 airplanes of U.S. registry.
The actions required by AD 2013-02-10, Amendment 39-17331 (78 FR 7257, February 1, 2013), and retained in this AD take about 13 work-hours per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that were required by AD 2013-02-10 is $59,670, or $1,105 per product.
In addition, we estimate that any necessary follow-on actions will take about 28 work-hours and require parts costing $0, for a cost of $2,380 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. We have no way of determining the number of aircraft that might need these actions.
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 AD will not have federalism implications under Executive Order 13132. This AD will 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
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD becomes effective October 16, 2015.
This AD replaces AD 2013-02-10, Amendment 39-17331 (78 FR 7257, February 1, 2013).
This AD applies to all airplanes identified in paragraphs (c)(1) and (c)(2) of this AD, certificated in any category.
(1) Airbus Model A330-201, -202, -203, -223, -223F, -243, -243F, -301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes.
(2) Airbus Model A340-211, -212, -213, -311, -312, and -313 airplanes.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by a report of a manufacturing defect in certain rods installed in the belly fairing, which could lead to cracks at the crimped end of the rod, and by the discovery of an error in the affected airplanes of a certain paragraph of AD 2013-02-10. We are issuing this AD to detect and correct cracking of the rods, which could result in rupture of rods that attach the belly fairing to the airframe, leading to separation of the belly fairing from the airframe, and consequent damage to airplane structure and airplane systems.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (g) of AD 2013-02-10, Amendment 39-17331 (78 FR 7257, February 1, 2013), with revised affected airplanes. For Model A330-201, -202, -203, -223, -223F, -243, -243F, -301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes; and Model A340-211, -212, -213, -311, -312, and -313 airplanes, having manufacturer serial numbers (MSN) 0002 to 1113 inclusive, except MSNs 0996, 1039, 1054, 1059, 1105, 1107, 1108, and 1112: Within 72 months after March 8, 2013 (the effective date of AD 2013-02-10), accomplish the actions in paragraphs (g)(1) and (g)(2) of this AD, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-53-3186, Revision 01, dated April 7, 2011 (for Model A330 airplanes); or A340-53-4185, Revision 01, dated April 7, 2011 (for Model A340 airplanes).
(1) Do a detailed inspection of the 21 rods of the belly fairing identified in Airbus Service Bulletin A330-53-3186, Revision 01, dated April 7, 2011 (for Model A330 airplanes); or A340-53-4185, Revision 01, dated April 7, 2011 (for Model A340 airplanes); for rod manufacturer identification. A review of airplane maintenance records is acceptable in lieu of this inspection if the manufacturer of the rods can be conclusively determined from that review.
(2) If the rod manufacturer is found to be Technical Airborne Components Industries (TAC), or if the manufacturer cannot be identified, do a high frequency eddy current (HFEC) inspection for cracking of the crimped end of the rod body and, if any crack is found, before further flight, do all applicable related investigative and corrective actions.
This paragraph restates the requirements of paragraph (h) of AD 2013-02-10, Amendment 39-17331 (78 FR 7257, February 1, 2013), with no changes. As of March 8, 2013 (the effective date of AD 2013-02-10), no person may install any affected TAC rod, as identified in Airbus Service Bulletin A330-53-3186, Revision 01, dated April 7, 2011; or A340-53-4185, Revision 01, dated April 7, 2011; as applicable; on any airplane unless the rod has passed (found to have no cracking) the inspection as required by paragraph (g)(2) of this AD.
This paragraph restates the credit provided by paragraph (i) of AD 2013-02-10, Amendment 39-17331 (78 FR 7257, February 1, 2013), with no changes. This paragraph provides credit for the inspections and corrective actions required by paragraph (g) of this AD, if those actions were performed before March 8, 2013 (the effective date of AD 2013-02-10), using Airbus Service Bulletin A330-53-3186, dated January 17, 2011 (for Model A330 airplanes); or A340-53-4185, dated January 17, 2011 (for Model A340 airplanes); which are not incorporated by reference in this AD.
The following provisions also apply to this AD:
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2012-0005, dated January 10, 2012, for related information. This MCAI may be found in the AD docket on the Internet at
(2) Service information identified in this AD that is not incorporated by reference is
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(3) The following service information was approved for IBR on March 8, 2013 (78 FR 7257, February 1, 2013).
(i) Airbus Service Bulletin A330-53-3186, Revision 01, dated April 7, 2011.
(ii) Airbus Service Bulletin A340-53-4185, Revision 01, dated April 7, 2011.
(4) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 45 80; email:
(5) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
(6) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace at Sheridan, AR. Controlled airspace is necessary to accommodate new Standard Instrument Approach Procedures (SIAPs) at Sheridan Municipal Airport. The FAA is taking this action to enhance the safety and management of Instrument Flight Rules (IFR) operations at the airport.
Effective 0901 UTC, December 10, 2015. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
FAA Order 7400.9, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.9, Airspace Designations and Reporting Points is published yearly and effective on September 15.
Rebecca Shelby, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone: 817-868-2914.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Sheridan Municipal Airport, Sheridan, AR.
On June 22, 2015, the FAA published in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.9Z, airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the
This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 6 mile radius of Sheridan Municipal Airport, Sheridan, AR, to accommodate new Standard Instrument Approach Procedures at the airport. This action enhances the safety and management of IFR operations at the airport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this 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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g);, 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.0-mile radius of Sheridan Municipal Airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace at Springfield, MO. Controlled airspace is necessary to accommodate new Standard Instrument Approach Procedures at Downtown Airport. The FAA is proposing this action to enhance the safety and management of Instrument Flight Rules (IFR) operations at the airport.
Effective 0901 UTC, December 10, 2015. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.9, Airspace Designations and Reporting Points is published yearly and effective on September 15.
Rebecca Shelby, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone: 817-868-2914.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as establishes controlled airspace at Downtown Airport, Springfield, MO.
On June 25, 2015, the FAA published in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.9Z, airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the
This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 6.0 mile radius of Downtown Airport, Springfield, MO, to accommodate new Standard Instrument Approach Procedures at the airport. This action enhances the safety and management of IFR operations at the airport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.0-mile radius of Downtown Airport.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; final specifications.
NMFS issues a final rule and final specifications under authority of the Western and Central Pacific Fisheries Convention Implementation Act (WCPFC Implementation Act). The final rule establishes a framework under which NMFS will specify limits on fishing effort and catches, as well as spatial and temporal restrictions on particular fishing activities and other requirements, in U.S. fisheries for highly migratory fish species in the western and central Pacific Ocean (WCPO). NMFS will issue the specifications as may be necessary to implement conservation and management measures adopted by the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Commission or WCPFC). The final rule also requires that certain U.S. fishing vessels operating in the WCPO obtain “IMO numbers.” The final rule also includes changes to regulations regarding tuna catch retention requirements for purse seine vessels, requirements to install and carry vessel monitoring system (VMS) units, daily reporting requirements, and other changes that are administrative in nature.
Using the regulatory framework described above, NMFS also issues final specifications for 2015 that restrict the use of fish aggregating devices (FADs) by purse seine vessels.
These actions are necessary to satisfy the obligations of the United States under the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Convention), to which it is a Contracting Party.
Effective November 30, 2015, except for the amendments to §§ 300.222(xx) and 300.227, and the final specifications for 2015, which shall be effective October 1, 2015.
Copies of supporting documents prepared for this final rule, including the proposed rule, the regulatory impact review (RIR), and the programmatic environmental assessment (PEA), are available via the Federal e-Rulemaking Portal, at
A final regulatory flexibility analysis (FRFA) prepared under authority of the Regulatory Flexibility Act is included in the Classification section of the
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to Michael D. Tosatto, Regional Administrator, NMFS PIRO (see address above) and by email to
Tom Graham, NMFS PIRO, 808-725-5032.
On July 23, 2015, NMFS published a proposed rule and proposed specifications in the
This final rule and final specifications are issued under the authority of the WCPFC Implementation Act (16 U.S.C. 6901
The regulations established in this final rule are described below under “New Regulations” and the final specifications are described below under “Final Specifications for 2015.” The preamble to the proposed rule and proposed specifications includes detailed background information, including information on the Convention and the Commission, the decisions of the Commission that are being implemented, and the bases for the proposed rule and specifications, which are not repeated here.
Participants in the Commission include Members, Participating Territories, and Cooperating Non-Members. The United States is a Member. American Samoa, the Commonwealth of the Northern Mariana Islands (CNMI), and Guam are Participating Territories. In this document, the term “member” is used to refer to all such participants generally.
This final rule includes several elements, described in detail below under three categories, that will be included in the regulations at 50 CFR 300, Subpart O. The first establishes a framework to implement Commission decisions, the second requires that certain fishing vessels be issued International Maritime Organization (IMO) numbers, and the third makes changes to several existing regulations to implement Commission decisions, some of which are administrative in nature.
This final rule establishes a framework under which NMFS will specify fishing effort limits, catch limits, and other restrictions and requirements in U.S. fisheries for highly migratory species (HMS) in the Convention Area as may be necessary to implement particular decisions of the Commission. The framework will be used to implement only those Commission decisions that are amenable to the framework process, such as quantitative fishing effort limits and catch limits, and spatial and/or temporal restrictions on specific fishing activities. NMFS may implement Commission decisions through regulations outside the framework process, as in the past. For the purpose of describing the framework, all such restrictions and requirements are called “limits.”
NMFS also notes that under the WCPFC Implementation Act, in cases where there is discretion in the implementation of one or more measures adopted by the Commission that would govern fisheries under authority of a Regional Fishery Management Council, NMFS may, to the extent practicable within the implementation schedule of the Convention and any recommendations and decisions adopted by the Commission, promulgate such regulations in accordance with the procedures established by the MSA.
Most recent Commission decisions do not apply in territorial seas or archipelagic waters. Accordingly, the framework regulations state that any specified limit will not—unless otherwise indicated in the specification—apply in the territorial seas or archipelagic waters of the United States or any other nation, as defined by the domestic laws and regulations of that nation and recognized by the United States. If a Commission decision does apply in territorial seas and/or archipelagic waters, the specification issued by NMFS to implement that decision will specify that it does apply in those areas.
For each limit specified under the framework, NMFS will identify the area and period in which it applies, and as appropriate, the vessel types, gear types, species, fish sizes, and any other relevant attributes to which it applies. For spatial or temporal limits, NMFS will also specify the specific activities that would be restricted in the area or period, and for quantitative limits, NMFS will specify the restrictions and requirements that would go into effect after the limit is reached and the applicable dates of those restrictions and requirements. These restrictions and requirements could include a prohibition on the catch, retention, transshipment and/or landing of specific species or specific sizes of specific species, a prohibition on the use of specific fishing gears or methods, restrictions on specific fishing activities, and reporting or other requirements.
The proposed regulatory framework included criteria to distinguish the fisheries from each other, for the purpose of attributing fishing effort and catch among the fisheries, and determining to which vessels a given restriction applies. This final rule does not include any such criteria, for the reasons explained in the section below titled “Changes from the Proposed Rule and Proposed Specifications.” NMFS may re-propose the criteria at a later time. In the meantime, any criteria that are needed to determine the vessels to which a specified limit applies, or to attribute catch or fishing effort against a specified limit, will be included in the specifications issued under the framework.
The framework will not be used to allocate Commission-adopted limits among individual fishing vessels (except in the case where a single fishing vessel comprises an entire sector or fishery). This does not preclude NMFS from allocating Commission-adopted limits among individual fishing vessels through separate regulations.
This element of the rule applies to all U.S. fishing vessels (including those participating in the fisheries of the U.S. Participating Territories) that are used for commercial fishing for highly migratory fish stocks in the Convention Area either on the high seas or in waters under the jurisdiction of a foreign nation, and the gross tonnage of which is at least 100 GRT (gross register tons) or 100 GT (gross tons) ITC.
The owner of any such fishing vessel is required to ensure that an “IMO number” has been issued for the vessel.
An “IMO number,” as used in this rule, is the number—sometimes called an IMO ship identification number—issued for a ship or vessel under the ship identification number scheme established by the International Maritime Organization. Currently, IMO numbers are issued on behalf of the IMO by IHS Maritime, the current administrator of the IMO ship identification number scheme. A vessel owner may request that an IMO number be issued by following the instructions given by IHS Maritime, available at:
Furthermore, for those fishing vessels for which an IMO number is required, obtaining an IMO number is a prerequisite for eligibility to receive a WCPFC Area Endorsement. The WCPFC Area Endorsement is the endorsement required—along with a high seas fishing permit—for a U.S. fishing vessel to be used for commercial fishing for HMS on the high seas in the Convention Area (see 50 CFR 300.212).
The regulations include a process for fishing vessel owners to claim to NMFS that they are unable—through no fault of their own—to obtain IMO numbers. When NMFS receives such a claim, it will review it and assist the fishing vessel owner as appropriate. If NMFS determines that it is infeasible or impractical for the fishing vessel owner to comply with the requirement, NMFS will issue an exemption from the requirement for a specific or indefinite amount of time. The exemption will become void if ownership of the fishing vessel changes.
The final rule includes several other changes to the existing regulations to enhance clarity and promote efficiency, some of which are administrative in nature.
First, this rule removes the regulations requiring that U.S. purse seine vessels carry WCPFC observers on fishing trips in the Convention Area (50 CFR 300.223(e)) because the applicable dates of the requirements, which extended through December 31, 2014, have passed. NMFS emphasizes that U.S. purse seine vessels operating in the Convention Area are, and will likely continue to be, subject to requirements to carry WCPFC observers under the current regulations at 50 CFR 300.215. Under this section, U.S. fishing vessels operating in the Convention Area must carry a WCPFC observer when directed to do so by NMFS. NMFS has issued such directions to purse seine vessel owners for 2015, and anticipates doing so in subsequent years.
Second, this rule revises the definition of “fishing day” to remove the reference to 50 CFR 300.223. As it was previously defined at 50 CFR 300.211, the term applied only to the regulations at 50 CFR 300.223, “Purse seine fishing restrictions,” which establish limits on purse seine fishing effort, restrictions on the use of FADs, and other restrictions that apply to purse seine fishing. The term “fishing day” is now revised to apply more broadly to all the regulations in 50 CFR part 300, subpart O. “Fishing day” means, for fishing vessels equipped with purse seine gear, any day in which a fishing vessel searches for fish, deploys a FAD, services a FAD, or sets a purse seine, with the exception of setting a purse seine solely for the purpose of testing or cleaning the gear and resulting in no catch.
Third, this rule removes certain elements of the existing regulations that require purse seine vessels in the Convention Area to retain on board all the catch of three species of tuna (bigeye tuna, yellowfin tuna, and skipjack tuna), with certain exceptions (specifically, 50 CFR 300.223(d)(1) and (2)), because they are obsolete.
Fourth, this rule makes changes to the requirements related to the installation and operation of vessel monitoring system (VMS) units on fishing vessels that are used to fish commercially for HMS on the high seas in the Convention Area. The previous regulations at 50 CFR 300.219 required the owner and the operator (
Finally, this rule makes changes to the requirement for the owners or operators of U.S. purse seine vessels to submit to NMFS daily reports on how many sets were made on FADs. These daily FAD reports enable NMFS to monitor the number of purse seine sets on FADs (“FAD sets”) to determine if they are within the established limits. This reporting requirement, at 50 CFR 300.218(g), was previously written such that it would only go into effect when NMFS publishes a notice in the
Using the framework established at 50 CFR 300.227, as described above, NMFS issues specifications for 2015 to implement particular provisions of Conservation and Management Measure (CMM) 2014-01, “Conservation and Management Measure for Bigeye, Yellowfin and Skipjack Tuna in the Western and Central Pacific Ocean.”
(1) Set a purse seine around a FAD or within one nautical mile of a FAD.
(2) Set a purse seine in a manner intended to capture fish that have aggregated in association with a FAD or a vessel, such as by setting the purse seine in an area from which a FAD or a vessel has been moved or removed within the previous eight hours, or setting the purse seine in an area in which a FAD has been inspected or handled within the previous eight hours, or setting the purse seine in an area into which fish were drawn by a vessel from the vicinity of a FAD or a vessel.
(3) Deploy a FAD into the water.
(4) Repair, clean, maintain, or otherwise service a FAD, including any electronic equipment used in association with a FAD, in the water or on a vessel while at sea, except that: (a) A FAD may be inspected and handled as needed to identify the FAD, identify and release incidentally captured animals, un-foul fishing gear, or prevent damage to property or risk to human safety; and (b) A FAD may be removed from the water and if removed may be cleaned, provided that it is not returned to the water.
(5) From a purse seine vessel or any associated skiffs, other watercraft or equipment, do any of the following, except in emergencies as needed to prevent human injury or the loss of human life, the loss of the purse seine vessel, skiffs, watercraft or aircraft, or environmental damage: (a) Submerge lights under water; (b) suspend or hang lights over the side of the purse seine vessel, skiff, watercraft or equipment, or; (c) direct or use lights in a manner other than as needed to illuminate the deck of the purse seine vessel or associated skiffs, watercraft or equipment, to comply with navigational requirements, and to ensure the health and safety of the crew.
NMFS received comments on the proposed rule from two entities. The comments are summarized below, followed by responses from NMFS.
The Commission has not adopted guidance—for the purpose of implementing flag-based limits—on attributing fishing activity in cases where a Participating Territory does not have its own flag, leaving member States considerable discretion to implement their own domestic practices and policies. The proposed rule included criteria to distinguish the fisheries from each other, such as to determine the vessels to which a specified limit applies or to attribute catch or fishing effort against a specified limit. However, as explained in the section below, “Changes from the Proposed Rule and Proposed Specifications,” this final rule does not include the proposed rule's criteria for distinguishing among the fisheries.
CMM 2012-05 (formerly CMM 2011-05) establishes procedures for Commission Members and Participating Territories to notify the Commission of vessels flagged to another State or Fishing Entity that they have chartered, leased, or entered into other mechanisms. This measure does not apply to vessels operating under specified fishing agreements under Amendment 7 to the Pelagics FEP because such vessels are neither chartered nor leased to the U.S. Participating Territories.
The CBD further states that the expansion of the Hawaii-based deep-set longline fishery has been encouraged by allowing exemptions to the Commission's bigeye tuna catch limit. Prior to 2014, the Hawaii-based longline fleet had never exceeded the U.S. catch limit by more than 771 metric tons (mt), leading NMFS to assume last year that, going forward, no more than 1,000 mt of bigeye tuna would be transferred annually under specified territory fishing agreements. In practice, in 2014, the first year that a rule codifying quota shifting from Hawaii-based longliners to the U.S. Participating Territories was in effect, the Hawaii-based longliners exceeded the U.S. catch limit by more than 1,000 mt, using an agreement with the CNMI and then caught 52 mt above and beyond the approved amount. This shows that the rule codifying the quota shifting increased bigeye tuna fishing mortality; this rule will do the same.
The only specification being issued as part of this action is the purse seine FAD restrictions for 2015. The expected impacts of this specification on the human environment are analyzed in a programmatic environmental assessment that was made available in conjunction with the proposed rule and proposed specifications (see
The CBD states that NMFS should have prepared an EIS for the framework because of potentially significant environmental impacts and controversy. The framework's criteria for determining which fisheries are subject to the catch limits are not straightforward, which reduces transparency and creates controversy. Without any environmental analysis of the rule, the public lacks basic information needed to evaluate the framework's potential environmental impacts. For example, the notice does not specify how many vessels would fit under the criteria to attribute catch to the U.S. Participating Territories. Vessels permitted to land HMS in California, Oregon, and Washington can, under the framework, sell catch from the high seas in American Samoa, Guam, or the CNMI and have that catch be considered part of the fishery of the territory, but there are no estimates of how many vessels are permitted under 50 CFR 660.707 to which this criteria might apply.
The CBD further states that NMFS has not studied the impact of allowing catch from the eastern Pacific Ocean (EPO) to be considered part of a territory's fishery, which requires not only an EIS but also consultation under the ESA. The framework and the exemptions from Commission catch limits will have unknown effects on endangered loggerhead and leatherback sea turtles because of increased fishing effort in the EPO, specifically on the high seas off California. The most recent Biological Opinion on the Hawaii-based deep-set longline fishery, completed in September 2014, did not anticipate longline fishing effort in the EPO. The Biological Opinion treats the catch in the EPO as incidental, although Hawaii-permitted longline vessels have been operating out of and landing their catch in San Diego. Where the fishery operates is critical to assessing impacts to endangered species. Without assessing where the fishing effort takes place—in the high seas off California or in the high seas around U.S. territories—NMFS cannot reliably estimate impacts to endangered sea turtles, and thus an EIS is necessary for this framework.
The CBD states that because the framework is potentially controversial as it could apply to bigeye tuna longline catch limits, NMFS must prepare an EIS. More than 4,000 public comments were submitted in response to NMFS' 2014 rule to establish the attribution of catch to the U.S. Participating Territories (see final rule published October 28, 2014; 79 FR 64097). This is evidence that this framework could be controversial when applied, even though due to the short 15-day comment period, this rule specifically is not likely to raise a similar level of interest. The litigation regarding NMFS' rule to implement the attribution of catch to the U.S. Participating Territories also demonstrates the controversy associated with this aspect of the framework. Because the proposed rule would codify in a framework actions similar to what has already been challenged in court and subject to public protest, NMFS must prepare an EIS.
NMFS has determined that the proposed framework regulations and associated specifications for 2015 will not affect any ESA-listed species in any manner not considered in prior consultations. The existing September 2014 Biological Opinion for the Hawaii deep-set longline fishery considered the effects of the fishery on ESA-listed species based upon the documented history of where the fishery operates. The fishery continues to operate at levels and in a manner analyzed in the Biological Opinion, and impacts to ESA-listed species remain within levels anticipated and authorized in the incidental take statement. Establishment of this framework, which is purely administrative and procedural in nature, will not alter the operation of the fishery in any way, and therefore does not itself introduce effects of the action that were not considered in earlier consultations.
The reference in the proposed framework to fishing vessels with permits issued under 50 CFR 660.707 has to do with the attribution of catch and fishing effort with respect to the vessel that lands the fish, not the vessel that catches the fish. However, as explained in the section below, “Changes from the Proposed Rule and Proposed Specifications,” this final rule does not include that reference or the proposed rule's criteria for distinguishing among the fisheries. More generally, NMFS does not expect that catches from the EPO will be subject to any WCPFC-adopted limits that might be established under the framework.
NMFS has not made any changes from the proposed specifications for 2015.
NMFS has made five changes from the proposed rule.
First, after considering public comment, NMFS is not finalizing the proposed rule's paragraph (d) of 50 CFR 300.227, titled “U.S. and territorial fisheries.” The proposed paragraph had included criteria to distinguish the fisheries of the U.S. Participating Territories from the fisheries of the United States, such as to determine the vessels to which a specified limit applies or to attribute catch or fishing effort against a specified limit. Comments received on paragraph (d) indicate that there was public confusion over how to interpret the regulatory text and how the criteria would be prioritized. Based on the comments received and on NMFS' own review of the proposed rule text, NMFS finds that the proposed regulatory text at 50 CFR 300.227(d) was confusing to the public and did not afford adequate notice of the proposed criteria. Furthermore, NMFS intended for the criteria to mirror those in existing regulations related to bigeye tuna catch limits in longline fisheries (at 50 CFR 300.224), but inadvertently wrote the proposed regulations such that they differed from those existing regulations. For these reasons, NMFS has decided to finalize the framework without the proposed criteria. NMFS is not including the proposed text at 50 CFR 300.227(d) in the final rule, and may re-propose the criteria at a later time. In the meantime, any criteria that are needed to determine the vessels to which a specified limit applies, or to attribute catch or fishing effort against a specified limit, will be included in the specifications issued under the framework.
Second, NMFS has made non-substantial changes to paragraph (a) of 50 CFR 300.227, which sets out the purpose and general provisions for the framework. The changes make the paragraph align more closely with the language of the WCPFC Implementation Act, particularly to make clear that NMFS (through delegation of authority from the Secretary of Commerce) is authorized to promulgate such regulations as may be necessary to carry out the international obligations of the United States under the Convention and the WCPFC Implementation Act.
Third, NMFS has made non-substantial changes to paragraph (e) of 50 CFR 300.227, changing three instances of “Commission-mandated limit” to “Commission-adopted limit” to better reflect the responsibilities of the Secretary of Commerce and NMFS under the WCPFC Implementation Act.
Fourth, NMFS has made amendments to regulations at 15 CFR 902.1(b) to incorporate the approval of the collection of information requirements for IMO numbers.
Fifth, NMFS has made non-substantive technical modifications to 50 CFR 300.222 to take into consideration that different elements of the final rule go into effect at different times.
Under NOAA Administrative Order 205-11, dated December 17, 1990, the Under Secretary for Oceans and Atmosphere has delegated authority to sign material for publication in the
The Administrator, Pacific Islands Region, NMFS, has determined that this final rule and these final specifications are consistent with the WCPFC Implementation Act and other applicable laws.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on the amendments to regulations at 15 CFR 902.1(b), because it is unnecessary. This revision is an administrative change that modifies the CFR sections where the information collection requirements under current OMB control number 0648-0595 are located.
There is good cause under 5 U.S.C. 553(d)(3) to establish an effective date less than 30 days after date of publication for the final specifications for 2015 and for the framework element of the final rule (
This final rule has been determined to be not significant for purposes of Executive Order 12866.
A final regulatory flexibility analysis (FRFA) was prepared. The FRFA incorporates the initial regulatory flexibility analysis (IRFA) prepared for the proposed rule and proposed specifications. The analysis in the IRFA is not repeated here in its entirety.
A description of the action, why it is being considered, and the legal basis for this action are contained in the
NMFS did not receive any comments on the IRFA.
Small entities include “small businesses,” “small organizations,” and “small governmental jurisdictions.” The Small Business Administration (SBA) has established size standards for all major industry sectors in the United States, including commercial finfish harvesters (NAICS code 114111). A business primarily involved in finfish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $20.5 million for all its affiliated operations worldwide.
The final rule and specifications apply to owners and operators of U.S. fishing vessels used for commercial fishing for HMS in the Convention Area. The framework establishes administrative procedures for implementing Commission decisions. It does not in itself establish any requirements for owners or operators of fishing vessels or other entities. With the exception of the requirement to obtain an IMO number, the substantive elements of the rule and specifications (
The number of purse seine vessels affected by the purse seine specifications is the number of vessels licensed under the Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America (South Pacific Tuna Treaty, or SPTT). The current number of licensed vessels is 37. The maximum number allowed under the SPTT, apart from joint venture licenses, none of which have ever been issued, is 40.
Thus, the fish harvesting entities affected by the final rule and specifications include about 37 purse seine vessels, 4 longline vessels, and 2 troll vessels.
Based on (limited) available financial information about the affected fishing vessels and the SBA's small entity size standards for commercial finfish harvesters, and using individual vessels as proxies for individual businesses, NMFS believes that all the affected fish harvesting businesses are small entities. NMFS used average per-vessel returns over recent years to estimate annual revenue because gross receipts and ex-vessel price information specific to the affected vessels are not available to NMFS. For the purse seine fishery, NMFS estimates that the average annual receipts over 2010-2012 for each purse seine vessel were less than the $20.5 million threshold for finfish harvesting businesses (the greatest was about $19 million) based on the catches of each vessel in the purse seine fleet during that period, and indicative regional cannery prices developed by the Pacific Islands Forum Fisheries Agency (available at
The recordkeeping, reporting, and other compliance requirements are discussed below for each of the main elements of the final rule and final specifications, as described earlier in the
The framework establishes administrative procedures for implementing Commission decisions. It does not in itself establish any requirements for owners or operators of fishing vessels or other entities, so it is not discussed further in this FRFA.
The requirement to obtain an IMO number is a one-time requirement; once a number has been issued for a vessel, the vessel would be in compliance for the remainder of its life, regardless of changes in ownership. Most entities that are required to obtain an IMO number already have them. NMFS estimates that 7 fishing vessels (that are currently in the fishery) are initially subject to the requirement, and projects that as fishing vessels enter the fishery in the future, roughly two per year will be required to obtain IMO numbers. Completing and submitting the application form (which can be done online and requires no fees) is expected to take about 30 minutes per applicant, on average. Assuming a value of labor of approximately $26 per hour and communication costs of about $1 per application, the (one-time) cost to each entity are expected to be about $14.
Among the final rule's other regulatory changes, only the change to the daily FAD reporting requirements has the potential to bring economic impacts to affected entities. Under the previous regulations, when NMFS triggered the daily FAD reporting requirement through an announcement in the
The FAD prohibition period in July-October in 2015 will substantially constrain the manner in which purse seine fishing can be conducted in that period in the Convention Area; vessels will be able to set only on free, or “unassociated,” schools.
The costs associated with the FAD restrictions cannot be quantitatively estimated, but the fleet's historical use of FADs can give a qualitative estimate of the costs. In the years 1997-2013, the proportion of sets made on FADs in the U.S. purse seine fishery ranged from less than 30 percent in some years to more than 90 percent in others. Thus, the importance of FAD sets in terms of profits appears to be quite variable over time, and is probably a function of many factors, including fuel prices (unassociated sets involve more searching time and thus tend to bring higher fuel costs than FAD sets) and market conditions (
In 2010-2013, the last 4 years for which complete data are available and for which there was 100 percent observer coverage, the U.S. WCPO purse seine fleet made about 39 percent of its sets on FADs. During the months when setting on FADs was allowed, the percentage was about 58 percent. The fact that the fleet has made such a substantial portion of its sets on FADs indicates that prohibiting the use of FADs for four months each year is likely to bring substantial costs and/or revenue losses.
To mitigate these impacts, vessel operators might choose to schedule their routine vessel and equipment maintenance during the FAD prohibition periods. However, the limited number of vessel maintenance facilities in the region might constrain vessel operators' ability to do this. It also is conceivable that some vessels might choose not to fish at all during the FAD prohibition periods rather than fish without the use of FADs. Observations of the fleet's behavior in 2009-2013, when FAD prohibition periods were in effect, do not suggest that either of these responses occurred to an appreciable degree. The proportion of the fleet that fished during the two- and three-month FAD prohibition periods of 2009-2013 did not appreciably differ from the proportion that fished during the same months in the years 1997-2008, when no FAD prohibition periods were in place.
In summary, the economic impacts of the FAD prohibition period in 2015 cannot be quantified, but they could be substantial. Their magnitude will depend in part on market conditions, ocean conditions and the magnitude of any limits on allowable levels of fishing effort in foreign EEZs and on the high seas in the Convention Area.
As indicated above, all affected entities are believed to be small entities, thus small entities will not be disproportionately affected relative to large entities. Nor will there be disproportionate economic impacts based on vessel size or home port. With respect to vessel type, the specifications for 2015 apply only to purse seine vessels, so they would not impact any other vessel types.
NMFS has sought to identify alternatives that would minimize the rule's and specifications' economic impact on small entities (“significant alternatives”). Taking no action could result in lesser adverse economic impacts than the action for many affected entities, but NMFS has determined that the no-action alternative would fail to accomplish the objectives of the WCPFC Implementation Act, including satisfying the international obligations of the United States as a Contracting Party to the Convention, and NMFS has rejected it for that reason. Alternatives identified for each of the main elements of the rule and specifications are discussed below:
The framework will not in itself establish any requirements for owners or operators of fishing vessels or other entities, so would not bring economic impacts. Thus, NMFS has not identified any significant alternatives.
NMFS has not identified any significant alternatives to the IMO number requirement that would comport with U.S. obligations to implement the Commission decision regarding IMO numbers.
None of the other regulatory changes are expected to bring adverse economic impacts to affected entities, so NMFS has not identified any significant alternatives.
NMFS considered in detail one alternative to the restrictions on the use of FADs in 2015. Under the alternative, purse seine vessels would be subject to a 3-month (July-September) FAD prohibition period in 2015, and a limit of 2,522 FAD sets for the year. This alternative would be consistent with the options available to the United States under CMM 2014-01. The impacts of this alternative relative to those of the final action (4-month FAD closure) would depend on the total amount of fishing effort available to the U.S. purse seine fleet in the Convention Area in 2015. If total available fishing effort is relatively high, the final action (4-month FAD closure) would likely allow for more FAD sets than would this alternative, and thus likely cause lesser adverse impacts. The reverse would be the case for relatively low levels of total available fishing effort. For example, given the fleet's historical average FAD set ratio of 58 percent, and assuming an even distribution of sets throughout the year, the estimated “breakeven” point between the two alternatives would be 6,502 total available sets for the year. Although the amount of fishing effort that will be available to the fleet in the future, particularly under the SPTT, cannot be predicted with any certainty, 6,502 sets is substantially less than the amounts of fishing effort that have been available to the fleet since it has been operating under the SPTT. For that reason, NMFS expects that the final action (4-month FAD closure) likely would cause less severe economic impacts on the purse seine fleet and its participants than would this alternative, and NMFS has rejected the alternative of a 3-month FAD closure in combination with a limit of 2,522 FAD sets for that reason.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. NMFS has prepared one or more small entity compliance guides for this rule and specifications, and will send them to holders of permits in the relevant fisheries. The guide(s) and this final rule also will be available at
This final rule contains three collection-of-information requirements that are subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA).
The first collection has been approved by the OMB under control number 0648-0595, “Western and Central Pacific Fisheries Convention Vessel Information Family of Forms.” This collection-of-information has been revised to include the requirement for the owners of certain fishing vessels to ensure that IMO numbers are issued for the vessels. This is a one-time requirement; no renewals or updates are required during the life of a vessel. A fishing vessel owner can request the issuance of an IMO number by submitting specific information about the vessel and its ownership and management to IHS Maritime, which issues IMO numbers on behalf of the International Maritime Organization. If a fishing vessel requires an exemption, the owner must provide the required information to NMFS. Providing the required information is expected to bring a public reporting burden of approximately 30 minutes per response.
The second collection, requirements related to installing and operating vessel monitoring system units, has been approved by OMB under control number 0648-0596, “Vessel Monitoring System Requirements under the Western and Central Pacific Fisheries Convention.” Public reporting burden for the VMS requirements is estimated to average 5 minutes per response for the activation reports and on/off reports, 4 hours per response for VMS unit purchase and installation, and 1 hour per response for VMS unit maintenance.
The third collection, the daily FAD reporting requirement, has been approved by OMB under control number 0648-0649, “Transshipment Requirements under the WCPFC.” Public reporting burden for the daily FAD report is estimated to average 10 minutes per response.
These estimated response times include time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Send comments regarding these burden estimates, or any other aspect of the data collections, including whether the collections are necessary for the performance of the functions of the agency, the accuracy of the agency's estimates of burden, ways to enhance the utility and clarity of information, and suggestions for reducing the burden, to Michael D. Tosatto, Regional Administrator, NMFS PIRO (see
Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
Reporting and recordkeeping requirements.
Administrative practice and procedure, Fish, Fisheries, Fishing, Marine resources, Reporting and recordkeeping requirements, Treaties.
For the reasons set out in the preamble, 15 CFR part 902 and 50 CFR part 300 are amended as follows:
44 U.S.C. 3501
(b) * * *
16 U.S.C. 6901
(c)
(2) The owner of a fishing vessel of the United States used for commercial fishing for HMS in the Convention Area, either on the high seas or in waters
(3) In the event that the owner of a fishing vessel subject to the requirement of paragraph (c)(2) of this section, after following the instructions given by the administrator of the IMO ship identification number scheme, is unable to obtain an IMO number for the fishing vessel, the fishing vessel owner may request an exemption from the requirement from the Pacific Islands Regional Administrator. The request must be sent by mail to the Pacific Islands Regional Administrator or by email to
(4) Upon receipt of a request for an exemption under paragraph (c)(3) of this section, the Pacific Islands Regional Administrator will, to the extent he or she determines appropriate, assist the fishing vessel owner in requesting an IMO number. If the Pacific Islands Regional Administrator determines that it is infeasible or impractical for the fishing vessel owner to obtain an IMO number for the fishing vessel, he or she will issue an exemption from the requirements of paragraph (c)(2) of this section for the subject fishing vessel and its owner and notify the fishing vessel owner of the exemption. The Pacific Islands Regional Administrator may limit the duration of the exemption. The Pacific Islands Regional Administrator may rescind an exemption at any time. If an exemption is rescinded, the fishing vessel owner must comply with the requirements of paragraph (c)(2) of this section within 30 days of being notified of the rescission. If the ownership of a fishing vessel changes, an exemption issued to the former fishing vessel owner becomes void.
(g)
(c) * * *
(1)
(5)
(xx) Fail to comply with any of the limits, restrictions, prohibitions, or requirements specified under § 300.227.
The additions reads as follows:
(vv) Fail to obtain an IMO number for a fishing vessel as required in § 300.217(c).
(ww) [Reserved].
The revision reads as follows:
(d)
(1) Fish that are unfit for human consumption, including but not limited to fish that are spoiled, pulverized, severed, or partially consumed at the time they are brought on board, may be discarded.
(2) If at the end of a fishing trip there is insufficient well space to accommodate all the fish captured in a given purse seine set, fish captured in that set may be discarded, provided that no additional purse seine sets are made during the fishing trip.
(3) If a serious malfunction of equipment occurs that necessitates that fish be discarded.
(a)
(b)
(c)
(1) Limits on the weight or number of fish or other living marine resources of specific types and/or sizes that may be caught, retained, transshipped, landed, and/or sold;
(2) Limits on the amount of fishing effort that may be expended, such as the amount of time vessels spend at sea (
(3) Areas or periods in which particular activities are restricted or prohibited, such as periods during which it is prohibited to set purse seines on FADs or to use FADs in specific other ways.
(d) [Reserved]
(e)
(2) The Pacific Islands Regional Administrator may not, under this framework, allocate a Commission-adopted limit among individual fishing vessels of the United States. In other words, the Pacific Islands Regional Administrator may not, under this framework, specify limits for individual fishing vessels of the United States, except in the case where there is only one fishing vessel in a sector or group of fishing vessels that is subject to the limit. This does not preclude NMFS from allocating Commission-adopted limits among individual fishing vessels through other regulations.
(f)
(2) For each specified limit that is subject to prior notice and public comment, the Pacific Islands Regional Administrator will consider any public comment received on the proposed specification, and publish in the
(g)
(h)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone extending 400 yards east and west of the West Larose Vertical Lift Bridge in Bayou Lafourche, LA. This safety zone is necessary to protect persons, property, and infrastructure from potential damage and safety hazards associated with construction work on the bridge. During the periods of enforcement, entry into and transiting or anchoring within this safety zone is prohibited unless specifically authorized by Captain of the Port (COTP) Morgan City or other designated representative.
This rule is effective without actual notice from October 1, 2015 through 3 p.m. on October 2, 2015. For the purposes of enforcement, actual notice will be used from 6 a.m. to 8 a.m.
Documents mentioned in this preamble are part of docket [USCG-2015-0886]. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Lieutenant Junior Grade Vanessa Taylor, Chief of Waterways Management, U.S. Coast Guard MSU Morgan City 800 David Dr, Morgan City LA,70380; telephone (985) 380-5334, email
The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable, unnecessary, and contrary to the public interest. An NPRM is impracticable and contrary to the public interest because the Coast Guard was only notified of the construction on September 08, 2015 and the work is scheduled to occur from September 28, 2015 through October 2, 2015. Providing a full NPRM process would delay the effectiveness the temporary safety zone until after the bridge construction project has been completed and immediate action is needed to protect vessels and the public from the safety hazards associated with bridge construction over a public waterway. Furthermore, an NPRM is unnecessary because the Coast Guard will inform the public through Broadcast Notice to Mariners, Local Notice to Mariners, and/or Safety Marine Information Broadcasts of the enforcement period for the safety zone as well as any changes in the planned and published dates and times of enforcement.
For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The legal basis and authorities for this rule are found in 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation no. 0170.1, which collectively authorize the Coast Guard to establish and define safety zones.
The purpose of the rule is to establish the necessary temporary safety zone to provide protection for persons and property, including commercial and recreational vessels that may be in the area during the bridge construction project from the hazards associated with the project.
The Coast Guard is establishing a temporary safety zone for all waters in Bayou Lafourche extending 400 yards to the east and west of the West Larose Vertical Lift Bridge located at position 29°34′142″ N, 090°23′109″ W in Bayou Lafourche, LA from 6 a.m. to 8 a.m. and 1 p.m. to 3 p.m. on September 28, 2015 through October 2, 2015. This temporary safety zone will be enforced with actual notice from 6 a.m. to 8 a.m. and 1 p.m. to 3 p.m. on September 28, 2015 through October 2, 2015.
Entry into, transiting or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced over two days. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this temporary rule on small entities. This rule would affect the following entities, some of which might
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection or Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution or power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves establishing a safety zone. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusions Determination are available in the docket where indicated under
Harbors, Marine Safety, Navigation (waters), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) The “on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port to act on his behalf. The on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
(3) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Morgan City or his on-scene representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Morgan City or his on-scene representative.
(d)
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve the 2011 base year inventories for the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS) for New Castle and Sussex Counties, submitted by the State of Delaware. The emission inventories were submitted to meet the nonattainment requirements for the marginal ozone nonattainment areas for the 2008 8-hour ozone NAAQS. EPA is approving the 2011 base year emissions inventories for the 2008 8-hour ozone NAAQS for New Castle and Sussex Counties, Delaware, in accordance with the requirements of the Clean Air Act (CAA).
This rule is effective on November 30, 2015 without further notice, unless EPA receives adverse written comment by November 2, 2015. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID Number EPA-R03-OAR-2015-0455 by one of the following methods:
A.
B.
C.
D.
Maria A. Pino, (215) 814-2181, or by email at
Ground-level ozone is formed when nitrogen oxides (NO
On July 18, 1997 (62 FR 38855), EPA promulgated a revised ozone NAAQS of 0.08 ppm, averaged over eight hours. This standard was determined to be more protective of public health than the previous 1979 1-hour ozone standard. In 2008, EPA revised the 8-hour ozone NAAQS from 0.08 to 0.075 ppm.
Under CAA section 172(c)(3), states are required to submit a comprehensive, accurate, current accounting of actual emissions from all sources (point, nonpoint, nonroad, and onroad) in the nonattainment area. CAA section 182(a)(1) requires that areas designated as nonattainment and classified as marginal are to submit an inventory of
On April 23, 2015, the Delaware Department of Natural Resources and Environment Control (DE DNREC) submitted its 2011 base year inventories for the 2008 8-hour ozone NAAQS for its marginal nonattainment areas of New Castle and Sussex Counties. The 2011 base year inventories include emissions estimates that cover the general source categories of stationary point sources, stationary nonpoint sources, nonroad mobile sources and onroad mobile sources. The pollutants that comprise the inventory are NO
Tables 1 and 2 summarize the 2011 VOC, NO
EPA's guidance for emissions inventory development calls for actual emissions to be used in the base year inventory. DE DNREC developed the point source data for the 2011 base year inventory using emissions directly reported by the facilities. For the 2011 nonpoint source emissions, also known as “area sources,” DE DNREC estimated emissions by multiplying an emission factor by some known indicator of collective activity for each source category by county. These emissions are typically calculated on an annual basis, because activity data are generally only available on an annual basis. DE DNREC converted the annual emissions to seasonal emissions.
DE DNREC has submitted data from EPA's National Emissions Inventory (NEI), version 1, for the onroad inventory. The NEI onroad emissions inventory was developed using the EPA's highway mobile source emissions model, MOVES 2010a. DE DNREC prepared the 2011 nonroad mobile source inventory using EPA's NONROAD2008a model, which estimates fuel consumption and emissions for all nonroad mobile source categories except for aircraft, locomotives, and commercial marine vessels. Aircraft emissions were estimated using the Federal Aviation Administration's (FAA) Emissions and Dispersion Modeling System (EDMS). Locomotive emissions were calculated using company provided fuel consumption data. Commercial marine vessel emissions were calculated using specific activity and operation data for each vessel. DE DNREC reported annual emissions and ozone season day emissions.
EPA reviewed DE DNREC's 2011 base year emission inventories for New Castle and Sussex Counties and determined that the results obtained and the procedures and methodologies used are acceptable and approvable. A detailed evaluation of Delaware's 2011 base year inventories is provided in the Technical Support Document (TSD) EPA prepared for this rulemaking action. The TSD can be found at
Pursuant to section 172(c) of the CAA, EPA is approving the 2011 base year emissions inventories for New Castle and Sussex Counties submitted by the State of Delaware for the 2008 8-hour ozone NAAQS as revisions to the Delaware's SIP. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations.
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 30, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
(e) EPA approves as a revision to the Delaware State Implementation Plan the 2011 base year emissions inventory for New Castle and Sussex Counties for the 2008 8-hour ozone national ambient air quality standard submitted by the Delaware Department of the Natural Resources and Environmental Control on April 23, 2015. The 2011 base year emissions inventory includes emissions estimates that cover the general source categories of point sources, nonroad mobile sources, area sources, onroad mobile sources, and biogenic sources.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the State of Maryland. The revision includes amendments to Maryland's regulation for the control of volatile organic compounds (VOC) and meets the requirement to adopt reasonably available control technology (RACT) for sources covered by EPA's Control Techniques Guidelines (CTG) standards for coatings for metal furniture and miscellaneous metal parts. These amendments will reduce emissions of VOC from these source categories and assist Maryland to attain and maintain the national ambient air quality standard (NAAQS) for ozone. EPA is approving this revision to reduce VOC emissions in accordance with the requirements of the Clean Air Act (CAA).
This final rule is effective on November 2, 2015.
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2015-0404. All documents in the docket are listed in the
Ellen Schmitt, (215) 814-5787, or by email at
On July 17, 2015 (80 FR 42459), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland, proposing approval of Maryland's SIP submittal which includes amendments to the State's regulation for the control of VOCs and adopts the requirements of EPA's CTGs for the coating of metal furniture and miscellaneous metal parts, as RACT for these source categories. The formal SIP revision (#14-02) was submitted by the State of Maryland on July 28, 2014.
Section 172(c)(1) of the CAA provides that SIPs for nonattainment areas must include reasonably available control measures (RACM), including RACT for sources of emissions. Section 182(b)(2)(A) provides that for certain nonattainment areas, states must revise their SIPs to include RACT for sources of VOC emissions covered by a CTG document issued after November 15, 1990 and prior to the area's date of attainment. States can follow the CTGs and adopt state regulations to implement the recommendations contained therein, or they can adopt alternative approaches. In either case, states must submit their RACT rules to EPA for review and approval as part of the SIP process.
In September 2007, EPA published a new CTG for Metal Furniture Coatings (EPA-453/R-07-005), and in September 2008, EPA published a new CTG for Miscellaneous Metal and Plastic Parts Coatings (EPA-453/R-08-003). These CTGs discuss the nature of VOC emissions from these industries, the available control technologies for addressing such emissions, the cost of available control options, and other information. EPA developed new CTGs for these industries after reviewing existing state and local VOC emission reduction approaches, new source performance standards (NSPS), previously issued CTGs, and national emission standards for hazardous air pollutants (NESHAP) for these source categories.
On July 28, 2014, the State of Maryland through the Maryland Department of the Environment (MDE) submitted to EPA a SIP revision (#14-02) concerning the adoption of the emission limits for metal furniture coatings found in the Metal Furniture Coatings CTG and miscellaneous metal parts coatings found in the Miscellaneous Metal and Plastic Parts Coatings CTG. Maryland has adopted EPA's CTG standards for metal furniture and miscellaneous metal parts coating processes by amending Regulation .08 under COMAR 26.11.19, Volatile Organic Compounds from Specific Sources. Specifically, this revision amends the existing regulation in section 26.11.19.08 by adding coating standards for both metal furniture and miscellaneous metal parts that are either equal to or more stringent than the coating standards found in EPA's CTGs. Additionally, new definitions and application methods were added to COMAR section 26.11.19.08. A detailed summary of Maryland's amendments and EPA's review of and rationale for approving this SIP revision submittal may be found in the NPR and Technical Support Document (TSD) for this rulemaking action which is available online at
EPA is approving the State of Maryland's July 28, 2014 SIP submittal as a revision to the Maryland SIP. The SIP submittal being approved in this action consists of amendments to Maryland's regulation for the control of VOCs and adopts the requirements of EPA's CTGs for the coating of metal furniture and miscellaneous metal parts, as RACT for these source categories.
In this rulemaking action, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the MDE rules regarding control of VOC emissions from metal furniture and miscellaneous metal parts coatings as described in Section II of this rulemaking action. The EPA has made, and will continue to make, these documents generally available electronically through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 30, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action to approve amendments of Maryland's VOC control regulation into Maryland's SIP may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Centers for Medicare & Medicaid Services (CMS), HHS.
Correction of final rule.
This document corrects technical errors that appeared in the final rule published in the
Effective October 1, 2015.
Katherine Lucas or Jana Lindquist,
(410) 786-7723.
In FR Doc. 2014-18329 of August 6, 2014 (79 FR 45938), there were a number of technical errors that are identified in the Summary of Errors section (section II), and corrected in the Correction of Errors section (section IV). The provisions in this correction document, which relate to the inpatient psychiatric facilities (IPF) prospective payment system (PPS) ICD-10-CM diagnosis coding conversion for comorbidities, are effective as if they had been included in the document published August 06, 2014 (FY 2015 IPF PPS final rule). While the FY 2015 IPF PPS final rule had an effective date of October 1, 2014, the implementation of the ICD-10 code sets does not occur until October 1, 2015. Accordingly, the corrections in this document will be effective on the October 1, 2015 ICD-10 implementation date.
The FY 2015 IPF PPS final rule was effective October 1, 2014 for all updates and changes, except for the conversion of ICD-9-CM codes to ICD-10-CM codes. We noted in that final rule (79 FR 45945) that on April 1, 2014, the Protecting Access to Medicare Act of 2014 (PAMA) (Pub. L. 113-93) was enacted. Section 212 of PAMA, titled “Delay in Transition from ICD-9 to ICD-10 Code Sets,” provides that “[t]he Secretary of Health and Human Services may not, prior to October 1, 2015, adopt ICD-10 code sets as the standard for code sets under section 1173(c) of the Social Security Act (42 U.S.C. 1320d-2(c)) and section 162.1002 of title 45, Code of Federal Regulations.” We indicated that, in light of PAMA, the effective date of changes from ICD-9 to ICD-10 for the IPF PPS would be the date when ICD-10 becomes the required medical data code set for use on Medicare claims.
In that FY 2015 IPF PPS final rule (79 FR 45945), we also stated that on May 1, 2014, the Department announced that, in light of section 212 of PAMA, “the U.S. Department of Health and Human Services expects to release an interim final rule in the near future that will include a new compliance date that would require the use of ICD-10 beginning October 1, 2015.” The Department asserted that the interim final rule would also require HIPAA covered entities to continue to use ICD-9-CM through September 30, 2015. Therefore, we explained that we will continue to require use of the ICD-9-CM codes for reporting the MS-DRG and comorbidity adjustment factors for IPF services through FY 2015, and that we will require the use of ICD-10 codes beginning October 1, 2015 (79 FR 45945). The final rule “Administrative Simplification: Change to the Compliance Date for the International Classification of Diseases, 10th Revision (ICD-10-CM and ICD-10-PCS) Medical Data Code Sets” was published in the
The IPF PPS includes a comorbidity payment adjustment. The intent of the comorbidity adjustment is to recognize the increased costs associated with comorbid conditions by providing additional payments for certain concurrent medical or psychiatric conditions that are expensive to treat. In the May 2011 IPF PPS final rule (76 FR 26451 through 26452), we explained that the IPF PPS includes 17 comorbidity categories and identified the new, revised, and deleted ICD-9-CM diagnosis codes that generated a comorbid condition payment adjustment under the IPF PPS for RY 2012 (76 FR 26451).
In Table 7 of the FY 2015 IPF PPS final rule, the 17 comorbidity categories defined using ICD-9-CM codes were converted to ICD-10-CM codes (79 FR 45953). We discovered the following eight technical errors in ICD-10-CM codes or code ranges listed in Table 7 of the FY 2015 IPF PPS final rule, which we are correcting. These eight errors were typographic errors which we are correcting to conform to the policies adopted in the FY 2015 IPF PPS final rule, and do not reflect any substantive policy changes:
(1) From the “Oncology Treatment” comorbidity category on page 45953, “C000 through C4002” should read “C000 through C399, C4001, C4002.
(2) From the “Oncology Treatment” comorbidity category on page 45953, “C44191” is being removed.
(3) From the “Oncology Treatment” comorbidity category on page 45953, “D225 through D2261” should read “D225, D2261,”
(4) From the “Oncology Treatment” comorbidity category on page 45953, “D3192 through D485” should read “D3192 through D471.”
(5) From the “Oncology Treatment” comorbidity category on page 45953, “D4861 through D471” should read “D4861 through D499.”
(6) From the “Oncology Treatment” comorbidity category on page 45953, “D479 through D499” should read “D479.”
(7) From the “Oncology Treatment” comorbidity category on page 45953, “D47Z1 through D47Z9” should read “D47Z1, D47Z9.”
(8) From the “Infectious Disease” comorbidity category on page 45954, “R1111” is being removed.
Additionally, IPF providers and software companies asked us to make the table more user-friendly by listing each ICD-10-CM code individually, rather than showing the ICD-10-CM code ranges, as originally presented in Table 7 of the FY 2015 IPF PPS final rule. As such, we are republishing Table 7 in its entirety with each ICD-10-CM code listed individually rather than shown in a range, after incorporating the eight corrections noted above. We have also posted Table 7 on the IPF PPS Web site, under the “Tools and Worksheets” link at:
We ordinarily publish a notice of proposed rulemaking in the
Section 553(d) of the APA ordinarily requires a 30-day delay in effective date of final rules after the date of their publication in the
In our view, this correction document does not constitute a rulemaking that would be subject to these requirements. This correction document corrects technical errors in a table included in the FY 2015 IPF PPS final rule. The corrections contained in this document are consistent with, and do not make substantive changes to, the policies and payment methodologies that were adopted and subjected to notice and comment procedures in the FY 2015 IPF PPS final rule. As a result, the corrections made through this correction document are intended to ensure that the FY 2015 IPF PPS final rule accurately reflects the policies adopted in that rule.
Even if this were a rulemaking to which the notice and comment and delayed effective date requirements applied, we find there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the FY 2015 IPF PPS final rule or delaying the effective date would be contrary to the public interest because it is in the public's interest for providers and suppliers to receive appropriate payments in as timely a manner as possible, and to ensure that the FY 2015 IPF PPS final rule accurately reflects our policies as of the date they take effect and are applicable. Further, such procedures would be unnecessary, because we are not altering the payment methodologies or policies, but rather, we are simply correctly implementing the policies that we previously proposed, received comment on, and subsequently finalized. This correction document is intended solely to ensure that the FY 2015 IPF PPS final rule accurately reflects these payment methodologies and policies. For these reasons, we believe we have good cause to waive the notice and comment and effective date requirements.
In FR Doc. 2014-18329 of August 6, 2014 (79 FR 45938), make the following corrections:
1. On pages 45953 through 45955, “Table 7—FY 2015 Diagnosis Codes and Adjustment Factors for Comorbidity Categories,” the table is corrected to read as follows:
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Final rule.
FMCSA amends its regulations by making technical corrections and ministerial corrections throughout title 49 of the Code of Federal Regulations (CFR), subtitle B, chapter III. The Agency is making minor changes to correct errors and omissions, ensure conformity with Office of the Federal Register style guidelines, update cross references, restore an inadvertent deletion of the reference to an Underwriters Laboratories' standard, and improve clarity and consistency of certain regulatory provisions. This rule does not make any substantive changes to the affected regulations, except to remove one obsolete provision.
The final rule is effective October 1, 2015.
Mr. David Miller, Federal Motor Carrier Safety Administration, Regulatory Development Division, 1200 New Jersey Avenue SE., Washington, DC 20590-0001, by telephone at (202) 366-5370 or via email at
Congress delegated certain powers to regulate interstate commerce to the United States Department of Transportation (DOT or Department) in numerous pieces of legislation, most notably in section 6 of the Department of Transportation Act (DOT Act) (Pub. L. 85-670, 80 Stat. 931 (1966)). Section 55 of the DOT Act transferred to the Department the authority of the former Interstate Commerce Commission (ICC) to regulate the qualifications and maximum hours-of-service of employees, the safety of operations, and the equipment of motor carriers in interstate commerce. See 49 United States Code (U.S.C.) 104. This authority, first granted to the ICC in the Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543, Aug. 9, 1935), now appears in 49 U.S.C. chapter 315. The regulations issued under this authority became known as the Federal Motor Carrier Safety Regulations (FMCSRs), appearing generally at 49 CFR parts 350-399. The administrative powers to enforce chapter 315 were also transferred from the ICC to the DOT in 1966 and appear in 49 U.S.C. chapter 5. The Secretary of the DOT (Secretary) delegated oversight of these provisions to the Federal Highway Administration (FHWA), a predecessor agency of FMCSA. The FMCSA Administrator has been delegated authority under 49 CFR 1.87 to carry out the motor carrier functions vested in the Secretary.
Between 1984 and 1999, a number of statutes added to FHWA's authority. Various statutes authorize the enforcement of the FMCSRs, the Hazardous Materials Regulations (HMRs), and the Commercial Regulations, and provide both civil and criminal penalties for violations of these requirements. These statutes include the Motor Carrier Safety Act of 1984 (Pub. L. 98-554, 98 Stat. 2832, Oct. 30, 1984), codified at 49 U.S.C. chapter 311, subchapter III (MCSA); the Commercial Motor Vehicle Safety Act of 1986 (Pub. L. 99-570, 100 Stat. 3207-170, Oct. 27, 1986), codified at 49 U.S.C. chapter 313; the Hazardous Materials Transportation Uniform Safety Act of 1990, as amended (Pub. L. 101-615, 104 Stat. 3244, Nov. 16, 1990), codified at 49 U.S.C. chapter 51; and the ICC Termination Act of 1995 (Pub. L. 104-88, 109 Stat. 803, Dec. 29, 1995), codified at 49 U.S.C. chapters 131-149.
The Motor Carrier Safety Improvement Act of 1999 (MCSIA) (Pub. L. 106-159, 113 Stat. 1748, Dec. 9, 1999) established FMCSA as a new operating administration within DOT, effective January 1, 2000. The motor carrier safety responsibilities previously assigned to both ICC and FHWA are now assigned to FMCSA.
Congress expanded, modified, and amended FMCSA's authority in the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 (Pub. L. 107-56, 115 Stat. 272, Oct. 26, 2001), the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 1144, Aug. 10, 2005), the SAFETEA-LU Technical Corrections Act of 2008 (Pub. L. 110-244, 122 Stat. 1572, June 6, 2008), and the Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141, 126 Stat. 405, July 6, 2012).
The specific regulations amended by this rule are based on the statutes detailed above. Generally, the legal authority for each of those provisions was explained when the requirement was originally adopted and is noted at the beginning of each part in title 49 of the CFR. Title 49 CFR subtitle B, chapter III, contains all of the FMCSRs.
The Administrative Procedure Act (APA) (5 U.S.C. 551-706) specifically provides exceptions to its notice and public comment rulemaking procedures where the Agency finds there is good cause (and incorporates the finding and a brief statement of reasons therefore in the rules issued) to dispense with them. Generally, good cause exists where the Agency determines that notice and public procedures are impractical, unnecessary, or contrary to the public interest (5 U.S.C. 553(b)(3)(B)). The amendments made in this final rule merely correct inadvertent errors and omissions, remove or update obsolete references, and make minor changes to improve clarity and consistency. The technical amendments do not impose any new requirements, nor do they make any substantive changes to the CFR. For these reasons, FMCSA finds good cause that notice and public comment on this final rule is unnecessary.
The APA also allows agencies to make rules effective upon publication with good cause (5 U.S.C. 553 (d)(3)), instead of requiring publication 30 days prior to the effective date. For the reasons already stated, FMCSA finds there is good cause for this rule to be effective on the date of publication in the
This document makes editorial changes to correct inaccurate references and citations, improve clarity, and fix errors. The reasons for each of these minor revisions are set out below, in a section-by-section description of the changes. These amendments do not impose any new requirements, nor (with one exception) do they make substantive changes to the CFR.
This section-by-section analysis describes the technical amendment provisions and corrections in numerical order.
In addition, the SAFETEA-LU amendments, published July 5, 2007 (72 FR 36760), added “New Entrant” funds as a set aside of up to $29,000,000 from MCSAP grant funds per fiscal year, making grants available from this amount to State and local governments for new entrant motor carrier audits without requiring a matching contribution from such governments. Although references to new entrant funds were added in various places in that final rule, the term was not added to the definition of the term “Basic Program Funds” as one of the funds to be subtracted from total MCSAP funds—similar to High Priority Activity, Administrative Takedown, and Incentive Funds. Therefore, Agency adds the term “New Entrant” to the definition of “Basic Program Funds.”
Paragraph (y) requires the State to ensure that bus inspections are conducted at a location such as “a border maintenance facility, . . . or other location” where motor carriers make planned stops. However, the correct phrase in SAFETEA-LU is “border crossing, maintenance facility, . . . or other locations.” The July 5, 2007 (72 FR 36769) rule, which added § 350.201(y), inadvertently omitted the word “crossing,” which FMCSA adds through this technical amendment.
The “
The definition of the term “commercial motor vehicle” in § 383.5 is corrected to clarify that there are only two alternative definitions for a Group C vehicle. See below for a change to § 383.91(a)(3), which was referenced in this explanation.
In addition, in the definitions for “Alcohol or alcoholic beverage,” “Commerce,” and “Driving a commercial motor vehicle while under the influence of alcohol,” paragraphs are renumbered to conform to current
FMCSA also changes the terminology in paragraph (f) to make it consistent with the proper shipping name language in the Hazardous Materials Table in 49 CFR 172.101.
The requirement that comments or petitions must be submitted in five (5) legible copies has existed since 1968. Before the adoption of the electronic docketing system employed by the Department of Transportation in 1997, five legible copies were needed for the paper-based docketing system for clerks to include a copy in the official docket and send other copies for distribution to various Agency offices to take appropriate action. The electronic docketing system allows the scanning of any original paper-based comment or
In the definition of the term “Texting,” paragraph (2)(iii) references purposes that are not otherwise prohibited “in this part.” This reference primarily relates to the ban on texting which is found in § 392.80 rather than part 390. The reference to “this part” is too limited and is, therefore, changed to reference “this subchapter,” consistent with the general scope of the § 390.5 definitions.
In the definition of “Trailer,” redesignate paragraphs (a), (b), and (c), as paragraphs (1), (2), and (3) to conform this definition to the style used in a definitions section and the other definitions in § 390.5.
The cross reference in paragraph (m)(3)(i)(C) currently references § 383.73(a)(5), but that paragraph was removed on May 9, 2011 (76 FR 26883). FMCSA replaces that reference with the correct reference to “§ 383.73(a)(2)(vii).”
FMCSA also removes the authority citation that appears in parentheses after the last paragraph in § 391.47. The authority citation is outdated; and the FMCSA no longer includes an authority citation at the end of a section. Moreover, the citations for § 391.47 are covered by the general authority citations for all of part 391, namely, 49 U.S.C. 31133, 31136, and 31149 of the Motor Carrier Safety Act of 1984, as amended, and 49 U.S.C. 31502 of the Motor Carrier Act of 1935, as amended.
On August 15, 2005 (70 FR 48027), the Agency published general amendments to 49 CFR part 393. The final rule was intended to remove obsolete and redundant regulations; respond to several petitions for rulemaking; provide improved definitions of vehicle types, systems, and components; resolve inconsistencies between part 393 and the National Highway Traffic Safety Administration's Federal Motor Vehicle Safety Standards (49 CFR part 571); and codify certain FMCSA regulatory guidance concerning the requirements of part 393. However, the rulemaking resulted in the inadvertent deletion of the reference to the Underwriters Laboratories' standard. Section 393.7(c)(1) still references the address, but the publication is not listed in § 393.7(b). To correct this error, FMCSA adds a reference to the standard in paragraph (b)(15) to read as follows: “Highway Emergency Signals, Fourth Edition, Underwriters Laboratories, Inc., UL No. 912, July 30, 1979 (with an amendment dated November 9, 1981), incorporation by reference approved for § 393.95(j).”
Section 31. FMCSA corrects a typographical error in paragraph (d) of Section 31 of the ICC-defined commercial zone for Charleston, South Carolina in 1975. This paragraph contains cross-references to “paragraphs (1) and (c) of this section.”
Based on the 1972-1974 editions of 49 CFR part 1048, which was the basis for Appendix F to Subchapter B of Chapter III, the correct reference is to paragraph (b), not paragraph (1). This error was corrected in the May 19, 1988, final rule (53 FR 18042, at 18067), but the October 1, 1988, CFR edition reinstated the use of a (1) instead of the correct (b).
FMCSA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866, as supplemented by Executive Order 13563 (76 FR 3821, Jan. 18, 2011), or within the meaning of the DOT regulatory policies and procedures (44 FR 1103, Feb. 26, 1979). Thus, the Office of Management and Budget (OMB) did not review this document. We expect the final rule will have no costs; therefore, a full regulatory evaluation is unnecessary.
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612), FMCSA is not required to complete a regulatory flexibility analysis. This is because this rule does not require publication of a general notice of proposed rulemaking. However, in compliance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612), FMCSA has evaluated the effects of this rule on small entities. Because the rule makes only minor editorial or clarifying revisions and places no new requirements on the regulated industry, FMCSA certifies that this action will not have a significant economic impact on a substantial number of small entities.
The final rule will not impose an unfunded Federal mandate, as defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532,
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 national government and the States, or on the distribution of power and responsibilities among various levels of government.” FMCSA has determined that this rule will not have substantial
The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rule.
This rule does not have tribal implications under Executive Order 13175 titled, “Consultation and Coordination with Indian Tribal Governments,” because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501
FMCSA analyzed this final rule for the purpose of ascertaining the applicability of the National Environmental Policy Act of 1969 (42 U.S.C. 4321
FMCSA also analyzed this rule under the Clean Air Act, as amended (CAA), section 176(c) (42 U.S.C. 42 U.S.C. 7506(c)), 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.
This final rule is not subject to Executive Order 12898 (59 FR 7629, Feb. 16, 1994). Executive Order 12898 establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. FMCSA determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not change the substance of any of the FMCSRs.
FMCSA has analyzed this rule under Executive Order 13211 titled, “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 Executive Order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, no Statement of Energy Effects is required.
Executive Order 13045 titled, “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. As discussed previously, this rule is not economically significant. Therefore, no analysis of the impacts on children is required.
This action meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988 titled, “Civil Justice Reform,” to minimize litigation, eliminate ambiguity, and reduce burden.
This rule will not effect a taking of private property or otherwise have taking implications under E.O. 12630 titled, “Governmental Actions and Interference with Constitutionally Protected Property Rights.”
The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) requires Federal agencies proposing to adopt technical standards to consider whether voluntary consensus standards are available. If the Agency chooses to adopt its own standards in place of existing voluntary consensus standards, it must explain its decision in a separate statement to OMB. Because FMCSA does not intend to adopt technical standards, there is no need to submit a separate statement to OMB on this matter.
Section 522(a)(5) of the Transportation, Treasury, Independent Agencies, and General Government Appropriations Act, 2005 (Pub. L. 108- 447, Division H, Title I, 118 Stat. 2809 at 3268, Dec. 8, 2004) requires DOT and certain other Federal agencies to conduct a privacy impact assessment of each rule that will affect the privacy of individuals. Because this final rule will not affect the privacy of individuals, FMCSA did not conduct a separate privacy impact assessment.
Grant programs—transportation, Highway safety, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
Administrative practice and procedure, Brokers, Buses, Freight forwarders, Mexico, Motor carriers, Moving of household goods.
Advertising, Consumer protection, Freight, Highways and roads, Insurance, Motor carriers, Moving of household goods, Reporting and recordkeeping requirements.
Credit, Freight forwarders, Maritime carriers, Motor carriers, Moving of household goods.
Motor carriers.
Administrative practice and procedure, Alcohol abuse, Drug abuse, Highway safety and motor carriers.
Administrative practice and procedure, Alcohol abuse, Drug abuse, Highway safety, Incorporation by reference, and Motor carriers.
Administrative practice and procedure, Highway safety, Incorporation by reference, Mexico, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
Buses, Freight, Freight forwarders, Hazardous materials transportation, Highway safety, Insurance, Intergovernmental relations, Motor carriers, Motor vehicle safety, Moving of household goods, Penalties, Reporting and recordkeeping requirements, Surety bonds.
Highway safety, Intermodal transportation, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor carriers, Reporting and recordkeeping requirements, Safety, Transportation.
Highway safety, Motor carriers, Motor vehicle safety.
Highway safety, Motor carriers, Reporting and recordkeeping requirements.
Highway safety, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
Administrative practice and procedure, Highway safety, Intergovernmental relations, Motor carriers, Parking, Radioactive materials, Reporting and recordkeeping requirements, Tires.
In FR Rule Doc. 2013-22484 appearing on page 58470 in the
In consideration of the foregoing, FMCSA is amending 49 CFR chapter III, subchapter B, parts 350, 365, 375, 377, 381, 383, 384, 385, 387, 389. 390, 391, 393, 395, 396, 397, and Appendix F, as set forth below:
49 U.S.C. 13902, 31101-31104, 31108, 31136, 31140-31141, 31161, 31310-31311, 31502; and 49 CFR 1.87.
Each State must meet the following 26 conditions:
(y) Except in the case of an imminent or obvious safety hazard, ensure that an inspection of a vehicle transporting passengers for a motor carrier of passengers is conducted at a station, terminal, border crossing, maintenance facility, destination, or other location where a motor carrier may make a planned stop.
5 U.S.C. 553 and 559; 49 U.S.C. 13101, 13301, 13901-13906, 14708, 31138, and 31144; and 49 CFR 1.87.
(d) You may obtain the application forms from any FMCSA Division Office or download them from the FMCSA Web site at:
49 U.S.C. 13102, 13301, 13501, 13704, 13707, 13902, 14104, 14706, 14708; subtitle B, title IV of Pub. L. 109-59; and 49 CFR 1.87.
(d) As required by § 375.303(c)(5), you may have additional liability if you sell liability insurance and fail to issue a copy of the insurance policy or other appropriate evidence of insurance.
(h) You must place the valuation statement on the bill of lading.
(b) * * *
(12) The valuation statement provided in the Surface Transportation Board's released rates order requires individual shippers either to choose Full Value Protection for your liability or waive the Full Value Protection in favor of the STB's released rates. The released rates may be increased annually by the motor carrier based on the U.S. Department of Commerce's Cost of Living Adjustment. Contact the STB for a copy of the Released Rates of Motor Carrier Shipments of Household Goods. If the individual shipper waives your Full Value Protection in writing on the STB's valuation statement, you must include the charges, if any, for optional valuation coverage (other than Full Value Protection).
Advertisement—This is any communication to the public in connection with an offer or sale of any interstate household goods transportation service. This will include written or electronic database listings of your mover's name, address, and telephone number in an online database or displayed on an Internet Web site. This excludes listings of your mover's name, address, and telephone number in a telephone directory or similar publication. However, Yellow Pages advertising is included within the definition.
49 U.S.C. 13101, 13301, 13701, 13702, 13706, 13707, and 14101; and 49 CFR 1.87.
Time periods involving calendar days shall be calculated pursuant to 49 CFR 386.8.
49 U.S.C. 31136(e) and 31315; and 49 CFR 1.87.
49 U.S.C. 521, 31136, 31301
The revisions read as follows:
(1) Any trade, traffic or transportation within the jurisdiction of the United States between a place in a State and a place outside of such State, including a place outside of the United States, and
(2) Trade, traffic, and transportation in the United States that affects any trade, traffic, and transportation described in paragraph (1) of this definition.
(1) Combination Vehicle (Group A)—having a gross combination weight rating or gross combination weight of 11,794 kilograms or more (26,001 pounds or more), whichever is greater, inclusive of a towed unit(s) with a gross vehicle weight rating or gross vehicle weight of more than 4,536 kilograms (10,000 pounds), whichever is greater; or
(2) Heavy Straight Vehicle (Group B)—having a gross vehicle weight rating or gross vehicle weight of 11,794 or more kilograms (26,001 pounds or more), whichever is greater; or
(3) Small Vehicle (Group C) that does not meet Group A or B requirements but that either—
(i) Is designed to transport 16 or more passengers, including the driver; or
(ii) Is of any size and is used in the transportation of hazardous materials as defined in this section.
(a) * * *
(1)
(2)
(g)
Any person who holds a CLP or CDL or is required to hold a CLP or CDL is considered to have consented to such testing as is required by any State or jurisdiction in the enforcement of item (4) of Table 1 to § 383.51 of this subpart and § 392.5(a)(2) of this subchapter. Consent is implied by driving a commercial motor vehicle.
(a) * * *
(2)
(a) * * *
(3) Small Vehicle (Group C)—Any single vehicle, or combination of vehicles, that meets neither the definition of Group A nor that of Group B as contained in this section, but that either is designed to transport 16 or more passengers including the driver, or is used in the transportation of hazardous materials as defined in § 383.5.
49 U.S.C. 31136, 31301,
The State must have and enforce laws and/or regulations applicable to drivers of CMVs and their employers, as defined in § 383.5 of this subchapter, which meet the minimum requirements of § 383.37(d), Table 4 to § 383.51, and § 383.53(b) of this subchapter.
(k) The eight units of training described in paragraphs (c) and (d) of this section may be supplemented with State-specific material and information related to administering CDL knowledge and skills tests.
Federal-aid highway funds withheld from a State under § 384.401(a) or (b) of this subpart shall not thereafter be available for apportionment to the State.
49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 5113, 13901-13905, 13908, 31133, 31135, 31136, 31137(a), 31144, 31148, 31151, and 31502; Sec. 113(a), Pub. L. 103-311; Sec. 408, Pub. L. 104-88; Sec. 350 of Pub. L. 107-87; and 49 CFR 1.87.
(b) * * *
(b) More than 25 kg (55 pounds) net weight of a Division 1.1, 1.2, or 1.3 (explosive) material or articles or an amount of a Division 1.5 (explosive) material requiring placarding under part 172 of this title;
(f) A shipment of methane (compressed or refrigerated liquid), natural gas (compressed or refrigerated liquid), or any other compressed or refrigerated liquefied gas with a methane content of at least 85 percent, in bulk packaging having a capacity equal to or greater than 13,248 L (3,500 gallons).
49 U.S.C. 13101, 13301, 13906, 13908, 14701, 31138, 31139, and 31144; and 49 CFR 1.87.
49 U.S.C. 113, 501
All written comments must be in English. Any interested person must submit as part of his/her written comments all material that he/she considers relevant to any statement of fact made by him/her. Incorporation of material by reference is to be avoided. However, if such incorporation is necessary, the incorporated material shall be identified with respect to document and page.
(a) Any interested person may petition the Administrator for reconsideration of any rule issued under this part. The petition must be in English and submitted to the Administrator, Federal Motor Carrier Safety Administration, 1200 New Jersey
49 U.S.C. 504, 508, 13301, 13902, 13908, 31132, 31133, 31136, 31144, 31151, 31502, 31504; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677; sec. 212, 217, Pub. L. 106-159, 113 Stat. 1748, 1767, 1773; sec. 229 Pub. L. 106-159 (as transferred by sec. 4114 and amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 1743-44); and 49 CFR 1.81, 1.81a, and 1.87.
(d) * * *
(2) * * *
(iv) Maintain documentation of State licensure, registration, or certification to perform physical examinations for each State in which the examiner performs examinations and maintains documentation of completion of all training required by §§ 390.105 and 390.111 of this part. The medical examiner must also make this documentation available to an authorized representative of FMCSA or an authorized representative of Federal, State, or local government. The medical examiner must provide this documentation within 48 hours of the request for investigations and within 10 days of the request for regular audits of eligibility.
49 U.S.C. 504, 508, 31133, 31136, 31149, and 31502; sec. 4007(b) of Pub. L. 102-240, 105 Stat. 1914, 2152; sec. 114 of Pub. L. 103-311, 108 Stat. 1673, 1677; sec. 215 of Pub. L. 106-159, 113 Stat. 1748, 1767; sec. 32934 of Pub. L. 112-141, 126 Stat. 405, 830; and 49 CFR 1.87.
(b) An individual who meets the definition of both a motor carrier and a driver employed by that motor carrier must comply with both the rules in this part that apply to motor carriers and the rules in this part that apply to drivers.
In order to comply with the requirements of §§ 392.9(a) and 383.111(a)(16) of this subchapter, a motor carrier shall not require or permit a person to drive a commercial motor vehicle unless the person—
(c) * * *
(1) * * *
(i) The offense was committed during on-duty time as defined in § 395.2 of this subchapter or as otherwise specified; and
(ii) The driver is employed by a motor carrier or is engaged in activities that are in furtherance of a commercial enterprise in interstate, intrastate, or foreign commerce.
(c) * * *
(3) Prospective employers should report failures of previous employers to respond to an investigation to the FMCSA and use the complaint procedures specified at § 386.12 of this subchapter. Keep a copy of the reports in the driver investigation history file as part of documenting a good faith effort to obtain the required information.
(4)
(m) * * *
(3) * * *
(i) * * *
(C) Until June 22, 2018, if the driver provided the motor carrier with a copy of the current medical examiner's certificate that was submitted to the State in accordance with § 383.73(a)(2)(vii) of this chapter, the motor carrier may use a copy of that medical examiner's certificate as proof of the driver's medical certification for up to 15 days after the date it was issued.
(b) * * *
(12) * * *
(ii) Does not use any non-Schedule I drug or substance that is identified in the other Schedules in 21 CFR part 1308 except when the use is prescribed by a licensed medical practitioner, as defined in § 382.107, who is familiar with the driver's medical history and has advised the driver that the substance will not adversely affect the driver's ability to safely operate a commercial motor vehicle.
(g) * * *
(4) Beginning December 22, 2015, if the medical examiner finds that the determination of whether the person examined is physically qualified to
The following persons must be medically examined and certified in accordance with § 391.43 of this subpart as physically qualified to operate a commercial motor vehicle:
The revision reads as follows.
(f)
49 U.S.C. 31136, 31151, and 31502; sec. 1041(b) of Pub. L. 102-240, 105 Stat. 1914, 1993 (1991); and 49 CFR 1.87.
(b) * * *
(15) Highway Emergency Signals, Fourth Edition, Underwriters Laboratories, Inc., UL No. 912, July 30, 1979 (with an amendment dated November 9, 1981), incorporation by reference approved for § 393.95(j).
(c) * * *
(1) When the vehicle is operated in accordance with the terms of a special permit prohibiting operation during the times when lighted lamps are required, it must have on the rear—
(n) * * *
(1)
49 U.S.C. 504, 31133, 31136, 31137, and 31502; sec. 113, Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 229, Pub. L. 106-159 (as transferred by sec. 4115 and amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 1743, 1744); sec. 4133, Pub. L. 109-59, 119 Stat. 1144, 1744; sec. 108, Pub. L. 110-432, 122 Stat. 4860-4866; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; and 49 CFR 1.87.
49 U.S.C. 322; 49 CFR 1.87. Subpart A also issued under 49 U.S.C. 5103, 31136, 31502, and 49 CFR 1.97. Subparts C, D, and E also issued under 49 U.S.C. 5112, 5125.
(d) All of any municipality any part of which is within the limits of the combined areas defined in paragraphs (b) and (c) of this section.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting retention of “other rockfish” in the Central and Western Regulatory Areas of the Gulf of Alaska (GOA). This action is necessary because the 2015 total allowable catch of “other rockfish” in the Central and Western Regulatory Areas of the GOA will be reached.
Effective 1200 hours, Alaska local time (A.l.t.), September 30, 2015, through 2400 hours, A.l.t., December 31, 2015.
Josh Keaton, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of
The 2015 total allowable catch (TAC) of “other rockfish” in the Central and Western Regulatory Areas of the GOA is 1,031 metric tons (mt) as established by the final 2015 and 2016 harvest specifications for groundfish of the GOA (80 FR 10250, February 25, 2015).
In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2015 TAC of “other rockfish” in the Central and Western Regulatory Areas of the GOA will be reached. Therefore, NMFS is requiring that “other rockfish” caught in the Central and Western Regulatory Areas of the GOA be treated as prohibited species in accordance with § 679.21(b).
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay prohibiting the retention of “other rockfish” in the Central and Western Regulatory Areas of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 25, 2015.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by §§ 679.20 and 679.21 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule invites comments on a recommendation from the California Desert Grape Administrative Committee (Committee) to revise the administrative rules and regulations of the Federal marketing order for grapes grown in a designated area of southeastern California (order) and the table grape import regulation. The Committee is responsible for the local administration of the order. This proposal would allow handlers and importers to ship grapes that do not meet the minimum grade and size quality requirements to be donated to charitable organizations. Any such grapes would not be used for resale. This proposal also announces the Agricultural Marketing Service's (AMS) intention to seek the Office of Management and Budget's (OMB) approval on a new form that would revise the currently approved information collection issued under the order.
The import regulation is authorized under section 608e of the Agricultural Marketing Agreement Act of 1937 and regulates the importation of table grapes into the United States. The proposal would provide an additional outlet for grapes regulated under the order and would assist USDA's efforts to reduce food waste in support of the U.S. Food Waste Challenge.
Comments must be received by November 30, 2015. Pursuant to the Paperwork Reduction Act, comments on the information collection burden that would result from this proposal must be received by November 30, 2015.
Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet:
Kathie Notoro, Marketing Specialist, or Martin Engeler, Regional Director, California Marketing Field Office, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., Stop 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
Small businesses may request information on complying with this regulation by contacting Jeffrey Smutny, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
This proposed rule is issued under Marketing Order No. 925 (7 CFR part 925), regulating the handling of table grapes grown in a designated area of southeastern California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
This proposed rule is also issued under section 608e (8e) of the Act, which provides that whenever certain specified commodities, including table grapes, are regulated under a Federal marketing order, imports of these commodities into the United States are prohibited unless they meet the same or comparable grade, size, quality, or maturity requirements as those in effect for the domestically produced commodities.
The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 12866, 13563, and 13175.
This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is not intended to have retroactive effect.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of the entry of the ruling.
There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of import regulations issued under section 8e of the Act.
This proposed rule invites comments on revising the order's administrative rules and regulations and the import regulations to allow handlers and importers to ship grapes that do not meet the minimum grade and size quality requirements to be donated to charitable organizations. Any such grapes would not be used for resale. This action would provide an additional outlet for grapes regulated under the order and would support USDA's efforts to reduce food waste under the U.S.
Section 925.54 of the order provides that regulations in effect pursuant to § 925.41, § 925.52, or § 925.55 may be modified, suspended, or terminated to facilitate handling of grapes for purposes which may be recommended by the Committee and approved by the Secretary, and that rules, regulations, and safeguards shall be prescribed to prevent grapes handled under the provisions of this section from entering the channels of trade for other than the specific purposes authorized by this section.
This proposed rule would amend § 925.304 of the administrative rules and regulations to provide an outlet for grapes failing to meet inspection and quality requirements. The proposal would allow handlers to donate such grapes to charitable organizations. Any such grapes would not be used for resale.
Accordingly, to prohibit such donated grapes from being sold, and to prevent other unauthorized distribution of such shipments, the Committee recommended that CDGAC Form No. 8 be developed with signatures required that would track the shipment of these grapes and verify their receipt by the intended charitable organization. Therefore, this proposal also announces the Agricultural Marketing Service's (AMS) intent to request a revision to the current OMB-approved information collection which would add a new form and reporting requirement.
Section 925.60 of the order provides authority for the Committee, with the approval of USDA, to require handlers to furnish reports and information to the Committee as needed to enable the Committee to perform its duties under the order. This proposal would revise § 925.160 (c) of the order's administrative rules and regulations. It would require handlers donating grapes to a charitable organization to ensure CDGAC Form No.8 is completed, signed, and furnished to the Committee within two days of receipt by the intended charity.
These proposed actions were unanimously recommended by the Committee following deliberations at public meetings held on November 5, 2013, and the proposed new form was subsequently approved at a meeting held on October 30, 2014. This proposed action would provide handlers and importers with an outlet for grapes that do not meet minimum quality requirements, and supports the U.S. Secretary of Agriculture's initiative to reduce, recover, and recycle food in conjunction with the U.S. Food Waste Challenge.
Under section 8e of the Act, minimum grade, size, quality, and maturity requirements for table grapes imported into the United States are established under Table Grape Import Regulation 4 (7 CFR 944.503) (import regulation) and safeguard procedures for certain commodities exempt from these requirements are established under § 944.350. A change in the California Desert Grape Regulation 6, § 925.304, that would allow table grapes to be donated to charitable organizations, would require a corresponding change to the requirements for imported table grapes. Similar to the domestic industry, this proposed action would allow importers to donate table grapes to charitable organizations. Sections 944.350(a)(1) and 944.503(d) and (e) would be revised accordingly.
Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this proposed rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 14 handlers of southeastern California table grapes who are subject to regulation under the marketing order and approximately 41 grape producers in the production area. In addition, there are about 102 importers of grapes. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,000,000 (13 CFR 121.201).
Eleven of the 14 handlers subject to regulation have annual grape sales of less than $7,000,000 according to USDA Market News Service and Committee data. Based on information from the Committee and USDA's Market News Service, it is estimated that at least 10 of the 41 producers have annual receipts of less than $750,000. Thus, it may be concluded that a majority of grape handlers regulated under the order and about 10 of the producers could be classified as small entities under the SBA definitions.
Mexico, Chile, and Peru are the major countries that export table grapes to the United States. According to 2014 data from USDA's Foreign Agricultural Service (FAS), shipments of table grapes imported into the United States from Mexico totaled 17,042,386 18-pound lugs, from Chile totaled 38,466,540 18-pound lugs, and from Peru totaled 5,065,653 18-pound lugs. According to FAS data, the total value of table grapes imported into the United States in 2014 was $1,189,848,000. It is estimated that the average importer received $11.7 million in revenue from the sale of table grapes in 2014. Based on this information, it may be concluded that the average table grape importer is not classified as a small entity.
This proposal would revise § 925.160 of the administrative rules and regulations under the order to require handlers to report to the Committee any grapes donated to charitable organizations. It would also revise § 925.304 of the order's administrative rules and regulations to allow grapes that do not meet minimum quality requirements, yet are still desirable for human consumption, to be donated to charitable organizations. These changes would allow the industry to participate in the U.S. Food Waste Challenge while ensuring that donated grapes are only distributed as authorized. Authority for permitting Special Purchase Shipments is provided in § 925.54. The requirement for handlers to report this information to the Committee is provided in § 925.60 of the order.
The Committee's proposal to authorize donation of grapes to charitable organizations was unanimously recommended at a public meeting on November 5, 2013. The Committee presented the Food Donation Form CDGAC No. 8 at its meeting on October 30, 2014, and subsequently submitted it to AMS for further approval. There would be no direct financial effects on producers or handlers. Authority for the change to the table grape import regulation is provided in section 8e of the Act.
The Committee believes this change would be beneficial to industry and to the recipients of this donated food product. Very little impact is expected if the amendment is approved because
Alternatives to the proposal, include making no changes at this time, were considered. However, the Committee believes it would be beneficial to allow these grapes to be donated to charitable organizations to reduce, recover, and recycle edible food product in support of the U.S. Food Waste Challenge.
This proposed action would impose minimal additional reporting and recordkeeping burden on domestic handlers who elect to donate grapes to charitable organizations using the proposed CDGAC Form 8. All 14 handlers are in support of using this form as a potential option for diverting grapes into non-retail channels. Any such handler would be required to submit the form to the Committee within two days of receipt by the charitable organization. It is estimated that it would take 10 minutes to complete each form. Thus, the additional annual burden should total no more than 2.34 hours for the industry. The information would be collected on CDGAC Form No. 8. That form is being submitted to OMB for approval under OMB Control No. 0581-0189, Generic OMB Fruit Crops. As with all Federal marketing order programs, forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule.
Under section 8e, whenever certain specified commodities are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements as those in effect for the domestic commodity. Grapes are included under section 8e, and thus importers of table grapes are required to have such grapes inspected. A change that would allow certain domestic table grapes to be donated to charitable organizations would require corresponding changes to the requirements for imported table grapes.
Importers already complete the Imports Exempt Commodity Form (FV-6), which provides for certain authorized imported commodities to be diverted to alternative channels such as processing, animal feed, and charities. Currently, table grapes are not an authorized commodity for donation; however, with this proposed change, sections 944.350(a)(1) and 944.503(d) and (e) would be revised to allow for imported grapes to be donated for consumption by charitable organizations. This action would not change the format of the FV-6 form, nor would it affect the burden. It is unlikely to impose additional reporting and recordkeeping burden on importers who elect to donate grapes to charitable organizations. Importers will not be required to complete the proposed CDGAC Form 8. CDGAC Form 8 is only intended to cover deliveries of domestically produced grapes to charitable organizations by domestic grape handlers.
The Committee's meetings were widely publicized throughout the California table grape production area. All interested persons were invited to attend both meetings and encouraged to participate in Committee deliberations. Like all Committee meetings, the November 5, 2013, and the October 30, 2014, meetings were public, and all entities, both large and small, were encouraged to express their views on the proposal.
Finally, interested persons are invited to submit comments on this proposed rule, including comments on the regulatory and informational impacts of this proposed action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the AMS announces its intent to request a revision to a currently approved information collection for fruit marketing orders, which includes the Federal marketing order for grapes grown in a designated area of Southeastern California.
On November 5, 2013, the Committee unanimously recommended revising the order's administrative rules and regulations to allow handlers to ship grapes that do not meet the minimum grade and size quality requirements to be donated to charitable organizations. On October 30, 2014, to prevent such grapes from being resold, the Committee unanimously recommended requiring handlers who ship such grapes to report such donations on a new form, CDGAC Form No. 8. This notice concerns this report, in addition to the accompanying regulation previously discussed regarding requiring this report be submitted by handlers to the Committee.
The proposal would allow handlers and importers to donate fruit to charities in support of the U.S. Secretary of Agriculture's initiative of reducing, recovering, and recycling food, and the U.S. Food Waste Challenge.
The information collected is used only by authorized representatives of the USDA, including AMS, Fruit and Vegetable Program regional and headquarters staff, and authorized employees of the Committee. Authorized Committee employees and the industry are the primary users of the information and AMS is the secondary user.
Comments should reference OMB No. 0581-0189 Generic OMB Fruit Crops, and be sent to the USDA in care of the Docket Clerk at the address above. All comments received will be available for public inspection during regular business hours at the same address.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
AMS is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes.
A 60-day comment period is provided to allow interested persons to respond to the proposal.
In accordance with section 8e of the Act, the United States Trade Representative has concurred with the issuance of this rule.
Grapes, Marketing agreements, reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 925 is proposed to be amended as follows:
7 U.S.C. 601-674.
(c) Handlers that donate grapes to charitable organizations pursuant to § 925.304(c) shall submit a completed Food Donation Form (CDGAC Form 8) to the Committee within 2 days of receipt by the charitable organization. Such form shall include the following: The name of the producer; the name of the handler; loading location and date; inspection location and date; Variety(s) Federal State Inspection Service (FSIS) Certificate number(s); lug weight (pounds); number of lugs; label; signature of person responsible for loading at handling facility; recipient charity name; how many lugs received; signature of responsible charity recipient and date received. Any such grapes shall not be used for resale.
(c)
(a) * * *
(1) Avocados, grapefruit, kiwifruit, olives, oranges, prune variety plums (fresh prunes) and table grapes for consumption by charitable institutions or distribution by relief agencies;
(d) Any lot or portion thereof which fails to meet the import requirements, and is not being imported for purposes of processing or donation to charitable organizations, prior to or after reconditioning may be exported or disposed of under the supervision of the Federal or Federal-State Inspection Service with the costs of certifying the disposal of said lot borne by the importer.
(e) The grade, size, quality, and maturity requirements of this section shall not be applicable to grapes imported for processing or donation to charitable organizations, but shall be subject to the safeguard provisions contained in § 944.350.
Rural Utilities Service, USDA.
Request for comments.
The Rural Utilities Service (RUS), a Rural Development agency of the United States Department of Agriculture (USDA), is requesting public comments on streamlining the Agency's contractual process for equipment procurement by replacing type-specific Equipment Contracts, RUS Forms 397, 398, 525, 545, and the associated documents (Forms 231, 396, 396a, 397b, 397c, 397d, 397f, 397g, 397h, 517, 525a, 744, 752a, 754, and addenda) with a new, unified Equipment Contract, RUS Form 395 and the associated close-out documents (Forms 395a, 395b, 395c and 395d).
Comments, electronic and/or paper, must be received by November 30, 2015 to be assured consideration. Late comments will not be considered.
Comments may be submitted by one of the following methods:
•
•
All comments submitted in response to this document will be included in the record and will be made available to the public. RUS will make the comments publicly available online at:
•
•
Aylene Mafnas, Chief, Engineering Branch, Policy and Outreach Division, Rural Utilities Service, Telecommunications Program, U.S. Department of Agriculture, STOP 1599, 1400 Independence Ave. SW., Washington, DC 20250-1550, Telephone number: (202) 690-4673.
Rural Development is a mission area within the U.S. Department of Agriculture comprising the Rural Utilities Service, Rural Housing Service and Rural Business/Cooperative Service. Rural Development's mission is to increase economic opportunity and improve the quality of life for all rural Americans. Rural Development meets its mission by providing loans, loan guarantees, grants and technical assistance through more than 40 programs aimed at creating and improving housing, businesses and infrastructure throughout rural America.
The Rural Utilities Service (RUS) loan, loan guarantee and grant programs act as a catalyst for economic and community development. By financing improvements to rural electric, water and waste, and telecom and broadband infrastructure, RUS also plays a big role in improving other measures of quality of life in rural America, including public health and safety, environmental protection, conservation and cultural and historic preservation.
In order to continue to facilitate the programmatic interest of the Rural Electrification Act of 1936 (the “RE Act”), as amended (7 U.S.C. 901
RUS may, from time to time, promulgate new contract forms or revise or eliminate existing contract forms. In so doing, RUS is required by 7 CFR 1755.29, to publish a notice of rulemaking in the
The purpose of this undertaking is to improve the customer service provided by RUS's rural telecommunications and broadband borrowers. Changes in competition, legislation, technologies, and regulation have resulted in changes to business practices in the communications industry. In response to these changes RUS has undertaken a comprehensive review of its Telecommunications and Broadband Programs' contracts and contracting procedures.
The new Equipment Contract, RUS Form 395 and the associated close-out documents (Forms 395a, 395b, 395c and 395d) will replace the current Equipment Specific Contracts, RUS Forms 397, 398, 525, 545, and the associated close-out documents (Forms 231, 396, 396a, 517, 744, 752, 752a, and 754). The contract terms and obligations included in the new RUS Form 395, Equipment Contract, reflect current RUS and private sector industry practices, as well as changes in technology, services and equipment. The intent here is to streamline the contractual process for RUS borrowers and expedite the process of approving equipment procurement during RUS funded construction projects.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Engine Alliance (EA) GP7270 turbofan engines. This proposed AD was prompted by the manufacturer informing us that the inspection and repair criteria in the maintenance manual for aft bolt holes of the high-pressure compressor (HPC) cone shaft on the affected engines is incorrect. This proposed AD would require inspection of the HPC cone shaft and repair of affected parts, if needed. We are proposing this AD to prevent failure of the HPC cone shaft, which could lead to uncontained engine failure and damage to the airplane.
We must receive comments on this proposed AD by November 30, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Engine Alliance, 400 Main St., East Hartford, CT 06108, M/S 169-10, phone: 800-
You may examine the AD docket on the Internet at
Martin Adler, Aerospace Engineer, Engine & Propeller Directorate, FAA, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7157; fax: 781-238-7199; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We learned from the manufacturer that the inspection criteria and the repair procedures for the aft bolt holes of the HPC cone shaft, also referred to as the “HPC forward stub shaft,” were listed incorrectly in the maintenance manual for the Engine Alliance GP7270 turbofan engines. HPC cone shafts inspected or repaired using the incorrect criteria in the maintenance manual could result in premature cracking of these parts. This condition, if not corrected, could result in failure of the HPC cone shaft, which could lead to uncontained engine failure and damage to the airplane.
Engine Alliance has issued EA Service Bulletin (SB) No. EAGP7-72-329, dated July 21, 2015; and EA SB No. EAGP7-72-330, dated July 21, 2015. The SBs describe procedures for shotpeening and inspection of the HPC cone shaft. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require inspection of the HPC cone shaft and repair of affected parts, if needed.
We estimate that this proposed AD affects zero engines installed on airplanes of U.S. registry. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $0.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by November 30, 2015.
None.
This AD applies to Engine Alliance (EA) GP7270 turbofan engines with a high-pressure compressor (HPC) cone shaft, part number (P/N) 382-100-907-0, installed.
This AD was prompted by the manufacturer informing us that the inspection and repair criteria in the
Comply with this AD within the compliance times specified, unless already done.
(1) For HPC cone shafts with serial numbers listed in EA Service Bulletin (SB) No. EAGP7-72-330, dated July 21, 2015, inspect the inner diameter of the HPC cone shaft aft bolt holes for nicks, dents, and scratches before accumulating 9,000 cycles since new (CSN). Do not reinstall the HPC cone shaft if the aft bolt hole has a nick, dent, or scratch that is greater than 0.002 inches in depth.
(2) For HPC cone shafts with serial numbers listed in EA SB No. EAGP7-72-329, dated July 21, 2015, shot peen the HPC cone shaft aft bolt holes before accumulating 9,000 CSN. Use paragraph 1 of the Accomplishment Instructions in EA SB No. EAGP7-72-329 to do the shotpeening.
After the effective date of this AD, do not install an HPC cone shaft onto an engine with the following:
(1) A nick, dent, or scratch in an HPC cone shaft aft bolt hole that is greater than 0.002 inches in depth; or
(2) any repair of an HPC cone shaft aft bolt hole that did not include shot peening.
The Manager, Engine Certification Office, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request. You may email your request to:
(1) For more information about this AD, contact Martin Adler, Aerospace Engineer, Engine & Propeller Directorate, FAA, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7157; fax: 781-238-7199; email:
(2) EA SB No. EAGP7-72-329, dated July 21, 2015; and EA SB No. EAGP7-72-330, dated July 21, 2015, can be obtained from EA using the contact information in paragraph (h)(3) of this proposed AD.
(3) For service information identified in this AD, contact Engine Alliance, 400 Main St., East Hartford, CT 06108, M/S 169-10; phone: 800-565-0140; email:
(4) You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.
Securities and Exchange Commission.
Request for comment.
The Commission is publishing this request for comment to seek public comment regarding the financial disclosure requirements in Regulation S-X for certain entities other than a registrant. These disclosure requirements require registrants to provide financial information about acquired businesses, subsidiaries not consolidated and 50 percent or less owned persons, guarantors and issuers of guaranteed securities, and affiliates whose securities collateralize registered securities. This request for comment is related to an initiative by the Division of Corporation Finance to review the disclosure requirements applicable to public companies to consider ways to improve the requirements for the benefit of investors and public companies.
Comments should be received on or before November 30, 2015.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Use the Federal eRulemaking Portal (
• Send paper comments to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
Todd E. Hardiman, Associate Chief Accountant, at (202) 551-3516, Division of Corporation Finance; Duc Dang, Special Counsel, at (202) 551-3386, Office of the Chief Accountant; or Matthew Giordano, Chief Accountant, at (202) 551-6892, Division of Investment Management, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549.
Over the years, the Commission has considered its disclosure system and engaged periodically in rulemakings designed to enhance our disclosure and registration requirements. Some requirements have been considered and updated relatively frequently, while others have changed little since they were first adopted. For example, the Commission has revised the registration requirements a number of times, most recently in 2005 with Securities Offering Reform, and at that time, the Commission also adopted new methods of communicating offering information.
In 2013, the staff issued its
Initially, the staff is focusing on the business and financial information that is required to be disclosed in periodic and current reports, namely Forms 10-K, 10-Q and 8-K, and registration statements.
Regulation S-X contains disclosure requirements that dictate the form and content of financial statements to be included in filings with the Commission. It addresses both registrant financial statements and financial statements of certain entities other than the registrant. As an initial step in the review of Regulation S-X, we are considering the requirements applicable to these other entities, which is a discrete, but important, subset of the Regulation S-X disclosure requirements. The staff is continuing to evaluate other Regulation S-X disclosure requirements applicable to the registrant and how those requirements integrate with, for example, Regulation S-K and the applicable accounting standards and will make further recommendations to the Commission for consideration. In this request for comment, we are seeking public comment on the following rules, along with certain related requirements:
• Rule 3-05, Financial Statements of Businesses Acquired or to be Acquired;
• Rule 3-09, Separate Financial Statements of Subsidiaries Not Consolidated and 50 Percent or Less Owned Persons;
• Rule 3-10, Financial Statements of Guarantors and Issuers of Guaranteed Securities Registered or Being Registered;
• Rule 3-16, Financial Statements of Affiliates Whose Securities Collateralize an Issue Registered or Being Registered.
We seek to better understand how well these requirements, some of which have remained largely the same for many years,
To focus the discussion, this request for comment describes the
When a registrant acquires a business, Rule 3-05 generally requires it to provide separate audited annual and unaudited interim pre-acquisition financial statements (“Rule 3-05 Financial Statements”) of the business
• Investment Test—the purchase consideration is compared to the total assets of a registrant reflected in its most recent annual financial statements required to be filed at or prior to the acquisition date.
• Asset Test—a registrant's proportionate share of the business's total assets reflected in the business's most recent annual pre-acquisition financial statements is compared to the total assets of the registrant reflected in its most recent annual financial statements required to be filed at or prior to the acquisition date.
• Income Test—a registrant's equity in the income from continuing operations before income taxes and cumulative effect of a change in accounting principle,
Rule 3-05 Financial Statements must be accompanied by the pro forma financial information described in Article 11 of Regulation S-X (“Pro Forma Information”).
A registrant must provide a brief description of a significant acquisition by filing a Form 8-K
When filing certain registration statements,
• Rule 3-05 Financial Statements and Pro Forma Information for a probable acquisition when a Rule 3-05 test exceeds 50%; and
• Rule 3-05 Financial Statements and Pro Forma Information for the substantial majority of individually insignificant consummated and probable acquisitions since the date of the most recent audited balance sheet if a Rule 3-05 test exceeds 50 percent for any combination of the acquisitions.
The accounting standards require disclosure
Financial disclosures required by our rules about a business acquisition are important to investors because an acquisition will result in changes to a registrant's financial condition, results of operations, liquidity, and future prospects. Depending on the impact of the acquisition, those changes could be significant. While it is important to provide investors with information about an acquisition, the types of financial information currently required under the rules may have some limitations as a predictor of the financial condition and results of operations of the combined entity following the acquisition. Prior to the adoption of Rule 3-05 in 1982, some commenters questioned the need for financial statements of acquired businesses for periods prior to the acquisition. Those commenters criticized the utility and relevance of pre-acquisition financial statements in assessing the future impacts of an acquisition on a registrant. Specifically, commenters noted that pre-acquisition financial statements do not reflect the new basis of accounting that arises upon consummation, changes in management, or various other items affected by the acquisition.
1. How do investors use each of the following: The Rule 3-05 Financial Statements; the Pro Forma Information; and the disclosures required by the applicable accounting standards? Are there challenges that investors face in using these disclosures?
2. Are there changes to these requirements we should consider to further facilitate the disclosure of useful information to investors? For example, is there different or additional information that investors need about
3. Are there challenges that registrants face in preparing and providing the required disclosures? If so, what are the challenges? Are there changes to these requirements we should consider to address those challenges? If so, what changes and how would those changes affect investors' ability to make informed decisions?
4. Are there requirements that result in disclosures that investors do not consider useful? If so, what changes to these requirements would make them useful or should we consider eliminating or replacing all or part of those requirements?
5. How could we improve the usefulness of the Pro Forma Information? Could we do so by changing the extent of information required and/or the methodologies used to prepare it? For example, should we add a requirement for comparative pro forma income statements of the prior year and/or modify the restrictions on pro forma adjustments? If so, what changes should be made and should auditors have any level of involvement with the information? Are there disclosures we should consider adding to the Pro Forma Information that are currently found only in the Rule 3-05 Financial Statements?
6. If we make changes to improve the usefulness of the Pro Forma Information, should we modify the requirement to provide Rule 3-05 Financial Statements? If so, how? If not, why?
7. Should we modify the amount of time that registrants have to provide disclosures about acquired businesses to investors? If so, under what circumstances and how? If not, why?
8. Should certain registration statements continue to require accelerated and additional disclosure as compared to the Form 8-K requirements? If so, to what extent and why? If not, why?
The Rule 3-05 tests employ bright-line percentage thresholds that a registrant must apply to a limited set of financial statement measures. Use of these thresholds provides registrants with certainty and promotes consistency. At the same time, they do not allow judgment to be applied to all of the facts and circumstances. In addition, the tests can be difficult to apply in certain situations and have not eliminated the need for implementation guidance.
9. Are significance tests the appropriate means to determine the nature, timing, and extent of disclosure under Rule 3-05 and the related requirements?
10. Are there changes or alternatives to the tests that we should consider to further facilitate the disclosure of useful information to investors? If so, what changes and are there challenges that registrants would face as a result?
11. Are there changes to the tests we should consider to address challenges registrants face in preparing and providing the required disclosures? If so, what changes and how would those changes affect investors' ability to make informed decisions?
12. Should we revise the financial measures used to determine significance or change the percentage thresholds? For example, should we consider limiting the use of the income test and/or devise new tests such as purchase price compared to a registrant's market capitalization?
13. Should we allow registrants to apply more judgment in determining what is considered a significant acquisition? If so, why and how? What concerns might arise from allowing registrants to apply more judgment and, if allowed, should registrants disclose the rationale for the judgments?
14. Should we consider requiring foreign private issuers to provide disclosures similar to those provided by domestic companies when reporting on Form 8-K? Why or why not? Are there other issues that we should address related to acquisitions by foreign private issuers or acquisitions of foreign businesses?
15. Should smaller reporting companies and emerging growth companies be subject to the same requirements or should requirements for those registrants be scaled? If they should be scaled, in what way? If not, why?
16. Investment companies, and particularly business development companies, generally file Rule 3-05 Financial Statements in cases where the investment company is acquiring one or more private funds. This type of acquisition typically occurs early in the life of the investment company when it has little or no financial information of its own. In these cases, Rule 3-05 Financial Statements of the private funds(s) may be the primary financial information considered by investors when making investment decisions with respect to the investment company. Should Rule 3-05 continue to apply to investment companies, or should investment companies be subject to different requirements? If so, how and why should the requirements be different? For example, should Rule 3-05 and the related requirements apply when an investment company purchases a significant portion of the assets of a fund, but not all of the assets and liabilities of the fund?
17. Should we align the definition of a business in Rule 11-01(d) with the definitions in the applicable accounting standards? Why or why not?
When a registrant owns 50 percent or less of an entity (“Investee”), Rule 3-09
• Investment Test—A registrant's investment in and advances to the Investee as of the end of each fiscal year presented by a registrant is compared to the total assets of the registrant at the end of each of those same years.
• Income Test—A registrant's equity in the Investee's income from continuing operations before income taxes and cumulative effect of a change in accounting principle, exclusive of amounts attributable to any noncontrolling interests, for each fiscal year presented by a registrant is compared to the same measure of the registrant for each of those same years.
If neither of the Rule 3-09 tests exceeds 20 percent, Rule 3-09 Financial Statements are not required. If at least one Rule 3-09 test exceeds 20 percent, Rule 3-09 Financial Statements are required for all years and must be audited for each year that a test exceeds 20 percent.
Separately, Rule 4-08(g) of Regulation S-X
Interim financial statements of a registrant must also include summarized income statement information of individually significant Investees.
The applicable accounting standards also require that the notes to the annual financial statements include summarized balance sheet and income statement information about equity-method investees.
Financial disclosures required by our rules about an Investee are important to investors because the Investee can have a significant financial impact on a registrant. Also, the Investee is not consolidated so it is not subject to the same disclosure requirements that apply to consolidated subsidiaries. While it is important to provide information about Investees, the types of financial information currently required may have limitations and there may be opportunities for improvement. For example, Rule 3-09 Financial Statements may be presented using different accounting standards, fiscal year ends, and/or reporting currencies than those used by a registrant.
Summarized Financial Information is required more often
18. How do investors use each of the following: The Rule 3-09 Financial Statements; the Summarized Financial Information; and the interim disclosures? Are there challenges that
19. Are there changes to these requirements we should consider to further facilitate the disclosure of useful information to investors? For example, is there different or additional information that investors need about Investees? If so, what information is needed and are there challenges that registrants would face in preparing and providing it?
20. Are there challenges that registrants face in preparing and providing the required disclosures? If so, what are the challenges? Are there changes to these requirements we should consider to address those challenges? If so, what changes and how would those changes affect investors' ability to make informed decisions?
21. Are there requirements that result in disclosures that investors do not consider useful? If so, what changes to these requirements would make them useful or should we consider eliminating or replacing all or part of those requirements?
22. How could we improve the usefulness of the Summarized Financial Information? Could we do so by adding a requirement to present separately each significant Investee and/or reconcile the disclosures to the amounts recognized in a registrant's financial statements? Are there disclosures we should consider adding that are currently found only in Rule 3-09 Financial Statements?
23. If we make changes to improve the usefulness of the Summarized Financial Information, would it be appropriate to modify the requirement to provide Rule 3-09 Financial Statements? If so, how? If not, why?
24. Are unaudited Rule 3-09 Financial Statements and Summarized Financial Information for fiscal years during which an Investee was not significant useful to investors? Why or why not?
The tests used for determining disclosure pursuant to Rule 3-09 and the related requirements employ bright-line percentage thresholds similar to Rule 3-05. In addition, the use of these tests to determine the need for disclosure in interim financial statements is different than the other financial statement footnote disclosure requirements specified in Rule 10-01(a)(5) of Regulation S-X.
Additionally, investment companies may face challenges when applying the income test. The numerator of the income test, as defined in Rule 1-02(w) of Regulation S-X, includes the registrant's equity in the Investee's income from continuing operations; however, investment companies account for their Investees using fair value rather than the equity method. The denominator used for the test includes changes in the fair value of investments that can cause the denominator to fluctuate significantly. As a result, registrants frequently consult with Commission staff about anomalous results.
25. Are significance tests the appropriate means to determine the nature, timing, and extent of disclosure under Rule 3-09 and the related requirements?
26. Are there changes or alternatives to the tests that we should consider to further facilitate the disclosure of useful information to investors? If so, what changes and are there challenges that registrants would face as a result?
27. Are there changes to the tests that we should consider to address challenges that registrants face in preparing and providing the required disclosures? If so, what changes and how would those changes affect investors' ability to make informed decisions?
28. Should we allow more judgment to be applied by registrants in determining significance? Why or why not? What concerns might arise from allowing registrants to apply more judgment and, if allowed, should registrants disclose the rationale for the judgments?
29. Should we revise the current percentage thresholds and/or the financial measures used to determine significance? For example, should we consider limiting the use of the income test or devise new tests?
30. Should we consider revising the requirements to provide interim disclosures about Investees to focus on significant changes similar to Rule 10-01(a)(5) of Regulation S-X, which allows registrants to apply judgment and omit details of accounts that have not changed significantly in amount or composition since the end of the most recently completed fiscal year? Why or why not?
31. Should smaller reporting companies and emerging growth companies be subject to the same requirements or should requirements for those registrants be scaled? If they should be scaled, in what way? If not, why?
32. Should investment companies, particularly business development companies, be subject to different requirements? If so, how and why should the requirements be different? For example, should the significance tests be modified to apply measures other than the income test or asset test that are more relevant to investment companies? Should there be a different income test related to investment companies? Should we tailor the disclosures provided by unconsolidated subsidiaries of investment companies further by, for example, creating separate requirements for Summarized Financial Information and/or requiring a schedule of investments for unconsolidated subsidiaries not accounted for as investment companies
A guarantor of a registered security is an issuer because the guarantee of a security is a separate security.
The Alternative Disclosures are available in a variety of fact patterns. The rule addresses six specific fact patterns, two of which are:
• A single subsidiary guarantees securities issued by its parent;
• an operating subsidiary issues securities guaranteed only by its parent.
All fact patterns must satisfy two primary conditions to qualify for the Alternative Disclosure. First, the subsidiary issuers/guarantors must be “100% owned”
Consolidating Information is a columnar footnote presentation of each category of parent and subsidiaries as issuer, guarantor, or non-guarantor.
Recently-acquired subsidiary issuers/guarantors create an information gap in the Consolidating Information because the subsidiaries will only be included from the date that the subsidiaries were acquired. The Securities Act registration statement of a parent company
Issuers/guarantors availing themselves of the exemption that allows for Alternative Disclosure are automatically exempt from Exchange Act reporting by Exchange Act Rule 12h-5.
Separate financial disclosures required by our rules about issuers of guaranteed debt and guarantors of those securities are important to investors because the disclosures allow investors to evaluate separately the likelihood of payment by the issuer and guarantors. The content of the Alternative Disclosure, despite being less robust than financial statements required by Regulation S-X, is detailed and unique. For example, the Consolidating Information includes all major captions that are found in quarterly reports filed on Form 10-Q
33. How do investors use the information provided in financial statements of subsidiary issuers/guarantors and the information provided in the Alternative Disclosure? Are there challenges that investors face in using the disclosures?
34. Are there changes to these requirements we should consider to further facilitate the disclosure of useful information to investors? For example, is there different or additional information that investors need about guarantors and issuers of guaranteed securities? If so, what information is needed and are there challenges that registrants would face in preparing and providing it?
35. Are there challenges that registrants face in preparing and providing the required disclosures? If so, what are the challenges? Are there changes to these requirements we should consider to address those challenges? If so, what changes and how would those changes affect investors' ability to make informed decisions?
36. Are there requirements that result in disclosures that investors do not consider useful? If so, what changes would make them useful or should we consider eliminating or replacing all or part of those requirements?
37. How could we improve the usefulness of the Consolidating Information? Could we do so by revising its content requirements? If so, what changes should be made and why?
38. Should we consider revising the requirement to provide Consolidating Information for interim periods to focus on significant changes similar to Rule 10-01(a)(5) of Regulation S-X, which allows registrants to apply judgment and omit details of accounts that have not changed significantly in amount or composition since the end of the most recently completed fiscal year? Why or why not?
39. Is there other disclosure that would allow us to modify the requirement for separate, audited financial statements of recently-acquired subsidiary issuers/guarantors that would be useful to investors? If so, what disclosure would be appropriate and in what circumstances? If not, why?
As stated above, one of the primary conditions that must be met for a parent company to provide the Alternative Disclosure is that the subsidiary issuers/guarantors are “100% owned.” For example, the Alternative Disclosure is not available if a subsidiary is organized in a jurisdiction that requires directors to own a small number of shares unless the registrant obtains relief from Commission staff.
Separately, the duration of the obligation to provide the Alternative Disclosure is different than the obligation to provide separate financial statements. To obtain the exemption under Rule 12h-5, a parent company must provide the Alternative Disclosures as long as the securities are outstanding, while the obligation to provide separate financial statements can be suspended earlier as provided in Section 15(d) of the Exchange Act.
40. Do the current conditions to providing the Alternative Disclosure influence the structure of guarantee relationships? If so, how and what are the consequences, if any, to investors and registrants?
41. Should we consider allowing a parent company to provide the Alternative Disclosure if its subsidiary issuers or guarantors do not meet the current definition of 100% owned? If so, how should we revise the Alternative Disclosure conditions and what additional disclosure might address concerns about the presence of outside ownership interests? If not, why?
42. Should we consider allowing a parent company to provide the Alternative Disclosure if a guarantee does not meet the current definition of full and unconditional? If so, how should we revise the Alternative Disclosure conditions? Should we consider, for example, allowing the Alternative Disclosure for guarantees that become enforceable after the passage of some time period after default? What additional disclosure might address concerns about the delayed enforceability? If not, why?
43. Should we consider revising the conditions that must be satisfied to qualify for the abbreviated narrative disclosure? If so, how? If not, why?
44. Should we modify the parent company's requirement to provide the Alternative Disclosure during the period in which the securities are outstanding? If so, how? If not, why?
45. Should smaller reporting companies and emerging growth companies be subject to the same requirements or should requirements for those registrants be scaled? If they should be scaled, in what way?
Rule 3-16 of Regulation S-X requires a registrant to provide separate annual and interim financial statements for each affiliate
Separately, Rule 4-08(b) of Regulation S-X
Disclosures required by our rules that facilitate an evaluation of an affiliate's ability to satisfy its commitment in the event of a default by a registrant are important to investors. Rule 3-16 requires financial statements as though the affiliate were a registrant despite the fact that the collateral pledge is not considered a separate security. Also, registrants have suggested, in consultations with Commission staff, that the Rule 3-16 Financial Statements can be confusing. For example, where the securities of a subsidiary of a registrant (“Subsidiary A”) are pledged as collateral and the securities of an entity consolidated by Subsidiary A (“Subsidiary B”) are also pledged, Rule 3-16 Financial Statements may be
The test used in applying Rule 3-16 employs a bright-line percentage threshold that a registrant must apply to a limited set of measures similar to Rules 3-05 and 3-09. Unlike those rules, the market value of an affiliate's securities may not be readily available in the absence of a public market for those securities.
46. Do the Rule 3-16 requirements influence the structure of collateral arrangements? If so, how and what are the consequences, if any, to investors and registrants?
47. How do investors use Rule 3-16 Financial Statements and the Rule 4-08(b) footnote disclosures? Are there challenges that investors face in using the disclosures?
48. Are there changes to these requirements we should consider to further facilitate the disclosure of useful information to investors? For example, is there different or additional information that investors need about affiliates whose securities collateralize registered securities? If so, what information is needed and are there challenges that registrants would face in preparing and providing it?
49. Are there challenges that registrants face in preparing and providing the required disclosures? If so, what are the challenges? Are there changes to these requirements we should consider to address those challenges? If so, what changes and how would those changes affect investors' ability to make informed decisions?
50. Are there requirements that result in disclosures that investors do not consider useful? If so, what changes would make them useful or should we consider eliminating or replacing all or part of those requirements?
51. How could we improve the usefulness of the Rule 4-08(b) footnote disclosure? Could we do so by adding a requirement to disclose additional details about the affiliates? If so, what additional details should we require?
52. If we make changes to improve the usefulness of the footnote disclosure, would it be appropriate to modify the requirement to provide Rule 3-16 Financial Statements? If so, how? If not, why?
53. Should we revise the test used in applying Rule 3-16? If so, how? If not, why?
54. Should smaller reporting companies and emerging growth companies continue to be subject to the same requirements or should requirements for those registrants be scaled? If they should be scaled, in what way? If not, why?
In addition to the issues raised in this request for comment, we encourage all interested persons to submit their views on any issues relating to the financial information about entities, or portions of entities, other than a registrant. For example, Rule 3-14,
55. As we continue our ongoing efforts to review disclosure rules, what other rules and forms should be considered for review and why?
56. Currently, financial disclosures related to entities other than a registrant are filed in XBRL format to the extent that they are part of the registrant's financial statements.
57. In what other ways could we utilize technology to further facilitate the disclosure of useful information to investors or address challenges faced by investors and registrants?
58. Are there ways that we could further facilitate the use of information by all types of investors? If so, please explain. For example, should we consider alternative ways of presenting the information, such as specifically allowing or requiring registrants to provide a summary along with more detailed required information to enable investors to review the information at the level of detail that they prefer?
This request for comment is not intended in any way to limit the scope of comments, views, issues or approaches to be considered. In addition to investors and registrants, the Commission welcomes comment from other market participants and particularly welcomes statistical, empirical, and other data from commenters that may support their views and/or support or refute the views or issues raised.
By the Commission.
Office of the Assistant Secretary for Policy, Development and Research, HUD.
Proposed rule.
On September 8, 2015, 16 Federal departments and agencies published a proposed rule pertaining to Federal Policy for the Protection of Human Subjects. Due to certain statutory prepublication requirements applicable to HUD rules, HUD was unable to be a signatory to the September 8, 2015, proposed rule. Through this HUD proposed rule, HUD adopts the September 8, 2015, proposal and solicits public comment on the proposal.
You may submit comments, identified by docket ID number HHS-OPHS-2015-0008, by one of the following methods:
•
•
Comments received, including any personal information, will be posted without change to
Barry L. Steffen, Policy Development Division, Office of Policy Development and Research, Department of Housing and Urban Development, 451 7th Street SW., Room 8114, Washington, DC 20410-8000, telephone 202-402-5926. (This is not a toll-free number.) Persons with hearing- or speech-impairments may access this number through TTY number by calling the Federal Relay Service number at 800-877-8339 (this a toll-free number).
The Federal departments and agencies that were signatories to the proposed Common Rule, published on September 6, 2015, at 80 FR 53933, and HUD (collectively the “Federal Agencies”), through this proposed rule are proposing revisions to modernize, strengthen, and make more effective the Federal Policy for the Protection of Human Subjects that was promulgated as a Common Rule in 1991. The Federal Agencies seek comment on proposals to better protect human subjects involved in research, while facilitating valuable research and reducing burden, delay, and ambiguity for investigators. The September 8, 2015, proposal is an effort to modernize, simplify, and enhance the current system of oversight. The Federal Agencies propose these revisions to the regulations governing the protection of human subjects because they believe these changes would strengthen protections for research subjects while facilitating important research.
Federal regulations governing the protection of human subjects recognize that individuals who are the subjects of research may be asked to contribute their time and assume risk to advance the research enterprise, which benefits society at large. Federal regulations governing the protection of human subjects in research have been in existence for more than three decades. The Department of Health, Education, and Welfare (HEW) first published regulations for the protection of human subjects in 1974, and the Department of Health and Human Services (HHS) revised them in the early 1980s. During the 1980s, HHS began a process that eventually led to the adoption of a revised version of the regulations by 15 U.S. Federal departments and agencies in 1991. The purpose of this effort was to promote uniformity, understanding, and compliance with human subject protections as well as to create a uniform body of regulations across Federal departments and agencies (subpart A of 45 CFR part 46), often referred to as the “Common Rule for the Protection of Human Subjects” or more succinctly the “Common Rule.”
Since the Common Rule was promulgated, the volume and landscape of research involving human subjects has changed considerably. Research with human subjects has grown in scale and become more diverse. Examples of developments include: An expansion in the number and type of clinical trials, as well as observational studies and cohort studies; a diversification of the types of social and behavioral research being used in human subjects research; increased use of sophisticated analytic techniques for use with human biospecimens; and the growing use of electronic health data and other digital records to enable very large data sets to be analyzed and combined in novel ways. Yet these developments have not been accompanied by major change in the oversight system of research involving human subjects, which has remained largely unchanged over the last two decades.
The goals of the September 8, 2015, proposed rule are to address overdue changes to the Common Rule; specifically to increase human subjects' ability and opportunity to make informed decisions; reduce potential for harm and increase justice by increasing the uniformity of human subject protections in areas such as information disclosure risk, coverage of clinical trials; and facilitate current and evolving types of research that offer promising approaches to treating and preventing medical and societal problems through reduced ambiguity in interpretation of the regulations, increased efficiencies in the performance of the review system, and reduced burdens on researchers that do not appear to provide commensurate protections to human subjects. It is hoped that these changes will also build public trust in the research system.
The full description of the Federal Agencies' proposal is set out in the September 8, 2015 rule. By cross-reference to the September 8, 2015, proposed rule, HUD advises of its adoption of this proposal and solicits comment from HUD program participants and the general public on the September 8, 2015, proposed Common Rule. HUD's regulation on the Protection of Human Subjects is found in 24 CFR part 60. HUD's regulation on this subject cross-references to the HHS regulations in 45 CFR part 46. HUD's regulation at § 60.101, entitled “Cross-reference,” reads as follows: “The provisions set forth at 45 CFR part 46, subpart A, concerning the protection of human research subjects, apply to all research conducted, supported, or otherwise subject to regulation by HUD.”
HUD's current regulations on the protection of human subjects are, by cross-reference, the regulations on the protection of human subjects promulgated by HHS, and this proposed rule would apply that approach to the September 8, 2015, proposed Common Rule published by 16 U.S. Federal departments and agencies.
This rule does not direct, provide for assistance or loan and 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 (42 U.S.C. 4321).
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. This proposed rule does not impose any federal mandates on any state, local, or tribal governments or the private sector within the meaning of UMRA.
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either (1) imposes substantial, direct compliance costs on state and local governments, and is not required by statute, or (2) preempts state law, unless the agency
Human research subjects, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) proposes to approve the 2011 base year inventories for the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS) for New Castle and Sussex Counties, submitted by the State of Delaware as a revision to the Delaware State Implementation Plan (SIP). In the Final Rules section of this
Comments must be received in writing by November 2, 2015.
Submit your comments, identified by Docket ID Number EPA-R03-OAR-2015-0455 by one of the following methods:
A.
B.
C.
D.
Maria A. Pino, (215) 814-2181, or by email at
For further information regarding Delaware's 2011 base year inventories for the 2008 8-hour ozone NAAQS for New Castle and Sussex Counties, please see the information provided in the direct final action with the same title, located in the “Rules and Regulations” section of this
Office of Government-wide Policy (OGP), General Services Administration (GSA).
Proposed rule.
GSA is proposing to amend the Federal Management Regulation (FMR), Transportation Payment and Audit, to clarify agency and Department of Defense (DOD) transportation
Submit comments on or before November 30, 2015.
Submit comments identified by FMR Case 2015-102-2, Transportation Payment and Audit, by any of the following methods:
•
Submit comments via the Federal eRulemaking portal by searching FMR Case 2015-102-2. Select the link “Comment Now” that corresponds with “FMR Case 2015-102-2, Transportation Payment and Audit”. Follow the instructions provided on the screen. Please include your name, company name (if any), and “FMR Case 2015-102-2, Transportation Payment and Audit” on your attached document.
•
For clarification of content, contact Ms. Lois Mandell, Office of Government-wide Policy, at 202-501-2735. Please cite FMR Case 2015-102-2. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division (MVCB), 1800 F Street NW., Washington, DC 20405, 202-501-4755.
Agencies are authorized to procure transportation services either through the Federal Acquisition Regulation (FAR) by utilizing a contract, or via 49 U.S.C. 10721 (for rail transportation), 49 U.S.C. 13712 (for surface transportation), and/or 49 U.S.C. 15504 (for pipeline transportation) by utilizing rate tenders. It is critical that agencies ensure that services received are properly charged and that the payment made is correct.
Over the past year, GSA, working with the Governmentwide Transportation Policy Council (GTPC) completed the first of a two-part phase reviewing FMR Part 102-118, Transportation Payment and Audit. The GTPC is composed of representatives from civilian agencies and the Department of Defense and provides guidance in the planning and development of uniform transportation policies and procedures.
The first phase focused on transportation prepayment and postpayment audits and reviewed FMR Part 102-118 Subparts A (General), D (Prepayment Audits of Transportation Services), and E (Postpayment Transportation Audits), resulting in this proposed rule.
The Travel and Transportation Reform Act of 1998 (Pub. L. 105-264) established agency statutory requirements for prepayment audits of Federal agency and DoD transportation expenses and GSA statutory authority for audit oversight to protect the interests of the Government.
This proposed rule clarifies and strengthens the regulations for agency compliance for transportation prepayment audits and postpayment audits.
The proposed rule also includes updates to definitions in 41 CFR part 102-117, Transportation Management, as a result of the proposed amendments to FMR part 102-118.
The second phase, beginning January 2015, will continue the review process for 41 CFR part 118, Transportation Payment and Audit Subparts A (General), B (Ordering and Paying for Transportation and Transportation Services), C (Use of Government Billing Documents), and F (Claims and Appeals Procedures).
GSA proposes to:
• Revise the definitions for “Agency”, “Bill of lading”, “Government bill of lading”, “Transportation document”, and “Transportation Service Provider”, remove the term and definition of “Release/declared value”, and add the term and definition “Declared value” in FMR Part 102-117; and to revise the definitions of the terms “Agency”, “Bill of lading”, “Document reference number”, “Government bill of lading”, “Government transportation request”, Offset”, “Overcharge”, “Postpayment audit”, Rate authority”, “Reparation”, Standard Carrier Alpha Code”, “Statement of difference”, “Supplemental bill”, “Transportation document”, and “Transportation Service provider”, remove the terms “Agency claim”, “Transportation service provider claim”, and “Virtual GBL (VGBL)”, and add the terms “Claim” and “Declared value” in FMR Part 102-118 to ensure consistency.
• Strengthen agencies requirements and responsibilities of transportation prepayment audits and transportation postpayment audit, submission requirements to the GSA Transportation Audits Division, and the required information on all transportation documentation.
• Clarify GSA Transportation Audit roles and responsibilities.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action, and therefore, will not be subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This proposed rule is not a major rule under 5 U.S.C. 804.
These revisions are not substantive, and therefore, this proposed rule would not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
This proposed rule is also exempt from Congressional review prescribed under 5 U.S.C. 801 since it relates to agency management or personnel.
Freight, Government property management, Moving of household goods, Reporting and recordkeeping requirements. Transportation.
Accounting, Claims, Government property management., Reporting and recordkeeping requirements, Transportation.
For the reasons set forth in the preamble, GSA proposes to amend 41 CFR parts 102-117 and 102-118 as follows:
31 U.S.C. 3726; 40 U.S.C. 121(c); 40 U.S.C. 501,
The revised and added text reads as follows:
31 U.S.C. 3726; 40 U.S.C. 121(c); 40 U.S.C. 501,
A transportation audit is a thorough review and validation of transportation related documents and bills. The audit must examine the validity, propriety, and conformity of the charges or rates with tariffs, quotations, contracts, agreements, or tenders, as appropriate.
This part applies to all agencies (including the Department of Defense) and TSPs defined in § 102-118.35, and wholly-owned Government corporations as defined in 31 U.S.C. 101,
As part of the postpayment audit, GSA may request to examine your agency's transportation prepayment audit program and policies to verify the performance of the prepayment audit. GSA Transportation Audits Division may suggest revisions of agencies audit program or policies.
This part does not apply to Government-controlled corporations and mixed-ownership Government corporations as defined in 31 U.S.C. 9101(1) and (2).
(1) Any demand by an agency upon a Transportation Service Provider (TSP) for the payment of overcharges, ordinary
(2) Any demand by the TSP for amounts not included in the original bill that the TSP believes an agency owes them. This includes amounts deducted or offset by an agency; amounts previously refunded by the TSP, which is believed to be owed; and any subsequent bills from the TSP resulting from a transaction that was prepayment or postpayment audited by the GSA Transportation Audits Division.
15 U.S.C. 96,
Prepayment audit means a review of transportation documentation before payment to determine their validity, propriety, and conformity of rates with tariffs, quotations, agreements, contracts, or tenders. Prepayment auditing by your agency will detect and eliminate billing errors before payment (31 U.S.C. 3726).
(a) Yes, under 31 U.S.C. 3726, your agency is required to establish a transportation prepayment audit program. GSA recommends your agency's Chief Financial Officer (CFO) approve the prepayment audit program.
(b) Your agency must pay for the prepayment audit program from those funds appropriated for transportation services.
(a) Your agency's transportation prepayment audit program must consider all of the methods that your agency uses to order and pay for passenger, household goods, and freight transportation to include Government-issued credit cards (see § 102-118.35 for definition of Government issued credit cards).
(b) Each method of ordering transportation and transportation services for passenger, household goods, and freight transportation may require a different kind of prepayment audit process. The manner in which your agency orders or procures transportation services determines how and by whom the bill for those services will be presented. Your agency should ensure that each TSP bill or employee travel voucher contains enough information for the prepayment audit to determine which contract or rate tender is used and that the type and quantity of any additional services are clearly delineated.
(c) The prepayment audit cannot be conducted by the same firm who is providing transportation services for the agency, such as a move manager. Contracts with charge card companies that provide prepayment audit services are a valid option. The agency can choose to—
(1) Create an internal prepayment audit program;
(2) Contract directly with a prepayment audit service provider;
(3) Use the services of a prepayment audit contractor under GSA's multiple award schedule covering audit and financial management services; or
(4) Use a Third-Party Payment System or charge card company that includes prepayment audit functions, such as Syncada and Payport Express.
(d) An appeals process must be established for a transportation service provider (TSP) to appeal any reduction in the amount billed. It is recommended the agency establish an electronic appeal process that will direct TSP-filed appeals to an agency official for determination of the claim.
(e) A process to ensure that all agency transportation procurement and related documents including contracts and tenders are submitted to GSA Transportation Audits Division.
(f) Use of GSA Transportation Audits Division's Prepayment Audit Program template is recommended. If the template is not used, provide same information listed on the template to GSA Transportation Audits Division.
Yes, all transportation bills and payment records, whether they are electronic or paper, must undergo a prepayment audit with the following exceptions:
(a) Your agency's prepayment audit program uses a statistical sampling technique of the bills. If your agency chooses to use statistical sampling, all bills must be
(1) At or below the Comptroller General specified limit of $2,500.00 (31 U.S.C. 3521(b)); and
(2) In compliance with the U.S. Government Accountability Office Using Statistical Sampling (GAO/PEMD-10.1.6), Rev. 1992, Chapter 7 Random Selection Procedures obtainable from
(b) The Administrator of General Services grants your agency a specific exemption from the prepayment audit requirement which may include bills determined to be below your agency's threshold, mode or modes of transportation, or for an agency or subagency.
The agency prepayment audit program must include—
(a) The agency's CFO approval of the transportation prepayment audit program and submission to GSA Transportation Audits Division;
(b) Compliance with the Prompt Payment Act (31 U.S.C. 3901,
(c) Assurance that each TSP bill or employee travel voucher contains appropriate information for the prepayment audit to determine which contract or rate tender is used and that the type and quantity of any additional services are clearly delineated;
(d) Verification of all transportation bills against filed rates and charges before payment;
(e)(1) A process to forward all transportation documentation (TD) monthly to the GSA Transportation Audits Division. GSA Transportation Audits Division can provide your agency a Prepayment Audit Program with a monthly reporting template upon request at
(2) GSA will store paid transportation bills under the General Records Schedule 9, Travel and Transportation
(f) Establish procedures in which transportation bills not subject to prepayment audit, such as bills for unused tickets and charge card billings, are handled separately and are also forwarded monthly to the GSA Transportation Audits Division;
(g) A minimum dollar threshold for transportation bills subject to audit;
(h) For transportation payments made through cost reimbursable contracts, the agency must include a statement in the contract or rate tender that the contractor shall submit to the address and in the electronic format identified for prepayment audit, transportation documents which show that the United States will assume freight charges that were paid by the contractor. Cost reimbursable contractors shall only submit for audit bills of lading with freight shipment charges exceeding $100.00. Bills under $100.00 shall be retained on-site by the contractor and made available for on-site Government audits (Federal Acquisition Regulation (FAR) 52.247-67);
(i) Require your agency's paying office to offset, if directed by GSA's Transportation Audits Division, debts from amounts owed to the TSP within the 3 years (31 U.S.C. 3726 (b));
(j) Complete accurate audits of all transportation bills and notify the TSP of any adjustment within 7 calendar days of receipt of the bill;
(k) Establish an appeals process in the approved prepayment audit program for a TSP to appeal any reduction in the amount billed. It is recommended that the agency establish an electronic appeal process that will direct TSP-filed appeals to an agency official for determination of the claim. Your agency must complete the review of the appeal and inform the TSP either electronically or in writing the agency determination within 30 calendar days.
(1) Create accurate notices and agency procedures for notifying the TSPs with a detailed description of the reasons for any full or partial rejection of the stated charges on the invoice. An accurate notice must include the TSP's invoice number, the billed amount, Taxpayer identification number (TIN), standard carrier alpha code (SCAC) or other agency unique identifier for the carrier, the charges calculated by the agency, the specific reasons including applicable rate authority for the rejection, and information of the appeal process; and
(2) Implement a unique agency numbering system to handle commercial paper and practices (see § 102-118.55 for information on administrative procedures your agency must establish).
(a) Yes, your agency must notify the TSP of any adjustment to the TSP bill either electronically or in writing within seven calendar days of the agency receipt of the bill.
(b) This notice must refer to the—
(1) TSP's bill number;
(2) Agency name;
(3) TSP's TIN;
(4) SCAC or other agency identifier for the carrier, such as the Department of Defense Activity Address Code (DODAC) number;
(5) Document reference number (DRN);
(6) Date invoice submitted;
(7) Amount billed;
(8) Date invoice was approved for payment;
(9) Date and amount agency paid;
(10) Payment location number and agency organization name;
(11) Payment voucher number;
(12) Complete contract, tender or tariff authority, including item or section number; and
(13) Complete information on the agency appeal process.
(c) A TSP must submit claims to the agency within three years under the guidelines established in subpart F of this part.
Yes, your agency must establish, in the approved prepayment audit program, an appeals process for a TSP to appeal any reduction in the amount billed. It is recommended the agency establish an electronic appeal process that will direct TSP-filed appeals to an agency official for determination of the claim. Your agency must complete the review of the appeal and inform the TSP of the agency determination within 30 calendar days of the receipt of the appeal, either electronically or in writing.
(a) If your agency is unable to resolve the disputed amount with the TSP, your agency must submit, within 30 calendar days, all relevant transportation documentation associated with the dispute, including a complete billing history and the appropriation or fund charged, to GSA Transportation Audits Division by email at
(b) The GSA Transportation Audits Division will review the appeal of an agency's final, full, or partial denial of a claim and issue a decision within 30 calendar days of receipt of appeal.
(c) A TSP must submit claims to the agency within three years under the guidelines established in subpart F of this part.
(a) The following information must be annotated on all transportation payment records, electronically or on paper, that have completed your agency's prepayment audit and for submission to GSA Transportation Audits Division:
(1) The date the bill was received from a TSP;
(2) A TSP's bill number;
(3) Your agency name;
(4) DRN;
(5) Amount billed;
(6) Date invoice was approved for payment;
(7) Date and amount agency paid;
(8) Payment location code number and office or organization name;
(9) Payment voucher number;
(10) Complete contract, tender or tariff authority, including item or section number;
(11) The TSP's TIN;
(12) The TSP's SCAC or other agency identifier for the carrier, such as the DODAC number;
(13) The auditor's authorization code or initials; and
(14) The date and copy of any statement of difference sent to the TSP.
(b) Your agency can find added guidance in the “U.S. Government Freight Transportation Handbook.” This handbook is located at
GSA Transportation Audit Division bases verification of agency prepayment audit programs on objective cost-savings, paperwork reductions, current audit standards, and other positive improvements, as well as adherence to the guidelines listed in this part.
Your agency may contact the GSA Transportation Audits Division at
(a) If your agency's transportation prepayment audit program changes in any way to include changes in prepayment auditors, your agency must submit the CFO-approved revised transportation prepayment audit program to GSA Transportation Audits Division via email at
(b) If GSA determines the agency's approved plan is insufficient, GSA will contact the agency CFO to inform of the prepayment audit program deficiencies and request corrective action and resubmission to GSA Transportation Audits Division.
No, in a prepayment audit program, the official certifying a transportation voucher is held liable for verifying transportation rates, freight classifications, and other information provided on a transportation billing instrument or transportation request undergoing a prepayment audit (31 U.S.C. 3528).
Yes, a certifying official is not personally liable for verifying transportation rates, freight classifications, or other information provided on a bill of lading or passenger transportation request when the Administrator of General Services or designee waives the prepayment audit requirement and your agency uses postpayment audits.
The agency counsel relieves a certifying official from liability for transportation overpayments in cases where postpayment is the approved method of auditing; and
(a) The overpayment occurred solely because the administrative review before payment did not verify transportation rates; and
(b) The overpayment was the result of using improper transportation rates or freight classifications or the failure to deduct the correct amount under a land grant law or agreement.
No, the disbursing official has a liability for overpayments on all transportation bills subject to prepayment audit (31 U.S.C. 3322).
Your agency's counsel has the authority to relieve liability and give advance opinions on liability issues to certifying, accountable, and disbursing officers (31 U.S.C. 3527).
Only the Administrator of General Services or their designee has the authority to grant an exemption for a specific time period from the prepayment audit requirement. The Administrator may exempt bills, a particular mode or modes of transportation, or an agency or subagency from a prepayment audit and verification and in lieu thereof require a postpayment audit, based on cost effectiveness, public interest, or other factors the Administrator considers appropriate (31 U.S.C. 3726(a)(2)).
Your agency must submit a request for an exemption from the requirement to perform transportation prepayment audits by email to
GSA will respond to the exemption from the transportation prepayment audit requirement request within 180 calendar days from the date of receipt.
Your agency exemption to the transportation prepayment audit requirements does not exceed the period granted in the GSA issued exemption letter. If your agency determines that it will desire another exemption for the transportation prepayment audit requirements, your agency must submit this request a minimum of six months before the current exemption period expires.
Yes, all your agency's prepayment audited transportation documents are subject to the GSA Transportation Audits Division postpayment audit oversight. Upon request, GSA Transportation Audits Division will provide a report analyzing your agency's prepayment audit program.
(a) Yes, the Director of the GSA Transportation Audits Division may suspend your agency's transportation prepayment audit program until the agency corrects their prepayment audit program deficiencies. This suspension may be in whole or in part. If GSA suspends your agency's transportation prepayment audit and GSA assumes responsibility for auditing an agencies prepayment audit program, the agency will reimburse GSA for the expense.
(b) This suspension determination is based on identification of a systematic or frequent failure of the agency's transportation prepayment audit program to—
(1) Conduct a prepayment audit of your agency's transportation bills;
(2) Abide by the terms of the Prompt Payment Act (31 U.S.C. 3901,
(c) Adjudicate TSP claims disputing prepayment audit positions of the agency regularly within 30 calendar days of receipt;
(d) Follow Comptroller General decisions, Civilian Board of Contract Appeals decisions, the Federal Management Regulation and GSA
(e) Provide information and data or to cooperate with on-site inspections necessary to conduct a quality assurance review.
The Administrator of General Services (GSA) has a congressionally mandated responsibility under 31 U.S.C. 3726 to perform oversight on transportation bills. The GSA Transportation Audits Division accomplishes this oversight by conducting postpayment audits of all agencies' transportation bills.
No, agency compliance to the mandatory transportation prepayment audit does not eliminate the requirement of the transportation postpayment audit conducted by GSA (31 U.S.C. 3726).
Yes, the Administrator of General Services or designee may exempt, for a specified time, an agency or subagency from the GSA transportation postpayment audit oversight requirements of this subpart. The Administrator can also exempt modes (31 U.S.C. 3726).
No, your agency may not perform a transportation postpayment audit unless specifically directed to do so by the Administrator in lieu of a prepayment audit. Whether such an exemption is granted or not, your agency must forward all transportation documents (TD) to GSA for postpayment audit (see § 102-118.35 for definition of TD).
(a) Yes, your agency must provide all TDs to GSA Transportation Audits Division (see § 102-118.35 for definition of TD).
(b) The following information must be annotated on all TDs and bills that have completed your agency's prepayment audit for submission to GSA Transportation Audits Division:
(1) The date the bill was received from a TSP;
(2) A TSP's bill number;
(3) Your agency name;
(4) A Document Reference Number (DRN);
(5) Amount billed;
(6) Date invoice was approved for payment;
(7) Date and amount agency paid;
(8) Payment location code number and office name;
(9) Payment voucher number;
(10) Complete contract, tender, or tariff authority, including item or section number;
(11) The TSP's taxpayer identification number (TIN);
(12) The TSP's standard carrier alpha code (SCAC) or other agency unique identifier for the carrier such as the Department of Defense Activity Address Code (DODAC) number;
(13) The auditor's full name, email address, contact telephone number, and authorization code; and
(14) A copy of any statement of difference sent to the TSP.
(c) Your agency can find additional guidance in the “U.S. Government Freight Transportation Handbook.” This handbook is located at
The GSA Transportation Audits Division:
(a) Audits select TSP bills after payment;
(b) Audits select TSP bills before payment as needed to protect the Government's interest;
(c) Examines, settles, and adjusts accounts involving payment for transportation and related services for the account of agencies;
(d) Adjudicates and settles transportation claims by and against agencies;
(e) Offsets an overcharge by any TSP from an amount subsequently found to be due that TSP;
(f) Issues a Notice of Overcharge stating that a TSP owes a debt to the agency. This notice states the amount paid and the basis for the proper charge for the document reference number (DRN), and cites applicable contract, tariff, or tender, along with other data relied on to support the overcharge; and
(g) Issues a GSA Notice of Indebtedness when a TSP owes an ordinary debt to an agency. This notice states the basis for the debt, the TSP's rights, interest, penalty, and other results of nonpayment. The debt is due immediately and is subject to interest charges, penalties, and administrative cost under 31 U.S.C. 3717.
(a) The GSA Transportation Audits Division role is to perform the oversight responsibility of transportation prepayment and postpayment granted to the Administrator. The GSA Transportation Audits Division will—
(1) Examine and analyze transportation documents and payments to discover their validity, relevance and conformity with tariffs, quotations, contracts, agreements, or tenders and make adjustments to protect the interest of an agency;
(2) Examine, adjudicate, and settle transportation claims by and against the agency;
(3) Collect from TSPs by refund, setoff, offset, or other means, the amounts determined to be due the agency;
(4) Adjust, terminate, or suspend debts due on TSP overcharges;
(5) Prepare reports to the Attorney General of the United States with recommendations about the legal and technical bases available for use in prosecuting or defending suits by or against an agency and provide technical, fiscal, and factual data from relevant records;
(6) Provide transportation specialists and lawyers to serve as expert witnesses; assist in pretrial conferences; draft pleadings, orders, and briefs; and participate as requested in connection with transportation suits by or against an agency;
(7) Review agency policies, programs, and procedures to determine their adequacy and effectiveness in the audit of freight or passenger transportation payments, and review related fiscal and transportation practices;
(8) Furnish information on rates, fares, routes, and related technical data upon request;
(9) Inform an agency of irregular shipping routing practices, inadequate commodity descriptions, excessive transportation cost authorizations, and unsound principles employed in traffic and transportation management; and
(10) Confer with individual TSPs or related groups and associations presenting specific modes of transportation to resolve mutual problems concerning technical and accounting matters, and providing information on requirements.
(b) The Administrator of General Services may provide transportation audit and related technical assistance services, on a reimbursable basis, to any other agency. Such reimbursements may be credited to the appropriate revolving fund or appropriation from which the expenses were incurred (31 U.S.C. 3726(j)).
The GSA Transportation Audits Division does not charge agencies a fee for conducting the transportation postpayment audit. Transportation postpayment audits expenses are financed from overpayments collected from the TSP's bills previously paid by the agency and similar type of refunds. However, if a postpayment audit is conducted in lieu of a prepayment audit at the request of an agency, or if there are additional services required, GSA may charge the agency.
You may contact the GSA Transportation Audits Division by email at
Centers for Medicare & Medicaid Services (CMS), HHS.
Request for information.
Section 101 of the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) repeals the Medicare sustainable growth rate (SGR) methodology for updates to the physician fee schedule (PFS) and replaces it with a new Merit-based Incentive Payment System (MIPS) for MIPS eligible professionals (MIPS EPs) under the PFS. Section 101 of the MACRA sunsets payment adjustments under the current Physician Quality Reporting System (PQRS), the Value-Based Payment Modifier (VM), and the Electronic Health Records (EHR) Incentive Program. It also consolidates aspects of the PQRS, VM, and EHR Incentive Program into the new MIPS. Additionally, section 101 of the MACRA promotes the development of Alternative Payment Models (APMs) by providing incentive payments for certain eligible professionals (EPs) who participate in APMs, by exempting EPs from MIPS if they participate in APMs, and by encouraging the creation of physician-focused payment models (PFPMs). In this request for information (RFI), we seek public and stakeholder input to inform our implementation of these provisions.
To be assured consideration, written or electronic comments must be received at one of the addresses provided below, no later than 5 p.m. on November 2, 2015.
In commenting, refer to file code CMS-3321-NC. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
You may submit comments in one of four ways (please choose only one of the ways listed):
1.
2.
Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-3321-NC, P.O. Box 8016, Baltimore, MD 21244-8016.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-3321-NC, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
4.
a. For delivery in Washington, DC—
Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201
(Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without Federal government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)
b. For delivery in Baltimore, MD—
Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244-1850.
If you intend to deliver your comments to the Baltimore address, call telephone number (410) 786-7195 in advance to schedule your arrival with one of our staff members.
Comments erroneously mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.
Molly MacHarris, (410) 786-4461.
Alison Falb, (410) 786-1169.
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.
Section 101 of the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) (Pub. L. 114-10, enacted April 16, 2015) amended sections 1848(d) and (f) of the Social Security Act (the Act) to repeal the sustainable growth rate (SGR) formula for updating Medicare physician fee schedule (PFS) payment rates and substitute a series of specified annual update percentages. It establishes a new methodology that ties annual PFS payment adjustments to value through a Merit-Based Incentive Payment System (MIPS) for MIPS eligible professionals (MIPS EPs). Section 101 of the MACRA also creates an incentive program to encourage participation by eligible professionals (EPs) in Alternative Payment Models (APMs). In the “Medicare Program; Revisions to Payment Policies under the Physician Fee Schedule and Other Revisions to Part B for CY 2016; Proposed Rule” (80 FR 41686) (hereinafter referred to as the CY 2016 PFS proposed rule), the Secretary of Health and Human Services (the Secretary) solicited comments regarding implementation of certain aspects of the MIPS and broadly sought public comments on the topics in section 101 of the MACRA, including the incentive payments for participation in APMs and increasing transparency of physician-focused payment models. As we move forward with the implementation of these provisions, there are additional areas on which we would like to receive public and stakeholder input and feedback.
Section 1848(q) of the Act, as added by section 101(c) of the MACRA, requires establishment of the MIPS, applicable beginning with payments for items and services furnished on or after January 1, 2019, under which the Secretary is required to: (1) Develop a methodology for assessing the total performance of each MIPS EP according to performance standards for a performance period for a year; (2) using the methodology, provide for a composite performance score for each MIPS EP for each performance period; and (3) use the composite performance score of the MIPS EP for a performance period for a year to determine and apply a MIPS adjustment factor (and, as applicable, an additional MIPS adjustment factor) to the MIPS EP for the year. Under section 1848(q)(2)(A) of the Act, a MIPS EP's composite performance score is determined using four performance categories: Quality, resource use, clinical practice improvement activities, and meaningful use of certified EHR technology (CEHRT). Section 1848(q)(10) of the Act requires the Secretary to consult with stakeholders (through a request for information (RFI) or other appropriate means) in carrying out the MIPS, including for the identification of measures and activities for each of the four performance categories under the MIPS, the methodology to assess each MIPS EP's total performance to determine their MIPS composite performance score, the methodology to specify the MIPS adjustment factor for each MIPS EP for a year, and regarding the use of qualified clinical data registries (QCDRs) for purposes of the MIPS. We intend to use the feedback we receive on the CY 2016 PFS proposed rule and on this RFI as we develop our proposed policies for the MIPS.
Section 101(e) of the MACRA promotes the development of, and participation in, APMs for physicians and certain practitioners. The statutory amendments made by this section have payment implications for EPs beginning in 2019. Specifically, this section: (1) Creates a payment incentive program that applies to EPs who are qualifying APM participants (QPs) for years from 2019 through 2024; (2) requires the establishment of a process for stakeholders to propose PFPMs to an independent “Physician-Focused Payment Model Technical Advisory Committee” (the Committee) that will review, comment on, and provide recommendations to the Secretary on the proposed PFPMs; and (3) requires the establishment of criteria for PFPMs for use by the Committee for making comments and recommendations to the Secretary. Section 1868(c)(2)(A) of the Act requires the use of an RFI in establishing criteria for PFPMs that could be used by the Committee. Additionally, Section 101(c) of the MACRA exempts QPs from MIPS.
We are issuing this RFI to obtain input on policy considerations for APMs and for PFPMs. Topics of particular interest include: (1) Requirements to be considered an eligible alternative payment entity and QP; (2) the relationship between APMs and the MIPS; and (3) criteria for the Committee to use to provide comments and recommendations on PFPMs.
Section 1848(q)(11) of the Act, as added by section 101(c) of the MACRA, provides for technical assistance to MIPS EPs in small practices and practices in health professional shortage areas (HPSAs). In general, the section requires the Secretary to enter into contracts or agreements with appropriate entities (such as quality improvement organizations, regional extension centers (as described in section 3012(c) of the Public Health Service Act (PHSA)), or regional health collaboratives) to offer guidance and assistance to MIPS EPs in practices of 15 or fewer professionals (with priority given to such practices located in rural areas, HPSAs (as designated under section 332(a)(1)(A) of the PHSA), and medically underserved areas, and practices with low composite scores) with respect to the MIPS performance categories or in transitioning to the implementation of, and participation in, an APM. As we continue to develop our policies and approach for this support, we seek input on a few areas on what best practices should be utilized while providing this technical assistance.
We are soliciting public input as we move forward with the planning and implementation of the MIPS. We are requesting information regarding the following areas:
Section 1848(q)(1)(C) of the Act defines a MIPS EP for the first 2 years for which the MIPS applies to payments (and the performance periods for such years) as a physician (as defined in section 1861(r) of the Act), a physician assistant (PA), nurse practitioner (NP) and clinical nurse specialist (CNS) (as those are defined in section 1861(aa)(5) of the Act), a certified registered nurse anesthetist (CRNA) (as defined in section 1861(bb)(2) of the Act), and a group that includes such professionals. Beginning with the third year of the program and for succeeding years, the statute defines a MIPS EP to include all the types of professionals identified for the first 2 years. It also gives the Secretary discretion to specify additional EPs, as that term is defined in section 1848(k)(3)(B) of the Act, which could include a certified nurse midwife (as defined in section 1861(gg)(2) of the Act), a clinical social worker (as defined in section 1861(hh)(1) of the Act), a clinical psychologist (as defined by the Secretary for purposes of section 1861(ii) of the Act), a registered dietician or nutrition professional, a physical or occupational therapist, a qualified speech-language pathologist, or a qualified audiologist (as defined in section 1861(ll)(3)(B) of the Act).
Section 1848(q)(5)(I)(ii) of the Act requires that the Secretary establish a process to allow individual MIPS EPs and group practices of not more than 10 MIPS EPs to elect, with respect to a performance period for a year, to be a virtual group with at least one other individual MIPS EP or group practice. Section 1848(q)(5)(I)(iii)(III)) of the Act requires that the process provide that a virtual group be a combination of Tax Identification Numbers (TINs).
CMS currently uses a variety of identifiers to associate an EP under different programs. For example, under the PQRS for individual reporting, CMS uses a combination of a TIN and National Provider Identifier (NPI) to assess eligibility and participation, where each unique TIN and NPI combination is treated as a distinct EP and is separately assessed for purposes of the program. Under the Group Practice Reporting Option (GPRO) under PQRS, eligibility and participation are assessed at the TIN level. Under the EHR Incentive Program, CMS utilizes the NPI to assess eligibility and participation. And under the VM, performance and payment adjustments are assessed at the TIN level. Additionally, under certain models such as the Pioneer Accountable Care Organization (ACO) Model, CMS also assigns a program-specific identifier (in the case of the Pioneer ACO Model, an ACO ID) to the organization(s), and associates that identifier with individual EPs that are, in turn, identified through a combination of a TIN and an NPI. CMS will need to select and operationalize a specific identifier to associate with an individual MIPS EP or a group practice.
We seek comment on what specific identifier(s) should be used to appropriately identify MIPS EPs for purposes of determining eligibility, participation, and performance under the MIPS performance categories. Specifically, we seek comment on the following questions:
• Should we use a MIPS EP's TIN, NPI or a combination thereof? Should we create a distinct MIPS Identifier?
• What are the advantages/disadvantages associated with using existing identifiers, either individually or in combination?
• What are the advantages/disadvantages associated with creating a distinct MIPS identifier?
• Should a different identifier be used to reflect eligibility, participation, or performance as a group practice vs. as an individual MIPS EP? If so, should CMS use an existing identifier or create a distinct identifier?
• How should we calculate performance for MIPS EPs that practice under multiple TINs?
• Should practitioners in a virtual group and virtual group practices have a unique virtual group identifier that is used in addition to the TIN?
• How often should we require an EP or group practice to update any such identifier(s) within the Medicare Provider Enrollment, Chain, and Ownership System (PECOS)? For example, should EPs be required to update their information in PECOS or a similar system that would pertain to the MIPS on an annual basis?
Additionally, we note that depending upon the identifier(s) chosen for MIPS EPs, there could be situations where a given MIPS EP may be part of a “split TIN”. For example, in the scenario where the identifier chosen for MIPS EPs is a TIN (as is utilized by the VM currently), and a portion of that TIN is exempt from MIPS due to being part of a qualifying APM, we will have a split TIN.
In the above scenario, what safeguards should be in place to ensure that we are appropriately assessing MIPS EPs and exempting only those EPs that are not eligible for MIPS?
We also recognize that depending upon the identifier(s) chosen for MIPS EPs, there could be situations where a given MIPS EP would be assessed under the MIPS using multiple identifiers. For example, as noted above, individual EPs are assessed under the PQRS based on unique TIN/NPI combinations. Therefore, individual EPs (each with a unique NPI) who practice under multiple TINs are assessed under the PQRS as a distinct EP for each TIN/NPI combination. For example, under PQRS an EP could receive a negative payment adjustment under one unique TIN/NPI combination, but not receive it under another unique TIN/NPI combination.
• What safeguards should be in place to ensure that MIPS EPs do not switch identifiers if they are considered “poor-performing”?
• What safeguards should be in place to address any unintended consequences, if the chosen identifier is a unique TIN/NPI combination, to ensure an appropriate assessment of the MIPS EPs performance?
Section 1848(q)(5)(I) of the Act requires the Secretary to establish a process to allow an individual MIPS EP or a group practice of not more than 10 MIPS EPs to elect for a performance period for a year to be a virtual group with other such MIPS EPs or group practices. CMS quality programs, such as the PQRS, have used common identifiers such as a group practice's TIN to assess individual EPs' quality together as a group practice. The virtual group option under the MIPS allows a group's performance to be tied together even if the EPs in the group do not share the same TIN. CMS seeks comment on what parameters should be established for these virtual groups. We seek comment on the following questions:
• How should eligibility, participation, and performance be assessed under the MIPS for voluntary virtual groups?
• Assuming that some, but not all, members of a TIN could elect to join a virtual group, how should remaining members of the TIN be treated under the MIPS, if we allow TINs to split?
• Should there be a maximum or a minimum size for virtual groups? For example, should there be limitations on the size of a virtual group, such as a minimum of 10 MIPS EPs, or no more than 100 MIPS EPs that can elect to be in a given virtual group?
• Should there be a limit placed on the number of virtual group elections that can be made for a particular performance period for a year as this provision is rolled out? We are considering limiting the number of voluntary virtual groups to no more
• If a limit is placed on the number of virtual group elections within a performance period, should this be done on a first-come, first-served basis? Should limits be placed on the size of virtual groups or the number of groups?
• Under the voluntary virtual group election process, what type of information should be required in order to make the election for a performance period for a year? What other requirements would be appropriate for the voluntary virtual group election process?
Section 1848(q)(5)(I)(ii) of the Act provides that a virtual group may be based on appropriate classifications of providers, such as by specialty designations or by geographic areas. We seek comment on the following questions:
• Should there be limitations, such as that MIPS EPs electing a virtual group must be located within a specific 50 mile radius or within close proximity of each other and be part of the same specialty?
Section 1848(q)(2)(B)(i) of the Act describes the measures and activities for the quality performance category under the MIPS. Under section 1848(q)(2)(D) of the Act, the Secretary must, through notice and comment rulemaking by November 1 of the year before the first day of each performance period under the MIPS, establish the list of quality measures from which MIPS EPs may choose for purposes of assessment for a performance period for a year. CMS' experience under other quality programs, namely the PQRS and the VM, will help shape processes and policies for this performance category. We seek comment on the following areas:
There are two ways EPs can report under the PQRS, as either an individual EP or as part of a group practice, and for reporting periods that occur during 2015, there are collectively 7 available mechanisms to report data to CMS as an individual EP and as a group practice participating in the PQRS GPRO. They are: Claims-based reporting; qualified registry reporting; QCDR reporting; direct EHR products; EHR data submission vendor products; Consumer Assessment of Healthcare Providers and Systems (CAHPS) for PQRS; and the GPRO Web Interface. Generally, to avoid the PQRS payment adjustment, EPs and group practices are required to report for the applicable reporting period on a specified number of measures covering a specified number of National Quality Strategy domains. (See 42 CFR 414.90 for more information regarding the PQRS reporting criteria.) If data is submitted on fewer measures than required, an EP is subject to a Measure Applicability Validation (MAV) process, which looks across an EP's services to determine if other quality measures could have been reported. We seek comment on the following questions related to these reporting mechanisms and criteria:
• Should we maintain all PQRS reporting mechanisms noted above under MIPS?
• If so, what policies should be in place for determining which data should be used to calculate a MIPS EP's quality score if data are received via multiple methods of submission? What considerations should be made to ensure a patient's data is not counted multiple times? For example, if the same measure is reported through different reporting mechanisms, the same patient could be reported multiple times.
• Should we maintain the same or similar reporting criteria under MIPS as under the PQRS? What is the appropriate number of measures on which a MIPS EP's performance should be based?
• Should we maintain the policy that measures cover a specified number of National Quality Strategy domains?
• Should we require that certain types of measures be reported? For example, should a minimum number of measures be outcomes-based? Should more weight be assigned to outcomes-based measures?
• Should we require that reporting mechanisms include the ability to stratify the data by demographic characteristics such as race, ethnicity, and gender?
• For the CAHPS for PQRS reporting option specifically, should this still be considered as part of the quality performance category or as part of the clinical practice improvement activities performance category? What considerations should be made as we further implement CAHPS for all practice sizes? How can we leverage existing CAHPS reporting by physician groups?
• How do we apply the quality performance category to MIPS EPs that are in specialties that may not have enough measures to meet our defined criteria? Should we maintain a Measure-Applicability Verification Process? If we customize the performance requirements for certain types of MIPS EPs, how should we go about identifying the MIPS EPs to whom specific requirements apply?
• What are the potential barriers to successfully meeting the MIPS quality performance category?
CMS' experience under the PQRS has shown that data quality is related to the mechanism selected for reporting. Some potential data quality issues specific to reporting via a qualified registry, QCDR, and/or certified EHR technology include: Inaccurate TIN and/or NPI, inaccurate or incomplete calculations of quality measures, missing data elements, etc. Since accuracy of the data is critical to the accurate calculation of a MIPS composite score, we seek comment on what additional data integrity requirements should be in place for the reporting mechanisms referenced above. Specifically:
• What should CMS require in terms of testing of the qualified registry, QCDR, or direct EHR product, or EHR data submission vendor product? How can testing be enhanced to improve data integrity?
• Should registries and qualified clinical data registries be required to submit data to CMS using certain standards, such as the Quality Reporting Document Architecture (QRDA) standard, which certified EHRs are required to support?
• Should CMS require that qualified registries, QCDRs, and health IT systems undergo review and qualification by CMS to ensure that CMS' form and manner are met? For example, CMS uses a specific file format for qualified registry reporting. The current version is available at:
• What feedback from CMS during testing would be beneficial to these stakeholders?
• What thresholds for data integrity should CMS have in place for accuracy, completeness, and reliability of the data? For example, if a QCDR's calculated performance rate does not equate to the distinct performance values, such as the numerator exceeding the value of the denominator, should CMS re-calculate the data based on the
• If CMS determines that the MIPS EP (participating as an individual EP or as part of a group practice or virtual group) has used a data reporting mechanism that does not meet our data integrity standards, how should CMS assess the MIPS EP when calculating their quality performance category score? Should there be any consequences for the qualified registry, QCDR or EHR vendor in order to correct future practices? Should the qualified registry, QCDR or EHR vendor be disqualified or unable to participate in future performance periods? What consequences should there be for MIPS EPs?
Currently under the PQRS, the reporting mechanisms that use CEHRT require that the quality measures be derived from CEHRT and must be transmitted in specific file formats. For example, EHR technology that meets the CEHRT definition must be able to record, calculate, report, import, and export clinical quality measure (CQM) data using the standards that the Office of the National Coordinator for Health Information Technology (ONC) has specified, including use of the Quality Reporting Data Architecture (QRDA) Category I and III standards. We seek input on the following questions:
• Under the MIPS, what should constitute use of CEHRT for purposes of reporting quality data?
• Instead of requiring that the EHR be utilized to transmit the data, should it be sufficient to use the EHR to capture and/or calculate the quality data? What standards should apply for data capture and transmission?
Section 1848(q)(2)(B)(ii) of the Act describes the resource use performance category under MIPS as “the measurement of resource use for such period under section1848(p)(3) of the Act, using the methodology under section 1848(r) of the Act as appropriate, and, as feasible and applicable, accounting for the cost of drugs under Part D.” Section 1848(p)(3) of the Act specifies that costs shall be evaluated, to the extent practicable, based on a composite of appropriate measures of costs for purposes of the VM under the PFS. Section 1848(r) of the Act (as added by section 101(f) of the MACRA) specifies a series of steps and deliverables for the Secretary to develop “care episode and patient condition groups and classification codes” and “patient relationship categories and codes” for purposes of attribution of patients to practitioners, and provides for the use of these in a specified methodology for measurement of resource use. Under the MIPS, the Secretary must evaluate costs based on a composite of appropriate measures of costs using the methodology for resource use analysis specified in section 1848(r)(5) of the Act that involves the use of certain codes and claims data and condition and episode groups, as appropriate. CMS' experience under the VM will help shape this performance category. Currently under the VM, we use the following cost measures: (1) Total Per Capita Costs for All Attributed Beneficiaries measure; (2) Total Per Capita Costs for Beneficiaries with Specific Conditions (Diabetes, Coronary artery disease, Chronic obstructive pulmonary disease, and Heart failure); and (3) Medicare Spending per Beneficiary (MSPB) measure. We seek comment on the following questions:
• Apart from the cost measures noted above, are there additional cost or resource use measures (such as measures associated with services that are potentially harmful or over-used, including those identified by the Choosing Wisely initiative) that should be considered? If so, what data sources would be required to calculate the measures?
• How should we apply the resource use category to MIPS EPs for whom there may not be applicable resource use measures?
• What role should episode-based costs play in calculating resource use and/or providing feedback reports to MIPS EPs under section 1848(q)(12) of the Act?
• How should CMS consider aligning measures used under the MIPS resource use performance category with resource use based measures used in other parts of the Medicare program?
• How should we incorporate Part D drug costs into MIPS? How should this be measured and calculated?
• What peer groups or benchmarks should be used when assessing performance under the resource use performance category?
• CMS has received stakeholder feedback encouraging us to align resource use measures with clinical quality measures. How could the MIPS methodology, which includes domains for clinical quality and resource use, be designed to achieve such alignment?
We also note that there will be forthcoming opportunities to comment on further development of care episode and patient condition groups and classification codes, and patient relationship categories and groups, as required by section 1848(r) of the Act.
Section 1848(q)(2)(B)(iii) of the Act specifies that the measures and activities for the clinical practice improvement activities performance category must include at least the following subcategories of activities: Expanded practice access, population management, care coordination, beneficiary engagement, patient safety and practice assessment, and participation in an APM. The Secretary has discretion under this provision to add other subcategories of activities as well. The term “clinical practice improvement activity” is defined under section 1848(q)(2)(C)(v)(III) of the Act as an activity that relevant eligible professional organizations and other relevant stakeholders identify as improving clinical practice or care delivery and that the Secretary determines, when effectively executed, is likely to result in improved outcomes. Under section 1848(q)(2)(C)(v) of the Act, we are required to use an RFI to solicit recommendations from stakeholders to identify and specify criteria for clinical practice improvement activities. In the CY 2016 PFS proposed rule (80 FR 41879), the Secretary sought comment on what activities could be classified as clinical practice improvement activities under the subcategories specified in section 1848(q)(2)(B)(iii) of the Act. In this RFI, we seek comment on other potential clinical practice improvement activities (and subcategories of activities), and on the criteria that should be applicable for all clinical practice improvement activities. We also seek comment on the following subcategories, in particular how measures or other demonstrations of activity may be validated and evaluated:
• A subcategory of Promoting Health Equity and Continuity, including (a) serving Medicaid beneficiaries, including individuals dually eligible for Medicaid and Medicare, (b) accepting new Medicaid beneficiaries, (c) participating in the network of plans in the Federally-facilitated Marketplace or state exchanges, and (d) maintaining adequate equipment and other
• A subcategory of Social and Community Involvement, such as measuring completed referrals to community and social services or evidence of partnerships and collaboration with the community and social services.
• A subcategory of Achieving Health Equity, as its own category or as a multiplier where the achievement of high quality in traditional areas is rewarded at a more favorable rate for EPs that achieve high quality for underserved populations, including persons with behavioral health conditions, racial and ethnic minorities, sexual and gender minorities, people with disabilities, and people living in rural areas, and people in HPSAs.
• A subcategory of emergency preparedness and response, such as measuring EP participation in the Medical Reserve Corps, measuring registration in the Emergency System for Advance Registration of Volunteer Health Professionals, measuring relevant reserve and active duty military EP activities, and measuring EP volunteer participation in humanitarian medical relief work.
• A subcategory of integration of primary care and behavioral health,
We also seek comment on what mechanisms should be used for the Secretary to receive data related to clinical practice improvement activities. Specifically, we seek comment on the following:
• Should EPs be required to attest directly to CMS through a registration system, Web portal or other means that they have met the required activities and to specify which activities on the list they have met? Or alternatively, should qualified registries, QCDRs, EHRs, or other health IT systems be able to transmit results of the activities to CMS?
• What information should be reported and what quality checks and/or data validation should occur to ensure successful completion of these activities?
• How often providers should report or attest that they have met the required activities?
Additionally, we seek comment on the following areas of how we should assess performance on the clinical practice improvement activities category. Specifically:
• What threshold or quantity of activities should be established under the clinical practice improvement activities performance category? For example, should performance in this category be based on completion of a specific number of clinical practice improvement activities, or, for some categories, a specific number of hours? If so, what is the minimum number of activities or hours that should be completed? How many activities or hours would be needed to earn the maximum possible score for the clinical practice improvement activities in each performance subcategory? Should the threshold or quantity of activities increase over time? Should performance in this category be based on demonstrated availability of specific functions and capabilities?
• How should the various subcategories be weighted? Should each subcategory have equal weight, or should certain subcategories be weighted more than others?
• How should we define the subcategory of participation in an APM?
Lastly, section 1848(q)(2)(B)(iii) of the Act requires the Secretary, in establishing the clinical practice improvement activities, to give consideration to the circumstances of small practices (15 or fewer professionals) and practices located in rural areas and in HPSAs (as designated under section 332(a)(1)(A) of the PHSA). We seek comment on the following questions relating to this requirement:
• How should the clinical practice improvement activities performance category be applied to EPs practicing in these types of small practices or rural areas?
• Should a lower performance threshold or different measures be established that will better allow those EPs to reach the payment threshold?
• What methods should be leveraged to appropriately identify these practices?
• What best practices should be considered to develop flexible and adaptable clinical practice improvement activities based on the needs of the community and its population?
Section 1848(q)(2)(B)(iv) of the Act specifies that the measures and activities for the meaningful use of certified EHR technology performance category under the MIPS are the requirements established under section 1848(o)(2) of the Act for determining whether an eligible professional is a meaningful EHR user of CEHRT. Under section 1848(q)(5)(E)(i)(IV) of the Act, 25 percent of the composite performance score under the MIPS must be determined based on performance in the meaningful use of certified EHR technology performance category. Section 1848(q)(5)(E)(ii) of the Act gives the Secretary discretion to reduce the percentage weight for this performance category (but not below 15 percent) in any year in which the Secretary estimates that the proportion of eligible professionals who are meaningful EHR users is 75 percent or greater, resulting in an increase in the applicable percentage weights of the other performance categories. We seek comment on the methodology for assessing performance in this performance category. Additionally, we note that we are only seeking comments on the meaningful use performance category under the MIPS; we are not seeking comments on the Medicare and Medicaid EHR Incentive Programs.
• Should the performance score for this category be based be based solely on full achievement of meaningful use? For example, an EP might receive full credit (for example, 100 percent of the allotted 25 percentage points of the composite performance score) under this performance category for meeting or exceeding the thresholds of all meaningful use objectives and measures; however, failing to meet or exceed all objectives and measures would result in the EP receiving no credit (for example, zero percent of the allotted 25 percentage points of the composite performance score) for this performance category. We seek comment on this approach to scoring.
• Should CMS use a tiered methodology for determining levels of achievement in this performance category that would allow EPs to receive a higher or lower score based on their performance relative to the thresholds established in the Medicare EHR Incentive program's meaningful use objectives and measures? For example, an EP who scores significantly higher than the threshold and higher than their peer group might receive a higher score than the median performer. How should such a methodology be developed?
• What alternate methodologies should CMS consider for this performance category?
• How should hardship exemptions be treated?
Section 1848(q)(2)(C)(ii) of the Act allows the Secretary to use measures that are used for a payment system other than the PFS, such as measures for inpatient hospitals, for the purposes of the quality and resource use performance categories (but not measures for hospital outpatient departments, except in the case of items and services furnished by emergency physicians, radiologists, and anesthesiologists). We seek comment on how we could best use this authority, including the following specific questions:
• What types of measures (that is, process, outcomes, populations, etc.) used for other payment systems should be included for the quality and resource use performance categories under the MIPS?
• How could we leverage measures that are used under the Hospital Inpatient Quality Reporting Program, the Hospital Value-Based Purchasing Program, or other quality reporting or incentive payment programs? How should we attribute the performance on the measures that are used under other quality reporting or value-based purchasing programs to the EP?
• To which types of EPs should these be applied? Should this option be available to all EPs or only to those EPs who have limited measure options under the quality and resource use performance categories?
• How should CMS link an EP to a facility in order to use measures from other payment systems? For example, should the EP be allowed to elect to be analyzed based on the performance on measures for the facility of his or her choosing? If not, what criteria should CMS use to attribute a facility's performance on a given measure to the EP or group practice?
Additionally, section 1848(q)(2)(C)(iii) of the Act allows and encourages the Secretary to use global measures and population-based measures for the purposes of the quality performance category. We seek comment on the following questions:
• What types of global and population-based measures should be included under MIPS? How should we define these types of measures?
• What data sources are available, and what mechanisms exist to collect data on these types of measures?
Lastly, section 1848(q)(2)(C)(iv) of the Act requires the Secretary, for the measures and activities specified for the MIPS performance categories, to give consideration to the circumstances of professional types (or subcategories of those types based on practice characteristics) who typically furnish services that do not involve face-to-face interaction with patients when defining MIPS performance categories. For example, EPs practicing in certain specialties such as pathologists and certain types of radiologists do not typically have face-to-face interactions with patients. If measures and activities for the MIPS performance categories focus on face-to-face encounters, these specialists may have more limited opportunities to be assessed, which could negatively affect their MIPS composite performance scores as compared to other specialties. We seek comment on the following questions:
• How should we define the professional types that typically do not have face-to-face interactions with patients?
• What criteria should we use to identify these types of EPs?
• Should we base this designation on their specialty codes in PECOS, use encounter codes that are billed to Medicare, or use an alternate criterion?
• How should we apply the four MIPS performance categories to non-patient-facing EPs?
• What types of measures and/or clinical practice improvement activities (new or from other payments systems) would be appropriate for these EPs?
Section 1848(q)(3)(B) of the Act requires the Secretary, in establishing performance standards with respect to measures and activities for the MIPS performance categories, to consider: historical performance standards, improvement, and the opportunity for continued improvement. We seek comment on the following questions:
• Which specific historical performance standards should be used? For example, for the quality and resource use performance categories, how should CMS select quality and cost benchmarks? Should CMS use providers' historical quality and cost performance benchmarks and/or thresholds from the most recent year feasible prior to the commencement of MIPS? Should performance standards be stratified by group size or other criteria? Should we use a model similar to the performance standards established under the VM?
• For the clinical practice improvement activities performance category, what, if any, historical data sources should be leveraged?
• How should we define improvement and the opportunity for continued improvement? For example, section 1848(q)(5)(D) of the Act requires the Secretary, beginning in the second year of the MIPS, if there are available data sufficient to measure improvement, to take into account improvement of the MIPS EP in calculating the performance score for the quality and resource use performance categories.
• How should CMS incorporate improvement into the scoring system or design an improvement formula?
• What should be the threshold(s) for measuring improvement?
• How would different approaches to defining the baseline period for measuring improvement affect EPs' incentives to increase quality performance? Would periodically updating the baseline period penalize EPs who increase performance by holding them to a higher standard in future performance periods, thereby undermining the incentive to improve? Could assessing improvement relative to a fixed baseline period avoid this problem? If so, would this approach have other consequences CMS should consider?
• Should CMS use the same approach for assessing improvement as is used for the Hospital Value-Based Purchasing Program? What are the advantages and disadvantages of this approach?
• Should CMS consider improvement at the measure level, performance category level (that is, quality, clinical practice improvement activity, resource use, and meaningful use of certified EHR technology), or at the composite performance score level?
• Should improvements in health equity and the reductions of health disparities be considered in the definition of improvement? If so, how should CMS incorporate health equity into the formula?
• In the CY 2016 PFS proposed rule (80 FR 41812), the Secretary proposed to publicly report on Physician Compare an item-level benchmark derived using the Achievable Benchmark of Care (ABC
Section 1848(q)(5)(F) of the Act requires the Secretary, if there are not sufficient measures and activities applicable and available to each type of EP, to assign different scoring weights (including a weight of zero) from those that apply generally under the MIPS. We seek comment on the following questions:
• Are there situations where certain EPs could not be assessed at all for purposes of a particular performance category? If so, how should we account for the percentage weight that is otherwise applicable for that category? Should it be evenly distributed across the remaining performance categories? Or should the weights be increased for one or more specific performance categories, such as the quality performance category?
• Generally, what methodologies should be used as we determine whether there are not sufficient measures and activities applicable and available to types of EPs such that the weight for a given performance category should be modified or should not apply to an EP? Should this be based on an EP's specialty? Should this determination occur at the measure or activity level, or separately at the specialty level?
• What case minimum threshold should CMS consider for the different performance categories?
• What safeguards should we have in place to ensure statistical significance when establishing performance thresholds? For example, under the VM one standard deviation is used. Should we apply a similar threshold under MIPS?
• Section 1848(q)(5)(A) of the Act requires the Secretary to develop a methodology for assessing the total performance of each MIPS EP based on performance standards with respect to applicable measures and activities in each of the four performance categories. The methodology is to provide for a composite assessment for each MIPS EP for the performance period for the year using a scoring scale of 0 to 100. Section 1848(q)(6)(D) of the Act requires the Secretary to compute a performance threshold to which the MIPS EP's composite performance score is compared for purposes of determining the MIPS adjustment factor for a year. The performance threshold must be either the mean or median of the composite performance scores for all MIPS EPs with respect to a prior period specified by the Secretary. Section 1848(q)(6)(D)(iii) of the Act requires the Secretary for the first 2 years of the MIPS, prior to the performance period for those years, to establish a performance threshold that is based on a period prior to the performance periods for those years. Additionally, the act requires the Secretary to take into account available data with respect to performance on measures and activities that may be used under the MIPS performance categories and other factors deemed appropriate. From our experience with the PQRS, VM, and the Medicare EHR Incentive Program, there is information available for prior periods for all MIPS performance categories except for clinical practice improvement activities. We are requesting information from the public on the following:
• How should we assess performance on each of the 4 performance categories and combine the assessments to determine a composite performance score?
• For the quality and resource use performance categories, should we use a methodology (for example, equal weighting of quality and resource use measures across National Quality Strategy domains) similar to what is currently used for the VM?
• How should we use the existing data on quality measures and resource use measures to translate the data into a performance threshold for the first two years of the program?
• What minimum case size thresholds should be utilized? For example, should we leverage all data that is reported even if the denominators are small? Or should we employ a minimum patient threshold, such as a minimum of 20 patients, for each measure?
• How can we establish a base threshold for the clinical practice improvement activities? How should this be incorporated into the overall performance threshold?
• What other considerations should be made as we determine the performance threshold for the total composite performance score? For example, should we link performance under one category to another?
We also seek comment on what should be the minimum threshold used for publicly reporting MIPS measures and activities for all of the MIPS performance categories on the Physician Compare Web site.
In the CY 2016 PFS proposed rule (80 FR 41809), we indicated that we will continue using a minimum 20 patient threshold for public reporting through Physician Compare of quality measures (in addition to assessing the reliability, validity and accuracy of the measures). An alternative to a minimum patient threshold for public reporting would be to use a minimum reliability threshold. We seek comment on both concepts in regard to public reporting of MIPS quality measures on the Physician Compare Web site. We additionally seek comment on the following:
• Should CMS include individual EP and group practice-level quality measure data stratified by race, ethnicity and gender in public reporting (if statistically appropriate)?
Section 1848(q)(12)(A) of the Act requires the Secretary, beginning July 1, 2017, to provide confidential feedback on performance to MIPS EPs. Specifically, we are required to make available timely confidential feedback to MIPS EPs on their performance in the quality and resource use performance categories, and we have discretion to make available confidential feedback to MIPS EPs on their performance in the clinical practice improvement activities and meaningful use of certified EHR technology performance categories. This feedback can be provided through various mechanisms, including the use of a web-based portal or other mechanisms determined appropriate by the Secretary. We seek comment on the following questions:
• What types of information should we provide to EPs about their practice's performance within the feedback report? For example, what level of detail on performance within the performance categories will be beneficial to practices?
• Would it be beneficial for EPs to receive feedback information related to the clinical practice improvement activities and meaningful use of certified EHR technology performance categories? If so, what types of feedback?
• What other mechanisms should be leveraged to make feedback reports available? Currently, CMS provides feedback reports for the PQRS, VM, and the Physician Feedback Program through a web-based portal. Should CMS continue to make feedback available through this portal? What other entities and vehicles could CMS
• Who within the EP's practice should be able to access the reports? For example, currently under the VM, only the authorized group practice representative and/or their designees can access the feedback reports. Should other entities be able to access the feedback reports, such as an organization providing MIPS-focused technical assistance, another provider participating in the same virtual group, or a third party data intermediary who is submits data to CMS on behalf of the EP, group practice, or virtual group?
• With what frequency is it beneficial for an EP to receive feedback? Currently, CMS provides Annual Quality and Resource Use Reports (QRUR), mid-year QRURs and supplemental QRURs. Should we continue to provide feedback to MIPS EPs on this cycle? Would there be value in receiving interim reports based on rolling performance periods to make illustrative calculations about the EP's performance? Are there certain performance categories on which it would be more important to receive interim feedback than others? What information that is currently contained within the QRURs should be included? More information on what is available within the QRURs is at
• Should the reports include data that is stratified by race, ethnicity and gender to monitor trends and address gaps towards health equity?
• What types of information about items and services furnished to the EP's patients by other providers would be useful? In what format and with what frequency?
We are requesting information regarding the following areas:
Section 1833(z)(1) of the Act, as added by section 101(e)(2) of the MACRA, establishes incentive payments for EPs who are QPs with respect to a year. The term “qualifying APM participant” is defined under section 1833(z)(2) of the Act, and provides in part that a specified percent (which differs depending on the year) of an EP's payments during the most recent period for which data are available must be attributable to services furnished through an “eligible alternative payment entity” (EAPM entity) as that term is defined under section 1833(z)(3)(D) of the Act.
The term APM, as defined in section 1833(z)(3)(C) of the Act, includes: Models under section 1115A of the Act (other than health care innovation awards); the Shared Savings Program under section 1899 of the Act; demonstrations under section 1866C of the Act (the Health Care Quality Demonstration Program); and demonstrations required by federal law.
Under section 1833(z)(3)(D) of the Act, an EAPM entity is an entity that: (1) Participates in an APM that requires participants to use certified EHR technology and provides for payment for covered professional services based on quality measures comparable to the MIPS quality measures established under section 1848(q)(2)(B)(i) of the Act and (2) either bears financial risk for monetary losses under the APM that are in excess of a nominal amount or is a medical home expanded under section 1115A(c) of the Act.
For the years 2019 through 2024, EPs who are QPs for a given year will receive an incentive payment equal to 5 percent of the estimated aggregate Part B Medicare payment amounts for covered professional services for the preceding year. Under section 1833(z)(1)(A), the estimated aggregate Medicare Part B payment amount for the preceding year may be based on a period of the preceding year that is less than the full year.
Under section 1833(z)(2) of the Act, an EP may be determined to be a QP through: (1) Beginning for 2019, a Medicare payment threshold option that assesses the percent of Medicare Part B payments for covered professional services in the most recent period that is attributable to services furnished through an EAPM entity; or (2) beginning for 2021, either a Medicare payment threshold option or a combination all-payer and Medicare payment threshold option. The combination all-payer and Medicare payment threshold option assesses both: (1) The percent of Medicare payments for covered professional services in the most recent period that is attributable to services furnished through an EAPM entity; and (2) the percent of the combined Part B Medicare payments for covered professional services attributable to an EAPM entity and all other payments made by other payers made under similarly defined arrangements (except payments made by the Department of Defense or Veterans Affairs and payments made under Title XIX in a state in which no medical home or alternative payment model is available under the State program under that title). These arrangements must be arrangements in which: (1) Quality measures comparable to those used under the MIPS apply; (2) certified EHR technology is used; and (3) either the entity bears more than nominal financial risk if actual expenditures exceed expected expenditures or the entity is a medical home under Title XIX that meets criteria comparable to medical homes expanded under section 1115A(c) of the Act. For the combined all-payer and Medicare payment threshold option, the EP is required to provide to the Secretary the necessary information to make a determination as to whether the EP meets the all-payer portion of the threshold.
For 2019 and 2020, the Medicare-only payment threshold requires that at least 25 percent of all Medicare payments be attributable to services furnished through an EAPM entity. This threshold increases to 50 percent for 2021 and 2022, and 75 percent for 2023 and later years. The combination all-payer and Medicare payment threshold option is available beginning in 2021. The combined all-payer and Medicare payment thresholds are, respectively, 50 percent of all-payer payments and 25 percent of Medicare payments in 2021 and 2022, and 75 percent of all-payer payments and 25 percent of Medicare payments in 2023 and later years.
Under section 1848(q)(1)(C)(ii) of the Act, the statute specifies that partial QPs are those who would be QPs if the threshold payment percentages under section 1833(z)(2) of the Act for the year were lower. For partial QPs, the Medicare-only payment thresholds are 20 percent (instead of 25 percent) for 2019 and 2020, 40 percent (instead of 50 percent) for 2021 and 2022, and 50 percent (instead of 75 percent) for 2023 and later years. For partial QPs, the combination all-payer and Medicare payment thresholds are, respectively, 40 percent (instead of 50 percent) all-payer and 20 percent (instead of 25 percent) Medicare in 2021 and 2022, and 50 percent (instead of 75 percent) all-payer and 20 percent (instead of 25 percent) Medicare in 2023 and later years.
Partial QPs are not eligible for incentive payments for APM participation under section 1833(z) of the Act. Partial QPs who, for the MIPS performance period for the year, do not report applicable MIPS measures and activities are not considered MIPS EPs. Partial QPs who choose to participate in MIPS are considered MIPS EPs. These
To help us establish criteria and a process for determining whether an EP is a QP or partial QP, this RFI requests information on the following issues.
• How should CMS define “services furnished under this part through an EAPM entity”?
• What policies should the Secretary consider for calculating incentive payments for APM participation when the prior period payments were made to an EAPM entity rather than directly to a QP, for example, if payments were made to a physician group practice or an ACO? What are the advantages and disadvantages of those policies? What are the effects of those policies on different types of EPs (that is, those in physician-focused APMs versus hospital-focused APMs, etc.)? How should CMS consider payments made to EPs who participate in more than one APM?
• What policies should the Secretary consider related to estimating the aggregate payment amounts when payments are made on a basis other than fee-for-service (that is, if payments were made on a capitated basis)? What are the advantages and disadvantages of those policies? What are their effects on different types of EPs (that is, those in physician-focused APMs versus hospital-focused APMs, etc.)?
• What types of data and information can EPs submit to CMS for purposes of determining whether they meet the non-Medicare share of the Combination All-Payer and Medicare Payment Threshold, and how can they be securely shared with the federal government?
Under section 1833(z)(2)(D) of the Act, the Secretary can use percentages of patient counts in lieu of percentages of payments to determine whether an EP is a QP or partial QP.
• What are examples of methodologies for attributing and counting patients in lieu of using payments to determine whether an EP is a QP or partial QP?
• Should this option be used in all or only some circumstances? If only in some circumstances, which ones and why?
• What is the appropriate type or types of “financial risk” under section 1833(z)(3)(D)(ii)(I) of the Act to be considered an EAPM entity?
• What is the appropriate level of financial risk “in excess of a nominal amount” under section 1833(z)(3)(D)(ii)(I) of the Act to be considered an EAPM entity?
• What is the appropriate level of “more than nominal financial risk if actual aggregate expenditures exceed expected aggregate expenditures” that should be required by a non-Medicare payer for purposes of the Combination All-Payer and Medicare Payment Threshold under sections 1833(z)(2)(B)(iii)(II)(cc)(AA) and 1833(z)(2)(C)(iii)(II)(cc)(AA) of the Act?
• What are some points of reference that should be considered when establishing criteria for the appropriate type or level of financial risk,
EPs may meet the criteria to be QPs or partial QPs under the Combination All-Payer and Medicare Payment Threshold Option based, in part, on payments from non-Medicare payers attributable to services furnished through an entity that, with respect to beneficiaries under Title XIX, is a medical home that meets criteria comparable to medical homes expanded under section 1115A(c) of the Act. In addition, payments made under some State Medicaid programs, not associated with Medicaid medical homes, may meet the criteria to be included in the calculation of the combination all-payer and Medicare payment threshold option.
• What criteria could the Secretary consider for determining comparability of state Medicaid medical home models to medical home models expanded under section 1115A(c) of the Act?
• Which states' Medicaid medical home models might meet criteria comparable to medical homes expanded under section 1115A(c) of the Act?
• Which current Medicaid alternative payment models—besides Medicaid medical homes are likely to meet the criteria for comparability of state Medicaid medical homes to medical homes expanded under section 1115A(c) of the Act and should be considered when determining the all-payer portion of the Combination All-Payer and Medicare Payment Threshold Option?
An EAPM entity is defined as an entity that (1) participates in an APM that requires participants to use certified EHR technology (as defined in section 1848(o)(4) of the Act) and provides for payment for covered professional services based on quality measures comparable to measures under the performance category described in section 1848(q)(2)(B)(i) of the Act (the quality performance category); and (2) bears financial risk for monetary losses under the APM that are in excess of a nominal amount or is a medical home expanded under section 1115A(c) of the Act.
• What entities should be considered EAPM entities?
• What criteria could be considered when determining “comparability” to MIPS of quality measures used to identify an EAPM entity? Please provide specific examples for measures, measure types (for example, structure, process, outcome, and other types), data source for measures (for example, patients/caregivers, medical records, billing claims, etc.), measure domains, standards, and comparable methodology.
• What criteria could be considered when determining “comparability” to MIPS of quality measures required by a non-Medicare payer to qualify for the Combination All-Payer and Medicare Payment Threshold? Please provide specific examples for measures, measure types, (for example, structure, process, outcome, and other types), recommended data sources for measures (for example, patients/caregivers, medical records, billing claims, etc.), measure domains, and comparable methodology.
• What components of certified EHR technology as defined in section 1848(o)(4) of the Act should APM participants be required to use? Should APM participants be required to use the same certified EHR technology currently required for the Medicare and Medicaid EHR Incentive Programs or should CMS other consider requirements around certified health IT capabilities?
• What are the core health IT functions that providers need to manage patient populations, coordinate care, engage patients and monitor and report quality? Would certification of additional functions or interoperability requirements in health IT products (for example, referral management or population health management functions) help providers succeed within APMs?
• How should CMS define “use” of certified EHR technology as defined in section 1848(o)(4) of the Act by
Section 101(e)(1) of the MACRA, adds a new subsection 1868(c) to the Act entitled, “Increasing the Transparency of Physician-Focused Payment Models.” This section establishes an independent “Physician-focused Payment Model Technical Advisory Committee” (the Committee). The Committee will review and provide comments and recommendations to the Secretary on PFPMs submitted by stakeholders. Section 1868(c)(2)(A) of the Act requires the Secretary to establish, through notice and comment rulemaking following an RFI, criteria for PFPMs, including models for specialist physicians, that could be used by the Committee for making its comments and recommendations. In this RFI, we are seeking input on potential criteria that the Committee could use for making comments and recommendations to the Secretary on PFPMs proposed by stakeholders. CMS published an RFI requesting information on Specialty Practitioner Payment Model Opportunities on February 11, 2014, available at
PFPMs are not required by the MACRA to meet the criteria to be considered APMs as defined under section 1833(z)(3)(C) of the Act or to involve an EAPM entity as defined under section 1833(z)(3)(D) of the Act. However, we are interested in encouraging model proposals from stakeholders that will provide EPs the opportunity to become QPs and receive incentive payments (in other words, model proposals that would involve EAPM entities as defined in section 1833(z)(3)(D) of the Act). PFPMs proposed by stakeholders and selected for implementation by CMS will take time and resources to implement after being reviewed by the Committee and the Secretary. To expedite our ability to implement such models, we are interested in receiving comments now on criteria that would support development of PFPMs that involve EAPM entities.
• How should “physician-focused payment model” be defined?
We are required by section 1868(c)(2)(A) of the Act to establish by November 1, 2016, through rulemaking and following an RFI, criteria for PFPMs, including models for specialist physicians, that could be used by the Committee for making comments and recommendations to the Secretary. We intend to establish criteria that promote robust and well-developed proposals to facilitate implementation of PFPMs. To assist us with establishing criteria, this RFI requests information on the following fundamental issues.
• What criteria should be used by the Committee for assessing PFPM proposals submitted by stakeholders? We are interested in hearing suggestions related to the criteria discussed in this RFI as well as other criteria.
• Are there additional or different criteria that the Committee should use for assessing PFPMs that are specialist models? What criteria would promote development of new specialist models?
• What existing criteria, procedures, or standards are currently used by private or public insurance plans in testing or establishing new payment models? Should any of these criteria be used by the Committee for assessing PFPM proposals? Why or why not?
This RFI seeks feedback on information that could be required of stakeholders proposing models to provide for the consideration of the Committee.
We are considering the following specific criteria for the Committee to use to make comments and recommendations related to model proposals submitted to the Committee. We are seeking feedback on whether these criteria should be included and, if so, whether they should be modified, and whether other criteria should be considered. Each of these criteria is considered for all models tested through the Center for Medicare and Medicaid Innovation (Innovation Center) during internal development. For a list of the factors considered in the Innovation Center's model selection process, see
• We are considering that proposed PFPMs should primarily be focused on the inclusion of participants in their design who have not had the opportunity to participate in another PFPM with CMS because such a model has not been designed to include their specialty.
• Proposals would state why the proposed model should be given priority, and why a model is needed to test the approach.
• Proposals would include a framework for the proposed payment methodology, how it differs from the current Medicare payment methodology, and how it promotes delivery system reforms.
• If a similar model has been tested or researched previously, either by CMS or in the private sector, the stakeholder would include background information and assessments on the performance of the similar model.
• Proposed models would aim to directly solve a current issue in payment policy that CMS is not already addressing in another model or program.
For the Committee to comment and make recommendations on the merits of PFPMs proposed by stakeholders, we are considering a requirement that proposals include the same information that would be required for any model tested through the Innovation Center. For a list of the factors considered in the Innovation Center's model selection process, see
• Definition of the target population, how the target population differs from the non-target population and the number of Medicare beneficiaries that would be affected by the model.
• Ways in which the model would impact the quality and efficiency of care for Medicare beneficiaries.
• Whether the model would provide for payment for covered professional services based on quality measures, and if so, whether the measures are comparable to quality measures under the MIPS quality performance category.
• Specific proposed quality measures in the model, their prior validation, and how they would further the model's goals, including measures of beneficiary experience of care, quality of life, and functional status that could be used.
• How the model would affect access to care for Medicare and Medicaid beneficiaries.
• How the model will affect disparities among beneficiaries by race, and ethnicity, gender, and beneficiaries with disabilities, and how the applicant intends to monitor changes in disparities during the model implementation.
• Proposed geographical location(s) of the model.
• Scope of EP participants for the model, including information about what specialty or specialties EP participants would fall under the model.
• The number of EPs expected to participate in the model, information about whether or not EP participants for the model have expressed interest in participating and relevant stakeholder support for the model.
• To what extent participants in the model would be required to use certified EHR technology.
• An assessment of financial opportunities for model participants including a business case for their participation.
• Mechanisms for how the model fits into existing Medicare payment systems, or replaces them in part or in whole and would interact with or complement existing alternative payment models.
• What payment mechanisms would be used in the model, such as incentive payments, performance-based payments, shared savings, or other forms of payment.
• Whether the model would include financial risk for monetary losses for participants in excess of a minimal amount and the type and amount of financial performance risk assumed by model participants.
• Method for attributing beneficiaries to participants.
• Estimated percentage of Medicare spending impacted by the model and expected amount of any new Medicare/Medicaid payments to model participants.
• Mechanism and amount of anticipated savings to Medicare and Medicaid from the model, and any incentive payments, performance-based payments, shared savings, or other payments made from Medicare to model participants.
• Information about any similar models used by private payers, and how the current proposal is similar to or different from private models and whether and how the model could include additional payers other than Medicare, including Medicaid.
• Whether the model engages payers other than Medicare, including Medicaid and/or private payers. If not, why not? If so, what proportion of the model's beneficiaries is covered by Medicare as compared to other payers?
• Potential approaches for CMS to evaluate the proposed model (study design, comparison groups, and key outcome measures).
• Opportunities for potential model expansion if successful.
Section 1848(q)(11) of the Act provides for technical assistance to small practices and practices in HPSAs. In general, under section 1848(q)(11) of the Act, the Secretary is required to enter into contracts or agreements with entities such as quality improvement organizations, regional extension centers and regional health collaboratives beginning in Fiscal Year 2016 to offer guidance and assistance to MIPS EPs in practices of 15 or fewer professionals. Priority is to be given to small practices located in rural areas, HPSAs, and medically underserved areas, and practices with low composite scores. The technical assistance is to focus on the performance categories under MIPS, or how to transition to implementation of and participation in an APM.
For section 1848(q)(11) of the Act—
• What should CMS consider when organizing a program of technical assistance to support clinical practices as they prepare for effective participation in the MIPS and APMs?
• What existing educational and assistance efforts might be examples of “best in class” performance in spreading the tools and resources needed for small practices and practices in HPSAs? What evidence and evaluation results support these efforts?
• What are the most significant clinician challenges and lessons learned related to spreading quality measurement, leveraging CEHRT to make practice improvements, value based payment and APMs in small practices and practices in health shortage areas, and what solutions have been successful in addressing these issues?
• What kind of support should CMS offer in helping providers understand the requirements of MIPS?
• Should such assistance require multi-year provider technical assistance commitment, or should it be provided on a one-time basis?
• Should there be conditions of participation and/or exclusions in the providers eligible to receive such assistance, such as providers participating in delivery system reform initiatives such as the Transforming Clinical Practice Initiative (TCPI;
Because of the large number of public comments we normally receive on
Office of the Secretary, Department of the Interior.
Proposed rule.
The Secretary of the Interior (Secretary) is proposing an administrative rule to facilitate the reestablishment of a formal government-to-government relationship with the Native Hawaiian community to more effectively implement the special political and trust relationship that Congress has established between that community and the United States. The proposed rule does not attempt to reorganize a Native Hawaiian government or draft its constitution, nor does it dictate the form or structure of that government. Rather, the proposed rule would establish an administrative procedure and criteria that the Secretary would use if the Native Hawaiian
Comments on this proposed rule must be received on or before December 30, 2015. Please see
You may submit comments by either of the methods listed below. Please use Regulation Identifier Number 1090-AB05 in your message.
1.
2.
3.
We request that you send comments only by one of the methods described above. We will post all comments on
Antoinette Powell, telephone (202) 208-5816 (not a toll-free number);
The Secretary is proposing an administrative rule to provide a procedure and criteria for reestablishing a formal government-to-government relationship between the United States and the Native Hawaiian community. The Department would like to hear from leaders and members of the Native Hawaiian community and of federally recognized tribes in the continental United States (
To be most useful, and most likely to inform decisions on the content of a final administrative rule, comments should:
Most laws and other sources cited in this proposal will be available on the Department of the Interior's Office of Native Hawaiian Relations (ONHR) Web site at
Over many decades, Congress enacted more than 150 statutes recognizing and implementing a special political and trust relationship with the Native Hawaiian community. Among other things, these statutes create programs and services for members of the Native Hawaiian community that are in many respects analogous to, but separate from, the programs and services that Congress enacted for federally recognized tribes in the continental United States. But during this same period, the United States has not partnered with Native Hawaiians on a government-to-government basis, at least partly because there has been no formal, organized Native Hawaiian government since 1893, when a United States officer, acting without authorization of the U.S. government, conspired with residents of Hawaii to overthrow the Kingdom of Hawaii. Many Native Hawaiians contend that their community's opportunities to thrive would be significantly bolstered by reorganizing their sovereign Native Hawaiian government to engage the United States in a government-to-government relationship, exercise inherent sovereign powers of self-governance and self-determination on par with those exercised by tribes in the continental United States, and facilitate the implementation of programs and services that Congress created specifically to benefit the Native Hawaiian community.
The United States has a unique political and trust relationship with federally recognized tribes across the country, as set forth in the United States Constitution, treaties, statutes, Executive Orders, administrative regulations, and judicial decisions. The Federal Government's relationship with these tribes is guided by a trust responsibility—a longstanding, paramount commitment to protect their unique rights and ensure their well-being, while respecting their inherent sovereignty. In recognition of that special commitment—and in fulfillment of the solemn obligations it entails—the United States, acting through the Department of the Interior (Department), developed processes to help tribes in the continental United States establish government-to-government relationships with the United States.
Strong Native governments are critical to tribes' exercising their inherent sovereign powers, preserving their culture, and sustaining prosperous and resilient Native American communities. It is especially true that, in the current era of tribal self-determination, formal government-to-government relationships between tribes and the United States are enormously beneficial not only to Native Americans but to
Native Hawaiians are the aboriginal, indigenous people who settled the Hawaiian archipelago as early as 300 A.D., exercised sovereignty over their island archipelago and, over time, founded the Kingdom of Hawaii.
Throughout the nineteenth century and until 1893, the United States “recognized the independence of the Hawaiian Nation,” “extended full and complete diplomatic recognition to the Hawaiian Government,” and entered into several treaties with the Hawaiian monarch. 42 U.S.C. 11701(6);
Following the overthrow of Hawaii's monarchy, Queen Liliuokalani, while yielding her authority under protest to the United States, called for reinstatement of Native Hawaiian governance. Joint Resolution of November 23, 1993, 107 Stat. 1511. The Native Hawaiian community answered, alerting existing Native Hawaiian political organizations and groups from throughout the islands to reinstate the Queen and resist the newly formed Provisional Government and any attempt at annexation.
The United States nevertheless annexed Hawaii “without the consent of or compensation to the indigenous people of Hawaii or their sovereign government who were thereby denied the mechanism for expression of their inherent sovereignty through self-government and self-determination.” 42 U.S.C. 11701(11). The Republic of Hawaii ceded its land to the United States, and Congress passed a joint resolution annexing the islands in 1898.
Hawaii was a U.S. territory for six decades prior to 1959, and during much of this period, educated Native Hawaiians, and a government led by them, were perceived as threats to the incipient territorial government. Consequently, the use of the Hawaiian language in education in public schools was declared unlawful. 20 U.S.C. 7512(19). But various entities connected to the Kingdom of Hawaii adopted other methods of continuing their government and education. Specifically, the Royal Societies, the Bishop Estate (now Kamehameha Schools), the Alii trusts, and civic clubs are examples of Native Hawaiians' continuing efforts to keep their culture, language, and community alive.
By 1919, the decline in the Native Hawaiian population—by some estimates from several hundred thousand in 1778 to only 22,600—led Delegate Prince Kuhio Kalanianaole, Native Hawaiian politician and Hawaiian Civic Clubs co-founder John Wise, and U.S. Secretary of the Interior John Lane to recommend to Congress that land be set aside to help Native Hawaiians reestablish their traditional way of life.
In 1938, Congress again exercised its trust responsibility by granting Native Hawaiians exclusive fishing rights in the Hawaii National Park. Act of June 20, 1938, ch. 530, sec. 3(a), 52 Stat. 784.
In 1959, as a condition of statehood, the Hawaii Admission Act required the State of Hawaii to manage and administer two public trusts for the indigenous Native Hawaiian people. Act of March 19, 1959, 73 Stat. 4. First, the Federal Government required the State to adopt the HHCA as a provision of its constitution, which effectively ensured continuity of the Hawaiian home lands program.
Since Hawaii's admission to the United States, Congress has enacted dozens of statutes on behalf of Native Hawaiians pursuant to the United States' recognized political relationship and trust responsibility. The Congress:
• Established special Native Hawaiian programs in the areas of health care, education, loans, and employment.
• Enacted statutes to study and preserve Native Hawaiian culture, language, and historical sites.
• Extended to the Native Hawaiian people many of “the same rights and privileges accorded to American Indian, Alaska Native, Eskimo, and Aleut communities” by classifying Native Hawaiians as “Native Americans” under numerous Federal statutes. 42 U.S.C. 11701(19);
In a number of enactments, Congress expressly identified Native Hawaiians as “a distinct and unique indigenous people with a historical continuity to the original inhabitants of the Hawaiian archipelago,” 42 U.S.C. 11701(1);
In 1993, Congress enacted a joint resolution to acknowledge the 100th anniversary of the overthrow of the Kingdom of Hawaii and to offer an apology to Native Hawaiians. Joint Resolution of November 23, 1993, 107 Stat. 1510. In that Joint Resolution, Congress acknowledged that the overthrow of the Kingdom of Hawaii thwarted Native Hawaiians' efforts to exercise their “inherent sovereignty” and “right to self-determination,” and stated that “the Native Hawaiian people are determined to preserve, develop, and transmit to future generations their ancestral territory and their cultural identity in accordance with their own spiritual and traditional beliefs, customs, practices, language, and social institutions.”
Following a series of hearings and meetings with the Native Hawaiian community in 1999, the U.S. Departments of the Interior and Justice issued “From Mauka to Makai: The River of Justice Must Flow Freely,” a report on the reconciliation process between the Federal Government and Native Hawaiians. The report recommended as its top priority that “the Native Hawaiian people should have self-determination over their own affairs within the framework of Federal law.” Department of the Interior & Department of Justice,
In recent statutes, Congress again recognized that “Native Hawaiians have a cultural, historic, and land-based link to the indigenous people who exercised sovereignty over the Hawaiian Islands, and that group has never relinquished its claims to sovereignty or its sovereign lands.” 20 U.S.C. 7512(12)(A);
Congress consistently enacted programs and services expressly and specifically for the Native Hawaiian community that are in many respects analogous to, but separate from, the programs and services that Congress enacted for federally recognized tribes in the continental United States. As Congress has explained, it “does not extend services to Native Hawaiians because of their race, but because of their unique status as the indigenous peoples of a once sovereign nation as to whom the United States has established a trust relationship.” 114 Stat. 2968 (2000). Thus, “the political status of Native Hawaiians is comparable to that of American Indians and Alaska Natives.” 20 U.S.C. 7512(12)(B), (D);
Although Congress repeatedly acknowledged its special political and trust relationship with the Native Hawaiian community since the overthrow of the Kingdom of Hawaii more than a century ago, the Federal Government does not maintain a formal government-to-government relationship with the Native Hawaiian community as
Consistent with the HHCA, which is the first Congressional enactment clearly recognizing the Native Hawaiian community's special political and trust relationship with the United States, Congress requires Federal agencies to consult with Native Hawaiians under several Federal statutes.
Native Hawaiians maintained a distinct political community through the twentieth century to the present day. Through a diverse group of organizations that includes, for example, the Hawaiian Civic Clubs and the various Hawaiian Homestead Associations, Native Hawaiians deliberate and express their views on issues of importance to their community, some of which are discussed above.
There are numerous additional examples of the community's active engagement on issues of self-determination and preservation of Native Hawaiian culture and traditions. For example, Ka Lahui Hawaii, a Native Hawaiian self-governance initiative, which organized a constitutional convention resulting in a governing structure with elected officials and governing documents; the Hui Naauao Sovereignty and Self-Determination Community Education Project, a coalition of over 40 Native Hawaiian organizations that worked together to educate Native Hawaiians and the public about Native Hawaiian history and self-governance; the 1988 Native Hawaiian Sovereignty Conference, where a resolution on self-governance was adopted; the Hawaiian Sovereignty Elections Council, a State-funded entity, and its successor, Ha Hawaii, a non-profit organization, which helped hold an election and convene
Against this backdrop of activity, Native Hawaiians and Native Hawaiian organizations asserted self-determination principles in court. Notably, in 2001, they brought suit challenging Native Hawaiians' exclusion from the Department's acknowledgment regulations (25 CFR part 83), which establish a uniform process for Federal acknowledgment of Indian tribes in the continental United States. The United States Court of Appeals for the Ninth Circuit upheld the geographic limitation in the Part 83 regulations, concluding that there was a rational basis for the Department to distinguish between Native Hawaiians and tribes in the continental United States, given the history of separate Congressional enactments regarding the two groups and the unique history of Hawaii.
And in recent years, Congress considered legislation to reorganize a single Native Hawaiian governing entity and reestablish a formal government-to-government relationship between it and the United States. In 2010, during the Second Session of the 111th Congress, nearly identical Native Hawaiian government reorganization bills were passed by the House of Representatives (H.R. 2314), reported out favorably by the Senate Committee on Indian Affairs (S. 1011), and strongly supported by the Executive Branch (S. 3945). In a letter to the Senate concerning S. 3945, the Secretary and the Attorney General stated: “Of the Nation's three major indigenous groups, Native Hawaiians—unlike American Indians and Alaska Natives—are the only one that currently lacks a government-to-government relationship with the United States. This bill provides Native Hawaiians a means by which to exercise the inherent rights to local self-government, self-determination, and economic self-sufficiency that other Native Americans enjoy.” 156 Cong. Rec. S10990, S10992 (Dec. 22, 2010).
The 2010 House and Senate bills provided that the Native Hawaiian government would have “the inherent powers and privileges of self-government of a native government under existing law,” including the inherent powers “to determine its own membership criteria [and] its own membership” and to negotiate and implement agreements with the United States or with the State of Hawaii. The bills required protection of the civil rights and liberties of Natives and non-Natives alike, as guaranteed in the Indian Civil Rights Act of 1968, 25 U.S.C. 1301
The bills further acknowledged the existing special political and trust relationship between Native Hawaiians and the United States, and established a process for reorganizing a Native Hawaiian governing entity. Some in Congress, however, expressed a preference not for recognizing a reorganized Native Hawaiian government by legislation, but rather for allowing the Native Hawaiian community to apply for recognition through the Department's Federal acknowledgment process.
The State of Hawaii, in Act 195, Session Laws of Hawaii 2011, expressed its support for reorganizing a Native Hawaiian government that could then be federally recognized, while also providing for State recognition of the Native Hawaiian people as “the only indigenous, aboriginal, maoli people of Hawaii.” Haw. Rev. Stat. 10H-1 (2015);
In June 2014, the Department issued an Advance Notice of Proposed Rulemaking (ANPRM) titled “Procedures for Reestablishing a Government-to-Government Relationship with the Native Hawaiian Community.” 79 FR 35,296-303 (June 20, 2014). The ANPRM sought input from leaders and members of the Native Hawaiian community and federally recognized tribes in the continental United States about whether and, if so, how the Department should facilitate the reestablishment of a formal government-to-government relationship with the Native Hawaiian community. The ANPRM asked five threshold questions: (1) Should the Secretary propose an administrative rule that would facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community? (2) Should the Secretary assist the Native Hawaiian community in reorganizing its government, with which the United States could reestablish a government-to-government relationship? (3) If so, what process should be established for drafting and ratifying a reorganized government's constitution or other governing document? (4) Should the Secretary instead rely on the reorganization of a Native Hawaiian government through a process established by the Native Hawaiian community and facilitated by the State of Hawaii, to the extent such a process is consistent with Federal law? (5) If so, what conditions should the Secretary establish as prerequisites to Federal acknowledgment of a government-to-government relationship with the reorganized Native Hawaiian government? The Department posed 19 additional, specific questions concerning the reorganization of a Native Hawaiian government and a Federal process for reestablishing a formal government-to-government relationship. The ANPRM marked the beginning of ongoing discussions with the Native Hawaiian community, consultations with federally recognized tribes in the continental United States, and input from the public at large.
The Department received over 5,100 written comments by the August 19, 2014 deadline, more than half of which were identical postcards submitted in support of reestablishing a government-to-government relationship through Federal rulemaking. In addition, the Department received general comments, both supporting and opposing the ANPRM, from individual members of the public, Members of Congress, State legislators, and community leaders. All comments received on the ANPRM are available in the ANPRM docket at
After careful review and analysis of the comments on the ANPRM, the Department concludes that it is appropriate to propose a Federal rule that would set forth an administrative procedure and criteria by which the Secretary could reestablish a formal government-to-government relationship between the United States and the Native Hawaiian community.
A total of 5,164 written comments were submitted for the record. Comments came from Native Hawaiian organizations, national organizations, Native Hawaiian and non-Native-Hawaiian individuals, academics, student organizations, nongovernmental organizations, the Hawaiian Affairs Caucus of the Hawaii State Legislature, State legislators, Hawaiian Civic Clubs and their members, Alii Trusts, Royal Orders, religious orders, a federally recognized Indian tribe, intertribal organizations, an Alaska Native Corporation, and Members of the United States Congress, including the Hawaii delegation to the 113th Congress, as well as former U.S. Senator Akaka. The Department appreciates the interest and insight reflected in all the submissions and has considered them carefully.
A large majority of commenters supported a Federal rulemaking to facilitate reestablishment of a formal government-to-government relationship. At the same time, commenters also expressed strong support for reorganizing a Native Hawaiian government without assistance from the United States and urged the Federal Government to instead promulgate a rule tailored to a government reorganized by the Native Hawaiian community. The Department agrees: The process of drafting a constitution or other governing document and reorganizing a government should be driven by the Native Hawaiian community, not by the United States. The process should be fair and inclusive and reflect the will of the Native Hawaiian community.
To the extent that these comments suggest that the Department must reestablish a government-to-government relationship with a government that includes non-Native Hawaiians as members, that result is precluded by longstanding Congressional definitions of Native Hawaiians, which require a demonstration of descent from the population of Hawaii as it existed before Western contact. That requirement is consistent with Federal law that generally requires members of a native group or tribe to show an ancestral connection to the indigenous group in question.
The Department is an agency of the United States Government. The Department's authority to issue this proposed rule and any final rule derives from the United States Constitution and from Acts of Congress, and the Department has no authority outside that structure. The Department is bound by Congressional enactments concerning the status of Hawaii. Under those enactments and under the United States Constitution, Hawaii is a State of the United States of America.
In the years following the 1893 overthrow of the Hawaiian monarchy, Congress annexed Hawaii and established a government for the Territory of Hawaii.
The Apology Resolution, however, did not effectuate any changes to existing law.
a. The proposed rule defines the term “HHCA-eligible Native Hawaiians” to include any Native Hawaiian individual who meets the definition of “native Hawaiian” in the HHCA, regardless of whether the individual resides on Hawaiian home lands, is an HHCA lessee, is on a wait list for an HHCA lease, or receives any benefits under the HHCA.
b. The proposed rule requires that the Native Hawaiian constitution or other governing document be approved in a ratification referendum not only by a majority of Native Hawaiians who vote, but also by a majority of HHCA-eligible Native Hawaiians who vote; and both majorities must include enough voters to demonstrate broad-based community support. This ratification process effectively eliminates any risk that the United States would reestablish a formal relationship with a Native Hawaiian government whose form is objectionable to HHCA-eligible Native Hawaiians. The Department expects that the participation of HHCA-eligible Native Hawaiians in the referendum process will ensure that the structure of any ratified Native Hawaiian government will include long-term protections for HHCA-eligible Native Hawaiians.
c. The proposed rule prohibits the Native Hawaiian government's membership criteria from excluding any HHCA-eligible Native Hawaiian citizen who wishes to be a member.
d. The proposed rule requires that the governing document protect and preserve rights, protections, and benefits under the HHCA.
e. The proposed rule leaves intact rights, protections, and benefits under the HHCA.
f. The proposed rule does not authorize the Native Hawaiian government to sell, dispose of, lease, or encumber Hawaiian home lands or interests in those lands.
g. The proposed rule does not diminish any Native Hawaiian's rights or immunities, including any immunity from State or local taxation, under the HHCA.
This approach also had significant support among commenters. The proposed rule therefore would authorize reestablishing a formal government-to-government relationship with a single representative sovereign Native Hawaiian government. That Native Hawaiian government, however, may adopt either a centralized structure or a decentralized structure with political subdivisions defined by island, by geographic districts, historic circumstances, or otherwise in a fair and reasonable manner.
Moreover, Congress's 150-plus enactments, including those in recent decades, for the benefit of the Native Hawaiian community establish that the community is federally “acknowledged” or “recognized” by Congress. Thus, unlike Part 83 petitioners, the Native Hawaiian community already has a special political and trust relationship with the United States. What remains in question is how the Department could determine whether a Native Hawaiian government that comes forward legitimately represents that community and therefore is entitled to conduct relations with the United States on a formal government-to-government basis. This question is complex, and the Department welcomes public comment as to whether any additional elements should be included in the process that the Department proposes.
Consistent with Sections 5(b)(2)(B) and 5(c)(2) of Executive Order 13175, and because the Department consulted with tribal officials in the continental United States prior to publishing this proposed rule, the Department seeks to assist tribal officials, and the public as a whole, by including in this preamble the three key elements of a tribal summary impact statement. Specifically, the preamble to this proposed rule (1) describes the extent of the Department's prior consultation with tribal officials; (2) summarizes the nature of their concerns and the Department's position supporting the need to issue the proposed rule; and (3)
The term “Indian” has been used historically in reference to indigenous peoples throughout the United States despite their distinct socio-political and cultural identities. Congress, however, has distinguished between Indian tribes in the continental United States and Native Hawaiians when it has provided programs, services, and benefits. Congress, in the Federally Recognized Indian Tribe List Act of 1994, 108 Stat. 4791, defined “Indian tribe” broadly as an entity the Secretary acknowledges to exist as an Indian tribe but limited the list published under the List Act to those governmental entities entitled to programs and services because of their status as Indians. 25 U.S.C. 479a(2), 479a-1(a). The Department seeks public comment on the scope and implementation of this distinction, and which references to “tribes” and “Indians” would encompass the Native Hawaiian Governing Entity and its members.
Further, given Congress's express intention to have the Department's Assistant Secretary for Policy, Management and Budget (PMB) oversee Native Hawaiian matters, as evidenced in the HHLRA, Act of November 2, 1995, sec. 206, 109 Stat. 363, the Assistant Secretary—PMB, not the Assistant Secretary—Indian Affairs, would be responsible for implementing this proposed rule.
The proposed rule reflects the totality of the comments urging the Department to promulgate a rule announcing a procedure and criteria by which the Secretary could reestablish a formal government-to-government relationship with the Native Hawaiian community. If the Department ultimately promulgates a final rule along the lines proposed here, the Department intends to rely on that rule as the sole administrative avenue for reestablishing a formal government-to-government relationship with the Native Hawaiian community.
The authority to issue this rule is vested in the Secretary by 25 U.S.C. 2, 9, 479a, 479a-1; Act of November 2, 1994, sec. 103, 108 Stat. 4791; 43 U.S.C. 1457; and 5 U.S.C. 301.
In accordance with the wishes of the Native Hawaiian community as expressed in the comments on the ANPRM, the proposed rule would not involve the Federal Government in convening a constitutional convention, in drafting a constitution or other governing document for the Native Hawaiian government, in registering voters for purposes of ratifying that document or in electing officers for that government. Any government reorganization would instead occur through a fair and inclusive community-driven process. The Federal Government's only role is deciding whether to reestablish a formal government-to-government relationship with a reorganized Native Hawaiian government.
Moreover, if a Native Hawaiian government reorganizes, it will be for that government to decide whether to seek to reestablish a formal government-to-government relationship with the United States. The process established by this rule would be optional, and Federal action would occur only upon an express formal request from the newly reorganized Native Hawaiian government.
Existing Federal Legal Framework. In adopting this rulemaking, the Department must adhere to the legal framework that Congress already established, as discussed above, to govern relations with the Native Hawaiian community. The existing body of legislation makes plain that Congress determined repeatedly, over a period of almost a century, that the Native Hawaiian population is an existing Native community that is within the scope of the Federal Government's powers over Native American affairs and with which the United States has an ongoing special political and trust relationship.
Congress has employed two definitions of “Native Hawaiians,” which the proposed rule labels as “HHCA-eligible Native Hawaiians” and “Native Hawaiians.” The former is a subset of the latter, so every HHCA-eligible Native Hawaiian is by definition a Native Hawaiian. But the converse is not true: Some Native Hawaiians are not HHCA-eligible Native Hawaiians.
Individuals falling within the definition of “HHCA-eligible Native Hawaiians” are beneficiaries or potential beneficiaries of the HHCA, as amended. They are eligible for a set of benefits under the HHCA and are, or could become, the beneficiaries of a program initially established by Congress in 1921 and now managed by the State of Hawaii (subject to certain limitations set forth in Federal law). As used in the proposed rule, the term “HHCA-eligible Native Hawaiian” means a Native Hawaiian individual who meets the definition of “native Hawaiian” in HHCA sec. 201(a)(7), 42 Stat. 108 (1921), and thus has at least 50 percent Native Hawaiian ancestry, which results from marriages within the community, regardless of whether the individual resides on Hawaiian home lands, is an HHCA lessee, is on a wait list for an HHCA lease, or receives any benefits under the HHCA. To satisfy this definition would require some sort of record or documentation demonstrating eligibility under HHCA sec. 201(a)(7), such as enumeration in official Department of Hawaiian Home Lands (DHHL) records demonstrating eligibility under the HHCA. Although the proposed rule does not approve reliance on a sworn statement signed under penalty of perjury, the Department would like to receive public comment on whether there are circumstances in which the final rule should do so.
The term “Native Hawaiian,” as used in the proposed rule, means an individual who is a citizen of the United States and a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii. This definition flows directly from multiple Acts of Congress.
In keeping with the framework created by Congress, the rule that the Department proposes requires that, to reestablish a formal government-to-government relationship with the United States, a Native Hawaiian government must have a constitution or other governing document ratified both by a majority vote of Native Hawaiians and by a majority vote of those Native Hawaiians who qualify as HHCA-eligible Native Hawaiians. Thus, regardless of which Congressional definition is used, a majority of the voting members of the community with which Congress established a trust relationship through existing legislation will confirm their support for the Native Hawaiian government's structure and fundamental organic law.
Ratification Process. The proposed rule sets forth certain requirements for the process of ratifying a constitution or other governing document, including requirements that the ratification referendum be free and fair, that there be public notice before the referendum occurs, and that there be a process for ensuring that all voters are actually eligible to vote.
The actual form of the ratification referendum is not fixed in the proposed rule; the Native Hawaiian community may determine the form within parameters. The ratification could be an integral part of the process by which the Native Hawaiian community adopts its governing document, or the referendum could take the form of a special election held solely for the purpose of measuring Native Hawaiian support for a governing document that was adopted through other means. The ratification referendum must result in separate vote tallies for (a) HHCA-eligible Native Hawaiian voters and (b) all Native Hawaiian voters.
To ensure that the ratification vote reflects the views of the Native Hawaiian community generally, there is a requirement that the turnout in the ratification referendum be sufficiently large to demonstrate broad-based community support. Even support from a high percentage of the actual voters would not be a very meaningful indicator of broad-based community support if the turnout was minuscule. The proposed rule focuses not on the number of voters who participate in the ratification referendum, but rather on the number who vote in favor of the governing document. The proposed rule creates a strong presumption of broad-based community support if the affirmative votes exceed 50,000, including affirmative votes from at least 15,000 HHCA-eligible Native Hawaiians.
These numbers proposed in the regulations (50,000 and 15,000) are derived from existing estimates of the size of those populations, adjusted for typical turnout levels in elections in the State of Hawaii, although the ratification referendum would also be open to eligible Native Hawaiian citizens of the United States who reside outside the State and may vote by absentee or mail-in ballot. The following figures support the proposed rule's reference to 50,000 affirmative votes from Native Hawaiians. According to the 2010 Federal decennial census, there are about 156,000 Native Hawaiians in the United States, including about 80,000 who reside in Hawaii, who self-identified on their census forms as “Native Hawaiian” alone (
In the 1990s, the State of Hawaii's Office of Elections tracked Native Hawaiian status and found that the percentage of Hawaii's registered voters who were Native Hawaiian was rising, from about 14.7 percent in 1992, to 15.5 percent in 1994, to 16.0 percent in 1996, and 16.7 percent in 1998. (This trend is generally consistent with census data showing growth in recent decades in the number of persons identifying as Native Hawaiian.) In the most recent of those elections, in 1998, there were just over 100,000 Native Hawaiian registered voters, about 65,000 of whom actually turned out and cast ballots in that off-year (
Weighing these data, the Department concludes that it is reasonable to expect that a ratification referendum among the Native Hawaiian community in Hawaii would have a turnout somewhere in the range between 60,000 and 100,000, although a figure outside that range is possible. But those figures do not include Native Hawaiian voters who reside outside the State of Hawaii, who also could participate in the referendum; the Department believes that the rate of participation among that group is sufficiently uncertain that their numbers should be significantly discounted when establishing turnout thresholds.
Given these data points, if the number of votes that Native Hawaiians cast in favor of the requester's governing document in a ratification referendum was a majority of all votes cast and exceeded 50,000, the Secretary would be well justified in finding broad-based community support among Native Hawaiians. And if the number of votes that Native Hawaiians cast in favor of the requester's governing document in a ratification referendum fell below 60 percent of that quantity—that is, less than 30,000—it would be reasonable to presume a lack of broad-based community support among Native Hawaiians such that the Secretary would decline to process the request. The 30,000-affirmative-vote threshold represents half of the lower bound of the anticipated turnout of Native Hawaiians residing in the State of Hawaii (
As for the proposed rule's reference to 15,000 affirmative votes from HHCA-eligible Native Hawaiians, that figure is based on the data described above, as well as figures from DHHL and from a survey of Native Hawaiians. According to DHHL's comments on the ANPRM, as of August 2014, there were nearly 10,000 Native Hawaiian families living in homestead communities throughout Hawaii, and 27,000 individual applicants awaiting a homestead lease award. And a significant number of HHCA-eligible Native Hawaiians likely were neither living in homestead communities nor awaiting a homestead lease award. Furthermore, in his concurring opinion in
Multiplying the 50,000-vote threshold by 30 percent results in 15,000; it follows that, if the number of votes cast by HHCA-eligible Native Hawaiians in favor of the requester's governing document in a ratification referendum is a majority of all votes cast by such voters, and also exceeds 15,000, the Secretary would be well justified in finding broad-based community support among HHCA-eligible Native Hawaiians. And if the number of votes cast by HHCA-eligible Native Hawaiians in favor of the requester's governing document in a ratification referendum falls below 60 percent of that quantity—that is, less than 9,000—it would be reasonable to presume a lack of broad-based community support among HHCA-eligible Native Hawaiians such that the Secretary would decline to process the request.
The Department seeks public comment on whether these parameters are appropriate to measure broad-based support in the Native Hawaiian community for a Native Hawaiian government's constitution or other governing document, and on whether different sources of population data should also be considered.
The Native Hawaiian Government's Constitution or Governing Document. The form or structure of the Native Hawaiian government is left for the community to decide. Section 50.13 of the proposed rule does, however, set forth certain minimum requirements for reestablishing a formal government-to-government relationship with the United States. The constitution or other governing document of the Native Hawaiian government must provide for “periodic elections for government offices,” describe procedures for proposing and ratifying constitutional amendments, and not violate Federal law, among other requirements.
The governing document must also provide for the protection and preservation of the rights of HHCA beneficiaries. In addition, the governing document must protect and preserve the liberties, rights, and privileges of all persons affected by the Native Hawaiian government's exercise of governmental powers in accordance with the Indian Civil Rights Act of 1968, as amended (25 U.S.C. 1301
As to potential concerns that a subsequent amendment to a governing
Membership Criteria. As the Supreme Court explained, a Native community's “right to define its own membership . . . has long been recognized as central to its existence as an independent political community.”
Single Government. The rule provides for reestablishment of relations with only a single sovereign Native Hawaiian government. This limitation is consistent with Congress's enactments with respect to Native Hawaiians, which treat members of the Native Hawaiian community as a single indigenous people. It is also consistent with the wishes of the Native Hawaiian community as expressed in comments on the ANPRM. Again, the Native Hawaiian community will decide what form of government to adopt, and may provide for political subdivisions if they so choose.
The Formal Government-to-Government Relationship. Because statutes such as the National Historic Preservation Act of 1966, the Native American Graves Protection and Repatriation Act, and the HHLRA established processes for interaction between the Native Hawaiian community and the U.S. government that in certain limited ways resemble a government-to-government relationship, the proposed rule refers to reestablishment of a “formal” government-to-government relationship, the same as the relationship with federally recognized tribes in the continental United States.
Submission and Processing of the Request. In addition to establishing a set of criteria for the Secretary to apply in reviewing a request from a Native Hawaiian government, the rule sets out the procedure by which the Department will receive and process a request seeking to reestablish a formal government-to-government relationship. This rule includes processes for submitting a request, for public comment on any request received, and for issuing a final decision on the request.
Other Provisions. The proposed rule also contains provisions governing technical assistance, clarifying the implementation of the formal government-to-government relationship, and addressing similar issues. The proposed rule explains that the government-to-government relationship with the Native Hawaiian Governing Entity is the same as that with federally recognized tribes in the continental United States. Accordingly, the government-to-government relationship with the Native Hawaiian Governing Entity would have very different characteristics from the government-to-government relationship that formerly existed with the Kingdom of Hawaii. The Native Hawaiian Governing Entity would remain subject to the same authority of Congress and the United States to which those tribes are subject and would remain ineligible for Federal Indian programs, services, and benefits (including funding from the Bureau of Indian Affairs and the Indian Health Service) unless Congress expressly declared otherwise.
The proposed rule also clarifies that neither this rulemaking nor granting a request submitted under the proposed rule would affect the rights of HHCA beneficiaries or the status of HHCA lands. Section 50.44(f) makes clear that reestablishment of the formal government-to-government relationship will not affect title, jurisdiction, or status of Federal lands and property in Hawaii. This provision does not affect lands owned by the State of Hawaii or provisions of State law.
An integral part of this rulemaking process is the opportunity for Department officials to meet with leaders and members of the Native Hawaiian community. Likewise, a central feature of the government-to-government relationships between the United States and each federally recognized tribe in the continental United States is formal consultation between Federal and tribal officials. The Department conducts these tribal consultations in accordance with Executive Order 13175, 65 FR 67249 (Nov. 6, 2000); the Presidential Memorandum for the Heads of Executive Departments and Agencies on Tribal Consultation, 74 FR 57881 (Nov. 5, 2009); and the Department of the Interior Policy on Consultation with Indian Tribes. Tribal consultations are only for elected or duly appointed representatives of federally recognized tribes in the continental United States, as discussions are held on a government-to-government basis. These sessions may be closed to the public.
Shortly after the ANPRM's June 2014 publication in the
To build on the extensive record gathered during the ANPRM, the Department will hold teleconferences to collect public comment on the proposed rule. The Department will also consult with Native Hawaiian organizations and with federally recognized tribes in the continental United States by teleconference. Interested individuals may also submit written comments on this proposed rule at any time during the comment period. The Department will consider statements made during the teleconferences and will include them in the administrative record along with the written comments. The Department strongly encourages Native Hawaiian organizations and federally recognized tribes in the continental United States to hold their own meetings to develop comments on this proposed rule, and to share the outcomes of those meetings with us.
1.
2.
3.
Further information about these meetings, and notice of any additional meetings, will be posted on the ONHR Web site (
Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA determined that this proposed rule is significant because it may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Executive Order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. The Department developed this proposed rule in a manner consistent with these requirements.
The Department certifies that this proposed rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This proposed rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. It will not result in the expenditure by State, local, or tribal governments in the aggregate, or by the private sector, of $100 million or more in any one year. The rule's requirements will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. Nor will this rule have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This proposed rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector
Under the criteria in Executive Order 12630, this proposed rule does not affect individual property rights protected by the Fifth Amendment nor does it involve a compensable “taking.” A takings implications assessment therefore is not required.
Under the criteria in Executive Order 13132, this proposed rule has no substantial and 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. A federalism implications assessment therefore is not required.
This proposed rule complies with the requirements of Executive Order 12988. Specifically, this rule has been reviewed to eliminate errors and ambiguity and written to minimize litigation; and is written in clear language and contains clear legal standards.
Under Executive Order 13175, the Department held several consultation sessions with federally recognized tribes in the continental United States. Details on these consultation sessions and on comments the Department received from tribes and intertribal organizations are described above. The Department considered each of those comments and addressed them, where possible, in the proposed rule.
This proposed rule does not require an information collection from ten or more parties, and a submission under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
This proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment because it is of an administrative, technical, or procedural nature.
In developing this proposed rule we did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).
This proposed rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required. This rule will not have a significant effect on the nation's energy supply, distribution, or use.
Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, require the Department to write all rules in plain language. This means that each rule the Department publishes must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that the Department did not met these requirements, please send comments by one of the methods listed in the “COMMENTS” section. To better help the Department revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you believe lists or tables would be useful, etc.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask the Department in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
If you send an email comment directly to the Department without going through
The Department cannot ensure that comments received after the close of the comment period (
Administrative practice and procedure, Indians—tribal government.
For the reasons stated in the preamble, the Department of the Interior proposes to amend title 43 of the Code of Federal Regulations by adding part 50 to read as follows:
5 U.S.C. 301; 25 U.S.C. 2, 9, 479a, 479a-1; 43 U.S.C. 1457; Hawaiian Homes Commission Act, 1920 (Act of July 9, 1921, 42 Stat. 108), as amended; Act of March 19, 1959, 73 Stat. 4; Joint Resolution of November 23, 1993, 107 Stat. 1510; Act of November 2, 1994, sec. 103, 108 Stat. 4791; 112 Departmental Manual 28.
This part sets forth the Department's administrative procedure and criteria for reestablishing a formal government-to-government relationship between the United States and the Native Hawaiian community to allow the United States to more effectively implement and administer:
(a) The special political and trust relationship that Congress established between the United States and the Native Hawaiian community; and
(b) The Federal programs, services, and benefits that Congress created specifically for the Native Hawaiian community (
A Native Hawaiian government seeking to reestablish a formal government-to-government relationship with the United States under this part must submit to the Secretary a request as described in § 50.10. Reestablishment of a formal government-to-government relationship will occur if the Secretary grants the request as described in §§ 50.40 through 50.43.
The Secretary will reestablish a formal government-to-government relationship with only one sovereign Native Hawaiian government, which may include political subdivisions with limited powers of self-governance defined in the Native Hawaiian government's governing document.
As used in this part, the following terms have the meanings given in this section:
(1) Citizen of the United States, and
(2) Descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii.
A request must include the following seven elements:
(a) A written narrative with supporting documentation thoroughly describing how the Native Hawaiian community drafted the governing document, as described in § 50.11;
(b) A written narrative with supporting documentation thoroughly describing how the Native Hawaiian community determined who can
(c) The duly ratified governing document, as described in § 50.13;
(d) A written narrative with supporting documentation thoroughly describing how the Native Hawaiian community adopted or approved the governing document in a ratification referendum, as described in § 50.14;
(e) A written narrative with supporting documentation thoroughly describing how and when elections were conducted for government offices identified in the governing document, as described in § 50.15;
(f) A duly enacted resolution of the governing body authorizing an officer to certify and submit to the Secretary a request seeking the reestablishment of a formal government-to-government relationship with the United States; and
(g) A certification, signed and dated by the authorized officer, stating that the submission is the request of the governing body.
The written narrative thoroughly describing the process for drafting the governing document must describe how the process ensured that the document was based on meaningful input from representative segments of the Native Hawaiian community and reflects the will of the Native Hawaiian community.
The written narrative thoroughly describing how the Native Hawaiian community determined who could participate in ratifying a governing document must explain the processes for verifying that participants were Native Hawaiians and for verifying those who were also HHCA-eligible Native Hawaiians, and should further explain how those processes were rational and reliable. For purposes of determining who may participate in the ratification process:
(a) The Native Hawaiian community may provide:
(1) That the definition for a Native Hawaiian may be satisfied by:
(i) Enumeration in official DHHL records demonstrating eligibility under the HHCA, excluding noncitizens of the United States;
(ii) Enumeration on a roll of Native Hawaiians certified by a State of Hawaii commission or agency under State law, where enumeration is based on documentation that verifies descent, excluding noncitizens of the United States; or
(iii) Other means to document generation-by-generation descent from a Native Hawaiian; and
(2) That the definition for an HHCA-eligible Native Hawaiian may be satisfied by:
(i) Enumeration in official DHHL records demonstrating eligibility under the HHCA, excluding noncitizens of the United States; or
(ii) Other records or documentation demonstrating eligibility under the HHCA; or
(b) The Native Hawaiian community may use a roll of Native Hawaiians certified by a State of Hawaii commission or agency under State law as an accurate and complete list of Native Hawaiians eligible to vote in the ratification referendum:
(1) The roll was:
(i) Based on documentation that verified descent;
(ii) Compiled in accordance with applicable due-process principles; and
(iii) Published and made available for inspection following certification; and
(2) The Native Hawaiian community also:
(i) Included adult citizens of the United States who demonstrated eligibility under the HHCA according to official DHHL records;
(ii) Removed persons who are not citizens of the United States;
(iii) Removed persons who were younger than 18 years of age on the last day of the ratification referendum;
(iv) Removed persons who were enumerated without documentation that verified descent; and
(v) Removed persons who voluntarily requested to be removed.
The governing document must:
(a) State the government's official name;
(b) Prescribe the manner in which the government exercises its sovereign powers;
(c) Establish the institutions and structure of the government, and of its political subdivisions (if any) that are defined in a fair and reasonable manner;
(d) Authorize the government to negotiate with governments of the United States, the State of Hawaii, and political subdivisions of the State of Hawaii, and with non-governmental entities;
(e) Provide for periodic elections for government offices identified in the governing document;
(f) Describe the criteria for membership, which:
(1) Must permit HHCA-eligible Native Hawaiians to enroll;
(2) May permit Native Hawaiians who are not HHCA-eligible Native Hawaiians, or some defined subset of that group that is not contrary to Federal law, to enroll;
(3) Must exclude persons who are not Native Hawaiians;
(4) Must establish that membership is voluntary and may be relinquished voluntarily; and
(5) Must exclude persons who voluntarily relinquished membership.
(g) Protect and preserve Native Hawaiians' rights, protections, and benefits under the HHCA and the HHLRA;
(h) Protect and preserve the liberties, rights, and privileges of all persons affected by the government's exercise of its powers,
(i) Describe the procedures for proposing and ratifying amendments to the governing document; and
(j) Not contain provisions contrary to Federal law.
The written narrative thoroughly describing the ratification referendum must include the following information:
(a) A certification of the results of the ratification referendum including:
(1) The date or dates of the ratification referendum;
(2) The number of Native Hawaiians, regardless of whether they were HHCA-eligible Native Hawaiians, who cast a vote in favor of the governing document;
(3) The total number of Native Hawaiians, regardless of whether they were HHCA-eligible Native Hawaiians, who cast a ballot in the ratification referendum;
(4) The number of HHCA-eligible Native Hawaiians who cast a vote in favor of the governing document; and
(5) The total number of HHCA-eligible Native Hawaiians who cast a ballot in the ratification referendum.
(b) A description of how the Native Hawaiian community conducted the ratification referendum that demonstrates:
(1) How and when the Native Hawaiian community made the full text of the proposed governing document (and a brief impartial description of that document) available to Native Hawaiians prior to the ratification referendum, through the Internet, the news media, and other means of communication;
(2) How and when the Native Hawaiian community notified Native Hawaiians about how and when it
(3) How the Native Hawaiian community accorded Native Hawaiians a reasonable opportunity to vote in the ratification referendum;
(4) How the Native Hawaiian community prevented voters from casting more than one ballot in the ratification referendum; and
(5) How the Native Hawaiian community ensured that the ratification referendum:
(i) Was free and fair;
(ii) Was held by secret ballot or equivalent voting procedures;
(iii) Was open to all persons who were verified as satisfying the definition of a Native Hawaiian (consistent with § 50.12) and were 18 years of age or older, regardless of residency;
(iv) Did not include in the vote tallies votes cast by persons who were not Native Hawaiians; and
(v) Did not include in the vote tallies for HHCA-eligible Native Hawaiians votes cast by persons who were not HHCA-eligible Native Hawaiians.
(c) A description of how the Native Hawaiian community verified whether a potential voter in the ratification referendum was a Native Hawaiian and whether that potential voter was also an HHCA-eligible Native Hawaiian, consistent with § 50.12.
The written narrative thoroughly describing how and when elections were conducted for government offices identified in the governing document, including members of the governing body, must show that the elections were:
(a) Free and fair;
(b) Held by secret ballot or equivalent voting procedures; and
(c) Open to all eligible Native Hawaiian members as defined in the governing document.
The Secretary shall grant a request if the Secretary determines that the following exclusive list of eight criteria has been met:
(a) The request includes the seven required elements described in § 50.10;
(b) The process by which the Native Hawaiian community drafted the governing document met the requirements of § 50.11;
(c) The process by which the Native Hawaiian community determined who could participate in ratifying the governing document met the requirements of § 50.12;
(d) The duly ratified governing document, submitted as part of the request, meets the requirements of § 50.13;
(e) The ratification referendum for the governing document met the requirements of § 50.14(b) and (c) and was conducted in a manner not contrary to Federal law;
(f) The elections for the government offices identified in the governing document, including members of the governing body, were consistent with § 50.15 and were conducted in a manner not contrary to Federal law;
(g) The number of votes that Native Hawaiians, regardless of whether they were HHCA-eligible Native Hawaiians, cast in favor of the governing document exceeded half of the total number of ballots that Native Hawaiians cast in the ratification referendum:
(h) The number of votes that HHCA-eligible Native Hawaiians cast in favor of the governing document exceeded half of the total number of ballots that HHCA-eligible Native Hawaiians cast in the ratification referendum:
A request under this part may be submitted to the Department of the Interior, 1849 C Street NW., Washington, DC 20240.
Yes. The Department may provide technical assistance to facilitate compliance with this part and with other Federal law, upon request for assistance.
(a) Within 20 days after receiving a request that is consistent with § 50.10 and § 50.16(g)-(h), the Department will publish notice of receipt of the request in the
(1) The request, including the governing document;
(2) The name and mailing address of the requester;
(3) The date of receipt; and
(4) Notice of an opportunity for the public, within a 30-day comment period following the Web site posting, to submit comments and evidence on whether the request meets the criteria described in § 50.16.
(b) Within 10 days after the close of the comment period, the Department will post on its Web site any comment or notice of evidence relating to the request that was timely submitted to the Department under paragraph (a)(4) of this section.
Following the Web site posting described in § 50.30(b), the requester will have 30 days to respond to any comment or evidence that was timely submitted to the Department under § 50.30(a)(4).
Yes. Upon a finding of good cause, the Secretary may extend any deadline in this part by posting on the Department Web site and publishing in the
The Secretary may request additional documentation and explanation with respect to material required to be submitted by the requester under this part. The Secretary will apply the criteria described in § 50.16 and endeavor to either grant or deny a request within 120 days of determining
The decision will respond to significant public comments and summarize the evidence, reasoning, and analyses that are the basis for the Secretary's determination regarding whether the request meets the criteria described in § 50.16.
The Secretary's decision will take effect with the publication of a document in the
When a decision granting a request takes effect, the requester will immediately be identified as the Native Hawaiian Governing Entity (or the official name stated in that entity's governing document), the special political and trust relationship between the United States and the Native Hawaiian community will be reaffirmed, and a formal government-to-government relationship will be reestablished with the Native Hawaiian Governing Entity as the sole representative sovereign government of the Native Hawaiian community.
(a) Upon reestablishment of the formal government-to-government relationship, the Native Hawaiian Governing Entity will have the same government-to-government relationship under the United States Constitution and Federal law as the government-to-government relationship between the United States and a federally recognized tribe in the continental United States, and the same inherent sovereign governmental authorities.
(b) The Native Hawaiian Governing Entity will be subject to Congress's plenary authority.
(c) Absent Federal law to the contrary, any member of the Native Hawaiian Governing Entity will be eligible for current Federal Native Hawaiian programs, services, and benefits.
(d) The Native Hawaiian Governing Entity, its political subdivisions (if any), and its members will not be eligible for Federal Indian programs, services, and benefits unless Congress expressly and specifically has declared the Native Hawaiian community, the Native Hawaiian Governing Entity (or the official name stated in that entity's governing document), its political subdivisions (if any), its members, Native Hawaiians, or HHCA-eligible Native Hawaiians to be eligible.
(e) Reestablishment of the formal government-to-government relationship will not authorize the Native Hawaiian Governing Entity to sell, dispose of, lease, or encumber Hawaiian home lands or interests in those lands, or to diminish any Native Hawaiian's rights, protections, or benefits, including any immunity from State or local taxation, granted by:
(1) The HHCA;
(2) The HHLRA;
(3) The Act of March 18, 1959, 73 Stat. 4; or
(4) The Act of November 11, 1993, secs. 10001-10004, 107 Stat. 1418, 1480-84.
(f) Reestablishment of the formal government-to-government relationship will not affect the title, jurisdiction, or status of Federal lands and property in Hawaii.
(g) Nothing in this part impliedly amends, repeals, supersedes, abrogates, or overrules any provision of Federal law, including case law, affecting the privileges, immunities, rights, protections, responsibilities, powers, limitations, obligations, authorities, or jurisdiction of any tribe in the continental United States.
National Highway Traffic Safety Administration (NHTSA), DOT.
Proposed rule; correction.
This document corrects the preamble to a proposed rule published in the
October 1, 2015.
Mr. Otto Matheke, Office of the Chief Counsel (Telephone: 202-366-5253) (Fax: 202-366-3820).
In proposed rule FR Doc. 2015-11756 beginning on page 29458 in the issue of May 21, 2015, make the following correction in the
“The incorporation by reference of certain publications listed in the proposed rule is approved by the Director of the Federal Register as of May 22, 2017.”
Forest Service, USDA.
Notice of meeting.
The Humboldt County Resource Advisory Committee (RAC) will meet in Eureka, California. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. Additional RAC information, including the meeting agenda and the meeting summary/minutes can be found at the following Web site:
The meeting will be held October 27, 2015 at 5:30 p.m.
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at the Six Rivers National Forest Supervisor's Office, Main Conference Room, 1330 Bayshore Drive, Eureka, California.
Written comments may be submitted as described under
Lynn Wright, RAC Coordinator, by phone at 707-441-3562 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is:
• To provide updates regarding status of Secure Rural Schools Title II program and funding and to review and recommend potential projects eligible for funding.
The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by September 8, 2015 to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Lynn Wright, RAC Coordinator 1330 Bayshore Way, Eureka, CA 95501; by email to
On June 1, 2015, the Jacksonville Port Authority, grantee of FTZ 64, submitted a notification of proposed production activity to the FTZ Board on behalf of Saft America Inc., within Site 10, in Jacksonville, Florida.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In accordance with section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) is automatically initiating the five-year review (“Sunset Review”) of the antidumping and countervailing duty (“AD/CVD”) orders listed below. The International Trade Commission (“the Commission”) is publishing concurrently with this notice its notice of
The Department official identified in the
The Department's procedures for the conduct of Sunset Reviews are set forth in its
In accordance with 19 CFR 351.218(c), we are initiating Sunset Reviews of the following antidumping and countervailing duty orders:
As a courtesy, we are making information related to sunset proceedings, including copies of the pertinent statute and Department's regulations, the Department's schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the public on the Department's Web site at the following address: “
This notice serves as a reminder that any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information.
On April 10, 2013, the Department modified two regulations related to AD/CVD proceedings: The definition of factual information (19 CFR 351.102(b)(21)), and the time limits for the submission of factual information (19 CFR 351.301).
Pursuant to 19 CFR 351.103(d), the Department will maintain and make available a public service list for these proceedings. Parties wishing to participate in any of these five-year reviews must file letters of appearance as discussed at 19 CFR 351.103(d). To facilitate the timely preparation of the public service list, it is requested that those seeking recognition as interested parties to a proceeding submit an entry of appearance within 10 days of the publication of the Notice of Initiation.
Because deadlines in Sunset Reviews can be very short, we urge interested parties who want access to proprietary information under administrative protective order (“APO”) to file an APO application immediately following publication in the
Domestic interested parties, as defined in section 771(9)(C), (D), (E), (F), and (G) of the Act and 19 CFR 351.102(b), wishing to participate in a Sunset Review must respond not later than 15 days after the date of publication in the
If we receive an order-specific notice of intent to participate from a domestic interested party, the Department's regulations provide that
This notice of initiation is being published in accordance with section 751(c) of the Act and 19 CFR 351.218(c).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Brenda E. Waters, Office of AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, telephone: (202) 482-4735.
Each year during the anniversary month of the publication of an antidumping or countervailing duty order, finding, or suspended investigation, an interested party, as defined in section 771(9) of the Tariff Act of 1930, as amended (“the Act”), may request, in accordance with 19 CFR 351.213, that the Department of Commerce (“the Department”) conduct an administrative review of that antidumping or countervailing duty order, finding, or suspended investigation.
All deadlines for the submission of comments or actions by the Department discussed below refer to the number of calendar days from the applicable starting date.
In the event the Department limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, the Department intends to select respondents based on U.S. Customs and Border Protection (“CBP”) data for U.S. imports during the period of review. We intend to release the CBP data under Administrative Protective Order (“APO”) to all parties having an APO within five days of publication of the initiation notice and to make our decision regarding respondent selection within 21 days of publication of the initiation
In the event the Department decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, the Department finds that determinations concerning whether particular companies should be “collapsed” (
Pursuant to 19 CFR 351.213(d)(1), a party that requests a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that the Department may extend this time if it is reasonable to do so. In order to provide parties additional certainty with respect to when the Department will exercise its discretion to extend this 90-day deadline, interested parties are advised that, with regard to reviews requested on the basis of anniversary months on or after October 2015, the Department does not intend to extend the 90-day deadline unless the requestor demonstrates that an extraordinary circumstance prevented it from submitting a timely withdrawal request. Determinations by the Department to extend the 90-day deadline will be made on a case-by-case basis.
The Department is providing this notice on its Web site, as well as in its “Opportunity to Request Administrative Review” notices, so that interested parties will be aware of the manner in which the Department intends to exercise its discretion in the future.
In accordance with 19 CFR 351.213(b), an interested party as defined by section 771(9) of the Act may request in writing that the Secretary conduct an administrative review. For both antidumping and countervailing duty reviews, the interested party must specify the individual producers or exporters covered by an antidumping finding or an antidumping or countervailing duty order or suspension agreement for which it is requesting a review. In addition, a domestic interested party or an interested party described in section 771(9)(B) of the Act must state why it desires the Secretary to review those particular producers or exporters. If the interested party intends for the Secretary to review sales of merchandise by an exporter (or a producer if that producer also exports merchandise from other suppliers) which was produced in more than one country of origin and each country of origin is subject to a separate order, then the interested party must state specifically, on an order-by-order basis, which exporter(s) the request is intended to cover.
Note that, for any party the Department was unable to locate in prior segments, the Department will not accept a request for an administrative review of that party absent new information as to the party's location. Moreover, if the interested party who files a request for review is unable to locate the producer or exporter for which it requested the review, the interested party must provide an explanation of the attempts it made to locate the producer or exporter at the same time it files its request for review, in order for the Secretary to determine if the interested party's attempts were reasonable, pursuant to 19 CFR 351.303(f)(3)(ii).
As explained in
Further, as explained in
Following initiation of an antidumping administrative review when there is no review requested of the NME entity, the Department will instruct CBP to liquidate entries for all exporters not named in the initiation notice, including those that were suspended at the NME entity rate.
All requests must be filed electronically in Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”) on Enforcement and Compliance's ACCESS Web site at
The Department will publish in the
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period of the order, if such a gap period is applicable to the period of review.
This notice is not required by statute but is published as a service to the international trading community.
International Trade Administration, Department of Commerce.
Notice.
The United States Department of Commerce, International Trade Administration, is amending the Notice published at 80 FR 46243 (August 4, 2015), regarding the executive-led Smart Cities Infrastructure Business Development Mission to India, February 8-12, 2016, to extend the date of the application deadline from November 10, 2015 to the new deadline of November 20, 2015 and to specify that Deputy Secretary Bruce Andrews will be the executive lead.
Amendments to Revise the Dates and Executive Leadership.
The executive lead for this mission will be Deputy Secretary of Commerce, Bruce Andrews. Due to this leadership update, it has been determined that additional time is needed to allow for additional recruitment and marketing in support of the Mission. Applications will now be accepted through November 20, 2015 (and after that date if space remains and scheduling constraints permit). Interested U.S. companies and trade associations/organizations providing infrastructure goods and services which have not already submitted an application are encouraged to do so.
We will be conducting our vetting process at different intervals before November 20, 2015, as applications are received they may be viewed prior to the November 20 deadline.
The applicants selected will be notified by December 4, 2015.
Jessica Dulkadir, International Trade Specialist, Trade Missions, U.S. Department of Commerce, Washington, DC 20230, Tel: 202-482-2026, Fax: 202-482-9000,
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Every five years, pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) and the International Trade Commission automatically initiate and conduct a review to determine whether revocation of a countervailing or antidumping duty order or termination of an investigation suspended under section 704 or 734 of the Act would be likely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) and of material injury.
The following Sunset Reviews are scheduled for initiation in November 2015 and will appear in that month's Notice of Initiation of Five-Year Sunset Review (“Sunset Review”).
No Sunset Review of countervailing duty orders is scheduled for initiation in November 2015.
No Sunset Review of suspended investigations is scheduled for initiation in November 2015.
The Department's procedures for the conduct of Sunset Reviews are set forth in 19 CFR 351.218. The Notice of Initiation of Five-Year (“Sunset”) Reviews provides further information regarding what is required of all parties to participate in Sunset Reviews.
Pursuant to 19 CFR 351.103(c), the Department will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact the Department in writing within 10 days of the publication of the Notice of Initiation.
Please note that if the Department receives a Notice of Intent to Participate from a member of the domestic industry within 15 days of the date of initiation, the review will continue. Thereafter, any interested party wishing to participate in the Sunset Review must provide substantive comments in response to the notice of initiation no later than 30 days after the date of initiation.
This notice is not required by statute but is published as a service to the international trading community.
Stewardship Division, Office for Coastal Management, National Ocean Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce.
Notice.
Notice is hereby given that the Stewardship Division, Office for Coastal Management, National Ocean Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce is announcing a thirty day public comment period for the Mission-Aransas, Texas National Estuarine Research Reserve Management Plan revision. Pursuant to 15 CFR 921.33(c), the revised plan will bring the reserve into compliance. The Mission-Aransas Reserve revised plan will replace the plan approved in 2006.
The revised management plan outlines the administrative structure; the research/monitoring, stewardship, education, and training programs of the reserve; and the plans for future land acquisition and facility development to support reserve operations.
The Mission-Aransas Reserve takes an integrated approach to management, linking research, education, coastal training, and stewardship functions. The Reserve has outlined how it will manage administration and its core program providing detailed actions that will enable it to accomplish specific goals and objectives. Since the last management plan, the Reserve has built out its core programs and monitoring infrastructure; constructed several facilities including a L.E.E.D. certified Estuarine Research Center that serves as the reserve headquarters and includes laboratories, offices, classrooms, interpretative areas and dormitories; and built new partnerships with organizations along the Coastal Bend of Texas.
With the approval of this management plan, the Mission-Aransas Reserve will increase their total acreage from 185,708 acres to 186,189. The change is attributable to the recent acquisitions of several parcels by Reserve partners, totaling 481 acres. All of the proposed additions are owned by existing Reserve partners and will be managed for long-term protection and conservation value. These parcels have high ecological value and will enhance the Reserve's ability to provide increased opportunities for research, education, and stewardship. The revised management plan will serve as the guiding document for the expanded 186,189 acre Mission-Aransas Reserve for the next five years.
View the Mission-Aransas, Texas Reserve Management Plan revision at (
Matt Chasse at (301) 563-1198 or Erica Seiden at (301) 563-1172 of NOAA's National Ocean Service, Stewardship Division, Office for Coastal Management, 1305 East-West Highway, N/ORM5, 10th Floor, Silver Spring, MD 20910.
Consumer Product Safety Commission.
Notice.
In accordance with the requirements of the Paperwork
Written comments on this request for extension of approval of information collection requirements should be submitted by November 2, 2015.
Submit comments about this request by email:
For further information contact: Robert H. Squibb, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; (301) 504-7815, or by email to:
CPSC has submitted the following currently approved collection of information to OMB for extension:
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (CNCS) has submitted a public information collection request (ICR) entitled AmeriCorps Member Application for review and approval in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, (44 U.S.C. Chapter 35). Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Erin Dahlin at 202-606-6931 or email to
Comments may be submitted, identified by the title of the information collection activity, within November 2, 2015.
Comments may be submitted, identified by the title of the information collection activity, to the Office of Information and Regulatory Affairs, Attn: Ms. Sharon Mar, OMB Desk Officer for the Corporation for National and Community Service, by any of the following two methods within 30 days from the date of publication in the
(1)
(2)
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the efficient performance of the functions of CNCS, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
A 60-day Notice requesting public comment was published in the
Department of the Army, DoD.
Notice to delete a System of Records Notice.
The Department of the Army is deleting a system of records notice in its existing inventory of record systems subject to the Privacy Act of 1974, as amended. The notice is A0040-3c DASG, Medical Regulating Files.
Comments will be accepted on or before November 2, 2015. This proposed action will be effective the day following the end of the comment period unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
*
*
Ms. Tracy Rogers, Department of the Army, Privacy Office, U.S. Army Records Management and Declassification Agency, 7701 Telegraph Road, Casey Building, Suite 144, Alexandria, VA 22325-3905 or by calling (703) 428-7499.
The Department of the Army systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The Department of the Army proposes to delete a system of records notice from its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. The proposed deletion is 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 a new or altered system report.
Medical Regulating Files (March 27, 2003, 68 FR 14959).
These files have been transferred into the TRANSCOM Joint Medical Evaluation System (TRAC2ES) managed by TRANSCOM. Files are now covered under system of records notice F044 AF TRANSCOM A, Joint Medical Evacuation System (TRAC2ES) (February 21, 2012, 77 FR 9902). Therefore, A0040-3c DASG, Medical Regulating Files can be deleted.
Department of the Army, DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by November 30, 2015.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Department of the Army, Operations & Plans Officer Mortuary Affairs and Casualty Support Division, PERSCOM, (ATTN: Mr. Harold Campbell), 200 Stovall Street, Hoffman I, Alexandria, Virginia 22332-0300, or call the Department of the Army Reports Clearance Officer at (703) 428-6440.
DD Forms 2065 and 1375 are initially prepared by military authorities and presented to the next-of-kin or sponsor to fill-in the reimbursable costs or desired disposition of remains. Without the information on these forms the government would not be able to respond to the survivor's wishes or justify its expenses in handling the deceased. Also available at government expense is transportation of the remains to a port of entry in the United States.
Office of the Administrative Assistant to the Secretary of the Army, (OAA-AAHS), DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by November 30, 2015.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Department of the Army, Institute for Water Resources, Corps of Engineers Waterborne Commerce Statistics Center (CEIWR-NDC-C), P.O. Box 61280,
The information collected is the basic data from which the Corps of Engineers compiles and publish waterborne commerce statistics. The data is used not only to report to Congress, but also to perform cost benefit studies for new projects, and rehabilitation projects. It is also used by other Federal agencies involved in transportation and security. This data collection program is the sole source for domestic navigation statistics.
Department of the Navy, DoD.
Notice.
The Department of the Navy hereby gives notice of its intent to grant to OLII Technology Corporation, a revocable, nonassignable, partially exclusive license in the United States to practice the Government-Owned inventions described in U.S. Patent No. 8369567—“Method for detecting and mapping fires using features extracted from overhead imagery.”
Anyone wishing to object to the grant of this license must file written objections along with supporting evidence, if any, no later than October 16, 2015.
Written objections are to be filed with the Office of Research and Technology Applications, Space and Naval Warfare Systems Center Pacific, Code 72120, 53560 Hull St., Bldg. A33, Room 2531, San Diego, CA 92152-5001.
Brian Suh, Office of Research and Technology Applications, Space and Naval Warfare Systems Center Pacific, Code 72120, 53560 Hull St., Bldg. A33
35 U.S.C. 207, 37 CFR part 404.
Department of the Navy, DOD.
Notice of open meeting.
The Board of Visitors of the Marine Corps University (BOV MCU) will meet to review, develop and provide recommendations on all aspects of the academic and administrative policies of the University; examine all aspects of professional military education operations; and provide such oversight and advice, as is necessary, to facilitate high educational standards and cost effective operations. The Board will be focusing primarily on the internal procedures of Marine Corps University. All sessions of the meeting will be open to the public.
The meeting will be held on Thursday, 15 October from 1200-1600 and 16 October, 2015, from 0800 to 1200.
The meeting will be held at Marine Corps University in Quantico, Virginia. The address is: 2076 South St., Quantico, VA.
Dr. Kim Florich, Director of Faculty Development and Outreach, Marine Corps University Board of Visitors, 2076 South Street, Quantico, Virginia 22134, telephone number 703-432-4682.
National Center for Education Statistics (NCES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before November 2, 2015.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Kashka Kubzdela at (202) 502-7411 or by email
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
National Center for Education Statistics (NCES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before November 2, 2015.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Kashka Kubzdela at (202) 502-7411 or by email
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Fossil Energy, Department of Energy.
Notice of orders.
The Office of Fossil Energy (FE) of the Department of Energy gives notice that during November 2014, it issued orders granting authority to import and export natural gas, and to import and export liquefied natural gas (LNG). These orders are summarized in the attached appendix and may be found on the FE Web site at
Office of Fossil Energy, Department of Energy (DOE).
Notice of orders.
The Office of Fossil Energy (FE) of the Department of Energy gives notice that during October 2014, it issued orders granting authority to import and export natural gas, to import and export liquefied natural gas (LNG), to export compressed natural gas (CNG), to vacate prior authority, to amend application, and errata. These orders are summarized in the attached appendix and may be found on the FE Web site at
They are also available for inspection and copying in the Office of Fossil Energy, Office of Oil and Gas Global Security and Supply, Docket Room 3E-033, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-9478. The Docket Room is open between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of availability and public meeting.
The U.S. Department of Energy (DOE or Department) participates in the public process to develop the International Energy Conservation Code (IECC), as administered by the International Code Council (ICC), and is currently developing proposals for the upcoming 2018 IECC. The Department recently published its draft proposals, which are made available through the DOE Building Energy Codes Program. In addition, DOE invites stakeholders to attend an upcoming meeting to encourage communication amongst stakeholders in preparation for the 2018 IECC development cycle.
DOE will also host a stakeholder meeting for interested parties to present their proposals for the 2018 IECC and to encourage communication amongst stakeholders. The meeting will be held on October 13th & 14th, 2015.
Interested parties wishing to provide feedback on DOE draft proposals for the 2018 IECC must submit comments by October 19, 2015. For more information on how to submit comments, please see the
The meeting will be held at the Crowne Plaza Denver Downtown, 1450 Glenarm Place, Denver, Colorado 80202.
Advanced registration is required for the public meeting. For more information on registering, please see the
The Department's proposals for the 2018 IECC are available at the DOE Building Energy Codes Program Web site:
1.
2.
Jeremiah Williams; U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585; Telephone: (202) 287-1941; Email:
The U.S. Department of Energy (DOE) participates in the public process administered by the International Code Council (ICC) which produces the International Energy Conservation Code (IECC). As a participant in this process, the Department considers and evaluates proposals it is considering submitting as proposed changes to the IECC. DOE published previous notices in the
The Department's draft proposals for the 2018 IECC are now available on the DOE Building Energy Codes Program Web site. The Department will continue to publish information as it becomes available, including updated versions of its proposals and supporting information. As information will be updated continually, interested parties are urged to monitor the Web site and associated stakeholder mailing lists:
Interested parties are invited to submit comments on DOE proposals by email or public docket, as outlined in the
The Department will convene a meeting during which stakeholders can present their proposals for the 2018 IECC. As part of this meeting, DOE will also present its own proposals. The goal of the meeting will be to encourage communication amongst stakeholders. This event is scheduled as follows:
More information on the Department's support for building energy codes, including participation in the development of model codes, is available on the DOE Building Energy Codes Program Web site,
Environmental Protection Agency (EPA).
Notice of Settlement.
Under 122(h) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the United States Environmental Protection Agency has entered into a settlement with the Estate of Charles Joseph Klouda concerning the Klouda Estate Superfund Site located in Fort Valley, Peach County, Georgia. The settlement addresses recovery of CERCLA costs for a cleanup action performed by the EPA at the Site.
The Agency will consider public comments on the settlement until November 2, 2015. 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 amended settlement is inappropriate, improper, or inadequate.
Copies of the settlement are available from the Agency by contacting Ms. Paula V. Painter, Program Analyst using the contact information provided in this notice. Comments may also be submitted by referencing the Site's name through one of the following methods:
•
•
•
Paula V. Painter at 404/562-8887.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit an information collection request (ICR), “Generic Clearance for Citizen Science and Crowdsourcing Projects (New)” (EPA ICR No. 2521.01, OMB Control No. 2080-NEW) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before November 30, 2015.
Submit your comments, referencing Docket ID No. EPA-HQ-ORD-2015-0659 referencing the Docket ID numbers provided for each item in the text, online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Generic Clearance for Citizen Science and Crowdsourcing Projects (New), IOAA-ORD, (Mail Code 8101R), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number 202-564-3262; fax number: 202-565-2494; email address:
Supporting documents which explain in detail the information that the EPA will
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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,
Environmental Protection Agency (EPA).
Notice of meeting.
The United States Environmental Protection Agency is announcing the joint 2014 Fall Meeting of the Ozone Transport Commission (OTC) and the Mid-Atlantic Northeast Visibility Union (MANE-VU). The meeting agenda will include topics regarding reducing ground-level ozone precursors and matters relative to Regional Haze and visibility improvement in Federal Class I areas in a multi-pollutant context.
The meeting will be held on November 5, 2015 starting at 9:15 a.m. and ending at 4:00 p.m.
(LOCATION) Hilton Baltimore at Camden Yards, 401 W. Pratt Street, Baltimore, MD 21201, (443) 573-8700.
Donald Cooke, (617) 918-1668, E-Mail:
The Clean Air Act Amendments of 1990 contain at Section 184 provisions for the Control of Interstate Ozone Air Pollution. Section 184(a) establishes an Ozone Transport Region (OTR) comprised of the States of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, parts of Virginia and the District of Columbia. The purpose of the OTC is to deal with ground-level ozone formation, transport, and control within the OTR.
The Mid-Atlantic/Northeast Visibility Union (MANE-VU) was formed at in 2001, in response to EPA's issuance of the Regional Haze rule. MANE-VU's members include: Connecticut, Delaware, the District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, the Penobscot Indian Nation, the St. Regis Mohawk Tribe along with EPA and Federal Land Managers.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before November 2, 2015. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information or copies of the information collection, contact Nicole Ongele at (202) 418-2991.
To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page
The FCC is now submitting this information collection as a revision to the Office of Management and Budget (OMB) to establish a mandatory Electronic Test Reporting System (ETRS) that EAS Participants must utilize to file identifying and test result data as part of their participation in the second nationwide EAS test. Although the ETRS adopted in this
As the subsequent analysis indicates, this revised collection will cause no change in the burden estimates or reporting and record keeping requirements that the Commission submitted (and which OMB subsequently approved) for the 2011 system. The revised information collection requirements contained in this collection are as follows:
Section 11.21(a) requires EAS Participants to provide the identifying information required by the EAS Test Reporting System (ETRS) no later than sixty days after the publication in the
11:00 a.m., Thursday, October 8, 2015.
The Richard V. Backley Hearing Room, Room 511N, 1331 Pennsylvania Avenue NW., Washington, DC 20004 (enter from F Street entrance).
Open.
The Commission will hear oral argument in the matter
Any person attending this oral argument who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and 2706.160(d).
Emogene Johnson (202) 434-9935/(202) 708-9300 for TDD Relay/1-800-877-8339 for toll free.
10:00 a.m., Thursday, October 8, 2015.
The Richard V. Backley Hearing Room, Room 511N, 1331 Pennsylvania Avenue NW., Washington, DC 20004 (enter from F Street entrance).
Open.
The Commission will hear oral argument in the matter
Any person attending this oral argument who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and 2706.160(d).
Emogene Johnson (202) 434-9935/(202) 708-9300 for TDD Relay/1-800-877-8339 for toll free.
2:00 p.m., Thursday, October 8, 2015.
The Richard V. Backley Hearing Room, Room 511N, 1331 Pennsylvania Avenue NW., Washington, DC 20004 (enter from F Street entrance).
Open.
The Commission will consider and act upon the following in open session:
Any person attending this meeting who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and 2706.160(d).
Emogene Johnson (202) 434-9935/(202) 708-9300 for TDD Relay/1-800-877-8339 for toll free.
3:00 p.m., Thursday, October 8, 2015.
The Richard V. Backley Hearing Room, Room 511N, 1331 Pennsylvania Avenue NW., Washington, DC 20004 (enter from F Street entrance).
Open.
The Commission will consider and act upon the following in open session:
Any person attending this meeting who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and 2706.160(d).
Emogene Johnson (202) 434-9935/(202) 708-9300 for TDD Relay/1-800-877-8339 for toll free.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 30, 2015.
A. Federal Reserve Bank of Boston (Prabal Chakrabarti, Senior Vice President) 600 Atlantic Avenue, Boston, Massachusetts 02210-2204:
1.
B. Federal Reserve Bank of St. Louis (Yvonne Sparks, Community Development Officer) P.O. Box 442, St. Louis, Missouri 63166-2034:
1.
Board of Governors of the Federal Reserve System,
Federal Trade Commission.
Proposed consent agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before October 26, 2015.
Interested parties may file a comment at
Armando Irizarry (202-326-2964) or Karen A. Mills (202-326-2052), Bureau of Competition, 600 Pennsylvania Avenue NW., Washington, DC 20580.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for September 24, 2015), on the World Wide Web, at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before October 26, 2015. Write “National Association of Animal Breeders, Inc.—Consent Agreement; File No. 141 0125” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which . . . is privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “National Association of Animal Breeders, Inc.—Consent Agreement; File No. 141 0125” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
The Federal Trade Commission (“Commission”) has accepted, subject to final approval, an Agreement Containing Consent Order (“Consent Agreement”) from the National Association of Animal Breeders, Inc. (hereinafter “NAAB”). The Commission's complaint (“Complaint”) alleges that NAAB, acting as a combination of its members and in agreement with at least some of its members, restrained competition among its members and others in violation of Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 45. NAAB restrained competition by adopting and maintaining provisions in its Code of Ethics that restrain its members from (1) naming competitors in printed materials that contain certain information about the competitors, and (2) disclosing or publicizing prices of bulls purchased or sold.
Under the terms of the proposed Consent Agreement, NAAB is required to cease and desist from restraining its members from (1) naming members or other competitors when making statements comparing the products and services of a member with the products and services of any other member or competitor, and (2) publicizing or disclosing price information relating to the purchase or sale of animals.
The Commission anticipates that the competitive issues described in the Complaint will be resolved by accepting the proposed order, subject to final approval, contained in the Consent Agreement. The proposed Consent Agreement has been placed on the public record for 30 days for receipt of comments from interested members of the public. Comments received during this period will become part of the public record. After 30 days, the Commission will review the Consent Agreement again and the comments received, and will decide whether it should withdraw from the Consent Agreement or make final the accompanying Decision and Order (“the Proposed Order”).
The purpose of this Analysis to Aid Public Comment is to invite and facilitate public comment. It is not intended to constitute an official interpretation of the proposed Consent Agreement and the accompanying Proposed Order or in any way to modify their terms.
The Consent Agreement is for settlement purposes only and does not constitute an admission by NAAB that the law has been violated as alleged in the Complaint or that the facts alleged in the Complaint, other than jurisdictional facts, are true.
The Complaint makes the following allegations.
NAAB is a non-profit corporation of animal breeders, with about twenty-four regular members, and about twenty-seven non-voting associate members. Many of NAAB's members are organizations in the business of collecting, processing, marketing and selling dairy and beef cattle semen for artificial insemination (“AI”). Members include small, family-owned breeding operations, cooperatives, and multinational corporations.
NAAB maintains a Code of Ethics applicable to the commercial activities of its members. NAAB's bylaws require that members comply with the Code of Ethics. NAAB maintains the following provisions in its Code of Ethics:
• “Member competitors will not be named in printed material comparing averages between members.”
• “The purchase price of sires, purchased at private treaty, by NAAB members shall not be disclosed by the Buyer, and the Seller shall be requested not to quote the selling price. Also, prices of bulls purchased at public auction by AI organizations shall not be quoted in their printed statements, advertising, and/or publicity material.”
NAAB also established a process for receiving complaints about and resolving alleged violations of the Code of Ethics, including by allowing its members to resolve privately disputes arising out of the Code of Ethics, and also by establishing a mechanism by which NAAB may sanction violations of the Code of Ethics.
The Complaint alleges that NAAB has violated Section 5 of the Federal Trade Commission Act by adopting and maintaining provisions in its Code of Ethics that restrain its members from (1) making advertisements comparing AI organizations, and (2) disclosing truthful and non-deceptive information. The Complaint alleges that the purpose, effects, tendency, or capacity of the combination, agreement, acts and practices of NAAB has been and is to restrain competition unreasonably and to injure consumers by discouraging and restricting competition among AI organizations, and by depriving consumers and others of the benefits of free and open competition among AI organizations.
The Proposed Order has the following substantive provisions. Paragraph II
Paragraph III of the Proposed Order requires NAAB to remove from its Web site and organization documents any statement that does not comply with the Proposed Order, and to publish on the Web site any revision to the organization documents. NAAB must publish an announcement that it has changed its Code of Ethics, and a statement describing the Consent Agreement (“the Settlement Statement”). NAAB must distribute the Settlement Statement to NAAB's board of directors, officers, employees, and members. Paragraph III also requires NAAB to provide all new members and all members who receive a membership renewal notice with a copy of the Settlement Statement.
Paragraph IV of the Proposed Order requires NAAB to design, maintain, and operate an antitrust compliance program. NAAB will have to appoint Antitrust Counsel for the duration of the Proposed Order. For a period of five years, NAAB will have to provide in-person annual training to its board of directors, officers, and employees, and conduct a presentation at its annual convention that summarizes NAAB's obligations under the Proposed Order and provides context-appropriate guidance on compliance with the antitrust laws. NAAB must also implement policies and procedures to enable persons to ask questions about, and report violations of, the Proposed Order and the antitrust laws confidentially and without fear of retaliation, and to discipline its board of directors, officers, employees, members, and agents for failure to comply with the Proposed Order.
Paragraphs V-VII of the Proposed Order impose certain standard reporting and compliance requirements on NAAB.
The Proposed Order will expire in 20 years.
By direction of the Commission.
The Centers for Disease Control and Prevention (CDC) has submitted 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 notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) 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; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) 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,
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Information Collection for Tuberculosis Data from Panel Physicians—Existing Collection in Use Without an OMB Control Number—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
The Centers for Disease Control and Prevention's (CDC), National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Division of Global Migration and Quarantine (DGMQ), Immigrant, Refugee, and Migrant Health Branch (IRMH), requests approval for a new information collection to request quarterly reports on certain tuberculosis data from U.S. panel physicians.
The respondents are panel physicians. More than 760 panel physicians perform overseas pre-departure medical examinations in accordance with requirements, referred to as technical instructions, provided by the Centers for Disease Control and Prevention's Division of Global Migration and Quarantine, Quality Assessment Program (QAP). The role of QAP is to assist and guide panel physicians in the implementation of the Technical Instructions; evaluate the quality of the overseas medical examination for U.S.-bound immigrants and refugees; assess potential panel physician sites; and provide recommendations to the U.S. Department of State in matters of immigrant medical screening.
To achieve DGMQ's mission, the Immigrant, Refugee and Migrant Health branch (IRMH) works with domestic and international programs to improve the health of U.S.-bound immigrants and refugees to protect the U.S. public by preventing the importation of infectious disease. These goals are accomplished through IRMH's oversight of medical exams required for all U.S.-bound immigrants and refugees who seek permanent residence in the U.S. IRMH is responsible for assisting and training the international panel physicians with the implementation of medical exam Technical Instructions (TI). Technical Instructions are detailed requirements and national policies regarding the medical screening and treatment of all U.S.-bound immigrants and refugees.
Screening for tuberculosis (TB) is a particularly important component of the immigration medical exam and allows panel physicians to diagnose active TB disease prior to arrival in the United States. As part of the Technical Instructions requirements, panel
CDC currently collects this data based on past understanding of panel physicians as instrumentalities of the federal government. CDC requests OMB approval now to comply with PRA requirements for data collection. CDC is requesting this data to be sent by panel physicians once per year. The consequences of reducing this frequency would be the loss of monitoring program impact and TB burdens in mobile populations and immigrants and refugees coming to the United States on an annual basis. The total hours requested is 2,648. There is no cost to the respondents other than their time.
The activities associated with the CSDES are authorized by (1) 42 U.S.C. 652(a)(7), which requires OCSE to provide technical assistance to the states to help them establish effective systems for collecting child support and spousal support, thereby helping state child support agencies fulfill the federal requirement to transmit requests for child support case information and provide requested information electronically to the greatest extent possible as required by 45 CFR 303.7(a)(5); and (2) 42 U.S.C. 666(c)(1), which requires state child support agencies to have expedited procedures to obtain and promptly share information with other state child support agencies.
In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. Email address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to
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 disabilities. If you require accommodations due to a disability, please contact Jennifer Shepherd at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is requesting that any consumer organizations interested in participating in the selection of voting and/or nonvoting consumer representatives to serve on its advisory committees or panels notify FDA in writing. FDA is also requesting nominations for voting and/or nonvoting consumer representatives to serve on advisory committees and/or panels for which vacancies currently exist or are expected to occur in the near future. Nominees recommended to serve as a voting or nonvoting consumer representative may be self-nominated or may be nominated by a consumer organization. Nominations will be accepted for current vacancies and for those that will or may occur through December 31, 2015.
Any consumer organization interested in participating in the selection of an appropriate voting or nonvoting member to represent consumer interests on an FDA advisory
All statements of interest from consumer organizations interested in participating in the selection process and consumer representative nominations should submit information electronically to
Consumer representative nominations should be submitted electronically by logging into the FDA Advisory Committee Membership Nomination Portal,
Additional information about becoming a member on an FDA advisory committee can also be obtained by visiting FDA's Web site at
Kimberly Hamilton, Advisory Committee Oversight and Management Staff, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 5117, Silver Spring, MD 20993-0002, 301 796-8224, email:
For questions relating to specific advisory committees or panels, contact the persons listed in Table 1:
FDA is requesting nominations for voting and/or nonvoting consumer representatives for the vacancies listed in table 2:
The committee reviews and evaluates data on the safety and effectiveness of marketed and investigational devices and makes recommendations for their regulation. The panels engage in a number of activities to fulfill the functions the Federal Food, Drug, and Cosmetic Act (the FD&C Act) envisions for device advisory panels. With the exception of the Medical Devices Dispute Resolution Panel, each panel, according to its specialty area, advises the Commissioner of Food and Drugs (the Commissioner) regarding recommended classification or reclassification of devices into one of three regulatory categories, advises on any possible risks to health associated with the use of devices, advises on formulation of product development
Reviews and evaluates available data concerning the safety and effectiveness of marketed and investigational human drug products for use in the treatment of dermatologic and ophthalmic disorders.
Provide advice on scientific and technical issues concerning the safety and effectiveness of human generic drug products for use in the treatment of a broad spectrum of human diseases, and as required, any other product for which the FDA has regulatory responsibility. The committee may also review Agency sponsored intramural and extramural biomedical research programs in support of FDA's generic drug regulatory responsibilities.
Provides advice primarily to the Commissioner of Food and Drugs and other appropriate officials on specific complex and technical issues as well as emerging issues in the scientific community, industry, and academia. Additionally, the Board will provide advice to the Agency on keeping pace with technical and scientific evolutions in the fields of regulatory science, on formulating an appropriate research agenda, and on upgrading its scientific and research facilities to keep pace with these changes. It will also provide the means for critical review of Agency sponsored intramural and extramural scientific research programs.
Reviews and advises the Agency on the establishment, implementation, and evaluation of the research programs and regulatory responsibilities as it relates to NCTR. The Board will also provide an extra-Agency review in ensuring that the research programs at NCTR are scientifically sound and pertinent.
Reviews and evaluates data concerning the safety, effectiveness, and appropriate use of vaccines and related biological products which are intended for use in the prevention, treatment, or diagnosis of human diseases, as well as considers the quality and relevance of FDA's research program which provides scientific support for the regulation of these products.
Persons nominated for membership as consumer representatives on committees or panels should meet the following criteria: (1) Demonstrate ties to consumer and community-based organizations, (2) be able to analyze technical data, (3) understand research design, (4) discuss benefits and risks, and (5) evaluate the safety and efficacy of products under review. The consumer representative should be able to represent the consumer perspective on issues and actions before the advisory committee; serve as a liaison between the committee and interested consumers, associations, coalitions, and consumer organizations; and facilitate dialogue with the advisory committees on scientific issues that affect consumers.
Selection of members representing consumer interests is conducted through procedures that include the use of organizations representing the public interest and public advocacy groups. These organizations recommend nominees for the Agency's selection. Representatives from the consumer health branches of Federal, State, and local governments also may participate in the selection process. Any consumer organization interested in participating in the selection of an appropriate voting or nonvoting member to represent consumer interests should send a letter stating that interest to FDA (see
Within the subsequent 30 days, FDA will compile a list of consumer organizations that will participate in the selection process and will forward to each such organization a ballot listing at least two qualified nominees selected by the Agency based on the nominations received, together with each nominee's current curriculum vitae or resume. Ballots are to be filled out and returned to FDA within 30 days. The nominee receiving the highest number of votes ordinarily will be selected to serve as the member representing consumer interests for that particular advisory committee or panel.
Any interested person or organization may nominate one or more qualified persons to represent consumer interests on the Agency's advisory committees or panels. Self-nominations are also accepted. Nominations should include a cover letter and current curriculum vitae or resume for each nominee, including a current business and/or home address, telephone number, and email address if available, and a list of consumer or community-based organizations for which the candidate can demonstrate active participation. FDA seeks to include the views of women and men, members of all racial and ethnic groups, and individuals with and without disabilities on its advisory committees and, therefore, encourages nominations of appropriately qualified candidates from these groups.
Nominations should also specify the advisory committee(s) or panel(s) for which the nominee is recommended. In addition, nominations should include confirmation that the nominee is aware of the nomination, unless self-nominated. FDA will ask potential candidates to provide detailed information concerning such matters as financial holdings, employment, and research grants and/or contracts to permit evaluation of possible sources of conflicts of interest. Members will be invited to serve for terms up to 4 years.
FDA will review all nominations received within the specified timeframes and prepare a ballot containing the names of qualified nominees. Names not selected will remain on a list of eligible nominees and be reviewed periodically by FDA to determine continued interest. Upon selecting qualified nominees for the ballot, FDA will provide those consumer organizations that are participating in the selection process with the opportunity to vote on the listed nominees. Only organizations
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.
The Drug Quality and Security Act adds a new section, 503B, to the FD&C Act (21 U.S.C. 353b) that creates a new category of “outsourcing facilities.” Outsourcing facilities, as defined in section 503B of the FD&C Act, are facilities that meet certain conditions described in section 503B, including registration with FDA as an outsourcing facility. If these conditions are satisfied, a drug product compounded for human use by or under the direct supervision of a licensed pharmacist in an outsourcing facility is exempt from three sections of the FD&C Act: (1) Section 502(f)(1), (2) section 505, and (3) section 582 (21 U.S.C. 360eee-1), but not section 501(a)(2)(B).
One of the conditions that must be satisfied to qualify for the exemptions under both sections 503A and 503B of the FD&C Act is that the drug that is compounded does not appear on a list published by the Secretary of Health and Human Services (the Secretary) of drugs that have been withdrawn or removed from the market because such drug products or components of such drug products have been found to be unsafe or not effective (“withdrawn or removed list”) (see sections 503A(b)(1)(C) and 503B(a)(4) of the FD&C Act).
Another condition that must be satisfied to qualify for the exemptions under section 503A of the FD&C Act is that a bulk drug substance (active pharmaceutical ingredient) used in a compounded drug must meet one of the following criteria: (1) Complies with the standards of an applicable United States Pharmacopoeia (USP) or National Formulary monograph, if a monograph exists, and the USP chapter on pharmacy compounding; (2) if an applicable monograph does not exist, is a component of a drug approved by the Secretary; or (3) if such a monograph does not exist and the drug substance is not a component of a drug approved by the Secretary, appears on a list (“section 503A bulk drug substances list”) developed by the Secretary through regulations issued by the Secretary (see section 503A(b)(1)(A)(i) of the FD&C Act).
FDA will discuss with the committee drugs proposed for inclusion on the withdrawn or removed list pursuant to sections 503A and 503B of the FD&C Act and on the section 503A bulk drug substances list.
On October 27, 2015, during the morning and afternoon sessions, the committee will discuss six bulk drug substances nominated for inclusion on the section 503A bulk drug substances
On October 28, 2015, during the morning and afternoon sessions, the committee will discuss four bulk drug substances nominated for inclusion on the section 503A bulk drug substances list. FDA intends to discuss the following nominated bulk drug substances: Alanyl-L-glutamine, glutaraldehyde, glycyrrhizin, and domperidone. Other nominated substances will be discussed at future committee meetings.
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 disabilities. If you require accommodations due to a disability, please contact Cindy Hong at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice of Class Deviation from Competition Requirements: Program Expansion Supplement Request for Pediatric Audiology Supplements to ten Leadership Education in Neurodevelopmental and Other Related Disabilities (LEND) Maternal and Child Health (MCH) Training Programs.
HRSA announces the award of a program expansion supplement in the amount of $70,000 each to ten Leadership Education in Neurodevelopment and Other Related Disabilities (LEND) grantees with existing graduate-level pediatric audiology programs. The purpose of the LEND Program is to enhance the clinical expertise and leadership skills of professionals dedicated to caring for children with neurodevelopmental and other related disabilities, including autism, and to increase the number of trained providers available to treat children with complex disabilities. The purpose of this notice is to award a 12-month supplement to LEND pediatric audiology programs to: (1) Strengthen the focus on testing for hearing loss in young infants and children with autism spectrum disorder (ASD) and other related neurodevelopmental disabilities (DD); and (2) to increase the number of pediatric audiology trainees with clinical and leadership skills to detect hearing loss in these infants/children, and to develop systems to increase enrollment of identified infants/children into early intervention programs.
Autism Act of 2006, Public Health Service (PHS) Act § 399BB(e)(1)(A), codified at 42 U.S.C. 280i-1.
The identified LEND grantees are uniquely qualified to perform the expanded activity because for the past 6 years they have provided enhanced didactic and clinical training in pediatric audiology and have increased the number of trained pediatric audiologists to provide critical services in the community. If these grantees are awarded a program expansion, LEND will continue to increase the number of pediatric audiology trainees with clinical and leadership skills to detect hearing loss in infants/children with ASD and other related DD, and to enroll identified infants/children into early intervention programs. Each of the ten LEND Programs that receive this funding has made a commitment to
Denise Sofka, RD, MPH, Division of Maternal and Child Health Workforce Development, Maternal and Child Health Bureau, Health Resources and Services Administration, 5600 Fishers Lane, Room 18W55, Rockville, Maryland 20857;
Health Resources and Services Administration, HHS.
Notice.
The Health Resources and Services Administration (HRSA) is publishing this notice of petitions received under the National Vaccine Injury Compensation Program (the Program), as required by Section 2112(b)(2) of the Public Health Service (PHS) Act, as amended. While the Secretary of Health and Human Services is named as the respondent in all proceedings brought by the filing of petitions for compensation under the Program, the United States Court of Federal Claims is charged by statute with responsibility for considering and acting upon the petitions.
For information about requirements for filing petitions, and the Program in general, contact the Clerk, United States Court of Federal Claims, 717 Madison Place NW., Washington, DC 20005, (202) 357-6400. For information on HRSA's role in the Program, contact the Director, National Vaccine Injury Compensation Program, 5600 Fishers Lane, Room 11C-26, Rockville, MD 20857; (301) 443-6593, or visit our Web site at:
The Program provides a system of no-fault compensation for certain individuals who have been injured by specified childhood vaccines. Subtitle 2 of Title XXI of the PHS Act, 42 U.S.C. 300aa-10
A petition may be filed with respect to injuries, disabilities, illnesses, conditions, and deaths resulting from vaccines described in the Vaccine Injury Table (the Table) set forth at 42 CFR 100.3. This Table lists for each covered childhood vaccine the conditions that may lead to compensation and, for each condition, the time period for occurrence of the first symptom or manifestation of onset or of significant aggravation after vaccine administration. Compensation may also be awarded for conditions not listed in the Table and for conditions that are manifested outside the time periods specified in the Table, but only if the petitioner shows that the condition was caused by one of the listed vaccines.
Section 2112(b)(2) of the PHS Act, 42 U.S.C. 300aa-12(b)(2), requires that “[w]ithin 30 days after the Secretary receives service of any petition filed under section 2111 the Secretary shall publish notice of such petition in the
Section 2112(b)(2) also provides that the special master “shall afford all interested persons an opportunity to submit relevant, written information” relating to the following:
1. The existence of evidence “that there is not a preponderance of the evidence that the illness, disability, injury, condition, or death described in the petition is due to factors unrelated to the administration of the vaccine described in the petition,” and
2. Any allegation in a petition that the petitioner either:
a. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition not set forth in the Vaccine Injury Table but which was caused by” one of the vaccines referred to in the Table, or
b. “[S]ustained, or had significantly aggravated, any illness, disability,
In accordance with Section 2112(b)(2), all interested persons may submit written information relevant to the issues described above in the case of the petitions listed below. Any person choosing to do so should file an original and three (3) copies of the information with the Clerk of the U.S. Court of Federal Claims at the address listed above (under the heading
1. Denise Lee, Denver, Colorado, Court of Federal Claims No: 15-0823V.
2. Sharon Roberts, Philadelphia, Pennsylvania, Court of Federal Claims No: 15-0825V.
3. Mary Ponsness, Moses Lake, Washington, Court of Federal Claims No: 15-0826V.
4. David Ponsness, Moses Lake, Washington, Court of Federal Claims No: 15-0827V.
5. Bruce Tuthill, Coral Springs, Florida, Court of Federal Claims No: 15-0828V.
6. Cara Criscione, Rochester, New York, Court of Federal Claims No: 15-0829V.
7. Nicole Will, Herington, Kansas, Court of Federal Claims No: 15-0830V.
8. Catherine A. Ferdetta, Trenton, New Jersey, Court of Federal Claims No: 15-0835V.
9. Dorothy Bundrick, Columbia, South Carolina, Court of Federal Claims No: 15-0836V.
10. Caitlyn Hope Redwine, Marietta, Georgia, Court of Federal Claims No: 15-0839V.
11. Kaitlin Ripple, Port Lavaca, Texas, Court of Federal Claims No: 15-0840V.
12. Kelly Rupert, West Newton, Pennsylvania, Court of Federal Claims No: 15-0841V.
13. Gloria Keyes, Lanoka Harbor, New Jersey, Court of Federal Claims No: 15-0845V.
14. Anne Becknell, Sun City West, Arizona, Court of Federal Claims No: 15-0846V.
15. Sheila Goins, Washington, District of Columbia, Court of Federal Claims No: 15-0848V.
16. Eric Hoegner, Cleveland, Ohio, Court of Federal Claims No: 15-0849V.
17. Jennifer Hendricks, Montpelier, Idaho, Court of Federal Claims No: 15-0850V.
18. Katilyn Wright, Baraboo, Wisconsin, Court of Federal Claims No: 15-0851V.
19. Mark Kerridge, Casper, Wyoming, Court of Federal Claims No: 15-0852V.
20. Beverly L. Persley, Georgetown, Kentucky, Court of Federal Claims No: 15-0853V.
21. Janelle Current, Grimes, Iowa, Court of Federal Claims No: 15-0854V.
22. Marixsa Ruth, Allentown, Pennsylvania, Court of Federal Claims No: 15-0855V.
23. Charles Jarrett, Folsom, California, Court of Federal Claims No: 15-0856V.
24. Jocelyn Ford on behalf of Juanita A. White, Detroit, Michigan, Court of Federal Claims No: 15-0857V.
25. Regina Todd, Washington, District of Columbia, Court of Federal Claims No: 15-0860V.
26. Chelsea L. Davis, Dallas, Texas, Court of Federal Claims No: 15-0861V.
27. Rebecca Padilla, Highland, California, Court of Federal Claims No: 15-0862V.
28. Howard Margulies, North Easton, Massachusetts, Court of Federal Claims No: 15-0863V.
29. Kenneth Bitticks, Encino, California, Court of Federal Claims No: 15-0864V.
30. Georgette Taylor, Denton, Texas, Court of Federal Claims No: 15-0865V.
31. Michael Zippelli, Vienna, Virginia, Court of Federal Claims No: 15-0866V.
32. David Mikkelson, Vienna, Virginia, Court of Federal Claims No: 15-0867V.
33. Cheryl Hines on behalf of A.S., Carthage, North Carolina, Court of Federal Claims No: 15-0868V.
34. Stacy Poulignot-Gartner, Kansas City, Missouri, Court of Federal Claims No: 15-0869V.
35. Leah Tyrell, Buffalo, New York, Court of Federal Claims No: 15-0870V.
36. Vivian Sicherman, Fresh Meadows, New York, Court of Federal Claims No: 15-0871V.
37. Cheryl Pedraza, Fort Worth, Texas, Court of Federal Claims No: 15-0874V.
38. Sheryl Strom, Denver, Colorado. Court of Federal Claims No: 15-0875V.
39. Dorothy Shepard, Brick, New Jersey, Court of Federal Claims No: 15-0879V.
40. Jaclyn Rene Bales on behalf of J. B. A., Phoenix, Arizona, Court of Federal Claims No: 15-0882V.
41. Sondra Boschert on behalf of Elmer Joseph Boschert, Jr., Deceased, Calhoun, Georgia, Court of Federal Claims No: 15-0883V.
42. Christine Redlinger, Coatesville, Pennsylvania, Court of Federal Claims No: 15-0886V.
43. Sydney P. Jensen, Mesa, Arizona, Court of Federal Claims No: 15-0887V.
44. Irene Akahi, Las Vegas, Nevada, Court of Federal Claims No: 15-0888V.
45. Jason Clubb, Winston Salem, North Carolina, Court of Federal Claims No: 15-0891V.
46. Lia Silveira Craft, Seattle, Washington, Court of Federal Claims No: 15-0892V.
47. David Engelman, Springfield, Missouri, Court of Federal Claims No: 15-0893V.
48. Leo J. Jerome, Utica, Michigan, Court of Federal Claims No: 15-0894V.
49. Jose Gabalda, Mount Airy, North Carolina, Court of Federal Claims No: 15-0895V.
50. Efraim Kamara, Overland Park, Kansas, Court of Federal Claims No: 15-0896V.
51. Emily Dworkin, Urbana, Illinois, Court of Federal Claims No: 15-0897V.
52. Michael Vanderpoel, Lancaster, Pennsylvania, Court of Federal Claims No: 15-0899V.
53. Jeanette Stancarone, Staten Island, New York, Court of Federal Claims No: 15-0901V.
54. Eubert Victorino, Chicago, Illinois, Court of Federal Claims No: 15-0902V.
55. Shabnam N. Ranjbar, Chapel Hill, North Carolina, Court of Federal Claims No: 15-0905V.
56. James O. Jones, Jr., Nashville, Tennessee, Court of Federal Claims No: 15-0906V.
57. Zania Lewis, New Orleans, Louisiana, Court of Federal Claims No: 15-0907V.
58. Daniel Divack, Great Neck, New Jersey, Court of Federal Claims No: 15-0908V.
59. Dennis Carlson, Sandy, Utah, Court of Federal Claims No: 15-0909V.
60. Timothy Miremont, Baton Rouge, Louisiana, Court of Federal Claims No: 15-0910V.
61. Irma Scott, Labelle, Florida, Court of Federal Claims No: 15-0911V.
62. Patricia M. White, Mountain City, Tennessee, Court of Federal Claims No: 15-0917V.
63. Craig John Burchianti on behalf of A. B., Brooklyn, New York, Court of Federal Claims No: 15-0918V.
64. William Allen Jackson, Riverside, California, Court of Federal Claims No: 15-0919V.
65. Victoria Lee, Richmond, California, Court of Federal Claims No: 15-0920V.
66. Vanessa Gonzalez, Washington, District of Columbia, Court of Federal Claims No: 15-0921V.
67. Judith Rutschman, Memphis, Tennessee, Court of Federal Claims No: 15-0925V.
68. Sarah Henley, Scotts Valley, California, Court of Federal Claims No: 15-0927V.
69. Ricardo Galinato, Washington, District of Columbia, Court of Federal Claims No: 15-0928V.
70. Michael C. Puckett, Sr. on behalf of Amanda Nicole Puckett, Deceased, Orland Park, Illinois, Court of Federal Claims No: 15-0929V.
71. James Scamman, Kansas City, Missouri, Court of Federal Claims No: 15-0930V.
72. Hans Varblow, Livonia, Michigan, Court of Federal Claims No: 15-0931V.
73. Katie Rice, Randolph, Vermont, Court of Federal Claims No: 15-0932V.
74. Joyce Winterfeld, Willowbrook, Illinois, Court of Federal Claims No: 15-0933V.
75. Tyrone Coyle, Mandeville, Louisiana, Court of Federal Claims No: 15-0934V.
76. Jennifer Siekierski, Rochester, New York, Court of Federal Claims No: 15-0936V.
77. Keith Saunders, Somers Point, New Jersey, Court of Federal Claims No: 15-0939V.
78. Lewis Steven Beckham, Holmes Beach, Florida, Court of Federal Claims No: 15-0940V.
79. Lornette Amelia Lewis, Birmingham, Alabama, Court of Federal Claims No: 15-0941V.
80. Leigha Romig, Richmond, Virginia, Court of Federal Claims No: 15-0942V.
81. Jeffery Miller, Boston, Massachusetts, Court of Federal Claims No: 15-0943V.
82. Kelly Ledford, Philadelphia, Pennsylvania, Court of Federal Claims No: 15-0944V.
83. Sanjuanita Kelly, Philadelphia, Pennsylvania, Court of Federal Claims No: 15-0947V.
84. Alexander Rydell, Fargo, North Dakota, Court of Federal Claims No: 15-0948V.
85. Barbara Lykins, Shawnee Mission, Kansas, Court of Federal Claims No: 15-0951V.
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice of Single-Case Deviation from Competition Requirement for Program Expansion for the National Center for Medical Home Implementation Cooperative Agreement at the American Academy of Pediatrics, Grant Number U43MC09134.
HRSA announces its intent to award a program expansion supplement in the amount of $171,691 for the National Center for Medical Home Implementation (NCMHI) cooperative agreement. The purpose of the NCMHI cooperative agreement, as stated in the funding opportunity announcement, is to: (1) Support a national resource and technical assistance effort to implement and spread the medical home model to all children and youth, particularly children with special health care needs (CSHCN), children who are vulnerable and/or medically underserved, and pediatric populations served by state public health programs, HRSA, and HRSA's Maternal and Child Health Bureau (MCHB); and (2) support activities of the Healthy Tomorrows Partnership for Children Program (HTPCP) grantees to improve children's health through innovative community-based efforts, and community and statewide partnerships among professionals in health, education, social services, government, and business. The purpose of this notice is to announce the award of supplemental funds to enhance the Rural IMPACT project by supporting activities related to child health in rural and underserved communities by the American Academy of Pediatrics, the cooperative agreement awardee who serves as the NCMHI, during the budget period of July 1, 2015, to June 30, 2016. The NCMHI is authorized by the Social Security Act, title V, sections 501(a)(1)(D) and 501(a)(2), (42 U.S.C. 701(a)(1)(D) and 701(a)(2)).
The NCHMI is a national resource to implement and spread the medical home model to all children and youth, particularly children with special heath care needs and children who are vulnerable and/or medically underserved. The NCMHI supports activities of the HTPCP grantees to improve children's health through innovative community-based efforts, and community and statewide partnerships among professionals in health, education, social services, government, and business.
Social Security Act, Title V, sections 501(a)(1)(D) and 501(a)(2), (42 U.S.C. 701(a)(1)(D) and 701(a)(2)).
The American Academy of Pediatrics (AAP), working with MCHB, will establish an expert workgroup and operational structure to guide the initiative; develop and issue a solicitation and scoring process and conduct a review of letters of interest to make recommendations for participating communities; develop a quality
In consultation with MCHB, ACF, and the White House Rural Council, the AAP has developed guidance, and solicited for and reviewed letters of interest for the cohort of ten rural and tribal communities. Communities will be notified of the application outcome in late September 2015. For its expert workgroup, AAP has identified and invited experts in social service delivery, rural health, and quality improvement. A meeting of participating communities and the expert workgroup will be held in Washington, DC, in October 2015.
Marie Y. Mann, MD, MPH, FAAP, Division of Services for Children with Special Health Needs, Maternal and Child Health Bureau, Health Resources and Services Administration, 5600 Fishers Lane, Room 13-103, Rockville, Maryland 20857;
Health Resources and Services Administration (HRSA), HHS.
Notice of Non-competitive Supplemental Funding Award.
HRSA will be providing supplemental funds to support activities for the Center for Health Policy/National Academy for State Health Policy (NASHP), to support the expanded program and costs for the Systems Integration Academy (SIA) that were not foreseen in the awardee's approved application. The supplemental funds will be used to augment the awardee's current activities to provide targeted technical assistance to a Learning Community of 16 states from awarded HRSA's Maternal and Child Health Bureau (MCHB) State Implementation Grants for Enhancing the System of Services for Children and Youth with Special Health Care Needs (CYSHCN) through Systems Integration (D70). The purpose of this supplement is to expand the Learning Community and provide technical assistance to the D70 grantees to achieve a shared resource, cross-system care coordination, and MCH 3.0 alignment.
In fiscal year 2015, MCHB will expand the SIA Learning Community and provide technical assistance to four new D70 grantees, which will receive targeted technical assistance to achieve shared resource, cross-system care coordination and alignment with MCH 3.0.
Lynnette S. Araki, via email
Under the provisions of Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH), has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below. This proposed information collection was previously published in the
To obtain a copy of the data collection plans and instruments or request more information on the proposed project contact: Tony Beck, Ph.D., Office of Science Education/SEPA, Office of Research Infrastructure Programs, Division of Program Coordination, Planning, and Strategic Initiatives, Office of the Director, National Institutes of Health, 6701 Democracy Boulevard, Room 206, Bethesda, MD 20892 or call non-toll-free number 301-435-0805 or email your request, including your address to:
OMB approval is requested for one year. There are no costs to respondents other than their time. The total estimated annualized burden hours are 523.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in section 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
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Written comments and/or suggestions from the public and affected agencies are invited on one or more of the following points: (1) Whether the proposed collection of information is necessary for the proper performance of the function of the agency, including whether the information will have practical utility; (2) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) Ways to enhance the quality, utility, and clarity of the information to be collected; and (4) Ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
The solicitation of feedback will target areas such as: Timeliness, appropriateness, accuracy of information, courtesy, efficiency of service delivery, and resolution of issues with service delivery. Responses will be assessed to plan and inform efforts to improve or maintain the quality of service offered to the public. If this information is not collected, vital feedback from customers and stakeholders on the NIAID's services will be unavailable.
OMB approval is requested for 3 years. There are no costs to respondents
The National Institutes of Health (NIH) is developing a strategic plan to guide the agency's efforts and priorities in SGM research over the next five years (2016-2020). The purpose of this notice is to seek input from researchers in academia and industry, health care professionals, patient advocates and health advocacy organizations, scientific or professional organizations, public agencies, and other interested members of the public about proposed goals and objectives for advancing research and other research-related activities with SGM populations. Specific organizations, such as advocacy or professional groups are encouraged to submit a single response that reflects the views of their organization and membership as a whole.
To ensure consideration of your comments, responses must be received by November 2, 2015.
Responses to this notice must be submitted electronically by email to
Dr. Karen Parker, Division of Program Coordination, Planning, and Strategic Initiatives, Office of the Director, NIH, Building 1, Room 257, 1 Center Drive, Bethesda, MD 20892, Telephone: 301-451-2055, Email:
The NIH developed this Strategic Plan to Advance Research on the Health and Wellbeing of Sexual and Gender Minorities (SGM) (
The NIH SGM Strategic Research Plan promotes and supports the advancement of basic, clinical, and behavioral and social sciences research to improve the health of people whose sexual orientations, gender identities/expressions, and/or reproductive development vary from traditional, societal, cultural, or physiological norms. In each of these areas, the NIH will coordinate with the NIH intramural and extramural program directors and researchers to ensure the advancement of SGM-focused research efforts.
The NIH anticipates that this 5 year plan, which will cover the years 2016-2020, will provide the NIH with a framework for progress in this area, and that the research that results from this plan will lay a foundation for improved health and well-being amongst a group of diverse SGM individuals whose health needs have not traditionally received strong attention from the research community.
This notice invites public comment and input on the proposed goals and objectives of the strategic plan. We ask that you consider cross-cutting research opportunities, and/or needs that could have the greatest benefit for advancing SGM health.
To inform implementation of the SGM strategic plan, input is being sought on each of the areas identified below.
(1) Specific priority areas of research in SGM populations.
(2) Goals and objectives outlined in the plan.
(3) Any additional comments or information you think would be useful to the NIH about the proposed 2016-2020 Strategic Plan to Advance Research on the Health and Well-being of Sexual and Gender Minorities.
To ensure consideration of your comments, responses must be received by November 2, 2015.
All of the following fields in the response are optional and voluntary. Any personal identifiers will be removed when responses are compiled. Proprietary, classified, confidential, or sensitive information should not be included in your response. This notice is for planning purposes only and is not a solicitation for applications or an obligation on the part of the United States (U.S.) government to provide support for any ideas identified in response to it. Please note that the U.S. government will not pay for the preparation of any comment submitted or for its use of that comment.
Please indicate if you are one of the following: Grantee, administrator, student, patient advocate, Dean/or Institutional administrator, NIH employee, or other. If you are an
Collection of this information is authorized under 42 U.S.C. 203, 24 1, 2891-1 and 44 U.S.C. 310 I and Section 30 l and 493 of the Public Health Service Act regarding the establishment of the National Institutes of Health, its general authority to conduct and fund research and to provide training assistance, and its general authority to maintain records in connection with these and its other functions.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies federal agencies of the laboratories and Instrumented Initial Testing Facilities (IITF) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines). The Mandatory Guidelines were first published in the
A notice listing all currently HHS-certified laboratories and IITFs is published in the
If any laboratory or IITF has withdrawn from the HHS National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end and will be omitted from the monthly listing thereafter.
This notice is also available on the Internet at
Giselle Hersh, Division of Workplace Programs, SAMHSA/CSAP, Room 7-1051, One Choke Cherry Road, Rockville, Maryland 20857; 240-276-2600 (voice), 240-276-2610 (fax).
The Mandatory Guidelines were initially developed in accordance with Executive Order 12564 and section 503 of Pub. L. 100-71. The “Mandatory Guidelines for Federal Workplace Drug Testing Programs,” as amended in the revisions listed above, requires strict standards that laboratories and IITFs must meet in order to conduct drug and specimen validity tests on urine specimens for federal agencies.
To become certified, an applicant laboratory or IITF must undergo three rounds of performance testing plus an on-site inspection. To maintain that certification, a laboratory or IITF must participate in a quarterly performance testing program plus undergo periodic, on-site inspections.
Laboratories and IITFs in the applicant stage of certification are not to be considered as meeting the minimum requirements described in the HHS Mandatory Guidelines. A HHS-certified laboratory or IITF must have its letter of certification from HHS/SAMHSA (formerly: HHS/NIDA), which attests that it has met minimum standards.
In accordance with the Mandatory Guidelines dated November 25, 2008 (73 FR 71858), the following HHS-certified laboratories and IITFs meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
* The Standards Council of Canada (SCC) voted to end its Laboratory Accreditation Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified through that program were accredited to conduct forensic urine drug testing as required by U.S. Department of Transportation (DOT) regulations. As of that date, the certification of those accredited Canadian laboratories will continue under DOT authority. The responsibility for conducting quarterly performance testing plus periodic on-site inspections of those LAPSA-accredited laboratories was transferred to the U.S. HHS, with the HHS' NLCP contractor continuing to have an active role in the performance testing and laboratory inspection processes. Other Canadian laboratories wishing to be considered for the NLCP may apply directly to the NLCP contractor just as U.S. laboratories do. Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
Coast Guard, DHS.
Notice of Federal Advisory Committee Teleconference Meeting.
The Merchant Marine Personnel Advisory Committee will meet, via teleconference, to discuss Task Statement 89, concerning the review and update of IMO MSC Circular MSC/Circ.1014- Guidelines on fatigue mitigation and management. This meeting will be open to the public.
The full committee will meet by teleconference on Thursday, October 22, 2015, from 11 a.m. until 1 p.m. Eastern Daylight Time. Please note that this meeting may close early if the committee has completed its business.
To join the teleconference, contact the individual listed in the
To facilitate public participation, we are inviting public comment on the issue to be considered by the Committee as listed in the “Agenda” section below. Written comments for distribution to Committee members must be submitted no later than October 16, 2015, if you want the Committee members to be able to review your comments before the meeting, and must be identified by docket number USCG-2015-0912. Written comments may be submitted using the Federal eRulemaking Portal at
Mr. Davis Breyer, Alternate Designated Federal Officer of the Merchant Marine Personnel Advisory Committee, 2703 Martin Luther King Jr. Ave. SE., Stop 7509, Washington, DC 20593-7509, telephone 202-372-1445, fax 202-372-8382 or
Notice of this meeting is given under the Federal Advisory Committee Act, 5 United States Code Appendix.
The Merchant Marine Personnel Advisory Committee is an advisory committee authorized under section 310 of the Howard Coble Coast Guard and Maritime Transportation Act of 2014, Title 46, United States Code, section 8108, and chartered under the provisions of the Federal Advisory Committee Act. The Committee acts solely in an advisory capacity to the Secretary of the Department of Homeland Security through the Commandant of the Coast Guard on matters relating to personnel in the U.S. merchant marine, including training, qualifications, certification, documentation, and fitness standards and other matters as assigned by the Commandant. The Committee advises, consults with, and makes recommendations reflecting its independent judgment to the Secretary.
The agenda for the October 22, 2015 Merchant Marine Personnel Advisory Committee meeting is as follows:
1. Introductions and opening remarks.
2. Coast Guard Leadership Remarks;
3. Committee will review, discuss, and formulate recommendations on the review and update of IMO MSC Circular MSC/Circ.1014—Guidelines on fatigue mitigation and management.
4. Public comment period.
5. Committee will then finalize recommendations on the review and update of IMO MSC Circular MSC/Circ.1014—Guidelines on fatigue mitigation and management.
Public comments will be limited to 3 minutes per speaker. Please note that the public comment period will end following the last call for comments. Please contact the individual listed in the
Transportation Security Administration, DHS.
30-day Notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0044, abstracted below to OMB for review and approval of an extension and revision of the currently approved collection under the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. TSA published a
Send your comments by November 2, 2015. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, OMB. Comments should be addressed to Desk Officer, Department of Homeland Security/TSA, and sent via electronic mail to
Christina A. Walsh, TSA PRA Officer,
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement 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;
(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 using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
The DHS TRIP office serves as a centralized intake office for traveler requests for redress and uses the online Traveler Inquiry Form (TIF) to collect requests for redress. DHS TRIP then passes the information to the relevant DHS component to process the request, as appropriate (
The collection of information is being revised to include: (1) a modification to the existing Traveler Inquiry Form (TIF) to enhance the redress process for certain individuals and to ensure that the redress process is fair and responsive; and (2) two optional, anonymous customer satisfaction surveys to allow the public to provide DHS feedback on its experience using DHS TRIP.
DHS estimates that completing the TIF, including gathering and submitting the information, will take approximately one hour. In completing the two optional surveys, DHS estimates it will take approximately 10 minutes to complete each survey. The annual respondent population was derived from data contained within the DHS case management database and reflects the projected number of respondents in the next fiscal
National Park Service, Interior.
Notice.
The Thomas Burke Memorial Washington State Museum (Burke Museum) has completed an inventory of human remains and an associated funerary object, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary object and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary object should submit a written request to the Burke Museum. If no additional requestors come forward, transfer of control of the human remains and associated funerary object to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary object should submit a written request with information in support of the request to the Burke Museum at the address in this notice by November 2, 2015.
Peter Lape, Burke Museum, University of Washington, Box 353010, Seattle, WA 98195, telephone (206) 685-3849, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and an associated
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary object. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Burke Museum professional staff in consultation with representatives of the Confederated Tribes of the Chehalis Reservation, Skokomish Indian Tribe (previously listed as the Skokomish Indian Tribe of the Skokomish Reservation, Washington), and the Squaxin Island Tribe of the Squaxin Island Reservation.
In 1961, human remains representing, at minimum, one individual were removed from near Lilliwaup in Mason County, WA. The human remains were removed by Jane Durken near the old Eldon Hotel and donated to the Burke Museum in 1963 (Burke Accn. #1963-36). No known individuals were identified. The one associated funerary object is an unmodified shell.
The human remains are consistent with Native American morphology and therefore have been determined to be Native American. Lilliwap and the surrounding area is within the traditional aboriginal territory of the Twana people (Elmendorf 1960, Mooney 1896, Smith 1940, Suttle 1990). Three subgroups of the Twana are identifiable: The Skokomish, the Duhelelips, and the Kolsids (Brown 1986). The Indian Claims Commission ruled that all of Hood Canal, WA, was the traditional aboriginal territory of the Twana (Skokomish) people. The Twana are represented by the modern day Skokomish Indian Tribe Skokomish Indian Tribe (previously listed as the Skokomish Indian Tribe of the Skokomish Reservation, Washington). The Skokomish were signatories to the 1855 Treaty of Point-No-Point.
Officials of the Burke Museum have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the one object described in this notice is reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of the Skokomish Indian Tribe (previously listed as the Skokomish Indian Tribe of the Skokomish Reservation, Washington).
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary object and the Skokomish Indian Tribe (previously listed as the Skokomish Indian Tribe of the Skokomish Reservation, Washington).
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary object should submit a written request with information in support of the request to Peter Lape, Burke Museum, University of Washington, Box 353010, Seattle, WA 98195, telephone (206) 685-3849 x2, email
The Burke Museum is responsible for notifying the Confederated Tribes of the Chehalis Reservation, Skokomish Indian Tribe (previously listed as the Skokomish Indian Tribe of the Skokomish Reservation, Washington), and the Squaxin Island Tribe of the Squaxin Island Reservation that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Army Corps of Engineers, Omaha District (Omaha District), has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the Omaha District. If no additional requestors come forward, transfer of control of the human remains to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the Omaha District at the address in this notice by November 2, 2015.
Ms. Sandra Barnum, U.S. Army Engineer District, Omaha, ATTN: CENWO-PM-AB, 1616 Capitol Ave., Omaha, NE 68102, telephone, (402) 995-2674, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the Omaha District. The human remains were removed from Crow Creek Village (39BF11), Buffalo County, SD.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal
A detailed assessment of the human remains was made by State Archaeological Research Center and Omaha District professional staff in consultation with representatives of The Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota.
In 1981, human remains representing, at minimum, five individuals were removed from Crow Creek Village (39BF11) in Buffalo County, SD. The human remains were collected during a salvage excavation at the site under the direction of Mr. Tim Nowak, Omaha District Archaeologist. The excavation was undertaken to preserve the artifacts and data eroding out of a cut-bank at the site. Human remains that were excavated from Crow Creek Site (39BF0011) are presently located at the South Dakota State Archaeological Research Center (SARC), under the managerial control of the Omaha District.
In 1999, SARC conducted a review of the 39BF11 collection and located human remains within the faunal collection. The five individuals consist of a child, aged 6-10, three adults of indeterminate age and sex, and one adult, possible female. No known individuals were identified. No associated funerary objects are present.
The human remains were collected from the Initial Middle Missouri Component (AD 1100-1150) of the site. The human remains are determined to be Native American due to their original context in the Native American component of the site and the associated site artifacts indicating Native American ancestry. The Middle Missouri Variant, based on architectural features, geographical location, material cultural, physical anthropological (biological) data, and oral tradition, is likely to be associated with the Mandan population. The Mandan are represented by the Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota.
Officials of the U.S. Army Corps of Engineers, Omaha District have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of five individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Ms. Sandra Barnum, U.S. Army Engineer District, Omaha, ATTN: CENWO-PM-AB, 1616 Capitol Ave., Omaha, NE., 68102, telephone, (402) 995-2674, email
The U.S. Army Corps of Engineers, Omaha District is responsible for notifying the Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota, that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, National Park Service, Big Bend National Park has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and associated funerary objects and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to Big Bend National Park. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Big Bend National Park at the address in this notice by November 2, 2015.
Cindy Ott-Jones, Superintendent, Big Bend National Park, P.O. Box 129, Big Bend National Park, TX 79834, telephone (432) 477-1101, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the U.S. Department of the Interior, National Park Service, Big Bend National Park, TX. The human remains and associated funerary objects were removed from Big Bend National Park, Brewster County, TX.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the Superintendent, Big Bend National Park.
A detailed assessment of the human remains was made by Big Bend National Park professional staff in consultation with representatives of the Absentee-Shawnee Tribe of Indians of Oklahoma; Comanche Nation, Oklahoma; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; and Ysleta Del Sur Pueblo (previously listed as the Ysleta Del Sur Pueblo of Texas) (hereafter referred to as “The Consulted Tribes”).
The following tribes were invited to consult but did not participate: Apache Tribe of Oklahoma; Blackfeet Tribe of the Blackfeet Indian Reservation of
Prior to 1944, human remains representing, at minimum, three individuals were removed from an unknown site in Brewster County, TX, by unknown individuals. The remains were donated to Big Bend National Park in 1947 by Mrs. Elmo Johnson. No known individuals were identified. No associated funerary objects are present.
In 1966-67, human remains representing, at minimum, one individual were removed from site 41BS360 in Brewster County, TX, during a survey by the University of Texas. No known individuals were identified. No associated funerary objects are present.
In 1983, human remains representing, at minimum, two individuals were removed from the Black Willow site in Brewster County, TX, during legally authorized excavations. No known individuals were identified. No associated funerary objects are present.
In May 1990, human remains representing, at minimum, one individual were removed from the Rough Run site in Brewster County, TX, during legally authorized excavations. No known individuals were identified. The 75 associated funerary objects are 72 projectile points and projectile point fragments, 2 utilized flakes, and 1 chipped stone.
Officials of Big Bend National Park have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on osteological analysis and archeological context.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of seven individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 75 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony. The National Park Service intends to convey the associated funerary objects to the tribes pursuant to 54 U.S.C. 102503(g) through (i) and 54 U.S.C 102504.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and associated funerary objects and any present-day Indian tribe.
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of the Apache Tribe of Oklahoma; Fort Sill Apache Tribe of Oklahoma; Jicarilla Apache Nation, New Mexico; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Tonto Apache Tribe of Arizona; and White Mountain Apache Tribe of the Fort Apache Reservation, Arizona.
• Other credible lines of evidence, including relevant and authoritative governmental determinations and information gathered during government-to-government consultation from subject matter experts, indicate that the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of the Absentee-Shawnee Tribe of Indians of Oklahoma; Comanche Nation, Oklahoma; Kickapoo Traditional Tribe of Texas; Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas; Kickapoo Tribe of Oklahoma; Kiowa Indian Tribe of Oklahoma; Shoshone Tribe of the Wind River Reservation, Wyoming; Wichita and Affiliated Tribes (Wichita, Keechi, Waco & Tawakonie), Oklahoma; and Ysleta Del Sur Pueblo (previously listed as the Ysleta Del Sur Pueblo of Texas).
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains and associated funerary objects may be to the Absentee-Shawnee Tribe of Indians of Oklahoma; Apache Tribe of Oklahoma; Comanche Nation, Oklahoma; Fort Sill Apache Tribe of Oklahoma; Jicarilla Apache Nation, New Mexico; Kickapoo Traditional Tribe of Texas; Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas; Kickapoo Tribe of Oklahoma; Kiowa Indian Tribe of Oklahoma; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Shoshone Tribe of the Wind River Reservation, Wyoming; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; Wichita and Affiliated Tribes (Wichita, Keechi, Waco & Tawakonie), Oklahoma; and Ysleta Del Sur Pueblo (previously listed as the Ysleta Del Sur Pueblo of Texas).
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Cindy Ott-Jones, Superintendent, Big Bend National Park, P.O. Box 129, Big Bend National Park, TX 79834, telephone (432) 477-1101, email
Big Bend National Park is responsible for notifying The Consulted Tribes and The Invited Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The Arizona State Museum, University of Arizona, has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and associated funerary objects and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the Arizona State Museum. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Arizona State Museum at the address in this notice by November 2, 2015.
John McClelland, NAGPRA Coordinator, P.O. Box 210026, Arizona State Museum, University of Arizona, Tucson, AZ 85721, telephone (520) 626-2950.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of Arizona State Museum, Tucson, AZ (ASM). The human remains and associated funerary objects were removed from unknown locations, likely within Yavapai County, AZ.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the ASM professional staff in consultation with representatives of the Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona; Fort McDowell Yavapai Nation, Arizona; Gila River Indian Community of the Gila River Indian Reservation; Hopi Tribe of Arizona; Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Tohono O'odham Nation of Arizona; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Indian Reservation, Arizona; Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona; Yavapai-Prescott Indian Tribe (previously listed as the Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona); and the Zuni Tribe of the Zuni Reservation, New Mexico.
In 1932, human remains representing, at minimum, one individual were removed from an unknown location referred to as City Farm [AZ City Farm]. This plausibly refers to a former University of Arizona Extension facility located near Prescott, Yavapai County, AZ. No further information about the discovery is available. The human remains were received by the Sharlot Hall Historical Society in Prescott, AZ on an unknown date. In 1979, the human remains were transferred to ASM. No known individuals were identified. No associated funerary objects are present.
On an unknown date, human remains representing, at minimum, one individual were removed from an unspecified location in Cottonwood, Yavapai County, AZ [AZ Cottonwood]. No further information about the original discovery is available. The human remains were transferred to ASM in 1995 by a resident of Cottonwood, AZ. No known individuals were identified. No associated funerary objects are present.
In 1909, human remains representing, at minimum, one individual were removed from an unknown location, likely near Camp Verde, Yavapai County, AZ [AZ FV60-11-001]. The human remains were originally acquired by Camp Verde resident Charles German. No further information about the discovery is available. At an unknown date, the human remains were received by Arizona State Parks. In 1998, the human remains were transferred to ASM. No known individuals were identified. No associated funerary objects are present.
On unknown dates prior to 1979, human remains representing, at minimum four individuals were removed from unknown locations, most likely in Yavapai County, AZ [AZ Yavapai County]. No further information about the original discoveries is available. The human remains were received by the Sharlot Hall Historical Society in Prescott, AZ prior to 1979. In 1979, the human remains were transferred to ASM. No known individuals were identified. No associated funerary objects are present.
In 1963, human remains representing, at minimum, one individual were removed from an unspecified location near Prescott, AZ [AZ YCSO DR-63-195]. On an unknown date, the human remains were received by the Yavapai County Sheriff's Office and subsequently sent to the Maricopa County Medical Examiner's Office for examination. In 1994, the Yavapai County Sheriff's Office transferred the human remains to ASM. No known individuals were identified. No associated funerary objects are present.
On an unknown date, human remains representing, at minimum, one individual were removed from an unknown location in the Chino Valley, Yavapai County, AZ [AZ N:— Chino Valley]. The discovery was made in the process of road construction. No further information about the discovery is available. On an unknown date, the human remains were received by the Smoki Museum in Prescott, AZ. In 1991, the human remains were transferred to ASM. No known individuals were identified. No associated funerary objects are present.
On an unknown date, human remains representing, at minimum, two individuals were removed from an unknown location referred to as City Ranch [AZ N:— City Ranch]. This plausibly refers to a former University of Arizona Extension facility located near Prescott, Yavapai County, AZ. The burials were excavated by L.J. Fuller. No further information about the discovery is available. On an unknown date, the human remains were received by the Smoki Museum in Prescott, AZ. In 1991,
On an unknown date, human remains representing, at minimum, two individuals were removed from an unknown location referred to as City Ranch [AZ O:5:— City Ranch]. This plausibly refers to a former University of Arizona Extension facility located near Prescott, Yavapai County, AZ. No further information about the discovery is available. On an unknown date, the human remains were received by the Sharlot Hall Historical Society in Prescott, AZ. In 1979, the human remains were transferred to ASM. No known individuals were identified. No associated funerary objects are present.
On an unknown date, human remains representing, at minimum, one individual were removed from an unknown location, possibly near Kirkland, Yavapai County, AZ [AZ N:— Kirkland]. No further information about the discovery is available. On an unknown date, the human remains were received by the Sharlot Hall Historical Society in Prescott, AZ. In 1979, the human remains were transferred to ASM. No known individuals were identified. No associated funerary objects are present.
In 1948, human remains representing, at minimum, one individual were removed from an unknown location described as a burial mound, possibly near Long Meadow Ranch, Yavapai County, AZ [AZ N:—Long Meadow Ranch]. The human remains were removed by Marvin Todd. No further information about the discovery is available. At an unknown date, the human remains were received by the Sharlot Hall Historical Society in Prescott, AZ. In 1979, the human remains were transferred to ASM. No known individuals were identified. No associated funerary objects are present.
On unknown dates, human remains representing, at minimum, 29 individuals were removed from unknown locations in Yavapai County, AZ [AZ N:—no provenience]. No further information about the discoveries is available. On an unknown date, the human remains were received by the Smoki Museum in Prescott, AZ. In 1991, the human remains were transferred to ASM. No known individuals were identified. No associated funerary objects are present.
In 1995, human remains representing, at minimum, one individual were removed from a construction site in the Verde Valley near Tuzigoot National Monument [AZ N:4:—Tuzigoot Vicinity]. The human remains were discovered by Fernando Argueta, while making adobe bricks. The human remains were transferred to ASM in 1995. No known individuals were identified. No associated funerary objects are present.
On an unknown date, human remains representing, at minimum, one individual were removed from Dolly Ranch in Yavapai County, AZ [AZ N:—Dolly Ranch]. No further information about the discovery is available. On an unknown date, the human remains were received by the Sharlot Hall Historical Society in Prescott, AZ. In 1979, the human remains were transferred to ASM. No known individuals were identified. No associated funerary objects are present.
On unknown dates, human remains representing, at minimum, seven individuals were removed from a location described as the Fairgrounds near Prescott, AZ [AZ N:7:—Fairgrounds]. No further information about the discovery is available. On unknown dates, the human remains were received by the Smoki Museum in Prescott, AZ. In 1991, the human remains were transferred to ASM. No known individuals were identified. The two associated funerary objects are unmodified animal bone fragments.
On an unknown date, human remains representing, at minimum, one individual were removed from Granite Creek near Prescott, AZ [AZ N:7:—Granite Creek]. No further information about the discovery is available. On an unknown date, the human remains were received by the Smoki Museum in Prescott, AZ. In 1991, the human remains were transferred to ASM. No known individuals were identified. No associated funerary objects are present.
On an unknown date, human remains representing, at minimum, one individual were removed from Lynx Creek in Yavapai County, AZ [AZ N:7:—Lynx Creek]. No further information about the discovery is available. On an unknown date, the human remains were received by the Sharlot Hall Historical Society in Prescott, AZ. In 1979, the human remains were transferred to ASM. No known individuals were identified. No associated funerary objects are present.
On an unknown date, human remains representing, at minimum, one individual were removed from an unknown location, possibly in Yavapai County, AZ [AZ Paulden vicinity]. No further information about the discovery is available. The human remains were obtained by a resident of Paulden, AZ on an unknown date. The recipient transferred the human remains to ASM in 2004. No known individuals were identified. No associated funerary objects are present.
On an unknown date, human remains representing, at minimum, one individual were removed from a location described as Sodium Sulphate Mines near Camp Verde, AZ [AZ O:—Sodium Sulphate Mines]. No further information about the discovery is available. On an unknown date, the human remains were received by the Sharlot Hall Historical Society in Prescott, AZ. In 1979, the human remains were transferred to ASM. No known individuals were identified. No associated funerary objects are present.
In the 1970s, human remains representing, at minimum, one individual were removed from an unknown location, possibly in the Verde Valley, AZ [AZ O:—Verde Valley]. The discovery was initially investigated by the Yavapai County Sheriff's Office. When determined not to be related to a criminal case, the human remains were placed in storage. In 2001, the human remains were rediscovered and the Sheriff's Office sent them to the Maricopa County Office of the Medical Examiner for assessment of ancestry. The human remains were assessed to be Native American and were subsequently transferred to ASM. No known individuals were identified. No associated funerary objects are present.
On an unknown date in the late 1940s or early 1950s, human remains representing, at minimum, one individual were removed from the surface of a small mound, possibly known as Sugarloaf Hill, in the Verde Valley, Yavapai County, AZ [AZ O:1:—Sugarloaf Hill]. The human remains were collected by Logan D. Dameron. In 1999, Mr. Dameron sent the human remains to ASM, requesting assistance in arranging respectful disposition. No known individuals were identified. No associated funerary objects are present.
On unknown dates, human remains representing, at minimum, two individuals were removed from an unknown location, possibly in Yavapai County, AZ [AZ O:5:—Verde River?]. No further information about the original discovery is available. On unknown dates, the human remains were obtained by Prescott College in Prescott, AZ. In 1978, the human remains were purchased from Prescott College by the Department of Anthropology, University of Arizona. Subsequently, the human remains were transferred to ASM. No known individuals were identified. No associated funerary objects are present.
Officials of the Arizona State Museum have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on physical characteristics, including cranial and dental morphology and indications of antiquity.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 61 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the two objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and associated funerary objects and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of the Fort McDowell Yavapai Nation, Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; Tonto Apache Tribe of Arizona; Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona; and Yavapai-Prescott Indian Tribe (previously listed as the Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona).
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of the San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Indian Reservation, Arizona; and Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains and associated funerary objects may be to the Fort McDowell Yavapai Nation, Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Indian Reservation, Arizona; Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona; and Yavapai-Prescott Indian Tribe (previously listed as the Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona).
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to John McClelland, NAGPRA Coordinator, P.O. Box 210026, Arizona State Museum, University of Arizona, Tucson, AZ 85721, telephone (520) 626-2950, by November 2, 2015. After that date, if no additional requestors have come forward, transfer of control of the human remains and associated funerary objects to the Fort McDowell Yavapai Nation, Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Indian Reservation, Arizona; Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona; and Yavapai-Prescott Indian Tribe (previously listed as the Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona) may proceed.
The Arizona State Museum is responsible for notifying the Fort McDowell Yavapai Nation, Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Indian Reservation, Arizona; Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona; and Yavapai-Prescott Indian Tribe (previously listed as the Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona) that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Army Corps of Engineers, Omaha District (Omaha District), has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the Omaha District. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Omaha District at the address in this notice by November 2, 2015.
Ms. Sandra Barnum, U.S. Army Engineer District, Omaha, ATTN: CENWO-PM-AB, 1616 Capitol Ave., Omaha, NE 68102, telephone, (402) 995-2674, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the Omaha District. The human remains and associated funerary objects were removed from the Akichita site (39BF221), Buffalo County, SD.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains and associated funerary objects was made by State Archaeological Research Center and Omaha District professional staff in consultation with representatives of the Yankton Sioux Tribe of South Dakota.
Human remains that were excavated from Akichita Site (39BF0221) are presently located at the South Dakota State Archaeological Research Center (SARC).
In 1962, human remains representing, at minimum, four individuals were removed from the historic component of the Akichita site (39BF221) in Buffalo County, SD. The human remains were collected during a salvage excavation at the site under the direction of Robert Gant, State Archaeological Commission, Vermillion, SD. The human remains and funerary objects were transported to the Commission's office at the W.H. Over Museum, Vermillion, SD.
In 1974, the collections were transferred to the newly established SARC. The human remains were then transferred to the University of Tennessee-Knoxville to be inventoried by Dr. William Bass.
When the human remains were returned to the SARC in the 1980s, what was believed to be all of the human remains were repatriated to Frank Fools Crow, Oglala Lakota Nation.
In 1999, SARC conducted a review of the remaining 39BF221 collection and located fragments of human remains from these burials along with 95 funerary objects. These additional human remains are from all four individuals, an adult male, two children, and an infant. No known individuals were identified. The associated funerary objects are 2 lots of white shell tubular wampum beads; 7 white glass tubular beads; 2 pieces of textile; 4 fragments of red silk ribbon; 1 fragment of fabric with glass beads attached; 2 unmodified faunal bones; 3 lots of wood coffin planking and wood coffin fragments; 25 metal coffin nails; 2 secondary flakes; 7 fragments of shoe leather; 39 brass oval hawk bells with textile fragments; and 1 incomplete china doll (“Frozen Charlotte” doll).
The human remains were collected from coffin burials in the historic component of the site. The human remains are determined to be Native American based on the associated burial objects and history of the site as associated with a Native American cemetery. The funerary objects associated with the burials, as well as the types of nails used for the coffins, dates the burials between 1860 and 1890. It is likely the Akichita site is associated with the historic Native American cemetery near the old townsite of Fort Thompson. This townsite and cemetery was occupied beginning around 1866. Between 1866 and 1890, the Yanktonai tribe was the majority population in the area, and the cemetery near Fort Thompson is associated with the Yanktonai. It is believed that 39BF221 is also associated with the Yanktonai. The Yanktonai are represented today by the Yankton Sioux Tribe of South Dakota.
Officials of the U.S. Army Corps of Engineers, Omaha District have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of four individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 92 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Yankton Sioux Tribe of South Dakota.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Ms. Sandra Barnum, U.S. Army Engineer District, Omaha, ATTN: CENWO-PM-AB, 1616 Capitol Ave., Omaha, NE 68102, telephone, (402) 995-2674, email
The U.S. Army Corps of Engineers, Omaha District is responsible for notifying the Yankton Sioux Tribe of South Dakota that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, National Park Service, Canaveral National Seashore has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to Canaveral National Seashore. If no additional requestors come forward, transfer of control of the human remains to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Canaveral National Seashore at the address in this notice by November 2, 2015.
Myrna Palfrey, Superintendent, Canaveral National Seashore, 212 S. Washington Avenue, Titusville, FL 32796-3553, telephone (321) 267-1110, email
Notice is here given in accordance with the
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the Superintendent, Canaveral National Seashore.
A detailed assessment of the human remains was made by Canaveral National Seashore professional staff in consultation with representatives of the Miccosukee Tribe of Indians and the Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)).
In 1975-76, human remains representing, at minimum, two individuals were removed from Butler Campbell Mound in Brevard County, FL during a general surface collection. The site has not been assigned a specific period, but is known to be prehistoric Native American. No known individuals were identified. No associated funerary objects are present.
In 1975-76, human remains representing, at minimum, one individual were removed from Clark Slough in Brevard County, FL during a general surface collection. The site dates to the St. Johns period (500 B.C.-A.D. 1565). No known individuals were identified. No associated funerary objects are present.
In 1975-76, human remains representing, at minimum, one individual were removed from Nauman's Place in Brevard County, FL during a general surface collection. The site dates to the St. Johns period (500 B.C.-A.D. 1565). No known individuals were identified. No associated funerary objects are present.
In 1975-76, human remains representing, at minimum, one individual were removed from Bill's Hill in Brevard County, FL during test excavations. The site dates to the St. Johns I period (A.D. 500-800). No known individuals were identified. No associated funerary objects are present.
In 1979, human remains representing, at minimum two individuals were removed from Ross Hammock in Volusia County, FL by an unknown individual from a spoil pile. The site dates to the St. Johns I period (A.D. 500-800). No known individuals were identified. No funerary objects are present.
In 1988-89, human remains representing, at minimum, one individual were removed from an unnamed site in Volusia County, FL by a park visitor during a boardwalk restoration project. No known individuals were identified. No associated funerary objects are present.
Cultural affiliation of the human remains described above could not be determined due to uncertain burial provenience, lack of culturally affiliated historic artifacts, and/or the antiquity of the remains.
Officials of Canaveral National Seashore have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on archeological context.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of eight individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains were removed is the aboriginal land of the Miccosukee Tribe of Indians and the Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)).
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains were removed is the aboriginal land of the Miccosukee Tribe of Indians and the Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)).
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains may be to the Miccosukee Tribe of Indians and the Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)).
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Myrna Palfrey, Superintendent, Canaveral National Seashore, 212 S. Washington Avenue, Titusville, FL 32796-3553, telephone (321) 267-1110, email
Canaveral National Seashore is responsible for notifying the Miccosukee Tribe of Indians and the Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)) that this notice has been published.
National Park Service, Interior.
Notice; correction.
The U.S. Department of the Interior, National Park Service, Hubbell Trading Post National Historic Site has corrected an inventory of human remains, published in a Notice of Inventory Completion in the
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Hubbell Trading Post National Historic Site at the address in this notice by November 2, 2015.
Lloyd Masayumptewa, Superintendent, Hubbell Trading Post National Historic Site, P.O. Box 150, Ganado, AZ 86505-0150, telephone (928) 755-3475, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the correction of an inventory of human remains under the control of the U.S. Department of the Interior, National Park Service, Hubbell Trading Post National Historic Site, Ganado, AZ. The human remains were removed from Hubbell Trading Post National Historic Site, Apache County, AZ.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the Superintendent, Hubbell Trading Post National Historic Site.
This notice corrects the disposition determination and clarifies one removal date published in a Notice of Inventory Completion in the
In the
At an unknown date, likely after 1887, human remains representing, at minimum, one individual were removed from an unknown site, likely within the boundaries of Hubbell Trading Post National Historic Site. The remains were donated to the Trading Post at an unknown date by the Hubbell family.
In the
In the
• Pursuant to 25 U.S.C. 3001(15), the land from which the Native American human remains were removed is the tribal land of the Navajo Nation, Arizona, New Mexico & Utah.
In the
• Pursuant to 43 CFR 10.11(c)(1)(i), the disposition of the human remains will be to the Navajo Nation, Arizona, New Mexico & Utah.
In the
After that date, if no additional requestors have come forward, transfer of control of the human remains to the Navajo Nation, Arizona, New Mexico & Utah may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Lloyd Masayumptewa, Superintendent, Hubbell Trading Post National Historic Site, P.O. Box 150, Ganado, AZ 86505-0150, telephone (928) 755-3475, email
Hubbell Trading Post National Historic Site is responsible for notifying The Consulted Tribes and The Invited Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Army Corps of Engineers, Omaha District (Omaha District), has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the Omaha District. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Omaha District at the address in this notice by November 2, 2015.
Ms. Sandra Barnum, U.S. Army Engineer District, Omaha, ATTN: CENWO-PM-AB, 1616 Capitol Ave., Omaha, NE 68102, telephone, (402) 995-2674, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the Omaha District. The human remains and associated funerary objects were removed from the Akichita site (39BF221), Buffalo County, SD.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains and associated funerary objects was made by State Archaeological Research Center and Omaha District professional staff in consultation with representatives of The Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota.
In 1962, human remains representing, at minimum, six individuals were removed from the Akichita site (39BF221) in Buffalo County, SD. Human remains excavated from the Akichita Site (39BF221) are presently located at the South Dakota State Archaeological Research Center (SARC), under control of the Omaha District. The human remains were collected during a salvage excavation at the site under the direction of Robert Gant, State Archaeological Commission, Vermillion, SD. The human remains, soil samples, and funerary objects collected by Gant were transported to the Commission's office at the W.H. Over Museum, Vermillion, SD.
In 1974, the collections were transferred to the newly established SARC. The human remains were then transferred to the University of Tennessee-Knoxville to be inventoried by Dr. William Bass.
The remains were returned to SARC in the 1980s, and were reburied at site 39ST15 along the Missouri River near Fort Pierre.
In 1999, a review of the 39BF221 collection located fragments of human remains from a these burials along with 7 funerary objects. The additional human remains, primarily hand bones, are from two adult individuals. No known individuals were identified. The associated funerary objects are 6 soil samples and a fragmented birch-wood twig mat.
The human remains were collected from the component of the site associated with the Coalescent Tradition (AD 1300-1780). The human remains are determined to be Native American due to their manner of burial, original context in the Native American component of the site, and the associated site artifacts of Native American origin. The Coalescent Tradition, based on oral tradition, physical anthropological data, archaeological data, and historic accounts, is likely to be ancestral Arikara. The Arikara are represented by the Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota.
Officials of the U.S. Army Corps of Engineers, Omaha District have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of two individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 7 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Ms. Sandra Barnum, U.S. Army Engineer District, Omaha, ATTN: CENWO-PM-AB, 1616 Capitol Ave., Omaha, NE 68102, telephone, (402) 995-2674, email
The U.S. Army Corps of Engineers, Omaha District is responsible for notifying the Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota, that this notice has been published.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping and countervailing duty orders on Certain Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe from China would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission;
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
(1)
(2) The
(3) The
(4) The
(5) The
(6) An
Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation or an earlier review of the same underlying investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Carol McCue Verratti, Deputy Agency Ethics Official, at 202-205-3088.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping and countervailing duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping or countervailing duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand
(13) (Optional) A statement of whether you agree with the above definitions of the
This proceeding is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping duty orders on Seamless Refined Copper Pipe and Tube from China and Mexico would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission;
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
(1)
(2) The
(3) The
(4) The
(5) The
(6) An
Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (OPTIONAL) A statement of whether you agree with the above definitions of the
This proceeding is being conducted under authority of Title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review the presiding administrative law judge's (“ALJ”) initial determination (“ID”) (Order No. 13) granting an unopposed motion to withdraw the complaint and terminate the investigation as to remaining respondent Tech21 UK Limited of Twickenham, United Kingdom (“Tech21”).
Panyin A. Hughes, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-3042. 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
The Commission instituted this investigation on April 30, 2015, based on a Complaint filed by Otter Products, LLC of Fort Collins, Colorado (“OtterBox”). 80 FR 24276 (Apr. 30, 2015). The Complaint, as amended, alleges violations of section 337 of the Tariff Act of 1930, as amended, 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 protective cases for electronic devices and components thereof by reason of infringement of certain claims of U.S. Patent Nos. 8,792,232 and 8,976,512. The notice of investigation named Speculative Product Design, LLC of San Mateo, California (“Speck”) and Tech21 as respondents. The Office of Unfair Import Investigations is not a party to this investigation.
On July 22, 2015, the ALJ issued an ID granting a motion to terminate the investigation as to Speck based upon settlement.
On September 8, 2015, OtterBox and Tech21 jointly moved to terminate the investigation in its entirety based upon withdrawal of the complaint. No responses to the motion were received.
On September 9, 2015, the ALJ issued the subject ID, granting the unopposed motion. The ALJ found that the motion complied with the requirements of Commission Rule 210.21(a)(1) (19 CFR 210.21(a)(1)) and further found that no extraordinary circumstances prohibited granting the motion. None of the parties petitioned for review of the ID.
The Commission has determined not to review the 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 Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping and countervailing duty orders on Certain Coated Paper Suitable for High-Quality Print Graphics Using Sheet-Fed Presses from China and Indonesia would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission;
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
(1)
(2) The
(3) The
(4) The
(5) The
(6) An
Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation or an earlier review of the same underlying investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Carol McCue Verratti, Deputy Agency Ethics Official, at 202-205-3088.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping and countervailing duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping or countervailing duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (OPTIONAL) A statement of whether you agree with the above definitions of the
This proceeding is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server at United States International Trade Commission (USITC) at
The Commission has received a complaint and a submission pursuant to section 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Varian Medical Systems, Inc. and Varian Medical Systems International AG on September 25, 2015. 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 radiotherapy systems and treatment planning software, and components thereof. The complaint names as respondents Elekta AB of Sweden; Elekta Ltd. of the United Kingdom; Elekta Gmbh of Germany; Elekta Inc. of Atlanta, GA; Elekta Holdings U.S., Inc. of Atlanta, GA; IMPAC Medical Systems, Inc. of Sunnyvale, CA; Elekta Instrument (Shanghai) Limited of China and Elekta Beijing Medical Systems Co. Ltd. of China. The complainant requests that the Commission issue a permanent limited exclusion order, a permanent cease and desist order, and a bond upon respondents' alleged infringing articles during the 60-day Presidential review period pursuant to 19 U.S.C. 1337(j).
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or section 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3086”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the countervailing duty order on heavy iron construction castings from Brazil, the antidumping duty order on heavy iron construction castings from Canada, and the antidumping duty orders on iron construction castings from Brazil and China would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission;
Effective October 1, 2015.
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
(1)
(2) The
(3) The
(4) The
(5) An
Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping and countervailing duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping or countervailing duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (Optional) A statement of whether you agree with the above definitions of the
This proceeding is being conducted under authority of Title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
On the basis of the record
The Commission, pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)), instituted these reviews on May 1, 2015 (80 FR 24976) and determined on August 4, 2015 that it would conduct expedited reviews (80 FR 50026, August 18, 2015).
The Commission made these determinations pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)). It completed and filed its determinations in these reviews on September 28, 2015. The views of the Commission are contained in USITC Publication 4569 (September 2015), entitled
By order of the Commission.
On September 25, 2015, the Trustee of the estate of Harbhupinder Bains filed a proposed Stipulation and Agreed Order with the United States Bankruptcy Court for the Southern District of Indiana in the bankruptcy proceedings of Harbhupinder Bains, Chap. 7, Bankruptcy Case No. 11-09462.
On March 18, 2015, the United States filed an administrative expense claim of $600,227.66 in the bankruptcy on behalf of the U.S. Coast Guard (“USCG”), seeking recovery of costs incurred under the Oil Pollution Act (“OPA”) in connection with a removal action on and adjacent to property of the estate in Cloverdale, Indiana (the “Facility”).
Under the Stipulation and Agreed Order, the United States will receive an allowed administrative claim of $300,000 in the bankruptcy case to be satisfied from proceeds that first become available, except that the $300,000 allowed administrative expense claim shall be subordinate to any allowed administrative expense claim of the Trustee for statutory fees, state or federal income taxes payable by the estate, and allowed administrative expense claims for fees and expenses of counsel and accountants for the Trustee. The remainder of the United States' claim amount shall constitute an allowed general unsecured claim in the bankruptcy case.
The Stipulation and Agreed Order provides for a covenant not to sue by the USCG under the OPA against the Trustee or the Debtor's estate for removal costs that the USCG has paid in connection with the Facility.
The publication of this notice opens a period for public comment on the Stipulation and Agreed Order. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Stipulation and Agreed Order may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $2.00 payable to the United States Treasury.
Office of Justice Programs (OJP), Justice.
Notice of meeting.
This is an announcement of a meeting of the Global Justice Information Sharing Initiative (Global) Federal Advisory Committee (GAC) to discuss the Global Initiative, as described at
The meeting will take place on Wednesday, November 4, 2015, from 9:00 a.m. to 4:00 p.m. ET.
The meeting will take place at the Office of Justice Programs (in the Main Conference Room), 810 7th Street NW., Washington, DC 20531; Phone: (202) 514-2000 [
J. Patrick McCreary, Global Designated Federal Employee (DFE), Bureau of Justice Assistance, Office of Justice Programs, 810 7th Street NW., Washington, DC 20531; Phone: (202) 616-0532 [Note: this is not a toll-free number]; Email:
This meeting is open to the public. Due to security measures, however, members of the public who wish to attend this meeting must register with Mr. J. Patrick McCreary at the above address at least (7) days in advance of the meeting. Registrations will be accepted on a space available basis. Access to the meeting will not be allowed without registration. All attendees will be required to sign in at the meeting registration desk. Please bring photo identification and allow extra time prior to the meeting.
Anyone requiring special accommodations should notify Mr. McCreary at least seven (7) days in advance of the meeting.
The GAC will act as the focal point for justice information systems integration activities in order to facilitate the coordination of technical, funding, and legislative strategies in support of the Administration's justice priorities.
The GAC will guide and monitor the development of the Global information sharing concept. It will advise the Assistant Attorney General, OJP, and the Attorney General. The GAC will also advocate for strategies for accomplishing a Global information sharing capability.
Interested persons whose registrations have been accepted may be permitted to participate in the discussions at the discretion of the meeting chairman and with approval of the DFE.
The Bureau of Labor Statistics Data Users Advisory Committee will meet on Thursday, November 12, 2015. The meeting will be held in the Postal Square Building, 2 Massachusetts Avenue NE., Washington, DC.
The Committee provides advice to the Bureau of Labor Statistics from the points of view of data users from various sectors of the U.S. economy, including the labor, business, research, academic, and government
The meeting will be held in Meeting Rooms 1, 2, and 3 of the Postal Square Building Conference Center. The schedule and agenda for the meeting are as follows:
The meeting is open to the public. Any questions concerning the meeting should be directed to Kathy Mele, Data Users Advisory Committee, on 202.691.6102. Individuals who require special accommodations should contact Ms. Mele at least two days prior to the meeting date.
National Aeronautics and Space Administration (NASA).
Notice of Meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, and the President's 2004 U.S. Space-Based Positioning, Navigation, and Timing (PNT) Policy, the National Aeronautics and Space Administration (NASA) announces a meeting of the National Space-Based Positioning, Navigation, and Timing (PNT) Advisory Board.
Friday, October 30, 2015, 9:00 a.m. to 5:00 p.m.; and Saturday, October 31, 2015, 9:00 a.m. to 5:00 p.m., Local Time.
University Corporation for Atmospheric Research—Center Green campus, 3090 Center Green Drive, Boulder, CO 80309.
Mr. James J. Miller, Human Exploration and Operations Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-4417, fax (202) 358-4297, or
The meeting will be open to the public up to the seating capacity of the room. This meeting is being scheduled in coordination with the International Committee on Global Navigation Satellite Systems (ICG) being held at the same venue the following week. Visitors will be requested to sign an attendance roster.
The agenda for the meeting includes the following topics:
• Examine emerging trends and requirements for PNT services in U.S. and international arenas through PNT Board policy and technical evaluations.
• Update on PNT Policy and Global Positioning System (GPS) modernization.
• Prioritize current and planned GPS capabilities and services while assessing future PNT architecture alternatives with a focus on affordability.
• Examine methods in which to Protect, Toughen, and Augment (PTA) access to GPS/Global Navigation Satellite Systems (GNSS) services in key domains for multiple user sectors.
• Assess economic impacts of GPS on the United States and in select international regions, with a consideration towards effects of potential PNT service disruptions if radio spectrum interference is introduced.
• Explore opportunities for enhancing the interoperability of GPS with other emerging international GNSS.
• Review the potential benefits, perceived vulnerabilities, and any proposed regulatory constraints to accessing foreign Radio Navigation Satellite Service (RNSS) signals in the United States and subsequent impacts on multi-GNSS receiver markets.
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Science Committee of the NASA Advisory Council (NAC). This Committee reports to the NAC. The meeting will be held for the purpose of soliciting, from the scientific community and other persons, scientific and technical information relevant to program planning.
Monday, November 2, 2015, 10:00 a.m. to 5:30 p.m., Eastern Standard Time (EST).
The meeting will be available telephonically and by WebEx. You must use a touch-tone phone to participate in this meeting. Any interested person may dial the USA toll free conference call number 1-800-988-9663, passcode 8015, to participate in this meeting by telephone. A toll number also is available, 1-517-308-9483, passcode 8015. The WebEx link is
Ms. Ann Delo, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-0750, fax (202) 358-2779, or
The agenda for the meeting includes the following topics:
It is imperative that this meeting be held on these dates to accommodate the scheduling priorities of the key participants.
Office of the Federal Register.
Notice of special procedures.
In the event of an appropriations lapse, the Office of the Federal Register (OFR) would be required to publish documents directly related to the performance of governmental functions necessary to address imminent threats to the safety of human life or protection of property. Since it would be impracticable for the OFR to make case-by-case determinations as to whether certain documents are directly related to activities that qualify for an exemption under the Antideficiency Act, the OFR will place responsibility on agencies submitting documents to certify that their documents relate to emergency activities authorized under the Act.
Amy Bunk, Director of Legal Affairs and Policy, or Miriam Vincent, Staff Attorney, Office of the Federal Register, National Archives and Records Administration, (202) 741-6030 or
Due to the possibility of a lapse in appropriations and in accordance with the provisions of the Antideficiency Act, as amended by Public Law 101-508, 104 Stat. 1388 (31 U.S.C. 1341), the Office of the Federal Register (OFR) announces special procedures for agencies submitting documents for publication in the
In the event of an appropriations lapse, the OFR would be required to publish documents directly related to the performance of governmental functions necessary to address imminent threats to the safety of human life or protection of property. Since it would be impracticable for the OFR to make case-by-case determinations as to whether certain documents are directly related to activities that qualify for an exemption under the Antideficiency Act, the OFR will place responsibility on agencies submitting documents to certify that their documents relate to emergency activities authorized under the Act.
During a funding hiatus affecting one or more Federal agencies, the OFR will remain open to accept and process documents authorized to be published in the daily
Under the August 16, 1995 opinion of the Office of Legal Counsel of the Department of Justice, exempt functions and services would include activities such as those related to the constitutional duties of the President, food and drug inspection, air traffic control, responses to natural or manmade disasters, law enforcement and supervision of financial markets. Documents related to normal or routine activities of Federal agencies, even if funded under prior year appropriations, will not be published.
At the onset of a funding hiatus, the OFR may suspend the regular three-day publication schedule to permit a limited number of exempt personnel to process emergency documents. Agency officials will be informed as to the schedule for filing and publishing individual documents.
The authority for this action is 44 U.S.C. 1502 and 1 CFR 2.4 and 5.1.
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, “Disposal of High-Level Radioactive Wastes in Geologic Repositories.”
Submit comments by November 2, 2015.
Submit comments directly to the OMB reviewer at: Vlad Dorjets, Desk Officer, Office of Information and Regulatory Affairs (3150-0127), NEOB-10202, Office of Management and Budget, Washington, DC 20503; telephone: 202-395-7315; email:
Tremaine Donnell, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-6258; email:
Please refer to Docket ID NRC-2015-0108 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
•
•
•
•
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, “Disposal of High-Level Radioactive Wastes in Geologic Repositories.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, “Financial Protection Requirements and Indemnity Agreements.”
Submit comments by November 2, 2015.
Submit comments directly to the OMB reviewer at: Vlad Dorjets, Desk Officer, Office of Information and Regulatory Affairs (3150-0039), NEOB-10202, Office of Management and Budget, Washington, DC 20503; telephone: 202-395-7315, email:
Tremaine Donnell, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-6258; email:
Please refer to Docket ID NRC-2015-0119 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
•
•
•
•
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, “Financial Protection Requirements and Indemnity Agreements.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
For the Nuclear Regulatory Commission.
Week of September 28, 2015.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public.
The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Glenn Ellmers at 301-415-0442 or via email at
By a vote of 4-0 on September 28, 2015, the Commission determined pursuant to U.S.C. 552b(e) and 9.107(a) of the Commission's rules that the above referenced Affirmation Session be held with less than one week notice to the public. The meeting is scheduled on October 1, 2015.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301-415-1969), or email
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget (OMB) approval for an existing collection of information. The information collection is entitled, 10 CFR part 55, “Operators' Licenses.”
Submit comments by November 30, 2015. Comments received after this
You may submit comments by any of the following methods:
•
•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Tremaine Donnell, Office of Information Services, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-6258; email:
Please refer to Docket ID NRC-2015-0218 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
•
•
•
•
Please include Docket ID NRC-2015-0218 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at fnl;
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the estimate of the burden of the information collection accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
U.S. Office of Personnel Management.
Emergency Clearance.
The Federal Investigative Services (FIS), U.S. Office of Personnel Management (OPM) is notifying the
OPM is requesting clearance of the collection for the maximum period of six months.
The INV100A, “Privacy Act Request For Completed Standard Form SF85/SF85P/SF86” will permit OPM to more efficiently process Privacy Act requests from individuals seeking to access their most recently completed Standard Form (
U.S. Office of Personnel Management.
Office of Personnel Management.
30-Day Notice and request for comments.
The President's Commission on White House Fellowships, Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on an information collection request (ICR) 3206-XXXX, White House Fellows Application. As required by the Paperwork Reduction Act of 1995, (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection. The information collection was previously published in the
Comments are encouraged and will be accepted until November 2, 2015. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Office of Information and Regulatory Affairs, Office of Management Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
The Office of Management and Budget is particularly interested in comments that:
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,
Founded in 1964 by Lyndon B. Johnson, the White House Fellows program is one of America's most prestigious programs for leadership and public service. White House Fellowships offer exceptional young men and women first-hand experience working at the highest levels of the Federal government.
Selected individuals typically spend a year working as a full-time, paid Fellow to senior White House Staff, Cabinet Secretaries and other top-ranking government officials. Fellows also participate in an education program consisting of roundtable discussions with renowned leaders from the private and public sectors, and trips to study U.S. policy in action both domestically and internationally. Fellowships are awarded on a strictly non-partisan basis
U.S. Office of Personnel Management.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning an additional Global Expedited Package Services 3 negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
On September 24, 2015, the Postal Service filed notice that it has entered into an additional Global Expedited Package Services 3 (GEPS 3) negotiated service agreement (Agreement).
To support its Notice, the Postal Service filed a copy of the Agreement, a copy of the Governors' Decision authorizing the product, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket No. CP2015-143 for consideration of matters raised by the Notice.
The Commission invites comments on whether the Postal Service's filing is consistent with 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than October 5, 2015. The public portions of the filing can be accessed via the Commission's Web site (
The Commission appoints Kenneth R. Moeller to serve as Public Representative in this docket.
It is ordered:
1. The Commission establishes Docket No. CP2015-143 for consideration of the matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, Kenneth R. Moeller is appointed to serve as an officer of the Commission to represent the interests of the general public in this proceeding (Public Representative).
3. Comments are due no later than October 5, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
The following is a notice of applications for deregistration under section 8(f) of the Investment Company Act of 1940 for the month of September 2015. A copy of each application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
The Commission: Brent J. Fields, Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
Chief Counsel's Office at (202) 551-6821, SEC, Division of Investment Management, Chief Counsel's Office, 100 F Street NE., Washington, DC 20549-8010.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to amend the MIAX Options Fee Schedule (the “Fee Schedule”) to modify the Exchange's connectivity fees.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its Fee Schedule regarding connectivity to the Exchange. Specifically, the Exchange proposes to (a) establish a new connectivity fee for a 10Gigabit (“Gb”) ultra-low latency (“ULL”) fiber connection; (b) establish a new connectivity testing and certification fee for the 10Gb ULL fiber connection; and (c) change the network connectivity fees so that the fees assessed to a subscriber during a trading month are pro-rated when a subscriber makes a change to the connectivity (by adding or deleting connections) with such pro-rated fees based on the number of trading days that the subscriber has been credentialed to utilize any of the Exchange application program interfaces (“APIs”) in the production environment through such connection, divided by the total number of trading days in such month multiplied by the applicable monthly rate.
The Exchange currently offers various bandwidth alternatives for connectivity to the Exchange, including a 10Gb fiber connection and a 1Gb fiber connection.
The Exchange proposes a monthly network connectivity fee of $7,500 for a 10Gb ULL connection for both members and non-members. The Exchange also proposes a network connectivity testing and certification fee of $4,000 for members and $4,200 for non-members, which is identical to the testing and certification fee for the current 10Gb fiber connection. It has been MIAX's experience that Member testing takes less time than non-Member testing because Members have more experience testing these systems with the Exchange; generally fewer questions and issues arise during the testing and certification process. Therefore, the Exchange believes that it is reasonable to charge non-Members more for testing and certification than Members.
The network connectivity fee for the 10Gb ULL connectivity will be pro-rated based on the number of trading days that the member or non-member has been credentialed to utilize any of the Exchange APIs in a production environment through the 10Gb ULL connection, divided by the total number of trading days in such month multiplied by the monthly rate. MIAX participants may also be credentialed to receive market data through the 10Gb ULL connection.
The Exchange believes that the pricing of the 10Gb ULL connectivity is reflective of the value it will provide and the cost to the Exchange for the necessary hardware and other infrastructure and maintenance costs to the Exchange associated with this technology. The growth in the size of consolidated and proprietary data feeds has resulted in demand for faster processing of message traffic, and ultra-low latency switches meet this demand by decreasing the time in which individual messages are processed and market data is transmitted by these new switches. The Exchange's proposal will provide MIAX participants with the opportunity to connect to the Exchange via faster switch processing. The
The Exchange also proposes to modify its network connectivity fees for all of its connections. Specifically, the Exchange proposes to pro-rate both member and non-member network connectivity fees assessed when a MIAX participant makes a change to its connectivity by adding or deleting connections. The pro-rated fee will be based upon the number of trading days that the MIAX participant has been credentialed to utilize any of the Exchange APIs in a production environment through the applicable connection, divided by the total number of trading days in such month multiplied by the applicable monthly rate. The Exchange believes that providing members and non-members the ability to change connectivity between the Exchange's 1Gb, 10Gb and 10Gb ULL lines and be charged accordingly will provide each MIAX participant with greater flexibility and potential cost savings. MIAX participants may also be credentialed to receive market data through such connections.
The Exchange proposes to implement the proposed changes to the Fee Schedule effective as of October 1, 2015.
MIAX believes that its proposal to amend its fee schedule is consistent with Section 6(b) of the Act
The Exchange believes that its proposal is consistent with Section 6(b)(4) of the Act because the fees assessed for 10Gb ULL connectivity fee allow the Exchange to cover the costs associated with the purchase of new, state-of-the-art switches for this new offering. The switches are priced at a premium, the cost of which the Exchange must bear. The Exchange believes that the proposal to establish fees for the 10Gb ULL connectivity is fair, equitable and not unreasonably discriminatory because the fees are assessed equally among all users of the connection.
The Exchange believes that the proposed Member and non-Member Network Connectivity Testing and Certification Fees are consistent with Section 6(b)(4) of the Act because they are identical to the connectivity and certification fees currently assessed for 10Gb fiber connectivity. The Exchange notes that it will incur the same costs associated with setting up a subscriber with either 10Gb or 10Gb ULL fiber connectivity. The network connectivity testing and certification fee of $4,000 for members and $4,200 for non-Members, which is identical to the testing and certification fee for the current 10Gb fiber connection is reasonable and not unfairly discriminatory. As stated above, it has been MIAX's experience that Member testing takes less time than non-Member testing because Members have more experience testing these systems with the Exchange; generally fewer questions and issues arise during the testing and certification process. Therefore, the Exchange believes that it is reasonable to charge non-Members more for testing and certification than Members.
As discussed above, PHLX and ISE each offer different connections with respect to latency, and NYSE Arca, Inc. and NYSE Amex both offer similar connectivity alternatives. Despite this, all of them charge a higher fee than the Exchange proposes to charge for the same 10Gb lower-latency connection. For these reasons, the Exchange believes the proposed fees for 10Gb ULL fiber connectivity to the Exchange are reasonable and not unfairly discriminatory.
The Exchange also believes the proposed 10Gb ULL fiber connectivity testing and certification fees and connectivity fees are equitably allocated in that all Members and non-Members that voluntarily select this service option will be charged the same amount to cover the hardware, installation, testing and connection costs to maintain and manage the enhanced connection. All Members and non-Members may subscribe to this voluntary connectivity, and the Exchange is not eliminating any existing connectivity. Accordingly, a Member or non-Member may elect not to subscribe to the 10Gb ULL fiber connection and retain the connection to which it is currently subscribed.
The Exchange also believes that the proposed change to pro-rate the fees in the event of a connectivity change during any trading month is fair and reasonable because such change will allow all MIAX participants to subscribe to the most effective connectivity according to their trading and data feed requirements and as a result will only be assessed fees for the connectivity for which they were credentialed to utilize any of the Exchange APIs in a production environment through the applicable connection during any trading month. MIAX participants may also be credentialed to receive market data through such connections. The Exchange's proposal to pro-rate the fees in the event of a connectivity change during any trading month is also equitable since it applies equally to all subscribers to the Exchange's connectivity.
The Exchange also believes the proposals further the objectives of Section 6(b)(5) of the Act
The 10Gb ULL fiber connectivity assists MIAX participants in making their network connectivity more efficient by reducing the time messages take to reach the Exchange once sent from their server and to be received by the MIAX participant from the Exchange. Speed and efficiency are important drivers of the U.S. securities markets and the Exchange is offering a
The Exchange also believes the proposed connectivity testing and certification fees and connectivity fees for the 10Gb ULL fiber connection are consistent with Section 6(b)(5) of the Act because all MIAX participants have the opportunity to subscribe to the 10Gb ULL connection. There is no differentiation among MIAX participants with regard to the fees charged for these services.
The Exchange also believes that the Exchange's pro-rating of network connectivity fees in the event of a connectivity change is consistent with Section 6(b)(5) of the Act since all subscribers will receive the benefit of being charged only for the connectivity through which it was credentialed to utilize the Exchange APIs in a production environment through the applicable connection during any trading month. MIAX participants may also be credentialed to receive market data through such connections.
The Exchange does not believe that the proposed rule changes will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. On the contrary, the Exchange believes that the proposed changes should increase both intermarket and intramarket competition. Specifically, the Exchange believes that the changes will promote competition by offering MIAX participants more flexibility in their choice of Exchange connectivity, and that the availability of the lower-latency connectivity in turn will enhance their trading operations and ultimately bring greater speed and efficiency to trading in the marketplace.
The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges. The Exchange believes that the proposed changes reflect this competitive environment because they increase the types of connections available to MIAX participants and should result in potential cost savings to a market participant. Given the robust competition for a higher speed network among options markets, many of which offer the same products, enhancing the type of connectivity available on MIAX is consistent with the goals of the Act.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
On July 24, 2015, ICE Clear Europe Limited (“ICE Clear Europe”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
ICE Clear Europe has proposed to amend its CDS End-of-Day Price Discovery Policy (the “EOD Price Discovery Policy”) to make certain enhancements to the end-of-day submission and firm trade process for CDS contracts. ICE Clear Europe also proposed to adopt a new Price Submission Disciplinary Framework (the “Disciplinary Framework”) that addresses missed price submissions by Clearing Members for CDS contracts. ICE Clear Europe did not otherwise propose to change its Clearing Rules or Procedures in connection with these amendments.
As described by ICE Clear Europe, under the EOD Price Discovery Policy, ICE Clear Europe currently utilizes a “cross and lock” algorithm as part of its CDS price discovery process. Under this algorithm, standardized bids and offers derived from Clearing Member submissions are matched by sorting them from highest to lowest and lowest to highest levels, respectively. This sorting process pairs the Clearing Member submitting the highest bid price with the Clearing Member submitting the lowest offer price, the Clearing Member submitting the second highest bid price with the Clearing Member submitting the second-lowest offer price, and so on. The algorithm then identifies crossed and/or locked markets. Crossed markets are the Clearing Member pairs generated by the sorting and ranking process for which the bid price of one Clearing Member is above the offer price of the matched Clearing Member. The algorithm identifies locked markets, where the bid and the offer are equal, in a similar fashion.
According to ICE Clear Europe, whenever there are crossed and/or locked matched markets, the algorithm applies a set of rules designed to identify standardized submissions that are “obvious errors.” The algorithm sets a high bid threshold equal to the preliminary end-of-day (“EOD”) level plus one bid-offer width (“BOW”), and a low offer threshold equal to the preliminary EOD level minus one BOW. The algorithm considers a Clearing Member's standardized submission to be an “obvious error” if the bid is higher than the high bid threshold, or the offer is lower than the low offer threshold.
Clearing Member pairs identified by the algorithm as crossed or locked markets may be required from time to time, under the EOD Price Discovery Policy, to enter into cleared CDS trades with each other (“Firm Trades”). Currently, ICE Clear Europe excludes standardized submissions it identifies as obvious errors from potential Firm Trades and does not use these submissions in its determination of published EOD levels.
ICE Clear Europe has proposed to impose certain consequences under the Firm Trade methodology for Clearing Members providing price discovery submissions deemed to be obvious errors. ICE Clear Europe has represented that, as revised, the process for determining potential Firm Trades will now include all standardized submissions, including those classified as obvious errors (and as a result submissions that are obvious errors may result in Firm Trades). However, obvious errors will not be used in the calculation of the final EOD level, as under the current framework. Thus, ICE Clear Europe has represented that it will effectively execute its current EOD algorithm twice: initially in the same way it does today (eliminating obvious errors) to generate the final EOD levels, and again, without excluding obvious errors, to generate Firm Trades and related reversing transactions.
To limit the potential exposure created through Firm Trades that include a bid or offer from an obvious error submission, ICE Clear Europe has represented that it will adjust Firm Trade prices, where appropriate, to fall within a predefined band on either side of the EOD price such that the potential profit or loss (“P/L”) realized by unwinding the trade at the EOD level is capped.
To prevent Clearing Members from receiving Firm Trades with large P/L impact in certain index instruments that are less actively traded, and for which it is therefore more difficult and/or more expensive to manage the associated risk, ICE Clear Europe has represented that it will automatically generate reversing transactions at the end-of-day price level for specific index CDS instruments (
ICE Clear Europe has also proposed revising the EOD Price Discovery Policy to remove the option for Clearing Members to provide end-of-day price submissions for single name CDS instruments in terms of spread and associated recovery rate. Under the revised approach, Clearing Members will be required to provide price submissions (or equivalent “points upfront” submissions) for all single name CDS instruments. Clearing
ICE Clear Europe has also proposed to implement a new Disciplinary Framework, which addresses failures by a Clearing Member to provide required EOD price submissions for CDS Contracts in which they hold cleared open interest with ICE Clear Europe (“Missed Submissions”). For purposes of the Disciplinary Framework, obvious errors (as described above) with respect to CDX index CDS contracts will also be treated as Missed Submissions (since such instruments are not subject to Firm Trade requirements). ICE Clear Europe has represented that it will impose a cash assessment on Clearing Members for each Missed Submission, generally ranging from $1,000 to $4,000, depending on whether the Missed Submission related to an index or single-name, whether it occurred on an announced firm trade date and whether the related contract is actively traded. For single name CDS contracts, the framework will also specify an aggregate daily maximum assessment per Clearing Member for multiple Missed Submissions and a daily maximum assessment per Clearing Member per risk sub-factor.
As part of a new summary assessment process, ICE Clear Europe has represented that it will determine on a monthly basis whether a Clearing Member has any Missed Submissions and provide the Clearing Member a notice of assessment with details of such Missed Submissions. The notice of assessment will include information about the date, type, quantity and assessment amount for the relevant Missed Submission(s). The Disciplinary Framework will also provide a procedure for a Clearing Member to dispute a notice of assessment. ICE Clear Europe has represented that a Clearing Member will have fifteen days from the notice of assessment to dispute the notice or seek to have it waived or rescinded. ICE Clear Europe has represented that it may grant a waiver of an assessment for certain specified reasons. A conditional waiver may be granted for the first instance of a Missed Submission for a particular instrument, provided that the Clearing Member does not have another Missed Submission in that instrument within 90 days. ICE Clear Europe has represented that it may grant an unconditional waiver where Missed Submissions result from extraordinary circumstances outside of the Clearing Member's control, such as market-wide disruptions. ICE Clear Europe has represented the imposition of a cash assessment on a Clearing Member does not preclude ICE Clear Europe from taking any other disciplinary action against a Clearing Member under the Rules and Procedures, including for persistent failures to meet the requirements of the EOD Price Discovery Policy.
Section 19(b)(2)(C) of the Act
The Commission finds that ICE Clear Europe's proposed revisions to its EOD Price Discovery Policy and its proposed new Disciplinary Framework are consistent with the requirements of Section 17A of the Act
The Commission therefore believes that the proposal is designed to promote the prompt and accurate clearance and settlement of securities transactions and derivative agreements, contracts and transactions cleared by ICE Clear Europe and, in general, to protect investors and the public interest, consistent with Section 17A(b)(3)(F) of the Act.
On the basis of the foregoing, the Commission finds that the proposed rule change is consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 17f-1(c) requires approximately 15,500 entities in the securities industry to report lost, stolen, missing, or counterfeit securities certificates to the Commission or its designee, to a registered transfer agent for the issue, and, when criminal activity is suspected, to the Federal Bureau of Investigation. Such entities are required to use Form X-17F-1A to make such reports. Filing these reports fulfills a statutory requirement that reporting institutions report and inquire about missing, lost, counterfeit, or stolen securities. Since these reports are compiled in a central database, the rule facilitates reporting institutions to access the database that stores information for the Lost and Stolen Securities Program.
We estimate that 15,500 reporting institutions will report that securities certificates are either missing, lost, counterfeit, or stolen annually and that each reporting institution will submit this report 30 times each year. The staff estimates that the average amount of time necessary to comply with Rule 17f-1(c) and Form X17F-1A is five minutes per submission. The total burden is 38,750 hours annually for the entire industry (15,500 times 30 times 5 divided by 60).
Rule 17f-1(c) is a reporting rule and does not specify a retention period. The rule requires an incident-based reporting requirement by the reporting institutions when securities certificates are discovered to be missing, lost, counterfeit, or stolen. Registering under Rule 17f-1(c) is mandatory to obtain the benefit of a central database that stores information about missing, lost, counterfeit, or stolen securities for the Lost and Stolen Securities Program. Reporting institutions required to register under Rule 17f-1(c) will not be kept confidential; however, the Lost and Stolen Securities Program database will be kept confidential.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following Web site:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 613 of Regulation NMS (17 CFR part 242) requires national securities exchanges and national securities associations (“self-regulatory organizations” or “SROs”) to jointly submit to the Commission a national market system (“NMS”) plan to govern the creation, implementation, and maintenance of a consolidated audit trail and central repository for the collection of information for NMS securities. The NMS plan must require each SRO and its respective members to provide certain data to the central repository in compliance with Rule 613. When it adopted Rule 613, the Commission discussed the burden hours associated with the development and submission of the NMS plan.
The SROs submitted to the Commission the NMS plan on September 30, 2014
The Commission estimates that each of the 19 SROs would spend a total of 2,760 burden hours of internal legal, compliance, information technology, and business operations time to comply with the existing collection of information, calculated as follows: (880 programmer analyst hours) + (880 business analyst hours) + (700 attorney hours) + (300 compliance manager hours) = 2,760 burden hours to prepare and file an NMS plan, or approximately 52,440 burden hours in the aggregate, calculated as follows: (2,760 burden
The Commission further estimates that the aggregate one-time reporting burden for preparing and filing an NMS plan would be approximately $20,000 in external legal costs per SRO, calculated as follows: 50 legal hours × $400 per hour = $20,000, for an aggregate burden of $380,000, calculated as follows: ($20,000 in external legal costs per SRO) × (19 SROs) = $380,000. Amortized over three years, the annualized capital external cost would be $6,667 per SRO, or a total of $126,667 for all 19 SROs.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following Web site:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend NASDAQ Rule 4758 (Order Routing) to adopt a new routing option, the Retail Order Process (“RTFY”).
The text of the proposed rule change is available at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
NASDAQ is amending Rule 4758, which describes its order routing processes, to add the new RTFY order routing option under NASDAQ Rule 4758(a)(1)(A)(v) for Designated Retail Orders (“DROs”).
The Exchange is proposing RTFY, which is similar to TFTY,
The destinations in the System routing table for RTFY will include OTC market makers,
If a RTFY order is posted on the Exchange, either because it was non-marketable when it was received or it has exhausted all available liquidity within its limit price—including the Exchange, Reg NMS protected quotations and other destinations in the System routing table—and the order is subsequently locked or crossed by another market center, the System will not route to the locking or crossing market center.
An order using the RTFY option will be sent to the primary listing exchange for opening, reopening, and closing auctions. Orders received in non-NASDAQ listed securities prior to market open that are not eligible for the pre-market session will be submitted to the primary listing market for inclusion in that market's opening process. Orders received in NASDAQ-listed securities prior to market open that are not eligible for the pre-market session will follow normal pre-market processing.
This additional RTFY order routing option under NASDAQ Rule 4758(a)(1)(A)(v) is substantially similar to the current TFTY routing option under the same rule. The proposed new RTFY routing option differs from TFTY in three ways: (i) RTFY is only available to DROs; (ii) RTFY uses a separate and distinct routing table, as permitted under NASDAQ Rule 4758(a)(1)(A); and (iii) RTFY orders will be sent to the primary listing exchange for opening, reopening, and closing auctions. Additionally, RTFY is also not unlike other exchange order routing options. TRIM
The Exchange proposes to offer RTFY to firms that send DROs because the needs of a retail order firm are unique when compared to institutional or proprietary trading firms. As retail orders are generally smaller on average, they are often able to receive better prices than the prevailing national best bid and offer (“NBBO”). Primarily, this is achieved through a process whereby retail order firms
When a participant chooses to use a particular routing strategy, various trade-offs need to be weighed against each other. First and foremost is a decision as to whether to use an exchange routing strategy at all. There are many broker-dealers and vendors that provide customized routing strategies and order execution algorithms. Further, an order flow firm may choose to make its own routing decisions based on proprietary routing processes. Many retail order firms use other firms to enhance their routing capabilities. As mentioned above, retail order firms often route orders to OTC market makers who provide price improvement, routing, and other services. Additionally, retail order firms often also post non-marketable orders on exchanges. In conjunction with the posted order flow, the retail order firm may also employ one of the exchanges order routing strategies to assist in achieving best execution for the retail investors they represent.
NASDAQ offers multiple routing options and each has its own set of strengths and trade-offs. STGY,
NASDAQ aims to offer functionality and order options that meet the needs of its diverse membership. In particular, the Exchange believes the new RTFY routing option will meet the needs of the retail order flow firms that opt to use it based on their routing technology, business model or level of retail order flow. Based on NASDAQ's analysis, as well as information provided by potential users of the RTFY routing option, approximately 96% of the DROs that use this new routing option once it is available will add liquidity on the Exchange. The remainder will be routed to destinations on the System routing table for potential price improvement, including to OTC market makers who are also NASDAQ market makers. NASDAQ also believes this latter feature will provide additional price improvement opportunities to retail order flow, which ultimately benefits the retail investors whose individual orders are included in that order flow.
To illustrate how the RTFY routing option would work, consider the following:
NASDAQ Quote: $50.00 × $50.02 (100 × 100)
• Order 1 is received to buy 100 shares at $50.02 RTFY
• Order 1 does not check the NASDAQ book
• Order 1 is routed and receives an execution for 100 shares at $50.01—$1.00 in price improvement.
○ Order 2 is received to buy 100 shares at $50.02 RTFY
○ Order 2 does not check the NASDAQ book
○ Order 2 is routed but receives no execution
○ The NASDAQ quote updates to $50.00 × $50.03 (100 × 100) while Order 2 is routing
○ Order 2 is posted on the NASDAQ book at $50.02
○ The NASDAQ quote now reflects Order 2 $50.02 × $50.03 (100 × 100)
Order 3 is received to buy 100 shares at $50.03 RTFY
Order 3 does not check the NASDAQ book
Order 3 is routed and receives an execution for 100 shares at $50.03 (its limit price)
❖ Order 4 is received to sell 100 shares at $50.02 (non-routable order)
❖ Order 4 executes against Order 2 at $50.02
➢ RTFY Order 1 received $1.00 price improvement
➢ RTFY Order 2 executed at its limit price
➢ RTFY Order 3 executed at its limit price
➢ The average price improvement per order is $0.33
➢ The average price improvement per share across the three orders is $0.0033
➢ Although Order 2 missed an execution on NASDAQ at its limit price, all three orders taken together are better off, on average, by $0.33.
As with all routing options (other than Directed Orders),
In order to maximize price improvement and execution quality for the retail investor, the Exchange (or any of its affiliates) will not accept payment for order flow from any OTC market maker to which an RTFY order is sent. If the trading venue pays a standard rebate for DROs to all of its subscribers or another exchange pays a rebate to remove liquidity, the Exchange will accept and retain those rebates. However, the Exchange expects and believes that most, if not all, orders routed using the RTFY routing option will be sent to and executed by an OTC market maker that may also be a registered NASDAQ market maker.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder, including the requirements of Section 6(b) of the Act.
The Exchange believes that the proposed rule change is consistent with these principles for several reasons. First, it would increase competition among execution venues since this routing option would allow the Exchange to compete more aggressively for retail order flow. Competition results in innovation and better services provided at lower prices. RTFY is an innovation born from competition and will encourage additional liquidity on the Exchange as more DRO liquidity will be posted on NASDAQ resulting in improved price discovery for all market participants. Additionally, this routing option provides a means for retail investors to receive potential price improvement in a manner that is not today offered by an exchange. The Exchange notes that a significant percentage of the orders from individual investors are executed over-the-counter.
NASDAQ believes that the proposed rule change promotes just and equitable principles of trade, as well as serves to remove impediments to and to perfect the mechanism for a free and open market and a national market system, and, in general, to protect investors and the public interest because the Exchange is creating a new routing option for processing orders that are meant to be posted passively on the Exchange book but are nonetheless marketable orders. The creation of different approaches to market challenges is what drives innovation, market quality, and ultimately competition. The Exchange competes vigorously for order flow in a marketplace where participants have many trading venue choices. The Exchange believes the RTFY routing option will increase competition by providing value to retail order firms and their retail investor customers, which will in turn result in more order flow being sent to the Exchange.
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 proposed rule change is designed to attract greater retail order flow to NASDAQ, which will benefit both retail investors by providing potential price improvement and market participants in general by making the market more efficient. If the proposed routing option is successful in attracting retails order flow, the proposal will likely increase competition among exchanges and other trading venues for such order flow.
Moreover, the proposed rule change is not designed to place the Exchange in competition with broker-dealers since it provides this new routing process option to assist broker-dealers not affiliated with the Exchange to conduct their order execution business and provides them with greater choice of services available and enhanced opportunities all of which are hallmarks of a highly-functioning, efficient and competitive marketplace. As proposed, RTFY will offer NASDAQ members another means to seek price improvement opportunities for retail orders and it is designed to complement, not compete against, their
The Exchange does not believe the proposed rule change will impact non-exchange affiliated broker-dealers negatively and will not provide any advantages to exchange affiliated broker-dealers because of the following reasons: NASDAQ's affiliated broker-dealer
The proposed rule change is a result of a dialogue initiated by NASDAQ more than a year ago with members and non-members regarding various ways the Exchange can help improve execution quality for retail investors and provide services that complement their existing routing technology and related services. Based upon these discussions, NASDAQ believes that neither members nor non-members would feel as though RTFY provides NES with an advantage over non-exchange affiliated broker-dealers or will compete with non-exchange affiliated broker-dealers in any way.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to add to the rules of the Exchange the (1) the Third Amended and Restated Certificate of Incorporation of NYSE Market (DE), Inc. (“NYSE Market (DE)”), and (2) the Eighth Amended and Restated Operating Agreement of New York Stock Exchange LLC (“NYSE LLC”). The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization 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 those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to add to the rules of the Exchange the (1) Third Amended and Restated Certificate of Incorporation of NYSE Market (DE) (the “Certificate of Incorporation”), and (2) the Eighth Amended and Restated Operating Agreement of NYSE LLC (the “NYSE LLC Operating Agreement”).
NYSE Market (DE), a Delaware corporation, is a wholly-owned subsidiary of NYSE LLC, which is an affiliate of the Exchange.
The Exchange is filing as a “rule of the exchange” under Section 3(a)(27) of the Act
New York Stock Exchange LLC may not transfer or assign any shares of stock of [NYSE Market (DE)], in whole or in part, to any entity, unless such transfer or assignment shall be filed with and approved by the U.S. Securities and Exchange Commission . . . under Section 19 of the Exchange Act and the rules promulgated thereunder.
Similarly, because of NYSE LLC's ownership of NYSE Market (DE), the Exchange is filing the NYSE LLC Operating Agreement as a “rule of the exchange” under Section 3(a)(27) of the Act.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act
The Exchange believes that the proposed rule change would contribute to the orderly operation of the Exchange and would enable the Exchange to be so organized as to have the capacity to carry out the purposes of the Act and comply and enforce compliance by its members and persons associated with its members, with the provisions of the Act because, by making the Certificate of Incorporation a rule of the Exchange, no amendment to the Certificate of Incorporation, including its restrictions on the ability of NYSE LLC to transfer or assign any interest in NYSE Market (DE), could be made without the Exchange filing a proposed rule change with the Commission. Similarly, the Exchange would be required to file as a proposed rule change any changes to the NYSE LLC Operating Agreement with the Commission.
The Exchange also believes that this filing furthers the objectives of Section 6(b)(5) of the Act
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address competitive issues but rather is concerned solely with ensuring that the Commission will have the ability to enforce the Act with respect to NYSE Amex Options and its direct and indirect parent entities.
No written comments were solicited or received with respect to the proposed rule change.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-4(f)(6) thereunder.
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act normally does not become operative for 30 days after the date of its filing. However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing. The Commission believes that waiver of the 30-day operative delay is appropriate because the Certificate of Incorporation of NYSE Market (DE) and the NYSE LLC Operating Agreement will become “rules of the exchange” of NYSE MKT without delay. Based on the foregoing, the Commission believes that the waiver of the operative delay is consistent with the protection of investors and the public interest.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to amend FINRA Rule 8312 (FINRA BrokerCheck Disclosure) to reduce the 15-day waiting period for the release of information reported on Form U5 (Uniform Termination Notice for Securities Industry Registration) through BrokerCheck®.
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the
FINRA BrokerCheck provides the public with information on the professional background, business practices and conduct of FINRA member firms and their associated persons. The information that FINRA releases to the public through BrokerCheck is derived from the Central Registration Depository (“CRD®”), the securities industry online registration and licensing database. FINRA member firms, their associated persons and regulators report information to the CRD system via the uniform registration forms.
Rule 8312 governs the information that FINRA releases to the public through BrokerCheck. Pursuant to this rule, most of the information that FINRA releases through BrokerCheck generally is made available the day after it is filed with the CRD system.
FINRA is concerned that the length of the current waiting period may provide, for an extended period of time, an incomplete picture of a broker's disclosure history if an investor reviews a broker's BrokerCheck report during the waiting period. Under those circumstances, an investor, without knowing about a potentially significant disclosure event that has been reported to the CRD system, may determine to conduct business with a formerly registered person who, although no longer in the securities industry in a registered capacity, may work in another investment-related industry or may have attained another position of trust with potential investors.
Moreover, FINRA's concerns regarding the length of the current waiting period remain even if a broker moves to a new firm and files a Form U4 to report the disclosure event that occurred when the broker was registered at his or her prior firm. In such cases, the broker may not be aware of all the facts and circumstances involving the disclosure event and may therefore provide only limited details about the event. In addition, some brokers may attempt to intentionally reframe the circumstances surrounding the event to put it in a light that is most favorable to the broker. In either case, investors have access only to the details reported by the broker on the Form U4 if it is processed by FINRA staff prior to the filing of the Form U5 or during the current 15-day waiting period.
To address these concerns, FINRA is proposing to reduce the waiting period for the release of disclosure information reported on Form U5 (other than internal review disclosure information) from 15 days to three business days following the processing
In addition to reducing the length of the waiting period to three business days, FINRA is proposing that the waiting period potentially be curtailed if a broker reports on Form U4 the disclosure event that the broker's prior firm reported on Form U5 prior to the expiration of the waiting period. For example, if FINRA processes a disclosure event reported on Form U5 on Monday, and on Tuesday processes a Form U4 filed by a broker reporting that event, the Form U5 information would be made publicly available in BrokerCheck on Wednesday, which is the same day that the Form U4 information would be released. In such circumstances, the broker has had a chance to comment on the disclosure event that has been reported by the firm on Form U5, so continuing to exclude the Form U5 version of the event from BrokerCheck does not serve any purpose.
If the Commission approves the proposed rule change, FINRA will announce the implementation date of the proposed rule change in a
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
As discussed above, FINRA is concerned that the length of the current waiting period for the release of disclosure information filed on Form U5 may provide, for an extended period of time, an incomplete picture of a broker's disclosure history if an investor reviews a broker's BrokerCheck report during the waiting period. Moreover, if a broker moves to a new firm and files a Form U4 to report the disclosure event that the broker's prior firm reported on Form U5 prior to the expiration of the waiting period, investors could have access only to the details reported by the broker on the Form U4 which may be potentially limited or misleading.
The proposed reduction in the waiting period for the release of disclosure information reported on Form U5 aims to allow investors to access important information more quickly while still providing brokers with the opportunity to comment on the reported disclosure event. In addition, FINRA is proposing the simultaneous release of Form U5 and Form U4 information in the case where FINRA processes a Form U4 that reports a disclosure event that a broker's prior firm reported on Form U5 prior to the expiration of the waiting period. The proposed simultaneous release would prevent brokers from accidentally or intentionally releasing incomplete information regarding a disclosure event to the public.
The current regulatory environment serves as a baseline for the proposed rule change. Specifically, Rule 8312 provides for a 15-day delay in the release of Form U5 disclosure information to the public through BrokerCheck. Investors reviewing a broker's BrokerCheck report during the waiting period may not be able to obtain a complete picture of the broker's disclosure history.
Brokers on whose behalf a Form U5 was submitted may comment on the disclosure event either through a Form U4 or by submitting a Broker Comment directly to FINRA. Form U4 is used by firms to register brokers with SROs and the states, and thus brokers who remain in the securities industry in a registered capacity have a Form U4 filing requirement. In the cases where a Form U4 was filed prior to the filing of a Form U5 or during the current 15-day waiting period, investors may have access only to the details about the disclosure event reported by the broker on the Form U4 for an extended period of time.
The proposed rule change to reduce the waiting period for the release of Form U5 information through BrokerCheck will enhance investor protection, because it will allow investors to more quickly access disclosure information reported on Form U5 and also limit the time period during which an incomplete picture of a broker's disclosure history may be displayed in BrokerCheck. Therefore, the rule change will benefit investors by allowing them to make better informed decisions about the individuals with whom they conduct business and, in turn, potentially to have greater trust in the markets.
FINRA does not anticipate that the proposed rule change will impose any burden or additional economic costs on member firms. In this regard, FINRA notes that the proposed rule change will not subject member firms to any new or additional uniform registration form reporting requirements. The Form U5 questions that elicit disclosure information will remain the same as will the timing of filing requirements; only the waiting period for the inclusion of the disclosure information in BrokerCheck will change.
FINRA anticipates that the proposed rule change may impose only a limited burden or additional economic costs on associated persons. As previously mentioned, the proposed rule change will not result in any new or additional uniform registration form reporting requirements. In addition, associated persons will continue to have the opportunity to comment on any disclosure event reported on Form U5. Under the FINRA By-Laws, a firm must provide a terminated broker with a copy of a Form U5 concurrently with the firm filing it with the CRD system.
FINRA also anticipates that the proposed rule change may impose only a limited burden on associated persons because FINRA believes that the proposal will affect only a small percentage of those individuals who have a disclosure event reported on Form U5. FINRA reviewed all 5,654 disclosure events that were reported on Form U5 in 2014 and found that approximately 9.7 percent of Form U4 filings reporting such disclosure events were made between 4 and 15 days after the Form U5 had been filed and that no Broker Comments were submitted to FINRA during that timeframe. Thus, in 2014 the proposed rule change would have likely had no impact on those individuals for whom more than 90 percent of the Forms U5 were filed that included a disclosure event.
FINRA further notes that the proposed rule change will not impact the number of options brokers have to address their concerns regarding a disclosure event that has been reported on Form U5. As previously mentioned, a broker can respond via a Form U4 or a Broker Comment.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
A. By order approve or disapprove 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 email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to the authority granted to the United States Small Business Administration by the Wind-Up Order of the United States District Court for the Southern District of Texas, entered May 21, 2014, the United States Small Business Administration hereby revokes the license of Sundance Venture Partners, L.P., a Delaware Limited Partnership, to function as a small business investment company under the Small Business Investment Company License No. 08/78-0169 issued to Roaring Fork Capital, SBIC, L.P., on April 23, 1990, and said license is hereby declared null and void as of May 21, 2014.
The Small Business Administration publishes an interest rate called the optional “peg” rate (13 CFR 120.214) on a quarterly basis. This rate is a weighted average cost of money to the government for maturities similar to the average SBA direct loan. This rate may be used as a base rate for guaranteed fluctuating interest rate SBA loans. This rate will be 2.50 (2
Pursuant to 13 CFR 120.921(b), the maximum legal interest rate for any third party lender's commercial loan which funds any portion of the cost of a 504 project (see 13 CFR 120.801) shall be 6% over the New York Prime rate or, if that exceeds the maximum interest rate permitted by the constitution or laws of a given State, the maximum interest rate will be the rate permitted by the constitution or laws of the given State.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for the State of California (FEMA-4240-DR), dated 09/22/2015.
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 09/22/2015, applications for disaster loans may be filed 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 144745 and for economic injury is 144750.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for the State of California (FEMA-4240-DR), dated 09/22/2015.
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 Presidential disaster declaration for the State of California, dated 09/22/2015 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.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for the State of California (FEMA-4240-DR), dated 09/22/2015.
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 the State of California, dated 09/22/2015 is hereby amended to re-establish the incident period for this disaster as beginning 09/09/2015 and continuing. The disaster declaration is also amended to include the Butte Fire in the incident description.
All other information in the original declaration remains unchanged.
Acting under the authority of and in accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13268 of July 2, 2002, and Executive Order 13284 of January 23, 2003, I hereby determine that the individual known as Shamil Izmaylov, also known as Abu Khalif, also known as Abu Hani, also known as Abu Khanif, also known as Abu Hanif committed, or poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States.
Consistent with the determination in section 10 of Executive Order 13224 that “prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously,” I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order.
This notice shall be published in the
Acting under the authority of and in accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13268 of July 2, 2002, and Executive Order 13284 of January 23, 2003, I hereby determine that the individual known as Tarkhan Ismailovich Gaziyev committed, or poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States.
Consistent with the determination in section 10 of Executive Order 13224 that “prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously,” I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order.
This notice shall be published in the
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995 we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments directly to the Office of Management and Budget (OMB) up to November 2, 2015.
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs, Office of Management and Budget (OIRA/OMB). You may submit comments by the following methods:
•
•
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Kaye Shaw, Bureau of Consular Affairs, Overseas Citizens Services (CA/OCS/PMO), U.S. Department of State, SA-17, 10th Floor, Washington, DC 20036 or at
•
•
•
•
•
•
•
•
•
•
•
•
We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public
The purpose of the information collection is to determine whether a U.S. citizen/national parent has met the statutory physical presence or residence requirements to transmit U.S. citizenship to his or her child born abroad or in the United States for U.S. noncitizen nationality; to establish parentage of the child; and to fulfill the requirements of 8 U.S.C. 1409(a), which permits acknowledgment of paternity under oath and requires the U.S. citizen father's written agreement to provide financial support for his child born abroad out of wedlock. The affidavit may also be submitted by the U.S. citizen parent(s) to explain why a local birth certificate is unavailable and to state the facts that are relevant to the birth abroad.
The information is collected in person or by mail. The form may be accessed online, completed electronically, printed, and signed; or it may be downloaded, printed, and filled out manually. The Bureau of Consular Affairs is currently exploring options to make this information collection available electronically.
Acting under the authority of and in accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13268 of July 2, 2002, and Executive Order 13284 of January 23, 2003, I hereby determine that the entity known as Jund al-Khilafah in Algeria, also known as Jak-A, also known as Jund al-Khalifa fi Ard al-Jazayer, also known as Jund al-Khilafah fi Ard al-Jaza'ir, also known as Soldiers of the Caliphate in Algeria, also known as Caliphate Soldiers of Algeria, also known as Soldiers of the Caliphate in the Land of Algeria, also known as Jund al Khalifa-Algeria, also known as Jund al-Khalifa, also known as Jund al-Khilafa Group committed, or poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States.
Consistent with the determination in section 10 of Executive Order 13224 that “prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously,” I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order.
This notice shall be published in the
Acting under the authority of and in accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13268 of July 2, 2002, and Executive Order 13284 of January 23, 2003, I hereby determine that the individual known as Nasser Muthana, also known as Abu Muthanna al-Yemeni, also known as Abu Muthanna al Yemeni, also known as Abu Muthana Al Yemeni, committed, or poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States.
Consistent with the determination in section 10 of Executive Order 13224 that “prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously,” I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order.
This notice shall be published in the
Acting under the authority of and in accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13268 of July 2, 2002, and Executive Order 13284 of January 23, 2003, I hereby determine that the individual known as Rustam Aselderov, also known as Abu Mukhammad al-Kadar, also known as Abu Mukhammad Kadarsky, also known as Abu Mukhammad Kadarskiy, also known as Abu Mohammad al-Qadari, also known as Abu Muhammad al-Kadarskii, also known as Rustam Asildarov, also known as Rustam Aseldarov, committed, or poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States.
Consistent with the determination in section 10 of Executive Order 13224 that “prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United
This notice shall be published in the
Acting under the authority of and in accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13268 of July 2, 2002, and Executive Order 13284 of January 23, 2003, I hereby determine that the entity known as Islamic State of Iraq and the Levant—Caucasus Province, also known as Vilayat Kavkaz, also known as Wilayat Qawqaz, also known as Wilayah Qawkaz, also known as Caucasus Wilayah, also known as Caucasus Province, committed, or poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States.
Consistent with the determination in section 10 of Executive Order 13224 that “prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously,” I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order.
This notice shall be published in the
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before October 21, 2015.
Send comments identified by docket number FAA-2015-3416 using any of the following methods:
•
•
•
•
Sandra K. Long (202) 267-4714, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591,
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice of availability.
The Federal Aviation Administration (FAA) is announcing the availability of Advisory Circular (AC) 187-1J, which transmits an updated schedule of charges for services of FAA Flight Standards aviation safety inspectors (ASI) outside the United States. The AC has been updated in accordance with the procedures listed in Title 14 of the Code of Federal Regulations (14 CFR) part 187, Appendix A.
This AC is effective on October 1, 2015.
Ms. Tish Thompkins, Flight Standards Service, AFS-50, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591, telephone (202) 267-0996.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before October 21, 2015.
Send comments identified by docket number FAA-2015-3493 using any of the following methods:
•
•
•
•
Sandra K. Long, Program Analyst, 202-267-4714, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591
This notice is published pursuant to 14 CFR 11.85.
Petitioner seeks relief to obtain a flight instructor certificate and rating based on his U.S. Military documentation as a designated Instructor Co-Pilot.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA confirms its decision to exempt 49 individuals from its rule prohibiting persons with insulin-treated diabetes mellitus (ITDM) from operating commercial motor vehicles (CMVs) in interstate commerce. The exemptions enable these individuals to operate CMVs in interstate commerce.
The exemptions were effective on August 1, 2015. The exemptions expire on August 1, 2017.
Charles A. Horan, III, Director, Carrier, Driver and Vehicle Safety Standards, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On July 1, 2015, FMCSA published a notice of receipt of Federal diabetes exemption applications from 49 individuals and requested comments from the public (80 FR 37719). The public comment period closed on July 31, 2015, and one comment was received.
FMCSA has evaluated the eligibility of the 49 applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).
The Agency established the current requirement for diabetes in 1970
FMCSA established its diabetes exemption program, based on the Agency's July 2000 study entitled “A Report to Congress on the Feasibility of a Program to Qualify Individuals with Insulin-Treated Diabetes Mellitus to Operate in Interstate Commerce as Directed by the Transportation Act for the 21st Century.” The report concluded that a safe and practicable protocol to allow some drivers with ITDM to operate CMVs is feasible. The September 3, 2003 (68 FR 52441),
These 49 applicants have had ITDM over a range of one to 44 years. These applicants report no severe hypoglycemic reactions resulting in loss of consciousness or seizure, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning symptoms, in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the past 5 years. In each case, an endocrinologist verified that the driver has demonstrated a willingness to properly monitor and manage his/her diabetes mellitus, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes-related complications. Each meets the vision requirement at 49 CFR 391.41(b)(10).
The qualifications and medical condition of each applicant were stated and discussed in detail in the July 1, 2015,
FMCSA received one comment in this proceeding. The comment is addressed below.
Joel Price stated that the exemptions should be granted if the drivers are able to prove that their conditions are stable and properly monitored.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the diabetes requirement in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered medical reports about the applicants' ITDM and vision, and reviewed the treating endocrinologists' medical opinion related to the ability of the driver to safely operate a CMV while using insulin.
Consequently, FMCSA finds that in each case exempting these applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption will be provided to the applicants in the exemption document and they include the following: (1) That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not it is related to an episode of hypoglycemia; (3) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (4) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
Based upon its evaluation of the 49 exemption applications, FMCSA exempts the following drivers from the diabetes requirement in 49 CFR 391.41(b)(10), subject to the requirements cited above 949 CFR 391.64(b)):
In accordance with 49 U.S.C. 31136(e) and 31315 each exemption is valid for two years unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 65 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemption renewals will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
Each group of renewed exemptions are effective from the dates stated in the discussions below. Comments must be received on or before November 2, 2015.
You may submit comments bearing the Federal Docket Management System (FDMS) numbers: Docket No. [Docket No. FMCSA-1999-5578; FMCSA-1999-5748; FMCSA-1999-6480; FMCSA-2001-9561; FMCSA-2003-15892; FMCSA-2005-21254; FMCSA-2005-21711; FMCSA-2006-26066; FMCSA-2007-27333; FMCSA-2007-27897; FMCSA-2009-0054; FMCSA-2009-0154; FMCSA-2011-0140; FMCSA-2011-0142; FMCSA-2011-0189; FMCSA-2013-0027; FMCSA-2013-0029; FMCSA-2013-0030; FMCSA-2013-0165], using any of the following methods:
•
•
•
•
Charles A. Horan, III, Director, Carrier, Driver and Vehicle Safety Standards, 202-366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381.
This notice addresses 65 individuals who have requested renewal of their exemptions in accordance with FMCSA procedures. FMCSA has evaluated these 65 applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. Each individual is identified according to the renewal date.
The exemptions are extended subject to the following conditions: (1) That each individual has a physical examination every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirements in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provides a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file and retains a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official. Each exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. The following group(s) of drivers will receive renewed exemptions effective in the month of October and are discussed below.
As of October 3, 2015, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 21 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (66 FR 30502; 66 FR 41654; 68 FR 44837; 70 FR 41811; 72 FR 12666; 72 FR 25831; 72 FR 39879; 72 FR 40362; 72 FR 52419; 74 FR 34395;
The drivers were included in one of the following dockets: Docket Nos. FMCSA-2001-9561; FMCSA-2007-27333; FMCSA-2007-27897; FMCSA-2009-0154; FMCSA-2011-0140; FMCSA-2011-0142; FMCSA-2013-0027; FMCSA-2013-0029; FMCSA-2013-0030. Their exemptions are effective as of October 3, 2015 and will expire on October 3, 2017.
As of October 23, 2015, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 9 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (78 FR 47818; 78 FR 63307):
The drivers were included in one of the following dockets: Docket Nos. FMCSA-2013-0165. Their exemptions are effective as of October 23, 2015 and will expire on October 23, 2017.
As of October 24, 2015, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 20 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (64 FR 27027; 64 FR 40404; 64 FR 51568; 64 FR 66962; 66 FR 30502; 66 FR 41654; 66 FR 48504; 67 FR 17102; 68 FR 44837; 68 FR 54775; 69 FR 51346; 70 FR 30999; 70 FR 41811; 70 FR 46567; 70 FR 48797; 70 FR 50799; 70 FR 53412; 70 FR 61493; 71 FR 50970; 72 FR 39879; 72 FR 40359; 72 FR 52419; 72 FR 52421; 72 FR 54971; 72 FR 62896; 73 FR 48269; 74 FR 11988; 74 FR 21427; 74 FR 34074; 74 FR 37295; 74 FR 41971; 74 FR 43221; 74 FR 48343; 74 FR 49069; 76 FR 21796; 76 FR 54530; 76 FR 55467; 76 FR 62143; 78 FR 77782):
The drivers were included in one of the following dockets: Docket No. FMCSA-1999-5578; FMCSA-1999-5748; FMCSA-2001-9561; FMCSA-2005-21254; FMCSA-2005-21711; FMCSA-2007-27897; FMCSA-2009-0154. Their exemptions are effective as of October 24, 2015 and will expire on October 24, 2017.
As of October 30, 2015, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 9 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (64 FR 68195; 65 FR 20251; 67 FR 17102; 68 FR 52811; 68 FR 61860; 70 FR 61165; 71 FR 63379; 72 FR 1050; 74 FR 49069; 74 FR 53581; 76 FR 64171; 78 FR 68137):
The drivers were included in one of the following dockets: Docket No. FMCSA-1999-6480; FMCSA-2003-15892; FMCSA-2006-26066. Their exemptions are effective as of October 30, 2015 and will expire on October 30, 2017.
As of October 31, 2015, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 6 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (76 FR 55465; 76 FR 67246; 78 FR 77782):
The drivers were included in one of the following dockets: Docket No. FMCSA-2011-0189. Their exemptions are effective as of October 31, 2015 and will expire on October 31, 2017.
Each of these 65 applicants listed in the groups above has requested renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the requirement specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past two years indicates each applicant continues to meet the vision exemption requirements.
These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption.
FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by November 2, 2015.
FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequent comments submitted by interested parties. As indicated above, the Agency previously published notices of final disposition announcing its decision to exempt these 65 individuals from the vision requirement in 49 CFR 391.41(b)(10). The final decision to grant an exemption to each of these individuals was made on the merits of each case and made only after
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and material received during the comment period and may change this proposed rule based on your comments. FMCSA may issue a final rule at any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, To submit your comment online, go to
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemptions; request for comments.
FMCSA announces that 9 individuals have applied for a medical exemption from the hearing requirement in the Federal Motor Carrier Safety Regulations (FMCSRs). In accordance with the statutory requirements concerning applications for exemptions, FMCSA requests public comments on these requests. The statute and implementing regulations concerning exemptions require that exemptions must provide an equivalent or greater level of safety than if they were not granted. If the Agency determines the exemptions would satisfy the statutory requirements and decides to grant theses requests after reviewing the public comments submitted in response to this notice, the exemptions would enable these 9 individuals to operate CMVs in interstate commerce.
Comments must be received on or before November 2, 2015.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2015-0325 using any of the following methods:
•
•
•
•
Each submission must include the Agency name and the docket numbers for this notice. Note that all comments received will be posted without change to
Charles A. Horan, III, Director, Office of Carrier, Driver and Vehicle Safety, (202) 366-4001,
The Federal Motor Carrier Safety Administration has authority to grant exemptions from many of the Federal Motor Carrier Safety Regulations (FMCSRs) under 49 U.S.C. 31315 and 31136(e), as amended by section 4007 of the Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-178, June 9, 1998, 112 Stat. 107, 401). FMCSA has published in 49 CFR part 381, subpart C final rules implementing the statutory changes in its exemption procedures made by section 4007, 69 FR 51589 (August 20, 2004).
The Agency reviews the safety analyses and the public comments and determines whether granting the exemption would likely achieve a level of safety equivalent to or greater than the level that would be achieved without the exemption. The decision of the Agency must be published in the
The current provisions of the FMCSRs concerning hearing state that a person is physically qualified to drive a CMV if that person
First perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5-1951.
FMCSA also issues instructions for completing the medical examination report and includes advisory criteria on the report itself to provide guidance for medical examiners in applying the hearing standard. See 49 CFR 391.43(f). The current advisory criteria for the hearing standard include a reference to a report entitled “Hearing Disorders and Commercial Motor Vehicle Drivers” prepared for the Federal Highway Administration, FMCSA's predecessor, in 1993.
FMCSA requests comments from all interested parties on whether a driver who cannot meet the hearing standard should be permitted to operate a CMV in interstate commerce. Further, the Agency asks for comments on whether a driver who cannot meet the hearing standard should be limited to operating only certain types of vehicles in interstate commerce, for example, vehicles without air brakes. The statute and implementing regulations concerning exemptions require that the Agency request public comments on all applications for exemptions. The Agency is also required to make a determination that an exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption before granting any such requests.
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and material received during the comment period and may change this proposed rule based on your comments. FMCSA may issue a final rule at any time after the close of the comment period.
To view comments, go to
Mr. Baker, 45, holds an operator's license in Texas.
Mr. Bonales, 36, holds an operator's license in California.
Mr. Cogar, 46, holds an operator's license in West Virginia.
Mr. Foster, 41, holds an operator's license in Illinois.
Mr. Gicola, 59, holds an operator's license in Pennsylvania.
Mr. Gonzalez, 31, holds an operator's license in California.
Mr. Harnish, 36, holds an operator's license in Utah.
Mr. Larrison, 26, holds an operator's license in Indiana.
Mr. Truelove, 58, holds a class A CDL in Texas.
In accordance with 49 U.S.C. 31136(e) and 31315(b)(4), FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. The Agency will consider all
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA confirms its decision to exempt 58 individuals from its rule prohibiting persons with insulin-treated diabetes mellitus (ITDM) from operating commercial motor vehicles (CMVs) in interstate commerce. The exemptions enable these individuals to operate CMVs in interstate commerce.
The exemptions were effective on August 15, 2015. The exemptions expire on August 15, 2017.
Charles A. Horan, III, Director, Carrier, Driver and Vehicle Safety Standards, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On July 15, 2015, FMCSA published a notice of receipt of Federal diabetes exemption applications from 58 individuals and requested comments from the public (80 FR 41550). The public comment period closed on August 14, 2015, and no comments were received.
FMCSA has evaluated the eligibility of the 58 applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).
The Agency established the current requirement for diabetes in 1970 because several risk studies indicated that drivers with diabetes had a higher rate of crash involvement than the general population. The diabetes rule provides that “A person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control” (49 CFR 391.41(b)(3)).
FMCSA established its diabetes exemption program, based on the Agency's July 2000 study entitled “A Report to Congress on the Feasibility of a Program to Qualify Individuals with Insulin-Treated Diabetes Mellitus to Operate in Interstate Commerce as Directed by the Transportation Act for the 21st Century.” The report concluded that a safe and practicable protocol to allow some drivers with ITDM to operate CMVs is feasible. The September 3, 2003 (68 FR 52441),
These 58 applicants have had ITDM over a range of one to 50 years. These applicants report no severe hypoglycemic reactions resulting in loss of consciousness or seizure, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning symptoms, in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the past 5 years. In each case, an endocrinologist verified that the driver has demonstrated a willingness to properly monitor and manage his/her diabetes mellitus, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes-related complications. Each meets the vision requirement at 49 CFR 391.41(b)(10).
The qualifications and medical condition of each applicant were stated and discussed in detail in the July 15, 2015,
FMCSA received no comments in this proceeding.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the diabetes requirement in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered medical reports about the applicants' ITDM and vision, and reviewed the treating endocrinologists' medical opinion related to the ability of the driver to safely operate a CMV while using insulin.
Consequently, FMCSA finds that in each case exempting these applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption will be provided to the applicants in the exemption document and they include the following: (1) That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage
Based upon its evaluation of the 58 exemption applications, FMCSA exempts the following drivers from the diabetes requirement in 49 CFR 391.41(b)(10), subject to the requirements cited above 949 CFR 391.64(b)):
In accordance with 49 U.S.C. 31136(e) and 31315 each exemption is valid for two years unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemptions; request for comments.
FMCSA announces receipt of applications from 59 individuals for exemption from the vision requirement in the Federal Motor Carrier Safety Regulations. They are unable to meet the vision requirement in one eye for various reasons. The exemptions will enable these individuals to operate commercial motor vehicles (CMVs) in interstate commerce without meeting the prescribed vision requirement in one eye. If granted, the exemptions would enable these individuals to qualify as drivers of commercial motor vehicles (CMVs) in interstate commerce.
Comments must be received on or before November 2, 2015. All comments will be investigated by FMCSA. The exemptions will be issued the day after the comment period closes.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2015-0056 using any of the following methods:
•
•
•
•
Charles A. Horan, III, Director, Carrier, Driver and Vehicle Safety Standards, (202) 366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” FMCSA can renew exemptions at the end of each 2-year period. The 59 individuals listed in this notice have each requested such an exemption from the vision requirement in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting an exemption will achieve the required level of safety mandated by statute.
Mr. Anderson, 68, has had macular degeneration and a cataract in his right eye since 1995. The visual acuity in his right eye is 20/60, and in his left eye, 20/20. Following an examination in 2015, his ophthalmologist stated, “In conclusion I think you qualify from a visual perspective for line item 4 for driving a commercial vehicle.” Mr. Anderson reported that he has driven straight trucks for 45 years, accumulating 135,000 miles, and tractor-trailer combinations for 45 years, accumulating 45,000 miles. He holds a Class A CDL from Idaho. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Aujla, 45, has had amblyopia in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/50. Following an examination in 2015, his optometrist stated, “The patient has sufficient vision to operate a commercial vehicle.” Mr. Aujla reported that he has driven tractor-trailer combinations for 22 years, accumulating 2.02 miles. He holds a Class A CDL from Washington. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Berger, 64, has central vision loss in his right eye due to a traumatic incident in 1981. The visual acuity in his right eye is hand motion, and in his left eye, 20/20. Following an examination in 2015, his optometrist stated, “He presented with a history of trauma to this right eye in May of 1981. . . It is my opinion that if Mr. Berger has been operating a commercial vehicle since 1981 he is definitely capable of doing so today.” Mr. Berger reported that he has driven straight trucks for 45 years, accumulating 360,000 miles. He holds an operator's license from Pennsylvania. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Biggers, 74, has had a corneal scar and transplant in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/400. Following an examination in 2015, his optometrist stated, “I certify that in my medical opinion, he has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Biggers reported that he has driven tractor-trailer combinations for 33 years, accumulating 2.81 million miles. He holds a Class A CDL from Idaho. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Bohling, 59, has had phthisis bulbi in his left eye due to a traumatic incident in 1993. The visual acuity in his right eye is 20/20, and in his left eye, no light perception. Following an examination in 2015, his ophthalmologist stated, “I believe that Mr. Bohling has sufficient vision to perform the driving tasks of a commercial vehicle.” Mr. Bohling reported that he has driven straight trucks for 1.5 years, accumulating 30,000 miles. He holds an operator's license from Colorado. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Bowman, 54, has had a central retinal detachment in his right eye since 2005. The visual acuity in his right eye is hand motion, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “Visual Acuity unaided was: right: hand motion, left: 20/20, Best corrected acuity was: right: hand motion, left: 20/20+ Color vision is normal to red, green and amber, In my opinion, patient has the ability to drive a car or commercial vehicle.” Mr. Bowman reported that he has driven straight trucks for 15 years, accumulating 216,000 miles. He holds an operator's license from Tennessee. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Bozowski, 65, has had refractive amblyopia in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/70. Following an examination in 2015, his optometrist stated, “Given these findings, I do believe Mr. Bozowski had sufficient vision to operate a commercial vehicle.” Mr. Bozowski reported that he has driven straight trucks for 40 years, accumulating 600,000 miles, and tractor-trailer combinations for 40 years, accumulating one million miles. He holds a Class A CDL from New Jersey. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Burke, 64, has had bullous keratopathy and scarring in his left eye since 1976. The visual acuity in his right eye is 20/20, and in his left eye, no light perception. Following an examination in 2015, his optometrist stated, “I referred him to a corneal surgical specialist for further evaluation due to a condition that is beyond my scope of practice. . .Therefore, my records have been updated to indicate, because of the specialist's statement, that `Mr. Burke should be cleared to drive a commercial vehicle on the interstate.'” Mr. Burke reported that he has driven tractor-trailer combinations for three years, accumulating 360,000 miles. He holds a Class A CDL from Colorado. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Burleson, 57, has had central pigment epithelial atrophy in his right eye since 2012. The visual acuity in his right eye is 20/50, and in his left eye, 20/20. Following an examination in 2015, his ophthalmologist stated, “I do think that Mr. Burleson has the vision required to operate a commercial vehicle.” Mr. Burleson reported that he has driven tractor-trailer combinations
Mr. Burns, 36, has had amblyopia in his left eye since birth. The visual acuity in his right eye is 20/20, and in his left eye, 20/80. Following an examination in 2015, his optometrist stated, “He has a longstanding history of amblyopia in his left eye. . .In my opinion, Mr. Burns meets the requirements to perform safe driving tasks while operating a commercial vehicle.” Mr. Burns reported that he has driven straight trucks for two years, accumulating 24,000 miles, and tractor-trailer combinations for 3 years, accumulating 450,000 miles. He holds a Class DA CDL from Kentucky. His driving record for the last 3 years shows no crashes and one conviction for a moving violation in a CMV; he exceeded the speed limit by 9 mph in a school zone.
Mr. Congdon, 58, has had a macular scar in his left eye since 2009. The visual acuity in his right eye is 20/20, and in his left eye, 20/400. Following an examination in 2015, his ophthalmologist stated, “Mr [
Mr. Copp, 54, has had amblyopia in his right eye since birth. The visual acuity in his right eye is 20/200, and in his left eye, 20/25. Following an examination in 2015, his optometrist stated, “I feel Mr. Copp has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Copp reported that he has driven straight trucks for 14 years, accumulating 560,000 miles. He holds an operator's license from Pennsylvania. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Costa, 41, has had amblyopia in his left eye since birth. The visual acuity in his right eye is 20/20, and in his left eye, 20/200. Following an examination in 2014, his optometrist stated, “Has sufficient vision to operate a commercial vehicle.” Mr. Costa reported that he has driven straight trucks for three years, accumulating 6,000 miles. He holds an operator's license from Washington. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Davidson, 50, has complete loss of vision in his left eye due to a traumatic incident in childhood. The visual acuity in his right eye is 20/20, and in his left eye, no light perception. Following an examination in 2015, his ophthalmologist stated, “Mr. Davidson is a monocular patient who has sufficient vision in his right eye to perform the driving tasks required to operate a commercial vehicle.” Mr. Davidson reported that he has driven straight trucks for 32 years, accumulating 272,000 miles, and tractor-trailer combinations for 18 years, accumulating 54,000 miles. He holds a Class A CDL from New Jersey. His driving record for the last 3 years shows one crash, to which he contributed by failing to secure his load, and no convictions for moving violations in a CMV.
Mr. Davis, 51, has a cataract in his right eye due to a traumatic incident in childhood. The visual acuity in his right eye is 20/50, and in his left eye, 20/20. Following an examination in 2015, his optometrist stated, “This is to certify that in my medical opinion his vision is sufficient without corrective lenses to safely operate a commercial vehicle.” Mr. Davis reported that he has driven straight trucks for 27 years, accumulating 175,500 miles. He holds a Class B CDL from Maine. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Deminie, 60, has had central serous retinopathy causing a macular scar in his right eye since 1997. The visual acuity in his right eye is 20/60, and in his left eye, 20/20. Following an examination in 2015, his optometrist stated, “Patient has operated a commercial vehicle safely with current visual deficiency, so I feel he has sufficient vision to continue to do so.” Mr. Deminie reported that he has driven tractor-trailer combinations for 26 years, accumulating 3.12 million miles. He holds a Class AM CDL from Texas. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Donald, 41, has had amblyopia in his right eye since childhood. The visual acuity in his right eye is 20/200, and in his left eye, 20/20. Following an examination in 2015, his optometrist stated, “It is my opinion that Mr. Donald has sufficient vision to perform driving tasks required to operate a commercial vehicle.” Mr. Donald reported that he has driven straight trucks for 10 years, accumulating 600,000 miles, and tractor-trailer combinations for 10 years, accumulating 200,000 miles. He holds a Class CA CDL from Michigan. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Ecker, 56, has had amblyopia in his right eye since childhood. The visual acuity in his right eye is hand motion, and in his left eye, 20/20. Following an examination in 2015, his optometrist stated, “Mr. Eckles [
Mr. Gartner, 60, has had amblyopia in his right eye since childhood. The visual acuity in his right eye is 20/150, and in his left eye, 20/20. Following an examination in 2015, his optometrist stated, “It is my medical opinion that John has sufficient vision to perform his driving tasks required to operate a commercial vehicle.” Mr. Gartner reported that he has driven straight trucks for 30 years, accumulating 300,000 miles, and tractor-trailer combinations for 20 years, accumulating
Mr. Gillund, 48, has had optic atrophy in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, light perception. Following an examination in 2015, his optometrist stated, “U.S. Department of Transportation. . .Due to the fact that Brian can see 20/20 in his right eye and peripheral vision is 120 degrees with both eyes, he is able to operate and automobile or truck legally under Minnesota Law.” Mr. Gillund reported that he has driven straight trucks for 27 years, accumulating 135,000 miles, and tractor-trailer combinations for 27 years, accumulating 1.35 million miles. He holds a Class A CDL from Minnesota. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Gorsuch, 52, has had a retinal detachment in his right eye due to a traumatic incident in 2009. The visual acuity in his right eye is counting fingers, and in his left eye, 20/20. Following an examination in 2015, his ophthalmologist stated, “Mr. Gorsuch is monocular, meaning that he is seeing through only one eye with any level of quality, and that this eye has a full 120 degree visual field by Humphrey Visual field perimetry. . .I hope that this can be of assistance in the continuation of his passing of his CDL license.” Mr. Gorsuch reported that he has driven tractor-trailer combinations for 33 years, accumulating 3.43 million miles. He holds a Class A CDL from Ohio. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Hall, 58, has had complete loss of vision in his left eye since 2010. The visual acuity in his right eye is 20/20, and in his left eye, no light perception. Following an examination in 2015, his optometrist stated, “As his visual function is stable for the last several years, it is of my opinion that Mr. Hall has sufficient vision to perform the tasks required by a commercial vehicle.” Mr. Hall reported that he has driven straight trucks for 20 years, accumulating 300,000 miles, and tractor-trailer combinations for 25 years, accumulating 2.5 million miles. He holds a Class A CDL from Utah. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Hayes, 57, has had a prosthetic left eye since childhood. The visual acuity in his right eye is 20/15, and in his left eye, no light perception. Following an examination in 2015, his optometrist stated, “Steven Hayes does indeed have sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Hayes reported that he has driven straight trucks for 38 years, accumulating 950,000 miles, and tractor-trailer combinations for 23 years, accumulating 230,000 miles. He holds a Class A CDL from Indiana. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Hernandez, 48, has had amblyopia in his right eye since childhood. The visual acuity in his right eye is 20/60, and in his left eye, 20/20. Following an examination in 2015, his optometrist stated, “He show normal color vision, with no defects, is able to recognize the colors of traffic control signals and devices and has sufficient vision to operate a commercial vehicle.” Mr. Hernandez reported that he has driven straight trucks for 10 years, accumulating 350,000 miles, and tractor-trailer combinations for 10 years, accumulating 650,000 miles. He holds a Class A CDL from New Mexico. His driving record for the last 3 years shows no crashes and one conviction for a moving violation in a CMV; he failed to yield to a traffic control device.
Mr. Hershberger, 25, has a prosthetic right eye due to a traumatic incident in 2010. The visual acuity in his right eye is no light perception, and in his left eye, 20/20. Following an examination in 2015, his ophthalmologist stated, “I certify that in my medical opinion Mr. Mervin Hershberger has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Hershberger reported that he has driven straight trucks for six years, accumulating 72,000 miles, and tractor-trailer combinations for six years, accumulating 72,000 miles. He holds a Class ABCD CDL from Wisconsin. His driving record for the last 3 years shows one crash, for which he was not cited and to which he did not contribute, and no convictions for moving violations in a CMV.
Mr. Hobson, 61, has a macula scar of posterior pole and a mature cataract in his right eye due to a traumatic incident in 1972. The visual acuity in his right eye is counting fingers, and in his left eye, 20/20. Following an examination in 2015, his ophthalmologist stated, “Formal color vision testing using Ishihara plates is normal and I feel the patient can recognized red, green and amber and it is my medical opinion that he has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Hobson reported that he has driven tractor-trailer combinations for 23 years, accumulating 1.38 million miles. He holds a Class A CDL from Illinois. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Holley, 59, has had refractive amblyopia in his right eye since childhood. The visual acuity in his right eye is 20/60, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “With corrective lenses Timothy has sufficient vision to perform driving tasks required to operate a commercial vehicle.” Mr. Holley reported that he has driven straight trucks for 22 years, accumulating 66,000 miles, and tractor-trailer combinations for 23 years, accumulating 23,000 miles. He holds a Class AM CDL from Pennsylvania. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Hopson, 50, has had vein occlusion in his left eye since 2006. The visual acuity in his right eye is 20/20, and in his left eye, 20/200. Following an examination in 2015, his optometrist stated, “In my opinion, Mr. Hopson is completely capable of operating commercial equipment/machinery both on and off the highway.”
Mr. Hopson reported that he has driven straight trucks for 25 years, accumulating 2.5 million miles, tractor-trailer combinations for 25 years, accumulating 3.75 million miles, and buses for one year, accumulating 75,000 miles. He holds a Class AM CDL from Texas. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Hostetter, 58, has had Coat's exudative and retinopathy in his left eye since birth. The visual acuity in his
Mr. Johnson, 73, has decreased vision in his right eye due to a traumatic incident in childhood. The visual acuity in his right eye is 20/400, and in his left eye, 20/30. Following an examination in 2015, his ophthalmologist stated, “He has sufficient vision to perform the driving tasks to operate a commercial vehicle.” Mr. Johnson reported that he has driven straight trucks for 53 years, accumulating 212,000 miles, and tractor-trailer combinations for 55 years, accumulating 990,000 miles. He holds a Class AM CDL from New York. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Kelly, 59, has had amblyopia in his right eye since birth. The visual acuity in his right eye is light perception, and in his left eye, 20/20. Following an examination in 2015, his optometrist stated, “In my opinion, he has sufficient vision to perform the driving tasks to operate a commercial vehicle.” Mr. Kelly reported that he has driven straight trucks for 34 years, accumulating 1.97 million miles. He holds a Class B CDL from Connecticut. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Linardos, 52, has complete loss of vision in his left eye due to a traumatic incident in 2011. The visual acuity in his right eye is 20/25, and in his left eye, no light perception. Following an examination in 2015, his ophthalmologist stated, “I
Robert W. Jacey, MD certify in my medical opinion that Mr. Stephen Linardos does have sufficient vision in right eye to perform the driving tasks required to operate a commercial vehicle.” Mr. Linardos reported that he has driven straight trucks for 27 years, accumulating 1.79 million miles, and tractor-trailer combinations for 27 years, accumulating 3.24 million miles. He holds a Class A CDL from Florida. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Linares, 59, has had glaucoma in his left eye since 2005. The visual acuity in his right eye is 20/20, and in his left eye, no light perception. Following an examination in 2015, his optometrist stated, “VA is sufficient for a commercial vehicle.”
Mr. Linares reported that he has driven tractor-trailer combinations for 16 years, accumulating 506,880 miles. He holds a Class A CDL from California. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Liner, 62, has had macular scar in his right eye since childhood. The visual acuity in his right eye is 20/200, and in his left eye, 20/20. Following an examination in 2014, his ophthalmologist stated, “I feel Mr. Liner has adequate vision to drive a commercial vehicle.” Mr. Liner reported that he has driven straight trucks for 44 years, accumulating 114,400 miles. He holds a Class B CDL from Louisana. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Mayers, 58, has complete loss of vision in his right eye due to a traumatic incident in childhood. The visual acuity in his right eye is no light perception, and in his left eye, 20/20. Following an examination in 2015, his optometrist stated, “Right eye is prosthetic since injury at age 4 years old. . .He has adapted well to the condition. In my medical opinion, this patient is capable of driving a commercial vehicle safely.”
Mr. Mayers reported that he has driven straight trucks for 40 years, accumulating 400,000 miles, tractor-trailer combinations for 30 years, accumulating 150,000 miles, and buses for 40 years, accumulating 400,000 miles. He holds a Class A CDL from Minnesota. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Middleton, 66, has had a Lasik surgery complication in his left eye since 2008. The visual acuity in his right eye is 20/20, and in his left eye, 20/60. Following an examination in 2015, his optometrist stated, “To whom it may concern,
Kraig Middleton, having an uncorrected visual acuity of 20/25 OU, should be very capable of operating a commercial/passenger motor vehicle based on his visual acuity.” Mr. Middleton reported that he has driven buses for four years, accumulating 39,996 miles. He holds a chauffer's license from Michigan. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Miles, 36, has had optic atrophy in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, light perception. Following an examination in 2015, his optometrist stated, “Mr. Miles has sufficient vision to perform the driving task required to operate a commercial vehicle.” Mr. Miles reported that he has driven straight trucks for 18 years, accumulating 900,000 miles. He holds a Class B CDL from Tennessee. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Monjaraz, 56, has complete loss of vision in his right eye due to a traumatic incident in childhood. The visual acuity in his right eye is no light perception, and in his left eye, 20/25. Following an examination in 2015, his optometrist stated, “It is my medical opinion that Mr. Rocha has sufficient vision to perform the driving tasks required to continue to operate a commercial vehicle.” Mr. Monjaraz reported that he has driven straight trucks for 30 years, accumulating 240,000 miles. He holds an operator's license from Maryland. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Murillo, 32, has had a chorioretinal scar and Coat's disease in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/400. Following an examination in 2015, his ophthalmologist stated, “His right eye testing showed Within [
Mr. Nicolaisen, 58, has had amblyopia in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/400. Following an examination in 2015, his optometrist stated, “Wayne Nicolaisen has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Nicolaisen reported that he has driven straight trucks for 42 years, accumulating 2.73 million miles, and tractor-trailer combinations for 41 years, accumulating 2.67 million miles. He holds a Class A CDL from Pennsylvania. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Ogno, 45, has had a retinal detachment in his left eye since 1982. The visual acuity in his right eye is 20/20, and in his left eye, 20/60. Following an examination in 2014, his optometrist stated, “He has sufficient vision to qualify for a commercial vehicle license.” Mr. Ogno reported that he has driven straight trucks for 25 years, accumulating 375,000 miles. He holds a Class B CDL from New Jersey. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Parker, 24, has had optic neuropathy and a retinal scar in his right eye since childhood. The visual acuity in his right eye is 20/60, and in his left eye, 20/20. Following an examination in 2015, his optometrist stated, “I believe that Richard Parker has sufficient vision to safely drive and operate a commercial vehicle.” Mr. Parker reported that he has driven straight trucks for two years, accumulating 30,000 miles, and tractor-trailer combinations for two years, accumulating 60,000 miles. He holds a Class A CDL from Kansas. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Perkins, 56, has a prosthetic left eye due to a traumatic incident in 1980. The visual acuity in his right eye is 20/20, and in his left eye, no light perception. Following an examination in 2015, his ophthalmologist stated, “It is my opinion that Mr. Perkins continues to maintain normal full vision in his right eye; that his condition has been stable for decades; and he continues to have sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Perkins reported that he has driven straight trucks for 23 years, accumulating 690,000 miles. He holds a Class B CDL from Massachusetts. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Price, 36, has had aphakic, penetrating keratoplasy and amblyopia in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/200. Following an examination in 2015, his optometrist stated, “He has been driving a commercial vehicle for 13 years with the use of right eye; and same vision and fields for 13 years.” Mr. Price reported that he has driven straight trucks for 13 years, accumulating 118,300 miles. He holds an operator's license from Arkansas. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Reginald, 45, has had amblyopia in his left eye since birth. The visual acuity in his right eye is 20/25, and in his left eye, 20/70. Following an examination in 2015, his optometrist stated, “In my medical opinion, Francis has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Reginald reported that he has driven straight trucks for 19 years, accumulating 66,500 miles. He holds a Class B CDL from New Jersey. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Rodriguez, 51, has had amblyopia in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/400. Following an examination in 2015, his optometrist stated, “It is in my medical opinion that Juan has sufficient visual abilities to safely operate a commercial vehicle.” Mr. Rodriguez reported that he has driven straight trucks for 23 years, accumulating 276,000 miles. He holds a Class D CDL from Connecticut. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Rogers, 43, has had a macular scar and aphakia in his left eye due to a traumatic incident in 2012. The visual acuity in his right eye is 20/20, and in his left eye, 20/100. Following an examination in 2015, his optometrist stated, “Mr. Rogers should have sufficient vision to operate a commercial vehicle equipped with side mirrors.”
Mr. Rogers reported that he has driven tractor-trailer combinations for 18.5 years, accumulating 1.8 million miles. He holds a Class A CDL from Pennsylvania. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Rohrer, 74, has retinal scarring in his left eye due to measles in childhood. The visual acuity in his right eye is 20/30, and in his left eye, counting fingers. Following an examination in 2015, his optometrist stated, “Because Mr. Rohrer has been without significant vision in his left eye most of his life, I feel that it does not interfere in his ability to drive a limousine professionally and has sufficient vision and visual field to perform his driving tasks.” Mr. Rohrer reported that he has driven buses for seven years, accumulating 52,500 miles. He holds an operator's license from Pennsylvania. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Roth, 50, has had complete loss of vision in his left eye since 2008. The visual acuity in his right eye is 20/20, and in his left eye, hand motion. Following an examination in 2014, his optometrist stated, “In my opinion, due to his adaptation to his condition and that the condition is stable, David Roth has sufficient vision to perform driving tasks required to operate a commercial vehicle as long as his vehicle has mirrors on the driver and passenger sides.” Mr. Roth reported that he has driven straight trucks for four years, accumulating 180,000 miles, and tractor-trailer combinations for 25 years, accumulating 1.25 million miles. He holds a Class A3 CDL from South Dakota. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Russell, 57, has had amblyopia and optic nerve coloboma in his right eye since birth. The visual acuity in his
Mr. Salter, 54, has had a traumatic cataract, secondary glaucoma, and 30 prism diopter exotrope in his right eye since 1979. The visual acuity in his right eye is no light perception, and in his left eye, 20/20. Following an examination in 2015, his optometrist stated, “I believe that Mr. Ronald has sufficient vision to perform the driving tasks to operate a commercial vehicle.” Mr. Salter reported that he has driven tractor-trailer combinations for 20 years, accumulating 2.55 million miles. He holds a Class A CDL from Mississippi. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Schmelzle, 55, has had a retinal scar in his left eye since 1979. The visual acuity in his right eye is 20/20, and in his left eye, 20/1200. Following an examination in 2014, his optometrist stated, “In my medical opinion, Michael has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Schmelzle reported that he has driven straight trucks for 40 years, accumulating 100,000 miles, and tractor-trailer combinations for 35 years, accumulating 87,500 miles. He holds a Class A CDL from Kansas. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Schmitt, 61, has had amblyopia and open angle glaucoma in his right eye since childhood. The visual acuity in his right eye is 20/200, and in his left eye, 20/20. Following an examination in 2014, his ophthalmologist stated, “In my medical opinion, his vision is adequate to perform driving tasks required to operative [
Mr. Theademan, 40, has had refractive amblyopia in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/50. Following an examination in 2015, his optometrist stated, “Charles Theademan has been driving interstate commercial vehicles successfully for 13 years. . .His visual acuity with spectacles is 20/50+2 OS due to refractive amblyopia.” Mr. Theademan reported that he has driven tractor-trailer combinations for 12 years, accumulating 1.2 million miles. He holds a Class A CDL from Washington. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Tullis, 62, has had a retinal detachment in his right eye since 1987. The visual acuity in his right eye is counting fingers, and in his left eye, 20/20. Following an examination in 2015, his optometrist stated, “In my medical opinion he has sufficient vision to drive a commercial vehicle.” Mr. Tullis reported that he has driven straight trucks for 25 years, accumulating 500,000 miles. He holds an operator's license from Illinois. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Valenzuela, 41, has had a macular hole in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/100. Following an examination in 2015, his optometrist stated, “It is my medical opinion that this non-progressive macular hole has been there for many years and that he has sufficient vision to perform the tasks to drive a commercial vehicle.” Mr. Valenzuela reported that he has driven straight trucks for five years, accumulating 475,000 miles, and tractor-trailer combinations for 11 years, accumulating 1.1 million miles. He holds a Class A CDL from Texas. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Watson, 49, has had amblyopia in his right eye since childhood. The visual acuity in his right eye is 20/80, and in his left eye, 20/20. Following an examination in 2015, his optometrist stated, “In my opinion, Mr. Watson
Mr. Williams, 52, has had amblyopia in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/200. Following an examination in 2015, his ophthalmologist stated, “It is my medical opinion that Lorenzo Williams has sufficient vision to perform the driving tasks required to operate a commercial vehicle with a large rearview mirror and commercial left and right side mirrors.” Mr. Williams reported that he has driven straight trucks for 30 years, accumulating 1.2 million miles, and tractor-trailer combinations for 30 years, accumulating 2.7 million miles. He holds a Class CA CDL from Delaware. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Zezulka, 68, has had a cancerous tumor in his left eye since 2005. The visual acuity in his right eye is 20/20, and in his left eye, light perception. Following an examination in 2015, his optometrist stated, “In my professional medical opinion, William Zezulka's visual capabilities are sufficient to perform the driving tasks required to operate a commercial vehicle.” Mr. Zezulka reported that he has driven straight trucks for 52 years, accumulating 1.06 million miles, and buses for nine years, accumulating 135,000 miles. He holds a Class B CDL from Minnesota. His driving record for the last 3 years shows non crashes and no convictions for moving violations in a CMV.
FMCSA encourages you to participate by submitting comments and related materials.
If you submit a comment, please include the docket number for this notice, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.
To submit your comment online, go to
FMCSA will consider all comments and material received during the comment period and may change this notice based on your comments.
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Folder” button and choose the document listed to review. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemptions; request for comments.
FMCSA announces receipt of applications from 52 individuals for exemption from the prohibition against persons with insulin-treated diabetes mellitus (ITDM) operating commercial motor vehicles (CMVs) in interstate commerce. If granted, the exemptions would enable these individuals with ITDM to operate CMVs in interstate commerce.
Comments must be received on or before November 2, 2015.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2015-0067 using any of the following methods:
•
•
•
•
Charles A. Horan, III, Director, Carrier, Driver and Vehicle Safety Standards, (202) 366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. The 52 individuals listed in this notice have recently requested such an exemption from the diabetes prohibition in 49 CFR 391.41(b) (3), which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by statute.
Mr. Adams, 41, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Adams understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely.
Mr. Adams meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Maryland.
Mr. Arnett, 44, has had ITDM since 2012. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Arnett understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Arnett meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Missouri.
Mr. Ash, 48, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Ash understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Ash meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Kansas.
Mr. Barrios, 66, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Barrios understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely.
Mr. Barrios meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Nevada.
Mr. Brown, 46, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Brown understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Brown meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Tennessee.
Mr. Chapman, 62, has had ITDM since 2007. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Chapman understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Chapman meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Colorado.
Mr. Conner, 60, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Conner understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely.
Mr. Conner meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Culler, 59, has had ITDM since 1991. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Culler understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Culler meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Ohio.
Mr. Dover, 40, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Dover understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Dover meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Idaho.
Mr. Duncan, 53, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist
Mr. Everett, 57, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Everett understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Everett meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from California.
Mr. Ferrone, 52, has had ITDM since 2010. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Ferrone understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Ferrone meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Fosdick, 59, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Fosdick understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Fosdick meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Ohio.
Mr. Greig, 61, has had ITDM since 2009. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Greig understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Greig meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Oregon.
Mr. Gross, 49, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Gross understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Gross meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from Wisconsin.
Mr. Hoffman, 56, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hoffman understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hoffman meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Kansas.
Mr. Hursey, 69, has had ITDM since 2009. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hursey understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hursey meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Maryland.
Mr. Jackson, 31, has had ITDM since 1998. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Jackson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Jackson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Pennsylvania.
Mr. Jennings, 59, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or
Mr. Kennedy, 24, has had ITDM since 2009. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Kennedy understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Kennedy meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from West Virginia.
Mr. Koger, 52, has had ITDM since 2008. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Koger understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Koger meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from North Carolina.
Mr. Kuhn, 73, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Kuhn understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Kuhn meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Lakas, 67, has had ITDM since 2012. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Lakas understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Lakas meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Missouri.
Mr. Lark, 33, has had ITDM since 2008. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Lark understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Lark meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Florida.
Mr. Loyd, 48, has had ITDM since 2008. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Loyd understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Loyd meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Illinois.
Mr. Morse, 23, has had ITDM since 2009. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Morse understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Morse meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Massachusetts.
Ms. Neece, 50, has had ITDM since 2015. Her endocrinologist examined her in 2015 and certified that she has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. Her endocrinologist certifies that Ms. Neece understands diabetes management and monitoring has stable control of her diabetes using insulin, and is able to drive a CMV safely. Ms. Neece meets the requirements of the vision standard at 49 CFR 391.41(b)(10). Her optometrist examined her in 2015 and certified that she does not have diabetic retinopathy. She holds a Class A CDL from North Carolina.
Mr. Neville, 42, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Neville understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Neville meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from New Jersey.
Mr. Nicolaus, 57, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Nicolaus understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Nicolaus meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Iowa.
Mr. Rast, 59, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Rast understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Rast meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from South Carolina.
Mr. Reese, 54, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Reese understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Reese meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Florida.
Mr. Rictor, 23, has had ITDM since 1991. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Rictor understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Rictor meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from Oregon.
Mr. Riley, 41, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Riley understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Riley meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from West Virginia.
Mr. Ripley, 40, has had ITDM since 2002. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Ripley understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Ripley meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Minnesota.
Mr. Ripley, 53, has had ITDM since 1982. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Ripley understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Ripley meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Washington.
Mr. Russell, 51, has had ITDM since 2012. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Russell understands diabetes management and monitoring, has stable control of his diabetes using
Mr. Shapiro, 59, has had ITDM since 2004. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Shapiro understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Shapiro meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Alabama.
Mr. Shehan, 54, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Shehan understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Shehan meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from North Carolina.
Ms. Shelman, 27, has had ITDM since 2015. Her endocrinologist examined her in 2015 and certified that she has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. Her endocrinologist certifies that Ms. Shelman understands diabetes management and monitoring has stable control of her diabetes using insulin, and is able to drive a CMV safely. Ms. Shelman meets the requirements of the vision standard at 49 CFR 391.41(b)(10). Her optometrist examined her in 2015 and certified that she does not have diabetic retinopathy. She holds a Class B CDL from Iowa.
Mr. Shuler, 45, has had ITDM since 2005. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Shuler understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Shuler meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class B CDL from Washington, DC.
Mr. Sitarchyk, 56, has had ITDM since 1984. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Sitarchyk understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Sitarchyk meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable proliferative diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Smith, 62, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Smith understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Smith meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Iowa.
Mr. Smith, 41, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Smith understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Smith meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Alabama.
Mr. Snead, 61, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Snead understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Snead meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative and stable proliferative diabetic retinopathy. He holds a Class A CDL from Georgia.
Mr. Snook, 62, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the
Mr. Stauffer, 65, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Stauffer understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Stauffer meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Iowa.
Mr. Stephenson, 60, has had ITDM since 1975. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Stephenson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Stephenson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from South Dakota.
Mr. Stirn, 53, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Stirn understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Stirn meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Maryland.
Mr. Wideman, 80, has had ITDM since 1982. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Wideman understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Wideman meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Florida.
Mr. Wood, 57, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Wood understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Wood meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Arkansas.
Mr. Yethman, 38, has had ITDM since 2012. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Yethman understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Yethman meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Massachusetts.
Mr. Zylstra, 68, has had ITDM since 2012. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Zylstra understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Zylstra meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from California.
In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated in the date section of the notice.
FMCSA notes that section 4129 of the Safe, Accountable, Flexible and Efficient Transportation Equity Act: A Legacy for Users requires the Secretary to revise its diabetes exemption program established on September 3, 2003 (68 FR
Section 4129 requires: (1) Elimination of the requirement for 3 years of experience operating CMVs while being treated with insulin; and (2) establishment of a specified minimum period of insulin use to demonstrate stable control of diabetes before being allowed to operate a CMV.
In response to section 4129, FMCSA made immediate revisions to the diabetes exemption program established by the September 3, 2003 notice. FMCSA discontinued use of the 3-year driving experience and fulfilled the requirements of section 4129 while continuing to ensure that operation of CMVs by drivers with ITDM will achieve the requisite level of safety required of all exemptions granted under 49 U.S.C. 31136 (e).
Section 4129(d) also directed FMCSA to ensure that drivers of CMVs with ITDM are not held to a higher standard than other drivers, with the exception of limited operating, monitoring and medical requirements that are deemed medically necessary.
The FMCSA concluded that all of the operating, monitoring and medical requirements set out in the September 3, 2003 notice, except as modified, were in compliance with section 4129(d). Therefore, all of the requirements set out in the September 3, 2003 notice, except as modified by the notice in the
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and material received during the comment period and may change this proposed rule based on your comments. FMCSA may issue a final rule at any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, To submit your comment online, go to
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice, and request for comments.
PHMSA is reopening the period for comments on the American Trucking Associations, Inc.'s (ATA) application for a preemption determination concerning the requirements of the New York City Fire Department for a permit to transport certain hazardous materials by motor vehicles through New York City, or for transshipment from New York City, and the fee for the permit.
Interested persons are invited to submit comments on, or before November 2, 2015, and these comments will be considered before an administrative determination is issued by PHMSA's Chief Counsel.
All documents in this proceeding, including the comments submitted by the New York City Fire Department (FDNY), may be reviewed in the Docket Operations Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. All documents in this proceeding are also available on the U.S. Government Regulations.gov Web site:
Vincent Lopez, Office of Chief Counsel, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590; Telephone No. 202-366-4400; Facsimile No. 202-366-7041.
ATA applied for an administrative determination concerning whether Federal hazardous material transportation law, 49 U.S.C. 5101
Internal Revenue Service, Treasury.
Notice of matching program.
Pursuant to section 552a(e)(12) of the Privacy Act of 1974, as amended, and the Office of Management and Budget (OMB) Guidelines on the Conduct of Matching Programs, notice is hereby given of the conduct of the Internal Revenue Service Disclosure of Information to Federal, State and Local Agencies (DIFSLA) Computer Matching Program.
Inquiries may be mailed to the Internal Revenue Service; Privacy, Governmental Liaison and Disclosure; Data Services; ATTN: Klaudia K. Villegas, Program Manager, 300 N. Los Angeles Street, MS 1020, Los Angeles, CA 90012.
Internal Revenue Service; Privacy, Governmental Liaison and Disclosure; Data Services; ATTN: Klaudia K. Villegas, Program Manager, 300 N. Los Angeles Street, MS 1020, Los Angeles, CA 90012. Telephone: (213) 576-4223 (not a toll-free number).
The notice of the matching program was last published at 78 FR 26696-26697 (May 7, 2013). The Colorado Department of Human Services is no longer participating in the DIFSLA Computer Matching Program and the Ohio Department of Medicaid is now participating in the DIFSLA Computer Matching Program. Members of the public desiring specific information concerning an ongoing matching activity may request a copy of the applicable computer matching agreement at the address provided above.
In accordance with section 6103(l)(7) of the Internal Revenue Code (IRC), the Secretary shall, upon written request, disclose current return information from returns with respect to unearned income from the Internal Revenue Service files to any federal, state or local agency administering a program listed below:
(i) A state program funded under part A of Title IV of the Social Security Act;
(ii) Medical assistance provided under a state plan approved under Title XIX of the Social Security Act, or subsidies provided under section 1860D-14 of such Act;
(iii) Supplemental security income benefits provided under Title XVI of the Social Security Act, and federally administered supplementary payments of the type described in section 1616(a) of such Act (including payments pursuant to an agreement entered into under section 212(a) of Pub. L. 93-66);
(iv) Any benefits provided under a state plan approved under Title I, X, XIV, or XVI of the Social Security Act (as those titles apply to Puerto Rico, Guam, and the Virgin Islands);
(v) Unemployment compensation provided under a state law described in section 3304 of the IRC;
(vi) Assistance provided under the Food and Nutrition Act of 2008;
(vii) State-administered supplementary payments of the type described in section 1616(a) of the Social Security Act (including payments pursuant to an agreement entered into under section 212(a) of Pub. L. 93-66);
(viii)(I) Any needs-based pension provided under Chapter 15 of Title 38, United States Code, or under any other law administered by the Secretary of Veterans Affairs;
(viii)(II) Parents' dependency and indemnity compensation provided under section 1315 of Title 38, United States Code;
(viii)(III) Health-care services furnished under sections 1710(a)(2)(G), 1710(a)(3), and 1710(b) of such title.
A. Federal agencies expected to participate and their Privacy Act systems of records are:
1. Department of Veterans Affairs: Veterans Benefits Administration—Compensation, Pension and Education and Rehabilitation Records-VA, 58 VA 21/22; and Veterans Health Administration—Healthcare Eligibility Records, 89VA19; and
2. Social Security Administration, Office of Systems Requirements— Supplemental Security Income Record and Special Veterans Benefits, (60-0103).
B. State agencies expected to participate using non-federal systems of records are:
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. App. 2, that the Advisory Committee on Disability Compensation (Committee) will meet on October 26-27, 2015. The Committee will meet at 1800 G Street NW., Washington, DC 20001, on the Fifth Floor in Conference Room 540. The sessions will begin at 8:30 a.m. and end at 4:30 p.m. each day. The meeting is open to the public.
The purpose of the Committee is to advise the Secretary of Veterans Affairs on the maintenance and periodic readjustment of the VA Schedule for Rating Disabilities. The Committee is to assemble and review relevant information relating to the nature and character of disabilities arising during service in the Armed Forces, provide an ongoing assessment of the effectiveness of the rating schedule, and give advice on the most appropriate means of responding to the needs of Veterans relating to disability compensation.
The Committee will receive briefings on issues related to compensation for Veterans with service-connected disabilities and other VA benefits programs. Time will be allocated for receiving public comments. Public comments will be limited to three minutes each. Individuals wishing to make oral statements before the Committee will be accommodated on a first-come, first-served basis. Individuals who speak are invited to submit 1-2 page summaries of their comments at the time of the meeting for inclusion in the official meeting record.
The public may submit written statements for the Committee's review to Dr. Ioulia Vvedenskaya, Department of Veterans Affairs, Veterans Benefits Administration, Compensation Service, Policy Staff (211C), 810 Vermont Avenue NW., Washington, DC 20420 or email at
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Dakota skipper (
This rule becomes effective on November 2, 2015.
This final rule is available on the internet at
The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at
Peter Fasbender, Field Supervisor, U.S. Fish and Wildlife Service, Twin Cities Ecological Services Fish and Wildlife Office, 4101 American Boulevard East, Bloomington, Minnesota 55425; telephone (612) 725-3548; facsimile (612) 725-3609. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
We, the U.S. Fish and Wildlife Service (Service), listed the Dakota skipper as a threatened species and the Poweshiek skipperling as an endangered species on October 24, 2014 (79 FR 63672). On October 24, 2013, we published in the
The critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for the Dakota skipper and Poweshiek skipperling. Here we are designating approximately 19,903 acres (8,054 hectares) of native prairies and connecting dispersal habitats for the Dakota skipper and approximately 25,888 acres (10,477 hectares) of native prairies and connecting dispersal habitats for the Poweshiek skipperling.
We, the U.S. Fish and Wildlife Service (Service), listed the Dakota
We requested written comments from the public on the proposed designation of critical habitat for the Dakota skipper and Poweshiek skipperling during two comment periods. The first comment period associated with the publication of the proposed rule (78 FR 63625) opened on October 24, 2013, and closed on December 23, 2013, during which we held public meetings on November 5, 2013, in Minot, North Dakota; November 6, 2013, in Milbank, South Dakota; November 7, 2013, in Milford, Iowa; November 13, 2013, in Holly, Michigan, and November 14, 2013, in Berlin, Wisconsin. We also requested comments on the proposed critical habitat designation and associated draft economic analysis during a comment period that opened September 23, 2014, and closed on October 23, 2014 (79 FR 56704). We published a news release stating that we would continue to accept comments during the time period between December 23, 2013, and the end of the second public comment period. We did not receive any requests for a public hearing. We also contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and draft economic analysis during these comment periods.
During the first comment period, we received approximately 33 comment letters addressing the proposed critical habitat designation. We also received several additional comment letters posted to the listing docket, but that also addressed the proposed critical habitat designation. Comment letters addressing the proposed listing rule were addressed in the final listing ruling document. We received 7 comment letters after the 1st comment period closed but before the 2nd comment period opened on the proposed critical habitat, and approximately 15 comments on the listing docket that also addressed critical habitat. During the second comment period, we received 21 comment letters addressing the proposed critical habitat designation or the draft economic analysis. We also received 5 additional comment letters posted to the listing docket, but that also addressed the proposed critical habitat designation. All substantive information provided during comment periods has either been incorporated directly into this final determination or addressed below. Comments received were grouped into several general issues specifically relating to the critical habitat designation for the Dakota skipper and the Poweshiek skipperling and are addressed in the following summary and incorporated into the final rule as appropriate.
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from ten knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received responses from seven of the peer reviewers.
We reviewed all comments received from the peer reviewers for substantive issues and new information regarding critical habitat for the Dakota skipper and Poweshiek skipperling. The peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve the final critical habitat rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.
(1) Comment: Several peer reviewers stated that the best available scientific information was used to develop the proposed critical habitat designation and the Service's analysis of the available information was scientifically sound. Peer reviewers provided updated information on Dakota skipper and Poweshiek skipperling populations and stressors throughout the ranges of these species. Minor edits to specific details and interpretation of data did not affect their endorsement of the proposal and its conclusions.
Our Response: We have incorporated the updated information into the Background section of this final rule. Some of the new information received resulted in minor changes or refinements of critical habitat unit boundaries, removal or addition of units, or the occupancy status of some units.
(2) Comment: One peer reviewer asked if the definition of critical habitat, specifically, the geographical area occupied by the species, refers to the total range of the species—interpreted as the area bounding all known occurrences, or the spatial extent of particular colonies or populations (
Our Response: Critical habitat is a term defined and used in the Act. It is those specific geographic areas that contain features essential to the conservation of a threatened or endangered species and that may require special management and protection. Critical habitat may include areas that are not currently occupied by the species, but that will be needed for its conservation.
(3) Comment: One peer reviewer asked if the definition of critical habitat, specifically, areas outside the geographical area occupied by the species, refers to the geographical area outside of the documented range of the species or sites within that range that are not known to be occupied at the time of listing?
Our Response: That clause in the definition of critical habitat under section 3(5)(A)(ii) of the Act refers to any areas that are not occupied at the time the species is listed. These could be areas that fall outside the documented historical range of the species, or specific sites within the documented range of the species that were known to be occupied at one point, but which are not occupied when the species is listed (
(4) Comment: One peer reviewer, with particular experience in Iowa and Minnesota, agrees with the locations proposed as critical habitat, as they are a good representation of the recent historical range for both species.
Our Response: We thank you for your comment.
(5) Comment: One peer reviewer stated that the assertion that Dakota skipper larvae are “particularly vulnerable to desiccation during dry summer months” was a hypothesis with
Our Response: We recognize the limitations of Royer's 2008 study, and have corrected our interpretations accordingly; specifically, the sampling design (edaphic parameters (such as bulk density and soil moisture) were measured only in occupied areas and no unoccupied areas were examined to test the significance of the findings) does not allow for statistically significant conclusions.
(6) Comment: One peer reviewer questioned why an increase in bulk density (compaction) is relevant in tilled lands, as tilling destroys the habitat in ways that are far more fundamental than changing bulk density.
Our Response: We agree that tilling land alters the native remnant prairies in many ways, such that they are no longer inhabitable to the Dakota skipper or Poweshiek skipperling. Tilling alters the physical state of the soil, and bulk density is just one component of soils that has been measured before and after tilling.
(7) Comment: One peer reviewer did not understand the statement about Dakota skipper distribution and isolation. “The distribution” would normally be understood as meaning the same as “range,” but the reviewer questioned what about the Dakota skipper's range led the Service to describe it as isolated. If what is intended is to describe the current distribution as consisting of small colonies highly isolated from each other, it would be better stated this way.
Our Response: We did not intend for distribution to mean range in this context. We have corrected this information in the Physical or Biological Features section of this final rule to clarify that we mean that the species currently exists in small, isolated areas.
(8) Comment: One peer reviewer suggested that we verify the accuracy of the following sentence: “In Michigan, Poweshiek skipperling live on prairie fens, which occur on the lower slopes of glacial moraines or ice contact ridges (Albert 1995 in Michigan Natural Features Inventory 2012, p. 1) where coarse glacial deposits provide high hydraulic connectivity that forces groundwater to the surface (Moran 1981 in Michigan Natural Features Inventory 2012, p. 1)”.
Our Response: We have checked additional sources and have modified the language in the Physical or Biological Features section of this final rule to correctly state that “In Michigan, Poweshiek skipperling live on prairie fens, which occur on poorly drained outwash channels and outwash plains in the interlobate regions of southern Lower Michigan (Kost
(9) Comment: One peer reviewer commented that populations of Poweshiek skipperlings in southwest Minnesota did not appear to need low wet areas that provide shelter and relief from high summer temperatures and fire. Areas like this were not present, or were located well away from areas where the Poweshiek skipperling was observed.
Our Response: We have clarified that the Poweshiek skipperling may not need low and wet areas at all sites in the Physical or Biological Features section of this final rule.
(10) Comment: One peer reviewer commented that we should not use the precisely quantified soil parameters as stated in primary constituent element (PCE) 1b for the Dakota skipper.
Our Response: We agree and have modified PCE 1b for Dakota skippers. Royer (2008) only examined occupied areas for these parameters; therefore, the statistical and biological significance of these edaphic variables cannot be determined from his study.
(11) Comment: One peer reviewer asked whether we assume there is some possibility that sites with unknown occupancy may still harbor populations.
Our Response: In areas with unknown occupancy, we believe there is a possibility that the species still exists at the location. If these areas still do harbor a population, they would be important for species recovery for various reasons. For example, the remaining individuals may hold potential genetic representation, or a small population could be augmented to help establish a robust population or individuals from a large population may be used for reintroductions to other locations.
(12) Comment: One peer reviewer questioned what genetic material would be preserved if the species is truly absent from locations where we are currently uncertain of the occupancy?
Our Response: We agree that if the species is proven to be absent from a location that there will be no genetic material to preserve at that location. However, because we are uncertain of the occupancy, we believe there is some possibility that the species still exists there. If the species does exist at those locations, it would be important to preserve the genetic material at that location. Maintaining redundancy of genetic representation is important in case genetically similar populations are lost.
(13) Comment: One reviewer recommended that Dakota skipper critical habitat units DS MN 13A and 13B in Kittson County, Minnesota, be expanded to include locations referred to as “Spot G” and “Spot H” in Rigney (2013a). The reviewer supported that recommendation by stating that, although no Dakota skippers were observed at Lake Bronson in 2013, there was one highly likely sighting there, and the area continues to contain moderate-quality habitat.
Our Response: We have reviewed this new information and have found that “Spot G” and “Spot H” were greater than the estimated 1-km (0.6-mi) dispersal distance from the closest sites where the species have been documented (those sites within MN Unit 13A and 13B), and we believe the habitat areas are too small (1 ac (0.4 ha) and 12 ac (5 ha), respectively) to qualify as independent sub-units. These areas, however, may be useful as potential reintroduction sites, which we will consider during recovery planning.
(14) Comment: One peer reviewer questioned why no areas in far northwestern Minnesota were proposed as critical habitat for Poweshiek skipperlings, given the close proximity of the extant Manitoba population to the U.S. border, the similarity between occupied habitats in Manitoba and in Minnesota, and the historical Poweshiek skipperling records in Kittson County.
Our Response: We reviewed the known locations of Poweshiek skipperlings in northwestern Minnesota, and, based on new information that we received, we revised the proposed critical habitat (79 FR 56704) and included critical habitat for the Poweshiek skipperling in Polk and Kittson counties, Minnesota (PS MN Units 19 and 20) in this final designation. See the Critical Habitat section of this final rule and the textual descriptions of units (available online at
(15) Comment: One reviewer recommended the addition of several units in Minnesota as critical habitat for the Poweshiek skipperling. These areas included the following: Lake Bronson, North Clow 36, North Clow 35, Richardville 28 and 29, and the West Caribou Wildlife Management Area (WMA) sites identified in the 2013 Kittson County surveys (Rigney 2013a). The reviewer asserted that these areas have equivalent habitat and opportunity to encounter the Poweshiek skipperling as does the Lake Bronson site, which was included in the proposal; although no Poweshiek skipperlings were observed at these sites in 2013, they do provide moderate-quality habitat.
Our Response: We reviewed the information in the 2013 reports and have designated critical habitat for the Poweshiek skipperling in the Lake Bronson Area (PS MN Unit 19), which was the only aforementioned location that met our criteria for critical habitat. Specifically, most of the Poweshiek skipperling records in the sites the reviewer recommended for inclusion were relatively old (1992 or earlier), the habitat was rated as relatively poor, or the sizes of the parcels were likely too small to sustain a viable population. The Poweshiek skipperling was last observed at the North Clow 35 location in 1992, and the site is very small (6 ac (2.4 ha)). North Clow 35 consists of four separate areas, ranging in size from 1 to 5 ac (0.4 to 2 ha), recently rated as moderate quality (Rigney 2013a, p. 3), but these areas are on the fringes of a densely forested area surrounded by agriculture and only equated to a total of approximately 9 ac (3.6 ha). The Poweshiek skipperling was last observed at both West Caribou WMA and North Clow 36 in 1991, but the habitat at West Caribou was recently considered to be of only fair quality (Rigney 2013a, pp. 7-9). The habitat at North Clow 36 was reported as good (Rigney 2013a, pp. 5-6), but the habitat equates to less than 5 ac (2 ha) in size. Richardville 28 and 29 each had Poweshiek skipperling records from 1991, but equate to less than 4 ac (1.6 ha) in size combined.
(16) Comment: One peer reviewer commented that all of the Dakota skipper critical habitat units in North Dakota are essential and should be included as critical habitat.
Our Response: We thank you for your comment, which supports the designations in North Dakota. Based on new information, we have made some refinements to a few of the aforementioned critical habitat units, and other units have been partially or entirely removed from designation, due to these units no longer meeting our criteria for critical habitat. We have also excluded some of the areas in North Dakota that were proposed as critical habitat because of existing partnerships that outweigh the benefits of critical habitat (see Exclusions discussion below).
(17) Comment: One peer reviewer commented that the three proposed Poweshiek skipperling critical habitat units in North Dakota were not enough and recommended additional land be considered as critical habitat. The reviewer further explained that, given the probable historical extent of habitat for this species in North Dakota, the designation of only 263 ac (106 ha) is not sufficient to represent the species' complete potential range within the State. For that reason, the reviewer recommended expanding the critical habitat designation to include other sites, particularly within the Sheyenne National Grassland (Richland-Ransom County) area.
Our Response: We reviewed the available data on the occurrence of the Poweshiek skipperling in the Sheyenne National Grasslands, and found few records for the species in those areas. The single record of the species, from 1996, was unverified and the habitat was considered to be poor in 2012 (Royer 2012, p. 87). Thus, we have not included any areas as critical habitat for the Poweshiek skipperling in the Sheyenne National Grassland. However, there may be suitable habitat within the Sheyenne National Grasslands that may be important in recovery efforts for both species, such as potential sites for future reintroductions. For example, in light of new ecological information, we have refined the boundaries of North Dakota Critical Habitat Units 11 and 12 to better reflect Dakota skipper habitat—this area may also be utilized for Poweshiek skipperling recovery. PS North Dakota Unit 3 was removed from proposed critical habitat designation because we received new or updated information that indicates that this area no longer meets our criteria for critical habitat as described in this final critical habitat rule. This unit is dominated by Kentucky blue grass, and site managers “are unsure if we can bring the site back to a more native dominated site,” which has been either burned or grazed every spring from 2009 through 2013 (Askertooth, 2014, pers. comm.). North Dakota Unit 3 was 47 ha (117 ac) of federally owned land and included Krause Wildlife Production Area in Sargent County.
(18) Comment: One peer reviewer asked if the site with the most recent historic sites for Dakota skipper in Iowa should be included as critical habitat for that species. Other sites that are included in the Poweshiek skipperling designations (PS Iowa Unit 3, PS Iowa Unit 11) may also contain good habitat for the Dakota skipper.
Our Response: In Iowa, the Dakota skipper was recorded from two locations in 1911 and 1906, which did not meet our criteria for critical habitat because the records were old, and there is currently no suitable habitat at those locations. The Dakota skipper was observed at one additional site in Iowa in 1992. This area was not designated as critical habitat due to the relatively old record and because there were few records of the species in the State; therefore, we did not think that Iowa sites would help fulfill the conservation principles of redundancy, resiliency, and representation for the Dakota skipper. Some of the areas designated as critical habitat for the Poweshiek skipperling may also be important areas for Dakota skipper recovery efforts, however.
(19) Comment: One peer reviewer noted that the Florenceville Prairie in Howard County, Iowa, may be another possible addition to the Poweshiek skipperling critical habitat units.
Our Response: We examined Florenceville Prairie for its potential for critical habitat designation. The Poweshiek skipperling was last observed in this location in 1994. Other than the record, we had very little information regarding the habitat and management of the site, which appears to be approximately 25 ac (10 ha) from our aerial photograph interpretation. Because of its small size and little more information, this site did not fit our criteria for critical habitat. The Florenceville Prairie may be an important area for recovery.
(20) Comment: One peer reviewer suggested that our discussion of the time for prairie habitat to degrade to non-habitat due to woody encroachment and invasive species would benefit from additional literature review, because there is much variation among sites.
Our Response: We agree that there may be site-specific variation, which is why we attempted to verify habitat on the ground. There are few long-term studies of prairies without a management component that estimate the time of natural succession from prairie to non-prairie habitat. We have included citations from several sources that studied long-term succession across varying management regimes.
(21) Comment: North Dakota Natural Resources Conservation Service (ND NRCS) commented that a substantial percentage of the literature cited in the proposed rule was internal documents and not peer-reviewed or published literature.
Our Response: Under the Act, we are obligated to use the best available scientific and commercial information, including results from surveys, reports by scientists and biological consultants, natural heritage data, and expert opinion from biologists with extensive experience studying the Dakota skippers and Poweshiek skipperling and their habitats, whether published or unpublished. We acknowledge that some of the reports we utilized were unpublished reports, most of which were reports of butterfly surveys that were submitted directly to various agencies. The Service's databases were also referenced several times within the document (
(22) Comment: Several agencies expressed interest in working with the Service to manage Dakota skipper and Poweshiek skipperling habitat and establish best management practices for the species.
Our Response: We look forward to continuing to work with Federal agencies and other interested parties to explore management approaches and their benefit to the species and their habitat.
(23) Comment: The North Dakota Army National Guard (NDARNG) requested exemptions from listing and critical habitat designations on lands that they use for training in North Dakota where they have an Integrated Natural Resources Management Plan (INRMP) in place in accordance with the Sikes Act.
Our Response: Neither Camp Grafton South nor Garrison Training Area were proposed for critical habitat designations, nor are they included in our final designations.
(24) Comment: North Dakota State Department of Trust Lands commented that non-invasive grasses, such as Kentucky bluegrass and smooth brome, exceed the five percent threshold as defined for PCE 1d for the Dakota skipper and PCE 1e for the Poweshiek skipperling. They further state that data show that managed grazing has limited the dominance of Kentucky bluegrass, whereas no management results in a total dominance of Kentucky bluegrass.
Our Response: We realize that non-native plant species in some areas designated as critical habitat may currently exceed five percent of the area, and that non-native plants will likely increase if these areas are not managed properly. Through active management, such as managed grazing, we will strive to reduce the amount of non-native invasive plants in critical habitat areas.
(25) Comment: The U.S. Forest Service recommended that the Service consider making boundary adjustments to Dakota skipper North Dakota Units 11 and 12. The Forest Service used a butterfly habitat model (Foli and Sjursen 2005) to develop recommendations for boundary adjustments that eliminate lands cultivated in the early 1900s that are dominated by non-native plants.
Our Response: In light of this new ecological information, we have refined the boundaries of North Dakota Critical Habitat Units 11 and 12 to better reflect Dakota skipper habitat.
(26) Comment: The Minnesota Department of Natural Resources (MN DNR) supports the Service's decision to designate critical habitat for the Dakota skipper and Poweshiek skipperling in Minnesota and concurs with the Service's determination that designation of critical habitat for these species will be beneficial to their conservation.
Our Response: Thank you for your comment.
(27) Comment: The MN DNR recommends that areas with plans for restoration of severely degraded prairie be considered for exclusion under section 4(b)(2) of the Act. They commented that this would necessitate an explicit distinction between prairie remnants requiring maintenance-level management and remnants requiring restoration-level management, and would allow for more liberal use of management in lands targeted for restoration and support cautious management in restored areas. As such, prairie restoration practices are critical to connecting existing prairie remnants, countering the effects of habitat fragmentation and isolation, and are a focus of the Minnesota Prairie Conservation Plan (MPCP).
Our Response: To exclude areas from critical habitat, the benefit of exclusion of that land must outweigh inclusion as critical habitat. The critical habitat designation for these two butterflies focused on relatively high-quality native remnant prairie, which may need maintenance-level management, with limited areas of lesser quality habitat included as dispersal areas. Four units in Minnesota contain lesser quality dispersal habitat (DS/PS Minnesota Unit 2, DS/PS Minnesota subunit 7A, PS Minnesota Unit 11 and PS Minnesota Unit 13), where restoration management may be appropriate. There are several areas included in the MPCP that are designated as critical habitat. We determined that degraded or poor-quality prairies and dispersal areas would benefit from inclusion in the designation because the species may use these areas during the short adult period. The Service will work with the MN DNR and other stakeholders to help identify varying habitat types and is looking forward to working together to develop methods and practices for restoring habitat for the two butterfly species. We hope to work with those involved in the MPCP to develop mutually acceptable management on these areas. See the Consideration of Impacts Under Section 4(b)(2) of the Act section of this final rule for more details on our balancing analysis for critical habitat exclusions.
(28) Comment: The North Dakota Department of Agriculture suggested the addition of public informational meetings throughout the range of the butterflies in North Dakota and requested that there be more discussion on the potential impacts to private landowners, Federal funding programs, and current and future easements with the Service.
Our Response: The Service will continue to conduct public outreach and coordinate with the U.S. Department of Agriculture and other stakeholders throughout the recovery planning and implementation process for these species. Proposed projects in areas where one or both species may be present, or on designated critical habitat that has a Federal nexus (in other words, funded, authorized or carried out
(29) Comment: North Dakota Game and Fish and South Dakota Department of Game, Fish, and Parks commented that including private land in the designation of critical habitat increases the threat of conversion of privately owned grassland. Benefits may be derived from the triggering of consultation under section 7 of the ESA for activities that have a Federal nexus on State and Federal lands. However, benefits of consultation or regulatory protections afforded by the implementation of section 7 of the ESA are lost when applied on private land. The Service should take this concern seriously and continue to investigate suitable alternatives to critical habitat designation. The Service should consult with each private landowner individually and directly to determine their potential impacts.
Our Response: We agree that conversion of native prairies to agricultural or other uses is a threat to both species and have discussed this threat in the final listing determination, published in the
During development of the proposed critical habitat designation, the Service notified each private landowner of record of the proposed designation and requested that landowners submit information, in the form of public comments, about potential impacts. While efforts to consult directly with each private landowner are outside the scope of this effort, the Service has considered this issue and has held some meetings with individual landowners to discuss their concerns. We focused initial meetings with private landowners in Minnesota, North Dakota, and South Dakota, which is where we received several comments from private landowners who had concerns about the implications of listing and critical habitat designations. Additionally, we have excluded some areas that are covered by conservation partnerships that provide a conservation benefit to Dakota skipper or Poweshiek skipperling from final critical habitat designation in this final rule. It is important for private individuals to understand that only those proposed projects in areas where one or both species may be present, or on designated critical habitat, and that have a Federal nexus (in other words, funded, authorized or carried out by a Federal agency), will be required to undergo consultation with the Service under section 7 of the Act. The responsibility of this consultation is that of the Federal agency, not the private landowner.
(30) Comment: The South Dakota Department of Agriculture asked how a private landowner would be compensated, if during the course of the Service's activities for monitoring the critical habitat areas, the land or property is damaged.
Our Response: Surveys for either species on private lands would only be conducted with landowner permission. Furthermore, surveys are not destructive in nature and have little, if any, impact to the land.
(31) Comment: South Dakota Department of Agriculture suggested that further research should be conducted to determine if the Poweshiek skipperling is present in South Dakota. Because the Poweshiek skipperling is not found in South Dakota, this commenter submitted that South Dakota should not be included in the critical habitat designation for that species.
Our Response: According to our data and analysis, the presence of Poweshiek skipperling is unknown at 36 of the total 69 sites where the species has been documented in South Dakota. The species was detected at least once at all 36 of these sites in 1993 or later; of those, 19 had positive detections in 2002 or later. No surveys were conducted for the species between 2007 and 2011 at these 36 sites. Many of these 36 sites were surveyed in 2012 and/or 2013, but we cannot presume that the species is truly absent at sites with only 1 or 2 years of negative data. The most recent detection of the species in South Dakota was at three sites in 2008. At several South Dakota sites, the species persisted for longer than 20 years. South Dakota is in the range of the Poweshiek skipperling and the species is listed throughout its range. Critical habitat is defined in the Endangered Species Act as specific areas within the geographic area occupied by a species, at the time it is listed, on which are found those biological or physical features that are essential to the conservation of the species and may require special management considerations or protection. Additionally, specific areas outside the geographic area occupied by a species at the time of listing may be considered for critical habitat designation if they are essential for the conservation of the species. The areas we have designated as critical habitat are important for the resiliency, redundancy, and representation concepts of species recovery, as discussed in the Criteria Used To Identify Critical Habitat section of this final rule. We addressed the comment regarding additional surveys or research in the final listing rule, published in the
(32) Comment: North Dakota Game and Fish commented that the proposal infers that the Service has identified skipper habitat in addition to critical habitat in North Dakota. If that is correct, does the Service have specific legal descriptions where such habitat exists and what restrictions will be placed on that habitat?
Our Response: The Dakota skipper and the Poweshiek skipperling are both closely tied to native prairie habitats. Dakota skipper and Poweshiek skipperling are among a group of species endemic to North American tallgrass and mixed-grass prairie. In addition, these butterflies are not likely to inhabit reconstructed prairies, such as former cropland replanted to native prairie species. The Service has records of the Dakota skipper and Poweshiek skipperling in areas that are not designated as critical habitat, but these sites did not meet our criteria for critical habitat as described in this final ruling. However, they may still be important for recovery. The Service recognizes that there may be areas of suitable habitat for the species where surveys have never occurred or the survey effort was insufficient to know if the species were truly absent from a location. We do not have specific legal descriptions of all potential habitat areas. Therefore, the
(33) Comment: The North Dakota Farm Bureau and several other organizations noted that incentive-based voluntary programs that work well for other species may be a better solution to listing and critical habitat designations.
Our Response: We appreciate any assistance to incentivize landowners to conserve these species. Voluntary action can have a significant contribution to conservation, and if such measures are in place when we are evaluating a species for listing, we consider them in that decision. The Service's policy, Expanding Incentives for Voluntary Conservation Actions Under the Act (77 FR 15352, March 15, 2012), encourages voluntary conservation actions for non-listed species (
(34) Comment: North Dakota Game and Fish supported the removal of Poweshiek skipperling North Dakota Unit 3 from the final designation as proposed on September 23, 2014.
Our Response: We proposed some changes to our critical habitat proposal on September 23, 2014, based on updated biological or ecological information. Based on the information we received, the habitat in the aforementioned unit no longer met our criteria for critical habitat and has been removed.
(35) Comment: The North Dakota Department of Agriculture suggests removing all critical habitat designations from any lands that are not currently inhabited by either species. Both species rarely travel more than 1 mile in their lifetime, so it is highly unlikely that unoccupied areas will be re-colonized without artificial reintroduction. It would not be beneficial to the species to designate critical habitat that will not be re-colonized naturally.
Our Response: Some of the lands we are considering to be “unoccupied” for critical habitat analyses have actually had recent records of the species' presence and have only had 1 or t2 years of negative surveys (no detections during the survey season). It is beneficial to designate these areas as critical habitat in light of the potential for recovery of the species on these lands as discussed in the Critical Habitat section of this rule.
(36) Comment: The South Dakota Department of Agriculture requested that all private lands be removed from the critical habitat designations due to economic impacts. The average size of the farms in the South Dakota counties selected for critical habitat for both species is 675 acres (USDA National Agricultural Statistics Service 2013). These are small family farms that support the local county economy. The National Agricultural Statistics Service reported that the total livestock and crop cash receipts for these counties are $1,447,861,000. The Service proposed to designate about 0.20 percent of total farmed acres as critical habitat. This could potentially result in a loss of $2.5 million to the local economies.
Our Response: The Service must consider the economic impacts of designating critical habitat and has done so for these two species. As noted in the notice of availability for the draft economic analysis (79 FR 56708; September 23, 2014), the Service evaluated the economic impact of designating critical habitat for the Dakota skipper and Poweshiek skipperling in the “Screening Analysis of the Likely Economic Impacts of Critical Habitat Designation for the Dakota Skipper and Poweshiek Skipperling.” The screening analysis was made available for public review and comment on September 23, 2014. As a result of our analysis, we concluded that the proposed critical habitat designation for the Dakota skipper and Poweshiek skipperling is unlikely to generate costs exceeding $100 million in a single year; therefore, the rule is unlikely to meet the threshold for an economically significant rule. Private property owners have expressed concern that the designation of critical habitat for the two butterflies may affect their property values. Data limitations prevented the quantification of the possible incremental reduction in property values; however, data on current land values suggest that, even if such costs occur, the rule is unlikely to reach the threshold of an economically significant rulemaking when possible perception effects are combined with the other incremental costs.
The commenters' calculation of a potential loss of $2.5 million to the local economies assumes that all livestock and crop income will be lost in those counties. The designation of critical habitat does not have such far-reaching effects. Furthermore, several privately owned areas have been removed due to new ecological information indicating unsuitable habitat or excluded based on the existence of conservation partnerships as described in the Consideration of Impacts under section 4(b)(2) of the Act section of this rule.
(37) Comment: The North Dakota Department of Agriculture (NDDA) and a few private individuals are concerned that the designation of critical habitat on private lands could jeopardize current private conservation efforts or result in fewer private-public partnerships to preserve native grassland, and they suggest the Service remove all critical habitat designations from private lands. They further commented that, whether the impacts associated with a critical habitat designation are real or perceived, private land designated as critical habitat has decreased value economically. It is less marketable to future buyers, both for agriculture and development. The Service's September 8, 2014, memorandum concludes that proposed critical habitat designation does not reach the threshold of an “economically significant rulemaking,” however, it is very significant for current and future landowners.
Our Response: As the commenter notes, this issue was discussed in a September 8, 2014, memorandum titled “Supplemental Information on Land Value—Critical Habitat Designation for the Dakota skipper and Poweshiek skipperling.” Data limitations prevent the quantification of the possible incremental reduction in property values due to the designation of critical habitat, but the memorandum presents information on the total value of the private lands (excluding conservation lands) included in the proposed critical habitat designation as an estimate of the upper bound on possible costs. It also identifies the relative value of private land across the proposed units.
In this final critical habitat designation, we have made modifications to some of the critical habitat units due to new ecological
The public perceptions supplement to the draft economic analysis discusses the idea that public attitudes about the limits or restrictions that critical habitat may impose can cause real economic effects to property owners, regardless of whether such limits are actually imposed (stigma effects). As the public becomes aware of the true regulatory burden imposed by critical habitat, the impact of the designation on property markets may decrease. Although stigma impacts may occur when critical habitat is first designated, and may be a real concern to landowners, research shows those impacts should be temporary. As described in the memorandum, small entities are generally not directly involved in the consultation process between NRCS or U.S. Department of Agriculture (USDA) and the Service. As a result, impacts to small ranchers are not anticipated.
(38) Comment: MN DNR recommended that a clear distinction be made regarding management activities that will be permitted in designated critical habitat that is occupied by one or both species and critical habitat that is not currently occupied by either species. Furthermore, this commenter requested that the Service provide clear guidance to support distinguishing between “occupied” and “unoccupied” habitat in terms of the required frequency of surveys upon which to base conclusions regarding occupancy years since the last observation for a site to be considered occupied; number of individuals observed for a site to be considered occupied; distance from a site with more recent, larger, or more certain observation for a site to be considered occupied; and when artificial reintroduction of a listed species into an unoccupied site would be permitted, and when the site would then be considered occupied.
Our Response: Stakeholders and project proponents should provide U.S. Fish and Wildlife Service Ecological Services field office (FWS-ES) with a description of the area that would be affected, directly or indirectly, by the proposed or ongoing action to determine whether it is occurring in an area that is occupied by the species and what the appropriate management activities would be at the particular location. We discuss species occupancy in the Criteria Used to Identify Critical Habitat section of this final rule, which we used to determine the occupancy status of critical habitat units at the time of the publication of this final rule.
(39) Comment: The South Dakota Department of Agriculture expressed concern that management restrictions implemented on critical habitat may have an impact on noxious weed and pest management on adjacent private lands. They asked what steps the Service will take to ensure that the management practices on critical habitat do not adversely affect adjacent private lands.
Our Response: Proposed projects on designated critical habitat with a Federal nexus (in other words, funded, authorized or carried out by a Federal agency) will be required to undergo consultation with the Service under section 7 of the Act. We are not aware of any management restrictions that would affect noxious weed and pest management on property adjacent to critical habitat areas.
(40) Comment: The North Dakota Department of Transportation is concerned that all activity related to highway construction and maintenance projects adjacent to or within critical habitat of the Dakota skipper will have to undergo consultation with the Service. There are six proposed critical habitat units for Dakota skipper that are located adjacent to highways in North Dakota (DS Units 5, 6, 7, 9, 10, and 14).
Our Response: In the section 4(d) rule for Dakota skipper, published with the final listing rule, we exempted take of Dakota skippers caused by mowing native grassland for hay after July 15 within transportation rights-of-way. See the Designation section of this final rule for maps of our final designations—we have made adjustments to some of the aforementioned units due to new ecological information, and we have excluded some lands in some of those units—see Consideration of Impacts Under Section 4(b)(2) of the Act section of this final rule. However, new highway construction projects in critical habitat would need to undergo consultation if they have a Federal nexus.
(41) Comment: The South Dakota Department of Game, Fish and Parks (SDGFP) commented that they have a cooperative agreement with the Service for the conservation of endangered and threatened animals. As such, they have coordinated and funded numerous butterfly surveys, published a butterfly field guide, developed specific management recommendations for Hartford Beach State Park and Pickerel Lake Recreation Area, and are developing a management plan for the Crystal Springs GPA to benefit prairie wildlife species. The SDGFP submitted this information as documentation of their past, current, and future commitment to assist with rare tallgrass prairie butterfly species recovery. They hope this will facilitate management of the critical habitat owned and managed by SDGFP.
Our Response: We appreciate your continued efforts towards conservation of the two species and look forward to working with the SDGFP to that end.
(42) Comment: The MN DNR commented that exclusions under section 4(b)(2) of the Act should be exercised cautiously and reserved only for circumstances in which the benefit of exclusion will clearly outweigh the benefit of designation and treat all landowners equitably.
Our Response: We agree. Exclusions under Section 4(b)(2) of the Act must outweigh the benefit of inclusion in the critical habitat designation. This weighing analysis was completed for several situations, including lands with established partnerships with the Service such as private lands on which the Service has secured conservation easements and private properties that are covered by existing conservation agreements under the Service's Partners for Fish and Wildlife Program. Exclusions are discussed in detail in the Consideration of Impacts Under Section 4(b)(2) of the Act section of this rule.
(43) Comment: The MN DNR discouraged the Service from invoking participation in the Minnesota Prairie Conservation Plan (MPCP) to justify exclusion of land from critical habitat. The agency believes that the designation of critical habitat is concordant with a landowner's participation in the MPCP and, in many cases, will enhance the effectiveness and further the goals of the MPCP.
Our Response: The Service did not exclude any land from critical habitat designation based solely on participation in the Minnesota Prairie Conservation Plan.
(44) Comment: The MN DNR recommended that relief from regulatory restrictions be provided to private landowners within designated critical habitat, rather than exclusion from critical habitat under section 4(b)(2), such as those provided under section 10
Our Response: The Service hopes to work with the State to develop ways to conserve the two butterfly species. See the Consideration of Impacts under section 4(b)(2) of the Act section of this final rule for a discussion of the lands that were excluded from final designations.
(45) Comment: The MN DNR recommends that areas with plans for restoration of severely degraded prairie should be considered as eligible for exclusion under section 4(b)(2) of the Act. This will necessitate that the Service draw an explicit distinction between prairie remnants requiring maintenance-level management and remnants requiring restoration-level management.
Our Response: To exclude areas from critical habitat, the benefit of exclusion of that land must clearly outweigh inclusion. The critical habitat designation focused on relatively high-quality native remnant prairie with limited areas of lesser quality habitat included as dispersal areas. Some degraded areas were considered for exclusions, for example, if they were part of a conservation agreement as described in the Consideration of Impacts under Section 4(b)(2) of the Act section of this rule. We did not, however, use degraded areas with plans for restoration as the sole basis for exclusion from critical habitat. Furthermore, several critical habitat boundaries were modified prior to our exclusion analysis to remove degraded areas from critical habitat due to the poor habitat quality. The Service will work with the MN DNR and other stakeholders to help identify varying habitat types and is looking forward to working with the MN DNR and others to develop methods and practices for restoring habitat for the two butterfly species.
(46) Comment: ND Game and Fish and ND State Department of Trust Lands stated that the list of counties in which the 4(d) rule did not allow take caused by grazing—Eddy, McHenry, Richland, Rolette, Sargent, and Stutsman—did not directly correspond to the list of counties in which critical habitat was proposed—McHenry, McKenzie, Ransom, Richland, Rolette, and Wells.
Our Response: We revised the 4(d) rule to exempt take caused by grazing throughout the range of the species, and not limited to certain counties. Thus, the final 4(d) rule exempts take of Dakota skippers caused by livestock grazing on all private, State, tribal, and other non-Federal (
(47) Comment: The North Dakota State Department of Trust Lands requested that their land be removed from critical habitat, because cultivation on these lands is prohibited by the North Dakota State constitution. Due to this lack of cultivation, the Dakota skipper is still found on North Dakota School Trust Lands.
Our Response: Although cultivation is prohibited on these lands, we still conclude that the benefits of excluding these lands do not outweigh the benefits of including them as critical habitat as described in the Consideration of Impacts under section 4(b)(2) of the Act section of this rule. We will work with the North Dakota School Department of Trust Lands to conserve Dakota skipper habitat and hope to develop a mutually acceptable partnership with them.
(48) Comment: The North Dakota State Department of Trust Lands stated that Kentucky bluegrass is the dominant species in two of the four tracts of North Dakota trust land in McHenry County that were proposed as critical habitat. The third tract has been actively grazed, which has reduced the amount of Kentucky bluegrass, and the fourth tract is tallgrass prairie in good condition that had previously been hayed in the fall.
Our Response: The Dakota skipper has been consistently observed in all four of the units partially or entirely owned by the North Dakota State Land Department and was observed during 2012 surveys at all four units. In light of new ecological information, however, we have refined the boundaries of DS North Dakota Unit 3, and corrected a mapping error in North Dakota Unit 8 to better reflect Dakota skipper habitat.
(49) Comment: The North Dakota State Department of Trust Lands requested that the following counties be excluded from critical habitat for the Dakota skipper: Adams, Billings, Bowman, Burleigh, Dunn (southern), Emmons, Golden Valley, Grant, Hettinger, Logan Mercer, McIntosh, McKenzie (southern), Oliver, Sioux, and Slope. The commenter requested exclusion because these counties are not part of the historical range of the species, they do not contain suitable habitat, the cost of conducting surveys in these counties is significant, and their inclusion as critical habitat will cause significant economic harm.
Our Response: Of the counties listed in this comment, only one, McKenzie County, contains critical habitat for the Dakota skipper and Poweshiek skipperling. The economic analysis does not anticipate incremental impacts resulting from additional surveying efforts for the butterflies in the critical habitat areas in McKenzie County because all are considered occupied or of uncertain occupancy. Therefore, any surveying effort would likely occur with or without the critical habitat designation, as a result of the listing of the species. Dunn, McKenzie, and Oliver counties are within the range of the species and are included in the final listing determination, which was published on October 24, 2014 (79 FR 63671).
(50) Comment: The MN DNR stated that the Service should include Camden and Split Rock Creek state parks as critical habitat.
Our Response: We have considered Camden State Park and Split Rock Creek State Park for critical habitat, but neither meets our criteria as described in this final rule. Split Rock Creek State Park may, however, be important for recovery of the species.
(51) Comment: Wild Earth Guardians, North Oakland Headwaters Land Conservancy, and The Nature Conservancy (TNC) in Minnesota, North Dakota, and South Dakota support the proposed rules to list and designate critical habitat for the Dakota skipper and Poweshiek skipperling as published in the proposed rule in the
Our Response: We appreciate your support for the listing and critical habitat designations and look forward to working with our partners to conserve both species. The criteria for critical habitat are discussed in Criteria Used To Identify Critical Habitat section of this final rule. In brief, some areas did not meet these criteria, for example, if the habitat has been severely degraded and is no longer in a suitable condition to support the species. Areas not included in our designations may still be important for recovery of one or both
(52) Comment: TNC commented that it was not clear exactly how the unoccupied sites are contributing to the long-term goals of the critical habitat and ultimately the recovery of the species. They encouraged the Service to further clarify its rationale for designating unoccupied sites as critical habitat and how that designation contributes to the long-term recovery goals for both species.
Our Response: Federal agencies must ensure that their activities do not adversely modify critical habitat to the point that it will no longer aid in the species' recovery. In many cases, this level of protection is very similar to that already provided to species by the “jeopardy standard.” However, areas that are currently unoccupied by the species, but which are needed for the species' recovery, are protected by the prohibition against adverse modification of critical habitat. Such unoccupied areas are rarely protected by the prohibition against jeopardizing the survival of the species. The importance of including unoccupied areas for recovery of one or both species is discussed in the Critical Habitat section of the rule.
(53) Comment: The American Petroleum Institute commented that the Service had not conducted the analysis required under the ESA to designate critical habitat and had not shown that critical habitat is determinable. They stated that absent important elements of the statutory analysis, the Service's proposed critical habitat designations are impermissible or, at a minimum, premature and unsupported. They further stated that this analysis cannot be made because the Service has yet to evaluate the economic impacts of the critical habitat designation.
Our Response: We have described how we determined critical habitat areas in detail in the Critical Habitat section of this final rule. In the Critical Habitat section of our proposed rule, published on October 23, 2013 (78 FR 63574), we discussed determinability. In brief, we reviewed the available information pertaining to the biological needs of the species and habitat characteristics where these species are located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the Dakota skipper and Poweshiek skipperling. For critical habitat designations, the Service must consider the economic impacts of designating critical habitat and has done so for these two species. The draft economic report was made available for public review on September 23, 2014.
(54) Comment: One organization and one private citizen commented that the Service's suggestion that the Regulatory Flexibility Act (RFA), and case law thereunder, absolves the Service of its obligation to consider impacts of critical habitat designations misinterprets and misapplies the RFA and stands at odds with nearly every other critical habitat designation proposed by listing agencies. Private entities, including small businesses, can, and do, incur significant costs, which must be analyzed in the RFA. The requirement of an RFA is well-supported throughout the administrative record, and has been clearly established by other agencies, including the Small Business Administration's Office of Advocacy. The Service's suggestion that “only Federal action agencies will be directly regulated by this designation” is erroneous and unsupported by the record. An economic analysis required by section 4 of the ESA and the RFA must be completed.
Our Response: Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
(55) Comment: The ND Stockmen's Association asked what kind of expansion of critical habitat landowners might expect over time. They further asked about the process for designating additional habitat and how much time would be given to survey the species in question in order to determine whether an expansion is necessary before more land would be designated.
Our Response: We acknowledge that the Act authorizes the Service to make revisions to designated critical habitat. If, in the future, the best available information at that time indicates revision of critical habitat is appropriate, and if resources are available, we may revise this critical habitat designation. While the Service does not anticipate changing critical habitat for these two species at this time, if we determine that the critical habitat needs future revision, we would complete that revision through the rulemaking process, including publication of a proposed rule and comment period before the final ruling publication. Additional areas that may harbor thus far undocumented populations of one or both species may be important for recovery.
(56) Comment: The Society for Range Management stated that the comment period occurred in the winter when the landowners and other interested parties could not assess the proposed areas on the ground.
Our Response: On December 17, 2013, the Service announced plans to open an additional public comment period in 2014, once a draft economic analysis on the potential impacts of critical habitat became available. In that announcement, we stated that we would continue to accept comments via mail or hand delivery on the proposal for critical habitat and the proposal for listing between Dec. 23, 2013, and the close of the second public comment period. The second public comment period opened on September 23, 2014, and closed on October 23, 2014.
(57) Comment: The ND Stockmen's Association commented that the Service states that “habitat is dynamic, and species may move from one place to another over time.” The association asked if that is the case, then how can earmarking specific parcels as critical habitat be an effective strategy to conserve a species? This group noted that the Service also states that “. . . critical habitat at a particular point in time may not include all of the habitat areas that we later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal habitat outside the designated area is unimportant or may not be needed for the recovery of a species.” These statements do not give landowners assurance that these proposals will be effective and do not encourage landowner cooperation, especially when critical habitat designations will affect
Our Response: The purpose of this statement is to recognize that there may be other lands, outside of designated critical habitat areas, that may be important to conserve and recover the species.
(58) Comment: The North Dakota Stockmen's Association requested clarification on whether the polygons on the maps delineate critical habitat or whether the entire county is designated as critical habitat. They further commented that Eddy and Stutsman Counties in North Dakota are on the list for inclusion as critical habitat, yet neither is included in the mapped areas.
Our Response: Critical habitat areas are specific geographic regions identified in the maps in this final critical habitat rule, not the entire counties. There are no areas designated as critical habitat in Eddy County or Stutsman County, North Dakota. Unit-specific textual descriptions are available online at
(59) Comment: The North Dakota Farmer's Union stated that landowners were notified by mail just prior to publication of the proposed rules. The organization further stated that the Service should have contacted landowners months prior to publication so they could develop a candidate conservation agreement that would allow landowners to voluntarily commit to conservation actions that would help stabilize or restore these species, thereby eliminating the need for listing.
Our Response: The Service acknowledges the importance of landowner cooperation in conserving the Dakota skipper and Poweshiek skipperling. As discussed in conservation measures of Factor A of the final listing rule (published in the
(60) Comment: Delta Waterfowl commented that, when the Service is considering the designation of critical habitat, special consideration should be given to landowners who are involved in any conservation effort via conservation agreement, easement, grazing system, or other action with the Service, conservation organizations, U.S. Department of Agriculture—NRCS or other recognized conservation or agricultural entities.
Our Response: Landowners deserve credit for their stewardship, and we want to encourage their management practices that support the butterflies. We have excluded some areas that are covered by conservation partnerships that provide a conservation benefit to Dakota skipper or Poweshiek skipperling from final critical habitat designation in this rule. See the Consideration of Impacts under section 4(b)(2) of the Act section of the preamble of this final rule for more details on these easements and the benefits of excluding these areas.
(61) Comment: The North Dakota Farmers Union stated that due to the historical loss of native mixed-grass and tallgrass prairie in Iowa, Illinois, and Indiana, a disproportionate share of the survival of these butterflies is dependent upon remaining native prairie habitat in North Dakota and South Dakota, which places an unfair burden on landowners in those States. Native prairie in North Dakota is predominantly used for livestock grazing—the sole source of income and livelihood for ranchers, as well as those who hold grazing contracts on Federal land. The Farmers Union further stated that, to curb livestock grazing, haying, and other practices on critical habitat would devastate ranching operations.
Our Response: The Service acknowledges the importance of landowner cooperation in conserving the Dakota skipper and Poweshiek skipperling. For this reason, the Service published a 4(d) rule that exempts incidental take by routine grazing activities for Dakota skipper on October 24, 2014 (79 FR 63671). Proposed projects in areas where one or both species may be present or on designated critical habitat that have a Federal nexus (in other words, projects that are funded, authorized, or carried out by a Federal agency) will be required to undergo consultation with the Service under section 7 of the Act. We suggest that action agencies contact the Service's Ecological Services Office in their State if they are planning an activity with a Federal nexus that may affect the species or its critical habitat. Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The notice of availability of the draft economic analysis was published in the
(62) Comment: The North Dakota Farmers Union commented that critical habitat for the Poweshiek skipperling will encompass 283 acres of Federal land in North Dakota, and, if it is listed as an endangered species, no grazing will be allowed on this land. The Farmers Union stated that this is especially disconcerting for livestock producers if habitat is expanded to include private land.
Our Response: We have refined the boundaries of some units in North Dakota based on new information. Critical habitat for the Poweshiek skipperling is now two units in North Dakota, for a total of approximately 166 ac (67 ha). Although the Poweshiek skipperling may still be present in these areas, that likelihood is low, and we are considering the units to be unoccupied at the time of listing. Therefore, Federal activities in unoccupied units that may affect the Poweshiek skipperling will need to undergo consultation under section 7 of the Act, but we do not anticipate that grazing will be prohibited on those Federal lands.
(63) Comment: The North Dakota Farmers Union questioned the need to designate critical habitat for the Poweshiek skipperling since it has not been found in North Dakota, according to the information presented by Service at the public meeting in North Dakota. Designating three units of Federal land for recovery of the Poweshiek skipperling could seriously impact the economics of ranching and farming operations in North Dakota.
Our Response: As presented at the public meeting in November 2013, the Service is aware of 18 locations in North Dakota where the Poweshiek skipperling has been recorded. The Poweshiek skipperling was last observed in North Dakota in 2001; however, we are unaware of any surveys for the species between 2003 and 2011. The species was not detected at 4 North Dakota sites with previous records that were surveyed in 2012 or at 5 additional North Dakota sites with previous records that were surveyed in 2013. The Service can designate critical habitat occupied at the time of listing and in unoccupied areas, and has done so for the Poweshiek skipperling, for instance, at two locations in North Dakota, where the species may no longer be present. The importance of unoccupied areas is discussed in detail in the Critical Habitat section of this rule. Critical habitat for the Poweshiek skipperling now comprises two unoccupied federally owned units in North Dakota. In these units, only Federal activities will need to undergo consultation under section 7 of the ESA, if those activities may affect the Poweshiek skipperling critical habitat. The economics of these consultations is discussed in the draft economic analysis, the notice of which was published in the
(64) Comment: Several organizations and individuals commented that the critical habitat designation would restrict private property rights and have economically significant ramifications, particularly for livestock producers. They further expressed that the threat of being subject to additional government requirements could be enough to encourage the conversion of these lands to other uses. They commented that designating critical habitat for the two butterflies will result in regulatory takings of an individual's livelihood and, ultimately, his or her property.
Our Response: As stated in our proposed rule, the Service has followed Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”). The designation of critical habitat is not anticipated to have significant takings implications for private property rights. As discussed in the Critical Habitat section of this final rule, the designation of critical habitat affects only Federal actions. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation plans or issuance of incidental take permits to authorize actions that require permits. Due to current public knowledge of the species' protections and the prohibition against take of the two species both within and outside of the proposed areas, we do not anticipate that property values would be affected by the critical habitat designation. Our economic analysis for proposed critical habitat designation found only limited incremental impacts of the designation and small impacts on activities on private lands. The notice of availability of the draft economic analysis was published in the
(65) Comment: Several private citizens noted that the designation of critical habitat will lead to a decrease in the value of privately owned land. They further stated that the designation would place restrictions on the landowner's ability to subdivide and sell the land.
Our Response: We have considered this and have provided a supplemental data memorandum available online at (
(66) Comment: Minnkota Power Cooperative commented that emergency response events due to storms or other causes demand that we be able to react quickly to restore damaged systems (
Our Response: Rain and snow storms may be considered a disaster or an act of God under section 7 of the Endangered Species Act (50 CFR 402.05). Therefore, consultation under section 7 may be required only if there may be an effect to a listed species or its critical habitat resulting from activities that have occurred during or immediately following an emergency situation. We suggest contacting your State's Ecological Services office to discuss typical actions taken during emergencies that may affect a species or its critical habitat.
(67) Comment: The Society for Range Management commented that listing and critical habitat designation in North Dakota will have a negative effect on the conservation of native grasslands. They further stated that conservation and management plans are a viable option to maintaining and improving native grasslands in North Dakota and that management of native grasslands is essential to maintaining their ecological integrity. The Society indicated that threats to native grasslands not only include conversion to cropland but also detrimental invasive plants such as leafy spurge, Kentucky bluegrass, and smooth brome, and that control of these species can only be provided by the ranchers who are also the reason that the Dakota skipper population has remained stable in North Dakota.
Our Response: We agree that conservation of Dakota skipper populations relies on careful implementation of management practices that conserve its habitat while minimizing adverse effects. Landowners deserve credit for their stewardship, and we want to encourage their management practices that support the butterflies.
(68) Comment: The Basin Electric Cooperative stated that the large amount of the proposed critical habitat for the Dakota skipper and Poweshiek skipperling is either private or State-owned land. They encouraged the Service to work with States and private landowners to preserve habitat and to educate private landowners on best practices, particularly regarding grazing, as this would greatly benefit both species. Furthermore, they stated that industry-specific agencies and groups may have greater access to farmers and ranchers and may be able to provide insight into the most effective way to educate private landowners.
Our Response: We agree that education regarding the practices to maintain and enhance those habitats through grazing or other measures is a crucial part of endangered species conservation. The Service has been working with private landowners to encourage conservation and will continue to do so.
(69) Comment: The South Dakota Chapter of the Wildlife Society commented that, due to the importance of private lands to the recovery of these species, the Service should consider potential concerns from private landowners with lands proposed for critical habitat designation. Many of the landowners with lands proposed for critical habitat are already engaged as conservation partners through agreements with the Service, Natural Resources Conservation Service, or Farm Services Agency and we encourage the Service to use those existing partnerships as you weigh the benefits of excluding parcels of land in the final designation. However, others may be less familiar with opportunities to work cooperatively with the Service. The organization recommends that the Service exercise maximum flexibility when considering requests for critical habitat exclusions.
Our Response: We have repeatedly contacted private landowners who own land within the boundaries of proposed critical habitat and specifically requested their input on any conservation plans, programs, or partnerships in place on any or all of their land, if a critical habitat designation would change how any of those plans, partnerships, or agreements were implemented, and if they had any other comments on potential impacts of critical habitat designations on their property. As discussed in detail in the Consideration of Impacts under section 4(b)(2) of the Act section of this rule, we are excluding some areas that are covered by a variety of conservation plans and partnerships that provide a conservation benefit to Dakota skipper or Poweshiek skipperling.
(70) Comment: The South Dakota Chapter of the Wildlife Society commented that Primary Constituent Element (PCE) 3 for Dakota skipper and PCE 4 for Poweshiek skipperling deviate significantly from what is described in the listing rule as important habitat for both species. PCE 3 for Dakota skipper and PCE 4 for Poweshiek skipperling describe dispersal habitat that would be designated as critical habitat even though such areas may be entirely composed of nonnative grasslands or previously plowed ground. Since native prairie with a quality forb component is the key habitat needed for these species, we encourage the Service to rethink whether designation of tracts of invasive nonnative grass species should be included as critical habitat for these species. There is not good documentation provided in the proposed rule that invasive nonnative grasslands provide good dispersal habitat for these butterfly species and, therefore, if the Service chooses to designate such areas as critical habitat, we recommend providing additional documentation that nonnative grasslands really provide an essential habitat for these species versus just an occasional or theoretical dispersal corridor.
Our Response: During mapping of critical habitat areas, those areas suitable for dispersal were kept to a minimum amount of land to connect two or more good or better quality native prairies. Several dispersal areas have been excluded from our designations including 252 ac (102 ha) of dispersal habitat at DS North Dakota Unit 3, a total of 425 ac (172 ha) at PS South Dakota Unit 3B, and 156 ac (ha) at DS North Dakota Unit 5. The largest area of dispersal habitat in the designation is approximately 160 ac (65 ha). There are no critical habitat units that consist solely of PCE 3 for Dakota skipper and PCE 4 for Poweshiek skipperling. These corridors are essential to connect areas of higher quality habitat.
(71) Comment: The South Dakota Chapter of the Wildlife Society commented that, if the Service chooses to include dispersal habitat as critical habitat between two or more tracts of property, at least one of the tracts should actually be occupied by the species. In the proposed critical habitat rule there are numerous tracts of private land proposed as dispersal critical habitat that connect only unoccupied parcels of native prairie. The commenter questioned designation of dispersal critical habitat on private lands between other unoccupied parcels when there is no plan to attain occupancy on those parcels.
Our Response: Some of the lands we are considering to be “unoccupied” for critical habitat analyses have actually had very recent records of the species but have had only 1 or 2 years of negative surveys (no detections during the survey season). So, even though the Service has analyzed them as if they are unoccupied for the purposes of determining if the areas were essential for conservation of the species, there is still a reasonable chance that populations exist in those “unknown” areas. In our designation, there are 12 Poweshiek skipperling units and 7 Dakota skipper units with dispersal areas that connect higher quality native prairies. For Dakota skipper, most dispersal areas connect native prairies where the species was observed in 2012, so there is a reasonable chance that the species exists at those locations. In addition, two units had dispersal areas connecting native prairies with slightly older records (2008 and 2006). The Dakota skipper unit with an older record (1997) of the species is largely under Federal ownership (111 ac), with some State (6 ac) and private (2 ac) ownership. The private land is largely in a railroad right-of-way and serves as dispersal habitat. Eight of the 12 Poweshiek skipperling units with dispersal habitat have records in 2005 or more recently, so there is a reasonable chance that the species may exist at some of those locations as well. Many of the private areas in these units have been excluded (see our Consideration of Impacts under section 4(b)(2) of the Act section of this rule for details on exclusions). For the four other units, one is entirely owned by The Nature Conservancy, and three have some private land (<72 ac). One of these units overlaps entirely with the Dakota skipper unit described above with the railroad right-of-way. The private land at one of the two remaining Poweshiek skipperling units consists of about 28 ac (11 ha) of native prairie and 43 ac (17 ha) dispersal habitat. The 22 ac (9 ha) of private land in PS Minnesota Unit 11 is purely dispersal area. Since dispersal areas (
(72) Comment: The South Dakota Chapter of the Wildlife Society commented that critical habitat designations of unoccupied habitat on non-Federal lands are likely to make future reintroductions or translocations
Our Response: See our response to the previous comment regarding unoccupied lands. To maintain conservation partnerships with private landowners, we have excluded many parcels of private land due to existing conservation efforts (see Consideration of Impacts under section 4(b)(2) of the Act section of this final rule). Property owners are often willing partners in species recovery, however, some property owners may be reluctant to undertake activities that support or attract listed species on their properties, due to fear of future restrictions related to the Act. There are tools available to address this concern, such as a safe harbor agreement (SHA) that provides assurances to participating landowners that future property use restrictions will not occur. SHAs are intended to provide a net conservation benefit that contributes to the recovery of the covered species. We recommend that landowners who are interested in conservation partnerships discuss opportunities with the Service Ecological Services Field Office in their State.
(73) Comment: One commenter suggested that the Service's methodology for classifying occupancy for purposes of identifying critical habitat for recovery is well supported. Given the difficulties of detecting these small butterflies most observable in the brief period per year when they are in the adult life stage, a conservative approach is justified. The timing of the adult flight period and the species' abundance varies greatly among years, due to climatic variation. At least 3 years of surveys are needed before an area should be considered extirpated. Furthermore, those 3 years of surveys need to be detailed efforts per survey, with multiple dates of surveys per year.
Our Response: Thank you for your comment. We agree that multiple dates of surveys per year are desired to verify non-detection of the species in a given year. We have added language to clarify that point in the Background section of this final rule as well as the final listing rule published on October 24, 2014 (79 FR 63671).
(74) Comment: The Nature Conservancy in Minnesota, North Dakota, and South Dakota stated that while all the sites designated as critical habitat were based on current or very recent occupancy, inventory work leading to the identification of those sites in the past has been sporadic and not comprehensive. Not all potential habitat was surveyed, and the inventory work that was done tended to focus on the same easily accessible prairie tracts. Restricting critical habitat to only the tracts inventoried may miss other potentially suitable habitat. A landscape analysis identifying areas of suitable habitat based on the description of physical and biological features necessary to support both species as described in the proposed critical habitat would strengthen the justification and objectivity for critical habitat designations.
Our Response: We agree that there has not been a range-wide systematic sampling design implemented to identify new locations of the Dakota skipper and Poweshiek skipperling. The search for additional potential locations of both species has been conducted using a variety of different approaches over the years and potential sites have been narrowed down on the landscape by examining topographic and aerial maps, State natural heritage habitat mapping data, aerial surveys, roadside surveys, and other methods. Other sites have been surveyed due to a proposed project and the potential for suitable habitat in the area or proximity to other known locations of one or both species. Many sites are repeatedly surveyed in order to understand long-term trends in the presence of the species or to quantify other population parameters. Although only a small fraction of all grassland in North Dakota, South Dakota, and Minnesota has been surveyed for Dakota skippers, a significant proportion of the unsurveyed area is likely not suitable for Dakota skipper. For example, the species was never detected at approximately 108 additional locations in North Dakota that were surveyed for the species from 1991 through 2013 (USFWS 2014, unpubl. geodatabase). Similarly, in South Dakota and Minnesota, 79 and 148 additional locations, respectively, were surveyed for the species from 1991 through 2013 (USFWS 2014, unpubl. geodatabase). Many of these sites have been surveyed multiple times over several years. Surveys for the Dakota skipper are typically conducted only in areas where floristic characteristics are indicative of their presence. New potential sites surveyed are generally focused on prairie habitats that appear suitable for the species and have a good potential of finding the species; in other words, sites are not randomly selected across the landscape. Therefore, these sites have a higher likelihood of detecting the species than at sites randomly selected across the landscape. Based on these surveys, the likelihood that significant numbers of undiscovered Dakota skipper populations occur in North Dakota, South Dakota, and Minnesota is low. Likewise, the likelihood that significant numbers of undiscovered Poweshiek skipperling populations occur in its range is low. We acknowledge that there may be some undiscovered populations and additional areas of suitable habitats, however, and are starting to explore the potential of using spatially explicit modeling to develop probability occurrence maps of both species to help direct future surveys and conservation efforts.
(75) Comment: The Nature Conservancy in Minnesota, North Dakota, and South Dakota supported the Service's justification for why representation, redundancy, and resiliency are important for conservation of species. While good evidence is presented as to how the sites proposed as critical habitat provide good redundancy across the species' historic geographic ranges, evidence that these areas will be sufficient to support viable populations of butterflies long term is lacking. They further encouraged the Service to make explicit the rationale for critical habitat designation and the goals of critical habitat designation. A spatially explicit population viability analysis would be a valuable addition to the information provided and would help provide clarity to the need for designating critical habitat in unoccupied areas. Data or evidence to suggest that currently occupied habitat is insufficient or that the current portfolio of occupied and unoccupied sites is sufficient would strengthen the case for designating all the sites as critical habitat.
Our Response: We are interested in potentially utilizing spatially explicit population viability analysis as a tool for determining important recovery areas in addition to our designated critical habitat units, to help support viable populations of butterflies into the future. To conduct this type of analysis, it will be important to gather additional population demography and habitat data. For the long term, for example, it would be important to have models that predicted response of prairie remnant habitats to climate change and other landscape-level stressors. The rationale and importance of critical habitat designation is discussed in the Critical Habitat section of this rule.
(76) Comment: The South Dakota Chapter of the Wildlife Society stated that areas that have never been surveyed
Our Response: There are five Dakota skipper critical habitat units which we analyzed as unoccupied that do not have recent records (since 2002). Two of the five Dakota skipper units have portions owned by private citizens, totaling 21 acres (8 ha). Since the Dakota skipper has an estimated maximum dispersal of about 1 km (0.8 mi) during its adult flight period, we assume that the butterfly could move across ownerships unless there was a barrier to dispersal. When determining if areas were suitable for inclusion in our designations, we closely examined the land using aerial photography interpretation coupled with recent on-the-ground information that was provided to us. Although we did these analyses using only biological and ecological information (without looking at landownership), it was usually very clear from the aerial photographs, when land was managed in ways that were not conducive to the species. Unless those areas provided dispersal areas between two high-quality native remnant prairies, those areas were not included in our designations.
(77) Comment: Several organizations and private citizens provided suggestions for specific revisions to some units.
Our Response: We have considered the comments and made revisions as appropriate, based on our analysis.
(78) Comment: Several organizations and private citizens suggested that certain units be excluded from critical habitat.
Our Response: We have considered the comments and made revisions as appropriate, based on our analysis.
(79) Comment: The Michigan Nature Association (MNA) commented that the prairie fens in Michigan, which contain the remaining Poweshiek skipperling populations, are dependent upon functional fen hydrology. The high quality of these fen communities relies on consistent groundwater input and their related groundwater recharge areas. MNA stated that the critical habitat designated areas do not appear to address this hydrological component of the prairie fen dynamic or be at a scale that can address the hydrology of these fens, which is critical to maintaining the species.
Our Response: We recognize the importance of maintaining functional hydrology in prairie wetlands, particularly prairie fens in Michigan. This is further discussed in the Habitats Protected from Disturbance or Representative of the Historical, Geographic, and Ecological Distributions of the Species section of this final rule. Primary Constituent Element 2d directly states that the prairie fens require functional hydrology necessary to maintain fen habitat, which will be considered during section 7 consultations for projects on critical habitat with a Federal nexus. We are interested in working with hydrologists during recovery planning and implementation for these species.
(80) Comment: One commenter requested that the Service post the two internal Service documents that are cited in the proposed ruling.
Our Response: The Service's databases were referenced several times within the document (
(81) Comment: One commenter stated that it is more appropriate to use public lands, rather than private lands, to protect the Poweshiek skipperling. This reviewer supported the protection of the species as long as doing so does not restrict the life, liberty, and pursuit of happiness of private citizens.
Our Response: The Service considers physical and biological features needed for life processes and successful reproduction of the species, regardless of ownership, when proposing critical habitat areas. That analysis revealed that some of the most important areas for Poweshiek skipperling are on private lands. However, section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The notice of availability of the draft economic analysis was published in the
(82) Comment: A few individuals asked why the public, and specifically, affected land owners, were not informed of the proposed critical habitat earlier in the process.
Our Response: We notified landowners once we analyzed our information and developed the proposed rule. We were only able to notify landowners after the analysis was completed.
(83) Comment: One individual commented that many of the proposed critical habitat tracts appear to be those areas where private landowners allowed surveyors to search for these butterflies. Its seems like the Service is now penalizing those landowners, who in
Our Response: The Service acknowledges the importance of landowner cooperation in conserving the Dakota skipper and Poweshiek skipperling. Landowners deserve credit for their stewardship and permission to allow surveys, and we want to encourage their management practices that support the butterflies. Some landowners responded to the proposed designation of critical habitat on their lands by refusing permission to conduct surveys for Dakota skipper. In 2014, for example, about half of the private landowners in North Dakota who had allowed access for surveys before the Service had proposed their land as critical habitat refused permission to the Service's contractor to access the site (Royer
(84) Comment: The Service's definition of occupied critical habitat includes areas that have never been surveyed for these butterflies and instead relies upon surveys going back up to 20 years on nearby lands where the butterfly was found. That is then used as a reason to declare nearby private lands as occupied. This process is inappropriate and does not take into account the different management that can occur on private land tracts that can impact butterfly presence. This situation is not a good way to develop partnerships or promote endangered species conservation. The commenter recommended that the Service modify the definition of occupied critical habitat to require surveys that actually located the species on a tract of land within the last 3 years. Landowners who have cooperated by allowing surveys and doing conscientious management to keep Dakota skippers present should not be penalized with critical habitat designations unless they contact the Service and indicate their willingness to be included in critical habitat.
Our Response: Most units that are considered occupied by the Dakota skipper for purposes of this designation have very recent records (2002 or more recently), with only a few exceptions. In areas without recent records or butterfly surveys, recent habitat evaluations (2010-2013) have confirmed the presence of suitable habitat.
(85) Comment: One commenter wanted to know who was out in Critical Habitat Unit 12 to survey for butterflies.
Our Response: Butterfly surveys in North Dakota and elsewhere were conducted by qualified surveyors with sufficient experience to identify the species and their habitats. Survey reports are cited in this final ruling and the final listing rule, published on October 24, 2014.
(86) Comment: One commenter wanted to know if they could get the aerial photography of the butterflies.
Our Response: The aerial photography we referred to in our proposals and this final designation is taken at a scale (approximately 1:1,000,00 to 1:6,000) that is unsuitable for detecting individual butterflies, instead, aerial photography is used for examining habitat. We conducted aerial photograph interpretation using the National Agriculture Imagery Program (NAIP) aerial imagery, which was acquired during the 2010-2011 agricultural growing seasons, to draw and refine polygons around areas that contain the physical or biological features essential for the conservation of the species. County-specific NAIP aerial imagery that we used is available upon request from the Twin Cities Field Office (See
(87) Comment: One individual asked to be provided a copy of the critical habitat economic analysis when it becomes available for public review. In South Dakota, land that is designated as critical habitat is likely to be valued differently (lower) than a tract of similar land not so designated because future prospective buyers of that property will be wary of the Endangered Species Act. Thus, the commenter stated that if a landowner wants to sell land that is designated as critical habitat, they are likely to receive less money for that land than other non-encumbered similar land. It will be important for the economic analysis to consider property devaluation/resale value and incorporate it into the economic impact analysis being conducted.
Our Response: We announced the public availability of the economic analysis on September 23, 2014, and sent copies of the news release and links to the draft economics memorandums to each private landowner within proposed critical habitat areas. We also made publically available a separate memorandum that analyzed the land value issue. See the Supplemental Information on Land Values—Critical Habitat Designation for the Dakota Skipper and Poweshiek Skipperling regarding perceptions of monetary value of property designated as critical habitat. The draft Screening Analysis of the Likely Economic Impacts of Critical Habitat Designation for the Dakota Skipper and Poweshiek Skipperling and the Supplemental Information on Land Values—Critical Habitat Designation for the Dakota Skipper and Poweshiek Skipperling became publically available on September 23, 2014, at
(88) Comment: One commenter stated that the critical habitat designation is not overly prohibitive to economic development.
Our Response: The Service agrees with this statement. As summarized in the draft economic analysis screening memo released on September 23, 2014, the Service does not anticipate significant impacts as a result of this critical habitat designation.
(89) Comment: One individual commented that, because the proposed critical habitat units would not be protected preserves, per se, development and agriculture could still exist on them. Practices would be limited in order to ensure the conservation of the species, but by and large, previous uses of the land could continue. This provides an economically conscious compromise for all parties. Locations with large amounts of industrial development are not included in the designations, which lessens the economic burden.
Our Response: The commenter is correct that critical habitat designations do not equate to a preserve. Federal agencies are required to consult with the Service when a project they are funding, permitting, or working on is likely to
(90) Comment: One individual stated that, even though some lands proposed for critical habitat may be occupied at the present, it appears that many critical habitat tracts that the Service thinks are occupied by Dakota skipper now may not be so in the near future based on the information in the proposed rule for Minnesota and Iowa. The commenter wanted to know how the Service would evaluate the economic impacts of critical habitat for lands that shift from occupied to unoccupied status.
Our Response: The occupancy status of the critical habitat units is that at the time of listing, which occurred on October 24, 2014. We suggest you contact the Service's Ecological Services Field Office in your State to determine whether or not the species may or may not be present. Projects with a Federal nexus, proposed in unoccupied critical habitat areas, will need to undergo consultation under section 7 of the Act.
(91) Comment: An individual commented that they and the individual's family has maintained one of the two best examples of a natural fen in the world for the past 52 years. There is no assistance with taxes, trespassers, land quality maintenance, or treachery, and there are no protections afforded a land owner from fraudulent claims of eminent domain. The commenter wanted to know what is the benefit of supporting this initiative, what would this do to the family's ability to sell or otherwise use this land, and what assistance is available to mitigate the tax burden.
Our Response: Landowners deserve credit for their stewardship, and we want to encourage their management practices that support the butterflies. We are unaware of a tax burden that would affect private property designated as critical habitat. The Service and other conservation agencies may purchase property from willing sellers, and we recommend you contact your State's Ecological Services Field Office to discuss further opportunities.
(92) Comment: One individual wondered why a potential buyer would purchase a parcel inside of designated critical habitat when it would be easier to purchase land outside of designated critical habitat and avoid Federal permitting.
Our Response: A critical habitat designation generally has no effect on situations that do not involve a Federal agency—for example, a private landowner undertaking a project that involves no Federal funding or permit. Although stigma impacts may occur when critical habitat is first designated, and may be a real concern to landowners, research shows those impacts should be temporary.
(93) Comment: One individual asked what happens to areas designated as critical habitat when they are no longer occupied. Specifically, do regulatory restrictions still apply? Why or why not?
Our Response: The occupancy status of the units is that at the time of listing, which occurred on October 24, 2014. While the occupancy status may change over time based on new survey information, the critical habitat designations would remain in effect until the species is taken off the endangered species list or revisions to the critical habitat designations are published in the
(94) Comment: A commenter asked if critical habitat designations would affect, slow down, or complicate a landowner's ability to get loans from banks or Federal agencies that loan money to landowners to operate their ranches or start up new economic endeavors on their private lands.
Our Response: Proposed projects in areas where one or both species may be present or on designated critical habitat that have a Federal nexus (in other words, funded, authorized, or carried out by a Federal agency) will be required to undergo consultation with the Service under section 7 of the Act. In those instances, the action agency would contact the Service's Ecological Services Field Office in their State if they are planning an activity with a Federal nexus that may affect the species or its critical habitat. For more information about section 7 consultations, visit the Service's Web site (
(95) Comment: One commenter wondered if critical habitat designations would affect or slow down FEMA or other Federal agencies' ability to deliver services to landowners.
Our Response: Emergency services would not be delayed by critical habitat designations. Section 7(a)(2) of the Act requires Federal agencies to consult with the Service to ensure that actions they fund, authorize, permit, or otherwise carry out will not jeopardize the continued existence of any listed species or adversely modify designated critical habitat.
(96) Comment: One individual stated that the critical habitat designation makes normal use of land subject to violation of Federal laws. The commenter stated that he hikes across the land to access portions of his property, uses it for deer hunting, and controls beaver dam water levels. The commenter questioned whether any of these activities is potentially a violation of Federal law if conducted within critical habitat.
Our Response: Only activities that involve a Federal permit, license, or funding, and are likely to destroy or adversely modify the area of critical habitat will be affected. The activities the commenter mentions do not have a Federal nexus and are not likely to adversely affect Dakota skipper or Poweshiek skipperling habitat.
(97) Comment: One commenter asked if pesticides and herbicides can be used on the critical habitat areas if occupied and if they can be used on unoccupied areas.
Our Response: Pesticides and herbicides can be used according to their labels in occupied and unoccupied critical habitat areas, however, the Environmental Protection Agency (EPA) sets forth geographically specific pesticide use limitations for the protection of endangered or threatened species and their designated critical habitat.
(98) Comment: One individual wondered if the EPA or pesticide labels restrict use of certain pesticides in critical habitat areas.
Our Response: Endangered Species Protection Bulletins are a part of EPA's Endangered Species Protection Program. Bulletins set forth geographically specific pesticide use limitations for the protection of endangered or threatened species and their designated critical habitat. You can obtain Bulletins using EPA's Bulletins Live! System (
(99) Comment: One private citizen questioned the Service's apparent
Our Response: We have reviewed the best available scientific and commercial information in making our final critical habitat determination. Specific information provided by the commenter helped us refine the critical habitat boundaries for DS Minnesota Unit 1 and PS Minnesota Unit 1.
(100) Comment: One commenter stated that even though Swengel and Swengel (1999) do demonstrate a significant area effect for Dakota skipper, it is still desirable to include smaller sites in critical habitat because the species does occupy small sites. Although small size is a risk factor, it can be counteracted by optimizing other factors, such as management. Conversely, large size is not sufficient to counteract all adverse factors. Patch size is just one among many relevant factors affecting positive and negative skipper outcomes.
Our Response: We did not specify a minimum size for critical habitat units; however, almost all of the proposed Dakota skipper critical habitat units are larger than 30 ha (74 ac) and are, therefore, more resilient to stochastic events. Swengel and Swengel (1997; 1999) found no Dakota skippers on the smallest remnants (<20 ha (49 ac)), and significantly lower abundance on intermediate size (30-130 ha (74-321 ac)) than on larger tracts (>140 ha (346 ac)) during systematic surveys in Minnesota prairies. We agree that some smaller units may still be important to Dakota skipper, however, and have included two units that are smaller than 30 ha (74 ac). We further agree that even relatively large-sized units may not be immune to all adverse stressors and threats. For that reason, we have included additional units to satisfy the conservation principle of redundancy in our designations.
(101) Comment: One commenter supported the scale and method of site selection for designating critical habitat for both species. They recommended that PS Wisconsin Unit 2 consist of all the sedge meadow and prairie vegetation contained in the public land of Puchyan Prairie.
Our Response: We have reviewed the designation in Green Lake County, Wisconsin, and believe we have included the entire appropriate habitat as described in this final ruling within 1 km of the Poweshiek skipperling point locations there. Some modifications were made based on new ecological information we received. The unit now consists of 116 ac (47 ha) of State land.
(102) Comment: One individual stated that the proposed critical habitat rule did not include maps of Dakota skipper South Dakota units 20, 21, and 22.
Our Response: The maps for South Dakota units 20, 21, and 22 were omitted in error. The Service published the maps on their Web site at (
(103) Comment: Three private landowners in McKenzie County, North Dakota did not know if the Dakota skipper exists on the private portion of North Dakota Unit 12. If so, it is living in the current conditions, including living with cattle and there is no need to change anything, including designating the land as critical habitat, since the land is well cared for now.
Our Response: The Dakota skipper and Poweshiek skipperling remain only on lands where management has allowed them to survive, while the butterflies have died off elsewhere. Landowners deserve great credit for their stewardship, and we want to encourage their management practices that support the butterflies. Based on new ecological information we received, DS North Dakota Unit 12 has been revised to better reflect Dakota skipper habitat. The unit is entirely federally owned.
In developing the final critical habitat designation for the Dakota skipper and Poweshiek skipperling, we reviewed public comments received on the proposed rule (78 FR 63625), the revision to the proposed rule (79 FR 56704), and the draft economic analysis (79 FR 56704).
Based on information we received regarding a study of Dakota skipper habitat, we refined our description of the primary constituent elements (PCEs) to more accurately reflect the habitat needs of the species. Royer
In our revised proposed rule (September 23, 2014; 79 FR 56704), we modified some critical habitat boundaries and proposed additional critical habitat units based on new information received. Other units underwent further revisions based on new information we received during the second comment period. Based on new or updated biological and ecological information, this final critical habitat designation includes two additional units for the Poweshiek skipperling in Minnesota and removes two units that were included in the proposal (one for the Dakota skipper in Minnesota and one for the Poweshiek skipperling in North Dakota).
The units that were added to this final critical habitat designation include PS Minnesota Unit 19 and PS Minnesota Unit 20. PS Minnesota Unit 19 is the exact same property as DS Minnesota Unit 13, which was included in the original critical habitat proposal. This unit is approximately 262 acres (106 ha) of State-owned land in Kittson County, Minnesota. Originally it was proposed as critical habitat only for the Dakota skipper, but is now also included as critical habitat for the Poweshiek skipperling. Information received from the Minnesota Department of Natural Resources and a peer reviewer indicated that this area retains good-quality habitat for the Poweshiek skipperling.
PS Minnesota Unit 20 comprises 2,761 ac (1,117 ha) of State and federally owned land in Polk County, Minnesota. This unit is designated as critical habitat for the Poweshiek skipperling because we recently received multiyear survey results from an amateur butterfly surveyor verifying the species presence in this unit. The validity of the surveys and habitat suitability was verified by an MN DNR butterfly expert. Since the September 23, 2014, proposal, we removed 10 ac (4 ha) of State land that was not suitable habitat.
The units that were removed from the critical habitat designation due to new biological or ecological information include DS Minnesota Unit 15, PS North Dakota Unit 3, and DS North Dakota Unit 14. We received new or updated information that indicates that these areas do not meet our criteria for critical habitat because the habitat is no longer suitable for the butterflies. DS Minnesota Unit 15 was 268 ac (108 ha) in Polk County owned primarily by The Nature Conservancy (252 ac (102 ha)) and included the Pankratz Memorial Prairie. The remaining 15 ac (6 ha) was private land. PS North Dakota Unit 3 was 117 ac (47 ha) of federally owned
We also revised the boundaries of the critical habitat units listed below, because we received better information about the habitat quality in these units, allowing us to refine the boundaries to include suitable habitat and remove habitat that is of poor quality or unsuitable (
(1) DS Minnesota Unit 1 and PS Minnesota Unit 1: Removed 485 ac (196 ha) of private land, 856 ac (364 ha) of State land, and 8 ac (3 ha) of county land. The total net decrease is 1,349 ac (546 ha) of land.
(2) DS Minnesota Unit 2 and PS Minnesota Unit 2: Removed 59 ac (24 ha) of private land.
(3) DS Minnesota Unit 4 and PS Minnesota Unit 4: Added 397 ac (161 ha) of The Nature Conservancy (TNC) land and 79 ac (32 ha) of State land. The net increase in area is 476 ac (193 ha).
(4) DS Minnesota Unit 5: Removed 746 ac (302 ha) of private land, 37 ac (15 ha) of State land, 22 ac (9 ha) of TNC land, and 49 ac (20 ha) of county land. The net decrease in area is 855 ac (346 ha).
(5) PS Minnesota Unit 5 (a portion corresponds to DS Minnesota Unit 5): Removed 746 ac (302 ha) of private land, 22 ac (9 ha) of TNC land, and 49 ac (20 ha) of county land. We also added 355 ac (144 ha) of State land. The net decrease in area is 500 ac (202 ha).
(6) DS Minnesota Unit 7 and PS Minnesota Unit 7: Added 23 ac (9 ha) of State land and removed 5 ac (2 ha) of private land. The total net increase in area is 18 ac (7 ha).
(7) DS Minnesota Unit 8 and PS Minnesota Unit 8: Removed 31 ac (13 ha) of privately owned land.
(8) DS Minnesota Unit 10 and PS Minnesota Unit 10: Added 54 ac (ha) of State land and 835 ac (338 ha) of TNC land. The net increase in area is 889 ac (360 ha).
(9) PS Minnesota Unit 11: Added 40 acres (16 ha) of TNC land.
(10) PS Minnesota Unit 13: Added 170 acres (69 ha) of TNC land and 84 ac (34 ha) of privately owned land; removed 14 ac (6 ha) of private land due to mapping errors. The net increase in area is 240 ac (97 ha).
(11) PS Iowa Unit 3: Removed 26 ac (11 ha) of private land.
(12) PS Iowa Unit 5: Added 0.6 ac (0.2 ha) of private land and removed 0.01 ac (0.0 ha, due to previous mapping error). The total net increase is less than 1 ac (0.4 ha).
(13) PS Michigan Unit 3: Added 0.23 ac (0.1 ha) of private land, removed 26 ac (11 ha) of county land, removed 9 ac (4 ha) of private conservation land, and removed 27 ac (11 ha) of private land. The total net decrease is 62 ac (25 ha).
(14) PS Michigan Unit 4: Added 0.28 ac (ha) of private land, removed 98 ac (ha) of private land, and removed 15 ac (ha) of private conservation land. The total net decrease is approximately 112 ac (45 ha).
(15) PS Michigan Unit 6: Removed 2 ac (1 ha) of State land and 9 ac (4 ha) of private land. The total net decrease is 11 ac (4 ha).
(16) PS Michigan Unit 7: Removed 3 ac (1 ha) of private conservation land and 0.3 ac (0.1 ha) of private land. The total net decrease is approximately 3 ac (1 ha).
(17) DS North Dakota Unit 3: Removed 313 ac (127 ha) of private land.
(18) DS North Dakota Unit 4: Removed 98 ac (40 ha) of private land.
(19) DS North Dakota Unit 8: Removed 0.04 ac (0.00 ha) of private land due to a mapping error.
(20) DS North Dakota Unit 9: Removed 147 ac (59 ha) of private land and 81 ac (33 ha) of Tribal lands. The total net decrease is 227 ac (92 ha).
(21) DS North Dakota Unit 11: Added a total of 263 ac (ha) of Federal land and removed 47 ac (19 ha) of private land. The total net increase is 215 ac (87 ha).
(22) DS North Dakota Unit 12: Removed a total of 62 ac (25 ha) of Federal land and removed 13 ac (5 ha) of private land. The total net decrease is approximately 74 ac (30 ha).
(23) DS North Dakota Unit 14: Removed 242 ac (98 ha) of private land.
(24) DS South Dakota Unit 1 and PS South Dakota Unit 1: Removed 103 ac (42 ha) of Federal land.
(25) DS South Dakota Unit 13 and PS South Dakota Unit 13: Removed 38 ac (15 ha) of Tribal land and 18 ac (7 ha) of private land.
(26) DS South Dakota Unit 17: Removed 102 ac (41 ha) of Federal land.
(27) PS Wisconsin Unit 2: Removed 164 ac (66 ha) of State land. Approximately 0.33 ac (0.13 ha) of private land that was originally proposed changed ownership to State land and then was removed (acreage included in the State land total removed).
In addition to the modifications made based on new ecological information, we are excluding areas from the final designation pursuant to section 4(b)(2) of the Act. In this final critical habitat designation, we are excluding lands covered by Service permanent conservation easements, certain lands covered by current management agreements with the Service's Partners for Fish and Wildlife Program (PFFW), Tribal lands, and other lands owned by Service easement landowners.
We evaluated whether certain lands in the proposed critical habitat were appropriate for exclusion from this final designation, pursuant to section 4(b)(2) of the Act. We are excluding land from the final designation of critical habitat for Dakota skipper as follows:
414 ac (166 ha) in DS Minnesota Unit 1,
894 ac (358 ha) in DS North Dakota Unit 3,
100 ac (40 ha) in DS North Dakota Unit 4,
1,393 ac (557 ha) in DS North Dakota Unit 5,
48 ac (19 ha) in DS North Dakota Unit 8,
639 ac (256 ha) in DS North Dakota Unit 10,
319 ac (128 ha) in DS South Dakota Unit 7,
159 ac (64 ha) in DS South Dakota Unit 9,
117 ac (47 ha) in DS South Dakota Unit 10,
75 ac (30 ha) in DS South Dakota Unit 11,
676 ac (270 ha) in DS South Dakota Unit 12A,
189 ac (76 ha) in DS South Dakota Unit 14,
13 ac (5 ha) in DS South Dakota Unit 15,
363 ac (147 ha) in DS South Dakota Unit 19,
255 ac (103 ha) in DS South Dakota Unit 20, and
198 ac (80 ha) in DS South Dakota Unit 21.
We are excluding land from the final designation of critical habitat for Poweshiek skipperling as follows:
414 ac (166 ha) in PS Minnesota Unit 1,
425 ac (170 ha) in PS South Dakota Unit 3B,
319 ac (128 ha) in PS South Dakota Unit 7,
159 ac (64 ha) in PS South Dakota Unit 9,
117 ac (47 ha) in PS South Dakota Unit 10,
75 ac (30 ha) in PS South Dakota Unit 11,
676 ac (270 ha) in PS South Dakota Unit 12A,
189 ac (76 ha) in PS South Dakota Unit 14, and
13 ac (5 ha) in PS South Dakota Unit 15.
The rationale for these exclusions is discussed in detail under the Exclusions
The occupancy of several units has changed since the proposal, based on new survey information. DS North Dakota Unit 9 is now considered occupied because the Dakota skipper was observed during the most recent survey year. The following units, which were considered to be occupied in the proposed critical habitat rule, are now considered unoccupied due to negative detections of the species in the most recent survey year: DS Minnesota Unit 1, DS Minnesota Unit 2, DS Minnesota Unit 9, DS South Dakota Unit 2, DS South Dakota Unit 4, DS South Dakota Unit 7, PS Michigan Unit 8, and PS Wisconsin Unit 1. At the time of the proposed critical habitat rule, the occupancy of the following seven units was uncertain: DS South Dakota Unit 18, PS Minnesota Unit 3, PS Minnesota Unit 5, PS Minnesota Unit 9, PS Minnesota Unit 12, PS South Dakota Unit 4, PS South Dakota Unit 7. However, we now believe the species to be extirpated at all seven of these units due to 3 sequential years of negative surveys on those units. PS Minnesota Unit 19 was erroneously proposed as occupied; the unit is unoccupied.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:
(1) Space for individual and population growth and for normal behavior;
(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and
(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.
We derive the specific physical or biological features essential for the Dakota skipper from studies of this species' habitat, ecology, and life history as described in the Critical Habitat section of the proposed rule to designate critical habitat published in the
Dakota skippers are obligate residents of remnant (untilled) high-quality prairie—habitats that are dominated by native grasses and that contain a high diversity of native forbs (flowering herbaceous plants). Dakota skipper habitat has been categorized into two main types: Type A habitat is described as high-quality, low (wet-mesic) prairie with little topographic relief that occurs on near-shore glacial lake deposits, dominated by little bluestem grass (
Dry prairies are described to have a sparse shrub layer (less than 5 percent cover) composed mainly of leadplant (
Nonnative invasive plant species, such as Kentucky bluegrass (
Royer and Marrone (1992a, p. 25) concluded that Dakota skippers are “not inclined to dispersal,” although they did not describe individual ranges or dispersal distances. Concentrated activity areas for Dakota skippers shift annually in response to local nectar sources and disturbance (McCabe 1979, p. 9; 1981, p. 186). Marked adults moved across less than 200 meters (m) (656 feet (ft)) of unsuitable habitat between two prairie patches and moved along ridges more frequently than across valleys (Dana 1991, pp. 37-38). Average movements of recaptured adults were less than 300 m (984 ft) over 3-7 days. Dana (1997, p. 6) later observed lower movement rates across a small valley with roads and crop fields compared to movement rates in adjacent widespread prairie habitat.
Dakota skippers are not known to disperse widely and have low mobility; experts estimate the Dakota skipper has a mean mobility of 3.5 (standard deviation = 0.71) on a scale of 0 (sedentary) to 10 (highly mobile) (Burke
Dakota skippers may move in response to a lack of local nectar sources, disturbance, or in search of a mate. The tallgrass prairie that once made up a vast ecosystem prior to European settlement has now been reduced to fragmented remnants that make up 1 to 15 percent of the original land area across the species' range (Samson and Knopf 1994, p. 419). Similarly, mixed-grass prairie has been reduced to fragmented remnants that make up less than 1, 19, and 28 percent of the original land area in Manitoba, Saskatchewan, and North Dakota, respectively (Samson and Knopf 1994, p. 419). Before the range-wide fragmentation of prairie habitat, the species could move freely (through suitable dispersal habitat) between high-quality tallgrass and mixed-grass prairie. Now, remaining fragmented populations of Dakota skipper need immigration corridors for dispersal from nearby populations to prevent genetic drift, to reestablish a population after local extirpation, and expand current populations. Therefore, based on the information above, we identify undeveloped dispersal habitat, structurally similar to suitable high-quality prairie habitat, as described above, to be a physical or biological feature essential to the conservation of the Dakota skipper. These dispersal habitats should be adjacent to or between high-quality prairie patches, within the known dispersal distance of Dakota skipper, and within 1 km (0.6 mi) of suitable high-quality Type A or Type B prairie; have limited shrub and tree cover; and have no or limited amounts of certain row crops, which may act as barriers to dispersal.
In summary, we identify high-quality wet-mesic or dry (Type A and Type B) remnant (untilled) prairie containing a mosaic of native grasses and flowering forbs to be a physical or biological feature necessary to allow for normal behavior and population growth of Dakota skipper. Both wet-mesic and dry prairies have limited tree and low shrub coverage that may act as barriers to dispersal and limited or no invasive plant species that may lead to a change in the plant community. Dispersal habitat, structurally similar to suitable high-quality prairie habitat and adjacent to or between high-quality prairie patches, should be located within the known dispersal distance of Dakota skipper [within 1 km (0.6 miles) from suitable high-quality Type A or Type B prairie] to help maintain genetic diversity and to provide refuges from disturbance.
Dakota skipper larvae feed only on a few native grass species; little bluestem is a frequent food source (Dana 1991, p. 17; Royer and Marrone 1992a, p. 25), although they have also been found on
Adult Dakota skippers may use several species of native forbs as nectar sources, which can vary regionally. Examples of adult nectar sources include: Purple coneflower, bluebell bellflower, white prairie clover (
Dakota skipper larvae are vulnerable to desiccation during hot, dry weather, and this vulnerability may increase in the western parts of the species' range (Royer
In summary, the biological features that provide food sources include native grass species for larval food, such as little bluestem and prairie dropseed, and native forb plant species for adult nectar sources, such as purple coneflower, bluebell bellflower, white prairie clover, upright prairie coneflower, fleabanes, blanketflowers, black-eyed Susan, and prairie milkvetch. Such prairies have undisturbed (untilled) edaphic (related to soil) features that are conducive to the development and survival of larval Dakota skipper and soil textures that are loam, sandy loam, loamy sand, or gravelly.
Dakota skippers oviposit (lay eggs) on broadleaf plants such as
As discussed above, Dakota skipper larvae are vulnerable to desiccation (drying out) during hot, dry weather; this vulnerability has been hypothesized to increase in the western parts of the species' range (Royer
The annual, single generation of adult Dakota skippers emerges from mid-June to early July, depending on the weather, with flights starting earlier farther west in the range (McCabe 1979, p. 6; 1981, p. 180; Dana 1991, p. 1; Royer and Marrone 1992a, p. 26, Skadsen 1997, p. 3; Swengel and Swengel 1999, p. 282). During this time, adult male Dakota skippers typically perch on tall grasses and forbs, and occasionally appear to patrol in search of mating opportunities (Royer and Marrone 1992a, p. 25). Therefore, the physical or biological features essential to the conservation of the Dakota skipper include above-ground parts of grasses and forbs for perching that are available during the adult flight period.
The flight period lasts 2 to 4 weeks, and mating occurs throughout this period (McCabe 1979, p. 6; 1981, p. 180; Dana 1991, p. 15). Adults are thought to disperse a maximum of 0.6 mi (1.0 km) in search of a mate or nectar sources (Cochrane and Delphey 2002, p. 6). During this time, adult Dakota skippers depend on nectar plants for food and water. Therefore, it is important that nectar plants are available in close proximity to areas suitable for oviposition and larval feeding.
Dakota skippers lay eggs on broadleaf plants such as
Dakota skipper larvae spend most of the summer at or near the soil surface (McCabe 1981, p. 181; Dana 1991, p. 15). Therefore, biological factors such as availability of nectar and larval food sources, edaphic features such as bulk density and soil moisture, as well as related non-biotic factors such as temperature and relative humidity at and near (to a 2.0 centimeters (cm) depth (0.79 inches (in)) the soil surface may limit the survival of the sensitive larval and pupal stages (Royer
Similarly, vehicle traffic (including tilling and harvesting) increases compaction (Miller and Gardiner 2007, pp. 36, 510), and tilled land has higher bulk densities (
Royer
Soil textures in Dakota skipper Type A habitats are classified as loam, sandy loam, or loamy sand (Royer
The Dakota skipper has a geographic distribution that is restricted to small colonies that are highly isolated from one another. Species whose populations exhibit a high degree of isolation are extremely susceptible to extinction from both random and nonrandom catastrophic natural or human-caused events. Therefore, it is essential to maintain the native tallgrass prairies and native mixed-grass prairies upon which the Dakota skipper depends. This means protection from destruction or conversion, disturbance caused by exposure to land management actions (
Dakota skippers typically occur at sites embedded in agricultural or developed landscapes, which makes them more susceptible to nonnative or woody plant invasion. Potentially harmful nonnative species include: leafy spurge (
In summary, Dakota skippers are obligate residents of undisturbed high-quality prairie, ranging from wet-mesic tallgrass prairie to dry-mesic mixed-grass prairie (Royer and Marrone 1992a,
We derive the specific physical or biological features essential for the Poweshiek skipperling from studies of this species' habitat, ecology, and life history as described in the Critical Habitat section of the proposed rule to designate critical habitat published in the
The full range of habitat preferences for Poweshiek skipperling includes high-quality prairie fens, grassy lake and stream margins, remnant moist meadows, and wet-mesic to dry tallgrass remnant (untilled) prairies. These areas are dominated by native-prairie grasses, such as little bluestem and prairie dropseed, but also contain a high diversity of native forbs, including black-eyed Susan and palespike lobelia. The disjunct populations of Poweshiek skipperling in Michigan occur in prairie fens, specifically in peat domes within larger prairie fen complexes in areas co-dominated by mat muhly (
Dry prairies are described to have a sparse shrub layer (less than 5 percent of cover) composed mainly of leadplant, with prairie rose and wormwood sage often present (Minnesota Department of Natural Resources 2012a, p. 1). Taller shrubs, such as smooth sumac, may also be present. Occasional trees, such as bur oak or black oak, may also be present but remain less than 5 percent cover (Minnesota Department of Natural Resources 2012a, p. 1). Similarly, wet-mesic prairies are described to have a sparse shrub layer (less than 5-25 percent cover) of leadplant, prairie rose, wolfberry, and other native shrubs such as gray dogwood, American hazelnut, and wild plum (Minnesota Department of Natural Resources 2012b, p. 1).
Nonnative invasive plant species, such as Kentucky bluegrass and smooth brome, may outcompete native plants that are necessary for the survival of Poweshiek skipperling and lead to the deterioration or elimination of native vegetation. Poweshiek skipperlings depend on a diversity of native plants endemic to tallgrass prairies and prairie fens; therefore, when nonnative or woody plant species become dominant, Poweshiek skipperling populations decline due to insufficient sources of larval food and nectar for adults (
The vegetative structure of prairie fens is a result of their unique hydrology and consists of plants that thrive in wetlands and calcium-rich soils mixed with tallgrass prairie and sedge meadow species (Michigan Natural Features Inventory 2012, p. 1). Three or four vegetation zones are often present in prairie fens, including diverse sedge meadows, wooded fen often dominated by tamarack (
Based on the information above, we identify high-quality remnant (untilled) wet-mesic to dry tallgrass prairies, moist meadows, or prairie fen habitat, as described above, containing a high diversity of native plant species and sparse tree and shrub cover to be a physical or biological feature essential to the conservation of the Poweshiek skipperling. These native prairies should have no or low coverage of nonnative invasive plant species.
Poweshiek skipperling are not known to disperse widely. The maximum dispersal distance for male Poweshiek skipperling travelling across contiguous suitable habitat is estimated to be approximately 1.6 km (1.0 mi) (Dana 2012a, pers. comm.). The species was evaluated among 291 butterfly species in Canada and is thought to have relatively low mobility, lower mobility than that of the Dakota skipper (Burke
Poweshiek skipperling may move in response to availability of nectar sources, disturbance, or in search of a mate. The tallgrass prairie that once made up a vast ecosystem prior to European settlement has now been reduced to fragmented remnants that make up 1 to 15 percent of the original land area across the species' range (Samson and Knopf 1994, p. 419). Before the range-wide fragmentation of prairie habitat, the species could move freely (through suitable dispersal habitat) between high-quality tallgrass prairies and mixed-grass prairies. Now, remaining fragmented populations of Poweshiek skipperling need immigration corridors for dispersal from nearby populations to prevent genetic drift, perhaps to reestablish a population after local extirpation, and to expand current populations. Therefore, based on the information above, we identify undeveloped dispersal habitat,
Preferred nectar plants vary across the geographic range of the Poweshiek skipperling. Smooth ox-eye (
Poweshiek skipperling larvae may not rely on a single species of grass for food, but instead may be able to use a narrow range of acceptable plant species at a site (Dana 2005, pers. comm.). Dana (2005, pers. comm.) noted that larvae and ovipositing (laying of eggs) females prefer grasses with “very fine, threadlike blades or leaf tips.” Observations indicate that prairie dropseed is the preferred larval food plant for some Poweshiek skipperling populations (Borkin 1995b, pp. 5-6); larval feeding has also been observed on little bluestem (Borkin 1995b, pp. 5-6) and sideoats grama (
Soil textures in areas that overlap with Poweshiek skipperling sites are classified as loam, sandy loam, or loamy sand (Royer
Poweshiek skipperlings oviposit near native-grass leaf-blade tips (McAlpine 1972, pp. 85-93); McAlpine did not identify the grasses, but Dana (2005, pers. comm.) noted that larvae and ovipositing females prefer grasses with very fine, threadlike blades or leaf tips such as: prairie dropseed (Borkin 1995b, pp. 5-6); little bluestem (Borkin 1995b, pp. 5-6), sideoats grama (Dana 2005, pers. comm.), and mat muhly (Cuthrell 2012, pers. comm.). After hatching, Poweshiek skipperling larvae crawl out near the tip of grasses and may remain stationary (McAlpine 1972, pp. 88-92). Poweshiek skipperlings have also been documented laying eggs on the entire length of grass leaf blades and on low-growing deciduous foliage (Dupont Morozoff 2013, p. 133). Unlike Dakota skippers, Poweshiek skipperlings are not known to form shelters (McAlpine 1972, pp. 88-92; Borkin 1995a, p. 9; Borkin 2008, pers. comm.). The larvae overwinter up on the blades of grasses and on the stem near the base of a plant (Borkin 2008, pers. comm.; Dana 2008, pers. comm.). Borkin (2008, pers. comm.) observed larvae moving to the tip of grass blades to feed on the outer and thinner edges of the blades, later moving down the grass blades. Therefore, sufficient availability of above ground grasses is a physical or biological feature essential for cover and shelter for Poweshiek skipperling larvae.
Similar to the Dakota skipper, and as discussed above, Poweshiek skipperling larvae are vulnerable to desiccation during hot, dry weather and may require wet low areas to provide relief from high summer temperatures (Borkin 1994, p. 8; 1995a, p. 10). Poweshiek skipperling adults may also require low wet areas to provide refugia from fire (Borkin 1994, p. 8; 1995a, p. 10). Therefore, based on the information above, we identify the presence of low wet areas that provide shelter and relief from high summer temperatures and fire, for both larvae and adults, to be a physical or biological feature for the Poweshiek skipperling.
The annual, single generation of adult Poweshiek skipperling emerges from mid-June to early July, although the actual flight period varies somewhat across the species' range and can also vary significantly from year to year depending on weather patterns (Royer and Marrone 1992b, p. 15; Swengel and Swengel 1999, p. 282). The flight period in a given locality lasts 2 to 4 weeks, and mating occurs throughout this period (McCabe and Post 1977a, p. 38; Swengel and Swengel 1999, p. 282). During this time, adult Poweshiek skipperling depend on the nectar of
As described above, Poweshiek skipperling lay their eggs near the tips of leaf blades (McAlpine 1972, pp. 85-93). Poweshiek skipperling larvae crawl out near the tips of grasses and may remain stationary (McAlpine 1972, pp. 88-92). Poweshiek skipperlings do not form shelters underground (McAlpine 1972, pp. 88-92; Borkin 1995a, p. 9; Borkin 2008, pers. comm.). Rather than forming shelters, the larvae overwinter on the tip of the blade of grasses and on the stem near the base of the plants (Borkin 2008, pers. comm.; Dana 2008, pers. comm.). Borkin (2008, pers. comm.) observed larvae moving to the tips of grass blades to feed on the outer and thinner edges of the blades, later moving down to the base of the blades. Therefore, the physical or biological features essential to the conservation of Poweshiek skipperling include above-ground parts of grasses for oviposition and larval foraging and shelter; these grasses should be in close proximity to nectar plants, where the adults can feed during the short flight period.
Poweshiek skipperling larvae are vulnerable to desiccation during hot, dry weather (Borkin 1994, p. 8; 1995a, p. 10). After hatching, Poweshiek larvae crawl to the blades and leaf tips of grasses, but do not form shelters underground. Therefore, nonbiotic factors such as temperature and relative humidity at and near blade tips may limit the survival of the sensitive larval and pupal stages of Poweshiek skipperling. The plant community may be influenced by tilling and grazing. For example, removal of vegetation due to livestock grazing, tilling, fire, and soil compaction alters evaporation and water movement through the soil (
The Poweshiek skipperling has a restricted geographic distribution. Species whose populations exhibit a high degree of isolation are extremely susceptible to extinction from both random and nonrandom catastrophic natural or human-caused events. Therefore, it is essential to maintain the native tallgrass prairies and prairie fens upon which the Poweshiek skipperling depends. This means protection from disturbance caused by exposure to land management actions (cattle grazing, fire management, destruction or conversion, early haying, and broad herbicide or pesticide use), flooding, water withdrawal or depletion, water contamination, lack of management, and nonnative species that may degrade the availability of native grasses and flowering forbs. Introduced nonnative species are a serious threat to native tallgrass prairies and prairie fens on which Poweshiek skipperling depends (Orwig 1997, pp. 4 and 8; MNFI unpubl. data 2011; Skadsen 2002, p. 52; Royer and Royer 2012, pp. 15-16, 22-23); see both
The geographic distribution of the Poweshiek skipperling is restricted to small colonies that are highly isolated from each other. Due to its strongly restricted habitat, an introduction of certain nonnative plant species into its habitat could be devastating. Poweshiek skipperling typically occur at sites embedded in agricultural or developed landscapes, which makes them more susceptible to nonnative or woody plant invasion. Potentially harmful nonnative species include leafy spurge (
In Michigan, Poweshiek skipperlings live on prairie fens, which occur on poorly drained outwash channels and outwash plains in the interlobate regions of southern Michigan (Kost
Poweshiek skipperling are obligate residents of untilled high-quality prairie, ranging from wet-mesic tallgrass prairies to dry-mesic mixed-grass prairies to prairie fens (Royer and Marrone 1992a, pp. 8, 21). High-quality remnant tallgrass prairies and prairie fens contain a high diversity of native species, including flowering herbaceous species (forbs) (Dana 2001, pers. comm.). Degraded habitat consists of a high abundance of nonnative plants, woody vegetation, and a low abundance of native grasses and flowering forbs available during the larval growth period and a low abundance of native flowering forbs available during the adult nectaring periods. Intense grazing, imprudent fire management practices, early haying, flooding, as well as lack of management create such degraded habitats. Conversion to agriculture or other development also degrades or destroys native prairie habitat. Therefore, based on the information above, we identify the necessary physical or biological features for the Poweshiek skipperling as nondegraded habitat devoid of nonnative plant species, or habitat in which nonnative plant species and nonnative woody vegetation are maintained at levels that allow persistence of Poweshiek skipperling.
We identify high-quality remnant untilled tallgrass prairies, moist meadows, or prairie fen habitats containing a high diversity of native plant species including a mosaic of native grasses and flowering forbs to be a physical or biological feature necessary for population growth and normal behavior of Poweshiek skipperling. These prairies have features that support the development and survival of larval Poweshiek skipperling and soil textures that are loam, sandy loam, loamy sand, gravel, or peat. Biological features that provide food sources for larvae are native fine-leaved grass species, such as prairie dropseed, little bluestem, sideoats grama or mat muhly, and native forb plant species for adult nectar and water sources such as: purple coneflower, black-eyed Susan, stiff tickseed, palespike lobelia, sticky tofieldia, and shrubby cinquefoil. Physical or biological features for breeding, reproduction and offspring include grasses and forbs used for perching by adults and grasses used for oviposition as well as for larval shelter. Physical or biological features that provide cover or shelter dispersed within or adjacent to native prairies include areas for relief from high summer temperatures and fire, such as depressional wetlands, low wet areas, within or adjacent to prairies and edaphic features that are conducive to the development and survival of larval Poweshiek skipperling.
These high-quality native tallgrass prairies and prairie fens have limited tree and low shrub coverage that may act as barriers to dispersal. These habitats also have limited or no invasive plant species that may lead to a change in the plant community. Contiguous prairie habitat that once characterized the historical distribution of the species has been severely fragmented; therefore, dispersal habitat, structurally similar to suitable high-quality prairie habitat and adjacent to or between high-quality prairie patches within the known dispersal distance of Poweshiek skipperling (within 1 km from suitable high-quality prairie or prairie fens) is another physical and biological feature identified for the Poweshiek skipperling to help maintain genetic diversity and to provide refuges from disturbance. The unique hydrology that supports prairie fen vegetation is an essential physical and biological feature for Poweshiek skipperlings in Michigan prairie fens.
Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of the Dakota skipper in areas occupied at the time of listing, focusing on the features' primary constituent elements. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.
Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species' life-history processes, we determine that the primary constituent elements specific to the Dakota skipper are:
(1) Primary Constituent Element 1—Wet-mesic tallgrass or mixed-grass remnant untilled prairie that occurs on near-shore glacial lake soil deposits or high-quality dry-mesic remnant untilled prairie on rolling terrain consisting of gravelly glacial moraine soil deposits, containing:
a. A predominance of native grasses and native flowering forbs,
b. Glacial soils that provide the soil surface or near surface (between soil surface and 2 cm depth) micro-climate conditions conducive to Dakota skipper larval survival and native prairie vegetation,
c. If present, trees or large shrub cover of less than 5 percent of area in dry prairies and less than 25 percent in wet-mesic prairies; and
d. If present, nonnative invasive plant species occurring in less than 5 percent of area.
(2) Primary Constituent Element 2—Native grasses and native flowering forbs for larval and adult food and shelter, specifically:
a. At least one of the following native grasses to provide larval food and shelter sources during Dakota skipper larval stages: Prairie dropseed
b. One or more of the following forbs in bloom to provide nectar and water sources during the Dakota skipper flight period: Purple coneflower
(3) Primary Constituent Element 3—Dispersal grassland habitat that is within 1 km (0.6 mi) of native high-quality remnant prairie (as defined in Primary Constituent Element 1) that connects high-quality wet-mesic to dry tallgrass prairies or moist meadow habitats. Dispersal grassland habitat consists of undeveloped open areas dominated by perennial grassland with
With this final designation of critical habitat, we intend to identify the physical or biological features essential to the conservation of the species, through the identification of the features' primary constituent elements sufficient to support the life-history processes of the species. All units and subunits designated as critical habitat that are currently occupied by the Dakota skipper contain the primary constituent elements sufficient to support the life-history needs of the species. Additional unoccupied units that we determine are essential for the conservation of the species also contain the primary constituent elements sufficient to support the life-history needs of the species.
Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of Poweshiek skipperling in areas occupied at the time of listing, focusing on the features' primary constituent elements. We consider primary constituent elements to be the elements of physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.
Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species' life-history processes, we determine that the primary constituent elements specific to the Poweshiek skipperling are:
(1) Primary Constituent Element 1—Wet-mesic to dry tallgrass remnant untilled prairies or remnant moist meadows containing:
a. A predominance of native grasses and native flowering forbs;
b. Undisturbed (untilled) glacial soil types including, but not limited to, loam, sandy loam, loamy sand, gravel, organic soils (peat), or marl that provide the edaphic features conducive to Poweshiek skipperling larval survival and native prairie vegetation;
c. If present, depressional wetlands or low wet areas, within or adjacent to prairies that provide shelter from high summer temperatures and fire;
d. If present, trees or large shrub cover less than 5 percent of area in dry prairies and less than 25 percent in wet-mesic prairies and prairie fens; and
e. If present, nonnative invasive plant species occurring in less than 5 percent of the area.
(2) Primary Constituent Element 2—Prairie fen habitats containing:
a. A predominance of native grasses and native flowering forbs;
b. Undisturbed (untilled) glacial soil types including, but not limited to, organic soils (peat), or marl that provide the edaphic features conducive to Poweshiek skipperling larval survival and native prairie vegetation;
c. Depressional wetlands or low wet areas, within or adjacent to prairies that provide shelter from high summer temperatures and fire;
d. Hydraulic features necessary to maintain prairie fen groundwater flow and prairie fen plant communities;
e. If present, trees or large shrub cover less than 25 percent of the unit; and
f. If present, nonnative invasive plant species occurring in less than 5 percent of area.
(3) Primary Constituent Element 3—Native grasses and native flowering forbs for larval and adult food and shelter, specifically;
a. At least one of the following native grasses available to provide larval food and shelter sources during Poweshiek skipperling larval stages: Prairie dropseed
b. At least one of the following forbs in bloom to provide nectar and water sources during the Poweshiek skipperling flight period: Purple coneflower
(4) Primary Constituent Element 4—Dispersal grassland habitat that is within 1 km (0.6 mi) of native high-quality remnant prairie (as defined in Primary Constituent Element 1) that connects high quality wet-mesic to dry tallgrass prairies, moist meadows, or prairie fen habitats. Dispersal grassland habitat consists of the following physical characteristics appropriate for supporting Poweshiek skipperling dispersal: Undeveloped open areas dominated by perennial grassland with limited or no barriers to dispersal including tree or shrub cover less than 25 percent of the area and no row crops such as corn, beans, potatoes, or sunflowers.
With this final designation of critical habitat we intend to identify the physical or biological features essential to the conservation of the species through the identification of the features' primary constituent elements sufficient to support the life-history processes of the species. Many of the units designated as critical habitat are currently occupied by the Poweshiek skipperling and contain the primary constituent elements sufficient to support the life-history needs of the species. Additional unoccupied units also contain the primary constituent elements sufficient to support the life-history needs of the species.
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection. All areas proposed for designation as critical habitat as described below may require some level of management to address the current and future threats to the physical or biological features essential to the conservation of Dakota skipper and Poweshiek skipperling. In all of the described units, special management may be required to ensure that the habitat is able to provide for the biological needs of both species.
A detailed discussion of the current and future threats to Dakota skipper and Poweshiek skipperling can be found in the final listing rule to list each species as an endangered species, which was published in the
(A) The direct and indirect impacts of land use conversions, primarily from urban and energy development, gravel mining, and conversion to agriculture;
(B) invasive species encroachment and secondary succession of woody plants;
(C) grazing that reduces or continues to suppress the availability or predominance of native plants that provide larval food and adult nectar;
(D) wetland destruction and degradation such that the affected area is flooded or drained of water permanently or over a long term such that it increases the risk of invasive species invasion, changes the prairie
(E) herbicide application;
(F) the stochastic effects of drought or floods;
(G) fire that that reduces or continues to suppress the availability or predominance of native plants that provide larval food and adult nectar;
(H) development, mining, or other such activies that disrupt or degrade the hydraulic function of fens and their groundwater recharge areas necessary to maintain the prairie fen habitat and availability or predominance of native plants that provide larval food and adult nectar; and
(I) pesticide application.
The greatest, overarching threats to the Dakota skipper and Poweshiek skipperling are habitat curtailment, destruction, and fragmentation. The aforementioned activities will require special management consideration not only for the direct effects of the activities on the species and their habitat, but also for their indirect effects and how they are cumulatively and individually increasing habitat curtailment, destruction, and fragmentation. Based on our analysis of threats to Dakota skipper and Poweshiek skipperling, special management activities that could ameliorate these threats include, but are not limited to, habitat maintenance or restoration activities that occur at an intensity, duration, spatial arrangement, or timing that is not detrimental to the species. These activities include, but are not limited to, the following: Late-season haying (after the adult flight period), brush or tree removal, prescribed low-intensity rotational grazing, invasive species control, habitat preservation, and prescribed fire.
Management activities should be of the appropriate timing, intensity, and extent to be protective of Dakota skipper and Poweshiek skipperling during all life stages (
Such special management activities may be required to protect the physical or biological features and support the conservation of Dakota skipper and Poweshiek skipperling by preventing or reducing the loss, degradation, and fragmentation of native prairie landscapes. Additionally, management of critical habitat lands can increase the amount of suitable habitat and enhance connectivity among Dakota skipper and Poweshiek skipperling populations through the restoration of areas that were previously composed of native tallgrass and mixed-grass prairie communities. The limited extent of native tallgrass and mixed-grass prairie habitats, particularly the eastern portion of the Poweshiek skipperling range, emphasizes the need for additional habitat into which the Poweshiek skipperling could expand to survive and recover as well as to allow for adjustment to changes in habitat availability that may result from climate change.
As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify occupied areas at the time of listing that contain the features essential to the conservation of the species. If, after identifying currently occupied areas, we determine that those areas are inadequate to ensure conservation of the species, in accordance with the Act and our implementing regulations at 50 CFR 424.12(e), we then consider whether designating additional areas—outside those currently occupied—are essential for the conservation of the species. We are designating critical habitat in areas within the geographical area occupied by the Dakota skipper and Poweshiek skipperling at the time of listing on October 24, 2014. We also are designating specific areas outside the geographical area occupied by the Dakota skipper and Poweshiek skipperling at the time of listing that were historically occupied, but where we are uncertain of the current occupancy, and areas that are presently unoccupied, because such areas are essential for the conservation of the species.
We generally considered a species to be “present” at sites where it was detected during the most recent survey, if the survey was conducted in 2002 or more recently and no evidence suggests that the species is now extirpated from the site, (
We assigned a status of “unknown” if the species was found in 1993 or more recently, but not in the most recent one to two sequential survey year(s) since 1993, and we found no evidence to suggest the species is now extirpated from the site (
When determining whether the species occupancy is unknown, possibly extirpated, or extirpated at a particular site, we used the survey year 1993 as a cut-off date. Most known sites (more than 81 percent of known Poweshiek skipperling sites and more than 86 percent of known Dakota skipper sites) have been surveyed at least once since 1993, and survey data more than 20
After we applied these standards to initially ascertain the status of the species, we asked species experts and Service personnel to help verify, modify, or correct species' occupancy at each site, particularly for sites with questionable habitat quality or those that have not been surveyed recently. In most cases, we used the status as confirmed through these experts' review, unless we received additional information (
Timing of surveys was based on initial field checks of nectar plant blooms and sightings of butterfly species with synchronous emergence (butterfly species that emerge at the same time as Dakota skipper and Poweshiek skipperling). More recently, emergence was also estimated by a degree-day emergence model using high and low daily temperature data from weather stations near the survey sites (Selby, undated, unpublished dissertation). Surveys were conducted during flight periods when the species' abundance is expected to be at levels at which the species can be detected; however, detection probabilities are imperfect and some uncertainty remains between non-detection and true absence (Gross
It cannot be presumed that the species is extirpated at a site only because there have not been recent surveys. The year 1993 was chosen based on habitat-related inferences, specifically, the estimated time for prairie habitat to degrade to unsuitable habitat due to encroachment of woody vegetation and nonnative species. For example, native prairies with previous light-grazing management that were subsequently left idle transitioned from mixed grass to a mix of woody vegetation and mixed grass in 13 years, and it was predicted that these idle prairies would be completely lost due to woody succession in 30 years (Penfound 1964, pp. 260-261). The time for succession of idle prairie depends on numerous factors, such as the size of the site, edge effects (the changes that occur on the boundary of two habitat types), and the plant composition of adjacent areas. In general, long-term studies show that the succession rates and abundance of woody plants in tallgrass prairie depends on management, but generally both increase over time (Fitch 2006, p. 1; Briggs
The approach described above is the most objective way to evaluate range-wide data. Most sites have been surveyed over multiple years, although the frequency and type of surveys varied among sites and years. Surveys are conducted using various protocols (
We determined current occupancy using occurrence data from the Service's Dakota skipper geodatabase (USFWS 2014, unpubl, geodatabase) and Poweshiek skipperling database (USFWS 2014, unpubl. data), which were built based on survey reports from throughout the range of the species and expert input. Areas with recent occurrence records or sites classified as “present” (see Background of the final listing rule and above for definitions) are considered occupied, while areas where the species is presumed extirpated or possibly extirpated are considered currently unoccupied, but occupied historically. For the purposes of this critical habitat designation, we also considered areas classified as “unknown” (see Background of the final listing rule and above for definitions) as unoccupied.
Several proposed critical habitat units contain several nearby survey sites (or point occurrences) that occur within the maximum estimated dispersal distance of the Dakota skipper and Poweshiek skipperling. Because the species could move between these sites (or occurrences) if several sites were contained within one critical habitat unit, we used the “best” status for the species to determine occupancy in areas where the habitat was contiguous. For example, if there are two sites (or occurrences) within a proposed critical habitat unit and one site had a status of present and the other status is unknown, we used the status of present and considered the unit to be occupied. We did this because we found it reasonable to assume that the species could travel between sites (or point occurrence locations) if they were within the maximum dispersal distance of each other and if we determined that the habitat between point locations was suitable for dispersal. Furthermore, the delineation of what constituted a “site” by surveyors was often not ecologically based, but was instead based on ownership or political boundaries and may only roughly approximate the extent of a suitable habitat patch.
The status of the species is unknown at a number of sites—in other words, we are not certain whether the species may be extant at densities that are so low that it has not been recently detected, or if it is truly absent at these sites. Therefore, we are uncertain of the occupancy in units where the best species status is “unknown.” Areas with an uncertain occupancy were examined to determine if they were essential for the conservation of the species. For the purposes of these critical habitat designations, we are considering these areas to be unoccupied at the time of listing, and we examined these areas with uncertain occupancy using the same criteria as we used for unoccupied areas. We also examined lands where the status of the species is considered to be possibly extirpated or extirpated to determine if such areas are essential for the conservation of the species.
We reviewed available information that pertains to the ecology, natural history, and habitat requirements of each species and evaluated all known species locations using data from the
Criteria for selecting critical habitat units were based on species' survey data and the extent and distribution of essential habitat features. Our selection criteria were based on the best available scientific information on habitat and distribution of the species (see “Background” section of the proposed listing rule). The criteria for selecting the occupied sites were: (1) Type, amount, and quality of habitat associated with occupied areas; (2) presence of the physical or biological features essential for the species; and (3) estimated population viability of the species in a particular area, if known.
We considered occupied areas containing plant communities classified as (or based on the best available information and recent aerial photography) dry prairie, dry-mesic prairie, mesic prairie, or wet-mesic remnant (untilled) prairie as potential suitable habitat for Dakota skipper and Poweshiek skipperling. Prairie fens, as defined by the MNFI (Michigan Natural Features Inventory 2012, pp. 1-5), were also considered as potential suitable habitat for Poweshiek skipperling in Michigan. Using State natural heritage rankings, habitat information from recent reports, and expert knowledge, we selected areas with habitat quality ratings of fair to excellent because these areas are most likely to contain the physical or biological features essential for the conservation of the species. In some cases the habitat was not given a quality rating, but instead the site was given an estimated population viability rating, which directly reflects the quality of the habitat (
The Dakota skipper has experienced recent declines in large parts of its historical range. The species is now considered to be present at 41 sites in the United States, including 11 sites in Minnesota, 16 sites in North Dakota, and 14 sites in South Dakota. More than one site can be contained in a single critical habitat unit; consequently, we are designating a total of 18 occupied units (
The areas of unoccupied habitat that we are designating as critical habitat were recently occupied (had positive records in 1993 or more recently) and are within the historical range of the species. The areas of habitat where we are uncertain of the occupancy that we are designating as critical habitat were recently occupied (generally, a site with an unknown occupancy had positive records in 2002 or more recently but may have had 1 or 2 years of negative surveys or were determined by a species expert in the State to have an unknown occupancy), and are within the historical range of the species. We determine that these unoccupied areas or areas of uncertain occupancy are essential for the Dakota skipper's conservation because the range of the species has been severely curtailed, occupied habitats are limited and isolated, population sizes are small, and additional habitat will be necessary to recover the species.
Furthermore, the unoccupied units and units where we are uncertain of occupancy are needed to satisfy the conservation principles of redundancy, resiliency, and representation for the Dakota skipper, as there may be too few occupied areas remaining to ensure conservation of the species—the species having been extirpated from substantial portions of its range. The inclusion of unoccupied habitat and habitat where we are uncertain of the occupancy as critical habitat is essential for the species' conservation in three ways: (1) It would substantially increase the diversity of historically occupied habitats and geographic areas and increase the chances of the species persisting despite demographic and environmental stressors that are not uniformly distributed; (2) it would help to ensure that at least some populations may be sufficiently large to withstand stochastic events; and (3) it would help to ensure that geographic areas of recent importance to the species contain sufficient numbers of populations to maintain the species.
Specifically, we are designating unoccupied critical habitat units and units with uncertain occupancy to conserve habitat that may hold genetic representation of the species that is necessary for the species to conserve its adaptive capabilities across portions of its highly fragmented historical range. The species may be present at such low densities that it was undetectable in units with uncertain occupancy. A 2002 study of Dakota skipper genetics showed that each Dakota skipper population studied had evidence of inbreeding and was subject to genetic drift that may erode its genetic variability over time (Britten and Glasford 2002, pp. 371-372). Therefore, it is essential to conserve the range-wide genetic diversity we have for the species (and the habitats that may contain that diversity) to help safeguard the genetic representation necessary for the species to maintain its adaptive capabilities. The fragmentation of Dakota skipper's populations and reduction in genetic diversity, as well as limited detectability during low population densities, further argue for the conservation value of locations that may have populations, though at undetectable levels. We are certain of the species' presence at relatively few sites, and there remains some likelihood of Dakota skipper presence at sites where they have not been detected during recent surveys. In light of the species' fragmentation and
Since a species' genetics is shaped by its environment, successful conservation should aim to preserve a species across the array of environments in which it occurs (Shaffer and Stein 2000, p. 308), especially if much remains unknown about the nature and extent of its genetic diversity. Conservation of habitat and genetic material is vital in the core of the species' range, but it is also critical to preserve the species in less typical habitats on the periphery of its range, for example, wet-mesic prairies in North Dakota, to preserve the adaptive capabilities of the species over the long term.
Genetic variation allows populations to tolerate a range of environmental stressors such as new infectious diseases, parasites, pollution, variable food sources, predators, and changes in climate. Fragmentation of a species' habitat across its range can “exacerbate genetic drift and random fluctuations in allele frequencies, causing the genetic variation originally present within a large population to become redistributed among the remaining subpopulations” (Redford
We are also designating critical habitat units with uncertain occupancy and unoccupied units to help capture the habitats necessary for population persistence despite stochastic events—in other words, we would increase the likelihood that units would contain large enough populations to be resilient to those stressors. We do not know the minimum population size needed to attain an acceptable likelihood of population persistence of Dakota skipper, but we make inferences using data from populations for which we have some evidence of persistence--in general, the chances of maintaining a species is thought to increase with the size of the sites. Insects may need a population size of more than 10,000 individuals to maintain population viability for 40 generations (Trail
Furthermore, it is important to conserve habitats at locations that were, until recently, considered to support some of the best populations rangewide, even though the sites are presently unoccupied or their occupancy is uncertain. These sites are important because the past population vigor indicates that they contained particularly good habitat for the species. For example, some of the areas where we are uncertain of the species occupancy have had positive detections as recently as 2012. Other unoccupied units also had relatively recent detections; for example, one unoccupied unit in South Dakota had positive detections of the species in 2008, but the species is now thought to be extirpated at the site. In addition, some of these areas were considered to have, until recently, some of the best populations of Dakota skippers, but the populations have apparently suddenly disappeared or have been reduced to undetectable numbers, not due to habitat degradation or destruction, but instead due to unknown stressors (see further discussion in Factor E of the final listing rule published on October 24, 2014, in the
Finally, by designating unoccupied units and units where we are uncertain of the occupancy, we include areas that help to provide adequate redundancy within the Dakota skipper's recent geographic distributions and full variety of habitat types. By including unoccupied units and units with uncertain occupancy, we will help to ensure that geographic areas of recent importance to the species contain sufficient numbers of populations to maintain the species, if these locations still harbor undetected populations or if reintroduction efforts are successful. In order to conserve the Dakota skipper across the array of environments in which it occurs, we capture habitat redundancy by including a number of sites within each eco-region (based on Bailey 1983, entire) section and subsection of critical habitat units that is roughly proportional to the number of sites with recent records within those areas. The Dakota skipper historically ranged across at least 10 eco-region sections and 18 eco-region subsections, with the majority of historically documented sites from the Red River Valley, North Central Glaciated Plains, and North East Glaciated Plains eco-region sections (USFWS 2014, unpubl. geodatabase).
Occupied units occur on 9 eco-region subsections within 4 eco-regions, the Red River Valley, North Central Glaciated Plains, North West Great Plains sections, and North East Glaciated Plains. By including unoccupied units and units with uncertain occupancy, we are capturing areas in one additional eco-region subsection within one section (
In summary, representation, resiliency, and redundancy are the three conservation principles important to threatened and endangered species recovery (Shaffer and Stein 2000, p. 307; USFWS 2004, p. 89). Representation involves conserving the breadth of the genetic makeup of the species to conserve its adaptive capabilities; resiliency involves ensuring that each population is sufficiently large to withstand stochastic events; and redundancy involves ensuring a sufficient number of populations to provide a margin of safety for the species to withstand catastrophic events (USFWS 2004, p. 89). Both the occupied and unoccupied units are needed to satisfy the conservation principles of redundancy, resiliency, and representation for the Dakota skipper because there may be too few occupied areas remaining to ensure the species' conservation. The concepts of representation, resiliency, and redundancy are not mutually exclusive; populations that contribute to the resiliency of a species may also contribute to its redundancy or representation. Furthermore, it may not be necessary for a single population to contribute to all three conservation principles to be important for maintaining the species across its range in the long term—because the Dakota skipper is being evaluated across its range, a particular population may not meet the strictest test of one of the three conservation principles yet contribute to the others.
The Poweshiek skipperling has experienced recent declines in large parts of its historical range. The species is now considered to be present at 9 sites in Michigan, 1 site in Minnesota, 1 site in Wisconsin, and 1 site in Manitoba. More than 1 site can be contained in a single proposed critical habitat unit; consequently, we are designating a total of 9 occupied units (
The areas of unoccupied habitat that we are designating as critical habitat were recently occupied (had positive records in 1993 or more recently) and were within the historical range of the species. The areas of habitat where we were uncertain of the occupancy that we are designating as critical habitat were recently occupied (generally, a site with an unknown occupancy had positive records in 2002 or more recently but may have had 1 or 2 years of negative surveys or were determined by a species expert in the State to have an unknown occupancy), and are within the historical range of the species. We determined that these unoccupied areas are essential for the Poweshiek skipperling's conservation because the range of the species has been severely curtailed, occupied habitats are limited and isolated, population sizes are small, and additional lands will be necessary to recover the species.
Furthermore, the unoccupied units and units where we were uncertain of the occupancy are needed to satisfy the conservation principles of redundancy, resiliency, and representation for the Poweshiek skipperling, as there may be too few occupied areas remaining to ensure conservation of the species—the species having been extirpated from substantial portions of its range. The inclusion of unoccupied habitat and habitat where we were uncertain of the occupancy, as critical habitat, is essential for the species' conservation in three ways: (1) It would substantially increase the diversity of historically occupied habitats and geographic areas and increase the chances of the species persisting despite demographic and environmental stressors that are not uniformly distributed; (2) it would ensure that at least some populations may be sufficiently large to withstand stochastic events; and (3) it would help to ensure that geographic areas of recent importance to the species contain sufficient numbers of populations to maintain the species.
Specifically, we are designating unoccupied critical habitat units and units with uncertain occupancy to conserve habitat that may hold potential genetic representation of the species that is necessary for the species to conserve its adaptive capabilities across portions of its highly fragmented historical ranges. Poweshiek skipperling populations are small and fragmented, and thus are subject to genetic drift and inbreeding (Frankham
Since a species' genetics is shaped by its environment, successful conservation should aim to preserve a species across the array of environments in which it occurs (Shaffer and Stein 2000, p. 308), especially if much remains unknown about the nature and extent of its genetic diversity. Conservation of habitat and genetic material is vital in the core of the species' range, but it is also critical to preserve the species in less typical habitats on the periphery of its range, for example, prairie fens in Michigan, to preserve the adaptive capabilities of the species over the long term.
Genetic variation allows populations to tolerate a range of environmental stressors such as new infectious diseases, parasites, pollution, variable food sources, predators, and changes in climate. Fragmentation of a species' habitat across its range can “exacerbate genetic drift and random fluctuations in allele frequencies, causing the genetic variation originally present within a large population to become redistributed among the remaining subpopulations” (Redford
We are also designating critical habitat units with uncertain occupancy
Furthermore, the importance of conserving habitats with uncertain occupancy and unoccupied units is vital in units that contain sites that were, until recently, considered some of the best populations of the species range-wide. For example, some of the areas where we are uncertain of the species occupancy have had positive detections as recently as 2012. Other unoccupied units also had relatively recent detections: For example, one unoccupied unit in Iowa and two unoccupied units in South Dakota contain sites that had positive detections of the species in 2008, but where the species is now likely extirpated. In addition, some of these areas were considered to have, until recently, some of the best populations of Poweshiek skipperlings, but the populations have apparently suddenly disappeared or have been reduced to undetectable numbers, not due to habitat degradation or destruction, but instead due to unknown stressors (see further discussion in Factor E of the proposed listing rule published in this
Finally, by designating unoccupied units and units where we are uncertain of the occupancy, we include areas that help to provide adequate redundancy within the Poweshiek skipperling's recent geographic distributions and full variety of habitat types. By including unoccupied units and units with uncertain occupancy, we will help to ensure that geographic areas of recent importance to the species contain sufficient numbers of populations to maintain the species. In order to conserve the Poweshiek skipperling across the array of environments in which it occurs, we capture habitat redundancy by including a number of sites within each Bailey's eco-region (Bailey 1983) section and subsection critical habitat units that is roughly proportional to the number of sites with recent records within those areas. The Poweshiek skipperling historically ranged across at least 12 eco-regions sections and 21 eco-region subsections, with the majority of historically documented sites from the Red River Valley and North Central Glaciated Plains eco-region sections (USFWS 2014, unpubl. geodatabase; USFWS 2014, unpubl.). Occupied units occur on 3 eco-region subsections within 3 eco-regions, the Lake Agasiz-Aspen Parklands, South Central Great Lakes, and the Southwest Great Lakes Morainal sections. By including unoccupied units and units with uncertain occupancy, we are capturing 6 additional eco-region subsections within 3 sections (Red River Valley, North Central Glaciated Plains, and the Minnesota and Northwest Iowa Morainal-Oak Savannah eco-region sections), roughly proportional to the number of sites with recent records within those areas. These additional eco-region subsections include core areas of the species range. These unoccupied units and units with uncertain occupancy are essential for the conservation of the Poweshiek skipperling, particularly for future reintroduction efforts to aid species recovery, because they contain the habitat that is conducive to the species and help capture the environmental variability across the range of the species.
In summary, representation, resiliency, and redundancy are the three conservation principles important to threatened and endangered species recovery (Shaffer and Stein 2000, p. 307; USFWS 2004, p. 89). Representation involves conserving the breadth of the genetic makeup of the species to conserve its adaptive capabilities; resiliency involves ensuring that each population is sufficiently large to withstand stochastic events; and redundancy involves ensuring a sufficient number of populations to provide a margin of safety for the species to withstand catastrophic events (USFWS 2004, p. 89). Both the occupied and unoccupied units are needed to satisfy the conservation principles of redundancy, resiliency, and representation for the Poweshiek skipperling because there may be too few occupied areas remaining to ensure the species' conservation. The concepts of representation, resiliency, and redundancy are not mutually exclusive; populations that contribute to the resiliency of a species may also contribute to its redundancy or representation. Furthermore, it may not be necessary for a single population to contribute to all three conservation principles to be important for maintaining the species across its range in the long term--because the Poweshiek skipperling is being evaluated across its range, a particular population may not meet the strictest test of one of the three conservation principles yet contribute to the others.
We also examined lands that were historically occupied by both species, but where we are uncertain of the current occupancy, or that are currently unoccupied. These units were all occupied within the past 20 years (had records in 1993 or more recently) and are essential for the conservation of the species. Some units may have multiple landowner types.
The criteria for selecting unoccupied sites and areas where we are uncertain of the occupancy as critical habitat were: (1) Type, amount, and quality of habitat associated with those occurrences (
For unoccupied areas, and areas where we are uncertain of the occupancy of the species, we considered areas containing plant communities classified as (or based on the best available information and recent aerial photography) dry prairie, dry-mesic prairie, mesic prairie, or wet-mesic remnant (untilled) prairie as potential suitable habitat for Dakota skipper and Poweshiek skipperling. Prairie fens, as defined by the MNFI (Michigan Natural Features Inventory 2012, pp. 1-5), were also considered as potential suitable habitat for Poweshiek skipperling in Michigan. Using State natural heritage rankings, habitat information from recent reports, and expert knowledge, we selected areas with habitat quality ratings of fair to excellent because these areas are most likely to contain the physical or biological features essential for the conservation of the species. In some cases the habitat was not given a quality rating, but instead the site was given an estimated population viability rating, in recent reports or heritage databases, which either directly reflects the quality of the habitat (
As discussed above in the
The following steps to map potential critical habitat areas were taken separately for each species. We mapped all known locations (points and polygons) of each species in ArcGIS and divided them into occupied and other (either unoccupied (areas with extirpated or possibly extirpated occupancy) or areas where we were uncertain of the occupancy (areas with unknown occupancy)) using the definitions above and the population status provided in the “Background” section of the proposed listing rule.
Mapping occupied units was conducted separately for the two species; however, the general procedure was the same for both species. The following describes our mapping procedure for occupied areas. Occupied areas contain the physical and biological features essential for the conservation of the Dakota skipper or Poweshiek skipperling.
Using State natural heritage rankings, habitat information from recent reports and expert knowledge, as described in more detail above, we chose occupied sites with quality prairie habitat ratings of fair to excellent or population viability ratings of fair to excellent, which directly reflects the habitat quality. If habitat at a site was not previously defined (
Areas containing plant communities classified as dry prairie, dry-mesic prairie, mesic prairie, or wet-mesic prairie as defined by the MNFI (Michigan Natural Features Inventory 2012, pp. 1-5), MN DNR (MN DNR 2012a, b), recent reports, and expert knowledge were mapped as potentially suitable habitat for Dakota skipper and Poweshiek skipperling, and these areas with fair to excellent quality habitat in particular contain the features essential to the conservation of the species and were included in polygons. Prairie fens, as defined by the MNFI (Michigan Natural Features Inventory 2012, pp. 1-5), also contain the features essential for the conservation of Poweshiek skipperling in Michigan; these areas with fair to excellent quality habitat in particular contain the features essential to the conservation of the species. Patches of wet meadow, oak savannas, and other grassland-dominated prairies contain features essential to the conservation of the species because they provide dispersal habitat between patches of higher quality habitat and, therefore, were also included in the polygons. Patches of grassland-dominated habitats that are lower quality or have not been given a habitat quality rating also contain features essential to the conservation of the species—these areas also provide for dispersal between higher quality prairies. To the maximum extent possible, converted areas (
Dakota skippers and Poweshiek skipperlings may move between patches of prairie habitat separated by structurally similar habitats (
After initial suitable habitat polygons were refined, we applied a 0.5-km (0.3-mi) radius buffer (half the estimated dispersal distance) to each polygon. If the polygons of two or more buffers overlapped, we examined the areas within the buffers for potential areas of overlapping, contiguous dispersal habitat (
When determining critical habitat boundaries, we made every effort to avoid including developed areas such as buildings, paved areas, and other structures that lack primary constituent elements (PCEs) for the Dakota skipper or Poweshiek skipperling. The scale of the maps prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text in the rule and are not designated as critical habitat. Therefore, a Federal action involving these lands will not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.
Mapping unoccupied units (and units with uncertain occupancy) was conducted separately for the two species; however, the general procedure was the same for both species. The following describes our mapping procedure for unoccupied units (and units with uncertain occupancy). As described above, we analyzed areas with uncertain occupancy as if they were unoccupied, in other words, using the standard of “necessary for the conservation of the species” as defined in the Act. Both unoccupied areas and areas where we are uncertain of the occupancy are necessary for the conservation of the Dakota skipper or Poweshiek skipperling.
Using State natural heritage rankings, habitat information from recent reports and expert knowledge, as described in more detail above, we chose unoccupied sites (and sites with uncertain occupancy) with higher quality prairie habitat ratings of fair to excellent or population viability ratings of fair to excellent, which directly reflects the habitat quality, and that met our criteria as discussed above. If habitat at a site was not previously defined (
Areas containing plant communities classified as dry prairie, dry-mesic prairie, mesic prairie, or wet-mesic prairie as defined by the MNFI, MN DNR (Michigan Natural Features Inventory 2012,1-5; Minnesota Department of Natural Resources 2012a, b), recent reports, and expert knowledge were mapped as potentially suitable habitat for Dakota skipper and Poweshiek skipperling, and these areas with fair to excellent quality habitat in particular were considered to be essential to the conservation of the species. Prairie fens, as defined by the MNFI (Michigan Natural Features Inventory 2012, pp. 1-5), are essential for the conservation of the Poweshiek skipperling in Michigan, particularly these areas with fair to excellent quality habitat.
Patches of wet meadow, oak savannas, and other grassland-dominated prairies were also considered to be essential to the conservation of the species, primarily because these areas provide the species with dispersal habitat between patches (at a distance of 1 km (0.6 mi)) of higher quality prairie; therefore, these areas were also included in the mapped polygons. Patches of grassland-dominated habitats that are lower quality or have not been given a habitat quality rating were also considered to be essential to the conservation of the species, primarily because these areas provide the species with patches of dispersal habitat between patches of higher quality habitat. To the maximum extent possible, converted areas (
Dakota skippers and Poweshiek skipperlings may move between patches of prairie habitat separated by structurally similar habitats (
After initial suitable habitat polygons were refined, we applied a 0.5-km (0.3-mile) radius buffer (half the estimated
Generally, polygons separated by less than 1 km (0.6 mi) were defined as subunits of a larger unit encompassing those subunits, if there was a barrier to dispersal between the polygons. Polygons and thus critical habitat subunits of units may have multiple landowners. Units or subunits were named and numbered separately for each State. When determining critical habitat boundaries, we made every effort to avoid including developed areas such as buildings, paved areas, and other structures that lack PCEs for the Dakota skipper or Poweshiek skipperling. The scale of the maps prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text in the rule and are not designated as critical habitat. Therefore, a Federal action involving these lands will not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.
We designated as critical habitat lands that we have determined were occupied at the time of listing and contain sufficient elements of physical or biological features to support life-history processes essential for the conservation of the species, and lands outside of the geographical area occupied at the time of listing that we have determined are essential for the conservation of the Dakota skipper and Poweshiek skipperling.
Units were designated based on sufficient elements of physical or biological features being present to support Dakota skipper and Poweshiek skipperling life-history processes. Some units contained all of the identified elements of physical or biological features and supported multiple life-history processes. Some units contained only some elements of the physical or biological features necessary to support the Dakota skipper and Poweshiek skipperling. The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. The coordinates or plot points or both on which each map is based and detailed textual descriptions of each unit or subunit are available to the public on
For the Dakota skipper, we are designating as critical habitat lands that we have determined are occupied at the time of listing and contain sufficient physical or biological features to support life-history processes essential for the conservation of the species and lands outside of the geographical area occupied at the time of listing that we have determined are essential for the conservation of the Dakota skipper. Due to their small numbers of individuals or low population sizes, suitable habitat and space for expansion or reintroduction are essential to achieve population levels necessary for recovery.
We are designating 38 units as critical habitat for Dakota skipper. The critical habitat areas described below constitute our best assessment at this time of areas that meet the definition of critical habitat. Those 38 units are (1) DS Minnesota Units 1-14; (2) DS North Dakota Units 1-3, 5-9, and 11-13; and (3) DS South Dakota Units 1-8, 15-18, and 22. (The unit numbers are discontinuous becase we retained the same unit names that were used in the proposed designation, although some units have been excluded in this final determination.) The occupancy status of all units is listed in Table 1. Table 1 shows the primary type of ownership and approximate area of each critical habitat unit. Each unit contains all of the primary constituent elements of the physical or biological features essential to the conservation of the Dakota skipper, unless otherwise noted.
For the Poweshiek skipperling, we are designating as critical habitat lands that we have determined are occupied at the time of listing and contain sufficient physical or biological features to support life-history processes essential for the conservation of the species and lands outside of the geographical area occupied at the time of listing that we have determined are essential for the conservation of the Poweshiek skipperling. Due to their small numbers of individuals or low population sizes, suitable habitat and space for expansion or reintroduction are essential to achieve population levels necessary for recovery.
We are designating 56 units as critical habitat for Poweshiek skipperling. The critical habitat areas described below constitute our best assessment at this time of areas that meet the definition of critical habitat. Those 56 units are: (1) PS Iowa Units 1-11; (2) PS Michigan Units 1-9; (3) PS Minnesota Units 1-20; (4) PS North Dakota Units 1 and 2; (5) PS South Dakota Units 1-8, 15-18; and (6) PS Wisconsin Units 1 and 2. (The unit numbers are discontinuous becase we retained the same unit names that were used in the proposed designation, although some units have been excluded in this final determination.) The occupancy status of all units is listed in Table 2. Table 2 shows the primary type of ownership and approximate area of each critical habitat unit. Each unit contains all of the primary constituent elements of the physical or biological features essential to the conservation of the Poweshiek skipperling, unless otherwise noted. The approximate area of each critical habitat unit is shown in Table 2.
We present brief descriptions of all units, and the reasons they meet the definition of critical habitat for the Dakota skipper and the Poweshik skipperling in a supporting document that is available on
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund,
Decisions by the 5th and 9th Circuit Courts of Appeals have invalidated our regulatory definition of “destruction or adverse modification” (50 CFR 402.02) [see
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action,
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.
The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical or biological features to an extent that appreciably reduces the conservation value of critical habitat for the Dakota skipper and the Poweshiek skipperling. As discussed above, the role of critical habitat is to support life-history needs of the species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.
Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the Dakota skipper and Poweshiek skipperling. These activities include, but are not limited to:
Actions that would significantly alter the native plant community such that native grasses or flowering forbs are not readily available during the adult flight period or larval stages in the life cycle of the species. Such activities could include, but are not limited to, conversion to agriculture or other nonagricultural development, heavy grazing, haying prior to July 15, spraying of herbicides or pesticides, and fire. These activities could eliminate or reduce the habitat necessary for the growth and reproduction of these species by reducing larval and adult food sources that could result in direct or indirect adverse effects to individuals and their life cycles.
Actions that would significantly disturb the unplowed (untilled) soils and thereby reduce the native plant community and increase the nonnative plant and woody vegetation within the prairie habitat. Such activities could include, but are not limited to, plowing (tilling), heavy grazing, mining, development, and other disturbances to the soil such that the native plant community is reduced and the encroachment of nonnative plants and woody vegetation can outcompete native plants. These activities can result in the loss of the native plant community necessary for adult and larval food sources to levels below the tolerances of the species.
Actions that would significantly alter the hydrology of the prairie or prairie fen habitat. Such activities could include but are not limited to water withdrawal or diversion, agricultural tilling, urban development, mining, and dredging. These activities may lead to changes in water levels that would degrade or eliminate the native-prairie plants and their habitats to levels that are beyond the tolerances of the species.
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: “The Secretary shall not designate as critical habitat any lands or other geographic areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan (INRMP) prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” There are no Department of Defense lands with a completed INRMP within the proposed or final critical habitat designation.
Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.
When identifying the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus; the educational benefits of mapping essential habitat for recovery of the listed species; and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat.
When identifying the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan that provides equal to or more conservation than a critical habitat designation would provide.
In the case of the Dakota skipper and Poweshiek skipperling, the benefits of critical habitat include public awareness of the species' presence and the importance of habitat protection, and in cases where a Federal nexus exists, increased habitat protection for the species due to the protection from adverse modification or destruction of critical habitat. In practice, a Federal nexus exists primarily on Federal lands or for projects carried out, authorized, or funded by Federal agencies. On private and other non-Federal lands where the Dakota skipper or Poweshiek skipperling occur, Federal nexuses are not frequent. They are typically related to conservation projects funded or carried out by the U.S. Department of Agriculture, Natural Resources Conservation Service (NRCS) or U.S. Department of the Interior, U.S. Fish and Wildlife Service's Partners for Fish and Wildlife program (PFW).
When we evaluate the existence of a conservation plan when considering the benefits of exclusion, we consider a variety of factors, including but not limited to, whether the plan is finalized; how it provides for the conservation of the essential physical or biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information; and, specific to this analysis, whether a private landowner has demonstrated a willingness to engage in conservation plans that are likely to benefit the Dakota skipper or Poweshiek skipperling on other lands that they own or on which they implement livestock ranching activities.
After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.
Based on the information provided by entities seeking exclusion, as well as any additional public comments received, we evaluated whether certain lands in the proposed critical habitat were appropriate for exclusion from this final designation under section 4(b)(2) of the Act. For the Dakota skipper, we are excluding the following areas from the final designation of critical habitat:
414 ac (166 ha) in DS Minnesota Unit 1,
894 ac (358 ha) in DS North Dakota Unit 3,
100 ac (40 ha) in DS North Dakota Unit 4,
1,393 ac (557 ha) in DS North Dakota Unit 5,
48 ac (20 ha) in DS North Dakota Unit 8,
639 ac (256 ha) in DS North Dakota Unit 10,
319 ac (128 ha) in DS South Dakota Unit 7,
159 ac (64 ha) in DS South Dakota Unit 9,
117 ac (47 ha) in DS South Dakota Unit 10,
75 ac (30 ha) in DS South Dakota Unit 11,
676 ac (270 ha) in DS South Dakota Unit 12A,
189 ac (76 ha) in DS South Dakota Unit 14,
13 ac (5 ha) in DS South Dakota Unit 15,
363 ac (143 ha) in DS South Dakota Unit 19,
255 ac (103 ha) in DS South Dakota Unit 20, and
198 ac (80 ha) in DS South Dakota Unit 21.
For the Poweshiek skipperling, we are excluding the following areas from the final designation of critical habitat:
414 ac (166 ha) in PS Minnesota Unit 1,
425 ac (170 ha) in PS South Dakota Unit 3B,
319 ac (128 ha) in PS South Dakota Unit 7,
159 ac (64 ha) in PS South Dakota Unit 9,
117 ac (47 ha) in PS South Dakota Unit 10,
75 ac (30 ha) in PS South Dakota Unit 11,
676 ac (270 ha) in PS South Dakota Unit 12A,
189 ac (76 ha) in PS South Dakota Unit 14, and
13 ac (5 ha) in PS South Dakota Unit 15.
In total, we are excluding approximately 5,852 ac (2,368 ha) of land from the final designation of critical habitat for the Dakota skipper and 2,387 ac (966 ha) for the Poweshiek skipperling.
Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we prepared an incremental effects memorandum (IEM) and screening analysis, which together with our narrative and interpretation of effects, we consider our draft economic analysis (DEA) of the proposed critical habitat designation and related factors (IEC 2014). The analysis, dated September 8, 2014, was made available for public review from September 23, 2014, through October 23, 2014 (79 FR 56704). The DEA addressed probable economic impacts of critical habitat designation for the Dakota skipper and Poweshiek skipperling. Following the close of the comment period, we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. Additional information relevant to the probable incremental economic impacts of critical habitat designation for the Dakota skipper and Poweshiek skipperling is summarized below and available in the screening analysis for the Dakota skipper and Poweshiek skipperling (IEC 2014), available at
Critical habitat designation for the Dakota skipper and Poweshiek skipperling is unlikely to generate costs exceeding $100 million in a single year. Therefore, the rule is unlikely to meet the threshold for an economically significant rule, with regard to costs, under E.O. 12866.
The majority of acres proposed for designation (92 percent) are considered to be occupied, or occupancy is uncertain but the butterflies have been identified at the site in the past. In these areas, the economic impacts of implementing the rule through section 7 of the Act are likely limited to minor additional administrative effort. In areas the Service is certain are unoccupied (eight percent of the proposed designation), incremental section 7 costs may include both the administrative costs of consultation and the costs of developing and implementing conservation measures. Likely
Our economic analysis did not identify any disproportionate costs that are likely to result from the designation. Consequently, the Secretary is not exercising her discretion to exclude any areas from this designation of critical habitat for the Dakota skipper and Poweshiek skipperling based on economic impacts.
A copy of the IEM and screening analysis with supporting documents may be obtained by contacting the Twin Cities, Minnesota Field Office (see
Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist. In preparing this final rule, we have determined that no lands within the designation of critical habitat for the Dakota skipper and Poweshiek skipperling are owned or managed by the Department of Defense or Department of Homeland Security, and, therefore, we anticipate no impact on national security or homeland security. Consequently, the Secretary is not exercising her discretion to exclude any areas from this final designation based on impacts on national security or homeland security.
Under section 4(b)(2) of the Act, we also consider any other relevant impacts resulting from the designation of critical habitat. We consider a number of factors, including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any tribal issues and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation.
As discussed below, we are excluding from the final critical habitat designation some areas that are covered by conservation plans and partnerships that provide a conservation benefit to the Dakota skipper or Poweshiek skipperling. We are excluding private lands on which the Service has secured grassland conservation easements and one private property that is covered by an existing conservation agreement under the Service's Partners for Fish and Wildlife Program. In addition, we also considered excluding from critical habitat lands that are owned by persons who have Service conservation easements, but those easements are on other portions of their property not within the areas proposed as critical habitat. The reason we considered this type of exclusion is that landowners with easements on their lands have shown interest in promoting conservation of species with needs and have a proven track record of partnering with the Service. We believe that even if portions of lands are not covered by easements, these landowners will still be proactive in working with the Service in managing their lands overall to benefit the butterflies. We are also excluding Tribal lands from the final designation, based on conservation partnerships.
We did not consider for exclusion from critical habitat any units where the Poweshiek skipperling is likely still present, because of the species' highly imperiled status. We are also not excluding lands from critical habitat that are held by The Nature Conservancy (TNC). Unlike individual private landowners (
Potential benefits to the Dakota skipper and Poweshiek skipperling of including areas in the final critical habitat designation include (1) the potential for preventing destruction or adverse modification of critical habitat as a result of consultation on Federal actions under section 7(a)(2) of the Act; and, (2) increased awareness of the land's role in the species' conservation. The potential for a critical habitat designation to benefit the Dakota skipper and Poweshiek skipperling in each of these ways is summarized below.
On private lands, Federal actions that will affect Dakota skipper and Poweshiek skipperling critical habitat may primarily consist of voluntary conservation agreements between private landowners and the NRCS or the Service's PFW program. These actions would include prescribed grazing and associated fencing and water facility development, forage harvest management, and upland wildlife habitat management. In general, these actions are likely to benefit Dakota skipper and Poweshiek skipperling habitat, although the Service may cooperate with NRCS to further enhance these benefits. In areas that are not occupied by either species, a critical habitat designation may increase the likelihood that this inter-agency cooperation will occur. Cooperation between NRCS and the Service, however, is not dependent on a critical habitat designation, and there are many existing examples of those agencies working cooperatively to achieve conservation benefits on individual landowner's properties. As part of planning and implementing recovery for the two species, for example, the Service could ensure that NRCS is aware of each area that is important to the conservation of the species, and understands measures that may be incorporated into NRCS actions that would contribute to their conservation. Coordination within the Service between its Endangered Species program and its PFW program may be carried out to an even greater extent. In fact, PFW is likely to implement actions that will play a significant role in recovery of the species, and already
As part of our analysis of potential economic impacts of the proposed critical habitat designation, we identified ongoing or new projects that may affect areas of critical habitat that may be subject to consultation under section 7(a)(2) of the Act. In addition to the voluntary conservation agreements described above, other activities that may have a Federal nexus and that could result in effects to habitats of either species on private lands include transportation projects, wind energy development, and other development. Transportation projects could affect some areas, but there was only one instance where we could identify a specific transportation project that would affect an area proposed as critical habitat for either species (IEC 2014, p. 16; USFWS 2014b, p. 19). Thus, although there could be some benefits to the species from consultations on transportation projects, as those projects and their effects are likely to be limited, those benefits are also likely to be limited.
We are aware of two ongoing wind energy projects on proposed critical habitat locations occupied by Dakota skipper (IEC 2014, p. 18; USFWS 2014b, p. 19). We are unaware of any wind projects that overlapped with unoccupied proposed critical habitat, but several proposed wind energy projects were in close proximity to unoccupied units in Iowa (IEC 2014, p. 18). Although the timing and magnitude of impacts from wind development are highly uncertain, there is potential for effects on unoccupied critical habitat. Where wind energy projects affect occupied critical habitat, the presence of the species would likely trigger the requirement for the Federal agency to consult with the Service under section 7(a)(2) of the Act, regardless of whether the projects occur on lands designated as critical habitat.
Designating areas as critical habitat would result in some benefit to the species as a result of increased awareness of the importance of these habitats, but the Service may communicate the importance of these areas through other means. For example, the Service will identify for the public all areas important for the recovery of one or both species in recovery outlines or recovery plans and can reach out directly to key individuals, agencies, and organizations to ensure that they are aware of habitats that are important for each species' recovery. The designation of critical habitat for Dakota skipper and Poweshiek skipperling may be unlikely to trigger additional requirements under State or local regulations (IEC, 2014, p. 2).
The areas considered for exclusion from critical habitat are important for the recovery of the Dakota skipper and Poweshiek skipperling, but their exclusion may actually provide greater conservation benefit to the species than designation as critical habitat. During the public comment period and in individual meetings with landowners, many landowners indicated that they would be reluctant to partner with the Service to assist recovery efforts if we designated their properties as critical habitat. The recovery of each species will rely heavily on their conservation on private lands and this will, in turn, depend on our ability to maintain existing partnerships with private landowners, and to form new ones. Private land comprises about 46 percent of the sites on which the Dakota skipper may still occur in the United States. As one example of why partnerships are important, surveys to determine the status and distribution of the species and their habitats are an essential component of each species' conservation, and may not be carried out without detailed field work and thorough inspections of habitat conditions. In order to conduct these surveys, we must maintain good working relationships with the landowners who provide access to their property (Royer
Conservation of the species' high-quality native prairie habitats on private lands is best achieved with a cooperative approach. After over 50 years of work to conserve native ecosystems in the northern plains of the United States, the Service has determined that voluntary conservation easements are the only viable means to protect wildlife values on a landscape scale in the region (USFWS 2011, p. 10). To maintain or restore viable populations of Dakota skipper or Poweshiek skipperling at any site, the Service and its partners will have to develop plans that rely on a dynamic accounting of site-specific conditions and land use history. This will require a willingness on the part of the landowner to engage closely with the Service. The Dakota skipper and Poweshiek skipperling may be excluded from lands simply by landowners not knowing about or being proactive in performing simple management activities. The Service can provide assistance and technical direction in how to best manage lands for a balance of use and conservation purposes, and can best do this through effective partnerships and good working relationships with the landowners.
To conserve a landscape that is capable of supporting the recovery of the Dakota skipper and Poweshiek skipperling, we believe it is important to facilitate the continuation of grassland-based agriculture in light of pressures to convert these lands to uses incompatible with the conservation of native prairie species. The Service has found that a strong and vibrant rural lifestyle—with ranching as the dominant land use—is one of the key components for ensuring habitat integrity and wildlife resource protection in the northern grassland region (USFWS 2011, p. 10). A significant potential benefit of acknowledging established conservation partnerships by excluding lands from critical habitat is that it would facilitate our efforts to continue to protect lands through our easement programs or with other incentives where the species' habitats are not yet protected. Our agency's relationships with private landowners on whose land we have proposed critical habitat and who have voluntarily entered into conservation partnerships are extremely valuable to the conservation and recovery of these species. The Service is attempting to accelerate its purchase of wetland and grassland easements, and anticipates that endangered, threatened, and candidate species on private lands will benefit from the extensive habitat protection (USFWS 2011, p. 29).
Many of the areas that we considered for exclusion from the final critical habitat designation are covered by conservation easements (as of December 31, 2014). A conservation easement is a legal agreement voluntarily entered into by a property owner and a qualified conservation organization, such as a land trust or government agency. These easements contain permanent restrictions on the use or development of land in order to protect its conservation values. Service easement contracts specify perpetual protection of habitat for trust species by restricting the conversion of wetland and grassland to other uses.
The conservation easements that we considered as a basis for exclusions from critical habitat prevent cultivation of native grasslands and provide an essential means of protecting against this most acute of threats to the habitats of Dakota skippers and Poweshiek skipperlings. Untilled prairies or remnant moist meadows are physical and biological features that are essential to the conservation of both species. Conversion of grasslands for the production of agricultural crops or other uses destroys the species' habitat, increases isolation of the species' populations by impeding dispersal, and increases the risk posed by drift of herbicides and pesticides from cultivated lands. Unlike degraded habitats, once native prairie is cultivated, it is unlikely to again support the essential physical or biological features that comprise the species' critical habitat.
As explained in the final rule to list the species (USFWS 2014a), cultivation of native grassland habitats in the range of the Dakota skipper and Poweshiek skipperling is an ongoing threat. A wide variety of peer-reviewed publications and government reports document recent conversion of native grassland and make it clear that this activity is an ongoing threat to the Dakota skipper and Poweshiek skipperling. Grassland loss in the western corn belt may be occurring at the fastest rate observed since the 1920s and 1930s and at a rate comparable to that of deforestation in Brazil, Malaysia, and Indonesia (Wright and Wimberly 2013, p. 5). In addition, economic and policy incentives are likely to continue to place pressure on landowners to convert native grassland from ranching to agricultural cropland (Congressional Research Service (CRS) 2007, p. 5; United States Government Accountability Office (USGAO) 2007, p. 15; Stephens
In the areas that we considered for exclusion from critical habitat, conservation easements are the most cost-effective and socially acceptable means to ensure protection of important habitats (U.S. Fish and Wildlife Service 2011, p. 10). Service easements are often used in combination with wetland easements to protect entire prairie wetland ecosystems and are part of the National Wildlife Refuge System. The basic considerations in acquiring an easement interest in private lands are the biological significance of the area, biological requirements of the wildlife species of management concern, existing and anticipated threats to wildlife resources, and landowner interest in the program.
The Service typically acquires conservation easements in the Prairie Pothole Region with Federal Duck Stamp dollars (USFWS 2011, p. 3), and gives highest priority to lands that contain large tracts of grassland with high wetland densities and native prairie or soils most likely to be converted to cropland. Since 1991, easements have been used successfully to retroactively protect grassland habitats around wetlands previously protected by wetland easements and are now used concurrently with wetland easements. In areas where native prairie conservation is a high priority but wetland densities are low, the Service acquires grassland easements in the Dakotas through its Dakota Grassland Conservation Area Land Protection Plan (USFWS 2011, p. 1); in Iowa and Minnesota, it does so as part of the Northern Tallgrass Prairie National Wildlife Refuge (NTPNWR). Unlike a typical national wildlife refuge, the NTPNWR consists of separate and distinct units of native prairie.
The greatest contribution to the conservation of Dakota skipper and Poweshiek skipperling habitat from these easements is that they prevent cultivation, but they provide additional and important benefits. Service easements restrict haying, mowing, and grass seed harvest until after July 15 of each year and are administered according to policy and procedures contained in regional easement manuals. Delayed haying or mowing minimizes the likelihood that late-stage larvae or adults will be killed, that nectar species will be removed before or during the flight period, and that reproduction will be disrupted. Landowners may not cultivate or otherwise alter grasslands, wildlife habitat, and other natural features in the area covered by the easements. They must maintain permanent vegetative cover such as forbs, grasses, and low shrubs. This prevents grassland habitats from becoming dominated by large shrubs or trees, which would preclude the existence or development of the grasses and flowering herbaceous plants that are physical and biological features essential to the conservation of both species. The Service often works with easement landowners through its PFW program to further enhance the quality of native prairie habitats through grazing swaps, inter-seeding native plant species, and implementing prescribed fire.
The Service's monitoring of its easements typically consists of a periodic review of land status through correspondence or meetings with the landowners or land managers to make sure provisions of wetland and grassland easements are being met. The Service uses photo documentation at the time of easement establishment to document baseline conditions. Following procedures contained in its easement manuals, the Service evaluates and administers all requests for uses or activities restricted by an easement (USFWS 2011, p. 36).
Benefits of including areas covered by Service conservation easements in critical habitat include additional protections that could be realized as a result of consultation under section 7(a)(2) of the Act, as well as an increased awareness of the land's role in the species' conservation. On private lands covered by Service easements, Federal actions that affect Dakota skipper and Poweshiek skipperling habitat primarily consist of voluntary conservation agreements between private landowners and the NRCS or the Service's PFW program. These actions would include prescribed grazing and associated fencing and water facility development, forage harvest management, and upland wildlife habitat management. In general, these actions are likely to benefit Dakota skipper and Poweshiek skipperling habitat, although the Service may cooperate with NRCS to further enhance these benefits. These benefits are likely to be reduced, however, because regardless of whether these areas are included in the final critical habitat designation, NRCS and the Service will cooperate to ensure that NRCS is aware of the locations of any lands that are important to the conservation of the two butterflies. As part of planning and implementing recovery for the two species, for example, the Service will ensure that NRCS is aware of each area that is important to the conservation of the species and that its employees understand measures that may be incorporated into NRCS actions to conserve the species' habitats.
In addition to the voluntary conservation agreements described above, other Federal actions that may affect habitats of either species on private lands include transportation projects, wind energy development, and other development. Transportation projects could affect some areas proposed as critical habitat, but are not likely to have broad and major effects on habitat for the two butterfly species. There was only one instance where we could identify a specific transportation project that would affect an area proposed as critical habitat for either species (IEC 2014, p. 16; USFWS 2014b, p. 19). Only unoccupied units were screened for transportation projects, but this is indicative that transportation projects may not have broad and major effects on habitat for the two butterfly species. In addition, we did not find evidence that many areas proposed as critical habitat are likely to be subject to wind energy or other development. Inclusion of areas covered by Service conservation easements could result in some increased protections of the primary physical and biological features of each species' habitats as a result of consultation under section 7(a)(2) of the Act. Under section 7(a)(2), a Federal action may still cause adverse effects to the essential physical and biological features of an individual unit of critical habitat if those effects allow the critical habitat as a whole to serve the intended conservation role for the species. Nevertheless, Federal agencies may still choose to avoid implementing actions that are likely to cause any adverse effects.
The potential benefits of inclusion of lands covered by Service conservation easements are reduced by the scrutiny that the Service already gives to requested uses of these lands. Requested uses, such as pipelines or road construction, that could affect easement grasslands must be reviewed by the Service before they are authorized. This review occurs regardless of whether the area is within critical habitat. When a new right-of-way is requested across an area protected by an easement, the Service works with the utility and the landowner to explore options to avoid and then minimize impacts to protected habitats. Rerouting infrastructure around sensitive areas is a legitimate option and one that the Service pursues when it is reasonable to do so. Once avoidance and minimization options have been considered, the Service accommodates reasonable needs to develop protected lands either by issuing a rights-of-way, by issuing a permit, or by executing an exchange of interests whereby the impacted habitats are replaced elsewhere (USFWS 2011, p. 114).
In South Dakota and North Dakota, installation of wind turbines on areas covered by an easement is similar to other requested uses and is subject to mitigation requirements under the terms of the easement. Landowners must work with the Service to minimize impacts and replace the acres lost with a new easement. This decreases the benefits of critical habitat because section 7(a)(2) consultation is unnecessary to prevent destruction or modification of the species' habitats that might result from the construction and operation of wind energy facilities on areas with easements. In fact, the requirement to replace impacted habitats within an easement would likely exceed what would be required as a result of a site-specific section 7(a)(2) consultation on effects to critical habitat, which would not require replacement or mitigation. In Minnesota, wind energy development is typically precluded by ensuring any leases for wind energy development are relinquished prior to easement acquisition.
Designating areas covered by Service conservation easements as critical habitat would result in some benefit to the species as a result of increased awareness of the importance of these habitats, but the Service may document the importance of these areas through other means. For example, the Service will identify for the public all areas important for the recovery of one or both species in recovery outlines or recovery plans and can reach out directly to individuals, agencies, and organizations to ensure that they are aware of habitats important for each species' recovery. Moreover, the Service has already documented the importance of these areas for conservation by acquiring the conservation easement.
Excluding lands covered by Service conservation easements is likely to provide significant benefits to conserving the species' habitats on private lands. About half of areas identified as the species' habitats are on private lands, and we are unlikely to recover the species unless we form and maintain partnerships with private landowners. On any privately owned site, effective conservation of the species' essential habitat features is likely to be a complex and challenging endeavor that would not be achieved without a productive and cooperative partnership with the landowner. The Dakota skipper and Poweshiek skipperling may be excluded from lands simply by landowners not knowing about or being proactive in performing simple management activities. The Service can provide assistance and technical direction in how to best manage lands for a balance of use and conservation purposes, and can best do this through effective partnerships and good working relationships with the landowners.
Excluding lands covered by Service conservation easements will benefit the species by maintaining existing partnerships with easement landowners and by facilitating additional important land protection actions. Many landowners on whose lands we proposed critical habitat expressed strong opposition to the designation during comment periods, including persons who have sold conservation easements to the Service and that have engaged in other voluntary conservation actions with our agency. For example, surveys to determine the status and distribution of the species and their habitats are an essential component of each species' conservation and may not be carried out without on-the-ground surveys and close inspection of habitat conditions. In order to conduct these surveys, we must maintain good working relationships with the landowners who provide access to their property (Royer
In some areas that were proposed as critical habitat, conservation plans that are in place offset the benefit that a critical habitat designation would have with regard to effects that might result from the construction and operation of wind energy facilities. On several areas proposed as critical habitat, existing conservation plans prevent development for wind energy production. This is true of Service conservation easements in the Service's Midwest Region, Minnesota Native Prairie Bank easements, and Iowa Natural Heritage Foundation easements. In addition, on areas covered by Service easements in the Service's Mountain-Prairie Region, which includes North Dakota and South Dakota, installation of wind turbines is subject to mitigation requirements under the terms of the easement: Landowners must work with the Service to minimize impacts and replace the acres affected with a new easement.
Exclusion of private lands covered by Service conservation easements from critical habitat is likely to increase our chances of maintaining or developing beneficial partnerships that are sufficient in quantity and quality to conserve the species. In addition, exclusion is likely to facilitate
The benefits of excluding lands covered by Service conservation easements outweigh the benefits of including these areas as critical habitat. With few exceptions, Federal actions that affect the species' habitats on private lands with Service conservation easements are conservation actions entered into voluntarily by the landowners. Inclusion of the areas in critical habitat would have minimal benefits with regard to those actions. In general, they are not likely to have significant adverse effects and the sponsoring agencies—NRCS and the Service (PFW)—are already likely to be cognizant of the need to conserve areas that are important to the conservation of the two species. Other types of Federal actions, such as transportation projects, are not likely to have extensive impacts to lands with Service conservation easements, and their effects will already be minimized or mitigated as a result of standard easement restrictions and review.
Exclusion of lands covered by Service conservation easements will benefit the species' habitats by ensuring that existing conservation partnerships are maintained and strengthened and that landowners continue to sell easements to the Service or otherwise engage in voluntary efforts to conserve the species. By excluding these areas from critical habitat, we can continue to foster the close working partnerships that are necessary to conserve the primary physical and biological features of the species' native prairie habitats. In order to recover the Dakota skipper and Poweshiek skipperling, the Service must continue to build positive working relationships with private landowners who have demonstrated a commitment to conservation by acquiring conservation easements on their lands. These conservation actions provide a greater benefit to the species than do the minimal regulatory and educational benefits of designating critical habitat on these lands.
Excluding lands covered by Service conservation easements will not result in extinction of either species. We are not excluding any lands that are currently occupied by the Poweshiek skipperling. Reintroduction of the species would be required for it to again inhabit any of the excluded lands, and exclusion is not likely to reduce the likelihood that reintroduction would occur or be successful. In fact, exclusion of lands covered by Service easements is likely to facilitate robust partnerships with private landowners that would be required to support a reintroduction program that would be effective in conserving Poweshiek skipperling. For the Dakota skipper, excluding lands covered by Service conservation easements is likely to restore, maintain, and increase the strength and number of partnerships with private landowners that are needed to recover the species.
We also considered excluding from critical habitat lands proposed as critical habitat that are owned by persons who have Service easements, but those easements are on other portions of their property not within the areas proposed as critical habitat. The reason we considered this type of exclusion is that landowners with easements on their lands have shown interest in promoting conservation and have a proven track record of partnering with the Service. We believe that even if portions of lands are not covered by easements, these landowners will still be proactive in working with the Service in managing their lands overall to benefit the butterflies. This consideration would affect a total of 939 acres, primarily areas that were proposed as critical habitat for the Dakota skipper in McHenry County, North Dakota (911 acres), as well as two areas proposed as critical habitat for both species, one in Minnesota (25 acres) and one in South Dakota (2 acres).
Benefits of including areas owned by persons with Service easements on other tracts from critical habitat include additional protections that could be realized as a result of consultation under section 7(a)(2) of the Act, as well as an increased awareness of the land's role in the species' conservation. On these lands, Federal actions that affect Dakota skipper and Poweshiek skipperling habitat primarily consist of voluntary conservation agreements between private landowners and the NRCS or the Service's PFW program. In general, these actions benefit Dakota skipper and Poweshiek skipperling habitat, although the Service may cooperate with NRCS to further enhance these benefits. Regardless of whether these areas are included in the final critical habitat designation, the Service will cooperate internally with its PFW program and with NRCS to ensure that personnel are aware of the locations of any lands that are important to the conservation of the two butterflies. This interaction reduces the benefits to conservation that would occur as a result of inclusion in critical habitat.
In addition to the voluntary conservation agreements described above, other Federal actions that may affect habitats of either species on private lands include transportation projects, wind energy development, and other development. Transportation projects could affect some areas proposed as critical habitat, but are not likely to have broad and major effects on habitat for the two butterfly species. In addition, few areas proposed as critical habitat are likely to be subject to wind energy or other development. Inclusion of other lands owned by persons with Service easements could result in some increased protections of the primary physical and biological features of each species' habitats as a result of consultation under section 7(a)(2) of the Act. Under section 7(a)(2), a Federal action may still cause adverse effects to the essential physical and biological features of an individual unit of critical habitat if those effects allow the critical habitat as a whole to serve the intended conservation role for the species. Nevertheless, Federal agencies may still choose to avoid implementing actions that are likely to cause any adverse effects.
Designating areas as critical habitat that are owned by persons who have Service conservation easements on other portions of their property would result in some benefit to the species as a result of increased awareness of the importance of these habitats, but the Service may document the importance of these areas through other means. For example, the Service will identify for the public all areas important for the recovery of one or both species in recovery outlines or recovery plans and can reach out directly to individuals, agencies, and organizations to ensure
Excluding lands owned by persons with Service conservation easements on other tracts is likely to provide significant benefits to conserving the species' habitats on private lands. Our ability to conserve the two species' habitats will be enhanced if we are able to maintain and develop strong partnerships with private landowners. This is especially true in certain geographic areas that are especially important for the recovery of either species. Native prairie in McHenry County, North Dakota, comprises one of the few strongholds for Dakota skipper and contains 97 percent of the lands excluded in this category. Protection and restoration of Dakota skipper habitat in this area will be difficult to achieve unless the Service protects its ability to form and maintain strong partnerships with private landowners and ranchers.
The landowners who have sold conservation easements to the Service have established conservation partnerships with the Service. They often work closely with the Service, in some cases on innovative and voluntary efforts to conserve habitats on their land. In one case, for example, a landowner has worked with a Service Wetland Management District in Minnesota on grazing swaps. Under grazing swaps, landowners are allowed to use their livestock to implement conservation grazing of Service-owned lands in exchange for resting their own private pasture. This allows grazing pressure to be distributed across the landscape, reducing the likelihood that private lands are grazed too heavily and that native prairie on public land is also managed to maximize ecological values.
Exclusion of lands owned by persons with Service easements on other tracts will increase opportunities for the Service to cooperate with key private landowners. On any privately owned site, effective conservation of each species' essential habitat features is likely to be complex and challenging. It will require ongoing monitoring to determine how the species and their essential habitat features respond to management schemes. This level of cooperation is best achieved through a productive and cooperative partnership with the landowner. By excluding lands owned by persons with Service easements on other tracts, we enhance the opportunities to conserve the physical and biological features of each species' habitat on private lands.
Exclusion of private landowners with Service easements from critical habitat will facilitate continued interest among landowners in conservation easements and is expected to assist getting conservation easements purchased on lands that are valuable for butterfly conservation. Habitat fragmentation poses a significant threat to the species because it reduces the likelihood that the species may disperse among habitat areas and increases the likelihood that local populations will be extirpated. Over 50 years of experience in the Prairie Pothole Region strongly suggests that conservation easements may be the only viable means to protect wildlife values on a landscape scale (USFWS 2011, p. 10).
The benefits of excluding lands owned by persons with Service easements on other tracts outweigh the benefits of including these areas as critical habitat. With some exceptions, Federal actions that affect Dakota skipper and Poweshiek skipperling habitat on private lands are voluntary conservation actions by the landowners. Inclusion of the areas in critical habitat would have minimal benefits with regard to those actions because they are not likely to have significant adverse effects, if any, to the species or their habitats. Moreover, the agencies that sponsor these activities—NRCS and the Service (PFW)—are likely to be aware of the need to conserve areas that are important to the Dakota skipper, regardless of the critical habitat designation. Other types of Federal actions, such as transportation projects, are not likely to have extensive impacts to lands owned by persons with Service conservation easements on other tracts.
Exclusion of lands owned by persons with Service conservation easements on other tracts will benefit the species' habitats by ensuring that existing, important conservation partnerships are maintained and strengthened and that landowners are encouraged to continue to sell easements to the Service or to otherwise engage in voluntary efforts to conserve the species' habitats. By excluding these areas from critical habitat, we can continue to foster the close working partnerships that are necessary to conserve the primary physical and biological features of the species' native prairie habitats. In order to recover the Dakota skipper and Poweshiek skipperling, the Service must continue to build positive working relationships with private landowners who have demonstrated a commitment to conservation by acquiring conservation easements on their lands. These conservation actions provide a greater benefit to the species than do the minimal regulatory and educational benefits of designating critical habitat on these lands.
Excluding lands owned by persons with Service conservation easements on other tracts will not result in extinction of either species. We are not excluding any lands that are currently occupied by the Poweshiek skipperling. Reintroduction of this species will be required for it to again inhabit any of the excluded lands, and exclusion is not likely to reduce the likelihood that reintroduction will occur or be successful. In fact, exclusion of lands owned by persons with Service conservation easements on other tracts is likely to facilitate robust partnerships with private landowners that would be required to support a reintroduction program that would be effective in conserving Poweshiek skipperling. For the Dakota skipper, excluding lands owned by persons with Service conservation easements on other tracts is likely to restore, maintain, and increase the strength and number of partnerships with private landowners that are needed to recover the species. These benefits of exclusion are likely to be substantial, whereas the benefits of including these areas as critical habitat are likely to be minimal in light of the limited risk that Federal actions are likely to pose to the species' habitats in the affected areas.
We considered for exclusion from critical habitat lands covered by management agreements between private landowners and the Service's Partners for Fish and Wildlife Program (PFW) as of December 31, 2014. The PFW program provides technical and financial assistance to private landowners and Tribes who are willing to work with the Service and other partners on a voluntary basis to help
Benefits of including areas covered by PFW agreements in the final critical habitat designation include additional protections that could be realized as a result of consultation under section 7(a)(2) of the Act, as well as an increased awareness of the land's role in the species' conservation. On private lands covered by Service PFW agreements, Federal actions that affect Dakota skipper and Poweshiek skipperling habitat primarily consist of voluntary conservation agreements between private landowners and the NRCS and existing or new agreements established by the PFW program. In general, these actions benefit Dakota skipper and Poweshiek skipperling habitat, although the Service may cooperate with NRCS to further enhance these benefits. These benefits are reduced, however, because regardless of whether these areas are included in the final critical habitat designation, the Service will cooperate internally with its PFW program and with NRCS to ensure that personnel are aware of the locations of lands that are important to the conservation of the two butterfly species. As part of planning and implementing recovery of the two species, for example, the Service will ensure that NRCS and the PFW program are aware of areas that are important to the conservation of the species and that employees understand measures that may be incorporated into actions to conserve the species' habitats.
In addition to the voluntary conservation agreements described above, other Federal actions that may affect habitats of either species on private lands include transportation projects, wind energy development, and other development. Transportation projects could affect some areas proposed as critical habitat, but are not likely to have broad and major effects on habitat for the two butterfly species. Moreover, neither site is within 0.5 km of any road or highway that may be likely to be the subject of Federal transportation dollars for improvement or maintenance. In addition, we did not find evidence that many areas proposed as critical habitat are likely to be subject to wind energy or other development. Inclusion of areas covered by PFW agreements could result in some increased protections of the primary physical and biological features of each species' habitats as a result of consultation under section 7(a)(2) of the Act. Under section 7(a)(2), a Federal action may still cause adverse effects to the essential physical and biological features of an individual unit of critical habitat if those effects allow the critical habitat as a whole to serve the intended conservation role for the species. Nevertheless, Federal agencies may still choose to avoid implementing actions that are likely to cause any adverse effects.
Designating areas covered by PFW agreements as critical habitat would result in some benefit to the species as a result of increased awareness of the importance of these habitats, but the Service may document the importance of these areas through other means. For example, the Service will identify for the public all areas important for the recovery of one or both species in recovery outlines or recovery plans and can reach out directly to individuals, agencies, and organizations to ensure that they are aware of habitats important for each species' recovery. Moreover, the Service has already documented the importance of these areas for conservation by establishing the PFW agreement.
Excluding lands owned by persons with PFW agreements provides benefits to conserving Dakota skipper and Poweshiek skipperling habitat on private lands. Excluding these areas from critical habitat encourages additional partnerships with the persons directly affected and may encourage other landowners to enter into similar agreements. Our ability to conserve the two species' habitats will be enhanced by maintaining and developing strong partnerships with private landowners.
The benefits of exclusion from critical habitat are likely of different magnitudes for the two areas that we considered under this category. Native prairie in McHenry County, North Dakota, comprises one of the few strongholds for the Dakota skipper. Lands in this area are relatively flat
The benefits of excluding the McHenry County, North Dakota, site that is covered by a PFW agreement outweighs the benefits of including it as critical habitat; therefore, we are excluding it from critical habitat. As we suggest above, the benefits of excluding the Brookings County, South Dakota, site that was covered by a PFW agreement do not outweigh the benefits of including it, so we are including it in the final critical habitat designation.
As with other private lands, with some exceptions, Federal actions that affect Dakota skipper and Poweshiek skipperling habitat on private lands are voluntary conservation actions by the landowners. Inclusion of the areas in critical habitat would have minimal benefits with regard to those actions, because they are not likely to have significant adverse effects, if any. Moreover, the agencies that sponsor these activities
Exclusion of lands owned by persons with PFW agreements could benefit the species' habitats by ensuring that existing important conservation partnerships are maintained and strengthened and that other landowners are encouraged to enter into similar agreements with the Service. By excluding these areas from critical habitat, we can continue to foster the close working partnerships that are necessary to conserve the primary physical and biological features of the species' native prairie habitats. In order to recover the Dakota skipper and Poweshiek skipperling, the Service must continue to build positive working relationships with private landowners who have demonstrated a commitment to conservation by acquiring conservation easements on their lands. These conservation actions provide a greater benefit to the species than do the minimal regulatory and educational benefits of designating critical habitat on these lands. Our ability to form and maintain conservation partnerships with private landowners appears to be significantly different between the two areas under this category. In McHenry County, North Dakota, where we are excluding a 78-acre tract of private property, the Dakota skipper and its habitat is distributed among numerous private landowners and the area is vulnerable to destruction by cultivation. In addition, we found that critical habitat designation raised significant concerns among landowners in McHenry County, which could affect our ability to maintin those partnerships. In Brookings County, South Dakota, where we are including a site covered by a PFW agreement in the final critical habitat designation, there is little reason to conclude that such a designation will affect our ability to form and maintain conservation partnerships.
Excluding the single private property in North Dakota that is covered by a PFW agreement will not result in extinction of either species. In fact, it is likely to improve our ability to form and maintain conservation partnerships with private landowners in an area with significant importance to Dakota skipper. We are not excluding any lands that are currently occupied by the Poweshiek skipperling. Reintroduction of the species would be required for it to again inhabit any of the excluded lands, and exclusion is not likely to reduce the likelihood that reintroduction would occur or be successful. In fact, exclusion of lands covered by Partners for Fish and Wildlife Agreements is likely to facilitate robust partnerships with private landowners that would be required to support a reintroduction program that would be effective in conserving Poweshiek skipperling. For the Dakota skipper, excluding lands covered by Partners for Fish and Wildlife Agreements is likely to restore, maintain, and increase the strength and number of partnerships with private landowners that are needed to recover the species. These benefits of exclusion are likely to be substantial, whereas the benefits of including these areas as critical habitat are likely to be minimal in light of the limited risk that Federal actions are likely to pose to the species' habitats in the affected area.
The Dakota skipper may be present on at least nine sites on the Lake Traverse Reservation of the Sisseton Wahpeton Oyate and on one site on the Ft. Berthold Reservation of the Three Affiliated Tribes. The Poweshiek skipperling occurred on the Sisseton Wahpeton Oyate sites, but is likely extirpated. Therefore, areas on the Lake Traverse Reservation of the Sisseton Wahpeton Oyate are unoccupied by Poweshiek skipperling. Sites where the Dakota skipper still occurs on Sisseton Wahpeton Oyate Tribal lands are typically managed with late summer haying.
Benefits of including Tribal lands as critical habitat include additional protections as a result of consultation on actions under section 7(a)(2) of the Act, as well as an increased awareness of the land's role in the species' conservation. On Tribal lands, Federal actions that will affect Dakota skipper and Poweshiek skipperling habitat may primarily consist of actions implemented by the Tribes with funding from one or more Federal agencies. The Sisseton Wahpeton Oyate has administered grants, for example, from the Environmental Protection Agency and Bureau of Indian Affairs (BIA) to support a variety of environmental protection activities, including solid waste management, protection of air quality, and development of environmental codes (USFWS 2014, p. 15). These actions may not have a significant likelihood of causing adverse effects to critical habitat for either species. BIA may also request consultations for road construction; housing developments; mineral rights development; developing conservation, land and water management plans; rangeland improvements; noxious weed control; and projects related to grants administered by this agency (USFWS 2014, p. 17). Some of these actions could conceivably result in adverse effects to one or both species' habitats. Nevertheless, the Service has not found actions supported by BIA or other Tribal grants to constitute significant threats to either species or their habitats.
In addition to the grants provided by Federal agencies and administered by the Tribes, other Federal actions that may affect habitats of either species on Tribal lands include transportation projects, wind energy development, oil and gas development, and other development. Transportation projects could affect some areas, but are not likely to have broad and major effects on habitat for the two butterfly species. In addition, few of the Tribal areas that were proposed as critical habitat are likely to be subject to wind energy or other development, although the Fort Berthold Reservation has some ongoing oil and gas development projects. Nevertheless, inclusion of Tribal lands as critical habitat could result in some increased protections of the essential physical and biological features of each species' habitats where any transportation, wind energy, oil and gas development, or other development projects may be funded by a Federal agency.
Designating areas as critical habitat would result in some benefit to the species as a result of increased awareness of the importance of these habitats, but the Service may document the importance of these areas through other means. For example, the Service may, in cooperation with the Tribes,
The Tribes already possess significant understanding with respect to the species and the conservation of their habitats. Sisseton Wahpeton Oyate, for example, has for many years sponsored surveys on its lands for both species and has managed its lands in such a manner that they support one of the few remaining strongholds for the Dakota skipper. In addition to conservation of prairie butterflies, the Sisseton Wahpeton Oyate has received Tribal Wildlife Grants from the Service to improve its understanding of other species of concern on its lands. The Three Affiliated Tribes are committed to managing potential Dakota skipper habitat on the Fort Betrthold Reservation in accordance with the Dakota Skipper Guidelines; for example, fire is not included in the Reservation's Noxious Weed Management Plan as an alternative for managing habitat on the Reservation. In light of the contributions already provided by the Sisseton-Wahpeton Oyate and the Three Affiliated Tribes to the conservation of Dakota skipper and Poweshiek skipperling habitats, we want to maintain and strengthen ongoing cooperative conservation carried out by the Tribes.
Excluding Tribal lands from critical habitat is likely to provide significant benefits to our ability to conserve the species' habitats in cooperation with the Tribes. Our ability to conserve the two species' habitats will be increased if we are able to maintain and develop strong partnerships with the Tribes. The Sisseton Wahpeton Oyate, for example, has already made strong contributions to the conservation of Dakota skipper. In addition to a long history of monitoring the status of the species on their lands, the Tribe allowed the Minnesota Zoo to collect Dakota skipper eggs from females captured on Tribal lands in 2014. These eggs formed the primary basis for the zoo's attempts to develop methods to propagate the species in captivity, a program that will be vital to recovery efforts. Although the presence of the Dakota skipper is uncertain on the one site on Fort Berthold Reservation, potential habitat remains, and the Three Affiliated Tribes have developed, in close coordination with the Service, a programmatic biological assessment for oil and gas development on the Reservation that addresses the Dakota skipper. The Three Affiliated Tribes have agreed to avoid siting oil and gas development projects within potential Dakota skipper habitat on the Ft. Berthold Reservation. They recently realigned a pipeline project to avoid Dakota skipper habitat (with a 0.5 mile (0.8 km) buffer zone), and intend to continue to restrict oil and gas development to avoid the butterfly's habitat. The Tribe and the Service are continuing to engage in ongoing conversations regarding conservation efforts for the species. Exclusion of Tribal lands is likely to increase opportunities for the Service to cooperate with the Tribes to conserve the two species. Tribal lands, especially those on the Lake Traverse Reservation, will likely play an important role in the recovery of both species. They provide a rare stronghold for the Dakota skipper and may be among the most promising sites for eventual reintroduction of the Poweshiek skipperling, if the means to propagate the species are developed. As on any land inhabited by either species, effective conservation of the species' essential habitat features is likely to be complex and challenging. It will require ongoing monitoring and adaptive management to determine how the species and their essential habitat features respond to management actions and to make appropriate adjustments. This level of cooperation can best be achieved through a productive and cooperative partnership between the Service and the Tribes. By excluding Tribal lands from the final designation of critical habitat, we can better maintain our working partnerships with the Tribes and increase our ability to conserve the physical and biological features of each species' habitat.
The benefits of excluding Tribal lands outweigh the benefits of including these areas as critical habitat. Inclusion of Tribal lands in critical habitat may have minimal benefits because federally funded and tribally administered actions that would be subject to section 7(a)(2) consultation are unlikely to have significant adverse effects, if any, to either species' habitat. Other types of Federal actions, such as transportation projects, are also not likely to have extensive impacts to either species' habitats on Tribal lands.
Exclusion of Tribal lands will benefit the species and their habitats by ensuring that existing important conservation partnerships with the Tribes, and the ability to expand on these conservation partnerships, are maintained and that Tribes remain willing to engage in cooperative efforts with the Service to conserve the species' habitats. By excluding Tribal lands from critical habitat, we can continue to foster the close working partnerships that are necessary to conserve the primary physical and biological features of the species' native prairie habitats. These conservation actions provide a greater benefit to the species than do the minimal regulatory and educational benefits of designating critical habitat on these lands.
Excluding Tribal lands from the critical habitat designation will not result in extinction of either species. We are not excluding any lands that are currently occupied by the Poweshiek skipperling. Reintroduction of the Poweshiek skipperling would be required for it to again inhabit any of the excluded lands and exclusion from critical habitat is not likely to reduce the likelihood that reintroduction would occur or be successful. In fact, exclusion of lands owned by Tribes may help to facilitate a partnership with the Sisseton Wahpeton Oyate that would be required to support a reintroduction program that would be effective in conserving Poweshiek skipperling. For Dakota skipper, excluding Tribal lands is likely to improve the strength of our partnerships with the Tribes that are needed to recover the species. These benefits of exclusion are likely to be substantial, whereas the benefits of including these areas as critical habitat are likely to be minimal in light of the limited impacts from Federal actions to the species habitats on Tribal lands.
In summary, the Service excludes from the final critical habitat designation for the Dakota skipper and Poweshiek skipperling, a variety of lands for which there is evidence of an established conservation partnership with private landowners. We do not exclude from critical habitat any lands where the Poweshiek skipperling is likely to be extant, due to the species'
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
The Service's current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself, and therefore, not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried by the Agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7 only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies will be directly regulated by this designation. There is no requirement under RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities are directly regulated by this rulemaking, the Service certifies that the final critical habitat designation will not have a significant economic impact on a substantial number of small entities.
During the development of this final rule, we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. Based on this information, we affirm our certification that this final critical habitat designation will not have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute “a significant adverse effect” when compared to not taking the regulatory action under consideration.
The economic analysis describes potential impacts arising from the development of oil fields in North Dakota (IEC 2014a, p. 14); oil and gas development is unlikely in the units considered unoccupied by the two butterflies.
The ConocoPhillips company indicates that the most significant levels of oil and gas development occur at the westernmost edge of the species' range and that the increased level of oil and gas development associated with the Bakken formation is concentrated in specific counties in North Dakota. The critical habitat areas with the highest likelihood for oil development are within McKenzie County. The three units in McKenzie County that are within the oil field development area are all units considered occupied or uncertain. We expect that if a Federal nexus exists, any project modifications recommended by the Service would occur regardless of critical habitat designation. Incremental costs for oil and gas activity are thus limited to administrative costs of considering adverse modification of critical habitat during consultation.
The Service is not aware of any specific plans or proposals to develop wind energy in these areas. Thus, there are no anticipated incremental costs
We do not anticipate that the designation of critical habitat will result in significant incremental impacts to the energy industry on a national scale (Industrial Economics, Inc. 2014, p. A-15). As such, the designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely affect small governments because it would not produce a Federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The final economic analysis concludes that incremental impacts may occur due to administrative costs of conducting section 7 consultation and implementation of any conservation efforts requested by the Service through section 7 consultation to avoid potential destruction or adverse modification of critical habitat; however, these are not expected to significantly affect small governments. Incremental impacts stemming from various species conservation and development control activities are expected to be primarily borne by the Federal Government and State agencies, which are not considered small governments. Consequently, we do not believe that the critical habitat designation would significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.
In accordance with Executive Order 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Dakota skipper and Poweshiek skipperling in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed and concludes that this designation of critical habitat for the Dakota skipper and Poweshiek skipperling does not pose significant takings implications for lands within or affected by the designation.
In accordance with E.O. 13132 (Federalism), this rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies in Iowa, Michigan, Minnesota, North Dakota, South Dakota, and Wisconsin. We received comments from several State agencies and have addressed them in the Summary of Comments and Recommendations section of the rule. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical and biological features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist these local governments in long-range planning (because these local governments no longer have to wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the applicable standards set forth in sections 3(a) and 3(b)(2) of the Order. We are designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, the rule identifies the elements of physical or biological features essential to the conservation of the Dakota skipper and Poweshiek skipperling. The designated areas of critical habitat are presented on maps, and the rule provides several options for the interested public to obtain more detailed location information, if desired.
This rule does not contain any collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes.
Tribal lands in North Dakota and South Dakota were included in the proposed designation of critical habitat. Using the criteria found in the Criteria Used to Identify Critical Habitat section, we have determined that Tribal lands meet the definition of critical habitat for the Dakota skipper and Poweshiek skipperling. We sought government-to-government consultation with these tribes throughout the proposal and development of the final designation of critical habitat. We have considered these areas for exclusion from final critical habitat designation to the extent consistent with the requirements of 4(b)(2) of the Act. We informed tribes of how we evaluate areas under section 4(b)(2) of the Act and of our interest in consulting with them on a government-to-government basis. We have excluded all tribal lands from this critical habitat designation.
A complete list of all references cited is available on the Internet at
The primary authors of this rulemaking are the staff members of the Twin Cities Ecological Services Field Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless otherwise noted.
(h) * * *
(i)
(1) Critical habitat units are designated in Chippewa, Clay, Kittson, Lincoln, Murray, Norman, Pipestone, Polk, Pope, and Swift Counties in Minnesota; McHenry, McKenzie, Ransom, Richland, and Rolette Counties in North Dakota; and Brookings, Day, Deuel, Grant, Marshall, and Roberts Counties in South Dakota, on the maps below.
(2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of the Dakota skipper consist of three components:
(i) Primary Constituent Element 1—Wet-mesic tallgrass or mixed-grass remnant untilled prairie that occurs on near-shore glacial lake soil deposits or high-quality dry-mesic remnant untilled prairie on rolling terrain consisting of gravelly glacial moraine soil deposits, containing:
(A) A predominance of native grasses and native flowering forbs;
(B) Glacial soils that provide the soil surface or near surface (between soil surface and 2 cm depth) micro-climate conditions conducive to Dakota skipper larval survival and native-prairie vegetation;
(C) If present, trees or large shrub cover of less than 5 percent of area in dry prairies and less than 25 percent in wet-mesic prairies; and
(D) If present, nonnative invasive plant species occurring in less than 5 percent of area.
(ii) Primary Constituent Element 2—Native grasses and native flowering forbs for larval and adult food and shelter, specifically:
(A) At least one of the following native grasses to provide food and shelter sources during Dakota skipper larval stages: prairie dropseed
(B) One or more of the following forbs in bloom to provide nectar and water sources during the Dakota skipper flight period: purple coneflower
(iii) Primary Constituent Element 3—Dispersal grassland habitat that is within 1 km (0.6 mi) of native high-quality remnant prairie (as defined in Primary Constituent Element 1) that connects high-quality wet-mesic to dry tallgrass prairies or moist meadow habitats. Dispersal grassland habitat consists of undeveloped open areas dominated by perennial grassland with limited or no barriers to dispersal including tree or shrub cover less than 25 percent of the area and no row crops such as corn, beans, potatoes, or sunflowers.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on November 2, 2015.
(4)
(5) Index map follows:
(6) DS Minnesota Unit 1, Pope County, Minnesota. Map of DS Minnesota Unit 1 follows:
(7) DS Minnesota Units 2 and 3, Murray County, Minnesota. Map of DS Minnesota Units 2 and 3 follows:
(8) DS Minnesota Unit 4, Clay County, Minnesota. Map of DS Minnesota Unit 4 follows:
(9) DS Minnesota Unit 5, Clay County, Minnesota. Map of DS Minnesota Unit 5 follows:
(10) DS Minnesota Unit 6, Norman County, Minnesota. Map of DS Minnesota Unit 6 follows:
(11) DS Minnesota Unit 7, Lincoln and Pipestone Counties, Minnesota. Map of DS Minnesota Unit 7 follows:
(12) DS Minnesota Units 8 and 11, Pipestone County, Minnesota. Map of DS Minnesota Units 8 and 11 follows:
(13) DS Minnesota Unit 9, Pipestone County, Minnesota. Map of DS Minnesota Unit 9 follows:
(14) DS Minnesota Unit 10, Swift and Chippewa Counties, Minnesota. Map of DS Minnesota Unit 10 follows:
(15) DS Minnesota Unit 12, Lincoln County, Minnesota. Map of DS Minnesota Unit 12 follows:
(16) DS Minnesota Unit 13, Kittson County, Minnesota. Map of DS Minnesota Unit 13 follows:
(17) DS Minnesota Unit 14, Polk County, Minnesota. Map of DS Minnesota Unit 14 follows:
(18) DS North Dakota Unit 1, Richland County, North Dakota. Map of DS North Dakota Unit 1 follows:
(19) DS North Dakota Units 2 and 13, Ransom County, North Dakota. Map of DS North Dakota Units 2 and 13 follows:
(20) DS North Dakota Units 3 and 5, McHenry County, North Dakota. Map of DS North Dakota Units 3 and 5 follows:
(21) DS North Dakota Unit 6, McHenry County, North Dakota. Map of DS North Dakota Unit 6 follows:
(22) DS North Dakota Units 7 and 8, McHenry County, North Dakota. Map of DS North Dakota Units 7 and 8 follows:
(23) DS North Dakota Unit 9, Rolette County, North Dakota. Map of DS North Dakota Unit 9 follows:
(24) DS North Dakota Unit 11, McKenzie County, North Dakota. Map of DS North Dakota Unit 11 follows:
(25) DS North Dakota Unit 12, McKenzie County, North Dakota. Map of DS North Dakota Unit 12 follows:
(26) DS South Dakota Unit 1, Marshall County, South Dakota. Map of DS South Dakota Unit 1 follows:
(27) DS South Dakota Unit 2, Brookings County, South Dakota. Map of DS South Dakota Unit 2 follows:
(28) DS South Dakota Unit 3, Deuel County, South Dakota. Map of DS South Dakota Unit 3 follows:
(29) DS South Dakota Unit 4, Grant County, South Dakota. Map of DS South Dakota Unit 4 follows:
(30) DS South Dakota Unit 5, Deuel County, South Dakota. Map of DS South Dakota Unit 5 follows:
(31) DS South Dakota Unit 6, Roberts County, South Dakota. Map of DS South Dakota Unit 6 follows:
(32) DS South Dakota Units 7 and 18, Roberts County, South Dakota. Map of DS South Dakota Units 7 and 18 follows:
(33) DS South Dakota Unit 8, Roberts County, South Dakota. Map of DS South Dakota Unit 8 follows:
(34) DS South Dakota Units 15 and 16, Day County, South Dakota. Map of DS South Dakota Units 15 and 16 follows:
(35) DS South Dakota Unit 17, Roberts County, South Dakota. Map of DS South Dakota Unit 17 follows:
(36) DS South Dakota Unit 22, Brookings County, South Dakota. Map of DS South Dakota Unit 22 follows:
(1) Critical habitat units are designated for Cerro Gordo, Dickinson, Emmet, Howard, Kossuth, and Osceola Counties in Iowa; in Hilsdale, Jackson, Lenawee, Livingston, Oakland, and Washtenaw Counties in Michigan; Chippewa, Clay, Cottonwood, Douglas, Kittson, Lac Qui Parle, Lincoln, Lyon, Mahnomen, Murray, Norman, Pipestone, Polk, Pope, Swift, and Wilkin Counties in Minnesota; Richland County in North Dakota; Brookings, Day, Deuel, Grant, Marshall, Moody, and Roberts Counties in South Dakota; and Green Lake and Waukesha Counties in Wisconsin, on the maps below.
(2) Within these areas, the primary constituent elements of the physical or biological features essential to the
(i) Primary Constituent Element 1—Wet-mesic to dry tallgrass remnant untilled prairies or remnant moist meadows containing:
(A) A predominance of native grasses and native flowering forbs;
(B) Undisturbed (untilled) glacial soil types including, but not limited to, loam, sandy loam, loamy sand, gravel, organic soils (peat), or marl that provide the edaphic features conducive to Poweshiek skipperling larval survival and native-prairie vegetation;
(C) If present, depressional wetlands or low wet areas, within or adjacent to prairies that provide shelter from high summer temperatures and fire;
(D) If present, trees or large shrub cover less than 5 percent of area in dry prairies and less than 25 percent in wet-mesic prairies and prairie fens; and
(E) If present, nonnative invasive plant species occurring in less than 5 percent of area.
(ii) Primary Constituent Element 2—Prairie fen habitats containing:
(A) A predominance of native grasses and native flowering forbs;
(B) Undisturbed (untilled) glacial soil types including, but not limited to, organic soils (peat), or marl that provide the edaphic features conducive to Poweshiek skipperling larval survival and native-prairie vegetation;
(C) Depressional wetlands or low wet areas, within or adjacent to prairies that provide shelter from high summer temperatures and fire;
(D) Hydraulic features necessary to maintain prairie fen groundwater flow and prairie fen plant communities;
(E) If present, trees or large shrub cover less than 25 percent of the unit; and
(F) If present, nonnative invasive plant species occurring in less than 5 percent of area.
(iii) Primary Constituent Element 3—Native grasses and native flowering forbs for larval and adult food and shelter, specifically:
(A) At least one of the following native grasses available to provide larval food and shelter sources during Poweshiek skipperling larval stages: Prairie dropseed
(B) At least one of the following forbs in bloom to provide nectar and water sources during the Poweshiek skipperling flight period: Purple coneflower
(iv) Primary Constituent Element 4—Dispersal grassland habitat that is within 1 km (0.6 mi) of native high-quality remnant prairie (as defined in Primary Constituent Element 1) that connects high-quality wet-mesic to dry tallgrass prairies, moist meadows, or prairie fen habitats. Dispersal grassland habitat consists of the following physical characteristics appropriate for supporting Poweshiek skipperling dispersal: Undeveloped open areas dominated by perennial grassland with limited or no barriers to dispersal including tree or shrub cover less than 25 percent of the area and no row crops such as corn, beans, potatoes, or sunflowers.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on November 2, 2015.
(4)
(5) Iowa, Minnesota, North Dakota, and South Dakota index map follows:
(6) Michigan and Wisconsin index map follows:
(7) PS Iowa Unit 1, Howard County, Iowa. Map of PS Iowa Unit 1 follows:
(8) PS Iowa Unit 2, Cerro Gordo County, Iowa. Map of PS Iowa Unit 2 follows:
(9) PS Iowa Units 3, 4, and 7, Dickinson County, Iowa. Map of PS Iowa Units 3, 4, and 7 follows:
(10) PS Iowa Unit 5, Osceola County, Iowa. Map of PS Iowa Unit 5 follows:
(11) PS Iowa Unit 6, Dickinson County, Iowa. Map of PS Iowa Unit 6 follows:
(12) PS Iowa Unit 8, Osceola County, Iowa. Map of PS Iowa Unit 8 follows:
(13) PS Iowa Unit 9, Dickinson County, Iowa. Map of PS Iowa Unit 9 follows:
(14) PS Iowa Unit 10, Kossuth County, Iowa. Map of PS Iowa Unit 10 follows:
(15) PS Iowa Unit 11, Emmet County, Iowa. Map of PS Iowa Unit 11 follows:
(16) PS Michigan Unit 1, Oakland County, Michigan. Map of PS Michigan Unit 1 follows:
(17) PS Michigan Units 2 and 3, Oakland County, Michigan. Map of PS Michigan Units 2 and 3 follows:
(18) PS Michigan Unit 4, Oakland County, Michigan. Map of PS Michigan Unit 4 follows:
(19) PS Michigan Unit 5, Livingston County, Michigan. Map of PS Michigan Unit 5 follows:
(20) PS Michigan Unit 6, Washtenah County, Michigan. Map of PS Michigan Unit 6 follows:
(21) PS Michigan Unit 7, Lenawee County, Michigan. Map of PS Michigan Unit 7 follows:
(22) PS Michigan Units 8 and 9, Jackson and Hillsdale Counties, Michigan. Map of PS Michigan Units 8 and 9 follows:
(23) PS Minnesota Unit 1, Pope County, Minnesota. Map of PS Minnesota Unit 1 follows:
(24) PS Minnesota Units 2 and 3, Murray County, Minnesota. Map of PS Minnesota Units 2 and 3 follows:
(25) PS Minnesota Units 4 and 18, Clay County, Minnesota. Map of PS Minnesota Units 4 and 18 follows:
(26) PS Minnesota Unit 5, Clay County, Minnesota. Map of PS Minnesota Unit 5 follows:
(27) PS Minnesota Unit 6, Norman County, Minnesota. Map of PS Minnesota Unit 6 follows:
(28) PS Minnesota Unit 7, Lincoln and Pipestone Counties, Minnesota. Map of PS Minnesota Unit 7 follows:
(29) PS Minnesota Units 8 and 9, Pipestone County, Minnesota. Map of PS Minnesota Units 8 and 9 follows:
(30) PS Minnesota Unit 10, Swift and Chippewa Counties, Minnesota. Map of PS Minnesota Unit 10 follows:
(31) PS Minnesota Unit 11, Wilkin County, Minnesota. Map of PS Minnesota Unit 11 follows:
(32) PS Minnesota Unit 12, Lyon County, Minnesota. Map of PS Minnesota Unit 12 follows:
(33) PS Minnesota Unit 13, Lac Qui Parle County, Minnesota. Map of PS Minnesota Unit 13 follows:
(34) PS Minnesota Unit 14, Douglas County, Minnesota. Map of PS Minnesota Unit 14 follows:
(35) PS Minnesota Unit 15, Mahnomen County, Minnesota. Map of PS Minnesota Unit 15 follows:
(36) PS Minnesota Unit 16, Cottonwood County, Minnesota. Map of PS Minnesota Unit 16 follows:
(37) PS Minnesota Unit 17, Pope County, Minnesota. Map of PS Minnesota Unit 17 follows:
(38) PS Minnesota Unit 19, Kittson County, Minnesota. Map of PS Minnesota Unit 19 follows:
(39) PS Minnesota Unit 20, Polk County, Minnesota. Map of PS Minnesota Unit 20 follows:
(40) PS North Dakota Units 1 and 2, Richland County, North Dakota. Map of PS North Dakota Units 1 and 2 follows:
(41) PS South Dakota Unit 1, Marshall County, South Dakota. Map of PS South Dakota Unit 1 follows:
(42) PS South Dakota Unit 2, Brookings County, South Dakota. Map of PS South Dakota Unit 2 follows:
(43) PS South Dakota Units 3 and 5, Deuel County, South Dakota. Map of PS South Dakota Units 3 and 5 follows:
(44) PS South Dakota Unit 4, Grant County, South Dakota. Map of PS South Dakota Unit 4 follows:
(45) PS South Dakota Unit 6, Roberts County, South Dakota. Map of PS South Dakota Unit 6 follows:
(46) PS South Dakota Unit 7, Roberts County, South Dakota. Map of PS South Dakota Unit 7 follows:
(47) PS South Dakota Unit 8, Roberts County, South Dakota. Map of PS South Dakota Unit 8 follows:
(48) PS South Dakota Units 15 and 16, Day County, South Dakota. Map of PS South Dakota Units 15 and 16 follows:
(49) PS South Dakota Unit 17, Moody County, South Dakota. Map of PS South Dakota Unit 17 follows:
(50) PS South Dakota Unit 18, Marshall County, South Dakota. Map of PS South Dakota Unit 18 follows:
(51) PS Wisconsin Unit 1, Waukesha County, Wisconsin. Map of PS Wisconsin Unit 1 follows:
(52) PS Wisconsin Unit 2, Green Lake County, Wisconsin. Map of PS Wisconsin Unit 2 follows:
Centers for Medicare & Medicaid Services (CMS), HHS.
Proposed rule.
This proposed rule would significantly revise the Medicare payment system for clinical diagnostic laboratory tests and would implement other changes required by section 216 of the Protecting Access to Medicare Act of 2014.
To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on November 24, 2015.
In commenting, please refer to file code CMS-1621-P. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
You may submit comments in one of four ways (please choose only one of the ways listed):
1.
2.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
4.
a. For delivery in Washington, DC— Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201.
(Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without Federal government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)
b. For delivery in Baltimore, MD— Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244-1850.
If you intend to deliver your comments to the Baltimore address, call telephone number (410) 786-7195 in advance to schedule your arrival with one of our staff members.
Comments erroneously 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
Marie Casey, (410) 786-7861 or Karen Reinhardt (410) 786-0189 for issues related to the local coverage determination process for clinical diagnostic laboratory tests.
Valerie Miller, (410) 786-4535 or Sarah Harding, (410) 786-4001 for all other issues.
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.
To assist readers in referencing sections contained in this document, we are providing the following Table of Contents.
Because of the many terms to which we refer by acronym in this proposed rule, we are listing these abbreviations and their corresponding terms in alphabetical order below:
Since 1984, Medicare has paid for clinical diagnostic laboratory tests (CDLTs) on the Clinical Laboratory Fee Schedule (CLFS) under section 1833(h) of the Social Security Act (the Act). Section 216(a) of the Protecting Access to Medicare Act of 2014 (PAMA) (Pub. L. 113-93, enacted on April 1, 2014) added section 1834A to the Act. This statute requires extensive revisions to the Medicare payment, coding, and coverage requirements for CDLTs. In this proposed rule, we present our specific proposals for implementing the requirements of section 1834A of the Act.
Section 1834A of the Act significantly changes how CMS will set Medicare payment rates for CDLTs, which are paid for on the CLFS. Applicable laboratories will be required to report to CMS certain information about the payment rates paid by private payors for each CDLT and the corresponding volumes of such tests furnished during a period of time specified by the Secretary of the Department of Health and Human Services (the Secretary). In general, with certain designated exceptions, the statute requires that the payment amount for CDLTs furnished on or after January 1, 2017, be equal to the weighted median of private payor rates determined for the test, based on certain data reported by laboratories during a specified data collection period. Different reporting and payment requirements will apply to a subset of CDLTs that are determined to be advanced diagnostic laboratory tests (ADLTs). The most significant proposed policies in this proposed rule include the following (more detailed descriptions follow the bulleted list):
• The definition of “applicable laboratory” (the entities that must report applicable information).
• The definition of “applicable information” (the specific data that must be reported).
• The definition of an ADLT.
• Data collection and data reporting.
• The schedule for reporting applicable information to CMS.
• Data integrity.
• Confidentiality and public release of limited data.
• Coding for certain CDLTs.
• The payment methodology for CDLTs.
• The local coverage determination (LCD) process and the designation of Medicare Administrative Contractors (MACs) for laboratory tests.
Under the authority of section 1834A(a)(2) of the Act, in section II.A of this proposed rule, we are proposing to define an “applicable laboratory” as a laboratory that receives more than 50 percent of its Medicare revenues from 42 CFR part 414, subparts G and B (that is, for services that are paid by Medicare under the CLFS and the Physician Fee Schedule (PFS)) in a data collection period. We also propose that if a laboratory receives less than $50,000 in Medicare revenues in a data collection period from 42 CFR part 414, subpart G (that is, for services that are paid by Medicare on the CLFS), it would be excluded from the definition of an applicable laboratory. In addition, we are proposing to define applicable laboratories at the Taxpayer Identification Number (TIN) level rather than the National Provider Identifier (NPI) level.
The statute requires an applicable laboratory to report the following applicable information for each test on the CLFS it performs: (1) The payment rate that was paid by each private payor for each test during the data collection period; and (2) the volume of such tests for each such payor. As discussed in section II.B., we propose to use the term “private payor rate” in the context of applicable information, instead of “payment rate,” in order to minimize confusion because we typically use the term payment rate to generically refer to the amount paid under the CLFS. We propose that the private payor rate reflects the price for a test prior to application of any patient deductible and coinsurance amounts. We are also proposing that only applicable laboratories may report applicable information.
Section 1834A(d)(5) of the Act specifies criteria for defining an ADLT (discussed in section II.C.) and authorizes the Secretary to establish additional criteria. At this time, we are only proposing to apply the criteria specified in statute and are not proposing any additional criteria under the statutory authority conferred upon the Secretary.
In section II.D. of this proposed rule, for the initial data collection period, we propose that applicable laboratories must report applicable information to CMS for the period of July 1, 2015, through December 31, 2015. All subsequent data collection periods would cover a full calendar year (CY). Further, we are proposing that all applicable information, except for new ADLTs, would be due to CMS by March 31 of the year following the data collection period. We also propose that the applicable information for new ADLTs must be reported to CMS by the end of the second quarter of the new ADLT initial period.
We propose to apply a civil monetary penalty (CMP) to an applicable laboratory that fails to report or that makes a misrepresentation or omission in reporting applicable information (described in section II.E.). We propose to require all data to be certified by the President, Chief Executive Officer (CEO), or Chief Financial Officer (CFO) of a laboratory before it is submitted to CMS. As required by section 1834A(a)(10) of the Act, certain information disclosed by a laboratory under section 1834A(a) of the Act is confidential and may not be disclosed by the Secretary or a Medicare contractor in a form that reveals the identity of a specific payor or laboratory, or prices, charges or payments made to any such laboratory,
We propose to use G codes, which are part of the Healthcare Common Procedure Coding System (HCPCS) coding system CMS uses for programmatic purposes, to temporarily identify new ADLTs and new laboratory tests that are cleared or approved by the Food and Drug Administration (FDA). The temporary codes would be in effect for up to 2 years until a permanent HCPCS code is established except if the Secretary determines it is appropriate to extend the use of the temporary code.
As required by section 1834A(b) of the Act, payment amounts for laboratory tests on the CLFS will be determined by calculating a weighted median of private payor rates using reported private payor rates and associated volume (number of tests). For tests that were paid on the CLFS prior to the implementation of section 1834A of the Act, PAMA requires that any reduction in payment amount be phased in over the first 6 years of payment under the new system. For new ADLTs, initial payment will be based on the actual list charge of the test for 3 calendar quarters; thereafter, the payment rate will be determined using the weighted median of private payor rates and associated volume (number of tests) reported every year. For new and existing tests for which we receive no applicable information to calculate a weighted median, we propose that payment rates be determined by using crosswalking or gapfilling methods. These methods of determining payment are discussed in section II.H. of this proposed rule.
Section 1834A(g)(2) of the Act authorizes the Secretary to designate one or more (not to exceed four) MACs to establish coverage policies, or establish coverage policies and process claims, for CDLTs. As noted in section II.I. of this proposed rule, we are requesting public comment on the benefits and disadvantages of implementing this discretionary authority before making proposals on this topic. We are therefore making no proposals with regard to this topic at this time.
In section V. of this proposed rule, we provide a regulatory impact analysis that, to the best of our ability, describes the expected impact of the proposals described in this proposed rule. The proposed policies, which would implement new section 1834A of the Act, include a process for collecting applicable information from applicable laboratories on the rates that are paid by private payors for CDLTs and their associated volume. We note that, because such data are not yet available, we are limited in our ability to provide estimated impacts of the proposed payment policies under different scenarios.
Currently, under sections 1832, 1833(a), (b), and (h), and 1861 of the Act, CDLTs furnished on or after July 1, 1984 in a physician's office, by an independent laboratory, or in limited circumstances by a hospital laboratory for its outpatients or non-patients are paid under the Medicare CLFS, with certain exceptions. Under this section, tests are paid the lesser of (1) the billed amount, (2) the fee schedule amount established by Medicare contractors, or (3) a National Limitation Amount (NLA), which is a percentage of the median of all the state and local fee schedules.
Under the current system, the CLFS amounts are updated for inflation based on the percentage change in the Consumer Price Index for all urban consumers (CPI-U) and reduced by a multi-factor productivity adjustment (see section 1833(h)(2)(A) of the Act). For CY 2015, under section 1833(h)(2)(A)(iv)(II) of the Act, we also reduced the update amount by 1.75 percentage points. In the past, we have implemented other adjustments or did not apply the change in the CPI-U to the CLFS for certain years in accordance with statutory mandates. We do not otherwise update or change the payment amounts for tests on the CLFS. Generally, coinsurance and deductibles do not apply to CDLTs paid under the CLFS.
For any CDLT for which a new or substantially revised HCPCS code has been assigned on or after January 1, 2005, we determine the basis for and amount of payment based on one of two methodologies—crosswalking and gapfilling (see section 1833(h)(8) of the Act and § 414.500 through § 414.509). The crosswalking methodology is used when a new test is comparable in terms of test methods and resources to an existing test, multiple existing test codes, or a portion of an existing test code on the CLFS. In such a case, CMS assigns the new test code the local fee schedule amount and the NLA of the existing test and pays for the new test code at the lesser of the local fee schedule amount or the NLA. Gapfilling is used when no comparable test exists on the CLFS. Under gapfilling, MACs establish local amounts for the new test code using the following sources of information, if available: (1) Charges for the test and routine discounts to charges; (2) resources required to perform the test; (3) payment amounts determined by other payors; and (4) charges, payment amounts, and resources required for other tests that may be comparable or otherwise relevant. Under this gapfilling methodology, an NLA is calculated after a year of employing a local amount on the basis of the median amount for the test code across all MACs. Once established, in most cases, we can only reconsider the crosswalking or gapfilling basis and/or amount of payment for new tests for one additional year after the basis or payment is initially set. Once the reconsideration process is complete, payment cannot be further adjusted (except by a change in the CPI-U, the productivity adjustment, and any other adjustments required by statute).
In 2014, Medicare paid approximately $8 billion for CDLTs. As the CLFS has grown from approximately 400 tests to over 1,300 tests, some test methods have become outdated and some tests may no longer be priced appropriately. For example, some tests have become faster and cheaper to perform, with little need for manual interaction by laboratory technicians, while more expensive and complex tests have been developed that bear little resemblance to the simpler tests that were performed at the inception of the CLFS.
Another complexity we must consider is the various types of laboratories that bill Medicare under the CLFS. Medicare-enrolled laboratories include a mix of national chains that furnish a large menu of tests, and small regional operations that may concentrate on a specific population, such as nursing home residents, or that have a small menu of tests. Physicians' offices also perform certain tests that are paid under the CLFS.
Section 1834A of the Act, as added by section 216(a) of PAMA, requires extensive revisions to the Medicare payment, coding, and coverage requirements for CDLTs. In this section, we describe the major provisions of section 1834A of the Act, which we are proposing to implement in this proposed rule.
Section 1834A(a)(1) of the Act requires reporting of private payor payment rates for CDLTs by applicable laboratories to establish Medicare payment rates for tests paid under the
Section 1834A(a)(3)(A) of the Act defines the term “applicable information” as the payment rate that was paid by each private payor for each CDLT and the volume of such tests for each such payor for the data collection period. Under section 1834A(a)(5) of the Act, the payment rate reported by a laboratory must reflect all discounts, rebates, coupons, and other price concessions, including those described in section 1847A(c)(3) of the Act regarding the average sales price for Part B drugs or biologicals. Section 1834A(a)(6) of the Act further specifies that, where an applicable laboratory has more than one payment rate for the same payor for the same test, or more than one payment rate for different payors for the same test, the applicable laboratory must report each such payment rate and the volume for the test at each such rate. This paragraph also provides that, beginning January 1, 2019, the Secretary may establish rules to aggregate reporting in situations where a laboratory has more than one payment rate for the same payor for the same test, or more than one payment rate for different payors for the same test. Under section 1834A(a)(3)(B) of the Act, information about laboratory tests for which payment is made on a capitated basis or other similar payment basis is not considered “applicable information” and is therefore excluded from the reporting requirements.
Section 1834A(a)(4) of the Act defines the term “data collection period” as a period of time, such as a previous 12-month period, specified by the Secretary. Section 1834A(a)(7) of the Act requires that an officer of each laboratory must certify the accuracy and completeness of the information reported by laboratories. Section 1834A(a)(8) of the Act defines the term “private payor” as a health insurance issuer and a group health plan (as such terms are defined in section 2791 of the Public Health Service Act), a Medicare Advantage plan under Medicare Part C, or a Medicaid managed care organization (as defined in section 1903(m) of the Act).
Section 1834A(a)(9)(A) of the Act authorizes the Secretary to apply a CMP in cases where the Secretary determines that an applicable laboratory has failed to report, or made a misrepresentation or omission in reporting, applicable information under section 1834A(a) of the Act for a CDLT. In these cases, the Secretary may apply a CMP in an amount of up to $10,000 per day for each failure to report or each such misrepresentation or omission. Section 1834A(a)(9)(B) of the Act further provides that the provisions of section 1128A of the Act (other than subsections (a) and (b)) shall apply to a CMP under this paragraph in the same manner as they apply to a CMP or proceeding under section 1128A(a) of the Act. Section 1128A of the Act governs CMPs that apply in general under federal health care programs. Thus, the provisions of section 1128A of the Act (specifically sections 1128A(c) through 1128A(n) of the Act) apply to a CMP under section 1834A(a)(9) of the Act in the same manner as they apply to a CMP or proceeding under section 1128A(a) of the Act. That is, the existing CMP provisions apply to the laboratory data collection process under 1834A of the Act, just as the CMP provisions are applied now to other processes, such as the Medicare Part B drug data collection process under sections 1847A and 1927 of the Act.
Section 1834A(a)(10) of the Act addresses the confidentiality of the information reported to the Secretary. Specifically, this paragraph provides that, notwithstanding any other provision of law, information disclosed by a laboratory under the data reporting requirements is confidential and shall not be disclosed by the Secretary or a Medicare contractor in a form that discloses the identity of a specific payor or laboratory, or prices charged, or payments made to any such laboratory, except: (1) As the Secretary determines to be necessary to carry out this section; (2) to permit the Comptroller General to review the information provided; (3) to permit the Director of the Congressional Budget Office to review the information provided; and (4) to permit the Medicare Payment Advisory Commission (MedPAC) to review the information provided. Section 1834A(a)(11) of the Act further states that a payor shall not be identified on information reported under the data reporting requirements, and that the name of an applicable laboratory shall be exempt from disclosure under the Freedom of Information Act, 5 U.S.C. 552(b)(3).
Section 1834A(a)(12) of the Act requires the Secretary to establish parameters for the data collection under section 1834A(a) of the Act through notice and comment rulemaking no later than June 30, 2015.
Section 1834A(b) of the Act establishes a new methodology for determining Medicare payment rates for CDLTs. Section 1834A(b)(1)(A) of the Act provides that, in general, the payment amount for a CDLT (except for new ADLTs and new CDLTs) furnished on or after January 1, 2017, shall be equal to the weighted median determined under section 1834A(b)(2) of the Act for the test for the most recent data collection period. Section 1834A(b)(1)(B) of the Act specifies that the payment amounts established under this methodology shall apply to a CDLT furnished by a hospital laboratory if the test is paid for separately, and not as part of a bundled payment under the hospital outpatient prospective payment system (OPPS) (section 1833(t) of the Act). Section 1834A(b)(2) of the Act provides that the Secretary shall calculate a weighted median for each test for the data collection period by arraying the distribution of all payment rates reported for the period for each test weighted by volume for each payor and each laboratory. Section 1834A(b)(4)(A) of the Act states that the payment amounts established under this methodology for a year following a data collection period shall continue to apply until the year following the next data collection period. Moreover, section 1834A(b)(4)(B) of the Act specifies that the payment amounts established under section 1834A of the Act shall not be subject to any adjustment (including any geographic adjustment, budget neutrality adjustment, annual update, or other adjustment).
Section 1834A(b)(3) of the Act requires a phase-in of any reduction in payment amounts for a CDLT for each year from 2017 through 2022. Specifically, section 1834A(b)(3)(A) of the Act requires that the payment amounts determined under the new methodology for a CDLT for each of 2017 through 2022 shall not result in a reduction in payments for that test for the year that is greater than the “applicable percent” of the payment amount for the test for the preceding year. Section 1834A(b)(3)(B) of the Act defines these maximum applicable
Section 1834A(b)(5) of the Act increases by $2 the nominal fee that would otherwise apply under section 1833(h)(3)(A) of the Act for a sample collected from an individual in a Skilled Nursing Facility (SNF) or by a laboratory on behalf of a Home Health Agency (HHA). This provision has the effect of raising the sample collection fee from $3 to $5 when the sample is being collected from an individual in a SNF or a laboratory on behalf of an HHA.
Section 1834A(d)(5) of the Act defines an ADLT to mean a CDLT covered under Medicare Part B that is offered and furnished only by a single laboratory and not sold for use by a laboratory other than the original developing laboratory (or a successor owner) and meets one of the following criteria: (1) The test is an analysis of multiple biomarkers of deoxyribonucleic acid (DNA), ribonucleic acid (RNA), or proteins combined with a unique algorithm to yield a single patient-specific result; (2) the test is cleared or approved by the FDA; or (3) the test meets other similar criteria established by the Secretary.
Section 1834A(d)(1)(A) of the Act provides that, in the case of an ADLT for which payment has not been made under the CLFS prior to April 1, 2014 (the date of enactment of PAMA), during an initial 3 quarters, the payment amount for the test shall be based on the actual list charge for the test. Section 1834A(d)(1)(B) of the Act defines the term “actual list charge” for purposes of this provision to mean the publicly available rate on the first day at which the test is available for purchase by a private payor. For the reporting requirements for such tests, under section 1834A(d)(2) of the Act, an applicable laboratory will initially be required to comply with the data reporting requirements under section 1834A(a) of the Act by the last day of the second quarter (Q2) of the initial 3 quarter period. Section 1834A(d)(3) of the Act requires that, after this initial period, the data reported under paragraph 1834A(d)(2) of the Act shall be used to establish the payment amount for an ADLT described in section 1834A(d)(1)(A) of the Act using the payment methodology for CDLTs under section 1834A(b) of the Act. This payment amount shall continue to apply until the year following the next data collection period.
Section 1834A(d)(4) of the Act addresses recoupment of payment for new ADLTs if the actual list charge exceeds the market rate. Specifically, it provides that, if the Secretary determines after the initial period that the payment amount for a new ADLT based on the actual list charge was greater than 130 percent of the payment rate that is calculated based on applicable information using the payment methodology for CDLTs under section 1834A(b) of the Act, the Secretary shall recoup the difference for tests furnished during that initial period.
Section 1834A(c) of the Act provides for payment of new tests that are not ADLTs. Specifically, section 1834A(c)(1) of the Act provides that, in the case of a CDLT that is assigned a new or substantially revised HCPCS code on or after April 1, 2014 (the date of enactment of PAMA), and which is not an ADLT (as defined in section 1834A(d)(5) of the Act), during an initial period until payment rates under section 1834A(b) of the Act are established for the test, payment for the test shall be determined on the basis of crosswalking or gapfilling. Section 1834A(c)(1)(A) of the Act requires application of the crosswalking methodology described in § 414.508(a) (or any successor regulation) to the most appropriate existing test under the CLFS during that period. Section 1834A(c)(1)(B) of the Act provides that, if no existing test is comparable to the new test, the gapfilling process described in section 1834A(c)(2) of the Act shall be applied. Section 1834A(c)(2) of the Act states that this gapfilling process must take into account the following sources of information to determine gapfill amounts, if available: charges for the test and routine discounts to charges; resources required to perform the test; payment amounts determined by other payors; charges, payment amounts, and resources required for other tests that may be comparable or otherwise relevant; and other criteria the Secretary determines to be appropriate. Section 1834A(c)(3) of the Act further requires that, in determining the payment amount under crosswalking or gapfilling processes, the Secretary must consider recommendations from the panel established under section 1834A(f)(1) of the Act. In addition, section 1834A(c)(4) of the Act provides that, in the case of a new CDLT that is not an ADLT, the Secretary shall make available to the public an explanation of the payment rate for the new test, including an explanation of how the gapfilling criteria and panel recommendations described in paragraphs (2) and (3) of section 1834A(c) of the Act are applied.
Section 1834A(e) of the Act sets out coding requirements for certain new and existing tests. Specifically, section 1834A(e)(1)(A) of the Act requires the Secretary to adopt temporary HCPCS codes to identify new ADLTs (as defined in section 1834A(d)(5) of the Act) and new laboratory tests that are cleared or approved by the FDA. Section 1834A(e)(1)(B) of the Act addresses the duration of these temporary new codes. Section 1834A(e)(1)(B)(i) of the Act requires the temporary code to be effective until a permanent HCPCS code is established (but not to exceed 2 years), subject to an exception under section 1834A(e)(1)(B)(ii) of the Act that permits the Secretary to extend the temporary code or establish a permanent HCPCS code, as the Secretary determines appropriate.
Section 1834A(e)(2) of the Act addresses coding for certain existing tests. This section requires that, not later than January 1, 2016, the Secretary shall assign a unique HCPCS code and publicly report the payment rate for each existing ADLT (as defined in section 1834A(d)(5) of the Act) and each existing CDLT that is cleared or approved by the FDA for which payment is made under Medicare Part B as of April 1, 2014 (PAMA's enactment date), if such test has not already been assigned a unique HCPCS code. In addition, section 1834A(e)(3) of the Act requires the establishment of unique identifiers for certain tests. Specifically, for purposes of tracking and monitoring, if a laboratory or a manufacturer requests a unique identifier for an ADLT or a laboratory test that is cleared or approved by the FDA, the Secretary shall utilize a means to uniquely track such test through a mechanism such as a HCPCS code or modifier.
Section 1834A(f) of the Act addresses requirements for input from clinicians and technical experts on issues related to CDLTs. In particular, section 1834A(f)(1) of the Act requires the Secretary to consult with an expert outside advisory panel that is to be established by the Secretary no later than July 1, 2015. This advisory panel must include an appropriate selection of individuals with expertise, which may include molecular pathologists, researchers, and individuals with expertise in clinical laboratory science or health economics, or in issues related to CDLTs, which may include the development, validation, performance,
Section 1834A(f)(3) of the Act requires that the Secretary continue to convene the annual meeting described in section 1833(h)(8)(B)(iii) of the Act after the implementation of section 1834A of the Act, for purposes of receiving comments and recommendations (and data on which the recommendations are based) on the establishment of payment amounts under section 1834A of the Act.
Section 1834A(g) of the Act addresses issues related to coverage of CDLTs. Section 1834A(g)(1)(A) of the Act requires that coverage policies for CDLTs, when issued by a MAC, be issued in accordance with the LCD process, which CMS has outlined in Chapter 13 of the Medicare Program Integrity Manual.
In addition, section 1834A(g)(1)(A) of the Act states that the processes governing the appeal and review of CDLT-related LCDs shall continue to follow the general rules for LCD review established by CMS in regulations at 42 CFR part 426.
Section 1834A(g)(1)(B) of the Act states that the CDLT-related LCD provisions referenced in section 1834A(g) do not apply to the national coverage determination (NCD) process (as defined in section 1869(f)(1)(B) of the Act). Section 1834A(g)(1)(C) of the Act specifies that the provisions pertaining to the LCD process for CDLTs, including appeals of LCDs, shall apply to coverage policies issued on or after January 1, 2015.
In addition, section 1834A(g)(2) of the Act authorizes the Secretary to designate one or more (not to exceed four) MACs to either establish LCDs for CDLTs, or to both establish CDLT-related LCDs and process Medicare claims for payment for CDLTs, as determined appropriate by the Secretary.
Section 1834A(h)(1) of the Act states that there shall be no administrative or judicial review under sections 1869, 1878, or otherwise, of the establishment of payment amounts under section 1834A of the Act. Section 1834A(h)(2) of the Act provides that the Paperwork Reduction Act in chapter 35 of title 44 of the U.S.C. shall not apply to information collected under section 1834A of the Act.
Section 1834A(i) of the Act states that during the period beginning on the date of enactment of section 1834A of the Act (April 1, 2014) and ending on December 31, 2016, the Secretary shall use the methodologies for pricing, coding, and coverage for ADLTs in effect on the day before this period. This may include crosswalking or gapfilling methods.
In this section of the proposed rule, we outline our proposals on several topics, including, among others: The definitions of applicable laboratory and applicable information; the definitions of ADLTs and new ADLTs; the data collection period, and data reporting requirements; data integrity; confidentiality and public release of limited data; coding for certain CDLTs and ADLTs; payment methodology; and coverage.
Section 1834A(a)(1) of the Act requires an “applicable laboratory” to report applicable information for a data collection period for each CDLT the laboratory furnishes during the period for which payment is made under Medicare Part B. This reporting begins January 1, 2016, and takes place every 3 years thereafter for CDLTs, and every year thereafter for ADLTs. Section 1834A(a)(2) of the Act defines an applicable laboratory as a laboratory that receives a majority of its Medicare revenues from section 1834A and section 1833(h) (the statutory authorities for the CLFS) or section 1848 (the statutory authority for the PFS) of the Act. Section 1834A(a)(2) of the Act also allows the Secretary to establish a low volume or low expenditure threshold for excluding a laboratory from the definition of an applicable laboratory, as the Secretary determines appropriate.
In establishing a regulatory definition for “applicable laboratory,” we considered the following issues: (1) How to define “laboratory;” (2) what it means to receive a majority of Medicare revenues from sections 1834A, 1833(h), or 1848 of the Act; (3) how to apply the majority of Medicare revenues criterion; and (4) whether to establish a low volume or low expenditure threshold to exclude an entity from the definition of applicable laboratory.
First, we consider what a laboratory is, and we incorporate our understanding of that term in our proposed definition of applicable laboratory. The CLFS applies to a wide variety of laboratories (for example, national chains, physician offices, hospital laboratories, etc.), and it is important that we define laboratory broadly enough to encompass every laboratory type that is subject to the CLFS.
We searched for existing statutory definitions of “laboratory” that could be appropriate to use for the revised CLFS. However, section 1834A of the Act does not define laboratory, nor is it defined elsewhere in the Medicare statute. So we looked to the Clinical Laboratory Improvement Amendments of 1988 (CLIA) for a definition. CLIA applies to all laboratories performing testing on human specimens for a health purpose, including but not limited to those seeking payment under the Medicare and Medicaid programs (42 CFR 493.1). To be paid under Medicare, a laboratory must be CLIA-certified (42 CFR 410.32(d) and part 493). Therefore, we believe it is appropriate to use the CLIA definition of laboratory at § 493.2 for our purposes of defining laboratory within the term applicable laboratory. We did not consider alternative definitions of laboratory as we were not able to identify alternative defainitions that would be appropriate for consideration under section 1834A of the Social Security Act. Nevertheless, we welcome public comments on alternative definitions of a laboratory that may be appropriate for this purpose.
CLIA defines laboratory as a facility for the biological, microbiological, serological, chemical, immunohematological, hematological, biophysical, cytological, pathological, or other examination of materials derived from the human body for the purpose of providing information for the diagnosis, prevention, or treatment of any disease or impairment of, or the assessment of the health of, human beings. These examinations also include procedures to determine, measure, or otherwise
We believe the same policy is also appropriate for our purposes. In addition, the services of those facilities that only collect or prepare specimens or serve as a mailing service are not paid on the CLFS. We propose to incorporate the CLIA regulatory definition of laboratory into our proposed definition of applicable laboratory in § 414.502 by referring to the CLIA definition at § 493.2 to indicate what we mean by laboratory.
Under the revised payment system for CDLTs, an applicable laboratory is the entity that must report applicable information to CMS. However, not all entities that meet the CLIA regulatory definition of laboratory would be applicable laboratories under our proposal. Here, we discuss which entities we believe should be required to report applicable information.
Laboratory business models vary throughout the industry. For example, some laboratories are large national networks with multiple laboratories under one parent entity. Some laboratories are single, independent laboratories that operate individually. Some entities, such as hospitals or large practices, include laboratories as well as other types of providers and suppliers. We propose that an applicable laboratory is an entity that itself is a laboratory under the CLIA definition or is an entity that includes a laboratory (for example, a health care system that is comprised of one or more hospitals, physician offices, and reference laboratories). Within our proposed definition of applicable laboratory, we would indicate that if the entity is not itself a laboratory, it has at least one component that is a laboratory, as defined in § 493.2.
Whether the applicable laboratory is itself a laboratory or is an entity that has at least one component that is a laboratory, the applicable laboratory is the entity that would be reporting applicable information. Entities that enroll in Medicare must provide a TIN, which we use to identify the entity of record that is authorized to receive Medicare payments. The TIN-level entity is the entity that reports tax-related information to the Internal Revenue Service (IRS). When an entity reports to the IRS, the entity and its components are all associated with that entity's TIN. We would rely on the TIN as the mechanism for defining the entity we consider to be the applicable laboratory. Therefore, we propose that the TIN-level entity is the applicable laboratory.
Each component of the entity that is a covered health care provider under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) regulations will have an NPI. The NPI is the HIPAA standard unique health identifier for health care providers adopted by HHS (45 CFR 162.406). Health care providers, which include laboratories that transmit any health information in electronic form in connection with a HIPAA transaction for which the Secretary has adopted a standard, are required to obtain NPIs and use them according to the NPI regulations at 45 CFR part 162, subpart D. When the TIN-level entity reports tax-related information to the IRS, it does so for itself and on behalf of its component NPI-level entities. We would indicate this in the definition of applicable laboratory by stating that the applicable laboratory is the entity that reports tax-related information to the IRS under a TIN with which all of the NPIs in the entity are associated. We also propose to define TIN and NPI in § 414.502 by referring to definitions already in the Code of Federal Regulations.
In making this proposal, we considered defining an applicable laboratory at the NPI level instead of the TIN level. Some stakeholders have indicated that because they bill Medicare by NPI and not TIN, the NPI is the most appropriate level for reporting applicable information to Medicare. However, the purpose of the revised Medicare payment system is to base CLFS payment amounts on private payor rates for CDLTs, which we expect would be negotiated at the level of the entity's TIN, as described previously, and not by individual laboratory locations at the NPI level. In industry meetings that occurred while developing this proposed rule, numerous stakeholders suggested that the TIN represents the entity negotiating pricing and is the entity in the best position to compile and report applicable information across its multiple NPIs when there are multiple NPIs associated with a TIN. We believe defining an applicable laboratory by TIN rather than by NPI will result in the same applicable information being reported, just at a higher level, and will require less reporting, and therefore, would be less burdensome to applicable laboratories. In addition to potentially being less burdensome, we do not believe reporting at the TIN level would affect or diminish the quality of the applicable information reported. To the extent the information is accurately reported, reporting at a higher organizational level should produce exactly the same applicable as reporting at a lower level. Therefore, we are proposing to define applicable laboratory by TIN rather than by NPI. However, we solicit public comments on this aspect of the applicable laboratory definition and on whether there are other possibly superior approaches to defining an applicable laboratory, including by NPI.
We also considered whether to separate the mechanics of reporting from the definition of an applicable laboratory. For example, we considered allowing or requiring a corporate entity with multiple TINs to provide applicable information for all of its TINs along with a list of component TINs. Under this approach, the corporate entity would report each distinct private payor rate and the associated volume across all component TINs instead of each component TIN reporting separately. Thus, if the same rate was paid by a private payor in two or more of the corporate entity's component TINs, the entity would report the private payor rate once and the associated sum of the volume of that test across the component TINs. We believe this approach may be operationally less burdensome than submitting separate data files by TIN or NPI. We also do not believe that such reporting would affect the quality of the applicable information because we should still arrive at the same weighted median for each test. We opted not to propose this option, however, because we are not yet familiar enough with the corporate governance of laboratories to know whether this even higher level of reporting would be a desirable or practical option for the industry and whether it would affect the quality of the applicable information we would receive. We welcome public comments on allowing a corporate entity with which multiple TINs are associated to report applicable information for all of its TINs, as we have described.
Next, we consider what it means for an applicable laboratory to receive a majority of Medicare revenues from sections 1834A, 1833(h), or 1848 of the Act. We would define Medicare revenues to be payments received from the Medicare program, which would include fee-for-service payments under Medicare Parts A and B, as well as Medicare Advantage payments under Medicare Part C, and prescription drug payments under Medicare Part D, and any associated Medicare beneficiary deductible or coinsurance amounts for
Moreover, for the entity evaluating whether it is an applicable laboratory, the “majority of Medicare revenues” determination would be based on the collective amount of its Medicare revenues received during the data collection period, whether the entity is a laboratory under § 493.2 or is not, but has at least one component that is. We propose that the determination of whether an entity is an applicable laboratory would be made across the entire entity, including all component NPI entities, and not just those NPI entities that are laboratories. We are proposing to specify in the definition of applicable laboratory that an applicable laboratory is an entity that receives, collectively with its associated NPI entities, more than 50 percent of its Medicare revenues from one or a combination of the following sources: 42 CFR part 414, subpart G; and 42 CFR part 414, subpart B. The regulatory citations we are proposing to include in the definition are the regulatory payment provisions that correspond to the three statutory provisions named in section 1834A(a)(2); that is, sections 1834A, 1833(h), and 1848 of the Act.
We note that section 1834A(a)(1) of the Act only mandates reporting from entities meeting the definition of an applicable laboratory. We believe the purpose of only mandating applicable laboratories to report applicable information is to ensure that we use only their applicable information to determine payment rates under the CLFS beginning January 1, 2017, and not information from entities that do not meet the definition of applicable laboratory. By specifying that only applicable laboratories must report applicable information, and specifying in the definition of applicable laboratory that an applicable laboratory must receive the majority of its Medicare revenues from PFS or CLFS services, we believe the statute intends to limit reporting primarily to independent laboratories and physician offices (other than those that meet the low expenditure or low volume threshold, if established by the Secretary) and not include other entities (such as hospitals, or other health care providers) that do not receive the majority of their revenues from PFS or CLFS services. For this reason, we are proposing to prohibit any entity that does not meet the definition of applicable laboratory from reporting applicable information to CMS, which we would reflect in paragraph (g) of the data reporting requirements in § 414.504.
We expect most entities that fall above or below the “majority of Medicare revenues” threshold will tend to maintain that status through the course of their business. However, it is conceivable that an entity could move from above to below the threshold, or vice-versa, through the course of its business so that, for example, for services furnished in one data collection period, an entity might be over the “majority of Medicare revenues” threshold, but below the threshold in the next data collection period. We propose that an entity that otherwise meets the criteria for being an applicable laboratory, would have to report applicable information if it is above the threshold in the given data collection period. Some entities will not know whether they exceed the threshold until after the data collection period is over; in that case, they would have to retroactively assess their Medicare revenues during the 3-month data reporting period. However, we expect that most entities will know whether they exceed the threshold long before the end of the data collection period. Under our proposal, an entity would need to reevaluate its status as to whether it falls above or below the “majority of Medicare revenues” threshold for every data collection period, that is, every year for ADLTs and every 3 years for all other CDLTs. This requirement would be reflected in the definition of applicable laboratory in § 414.502.
Finally, we are proposing to establish a low expenditure threshold for excluding an entity from the definition of applicable laboratory, as permitted under section 1834A(a)(2) of the Act, and we are including that threshold in our proposed definition of applicable laboratory in § 414.502. We believe it is important to achieve a balance between collecting sufficient data to calculate a weighted median that appropriately reflects the private market rate for a test, and minimizing the reporting burden for entities that receive a relatively small amount of revenues under the CLFS. We expect many of the entities that meet the low expenditure threshold will be physician offices and will have relatively low revenues for laboratory tests paid under the CLFS.
For purposes of determining the low expenditure threshold, we reviewed Medicare payment amounts for physician office laboratories and independent laboratories from CY 2013 Medicare CLFS claims data. Although the statute uses the term “expenditure,” in this discussion, we use the term “revenues” because, from the perspective of applicable laboratories, payments received from Medicare are revenues rather than expenditures, whereas expenditures refer to those same revenues, but from the perspective of Medicare (that is, to Medicare, those payments are expenditures). In our analysis, we assessed the number of billing physician office laboratories and independent laboratories that would otherwise qualify as applicable laboratories, but would be excluded from the definition under various revenue thresholds. We did not include in our analysis hospitals whose Medicare revenues are generally under section 1833(t) of the Act for outpatient services and section 1886(d) of the Act for inpatient services, as these entities are unlikely to meet the proposed definition of applicable laboratory.
We found that, with a $50,000 revenue threshold, the exclusion of data from physician office laboratories and independent laboratories with total CLFS revenues below that threshold, did not materially affect the quality and sufficiency of the data we needed to set rates. In other words, we were able to substantially reduce the number of
With this threshold, using Medicare utilization data, we estimate there are only 17 tests whose utilization is completely attributed to laboratories that would not be reporting because they fell below a $50,000 threshold. We understand that Medicare claims data are not representative of the volume of laboratory tests furnished in the industry as a whole; however, we believe this was the best information available to us for the purpose of determining a low expenditure threshold for this proposed rule. Therefore, we propose that any entity that would otherwise be an applicable laboratory, but that receives less than $50,000 in Medicare revenues under section 1834A and section 1833(h) of the Act for laboratory tests furnished during a data collection period, would not be an applicable laboratory for the subsequent data reporting period. In determining whether its Medicare revenues from sections 1834A and 1833(h) are at least $50,000, the entity would not include Medicare payments made to hospital laboratories for tests furnished for hospital inpatients or hospital outpatients. In other words, an entity would need to determine whether its Medicare revenues from laboratory tests billed on Form CMS 1500 (or its electronic equivalent) and paid under the current CLFS (under section 1833(h) of the Act) and the revised CLFS (under section 1834A of the Act) are at least $50,000. We are proposing that if an applicable laboratory receives, collectively with its associated NPI entities (which would include all types of NPI entities, not just laboratories), less than $50,000 in Medicare revenues for CLFS services paid on Form CMS 1500 (or its electronic equivalent), the entity would not be an applicable laboratory.
As discussed in section II.D.1., we are proposing an initial data collection period of July 1, 2015, through December 31, 2015 (all subsequent data collection periods would be a full calendar year). In conjunction with the shortened data collection period for 2015, we are proposing to specify that, during the data collection period of July 1, 2015, through December 31, 2015, to be an applicable laboratory, an entity must receive at least $25,000 of its Medicare revenues from the CLFS, as set forth in 42 CFR part 414, subpart G. During each subsequent data collection period, to be an applicable laboratory, an entity would have to receive at least $50,000 of its Medicare revenues from the CLFS, as set forth in 42 CFR part 414, subpart G.
As with the “majority of Medicare revenues” threshold, some entities will not know whether they meet the low expenditure threshold, that is, if they receive at least $50,000 in Medicare CLFS revenues in a data collection period (or $25,000 during the initial data collection period) until after the data collection period is over; in that case, they would have to retroactively assess their total Medicare CLFS revenues during the subsequent 3-month data reporting period. However, for many entities, it will be clear whether they exceed the low expenditure threshold even before the end of the data collection period. Under our proposal, an entity would need to reevaluate its status as to the $50,000 low expenditure threshold during each data collection period, that is, every year for ADLTs and every three years for all other CDLTs. We propose to codify the low expenditure threshold requirement as part of the definition of applicable laboratory in § 414.502.
We are not proposing a low volume threshold at this time. Once we obtain applicable information under the new payment system, however, we may decide to reevaluate the threshold options in future years and propose different or revised policies, as necessary, which we would do through notice and comment rulemaking.
In summary, an applicable laboratory means an entity that reports tax-related information to the IRS under a TIN with which all of the NPIs in the entity are associated. An applicable laboratory is either itself a laboratory, as defined in § 493.2, or, if it is not itself a laboratory, has at least one component that is. In a data collection period, an applicable laboratory must receive, collectively with its associated NPI entities, more than 50 percent of its Medicare revenues from either the CLFS or PFS. For the data collection period from July 1, 2015 through December 31, 2015, for purposes of calculating CY 2017 payment rates, the applicable laboratory must receive, collectively with its associated NPI entities, at least $25,000 of its Medicare revenues from the CLFS, and for all subsequent data collection periods, at least $50,000 of its Medicare revenues from the CLFS. We propose to codify this definition of applicable laboratory in § 414.502.
Section 1834A(a)(3) of the Act defines the term “applicable information” as (1) the payment rate that was paid by each private payor for a test during the data collection period, and (2) the volume of such tests for each such payor during the data collection period. Under section 1834A(a)(5) of the Act, the payment rate reported by a laboratory must reflect all discounts, rebates, coupons, and other price concessions, including those described in section 1847A(c)(3) of the Act relating to a manufacturer's average sales price for drugs or biologicals. Section 1834A(a)(6) of the Act states that if there is more than one payment rate for the same payor for the same test, or more than one payment rate for different payors for the same test, the applicable laboratory must report each payment rate and corresponding volume for the test. Section 1834A(a)(3)(B) of the Act provides that applicable information must not include information about a laboratory test for which payment is made on a capitated basis or other similar payment basis during the data collection period.
We are proposing to define applicable information in § 414.502 as, with respect to each CDLT for a data collection period, each private payor rate, the associated volume of tests performed corresponding to each private payor rate, the specific HCPCS code associated with the test, and not information about a test for which payment is made on a capitated basis.
Several terms and concepts in our proposed definition require explanation. First, we address the term “private payor rate.” The statutory definition of applicable information refers to “payment rate” as opposed to private payor rate; however, we often use payment rate generically to refer to the amount paid by Medicare under the CLFS. We believe it could be confusing to the public if we use the term “payment rate” as it relates to both applicable information and the amount paid under the CLFS. Because the statute says the payment rate is the amount paid by private payors, we believe “private payor rate” could be used in the context of applicable information rather than payment rate. Therefore, hereafter, we refer to the private payor rate in regard to applicable information, and we do so even when we are referring to the
Regarding the definition of “private payor rate,” the statute indicates that applicable laboratories are to report the private payor rate “that was paid by each private payor,” and that the private payor rate must reflect all price concessions. The private payor rate, as we noted previously, is the amount that was paid by a private payor for a CDLT, and we are proposing to incorporate that element into our proposed definition of private payor rate. To calculate a CLFS amount, we believe it is necessary to include in private payor rates patient deductible and coinsurance amounts. (Note: In the discussion below, “patient” refers to a privately insured individual while “beneficiary” refers to a Medicare beneficiary.) For example, if a private payor paid a laboratory $80 for a particular test, but the payor required the patient to pay the laboratory 20 percent of the cost of that test as coinsurance, meaning the private payor actually paid the laboratory only $64, the laboratory would report a private payor rate of $80 (not $64), to reflect the patient coinsurance. The alternative would be for private payor rates to not include patient deductibles and coinsurance (such policy would yield $64 in the above example). Thus, the issue of whether we propose to include or exclude patient deductible and coinsurance in the definition of private payor rate has a material effect on the private payor rate and, ultimately, the payment amount determined by CMS. As CMS generally does not require a beneficiary to pay a deductible or coinsurance on CLFS services, we believe it is important for private payor rates to be reported analogous to how they will be used by CMS to determine the Medicare payment amount for CDLTs under the new payment methodology. For this reason, we are proposing that applicable laboratories must report private payor rates inclusive of all patient cost sharing amounts.
With regard to price concessions, section 1834A of the Act is clear that the private payor rate is meant to reflect the amount paid by a private payor less any price concessions that were applied to a CDLT. For example, there may be a laboratory that typically charges $10 for a particular test, but offers a discount of $2 per test if a payor exceeds a certain volume threshold for that test in a given time period. If the payor exceeds the volume threshold, the private payor rate for that payor for that test, taking into account the $2 discount, is $8. The statute lists specific price concessions in section 1834A(a)(5) of the Act—discounts, rebates, and coupons; and in section 1847A(c)(3) of the Act—volume discounts, prompt pay discounts, cash discounts, free goods that are contingent on any purchase requirement, chargebacks, and rebates (except for Medicaid rebates under section 1927 of the Act). These lists are examples of price concessions, and, we believe, are not meant to be exhaustive. Other price concessions that are not specified in section 1834A of the Act might be applied to the amounts paid by private payors, and we would expect those to be accounted for in the private payor rate. Within our definition of private payor rate, we are proposing that the amount paid by a private payor for a CDLT must be the amount after all price concessions were applied.
We propose to codify the definition of private payor rate in § 414.502. Specifically, we propose that the private payor rate, with respect to applicable information, is the amount that was paid by a private payor for a CDLT after all price concessions were applied, and includes any patient cost sharing amounts, if applicable.
Next, we address the definition of “private payor.” Section 1834A(a)(3)(i) of the Act specifies that applicable information is the private payor rate paid by each private payor. Section 1834A(a)(8) of the Act defines private payor as (A) a health insurance issuer and a group health plan (as such terms are defined in section 2791 of the Public Health Service Act), (B) a Medicare Advantage plan under part C, and (C) a Medicaid managed care organization (as defined in section 1903(m) of the Act).
A health insurance issuer is defined in section 2791(b)(2) of the Public Health Service (PHS) Act in relevant part, as an insurance company, insurance service, or insurance organization (including a health maintenance organization) which is licensed to engage in the business of insurance in a State and which is subject to State law which regulates insurance (within the meaning of section 514(b)(2) of the Employee Retirement Income Security Act of 1974 (ERISA)). Such term does not include a group health plan. We would incorporate this definition of health insurance issuer into our proposed definition of private payor by referring to the definition at section 2791(b)(2) of the PHS Act.
Section 2791(a)(1) of the PHS Act defines a group health plan, in relevant part, as an employee welfare benefit plan (as defined in section 3(1) of ERISA to the extent that the plan provides medical care and including items and services paid for as medical care) to employees or their dependents (as defined under the terms of the plan) directly or through insurance, reimbursement, or otherwise. We would incorporate this definition of group health plan into our definition of private payor by referring to the definition at section 2791(a)(1) of the PHS Act.
A Medicare Advantage plan under part C is defined in section 1859(b)(1) of the Act as health benefits coverage offered under a policy, contract, or plan by a Medicare+Choice organization pursuant to and in accordance with a contract under section 1857. We would incorporate this definition of Medicare Advantage plan into our definition of private payor by referring to the definition in section 1859(b)(1) of the Act.
A Medicaid managed care organization is defined in section 1903(m)(1)(A) of the Act, in relevant part, as a health maintenance organization, an eligible organization with a contract under section 1876 or a Medicare+Choice organization with a contract under Medicare Part C, a provider sponsored organization, or any other public or private organization, which meets the requirement of section 1902(w) of the Act and (i) makes services it provides to individuals eligible for benefits under Medicaid accessible to such individuals, within the area served by the organization, to the same extent as such services are made accessible to individuals (eligible for medical assistance under the State plan) not enrolled with the organization, and (ii) has made adequate provision against the risk of insolvency, which provision is satisfactory to the State, meets the requirements under section 1903(m)(1)(C)(i) of the Act (if applicable), and which assures that individuals eligible for benefits under Medicaid are in no case held liable for debts of the organization in case of the organization's insolvency. An organization that is a qualified health maintenance organization (as defined in section 1310(d) of the PHS Act) is deemed to meet the requirements of clauses (i) and (ii). We would incorporate this definition of Medicaid managed care organization into our definition of private payor by referring to the definition at section 1903(m)(1)(A) of the Act.
We propose to codify the definition of “private payor” in § 414.502 as a health
Next, section 1834A(a)(3) of the Act requires that applicable information include the private payor rate for each test and the “volume of such tests” for each private payor. Regarding the volume reporting requirement, we are aware that sometimes laboratories are paid different amounts for the same CDLT by a payor. And, sometimes laboratories are paid different amounts for the same CDLT by different payors. Section 1834A(a)(6) of the Act specifies that an applicable laboratory must report each such private payor rate and associated volume for the CDLT. Accordingly, we are proposing that each applicable laboratory must report each private payor rate for each CDLT and its corresponding volume. For example, an applicable laboratory and private payor may agree on a volume discount for a particular test whereby the first 100 tests will be reimbursed at $100. The 101st test (and all thereafter) will be reimbursed at $90. In reporting to CMS, the laboratory would report two different private payor rates for this private payor. The first would be 100 tests at a private payor rate of $100 per test, and the second, $90 for all tests reimbursed thereafter. We are proposing to implement the volume reporting requirement by including in the proposed definition of applicable information in § 414.502 that, in addition to “each” private payor rate for “each” CDLT, applicable information is the associated volume of tests performed corresponding to each private payor rate.
We will also need to be able to identify the particular test for which private payor information is being reported. As CLFS tests are identified by HCPCS codes (see section II.G. of this proposed rule for discussion of coding), applicable laboratories will need to report a HCPCS code for each test that specifically identifies the test being reported. We are proposing to include in § 414.502 that applicable information includes the specific HCPCS code associated with each CDLT. Some laboratory tests are currently billed using unlisted CPT codes or HCPCS level II miscellaneous/not otherwise classified (NOC) codes. Because NOC codes and unlisted CPT codes do not describe a single test and may be used to bill and pay for multiple types of tests, we would not be able to determine the specific laboratory test corresponding to a reported private payor rate if either was used for reporting. Therefore, to ensure that applicable laboratories do not report applicable information with a NOC code or an unlisted CPT code, we are also proposing to define “specific HCPCS code” in § 414.502 as a HCPCS code that does not include an unlisted CPT code, as established by the American Medical Association, or a NOC code, as established by the CMS HCPCS Workgroup.
Finally, the statute specifies that applicable information does not include certain information listed in section 1834A(a)(3)(B) of the Act—information for a laboratory test for which payment is made on a capitated basis or other similar payment basis during the data collection period. A capitated payment is made for health care services based on a set amount for each enrolled beneficiary in the plan for a given period of time, regardless of whether the particular beneficiary receives services during the period covered by the payment. Payment is typically made on a capitated basis under a managed care arrangement. As there is no way to determine payment specifically for a given test, it cannot be reported as applicable information. Therefore, we are proposing to specify in the definition of applicable information in § 414.502 that the term does not include information about a test for which payment is made on a capitated basis. We do not believe that providing a discount based on volume of tests furnished is an example of a payment made on a capitated basis or other similar payment basis.
The statute applies different reporting and payment requirements to ADLTs than to other CDLTs, and further distinguishes a subset of ADLTs called “new ADLTs.” In this section, we discuss our proposed definitions for the terms “advanced diagnostic laboratory test” and “new advanced diagnostic laboratory test.”
Section 1834A(d)(5) of the Act defines an ADLT as a CDLT covered under Medicare Part B that is offered and furnished only by a single laboratory and not sold for use by a laboratory other than the original developing laboratory (or a successor owner) and that meets one of the following criteria: (1) The test is an analysis of multiple biomarkers of DNA, RNA, or proteins combined with a unique algorithm to yield a single patient-specific result; (2) the test is cleared or approved by the FDA; (3) the test meets other similar criteria established by the Secretary. Sections 1834A(d)(1) and (2) of the Act recognize special reporting and payment requirements for ADLTs for which payment has not been made under the CLFS prior to April 1, 2014 (PAMA's enactment date). In establishing a regulatory definition for ADLT, we considered each component of the statutory definition at section 1834A(d)(5) of the Act, and we explain here how we interpret and incorporate key statutory terms and phrases.
We believe that, by including these provisions for ADLTs, the statute seeks to establish special payment status for tests that are unique and are provided only by the laboratory that developed the test, or a subsequent owner of that laboratory. In other words, we view the statute as intending to award special payment status to the one laboratory that is expending the resources for all aspects of the test—developing it, marketing it to the public, performing it, and selling it. It is with this understanding that we developed our proposed policies for defining ADLTs.
First, to be an ADLT, a test must meet the requirements specified in the first part of the definition at section 1834A(d)(5) of the Act, that is, it must be a CDLT covered under Medicare Part B that is offered and furnished only by a single laboratory and not sold for use by a laboratory other than the original developing laboratory (or a successor owner). With regard to the meaning of “single laboratory,” we believe the statute intends to ensure that we grant ADLT status to the one laboratory that offers and furnishes in the particular test, to the exclusion of all other laboratories. The way we propose to ensure this is the case, is to require the laboratory to be a facility with a single CLIA certificate as described in § 493.43(a) and (b) because we believe, in most instances, the laboratory's single CLIA certificate will correspond to one laboratory location, or facility. Under our proposal, an entity with multiple CLIA certificates would not be a single laboratory. For example, a test offered by a health system consisting of multiple entities, including physician offices and independent laboratories, and that has multiple CLIA certificates associated with its multiple testing locations, would not be eligible for ADLT status, even if the test met all other ADLT criteria. Section 493.43(b) includes several narrow exceptions for certain types of laboratories that may
Next, the statute directs that the test must be “offered and furnished” by a laboratory seeking ADLT status for the test. It also requires that the test be “not sold for use by a laboratory other than the original developing laboratory.” We interpret the original developing laboratory referenced in the statute to be the same laboratory that offers and furnishes the test. This interpretation is consistent with our understanding that the statute intends for special payment status to be awarded to the one laboratory that is expending the resources for all aspects of the test. Within the two requirements—(1) that a laboratory seeking ADLT status must offer and furnish the test and (2) that the test is not sold for use by a laboratory other than the original developing laboratory—there are several components for us to parse, and we do so consistent with our view of the statutory intent. First, we believe a laboratory offers and furnishes a test when it markets and performs the test. The laboratory that markets and performs the test must also be the only one to sell it, that is, to receive remuneration in exchange for performing the test. In addition, that laboratory must also be the one that developed the test, which means the laboratory designed it. We are aware that, in certain circumstances, a referring laboratory may bill for a test under section 1833(h)(5)(A) of the Act. The referring laboratory is a laboratory that receives a specimen to be tested and refers it to another laboratory, the reference laboratory, to perform the test. In these situations, because the reference laboratory performed the test, it would be the laboratory that offered and furnished the test for purposes of the ADLT definition.
Accordingly, under our proposal, only one laboratory may design, market, perform, and sell the test. If more than the one laboratory engages in any of one of those activities, the test would not meet the criteria to be an ADLT. If our proposal is finalized, we would not expect to see more than one applicable laboratory report applicable information for an ADLT.
Next, the statute permits a successor owner to the original developing laboratory to sell the test without disqualifying the test for ADLT status. We propose to define successor owner as a laboratory that has assumed ownership of the original developing laboratory, and meets all other aspects of the ADLT definition (except for being the original developing laboratory). This means the successor owner is a single laboratory that markets, performs, and sells the ADLT.
In considering how to define successor owner, we looked to our regulations at § 489.18(a), which describe what constitutes a change of ownership for Medicare providers. Although laboratories are suppliers and not providers, we believe the language in this regulation appropriately applies to the wide range of potential changes in ownership for laboratories. Specifically, we propose to incorporate the scenarios described in § 489.18(a) as follows. A successor owner, for purposes of an ADLT, means a single laboratory that has assumed ownership of the laboratory that designed the test through any of the following circumstances:
•
•
•
•
In the case of a lease, all of or part of the original developing laboratory is leased by the owner(s) of the original developing laboratory to another entity who takes over the continued production of the test, and the owner(s) of the original developing laboratory becomes the lessor of the laboratory where it formerly provided laboratory tests. In this situation, there would be a change of ownership of the leased portion of the laboratory, and the lessee would become the successor owner that could be paid for performing an ADLT, provided the test meets all other criteria for being an ADLT.
As we noted above, the successor owner would need to be a single laboratory and meet all other aspects of the ADLT definition. For example, under our proposal, if an original developing laboratory corporation is merged into another laboratory corporation that has multiple CLIA certificates, while the test would still be a CDLT, it would no longer be considered an ADLT. If this proposal is finalized, we would expect a laboratory that obtains CMS approval of ADLT status for a test to maintain documentation on changes of ownership with transfer of rights to market, perform, and sell the ADLT to support correct claims submission and payment. We are soliciting comments on our proposed definition of successor owner and, in particular, whether different change of ownership requirements may be more appropriate for the laboratory industry.
To summarize, we propose to implement the first part of the ADLT definition in section 1834A(d)(5) of the Act by stating that an ADLT is a CDLT covered under Medicare Part B that is marketed and performed only by a single laboratory and not sold for use by a laboratory other than the laboratory that designed the test or a successor owner of that laboratory. We would define the terms “single laboratory” and “successor owner” in § 414.502. If this proposal is finalized, we plan to monitor compliance by confirming that applicable information for each ADLT is reported by a single laboratory. As part of that process, we would confirm that each applicable laboratory that reports applicable information for an ADLT has a single CLIA certificate.
Next, in addition to meeting the first part of the ADLT definition at section 1834A(d)(5) of the Act, the statute requires that an ADLT must meet one of the criteria described in paragraphs (5)(A), (5)(B), or (5)(C). Criterion A of section 1834A(d)(5) of the Act states that the test is an analysis of multiple biomarkers of DNA, RNA, or proteins combined with a unique algorithm to yield a single patient-specific result. We interpret this provision to require that the test analyze, at a minimum, biomarkers of DNA or RNA. Tests that analyze nucleic acids (DNA or RNA) are
That the analysis of the biomarkers must be “combined with a unique algorithm to yield a single patient-specific result” indicates to us that the algorithm must be empirically derived, and that the ultimate test result must be diagnostic of a certain condition, a prediction of the probability of an individual developing a certain condition(s), or the probability of an individual's response to a particular therapy(ies). Furthermore, the statute requires the result to be a single patient-specific one, so the test must diagnose a certain condition for an individual, or predict the probability that a specific individual patient will develop a certain condition(s) or respond to a particular therapy(ies). We are also proposing that the test must provide new clinical diagnostic information that cannot be obtained from any other existing test on the market or combination of tests (for example, through a synthesis of the component molecular pathology assays included in the laboratory test in question). We considered requiring that a new ADLT be clinically useful, as well as new, but decided against such a policy due to statutory limitations. These proposed policies for implementing criterion A derive from our view that ADLTs that meet the criterion are innovative tests that are new and different from any prior test already on the market and provide the individual patient with valuable genetic information to predict the trajectory of the patient's disease process or response to treatment of the patient's disease that could not be gained from another test or tests on the market. Finally, we expect that an ADLT could include assays in addition to the biomarker assay(s) described above. For example, in addition to an analysis of a DNA biomarker, an ADLT might also include a component that analyzes proteins. We would not disqualify a test from ADLT status consideration if that is the case. In summary, we propose that to qualify as an ADLT under criterion A of section 1834A(d)(5) of the Act, a test: (i) Must be a molecular pathology analysis of multiple biomarkers of DNA, or RNA; (ii) when combined with an empirically derived algorithm, yields a result that predicts the probability a specific individual patient will develop a certain condition(s) or respond to a particular therapy(ies); (iii) provides new clinical diagnostic information that cannot be obtained from any other test or combination of tests; and (iv) may include other assays. We reflect this proposed requirement in paragraph (1) of the ADLT definition in § 414.502.
Criterion B of section 1834A(d)(5) of the Act states that the test is cleared or approved by the FDA. The FDA considers CDLTs to be medical devices, and has two distinct application processes for clearing and approving medical devices. To receive FDA clearance to market a new device, a Premarket Notification submission, also referred to as a 510(k), is submitted to FDA for review at least 90 days before introducing, or delivering for introduction, the device into interstate commerce. Before FDA can clear a 510(k) and allow a device to be commercialized, the 510(k) submitter must demonstrate that their medical device is “substantially equivalent” to a device that is legally marketed for the same use and for which a Premarket Approval Application (PMA) is not required. A request for FDA approval of a device is typically submitted through a PMA, which is the most stringent type of device marketing application required by FDA. According to the FDA's “Overview of Medical Devices and Their Regulatory Pathways” (available on the FDA's Web site at
To implement criteria A and B, we would establish guidelines for laboratories to apply for ADLT status and submit documentation to support their application. For example, if our proposed definition of criterion A is finalized, laboratories would have to submit to CMS evidence of their empirically derived algorithms and show how their test provides new clinical diagnostic information that cannot be obtained from any other test or combination of tests. As we note in section II.F. of this proposed rule, section 1834A(a)(10) of the Act provides for confidentiality of the information disclosed by a laboratory under section 1834A(a) of the Act. As this statutory provision is limited to “this subsection” (that is, subsection (a)), it does not apply to subsection (d) of section 1834A of the Act, which relates to information provided to the Secretary to determine whether a test is an ADLT. While we do not expect to make information in an ADLT application available to the public, that information is not explicitly protected from disclosure under the confidentiality provisions of the statute, nor is it explicitly protected from disclosure in response to a Freedom of Information Act (FOIA) request, as is information disclosed by a laboratory under subsection (a), per section 1834A(a)(11) of the Act. However, we note that FOIA includes an exemption for trade secrets and commercial or financial information obtained from a person that is privileged or confidential. An ADLT applicant should be aware that information in an ADLT application may not be protected from public disclosure even if it is marked as confidential and proprietary. We cannot guarantee that information marked as proprietary and confidential will not be subject to release under FOIA. While a party may mark information as confidential and proprietary, the information may be subject to disclosure under FOIA unless, consistent with FOIA exemption (b)(4), the information relates to trade secrets and commercial or financial information that is exempt from disclosure. The ADLT applicant would need to substantiate this
Criterion C of section 1834A(d)(5) of the Act gives the Secretary the authority to establish and apply other similar criteria by which to determine that a test is an ADLT. At this time, we are not proposing to exercise this authority; if we do so in the future, it would be through notice and comment rulemaking.
Section 1834A(d) of the Act is titled “Payment for New Advanced Diagnostic Laboratory Tests.” As previously discussed in this section, section 1834A(d)(1)(A) provides special payment rules for ADLTs for which payment has not been made under the CLFS prior to April 1, 2014, the enactment date of PAMA. Section 1834A(i) of the Act, titled “Transitional Rule,” provides that during the period beginning on April 1, 2014, PAMA's enactment date, and ending on December 31, 2016, for ADLTs under Medicare Part B, the Secretary shall use the methodologies for pricing, coding, and coverage in effect on the day before April 1, 2014, which may include crosswalking or gapfilling methods. We interpret section 1834A(i) of the Act to mean that we must use the current CLFS payment methodologies for ADLTs that are furnished between April 1, 2014, and December 31, 2016.
Accordingly, we propose to define a new ADLT as an ADLT for which payment has not been made under the CLFS prior to January 1, 2017. Any ADLT paid for under the CLFS prior to January 1, 2017, would be an existing ADLT and would be paid in accordance with the current regulations at 42 CFR part 414, subpart G, including gapfilling and crosswalking methodologies. In other words, there would be no new ADLTs until January 1, 2017, and they would be first paid on the CLFS using the payment methodology for new ADLTs proposed in § 414.522. We would codify the definition of “new ADLT” at § 414.502 to mean an ADLT for which payment has not been made under the CLFS prior to January 1, 2017. A full discussion of our proposed payment policies for new ADLTs is provided in section II.H.3. of this proposed rule.
Section 1834A(a) of the Act requires applicable laboratories to report applicable information. The information is gathered or collected during a “data collection period” and then reported to the Secretary during a “data reporting period.” Under the statute, the Secretary is to specify the period of time that is the data collection period and the timeframe for the data reporting period. In this section, we propose to define the terms “data collection period” and “data reporting period.” In determining what the data collection and data reporting periods should be, we considered our objectives to: (1) Provide applicable laboratories sufficient notice of their obligation to collect and report applicable information to CMS; (2) allow applicable laboratories enough time to collect and report applicable information; (3) give CMS enough time to process applicable information to determine a CLFS payment rate for each laboratory test; and (4) publish new CLFS payment rates at least 60 days in advance of January 1 so laboratories will have sufficient time to review the data used to calculate CLFS payment rates and prepare for implementation of the new CLFS rates on January 1.
Section 1834A(a)(4) of the Act defines the term “data collection period” as a period of time, such as a previous 12-month period, specified by the Secretary. Except for the first data collection period (which we discuss in this section), we believe the data collection period should be a full calendar year, for example, January 1 through December 31, because a full calendar year of applicable information would provide a comprehensive set of data for calculating CLFS rates. In addition, we have chosen to define a data collection period as a calendar year as opposed to, for example, a federal fiscal year (October through September), so the data collection period coordinates with the timing of the CLFS payment schedule, wherein updated CLFS payment rates are in effect on January 1 of each year. We also believe the data collection period should immediately precede the data reporting period, which is the time period during which applicable laboratories must report applicable information to CMS. For example, the data reporting period for the 2018 data collection period (January 1, 2018, through December 31, 2018) would begin on January 1, 2019. We believe that having the data collection period immediately precede the data reporting period will result in more accurate reporting by laboratories and, thus, more accurate rate setting by CMS, because laboratories will have more recent experience, and therefore, be more familiar with the information they are reporting. Further, starting the data reporting period immediately after the data collection period will limit the lag time between reporting applicable information and the use of that applicable information to determine Medicare CLFS payments, thus ensuring that CMS is using the most recent data available to set CLFS payment rates. For these reasons, we propose to codify in § 414.502 that the data collection period is the calendar year during which an applicable laboratory collects applicable information and that immediately precedes the data reporting period.
We are proposing a special rule for the 2015 data collection period, which would begin July 1, 2015, and end December 31, 2015. While our preference would have been for the data collection period to be a full calendar year, as we are proposing for subsequent data collection periods, and for it to begin after publication of proposed and final rules implementing section 1834A of the Act, we believe the statute contemplates that the first data collection period would begin prior to publication of regulations establishing the parameters for data collection. Given that the statute, which was enacted on April 1, 2014, requires us to establish the parameters for data collection through rulemaking by June 30, 2015, the first data collection period that would allow for reporting in 2016 and implementation of the new payment system on January 1, 2017, would have to be in 2015. As the statute indicates that a data collection period could be a 12-month period, and data collection requirement regulations do not have to be complete until June 30, 2015, we believe the statute anticipates that the first data collection period would begin prior to publication of the June 30, 2015 regulations, that is, 6 months prior to a final regulation. In addition, section 1834A(a)(4) of the Act does not require the data collection period to be a 12-month period, but rather, suggests that it could be, and provides CMS the authority to determine the length of the period. Therefore, although we could have chosen to make the 2015 data collection period a full calendar year, given that laboratories would not have notice of the data collection period until our regulations were proposed and finalized, we believe it is reasonable to limit the time period of the first data collection period to 6 months, which is consistent with the length of time the data collection period would have been
Under section 1834A(a)(1) of the Act, beginning January 1, 2016, and every 3 years thereafter (or annually in the case of an ADLT), each applicable laboratory must report applicable information to the Secretary at a time specified by the Secretary. We believe applicable laboratories should have 3 months during which to submit applicable information from the corresponding data collection period, that is, the calendar year immediately preceding the data reporting period. For example, for purposes of calculating CY 2017 CLFS rates, the data collection period would begin on July 1, 2015, and end on December 31, 2015, and the data reporting period would be January 1, 2016 through March 31, 2016. We believe a 3-month data reporting period is a sufficient amount of time for applicable laboratories to report applicable information to CMS. It would give CMS adequate time to calculate CLFS payment amounts, upload the CLFS rates on Medicare's claims processing systems, and make that data publicly available (tentatively, first in September and then a final version in November) before the CLFS rates go into effect on the following January 1. Given the magnitude of the potential changes in CLFS payment rates, to give the industry sufficient time to prepare for the next year's fee schedule, we believe final CLFS rates for the following year should be published at least 60 days prior to the beginning of the next calendar year, or no later than November 1. For these reasons, we are proposing that the definition of “data reporting period” in § 414.502 is the 3-month period during which an applicable laboratory reports applicable information to CMS and that immediately follows the data collection period.
Table 1 illustrates the data collection period, the data reporting period, and CLFS rate year for which the data will be used under our proposal for CDLTs.
As indicated below, applicable information must be reported annually for ADLTs and will follow the above data collection schedule on an annual basis after the first data collection period, which will be for the first and second quarters of the new ADLT initial period, and reported to CMS by the end of the second quarter of the new ADLT initial period (described in more detail below).
Section 1834A(a)(1) of the Act requires applicable laboratories, beginning January 1, 2016, to report applicable information on CDLTs that are not ADLTs every 3 years, and every year for ADLTs, at a time specified by the Secretary. As discussed in section II.D.1., we are proposing that the data collection period during which applicable laboratories collect applicable information would be the calendar year immediately prior to the data reporting period. Thus, the data reporting period would occur each year for ADLTs, from January 1 through March 31, and every third year, from January 1 through March 31, for all other CDLTs (for example, 2016, 2019, 2022, etc.). We propose to establish these data reporting requirements in § 414.504(a) of the regulations.
Section 1834A(a)(3)(A) of the Act requires applicable information to be the rate paid by each private payor for the test and the associated volume of such tests for each such payor during the data collection period. In addition, section 1834A(a)(6) of the Act specifies that, in the case where an applicable laboratory has more than one payment rate for the same payor for the same test or more than one payment rate for different payors for the same test, the applicable laboratory must report each such payment rate and the volume for the test at each such rate. Furthermore, section 1834A(a)(6) of the Act provides that, beginning January 1, 2019, the Secretary may establish rules to aggregate reporting, that is, permit applicable laboratories to combine the prices and volumes for individual tests; we understand this to mean that, absent rules set by the Secretary (in 2019 or later), applicable laboratories may not aggregate data by laboratory test in reporting applicable information. Taken together, these provisions indicate that an applicable laboratory must report applicable information for every test it performs for each private payor, including both the amounts paid and volume. This means, should a rate for a private payor change during the data collection period, an applicable laboratory would report both the old and new rates and the volume of tests associated with each rate. We realize the amount of applicable information could be voluminous for those applicable laboratories that offer a large number of tests. However, we believe the statute requires comprehensive reporting of applicable information so the Medicare CLFS rates accurately reflect the rates paid by private payors to laboratories. Our proposed definition of applicable information in § 414.502 states that applicable information, with respect to each CDLT for a data collection period, includes each private payor rate and the associated volume of tests performed corresponding to each private payor rate, so our proposed requirement at § 414.504(a) covers the requirement for applicable laboratories to report the private payor rate for every laboratory test it performs, and to account for the volume of tests furnished at each rate. This requirement means that an applicable laboratory that has more than one payment rate for the same payor for the same test, or more than one payment rate for different payors for the same test, must report each such payment rate and the volume for the test at each such rate.
To minimize the reporting burden on applicable laboratories and to avoid collecting personally identifiable information, we would only require applicable laboratories to report the minimum information necessary to
Section 1834A(d)(1)(A) of the Act requires the payment amount for new ADLTs to be based on actual list charge for an “initial period” of 3 quarters, but does not specify when this initial period of 3 quarters begins. We believe the initial period should start and end on the basis of a calendar quarter, so that the first day of the initial period would be the first day of a calendar quarter, and the last day of the initial period would be the last day of a calendar quarter (for example, January 1 and March 31, April 1 and June 30, July 1 and September 30, or October 1 and December 31). We are proposing this policy to be consistent with how applicable information would be reported for CDLTs (on the basis of a calendar year, that is, 4 quarters of applicable information) and how CLFS payment rates would be updated (also on the basis of a calendar year). This consistency is important so that after the new ADLT initial period is over, all CLFS payment rates (for CDLTs and ADLTs) will be posted publicly at the same time. Further, CMS updates all of its payment systems on the basis of a calendar quarter, and we believe consistency with all other CMS data systems will facilitate implementation and updates to the CLFS. Beginning and ending the new ADLT initial period on the basis of a calendar quarter would also be consistent with average sales price reporting for Medicare Part B drugs under section 1847A of the Act and desirable for the reasons stated above. If we were to start the initial period during a calendar quarter, then the end of the Q2 (the time by which applicable laboratories must report applicable information for new ADLTs) would also occur during a calendar quarter, which would mean that applicable laboratories would be reporting applicable information for new ADLTs during a calendar quarter. Further, if an initial period of three quarters ends during a calendar quarter, CMS would have to begin paying for the ADLT using the methodology under section 1834A(b) of the Act during a calendar quarter. For these reasons, we propose to start the initial period on the first day of the first full calendar quarter following first day on which a new ADLT is performed. We propose to refer to the initial period for new ADLTs as the “new ADLT initial period,” and to codify the definition in § 414.502.
Section 1834A(d)(2) of the Act requires applicable laboratories to report applicable information for new ADLTs not later than the last day of the Q2 of the initial period. The applicable information will be used to determine the CLFS payment amount (using the weighted median methodology; see our discussion of the CDLT payment methodology in section II.H.1.) for a new ADLT after the new ADLT initial period. We propose to codify the reporting requirement for new ADLTs in § 414.504(a)(3).
The following is an example of the reporting and payment schedule for a new ADLT: A new ADLT that is first performed by an applicable laboratory during the Q1 of 2017 (for example, February 4, 2017) would start its initial period on the first day of the Q2 of 2017 (April 1, 2017). The new ADLT initial period would last for three full quarters, until the end of the Q4 of 2017 (December 31, 2017). The applicable laboratory would be required to report applicable information for the new ADLT by the end of the Q2 of the new ADLT initial period, which would be, in this example, the end of the Q3 of 2017 (September 30, 2017). These data would be used to calculate the payment amount for the new ADLT, which would be applied after the end of the new ADLT initial period, which would be the Q1 2018 (January 1, 2018). This payment amount would last through the remainder of CY 2018. The new ADLT would then follow the annual reporting schedule for existing ADLTs, that is, CY 2017 applicable information would be reported between January 1, 2018 through March 31, 2018, and the applicable information would then be used to establish the payment amount for the ADLT that takes effect on January 1, 2019.
Table 2 illustrates the proposed data collection and reporting periods for a new ADLT using the above example.
We welcome comments on these proposals and on how to make the data reporting process work as efficiently as possible.
Section 1834A(a)(9)(A) of the Act authorizes the Secretary to apply a CMP if the Secretary determines that an applicable laboratory has failed to report, or has made a misrepresentation or omission in reporting, information under section 1834A(a) of the Act for a CDLT. In these cases, the Secretary may apply a CMP in an amount of up to $10,000 per day for each failure to report or each such misrepresentation or omission. Section 1834A(a)(9)(B) of the Act further provides that the provisions of section 1128A of the Act (other than subsections (a) and (b)) shall apply to a CMP under this paragraph in the same manner as they apply to a CMP or proceeding under section 1128A(a) of the Act. Section 1128A of the Act governs CMPs that apply to all federal health care programs. Thus the provisions of section 1128A of the Act (specifically sections 1128A(c) through 1128A(n) of the Act) apply to a CMP under section 1834A(a)(9) of the Act in
Section 1834A(a)(7) of the Act requires that an officer of each applicable laboratory must certify the accuracy and completeness of the reported information required by section 1834A(a) of the Act. We propose to implement this provision by requiring in § 414.504(d) that the President, CEO, or CFO of an applicable laboratory or an individual who has been delegated authority to sign for, and who reports directly to, the laboratory's President, CEO, or CFO, must sign a certification statement and be responsible for assuring that the applicable information provided is accurate, complete, and truthful, and meets all the reporting parameters. We will specify the processes for certification in subregulatory guidance prior to January 1, 2016.
Section 1834A(a)(10) of the Act addresses the confidentiality of the information disclosed by a laboratory under section 1834A(a) of the Act. Specifically, this paragraph provides that, notwithstanding any other provision of law, information disclosed by a laboratory under section 1834A(a) of the Act is confidential and must not be disclosed by the Secretary or a Medicare contractor in a form that discloses the identity of a specific payor or laboratory, or prices charged or payments made to any such laboratory, except as follows:
• As the Secretary determines to be necessary to carry out section 1834A of the Act;
• To permit the Comptroller General to review the information provided;
• To permit the Director of the Congressional Budget Office (CBO) to review the information provided; and
• To permit MedPAC to review the information provided.
These confidentiality provisions apply to information disclosed by a laboratory under section 1834A(a) of the Act, the paragraph that addresses reporting of applicable information for purposes of establishing CLFS rates, and therefore we interpret these protections as applying to the applicable information that applicable laboratories report to CMS under proposed § 414.504(a). We do not read section 1834A(a)(10) of the Act as applying to other information laboratories may submit to CMS that does not constitute applicable information, for example, information regarding an applicable laboratory's business structure, such as its associated NPI entities, or information submitted in connection with an application for ADLT status under section 1834A(d) of the Act (including evidence of a laboratory's empirically derived algorithms and how the test provides new clinical diagnostic information that cannot be obtained from any other test or combination of tests).
As we discuss in more detail in section II.H.1., we will use the applicable information reported under proposed § 414.504 to set CLFS payment rates, and intend to make available to the public a list of test codes and the CLFS payment rates associated with those codes, which is the same CLFS information we currently make available. This information would not reveal the identity of a specific payor or laboratory, or prices charged or payments made to a specific laboratory (except as noted below), and thus, we believe continuing to publish this limited information would allow us to be compliant with section 1834A(a)(10) of the Act while continuing to provide necessary information to the public on CLFS payment amounts.
As noted above, section 1834A(a)(10) of the Act lists four instances when the prohibition on disclosing information reported by laboratories under section 1834A(a) of the Act would not apply, the first being when the Secretary determines disclosure is necessary to carry out section 1834A of the Act. We believe certain disclosures will be necessary for CMS to administer and enforce the new Medicare payment system for CDLTs. For example, it may be necessary to disclose to the HHS Office of Inspector General confidential data needed to conduct an audit, evaluation, or investigation or to assess a CMP, or to disclose to other law enforcement entities such as the Department of Justice confidential data needed to conduct law enforcement activities. Therefore, we are proposing to add those entities to the list of entities in § 414.504(f) to which CMS may disclose applicable information that is otherwise confidential. Additionally, there may be other circumstances that require the Secretary to disclose confidential information regarding the identity of a specific laboratory or private payor. In the event we determine it necessary to disclose confidential information for other circumstances, we would notify the public of the reasons through a
Also, we believe that codes and associated CLFS payment rates published for ADLTs may indirectly disclose the identity of the specific laboratories selling those tests, and, for new ADLTs, payments made to those laboratories. That is because, as explained in section II.C. of this proposed rule, ADLTs are offered and furnished only by a single laboratory. Thus, we believe publishing the test code and associated CLFS payment rate for an ADLT would indirectly reveal the identity of the laboratory because only the single laboratory is offering and furnishing that test. Moreover, because Medicare will pay actual list charge for a new ADLT during the new ADLT initial period, publishing the test code and associated CLFS rate for a new ADLT would, we believe, reveal the payments made to the laboratory offering and furnishing that test. We believe section 1834A(a)(10)(A) of the Act authorizes us to publish the test codes and associated CLFS payment rates for ADLTs because we need to publish the CLFS rates for ADLTs and we do not believe we can do so without indirectly revealing ADLT laboratory identities and payments made to those laboratories. However, because the actual list charge for a new ADLT would already be publicly available, we do not believe laboratories will be harmed by our publishing the CLFS rates for new ADLTs. We will not publish information that directly discloses a laboratory's identity, but we cannot prevent the public from associating CLFS payment information for an ADLT to the single laboratory offering and furnishing the test.
Section 1834A(a)(10) of the Act also prohibits a Medicare contractor from disclosing information under section 1834A(a) of the Act in a form that reveals the identity of a specific payor or laboratory, or prices charged or payments made to any such laboratory. We do not expect this prohibition to be problematic as applicable laboratories will be reporting applicable information
We propose to implement the confidentiality requirements of section 1834A(a)(10) of the Act in § 414.504(f).
Section 1834A(e) of the Act includes coding requirements for certain new and existing ADLTs and laboratory tests that are cleared or approved by the FDA. In this section, we describe our current coding system for the CLFS and how we propose to utilize aspects of this system to implement the coding provisions in section 1834A(e) of the Act.
Currently, new tests on the CLFS receive HCPCS level I codes (CPT) from the American Medical Association (AMA). The CPT is a uniform coding system consisting of descriptive terms and codes that are used primarily to identify medical services and procedures furnished by physicians, suppliers, and other health care professionals. Decisions regarding the addition, deletion, or revision of CPT codes are made by the AMA, and published and updated annually by the AMA. Level II of the HCPCS is a standardized coding system used primarily to identify products, supplies, and services not included in the CPT codes, such as ambulance services and durable medical equipment, prosthetics, orthotics and supplies (DMEPOS). Because Medicare and other insurers cover a variety of services, supplies, and equipment that are not identified by CPT codes, the HCPCS level II codes were established for submitting claims for these items.
Within CMS, the CMS HCPCS Workgroup, which is comprised of representatives of major components of CMS and consultants from pertinent Federal agencies, is responsible for all revisions, deletions, and addition to the HCPCS level II codes. As part of its deliberations, the CMS HCPCS Workgroup may develop temporary and permanent national alpha-numeric HCPCS level II codes. Permanent HCPCS level II codes are established and updated annually, whereas temporary HCPCS level II codes are established and updated on a quarterly basis. Temporary codes are useful for meeting, in a short time frame, the national program operational needs of a particular insurer that are not addressed by an already existing national code. For example, Medicare may need additional codes before the next annual HCPCS update to implement newly issued coverage policies or legislative requirements.
Temporary HCPCS level II codes do not have established expiration dates, however, a temporary code may be replaced by a CPT code, or the CMS HCPCS Workgroup may decide to replace a temporary code with a permanent HCPCS level II code. For example, a laboratory may request a code for a test in the middle of a year. Because permanent codes are assigned only once a year, the CMS HCPCS Workgroup may assign the laboratory test a temporary HCPCS level II code. The temporary code may be used indefinitely or until a permanent code is assigned to the test. Whenever the CMS HCPCS Workgroup establishes a permanent code to replace a temporary code, the temporary code is cross-referenced to the new permanent code and deleted.
“G codes” are temporary HCPCS level II codes used by CMS to identify professional health care procedures and services, including laboratory tests, that would otherwise be identified by a CPT code, but for which there is no CPT code. CMS has used G codes for laboratory tests that do not have CPT codes but for which CMS makes payment, or in situations where CMS wants to treat the codes differently from the CPT code descriptor for Medicare payment purposes.
Section 1834A(e) of the Act includes three provisions that relate to coding: (a) Temporary codes for certain new tests; (b) coding for existing tests; and (c) establishment of unique identifiers for certain tests. The effect of section 1834A(e) of the Act is to require the Secretary to establish codes, whereas prior to the enactment of PAMA, the Secretary had discretion, but was not required to do so. Before we discuss each of the three provisions, we address several specific references in the statute that we believe need clarification.
In the three coding provisions, the statute requires us to “adopt,” “assign,” and “establish” codes or identifiers. We believe those terms are interchangeable. There is no practical difference between them for purposes of CMS's obligation under section 1834A(e) of the Act, which is, essentially, to ensure that certain laboratory tests can be identified by a HCPCS code, or in the case of section 1834A(e)(3) of the Act, a unique identifier. The statute also refers to “new laboratory tests” and “existing clinical diagnostic laboratory test[s]” in sections 1834A(e)(1)(A) and (2), respectively. We believe new laboratory tests here refers to CDLTs (that are cleared or approved by the FDA) paid under the CLFS on or after January 1, 2017, and existing CDLTs refers to CDLTs (that are approved or cleared by the FDA) paid under the CLFS prior to that date.
Section 1834A(e)(1)(A) of the Act requires the Secretary to adopt temporary HCPCS codes to identify new ADLTs and new laboratory tests that are cleared or approved by the FDA. In section II.C.1. of this proposed rule, we proposed a definition for new ADLTs, and in section II.C.2., we discuss what it means for a laboratory test to be cleared or approved by the FDA. We are applying those interpretations here. We understand the statute to be requiring us to adopt temporary HCPCS level II codes for these two types of laboratory tests if they have not already been assigned a HCPCS code. Therefore, we would utilize the existing HCPCS coding process for these tests. This means, if a new ADLT or a new CDLT that is FDA cleared or approved is not already assigned a CPT code or HCPCS level II code, we would assign a G code to the test. The statute further directs that the temporary code be effective for up to 2 years until a permanent HCPCS code is established, although the statute permits the Secretary to extend the length of time as appropriate. Therefore, any G code that we adopt under this provision would be effective for up to two years, unless we believe it is appropriate to continue to use the G code. For instance, we may create a G code to describe a test for prostate specific antigen (PSA) that may be covered by Medicare under sections 1861(s)(2)(P) and 1861(oo)(2)(B) of the Act as a prostate cancer screening test. At the end of 2 years, if the AMA has not created a CPT code to describe that test but Medicare continues to have a need to pay for the test described by the G code, we would continue to use the G code.
Section 1834A(e)(2) of the Act stipulates that not later than January 1, 2016, for each existing ADLT and each existing CDLT that is cleared or approved by the FDA for which
As with the requirement for us to adopt codes for certain new tests under section 1834A(e)(1) of the Act, we believe our existing coding process is consistent with the requirements of section 1834A(e)(2) of the Act. Accordingly, we would utilize the existing HCPCS coding process for these tests, meaning, if an existing ADLT or existing CDLT is not already assigned a CPT code or a HCPCS level II code, we would assign a G code to the test.
One aspect of section 1834A(e)(2) of the Act (applying to existing tests) that is different than section 1834A(e)(1) of the Act (applying to certain new tests) is the requirement for us to assign a “unique” HCPCS code. We understand a unique HCPCS code to describe only a single test. An ADLT is a single test, so each existing ADLT would be assigned its own G code. However, it is possible that one HCPCS code is used to describe more than one existing CDLT that is cleared or approved by the FDA. For instance, we understand there are different versions of laboratory tests for the Kirsten rat sarcoma viral oncogene homolog (KRAS)—one version that is FDA-approved and others that are not FDA cleared or approved. Currently, the same HCPCS code is used for both the FDA-approved laboratory test for KRAS and the non-FDA cleared or approved versions of the test. Thus, the current HCPCS code is not unique in describing only the FDA-approved version of the KRAS test. Under section 1834A(e)(2) of the Act, we are required to ensure that FDA cleared or approved versions of the KRAS test are assigned their own unique codes.
Section 1834A(e)(2)(B) of the Act requires CMS to publicly report the payment rate for the existing ADLT or test that is cleared or approved by the FDA by January 1, 2016. It is possible there are existing ADLTs or CDLTs cleared or approved by the FDA that are currently being priced under our existing regulations using crosswalking or gapfilling. For instance, some tests are currently being priced using gapfilling (see
To fulfill the requirement to publicly report payment rates, we will include the codes and payment amounts on the electronic CLFS payment file that we make available on the CMS Web site prior to January 1, 2016. We are currently considering how we would present the information. We expect to provide a separate field with a special identifier indicating when a HCPCS code uniquely describes an existing laboratory test, although we may separately identify those codes that uniquely identify an existing test in separate documentation describing the file.
Section 1834A(e)(3) of the Act requires the establishment of a unique identifier for certain tests. Specifically, section 1834A(e)(3) of the Act provides that, for purposes of tracking and monitoring, if a laboratory or a manufacturer requests a unique identifier for an ADLT or a laboratory test that is cleared or approved by the FDA, the Secretary shall utilize a means to uniquely track such test through a mechanism such as a HCPCS code or modifier. Section 1834A(e)(3) of the Act applies only to those laboratory tests that are addressed by sections 1834A(e)(1) and (2) of the Act, that is, new and existing ADLTs and new and existing CDLTs that are cleared or approved by the FDA.
The statute does not define “tracking and monitoring.” However, in the context of a health insurance program like Medicare, tracking and monitoring would typically be associated with enabling or facilitating the obtaining of information included on a Medicare claim for payment to observe such factors as: Overall utilization of a given service; regional utilization of the service; where a service was provided (for example, office, laboratory, hospital); who is billing for the service (for example, physician, laboratory, other supplier); which beneficiary received the service; and characteristics of the beneficiary receiving the service (for example, male/female, age, diagnosis). As the HCPCS code is the fundamental variable used to identify an item or service, and can serve as the means to uniquely track and monitor many various aspects of a laboratory test, we believe the requirements of this section will be met by the existing HCPCS coding process. Therefore, we intend to implement section 1834A(e)(3) of the Act using our current HCPCS coding system. If a laboratory or manufacturer specifically requests from us a unique identifier for tracking and monitoring an ADLT or an FDA cleared or approved or cleared CDLT, we would assign it a unique HCPCS code if it does not already have one.
Section 1834A(b) of the Act establishes a new methodology for determining Medicare payment amounts for CDLTs on the CLFS. Section 1834A(b)(1)(A) of the Act establishes the general requirement that the Medicare payment amount for a CDLT furnished on or after January 1, 2017, shall be equal to the weighted median determined for the test for the most recent data collection period. Section 1834A(b)(2) of the Act requires the Secretary to calculate a weighted median for each laboratory test for which information is reported for the data collection period by arraying the distribution of all private payor rates reported for the period for each test weighted by volume for each private payor and each laboratory. As discussed later in this section, the statute includes special payment requirements for new ADLTs and new CDLTs that are not ADLTs.
To illustrate how we propose to calculate the weighted median for CDLTs, we are providing examples of several different scenarios. These examples are meant to show how we plan to determine the weighted median and not to be exhaustive of every possible pricing scenario. As depicted in Table 3, suppose that applicable laboratories report the following private payor rate and volume information for three different CDLTs.
In this example, there are five different private payor rates for each test. Table 3 is shown again as Table 4 with each test arrayed by order of the lowest to highest private payor rate, with each private payor rate appearing one time only so as to not reflect volume weighting.
With five different private payor rates for each test, the unweighted median is the middle value or the third line in the table where there are an equal number of private payor rates listed above and below the third line in the table. The
• Test 1 = $5.00
• Test 2 = $23.50
• Test 3 = $41.00
These results are obtained by arraying the distribution of all private payor rates reported for the period for each test without regard to the volume reported for each private payor and each laboratory. To obtain the weighted median, we would do a similar array to the one in Table 4 except we would list each distinct private payor rate repeatedly by the same number of times as its volume. This is illustrated for Test 1 in Table 5.
Thus, for Test 1, the array would show the lowest private payor rate of $2.50 five thousand times. The ellipsis (“. . .”) represents the continuation of the sequence between lines 2 and 4,999. The next private payor rate in the sequence ($4.00) would appear on line 5,001 and would be listed 3,000 times until we get to line 8,000. This process would continue with the remaining private payor rates listed as many times as the associated volumes, with the continuing sequence illustrated by ellipses. Continuing the array, the next highest private payor rate in the sequence would be: $5.00 listed 1,000 times; $6.00 listed 900 times; and $9.00 listed 1,100 times. The total number of lines in the array would be 11,000, as that is the total volume for Test 1 furnished by the five applicable laboratories. Because the total volume for Test 1 is 11,000, the weighted median private payor rate would be the average of the 5,500th and 5,501st entry, which would be $4.00.
Repeating this process for Test 2 (see Table 6), the total volume for Test 2 is 7,600 units; therefore, the weighted median private payor rate would be the average of the 3,800th and 3,801st entry, which would be $18.00.
For Test 3 (see Table 7), the total volume is 3,550 units; therefore, the weighted median private payor rate would be the average of the 1,775th and 1,776th entry, which would be $41.00.
In this example, weighting changed the median private payor rate from $5.00 to $4.00 for Test 1, from $23.50 to $18.00 for Test 2, and resulted in no
For simplicity, the above example shows only one private payor rate per test. We expect laboratories commonly have multiple private payor rates for each CDLT they perform. For each test performed by applicable laboratories having multiple private payor rates, we would use the same process shown above, irrespective of how many different private payor rates there are for a given test. In other words, we would list each private payor rate and its volume at that private payor rate, and determine the median as we did above for each payor and each laboratory, and then compute the volume-weighted median rate. The following example in Table 8 illustrates how we propose to calculate the weighted median rate for a test under this scenario:
To calculate the weighted median for Test 4, we would array all private payor rates, listed the number of times for each respective test's volume, and then determine the median value (as illustrated in Table 9).
The total volume for Test 4 is 195. Therefore, the median value would be at the 98th entry, which would be 4.75. We are proposing to describe this process in § 414.507(b).
Section 1834A(b)(1)(B) of the Act states that the Medicare payment amounts established under section 1834A of the Act shall apply to a CDLT furnished by a hospital laboratory if such test is paid for separately, and not as part of a bundled payment under section 1833(t) of the Act (the statutory section pertaining to the OPPS). In CY 2014, we finalized a policy to package certain CDLTs in the OPPS (78 FR 74939 through 74942 and 42 CFR 419.2(b)(17)). Under current policy, certain CDLTs that are listed on the CLFS are packaged in the OPPS as integral, ancillary, supportive, dependent, or adjunctive to the primary service or services provided in the hospital outpatient setting on the same date of service as the laboratory test. Specifically, we conditionally package laboratory tests and only pay separately for a laboratory test when (1) it is the only service provided to a beneficiary on a given date of service or (2) it is conducted on the same date of service as the primary service, but is ordered for a different purpose than the primary service and ordered by a practitioner different than the practitioner who ordered the other OPPS services. Also excluded from this conditional packaging policy are molecular pathology tests described by CPT codes in the ranges of 81200 through 81383, 81400 through 81408, and 81479 (78 FR 74939 through 74942). When laboratory tests are not packaged under the OPPS and are listed on the CLFS, they are paid at the CLFS payment rates outside the OPPS under Medicare Part B. Section 1834A(b)(1)(B) of the Act would require us to pay the CLFS payment amount determined under section 1834A(b)(1)(B) of the Act for CDLTs that are provided in the hospital outpatient department and not packaged into Medicare's OPPS payment. This policy would apply to any tests currently paid separately in the hospital outpatient department or in the future if there are any changes to OPPS packaging policy.
Next, section 1834A(b)(4)(A) of the Act states that the Medicare payment amounts under section 1834A(b) shall continue to apply until the year following the next data collection period. We propose to implement this requirement in proposed § 414.507(a) by stating that each payment rate will be in effect for a period of 1 calendar year for ADLTs and 3 calendar years for all other CDLTs, until the year following the next data collection period.
Section 1834A(b)(4)(B) of the Act states that the Medicare payment amounts under section 1834A of the Act shall not be subject to any adjustment (including any geographic adjustment, budget neutrality adjustment, annual update, or other adjustment). As discussed previously in this section, the new payment methodology for CDLTs established under section 1834A(b) of the Act will apply to all tests furnished on or after January 1, 2017, and replace the current methodology for calculating Medicare payment amounts for CDLTs under sections 1833(a), (b), and (h) of the Act, including the annual updates for inflation based on the percentage change in the CPI-U and reduction by a multi-factor productivity adjustment (see section 1833(h)(2)(A) of the Act). We believe section 1834A(b)(4)(B) of the Act is clear that Congress intended there be no annual update adjustment for tests paid under section 1834A of the Act. Therefore, we are proposing to include in § 414.507(c) that the payment amounts established under this section are not subject to any adjustment, such as any geographic, budget neutrality, annual update, or other adjustment.
Section 1834A(b)(3) of the Act limits the reduction in payment amounts that may result from implementation of the new payment methodology under section 1834A(b) of the Act within the first 6 years. Specifically, section 1834A(b)(3)(A) of the Act states that the payment amounts determined for a CDLT for a year cannot be reduced by more than the applicable percent from the preceding year for each of 2017 through 2022. Under section
For example, if a test that is not a new ADLT or new CDLT has a CY 2016 Medicare payment amount of $20.00, the maximum reduction in the Medicare payment amount for CY 2017 is 10 percent, or $2. Following the CY 2016 data reporting period, CMS calculates a weighted median of $15.00 (a reduction of 25 percent from a Medicare payment amount of $20.00) based on the applicable information reported for the test. Because the maximum payment reduction permitted under the statute for 2017 is 10 percent, the Medicare payment amount for CY 2017 will be $18.00 ($20.00 minus $2.00). The following year, a 10 percent reduction from the CY 2017 payment of $18.00 would equal $1.80, lowering the total Medicare payment amount to $16.20 for CY 2018. As a second example, if a test that is not a new ADLT or new CDLT has a CY 2016 Medicare payment amount of $17.00, the maximum reduction for CY 2017 is 10 percent or $1.70. Following the CY 2016 data reporting period, CMS calculates a weighted median of $15.00 (a reduction of 11.8 percent from the CY 2016 Medicare payment amount of $17). Because the maximum reduction is 10 percent, the Medicare payment amount for CY 2017 will be $15.30 or the maximum allowed reduction of $1.70 from the preceding year's (CY 2016) Medicare payment amount of $17.00. The following year (CY 2018), the Medicare payment amount will be reduced to $15.00, or $0.30 less, which is less than a 10 percent reduction from the prior year's (CY 2017) Medicare payment amount of $15.30. We believe applying the maximum applicable percentage reduction from the prior year's Medicare payment amount, rather than from the weighted median rate for CY 2016, is most consistent with the statute's mandate that the reduction “for the year” (that is, the calendar year) not be “greater than the applicable percent . . . of the amount of payment for the test for the preceding year.”
To apply the phase-in reduction provisions beginning in CY 2017, we must look at the CLFS rates established for CY 2016 under the payment methodology set forth in sections 1833(a), (b), and (h) of the Act. As discussed in section II.B.1. of this proposed rule, CDLTs furnished on or after July 1, 1984, and before January 1, 2017, in a physician's office, by an independent laboratory, or, in limited circumstances, by a hospital laboratory for its outpatients or non-patients, are paid under the Medicare CLFS, with certain exceptions. Payment is the lesser of:
• The amount billed;
• The state or local fee schedule amount established by Medicare contractors; or
• An NLA, which is a percentage of the median of all the state and local fee schedules.
The NLA is 74 percent of the median of all local Medicare payment amounts for tests for which the NLA was established before January 1, 2001. The NLA is 100 percent of the median of the local fee schedule amount for tests for which the NLA was first established on or after January 1, 2001 (see section 1833(h)(4)(B)(viii) of the Act). Medicare typically pays either the lower of the local fee schedule amount or the NLA, as it uncommon for the amount billed to be less than either of these amounts. As the local fee schedule amount may be lower than the NLA, Medicare payment amounts for CDLTs are not uniform across the nation. Thus, we must decide which CY 2016 CLFS payment amounts to consider—the lower of the local fee schedule amount or the NLA, or just the NLA—when applying the phase-in reduction provisions to the CLFS rates for CY 2017. Under option 1, we would apply the 10 percent reduction limitation to the lower of the NLA or the local fee schedule amount. This option would retain some of the features of the current payment methodology under sections 1833(a), (b), and (h) of the Act and, we believe, would be the most consistent with the requirement in section 1834A(b)(3)(A) of the Act to apply the applicable percentage reduction limitation to the “amount of payment for the test” for the preceding year. As noted above, for each of CY 2018 through 2022, we would apply the applicable percentage reduction limitation to the Medicare payment amount for the preceding year. Under this option, though, the Medicare payment amounts may be local fee schedule amounts, so there could continue to be regional variation in the Medicare payment amounts for CDLTs.
Alternatively, under option 2, we would consider only the NLAs for CY 2016 when applying the 10 percent reduction limitation. This option would eliminate the regional variation in Medicare payment amounts for CDLTs, and, we believe, would be more consistent with section 1834A(b)(4)(B) of the Act, which, as noted above, prohibits the application of any adjustments to CLFS payment amounts determined under section 1834A of the Act, including any geographic adjustments.
We are proposing option 2 (NLAs only) for purposes of applying the 10 percent reduction limit to CY 2017 payment amounts because we believe the statute intends CLFS rates to be uniform nationwide, which is why it precludes any geographic adjustment. In other words, we are proposing that if the weighted median calculated for a CDLT based on applicable information for CY 2017 would be more than 10 percent less than the CY 2016 NLA for that test, we would establish a Medicare payment amount for CY 2017 that is no less than 90 percent of the NLA (that is, no more than a 10 percent reduction). For each of CY 2018 through 2022, we would apply the applicable percentage reduction limitation to the Medicare payment amount for the preceding year.
We are proposing to codify the phase-in reduction provisions in § 414.507(d) to specify that for years 2017 through 2022, the payment rates established under this section for each CDLT that is not a new ADLT or new CDLT, may not be reduced by more than the following amounts for—
• 2017—10 percent of the NLA for the test in 2016.
• 2018—10 percent of the payment rate established in 2017.
• 2019—10 percent of the payment rate established in 2018.
• 2020—15 percent of the payment rate established in 2019.
• 2021—15 percent of the payment rate established in 2020.
• 2022—15 percent of the payment rate established in 2021.
Table 10 illustrates the phase-in reduction for the two hypothetical examples presented above:
Section 1834A(d)(1)(A) of the Act provides that the payment amount for a new ADLT shall be based on the actual list charge for the laboratory test during an initial period of 3 quarters. Section 1834A(d)(2) of the Act requires applicable laboratories to report applicable information for a new ADLT not later than the last day of the Q2 of the initial period. Section 1834A(d)(3) of the Act requires the Secretary to use the weighted median methodology under subsection (b) to establish Medicare payment rates for new ADLTs after the initial period. Under section 1834A(d)(3) of the Act, such payment rates continue to apply until the year following the next data collection period.
In section II.D.3. of this proposed rule, we discuss our proposal to require the initial period, which we propose to call the “new ADLT initial period,” to begin on the first day of the first full calendar quarter following the first day on which a new ADLT is performed. In accordance with section 1834A(d)(1)(A) of the Act, we are proposing that the payment amount for the new ADLT will equal the actual list charge, as defined below, during the new ADLT initial period. Accordingly, we propose to codify § 414.522(a)(1) to specify the payment rate for a new ADLT during the new ADLT initial period is equal to its actual list charge.
Section 1834A(d)(1)(B) of the Act states that actual list charge means the publicly available rate on the first day at which the test is available for purchase by a private payor for a laboratory test. We believe the “publicly available rate” is the amount charged for an ADLT that is readily accessible in such forums as a company Web site, test registry, or price listing, to anyone seeking to know how much a patient who does not have the benefit of a negotiated rate would pay for the test. This interpretation of publicly available rate is distinguishable from a private payor rate in that the former is readily available to a consumer, while the latter may be negotiated between a private payor and a laboratory and is not readily available to a consumer. We recognize there may be more than one publicly available rate, in which case we believe the lowest rate should be the actual list charge amount so that Medicare is not paying more than the lowest rate that is publicly available to any consumer. We would define publicly available rate in § 414.502 as the lowest amount charged for an ADLT that is readily accessible in such forums as a company Web site, test registry, or price listing, to anyone seeking to know how much a patient who does not have the benefit of a negotiated rate would pay for the test.
In our view, the first day a new ADLT is available for purchase by a private payor is the first day an ADLT is offered to a patient who is covered by private insurance. The statutory phrase “available for purchase” suggests to us that the test only has to be available to patients who have private insurance even if the test has not actually been performed yet by the laboratory. That is, it is the first day the new ADLT is obtainable by a patient, or marketed to the public as a test that a patient can receive, even if the test has not yet been performed on that date. We propose to incorporate this interpretation into our proposed definition of actual list charge in § 414.502 to specify actual list charge is the publicly available rate on the first day the new ADLT is obtainable by a patient who is covered by private insurance, or marketed to the public as a test a patient can receive, even if the test has not yet been performed on that date.
Because we cannot easily know the first date on which a new ADLT is performed or the actual list charge amount for a new ADLT, we would require the laboratory seeking ADLT status for its test to inform us of both the date the test is first performed and the actual list charge amount. Accordingly, we are proposing in § 414.504(c), that, in its new ADLT application, the laboratory seeking new ADLT status for its test must attest to the actual list charge and the date the new ADLT is first performed. We will outline the new ADLT application process in detail in subregulatory guidance prior to January 1, 2017.
Because the new ADLT initial period starts on the first day of the next calendar quarter following the first day on which a new ADLT is performed, there will be a span of time between when the test is first performed and when the test is paid the actual list charge amount. We need to establish a payment amount for the test during that span of time. Similar to how CMS pays for a test under the PFS, the CLFS, or other payment systems, for a service that does not yet have a national payment amount, the MAC would work with a laboratory to develop a payment rate for a new ADLT for the period of time before CMS pays at actual list charge. For example, if an ADLT is first performed on February 4, 2017, the new ADLT initial period would begin on April 1, 2017. While the new ADLT would be paid the actual list charge amount from April 1 through December 31, 2017, the MAC would determine the payment amount for the test from February 4 through March 31, 2017, as it does currently for tests that need to be paid prior to having a national payment amount. We propose to reflect the payment amount for a new ADLT prior to the new ADLT initial period at § 414.522(a)(2) to specify the payment amount is determined by the MAC based on information provided by the laboratory seeking new ADLT status for its laboratory test.
According to section 1834A(d)(3) of the Act, the weighted median methodology used to calculate the payment amount for CDLTs that are not new ADLTs will be used to establish the payment amount for a new ADLT after the new ADLT initial period; the payment amount will be based on applicable information reported by an applicable laboratory before the last day of the second quarter of the new ADLT initial period, per section 1834A(d)(2) of the Act. We propose to codify these provisions in § 414.522(b) as follows: After the new ADLT initial period, the payment rate for a new ADLT is equal to the weighted median established under the payment methodology described in § 414.507(b).
The payment rate based on the first 2 quarters of the new ADLT initial period will continue to apply until the year following the next data collection period, per section 1834A(d)(3) of the Act. The following is an example of how the various time frames for new ADLT payment rates would work. If the first day a new ADLT is available for purchase by a private payor is in the middle of Q1 of 2017, the new ADLT
Section 1834A(d)(4) of the Act requires that after the new ADLT initial period, if the Medicare payment amount during the new ADLT initial period (that is, the actual list charge) is more than 130 percent of the Medicare payment amount determined using the weighted median of private payor rates that is applicable after the new ADLT initial period, the Secretary shall recoup the difference between the Medicare payment amounts during the initial period and the Medicare payment amount based on the weighted median of private payor rates. We believe the statute is directing the Secretary to recoup the entire amount of the difference between the Medicare payment amount during the new ADLT initial period and the Medicare payment amount based on the weighted median of private payor rates—not the difference between the Medicare payment amount during the initial period and 130 percent of the weighted median rate. For example, if the Medicare payment amount using actual list charge is $150 during the new ADLT initial period and the weighted median rate is $100, the Medicare payment amount is 150 percent of the Medicare payment amount based on the weighted median rate. We believe the statute is directing the Secretary to use 130 percent as the threshold for invoking the recoupment provision but once invoked, collect the entire amount of the difference in Medicare payment amounts ($50 in this example).
The statute refers to “Such amounts” which means the Medicare payment amount based on actual list charge and the Medicare payment amount based on the weighted median rate. The statute directs recoupment of the full amount of that difference as the 130 percent is only being used in making the threshold determination of whether the recoupment provision will apply. For this reason, we are proposing at § 414.522(c) to specify that if the difference between the Medicare payment amounts for an ADLT during the new ADLT initial period based on actual list charge and the weighted median rate exceeds 130 percent, CMS will recoup the entire amount of the difference between the Medicare payment amounts. We further note that if the 130 percent statutory threshold is not exceeded, we are proposing to not recoup at all. Thus, for instance, if the weighted median rate is $100 and the Medicare payment amount during the initial period is $130 or lower, the statutory threshold of 130 percent is not exceeded and we will not pursue any recoupment of payment.
To determine whether the recoupment provision applies, we propose to compare the Medicare payment amount based on actual list charge paid during the new ADLT initial period and the weighted median rate (as calculated from the first time reporting of new ADLT applicable information) for each ADLT. If the difference between these two amounts exceeds 130 percent, the laboratory will be required to refund the difference in total Medicare payments based on actual list charge and the weighted median rates. In other words, if the actual list charge for a new ADLT is more than 130 percent of the weighted median rate (as calculated from applicable information received during the first reporting period), claims paid during the new ADLT initial period would be re-priced using the weighted median rate. To that end, CMS would issue a Technical Direction Letter instructing the MACs to re-price claims previously paid during the new ADLT initial period at the weighted median rate (instead of the actual list charge for the new ADLT). CMS also intends to issue further guidance on the operational procedures for recoupment of the new ADLTs that exceed the 130 percent threshold.
Section 1834A(i) of the Act requires the Secretary, for the period of April 1, 2014, through December 31, 2016, to use the methodologies for pricing, coding, and coverage for ADLTs in effect on the day before the enactment of PAMA (April 1, 2014), and provides that those methodologies may include crosswalking or gapfilling. Thus, section 1834A(i) of the Act authorizes us to use crosswalking and gapfilling to pay for existing ADLTs, that is, those ADLTs that are paid for under the CLFS prior to January 1, 2017. The methodologies in effect on March 31, 2014 were gapfilling and crosswalking. Therefore, we are proposing to use crosswalking and gapfilling to establish the payment amounts for existing ADLTs. We would reflect this requirement at § 414.507(h) to state that for ADLTs that are furnished between April 1, 2014 and December 31, 2016, payment is made based on crosswalking or gapfilling methods described in proposed § 414.508(a).
Section 1834A(c) of the Act establishes special provisions for determining payment for new CDLTs that are not ADLTs. Section 1834A(c)(1) of the Act states that payment for a CDLT that is assigned a new or substantially revised HCPCS code on or after the April 1, 2014 enactment date of PAMA, which is not an ADLT, will be determined using crosswalking or gapfilling during an initial period until payment rates under section 1834A(b) of the Act are established. The test must either be crosswalked (as described in § 414.508(a) or any successor regulation) to the most appropriate existing test on the CLFS or, if no existing test is comparable, paid according to a gapfilling process that takes into account specific sources of information, which we describe later in this section.
We developed our current procedures for crosswalking and gapfilling new CDLTs pursuant to section 1833(h)(8) of the Act. Section 1833(h)(8)(A) of the Act requires the Secretary to establish by regulation procedures for determining the basis for, and amount of, payment for any CDLT for which a new or substantially revised HCPCS code is assigned on or after January 1, 2005. Section 1833(h)(8)(B) of the Act specifies the annual public consultation process that must take place before the Secretary can determine payment amounts for such tests, and section 1833(h)(8)(C) of the Act requires the Secretary to set forth the criteria for making such determinations and make available to the public the data considered in making such determinations. We implemented these provisions in the CY 2007 PFS final rule (71 FR 69701-69704) published on December 1, 2006.
We interpret section 1834A(c) of the Act to generally require us to use the existing procedures we implemented in 42 CFR part 414, subpart G. However, we will need to make some changes to our current regulations to reflect
As noted previously, section 1834A(c) of the Act addresses payment for a CDLT that is not an ADLT and that is assigned a new or substantially revised HCPCS code on or after April 1, 2014, PAMA's enactment date. Our current regulations apply throughout to a “new test,” which we currently define in § 414.502 as any CDLT for which a new or substantially revised HCPCS code is assigned on or after January 1, 2005. We are proposing to replace “new test” with “new CDLT” in § 414.502 and to make conforming changes throughout the regulations to distinguish between the current requirements that apply to new tests and the proposed requirements that would apply to new CDLTs. Our proposed definition would specify that a new CDLT means a CDLT that is assigned a new or substantially revised Healthcare Common Procedure Coding System (HCPCS) code, and that does not meet the definition of an ADLT. Section 1834A(c)(1) of the Act uses the same terminology as section 1833(h)(8)(A) of the Act, “new or substantially revised HCPCS code,” which we specifically incorporated into the definition of new test in § 414.502. We also defined “substantially revised HCPCS code” in § 414.502 based on the statutory definition in section 1833(h)(8)(E)(ii) of the Act to mean a code for which there has been a substantive change to the definition of the test or procedure to which the code applies (such as a new analyte or a new methodology for measuring an existing analyte-specific test). Because section 1834A(c)(1) of the Act uses terminology that we have already defined, and is consistent with our current process, we are not proposing any changes to the phrase “new or substantially revised HCPCS code” in our proposed definition of new CDLT or to the existing definition for “substantially revised HCPCS code.”
• Charges for the test and routine discounts to charges;
• Resources required to perform the test;
• Payment amounts determined by other payers; and
• Charges, payment amounts, and resources required for other tests that may be comparable (although not similar enough to justify crosswalking) or otherwise relevant.
During the first year a new test code is paid using the gapfilling method, contractors are required to establish contractor-specific amounts on or before March 31. Contractors may revise their payment amounts, if necessary, on or before September 1, based on additional information. After the first year, the contractor-specific amounts are used to calculate the NLA, which is the median of the contractor-specific amounts, and under § 414.508(b)(2), the test code is paid at the NLA in the second year. We instruct MACs to use the gapfilling method through program instruction, which lists the specific new test code and the timeframes to establish contractor-specific amounts.
In the CY 2007 PFS final rule with comment period (71 FR 69702), we also described the timeframes for determining the amount of and basis for payment for new tests. The codes to be included in the upcoming year's fee schedule (effective January 1) are available as early as May. We list the new clinical laboratory test codes on our Web site, usually in June, along with registration information for the public meeting, which is held no sooner than 30 days after we announce the meeting in the
Section 1834A(c)(1) of the Act refers to payment for CDLTs for which a new or substantially revised HCPCS code is assigned on or after the April 1, 2014 enactment date of PAMA. We note that the annual crosswalking and gapfilling process has already occurred for codes on the 2015 CLFS, and is currently underway for codes on the 2016 CLFS. We are proposing to continue using the current crosswalking and gapfilling processes for CDLTs assigned new or substantially revised HCPCS codes prior to January 1, 2017 because: section 1834A(c)(1)(A) of the Act refers to our
For CDLTs that are assigned a new or substantially revised HCPCS codes on or after January 1, 2017, we are proposing to use comparable crosswalking and gapfilling processes that are modified to reflect the new market-based payment system under section 1834A of the Act. As discussed previously, beginning January 1, 2017, the payment methodology established under section 1834A(b) of the Act will replace the current payment methodology under sections 1833(a), (b), and (h) of the Act, including NLAs and local fee schedule amounts. Thus, we are proposing to establish § 414.508(b)(1) and (2) to describe crosswalking and gapfilling processes that do not involve NLAs or local fee schedule amounts.
Regarding the crosswalking process, because section 1834A(c)(1)(A) of the Act specifically references our existing process under § 414.508(a), we are not proposing to change the circumstances when we use crosswalking, that is, when we determine the new CDLT is comparable to an existing test, multiple existing test codes, or a portion of an existing test code. For a CDLT assigned a new or substantially revised HCPCS code on or after January 1, 2017, we are proposing to establish the following crosswalking process in § 414.508(b)(1), which does not rely on NLAs or local fee schedule amounts:
• CMS assigns to the new CDLT code, the payment amount established under § 414.507 for the existing test.
• Payment for the new CDLT code is made at the payment amount established under § 414.507 for the existing test.
Regarding the gapfilling process, section 1834A(c)(2) of the Act requires the use of gapfilling if no existing test is comparable to the new test. Section 1834A(c)(2) of the Act specifies that this gapfilling process must take into account the following sources of information to determine gapfill amounts, if available:
• Charges for the test and routine discounts to charges.
• Resources required to perform the test.
• Payment amounts determined by other payors.
• Charges, payment amounts, and resources required for other tests that may be comparable or otherwise relevant.
• Other criteria the Secretary determines appropriate.
The first four criteria are identical to the criteria currently specified in § 414.508(b)(1). For this reason, we are not proposing any substantive changes to the factors that must be considered in the gapfilling process. The fifth criterion authorizes the Secretary to establish other criteria for gapfilling as the Secretary determines appropriate. At this time, we are not proposing any additional factors to determine gapfill amounts. If we decide to establish additional gapfilling criteria, we will do so through notice and comment rulemaking.
We are proposing to establish a gapfilling process for CDLTs assigned a new or substantially revised HCPCS code on or after January 1, 2017, that would be similar to the gapfilling process currently included in § 414.508(b), but would eliminate the reference to the NLA in § 414.508(b)(2), as that term would no longer be applicable, and would substitute “Medicare Administrative Contractor” (MAC) for “carrier,” as MACs are now Medicare's claims processing contractors. To determine a payment amount under this gapfilling process, we are proposing to pay the test code at an amount equal to the median of the contractor-specific payment amounts, consistent with the current gapfilling methodology at § 414.508(b). Section § 414.508(b)(2) would state that gapfilling is used when no comparable existing CDLT is available. We would state in § 414.508(b)(2)(i) that, in the first year, Medicare Administrative Contractor-specific amounts are established for the new CDLT code using the following sources of information to determine gapfill amounts, if available:
• Charges for the test and routine discounts to charges;
• Resources required to perform the test;
• Payment amounts determined by other payers; and
• Charges, payment amounts, and resources required for other tests that may be comparable or otherwise relevant.
• Other criteria CMS determines appropriate.
We would state in § 414.508(b)(2)(ii) that, in the second year, the CDLT code is paid at the median of the MAC-specific amounts.
We note that section 1834A(c)(1) of the Act requires the crosswalked and gapfilled payment amounts for new CDLTs to be in effect “during an initial period” until payment rates under section 1834A(b) of the Act are established. As discussed previously, we typically list new CDLT codes on our Web site by June, and by January 1 of the following calendar year, we have either established payment amounts using crosswalking or indicated that a test is in its first year of the gapfilling process. Because we are proposing to largely continue our existing gapfilling and crosswalking processes, for CDLTs assigned new or substantially revised HCPCS codes on or after January 1, 2017, we believe the initial period is the period of time until applicable information is reported for a CDLT and can be used to establish a payment amount using the weighted median methodology in § 414.507(b).
We would continue to permit reconsideration of the basis and amount of payment for CDLTs as we currently do under § 414.509. For a new CDLT for which a new or substantially revised HCPCS code was assigned on or after January 1, 2008, CMS accepts reconsideration requests in written format for 60 days after making a determination of the basis for payment (either crosswalking or gapfilling) or the payment amount assigned to the new test code, per § 414.509(a)(1), (b)(1)(i) and (b)(2)(ii). The requestor may also request to present its reconsideration request at the next annual public meeting, typically convened in July of each year under § 414.509(a)(2)(i) and (b)(1)(ii)(A). Under § 414.509(a)(1), if a requestor recommends that the basis for payment should be changed from gapfilling to crosswalking, the requestor may also recommend the code or codes to which to crosswalk the new test. After considering the comments received, CMS may reconsider the basis for payment under § 414.509(a)(3) and (b)(1)(iii) or its determination of the amount of payment, which could
• Proposed determinations with respect to the appropriate basis for establishing a payment amount for each code, with an explanation of the reasons for each determination, the data on which the determinations are based, and a request for public written comments within a specified time period on the proposed determination; and
• Final determinations of the payment amounts for tests, with the rationale for each determination, the data on which the determinations are based, and responses to comments and suggestions from the public.
Section 414.506(d) already indicates that CMS will provide an explanation of the payment rate determined for each new CDLT and the rationale for each determination. As described above, under our current process, we make available to the public proposed payment rates with accompanying rationales and supporting data, as well as final payment rates with accompanying rationales and supporting data. However, this process has been used almost exclusively for new tests that are crosswalked. For tests that are gapfilled, we generally post the contractor-specific amounts in the first year of gapfilling on the CMS Web site and provide for a public comment period, but do not typically provide explanations of final payment amounts. Based on section 1834A(c)(4) of the Act, we are proposing to amend § 414.506 to explicitly indicate that, for a new CDLT on or after January 1, 2017, we will provide an explanation of gapfilled payment amounts and how we took into account the Panel's recommendations. Specifically, we are proposing to add paragraphs (3) and (4) to § 414.506(d). In § 414.506(d)(3), we would specify that, for a new CDLT, in applying paragraphs (1) and (2), CMS will provide an explanation of how it took into account the recommendations of the Advisory Panel on CDLTs. In § 414.506(d)(4), we would specify that, for a new CDLT, in applying paragraphs (1) and (2) and § 414.509(b)(2)(i) and (iii) when CMS uses the gapfilling method described in § 414.508(b)(2), CMS will make available to the public an explanation of the payment rate for the test.
Under these provisions, we would publish the Medicare payment amounts for new CDLTs along with an explanation of the payment rate and how the gapfilling criteria and recommendations by the Advisory Panel on CDLTs were applied via the CMS CLFS Web site as we currently do for new tests. The CMS CLFS Web site may be accessed at:
While sections 1834A(b), (c), and (d), of the Act, respectively, address payment for CDLTs and ADLTs as of January 1, 2017, the statute does not address how we must pay for a laboratory test when no applicable information is reported by applicable laboratories.
There are several possible reasons why no applicable information would be reported for a laboratory test. For example:
•
In the event we do not receive applicable information for a laboratory test that is provided to a Medicare beneficiary, we would need to determine a payment amount for the test in the year following the data collection period. The statute does not specify the methodology we must use to establish the payment rate for an ADLT or CDLT for which we receive no applicable information in a data reporting period but for which we need to establish a payment amount. In such circumstances, we propose to use crosswalking and gapfilling using the proposed definitions in § 414.508(b)(1) and (2) to establish a payment rate on or after January 1, 2017, which would remain in effect until the year following the next data reporting period. This policy would include the situation where we receive no applicable information for tests that were previously priced using gapfilling or crosswalking or where we had previously priced a test using the weighted median methodology. If CMS receives no applicable information in a subsequent data reporting period, we would use crosswalking or gapfilling methodologies to establish the payment amount for the test. In other words, if in a subsequent data reporting period, no applicable information is reported, CMS would reevaluate the basis for payment, of crosswalking or gapfilling, and the payment amount for the test.
In exploring what we would do if we receive no applicable information for a CDLT, we alternatively considered carrying over the current payment amount for a test under the current CLFS, the payment amount for a test (if one was available) using the weighted median methodology based on applicable information from the previous data reporting period, or the gapfilled or crosswalked payment amount. However, we are not proposing this approach because we believe carrying over previous payment rates would not reflect changes in costs or pricing for the test over time. We understand the purpose of section 1834A of the Act is to update the CLFS rates to reflect changes in market prices over time.
As noted above, the statute does not address situations where we price a test using crosswalking or gapfilling because we received no applicable information with which to determine a CLFS rate. We believe reconsidering rates for tests in these situations would be consistent with the purpose of section 1834A of the Act, which requires us to periodically reconsider CLFS payment rates. In the case of tests for which we previously received applicable information to determine payment rates, section 1834A of the Act requires Medicare to follow changes in the market rates for private payors. Our proposal serves an analogous purpose by periodically reconsidering the payment rate of a test using gapfilling or crosswalking. We expect to continue to evaluate our proposed approach to setting rates for laboratory tests paid on the CLFS with no reported applicable information as we gain more programmatic experience under the new CLFS. Any revisions to how we determine a rate for laboratory tests without reported applicable information would be addressed in the future through notice and comment rulemaking.
In summary, we propose that for a CDLT, including ADLTs, for which we receive no applicable information in a data reporting period, CMS will determine the payment amount based on either crosswalking or gapfilling. We propose to add paragraph (g) to § 414.507 to specify that for CDLTs for which CMS receive no applicable information, payment is made based on the crosswalking or gapfilling methods described in § 414.508(b)(1) and (2).
Section 1834A(g) of the Act addresses issues related to coverage of CDLTs. Section 1834A(g)(1)(A) of the Act requires that coverage policies for CDLTs, when issued by a MAC, be issued in accordance with the LCD process. The current LCD development and implementation process is set forth in agency guidance. Section 1869(f)(2)(B) of the Act, however, defines an LCD as a determination by a MAC under part A or part B, as applicable, respecting whether or not a particular item or service is covered on a MAC jurisdiction-wide basis under such parts, in accordance with section 1862(a)(1)(A) of the Act.
While the LCD development process is not enumerated in statute, CMS' Internet-Only Manual 100-08, Medicare Program Integrity Manual, Chapter 13, lays out the process for establishing LCDs. The manual outlines the steps in LCD development including: The posting of a draft LCD, a public comment period, and issuance of a final LCD followed by at least a 45-day notice period prior to the policy becoming effective. In addition, there are opportunities for public meetings. This LCD development process has been used by the MACs since 2003.
In addition to addressing LCD development and implementation, section 1834A(g)(1)(A) of the Act states that the processes governing the appeal and review of LCDs for CDLTs must be consistent with the general LCD appeal and review rules that CMS has issued at 42 CFR part 426. The LCD appeals process establishes a process for an “aggrieved party” to challenge an LCD or LCD provisions in effect at the time of the challenge. An aggrieved party is defined as a Medicare beneficiary, or the estate of a Medicare beneficiary, who is entitled to benefits under Part A, enrolled under Part B, or both (including an individual enrolled in fee-for-service Medicare, in a Medicare+Choice plan, or in another Medicare managed care plan), and is in need of coverage for an item or service that would be denied by an LCD, as documented by the beneficiary's treating physician, regardless of whether the service has been received.
Section 1834A(g)(1)(B) of the Act provides that the CDLT-related LCD provisions referenced in section 1834A(g) do not apply to the NCD process (as defined in section 1869(f)(1)(B) of the Act). The NCD process is outlined in section 1862(l) and further articulated in the August 7, 2013
Section 1834A(g)(1)(C) of the Act specifies that the provisions pertaining to the LCD process for CDLTs, including appeals, shall apply to coverage policies issued on or after January 1, 2015.
Beyond specifying how the Medicare LCD process will relate to CDLTs, section 1834A(g)(2) of the Act provides the Secretary the discretion to designate one or more (not to exceed four) MACs to either establish LCDs for CDLTs or to both establish LCDs and process Medicare claims for payment for CDLTs. Currently, there are 12 MACs that have authority to establish LCDs and process claims for CDLTs. We believe the statute authorizes CMS to reduce the number of MACs issuing LCDs for CDLTs, which
For instance, should only coverage policies be developed by a smaller number of MACs, issues could arise for the other A/B MACs that would need to implement policies, edit claims and defend LCD policies that they did not author. Moreover, the same policy may be implemented differently among MACs based on the ability of their individual claims processing systems to support certain types of editing and/or their differing assessment of risk and technical solutions. Finally, if both LCD development and claims processing were combined and consolidated, CMS would need to consider that the MAC processing the laboratory claim will (in most cases) not be the same MAC that processes the claim of the ordering physician. This may complicate the development of a full profile of the ordering physicians' practice patterns for quality and medical necessity assessment purposes. Accordingly, at this time, we are requesting public comment on the benefits and disadvantages of implementing the new discretionary authority to consolidate the number of MACs developing LCDs for CDLTs. We are also soliciting comments on whether CMS should utilize the broadest discretion provided by the statute to task four or fewer MACs with the responsibility of both writing CDLT-related LCDs and processing all CDLT claims. We also invite comments on other alternatives permissible within the scope of the new legislative authority that CMS should consider which are not outlined here.
The timing for implementation of section 1834A(g)(2) of the Act (if we chose to exercise this authority) would be largely dependent on the ability of the agency to develop statements of work, modify existing or develop new MAC contracts, and address the policy, information technology and technical aspects of the claims processing environment including the potential development of a new system. Implementing the fullest scope of the authority granted by this section, by which CMS would reduce both the number of MACs writing coverage policies for CDLT services and the number of MACs processing CDLT claims, could take upwards of 5 to 6 years. To establish centralized LCDs for all CDLTs would probably involve an initial build-up and then a steady-state investment of between $10 and $15M per year. To create regional lab claims processors (in addition to development of LCDs) would involve higher set-up costs, and some steady-state costs. The reduction in A/B MACs operating costs would likely not fully offset the cost of the specialty lab MACs since the A/B MACs would continue to develop LCDs for other Medicare benefits. CMS is not aware of PAMA funds for this activity, and so CMS would need to obtain any needed incremental implementation and operational funding through the regular Program Management appropriation process. However, prior to the agency committing to any direction regarding the number of MACs involved and the purview of their responsibilities, we are seeking public comment on the benefits and risks of implementing the various scenarios authorized by this section of the statute.
Section 1834A(f) of the Act sets out several requirements for input from clinicians and technical experts on issues related to CDLTs. Section 1834A(f)(1) of the Act requires the Secretary to consult with an expert outside advisory panel that is to be established by the Secretary no later than July 1, 2015. This advisory panel must be composed of an appropriate selection of individuals with expertise, which may include molecular pathologists, researchers, and individuals with expertise in laboratory science or health economics, in issues related to CDLTs, which may include the development, validation, performance, and application of such tests.
Section 1834A(f)(1)(A) of the Act provides that the advisory panel will generally provide input on the establishment of payment rates for new CDLTs, including whether to use crosswalking or gapfilling processes to determine payment for a specific new test and the factors used in determining coverage and payment processes for new CDLTs. Section 1834A(f)(1)(B) of the Act provides that the panel will provide recommendations to the Secretary under section 1834A of the Act. Section 1834A(f)(2) of the Act mandates that the panel comply with the requirements of the Federal Advisory Committee Act (5 U.S.C. App.) (FACA). As discussed in section II.H.6. of this proposed rule, we are proposing to add § 414.506(e) to codify the establishment of the Advisory Panel on CDLTs.
In the October 27, 2014
Section 1834A(h)(1) of the Act states that there shall be no administrative or judicial review under section 1869 of the Act, section 1878 of the Act, or otherwise, of the establishment of payment amounts under section 1834A of the Act. We are proposing to codify this provision in § 414.507(e).
Section 1834A(b)(5) of the Act increases by $2 the nominal fee that would otherwise apply under section 1833(h)(3)(A) of the Act for a sample collected from an individual in a SNF or by a laboratory on behalf of a HHA. This provision was implemented via Medicare Change Request (CR) transmittal effective December 1, 2014 (Transmittal #R3056CP; CR #8837). We propose to reflect this policy in § 414.507(f).
As stated in section 1834A(h)(2) of the Act, Chapter 35 of title 44, United States Code, shall not apply to the information collection requirements contained in section 1834A of the Act. Consequently, the information collection requirements contained in this notice of proposed rulemaking need not be reviewed by the Office of Management and Budget.
Because of the large number of public comments we normally receive on
This proposed rule is necessary to establish a methodology for implementing the requirements in section 1834A of the Act, including a proposed process for data collection and reporting, a proposed weighted median calculation methodology, and proposed requirements for how and to whom these policies would apply.
We have examined the impacts of this rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C. 804(2).
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This proposed rule is an economically significant rule because we believe that the changes to how CLFS payment rates will be developed will overall decrease payments to entities paid under the CLFS. We estimate that this rulemaking is “economically significant” as measured by the $100 million threshold, and hence also a major rule under the Congressional Review Act. Accordingly, we have prepared a Regulatory Impact Analysis that, to the best of our ability, presents the costs and benefits of the rulemaking.
Our analysis presents the projected effects of our proposed implementation of new section 1834A of the Act. As described earlier in this proposed rule, a part of this proposed rule describes a schedule and process for collecting private payor rate information from certain laboratories. Until such time that these data are available, we are limited in our ability to estimate effects of our proposed CLFS payment policies under different scenarios.
The RFA requires agencies to analyze options for regulatory relief of small entities if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, we estimate that most of the entities paid under the CLFS are small entities as that term is used in the RFA (including small businesses, nonprofit organizations, and small governmental jurisdictions). The great majority of hospitals and most other health care providers and suppliers are small entities, either by being nonprofit organizations or by meeting the SBA definition of a small business (having revenues of less than $7.5 million to $38.5 million in any 1 year).
For purposes of the RFA, we estimate that most entities furnishing laboratory tests paid under the CLFS are considered small businesses according to the Small Business Administration's size standards with total revenues of $15 million or less in any 1 year: $15 million for testing laboratories and $11 million for doctors. Individuals and states are not included in the definition of a small entity. Using the codes for laboratories in the North American Industry Classification System (NAICS), 93 percent of medical laboratories would be considered small businesses. This rule will have a significant impact on a substantial number of small businesses or other small entities even with an exception for low expenditure laboratories.
As discussed previously in this proposed rule, we are proposing to define applicable laboratory at the TIN level. Approximately 68,000 unique TIN entities are enrolled in the Medicare program as a laboratory and paid under the CLFS. Of these unique TIN entities, 94 percent are enrolled as a physician office laboratory, 3 percent are enrolled as independent laboratories while the remaining 3 percent are attributed to other types of laboratories such as those operating within a rural health clinic or a skilled nursing facility. Given that well over 90 percent of the Medicare enrolled laboratories paid under the CLFS are physician office laboratories, we estimate the majority of Medicare enrolled laboratories would meet the SBA definition of a small business.
As discussed in section II.D. of this proposed rule, applicable laboratories will be required to report applicable information to CMS, which includes each private payor rate, the associated volume of tests performed corresponding to each private payor rate, and the specific HCPCS code associated with the test. We are specifically proposing to minimize the reporting burden by only requiring the minimum information necessary to enable us to set CLFS payment rates. We are not requiring (or permitting) applicable laboratories to report individual claims because claims include more information than we need to set payment rates (and also raises concerns about reporting personally identifiable information). We believe that each of these proposals will substantially reduce the reporting burden for applicable laboratories in general and small businesses in particular. We discuss reporting requirements further in section V.E. of this proposed rule.
Given that we have never collected information about private payor rates for tests from laboratories, we do not have the specific payment amounts from the weighted median of private payor rates that will result from implementation of section 1834A of the Act. For this reason, it is not possible to determine an impact at the level of the individual laboratory or physician office laboratory much less distinctly for small and other businesses. While the information provided elsewhere in this impact statement provide the aggregate level of changes in payments, these estimates were done by comparing the differences in payment amounts for laboratory tests from private payers with the Medicare CLFS payment adjusted for changes expected to occur by CY 2017. While this methodology can be used to estimate an overall aggregate change in payment for services paid using the CLFS, the impact on any individual laboratory will depend on the mix of laboratory services provided by the individual laboratory or physician office. A proposed regulation is generally deemed to have a significant impact on small businesses if the rule is estimated to have an impact greater than a 3 to 4 percentage change to their revenue. As discussed previously in this section, we estimate that most entities furnishing laboratory tests paid under the CLFS would be considered a small business. Therefore, we believe our accounting statement would provide a reasonable representation of the impact of the proposed changes to the CLFS on small businesses (see Table 11). As illustrated in Table 11, the effect on the Medicare program is expected to be $360 million less in Part B program payments for CLFS tests furnished in FY 2017. The 5-year impact is estimated to be $2.94 billion less and the 10-year impact is expected to result in $5.14 billion less in program payments. As discussed in section I.B., overall, Medicare pays approximately $8 billion a year under the current CLFS for CDLTs. Using our estimated amount of proposed changes in CLFS spending, we estimate an overall percentage reduction in revenue of approximately −4.5 percent for FY 2017 (−$360 million/$8 billion = −4.5 percent); a 5-year percentage reduction of about 7.4 percent (−$2.94 billion/$40 billion = −7.35 percent) and a 10-year percentage reduction of approximately 6.4 percent (−$5.14 billion/$80 billion = −6.43 percent). As such, we estimate that the proposed revisions to the CLFS as authorized by PAMA would have a significant impact on small businesses.
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. This proposed rule will not have a significant impact on small rural hospitals because the majority of entities paid under the CLFS and affected by this proposal are independent laboratories and physician offices. To the extent that rural hospitals own independent laboratories and to the extent that rural hospitals are paid under the CLFS, there could be a significant impact on those facilities. Since most payments for laboratory tests to hospitals are bundled in Medicare severity Diagnosis Related Group payments under Part A, the Secretary has determined that this proposed rule will not have a significant impact on the operations of a substantial number of small rural hospitals. We request comment from small rural hospitals on (1) their relationships with independent clinical laboratories and (2) the potential impact of a reduction in CLFS payments on their revenues and profits.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2015, that is approximately $144 million. This proposed rule does not contain mandates that will impose spending costs on State, local, or tribal governments in the aggregate, or by the private sector.
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 costs on State and local governments, preempts State law, or otherwise has Federalism implications. We have examined the CLFS provisions included in this proposed rule in accordance with Executive Order 13132, Federalism, and have determined that they will not have a substantial direct effect on State, local or tribal governments, preempt State law, or otherwise have a Federalism implication. While we have limited information about entities billing the CLFS with government ownership, the limited amount of information we currently have indicates that the number of those entities, as well as CLFS payment amounts associated with them, are minimal. Based on 2013 claims data, we received only 21,627 claims for CLFS services from a total of 50 state or local public health clinics (0.1 percent of total labs that billed under the CLFS). However, we note that this proposed rule will potentially affect payments to a substantial number of laboratory test suppliers, and some effects may be significant.
The effect on the Medicare program is expected to be $360 million less in program payments for CLFS tests furnished in FY 2017. We first established a baseline difference between Medicare CLFS payment rates and private payor rates based on a study by the Office of Inspector General, “Comparing Lab Test Payment Rates: Medicare Could Achieve Substantial Savings”, OEI-07-11-00010, June 2013. The OIG study showed that Medicare paid between 18 and 30 percent more than other insurers for 20 high-volume and/or high-expenditure lab tests. We assumed the private payor rates to be approximately 20 percent lower than the Medicare CLFS payment rates for all tests paid under the CLFS. We then accounted for the legislated 5 years of 1.75 percent cuts to laboratory payments, as required by section 1833(h)(2)(A)(iv)(II) of the Act, as well as 7 years of multi-factor productivity adjustments, as required by 1833(h)(2)(A) of the Act, to establish a new baseline difference between private payor rates and Medicare CLFS payment
This proposed rule contains a range of policies, including some provisions related to specific statutory provisions. The preceding sections of this proposed rule provide descriptions of the statutory provisions that are addressed, identify proposed policies where the statute recognizes the Secretary's discretion, present the rationale for our proposals and, where relevant, alternatives that were considered.
In developing this proposed rule, we considered numerous alternatives to the presented proposals. Key areas where we considered alternatives include the organizational level associated with an applicable laboratory, authority to develop a low volume or low expenditure threshold to reduce reporting burden for small businesses, whether to include coinsurance amounts as part of the applicable information, the definition of the initial reporting period for ADLTs, and how to set rates for CDLTs for which the agency receives no applicable information. Below, we discuss alternative policies considered. We recognize that all of the alternatives considered could have a potential impact on the cost or savings under the CLFS. However, we do not have any private payor rate information with which to price these alternative approaches.
To better understand the projected reporting, recordkeeping or other compliance requirements of the proposed rule, we are interested in public comments from applicable laboratories on the following questions:
• How many tests on the CLFS does the applicable laboratory perform?
• For each test, how many different private payor rates does the applicable laboratory have in a given period (for example, calendar year or other 12 month reporting period)?
• Does the applicable laboratory receive more than one rate from a private payor in a given period (for example, calendar year or other 12 month reporting period)?
• Is the information that laboratories are required to report readily available in the applicable laboratories' record systems?
• How much time does the applicable laboratory expect will be required to assemble and report applicable information?
• What kind of personnel will the applicable laboratory be using to report applicable information?
• What is the salary per hour for these staff?
• Is there other information not requested in the above questions that will inform the potential reporting burden being imposed by section 1834A of the Act?
We believe that these items would be important factors to consider before projecting data reporting and or record keeping requirements. We welcome comments on these questions from the public.
As required by OMB Circular A-4 (available on the Office of Management and Budget Web site at:
If these requirements are finalized, CMS will create a data collection system, develop HCPCS codes for laboratory tests when needed, convene a FACA advisory committee to make recommendations on how to pay for new CDLTs including reviewing and making recommendations on applications for ADLTs, and undertake other implementation activities. To implement these new standards, we anticipate initial federal start-up costs to be approximately $4 million. Once implemented, ongoing costs to collect data, review ADLTs, maintain data collection systems, and provide other upkeep and maintenance services will require an estimated $3 million annually in federal costs. We will continue to examine and seek comment on the potential impacts to both Medicare and Medicaid.
The changes that we are proposing in this proposed rule would affect suppliers who receive payment under the CLFS, primarily independent laboratories and physician offices. We are limited in our ability to determine the specific impact on different classes of suppliers at this time due to the data limitations noted earlier in this section. However, we anticipate that the updated information through this proposed data collection process in combination with the exclusion of adjustments (geographic adjustment, budget neutrality adjustment, annual update, or other adjustment that may apply under other Medicare payment systems), as described in section 1834A(b)(4)(B) of the Act, will reduce aggregate payments made through the CLFS, and therefore, some supplier level payments. We note that this proposed rule includes proposed changes which may affect different laboratory test suppliers differently, based on the types of tests that they provide.
The previous analysis, together with the remainder of this preamble, provides an initial Regulatory Flexibility Analysis. In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.
Administrative practice and procedure, Health facilities, Health professions, Kidney diseases, Medicare, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services proposes to amend 42 CFR part 414 as follows:
Secs. 1102, 1871, and 1881(b)(l) of the Social Security Act (42 U.S.C. 1302, 1395hh, and 1395rr(b)(l)).
This subpart implements provisions of 1833(h)(8) of the Act and 1834A of the Act—procedures for determining the basis for, and amount of, payment for a clinical diagnostic laboratory test (CDLT).
(1) The test—
(i) Must be a molecular pathology analysis of multiple biomarkers of deoxyribonucleic acid (DNA), or ribonucleic acid (RNA);
(ii) When combined with an empirically derived algorithm, yields a result that predicts the probability a specific individual patient will develop a certain condition(s) or respond to a particular therapy(ies);
(iii) Provides new clinical diagnostic information that cannot be obtained from any other test or combination of tests; and
(iv) May include other assays.
(2) The test is cleared or approved by the Food and Drug Administration.
(1) Each private payor rate.
(2) The associated volume of tests performed corresponding to each private payor rate.
(3) The specific HCPCS code associated with the test.
(4) Does not include information about a test for which payment is made on a capitated basis.
(1) Reports tax-related information to the Internal Revenue Service (IRS) under a Taxpayer Identification Number (TIN) with which all of the National Provider Identifiers (NPIs) in the entity are associated, as these terms are defined in this section;
(2) Is itself a laboratory, as defined in § 493.2 of this chapter, or, if it is not itself a laboratory, has at least one component that is a laboratory, as defined in § 493.2 of this chapter, for which the entity reports tax-related information to the IRS using its TIN; and
(3) In a data collection period, receives, collectively with its associated NPI entities, more than 50 percent of its Medicare revenues, which includes fee-for-service payments under Medicare Part A and B, Medicare Advantage payments under Medicare Part C, prescription drug payments under Medicare Part D, and any associated Medicare beneficiary deductible or coinsurance for services furnished during the data collection period from one or a combination of the following sources:
(i) Subpart G of this part;
(ii) Subpart B of this part; and
(4) For the data collection period from July 1, 2015 through December 31, 2015, receives, collectively with its associated NPI entities, at least $25,000 of its Medicare revenues from subpart G of this part; and
(5) For all subsequent data collection periods receives, collectively with its associated NPI entities, at least $50,000 of its Medicare revenues from subpart G of this part.
(1) A health insurance issuer, as defined in section 2791(b)(2) of the Public Health Service Act.
(2) A group health plan, as defined in section 2791(a)(1) of the Public Health Service Act.
(3) A Medicare Advantage plan under Medicare Part C, as defined in section 1859(b)(1) of the Act.
(4) A Medicaid managed care organization, as defined in section 1903(m)(1)(A) of the Act.
(1) Is the amount that was paid by a private payor for a CDLT after all price concessions were applied.
(2) Includes any patient cost sharing amounts if applicable.
(1)
(2)
(3)
(4)
(a)
(1) For CDLTS that are not new CDLTs, every 3 years beginning January 1, 2016.
(2) For ADLTs that are not new ADLTs, every year beginning January 1, 2016.
(3) For new ADLTs—
(i) Initially, no later than the last day of the second quarter of the new ADLT initial period; and
(ii) Thereafter, every year.
(b) Applicable information must be reported in the form and manner specified by CMS.
(c) A laboratory seeking new ADLT status for its test must, in its new ADLT application, attest to the actual list charge and the date the new ADLT is first performed.
(d) To certify data integrity, the President, CEO, or CFO of an applicable laboratory or an individual who has been delegated authority to sign for, and who reports directly to, such an officer, must sign the certification statement and be responsible for assuring that the data provided are accurate, complete, and truthful, and meets all the reporting parameters described in this section.
(e) If the Secretary determines that an applicable laboratory has failed to report, or made a misrepresentation or omission in reporting, applicable information, the Secretary may apply a civil monetary penalty in an amount of up to $10,000 per day for each failure to report or each such misrepresentation or omission. The provisions for civil monetary penalties that apply in general to the Medicare program under 42 U.S.C. 1320a-7b apply in the same manner to the laboratory data reporting process under this section.
(f) CMS or its contractors will not disclose applicable information reported to CMS under this section in a manner that would identify a specific payor or laboratory, or prices charged or payments made to a laboratory, except to permit the Comptroller General, the Director of the Congressional Budget Office, and the Medicare Payment Advisory Commission, to review the information, or as CMS determines is necessary to implement this subpart, such as disclosures to the HHS Office of Inspector General or the Department of Justice for oversight and enforcement activities.
(g) An entity that does not meet the definition of an applicable laboratory may not report applicable information.
For a new CDLT, CMS determines the basis for and amount of payment after performance of the following:
(d) * * *
(1) Proposed determinations with respect to the appropriate basis for establishing a payment amount for each code, with an explanation of the reasons for each determination, the data on which the determinations are based, including recommendations from the Advisory Panel on CDLTs described in paragraph (e), and a request for written public comments within a specified time period on the proposed determination; and
(3) On or after January 1, 2017, in applying paragraphs (d)(1) and (2) of this section, CMS will provide an explanation of how it took into account the recommendations of the Advisory Panel on CDLTs described in paragraph (e) of this section.
(4) On or after January 1, 2017, in applying paragraphs (d)(1) and (2) of this section and § 414.509(b)(2)(i) and (iii) when CMS uses the gapfilling method described in § 414.508(b)(2), CMS will make available to the public an explanation of the payment rate for the test.
(e) CMS will consult with an expert outside advisory panel, called the Advisory Panel on CDLTs, composed of an appropriate selection of individuals with expertise, which may include molecular pathologists researchers, and individuals with expertise in laboratory science or health economics, in issues related to CDLTs. This advisory panel will provide input on the establishment of payment rates under § 414.508 and provide recommendations to CMS under this subpart.
(a)
(b)
(c) The payment amounts established under this section are not subject to any adjustment, such as geographic, budget neutrality, annual update, or other adjustment.
(d)
(1) 2017—10 percent of the national limitation amount for the test in 2016.
(2) 2018—10 percent of the payment rate established in 2017.
(3) 2019—10 percent of the payment rate established in 2018.
(4) 2020—15 percent of the payment rate established in 2019.
(5) 2021—15 percent of the payment rate established in 2020.
(6) 2022—15 percent of the payment rate established in 2021.
(e) There is no administrative or judicial review under sections 1869 and 1878 of the Social Security Act, or otherwise, of the payment rates established under this subpart.
(f) Effective December 1, 2014, the nominal fee that would otherwise apply for a sample collected from an individual in a Skilled Nursing Facility (SNF) or by a laboratory on behalf of a Home Health Agency (HHA) is $5.
(g) For a CDLT for which CMS receives no applicable information, payment is made based on the crosswalking or gapfilling methods described in § 414.508(b)(1) and (2).
(h) For ADLTs that are furnished between April 1, 2014 and December 31, 2016, payment is made based on the crosswalking or gapfilling methods described in § 414.508(a).
(a) For a new CDLT that is assigned a new or substantially revised code between January 1, 2005 and December 31, 2016, CMS determines the payment amount based on either of the following:
(1)
(i) CMS assigns to the new CDLT code, the local fee schedule amounts and national limitation amount of the existing test.
(ii) Payment for the new CDLT code is made at the lesser of the local fee schedule amount or the national limitation amount.
(2)
(i) In the first year, Medicare Administrative Contractor-specific amounts are established for the new CDLT code using the following sources of information to determine gapfill amounts, if available:
(A) Charges for the CDLT and routine discounts to charges;
(B) Resources required to perform the CDLT;
(C) Payment amounts determined by other payors; and
(D) Charges, payment amounts, and resources required for other tests that may be comparable or otherwise relevant.
(ii) In the second year, the test code is paid at the national limitation amount, which is the median of the contractor-specific amounts.
(iii) For a new CDLT for which a new or substantially revised HCPCS code was assigned on or before December 31, 2007, after the first year of gapfilling, CMS determines whether the contractor-specific amounts will pay for the test appropriately. If CMS determines that the contractor-specific amounts will not pay for the test appropriately, CMS may crosswalk the test.
(b) For a new CDLT that is assigned a new or substantially revised HCPCS code on or after January 1, 2017, CMS determines the payment amount based on either of the following until applicable information is available to establish a payment amount under the methodology described in § 414.507(b):
(1)
(i) CMS assigns to the new CDLT code, the payment amount established under § 414.507 of the comparable existing CDLT.
(ii) Payment for the new CDLT code is made at the payment amount established under § 414.507.
(2)
(i) In the first year, Medicare Administrative Contractor-specific amounts are established for the new CDLT code using the following sources of information to determine gapfill amounts, if available:
(A) Charges for the test and routine discounts to charges;
(B) Resources required to perform the test;
(C) Payment amounts determined by other payors;
(D) Charges, payment amounts, and resources required for other tests that may be comparable or otherwise relevant; and
(E) Other criteria CMS determines appropriate.
(ii) In the second year, the CDLT code is paid at the median of the Medicare Administrative Contractor-specific amounts.
For a new CDLT, the following reconsideration procedures apply:
(b) * * *
(2) * * *
(i) By April 30 of the year after CMS makes a determination under § 414.506(d)(2) or § 414.509(a)(3) that the basis for payment for a CDLT will be gapfilling, CMS posts interim Medicare Administrative Contractor-specific amounts on the CMS Web site.
(ii) For 60 days after CMS posts interim Medicare Administrative Contractor-specific amounts on the CMS Web site, CMS will receive public comments in written format regarding the interim Medicare Administrative Contractor-specific amounts.
(iii) After considering the public comments, CMS will post final Medicare Administrative Contractor-specific amounts on the CMS Web site.
(iv) For 30 days after CMS posts final Medicare Administrative Contractor-specific payment amounts on the CMS Web site, CMS will receive reconsideration requests in written format regarding whether CMS should reconsider the final Medicare Administrative Contractor-specific payment amount and median of the Medicare Administrative Contractor-specific payment amount for the CDLT.
(v) Considering reconsideration requests received, CMS may reconsider its determination of the amount of payment. As the result of a reconsideration, CMS may revise the median of the Medicare Administrative Contractor-specific payment amount for the CDLT.
(a) The payment rate for a new ADLT—
(1) During the new ADLT initial period, is equal to its actual list charge.
(2) Prior to the new ADLT initial period, is determined by the Medicare Administrative Contractor based on information provided by the laboratory seeking new ADLT status for its laboratory test.
(b) After the new ADLT initial period, the payment rate for a new ADLT is equal to the weighted median established under the payment methodology described in § 414.507(b).
(c) If, after the new ADLT initial period, the difference between the actual list charge of a new ADLT and the weighted median established under the payment methodology described in § 414.507 exceeds 130 percent, CMS will recoup the entire amount of the difference between the ADLT actual list charge and the weighted median.
(d) If CMS does not receive any applicable information for a new ADLT by the last day of the second quarter of the new ADLT initial period, the payment rate for the test is determined either by the gapfilling or crosswalking method as described in § 414.508(b)(1) and (2).
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service, determine endangered status under the Endangered Species Act of 1973, as amended, for 16 plant and animal species from the Mariana Islands (the U.S. Territory of Guam and the U.S. Commonwealth of the Northern Mariana Islands). We also determine threatened status for seven plant species from the Mariana Islands and greater Micronesia in the U.S. Territory of Guam, the U.S. Commonwealth of the Northern Mariana Islands, the Republic of Palau, and the Federated States of Micronesia (Yap). The effect of this regulation will be to add these 23 species to the Federal Lists of Endangered and Threatened Wildlife and Plants.
This rule becomes effective November 2, 2015.
This final rule is available on the Internet at
Kristi Young, Acting Field Supervisor, U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Room 3-122, Honolulu, HI 96850; by telephone at 808-792-9400; or by facsimile at 808-792-9581. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.
This rule will finalize the listing of 23 species from the Mariana Islands as endangered or threatened species, one of which (
Delineation of critical habitat requires, within the geographical area occupied by the species, identification of the physical or biological features essential to the species' conservation. Information regarding the life functions and habitats associated with these life functions is complex, and informative data are largely lacking for the 23 Mariana Islands species. A careful assessment of the areas that may have the physical or biological features essential for the conservation of the species and that may require special management considerations or protections, and thus qualify for designation as critical habitat, will require a thorough assessment. We require additional time to analyze the best available scientific data in order to identify specific areas appropriate for critical habitat designation. Accordingly, we find designation of critical habitat to be “not determinable” at this time.
• Habitat loss and degradation due to development, military activities, and urbanization; nonnative feral ungulates (hoofed mammals, for example, deer, pigs, and water buffalo) and nonnative plants; rats; snakes; wildfire; typhoons; water extraction; and the synergistic effects of future climate change.
• Predation or herbivory by nonnative feral ungulates, rats, snakes, monitor lizards, slugs, flatworms, ants, and wasps.
• The inadequacy of existing regulatory mechanisms to prevent the introduction and spread of nonnative plants and animals.
• Direct impacts from ordnance and live-fire from military training, recreational vehicles, and exacerbated vulnerability to threats and, consequently, extinction, due to small numbers of individuals and populations.
Please refer to the proposed listing rule, published in the
In preparing this final rule, we reviewed and fully considered comments from the peer reviewers and public on the proposed listings for 23 species. This final rule incorporates the following substantive changes to our proposed rule, based on the comments we received:
(1) The proposed rule described the status of five plant species (four orchids:
The Act defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range,” and a threatened species as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Therefore, because the four orchid species (
(2) We updated the section titled “Historical and Ongoing Human Impacts” under
(3) We have corrected our original description of the political division of Micronesia. See “Political Division” under
(4) We have added new island occurrences for three species addressed in this final rule.
(5) We have corrected the common names for many of the plant and animal species addressed in this final rule after consultation with a Chamorro and Carolinian language expert and a comment received from a peer reviewer. These changes can be observed in Table 1 and under Description of the 23 Mariana Islands Species, below.
(6) We have added the parenthetical “(Mariana subspecies)” to the common name of the Pacific sheath-tailed bat addressed in this rule, specifically the subspecies
(7) Due to a comment we received from a peer reviewer, we have changed our general description of partulid (referring to a genus of tree snails in the Pacific) characteristics (see Description of the 23 Mariana Islands Species) to include that the mobility of partulids is more related to ambient precipitation and humidity, rather than with the time of day. Previous reports indicated that partulids are primarily nocturnal.
(8) Due to comments received from a peer reviewer and new information, we have expanded our description of the negative impacts associated with the manokwari flatworm, also known as the New Guinea flatworm (
(9) Due to comments received by the U.S. Navy, and in light of the new 2014 Draft Supplemental Environmental Impact Statement (SEIS) and subsequent 2015 Final EIS, we updated the description of the Marine Corps relocation under “Historical and Ongoing Human Impacts,” below. We
(10) Due to comments received by the U.S. Navy, and in light of the new 2015 Final SEIS, we updated the description of the Marine Corps relocation under “Historical and Ongoing Human Impacts,” below. The updates include the construction of a Marine Corps cantonment (main base) at Naval Computer and Telecommunications Station Finegayan, family housing on Andersen Air Force Base (AAFB), and a live-fire training range on AAFB-Northwest Field as the preferred alternatives. We noted that Orote Point, Pati Point, and Navy Barrigada are no longer preferred locations for any facilities to support the Marine Corps move.
(11) We have edited the section titled “Ordnance and Live-Fire Training” under
(12) We added new information to “Conservation Efforts to Reduce Disease and Predation” and “Conservation Efforts to Reduce Habitat Destruction, Modification, or Curtailment of Its Range,” below. In 2013, the U.S. Navy erected five new exclosures on Tinian, each with 1,000 mature individuals of
(13) Due to new data we received during the comment period, we added the Mariana eight-spot butterfly, Mariana wandering butterfly, and the Pacific sheath-tailed bat (Mariana subspecies) to “Small Number of Individuals and Populations,” below. A recent genetic analysis found no heterogeneity exists between three separate populations of the Mariana eight-spot butterfly on Guam (Lindstrom and Benedict 2014, p. 27). In fact, they found the genetic sequences studied to be identical, which is indicative that little population structure exists among these mobile insects, and that they have recently experienced a population bottleneck limiting genetic diversity for this species on Guam (Lindstrom and Benedict 2014, p. 27). Additionally, since there are no recent observations of the Mariana wandering butterfly, we have deduced that if a population exists, it does so in very small numbers and, therefore, faces the same threat of reduced genetic diversity as the Mariana eight-spot butterfly. A recent genetic analysis of the Pacific sheath-tailed bat (Mariana subspecies) found no genetic diversity among the only known extant population of this species (Oyler-McCance
(14) Due to a comment from a peer reviewer, we have made a change regarding the life-cycle of Slevin's skink under Description of the 23 Mariana Islands Species, below. In the proposed rule, we cited Brown (1991, pp. 14-15) as stating that Slevin's skinks are viviparous (lay their eggs internally and give birth to live young). We have corrected this statement to reflect more recent observations indicating that Slevin's skinks are oviparous (lay eggs that mature and hatch externally) (Zug 2013, p. 184; Rodda 2014, in litt.).
(15) Due to new information received during the comment period, we have added a new occurrence for the Rota blue damselfly. Zarones (
(16) According to new information we received during the comment period, we corrected the name of I-Chenchon Park, which is now the Mariana Crow Conservation Area; added the Sabana Heights and Talakhaya conservation areas under the Sabana Wildlife Conservation Area on Rota; and added the newly established Nightingale Reed-warbler Conservation Area and the Micronesian Megapode Conservation area to conservation areas on Saipan (see
(17) After further analysis, we have concluded that feral cattle are not a threat to the plant
(18) In the Regulation Promulgation section of the proposed rule, we identified the historic range of
Table 1 below provides the scientific name, common name, listing status, and range (islands on which the species is found) for the 23 Mariana Islands species that are the subjects of this final rule. Following the table, Figure 1 provides a map of the islands that comprise the Mariana archipelago.
Here we discuss only background information pertinent to the Mariana Islands that has changed since the proposed rule. Please see the proposed rule (79 FR 59364; October 1, 2014) for a description of the general geography, geology, vegetation, hydrology, climate, biogeography, and pre-historic human impact. We would like to acknowledge a spelling error in the proposed rule under “Hydrology,” where we incorrectly spelled Talofofo as Tolofofo. Talofofo is the correct spelling for this hydrological region in Guam. Additionally, we have made substantial changes from the proposed rule to the
After the initial Chamorro modifications for agriculture and villages, the flora and fauna on the Mariana Islands continued to undergo alterations due not only to ongoing volcanic activity in the northern islands, but also to land use activities and nonnative species introduced by European colonialists. The arrival of the Spanish in 1591 further imposed degradation of the ecosystems of the Mariana Islands with the introduction of numerous nonnative animals and plants. The Spanish occupied the Mariana Islands for nearly 300 years (SIO 2014, in litt.). In 1899, Spain sold the Mariana Islands to Germany, with the exception of Guam, which was ceded to the United States as a result of the Spanish-American war (SIO 2012, in litt.; Encyclopedia Britannica 2014, in litt.).
The German administration altered the forest ecosystem on Rota, Saipan, and Tinian, and on some of the northern islands, by means of
Currently, the U.S. Department of Defense is implementing a project referred to as the “Guam and Commonwealth of the Northern Mariana Islands Military Relocation” (Joint Guam Program Office (JGPO)-Naval Facilities Engineering command, Pacific (JGPO-NavFac, Pacific) 2010a, p. ES-1; JGPO-NavFac, Pacific 2013, pp. 1-1—1-3; JGPO-NavFac, Pacific 2014, pp. ES-1—ES-34; JGPO-NavFac, Pacific 2015, pp. ES-1—ES-40;
The Final 2015 SEIS focuses on changes to the proposed actions and alternatives identified in the 2010 Final EIS (JGPO-NavFac, Pacific 2014, p. ES-1) and 2014 Draft SEIS (JGPO-NavFac, Pacific 2015, pp. ES-1—ES-40;
The Final SEIS describes: (1) More moderate construction activity over 13 years instead of a 7-year intense construction boom; (2) a significant reduction in projected peak population increase (from 79,000 to less than 10,000) and steady state population increase (from 33,000 to approximately 7,400); (3) a reduction in the project area at Finegayan from 2,580 ac (1,044 ha) to 1,213 ac (491 ha); (4) utilization of 510 ac (206 ha) of existing infrastructure on Andersen AFB for family housing; (5) no new land acquisition; (6) a reduction in project area at Northwest Field (instead of Route 15); and (7) an overall decrease in power and water demands (JGPO-NavFac, Pacific 2014, p. ES-3; JGPO-NavFac, Pacific 2015, p. ES-11;
Concurrent with the relocation efforts discussed above, the U.S. Marine Corps (the Executive Agent designated by the U.S. Pacific Command) published their “Commonwealth of the Northern Mariana Islands (CNMI) Joint Military Training (CJMT) Draft Environmental Impact Statement (EIS)-Overseas Environmental Impact Statement (OEIS)” (herein referred to as the “CJMT Draft EIS-OEIS”) (CNMI Joint Military Training Draft EIS-OEIS at
The northern two-thirds of Tinian are leased to the Department of Defense (DOD), and the development of these lands will negatively impact the habitat of 2 of the 23 species addressed in this final rule, the plant
Additionally the entire Mariana archipelago is located within the Mariana Islands Training and Testing (MITT) Study Area, which comprises air, land, and sea space, and includes the existing Mariana Islands Range Complex (MIRC), its surrounding seas, and a transit corridor between the MIRC and the Navy's Hawaii Range Complex, where training and testing activities may occur. The MIRC is the only Navy range complex in the MITT Study Area (JGPO-NavFac, Pacific 2013, pp. 1-3; Mariana Islands Training and Testing
In addition to military spending, Guam's economy depends on tourism. More than one million tourists visit Guam annually, mostly arriving from Japan, Korea, and other Asian countries. In the early 1960s, military contributions to Guam's economy approached 60 percent, with tourism adding almost another 30 percent. There was a downturn in military presence in the 70s and 80s. Also at this time, the growth of a private economy occurred, fueled by tourism (Guampedia
An increase in human population, whether from tourism or a military presence, also increases the type and intensity of stressors on endangered and threatened species. These stressors range from increased development, which results in loss of habitat, to increased risk for introduction of harmful nonnative species, which directly or indirectly impact native species and their habitats. As Guam is seeking a “no visa required” status for visitors from Russia and China (Guam Visitor Bureau 2014, p. 33), monitoring of sea ports and airports against inadvertent introduction of harmful and invasive species is especially important (see “
Micronesia is made up of six island groups: (1) Mariana Islands; (2) Caroline Islands, consisting of the sovereign island nation of the Federated States of Micronesia (Yap, Chuuk, Pohnpei, and Kosrae) and the independent island nation of the Republic of Palau; (3) Gilbert Islands (politically the Republic of Kiribati); (4) Marshall Islands (politically the Republic of the Marshall Islands); (5) Nauru (politically the Republic of Nauru, the world's smallest republic, consisting of a single phosphate rock island); and (6) Wake Island (also known as Wake Atoll, an unorganized, unincorporated territory of the United States). Micronesia, together with Polynesia, is described as the “Polynesia-Micronesia Hotspot,” reflecting the fact that these island groups contain an exceptional concentration of endemic (found nowhere else in the world) species, and are currently experiencing exceptional habitat loss (Myers
Please see the proposed rule (79 FR 59364; October 1, 2014) for a description of each of the 14 Mariana Islands; a map of the islands is included here as Figure 1. The below island descriptions are included in this final rule because they include at least one substantial change since publication of the proposed rule. These sections reflect new information received during the two comment periods on the proposed rule.
Guam is the largest and southernmost island of the Mariana Islands. It is nearly 31 miles (mi) (50 kilometers (km)) long and from 4 to 9 mi (7 to 15 km) wide, with a peak elevation of 1,332 feet (ft) (406 meters (m)) at Mt. Lamlam (Muller-Dombois and Fosberg 1998, p. 269). Guam is located in the northwestern Pacific Ocean, 1,200 mi (1,930 km) east of the Philippines, 3,500 mi (5,632 km) west of the Hawaiian Islands, and 54 mi (87 km) south of Rota. The northern and southern regions of the island show marked contrast due to their geologic history. The northern region is an extensive, upraised, terraced, limestone plateau or “mesa” between 300 and 600 ft (90 and 180 m) above sea level interrupted by a few low hills, of which two (Mataguac and Mt. Santa Rosa) are volcanic in nature, while others are exclusively coralline limestone (
Of all the Mariana Islands, Guam contains the most extensive stream and drainage systems, particularly in the Talofofo Region (Stone 1970, p. 13; Muller-Dombois and Fosberg 1998, p. 269). Fairly extensive wetland areas are located on both coasts of the southern region as well as at Agana Swamp
Just northeast of Guam (36 mi; 58 km) and southwest of Aguiguan (47 mi; 76 km), Rota is the fourth largest island in the Mariana Islands, measuring 33 square miles (mi
Rota has experienced land alterations since the arrival of the first Chamorro more than 4,000 years ago. When the Mariana Islands were occupied by the Japanese (1914-1944), they cleared forest areas to plant large sugarcane plantations and conducted phosphate mining on the Sabana plateau (Amidon 2000, pp. 4-5; Engbring
Aguiguan is known as “Goat Island” due to the presence of a large feral goat population (Engbring
Located approximately 3 mi (5 km) southeast of Saipan and 7 mi (9 km) north of Aguiguan, Tinian is the third largest island in the Mariana Islands, measuring 40 mi
Located approximately 3 mi (4.5 km) northeast of Tinian, Saipan is the second largest and second most populous of the Mariana Islands, measuring 44 mi
Located 42 mi (68 km) from Agrihan and 30 mi (48 km) from Alamagan, Pagan is the fifth largest island in the Marianas archipelago, and the largest of the northern Mariana Islands, with an area of 19 mi
The descriptions for each of the remaining northern islands in the Mariana Archipelago remain unchanged from the proposed rule and, therefore, are not included in this final rule. Please refer to the proposed rule (79 FR 59364; October 1, 2014) for further information.
In the Mariana Islands, as within most archipelagos, native species that occur in the same habitat types (ecosystems) depend on many of the same biological features and the successful functioning of that ecosystem to survive. We have, therefore, organized the species addressed in this final rule by common ecosystems. Although the listing determination for each species is analyzed separately, we have organized the individual analysis for each species within the context of the broader ecosystem in which it occurs for efficiency and to reduce repetition for the reader. In addition, native species that share ecosystems often face a suite of common factors that may be a threat to them, and ameliorating or eliminating these threats for each individual species often requires the same management actions in the same areas. Cost-effective management of these threats often requires implementation of conservation actions at the ecosystem level to enhance or restore critical ecological processes and provide long-term viability of species and their habitat. Organizing the 23 Mariana Islands species by shared ecosystems may also set the stage for a conservation management approach of protecting, restoring, and enhancing critical ecological processes at an ecosystem scale for the long-term viability of all associated native species in a given ecosystem type and locality, thus potentially preventing the future imperilment of any additional species that may require protection.
Based on the best available scientific and commercial data, including information received during the comment period on our proposed rule (79 FR 59364; October 1, 2014), we are listing the plants
These 23 Mariana Islands species are found in four ecosystem types: Forest, savanna, stream, and cave (Table 2). Of the 23 species, only the Pacific sheath-tailed bat (Mariana subspecies) is found in more than one ecosystem type (forest and cave).
For each species, we identified and evaluated those factors that are threats to each individual species specifically (species-specific threats), as well as those factors which pose common threats to all of the species of a given ecosystem type (ecosystem-level threats). For example, the degradation of habitat by nonnative ungulates is considered a direct or indirect threat to 17 of the 23 species listed as endangered or threatened in this final rule. We have labeled such threats that are shared by all species within the same ecosystem as “ecosystem-level threats,” because they impact all species inhabiting that ecosystem type in terms of the nature of the impact, its severity, timing, and scope. Beyond ecosystem-level threats, we further identified and evaluated species-specific threats that may be unique to certain species, and not shared by all other species in the same ecosystem. For example, the threat of predation by nonnative flatworms is unique and specific to the four tree snails addressed in this final rule.
As noted above, for the purposes of organizing our threats discussion for the 23 species by shared habitats, we have identified four broad Mariana Islands ecosystems: forest, savanna, stream, and cave, based on physical features, elevation, substratum, vegetation type, and hydrology (see
There are two substrate types in the forest ecosystem, limestone and volcanic (Stone 1970, pp. 9, 14, 18-24; Falanruw
Native canopy species in the forest ecosystem (as defined here) include but are not limited to:
Dominant canopy, subcanopy, and understory species can vary from one location to the next on the same island, and from island to island. These species can be endemic to one island, occur on one or more of the southern islands, or occur on one or more of the northern islands. In addition, biologists have
In order to avoid confusion regarding the number of populations of each species (
The Service does not concur that there are enough data to determine that this species is uniformly distributed across the Sabana, and subsequently cannot support the extrapolation of numbers for this species to be as high as 16,000, although it is possible. The healthy population structure of
Just 10 years ago,
Currently, there are 15 to 20 occurrences of
On Rota, there are four known occurrences within the forest ecosystem, totaling fewer than 111,500 individuals (Marler 2013, in litt.). On the northeast shore the first occurrence totals fewer than 25,500 individuals; the second occurrence, on the northwest shore, totals fewer than 21,600 individuals; the third occurrence on the south shore totals fewer than 63,600 individuals; and the fourth occurrence on Wedding Cake peninsula totals fewer than 300 individuals.
There are likely a relatively limited number of individuals of
Yap consists of a group of four islands, three of which are separated by water but share a common reef, with a total land area of 39 mi
The nonnative cycad aulacaspis scale quickly causes mortality of all life stages of
Currently, there are at least 21 occurrences totaling approximately 1,250 individuals distributed on the islands of Guam, Rota, Tinian, and Aguiguan; this is more than twice as many individuals as were known at the time of the proposed rule. On Guam, there are 4 occurrences totaling fewer than 250 individuals (Quinata
Additionally, Zarones
On all islands on which it is known to occur (historically or present),
Currently,
Historically,
Although Wiles stated that there is strong evidence that
Historically,
The Service supports the conclusion that there may be several thousand more individuals across the Sabana. The cumulative data indicate that
Zarones
Data indicate that populations of
In summary, the species
Once ranging across multiple islands,
In 2004,
Despite the increased number of known individuals of
While these discussions note that additional research on the taxonomy of
In summary, the species
Currently,
In summary, populations of
The Mariana subspecies of the Pacific sheath-tailed bat (
Taxonomically, four subspecies of Pacific sheath-tailed bats are currently recognized:
Once common and widespread throughout Polynesia and Micronesia, the Pacific sheath-tailed bat, represented by the four subspecies, is the only insectivorous bat recorded from a large part of this area (Hutson
In the Mariana Islands, fossil evidence indicates the Mariana subspecies (
Currently, the Aguiguan bat population consists of several roosting colonies estimated to number between 359 to 466 individuals (Wiles and Worthington 2002, p. 15; Wiles 2007, pers. comm.; O'Shea and Valdez 2009, pp. 2-3; Wiles
Despite observed declines in populations of most Pacific sheath-tailed bat subspecies elsewhere, as well as with the Marianas subspecies in general across the Marianas Archipelago, researchers have recorded a small increase in the observed number of bats on Aguiguan in past years, starting with 98 individuals in 1995, up to 285 to 364 bats in 2003, and 359 to 466 bats in 2008 (Wiles
Breeding of Pacific sheath-tailed bats is timed to coincide with offspring born during the onset of the rainy season when there are predictably greater numbers of insect prey. Pacific sheath-tailed bat females produce one pup per litter annually, which translates into relatively low fecundity for the species (Wiles
The Pacific sheath-tailed bat is also known to share roosting caves with Mariana swiftlets (birds,
Some information about the Pacific sheath-tailed bat's biology and life history, including reproduction, habitat use, diet, and limiting factors, has been historically difficult to observe and collect due to a variety of factors
Earlier surveys of habitat use on Aguiguan in 2003 revealed that the Pacific sheath-tailed bat forages almost entirely in native and nonnative forests near their roosting caves, ignoring non-forested habitats on the island (Esselstyn
In summary, the Mariana subspecies of the Pacific sheath-tailed bat (
Slevin's skink (
Surveys conducted in the 1980s and 1990s show that Slevin's skink was once present on the northern islands of Sarigan, Guguan, Alamagan, Pagan, and Asuncion (Vogt 1997, in litt.; Berger
After the eradication of feral ungulates from the island of Sarigan in 1998, the catch rate of skinks (number of lizards captured per hour) roughly quadrupled in a survey conducted in 2007 (Vogt 2007, p. 5-5; Kessler 2011, p. 322), which indicates the skinks are doing much better on Sarigan and that ungulates played a role in their prior decline. Numbers of Slevin's skinks trapped on Asuncion in surveys conducted in 2008 were quite low; only 3 individuals were captured following 350 hours of effort at 20 trap stations, translating to 0.008 per trap hour (Williams
Slevin's skink measures 3 in (77 mm) from snout to cloaca vent (the opening for reproductive and excretory ducts), although length can vary slightly (Vogt and Williams 2004, p. 65). Fossil remains indicate its prehistoric size was much larger, up to 4.3 in (110 mm) in length (Rodda 2010, p. 3). Slevin's skink is darkly colored, from olive to brown, with darker flecks in a checkerboard pattern, and a light orange to bright yellow underside (Vogt and Williams 2004, p. 65). Their skin tends to be shiny, and is very durable and tough. Juveniles may appear cream-colored (Vogt and Williams 2004, p. 65; Rodda 2010, p. 3).
Slevin's skink is a fast-moving, alert, insectivorous lizard, typically found on the ground or at ground level, and is active during the day. The species occurs in the forest ecosystem, with most individuals observed on the forest floor using leaf litter as cover (Brown and Falanruw 1972, p. 110; Cruz
Slevin's skink was most numerous in the Mariana Islands before the introduction of other competing lizards and predators, and loss of native forest (Vogt and Williams 2004, p. 65; Berger
The northern islands of its known occurrence provide less than 19,843 ac (8,030 ha) of land area, not all of which is suitable habitat. Slevin's skink is no longer found on the larger southern islands of Guam, Rota, and Tinian, which, combined, provided the great majority of its formerly occupied range, totaling an estimated 179,900 ac (72,800 ha). Even without considering its potential recent extirpation from Pagan, based on these numbers it is apparent that Slevin's skink has likely been reduced to just 10 percent of its overall historical range, and its remaining suitable habitat is a subset of that area.
In summary, once widespread, the remaining known populations of Slevin's skink are made up of a few individuals on Cocos Island, where habitat is limited and subject to overwashing, and occurrences of undetermined numbers of individuals on Alamagan, Guguan, Sarigan, and Asuncion. Slevin's skink persists in low numbers observed on Cocos Island, is possibly extirpated from Pagan, and has not been reobserved on Guam, Rota, Tinian, or Aguiguan. Of the nine islands from which it was formerly known, Slevin's skink is known to be recovering to some degree from the effects of past threats (nonnative ungulates) only on the island of Sarigan; however, other threats remain on this island (
The Mariana eight-spot butterfly (
The larvae of this butterfly feed on two native plants,
Recent surveys conducted across Guam confirmed the occurrence of the Mariana eight-spot butterfly in six areas on the island (Lindstrom and Benedict 2014, p. 9). This survey report did not provide estimates for the number of individuals per population. Lindstrom and Benedict (2014, p. 9) stated that there are currently only 6 populations of this species, not the 11 populations cited in the October 1, 2014, proposed rule (79 FR 59364). We do not believe this difference reflects a reduction in the number of populations since the publication of the proposed rule, however. In part, this discrepancy in numbers may lie in the definition of a “current population.” We distinguish populations as separate if they are 3,280 ft (1,000 m) or more apart, and define
On Saipan, several areas were found that supported host plants in 2011 and 2012; however, no individuals of the Mariana eight-spot butterfly were seen, and it may be extirpated on Saipan (Schreiner and Nafus 1997, p. 26; Harrington
In summary, the Mariana eight-spot butterfly is now found in only six populations on the island of Guam. This butterfly is dependent upon two relatively rare host plant species, both of which are susceptible to the effects of ungulate grazing. The Mariana eight-spot butterfly is vulnerable to the impacts of continued habitat loss and destruction from agriculture, urban development, nonnative animals and plants, and typhoons. We anticipate the effects of climate change will further exacerbate many of these threats in the future. Herbivory of its host plants by nonnative animals, combined with direct predation by ants and parasitic wasps, contribute to the decline of the Mariana eight-spot butterfly.
The Mariana wandering butterfly (
Like most nymphalid butterflies, the Mariana wandering butterfly is primarily orange and black in coloration. This species is largely black in appearance with a prominent orange irregular pattern extending from the forewings to the hindwings. Obvious stripes or rows of spots are lacking (Schreiner and Nafus 1997, plate 9). The caterpillar larva life stage of this species is brown in color with black-colored spikes (Schreiner and Nafus 1996, p. 10).
Mariana wandering butterflies are known to be good fliers, and in earlier times, probably existed as a series of meta-populations (Harrison
Historically, the Mariana wandering butterfly was originally collected and described from the island of Guam where it was considered to be rare, but widespread (Swezey 1942, p. 35). The species has not been observed on Guam since 1979, where it was last collected in Agana. Currently, it is considered likely extirpated from Guam (Schreiner and Nafus 1996, pp. 1-2; Rubinoff 2013, in litt.). The Mariana wandering butterfly was first collected on Rota in the 1980s (Schreiner and Nafus 1996, p. 10). During several 1995 surveys on Rota, it was recorded at only one location among six different sites surveyed (Schreiner and Nafus 1996, pp. 1-2). From June through October 2008, extensive surveys for the Mariana wandering butterfly were conducted on the island of Tinian under the direction of the Service. While several
Although considered extirpated from Guam, whether the Mariana wandering butterfly continues to exist on Rota is unknown, since the island has not been surveyed specifically for this butterfly since 1995. It is possible this species occurs on the northern islands where host plants are found (Rubinoff 2014, in litt.), although there is no record of its presence. Several years of seasonal surveys are needed to determine the status of this species, but if it persists, it is likely in very low numbers as it has not been observed in many years. Any remaining populations of the Mariana wandering butterfly continue to be at risk from ongoing habitat loss and destruction by rats and typhoons. We anticipate the effects of climate change will further exacerbate many of these threats in the future. Herbivory of its host plant by nonnative animals, combined with direct predation by ants and parasitic wasps, contribute to the decline of the Mariana wandering butterfly.
The Rota blue damselfly (
Resembling slender dragonflies, damselflies are readily distinguished by their trait of folding their wings parallel to the body while at rest rather than holding them out perpendicular to the body. The general biology of narrow-winged damselflies includes territorial males that guard areas of habitat where females will lay eggs (Moore 1983a, p. 89; Polhemus and Asquith 1996, pp. 2-7). During copulation, and often while the female lays eggs, the male grasps the female behind the head with terminal abdominal appendages to guard the female against rival males; thus males and females are frequently seen flying in tandem. Adult damselflies are predaceous and feed on small flying insects such as midges and other flies.
The immature larval life stages (naiads) of the vast majority of damselfly species are aquatic, breathe through flattened abdominal gills, and are predaceous, feeding on small aquatic invertebrates or fish (Williams 1936, p. 303). Females lay eggs in submerged aquatic vegetation or in mats of moss or algae on submerged rocks, and hatching occurs in about 10 days (Williams 1936, pp. 303, 306, 318; Evenhuis
The Rota blue damselfly was first discovered in April 1996, when a few individuals were observed and one male and one female specimen were collected outside the Talakhaya Water Cave (also known as Sonson Water Cave) located below the Sabana plateau (Camacho
Eighteen years elapsed between the original discovery of the species in 1996 and the next known survey for the Rota blue damselfly. In January 2014, two male specimens were observed flying above a portion of the stream located at approximately 770 ft (235 m) in elevation, and below the Talakhaya (Sonson) Water Cave (Richardson 2014, in litt.). No specimens were observed immediately in the vicinity of the water cave entrance, and no fish were observed in the stream immediately below the cave entrance (Richardson 2014, in litt.). This is a notable observation because many damselfly species endemic to Pacific islands are known to be susceptible to predation by nonnative fish species that eat the naiad life stage of the damselfly. In November 2015, Zarones
Predation by nonnative fish is a serious threat to the Hawaiian
The Rota blue damselfly appears to be extremely limited in range and researchers remain perplexed by its absence from other Mariana Islands (Polhemus
The humped tree snail (
The shell of the humped tree snail can be left- or right-coiling, conic-ovate, translucent, with evenly spaced spiral sculpturing (Cowie 2014, in litt.). The color ranges from white to brown, and a pointed apex is colored rose-red, with a milky white suture. Adult snails are from 0.6 to 0.7 in (14 to 18 mm) long, and 0.4 to 0.6 in (10 to 14 mm) wide, with 4.5 whorls, the last of which is the largest (Pilsbry 1909-1910, in Crampton 1925, p. 60; Smith
The humped tree snail occurs in cool, shaded forest habitat as first observed by Crampton (Crampton 1925, pp. 31, 61), with high humidity and reduced air movement that prevents excessive water loss. Crampton (1925, pp. 31, 61) described the habitat requirements of the partulid tree snails as having “sufficiently high and dense growth to provide shade, to conserve moisture, and to effect the production of a rich humus. Hence the limits to the areas occupied by tree snails are set by the more ultimate ecological conditions which determine the distribution of suitable vegetation.” Crampton further notes that the Mariana Islands partulid tree snails live on subcanopy vegetation and are not found in high canopy. Although tree snails in the Mariana Islands likely evolved to live upon native vegetation, there is no clear indication of obligate relationships with any particular type of tree or plant (Fiedler 2014, in litt.). Further, Mariana partulid snail species are observed to use nonnative “home plants” to which they have apparently adapted (Fiedler 2014, in litt.). Although it has been suggested that native crabs may prey on Mariana partulid snails (Fiedler 2014, in litt.), they are not regarded as a major threat to these tree snails compared to alien carnivorous flatworms (
Following is a brief historical overview of the humped tree snail in the Mariana archipelago. Crampton (1925, pp. 8, 25, 60) first observed the humped tree snail on Guam, in at least 39 sites, totaling more than 3,000 individuals. In 1989, Hopper and Smith (1992, p. 81) resurveyed 34 of Crampton's 39 sites and did not locate any live individuals; however, they discovered individuals at a new site not noted by Crampton. In 2009, the number of individuals of the humped tree snail on Guam was thought to have declined from hundreds to fewer than 50 individuals (Smith
Bauman (1996, pp. 15, 18) surveyed Rota and reported finding live humped tree snails at 5 out of 25 former sites. The largest of these populations may have totaled as many as 1,000 snails. However, this population was located along the main road of Rota and was subsequently cleared for development (Miller 2007, pers. comm.), thus we conclude this population is no longer extant since its suitable habitat at this site was removed. Four other populations on Rota in 2007 were small and totaled fewer than 600 individuals, collectively. Crampton was unable to visit Tinian, although he states that tree snails were known from that island (Crampton 1925, p. 6). Smith reported finding only very old shells on two surveys (2006 and 2008) of Tinian (Smith 2013, p. 6). The humped tree snail was thought to be extirpated from Tinian, until a recent survey located a single colony in a very isolated spot on the island (NavFac 2014, pp. 5-5—5-7).
The humped tree snail was discovered on Aguiguan in 1952, in six colonies (biologists often refer to snail populations as “colonies”) (Kondo 1970, pp. 75, 81). In 1992, two separate surveys reported snails observed at four locations on Aguiguan (Craig and Chandran 1992, p. 8; Smith 1995, pp. 13-14), but by 2008, no live snails were found on this island (Smith 2013, p. 14). On Saipan, Crampton collected almost 7,000 humped tree snails in 1925 (Crampton 1925, p. 62). By 1991, Smith and Hopper (1994, p. 11) could not find any live snails at 12 sites visited on the island; however, 2 small populations were later discovered, one in 2002, in the central forest area, and another in a mangrove wetland in 2010 (Bourquin 2002, in litt.; Hadfield 2010, pp. 20-21).
In 1994, Kurozumi reported approximately 20 individuals from Anatahan; however, these were possibly extirpated due to violently destructive volcanic eruptions between 2003 and 2005 (Kessler 2011, p. 321). Kurozumi also reported humped tree snails from Sarigan in 1994, and the population appears to be increasing as a result of the removal of ungulates. A survey of Sarigan in 2006 found the healthiest population in native forest at an elevation of approximately 1,300 ft (400 m) (Smith 2006 in Martin
In summary, populations of the humped tree snail are rapidly decreasing from initial numbers observed, and with continued habitat loss and predation by nonnative species, are at risk. The effects of future climate change are likely to have negative
Preliminary new data, soon to be published but still under review, suggest that the individuals identified as humped tree snails on Rota may be a different species (Hadfield 2010, pp. 20-21; Sischo and Hadfield 2015, under review). The species description for this newly identified partulid on Rota, tentatively named
Langford's tree snail (
Langford's tree snail has a dextral (to the right or clockwise from the opening of the shell at the lower right, as opposed to sinistral, to the left, or counterclockwise) shell, described by Kondo (1970, pp. 75-77) as being ovate-conic and moderately thin. The holotype of this species has a length of 0.6 in (14 mm), a diameter of 0.4 in (9 mm), and an aperture length of 0.3 in (8 mm). It has a spire of five whorls that are slightly convex, with an obtuse apex. Its aperture is oblong-ovate with the white mouth projections thickened and expanded. It is buff colored superimposed by maroon.
Although much less studied than related partulid snails from the Mariana Islands, the biology of Langford's tree snail is believed to be the same. See “Humped tree snail (
Historically, Langford's tree snail is known only from the island of Aguiguan. In the 1970 survey of Aguiguan, it was noted that Langford's tree snail was collected from an area where it occurred sympatrically with the humped tree snail (Easely 1970, p. 89). The mixed populations were not uniformly distributed, but occurred in small colonies with large unoccupied areas between the colonies. In five of the sites, the Langford's tree snail outnumbered the humped tree snail, and it appeared that humped tree snails were more numerous and dominant in the western portion of the site while Langford's tree snails were dominant in the eastern portion of the site (Kondo 1970, p. 81). Three other colonies of Langford's tree snail were collected, two on the north coast and one on the west end of Aguiguan (Kondo 1970, p. 81). A total of 464 adults were collected from 7 sites (Kondo 1970, p. 81). In 1985, five adult Langford's tree snails were collected from the west end of the island (Smith 1995). The last survey in which the species was detected in the wild was conducted in 1992, and one live snail was observed on the northwest terrace of the island (Smith 1995). Surveys of Aguiguan in 2006 and 2008 failed to locate any live Langford's tree snails (Smith 2013, p. 14).
In 1993, the University of Nottingham in England had six young and four adult Langford's tree snails in captivity. By 1994, two adult snails remained. Unfortunately, at the end of 1994, the last two Langford's tree snails died (Pearce-Kelly
The 2005 Comprehensive Wildlife Conservation Strategy for CNMI (Division of Fish and Wildlife) (Berger
In summary, Langford's tree snail is at risk from threats associated with small numbers of individuals and populations (
The Guam tree snail (
The shell of the Guam tree snail is pale straw-colored with darker streaks and brown lines, and has impressed spiral lines. Adult length is 0.5 to 0.7 in (13 to 18.5 mm), width is 0.3 to 0.5 in (8 to 12 mm), with five slightly convex whorls (Pilsbry 1909-1910 in Crampton 1925, p. 35; Smith
Historically, suitable habitat for the Guam tree snail was widely available
Of the 13 new sites surveyed by Hopper and Smith in 1989, 7 supported populations of the Guam tree snail. One of these populations was eliminated by wildfires that burned into ravine forest occupied by the snails in 1991 and 1992 (Smith and Hopper 1994, pp. 10-11). Further surveys by Smith (1995, pp. 1-25) revealed five new populations of the Guam tree snail. According to Smith, by 1995, there were 20 sites that still supported small populations of the Guam tree snail. Snails were moved from 1 of these 20 sites to a new location due to the development of a golf course (Smith 1995, pp. 6-11). In 2003 an additional small colony (fewer than 100 snails) was found on the U.S. Naval Base (Smith 2006, pers. comm.). A smaller colony (20 to 25 snails) was found in 2004 along the Lonfit River (Smith 2006, pers. comm.). Additionally, surveys on the Guam Naval Magazine located another new population, with shells of tree snails in abundance on the ground at all locations (Miller 2006, pers. comm.; JGPO-NavFac 2014 apps, pp. 27, 59).
Further surveys of lands leased by the Navy in 2009 indicated a decline in densities of tree snails by about half, which was attributed to a loss of native understory (Smith
Lindstrom and Benedict (2014, p. 27) conducted a genetic analysis using snail slime collected at 20 sites around Guam. The results from this genetic analysis showed the Guam tree snail has a very low degree of genetic diversity between all the surveyed populations, which makes this species vulnerable to extinction pressures associated with low numbers of individuals and populations (
Overall, populations of the Guam tree snail continue to decline, from first observations of at least 37 populations as observed by Crampton, down to 26 colonies or fewer today. Continued loss of habitat due to development and removal of native plants by ungulates contribute to this loss, trade of shells by collectors may be a threat, and predation by the invasive manokwari flatworm is likely a significant source of mortality (see Summary of Biological Status and Threats Affecting the 23 Mariana Islands Species, below). We anticipate the effects of climate change will further exacerbate many of these threats in the future.
The fragile tree snail (
The conical shell of the fragile tree snail is 0.5 to 0.6 in (12 to 16 mm) long, 0.4 to 0.5 in (10 to 12 mm) wide, and is formed by four whorls that spiral to the right. The common name is derived from the thin, semi-transparent nature of the shell. The shell has delicate spiral striations intersected by transverse growth striations. The background color is buff, tinted by narrow darker marks and whitish banding that are derived from the internal organs of the animal that are visible through the shell (Mollendorff 1894 in Crampton 1925, p. 31). Sometimes the Guam tree snail and fragile tree snail are difficult to distinguish from one another and DNA comparison is necessary to determine the identity (Fiedler 2014, in litt.). The biology and habitat for this partulid tree snail are the same as those described for the three partulid species described above (see the “Humped tree snail (
Historically, the fragile tree snail was known from 13 populations on Guam and 1 population on Rota (Crampton 1925, p. 30; Kondo 1970, pp. 86-87). Easely (1970, p. 86) documented the 1959 discovery of the fragile tree snail on Rota by R.P. Owen. The same area had been surveyed just 7 years earlier by Benavente and Kondo, in 1952, but the fragile tree snail was not observed (Easley 1970, p. 87). In 1989, Hopper and Smith (1992, p. 78) resurveyed Crampton's original sites plus 13 more, all on Guam. At that time, they found fragile tree snails at only six sites. The most recent surveys on Guam for the fragile tree snail were conducted in 2008, 2011, 2013, and 2014. Currently, two colonies are known on Guam (Smith
We lack quantitative estimates of population sizes for the fragile tree snail (Bauman 1996, p. 21), but Crampton (1925, p. 30) originally described this species as rare and low in numbers. Available data indicate the number of known colonies has declined between 1925 and the present, from approximately 14 colonies to only 3 colonies.
In summary, populations of the fragile tree snail are decreasing from initial numbers observed on Guam and Rota, and are at risk, due to continued habitat loss and destruction from agriculture, urban development, nonnative animals and plants, and typhoons. We anticipate the effects of climate change will further exacerbate many of these threats in the future. Trade of shells by collectors, combined with direct predation by rats and flatworms, also contribute to the decline of the fragile tree snail. Low numbers of individuals likely contribute to population declines through loss of vigor and genetic representation.
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination. Each of these factors is discussed below.
In considering what factors might constitute threats to a species, we must look beyond the exposure of the species to a particular factor to evaluate whether the species may respond to that factor in a way that causes actual impacts to the species. If there is exposure to a factor and the species responds negatively, the factor may be a threat, and, during the status review, we attempt to determine how significant a threat it is. The threat is significant if it drives, or contributes to, the risk of extinction of the species such that the species warrants listing as an endangered or threatened species as these terms are defined in the Act. However, the identification of factors that could impact a species negatively may not be sufficient to warrant listing the species under the Act. The information must include evidence sufficient to show that these factors are operative threats that act on the species to the point that the species meets the definition of an endangered or threatened species under the Act.
If we determine that the level of threat posed to a species by one or more of the five listing factors is such that the species meets the definition of either endangered or threatened under section 3 of the Act, that species may then be proposed for listing as an endangered or threatened species. The Act defines an endangered species as “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The threats to each of the individual 23 species listed as endangered or threatened species in this final rule are summarized in Table 3, and discussed in detail below. Since there are 15 islands in the Mariana Islands, Table 4 (below) is provided as a supplement to Table 3, to allow the reader to better understand the presence of nonnative species addressed in this final rule that negatively impact the 23 species on an island-by-island basis.
The available scientific research on each of the species listed as endangered or threatened species in this final rule is limited because of their rarity and the challenging logistics associated with conducting fieldwork in the Mariana Islands (
The following constitutes a list of ecosystem-scale threats that affect the 23 species addressed in this final rule, in the four described ecosystems on the Mariana Islands:
(1) Foraging and trampling of native plants by feral pigs, goats (
(2) Ungulate destruction of seeds and seedlings of native plant species through foraging and trampling facilitates the conversion of disturbed areas from native to nonnative vegetative communities (Cuddihy and Stone 1990, p. 65).
(3) Disturbance of soils by feral pigs from rooting can create fertile seedbeds for alien plants, some of them spread by ingestion and excretion by pigs (Cuddihy and Stone 1990, p. 65; Kessler 2011, pp. 320, 323).
(4) Increased nutrient availability as a result of pigs rooting in nitrogen-poor soils, which facilitates establishment of alien weeds. Introduced vertebrates are known to enhance the germination of alien plants through seed scarification in digestive tracts or through rooting and fertilization with feces of potential seedbeds (Stone 1985, p. 253). In addition, alien weeds are more adapted to nutrient-rich soils than native plants (Cuddihy and Stone 1990, p. 65), and rooting activity creates open areas in forests, allowing alien species to completely replace native stands.
(5) Rodent damage to plant propagules, seedlings, or native trees, which changes forest composition and structure (Cuddihy and Stone 1990, p. 67).
(6) Feeding or defoliation of native plants by nonnative insects, which can reduce geographic ranges of some species, because the damage caused by these insects weakens the plants, making them more susceptible to disease or other predators and herbivores (Cuddihy and Stone 1990, p. 71).
(7) Nonnative insect predation on native insects, which affects native plant species by preventing pollination and seed set and dispersal, and can directly kill native insects (Cuddihy and Stone 1990, p. 71).
(8) Nonnative animal (rat, snake, and monitor lizard) predation on native birds, tree snails, bats, and skinks causes island extirpations or extinctions, in addition to altering seed dispersal of native plants (Cuddihy and Stone 1990, pp. 72-73).
(9) Future effects from climate change. Although we do not have specific information on the impacts of the effects of climate change to the 23 species, projected increases in ambient temperature and precipitation, as well as increased severity of typhoons, will likely exacerbate other threats to these species as well as provide additional stresses on their habitats. The probability of species extinction as a result of climate change impacts increases when its range is restricted, habitat decreases, and numbers of populations decline (IPCC 2007, p. 48), as is the case for the 23 species under consideration here.
Each of the above threats is discussed in more detail below, and summarized above in Table 3. The most-often cited effects of nonnative plants on native plant species are competition and displacement. Competition may be for water, light, or nutrients, or it may involve allelopathy (chemical inhibition of growth of other plants). Alien plants may displace native species of plants by preventing their reproduction, usually by shading and taking up available sites for seedling establishment. Alien plant invasions may also alter entire ecosystems by forming monotypic stands, changing fire characteristics of native communities, altering soil-water regimes, changing nutrient cycling, or encouraging other nonnative organisms (Vitousek
The consequences of past land use practices, such as agricultural or urban development, have resulted in little or no native vegetation remaining throughout the inhabited islands of the Mariana archipelago, largely impacting the forest, savanna, stream, and cave ecosystems (Steadman 1990, pp. 207-215; Steadman 1995, pp. 1,123-1,131; Fritts and Rodda 1998, pp. 119-120; Critical Ecosystem Partnership Fund 2007, pp. i-viii, 1-127). Areas once used for agriculture by the Chamorro are now being converted into residential areas, left fallow, or are being burned by hunters to attract deer (GDAWR 2006, p. 30; Boland 2014, in litt.). Guam's projected population increase by 2040 to 230,000 is an increase of almost 70 percent from that in 2010 (World Population Review 2014, in litt.). CNMI's current population of a little more than 51,000 is a decrease from that in 2010, due to collapse of the local garment industry (Eugenio 2009, in litt.). In their 2015 Final SEIS (
The military buildup on Guam was originally valued in excess of $10 billion (2.5 times the size of the current Guam economy), and was planned to take place over 4 years (Guam Economic Development Authority 2011, p. 58). The scope of the relocation of personnel has decreased since this estimate in 2011, but the relocation will still greatly affect infrastructure and resource needs (JGPO-NavFac, Pacific 2015, p. ES 3; CJMT EIS-OEIS 2015, pp. ES-1-ES-77;
The inhabited island of Tinian and the uninhabited island of Pagan are planned to be used for military training with live-fire weapons and presence of military personnel (see “Historical and Ongoing Human Impacts,” above). The northern two-thirds of Tinian are leased by the U.S. Department of Defense, and the development of these lands and effects from live-fire training will directly impact the tree
Most private lands on the island of Rota are on flat or low sloping ground. Low sloping grounds comprise approximately 66 percent of Rota's land base, and at least 75 percent of these lands are, or will soon be, committed to private use (CNMI Talakhaya-Sabana Conservation Action Plan (TSCAP)-CNMI Division of Environmental Quality (CNMI DEQ) 2012, p. 7). CNMI government programs call for the transfer of portions of public lands from public to private ownership through agriculture or village homestead programs (TSCAP-CNMI DEQ 2012, p. 7). In November 2007, the people of Rota voted to legalize casino gambling to increase tourism, and two development projects have been proposed. First, the Treasure Island Casino, which will build upon the existing Rota Hotel (CNMI Tourism Master Plan 2012, pp. 128-129; Zotomayor 2014, in litt.); and second, a casino designed around the existing Rota Resort and Country Club. Rota currently has seven operational hotels, and tourism is one of the island's primary industries, although a lack of reliable transportation currently limits the amount of visitors (CNMI Tourism Master Plan 2012, pp. 128-129). The 2012 CNMI Tourism Master Plan outlines ways to increase tourism and improve infrastructure on Saipan, Tinian, and Rota. Further development on Rota will cause an increase of water use, which will subsequently impact the Talakhaya Springs and the streams fed by the springs, as the Talakhaya Springs are the primary source of water used for human development on Rota. Specifically, dewatering of the streams on Rota could lead to elimination of the only known population of the Rota blue damselfly (see “Water Extraction,” below). Additionally, development around and within forested areas on Rota will also directly impact the forest habitat and individuals of
Other urban development (primarily involving housing development) will further impact the ecosystems that support native species. On Guam, a housing development is proposed for the Sigua highlands, where two of the plant species (
The total land area for all of the northern islands (within these species' current and historical range) is only 62 mi
In summary, development, military training, urbanization (Guam DAWR 2006, p. 69), and the associated destruction or degradation of habitat through loss of forest and savanna areas, disturbance of caves, and dewatering of streams, are serious threats to 13 of the 14 plants (
Animal species introduced by humans, either intentionally or accidentally, are responsible for some of the greatest negative impacts to the four Mariana Islands ecosystems described here (Stone 1970, pp. 14, 32; Intoh 1986 in Conry 1988, p. 26; Fritts and Rodda 1998, p. 130). Although there are numerous reports of myriad introduced animal species that have negatively impacted the four described Mariana Islands ecosystems, ranging from ungulates to insects (including such diverse animals as the musk shrew (
Like most oceanic islands, the Mariana Islands, and greater Micronesia, did not support indigenous populations of terrestrial mammalian herbivores prior to human colonization (Wiles
The presence of alien mammals is considered one of the primary factors underlying the alteration and degradation of native plant communities and habitats on the Mariana Islands. The destruction or degradation of habitat due to nonnative ungulates, including pigs, goats, cattle, water buffalo, and deer, is currently a threat to 17 of the 23 species addressed in this final rule, in 2 of the 4 ecosystems (forest and savanna) on 7 of the 15 Mariana Islands (Guam, Rota, Aguiguan, Tinian, Alamagan, Pagan, and Agrihan). Habitat degradation or destruction by ungulates is a threat to 10 of the 14 plant species (
Feral pigs are known to cause deleterious impacts to ecosystem processes and functions throughout their worldwide distribution (Aplet
In the Hawaiian Islands, pigs have been described as the most pervasive and disruptive nonnative influence on the unique native forests, and are widely recognized as one of the greatest current threats to Hawaii's forest ecosystems (Aplet
The feral goat population on Aguiguan increased from a handful of animals in 1992 to more than 1,000 in 2002, which led to the general destruction of the forest ecosystem due to lack of regeneration of native plants and almost complete loss of understory plants, leaving only two native plants that are unpalatable,
Goats have completely eliminated some plant species from islands (Mueller-Dombois and Fosberg 1998, p. 250; Atkinson and Atkinson 2000, p. 21). Goat browsing negatively impacts the habitat that supports the humped tree snail (on Aguiguan, Alamagan, and Pagan), and the fragile tree snail and Langford's tree snail (on Aguiguan) in the forest ecosystem by altering the essential microclimate, leading to increased desiccation and disruption of plant decay processes (Mueller-Dombois and Fosberg 1998, p. 250). On Agrihan, goats have destroyed much of the shrubs that make up the subcanopy, and the herbs in the understory (Ohba 1994, p. 19). In addition, goats eat the seeds and seedlings of one of the dominant Micronesian (Mariana Islands and Palau) endemic canopy species,
At present the number of feral cattle on Tinian is very low, and we do not consider feral cattle to currently pose a significant threat to the two species that occur on the island (the plant
In summary, the habitats for 17 of the 23 species within all 4 ecosystems (forest, savanna, stream, and cave) identified in this rule are exposed to ongoing destruction and modification by feral ungulates (pigs, goats, cattle, and water buffalo), and Philippine deer (10 plants:
Rats are recognized as one of the most destructive invasive vertebrates, causing significant ecological, economic, and health impacts (Cuddihy and Stone 1990, pp. 68-69; Atkinson and Atkinson 2000, pp. 23-24). Rats impact native plants by eating fleshy fruits, seeds, flowers, stems, leaves, roots, and other plant parts (Atkinson and Atkinson 2000, p. 23), and can seriously affect plant regeneration. A New Zealand study of rats in native forests has demonstrated that, over time, differential regeneration of plants, as a consequence of rat predation, may alter the species composition of forested areas (Cuddihy and Stone 1990, p. 69). Rats have caused declines or even the complete elimination of island plant species (Campbell and Atkinson 1999, in Atkinson and Atkinson 2000, p. 24). Plants with fleshy fruits are particularly susceptible to rat predation (Stone 1985, p. 264; Cuddihy and Stone 1990, pp. 67-69).
Rats also impact the faunal composition of ecosystems by predation or competition with native amphibian, avian, invertebrate, mammalian, and reptilian species, often resulting in population declines or even extirpations; disruption of island trophic systems including nutrient cycling; and by the creation of novel vectors and reservoirs for diseases and parasites (Pickering and Norris 1996 in Wiewel
Rats are less numerous on Guam compared to Rota, Saipan, and Tinian, due to the presence of the brown treesnake (see “Brown Treesnake,” below) (Wiewel
The loss or severe reduction of so many bird species and other small native animal species on Guam has ecosystem-wide impacts, since many of these bird and small animal species were responsible for seed dispersal and pollination of native plants (Perry and Morton 1999, p. 137; Rodda and Savidge 2007, p. 311; Rogers 2008, in litt.; Rogers 2011, pp. 1-75). Some report that the brown treesnake has eliminated virtually all native seed dispersers (Fritts and Rodda 1998, p. 129). Field studies have demonstrated that seed dispersal of selected native plant species (
The brown treesnake's elimination of native plant seed dispersers is an indirect threat that negatively impacts 2 of the 4 described ecosystems (forest and savanna), and the habitat of 18 of the 23 species (all 14 plant species and 4 of the 9 animal species, including the Mariana eight-spot butterfly, the Guam tree snail, the humped tree snail, and the fragile tree snail) listed as endangered or threatened in this final rule.
Native vegetation on the Mariana Islands has undergone extreme alteration because of past and present land management practices, including ranching, the deliberate introduction of nonnative plants and animals, agricultural development, military actions, and war (Ohba 1994, pp. 17, 28, 54-69; Mueller-Dombois and Fosberg 1998, p. 242; Berger
The native flora of the Mariana Islands (plant species that were present before humans arrived) consisted of no more than 500 taxa, 10 percent of which were endemic (species that occur only in the Mariana Islands). Over 100 plant taxa have been introduced from elsewhere, and at least one third of these have become pests (
Nonnative plants degrade native habitat in the Mariana Islands by: (1) Modifying the availability of light through alterations of the canopy structure; (2) altering soil-water regimes; (3) modifying nutrient cycling; (4) altering the fire regime affecting native plant communities (
The following list provides a brief description of the nonnative plants that impose the greatest negative impacts to forest, savanna, and stream ecosystems and the species addressed in this final rule that depend on these ecosystems (all 14 of the plant species and 6 of the animal species, including the Mariana eight-spot butterfly, Rota blue damselfly, humped tree snail, Langford's tree snail, Guam tree snail, and fragile tree snail).
•
•
•
•
•
•
•
•
•
Fire is a human-exacerbated threat to native species and native ecosystems throughout the Mariana Islands, particularly on the island of Guam. Wildfires plague forest and savanna areas on Guam every dry season despite the island's humid climate, with at least 80 percent of wildfires resulting from arson (JGPO-NavFac, Pacific 2010b, p. 1-9). Deer hunters on Guam and Rota frequently create fires in order to lure deer to new growth for easier hunting (Boland 2014, in litt.; Kremer 2014, in litt.). It is not uncommon for these fires to become wildfires that spread across large expanses of the savanna ecosystem as well as into the adjacent forest ecosystem. Between 1979 and 2001, more than 750 fires were reported annually on Guam, burning more than 155 mi
Fire can destroy dormant seeds of native species as well as plants themselves, even in steep or inaccessible areas. Successive fires that burn farther and farther into native habitat destroy native plants and remove habitat for native species by altering microclimate conditions to those favorable to alien plants. Alien plant species most likely to be spread as a consequence of fire are those that produce a high fuel load, are adapted to survive and regenerate after fire, and establish rapidly in newly burned areas. Grasses (particularly those that produce mats of dry material or retain a mass of standing dead leaves) that invade native forests and shrublands provide fuels that allow fire to burn areas that would not otherwise easily burn (Fujioka and Fujii 1980 in Cuddihy and Stone 1990, p. 93; D'Antonio and Vitousek 1992, pp. 70, 73-74; Tunison
Wildfire is a threat to nine plant species (
The Mariana Islands lie in the western North Pacific basin, which is the world's most prolific typhoon basin, with an annual average of 26 named tropical cyclones between 1951 and 2010, depending on the database used (Keener
Typhoons may cause destruction of native vegetation and open the native canopy, thus modifying the availability of light, and creating disturbed areas conducive to invasion by nonnative pest species and nonnative plant species that compete for space, water, and nutrients, and alter basic water and nutrient cycling processes. This process leads to decreased growth and reproduction for all 14 plant species addressed in this final rule (see Table 3, above), and for the host plants (
Typhoons are a natural occurrence in the Pacific Islands, and the native species here have coevolved with such natural disturbances. However, when species have become greatly reduced in numbers or distribution due to other factors, even a natural disturbance can constitute a significant threat, and can result in local extirpation or even extinction. Typhoons pose a threat to the nine animal species listed as endangered species in this rule, because the associated high winds may dislodge larvae, juveniles, or adult individuals from their host plants, caves, or streams, thereby increasing the likelihood of mortality caused by lack of essential nutrients for proper development; increase their exposure to predators (
Our analyses under the Act include consideration of ongoing and projected changes in climate. The terms “climate” and “climate change” are defined by the Intergovernmental Panel on Climate Change (IPCC). “Climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (Le Treut
Climate change will be a particular challenge for the conservation of biodiversity because the introduction and interaction of additional stressors may push species beyond their ability to survive (Lovejoy 2005, pp. 325-326). The synergistic implications of climate change and habitat fragmentation are the most threatening facet of climate change for biodiversity (Hannah
The range of global surface warming since 1979 is 0.29 degrees Fahrenheit (°F) to 0.32 °F (0.16 degrees Celsius (°C) to 0.18 °C) per decade (Trenberth
To date, climate change indicators specific to the Mariana Islands have not been published; however, data collected on climate change indicators from the Pacific Region, (
As global surface temperature rises, the evaporation of water vapor increases, resulting in higher concentrations of water vapor in the atmosphere, further resulting in altered global precipitation patterns (U.S. National Science and Technology Council (US-NSTC) 2008, pp. 60-61; US-GCRP 2009, pp. 145-146). While annual global precipitation has increased over the last 100 years, the combined effect of increases in evaporation and evapotranspiration is causing land surface drying in some regions leading to a greater incidence and severity of drought (US-NSTC 2008, pp. 60-61; US-GCRP 2009, pp. 145-146). Over the past 100 years, most of the Pacific has experienced an annual decline in precipitation; however, the western North Pacific (
Climate modeling has projected changes in typhoon frequency and intensity due to global warming over the next 100 to 200 years (Emanuel
On a global scale, sea level is rising as a result of thermal expansion of warming ocean water; the melting of ice sheets, glaciers, and ice caps; and the addition of water from terrestrial systems (Climate Institute 2011, in litt.). Sea level rose at an average rate of 0.1 in (3.1 mm) per year between 1961 and 2003 (IPCC AR4 2007, p. 30), with a predicted increase in 2100 of 1.6 to 4.6 ft (0.5 to 1.4 m) above the 1990 level (Rahmstorf 2007, p. 368). Seven of the 23 species (5 plants:
In summary, we conclude that the projected effects of climate change, including increased variability of ambient temperature, precipitation, typhoons, and sea-level rise and inundation would provide additional stresses on the 4 ecosystems and each of the 23 associated species because they are highly vulnerable to disturbance and related invasion of nonnative species, thus exacerbating the current threats to the species. The risk of extinction as a result of such factors increases when a species' range is restricted, its habitat decreases, and its population numbers decline (IPCC 2007, pp. 8-11). These 23 species face this greater risk of extinction due to the loss of redundancy and resiliency created by their limited ranges, restricted habitat requirements, small population sizes, or low numbers of individuals. We therefore conclude
There are no approved Habitat Conservation Plans, Candidate Conservation Agreements, or Strategic Habitat Areas that specifically address these 23 species and threats to their habitat.
In 2012, the Guam Plant Extinction Prevention Program (GPEPP) was formed to address conservation concerns for a select group of native Mariana Islands plant species, including three of the plant species addressed in this final rule:
A conservation project on Rota, administered through the Water and Environmental Research Institute of the Western Pacific at the University of Guam, is aimed to analyze the island's hydrology, with the ultimate goal of protection of the Sabana Watershed and Talakhaya Springs (Keel
A U.S. Fish and Wildlife Service Biological Opinion (1998) recommended that the Navy fund conservation and recovery projects in the Mariana Islands to improve habitat and population sizes of the federally listed Micronesian megapode as mitigation for bombing activities on Farallon de Medinilla. This resulted in the removal of ungulates from Sarigan, which has improved native habitat that supports two species in this final rule, the humped tree snail and Slevin's skink, by decreasing the impacts of trampling and browsing on native plants. Sarigan may serve as a location for recovery of Slevin's skink and the humped tree snail.
Since 1993, the U.S. Department of Agriculture, Wildlife Services' Brown Treesnake Program in Guam has been working to prevent the inadvertent spread of the snake to other locations, and to reduce negative impacts by the brown treesnake on economic and ecological resources. Experimentation with toxicant drops to control the brown treesnake is ongoing. The U.S. Department of Agriculture, Wildlife Services, is the lead agency for this work, in cooperation with the National Wildlife Research Center, U.S. Geological Survey, the U.S. Fish and Wildlife Service, and the U.S. Department of Defense. Results of the toxicant drops are currently under review (Phillips 2014, in litt.). Additionally, in fiscal year (FY) 2014, the Navy funded $1.8 million in projects to meet objectives for control, suppression, and eradication of brown treesnakes to benefit native species, including the 23 species addressed in this rule, and their habitat. Funding has been programmed to continue this effort through 2021. Also in FY2014 the Navy funded $3.3 million for control and containment to prevent the spread and establishment of brown treesnakes to new areas, including the CNMI where 17 of the 23 species addressed in this final rule occur.
Area 50, a 59-ac (24-ha) exclosure on Andersen AFB on Guam containing a relictual patch of limestone forest, was created to exclude ungulates and the brown treesnake (Hess and Pratt 2006, p. 2). This enclosure was maintained for ecosystem and species experimental research. Several individuals of the tree
Rota's Department of Fish and Wildlife constructed exclosures for two occurrences of
The Micronesian Challenge is a commitment by the Federated States of Micronesia, the Republic of Palau, the Republic of the Marshall Islands, Guam, and the CNMI to preserve at least 30 percent of near-shore marine resources
The threats to the habitats of each of the 23 Mariana Islands species are occurring throughout the entire range of each of the species, except where noted above, with consequent deleterious effects on individuals and populations of these species. These threats include land conversion by agriculture and urbanization, habitat destruction and modification by nonnative animals and plants, fire, the potential alteration of environmental conditions resulting from climate change, and compounded impacts due to the interaction of these threats. While the conservation measures described above address some threats to the 23 species, due to the pervasive and expansive nature of the threats resulting in habitat degradation, these measures are insufficient to eliminate these threats to any of the 23 species addressed in this final rule.
Development and urbanization represents a serious and ongoing threat to 21 of the 23 species because they cause permanent loss and degradation of habitat.
The effects from ungulates are ongoing because ungulates currently occur in all 4 ecosystems that support the 23 species in this final rule. The threat of habitat destruction and modification posed by introduced ungulates is serious, because they cause: (1) Trampling and grazing that directly impacts plants, including 10 of the 14 plant species addressed in this rule, and the 2 host plants used by the Mariana eight-spot butterfly for shelter, foraging, and reproduction; (2) increased soil disturbance, leading to mechanical damage to individuals of 10 of the 14 plant species, and also the host plants for the Mariana eight-spot butterfly; (3) creation of open, disturbed areas conducive to weedy plant invasion and establishment of alien plants from dispersed fruits and seeds, which results over time in the conversion of a community dominated by native vegetation to one dominated by nonnative vegetation; and (4) increased erosion, leading to destabilization of soils that support native plant communities, elimination of herbaceous understory vegetation, and creation of disturbed areas into which nonnative plants invade. The brown treesnake and rats both negatively impact the four ecosystems by eating native animals that native plants rely on to disperse seeds, limiting the regenerative capacity of the native forest. These threats are expected to continue or increase without ungulate control or eradication.
Nonnative plants represent a serious and ongoing threat to 20 of the 23 species addressed in this final rule (all 14 plant species, the Mariana eight-spot butterfly, the Rota blue damselfly, and all 4 tree snails) (see Table 3) through habitat destruction and modification, because they: (1) Adversely impact microhabitat by modifying the availability of light; (2) alter soil-water regimes; (3) modify nutrient cycling processes; (4) alter fire characteristics of native plant habitat, leading to incursions of fire-tolerant nonnative plant species into native habitat; (5) outcompete, and possibly directly inhibit the growth of, native plant species; and (6) create opportunities for subsequent establishment of nonnative vertebrates and invertebrates. Each of these threats can convert native-dominated plant communities to nonnative plant communities (Cuddihy and Stone 1990, p. 74; Vitousek 1992, pp. 33-36). This conversion has negative impacts on all 14 plant species addressed here, as well as the native plant species upon which the Mariana eight-spot butterfly and the Rota blue damselfly depend for essential life-history needs. For example, nonnative plants that outcompete native plants can destabilize streambanks, exacerbating the potential for landslides and rockfalls, in turn dislodging Rota blue damselfly eggs and naiads from streams, and also displace or destroy vegetation used for perching by adults, leaving them more susceptible to predation.
The threat from fire to 11 of the 23 species in this final rule that depend on the savanna ecosystem and adjacent forest ecosystems (9 plant species:
Natural disasters, such as typhoons, are a threat to native terrestrial habitats on the Mariana Islands in all 4 ecosystems addressed here, and to all 14 plant species identified in this final rule, because they result in direct impacts to ecosystems and individual plants by opening the forest canopy, modifying available light, and creating disturbed areas that are conducive to invasion by nonnative pest plants (Asner and Goldstein 1997, p. 148; Harrington
We are not aware of any threats to the 14 plant species that would be attributed to overutilization for commercial, recreational, scientific, or educational purposes.
We are not aware of any threats to five of the nine animal species (the two Mariana butterflies, Pacific sheath-tailed bat, Slevin's skink, or Rota blue damselfly) addressed in this final rule that would be attributed to overutilization for commercial, recreational, scientific, or educational purposes. We do have evidence indicating that collection is a threat to the four tree snail species addressed in this final rule, as discussed below.
We have no evidence to suggest that overutilization for commercial, recreational, scientific, or educational purposes poses a threat to any of the 14 plant species, 2 butterflies, Pacific sheath-tailed bat, Slevin's skink, or Rota blue damselfly listed as endangered or threatened species in this final rule. We consider the four species of tree snails vulnerable to the impacts of overutilization due to collection for trade or market. Based on the history of collection of Pacific tree snails, the current market for Marianas tree snail shells and tree snail shells world-wide, and the inherent vulnerability of the small populations of the Guam tree snail, the humped tree snail, Langford's tree snail, and the fragile tree snail to the removal of breeding adults, we consider collection to pose a serious and ongoing threat to these species.
We are not aware of any threats to the 23 species addressed in this final rule that would be attributable to disease.
There are multiple animal species, ranging from mammals and rodents to reptiles and insects, reported to impact 17 of the 23 species listed as endangered or threatened species in this final rule by means of predation or herbivory (Table 3). Those species that have the most direct negative impact on the 23 species include: Feral pigs, Philippine deer, rats, the brown treesnake, monitor lizards, Cuban slugs (
In addition to deer imposing negative impacts on habitat at an ecosystem scale in the Mariana Islands on which they occur (primarily Guam and Rota), deer are known to consume leaves, seeds, fruits, and bark of 5 of the 14 plant species (
The brown treesnake (see “Habitat Destruction and Modification by Introduced Small Vertebrates,” above) preys upon a wide variety of animals, and although it is only known to occur on Guam at this time, it is an enormous concern that the brown treesnake will be introduced to other Mariana Islands (The Brown Treesnake Control Committee 1996, pp. 1, 5; USFWS-Brown Treesnake Strategic Plan 2015, pp. 1-85). This nocturnal arboreal snake occupies all ecosystems on Guam, and consumes small mammals and lizards, usually in their neonatal state (Rodda and Savidge 2007, pp. 307, 314). The brown treesnake is attributed with the extirpation, or contribution thereof, of 13 of Guam's 22 native bird species. Roosting and nesting birds, eggs, and nestlings are all vulnerable. If the brown treesnake establishes on any other of the Mariana Islands it will impose a wide range of negative impacts, both environmental and economic (Campbell 2014, pers. comm.).
A survey of the Okgok River (or Okgok Stream, also known as Babao), conducted in 1996, showed that only four fish species (all native species) were present: The eel
Nonnative fish (
The manokwari flatworm is capable of spreading easily to new geographic areas through inadvertent introductions and despite agricultural controls and regulations. First discovered in New Guinea in 1962, it is now found in Australia, Japan, Indonesia, the Caribbean (Puerto Rico), and numerous Pacific Islands (
The manokwari flatworm exhibits remarkable fecundity. In laboratory studies, individuals reached sexual maturity just 3 weeks after hatching, and the time period from copulation to cocoon-laying ranged from 2 to 40 days, at which time a single cocoon is produced (Kaneda
In contrast, partulid snails are generally slow-growing, long-lived, and slow-reproducing land snails (Cowie 1992, p. 194). Partulids can live up to 5 years and reach maturity at approximately 1 year, or a little less, in age (Murray and Clark 1966 pp. 1,264-1,277; Cowie 1992, p. 174). Partulids produce their first offspring between 16 and 24 months of age, and give birth to a single juvenile on average about every 20 days thereafter (Murray and Clark 1966 pp. 1,264-1,277; Cowie 1992, p. 174). These differences in life-history characteristics place the endemic partulid snails at a disadvantage, as the predatory manokwari flatworm can quickly reproduce in large numbers and overwhelm the small numbers of remaining tree snails.
The manokwari flatworm can be found on the ground as well as meters up in native trees and is more active during rain events (Hopper 2014, in litt.). This flatworm is known to feed on juvenile and adult partulid snails (Hopper and Smith 1992, p. 82; Iwai
There are no known natural enemies of the manokwari flatworm, and no biological controls that would not also kill the four tree snails. One exception is that hot water has been suggested as a physical control, after laboratory studies showed that the temperature of water required to kill flatworms (109 °Fahrenheit (F) (43 °Celsius (C))) is lower than the temperature to kill snails (122 °F (50 °C)) (Sugiura 2008, p. 207); however, we are unaware of this method being implemented in the field. This method is employed during the quarantine of ornamental plants in some areas (Sugiura 2008, p. 207). It is unknown if the temperature that kills flatworms may harm the reproductive or other necessary biological functions of snails, even though it does not kill them.
In summary, the manokwari flatworm's arboreal habits, voracious appetite, and high fecundity make this predator a very harmful invasive species (GISD-ISSG 2010, in litt.). The IUCN Invasive Species Specialist Group has named the manokwari flatworm to its list of
The cycad aulacaspis scale attacks every part of the leaf, which subsequently turns white. The leaf then collapses, and with progressive infestation, death of the entire plant can occur in less than 1 year (Marler and Muniappan 2006, pp. 3-4). Field studies conducted on the Guam National Wildlife Refuge on Guam by Marler and Lawrence (2012, p. 233) between 2004 and 2011 found that 6 years after the cycad aulacaspis scale was found on the refuge, mortality of
Nonnative specialist arthropods like the cycad aulacaspis scale are particularly harmful to native plants when introduced to small insular oceanic islands because the native plants lack the shared evolutionary history with arthropods and have not developed resistance mechanisms (Elton 1958 in Marler and Lawrence 2012, p. 233), and the nonnative arthropods are not constrained by the natural pressures or predators of their native range (Howard
As shown in other case studies worldwide, the scale insects are known to spread rapidly, within a few months, from the site of introduction (University of Florida 2014, in litt.). Although the scale is present on the larger islands of Palau, it has not yet reached the numerous smaller Rock Islands, where more than 1,000 individuals of
Scales, once established, require persistent control efforts (Gill 2012, in litt.; University of Florida 2014, in litt.). Within the native range of the scale in southeast Asia, cycads are not affected, as the scale is kept in check by native predators; however, there are no predators of the scale in areas where it is newly introduced (Howard
Conservation efforts to reduce predation are the same as those mentioned under Factor A.
We are unaware of any information that indicates that disease is a threat to any of the 23 species addressed in this final rule.
Although conservation measures are in place in some areas where one or more of the 23 Mariana Islands species occurs, our information does not indicate that they are ameliorating the threat of predation described above. Therefore, we consider predation and herbivory by nonnative animal species (pigs, deer, rats, brown treesnakes, monitor lizards, slugs, flatworms, ants, and wasps) to pose an ongoing threat to 17 of 23 species addressed in this final rule (see Table 3, above) throughout their ranges for the following reasons:
(1) Observations and reports have documented that pigs and deer browse and trample 5 of the 23 plant species (
(2) Nonnative rats, snakes, flatworms, and monitor lizards prey upon one or more of the following six animal species addressed in this final rule: The Pacific sheath-tailed bat, Slevin's skink, and the four tree snails.
(3) Ants and wasps prey upon the eggs and larvae of the two butterflies, the Mariana eight-spot butterfly and Mariana wandering butterfly.
(4) Nonnative slugs cause mechanical damage to plants and destruction of plant parts (branches, fruits, and seeds), including orchids, and are considered a threat to 4 of the 14 plant species in this rule (
(5)
These threats are serious and ongoing, act in concert with other threats to the species and their habitats, and are expected to continue or increase in magnitude and intensity into the future without effective management actions to control or eradicate them.
The Mariana Islands encompass two different political entities, the U.S. Territory of Guam and the U.S. Commonwealth of the Northern Mariana Islands, and issues regarding existing regulatory measures for each entity are discussed in separate paragraphs below.
We are aware of regulatory measures regarding conservation of natural resources established by the Government of Guam. Under Guam Annotated Rules (GAR) Title 9-Animal Regulations (9 GAR-Animal Regulations), there are two divisions: (1) Division 1: Care and Conservation of Animals, and (2) Division 2: Conservation, Hunting and Fishing Regulations (
As of 2009 (the currently posted list), Guam DAWR recognizes 6 of the 23 species as endangered (the plant
The capacity of Guam to mitigate the effects of introduced pests (
The CNMI has multiple regulatory measures in place intended to protect natural resources (
Existing regulations are also in place to protect wildlife conservation areas under CNMI law (§ 85-30.1-330), (
Further, the capacity of the CNMI to mitigate the effects of introduced pests (
Greater enforcement of local laws in place would provide additional benefit to the 16 species listed as endangered or threatened species in this final rule that occur in the CNMI (the plants
The Sikes Act (16 U.S.C. 670) authorizes the Secretary of Defense to develop cooperative plans with the Secretaries of Agriculture and the Interior for natural resources on public lands. The Sikes Act Improvement Act of 1997 requires Department of Defense installations, in cooperation with the Service and the State fish and wildlife agency, to prepare Integrated Natural Resources Management Plans (INRMPs) that provide for the conservation and rehabilitation of natural resources on military lands consistent with the use of military installations to ensure the readiness of the Armed Forces. The Sikes Act states that the INRMP is to reflect the mutual agreement of the parties concerning conservation, protection, and management of fish and wildlife resources. DOD guidance states that mutual agreement should be the goal for the entire plan, and requires agreement of the Service with respect to those elements of the plan that are subject to other applicable legal authority of the Service such as the Endangered Species Act.
In December 2013, the Department of the Navy, JRM, completed an Integrated Natural Resources Management Plan
At this time, the actions outlined in the INRMP do not alleviate the threats to the species addressed in this final rule that occur on DOD lands as the most current draft of the INRMP (December 2013) predates the publication of the proposed rule (October 1, 2014). The December 2013 INRMP (U.S. Navy 2013, p. ES-2) states that “Several non-candidate Marianas species are also being considered for evaluation for inclusion in the proposed rules. Once the USFWS determines which species will be included in the proposed rules, JRM will develop a supplemental document for inclusion in the JRM INRMP for those species with the potential to be on Navy lands. The supplemental document will also include information on the known status of each species and will identify projects to be undertaken on JRM lands to manage the long-term conservation of the species.” The Service has not received the supplemental document to make a determination of whether or not the proposed actions will alleviate the threats to the species in this final rule that occur on DOD lands.
The task of preventing the spread of deleterious nonnative species requires multijurisdictional efforts. The brown treesnake (BTS) technical working group (comprising agencies within the U.S. Department of the Interior (
Both the U.S. Territory of Guam and the U.S. Commonwealth of the Northern Mariana Islands have regulations in place designed to provide protection for their respective natural resources, including native forests, water resources, and the 23 species addressed in this rule; however, enforcement of these regulations is not documented. Greater enforcement of local laws in place would provide additional benefit to the 23 species; however, the magnitude and intensity of threats, the high costs associated with curbing problematic nonnative species, and the lack of funding and human resources to implement such regulations preclude the ability of current regulatory mechanisms to fully address the threats to the 23 species in this final rule. The conservation actions proposed in the 2013 INRMP do not address the 23 Mariana Islands species in this final rule, as the INRMP predates the proposed listing rule (October 2014). The JRM is currently drafting a supplement that will address the threats imposed upon the 23 species that occur on DOD lands; however, the Service has not yet received this document. The multi-agency BTS technical working group aims to prevent inadvertent transport of deleterious species (the brown treesnake) into Guam and the Mariana Islands, and from Guam to other areas, and although these efforts are important and provide some benefits to all 23 species, they are not sufficient to eliminate the continuing threats associated with the brown treesnake in the Marianas.
Other factors that pose threats to some or all of the 23 species include ordnance and live-fire training, water extraction, recreational off-road vehicles, and small numbers of populations and small population sizes. Each threat is discussed in detail below, along with identification of which species are affected by these threats.
Several individuals of the plants
Live-fire training is also proposed for the entire northern half of Pagan and on northern Tinian (see “Historical and Ongoing Human Impacts,” above (CJMT Draft EIS-OEIS
The Rota blue damselfly was only first discovered in April 1996, outside the Talakhaya Water Cave (also known as Sonson Water Cave) located below the Sabana plateau on the island of Rota (see the species' description, above) (Polhemus
The likelihood of dewatering of the Talakhaya Springs is high due to climate change causing increased ENSO conditions, and increased human demand. The “Public and Agency Participation” section of the Comprehensive Wildlife Conservation Strategy for the Commonwealth of the Northern Mariana Islands (2005, p. 347) cites “individuals state the Department of Public Works has been increasing their water extraction from Rota's spring/stream systems. Historically, this water source flowed year-around, yet now they are essentially dry most of each year” (see the species description “Rota blue damselfly,” above; and “Stream Ecosystem,” in the proposed rule (79 FR 59364; October 1, 2014), for further discussion). Water extraction is an ongoing threat to the Rota blue damselfly. The loss of this perennial stream would remove the only known breeding and foraging habitat of the sole known population of the Rota blue damselfly, thereby likely leading to its extinction.
The savanna areas of Guam are popular for use of recreational vehicles. Damage and destruction caused by these vehicles are a direct threat to the plants
Species that are endemic to single islands are inherently more vulnerable to extinction than are widespread species, because of the increased risk of genetic bottlenecks, random demographic fluctuations, climate change effects, and localized catastrophes, such as typhoons and disease outbreaks (Pimm
The following 3 plant species have a very limited number of individuals (fewer than 50) in the wild:
• The only known occurrences of
•
We consider these 10 species to be especially vulnerable to extinction due to either low number of individuals or low number of populations, or both; because these species occur on single islands, or only two neighboring islands; are declining in number of individuals and range; have low or no detectable genetic diversity; and are consequently vulnerable and at risk from one or more of the following threats: Predation by nonnative rats, monitor lizards, and flatworms; habitat degradation and destruction by nonnative ungulates; fire; typhoons; drought; and water extraction (see
We are unaware of any conservation actions planned or implemented at this time to abate the threats to the species negatively impacted by ordnance and live-fire (the plants
We consider the threat from ordnance and live-fire training to be a serious and ongoing threat for four plant and three animal species addressed in this final rule (the plants
We consider the threat from limited numbers of populations and low numbers of individuals (fewer than 50) to be serious and ongoing for 3 plant species addressed in this final rule (
The threat to the fragile tree snail, Guam tree snail, Langford's tree snail, Mariana eight-spot butterfly, Mariana wandering butterfly, Pacific sheath-tailed bat (Marianas subspecies), and Rota blue damselfly from limited numbers of individuals and populations is ongoing and is expected to continue into the future because population numbers of these species are so low that: (1) They may experience reduced reproductive vigor due to inbreeding depression; (2) they may experience reduced levels of genetic variability leading to diminished capacity to adapt and respond to environmental changes, thereby lessening the probability of long-term persistence; (3) a single catastrophic event, whether of anthropogenic or natural origin (
The primary factors that pose serious and ongoing threats to 1 or more of the 23 species throughout all or a significant portion of their ranges in this final rule include:
• Habitat degradation and destruction by development; activities associated with military training and urbanization; nonnative ungulates and plants; rats; brown treesnakes; fire; typhoons; and the interaction of these threats with the projected effects of climate change (Factor A);
• Overutilization of tree snails due to collection for trade or market (Factor B);
• Predation or herbivory by nonnative animal species (ungulates, deer, rats, brown treesnakes, monitor lizards,
• Inadequate existing regulatory mechanisms to address the spread or control of nonnative species (Factor D); and
• Other natural or manmade factors, including impacts from ordnance and live-fire training, water extraction, recreational vehicles, and increased vulnerability to extinction as a consequence of these threats due to limited numbers of populations and individuals (Factor E).
While we acknowledge that the voluntary conservation measures described above may help to ameliorate some of the threats to the 23 species addressed in this final rule, these conservation measures are not sufficient to control or eradicate these threats to the point that these species do not meet the definition of threatened or endangered under the Act.
On October 1, 2014, we published a proposed rule to list 23 species (14 plants, 4 tree snails, 2 butterflies, 1 bat, 1 skink, and 1 damselfly) as endangered or threatened species throughout their ranges (79 FR 59364). The comment period for the proposal opened on October 1, 2014, for 60 days, ending on December 1, 2014. We requested that all interested parties submit comments or information concerning the proposed rule. We contacted all appropriate State and Federal agencies, county governments, elected officials, scientific organizations, and other interested parties and invited them to comment. In addition, we published a public notice of the proposed rule on October 20, 2014, in the local Marianas Variety Guam Edition, Marianas Variety, and Pacific Daily News, at the beginning of the comment period. We received two requests for public hearings. On January 12, 2015, we published a notice (80 FR 1491) reopening the comment period on the October 1, 2014, proposed rule (7959364), for an additional 30 days in order to allow interested parties more time for comments on the proposed rule. In that same document (80 FR 1491; January 12, 2015), we announced two public hearings, each preceded by a public information meeting, as well as two separate public information meetings, for a total of four public information meetings altogether. The two public hearings preceded by public information meetings were held in the U.S. Territory of Guam (Guam) on January 27, 2015; and the U.S. Commonwealth of the Northern Mariana Islands (CNMI) (Saipan) on January 28, 2015. The two separate public information meetings were held on the islands of Rota (CNMI) on January 29, 2015; and Tinian (CNMI) on January 31, 2015.
During the comment periods, we received 23 comment letters, including 9 peer review comment letters, on the proposed listing of the 23 Mariana Island species. In this final rule, we address only those comments directly relevant to the proposed listing of 23 species in Guam and the CNMI. We received several comments that were not germane to the proposed listing of 23 species (for example, suggestions for future recovery actions should the species be listed); such comments are not addressed in this final rule.
Three comment letters were from the CNMI Department of Land and Natural Resources (DLNR); one was from a representative in the CNMI legislature; two were from Guam government agencies (Guam Department of Agriculture, Division of Aquatic and Wildlife Resources (GDAWR); and Guam Bureau of Statistics and Planning); two were from Federal agencies (National Park Service and U.S. Navy); and six were from nongovernmental organizations or individuals. Nine letters were responses from requested peer reviews. The CNMI DLNR and one public commenter requested a public hearing and extension of the comment period. In response, we reopened the comment period for 30 days, from January 12, 2015, to February 11, 2015. In addition, during the public hearings held on January 27, 2015 (Guam), and January 28, 2015 (Saipan), seven individuals or organizations made oral comments on the proposed listing.
All substantive information related to the listing of the 23 species provided during the comment periods, including technical or editorial corrections, has either been incorporated directly into this document or is addressed below (also see Summary of Changes from the Proposed Rule, above). Comments received were grouped into general issues specifically relating to the proposed listing status of the 14 plants, the 4 tree snails, the 2 butterflies, the bat, the skink, or the damselfly, and are addressed in the following summary and incorporated into the final rule as appropriate.
In accordance with our peer review policy published in the
(1)
(2)
(3)
(4)
If an individual species is determined to meet the definition of a threatened species or endangered species under the Act, subsequent to listing that species will be the subject of a recovery plan. In the recovery phase, it is our intention that the ecosystem approach will be beneficial in terms of allowing us to focus on restoring all of the components within a particular ecosystem to its optimal health and functionality, which will support not only one or a few species of particular interest, but all native species within that ecosystem (for example, control of feral pigs would benefit all native species within a shared ecosystem). This approach should ultimately protect other vulnerable species that may otherwise need listing in the future as well, and is consistent with the stated purpose of the Act “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.”
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
As discussed in this final rule, we understand that genetic work is ongoing on humped tree snail populations to elucidate any possible further divisions of the species into separate subspecies or subspecies. We agree there is a need for further research in this area. We must make our determination based on the best scientific data available, and at this point in time the humped tree snail is recognized as a single species. Our determination is that the humped tree snail, as currently described, warrants listing as an endangered species. If taxonomic changes are made in the future, we may reevaluate the status of any newly recognized species or subspecies at that point in time.
(16)
(17)
(18)
(19)
(20)
(21)
(22)
(23)
(24)
(25)
(26)
(27)
(28)
(29)
(30)
(31)
(32)
(33)
(34)
(35)
(36)
(37)
(38)
(39)
(40)
(41)
(42)
(43)
(44)
The Act defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range,” and a threatened species as “any species which is likely to become an
(45)
(46)
(47)
We agree that the ESA lists species, not ecosystems, and this is a species-based regulation. Under the Act, we determine whether a species is an endangered species or a threatened species based on any of five factors (see Summary of Biological Status and Threats Affecting the 23 Mariana Islands Species, above), and we are required to make listing determinations solely on the basis of the best available scientific and commercial data
(48)
(49)
(50)
(51)
(52)
(53)
(54)
(55)
(56)
(57)
(58)
(59)
(60)
(61)
(62)
(63)
(64)
(65)
(66)
(67)
(68)
(69)
(70)
(71)
(72)
(73)
In November 2012, our Deputy Field Supervisor—Programmatic Division and Acting Deputy Field Supervisor—Geographic Program had a meeting each with the Secretary of CNMI DLNR and the Mayor of Rota, in which the potential listing of these species was mentioned. In June 2013, they met with the Secretary and Mayor of Rota again, and provided a briefing paper regarding the 23 species. In January of 2014, our Acting Deputy Field Supervisor—Geographic Program, along with several staff biologists, met with the Mayor of Saipan, the Mayor of Tinian, and the Mayor of Rota along with the Rota Division of Fish and Wildlife and Division of Forestry, specifically to discuss the 23 species. In May 2014, prior to the publication of the proposed rule, we held two public information meetings, one each on Guam and Saipan, in order to inform the public and answer questions about the 23 species and listing process. Also in May 2015, our Field Supervisor and Deputy Field Supervisor—Programmatic Division and Acting Deputy Field Supervisor—Geographic Program briefed the CNMI Legislature, and met with the CNMI DLNR on Saipan, to discuss the status of the 23 species, answer questions, and gain information on one or more of the 23 species and conservation issues. In July 2014, our Field Supervisor and Deputy Field Supervisor—Programmatic Division met with the Legislative Representative from Rota regarding the orchids. Upon the publication of the proposed rule (October 1, 2014), we published news releases in the Marianas Variety, Marianas Variety Guam, and Pacific Daily News.
Due to requests received during the first comment period, we reopened the comment period for an additional 30 days (January 12, 2015, through February 11, 2015); and in January 2015, held two public hearings (one each on Guam and Saipan), and four public information meetings (one each on the islands of Guam, Rota, Saipan, and Tinian). The public information meeting on Rota had 11 attendees. Additionally, most of the species addressed in this final rule that occur on Rota are found within existing conservation boundaries or designated critical habitat. Any future targeted conservation measures on Rota will likely occur within these areas and, therefore, minimize impacts to the local community. Further, once a species is listed, for private or other non-Federal property owners we offer voluntary safe harbor agreements that can contribute to the recovery of species, habitat conservation plans (HCP) that allow activities (
(74)
(75)
(76)
(77)
(78)
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited peer review from knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. Additionally, we requested comments or information from other concerned governmental agencies, the scientific community, industry, and any other interested parties concerning the proposed rule. Comments and information we received helped inform this final rule. We have incorporated all new information, including the studies conducted by CNMI DLNR biologists, under Description of the 23 Mariana Islands Species and Summary of Biological Status and Threats Affecting the 23 Mariana Islands Species, above; and we discuss our rationale for retaining the species that are more abundant than previously described in the proposed rule under Summary of Changes from the Proposed Rule, above. Therefore, in this final rule, we have made our determination to list the 23 species as threatened or endangered species based on the best scientific and commercial data available.
Please see also our responses to comments 4, 45, and 47, above.
(79)
(80)
(81)
(82)
(83)
(84)
(85)
(86)
(87)
Other threats to these seven species, and their habitats, associated with DOD live-fire training include direct destruction by land clearing, live-fire weapons training and possible fires caused by this activity, or inadvertent trampling and destruction by military personnel. The threat from live-fire training and ordnance to the plants
(88)
(89)
(90)
(91)
(92)
(93)
Regarding proactive measures for species of concern, the Service collaborates with and funds multiple programs that work on the propagation and outplanting of threatened and endangered plants and captive-breeding programs for threatened and endangered animals, as well as for candidate species. However, while we agree that such measures are often desirable and necessary to achieve the conservation of the species, the Act does not allow for the pursuit of such activities as an alternative to listing. The statute requires that we consider whether a species is endangered or threatened as a result of any of five threat factors, specifically: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. If we conclude that the species in question meets the definition of an endangered species or threatened species, then that species is listed and receives Federal protections under the Act. One component of these protections is the development of a recovery plan, which may employ the conservation measures suggested by the commenters, depending on the needs of the species. Additionally, although existing mitigation lands can be used for conservation actions, the availability of such lands may not be sufficient to offset the full suite of threats that are negatively affecting the species such that we would conclude listing is not warranted. For example, mitigation lands may not provide enough resources or be large enough in size to fully support the population sizes and distribution needed for long-term viability of a species, or the nature of the stressor may be such that mitigation lands do little to offset the threat (such as impacts from manokwari flatworm predation on native tree snails). Thus, while existing mitigation lands or conservation areas make an important contribution to the conservation of these species, they are not sufficient to address all of the threats leading to the determination that these species are endangered or threatened, as defined by the Act.
(94)
The Service is fully committed to working with communities and private landowners in partnership to minimize any impacts that may potentially result from the listing of a species while achieving conservation goals. For example, the Service works with landowners to develop habitat conservation plans or safe harbor agreements, and provide permits to private landowners for taking a listed species when it is incidental to the carrying out of an otherwise lawful activity. Private landowners may contact their local Service field office to obtain information about these programs and permits. The Service believes that restrictions alone are neither an effective nor a desirable means for achieving the conservation of listed species. The conservation and recovery of endangered and threatened species, and the ecosystems upon which they depend, is the ultimate objective of the Act, and the Service recognizes the vital importance of voluntary, nonregulatory conservation measures that provide incentives for landowners in achieving that objective.
The commenter's objections to the ESA in general are beyond the scope of this rulemaking.
(95)
(96)
(97)
(98)
Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the 23 species listed as endangered or threatened species in this final rule. We find that all 23 species face threats that are ongoing and expected to continue into the future throughout their ranges from the present destruction and modification of their habitats from nonnative feral ungulates, rats, or nonnative plants (Factor A). Destruction and modification of habitat by development, military training, and urbanization is a threat to 13 of the 14 plant species (
Overcollection for commercial and recreational purposes poses a threat to all four tree snail species (the Guam tree snail, the humped tree snail, Langford's tree snail, and the fragile tree snail) (Factor B).
Predation or herbivory on 9 of the 14 plant species (
The inadequacy of existing regulatory mechanisms (
There are serious and ongoing threats to three plant species (
The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We find that 16 of the 23 Mariana Islands species are presently in danger of extinction throughout their entire range, based on the severity and scope of the ongoing and projected threats described above. These 16 species are: the 7 plants
As noted above, the Act defines a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We list seven plant species as threatened species in accordance with section 3(6) of the Act:
Although more than 50 percent of the range of
Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that each of the 23 Mariana Islands species is either endangered or threatened through all of its range, no portion of its range can be “significant” for the purposed of the definition of “endangered” and “threatened” species. See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37577).
Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and territories and requires that recovery actions be carried out for all listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species'
Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan identifies site-specific management actions that set a trigger for review of the five factors that control whether a species remains endangered or may be downlisted or delisted, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our Web site (
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, territories, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (
Following the publication of this final listing rule, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State(s) of the U.S. Territory of Guam and the U.S. Commonwealth of the Northern Mariana Islands would be eligible for Federal funds to implement management actions that promote the protection or recovery of the 23 species. Information on our grant programs that are available to aid species recovery can be found at:
Please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on these species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a listed species or result in destruction or adverse modification of designated critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.
For the 23 plants and animals listed as endangered or threatened species in this rule, Federal agency actions that may require consultation as described in the preceding paragraph include, but are not limited to, actions within the jurisdiction of the Natural Resources Conservation Service, the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, and branches of the Department of Defense (DOD). Examples of these types of actions include activities funded or authorized under the Farm Bill Program, Environmental Quality Incentives Program, Ground and Surface Water Conservation Program, Clean Water Act (33 U.S.C. 1251
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered and threatened wildlife and plants. The prohibitions of section 9(a)(1) of the Act, and implemented at 50 CFR 17.21 for endangered wildlife, and at §§ 17.61 and 17.71 for endangered and threatened plants, respectively, apply. For listed wildlife species, these prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these), import, export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any listed species. Under the Lacey Act (18 U.S.C. 42-43; 16 U.S.C. 3371-3378), it is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to agents of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.
With respect to endangered plants, prohibitions outlined at section 9(a)(2) of the Act and 50 CFR 17.61 make it illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale in interstate or foreign commerce, or to remove and reduce to possession any such plant species from areas under Federal jurisdiction. In addition, the Act prohibits malicious damage or destruction of any such species on any area under Federal jurisdiction, and the removal, cutting, digging up, or damaging or destroying of any such species on any other area in knowing violation of any State law or regulation, or in the course of any violation of a State criminal trespass law. Exceptions to these prohibitions are outlined in 50 CFR 17.62.
With respect to threatened plants, 50 CFR 17.71 provides that all of the provisions in 50 CFR 17.61 shall apply to threatened plants. These provisions make it illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale in interstate or foreign commerce, or to remove and reduce to possession any such plant species from areas under Federal jurisdiction. In addition, the Act prohibits malicious damage or destruction of any such species on any area under Federal jurisdiction, and the removal, cutting, digging up, or damaging or destroying of any such species on any other area in knowing violation of any State law or regulation, or in the course of any violation of a State criminal trespass law. However,
We may issue permits to carry out otherwise prohibited activities involving endangered and threatened wildlife and plant species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered wildlife and at §§ 17.62 and 17.72 for endangered and threatened plants, respectively. With regard to endangered wildlife, a permit must be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. With regard to endangered plants, the Service may issue a permit authorizing any activity otherwise prohibited by 50 CFR 17.61 for scientific purposes or for enhancing the propagation or survival of endangered plants. With regard to threatened plants, a permit issued under this section must be for one of the following: Scientific purposes, the enhancement of the propagation or survival of threatened species, economic hardship, botanical or horticultural exhibition, educational purposes, or other activities consistent with the purposes and policy of the Act. Requests for copies of the regulations regarding listed species and inquiries about prohibitions and permits may be addressed to U.S. Fish and Wildlife Service, Pacific Region, Ecological Services, Eastside Federal Complex, 911 NE. 11th Avenue, Portland, OR 97232-4181 (telephone 503-231-6131; facsimile 503-231-6243).
It is our policy, as published in the
(1) Unauthorized collecting, handling, possessing, selling, delivering, carrying, or transporting of the 23 species, including import or export across State, Territory, or Commonwealth lines and international boundaries, except for properly documented antique specimens of these taxa at least 100 years old, as defined by section 10(h)(1) of the Act.
(2) Introduction of nonnative species that compete with or prey upon the nine animal species, such as the introduction of competing, nonnative plants or animals to the Mariana Islands (U.S. Territory of Guam and U.S. Commonwealth of the Northern Mariana Islands).
(3) The unauthorized release of biological control agents that attack any life stage of the nine animal species.
(4) Impacts to the nine animal species from destruction of habitat, disturbance from noise (related to military training), and other impacts from military presence.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Pacific Islands Fish and Wildlife Office (see
The Federal listing of the 23 species included in this final rule may invoke Commonwealth and Territory listing under CNMI and Guam Endangered Species laws (Title 85: § 85-30.1-101 and 5 GCA § 63205, respectively) and supplement the protection available under other local law. These protections would prohibit take of these species and encourage conservation by both government agencies. Further, the governments are able to enter into agreements with Federal agencies to administer and manage any area required for the conservation, management, enhancement, or protection of endangered and threatened species. Funds for these activities could be made available under section 6 of the Act (Cooperation with the States and Territories). Thus, the Federal protection afforded to these species by listing them as endangered or threatened species will be reinforced and supplemented by protection under Territorial and Commonwealth law.
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
A complete list of references cited in this rulemaking is available on the Internet at
The primary authors of this final rule are the staff members of the Pacific Islands Fish and Wildlife Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless otherwise noted.
(h) * * *
(h) * * *
Executive Office for Immigration Review, Department of Justice.
Final rule.
This final rule adopts, without change, the proposed rule “Separate Representation for Custody and Bond Proceedings” as published in the
This rule is effective December 7, 2015.
Jean King, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone (703) 305-0470 (not a toll-free call).
On September 17, 2014, the Department published in the
The Immigration and Nationality Act (INA) provides that aliens appearing before an immigration judge “shall have the privilege of being represented, at no expense to the Government, by counsel of the alien's choosing who is authorized to practice in such proceedings.” INA sec. 240(b)(4) (8 U.S.C. 1229a(b)(4));
In order to authorize a representative to enter an appearance solely for custody and bond proceedings before the Immigration Court, this final rule amends EOIR's regulations at 8 CFR 1003.17 to explicitly allow for separate appearances in custody and bond proceedings. Permitting such separate appearances is expected to encourage more attorneys and accredited representatives to agree to represent individuals who would otherwise appear pro se at their custody and bond proceedings, which, in turn, will benefit the public by increasing the efficiency of the Immigration Courts.
Under the current regulations, representatives are already required to file a Notice of Entry of Appearance on Form EOIR-28 in any proceeding before an immigration judge.
The effective date for this rule, December 7, 2015, has been designated to coincide with the date on which EOIR's case management system will permit separate entries of appearance in custody and bond proceedings. Separate appearances will not be permitted prior to the effective date.
As noted above, the Department received ten comments in response to the proposed rule. One comment was from the Executive Director of the Catholic Legal Immigration Network; one was from the American Immigration Lawyers Association; one was from the Executive Director of the National Immigrant Justice Center; one was from a clinical professor at the Louisiana State University Law Center; one was from a group of law students; five were from individual commenters. All ten commenters expressed universal support for promulgation of this final rule. Where the commenters also provided suggested modifications to the rule or otherwise offered suggestions for implementation of the rule, the Department has summarized those comments below and responded to them. The comments are addressed by topic because some commenters raised multiple subjects and some comments overlapped.
The Department has reviewed this regulation in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)) and has determined that this rule will not have a significant economic impact on a substantial number of small entities. The rule will not regulate “small entities,” as that term is defined in 5 U.S.C. 601(6).
This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
The Department has determined that this rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review and, therefore, it has not been reviewed by the Office of Management and Budget. Nevertheless, the Department certifies that this regulation has been drafted in accordance with the principles of Executive Order 12866, section 1(b), and Executive Order 13563. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits, including consideration of potential economic, environmental, public health, and safety effects, distributive impacts, and equity.
The benefits of this final rule include increased representation of detained individuals by permitting a representative to enter an appearance before the Immigration Court for the discrete task of securing a bond or release from detention, without requiring the representative also to represent the individual in all of the individual's immigration proceedings. The public will benefit from this amendment to the regulations, because the amendment will make it easier for individuals who may not be able to afford to hire an attorney for all of their proceedings before the Immigration Court to at least be able to be represented during their custody and bond proceedings. The Department anticipates that this rule will also have a positive economic impact on the Department, because increasing the number of individuals who are represented in their custody and bond proceedings will enable immigration judges to adjudicate proceedings in a more effective and timely manner, adding to the overall efficiency of immigration proceedings. The Department does not foresee any burdens to the public or the Department.
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and
This rule has been prepared in accordance with the standards in sections 3(a) and 3(b)(2) of Executive Order 12988.
The information collection requirement (Form EOIR-28) contained in this rule has been previously approved by the Office of Management and Budget under the provisions of the Paperwork Reduction Act (OMB Number 1125-0006). This final rule contains revised recordkeeping and reporting requirements. Specifically, EOIR will collect additional information on the Form EOIR-28 indicating the type of proceeding(s) for which an attorney or representative is entering his or her appearance. For this reason, EOIR has submitted the information collection request to OMB for review and clearance in accordance with review procedures of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320. EOIR received written comments regarding this information collection as noted above. Notice of OMB approval for this information collection will be published in a future
Administrative practice and procedure, Aliens, Immigration, Legal services, Organization and functions (Government agencies).
Accordingly, for the reasons stated in the preamble, part 1003 of chapter V of title 8 of the Code of Federal Regulations is amended as follows:
5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
(a) In any proceeding before an Immigration Judge in which the alien is represented, the attorney or representative shall file a Notice of Entry of Appearance on Form EOIR-28 with the Immigration Court, and shall serve a copy of the Notice of Entry of Appearance on the DHS as required by 8 CFR 1003.32(a). The entry of appearance of an attorney or representative in a custody or bond proceeding shall be separate and apart from an entry of appearance in any other proceeding before the Immigration Court. An attorney or representative may file an EOIR-28 indicating whether the entry of appearance is for custody or bond proceedings only, any other proceedings only, or for all proceedings. Such Notice of Entry of Appearance must be filed and served even if a separate Notice of Entry of Appearance(s) has previously been filed with the DHS for appearance(s) before the DHS.
Executive Office for Immigration Review, Department of Justice.
Final rule.
This final rule adopts, as amended, the proposed rule entitled “List of Pro Bono Legal Service Providers for Aliens in Immigration Proceedings.” The final rule changes the name of the “List of Free Legal Service Providers,” maintained by the Executive Office for Immigration Review (EOIR), to the “List of Pro Bono Legal Service Providers” (List). It enhances the eligibility requirements for providers to be included on the List. It authorizes the Director of EOIR, or his or her designee, to place providers on the List and remove them from the List. The rule also allows the public to comment on eligible applicants and requires approved providers to certify their eligibility every 3 years.
This rule is effective November 30, 2015.
Jean King, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone (703) 305-0470 (not a toll-free call).
On September 17, 2014, the Department published in the
This rule amends 8 CFR part 1003 by revising §§ 1003.61 through 1003.66. It also amends 8 CFR parts 1240 and 1241 by revising §§ 1240.10 and 1241.14, respectively. The rule provides the Director of EOIR or his or her designee with the authority to maintain the quarterly List.
As noted above, the Department received seven comments in response to the proposed rule. One comment was from the Executive Director of the Catholic Legal Immigration Network; one was from a professor and director of a law school clinical program; one was from the Director of the Immigration Program of the Legal Aid Society of Rochester, New York; one was from a group of three law students; two were from individual commenters; and one was from an anonymous commenter. Below, the Department has summarized the comments and explained the changes the Department has made in response. Because some comments overlap and commenters raised multiple subjects, the comments are addressed by topic rather than by reference to a specific commenter.
The Department received a number of comments regarding the requirement, at §§ 1003.62(a)(1), (b)(1), and (d)(2), that each attorney and organization provide at least 50 hours per year of pro bono legal services at each immigration court location where the attorney or organization intends to appear on the List. The Department had posed four questions: whether the requirement is too demanding for certain private attorneys; whether the requirement is not demanding enough for organizations; whether the standards for organizations and attorneys should differ from one another in any other way; and whether there are alternative standards, for example relating to the number or type of cases accepted, that would be more appropriate measures of pro bono representation.
Three commenters addressed the impact of the 50-hour requirement on attorneys, with two supporting the requirement and one questioning it. Of the supporters, one stated that the requirement was “appropriate” for attorneys, and the other noted that the requirement is consistent with the American Bar Association's Model Rule of Professional Conduct (ABA Model Rule) 6.1, which states that “[a] lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.”
The final rule keeps the 50-hour requirement with respect to attorneys. The Department agrees with the commenters who supported the requirement. While the Department appreciates the other commenter's concerns, the 50-hour requirement for attorneys is essential to the rule. As noted in the Notice of Proposed Rulemaking, EOIR has consistently received complaints that certain attorneys on the List do not accept significant numbers of pro bono cases. 79 FR 55663-64. The 50-hour requirement will help ensure that attorneys listed as providing pro bono legal services in a specific location are actually available to do so. This rule does not impose any limits on an attorney's pro bono practice, as such, and the 50-hour requirement is applicable only with respect to attorneys who choose to seek inclusion by name on the List.
With respect to the hypothetical Arkansas solo practitioner wishing to appear on the List for both the Oakdale and Memphis courts, if it would be difficult for him or her to perform 50 hours of pro bono service annually at each court, then he or she likely lacks the resources to provide pro bono services regularly before both courts, and therefore should not be on the List for both courts. The Department does not believe that the 50-hour requirement imposes an undue paperwork burden, as attorneys regularly track the time they spend on individual cases. It is possible that some attorneys wishing to be on the List would have to reduce the pro bono services they provide in non-immigration proceedings. However, the Department's overriding concern is that attorneys on the List be available to provide pro bono representation before EOIR.
Though the 50-hour requirement will remain substantively unchanged, the Department has amended § 1003.62(d)(2) to clarify that “[t]he attorney may count, toward the requirement, both out-of-court preparation time and in-court time.” The Department had explained, in the preamble of the Notice of Proposed Rulemaking at 79 FR 55665, that preparation time counts toward the requirement, but corresponding language did not appear in the proposed rule's text.
Three commenters addressed the impact of the 50-hour requirement on organizations. One supported the requirement, stating that it was appropriate for organizations. The other two recommended that EOIR amend the requirement, noting that organizations often charge nominal fees for representing clients. One of these two recommended dropping the 50-hour requirement for organizations recognized by EOIR under 8 CFR part 1292. This commenter argued that recognized organizations are less likely than private attorneys or other organizations to abuse their placement on the List, as they have already established to the satisfaction of the Board of Immigration Appeals that they charge only nominal fees.
The final rule keeps the requirement that both recognized and non-recognized organizations provide 50 hours annually of pro bono legal services at each immigration court location where the organization appears on the List. The Department disagrees with reducing the requirement to 25 hours annually. As indicated in the Notice of Proposed Rulemaking, a number of state bar associations recommend that attorneys perform a minimum of 50 hours of pro bono work annually, and ABA Model Rule 6.1 states that lawyers should aspire to perform at least 50 hours of pro bono legal services annually.
Though the final rule keeps the 50-hour requirement for organizations, the Department has, in light of comments that some organizations do not have the resources to represent clients in immigration court proceedings without charging at least a nominal fee, modified the requirement to allow organizations to count pro bono services in some cases where the organization did not actually represent the client. Specifically, the Department has amended §§ 1003.62(a)(1) and (b)(1) to allow organizations to count, toward the requirement, time an organization's attorneys and representatives spent providing pro bono legal services in cases the organization eventually referred to an outside provider for pro bono representation before the immigration court location. In the proposed rule, by contrast, organizations could count only time spent on cases where an attorney or representative of the organization represented the client. In addition, as with the provision addressing attorneys, the Department has amended §§ 1003.62(a)(1) and (b)(1) to clarify that, “[w]hen an attorney or representative of [an] organization represents [an] individual pro bono . . . the organization may count, toward the 50-hour requirement, the attorney's or representative's out-of-court preparation time and in-court time.”
Regarding pro bono legal services offered temporarily following events
One commenter responded to the Department's question about alternative ways to measure pro bono services. This commenter was opposed to requiring a provider to accept a specific number of pro bono cases, as some cases require dramatically more work than others. However, this commenter stated that “[a] measurement regarding the types of pro bono cases accepted may . . . be appropriate if it is done correctly,” primarily because “such a requirement might encourage each organization to accept a variety of cases, rather than allowing a single attorney or organization to take on every simple case.” The Department agrees that, generally speaking, it is beneficial for each organization and attorney on the List to accept a variety of pro bono cases. However, the Department declines to incorporate, into the final rule, any requirement concerning the types of cases providers accept, as the nature of cases varies between immigration court locations. In addition, it can sometimes be valuable for providers to specialize in particular types of cases, thereby building their expertise.
One commenter responded to the proposed rule's provision, at § 1003.63(d)(3), that an individual attorney who does not work for a pro bono organization (“private attorney”) cannot appear on the List if he or she can provide pro bono legal services through or in association with a nonprofit organization or a pro bono referral service. This commenter “generally support[ed]” the requirement but expressed two concerns. First, this commenter stated that, “especially in rural and isolated immigration courts, the List has traditionally served the beneficial, though unintended, purpose of identifying local attorneys who were willing to represent respondents,” and that this “unintended function of the List is actually critical to access to counsel in those immigration courts.” This commenter concluded that “[e]liminating all the private attorneys from the List (which will happen in most courts that have at least one nonprofit organization providing pro bono legal services) will result in an overall reduction in access to counsel” in some locations, “unless EOIR takes other reasonable steps to provide information to the respondents regarding how they may locate attorneys willing to represent them before the court.” (Emphasis omitted). Second, this commenter argued that “[a]nother consequence of eliminating private attorneys from the List is that the nonprofit organizations remaining on the List will experience a much greater volume of calls to their organizations.” This commenter stated that “EOIR has made great progress in supporting pro bono representation,” but “must provide more resources to support the organizations remaining on the List on whom the entire burden of sustaining pro bono representation in immigration court will now fall.”
The Department believes that the provision at issue is necessary. To the extent that the List functions to inform individuals in immigration court proceedings of attorneys who will represent them for a fee, this function is, as the commenter noted, unintended. The List's intended function is to inform such individuals of providers who will represent them pro bono. The provision at issue, drafted in light of complaints that certain attorneys on the List do not accept significant numbers of pro bono cases,
However, the Department acknowledges the concern that, once the rule takes effect, individuals in immigration court proceedings in some, particularly rural, locations may be less informed than they currently are of paid legal services, as well as the concern that organizations on the List could receive more inquiries than they have the capacity to handle. EOIR is committed to improving access to legal information and counseling and to increasing representation rates before the immigration courts. In line with the commenter's suggestions, EOIR may explore other ways to inform individuals in proceedings about paid legal services, including providing contact information for bar associations through which they may be referred to local immigration counsel. In addition, organizations are welcome to contact EOIR directly, after the rule takes effect, with observations regarding the rule's effects on organizations' operations and on access to counsel in the immigration courts.
Three commenters addressed the fact that the proposed rule, at § 1003.61(b), renamed the “Free Legal Services Providers List” as the “List of Pro Bono Legal Service Providers.” One commenter agreed with the name change, stating that the use of the word “free” “implies that there is no financial responsibility for any client wishing to receive legal services.” The second commenter stated that, while the term “pro bono” is understood by attorneys and “may provide clarity to members of the bar,” its meaning may not be clear to individuals in immigration court proceedings. In light of this fact, and because many pro bono providers also charge fees to some clients, this commenter suggested that EOIR use a title such as “Free and Low-Cost Legal Service Providers.” The third commenter “generally support[ed]” the use of the term “pro bono,” but, like the second commenter, cautioned that this term may be unclear to some, and recommended “includ[ing] a sentence explaining the purpose for which the services are provided.”
The final rule retains the name “List of Pro Bono Legal Service Providers.” As noted in the Notice of Proposed Rulemaking at 79 FR 55663, the use of the term “pro bono” tracks the language in the Immigration and Nationality Act.
One commenter suggested that providers be required to certify, under the penalty of perjury, whether they charge fees to the majority of clients, and that the List should include information on the extent to which each provider charges fees. The Department declines to adopt the commenter's suggestion in the final rule. The Department appreciates that there may be benefits to including, on the List, information on fees. However, the percentage of clients to whom a provider charges fees may well fluctuate, and it could prove difficult for EOIR to verify the accuracy of providers' representations. Though the Department declines, at this time, to require providers to submit information on fees, the Department may, in the future, consider whether information on fees should be incorporated into the List.
One commenter suggested that, instead of requiring paper applications, EOIR should “look for alternative electronic methods through which to make an initial application, submit comments or complaints, and apply for continued participation.” The Department agrees that electronic filings and communications would be beneficial. Beginning when the final rule takes effect, EOIR will accept electronic comments and recommendations from the public pertaining to applications to appear on the List. The Department has revised § 1003.63(f) to make clear that such electronic comments and recommendations are permitted. In addition, EOIR is considering, in the future, permitting prospective and current providers to electronically submit a wide range of documents. Such documents could include applications to appear on the List, declarations that a provider remains qualified to appear on the List, requests to be removed from the List, responses to inquiries and notices from EOIR, and notifications of changes in information or status. EOIR is also considering communicating with prospective and current providers electronically. In the future, EOIR may electronically transmit documents such as decisions to grant or deny applications to appear on the List, inquiries to providers in response to complaints, notices that a provider has automatically been removed from the List or that the Director intends to remove a provider from the List, and decisions to remove a provider from the List. In anticipation of such electronic communications, the Department has revised §§ 1003.64(b) and 1003.65(a)(2), (d)(2), (d)(3), and (d)(4)(ii), pertaining to various written communications from EOIR to providers, to state that they can be sent electronically, in addition to by mail. No notice-and-comment period is required for the revisions described in this paragraph, as they pertain to “agency organization, procedure, or practice” under 5 U.S.C. 553(b).
In the meantime, to assist prospective and current providers, EOIR has created a form—Optional Form EOIR-56,
One commenter, noting the “language barrier[s]” and “social isolation of indigent aliens,” asked whether either “translation services [would] be provided,” or whether a “provider [would] be required to work in both English and the language spoken by the indigent alien.” This rule setting forth the requirements for inclusion on the List does not require that providers speak particular languages or supply translation services.
One commenter, while noting that “the word `alien' has long been used to describe immigrants” and appears in the Immigration and Nationality Act, “encourage[d] EOIR to refrain from using the term . . . wherever possible.” The Department has deleted the term “alien” from the rule's title and, where possible, from the regulatory text, and has avoided using the term in this preamble where possible. The use of the term “alien” is often necessary in the Department's regulations governing immigration proceedings given that, as the commenter acknowledges, the term is used throughout the immigration statutes. However, in this final rule, the Department has refrained from using “alien” as a generic term for a person in immigration court proceedings, given that individuals in immigration court proceedings can assert that they are United States citizens.
One commenter was concerned whether providers' periodic declarations of eligibility under § 1003.64(b)(2) would be available for comment or review by the public, given that they would contain clients' alien registration numbers. The commenter “encourage[d] EOIR to clearly state in the [final rule] that the declaration . . . shall be maintained in a separate file and can only be reviewed by EOIR staff or the applicant.” Although EOIR understands the commenter's concern, it is unnecessary to state, in the regulation, that providers' periodic declarations of eligibility can be reviewed only by EOIR staff or the applicant. EOIR appreciates the importance of protecting, from release to the public, alien registration numbers, and other personally identifiable information,
In the final rule, the Department has revised § 1003.63(a) to simplify and clarify the application process. Specifically, the Department has deleted the proposed requirement, at § 1003.63(a)(5), that an application be served on the court administrator for each immigration court location where the provider intends to perform pro bono legal services. The Department has concluded that this requirement is unnecessary, as court administrators can be informed of prospective providers through other means. The Department has also deleted, as unnecessary, the proposed requirement, at § 1003.63(a)(4), that an envelope containing an application be marked “Application for List of Pro Bono Legal Service Providers.” Finally, the Department has revised § 1006.63(a)(2) to specify that, in an application, a prospective provider must state how the provider's contact information, in addition to the provider's name, should be set forth on the List.
The Department has revised the application requirements at § 1003.63(b) and (d) to reflect EOIR's registration requirements for attorneys and accredited representatives. Beginning December 11, 2013, EOIR has required attorneys and accredited representatives to register electronically with EOIR in order to practice before the immigration courts and the Board of Immigration Appeals.
Under the revised § 1003.63(b)(2), an organization, in its application to appear on the List, is only required to declare “[t]hat every attorney and accredited representative
The Department has made minor revisions to § 1003.63(f), which relates to the notice-and-comment period for applications. The revised provision states that applications shall be publicly posted following “review of the applications” by EOIR, as opposed to their receipt. Before posting an application, EOIR will review it to ensure that the application meets the regulatory requirements. For clarity, the revised provision specifies that “upon request a copy of each application shall be made available for public review,” as opposed simply to “for review.” The revised provision no longer specifies that the copy made available shall be “date stamped.” To simplify the time period for commenting, the revised provision states that comments are due “within 30 days from the first date the name of the applicant is publicly posted,” as opposed to “15 days from the last date” of the posting (applications must be posted for 15 days). Finally, the revised provision states that comments must include the commenter's name and address.
The Department has made one revision to § 1003.64(b)(2). The revision relates to the requirement that, in a declaration of continued eligibility, a provider must include alien registration numbers of pro bono clients. The revised provision requires that an organization must provide, for each case, either “the name of the organization's attorneys or
The Department has simplified § 1003.66, relating to when a provider must inform EOIR of changes in information or status. Under the revised provision, providers must contact EOIR in three situations: if the provider's contact information has changed; if any specific limitations to providing pro bono legal services have changed; and if the provider is no longer eligible to be included on the List under § 1003.62. This section previously contained additional provisions, for example requiring organizations to inform EOIR of any change in the professional status of any attorney or representative providing pro bono legal services before EOIR. The simplified provision is clearer, and less burdensome on providers, than the previous version, while still ensuring that EOIR has adequate information about providers.
Finally, for flexibility, the Department has revised §§ 1003.61, 1003.62, and 1003.63 to refer to recognition of organizations under 8 CFR part 1292, instead of § 1292.2 For precision, § 1003.62(a)(2) has been revised to refer to a “representative accredited under part 1292 of this chapter to practice before the immigration courts and the Board of Immigration Appeals,” instead of simply an “accredited representative.” The Department has deleted the provision, at § 1003.62(b)(1) of the proposed rule, that, to be included on the List, a non-recognized organization must be “established in the United States.” Upon reflection, this provision was unnecessary, as § 1003.61(a)(3) defines an “organization” as “[a] non-profit religious, charitable, social service, or similar group established in the United States.” The Department has revised § 1003.62(b)(1) of the final rule (§ 1003.62(b)(2) of the proposed rule) to refer to an “attorney or representative,” as opposed simply to an attorney. As noted above, individuals other than attorneys can, in some circumstances, be authorized to provide representation on behalf of an organization.
In addition, to accommodate the revisions described above, and to make the regulation more readable, the Department has made a few minor, non-substantive, revisions not referenced here.
The revisions to the proposed rule do not require a new notice-and-comment period. As noted above, the revisions pertaining to electronic filings and communications, at §§ 1003.63(f), 1003.64(b), and 1003.65(a)(2), (d)(2), (d)(3), and (d)(4)(ii), pertain to “agency organization, procedure, or practice” under 5 U.S.C. 553(b). The other revised provisions are logical outgrowths of those in the proposed rule.
The Privacy Act of 1974 states that, except in certain circumstances, “[n]o agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains . . . .” 5 U.S.C. 552a(b). A “system of records” is “a group of any records under the control of any agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual.” 5 U.S.C. 552a(a)(5). An “individual” is “a citizen of the United States or an alien lawfully admitted for permanent residence.” 5 U.S.C. 552a(a)(2). As a policy matter, where a system of records contains records pertaining both to “individuals” and to people or entities not covered by the Privacy Act, EOIR treats all the records as subject to the Privacy Act. Thus, EOIR will extend administrative Privacy Act protections to the records collected under this regulation even though the organizations, pro bono referral services, and attorneys the records pertain to are not all “individuals” under the Privacy Act.
One of the circumstances in which an agency can disclose records protected by the Privacy Act is “for a routine use,” which is a “use . . . for a purpose which is compatible with the purpose for which [the record] was collected.” 5 U.S.C. 552a(a)(7), (b)(3). An agency that maintains a system of records must publish, in the
In accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), this rule will not have a significant economic impact on a substantial number of small entities. Some small entities, such as non-profit organizations or small law offices, will be affected by this rule. Organizations or private attorneys may be removed from the List of Pro Bono Legal Service Providers if they are no longer qualified to be on the List under this final rule. Likewise, those who wish to have their names included on this List will be affected as they will have to demonstrate their eligibility to have their names listed.
However, this rule has no effect on the ability of organizations or private attorneys to represent pro bono clients, or any other clients, and it applies only with respect to organizations and attorneys who choose to seek to be included on the List. Application for placement on the List is completely voluntary and does not confer any rights or benefits on such organizations or law offices. Placement on the List does not constitute government endorsement of a particular entity or private attorney; nor is the List to be used for advertising or soliciting. Rather, the purpose of the List is to notify individuals in immigration court proceedings that these entities or private attorneys are available to provide uncompensated legal services without any direct or indirect remuneration (other than filing fees or photocopying and mailing expenses).
This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year and also will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions
This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 804). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
The Department has determined that this rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and, therefore, it has not been reviewed by the Office of Management and Budget (OMB). Nevertheless, the Department certifies that this regulation has been drafted in accordance with the principles of Executive Order 12866, section 1(b), and Executive Order 13563. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Additionally, it calls on each agency to periodically review its existing regulations and determine whether any should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving its regulatory objectives.
This rule affects the function and purpose of the List of Pro Bono Service Legal Service Providers. The benefits of this final rule include addressing long-standing problems of abuse associated with the existing List, updating the term “free” with “pro bono” legal services to reflect the proper statutory language, creating a minimum number of annual pro bono hours to ensure proper compliance with the spirit of the regulation, and creating greater agency flexibility to remove List participants who do not meet the minimum regulatory requirements. Further, the rule is intended to provide individuals in immigration court proceedings with better information regarding the availability of pro bono representation before the immigration courts, thus benefitting individuals who appear in proceedings before the courts.
Burdens to the public are applicable only to attorneys and organizations making a voluntary decision to seek to be included on the List; these include requirements to apply for inclusion on the List, maintain updated contact information, perform a minimum of 50 annual pro bono hours of service at each immigration court location where the attorney or organization intends to be included on the List, and file a declaration every three years of continuing eligibility to be on the List. The regulations provide for removal from the List of a provider who can no longer meet the requirements of inclusion on the List. The Department examined these burdens to the public and has determined that the benefits outweigh the burdens. The Department believes that this rule will have a minimal economic impact on List participants because it provides List participants with flexible means of complying with the rule's requirements. Further, it will not have a substantial economic impact on Department functions, as the Department is already maintaining and updating such a List quarterly. The Department believes this rule will have a positive economic impact for individuals in proceedings before EOIR who need legal services, as the rule is intended to preserve the integrity of the List and ensure that providers on the List are actually available to provide pro bono legal services.
This rule will not have substantial direct effects on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
The Department of Justice, Executive Office for Immigration Review (EOIR), has submitted an information collection request to OMB for review and clearance in accordance with review procedures of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320. Some of the comments EOIR received following publication of the proposed rule related to this information collection. Notice of OMB approval for this information collection will be published in a future
One commenter suggested electronic filings and submissions. The Department contemplates implementing an electronic/Internet-based system in the future that may facilitate the collection of information. In the meantime, EOIR has created an optional Form EOIR-56,
EOIR currently uses appropriate information technology to reduce burden and improve data quality, agency efficiency, and responsiveness to the public. Under this rule, EOIR will continue to do so to the maximum extent practicable and will explore implementing technology to facilitate information collections. EOIR will collect the information for any person or entity seeking to be included on EOIR's List of Pro Bono Legal Service Providers. Under the current regulation, it is estimated that it takes a total of 17 hours annually to provide the required information (50 applicants per year at 20 minutes per application).
Under the rule, it is estimated that 129 applicants will file applications each year for the first two years (phase-in period) and take an average of 30 minutes for each application, resulting in an estimated total of 65 hours each year. After the first two years, it is estimated that there will be 93 applicants per year, expending an average of 30 minutes for each application, resulting in an estimated total of 47 hours each year. This would be an increase from the current estimated annual hours by 48 hours annually for the two-year phase-in period and 30 hours annually for the succeeding years.
Administrative practice and procedure, Aliens, Immigration, Legal services, Organizations and functions (Government agencies).
Administrative practice and procedure, Aliens.
Administrative practice and procedure, Aliens, Immigration.
Accordingly, for the reasons stated in the preamble, parts 1003, 1240, and 1241 of chapter V of title 8 of the Code of Federal Regulations are amended as follows:
5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
(a)
(2)
(3)
(4)
(5)
(b)
(c)
(d)
(a)
(1) The organization will provide a minimum of 50 hours per year of pro bono legal services to individuals at each immigration court location where the organization intends to be included on the List, in cases where an attorney or representative of the organization, or an attorney or representative to whom the organization has referred the case for pro bono representation, files a Form EOIR-28 Notice of Entry of Appearance as Attorney or Representative before the Immigration Court (EOIR-28 Notice of Entry of Appearance). When an attorney or representative of the organization represents the individual pro bono before the immigration court location, the organization may count, toward the 50-hour requirement, the attorney's or representative's out-of-court preparation time and in-court time. When the organization refers the case for pro bono legal services outside the organization, the organization may count, toward the 50-hour requirement, time the organization's attorneys and representatives spent providing pro bono legal services, for example conducting an intake interview or mentoring the attorney or representative to whom the case is referred. However, the organization is not permitted to count the time of the attorney or representative to whom the case was referred.
(2) The organization has on its staff at least one attorney, as defined in § 1292.1(a)(1) of this chapter, or at least one representative accredited under part 1292 of this chapter, to practice before the immigration courts and the Board of Immigration Appeals.
(3) No attorney or representative who will provide pro bono legal services on
(b)
(1) The organization will provide a minimum of 50 hours per year of pro bono legal services to individuals at each immigration court location where the organization intends to be included on the List, in cases where an attorney or representative of the organization, or an attorney or representative to whom the organization has referred the case for pro bono representation, files a Form EOIR-28 Notice of Entry of Appearance. When an attorney or representative of the organization represents the individual pro bono before the immigration court location, the organization may count, toward the 50-hour requirement, the attorney's or representative's out-of-court preparation time and in-court time. When the organization refers the case for pro bono legal services outside the organization, the organization may count, toward the 50-hour requirement, time the organization's attorneys or representatives spent providing pro bono legal services, for example conducting an intake interview or mentoring the attorney or representative to whom the case is referred. However, the organization is not permitted to count the time of the attorney or representative to whom the case was referred.
(2) The organization has on its staff at least one attorney, as defined in § 1292.1(a)(1) of this chapter.
(3) No attorney or representative who will provide pro bono legal services on the organization's behalf in cases pending before EOIR is the subject of an order of disbarment under § 1003.101(a)(1) or suspension under § 1003.101(a)(2).
(c)
(d)
(1) The attorney is not the subject of an order of disbarment under § 1003.101(a)(1) or suspension under § 1003.101(a)(2);
(2) The attorney will provide a minimum of 50 hours per year of pro bono legal services to individuals at each immigration court location where the attorney intends to be included on the List, in cases where he or she files a Form EOIR-28 Notice of Entry of Appearance. The attorney may count, toward the requirement, both out-of-court preparation time and in-court time.
(3) The attorney cannot provide pro bono legal services through or in association with an organization or pro bono referral service described in paragraph (a), (b), or (c) of this section because:
(i) Such an organization or referral service is unavailable; or
(ii) The range of services provided by an available organization(s) or referral service(s) is insufficient to address the needs of the community.
(a)
(1) Establish by clear and convincing evidence that the applicant qualifies to be on the List pursuant to § 1003.61(c);
(2) Specify how the organization, pro bono referral service, or attorney wants its name and contact information to be set forth on the List; and
(3) Identify each immigration court location where the organization, pro bono referral service, or attorney provides, or plans to provide, pro bono legal services.
(b)
(1) That it will provide annually at least 50 hours of pro bono legal services to individuals in removal or other proceedings before each immigration court location identified in its application;
(2) That every attorney and accredited representative who will represent clients pro bono before EOIR on behalf of the organization is registered to practice before EOIR under § 1292.1(f);
(3) That no attorney or representative who will provide pro bono legal services on behalf of the organization in cases pending before EOIR:
(i) Is under any order suspending, enjoining, restraining, disbarring, or otherwise restricting him or her in the practice of law; or
(ii) Is the subject of an order of disbarment under § 1003.101(a)(1) or suspension under § 1003.101(a)(2); and
(4) Any specific limitations it has in providing pro bono legal services (
(c)
(1) That it will offer its referral services to individuals in removal or other proceedings before each immigration court location identified in its application; and
(2) Any specific limitations it has in providing its pro bono referral services (
(d)
(1) That he or she will provide annually at least 50 hours of pro bono legal services to individuals in removal or other proceedings before each immigration court location identified in his or her application;
(2) Any specific limitations the attorney has in providing pro bono legal services (
(3) A description of the good-faith efforts he or she made to provide pro bono legal services through an organization or pro bono referral service described in § 1003.62(a), (b), or (c) to individuals appearing before each immigration court location listed in the application;
(4) An explanation that any such organization or referral service is unavailable or that the range of services provided by available organization(s) or referral service(s) is insufficient to address the needs of the community;
(5) His or her EOIR registration number;
(6) That he or she is not under any order suspending, enjoining, restraining, disbarring, or otherwise restricting him or her in the practice of law; and
(7) That he or she is not the subject of an order of disbarment under § 1003.101(a)(1) or suspension under § 1003.101(a)(2).
(e)
(f)
(2)
(a)
(b)
(1)
(2)
(a)
(1) Remove the name of the attorney from the List no later than at the next quarterly update; and
(2) Notify the attorney of such removal in writing, at the last known address given by the provider or electronically.
(b)
(2) Any provider removed from the List at the provider's request may seek reinstatement to the List upon written notice to the Director. Any request for reinstatement must include a new declaration of eligibility, as set forth under § 1003.63(b), (c), or (d). Reinstatement to the List is at the sole discretion of the Director. Upon the Director's approval of reinstatement, the provider's name shall be included on the List no later than in the next quarterly update. Reinstatement to the List does not affect the requirement under § 1003.64(b)(2) that a provider submit a new declaration of eligibility every three years from the date of the approval of the original application to be included on the List.
(c)
(d)
(1)
(i) Fails to comply with § 1003.66;
(ii) Has filed a false declaration in connection with an application filed pursuant to § 1003.63;
(iii) Improperly uses the List primarily to advertise or solicit clients for compensated legal services; or
(iv) Fails to comply with any and all other requirements of this subpart.
(2)
(3)
(4)
(i) Remove the name of the provider from the List no later than in the next quarterly update; and
(ii) Notify the provider of such removal in writing, at the address last provided to the Director by the provider or electronically.
(5)
All providers with a pending application or currently on the List must notify the Director in writing within ten business days if:
(a) The provider's contact information has changed;
(b) Any specific limitations in providing pro bono legal services under § 1003.63(b)(4), (c)(2), or (d)(2) have changed; or
(c) The provider is no longer eligible under § 1003.62.
8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277, (112 Stat. 2681).
(a) * * *
(2) Advise the respondent of the availability of pro bono legal services for the immigration court location at which the hearing will take place, and ascertain that the respondent has received a list of such pro bono legal service providers.
(3) Ascertain that the respondent has received a copy of appeal rights.
5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223, 1224, 1225, 1226, 1227, 1231, 1251, 1253, 1255, 1330, 1362; 18 U.S.C. 4002, 4013(c)(4).
Executive Office for Immigration Review, Department of Justice.
Proposed rule.
This rule proposes to amend the regulations governing the requirements and procedures for authorizing representatives of non-profit religious, charitable, social service, or similar organizations to represent persons in proceedings before the Executive Office for Immigration Review (EOIR) and the Department of Homeland Security (DHS). The rule also proposes amendments to the regulations concerning EOIR's disciplinary procedures.
Electronic comments must be submitted and written comments must be postmarked on or before November 30, 2015. The electronic Federal Docket Management System at
Please submit written comments to Jean King, General Counsel, Office of the General Counsel, Executive Office for Immigration Review, Department of Justice, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041. You may view an electronic version and provide comments via the Internet by using the
Jean King, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041, telephone (703) 305-0470 (not a toll-free call).
Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule. The Department also invites comments that relate to the economic, environmental, or federalism effects that might result from this rule. Comments that will provide the most assistance to the Department in developing these procedures will reference a specific portion of the rule, explain the reason for any recommended change, and include data, information, or authority that supports such recommended change.
All submissions received should include the agency name and reference RIN 1125-AA72 or EOIR Docket No. 176 for this rulemaking. When submitting comments electronically, you must include RIN 1125-AA72 or EOIR Docket No. 176 in the subject box.
Please note that all comments received are considered part of the public record and made available for public inspection at
If you want to submit personally identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONALLY IDENTIFYING INFORMATION” in the first paragraph of your comment and identify what information you want redacted.
If you want to submit confidential business information as part of your comment, but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You also must prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on
Personally identifying information located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. To inspect the agency's public docket file in person, you must make an appointment with agency counsel. Please see the
The Executive Office for Immigration Review's (EOIR) Recognition and Accreditation (R&A) program addresses the critical and ongoing shortage of qualified legal representation for underserved populations in immigration cases before Federal administrative agencies. Through the R&A program, EOIR permits qualified non-attorneys to represent persons before the Department of Homeland Security (DHS), the immigration courts, and the Board of Immigration Appeals (BIA or Board). The specially qualified non-attorneys, known as accredited representatives, must be associated with and designated by a non-profit organization, known as a recognized organization. The non-profit organization must apply to EOIR for its recognition and for the accreditation of its qualified non-lawyers. Currently, there are more than 900 recognized organizations and more than 1,600 accredited representatives nationwide.
The purpose of this proposed rule is to promote the effective and efficient administration of justice before DHS and EOIR by increasing the availability of competent non-lawyer representation for underserved immigrant populations. The proposed rule seeks to accomplish this goal by amending the requirements for recognition and accreditation to increase the availability of qualified representation for primarily low-income and indigent persons while protecting the public from fraud and abuse by unscrupulous organizations and individuals. The legal, financial, and emotional harm and exploitation perpetrated by notarios
The proposed rule seeks to accomplish these objectives by clarifying the process for applying for recognition and accreditation and facilitating the ability of organizations and representatives to serve persons before EOIR and DHS. At the same time, the proposed rule balances the potential increased availability of recognized organizations and accredited representatives with greater oversight and accountability for recognized organizations and accredited representatives.
The rule proposes to transfer administration of the R&A program within EOIR from the Board to the Office of Legal Access Programs (OLAP); amend the qualifications for recognition of organizations and accreditation of their representatives; institute administrative procedures to enhance the management of the R&A roster; and update the disciplinary process to make recognized organizations, in addition to accredited representatives, attorneys, and other practitioners, subject to sanctions for conduct that contravenes the public interest.
With the exception of a technical amendment in 1997, the R&A regulations have remained unchanged since 1984.
EOIR has administered the R&A program for the past 30 years in the face of these structural changes in the government as well as the changing realities of the immigration system and of the ability of non-profit organizations to meet the increased need for legal representation. During this time, EOIR, in consultation with DHS, has comprehensively examined the R&A regulations in light of various issues that have arisen and solicited input from the public on how to address the developments of the past 30 years in amended regulations.
Under the current R&A regulations, the Board approves or disapproves requests for recognition and accreditation, determines whether to withdraw recognition, and maintains a roster of recognized organizations and their accredited representatives.
For over a decade, OLAP has been responsible for overseeing legal orientation programs and for facilitating access to pro bono representation and self-help educational materials for individuals in immigration proceedings. OLAP is best suited to administer the R&A program because it is dedicated to fostering access to legal representation in immigration cases. OLAP executes this mission primarily through programs and initiatives that facilitate access to information (including self-help materials) and that create incentives for attorneys and law students to handle pro bono immigration cases. OLAP is responsible for administering the Legal Orientation Program, the Legal Orientation Program for Custodians of Unaccompanied Alien Children, the BIA Pro Bono Project, the Model Hearing Program, and the newly created National Qualified Representative Program.
OLAP currently is not designated as an EOIR component in the regulations. The proposed rule would formalize OLAP's structure and function as a component of EOIR and transfer the administration of the R&A program from the Board to OLAP. Under the proposed rule, OLAP would have the authority to approve or disapprove requests for recognition and accreditation, to maintain a roster of recognized organizations and their accredited representatives, and to administratively terminate an organization or a representative.
As outlined below, the proposed rule would make significant changes to the process and qualifications for requesting and renewing recognition and accreditation, with the express purpose of increasing capacity while maintaining adequate standards for recognition and accreditation.
To be recognized under the current R&A regulations, an organization must: be a non-profit religious, charitable, social service, or similar organization established in the United States; make only nominal charges and assess no excessive membership dues for its services; and have adequate knowledge, information, and experience at its disposal. The proposed rule retains the non-profit requirement with the additional requirement to demonstrate Federal tax-exempt status. The proposed rule also retains the adequate knowledge, information, and experience requirement. The proposed rule replaces the nominal fee requirement with requirements that shift the singular focus from fees to the organization's other sources of revenue and whether the organization is primarily serving low-income and indigent clients. The proposed rule also requires, in contrast with the current regulations, that an organization must have an authorized officer to act on its behalf and at least one accredited representative to be recognized and maintain recognition.
The proposed rule would require that an organization have at least one accredited representative to be recognized, to maintain recognition, and to have its recognition renewed. Currently, the R&A regulations do not include such a requirement and, as a result, some organizations that have only attorneys (and no accredited representatives) on staff have been recognized. An organization with only attorneys on staff does not need to seek recognition because attorneys already are authorized to appear before DHS, the immigration courts, and the Board as long as they are eligible to practice law, are members in good standing of a bar, and are not under any order restricting or prohibiting their practice of law.
The current regulations require organizations to demonstrate non-profit status for recognition. The proposed rule would require an organization to establish both that it is a non-profit religious, charitable, social service, or similar organization established in the United States and that it is federally tax-exempt.
The proposed requirement to demonstrate Federal tax-exempt status provides a means of confirming that organizations requesting recognition are legitimate non-profit organizations.
While classification as a 501(c)(3) federally tax-exempt organization may be sufficient to show that an organization is a non-profit religious, charitable, social service, or similar organization for tax purposes, the proposed rule neither presumes that 501(c)(3) organizations have non-profit religious, charitable, social service, or similar purposes for recognition purposes, nor limits recognition to organizations that are tax-exempt under section 501(c)(3). Organizations that apply for or obtain Federal tax exemptions under section 501(c)(3) or other sections of the Federal tax code may only receive recognition if they also show that they are non-profit religious, charitable, social service, or similar organizations providing free or reduced-cost immigration legal services to primarily low-income and indigent persons.
The proposed rule would eliminate the “nominal charges” requirement contained in the current regulations.
At the same time, a commenter expressed concern about allowing organizations that charge more than nominal fees to obtain recognition.
Recognizing the concerns with the nominal fees requirement, and to increase the number and sustainability of recognized organizations able to provide immigration legal services to indigent and low-income persons before EOIR and DHS, the Board recently updated and clarified its interpretation of the “nominal charges” requirement in
The proposed rule would generally require an organization to demonstrate that a “substantial amount of the organization's immigration legal services budget is derived from sources other than funds provided by or on behalf of the immigration clients themselves (such as legal fees, donations, or membership dues).” This proposed requirement reflects the fact that a legitimate non-profit organization providing immigration legal services to low-income and indigent clients generally supports its operations through various sources of outside funding and not solely or entirely
To satisfy the “substantial amount” requirement under the proposed rule, an organization must submit its annual budget for providing immigration legal services for the current year and, if available, its annual budget for providing immigration legal services for the prior year. If both such budgets are unavailable, the organization must submit its projected annual budget for providing immigration legal services for the upcoming year. The organization's budget, whether actual or projected, should identify its revenue and expenses attributable to immigration legal services. The revenue should include the amount of fees, membership dues, and donations
The proposed rule would require OLAP to review the organization's funding sources. In doing so, the rule does not identify a specific formula or percentage to be used to measure a “substantial” amount. Rather, under the proposed rule, OLAP would make a determination looking at the totality of the organization's circumstances. For example, an organization with an annual immigration legal services budget funded by either no immigration client fees, membership dues, or donations, or with a quarter (or less) of its annual immigration legal services budget provided by such funding would likely meet the “substantial amount” requirement. Similarly, an organization may demonstrate that it has no need for client fees, membership dues, or donations from its immigration clients to support its organization because, for example, it is a religious organization that receives in-kind donations of office space, equipment, and supplies and relies on volunteers or members of a religious congregation who provide legal services at little cost to the organization.
On the other hand, the greater the amount of funding an organization derives from fees, membership dues, or donations provided by or on behalf of immigration clients, the more likely the organization will not be able to meet the “substantial amount” requirement. For instance, an organization whose legal services budget is based on unreliable funding sources, such as projected revenue from small special events (
In limited circumstances, the proposed rule would authorize OLAP to grant a waiver of the “substantial amount” requirement where an organization persuasively demonstrates that the waiver is in the public interest. “Public interest” factors to be considered include: The geographic location of the organization; the manner in which legal services are to be delivered; the types of immigration legal services offered; and the population to be served. The history and reputation of the organization in its community and the qualifications of its staff may also be considered in the assessment. Organizations likely to be considered for the waiver may be, for example, operating in an underserved area, such as a remote detention facility, or providing assistance to vulnerable or economically disadvantaged populations, such as mentally incompetent persons, unaccompanied minors, or adjustment of status self-petitioners under the Violence Against Women Act (VAWA).
In order to avoid recognizing organizations with for-profit motives and to advance the requirement that organizations have a religious, charitable, social service, or similar purpose, the proposed rule would require an organization to establish that it provides immigration legal services primarily to low-income and indigent clients. Neither the term “primarily” nor the term “low-income” is defined in the proposed rule. Most commenters following the March 14, 2012, stakeholder meeting eschewed a proposed rule defining “low-income.” They stated that organizations need flexibility in deciding which clients they serve because organizations are often unable to verify the income of clients.
Organizations, however, have the burden of demonstrating that they provide immigration legal services “primarily” to “low-income and indigent” persons. While income and expenses for clients will vary nationwide and each organization should have flexibility to determine which clients are “low-income and indigent” and eligible for services, each organization nevertheless should have guidelines for determining whether clients are “low-income and indigent” so that OLAP may assess whether the organization's guidelines reasonably ensure that its services will be primarily directed toward low-income and indigent persons. For example, an organization may use a particular percentage from the annual Federal poverty guidelines issued by the Department of Health and Human Services as a benchmark to determine whether a person meets the threshold for free or reduced cost legal services.
Requiring recognized organizations to serve primarily low-income and indigent clients necessarily affects the magnitude of legal fees, membership dues, or donations, if any, that an organization may charge or request. Charging or requesting excessive fees, membership dues, or donations would not be consistent with the aim of serving primarily low-income and indigent clients.
At the same time, the proposed rule does not prohibit a recognized organization from serving a limited number of clients regardless of income.
The current R&A regulations require an organization to “ha[ve] at its disposal adequate knowledge, information and experience” to be recognized.
Although attorney mentors are encouraged,
The proposed rule would require an organization to designate an authorized officer, who is empowered to act on its behalf for all matters related to recognition and accreditation. This requirement will facilitate accountability and communication between OLAP and the organization. The president, secretary, executive director, or other designated individual of the organization may serve as the authorized officer of the organization.
To be accredited under the current R&A regulations, an individual must have good moral character. The current regulations also require the organization to describe an individual's knowledge of and experience in immigration law and procedure without specifying a minimum standard of knowledge and experience. The proposed rule replaces the good moral character requirement with a character and fitness requirement that seeks to more comprehensively examine an individual's suitability to represent clients. The proposed rule also explicitly requires that individuals be an employee or volunteer of the organization to be accredited so that they are subject to the supervision and direction of the organization. The proposed rule clarifies the amount of knowledge and experience required by adopting a broad knowledge and adequate experience standard the Board has applied. Finally, the proposed rule precludes attorneys as defined by 8 CFR 1001.1(f) and individuals who have been convicted of a serious crime or who are under an order restricting their practice of law from being accredited.
Whereas the current R&A regulations require that a proposed accredited representative be a person of “good moral character,”
An individual's current immigration status is also a separate factor in the fitness determination because of the inherent conflict in having accredited representatives represent individuals before the same immigration agencies before whom they are actively appearing in their personal capacities. Moreover, an individual's immigration status may affect whether immigration practitioners can continue their representation of clients throughout the pendency of their clients' immigration matters. Therefore, the Department is seeking input from the public regarding the parameters of this factor, and is considering whether individuals seeking accreditation must, for example, have employment authorization or not be in active proceedings before DHS or EOIR.
The character and fitness requirement may be satisfied by the signatures of the organization and its proposed representative on the request for accreditation (Form EOIR-31A), attesting that the proposed representative has the requisite character and fitness. The signatures affirm that the proposed representative has, among other things, a record of honesty, trustworthiness, diligence, professionalism, and reliability. The signatures also attest that the proposed representative's work will be performed in the United States. Additional documentation, such as a favorable background check and letters of recommendation attesting to the individual's good character, may also support the character and fitness requirement for accreditation.
The proposed rule would explicitly require that a proposed representative for accreditation be subject to the direction and supervision of the organization as either its employee or its volunteer.
The proposed rule would require an organization to show that a proposed representative possesses “broad knowledge and adequate experience in immigration law and procedure” and that a proposed representative for whom the organization seeks full accreditation has “skills essential for effective litigation.” Under the current R&A regulations, organizations are simply required to describe “the nature and extent of the proposed representative's experience and knowledge of immigration and naturalization law and procedure.”
The proposed rule does not establish a required number of formal training hours, specific courses, or testing to show broad knowledge and experience for initial accreditation or for renewal of accreditation, although some commenters recommended doing so.
The proposed rule would restrict accreditation to non-attorneys and individuals who have not been convicted of a serious crime and are not subject to an order restricting their practice of law. The proposed rule also bars attorneys licensed in the United States from accreditation because accreditation is not necessary for attorneys to represent clients before EOIR or DHS, and thus granting them accreditation would serve no meaningful purpose.
Currently, the regulations allow the Board to sanction (
In order to demonstrate that the above qualifications are satisfied, the organization and its proposed representative must sign Form EOIR-31A attesting that the representative is not an attorney licensed to practice in the United States; is not subject to an order restricting his or her practice of law or representation before a court or administrative agency; and has not been convicted of a serious crime.
The proposed rule would modify the filing and review process for recognition and accreditation requests. Under the current process, organizations use Form EOIR-31 to request recognition, and the form identifies the requirements for recognition.
The proposed rule would modify the requirements for service of requests for recognition and accreditation in two ways. First, the proposed rule requires service of a request for recognition or accreditation only on USCIS, not on both USCIS and ICE.
The proposed rule also allows OLAP to gather information from new sources—other than USCIS and ICE—in evaluating requests for recognition and accreditation. OLAP may request investigations and receive information from the EOIR disciplinary counsel and the EOIR anti-fraud officer when evaluating recognition and accreditation requests. OLAP may also consider publicly available information, such as newspaper articles or other public records. Unfavorable information obtained by OLAP from these sources, or from USCIS or ICE, that may be relied upon to disapprove a recognition or accreditation request, if not previously served on the organization, will be disclosed to the organization. The organization will be given a reasonable opportunity to respond to such unfavorable information prior to any determination on the request for recognition or accreditation.
In addition, in order to minimize adverse determinations, OLAP may request additional information from an organization prior to issuing a determination on a request for recognition or accreditation.
Finally, similar to the current R&A regulations, which do not allow for an appeal or a motion to reopen or reconsider the Board's final decision on recognition or accreditation issues, the proposed rule provides that OLAP's recognition or accreditation determinations would be final (
The proposed rule eliminates the requirement that organizations with multiple offices submit separate applications for recognition of each physical location,
To extend recognition to another office or location, the proposed rule does not require a recognized organization to fully complete a Form EOIR-31 for the new office or location. Rather, the recognized organization must simply submit Form EOIR-31 with the names and addresses of offices or locations where it intends to provide services and affirm that it conducts regular inspections, supervises and controls its accredited representatives, and provides access to adequate legal resources at each office or location where services will be provided. An organization seeking to extend recognition to an office or location must conduct periodic inspections of that office or location, but daily supervision of accredited representatives would not be expected. Once the request for extension is approved, the organization's accredited representatives may represent clients out of each of the offices or locations listed. The addresses of these offices or locations and the associated accredited representatives will be placed on the roster of recognized organizations and accredited representatives.
The proposed rule does not require OLAP to extend recognition and accreditation to all offices or locations of an organization. Rather, OLAP, in its discretion, may direct an office or location of an organization to independently seek recognition and the accreditation of its representatives. For example, if a national non-profit organization applied to extend recognition from its headquarters to a branch or affiliate office with its own non-profit organizing documents, staff, funding sources, fee schedules, and other distinct operations, the branch office would likely be required to independently seek recognition and the accreditation of its representatives.
Under the current R&A regulations, recognized organizations are recognized indefinitely, unless their recognition is withdrawn. Accredited representatives, on the other hand, are currently required to request renewal of their accreditation every three years. Some commenters recommended that organizations be required to renew their recognition to address the perceived ineffectiveness of the current rule's withdrawal of recognition process and to improve oversight of recognized organizations, whereas others have recommended an annual update by the organization rather than a full re-recognition process.
Under the proposed rule, recognition would be valid for a period of three years, unless the organization has been granted conditional recognition, which is valid only for two years, or the organization has its recognition administratively terminated or is disciplined (through revocation or termination) prior to the conclusion of its recognition period. The accreditation period of a representative would run concurrently with the organization's recognition period or, if approved separately from the organization's recognition, the representative's accreditation would expire on the same date the organization's period of recognition ends, unless the representative is administratively terminated or the representative is disciplined (through termination, revocation, suspension, or disbarment) prior to the conclusion of the recognition period. This framework simplifies the renewal process for the organization, which must seek renewal for both itself and its representatives at the same time, and reinforces the interdependence between recognition and accreditation, as accreditation does not exist independently of association with a recognized organization.
As noted above, the proposed rule provides that, in order to retain recognition, an organization must renew its recognition along with the accreditation of its representatives every three years, or two years after a grant of conditional recognition.
To renew recognition, the organization must file Form EOIR-31, establish that it continues to maintain the qualifications for recognition; submit fee schedules and annual reports compiled since its last approval of recognition; and describe any unreported changes that impact eligibility for recognition since the last approval of recognition. The new
To renew accreditation, the organization must use Form EOIR-31A, establish that the accredited representative continues to maintain the qualifications for accreditation, and show that the representative has continued to receive formal training in immigration law and procedure commensurate with the services the organization provides and the duration of the representative's accreditation.
The proposed rule does not mandate testing or the type or amount of training required to renew accreditation.
In its renewal request, an organization should also show, through its annual reports, the types and numbers of immigration applications and cases handled by the accredited representative during the accreditation period, and submit letters of recommendation from individuals who can attest to the representative's character and performance during the period. The duration of a representative's accreditation is relevant in this regard, as a representative who was accredited six months prior to the renewal date would not necessarily be expected to show the same amount of formal training and work experience as a representative who was accredited for an entire three-year period. Nonetheless, the organization would be expected to provide information regarding any training attended or cases handled by the representative during the abbreviated period of accreditation. Even an experienced representative who has been re-accredited several times should demonstrate continued formal training.
OLAP's process for evaluating recognition and accreditation renewal requests is similar to the review process for initial recognition and accreditation requests. OLAP may receive a recommendation from USCIS regarding the requests, and it may request additional information from the organization, review publicly available information, or seek an investigation and information from USCIS, ICE, the EOIR disciplinary counsel, or the EOIR anti-fraud officer. The organization will have the opportunity to respond to unfavorable information that was not previously provided to it that OLAP may use to make its renewal determination.
As in the context of initial requests, discussed in Part IV.B.3 above, the proposed rule provides that OLAP's determinations regarding recognition or accreditation renewal requests would be final (
For an organization whose request for renewal of recognition is disapproved, both its recognition and the accreditation of its representatives will terminate upon service of an administrative termination notice. However, the disapproved organization may submit a new request for recognition or accreditation.
The proposed rule permits a recognized organization to request, at any time during the validity period of accreditation or at renewal, that a representative's status be changed from partial to full accreditation. A request for a change to full accreditation must demonstrate that the representative has the skills essential for effective litigation of cases before the immigration courts and the Board, such as legal research and oral and written trial and appellate advocacy skills. If an organization requests a change from partial to full accreditation at renewal, and that request is disapproved, OLAP may renew the representative's partial accreditation provided that the representative satisfies the requirements for renewal of such accreditation.
Organizations and representatives recognized and accredited prior to the effective date of this rule when it is adopted in final form will remain recognized and accredited.
• Organizations without an accredited representative would be required to renew recognition within one year of the effective date of the final rule, so that such organizations become compliant with the rule's requirement that recognized organizations have at least one accredited representative.
• Organizations submitting a request for accreditation of a new representative or a request for extension of recognition and accreditation to an additional office or location would be required to renew recognition and accreditation of all representatives at that time, so that the organization's recognition and the accreditation of its representatives remain linked and subject to renewal at the same time.
• Organizations that do not fall into either of the above categories would be required to apply for renewal of recognition within two years of the effective date of the final rule if the organization was recognized for more than ten years prior to the effective date, or within three years of the effective
If the accreditation of a currently accredited representative would otherwise expire prior to the date that the organization is required to renew recognition under this rule, the representative's renewal date will be tied to the organization's renewal date. In other words, if a representative's accreditation would otherwise expire one year after the effective date of the final rule, but the organization is not required to renew its recognition until two years after the effective date, the representative's accreditation continues in effect and does not need to be renewed until year two, at which time the organization will be required to seek renewal of recognition for itself and renewal of its representatives' accreditations at the same time. If an organization timely files a request for renewal of recognition and accreditation, both the recognition of the organization and the accreditation of its representatives will remain valid pending OLAP's consideration of the renewal requests.
Except for the new eligibility requirements of the final rule,
The proposed rule provides for conditional recognition of organizations that have not been previously recognized or that are recognized anew after having lost recognition due to an administrative termination or disciplinary sanctions. Some commenters have suggested that newly recognized organizations should be subject to a probationary period to assess their capabilities as non-profit providers of immigration legal services.
For a new organization, the two-year period provides the necessary time for the organization to establish itself and demonstrate that it can maintain the qualifications for recognition. Specifically, the conditional recognition period should provide sufficient time for new organizations to submit relevant tax documents, develop their client base, and establish a track record of offering immigration legal services to the community. The two-year conditional recognition period also should facilitate informed recommendations from USCIS and others in the community as to the competence of the organization and its representatives. For a previously recognized organization that was subject to an administrative termination or disciplinary sanctions, conditional recognition places it in the same position as a “new” organization. But the two-year period allows OLAP the opportunity to review the organization at an earlier renewal date to ensure that the same issues that led to an organization's earlier termination or discipline do not resume. Once OLAP approves a conditionally recognized organization for renewal of recognition, the organization and its accredited representatives then become subject to the standard three-year renewal cycle.
The proposed rule would impose reporting, recordkeeping, and posting requirements on recognized organizations and permit OLAP to administratively terminate recognition if OLAP determines that such a sanction is warranted because an organization fails to comply with these requirements after being notified of the deficiencies and having an opportunity to respond. These measures are intended to promote accountability from recognized organizations and serve as deterrents against fraud and abuse by individuals seeking to exploit the recognition and accreditation process.
First, the proposed rule would clarify the scope of the duty to report set forth in the current R&A regulations and EOIR's guidance to organizations,
Second, the proposed rule would add a new recordkeeping requirement, which will provide OLAP with a means to monitor organizations and ensure their compliance with the recognition requirements. Specifically, recognized organizations would be required to compile certain records and maintain them for six years after the creation of the records,
Third, the proposed rule would authorize OLAP to require recognized organizations to post certain public notices.
The proposed rule would replace the current withdrawal-of-recognition process with administrative termination procedures in order to provide a clear and more effective mechanism for OLAP to regulate the R&A roster for administrative, non-disciplinary reasons.
As commenters have noted in public meetings and written comments, the current withdrawal-of-recognition procedures are largely ineffective and have been rarely used.
The proposed rule provides a list of administrative bases for terminating recognition or accreditation. These bases are limited to circumstances within the knowledge of the organization or representative. For instance, an organization's recognition may be administratively terminated because it voluntarily requested termination, because it did not request renewal of recognition,
Upon notice to an organization that its recognition has been terminated, the accreditation of that organization's representatives will automatically be terminated as well, unless those individuals are also accredited through another recognized organization. The termination of a representative's accreditation may result in termination of the recognition of the representative's organization if the organization does not have any other accredited representatives. If that is the case, OLAP, independently or at the request of the organization, in the exercise of discretion, may place the organization on inactive status in lieu of terminating the organization's recognition. Inactive status precludes the organization from providing immigration legal services if it does not have an attorney on staff, but gives the organization a reasonable opportunity to apply for and have approved the accreditation of a new representative without having to request recognition anew.
The proposed rule would provide an additional tool for EOIR to regulate the roster of recognized organizations through EOIR's well-established disciplinary procedures at part 1003, subpart G, 8 CFR 1003.101
Currently, only attorneys, representatives, and other practitioners
Building on EOIR's well-established disciplinary procedures in part 1003,
The proposed rule would thus generally amend EOIR's disciplinary procedures so that they apply equally to recognized organizations, accredited representatives, and attorneys. The proposed rule would also add provisions to the disciplinary regulations that apply only to (1) recognized organizations, (2) accredited representatives, or (3) attorneys, accredited representatives, and other practitioners.
The proposed rule provides, at 8 CFR 1003.110, a non-exhaustive list of grounds for which it would be in the public interest to impose sanctions against a recognized organization, including: (1) Providing a false statement or misleading information in applying for recognition or accreditation of the organization's representatives; (2) providing false or misleading information to clients or prospective clients regarding the scope of authority or the services provided by the organization or its accredited representatives; (3) failing to adequately supervise accredited representatives; or (4) employing, receiving services from, or affiliating with an individual who performs an activity that constitutes the unauthorized practice of law or immigration fraud. These grounds for disciplinary sanctions ensure that only qualified organizations are recognized and that those organizations are providing competent representation.
While recognized organizations should be able to discern the scope of the rule's expectations with respect to the first, second, and fourth grounds of discipline listed above, a fuller explanation of what is expected of organizations with respect to the failure-to-supervise ground is provided herein. That ground requires that organizations oversee the legal services provided through their accredited representatives and any attorneys on staff. A recognized organization is not required to monitor the day-to-day services provided by its accredited representatives, but the organization should supervise accredited representatives who have been the subject of warning letters, informal admonitions, and agreements in lieu of discipline from the EOIR or DHS disciplinary counsel. The proposed rule would amend the confidentiality provisions at 8 CFR 1003.108 governing the information that the EOIR disciplinary counsel obtains and possesses so that the disciplinary counsel may share information about resolutions that pertain to accredited representatives
The sanctions that may be imposed against a recognized organization are (1) revocation; (2) termination; or (3) any other sanction, other than a suspension,
The proposed rule would make two changes to the current grounds for discipline that are applicable only to accredited representatives, and provide a new process for the interim suspension of certain accredited representatives in disciplinary proceedings.
Both changes to the grounds for discipline are aimed at precluding accredited representatives from acting or attempting to act outside the scope of their full or partial accreditation. In other words, a partially accredited representative, who is permitted to appear only before DHS, must not act or
The proposed rule would also add 8 CFR 1003.111 to provide for the imposition of an interim suspension against certain accredited representatives in disciplinary proceedings. If the EOIR disciplinary counsel or DHS disciplinary counsel demonstrates by a preponderance of the evidence that an accredited representative poses a substantial threat of irreparable harm to clients or prospective clients, an adjudicating official may issue an interim suspension to the accredited representative. The interim suspension would preclude a representative who has committed or is likely to commit serious misconduct from continuing to practice during the pendency of his or her disciplinary proceedings so as to protect the public from further potential harm.
The proposed rule would add two provisions to the disciplinary procedures that are applicable only to recognized organizations and accredited representatives. First, the proposed rule states that administrative termination of an organization's recognition or a representative's accreditation while disciplinary proceedings are pending has no effect on the continuation of disciplinary proceedings or the imposition of sanctions. The primary objective of this amendment is to prevent an organization or representative from voluntarily terminating recognition or accreditation to avoid disciplinary sanctions.
Second, the proposed rule provides that disciplinary sanctions, if imposed against an organization or accredited representative, would take effect immediately upon the issuance of a final order—that is, the issuance of the Board's decision on appeal or after the time for filing an appeal from the adjudicating official's decision has expired. Unlike imposition of disciplinary sanctions against attorneys and other practitioners, which take effect 15 days after the final order, disciplinary sanctions would be imposed immediately against organizations and accredited representatives. Recognized organizations and their accredited representatives are permitted to represent persons before the immigration courts, the Board, or DHS because EOIR itself grants them that permission and indicates to the public that the recognized organizations and accredited representatives are qualified to provide representation. Although attorneys also appear on behalf of multiple immigration clients, they do not need similar permission from EOIR to do so; they may practice before DHS, the immigration courts, and the Board because they are members in good standing of a state bar and not subject to any orders restricting their practice of law. The imposition of discipline against an organization or accredited representative thus allows EOIR to act immediately to protect the public from organizations and representatives that have engaged in misconduct by preventing them from continuing such conduct and significantly impairing the cases of individuals appearing before DHS, the immigration courts, and the Board.
The proposed rule would amend the provisions regarding reinstatement after suspension or disbarment. Some of these amendments would apply to accredited representatives, attorneys, and other practitioners, while others would apply only to accredited representatives.
The proposed rule would allow the EOIR or DHS disciplinary counsel to object to reinstatement because a practitioner failed to comply with the terms of a suspension; such objections could be raised in the context of both reinstatement after a suspension has expired and requests for early reinstatement. The EOIR and DHS disciplinary counsel frequently receive evidence that suspended practitioners continue to practice immigration law while they are under an order of suspension. This new provision would enable the EOIR and DHS disciplinary counsels to raise relevant evidence to the Board during reinstatement proceedings.
In addition, the proposed rule would make two changes to the reinstatement provisions that are applicable only to accredited representatives. First, accredited representatives who are disbarred by EOIR are permanently barred from appearing before the Board, the immigration courts, or DHS as accredited representatives and cannot seek reinstatement. Disbarment is permanent for accredited representatives because, as discussed above, EOIR is responsible for permitting accredited representatives to represent persons before EOIR and DHS, and it must protect the public from representatives who have been found to have engaged in misconduct worthy of disbarment. Second, the proposed rule would amend the reinstatement provisions to provide that accredited representatives may seek reinstatement only if, following the expiration of their suspension, there is time remaining on their period of accreditation. In other words, an accredited representative who has been suspended for a period of time greater than the remaining validity period of his or her accreditation at the time of the suspension is not eligible to be reinstated. In such circumstances, an organization may submit a new request for accreditation on behalf of such an individual after the period of suspension has elapsed.
As noted, this proposed rule would amend the standards governing recognition of organizations and accreditation of representatives seeking to practice before either DHS or EOIR. Currently, those standards are set forth in two parallel sets of regulations: Regulations under the authority of DHS and contained in 8 CFR part 292; and regulations under the authority of the Department and contained in 8 CFR part 1292. Each set of regulations contains substantially similar standards for recognition and accreditation, and each directs organizations and individuals to apply to the Board in order to obtain recognition or accreditation. Compare 8 CFR 292.1(a)(4), 292.2, with 8 CFR 1292.1(a)(4), 1292.2.
Although this proposed rule would revise only 8 CFR part 1292, it would prescribe the standards and procedures that EOIR would apply in adjudicating all future applications for recognition and accreditation, including applications for partial accreditation to represent individuals before DHS. Accordingly, as of the effective date of a final rule, EOIR would not apply the standards and procedures for recognition and accreditation set forth in 8 CFR part 292. DHS has informed the Department that it plans to publish regulatory amendments to 8 CFR part 292 consistent with any pertinent changes to Department regulations. The Department welcomes public comment on this matter.
Based on the foregoing and the proposed rule, the Department welcomes comments from the public on all aspects of this rule.
• The proposed requirement that an organization must demonstrate Federal tax-exempt status, including whether there are any non-profit organizations that are currently recognized that would be precluded from recognition by this requirement; and whether recognition should be restricted to non-profit organizations that have obtained section 501(c)(3) tax-exempt status from the IRS.
• The proposed requirement that a “substantial amount of the organization's immigration legal services budget is derived from sources other than funds provided by or on behalf of immigration clients themselves (such as legal fees, donations, or membership dues).”
• The proposed requirement that an organization must demonstrate that its immigration legal services are directed primarily to low-income and indigent clients within the United States and that, if an organization charges fees, the organization has a written policy for accommodating clients unable to pay for immigration legal services.
• The proposed requirement that, in order to be recognized, each organization must have an accredited representative, including whether an organization with a licensed attorney and no accredited representative on staff should be able to become a recognized organization.
• The proposed replacement of the “good moral character” requirement for accreditation with the requirement that an accredited representative possesses the “character and fitness” to represent clients, including what factors may be relevant to that assessment. Under this requirement, how should current immigration status be a factor in the fitness determination; to what extent should the agency consider whether the individual has employment authorization, has been issued a notice of intent to revoke or terminate an immigration status (or other relief), such as asylum or withholding of removal or deportation, or is in pending deportation, exclusion, or removal proceedings?
• The proposed provision permitting an organization to extend its recognition and the accreditation of its representatives to any office or location where it offers immigration legal services.
• The proposed provision that would grant conditional recognition to an organization if it has not been recognized previously or has been approved for recognition after its recognition was previously terminated, including whether conditionally recognized organizations, particularly new organizations, would be able to remove conditional status after one year, instead of two, by producing the required records (including documentation demonstrating tax-exempt status) and otherwise meeting the requirements for renewal.
• The absence, as under the current R&A regulations, of any opportunity for administrative review or appeal of adverse OLAP determinations regarding the recognition of organizations or the accreditation of representatives. Under the revised procedures, would it be appropriate to provide some opportunity for administrative review of adverse OLAP determinations, and if so, to what extent and in what contexts?
In accordance with the Regulatory Flexibility Act, this rule will not have a significant economic impact on a substantial number of small entities.
Currently, there are more than 900 recognized organizations and more than 1,600 accredited representatives. This rule seeks to increase the number of recognized organizations and accredited representatives that are competent and qualified to provide immigration legal services primarily to low-income and indigent persons. The Department, however, cannot estimate with certainty the actual increase in the number of recognized organizations and accredited individuals that may result from the proposed rule. That figure is subject to multiple external factors, including changes in immigration law and policy and fluctuating needs for representation and immigration legal services.
While EOIR does not keep statistics on the size of recognized organizations, many of these organizations and their accredited representatives may be classified as, or employed by, “small entities” as defined under section 5 U.S.C. 601. In particular, recognized organizations, which are by definition non-profit entities, may also be classified as “small organizations” and thus, as “small entities” under section 601.
Although the exact number of recognized organizations that may be classified as “small entities” is not known, the Department certifies that this rule will not have a significant economic impact on a substantial number of these entities. The proposed rule, like the current regulations, does not assess any fees on an organization to apply for initial recognition or accreditation, to renew recognition or accreditation, or to extend recognition.
The Department, however, acknowledges that organizations may incur costs to apply for recognition or accreditation, renew recognition or accreditation, or extend recognition. Based on Bureau of Labor Statistics reports and the average burden hours to apply for recognition or accreditation, renew recognition or accreditation, or extend recognition, discussed below in the Paperwork Reduction Act section, the Department estimates the costs as follows.
The Department also recognizes that the proposed rule imposes a new recordkeeping requirement on recognized organizations to compile and maintain fee schedules, if the organization charges any fees, and annual reports for a period of six years. However, the Department does not believe that the recordkeeping requirement will have a significant economic impact on recognized organizations. The annual reports would be compiled from information already in the possession of recognized organizations, and based on the estimates from the Paperwork Reduction Act section below, the Department estimates that it would cost an organization approximately $54.95 to have a lawyer compile three annual reports, and $10.00 for a non-lawyer to do so.
Despite the costs mentioned above, the Department notes that the proposed rule will economically benefit recognized organizations. The proposed rule eliminates the requirement that recognized organizations assess only “nominal charges” for their immigration legal services. Shifting the primary focus of eligibility for recognition from the fees an organization charges its clients to the organization's funding will provide organizations with flexibility in assessing fees, which should improve their financial sustainability and their ability to serve more persons.
This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined in section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996.
The proposed rule is considered by the Department to be a “significant regulatory action” under section 3(f)(4) of Executive Order 12866. Accordingly, the regulation has been submitted to the Office of Management and Budget (OMB) for review. The Department certifies that this regulation has been drafted in accordance with the principles of Executive Order 12866, section 1(b), and Executive Order 13563. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.
The proposed rule seeks to address the critical and ongoing shortage of qualified legal representation for underserved populations in immigration cases before Federal administrative agencies. Specifically, the proposed rule would revise the eligibility requirements and procedures for recognizing organizations and accrediting their representatives to provide immigration legal services to underserved populations. To expand the availability of such legal services, the proposed rule permits recognized organizations to extend their recognition and the accreditation of their representatives to multiple offices or locations and to have flexibility in charging fees for services. The proposed rule also imposes greater oversight over recognized organizations and their representatives in order to protect against potential abuse of vulnerable immigrant populations by unscrupulous organizations and individuals.
The proposed rule will greatly benefit organizations, DHS, EOIR, and most importantly, persons who need legal representation. The proposed rule is expected to increase the availability of competent and qualified legal representation in underserved areas and particularly for indigent and low-income persons where an ongoing and critical shortage of such representation exists. For example, the elimination of the nominal fee restriction will allow organizations the flexibility to assess fees so that organizations will be able to sustain their operations and potentially expand them to serve more persons. In addition, the extension of recognition and accreditation to multiple offices or locations will permit organizations and their representatives, through mobile or technological means, to reach underserved persons who may currently have difficulty finding legal representation in remote or rural locations. These two provisions will greatly increase legal representation for persons before EOIR and DHS, and in turn, will substantially aid the administration of justice.
The proposed rule will provide EOIR with greater tools to manage and oversee the recognition and accreditation program. The proposed rule requires organizations to renew their recognition and their representatives' accreditation every three years, and it imposes reporting, recordkeeping, and posting requirements on the organizations. The Department acknowledges that the new oversight provisions impose burdens on organizations. However, the burdens on the organizations are necessary to protect vulnerable immigrant populations from unscrupulous organizations and individuals and to legitimize reputable organizations and representatives.
Although the renewal requirement adds a new burden on recognized organizations, the Department has reasonably mitigated this burden. The proposed rule simplifies the renewal process so that all renewal requests, both for recognition and for accreditation of representatives of the organization are filed simultaneously. Also, the documentation to support renewal of recognition and accreditation would be supplemental to the documentation used to establish initial eligibility for recognition and accreditation. The information and documentation required to renew recognition should be in the possession of the organization in the normal course of its operations.
The reporting requirement expands the reporting obligation of organizations under the current rule, which only requires organizations to report changes in the organization's name, address, or public telephone number, or in the employment status of an accredited representative. The proposed rule
The recordkeeping requirement will primarily aid EOIR in evaluating an organization's request to renew recognition. The recordkeeping requirement requires an organization to compile fee schedules, if it charges any fees, and annual reports, and maintain them for a period of six years. The recordkeeping requirement is not unduly burdensome, as organizations should have such information in their possession, and the six-year record retention requirement is consistent with the organization's obligation to retain records, such as client files, for state or Federal purposes.
The posting requirement would require organizations to post public notices about the approval period of an organization's recognition and the accreditation of its representatives, the requirements for recognition and accreditation, and the process for filing a complaint against a recognized organization or accredited representative. EOIR would provide the notices to the organizations, and the organizations would not incur any tangible costs for the minimal burden of posting the notices. In fact, the public notices should greatly benefit organizations because the notices would legitimize organizations and notify the public that they are qualified to provide immigration legal services.
As detailed in Sections A (Regulatory Flexibility Act),
This rule may have federalism implications but, as detailed below, will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.
The proposed rule, like the current regulations it would replace, permits non-lawyer accredited representatives to engage in the practice of law before EOIR and DHS. This practice of law by non-lawyers may constitute the unauthorized practice of law under some state laws and rules prohibiting the unauthorized practice of law. The proposed rule, like the current regulations, would preempt such state law prohibitions pursuant to
Despite the preemptive effects of this proposed rule, the federalism implications are minimal. The proposed rule merely updates the current, well-established regulations permitting non-lawyer accredited representatives to engage in the practice of law before EOIR and DHS. The proposed rule does not alter or extend the scope of the limited authorization to practice law before Federal administrative agencies provided under the current regulations. More significantly, following
Under these circumstances, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
Under the Paperwork Reduction Act (PRA) of 1995, no person is required to respond to a Federal collection of information unless the agency has in advance obtained a control number from OMB. In accordance with the PRA, the Department has submitted requests to OMB to revise the currently approved information collections contained in this rule (Forms EOIR-31, EOIR-31A and EOIR-44). These information collections were previously approved by OMB under the provisions of the PRA, and the information collections were assigned OMB Control Numbers 1125-0012 (EOIR-31), 1125-0013 (EOIR-31A), and 1125-0007 (EOIR-44). Through this notice of proposed rulemaking, the Department invites comments from the public and affected agencies regarding the revised information collections. Comments are encouraged and will be accepted for sixty days in conjunction with the proposed rule. Comments should be directed to the address listed in the
If you have any suggestions or comments, especially on the estimated public burden or associated response time, or need a copy of the proposed information collection instruments with instructions or additional information, please contact the Department as noted above. Written comments and suggestions from the public and affected agencies concerning the proposed collections of information are encouraged.
Comments on the proposed information collections should address one or more of the following four points: (1) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collections of information, including the validity of the methodology and assumptions used; (3) how the Department could enhance the quality, utility, and clarity of the information to be collected; and (4) how the Department could minimize the burden of the collections of information on those who elect to respond, including through the use of appropriate
Based on the proposed rule, three currently approved information collection instruments will need to be revised: (1) The form for non-profit religious, charitable, or social service organizations to apply for recognition (Form EOIR-31) (Current OMB approval number: 1125-0012); (2) the form for recognized organizations to apply for accreditation of non-attorney representatives (Form EOIR-31A) (Current OMB approval number: 1125-0013); and (3) the form for filing a complaint against an immigration practitioner (Form EOIR-44) (Current OMB approval number: 1125-0007).
The revised Form EOIR-31 will be used to apply for initial recognition, renewal of recognition, and extension of recognition. Form EOIR-31 will generally be used every three years in connection with a request to renew recognition. It may also be used on occasion in the three-year period prior to renewal if an organization seeks to extend recognition to a new office or location, although extension of recognition to a new office may also be sought at the same time that initial recognition or renewal of recognition is sought.
Form EOIR-31 will be updated to reflect the eligibility requirements for an organization to be initially recognized and to renew recognition, as stated in the proposed rule. All of the information required under the current information collection will be required by the revised form, as most of the eligibility requirements under the current regulations are consistent with the proposed rule;
The proposed rule would require revision of the currently approved information collection with regard to its use for renewal of recognition. In the renewal context, the revised form requires organizations to provide: (1) Fee schedules used since the last approval of recognition; and (2) annual reports for each year since the last approval of recognition. As described in footnote 75, the annual report should include information already gathered by the organization, such as the number of clients served, the types of services provided, the number of clients who were provided with services at no cost, the total amount of fees charged to and donations or dues requested from immigration clients for the services provided, and the locations where accredited representatives provided legal services. The fee schedules and annual reports will be used to: (1) Evaluate an organization's request to renew recognition to determine whether the organization is satisfying the requirements for recognition, namely the provision of immigration legal services to primarily low-income and indigent persons; and (2) evaluate the effectiveness of the recognition and accreditation program in providing immigration legal services to primarily low-income and indigent persons.
Under the current information collection, which is currently used only for initial recognition, the estimated average time to review the form, gather necessary materials, complete the form, and assemble the attachments is 2 hours. The Department estimates that the average total response time will remain 2 hours for initial recognition because initial recognition requires the same materials as the current information collection. For renewal of recognition, with the additional requirements described above, namely the assembly of the annual reports, the Department estimates that the average time to review the form, gather necessary materials, complete the form, and assemble the attachments for each application to renew recognition will be 3 hours in total. Both estimates include the time saved from streamlining the recognition process by allowing an organization to file a single application for multiple locations.
Form EOIR-31A will be updated to reflect the eligibility requirements for an individual to become an accredited representative, as stated in the proposed rule. The revisions are non-substantive and are simply intended to clarify what information is required when applying for initial accreditation and renewal of accreditation, as well as the eligibility requirements for becoming an accredited representative.
Form EOIR-44 will be updated to reflect that the public may use the form to file a complaint against a recognized organization, in addition to an immigration practitioner. The revised form will not require the preparer to provide any new or additional information not already provided under the current collection. The information on this form will be used to determine whether the EOIR or DHS disciplinary counsel should conduct a preliminary inquiry, request additional information from the complainant, refer the matter to a law enforcement agency, or take no further action. The Department estimates an average response time of 2 hours to complete Form EOIR-44, with a total number of respondents at approximately 200 complainants annually. The total public burden of this revised collection is 400 burden hours annually.
There are no capital or start-up costs associated with these information collections. The estimated public cost is zero. For informational purposes only, there may be additional costs to respondents. Respondents may incur a cost if they hire a private practitioner to assist them with completing these forms. The Bureau of Labor Statistics reports that the median hourly wage for lawyers is $54.95. For those respondents who proceed without a practitioner, there is an estimated cost of $10 per hour for completing the form (the individuals' time and supplies) in lieu of the practitioner cost. There are also no fees associated with filing these forms.
Administrative practice and procedure, Aliens, Immigration, Organizations and functions (Government agencies).
Administrative practice and procedure, Aliens, Immigration, Legal services, Organizations and functions (Government agencies).
Administrative practice and procedure, Authority delegations (Government agencies), Reporting and recordkeeping requirements.
Administrative practice and procedure, Aliens, Immigration, Passports and visas, Reporting and recordkeeping requirements.
Administrative practice and procedure, Aliens.
Administrative practice and procedure, Immigration, Lawyers, Reporting and recordkeeping requirements.
Accordingly, for the reasons set forth in the preamble, 8 CFR parts 1001, 1003, 1103, 1212, 1240, and 1292 are proposed to be amended as follows:
5 U.S.C. 301; 8 U.S.C. 1101, 1103; Pub. L. 107-296, 116 Stat. 2135; Title VII of Pub. L. 110-229.
(x) The term
(y) The term
5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
(a)
(e) * * *
(1)
(f)
(1) Develop and administer a system of legal orientation programs to provide education regarding administrative procedures and legal rights under immigration law;
(2) Develop and administer a program to recognize organizations and accredit representatives to provide representation before the Immigration Courts, the Board, and DHS, or DHS alone. The OLAP Director shall determine whether an organization and its representatives meet the eligibility requirements for recognition and accreditation in accordance with this chapter. The OLAP Director shall also have the authority to administratively terminate the recognition of an organization and the accreditation of a representative and to maintain the roster of recognized organizations and their accredited representatives;
(3) Issue guidance and policies regarding the implementation of OLAP's statutory and regulatory authorities; and
(4) Exercise such other authorities as the Director may provide.
(b) * * *
(13) Decisions of adjudicating officials in disciplinary proceedings involving practitioners or recognized organizations as provided in subpart G of this part.
(d) * * *
(2) * * *
(iii)
(5)
(c) The administrative termination of a representative's accreditation under 8 CFR 1292.17 after the issuance of a Notice of Intent to Discipline pursuant to § 1003.105(a)(1) shall not preclude the continuation of disciplinary proceedings and the imposition of sanctions, unless counsel for the government moves to withdraw the Notice of Intent to Discipline and the adjudicating official or the Board grants the motion.
The revisions and addition read as follows:
(f) * * *
(2) Contains an assertion about the practitioner or his or her qualifications or services that cannot be substantiated. A practitioner shall not state or imply that he or she has been recognized or certified as a specialist in immigration or nationality law unless such certification is granted by the appropriate state regulatory authority or by an organization that has been approved by the appropriate state regulatory authority to grant such certification. An accredited representative shall not state or imply that he or she
(i) Is approved to practice before the Immigration Courts or the Board, if he or she is only approved as an accredited representative before DHS;
(ii) Is an accredited representative for an organization other than a recognized organization through which he or she acquired accreditation; or
(iii) Is an attorney.
(v) Acts outside the scope of his or her approved authority as an accredited representative.
(c)
(b)
(a)
(c)
(2) * * * The practitioner or, in cases involving a recognized organization, the organization may also state affirmatively special matters of defense and may submit supporting documents, including affidavits or statements, along with the answer.
(3)
(d) * * *
(2) Upon such a default by the practitioner or, in cases involving a recognized organization, the organization, the counsel for the government shall submit to the Board proof of service of the Notice of Intent to Discipline. The practitioner or the organization shall be precluded thereafter from requesting a hearing on the matter. The Board shall issue a final order adopting the proposed disciplinary sanctions in the Notice of Intent to Discipline unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted or not in the interests of justice. With the exception of cases in which the Board has already imposed an immediate suspension pursuant to § 1003.103 or that otherwise involve an accredited representative or recognized organization, any final order imposing discipline shall not become effective sooner than 15 days from the date of the order to provide the practitioner opportunity to comply with the terms of such order, including, but not limited to, withdrawing from any pending immigration matters and notifying immigration clients of the imposition of any sanction. Any final order imposing discipline against an accredited representative or recognized organization shall become effective immediately. A practitioner or a recognized organization may file a motion to set aside a final order of discipline issued pursuant to this paragraph, with service of such motion on counsel for the government, provided:
(ii) The practitioner's or the recognized organization's failure to file an answer was due to exceptional circumstances (such as serious illness of the practitioner or death of an immediate relative of the practitioner, but not including less compelling circumstances) beyond the control of the practitioner or the recognized organization.
(a) * * *
(2) The procedures of paragraphs (b) through (d) of this section apply to cases in which the practitioner or recognized organization files a timely answer to the Notice of Intent to Discipline, with the exception of cases in which the Board issues a final order pursuant to § 1003.105(d)(2) or § 1003.106(a)(1).
(i) The Chief Immigration Judge shall, upon the filing of an answer, appoint an Immigration Judge as an adjudicating official. At the request of the Chief Immigration Judge, the Chief Administrative Hearing Officer may appoint an Administrative Law Judge as an adjudicating official. If the Chief Immigration Judge or the Chief Administrative Hearing Officer does not appoint an adjudicating official or if in the interest of efficiency, the Director may appoint either an Immigration Judge or Administrative Law Judge as an adjudicating official. An Immigration Judge or Administrative Law Judge shall not serve as the adjudicating official in any case in which he or she is the complainant, in any case involving a practitioner who regularly appears before him or her, or in any case involving a recognized organization whose representatives regularly appear before him or her.
(ii) Upon the practitioner's or, in cases involving a recognized organization, the organization's request for a hearing, the adjudicating official may designate the time and place of the hearing with due regard to the location of the practitioner's practice or residence or of the recognized organization, the convenience of witnesses, and any other relevant factors. When designating the time and place of a hearing, the adjudicating official shall provide for the service of a notice of hearing, as the term “service” is defined in § 1003.13, on the practitioner or the authorized officer of the recognized organization and the counsel for the government. The practitioner or the recognized organization shall be afforded adequate time to prepare his, her, or its case in advance of the hearing. Pre-hearing conferences may be scheduled at the discretion of the adjudicating official in order to narrow issues, to obtain stipulations between the parties, to exchange information voluntarily, and otherwise to simplify and organize the proceeding. Settlement agreements reached after the issuance of a Notice of Intent to Discipline are subject to final approval by the adjudicating official or, if the practitioner or organization has not filed an answer, subject to final approval by the Board.
(iii) The practitioner or, in cases involving a recognized organization, the organization may be represented by counsel at no expense to the government. Counsel for the practitioner or the organization shall file the appropriate Notice of Entry of Appearance (Form EOIR-27 or EOIR-28) in accordance with the procedures set forth in this part. Each party shall have a reasonable opportunity to examine and object to evidence presented by the other party, to present evidence, and to cross-examine witnesses presented by the other party. If the practitioner or the recognized organization files an answer but does not request a hearing, then the adjudicating official shall provide the parties an opportunity to submit briefs and evidence to support or refute any of the charges or affirmative defenses.
(3)
(ii) The practitioner's or the recognized organization's failure to appear was due to exceptional circumstances (such as serious illness of the practitioner or death of an immediate relative of the practitioner, but not including less compelling circumstances) beyond the control of the practitioner or the recognized organization.
(b)
(c)
(a)
(2) The EOIR disciplinary counsel and, in matters in which the practitioner was ordered suspended from practice before DHS, the DHS disciplinary counsel may reply within 13 days of service of the motion in the form of a written response objecting to the reinstatement on the ground that the practitioner failed to comply with the terms of the suspension. The response must include supporting documentation or evidence of the petitioner's failure to comply with the terms of the suspension. The Board, in its discretion, may afford the parties additional time to file briefs or hold a hearing to determine if the practitioner meets all the requirements for reinstatement.
(3) If a practitioner does not meet the definition of attorney or representative, the Board shall deny the motion for reinstatement without further consideration. If the practitioner failed to comply with the terms of the suspension, the Board shall deny the motion and indicate the circumstances under which the practitioner may apply for reinstatement. If the practitioner meets the definition of attorney or representative and the practitioner otherwise has complied with the terms of the suspension, the Board shall grant the motion and reinstate the practitioner.
(b)
(2) A practitioner seeking early reinstatement must demonstrate by clear and convincing evidence that he or she possesses the moral and professional qualifications required to appear before the Board, the Immigration Courts, or DHS, and that his or her reinstatement will not be detrimental to the administration of justice. The EOIR disciplinary counsel and, in matters in which the practitioner was ordered disbarred or suspended from practice before DHS, the DHS disciplinary counsel may reply within 30 days of service of the petition in the form of a written response to the Board, which may include, but is not limited to, documentation or evidence of the practitioner's failure to comply with the terms of the disbarment or suspension or of any complaints filed against the disbarred or suspended practitioner subsequent to his or her disbarment or suspension.
(c)
(2)
(a)
(1) * * *
(i) A practitioner or recognized organization has caused, or is likely to cause, harm to client(s), the public, or the administration of justice, such that the public or specific individuals should be advised of the nature of the allegations. If disclosure of information is made pursuant to this paragraph, the EOIR disciplinary counsel may define the scope of information disseminated and may limit the disclosure of information to specified individuals and entities;
(ii) A practitioner or recognized organization has committed criminal acts or is under investigation by law enforcement authorities;
(iii) A practitioner or recognized organization is under investigation by a disciplinary or regulatory authority, or has committed acts or made omissions that may reasonably result in investigation by such authorities;
(iv) A practitioner or recognized organization is the subject of multiple disciplinary complaints and the EOIR disciplinary counsel has determined not to pursue all of the complaints. The EOIR disciplinary counsel may inform complainants whose allegations have not been pursued of the status of any other preliminary inquiries or the manner in which any other complaint(s) against the practitioner or recognized organization have been resolved.
(2) * * *
(iv) To the practitioner or recognized organization who is the subject of the complaint or preliminary inquiry or the practitioner's or recognized organization's counsel of record.
(3)
(b)
(a)
(i) Revocation, which removes the organization and its accredited representatives from the recognition and accreditation roster and permanently bars the organization from future recognition;
(ii) Termination, which removes the organization and its accredited representatives from the recognition and accreditation roster but does not bar the organization from future recognition. In terminating recognition under this section, the adjudicating official or the Board may preclude the organization from submitting a new request for recognition under 8 CFR 1292.13 before a specified date; or
(iii) Such other disciplinary sanctions, except a suspension, as the adjudicating official or the Board deems appropriate.
(2) The administrative termination of an organization's recognition under 8 CFR 1292.17 after the issuance of Notice of Intent to Discipline pursuant to § 1003.105(a)(1) shall not preclude the continuation of disciplinary proceedings and the imposition of sanctions, unless counsel for the government moves to dismiss the Notice of Intent to Discipline and the adjudicating official or the Board grants the motion.
(3) The imposition of disciplinary sanctions against a recognized organization does not result in disciplinary sanctions against that organization's accredited representatives; disciplinary sanctions, if any, against an organization's accredited representatives must be imposed separately from disciplinary sanctions against the organization. Termination or revocation of an organization's recognition has the effect
(b)
(1) Knowingly or with reckless disregard provides a false statement or misleading information in applying for recognition or accreditation of its representatives;
(2) Knowingly or with reckless disregard provides false or misleading information to clients or prospective clients regarding the scope of authority of, or the services provided by, the organization or its accredited representatives;
(3) Fails to adequately supervise accredited representatives; or
(4) Employs, receives services from, or affiliates with an individual who performs an activity that constitutes the unauthorized practice of law or immigration fraud.
(c)
(a)
(2)
(3)
(4)
(b)
(c)
8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; 28 U.S.C. 509, 510
The revsions read as follows:
(a) The regulations pertaining to denials, appeals, and precedent decisions of the Department of Homeland Security are contained in 8 CFR 103.3.
(c)
8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 1184, 1187, 1223, 1225, 1226, 1227, 1255; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458); Title VII of Pub. L. 110-229.
The regulations of the Department of Homeland Security pertaining to border crossing identification cards can be found at 8 CFR 212.6.
8 U.S.C. 1103, 1362.
(a) * * *
(4)
Practitioners, as defined in § 1003.101(b) of this chapter, and recognized organizations are subject to the imposition of sanctions as provided in 8 CFR part 1003, subpart G, § 1003.101
Interpretations of §§ 1292.1 through 1292.6 will be made by the Board, subject to the provisions of part 1003 of this chapter. Interpretations of §§ 1292.11 through 1292.19 will be made by the OLAP Director.
(a)
(1) The organization is a non-profit, Federal tax-exempt religious, charitable, social service, or similar organization established in the United States;
(2) The organization is simultaneously applying to have at least one employee or volunteer of the organization approved as an accredited representative by the OLAP Director and at least one application for accreditation is concurrently approved;
(3) A substantial amount of the organization's immigration legal services budget is derived from sources other than funds provided by or on behalf of the immigration clients themselves (such as legal fees, donations, or membership dues);
(4) The organization provides immigration legal services primarily to low-income and indigent clients within the United States and if the organization charges fees, has a written policy for accommodating clients unable to pay fees for immigration legal services;
(5) The organization has access to adequate knowledge, information, and experience in all aspects of immigration law and procedure; and
(6) The organization has designated an authorized officer to act on behalf of the organization.
(b)
(c)
(d)
(1)
(2)
(3)
(4)
(e)
(f)
(a)
(1) Has the character and fitness to represent clients before the Immigration Courts and the Board, or DHS, or before all three authorities. Character and fitness includes, but is not limited to, an examination of factors such as: Criminal background; prior acts involving dishonesty, fraud, deceit, or misrepresentation; past history of neglecting professional, financial, or legal obligations; and current immigration status;
(2) Is employed by or is a volunteer of the organization;
(3) Is not an attorney as defined in 8 CFR 1001.1(f);
(4) Has not resigned while a disciplinary investigation or proceeding is pending and is not subject to any order disbarring, suspending, enjoining, restraining, or otherwise restricting him or her in the practice of law or representation before a court or any administrative agency;
(5) Has not been found guilty of, or pleaded guilty or nolo contendere to, a serious crime, as defined in 8 CFR 1003.102(h), in any court of the United States, or of any state, possession, territory, commonwealth, or the District of Columbia, or of a jurisdiction outside of the United States; and
(6) Possesses broad knowledge and adequate experience in immigration law and procedure. If an organization seeks full accreditation for an individual, it must establish that the individual also possesses skills essential for effective litigation.
(b)
(c)
(d)
(e)
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(1) The organization's immigration legal services fee schedule, if the organization charges any fees for immigration legal services, for each office or location where such services are provided; and
(2) An annual report compiled by the organization regarding, for each accredited representative, the types and numbers of immigration cases and applications for which it provided immigration legal services, the nature of the services provided, the number of clients to which it provided services at no cost, the amount of fees, donations, and membership dues, if any, charged or requested of immigration clients, and the offices or locations where the immigration legal services were provided. OLAP may require the organization to submit such records to it or USCIS upon request.
(c)
Upon approving an initial request for recognition or a request for renewal of
(a)
(b)
(c)
(2)
(d)
(e)
(f)
(g)
(h)
(2)
(i) Within 1 year of the effective date of this regulation, if the organization does not have an accredited representative on the effective date of this regulation;
(ii) Upon the submission of a request for accreditation of an individual who has not been previously accredited through that organization or a request to extend recognition and accreditation pursuant to § 1292.15;
(iii) Within 2 years of the effective date of this regulation, if the organization is not required to submit a request for renewal at an earlier date under paragraphs (i) or (ii) of this section, and the organization has been recognized for more than 10 years as of the effective date of this regulation; or
(iv) Within 3 years of the effective date of this regulation, if the organization is not required to submit a request for renewal at an earlier date under paragraphs (i), (ii), or (iii) of this section.
(a)
(b)
(1) An organization did not submit a request to renew its recognition, or to renew accreditation of a representative or to obtain initial accreditation for a proposed representative, at the time required for renewal;
(2) An organization's request for renewal of recognition is disapproved;
(3) All of the organization's accredited representatives have been terminated pursuant to this section or suspended or disbarred pursuant to 8 CFR 1003.101
(4) An organization submits a written request to the OLAP Director for termination of its recognition;
(5) An organization fails to comply with its reporting, recordkeeping, and posting requirements under § 1292.14, after being notified of the deficiencies and having an opportunity to respond; or
(6) An organization fails to maintain eligibility for recognition under § 1292.11, after being notified of the deficiencies and having an opportunity to respond.
(c)
(1) An individual's organization has its recognition terminated pursuant to this section or terminated or revoked pursuant to 8 CFR 1003.101
(2) An organization does not submit a request for renewal of the individual's accreditation at the time required for renewal;
(3) An accredited representative submits a written request to the OLAP Director for termination of his or her accreditation;
(4) An organization submits a written request to the OLAP Director for termination of the accreditation of one or more of its representatives; or
(5) An individual fails to maintain eligibility for accreditation under § 1292.12, after the individual's organization has been notified of the deficiencies and had an opportunity to respond.
(d)
(e)
(a)
(b)
The OLAP Director shall maintain a roster of recognized organizations and their accredited representatives. An electronic copy of the roster shall be made available to the public and updated periodically.
| 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 |