| Page Range | 47611-47952 | |
| FR Document |
| Page and Subject | |
|---|---|
| 82 FR 47951 - Leif Erikson Day, 2017 | |
| 82 FR 47949 - Columbus Day, 2017 | |
| 82 FR 47947 - National Manufacturing Day, 2017 | |
| 82 FR 47945 - National School Lunch Week, 2017 | |
| 82 FR 47943 - Fire Prevention Week, 2017 | |
| 82 FR 47777 - Sunshine Act Meeting Notice | |
| 82 FR 47693 - Notice of Request for Revision to and Extension of Approval of an Information Collection; Gypsy Moth Identification Worksheet and Checklist | |
| 82 FR 47691 - Notice of Request for Extension of Approval of an Information Collection; Black Stem Rust; Identification Requirements for Addition of Rust-Resistant Varieties | |
| 82 FR 47775 - Sunshine Act; Notice of Agency Meeting | |
| 82 FR 47779 - Sunshine Act Meeting Notice | |
| 82 FR 47777 - Sunshine Act Meeting; National Science Board | |
| 82 FR 47731 - Certain New Chemicals or Significant New Uses; Statements of Findings for July 2017 | |
| 82 FR 47790 - Fiscal Year 2016 Service Contract Inventory | |
| 82 FR 47765 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Oil and Gas Drilling Operations | |
| 82 FR 47733 - Pesticide Program Dialogue Committee; Notice of Public Meeting | |
| 82 FR 47788 - Notice of Release and Permanent Closure of the St. Clair Regional Airport, St. Clair, Missouri | |
| 82 FR 47694 - Availability of a Final Environmental Assessment and Finding of No Significant Impact for a Release of Three Parasitoids for Biological Control of the Lily Leaf Beetle | |
| 82 FR 47616 - Safety Zone, Brandon Road Lock and Dam to Lake Michigan Including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, and Calumet-Saganashkee Channel, Chicago, IL | |
| 82 FR 47779 - New Postal Products | |
| 82 FR 47688 - Notice of Request for Revision to and Extension of Approval of an Information Collection; Importation of Fresh Blueberry Fruit From Morocco Into the Continental United States | |
| 82 FR 47689 - Notice of Request for Revision to and Extension of Approval of an Information Collection; Importation of Pine Shoot Beetle Host Material From Canada | |
| 82 FR 47692 - Notice of Request for Revision to and Extension of Approval of an Information Collection; Karnal Bunt; Importation of Wheat and Related Articles | |
| 82 FR 47690 - Notice of Request for Revision to and Extension of Approval of an Information Collection; Importation of Mangoes From Jamaica Into the Continental United States | |
| 82 FR 47687 - Request for Extension of and Revision to a Currently Approved Information Collection | |
| 82 FR 47717 - Nominations to the Marine Fisheries Advisory Committee | |
| 82 FR 47616 - Safety Zone; Main Branch of the Chicago River, Oktoberfest, Chicago, IL | |
| 82 FR 47623 - Civil Monetary Penalty Inflation Adjustment Rule | |
| 82 FR 47764 - Notice of Realty Action: Classification and Segregation for Lease/Conveyance for Recreation and Public Purposes for a School in Washoe County, NV | |
| 82 FR 47731 - Braintree Electric Light Department; Notice of Petition For Limited Waiver | |
| 82 FR 47763 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Mineral Materials Disposal | |
| 82 FR 47659 - New Mailing Standards for Domestic Mailing Services Products | |
| 82 FR 47641 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 2017 Commercial Accountability Measure and Closure for South Atlantic Vermilion Snapper | |
| 82 FR 47640 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 2017 Commercial Accountability Measures and Closure for South Atlantic Greater Amberjack | |
| 82 FR 47766 - Meeting of the CJIS Advisory Policy Board | |
| 82 FR 47776 - Meetings of Humanities Panel | |
| 82 FR 47747 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 82 FR 47743 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 82 FR 47696 - Approval of Expansion of Subzone 124D; LOOP LLC; Lafourche and St. James Parishes, Louisiana | |
| 82 FR 47697 - 100- to 150-Seat Large Civil Aircraft from Canada: Preliminary Affirmative Determination of Sales at Less Than Fair Value | |
| 82 FR 47740 - Proposed Data Collections Submitted for Public Comment and Recommendations | |
| 82 FR 47744 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 82 FR 47738 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 82 FR 47741 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 82 FR 47737 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 82 FR 47746 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 82 FR 47749 - ``Determining Whether To Submit an Abbreviated New Drug Application or a 505(b)(2) Application;'' Draft Guidance for Industry; Availability | |
| 82 FR 47729 - Notice of Public Meetings of the Draft Environmental Impact Statement/Overseas Environmental Impact Statement for Hawaii-Southern California Training and Testing | |
| 82 FR 47697 - Sensors and Instrumentation Technical Advisory Committee; Notice of Partially Closed Meeting | |
| 82 FR 47697 - Materials Processing Equipment Technical Advisory Committee; Notice of Open Meeting | |
| 82 FR 47748 - Assessing User Fees Under the Prescription Drug User Fee Amendments of 2017; Draft Guidance for Industry; Availability | |
| 82 FR 47615 - Special Local Regulation; Fautasi Ocean Challenge Canoe Race, Pago Pago Harbor, American Samoa | |
| 82 FR 47727 - Procurement List; Deletions | |
| 82 FR 47663 - Revisions to Reporting Requirements Governing Hearing Aid-Compatible Mobile Handsets | |
| 82 FR 47770 - Comment Request | |
| 82 FR 47669 - Toll Free Assignment Modernization; Toll Free Service Access Codes | |
| 82 FR 47628 - Domestic Competitive Products Pricing and Mailing Standards Changes | |
| 82 FR 47735 - Information Collection Being Reviewed by the Federal Communications Commission Under Delegated Authority | |
| 82 FR 47734 - Information Collection Being Reviewed by the Federal Communications Commission Under Delegated Authority | |
| 82 FR 47683 - Amendment of the Commission's Rules Regarding Maintenance of Copies of FCC Rules | |
| 82 FR 47656 - Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption; Extension of Compliance Dates for Subpart E; Correction | |
| 82 FR 47789 - Notice of OFAC Sanctions Actions | |
| 82 FR 47864 - Change in Rates of General Applicability for Competitive Products | |
| 82 FR 47789 - Notice of OFAC Sanctions Actions; Sanctions Actions Pursuant to Executive Order 13581 | |
| 82 FR 47774 - Notice of Information Collection | |
| 82 FR 47772 - Nevada State Plan; Change in Level of Federal Enforcement: Private-Sector Employment on Military Bases | |
| 82 FR 47752 - Orthopaedic and Rehabilitation Devices Panel of the Medical Devices Advisory Committee; Notice of Meeting | |
| 82 FR 47750 - Agricultural Biotechnology Education and Outreach Initiative; Public Meetings; Request for Comments | |
| 82 FR 47763 - Agency Information Collection Activities; North American Woodcock Singing Ground Survey | |
| 82 FR 47615 - Drawbridge Operation Regulation; Willamette River, Portland, OR | |
| 82 FR 47618 - Safety Zone; Upper Mississippi River, St. Louis, MO | |
| 82 FR 47768 - Agency Information Collection Activities; Proposed eCollection eComments Requested; New Collection: State and Local Justice Agencies Serving Tribal Lands (SLJASTL): Survey of Prosecutor Offices in PL-280 States Serving Tribal Lands (SSLPOSTL) | |
| 82 FR 47767 - Agency Information Collection Activities; Proposed eCollection eComments Requested; New Collection: State and Local Justice Agencies Serving Tribal Lands (SLJASTL): Survey of State and Local Law Enforcement Agencies in PL 280 States Serving Tribal Lands (SSLLEASTL) | |
| 82 FR 47773 - Division of Coal Mine Workers' Compensation; Proposed Extension of Existing Collection; Comment Request | |
| 82 FR 47772 - Division of Coal Mine Workers' Compensation; Proposed Extension of Existing Collection; Comment Request | |
| 82 FR 47696 - Notice of Public Meeting of the Tennessee Advisory Committee | |
| 82 FR 47759 - Senior Executive Service Performance Review Board | |
| 82 FR 47784 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Reduce the Fees for Certain Investment Management Entities and Eligible Portfolio Companies | |
| 82 FR 47780 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Waive Nasdaq's Entry Fee When a New Entity Lists in Connection With Certain Transactions Between Two or More Nasdaq-Listed Companies | |
| 82 FR 47782 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Fees Schedule | |
| 82 FR 47757 - Prospective Grant of Exclusive Patent License: Devices and Systems For Treating Valvular Regurgitation | |
| 82 FR 47756 - Submission for OMB Review; 30-Day Comment Request; Specimen Resource Locator (NCI) | |
| 82 FR 47642 - Pacific Island Pelagic Fisheries; 2017 U.S. Territorial Longline Bigeye Tuna Catch Limits | |
| 82 FR 47695 - Information Collection; Small Business Timber Sale Set-Aside Program; Appeal Procedures on Recomputation of Shares | |
| 82 FR 47717 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Gary Paxton Industrial Park Dock Modification Project. | |
| 82 FR 47761 - Agency Information Collection Activities; Revision of a Currently Approved Collection: Application for Employment Authorization | |
| 82 FR 47788 - Notice of Determinations; Culturally Significant Objects Imported for Exhibition Determinations: “Sunken Cities: Egypt's Lost Worlds” Exhibition | |
| 82 FR 47788 - Notice of Determinations; Culturally Significant Objects Imported for Exhibition Determinations: “Repentant Monk: Illusion and Disillusion in the Art of Chen Hongshou” Exhibition | |
| 82 FR 47759 - Prospective Grant of Exclusive Patent License: Use of Pharmaceutical and Biological Compositions Comprising Gram-Negative Bacteria for the Topical Treatment of Dermatological Diseases and Dermatological Conditions | |
| 82 FR 47755 - Government-Owned Inventions; Availability for Licensing | |
| 82 FR 47753 - Government-Owned Inventions; Availability for Licensing | |
| 82 FR 47700 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Haines Ferry Terminal Modification Project | |
| 82 FR 47778 - Information Collection: Licensing Requirements for the Independent Storage of Spent Nuclear Fuel, High-Level Radioactive Waste and Reactor-Related Greater than Class C Waste | |
| 82 FR 47777 - Information Collection: 10 CFR Part 81, “Standard Specifications for Granting of Patent Licenses” | |
| 82 FR 47755 - National Institute of Neurological Disorders and Stroke; Notice of Closed Meetings | |
| 82 FR 47757 - National Heart, Lung, and Blood Institute; Notice of Closed Meeting | |
| 82 FR 47758 - Center for Scientific Review; Notice of Closed Meetings | |
| 82 FR 47754 - Center for Scientific Review; Notice of Closed Meetings | |
| 82 FR 47736 - Notice of Proposals To Engage in or To Acquire Companies Engaged in Permissible Nonbanking Activities | |
| 82 FR 47736 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
| 82 FR 47736 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 82 FR 47688 - Revision of a Currently Approved Collection | |
| 82 FR 47645 - Reducing Unnecessary Regulatory Burden | |
| 82 FR 47936 - Air Plan Approval; South Carolina; Cross-State Air Pollution Rule | |
| 82 FR 47930 - Air Plan Approval; Georgia; Cross-State Air Pollution Rule | |
| 82 FR 47630 - Air Plan Approval; Connecticut; Nonattainment New Source Review Permit Requirements for the 2008 8-Hour Ozone Standard | |
| 82 FR 47613 - Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Paying Benefits | |
| 82 FR 47630 - Air Plan Approval; Vermont; Regional Haze Five-Year Progress Report; Withdrawal of Direct Final Rule | |
| 82 FR 47634 - Air Plan Approval: South Carolina; Standards for Volatile Organic Compounds and Oxides of Nitrogen | |
| 82 FR 47636 - Air Plan Approval: South Carolina; Miscellaneous Revisions to Multiple Rules | |
| 82 FR 47612 - Amendment of Class E Airspace; Medford, WI and Waupaca, WI | |
| 82 FR 47611 - Amendment of Class D and Class E Airspace; Elizabeth City, NC | |
| 82 FR 47662 - Air Plan Approval; Florida; Stationary Sources Emissions Monitoring | |
| 82 FR 47636 - Air Plan Approval; Florida; Stationary Sources Emissions Monitoring | |
| 82 FR 47775 - Agency Information Collection Activities: Proposed Collection; Comment Request; Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery | |
| 82 FR 47640 - Air Plan Approval: SC: Multiple Revisions to Air Pollution Control Standards | |
| 82 FR 47733 - Disapproval of Pesticide Product Registrations for Special Local Needs | |
| 82 FR 47634 - Air Plan Approval; North Carolina; Air Curtain Burners | |
| 82 FR 47631 - Air Plan Approval; AL; VOC Definitions and Particulate Emissions | |
| 82 FR 47635 - Air Plan Approval; AL; VOC Definitions and Particulate Emissions | |
| 82 FR 47629 - Air Plan Approval: North Carolina; Transportation Conformity | |
| 82 FR 47761 - Environmental Planning and Historic Preservation Program | |
| 82 FR 47769 - Proposed Extension of Information Collection Request Submitted for Public Comment; Coverage of Certain Preventive Services Under the Affordable Care Act-Private Sector | |
| 82 FR 47780 - Product Change-Priority Mail Negotiated Service Agreement | |
| 82 FR 47663 - Federal Travel Regulation (FTR); Clarification of Payment in Kind for Speakers at Meetings and Similar Functions; Withdrawal | |
| 82 FR 47645 - Children's Products, Children's Toys, and Child Care Articles: Determinations Regarding Lead, ASTM F963 Elements, and Phthalates for Engineered Wood Products | |
| 82 FR 47620 - Safety Zone, Delaware River; Dredging | |
| 82 FR 47623 - Safety Zone; Patapsco River, Northwest and Inner Harbors; Baltimore, MD | |
| 82 FR 47728 - Notice of Intent To Prepare an Environmental Impact Statement for the Peckman River Basin Flood Risk Management Study | |
| 82 FR 47658 - Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act; Proposed Rulemaking | |
| 82 FR 47656 - Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act; Proposed Rulemaking | |
| 82 FR 47838 - Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act | |
| 82 FR 47792 - Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act |
Agricultural Marketing Service
Animal and Plant Health Inspection Service
Forest Service
Foreign-Trade Zones Board
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Engineers Corps
Navy Department
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Coast Guard
U.S. Citizenship and Immigration Services
Bureau of Safety and Environmental Enforcement
Fish and Wildlife Service
Land Management Bureau
Federal Bureau of Investigation
Employee Benefits Security Administration
Labor Statistics Bureau
Occupational Safety and Health Administration
Workers Compensation Programs Office
Institute of Museum and Library Services
Federal Aviation Administration
Foreign Assets Control Office
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 electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action removes the Notice to Airmen (NOTAM) part-time status from the legal description of the Class E airspace area designated as an extension at Elizabeth City CGAS/Regional Airport, Elizabeth City, NC, and adds NOTAM part-time language information to Class E surface area airspace. This action brings the airspace descriptions in line with the airspace hours listed in the applicable Chart Supplement. This action also updates the geographic coordinates of the airport and the Woodville non-directional radio beacon (NDB) in the associated Class D and E airspace. Also, an editorial change is made to the Class D and E surface area airspace legal descriptions, replacing Airport/Facility Directory with the term Chart Supplement.
Effective 0901 UTC, December 7, 2017. 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 7400.11 and publication of conforming amendments.
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
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 amends Class D and Class E airspace at Elizabeth City CGAS/Regional Airport, Elizabeth City, NC, to ensure the efficient use of airspace within the National Airspace System.
The FAA published a notice of proposed rulemaking in the
Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.
Class D and E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR part 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class D airspace, Class E surface area airspace, Class E airspace designated as an extension to a Class D surface area, and Class E airspace extending upward from 700 feet or more above the surface at Elizabeth City CGAS/Regional Airport, Elizabeth City, NC. The NOTAM part-time status is removed from the Class E airspace area designated as an extension to a Class D surface area.
For the associated Class D and E airspace areas, the geographic coordinates of the airport and Woodville NDB are adjusted to coincide with the FAAs aeronautical database.
Also, this action replaces the outdated term Airport/Facility Directory with the term Chart Supplement in the associated Class D and E airspace legal descriptions.
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
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. 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 the surface to and including 2,500 feet within a 4.1-mile radius of Elizabeth City CGAS/Regional Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.
Within a 4.1-mile radius of Elizabeth City CGAS/Regional Airport. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.
That airspace extending upward from the surface within 1.6 miles each side of Elizabeth City VOR/DME 189° radial, extending from the 4.1-mile radius of Elizabeth City CGAS/Regional Airport to 9.5 miles south of the VOR/DME; within 3.3 miles each side of Elizabeth City VOR/DME 357° radial, extending from the 4.1-mile radius of Elizabeth City CGAS/Regional Airport to 7 miles north of the VOR/DME; within 1.2 miles each side of the 079° bearing from the Woodville NDB, extending from 4.1-mile radius of the airport to the NDB.
That airspace extending upward from 700 feet above the surface within a 7-mile radius of Elizabeth City CGAS/Regional Airport, and within 8 miles east and 4 miles west of Elizabeth City VOR/DME 189° radial, extending from the VOR/DME to 9.5 miles south of the VOR/DME.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace extending upward from 700 feet above the surface at Taylor County Airport, Medford, WI and Waupaca Municipal Airport, Waupaca, WI, to accommodate new standard instrument approach procedures for instrument flight rules (IFR) operations at these airports. This action is necessary due to the decommissioning of the Medford and Waupaca non directional radio beacons (NDB), and cancellation of NDB approaches. Also, an error in the geographic coordinates of Waupaca Municipal Airport and Taylor County Airport are corrected. This action enhances the safety and management of IFR operations at these airports.
Effective 0901 UTC, December 7, 2017. 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 7400.11 and publication of conforming amendments.
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Walter Tweedy, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5900.
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 would amend controlled airspace to support IFR operations at Taylor County and Waupaca Municipal airports.
The FAA published in the
This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies Class E airspace extending upward from 700 feet above the surface from the 6.8-mile radius of Taylor County Airport, Medford, WI by removing the segment within 2.7 miles each side of the 162° bearing from the airport extending from the 6.8-mile radius to 7 miles southeast of the airport due to the decommissioning of the Medford NDB and cancellation of the NDB approach.
This action also modifies Class E airspace extending upward from 700 feet above the surface at Waupaca Municipal Airport, Waupaca, WI to within a 6.6-mile (from a 6.4-mile) radius of the airport and removes the segment within 2.7 miles each side of the 118° bearing from the airport, extending from the 6.4-mile radius to 7 miles southeast of the airport due to the decommissioning of the Waupaca NDB and cancellation of the NDB approach. Also, the geographic coordinates are corrected to be in concert with the FAA's aeronautical database.
This action enhances the safety and management of standard instrument approach procedures for IFR operations at these airports.
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, is non-controversial and unlikely to result in adverse or negative comments. 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 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 Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. 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 6.8-mile radius of Taylor County Airport.
That airspace extending upward from 700 feet above the surface within a 6.6-mile radius of Waupaca Municipal Airport.
Pension Benefit Guaranty Corporation.
Final rule.
This final rule amends the Pension Benefit Guaranty Corporation's
Effective November 1, 2017.
Daniel S. Liebman (
PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribes actuarial assumptions—including interest assumptions—for paying plan benefits under terminated single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions in the regulation are also published on PBGC's Web site (
PBGC uses the interest assumptions in Appendix B to Part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to Part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in Appendices B and C of the benefit payment regulation are the same.
The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for November 2017.
The November 2017 interest assumptions under the benefit payments regulation will be 0.75 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for October 2017, these assumptions are unchanged.
PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.
Because of the need to provide immediate guidance for the payment of benefits under plans with valuation dates during November 2017, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication. PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.
Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).
Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.
In consideration of the foregoing, 29 CFR part 4022 is amended as follows:
29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.
Issued in Washington, DC.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce a Special Local Regulation for the Fautasi Ocean Challenge Canoe Race on the dates of November 10, 17, and 24, 2017, to safeguard the participants and spectators, including all crews, vessels, and persons on the water in Pago Pago Harbor during the event. This regulation will functionally close the port to vessel traffic during the race, but will not require the evacuation of any vessels from the harbor. Entry into, transiting, or anchoring in the harbor will be prohibited to all vessels not registered with the sponsor as participants or not part of the race patrol, unless specifically authorized by the Captain of the Port (COTP) Honolulu or a designated representative. Vessels that are already moored or anchored in the harbor seeking permission to remain there shall request permission from the COTP unless deemed a spectator vessel that is moored to a waterfront facility within the regulated area.
The regulations in 33 CFR 100.1401 will be enforced from 7:00 a.m. to 4:00 p.m. on the dates of November 10, 17, and 24, 2017.
If you have questions about this notice of enforcement, call or email Lieutenant Commander John Bannon, Waterways Management Division, U.S. Coast Guard Sector Honolulu; telephone (808) 541-4359, email
The Coast Guard will enforce a Special Local Regulation in 33 CFR 100.1401 for the Fautasi Ocean Challenge Canoe Race from 7:00 a.m. to 4:00 p.m. on the dates of November 10, 17, and 24, 2017. This action is being taken to safeguard the participants and spectators, including all crews, vessels, and persons on the water in Pago Pago Harbor during the event. This regulation for the marine events, which will encompass portions of Pago Pago Harbor. During the enforcement periods, as reflected in 33 CFR 100.1401(c), if you are the operator of a vessel in the regulated area you must comply with directions from the Captain of the Port (COTP) Honolulu or a designated representative.
This notice of enforcement is issued under authority of 33 CFR 100 and 5 U.S.C. 552 (a). In addition to this notice of enforcement in the
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the upper deck of the Steel Bridge across the Willamette River, mile 12.1, in Portland, OR. The deviation is necessary to support the Annual Run Like Hell Half Marathon event. This deviation allows the upper lift span of the bridge to remain in the closed-to-navigation position to ensure the safety of construction crew members.
This deviation is effective from 8 a.m. until 11:30 a.m. on October 22, 2017.
The docket for this deviation, USCG-2017-0960, is available at
If you have questions on this temporary deviation, call or email Mr. Steven Fischer, Bridge Administrator, Thirteenth Coast Guard District; telephone 206-220-7282, email
Union Pacific Railroad Company (UPRR), bridge owner, has requested a temporary deviation from the operating schedule for the Steel Bridge across the Willamette River, at mile 12.1, in Portland, OR. The deviation is necessary to accommodate the Annual Run Like Hell Half Marathon event. The City of Portland is sponsoring the race and event. The Steel Bridge is a double-deck lift bridge with a lower lift deck and an upper lift deck which operate independent of each other. To facilitate this paving operation, the upper deck will remain in the closed-to-navigation position. When the lower deck is in the closed-to-navigation position, the bridge provides 26 feet of vertical clearance above Columbia River Datum 0.0; and in open-to-navigation position, the vertical clearance is 71 feet above Columbia River Datum 0.0. The deviation period is from 8 a.m. to 11:30 a.m. on October 22, 2017. The lower deck for the Steel Bridge will continue to operate in accordance with 33 CFR 117.897(c)(3)(ii), and at the end of this deviation period, the upper deck of the Steel Bridge will resume operating in accordance with 33 CFR 117.897(c)(3)(ii).
Waterway usage on this part of the Willamette River includes vessels ranging from commercial tug and barge to small pleasure craft. Vessels able to pass through the bridge with the lower deck in the open-to-navigation position or upper deck in the closed-to-navigation position may do so at anytime. The upper lift and lower lift of the Steel Bridge will be able to open for emergencies, and there is no immediate alternate route for vessels to pass. The Coast Guard has conducted public outreach regarding this closure of the upper deck on the subject bridge to known mariners that transit on the river. The Coast Guard has not received any objections to this temporary deviation from the operating schedule. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce a segment of the Safety Zone; Brandon Road Lock and Dam to Lake Michigan including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, Calumet-Saganashkee Channel on all waters of the Chicago Sanitary and Ship Canal and South Branch of the Chicago River between mile marker 318.9 and mile marker 321.9 from 7 a.m. until 2 p.m. on October 29, 2017. This action is necessary to protect the waterway and vessels from the potential hazards associated with a rowing competition.
The regulations in 33 CFR 165.930 will be enforced from 7 a.m. until 2 p.m. on October 29, 2017.
If you have questions about this notice of enforcement, call or email LT John Ramos, Waterways Management Division, Marine Safety Unit Chicago, at 630-986-2155, email address
The Coast Guard will enforce a segment of the Safety Zone; Brandon Road Lock and Dam to Lake Michigan including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, Calumet-Saganashkee Channel, Chicago, IL, listed in 33 CFR 165.930. Specifically, the Coast Guard will enforce this safety zone on all waters of the Chicago Sanitary and Ship Canal and South Branch of the Chicago River between mile marker 318.9 and mile marker 321.9. Enforcement will occur from 7 a.m. until 2 p.m. on October 29, 2017. During the enforcement period, no vessel may transit this regulated area without approval from the Captain of the Port Lake Michigan or a Captain of the Port Lake Michigan designated representative. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port Lake Michigan, or his or her on-scene representative.
This notice of enforcement is issued under the authority of 33 CFR 165.930 and 5 U.S.C. 552(a). In addition to this publication in the
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the Main Branch of the Chicago River, Chicago, IL. This action is necessary and intended to ensure safety of life on the navigable waters of the United States immediately prior to, during, and after a bridge based pyrotechnics display. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Lake Michigan.
This rule is effective from 7:15 p.m. through 7:45 p.m. on October 13, 2017.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions about this rule, call or email LT John Ramos, Marine Safety Unit Chicago, U.S. Coast Guard; telephone (630) 986-2155, email
The Coast Guard is issuing this temporary 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 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. The Coast Guard did not receive the final details for this event until there was insufficient time remaining before the event to publish a NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be impracticable because it would inhibit the Coast Guard's ability to protect the public and vessels from the hazards associated with bridge based fireworks displays on October 13, 2017.
We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the
The legal basis for the rule is the Coast Guard's authority to establish safety zones: 33 U.S.C. 1231; 33 CFR 1.05-1, 160.5; Department of Homeland Security Delegation No. 0170.1.
On October 13, 2017 a bridge based pyrotechnics display will take place on the Main Branch of the Chicago River between the Wells Street Bridge and the Wabash Avenue Bridge in Chicago, IL. The Captain of the Port Lake Michigan has determined that the pyrotechnics display will pose a significant risk to public safety and property. Such hazards include premature and accidental detonations, falling and burning debris, and collisions among spectator vessels.
With the aforementioned hazards in mind, the Captain of the Port Lake Michigan has determined that this temporary safety zone is necessary to ensure the safety of the public during the bridge based pyrotechnics displays on the Main Branch of the Chicago River. This safety zone will be enforced from 7:15 p.m. through 7:45 p.m. on October 13, 2017. This zone will encompass all waters of the Main Branch of the Chicago River between the Wells Street Bridge and the Wabash Avenue Bridge in Chicago, IL.
Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Lake Michigan, or a designated on-scene representative. The Captain of the Port or a designated on-scene representative may be contacted via VHF Channel 16 or contact Sector Lake Michigan at (414) 747-7182.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”), directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.” This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.
As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).
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 from 7:15 p.m. through 7:45 p.m. on October 13, 2017. 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, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this 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 will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit on a portion of the Main Branch of the Chicago River from 7:15 p.m. through 7:45 p.m. on October 13, 2017.
This safety zone will not have a significant economic impact on a substantial number of small entities for the reasons cited in the
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
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 have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (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 the establishment of a safety zone for a bridge based pyrotechnics display on the Main Branch of the Chicago River in Chicago, IL. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated in the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 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) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Lake Michigan or a designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port Lake Michigan is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port Lake Michigan to act on his or her behalf.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Lake Michigan or an on-scene representative to obtain permission to do so.
The Captain of the Port Lake Michigan or an on-scene representative may be contacted via VHF Channel 16 or contact Sector Lake Michigan at (414) 747-7182. 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 Lake Michigan, or an on-scene representative.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for all navigable waters on the Upper Mississippi River between mile marker (MM) 183.7 and MM 185.1. This temporary safety zone is necessary to provide for the safety of life and property on all navigable waters near St. Louis, MO for dredging being conducted in the navigational channel at the lower entrance of the Chain of Rocks Canal by the U.S. Army Corps of Engineers. During the period of enforcement, entry into the safety zone is prohibited unless specifically authorized by the Captain of the Port Sector Upper Mississippi River (COTP) or other designated representative.
This rule is effective without actual notice from October 13, 2017 through 7 a.m. on October 21, 2017. For the purposes of enforcement, actual notice will be used from 5 p.m. on October 8, 2017 through October 13, 2017.
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 LCDR Sean Peterson, Chief of Prevention, Sector Upper Mississippi River, U.S. Coast Guard; telephone 314-269-2332, email
The Coast Guard is issuing this temporary 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 it is impracticable.
The U.S. Army Corps of Engineers notified the Coast Guard on September 28, 2017 that dredging would begin October 8, 2017 at 5 p.m. at the lower entrance to the Chain of Rocks Canal, which would obstruct the navigational channel to vessel traffic. Due to the risks associated with this work in the navigational channel, a safety zone is needed. We must establish this temporary safety zone by October 8, 2017 and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.
We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Sector Upper Mississippi River (COTP) has determined that potential hazards associated with dredging in the navigational channel from 5 p.m. on October 8, 2017 through 7 a.m. on October 21, 2017 will be a safety concern for all navigable waters of the Upper Mississippi River between mile marker (MM) 183.7 and MM 185.1. The purpose of this rule is to ensure safety of life on the navigable waters in the temporary safety zone before, during, and after the dredging.
This rule establishes a safety zone each day from 5 p.m. to 7 a.m. beginning on October 8, 2017 and ending on October 21, 2017, or until conditions allow for safe navigation, whichever occurs earlier. The safety zone will cover all navigable waters between MM 183.7 and MM 185.1 on the Upper Mississippi River in St. Louis, MO. The safety zone is intended to ensure the safety of vessels and these navigable waters during channel dredging operations. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. Exact times of the closures and any changes to the planned schedule will be communicated to mariners using Broadcast and Local Notice to Mariners.
We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. This temporary final rule establishes a safety zone impacting a mile and a half area on the Upper Mississippi River for a limited time period of fourteen hours on fourteen separate days. During the enforcement period, vessels are prohibited from entering into or remaining within the safety zone unless specifically authorized by the COTP or other designated representative.
Additionally, notice of the safety zone or any changes in the planned schedule will be made via Broadcast and Local Notice to Mariners. Entry into this safety zone may be requested from the COTP or other designated representative and will be considered on a case-by-case basis.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding these rules. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
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
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please 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 an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (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 a safety zone lasting fourteen hours on fourteen separate nights that will prohibit entry from MM 183.7 to MM 185.1 on the UMR from October 8, 2017 to October 21, 2017. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and 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) To seek permission to enter, contact the COTP or the COTP's representative via VHF-FM channel 16, or through Coast Guard Sector Upper Mississippi River by telephone at 314-269-2332. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or a designated representative.
(d)
(e)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing temporary safety zones in portions of New Castle Range and Cherry Island Range on the Delaware River as well as the Christina River in order to facilitate the annual maintenance dredging of the Federal Navigation Channel. The safety zones will be established for the waters in the vicinity of the dredge, dredge equipment, and associated pipeline. This regulation is necessary to provide for the safety of life on navigable waters of the Delaware River and the Christina River in the vicinity of dredging activity and is intended to protect mariners from the hazards associated with pipe-laying and dredging operations.
This rule is effective without actual notice from October 13, 2017 through January 10, 2018. For the purposes of enforcement, actual notice will be used from October 6, 2017, through October 13, 2017.
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 Petty Officer Edmund Ofalt, Waterways Management Branch, U.S. Coast Guard Sector Delaware Bay; telephone (215) 271-4814, email
The Coast Guard is issuing this temporary 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 Sector Delaware Bay received the final details of the project on October 2, 2017 and dredging operations are scheduled to commence on October 6, 2017. It is impracticable and contrary to the public interest to publish an NPRM to provide a notice and opportunity for comment period because we must establish these safety zones by October 6, 2017, to ensure the safety of life on navigable waters in the vicinity of dredging activity and protect mariners from the hazards associated with pipe-laying and dredging operations. Specific risks to safety include submerged and floating pipeline, dredge booster assemblies and the dredge itself which may be placed within or in close proximity to the navigational channel and Pea Patch Island Anchorage 5 on the Delaware River.
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 Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port (COTP) Delaware Bay has determined that potential hazards associated with dredging and pipe laying operations beginning on October 6, 2017, will be a safety concern for vessels attempting to transit the Delaware River, along New Castle Range, Cherry Island Range, and the Christina River. This rule is needed to protect personnel, vessels, and the marine environment on the navigable waters within the safety zones while dredging is being conducted.
This rule establishes safety zones on portions of the Delaware River and Christina River from October 6, 2017, through January 10, 2018, unless cancelled earlier by the COTP, to facilitate maintenance dredging being conducted in New Castle Range, Cherry Island Range and the Christina River. Maintenance dredging in the channel will be conducted with the cutter suction dredge ILLINOIS and associated pipeline. The pipeline will be a combination of floating hoses immediately behind the dredge connected to a submerged pipeline leading to upland disposal areas. Due to the hazards related to cutter suction dredging, the associated pipeline, and the location of the submerged pipeline, safety zones will be established in the following areas:
(1) Safety zone 1 includes all waters within 150 yards of the dredge and all related dredge equipment. Entry into or transiting within safety zone 1 is prohibited unless vessels obtain permission from the Captain of the Port, via VHF-FM channel 16, or make satisfactory passing arrangements, via VHF-FM channels 07 or 13, with the dredge ILLINOIS per this section and the Rules of the Road (33 CFR subchapter E). The safety zone will be established for the duration of the maintenance project. Vessels requesting to transit shall contact the dredge ILLINOIS on VHF channel 07 or 13, at least 1 hour, as well as 30 minutes, prior to arrival.
(2) Safety zone 2 includes all the waters of Pea Patch Island Anchorage No. 5 found in 33 CFR 110.157(a)(6), where submerged pipeline(s) will be located which poses a risk to anchored vessels. The safety zone will be in place only during the time in which the dredge ILLINOIS is conducting dredging operations in New Castle Range. Vessels requesting to anchor in Pea Patch Island Anchorage No. 5, during the enforcement of safety zone 2, are required to obtain permission from the COTP prior to entry into the anchorage.
The COTP will terminate each safety zone individually once all submerged pipeline has been recovered and dredging operations are completed in each range respectively. Notice of the termination of each safety zone will be made in accordance with 33 CFR 165.7.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, and duration of the safety zones. Although this regulation will restrict access to regulated areas, the effect of this rule will not be significant because there are a number of alternate anchorages available. Furthermore, vessels may be permitted to transit through the safety zone with the permission of the COTP or make satisfactory passing arrangements with the dredge ILLINOIS in accordance with this rule and the Rules of the Road (33 CFR subchapter E). Extensive notification of the safety zones to the maritime public will be made via maritime advisories allowing mariners to alter their plans accordingly.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
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 have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please 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 an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (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 safety zones that encompass all navigable waters within 150 yards of a dredge, dredging pipeline and all dredge related equipment. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), 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)
(1)
(2)
(b)
(2)
(c)
(1) Entry into or transiting within safety zone 1 is prohibited unless vessels obtain permission from the Captain of the Port, via VHF-FM channel 16, or make satisfactory passing arrangements, via VHF-FM channels 07 or 13, with the dredge ILLINOIS per this section and the Rules of the Road (33 CFR subchapter E). Vessels requesting to transit shall contact the dredge ILLINOIS on VHF-FM channel 07 or 13, at least 1 hour, as well as 30 minutes, prior to arrival.
(2) Entry into, transiting, or anchoring within safety zone 2 is prohibited unless vessels obtain permission from the Captain of the Port via VHF-FM channel 16.
(3) Vessels granted permission to enter and transit through the safety zone(s) must do so in accordance with any directions or orders of the Captain of the Port, his designated representative, or the dredge ILLINOIS as appropriate. No person or vessel may enter or remain in a safety zone without permission from the Captain of the Port or the dredge ILLINOIS as applicable.
(4) At least one side of the main navigational channel will be kept clear for safe passage of vessels in the vicinity
(5) This section applies to all vessels that intend to transit through either safety zone except vessels that are engaged in the following operations: enforcement of laws; service of aids to navigation, and emergency response.
(d)
(1)
(2)
(3)
Coast Guard, DHS.
Temporary final rule; correction.
The Coast Guard is correcting a temporary final rule that appeared in the
This correction is effective from 8 a.m. on October 26, 2017, through 1 p.m. on October 27, 2017.
If you have questions on this rule, call or email Mr. Ronald L. Houck, at Sector Maryland-National Capital Region, Waterways Management Division, U.S. Coast Guard; telephone 410-576-2674, email
In FR Doc. 2017-21180 appearing on page 45981 of Wednesday, October 3, 2017, the following corrections are made:
“(e)
U.S. Army Corps of Engineers, Department of Defense
Direct final rule.
The U.S. Army Corps of Engineers (Corps) is issuing this final rule to adjust its civil monetary penalties under the Clean Water Act (CWA) and the National Fishing Enhancement Act to account for inflation. This action is mandated by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act), which requires agencies to adjust the levels of civil monetary penalties with an initial “catch-up” adjustment followed by annual adjustments for inflation. The Inflation Adjustment Act prescribes a formula for adjusting statutory civil penalties to reflect inflation, maintain the deterrent effect of statutory civil penalties, and promote compliance with the law. Using the adjustment criteria provided in the Inflation Adjustment Act for the initial “catch-up” adjustment and the December 16, 2016, Office of Management and Budget Memorandum regarding the “Implementation of the 2017 annual adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015”, the 2016 catch-up adjustment and 2017 annual adjustment for inflation will increase the Class I civil penalty under Section 309 of the Clean Water Act to $20,966 per violation, and the maximum civil penalty increases to $52,414. The judicial civil penalty under Section 404(s) of the Clean Water Act increases to $52,414 per day for each violation. Under the National Fishing Enhancement Act, the Class I civil penalty increases to $22,957 per violation.
This rule is effective December 12, 2017 without further notice, unless the Corps receives substantive adverse comment by November 13, 2017. If we receive such adverse comment, we will publish a timely withdrawal in the
You may submit comments, identified by docket number COE-2017-0008, by any of the following methods:.
Ms. Stacey M. Jensen at 202-761-5856 or by email at
The Corps is publishing this final rule to adjust its civil monetary penalties for inflation pursuant to the Inflation Adjustment Act. This law requires the Corps to publish an initial “catch-up” adjustment with subsequent annual adjustments for inflation. The purpose of the Inflation Adjustment Act is to maintain the deterrent effect of civil penalties by translating originally enacted statutory civil penalty amounts to today's dollars and rounding statutory civil penalties to the nearest dollar. Although the Inflation Adjustment Act required agencies to make an initial “catch-up” adjustment through an interim final rule to be published by July 1, 2016, and to publish annual adjustments beginning no later than January 15, 2017, the Corps has not yet made either adjustment. Accordingly, the Corps is combining both the “catch-up” adjustment that would have become effective by August 1, 2016, and the first annual adjustment that would have become effective by January 15, 2017, in this final rule. The rule will apply prospectively, to penalty assessments beginning on its effective date. Subsequently, the Corps intends to publish annual adjustments as required by the Inflation Adjustment Act, no later than January 15 of each calendar year.
Pursuant to the Inflation Adjustment Act, the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), and guidance issued by the Office of Management and Budget (OMB),
Section 4 of the Inflation Adjustment Act directs federal agencies to publish annual penalty inflation adjustments. In accordance with Section 553 of the Administrative Procedures Act (APA), most rules are subject to notice and comment and are effective no earlier than 30 days after publication in the
On August 3, 2011, the Deputy Secretary of Defense delegated to the Secretary of the Army the authority and responsibility to adjust penalties administered by the U.S. Army Corps of Engineers. On August 29, 2011, the Secretary of the Army delegated that authority and responsibility to the Assistant Secretary of the Army for Civil Works.
On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Pub. L. 114-74, 701 (Inflation Adjustment Act), which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 as previously amended by the 1996 Debt Collection Improvement Act (DCIA; collectively, “prior inflation adjustment Acts”), to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. The Inflation Adjustment Act requires agencies to do the following: (1) Adjust the level of civil monetary penalties with an initial “catch-up” adjustment, through an interim final rule to be published by July 1, 2016; and (2) beginning no later than January 15, 2017, make subsequent annual adjustments for inflation. The Inflation Adjustment Act does not alter an agency's statutory authority, to the extent it exists, to assess penalties below the maximum level. This final rule
The Inflation Adjustment Act amends prior inflation adjustment Acts by substantially revising the method of calculating inflation adjustments. Prior inflation adjustment Acts required adjustments to civil penalties to be rounded significantly. For example, a penalty increase that was greater than $1,000, but less than or equal to $10,000, would be rounded to the nearest multiple of $1,000. While this allowed penalties to be kept at round numbers, it meant that agencies often would not increase penalties at all if the inflation factor was not large enough. Furthermore, increases to penalties were capped at 10 percent, which meant that longer periods without an inflation adjustment could cause a penalty to rapidly lose value in real terms. Over time, this formula caused agency civil penalties to lose value relative to total inflation, thereby undermining Congress' original purpose in enacting statutory civil monetary penalties to be a deterrent and to promote compliance with the law. The Inflation Adjustment Act has removed these rounding rules. Penalties now are simply rounded to the nearest dollar. This rounding ensures that penalties will be increased each year to more effectively keep up with inflation.
The Inflation Adjustment Act required a “catch-up” adjustment that reset the inflation calculations by excluding prior inflationary adjustments under prior inflation adjustment Acts, and subsequent, annual adjustments to all civil penalties under the laws implemented by that agency. With this rule, the new statutory maximum penalty levels listed in Table 1 will apply to all statutory civil penalties assessed on or after the effective date of this rule.
OMB issued guidance on calculating the initial “catch-up” adjustment in February 2016. That guidance included a table of multipliers to adjust the penalty level based on the year that the penalty was established or last adjusted by statute or regulation (other than the Inflation Adjustment Act).
Table 1 shows the calculation of the initial catch-up adjustment based on the guidance provided by OMB. Column (1) contains the United States Code citations for the penalty statute. Column (2) contains the dollar amount most recently established by law (other than prior inflation adjustment Acts) for each civil monetary penalty. Column (3) sets out the year the Corps' civil monetary penalties were enacted or last adjusted by law (other than adjustments under the Inflation Adjustment Act). Column (4) sets out the factor determined by OMB to adjust for inflation from October of the corresponding year in column (3) to October 2015. Column (5) sets out the adjusted civil monetary penalty resulting from multiplying the dollar amount of the civil monetary penalty set out in Column (2) by the inflation factor in column (4). Column (6) sets out the civil monetary penalty that was in effect on November 2, 2015. Column (7) sets out the maximum catch-up penalty—an amount that is 250 percent of the 2015 penalty—which is calculated by multiplying the penalty amount in Column (6) by 2.5 (to achieve a 150 percent increase for a total of 250 percent of the 2015 penalty). Column (8) sets out the initial catch-up penalty amount, which is the lesser of the adjusted civil monetary penalty in Column (5) or the maximum civil monetary penalty in Column (7).
The Office of Management and Budget (OMB) issued guidance on calculating the 2017 annual inflation adjustment. See December 16, 2016, Memorandum for the Heads of Executive Departments and Agencies, from Shaun Donovan, Director, OMB, Subject: Implementation of the 2017 annual adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. The OMB provided to agencies the cost-of-living adjustment multiplier for 2017, based on the CPI-U for the month of October 2016, not seasonally adjusted, which is 1.01636. Agencies are to adjust “the maximum civil monetary penalty or the range of minimum and maximum civil monetary penalties, as applicable, for each civil monetary penalty by the cost-of-living adjustment.” For 2017, agencies multiply each applicable penalty by the multiplier, 1.01636, and round to the nearest dollar. The multiplier should be applied to the most recent penalty amount,
In sum, under this final rule the minimum Class I civil penalty for violations under CWA Section 309(g)(2)(A), 33 U.S.C. 1319(g)(2)A), will increase from $11,000 per violation to $20,966, and the maximum penalty will increase from $32,500 per violation to $52,414. Judicially-imposed civil penalties under CWA Section 404(s)(4), 33 U.S.C. 1344(s)(4), will increase from a maximum of $25,000 per day for each violation to $52,414. Finally, the Class
This rule will not result in any additional costs to implement the Corps Regulatory Program because the Class I civil penalties and judicial civil penalties have been in effect since 1990 when the Corps first promulgated regulations regarding such penalties (Class I civil penalties were first established by statute in 1987). This rule merely adjusts the value of current statutory civil penalties to reflect and keep pace with the levels originally set by Congress when the statutes were enacted, as required by the Inflation Adjustment Act. This rule will result in additional costs to members of the regulated public who do not comply with the terms and conditions of issued Department of the Army permits and either receive a final Class I civil administrative penalty order from a District Engineer or are subject to a judicial civil penalty because it increases the minimum and maximum penalty amounts to $20,966 and $52,414 for Class I civil administrative penalties under the Clean Water Act, to a maximum of $52,414 for judicially-imposed civil penalties under the Clean Water Act, and to a maximum of $22,957 for Class I civil administrative penalties under the National Fishing Enhancement Act. The benefit of this rule will be to improve the effectiveness of Corps civil monetary penalties by maintaining their deterrent effect and promoting compliance with the law.
In compliance with the principles in the President's Memorandum of June 1, 1998, regarding plain language, this preamble is written using plain language. The use of “we” in this notice refers to the Corps and the use of “you” refers to the reader. We have also used the active voice, short sentences, and common everyday terms except for necessary technical terms.
This final rule will not impose any new information collection burden under the provisions of the Paperwork Production Act (44 U.S.C. 3501
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. For the Corps regulatory program under Section 10 of the Rivers and Harbors Act of 1899, Section 404 of the Clean Water Act, and Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, the current OMB approval number for information requirements is maintained by the Corps of Engineers (OMB approval number 0710-0003). However, there are no new approval or application processes required as a result of this rulemaking that necessitate a new Information Collection Request (ICR). The regulation would not impose reporting or recordkeeping requirements. Therefore, this action is not subject to the Paperwork Reduction Act.
The OMB has not designated this final rule a “significant regulatory action” under Executive Order 12866. Accordingly, OMB has not reviewed this rule. Moreover, this final rule makes nondiscretionary adjustments to existing civil monetary penalties in accordance with the Inflation Adjustment Act and OMB guidance. The Corps, therefore, did not consider alternatives and does not have the flexibility to alter the adjustments of the civil monetary penalty amounts as provided in this rule. To the extent this rule increases civil monetary penalties, it would result in an increase in transfers from persons or entities assessed a civil monetary penalty to the government.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires the Corps to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.” The phrase “policies that have Federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This rule does not have Federalism implications. This nondiscretionary action is required by the Inflation Adjustment Act and will have no substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, Executive Order 13132 does not apply to this rule.
The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations and small governmental jurisdictions.
The Regulatory Flexibility Act applies only to rules subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act, 5 U.S.C. 553, or any other statute. See 5 U.S.C. 601-612. The Regulatory Flexibility Act does not apply to this final rule because a notice-and-comment rulemaking process is not required for the reasons stated above.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under Section 202 of the UMRA, the agencies generally must prepare a written statement, including a cost-
We have determined that this final rule does not impose new substantive requirements and therefore does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. Therefore, this rule is not subject to the requirements of Sections 202 and 205 of the UMRA. For the same reasons, we have determined that this final rule contains no regulatory requirements that might significantly or uniquely affect small governments. Therefore, this final rule is not subject to the requirements of Section 203 of UMRA. Therefore, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs us to use voluntary consensus standards in our regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not involve technical standards. Therefore, we did not consider the use of any voluntary consensus standards.
Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the rule on children, and explain why the regulation is preferable to other potentially effective and reasonably feasible alternatives.
This rule is not subject to this Executive Order because it is not economically significant as defined in Executive Order 12866. In addition, it does not concern an environmental or safety risk that we have reason to believe may have a disproportionate effect on children.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires agencies to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The phrase “policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
This rule does not have tribal implications. The rule imposes no new substantive obligations on tribal governments but instead merely adjusts the value of current statutory civil monetary penalties to reflect and keep pace with the levels originally set by Congress when the statutes were enacted. The calculation of the increases is formula-driven and prescribed by statute and OMB guidance, and the Corps has no discretion to vary the amount of the adjustment to reflect any views or suggestions provided by commenters. Therefore, Executive Order 13175 does not apply to this rule.
The Corps prepares appropriate environmental documentation, including Environmental Impact Statements when required, for all permit decisions. Therefore, environmental documentation under the National Environmental Policy Act is not required for this rule. This final rule does not constitute a major Federal action significantly affecting the quality of the human environment because it merely increases the value of statutory civil monetary penalties to reflect and keep pace with the levels originally set by Congress when the statutes were enacted. The calculation of the increases is formula-driven and prescribed by statute and OMB guidance, and the Corps has no discretion to vary the amount of the adjustment.
Appropriate environmental documentation has been, or will be, prepared for each permit action that is subject to the civil penalty process. Therefore, environmental documentation under the National Environmental Policy Act (NEPA) is not required for this final rule.
The Congressional Review Act, 5 U.S.C. 801
Executive Order 12898 requires that, to the greatest extent practicable and permitted by law, each Federal agency must make achieving environmental
This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This rule relates only to the adjustments to civil penalties to account for inflation. This rule is consistent with current agency practice, does not impose new substantive requirements, and therefore will not have a significant adverse effect on the supply, distribution, or use of energy.
Administrative practice and procedure, Intergovernmental relations, Investigations, Law enforcement, Navigation (water), Water pollution control, Waterways.
For the reasons set forth in the preamble, the Corps amends 33 CFR part 326 as follows:
33 U.S.C. 401
(a)
Postal Service
Final rule.
The Postal Service is amending
Karen Key at (202) 268-7492, or Garry Rodriguez at (202) 268-7281.
This final rule describes new prices for competitive products, by class of mail, established by the Governors of the United States Postal Service®. New prices are available under Docket Number CP2018-8 on the Postal Regulatory Commission's (PRC) Web site at
The Postal Service will revise
• Priority Mail Express®.
• Priority Mail®.
• First-Class Package Service—Retail®.
• First-Class Package Service—Commercial®.
• Parcel Select®.
• USPS Retail Ground®.
• Extra Services.
• Return Services.
• Mailer Services.
• Recipient Services.
Competitive product prices are identified by product as follows:
Overall, Priority Mail Express prices will increase 3.9 percent. Priority Mail Express will continue to offer zoned and Flat Rate Retail, Commercial Base
Retail prices will increase an average of 3.9 percent. The Flat Rate Envelope price will increase to $24.70, the Legal Flat Rate Envelope will increase to $24.90, and the Padded Flat Rate Envelope will increase to $25.40.
Commercial Base prices offer lower prices to customers who use authorized postage payment methods. Commercial Base prices will increase an average of 3.7 percent. Commercial Base pricing offers an average 11.3 percent discount off retail prices.
Commercial Plus prices were matched to the Commercial Base prices in the 2016 price change and will continue to be matched in 2018.
Overall, Priority Mail prices will increase 3.9 percent. Priority Mail will continue to offer zoned and Flat Rate Retail, Commercial Base, and Commercial Plus pricing.
Retail prices will increase an average of 0.8 percent. The Flat Rate Envelope price will increase to $6.70, the Legal Flat Rate Envelope will increase to $7.00, and the Padded Flat Rate Envelope will increase to $7.25. The Small Flat Rate Box price will increase to $7.20 and the Medium Flat Rate Boxes will increase to $13.65. The Large Flat Rate Box will increase to $18.90, and the APO/FPO/DPO Large Flat Rate Box will increase to $17.40.
Commercial Base prices offer lower prices to customers who use authorized postage payment methods. Commercial Base prices will increase an average of 6.2 percent. Commercial Base pricing offers an average 9.4 percent discount off retail prices.
The Commercial Plus price category offers price incentives to large volume customers who have a customer commitment agreement with USPS. Commercial Plus prices will increase an average of 6.1 percent. Commercial Plus pricing offers an average 12.7 percent discount off retail prices.
Overall, First-Class Package Service—Retail prices will increase 14.5 percent.
Overall, First-Class Package Service—Commercial prices will increase 3.9 percent.
Parcel Select Destination Entry and Ground prices will increase an average of 4.9 percent. The prices for Parcel Select Lightweight® (PSLW) will increase an average of 7.0 percent.
Overall, USPS Retail Ground prices will increase an average of 3.9 percent.
Adult Signature Required and Adult Signature Restricted Delivery service prices are increasing 3.4 and 3.3 percent, respectively. The price for Adult Signature Required will increase to $6.10, and Adult Signature Restricted Delivery will increase to $6.35.
Overall, Parcel Return Service (PRS) prices will increase an average of 4.9 percent.
Return Sectional Center Facility (RSCF) prices will increase an average of 5.2 percent, and Return Delivery Unit (RDU) prices will increase an average of 4.6 percent.
The Pickup on Demand® service fee will continue to be $22.00.
The competitive Post Office Box
Premium Forwarding Service® (PFS®) prices will increase an average of 3.9 percent. The enrollment fee paid at the retail counter for PFS-Residential will increase to $20.10, and the PFS-Residential and PFS-Commercial enrollment fee paid online will increase to $18.45 per application. The price of the weekly shipment charge for PFS-Residential will increase to $20.10.
The USPS Package Intercept
Address Enhancement Service competitive product prices will be increasing between 2.7 and 4.2 percent.
The Postal Service will revise all zone charts to reflect that Priority Mail to APO/FPO/DPO destinations will be processed only at the Chicago ISC. Additional information can be found in the
The Postal Service provides additional resources to assist customers with this price change for competitive products. These tools include price lists, downloadable price files, and
Administrative practice and procedure, Postal service.
The Postal Service adopts the following changes to
Accordingly, 39 CFR part 111 is amended as follows:
5 U.S.C. 552(a); 13 U.S.C. 301-307; 18 U.S.C. 1692-1737; 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3622, 3626, 3632, 3633, and 5001.
We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes.
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Due to the receipt of an adverse comment, the Environmental Protection Agency (EPA) is withdrawing the August 16, 2017, direct final rule that approves a North Carolina state implementation plan (SIP) revision related to transportation conformity requirements. EPA will address the comment in a subsequent final action
The direct final rule published at 82 FR 38838, on August 16, 2017, is withdrawn, effective October 13, 2017.
Kelly Sheckler, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9222. Ms. Sheckler can also be reached via electronic mail at
On August 16, 2017 (82 FR 38838), EPA published a direct final rule approving portions of a SIP revision submitted by the State of North Carolina through the North Carolina Department of Environment and Natural Resources (now the North Carolina Department of Environmental Quality) to clarify the applicability of the State's transportation conformity rules. EPA took a direct final action to approve changes to regulation 15A NCAC Subchapter 2D, section .2001, purpose, scope and applicability related to North Carolina's transportation conformity provisions.
In the direct final rule, EPA explained that the Agency was publishing the rule without prior proposal because the Agency viewed the submittal as a non-controversial SIP amendment and anticipated no adverse comments. Further, EPA explained that the Agency was publishing a separate document in the proposed rules section of the
EPA received one adverse comment from a single Commenter on the aforementioned rule. As a result of the comment received, EPA is withdrawing the direct final rule approving the aforementioned changes to the North Carolina SIP. EPA will address the comment in a separate final action based on the proposed action also published on August 16, 2017 (82 FR 38864). EPA will not open a second comment period for this action.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
Environmental Protection Agency.
Withdrawal of direct final rule.
Due to the receipt of an adverse comment, the Environmental Protection Agency (EPA) is withdrawing the August 14, 2017, direct final rule approving a State Implementation Plan (SIP) revision submitted by the State of Connecticut. The revision addresses the nonattainment new source review (NNSR) requirements for the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS). This action is being taken in accordance with the Clean Air Act.
The direct final rule published on August 14, 2017 (82 FR 37819), is withdrawn effective October 13, 2017.
Donald Dahl, U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, Air Permits, Toxics, and Indoor Programs Unit, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912. Mr. Dahl's telephone number is (617) 918-1657; email address:
In the direct final rule, EPA stated that if adverse comments were submitted by September 13, 2017, the rule would be withdrawn and not take effect. EPA received an adverse comment prior to the close of the comment period and, therefore, is withdrawing the direct final rule. EPA will address the comment in a subsequent final action based upon the proposed rule also published on August 14, 2017 (82 FR 37829). EPA will not institute a second comment period on this action.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Due to the receipt of an adverse comment, the Environmental Protection Agency (EPA) is withdrawing the August 16, 2017, direct final rule approving a State Implementation Plan (SIP) revision submitted by the State of Vermont. Vermont's SIP revision addresses requirements of the Clean Air Act (CAA) and EPA's rules that require states to submit periodic reports
The direct final rule published on August 16, 2017 (82 FR 38834), is withdrawn effective October 13, 2017.
Anne K. McWilliams, Air Quality Planning Unit, U.S. Environmental Protection Agency, New England Regional Office, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109—3912, telephone (617) 918-1697, facsimile (617) 918-0697, email
In the direct final rule, EPA stated that if adverse comments were submitted by September 15, 2017, the rule would be withdrawn and not take effect. EPA received an adverse comment prior to the close of the comment period and, therefore, is withdrawing the direct final rule. EPA will address the comment in a subsequent final action based upon the proposed rule also published on August 16, 2017 (82 FR 38864). EPA will not institute a second comment period on this action.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve changes to the Alabama State Implementation Plan (SIP) to revise the definition of “volatile organic compounds” (VOCs), correct a typographical error, and remove control of particulate emissions and opacity limits for Talladega County. EPA is approving the SIP revisions submitted by the State of Alabama, through the Alabama Department of Environmental Management (ADEM), on May 19, 2017. This action is being taken pursuant to the Clean Air Act (CAA or Act).
This rule is effective November 13, 2017.
EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2017-0436. All documents in the docket are listed on the
Richard Wong, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-8726. Mr. Wong can be reached via electronic mail at
In this rulemaking, EPA is approving changes to the Alabama SIP, submitted by the State on May 19, 2017. The submission revises ADEM Rule 335-3-1-.02—
On August 16, 2017 (82 FR 38865), EPA proposed to approve the aforementioned changes, among others, to the SIP. This proposed rule accompanied a direct final rule published on the same day in the
On November 29, 2004, and August 1, 2016, EPA issued final rules revising the definition of VOCs by adding new compounds (tertiary butyl acetate (or t-Butyl acetate) and 1,1,2,2-Tetrafluoro-1-(2,2,2-trifluoroethoxyl) ethane) to the list of those that are considered to be negligibly reactive compounds, and on February 25, 2016 (81 FR 9339), EPA issued a final rule removing recordkeeping, emissions reporting, photochemical dispersion modeling, and inventory requirements for t-Butyl acetate. The State's May 19, 2017, SIP revision adds these compounds to the list of negligibly reactive compounds under ADEM Rule 335-3-1-.02 subpart (gggg). The SIP revision also removes the recordkeeping, emissions reporting, photochemical dispersion modeling, and inventory requirements requirement for t-Butyl acetate. Additionally, the submittal makes a typographical correction under subpart (gggg)(iii). EPA proposes to approve these revisions because they are consistent with the definition of VOC at 40 CFR 51.100(s).
The State's addition of exemptions from the definition of VOCs and removal of recordkeeping, emissions reporting, photochemical dispersion modeling, and inventory requirements for t-butyl acetate are approvable under section 110(l) because they reflect changes to Federal regulations based on findings that the exempted compounds are negligibly reactive. The typographical error correction makes ministerial changes for consistency.
Rule 335-3-4-.08—
The May 19, 2017, SIP revision removes paragraph 3, applicable only to sources in Talladega County, because the type of source no longer exists in the County or anywhere else in the State. Moreover, if such a source were to begin operating in the future, it would be subject to more stringent requirements under Rule 335-3-4-.08 paragraph 2.
EPA believes that these changes to the regulatory portion of the SIP are consistent with section 110 of the CAA and meet the regulatory requirements pertaining to SIPs. Pursuant to CAA section 110(l), the Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in CAA section 171), or any other applicable requirement of the Act. The State's removal of emissions and opacity requirements for Talladega County is an approvable change under section 110(l) because, should these sources start operating, they would fall under more stringent rules in the SIP.
The State removes Rule 335-3-4-.08 paragraph 3, particulate matter emissions limit for wood waste boilers applicable only to Talladega County because such sources no longer operate in the County. If such a source were to begin operating in the future, it would be subject to more stringent requirements under Rule 335-3-4-.08 paragraph 2, applicable statewide. Therefore, the Commenter's statement that such sources should be subject to tighter requirements is true, and EPA has determined that any new source would be subjected to tighter emissions limits, currently approved in the SIP.
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Rule 335-3-1-.02—
EPA is taking final action to approve portions of Alabama's May 19, 2017, submission submitted by the State of Alabama through ADEM. The submission revises Rule 335-3-1-.02—
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 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
• 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).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 December 12, 2017. 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 may not be challenged later in proceedings to enforce its requirements.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Due to the receipt of an adverse comment, the Environmental Protection Agency (EPA) is withdrawing a portion of the August 16, 2017, direct final rule that approves changes to South Carolina's state implementation plan (SIP) related to the regulation of volatile organic compounds (VOC) and oxides of nitrogen (NO
The amendment to 40 CFR 52.2120(c) at Regulation 62.5, Standard No. 5.2 (amendatory instruction 2.b) published at 82 FR 38828, on August 16, 2017, is withdrawn, effective October 13, 2017.
D. Brad Akers, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Akers can be reached via telephone at (404) 562-9089 or via electronic mail at
On August 16, 2017 (82 FR 38825), EPA published a direct final rule approving portions of several SIP revisions submitted by the State of South Carolina, through the South Carolina Department of Health and Environmental Control, on October 1, 2007, June 17, 2013, and January 20, 2016. EPA took a direct final action to approve portions of the October 1, 2007, June 17, 2013, and January 20, 2016, submissions that made changes to Regulation 61-62.5, Standard No. 5—“Volatile Organic Compounds,” and Regulation 61-62.5, Standard No. 5.2—“Control of Oxides of Nitrogen (NO
In the direct final rule, EPA explained that the Agency was publishing the rule without prior proposal because the Agency viewed the submittal as a non-controversial SIP amendment and anticipated no adverse comments. Further, EPA explained that the Agency was publishing a separate document in the proposed rules section of the
EPA received one adverse comment from a single Commenter on the portion of the direct finale rule that made changes to Regulation 61-62.5, Standard No. 5.2 only. As a result of the comment received, EPA is withdrawing only the portion of the direct final rule approving changes to the South Carolina SIP at Regulation 61-62.5, Standard No. 5.2, as submitted in the October 1, 2007, SIP revision. The EPA will address the comment in a separate final action based on the proposed action also published on August 16, 2017 (82 FR 38865). EPA will not open a second comment period for this action.
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Volatile organic compounds.
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Due to receipt of an adverse comment, the Environmental Protection Agency (EPA) is withdrawing the August 17, 2017, direct final rule that approves portions of North Carolina State Implementation Plan (SIP) revisions related to changes to an air curtain burner regulation. EPA stated in the direct final rules that if EPA received adverse comments by the close of the public comment period, the rules would be withdrawn and not take effect. EPA will address the comment in a subsequent final action based upon the proposed rulemaking action, also published on August 17, 2017.
The direct final rule published August 17, 2017 at 82 FR 39027 is withdrawn, effective October 13, 2017.
Nacosta C. Ward, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Ward can be reached via telephone at (404) 562-9140, or via electronic mail at
On August 17, 2017 (82 FR 39027), EPA published a direct final rulemaking approving portions of SIP revisions submitted by State of North Carolina through the North Carolina Department of Environmental Quality (formerly the North Carolina Department of Environment and Natural Resources), Division of Air Quality. Specifically, EPA took direct final action to approve portions of North Carolina's October 14, 2004, March 24, 2006, and January 31, 2008 submissions that make changes to Regulation 15A NCAC Subchapter 2D—Air Pollution Control Requirements, Section .1904,
In the direct final rulemaking, EPA explained that the Agency was publishing the rule without prior proposal because the Agency viewed the submittal as a non-controversial SIP amendment and anticipated no adverse comments. Further, EPA explained that the Agency was publishing a separate document in the proposed rules section of the
EPA received one adverse comment from a single Commenter on the aforementioned rule. As a result of the comment received, EPA is withdrawing the direct final rule approving the aforementioned changes to the North Carolina SIP. If EPA determines that it is appropriate to finalize the proposed approval of the aforementioned changes to the North Carolina SIP, EPA will publish a final rule which will include a response to the comments received. In the event that EPA determines that it is not appropriate to finalize the proposed approval related to these changes, EPA may issue a subsequent proposal with a different course of action.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Due to the receipt of an adverse comment, the Environmental Protection Agency (EPA) is withdrawing the August 16, 2017, direct final rule that approves an Alabama state implementation plan (SIP) revision related to “volatile organic compounds” (VOCs) and particulate emissions. EPA will address the comment in a subsequent final action based upon the proposed rulemaking action, also published on August 16, 2017. EPA will not institute a second comment period on this action.
The direct final rule published at 82 FR 38841, on August 16, 2017, is withdrawn, effective October 13, 2017.
Richard Wong, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-8726. Mr. Wong can also be reached via electronic mail at
On August 16, 2017 (82 FR 38841), EPA published a direct final rule approving a SIP revision submitted by the State of Alabama, through the Alabama Department of Environmental Management (ADEM). EPA took a direct final action to approve the May 19, 2017, submission that revises ADEM Rule 335-3-1-.02—
In the direct final rule, EPA explained that the Agency was publishing the rule without prior proposal because the Agency viewed the submittal as a non-controversial SIP amendment and anticipated no adverse comments. Further, EPA explained that the Agency was publishing a separate document in the proposed rules section of the
EPA received one adverse comment from a single Commenter on the aforementioned rule. As a result of the comment received, EPA is withdrawing the direct final rule approving the aforementioned changes to the Alabama SIPs. EPA will address the comment in a separate final action based on the proposed action also published on August 16, 2017 (82 FR 38865). EPA will not open a second comment period for this action.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Due to the receipt of an adverse comment, the Environmental Protection Agency (EPA) is withdrawing portions of the August 21, 2017, direct final rule that approves changes to South Carolina's state implementation plan (SIP) related to definitions and open burning. EPA will address the comment in a separate final action based upon the proposed rulemaking action, also published on August 21, 2017. EPA will not institute a second comment period on this action.
The amendments to 40 CFR 52.2120(c) at Regulation 62.1 and Regulation No. 62.2 (amendatory instructions 2.A and B.) published at 82 FR 39537, on August 21, 2017, are withdrawn, effective October 13, 2017.
D. Brad Akers, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Akers can be reached via telephone at (404) 562-9089 or via electronic mail at
On August 21, 2017 (82 FR 39537), EPA published a direct final rule approving portions of several SIP revisions submitted by the State of South Carolina, through the South Carolina Department of Health and Environmental Control, on July 18, 2011, June 17, 2013, April 10, 2014, August 8, 2014, January 20, 2016, and July 27, 2016. EPA took a direct final action to approve portions of the July 18, 2011, June 17, 2013, April 10, 2014, August 8, 2014, January 20, 2016, and July 27, 2016, submissions that made changes to Regulation 61-62.1, Section I—“Definitions,” and Regulation 61-62.2—“Prohibition of Open Burning,” among other changes.
In the direct final rule, EPA explained that the Agency was publishing the rule without prior proposal because the Agency viewed the submittal as a non-controversial SIP amendment and anticipated no adverse comments. Further, EPA explained that the Agency was publishing a separate document in the proposed rules section of the
EPA received one adverse comment from a single Commenter on the portions of the direct final rule that made changes to Regulation 61-62.1, Section I and Regulation 61-62.2 only. As a result of the comment received, EPA is withdrawing only the portions of the direct final rule approving changes to the South Carolina SIP at Regulation 61-62.1, Section I, as submitted in the July 18, 2011, June 17, 2013, April 10, 2014, and July 27, 2016, SIP revision, and Regulation 61-62.2, as submitted in the April 10, 2014, SIP revision. EPA will address the comment in a separate final action based on the proposed action also published on August 21, 2017 (82 FR 39551). EPA will not open a second comment period for this action.
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve a portion of a State Implementation Plan (SIP) revision submitted by the State of Florida, through the Florida Department of Environmental Protection (FDEP) on February 1, 2017, for the purpose of revising Florida's requirements and procedures for emissions monitoring at stationary sources. Florida's February 1, 2017, SIP submittal includes amendments to three Florida Administrative Code (F.A.C.) rule sections, as well as the removal of one F.A.C. rule section from the Florida SIP in order to eliminate redundant language and make updates to the requirements for emissions monitoring at stationary sources. Additionally, this action includes a correction to remove an additional F.A.C. rule that was previously approved for removal from the SIP in a separate action but was never removed. EPA is taking action on Florida's February 1, 2017, SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. This action is being taken pursuant to the Clean Air Act (CAA or Act).
This direct final rule is effective December 12, 2017 without further notice, unless EPA receives adverse comment by November 13, 2017. 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 No. EPA-R04-OAR-2017-0500 at
Andres Febres of the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Febres can be reached via telephone at (404) 562-8966 or via electronic mail
On February 1, 2017, FDEP submitted to EPA for adoption a SIP revision for the purpose of updating Florida's requirements and procedures for emissions monitoring at stationary sources. Florida's February 1, 2017, SIP submittal included amendments to three F.A.C. rule sections and the removal of one F.A.C. rule section from the Florida SIP.
Through this rulemaking, EPA is approving the portions of Florida's February 1, 2017, SIP submittal regarding amendments to Rule 62-297.440, F.A.C., and Rule 62-297.450, F.A.C., as well as the removal of Rules 62-297.401, F.A.C., from the State's implementation plan. The portion of the SIP regarding Rule 62-297.310 is being discussed in a separate rulemaking that is proposing approval of portions of several SIP submittals making administrative and recodification changes to Florida's SIP.
In addition to the removal of Rule 62-297.401, F.A.C., EPA is removing Rule 62-297.400, F.A.C.—“EPA Methods Adopted by Reference” from the Florida SIP. The removal of this rule section was previously approved by EPA, but was never reflected in Florida's SIP-approved rules table in 40 CFR 52.520(c). For more detail on the approval to remove Rule 62-297.400, F.A.C., see the June 16, 1999, rulemaking (64 FR 32346).
As mentioned in Section I above, Florida submitted to EPA a SIP revision on February 1, 2017, which includes amendments to three of its rules to address requirements for emissions monitoring at stationary sources and proposed to remove one of its SIP-approved rules. Specifically, Florida proposed amendments to Rules 62-297.310, 62-297.440, and 62-297.450, F.A.C., and proposed to remove Rule 62-297.401, F.A.C., from the State's implementation plan. A description of the changes proposed to these Rules and our analyses of these changes is included below.
In its February 1, 2017, SIP submittal, Florida requested that Rule 62-297.401, F.A.C.—“Compliance Test Methods” be removed from the State's implementation plan. This rule section listed the air emissions test methods that were to be used whenever a compliance test was required by another rule or a permit. These test methods are now prescribed in each individual rule that requires a compliance test, and as a result, Rule 62-297.401 is no longer needed as its own separate list. In addition, Florida incorporates by reference all the necessary EPA test methods in Rule 62-204.800, F.A.C—“Federal Regulations Adopted by Reference.” Consequently, Florida has since repealed Rule 62-297.401, F.A.C., state effective on July 10, 2014. EPA is approving the removal of the aforementioned rule from Florida's SIP because the requirements are still in place in other state rules, and we believe this repealed rule is no longer necessary.
In Florida's February 1, 2017, SIP submittal the State proposed several revisions to Rule 62-297.440, F.A.C.—“Supplementary Test Procedures,” which became state effective on July 10, 2014. This rule section listed additional testing methods that could be used in conjunction and as a supplement to all other required test methods. In its February 1, 2017, SIP submittal, Florida is requesting the removal of several subsections because they contain test methods that are either adopted by reference in other rule sections or are now obsolete. Florida proposed to remove the following subsections from Rule 62-297.440, F.A.C.: (1)—“ASTM Methods,” (3)—“American Conference of Governmental Industrial Hygienists, Recommended Practices—Industrial Ventilation: A Manual of Recommended Practice—Equipment Specifications,” (5)—“Technical Association of Pulp and Paper Industry (TAPPI), Test Methods,” (6)—“Sulphur Development Institute of Canada (SUDIC) Sampling and Testing Sulphur Forms,” and (7)—“EPA VOC Capture Efficiency Test Procedures.”
With the exception of the language from subsection (7)—“EPA VOC Capture Efficiency Test Procedures” (which are now included in Rule 62-297.450, F.A.C.—“EPA VOC Capture Efficiency Test Procedures”), all other subsections mentioned in the paragraph above were repealed because they are obsolete and unnecessary. Given that these test methods were supplementary and that all required test methods are still in place and prescribed in each section or permit that requires testing, as mentioned in Section II.B. above, EPA agrees with the amendments and is approving the removal of these five subsections from Rule 62-297.440, F.A.C.
In its February 1, 2017, SIP submittal, Florida proposed several revisions to Rule 62-297.450, F.A.C—“EPA VOC Capture Efficiency Test Procedures,” which became state effective on July 10, 2014. This rule section lists procedures for determining the capture efficiency of a VOC capture system. The February 1, 2017, SIP submittal makes clarifying changes to this rule by reformatting the rule, but did not change the requirements that had to be met in order to determine the capture efficiency of a VOC capture system. Some subsections of the rule were removed, and instead, the State references EPA's Emissions Measurement Technical Information Center Guideline Document GD-035—“Guideline for Determining Capture Efficiency,” January 9, 1995.
EPA is approving the changes provided in Florida's February 1, 2017, SIP submittal to Rule 62-297.450, F.A.C., on the basis that these changes are simply to clarify and simplify the language in the rule, and are consistent with EPA's VOC capture efficiency test procedure guidelines, as established in the agency's GD-035 guideline.
In an April 15, 1996, SIP submittal, Florida requested, among other things, the removal of several Rule sections from the State's SIP. Specifically, Florida requested to remove fourteen sections from Rule Chapter 62-297, F.A.C., including Rules 62-297.400, 62-297.411, 62-297.412, 62-297.413, 62-297.414, 62-297.415, 62-297.416, 62-297.417, 62-297.418, 62-297.419, 62-297.421, 62-297.422, 62-297.423, and 62-297.424, F.A.C. In a June 16, 1999 (64 FR 32346), rulemaking, EPA approved the removal of these Florida rule sections from the State's SIP at the same time that the agency added a table of SIP-approved rules at 40 CFR 52.520.
On November 29, 2012, Florida submitted to EPA a letter requesting that corrections be made to the table at 40 CFR 52.520(c), including the removal of those rules that were approved for removal but left in the table. As a response to the November 29, 2012, letter, EPA published a Correcting Amendments rulemaking on June 20, 2013 (78 FR 37132), to make the requested corrections to Rule Chapter 62-297 in table 52.520(c) of the Florida SIP. In the June 20, 2013, correction, EPA removed all remaining rules that were previously approved for removal with the exception of Rule 62-297.400, F.A.C.
Although not requested by Florida in their February 1, 2017, SIP submittal, EPA is making the correction to the table at 40 CFR 52.520 regarding Rule 62-297.400, F.A.C., at this time. At the time of the repeal of this rule, the latest SIP-approved version of Rule 62-297.400, F.A.C., included references to Rule 62-297.401, F.A.C., and Rules 62-297.411 through 62-297.424, F.A.C., which are either removed from the SIP or are being approved for removal in this rulemaking. If Rule 62-297.400, F.A.C., was left in the Florida SIP, it would continue to make reference to SIP-approved rules that no longer exist in the State's implementation plan and could lead to confusion. Since this rule was previously approved for removal in the June 16, 1999, rulemaking, EPA is now removing the aforementioned rule from the Florida SIP.
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Rule 62-297.440, F.A.C., entitled “Supplementary Test Procedures” and Rule 62-297.450, F.A.C., entitled “EPA VOC Capture Efficiency Test Procedures,” both state effective on July 19, 2014. EPA has made, and will continue to make, these materials generally available through
EPA is taking direct final action to approve the aforementioned changes to the SIP, as submitted to us in Florida's February 1, 2017, SIP revision. Specifically, EPA is approving the amendments to Rule 62-297.440, F.A.C., and Rule 62-297.450, F.A.C., both state effective on July 19, 2014, as well as the removal of Rule 62-297.401, F.A.C., from Florida's SIP. In addition, EPA is removing Rule 62-297.400, F.A.C., from Florida's SIP as approved in a previous rulemaking.
EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 December 12, 2017. 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 this
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Due to the receipt of an adverse comment, the Environmental Protection Agency (EPA) is withdrawing the August 16, 2017, direct final rule that approves portions of the South Carolina state implementation plan (SIP) revisions for miscellaneous rules covering air pollution control standards. EPA will address the comment in a subsequent final action based upon the proposed rulemaking action, also published on August 16, 2017. EPA will not institute a second comment period on this action.
The direct final rule published at 82 FR 38828, on August 16, 2017, is withdrawn, effective October 13, 2017.
Richard Wong, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-8726. Mr. Wong can also be reached via electronic mail at
On August 16, 2017 (82 FR 38828), EPA published a direct final rule approving SIP revisions submitted by the State of South Carolina, through the South Carolina Department of Health and Environmental Control (SC DHEC). EPA took a direct final action to approve portions of the October 1, 2007, July 18, 2011, June 17, 2013, August 8, 2014, August 12, 2015, July 27, 2016, and November 4, 2016, submissions that revise Regulation 61-62.5, Standard No. 1—“Emissions From Fuel Burning Operations” and Regulation 61-62.5, Standard No. 4—“Emissions From Process Industries.”
In the direct final rule, EPA explained that the Agency was publishing the rule without prior proposal because the Agency viewed the submittal as a non-controversial SIP amendment and anticipated no adverse comments. Further, EPA explained that the Agency was publishing a separate document in the proposed rules section of the
EPA received one adverse comment from a single Commenter on the direct final rule on both the changes to Regulation 61-62.5, Standard No. 1 and to Standard No. 4. As a result of the comment received, EPA is withdrawing the direct final rule approving the aforementioned changes to the South Carolina SIP at Regulation 61-62.5, Standard No. 1 and Regulation 61-62.5, Standard No. 4. EPA will address the comment in a separate final action based on the proposed action also published on August 16, 2017 (82 FR 38874). EPA will not open a second comment period for this action.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS implements accountability measures (AMs) for commercial greater amberjack in the exclusive economic zone (EEZ) of the South Atlantic. NMFS projects commercial landings of greater amberjack will reach the commercial annual catch limit (ACL) by October 18, 2017. Therefore, NMFS closes the commercial sector for greater amberjack in the South Atlantic EEZ on October 18, 2017, and it will remain closed until the start of the next fishing year on March 1, 2018. This closure is necessary to protect the greater amberjack resource.
This rule is effective at 12:01 a.m., local time, October 18, 2017, until 12:01 a.m., local time, March 1, 2018.
Mary Vara, NMFS Southeast Regional Office, telephone: 727-824-5305, email:
The snapper-grouper fishery of the South Atlantic includes greater amberjack and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
The commercial ACL for greater amberjack is equivalent to the commercial quota. The commercial quota for greater amberjack in the South Atlantic is 769,388 lb (348,989 kg), gutted weight, as specified in 50 CFR 622.190(a)(3).
Under 50 CFR 622.193(k)(1), NMFS is required to close the commercial sector
The operator of a vessel with a valid Federal commercial vessel permit for South Atlantic snapper-grouper with greater amberjack on board must have landed and bartered, traded, or sold such greater amberjack prior to 12:01 a.m., local time, October 18, 2017. During the commercial closure, harvest and possession of greater amberjack in or from the South Atlantic EEZ is limited to the recreational bag and possession limits, as specified in § 622.187(b)(1) and (c)(1). Also during the commercial closure, the sale or purchase of greater amberjack taken from the South Atlantic EEZ is prohibited. The prohibition on sale or purchase does not apply to greater amberjack that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, October 18, 2017, and were held in cold storage by a dealer or processor, as specified in § 622.190(c)(1)(i).
For a person on board a vessel that has been issued a valid Federal commercial or charter vessel/headboat permit for the South Atlantic snapper-grouper fishery, the bag and possession limits and the sale and purchase provisions of the commercial closure for greater amberjack apply regardless of whether the fish are harvested in state or Federal waters, as specified in 50 CFR 622.190(c)(1)(ii).
The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of greater amberjack and the South Atlantic snapper-grouper fishery and is consistent with the Magnuson-Stevens Act and other applicable laws.
This action is taken under 50 CFR 622.193(k)(1) and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act, because the temporary rule is issued without opportunity for prior notice and comment.
This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds that the need to immediately implement this action to close the commercial sector for greater amberjack constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures would be unnecessary and contrary to the public interest. Such procedures are unnecessary because the AMs have already been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect greater amberjack since the capacity of the fishing fleet allows for rapid harvest of the commercial ACL (commercial quota). Prior notice and opportunity for public comment would require time and would potentially result in a harvest well in excess of the established commercial ACL (commercial quota).
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS implements an accountability measure (AM) for the commercial sector for vermilion snapper in the South Atlantic exclusive economic zone (EEZ). NMFS projects that commercial landings of vermilion snapper will reach the commercial annual catch limit (ACL) for the July through December 2017 fishing period by October 17, 2017. Therefore, NMFS closes the commercial sector for vermilion snapper in the South Atlantic EEZ on October 17, 2017, and it will remain closed until January 1, 2018, the start of the January through June commercial fishing season. This closure is necessary to protect the South Atlantic vermilion snapper resource.
This rule is effective from 12:01 a.m., local time, October 17, 2017, until 12:01 a.m., local time, January 1, 2018.
Mary Vara, NMFS Southeast Regional Office, telephone: 727-824-5305, email:
The snapper-grouper fishery of the South Atlantic includes vermilion snapper and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
The commercial ACL (equivalent to the commercial quota) for vermilion snapper in the South Atlantic is divided into separate quotas for two 6-month periods each year, January through June and July through December. The commercial quota for vermilion snapper in the South Atlantic is 388,703 lb (176,313 kg), gutted weight (431,460 lb (195,707 kg), round weight), for the July 1 through December 31, 2017, fishing period, as specified in 50 CFR 622.190(a)(4)(ii)(D).
On September 28, 2017 (82 FR 45207), NMFS published a temporary rule in the
In accordance with regulations at 50 CFR 622.193(f)(1), NMFS is required to close the commercial sector for vermilion snapper when the commercial quota for that 6-month period of the fishing year has been reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that the commercial quota for South Atlantic vermilion snapper for the July through December fishing
The operator of a vessel with a valid commercial vessel permit for South Atlantic snapper-grouper with vermilion snapper on board must have landed and bartered, traded, or sold such vermilion snapper prior to 12:01 a.m., local time, October 17, 2017. During the commercial closure, the recreational bag limit specified in 50 CFR 622.187(b)(5) and the possession limits specified in 50 CFR 622.187(c)(1) apply to all harvest or possession of vermilion snapper in or from the South Atlantic EEZ. Also during the commercial closure, the sale or purchase of vermilion snapper taken from the EEZ is prohibited. As specified in 50 CFR 622.190(c)(1)(i), the prohibition on sale or purchase does not apply to the sale or purchase of vermilion snapper that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, October 17, 2017, and were held in cold storage by a dealer or processor. For a person on board a vessel issued a Federal commercial or charter vessel/headboat permit for the South Atlantic snapper-grouper fishery, the recreational bag and possession limits and the sale and purchase provisions of the commercial closure for vermilion snapper apply regardless of whether the fish are harvested in state or Federal waters, as specified in 50 CFR 622.190(c)(1)(ii).
The Regional Administrator for the NMFS Southeast Region has determined this temporary rule is necessary for the conservation and management of South Atlantic vermilion snapper and is consistent with the Magnuson-Stevens Act and other applicable laws.
This action is taken under 50 CFR 622.193(f)(1) and is exempt from review under Executive Order 12866.
This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds that the need to immediately implement this action to close the commercial sector for vermilion snapper constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures would be unnecessary and contrary to the public interest. Such procedures are unnecessary because the final rule implementing the AM has been subject to public notice and comment, and all that remains is to notify the public of the closure. Allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to immediately implement this action to protect vermilion snapper, since the capacity of the fishing fleet allows for rapid harvest of the commercial quota. Prior notice and opportunity for public comment would require time and could result in a harvest well in excess of the established commercial quota.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final specifications.
In this final rule, NMFS specifies a 2017 limit of 2,000 mt of longline-caught bigeye tuna for each U.S. participating territory (American Samoa, Guam, and the Northern Mariana Islands). NMFS will allow each territory to allocate up to 1,000 mt each year to U.S. longline fishing vessels in a valid specified fishing agreement. As an accountability measure, NMFS will monitor, attribute, and restrict (if necessary), catches of longline-caught bigeye tuna, including catches made under a specified fishing agreement. These catch limits and accountability measures support the long-term sustainability of fishery resources of the U.S. Pacific Islands and fisheries development in the U.S. territories.
The final specifications are effective October 10, 2017, through December 31, 2017. The deadline to submit a specified fishing agreement pursuant to 50 CFR 665.819(b)(3) for review is December 11, 2017.
Copies of the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific (Pelagic FEP) are available from the Western Pacific Fishery Management Council (Council), 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel 808-522-8220, fax 808-522-8226, or
NMFS prepared environmental analyses that describe the potential impacts on the human environment that would result from the action. Copies of those analyses, identified by NOAA-NMFS-2017-0004, are available from
Jarad Makaiau, NMFS PIRO Sustainable Fisheries, 808-725-5176.
NMFS is specifying a catch limit of 2,000 mt of longline-caught bigeye tuna for each U.S. participating territory in 2017. NMFS is also authorizing each territory to allocate up to 1,000 mt of its 2,000-mt bigeye tuna limit to U.S. longline fishing vessels permitted to fish under the Pelagic FEP. NMFS will monitor catches of longline-caught bigeye tuna by the longline fisheries of each territory, including catches made by U.S. longline vessels operating under specified fishing agreements. The criteria that a specified fishing agreement must meet, and the process for attributing longline-caught bigeye tuna, will follow the procedures in 50 CFR 665.819—Territorial catch and fishing effort limits. When NMFS projects that a territorial catch or allocation limit will be reached, NMFS will, as an accountability measure, prohibit the catch and retention of longline-caught bigeye tuna by vessels in the applicable territory (territorial catch limit), and/or vessels in a specified fishing agreement (allocation limit).
You may find additional background information on this action in the preamble to the proposed specifications published on August 31, 2017 (82 FR 41388).
On August 31, 2017, NMFS published the proposed specifications and request for public comments (82 FR 41388); the comment period closed on September 15, 2017.
In addition to the proposed catch limit specification, NMFS specifically invited public comments that would address the impact of the proposed action on cultural fishing rights in American Samoa. On March 20, 2017, in
NMFS received five comment submissions on the proposed specifications, from individuals and the fishing industry. NMFS considered the public comments in making its decision on this action, and responds below to comments.
NMFS responds to comments on the proposed specifications, as follows:
NMFS also places a scientific observer on board longline vessels to document and record all catches made during observed fishing trips. Longline vessel operators must also maintain an accurate daily log of all catches, which NMFS can cross validate with observer records and market sales reports. Together, these measures provide NMFS with a reliable means to track the amount of fish caught by U.S. longline vessels from sea to market, and minimize the potential for illegal and unreported catch in the fishery.
NMFS also disagrees that the proposed action would result in the extinction of bigeye tuna. Bigeye tuna is not a species listed as, or proposed to be listed as, threatened or endangered under the Endangered Species Act (ESA), nor is it a candidate species for ESA listing. Moreover, NMFS has determined that the proposed action is consistent with the Western and Central Pacific Fisheries Commission's (WCPFC) objectives to conserve bigeye tuna at sustainable levels.
The Regional Administrator, NMFS PIR, determined that this action is necessary for the conservation and management of Pacific Island fishery resources, and that it is consistent with the Magnuson-Stevens Act and other applicable laws.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. NMFS published the factual basis for the certification in the proposed rule, and we do not repeat it here. NMFS received no comments on this certification; as a result, a regulatory flexibility analysis is not required, and none has been prepared.
On December 29, 2015, NMFS issued a final rule establishing a small business size standard of $11 million in annual gross receipts for all businesses primarily engaged in the commercial fishing industry (NAICS 11411) for Regulatory Flexibility Act (RFA) compliance purposes only (80 FR 81194, December 29, 2015). The $11 million standard became effective on July 1, 2016, and is to be used in place of the U.S. Small Business Administration's (SBA) current standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry in all NMFS rules subject to the RFA after July 1, 2016.
Pursuant to the RFA and prior to July 1, 2016, NMFS developed a certification for this regulatory action using SBA size standards. NMFS has reviewed the analyses prepared for this regulatory action in light of the new size standard. All of the entities directly regulated by this regulatory action are commercial fishing businesses and were considered small under the SBA size standards and, thus, they all would continue to be considered small under the new standard. Accordingly, NMFS has determined that the new size standard does not affect analyses prepared for this regulatory action.
This rule it is not subject to the 30-day delayed effectiveness provision of the Administrative Procedure Act pursuant to 5 U.S.C. 553(d)(1) because it is a substantive rule that relieves a restriction. This rule allows all U.S. vessels identified in a valid specified fishing agreement to resume fishing in the western and central Pacific Ocean (WCPO) after NMFS closed the longline fishery for bigeye tuna both there and in the eastern Pacific Ocean (EPO).
NMFS closed the U.S. pelagic longline fishery for bigeye tuna in the WCPO on September 1, 2017, because the fishery reached the 2017 catch limit (82 FR 37824, August 14, 2017). In addition, on September 8, 2017, NMFS closed the U.S. pelagic longline fishery for bigeye tuna for vessels greater than 24 m in the EPO because the fishery reached the 2017 catch limit (82 FR 41562, September 1, 2017). This final rule would relieve the restriction of the fishery closure in the WCPO by allowing all U.S. vessels to fish for bigeye tuna in the WCPO under a valid specified fishing agreement with one or more U.S territory. This would alleviate some of the impacts to the U.S. pelagic longline fishery resulting from the two fishery closures, and may provide positive economic benefits for the fishery and associated businesses, and net benefits to the public and the Nation.
This action is exempt from review under E.O. 12866 because it contains no implementing regulations.
16 U.S.C. 1801
U.S. Small Business Administration.
Request for information; extension of comment period.
On August 15, 2017, the Small Business Administration (SBA or Agency) published in the
The comment period for the request for information published on August 15, 2017 (82 FR 38617) is extended. Comments are requested on or before November 15, 2017.
You may submit comments, identified by Docket Number SBA-2017-0005, using any of the following methods:
SBA will post all comments on
Holly Turner, (202) 205-6335, 409 Third Street SW., Washington, DC 20416; email address:
On August 15, 2017, in accordance with Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” SBA published a request for information seeking input from the public on identifying which of the Agency's regulations should be repealed, replaced or modified because they are obsolete, unnecessary, ineffective, or burdensome (82 FR 38617). That request established a 60-day comment period, closing on October 16, 2017. To ensure that all interested parties are provided ample time and opportunity to submit comments, SBA is extending the public comment period for an additional 30 days. Comments must be submitted to SBA no later than November 15, 2017.
15 U.S.C. 634(b)(6); E.O. 13771; E.O. 13777.
U.S. Consumer Product Safety Commission.
Notice of proposed rulemaking.
The Consumer Product Safety Commission (Commission, or CPSC) is proposing a rule to determine that certain untreated and unfinished engineered wood products (EWPs), specifically, particleboard, hardwood plywood, and medium-density fiberboard, made from virgin wood or pre-consumer waste wood would not contain lead, the ASTM F963 elements, or specified phthalates that exceed the limits set forth under the CPSC's statutes for children's products, children's toys, and child care articles. Based on these proposed determinations, the specified EWPs would not be required to have third party testing for compliance with the requirements for lead, ASTM F963 elements, or phthalates for children's products, children's toys, and child care articles.
Submit comments by December 27, 2017.
You may submit comments, identified by Docket No. CPSC-2017-0038, by any of the following methods:
Jacqueline Campbell, Senior Textile Technologist, Office of Hazard Identification and Reduction, U.S. Consumer Product Safety Commission, 5 Research Place, Rockville, MD 20850: Telephone 301-987-2024; email:
Section 14(a) of the Consumer Product Safety Act, (CPSA), as amended by the Consumer Product Safety Improvement Act of 2008 (CPSIA), requires that manufacturers of products subject to a consumer product safety rule or similar rule, ban, standard, or regulation enforced by the CPSC, must certify that the product complies with all applicable CPSC-enforced requirements. 15 U.S.C. 2063(a). For children's products, children's toys, and child care articles, certification must be based on testing conducted by a CPSC-accepted third party conformity assessment body.
To provide opportunities to reduce the cost of third party testing requirements consistent with assuring compliance with any applicable consumer product safety rule, ban, standard, or regulations, the CPSC assessed whether children's products, children's toys, and child care articles manufactured with three engineered wood products, specifically, particleboard, hardwood plywood, and medium-density fiberboard (collectively referred to as EWPs), would comply with CPSC's requirements for lead, ASTM F963 elements or phthalates. If the Commission determines that such materials will comply with CPSC's requirements with a high degree of assurance, manufacturers do not need to have those materials tested by a third party testing laboratory to issue a Children's Product Certificate (CPC).
Section 101 of the CPSIA has two requirements associated with lead in children's products. 15 U.S.C. 1278a. First, no accessible part of a children's product may contain more than 100 parts per million (ppm) lead content. Second, paint or other surface coatings on children's products and furniture intended for consumer use may not contain lead in concentrations greater than 90 ppm. Manufacturers of children's products must certify, based on third party testing, that their products comply with all relevant children's product safety rules. Thus, products subject to the lead content or paint/surface coating limits require passing test results from a CPSC-accepted third party laboratory for the manufacturer to issue a CPC, before the products can be entered into commerce.
To alleviate some of the third testing burdens associated with lead in the accessible component parts of children's products, the Commission determined that certain materials, including gemstones, precious metals, wood, paper, CMYK process printing inks, textiles, and specified stainless steel, do not exceed the 100 ppm lead content limit under section 101 of the CPSIA. Based on this determination, such materials do not require third party testing for the lead content limits. The determinations regarding lead content for certain materials are set forth in 16 CFR 1500.91.
Section 106 of the CPSIA provides that the provisions of ASTM International,
Section 4.3.5 of ASTM F963 requires that surface coating materials and accessible substrates of children's toys that can be sucked, mouthed, or ingested
The third party testing burden could be reduced only if all elements listed in section 4.3.5 have concentrations below their solubility limits. Because third party conformity assessment bodies typically run one test for all of the ASTM F963 elements, no testing burden reduction would be achieved if any one of the elements requires testing.
To alleviate some of the third testing burdens associated with the ASTM F963 elements in the accessible component parts of children's toys, the Commission determined that certain unfinished and untreated trunk wood does not contain ASTM F963 elements that would exceed the limits specified in section 106 of the CPSIA. Based on this determination, unfinished and untreated trunk wood would not require third party testing for the ASTM F963 elements. The determinations regarding the ASTM F963 elements limits for certain materials is set forth in 16 CFR 1251.2.
Section 108(a) of the CPSIA permanently prohibits the manufacture for sale, offer for sale, distribution in commerce, or importation into the United States of any “children's toy or child care article” that contains concentrations of more than 0.1 percent of di(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), or butyl benzyl
The CPSIA required the Commission to appoint a Chronic Hazard Advisory Panel (CHAP) to “study the effects on children's health of all phthalates and phthalate alternatives as used in children's toys and child care articles.” 15 U.S.C. 2057c(b)(2). The CHAP issued its report in July 2014.
Tests for phthalate concentration are among the most expensive certification tests to conduct on a product, and each accessible component part subject to section 108 of the CPSIA must be tested.
To alleviate some of the third testing burdens associated with plastics in the accessible component parts of children's toys and child care articles, the Commission determined that products made with general purpose polystyrene (GPPS), medium-impact polystyrene (MIPS), high-impact polystyrene (HIPS), and super high-impact polystyrene (SHIPS) with specified additives do not exceed the phthalates content limits under section 108 of the CPSIA. 82 FR 41163 (August 30, 2017). Based on this determination, materials used in children's toys and child care articles that use these specified plastics and additives would not require third party testing for the phthalates content limits. The plastics determinations are set forth in the Commission's regulations at 16 CFR part 1308.
The research that provides the basis for the phthalates determination covers the six phthalates subject to the statutory prohibition and the additional phthalates that the Commission proposed to prohibit from use in children's toys and child care articles. After the Commission finalizes its phthalates rule, the Commission will revise its phthalate determination rule to reflect the phthalates restricted by the final phthalates rule.
CPSC contracted with the Toxicology Excellence for Risk Assessment (TERA)
In the Task 9 Report, TERA conducted a literature search on whether unfinished wood and other natural materials could be determined not to contain any of the ASTM F963 elements in concentrations greater than the ASTM F963 solubility limits.
To assess the presence of the ASTM F963 elements' concentrations in the materials, TERA looked at several factors. The factors reviewed included the presence and concentrations of the elements in the environmental media (
In the Task 11 Report, TERA conducted a literature search on the production and use of 11 specified phthalates in consumer products.
• The raw materials used in the production of the specified phthalates;
• The manufacturing processes used worldwide to produce the specified phthalates;
• Estimated annual production of the specified phthalates;
• Physical properties of the specified phthalates (
• Applications for phthalates use in materials and consumer and non-consumer products; and
• Other potential routes by which phthalates can be introduced into an otherwise phthalates-free material (
TERA found that phthalates are used generally as plasticizers or softeners of certain plastics, primarily polyvinyl chloride (PVC), as solvents, and as component parts of inks, paints, adhesives, and sealants.
In the Task 14 Report, TERA conducted a literature search on the production of three EWPs: Particleboard, hardwood plywood, and medium-density fiberboard.
• Lead in concentrations exceeding 100 ppm;
• Any of the specified elements that are included in the safety standard for children's toys, ASTM F963,
• Any of 10 specified phthalates in concentrations greater than 0.1 percent (1000 ppm), listed in Table 3.
TERA
TERA reviewed the literature to assess whether the specified EWPs might contain lead or one or more of the other elements at levels that exceed the ASTM solubility limits, or any of the specified phthalates in concentrations greater than the specified limits. TERA reported that no studies found lead, the ASTM F963 elements, or the specified phthalates in concentrations greater than their limits in particleboard, hardwood plywood, or medium-density fiberboard, that are unfinished and untreated, and made from virgin wood or pre-consumer wood waste.
In the Task 14 Report, TERA described an unfinished EWP as one that does not have any surface treatments applied at manufacture, such
The TERA report highlighted the potential for lead, the ASTM F963 elements, or the specified phthalates to be present in concentrations greater than those specified through the use of contaminated recycled material in EWPs made from recycled wood waste or EWPs that have post-manufacturing treatments or finishes. Recycled wood waste may be made from reclaimed or post-consumer wood waste. Post-consumer wood waste is described as wood waste that is comprised of materials that are recovered from their original use and subsequently used in a new product. Examples of this type of waste include recycled demolition wood, packaging materials such as pallets and crates, used wood from landscape care (
The three types of EWPs reviewed by TERA are discussed below.
Particleboard is a composite of wood chips, adhesives, and other additives pressed into a board. Adhesive formulations are used to bond wood chips, which are then formed into mats that are layered to create uniform boards in a range of dimensions. Particleboard is used widely in furniture making and other interior (or nonstructural) uses. The constituent parts of particleboard reported by TERA can include (by weight):
• Wood (60-99+ percent);
• Adhesive formulation (0-17 percent, with 5-11 percent most common)
• May include phenol-formaldehyde (uncommon but potential for use), urea-formaldehyde, melamine-urea-formaldehyde, polymeric methylene-diphenyl-diisocyanate (pMDI);
• Waxes (0.3-1 percent);
• Other additives (up to 2 percent); or
• Scavengers or additional unspecified materials.
TERA researched the possibility of lead, the ASTM F963 elements, or the specified phthalates, in concentrations greater than their specified limits in particleboard. TERA identified little information on measurements of lead and the ASTM F963 elements in particleboard and no studies that measured the specified phthalates. TERA identified two references where particleboard made from both untreated and copper chromate arsenic-(CCA) treated wood chips was tested. Arsenic and chromium were undetected in the particleboards made from virgin wood chips. However, the particleboard composed of 25 percent wood chips from reclaimed CCA-treated wood products contained 895 and 832 ppm of arsenic and chromium, respectively, without adversely affecting the mechanical performance of the board. Another study that discussed “recycled particleboard” was identified as wood waste obtained from a wood recycling plant.
Apart from the studies on particleboard made from wood waste that may contain post-consumer wood waste or post-manufacturing treatments, TERA reported that no studies found lead, the ASTM F963 elements, or the specified phthalates in concentrations greater than the specified limits in untreated and unfinished particleboard.
Plywood is a layered board of wood veneers where the layers have alternating, perpendicular wood grain directions. Less commonly, the board might have a core of other EWPs with wood veneers as the outer layers. Hardwood plywood, addressed in this report, is a type of plywood that is composed of angiosperms (
• Wood (75-99+ percent);
• Adhesive formulation (0.02-20 percent, with 1 percent to 5 percent most common)
• May include phenol-formaldehyde or phenol-resorcinol-formaldehyde (likely for use in structural plywood but potential for application to hardwood plywood), urea-formaldehyde, melamine-formaldehyde, or melamine-urea-formaldehyde, or polyvinyl acetate (PVAc); or
• Other additives (less than 2 percent).
TERA researched the possibility of lead, the ASTM F963 elements, or the specified phthalates in concentrations greater than those specified in hardwood plywood. TERA identified only one study that measured lead and the ASTM F963 elements in plywood and no studies that measured the specified phthalates. Concentrations of cadmium, chromium, and lead, were all less than the solubility limits, in “plain” plywood. In addition, because hardwood plywood is made from sheets of wood veneer, it is less likely to contain recycled wood content, unless it incorporates a core of some other EWP, such as particleboard or medium-density fiberboard.
Aside from the studies on recycled wood waste that may contain post-consumer wood waste or post-manufacturing treatments in a particleboard, medium-density fiberboard, or other EWP core, TERA reported that no studies found lead, the ASTM F963 elements, or the specified phthalates in concentrations greater than the specified limits in untreated and unfinished hardwood plywood. However, TERA identified research which indicated that polyvinyl acetate (PVAc) can be used as an adhesive system for hardwood plywood as discussed in section (d) below.
Medium-density fiberboard (MDF) is a composite of wood fibers, an adhesive formulation, and other additives pressed into a board. MDF is a similar product to particleboard, differing mostly due to the use of fiber rather than chips. It is used primarily in furniture and other interior (nonstructural) uses. The constituent parts of MDF reported by TERA can include (by weight):
• Wood (73-99+ percent);
• Adhesive formulation (0-25 percent with most common 5-12 percent);
• May include phenol-formaldehyde (uncommon, but potentially used for moisture resistance), urea-formaldehyde (most commonly identified), methylene-diphenyl-diisocyanate (pMDI), melamine-formaldehyde, or melamine-urea-formaldehyde;
• Waxes (less than 1 percent); or
• Other additives (10-30 percent).
TERA researched the possibility of lead, the ASTM F963 elements, or the specified phthalates in concentrations greater than those specified in MDF. TERA did not identify any references that reported the presence of lead, the ASTM F963 elements, or the specified phthalates in MDF made with virgin wood.
Aside from the studies on recycled wood waste that may contain post-consumer wood waste or post-manufacturing treatments, TERA reported that no studies found lead, the ASTM F963 elements, or the specified phthalates in concentrations greater than the specified limits in untreated and unfinished MDF.
Because few references were found directly addressing lead, the ASTM F963 elements, and the specified phthalates in EWPs, TERA also researched the constituent parts that could be used to manufacture EWPs, including wood and adhesives.
According to the manufacturing process information provided by TERA, virgin wood and wood residues are the main source of wood fiber used in North America to manufacture EWPs. Typically, these sources include low value logs, industrial wood residues, or scraps and trim from furniture and EWP production. For example, hardwood plywood requires the trunks of trees to obtain the thin layers of veneer used to construct a sheet. TERA relied on the Task 9 Report and Commission findings on unfinished and untreated wood (80 FR 78651 (Dec. 17, 2015)) to determine that untreated and unfinished wood from the trunks of trees do not contain lead or the ASTM F963 elements in concentrations greater than the specified solubility limits. TERA also noted that, although phthalates can be taken up by trees and plants, the concentrations are negligible and less than the specified limit (0.1 percent).
Although TERA reported that the majority of EWPs are manufactured with virgin wood or pre-consumer wood waste fiber or chips, the wood component also can originate from recycled material. For EWPs made from recycled wood waste that may contain post-consumer wood waste, the TERA report highlighted the potential for lead, the ASTM F963 elements, or the specified phthalates to be present in concentrations greater than those specified through the use of contaminated recycled material. The TERA report cited multiple examples of the use of reclaimed or post-consumer wood material used to produce EWPs, both domestically and internationally. Specifically, TERA found studies showing that reclaimed lumber and wood waste could contain a myriad of contaminants, such as surface treatments (
TERA also reviewed another study, based in Italy that evaluated the “recyclability” of used wood by conducting elemental analysis of wood residues from wood recycling plants using a handheld fast energy dispersive X-ray fluorescence spectroscopy (ED-XRF) device. TERA found that the study provided some indication of types and levels of contamination in various kinds of post-consumer wood waste. Elemental analysis results were compared to EU Community Ecolabel limits.
TERA concluded that, with an increased interest and use of post-consumer recycled materials in EWP production, potential contamination by the specified elements and phthalates must be considered. To ensure that EWPs made from used wood fibers do not contain ASTM F963 elements or phthalates the exceed the specified limits, TERA indicated that the materials would need to be sorted carefully and tested to be assured that they are not contaminated.
Adhesive formulations hold the wood chips, layers, or fibers together to make EWP mats and sheets. Some of the formulations use a metal catalyst during the curing process. TERA identified a number of references describing the presence of the ASTM F963 elements in adhesive formulations. However, TERA found very few references that would implicate EWPs. Although the use of barium was noted in multiple references, only one study appeared to be relevant to EWPs. This study suggested that barium, when used as a catalyst in an adhesive, could result in an EWP that exceeded the ASTM solubility level for barium.
Although many different adhesive formulations may be used in hardwood plywood, TERA noted that PVAc can be used as an adhesive system for hardwood plywood. The report cited sources (The Handbook of Adhesive Technology, USDA) that mentioned the use of some of the specified phthalates in PVAc adhesive formulations.
CPSC staff reviewed the TERA Task 9, 11 and 14 Reports. CPSC staff also examined TERA's source references to better understand the reports' findings. CPSC's review of TERA's Task 14 Report showed that there were few studies characterizing the content of EWPs, as manufactured, in relation to lead and the ASTM F963 elements, and no studies were found on the phthalates of interest. Where there were studies, staff's review of the TERA report showed there was no evidence that untreated and unfinished EWPs made from virgin wood or pre-consumer wood waste, using generally used manufacturing practices and materials, had content levels greater than the specified limits.
Staff finds that, based on the TERA reports, untreated and unfinished EPWs (particleboard, hardwood plywood, and medium-density fiberboard) made from virgin wood or pre-consumer wood waste, do not contain lead, or any of the specified elements in ASTM F963 that exceed the specified limits. In addition, with the exception of hardwood plywood that contains PVAc adhesive formulations, discussed further in this section, the specified EWPs do not contain any of the specified phthalates in concentrations greater than 0.1 percent.
The TERA Task 14 Report highlighted the risk of introducing materials contaminated with lead, the ASTM F963 elements, and the specified phthalates when using reclaimed or post-consumer wood waste to manufacture EWPs. Staff is aware that there is increasing interest in using recycled materials, rather than landfilling. Environmentally oriented initiatives encourage recycled wood content, especially in the European Union (E.U.). The E.U. Waste Framework Directive requires recycling or reuse of at least 70 percent of construction and demolition waste in member states by 2020.
Staff's review of TERA's reclaimed or post-consumer waste assessment in EWPs indicates that, although most manufacturing in the Americas currently does not use post-consumer wood waste as a constituent part, EWPs with post-consumer wood content are not only technologically feasible, but also are currently available. Although the majority of the post-consumer wood waste used to manufacture EWPs is “clean,” consisting of wood pallets, spools, or shipping crates, reclaimed materials could be contaminated with paint, coatings, or chemical treatments. There are some standards (
Staff notes that manufacturers do have an incentive to avoid contamination of EWPs because the addition of recycled materials could be detrimental to manufacturing equipment or the finished product's performance. Surface coatings, such as paint or stains, metals from nails or fasteners, adhesive formulations, such as resins or glues, and other non-wood content can potentially damage equipment, stop a production line, or adversely impact the uniformity of the product. However, staff is not aware of any current manufacturer processing protocols that would keep unwanted contaminants out of EWP manufacturing. Because of the contamination issues identified, the staff does not have a high degree of assurance that EWPs made from post-consumer wood waste are compliant with sections 101, 106, or 108 of the CPSIA at this time.
Staff's review of the Task 14 Report shows that most consumer products made from EWPs will have some additional treatments or finishes that are applied to the EWPs after their manufacture. TERA's report identified that certain surface treatments (
Staff's review shows that post-manufacturing treatments or finishes made be applied to EWPs manufactured from virgin or pre-consumer wood waste, as well as EWPs manufactured from post-consumer wood waste. Such treatments or finishes may include paint or similar surface coating materials, flame retardants, rot resistant finishes, wood glue, or metal fasteners. The TERA report indicated that coatings, finishes, and chemical treatments, such flame-retardant coatings or rot resistant finishes, are a potential source of phthalates or the ASTM F963 elements. Staff's review of EWPs that have post-manufacturing treatments or finishes shows that there is potential for lead, the ASTM F963 elements, or the specified phthalates to be present in concentrations greater than at the specified levels. Unless a post-manufacture treatment or finish has been determined by the CPSC to be compliant with sections 101, 106, or 108 of the CPSIA,
The Task 14 Report generally found that there was little evidence to suggest that the ASTM F963 elements are likely to be present in any of the commonly used adhesives in concentrations greater than the ASTM solubility limits. Staff notes, that although one study suggested that barium, when used as a catalyst in an adhesive, could result in an EWP that exceeded the ASTM solubility level for barium, this method does not appear to be used currently in EWP production.
Staff's review of the Task 11 Report indicates that phthalates could be used in some adhesive formulations, including in PVAc adhesives, such as wood or craft glues. In addition, the Task 14 Report identified the adhesive formulations used in the manufacture of EWPs and found that one, PVAc, could contain at least one of the specified phthalates. TERA also reported that PVAc could be used in hardwood plywood manufacturing. However, TERA was unable to identify whether the specific PVAc adhesive formulations used currently in the manufacture of hardwood plywood contained any of the specified phthalates in concentrations greater than the specified limits.
CPSC staff research indicates that PVAc may be associated with the manufacture of hardwood plywood, consistent with TERA's finding. One manufacturer of EWP adhesive formulations provided information through a contact at the USDA Forest Products Laboratory. The manufacturer confirmed that, while current formulations no longer use phthalates, PVAc adhesive formulations they manufacture contained phthalates in the past. The manufacturer also stated that there is greater use of PVAc adhesive formulations in hardwood plywood
As discussed in section A.1. of the preamble, section 14(a)(2) of the CPSA requires third party testing for children's products that are subject to a children's product safety rule. 15 U.S.C. 2063(a)(2). Children's products must comply with the lead limits in section 101 of the CPSIA. 15 U.S.C. 1278a. Children's toys must comply with the solubility limits for elements under the ASTM toy standard in section 106 of the CPSIA. 15 U.S.C. 2056b. Children's toys and child care articles must comply with the phthalates prohibitions in section 108 of the CPSIA. 15 U.S.C. 2057c. In response to statutory direction, the Commission has investigated approaches that would reduce the burden of third party testing while also assuring compliance with CPSC requirements. As part of that endeavor, the Commission has considered whether certain materials used in children's products, children's toys, and child care articles would not require third party testing.
To issue a determination that an EWP does not require third party testing, the Commission must have sufficient evidence to conclude that the product consistently complies with the CPSC requirements to which the EWP is subject so that third party testing is unnecessary to provide a high degree of assurance of compliance. Under 16 CFR part 1107 section 1107.2, “a high degree of assurance” is defined as “an evidence-based demonstration of consistent performance of a product regarding compliance based on knowledge of a product and its manufacture.”
For accessible component parts of children's products, children's toys, and child care articles subject to sections 101, 106, and 108 of the CPSIA, compliance to the specified content limits is always required, irrespective of any testing exemptions. Thus, a manufacturer or importer who certifies a children's product, toy or child care article, must assure the product's compliance. The presence of lead, the ASTM F963 elements, or the specified phthalates does not have to be intended to require compliance. The presence of these chemicals, whether for any functional purpose, as a trace material, or as a contaminant, must be in concentrations less than the specified content or solubility limits for the material to be compliant. Additionally, the manufacturer or importer must have a high degree of assurance that the product has not been adulterated or contaminated to an extent that would render it noncompliant. For example, if a manufacturer or importer is relying on a determination that an EWP does not contain lead, ASTM F963 elements, or specified phthalates in concentrations greater than the specified limits in a children's product, children's toy, or child care article, the manufacturer must ensure that the EWP is one on which a determination has been made.
Furthermore, under the proposed rule, any determinations that are made on EWPs are limited to unfinished and untreated EWPs made from virgin wood or pre-consumer wood waste. Children's products, children's toys, and child care articles made from these EWPs may have other materials that are applied to or added on to the EWP after it is manufactured, such as treatments and finishes. Such component parts fall outside of the scope of the proposed determinations and would be subject to third party testing requirements, unless the component part has a separate determination which does not require third-party testing for certification purposes. Finally, even if a determination is in effect and third party testing is not required, a certifier must still issue a certificate.
The three engineered woods for which the determinations are proposed are: Particleboard, hardwood plywood, and medium-density fiberboard. Based on staff's review of the TERA reports as discussed in section C. of the preamble, the Commission is proposing determinations that there is a high degree of assurance that these three EWPs in an untreated and unfinished state made from virgin or pre-consumer wood waste will not contain lead, the ASTM F963 elements, or the specified phthalates in excess of allowable levels. Specifically, the Commission is proposing determinations that would find that particleboard and MDF that is untreated and unfinished and made with virgin wood or pre-consumer wood waste, would not contain lead, the ASTM F963 elements, or the specified phthalates (DEHP, DBP, BBP, DINP, DIDP, or DnOP) in concentrations greater than their specified limits.
In addition, with the exception of hardwood plywood that contains PVAc adhesive formulations, untreated and unfinished hardwood plywood made with virgin wood or pre-consumer wood waste would be determined not to contain lead, the ASTM F963 elements, and the specified phthalates in concentrations greater than their specified limits.
These determinations would mean that, for the specified EWPs, third party testing is not required to assure compliance with sections 101, 106, and 108 of the CPSIA. The Commission proposes to make these determinations to reduce the third party testing burden on children's product certifiers while continuing to assure compliance.
Section 3 of the CPSIA grants the Commission general rulemaking authority to issue regulations, as necessary, to implement the CPSIA. Public Law 110-314, sec. 3, Aug. 14, 2008. Section 14 of the CPSA, which was amended by the CPSIA, requires third party testing for children's products subject to a children's product safety rule. 15 U.S.C. 2063(a)(2). Section 14(d)(3)(B) of the CPSA, as amended by Public Law 112-28, gives the Commission the authority to “prescribe new or revised third party testing regulations if it determines that such regulations will reduce third party testing costs consistent with assuring compliance with the applicable consumer product safety rules, bans, standards, and regulations.”
The proposed determinations would relieve the three specified EWPs from the third party testing requirement of section 14 of the CPSA for purposes of supporting the required certification. However, the proposed determinations would not be applicable to any other EWPs beyond those listed in the proposed rule. Moreover, the proposed determinations are not applicable to EWPs that are not made of virgin wood or pre-consumer wood waste, or to
This proposed rule would create a new Part 1252 for “Children's Products, Children's toys, and Child Care Articles: Determinations Regarding Lead, ASTM F963 Elements, and Phthalates for Engineered Wood Products.” The proposed rule would determine that the specified three EWPs do not contain lead in concentrations exceeding 100 ppm, any of the ASTM F963 elements in excess of specified concentrations, and any of the statutorily prohibited phthalates (DEHP, DBP, BBP, DINP, DIDP, DnOP) in concentrations greater than 0.1 percent. As discussed in section A.4. of the preamble, the agency is currently involved in rulemaking to determine whether to continue the interim prohibitions in section 108 and whether to prohibit any other phthalates in children's toys or child care articles. TERA's examination covered all phthalates that are subject to the current permanent and interim prohibitions, as well as the additional phthalates the Commission proposed restricting in the Phthalates NPR. If the Commission issues a final rule in the phthalates rulemaking before finalizing this determinations rulemaking, the final determinations rule for EPWs would cover the same phthalates restricted by the final phthalates rule.
Section 1252.1(a) of the proposed rule explains the statutorily-created requirements that limit lead in children's products under the CPSIA and the third party testing requirements for children's products.
Section 1252.1(b) of the proposed rule explains the statutorily-created requirements for limiting the ASTM F963 elements in children's toys under the CPSIA and the third party testing requirements for children's toys.
Section 1252.1(c) of the proposed rule explains the statutorily-created requirements limiting phthalates for children's toys and child care articles under the CPSIA and the third party testing requirements for children's toys and child care articles.
Section 1252.2 of the proposed rule would provide definitions that apply to part 1252.
Section 1252.3(a) of the proposed rule would establish the Commission's determinations that specified EWPs do not exceed the lead content limits with a high degree of assurance as that term is defined in 16 CFR part 1107.
Section 1252.3(b) of the proposed rule would establish the Commission's determinations that specified EWPs do not exceed the solubility limits for ASTM F963 elements with a high degree of assurance as that term is defined in 16 CFR part 1107.
Section 1252.3(c) of the proposed rule would establish the Commission's determinations that specified EWPs do not exceed the phthalates content limits, with the exception of hardwood plywood containing PVAc, with a high degree of assurance as that term is defined in 16 CFR part 1107.
Section 1252.3(d) of the proposed rule states that accessible component parts of children's products, children's toys, and child care articles made with the specified EWPs, are not required to be third party tested pursuant to section 14(a)(2) of the CPSA and 16 CFR part 1107.
Section 1252.3(e) of the proposed rule states that accessible component parts of children's products, children's toys, and child care articles that are not specifically listed in the determinations in proposed § 1252.3(a) through (c) are required to be third party tested pursuant to section 14(a)(2) of the CPSA and 16 CFR part 1107.
The Commission seeks comments on all aspects of the proposed rule. In particular, comments of the following topics are welcome.
• Are there any data or examples that indicate that the EWPs identified in the proposed rule can and do contain lead, the ASTM F963 elements, or prohibited phthalates at levels that are not compliant? Please provide data supporting your assertion.
• The TERA Task 14 Report identified the use of some of the ASTM F963 elements as catalysts in adhesive formulations used to manufacture EWPs. Please provide any information that supports or refutes the claim that these elements will not be present in concentrations greater than their specified limits in EWPs.
• CPSC staff has heard from a manufacturer of PVAc adhesive formulations used in the manufacture of hardwood plywood that, although phthalates are no longer used in domestic production, they were once used. What phthalates were used in PVAc in the past? Could any of the specified phthalates be used? Why or why not? Are any of the specified phthalates used in domestic or international manufacturing of EWPs? Why or why not?
• How can one determine if a hardwood plywood sheet contains a PVAc adhesive system? How can one determine whether a PVAc adhesive system used in the manufacture of hardwood plywood contains a specified phthalate in concentrations greater than the specified limits? Can this type of information be found on labels, SDSs, company Web sites, or in some other way?
• Other than PVAc, are there additional adhesive formulations used in the manufacture of EWPs that could contain the specified phthalates in concentrations greater than those specified? If yes, what phthalates are used and at what concentration?
• Are there any post-consumer recycled EWPs that consistently comply with the limits for lead, ASTM F963 elements, or prohibited phthalates?
• Please describe the methods used to determine whether post-consumer recycled material is used in the manufacture of EWPs. How can this type of information be found (on labels, SDSs, company Web sites, or in some other way)?
• In addition to particleboard, hardwood plywood, and medium-density fiberboard, are there other EWPs widely used in children's products, children's toys, and child care articles that have not been identified in the proposed rule that do not, and will not, contain lead, the ASTM F963 elements, or prohibited phthalates in concentrations greater than the mandatory limits? Please provide supporting data.
The Administrative Procedure Act (APA) generally requires that a substantive rule must be published not less than 30 days before its effective date. 5 U.S.C. 553(d)(1). Because the proposed rule would provide relief from existing testing requirements under the CPSIA, the Commission proposes a 30 day effective date for the final rule.
The Regulatory Flexibility Act (RFA) requires that agencies review a proposed rule for the rule's potential economic impact on small entities, including small businesses. Section 603 of the RFA generally requires that agencies
The proposed rule would apply to small entities that manufacture or import children's products, children's toys, and child care articles that contain particleboard, hardwood plywood, or medium-density fiberboard. The number of domestic manufacturers classified in the North American Industrial Classification System (NAICS) categories that could manufacture children's products, children's toys, or child care articles that may contain accessible particleboard, hardwood plywood, or medium-density fiberboard component parts and would be responsible for the certification of these products may include 7,059 firms that can be categorized as small.
The number of domestic wholesalers by NAICS code that could distribute children's products, children's toys, or child care articles that may contain accessible particleboard, hardwood plywood, or medium-density fiberboard component parts may include 26,113 firms that can be categorized as small. Of these, 15,947 have less than 5 employees. Wholesalers who obtain their products strictly from domestic manufacturers or from other wholesalers would not be impacted by the rule because the manufacturer or importer would be responsible for certifying the products. Although importers are responsible for the certification of the children's products that they import, they may rely upon third party testing performed by their foreign suppliers for purposes of certification. The number of small wholesalers that import children's products, children's toys, or child care articles as opposed to obtaining their product from domestic sources is not known. Also unknown is the number of small importers that must obtain or pay for the third party testing of their products.
The number of domestic retailers by NAICS code that could sell children's products, children's toys, or child care articles that may contain accessible particleboard, hardwood plywood, or medium-density fiberboard component parts may include 49,358 firms that can be categorized as small. Of these, 27,506 have less than 5 employees. Although there are almost 50,000 retailers in the NAICS categories, the only retailers that would be directly impacted by the proposed rule are those that import children's products themselves. Retailers that obtain all of their products from domestic manufacturers or wholesalers will not be directly impacted by the rule because the manufacturers or wholesalers would be responsible for certifying the products.
Although comprehensive estimates of the number of children's products, children's toys, and child care articles that contain component parts made from the specified engineered woods are not available, there is evidence that these engineered woods are used in children's furniture, sporting equipment, children's toys, and some musical instruments. Based on the number of domestic toy manufacturers that are classified as small businesses by the U.S. Bureau of the Census and evidence that the specified engineered woods are used in children's products, children's toys, and child care articles, the Commission believes a substantial number of small entities would be impacted by this regulation.
The proposed rule would determine that there is a high degree of assurance that the certain EWPs be determined not to contain lead, the ASTM F963 elements, and the specified phthalates (DEHP, DBP, BBP, DINP, DIDP, or DnOP) in concentrations greater than their specified limits. Under this proposed determination, manufacturers, importers, and private labelers of children's products, children's toys, and child care articles that have accessible component parts that consist of these engineered woods would not require third party testing for certification that these components comply with the lead, ASTM F963 elements, or phthalate requirements.
The proposed rule would not impose any reporting, recordkeeping, or other compliance requirements on small entities. In fact, because the proposed rule would eliminate a testing requirement, there would be a small reduction in some of the recordkeeping burden under 16 CFR parts 1107 and 1109 because manufacturers would no longer have to maintain records of third party tests for the component parts manufactured from these engineered woods for lead, the ASTM F963 elements, or the specified phthalates.
The impact of the determinations on small businesses would be to reduce the burden of third party testing for the content of lead, the ASTM F963 elements, and the specified phthalates and would be expected to be entirely beneficial. The cost of lead testing ranges from $50 to more than $100 per component through Inductively Coupled Plasma testing (ICP). If one uses X-ray fluorescence spectrometry (XRF), which is an acceptable method for certification of third-party testing for lead content, the costs can be greatly reduced to approximately $5 per component part. If a component part made with one of the specified engineered woods is painted, the component part would be exempt from the third party testing requirement, but the paint would still require lead testing.
Based on published invoices and price lists, the cost of a third party test for the ASTM F963 elements ranges from around $60 in China, up to around $190 in the United States using ICP. This cost can be greatly reduced with the use of high definition X-ray fluorescence spectrometry (HDXRF), which is an acceptable method for certification of third-party testing for the presence of the ASTM F963 elements. The cost can be reduced to about $40 per component. It should be noted that lead is one of the ASTM F963 elements, so this testing would also cover the cost of lead testing for component parts.
The cost of phthalate testing is relatively high: Between about $125 and $350 per component part, depending upon where the testing is conducted and any discounts that are applicable. Because one product might have multiple component parts that require testing, the cost of testing a single product for phthalates could exceed $1,000 in some cases. Moreover, more than one sample might have to be tested to provide a high degree of assurance of
On the other hand, the benefit of making the determinations could be less than might be expected. For example, some firms might have been able to substantially reduce their third party testing costs by using component part testing as allowed under 16 CFR 1109, so the marginal benefit that might be derived from making the determinations might be low. Also, some firms have reduced their testing costs by using XRF or HDXRF technology, which is less expensive than ICP, and would reduce the marginal benefit of these determinations. The Commission seeks public comments on the potential impact of the proposed rule on small entities. Comments are especially welcome on the following topics:
• The extent to which particleboard, hardwood plywood, and medium-density fiberboard are used in children's products, children's toys, and child care articles, especially those manufactured or imported by small firms;
• The potential reduction in third party testing costs that might be provided by the Commission making the determinations, including the extent to which component part testing is already being used and the current cost of testing components made from these engineered woods for compliance with the lead, ASTM F963 elements, and phthalate requirements;
• Any situations or conditions in the proposed rule that would make it difficult to make use of the determinations to reduce third party testing costs; and
• Although the Commission expects that the impact of the proposed rule will be entirely beneficial, any potential negative impacts of the proposed rule.
Under section 603(c) of the RFA, an initial regulatory flexibility analysis should “contain a description of any significant alternatives to the proposed rule which accomplish the stated objectives of the applicable statutes and which minimize any significant impact of the proposed rule on small entities.” Because the proposed rule is intended to reduce the cost of third party testing on small businesses and will not impose any additional burden, the Commission did not consider alternatives to the proposed rule that would reduce the burden of this rule on small businesses.
The Commission's regulations provide a categorical exclusion for Commission rules from any requirement to prepare an environmental assessment or an environmental impact statement because they “have little or no potential for affecting the human environment.” 16 CFR 1021.5(c)(2). This rule falls within the categorical exclusion, so no environmental assessment or environmental impact statement is required. The Commission's regulations state that safety standards for products normally have little or no potential for affecting the human environment. 16 CFR 1021.5(c)(1). Nothing in this rule alters that expectation.
Business and industry, Consumer protection, Imports, Infants and children, Product testing and certification, Toys.
For the reasons stated in the preamble, the Commission proposes to amend title 16 of the CFR to add part 1252 to read as follows:
Sec. 3, Pub. L. 110-314, 122 Stat. 3016; 15 U.S.C. 2063(d)(3)(B).
(a) Section 101(a) of the Consumer Product Safety Improvement Act of 2008 (CPSIA) provides that any children's product, material, or component part or a children's product must comply with a lead content limit that does not exceed 100 parts per million. Materials used in children's products subject to section 101 of the CPSIA must comply with the third party testing requirements of section 14(a)(2) of the Consumer Product Safety Act (CPSA), unless listed in 16 CFR 1500.91.
(b) Section 106 of the CPSIA made provisions of ASTM F963, Consumer Product Safety Specifications for Toy Safety, a mandatory consumer product safety standard. Among the mandated provisions is section 4.3.5 of ASTM F963 which requires that surface coating materials and accessible substrates of children's toys that can be sucked, mouthed, or ingested, must comply with solubility limits that the toy standard establishes for eight elements. Materials used in children's toys subject to section 4.3.5 of the toy standard must comply with the third party testing requirements of section 14(a)(2) of the CPSA, unless listed in 16 CFR 1251.2.
(c) Section 108(a) of the CPSIA permanently prohibits any children's toy or child care article that contains concentrations of more than 0.1 percent of di-(2-ethylhexl) phthalate (DEHP), dibutyl phthalate (DBP), or benzyl butyl phthalate (BBP). Section 108(b)(1) of the CPSIA prohibits on an interim basis any children's toy that can be placed in a child's mouth or child care article that contains concentrations of more than 0.1 percent of diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), or di-n-octyl phthalate (DnOP). Materials used in children's toys and child care articles subject to section 108(a) and (b)(1) of the CPSIA must comply with the third party testing requirements of section 14(a)(2) of the CPSA, unless listed in 16 CFR part 1308.
In addition to the definitions given in sections 101, 106, and 108 of the CPSIA, the following definitions apply for this part 1252.
(a)
(b)
(c)
(d)
(e)
(a) The following engineered wood products do not exceed the lead content limits with a high degree of assurance as that term is defined in 16 CFR part 1107:
(i) Particleboard that is untreated and unfinished made from virgin wood or pre-consumer wood waste;
(ii) Hardwood plywood that is untreated and unfinished made from virgin wood or pre-consumer wood waste; and
(iii) Medium-density fiberboard that is untreated and unfinished made from virgin wood or pre-consumer wood waste.
(b) The following engineered wood products do not exceed the ASTM F963 elements solubility limits set forth in 16 CFR part 1250 with a high degree of assurance as that term is defined in 16 CFR part 1107:
(i) Particleboard that is untreated and unfinished made from virgin wood or pre-consumer wood waste;
(ii) Hardwood plywood that is untreated and unfinished made from virgin wood or pre-consumer wood waste; and
(iii) Medium-density fiberboard that is untreated and unfinished made from virgin wood or pre-consumer wood waste.
(c) The following engineered wood products do not exceed the phthalates content limits with a high degree of assurance as that term is defined in 16 CFR part 1107:
(i) Particleboard that is untreated and unfinished made from virgin wood or pre-consumer wood waste;
(ii) Hardwood plywood that is untreated and unfinished made from virgin wood or pre-consumer wood waste and does not contain PVAc adhesive formulations; and
(iii) Medium-density fiberboard that is untreated and unfinished made from virgin wood or pre-consumer wood waste.
(d) Accessible component parts of children's products, children's toys, and child care articles made with EWPs, listed in paragraphs (a) through (c) of this section are not required to be third party tested pursuant to section 14(a)(2) of the CPSA and 16 CFR part 1107.
(e) Accessible component parts of children's products, children's toys, and child care articles made with engineered wood products not listed in paragraphs (a)-(c) of this section are required to be third party tested pursuant to section 14(a)(2) of the CPSA and 16 CFR part 1107.
Food and Drug Administration, HHS.
Proposed rule; correction.
The Food and Drug Administration (FDA, the Agency, or we) is correcting a proposed rule that published in the
October 13, 2017.
Samir Assar, Center for Food Safety and Applied Nutrition (HFS-317), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-1636.
In the
In FR Doc. 2017-19434, appearing on page 42963 in the
On page 42967, in the third column, the paragraph above the table is corrected to include the fourth sentence as follows: “There would be a reduction in benefits associated with extending the compliance dates as described previously. Consumers eating non-sprout covered produce would not enjoy the potential health benefits (
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking by cross-reference to temporary regulations.
In this issue of the
Written or electronic comments and requests for a public hearing must be received by December 5, 2017.
Send submissions to: CC:PA:LPD:PR (REG-129631-17), Room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered to: CC:PA:LPD:PR (REG-129631-17), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC 20224. Alternatively, taxpayers may submit comments electronically via the Federal eRulemaking Portal at
Concerning the regulations, Karen Levin at 202-317-5500; concerning submissions of comments, Regina Johnson at 202-317-6901 (not toll-free numbers).
The temporary regulations published elsewhere in this issue of the
Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required.
For the applicability of the Regulatory Flexibility Act (5 U.S.C. Chapter 6), please see section VI.C. of the temporary regulations.
Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on the regulations' impact on small businesses.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. Comments are specifically requested on the clarity of the proposed regulations and how they may be made easier to understand. All comments will be available for public inspection and copying. A public hearing may be scheduled if requested in writing by a person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the hearing will be published in the
The principal author of these proposed regulations is Karen Levin, Office of the Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities), IRS. The proposed regulations, as well as the temporary regulations, have been developed in coordination with personnel from the U.S. Department of Labor and the U.S. Department of Health and Human Services.
Excise taxes, Health care, Health insurance, Pensions, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 54 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking by cross-reference to temporary regulations.
In this issue of the
Written or electronic comments and requests for a public hearing must be received by December 5, 2017.
Send submissions to: CC:PA:LPD:PR (REG-115615-17), Room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered to: CC:PA:LPD:PR (REG-115615-17), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC 20224. Alternatively, taxpayers may submit comments electronically via the Federal eRulemaking Portal at
Concerning the regulations, Karen Levin at 202-317-5500; concerning submissions of comments, Regina Johnson at 202-317-6901 (not toll-free numbers).
The temporary regulations published elsewhere in this issue of the
Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required.
For the applicability of the Regulatory Flexibility Act (5 U.S.C. Chapter 6), please see section VI.C. of the temporary regulations.
Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on the regulations' impact on small businesses.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. Comments are specifically requested on the clarity of the proposed regulations and how they may be made easier to understand. All comments will be available for public inspection and copying. A public hearing may be scheduled if requested in writing by a person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the hearing will be published in the
The principal author of these proposed regulations is Karen Levin, Office of the Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities), IRS. The proposed regulations, as well as the temporary regulations, have been developed in coordination with personnel from the U.S. Department of Labor and the U.S. Department of Health and Human Services.
Excise taxes, Health care, Health insurance, Pensions, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 54 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
[The text of proposed § 54.9815-2713 is the same as the text of § 54.9815-2713T(a) through (d) published elsewhere in this issue of the
[The text of proposed § 54.9815-2713A is the same as the text of § 54.9815-2713AT(a) through (f)
Postal Service
Proposed rule.
On October 3, 2017, the Postal Service (USPS) filed a notice of mailing services price adjustments with the Postal Regulatory Commission (PRC). The proposed price adjustments are scheduled to become effective on January 21, 2018. This proposed rule contains the revisions to
Submit comments on or before November 13, 2017.
Mail or deliver written comments to the manager, Product Classification, U.S. Postal Service, 475 L'Enfant Plaza SW., Room 4446, Washington, DC 20260-5015. If sending comments by email, include the name and address of the commenter and send to
Jacqueline Erwin at (202) 268-2158, or Lizbeth Dobbins at (202) 268-3789.
Proposed prices will be available under Docket No. R2018-1 on the Postal Regulatory Commission's Web site at
Currently, the USPS allows authorized mailers to combine USPS Marketing Mail flats and Periodicals flats in a single mailing. Each mailpiece must meet the standards for the mail class, and Periodicals publications must be authorized or pending original or additional entry at the office of mailing. Mailers must prepare pieces in bundles on pallets.
The USPS proposes allowing Bound Printed Matter (BPM) Flats up to 24 ounces to be included in the current comailing structure which includes USPS Marketing Mail flats and Periodicals flats up to 24 ounces entered at a Destination Sectional Center Facility, (DSCF) or a Destination Delivery Unit, (DDU). The maximum weight of comailed BPM and Periodicals flats is 24 ounces per piece within the same bundle. Pieces within the bundle must be in line-of-travel, LOT, sequence. These bundles must not contain more than half of the heavier pieces. Note that comail bundles which contain all three classes of mail assume the service standard of USPS Marketing Mail. If bundles are made only of Periodicals and Bound Printed Matter Flats, then the service standard adopted will be the lesser of the two. This proposal includes CoPal, which allows the mixing of class-specific, bundles on the same pallet, which can also include mixed class bundles (comail). If BPM bundles are included on the same pallet, then this CoPal pallet must be DSCF or DDU entry only.
Currently, the pallet preparation requirements for Carrier Route pallets in Non-FSS zones allows merged 5-digit scheme pallets as the first required sortation, followed by 5-digit scheme carrier routes, 5-digit scheme, and merged 5-digit pallets.
The USPS is considering updating the order of pallet preparation, to increase the number of pure CR Pallets (as opposed to 5-Digit Merged Pallets) presented in non-FSS zones. This will be accomplished by moving 5-digit Scheme Carrier Route pallets ahead of Merged 5-digit Scheme pallets. This includes both USPS Marketing Mail and Periodicals. This change would increase the amount of mail eligible for a CR pallet discount, resulting in eligibility for lower prices on the mail.
The Postal Service is proposing a change to all zone charts to reflect Priority Mail to APO/FPO/DPO destinations will only be processed at the Chicago ISC.
Administrative practice and procedure, Postal Service.
Although we are exempt from the notice and comment requirements of the Administrative Procedure Act (5 U.S.C. 553(b), (c)) regarding proposed rulemaking by 39 U.S.C. 410(a), we invite public comments on the following proposed revisions to
5 U.S.C. 552(a); 13 U.S.C. 301-307; 18 U.S.C. 1692-1737; 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3622, 3626, 3632, 3633, and 5001.
* * * When sortation under this option is performed, mailers must prepare all 5-digit scheme carrier routes, merged 5-digit scheme, 5-digit carrier routes, and merged 5-digit pallets that are possible in the mailing based on the volume of mail to the destination using
a.
1. Line 1: Use L001, Column B.
2. Line 2: “PER” or “NEWS” as applicable; followed by “FLTS”; followed by “CR-RTS SCHEME.”
b.
1. Line 1: Use L001, Column B.
2. Line 2: “PER” or “NEWS” as applicable; followed by “FLTS”; followed by “CR/5D SCHEME.”
c.
1. Line 1: Use city, state, and 5-digit ZIP Code destination (see 8.6.4 for military mail).
2. Line 2: “PER” or “NEWS” as applicable; followed by “FLTS” followed by “CARRIER ROUTES” or “CR-RTS.”
* * * After completing required carrier route pallets, mailers must prepare all merged 5-digit scheme, 5-digit scheme carrier routes, and merged 5-digit pallets that are possible in the mailing based on the volume of mail to the destination using L001 and/or the City State Product. * * *
a.
1. Line 1: Use L001, Column B.
2. Line 2: “MKT FLTS CR-RTS SCHEME.”
b.
1. Line 1: Use L001, Column B.
2. Line 2: “MKT FLTS CR/5D SCHEME.”
c.
1. Line 1: Use city, state, and 5-digit ZIP Code destination (see 8.6.4 for military mail).
2. Line 2: “MKT FLTS,” followed by “CARRIER ROUTES” or “CR-RTS.”
* * * Mailers must prepare all 5-digit scheme carrier routes, merged 5-digit scheme, 5-digit scheme, 5-digit carrier routes and merged 5-digit pallets that are possible in the mailing based on the volume of mail to the destination using L001 and the 5% threshold, as applicable. * * *
Prepare and label pallets as follows:
a.
1. Line 1: Kuse L001, Column B.
2. Line 2: “PER” or “NEWS” as applicable; followed by “FLTS” or “IRREG” as applicable; followed by “CR-RTS SCHEME.”
b.
1. Line 1: Use L001, Column B.
Line 2: “PER” or “NEWS” as applicable; followed by “FLTS” or “IRREG” as applicable; followed by “CR/5D SCHEME.”
d.
1. Line 1: Use city, state, and 5-digit ZIP Code destination (see 8.6.4 for military mail).
2. Line 2: “PER” or “NEWS” as applicable; followed by “FLTS” or “IRREG” as applicable; followed by “CARRIER ROUTES” or “CR-RTS.”
* * * Mailers must prepare all 5-digit scheme carrier routes, merged 5-digit scheme, 5-digit carrier routes and merged 5-digit pallets that are possible in the mailing based on the volume of mail to the destination using L001 and the 5% threshold. * * *
a.
1. Line 1: Use L001, Column B.
2. Line 2: “MKT FLTS CR-RTS SCHEME.”
b.
1. Line 1: Use L001, Column B.
Line 2: “MKT FLTS CR/5D SCHEME.”
c.
1. Line 1: Use city, state, and 5-digit ZIP Code destination (see 8.6.4 for military mail).
2. Line 2: “MKT FLTS”; followed by “CARRIER ROUTES” or “CR-RTS.”
* * * Mailers must prepare all 5-digit scheme carrier routes, merged 5-digit scheme, 5-digit scheme, 5-digit carrier routes, and merged 5-digit pallets that are possible in the mailing based on the volume of mail to the destination (8.0) using L001, the City State Product, and the 5% threshold (13.1.4), as applicable. * * * Prepare and label pallets as follows:
a.
Labeling:
1. Line 1: Use L001, Column B.
2. Line 2: “PER” or “NEWS” as applicable; followed by “FLTS” or “IRREG” as applicable; and followed by “CR-RTS SCHEME.”
d.
1. Line 1: Use city, state, and 5-digit ZIP Code destination (see 8.6.4 for military mail).
2. Line 2: “PER” or “NEWS” as applicable; followed by “FLTS” or “IRREG” as applicable; and followed by “CARRIER ROUTES” or “CR-RTS.”
* * * Mailers must prepare all 5-digit scheme carrier routes, merged 5-digit scheme, and merged 5-digit pallets that are possible in the mailing based on the volume of mail to the destination using L001, the City State Product, and the 5% threshold. Mailers must label pallets according to the Line 1 and Line 2 information listed below and under 8.6.
a.
1. Line 1: Use L001, Column B.
2. Line 2: “MKT FLTS CR-RTS SCHEME.”
c.
1. Line 1: Use city, state, and 5-digit ZIP Code destination (see 8.6.4 for military mail).
2. Line 2: “MKT FLTS,” followed by “CARRIER ROUTES or “CR-RTS.”
Authorized mailers may combine USPS Marketing Mail flats, Bound Printed Matter flats and Periodicals flats in a single mailing as follows:
a. Each mailpiece must meet the standards in 240 for USPS Marketing Mail, 260 for Bound Printed Matter, and 207 for Periodicals. Periodicals publications must be authorized or pending original or additional entry at the office of mailing.
h. Each comailing containing Bound Printed Matter Flats must:
1. Be entered at a Destination Sectional Center Facility, (DSCF) or a Destination Delivery Unit, (DDU)
2. Not exceed the maximum weight of 24 ounces per piece within the same bundle, when comailed with Periodicals pieces. The maximum number of heavier pieces would be no more than half of each bundle.
The Postal Service processes combined mailings of USPS Marketing Mail flats, Bound Printed Matter Flats and Periodicals flats to the service standards of USPS Marketing Mail.
Postage for all USPS Marketing Mail and Bound Printed Matter pieces must be paid with permit imprint using a special postage payment system in 2.0 through 4.0 at the Post Office location serving the mailer`s plant. * * *
* * * In addition, mailers must provide:
f. When requested, a copy of a notification document signed and dated by the Periodicals publisher, acknowledging their participation in a combined mailing of USPS Marketing Mail, Bound Printed Matter Mail and Periodicals and the potential for their mailpieces to receive deferred USPS handling.
A mailer must submit a written request to the manager, Business Mailer Support (see 608.8.1 for address) to combine mailings of USPS Marketing Mail flats, Bound Printed Matter flats, and Periodicals flats. * * *
Apply prices based on the standards in 240 for USPS Marketing Mail and 260 for Bound Printed Matter flats. * * *
Each USPS Marketing Mail, Bound Printed Matter and Periodicals mailpiece prepared under a combined mailing of USPS Marketing Mail flats, Bound Printed Matter and Periodicals flats must be identified as being part of a mixed class mailing through the use of an optional endorsement line (OEL) in accordance with the standards in 203.7.1.8. “Post-print consolidators may use the following alternative:
a. Mailings of USPS Marketing and Bound Printed Matter, using Permit Imprint, may include a “Co-Class” marking.
Each USPS Marketing Mail, Bound Printer Matter, and Periodicals mailpiece prepared under a combined mailing of USPS Marketing Mail flats, Bound Printed Matter flats, and Periodicals flats must be identified as being part of a mixed class mailing through the use of an optional endorsement line (OEL) in accordance with standards in 203.7.1.8. “Post-print consolidators may use the following alternative:
a. Mailings of USPS Marketing and Bound Printed Matter, using Permit Imprint, may include a “Co-Class” marking.
When combining USPS Marketing Mail, Bound Printed Matter and Periodicals flats within the same bundle or combining bundles of USPS Marketing Mail flats, Bound Printed Matter flats and bundles of Periodicals flats on pallets, bundles must be placed on pallets. Preparation, sequence and labeling:
a.
2. Line 2: “MKT/BPM/PER FLTS,” as applicable; * * *
b.
2. Line 2: “MKT/BPM/PER FLTS CR/5D,” as applicable * * *
c.
2. Line 2: “MKT/BPM/PER FLTS,” as applicable; * * *
d.
2. Line 2: “MKT/BPM/PER FLTS,” as applicable; * * *
e.
2. Line 2: “MKT/BPM/PER FLTS,” as applicable; * * *
f.
2. Line 2: “MKT/BPM/PER FLTS,” as applicable; * * *
g.
2. Line 2: “MKT/BPM/PER FLTS,” as applicable; * * *
h.
2. Line 2: “MKT/BPM/PER FLTS NDC,” as applicable; * * *
2. Line 2: “MKT/BPM/PER FLTS NDC,” as applicable;* * *
j.
Line 2: “MKT/BPM/PER FLTS,” as applicable;
[Revise prices as applicable.]
We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes, if our proposal is adopted.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a portion of a State Implementation Plan (SIP) revision submitted by the State of Florida, through the Florida Department of Environmental Protection on February 1, 2017, for the purpose of revising Florida's requirements and procedures for emissions monitoring at stationary sources. Florida's February 1, 2017, SIP submittal includes amendments to three Florida Administrative Code (F.A.C.) rule sections as well as the removal of one F.A.C. rule section from the Florida SIP in order to eliminate redundant language and makes updates to the requirements for emissions monitoring at stationary sources. Additionally, this action includes a correction to remove an additional F.A.C. rule that was previously approved for removal from the SIP in a separate action but was never removed. This action is being taken pursuant to the Clean Air Act (CAA).
Written comments must be received on or before November 13, 2017.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2017-0500 at
Andres Febres of the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Febres can be reached via telephone at (404) 562-8966 or via electronic mail
In the Final Rules Section of this
Office of Government-wide Policy, U.S. General Services Administration (GSA).
Proposed rule; withdrawal.
The General Services Administration (GSA) is withdrawing FTR Case 2016-301; Clarification of Payment in Kind for Speakers at Meetings and Similar Functions. This proposed rule is being withdrawn so that GSA can develop a comprehensive revision to the Federal Travel Regulation.
The proposed rule published on August 15, 2016 (81 FR 53979) is withdrawn as of October 13, 2017.
Regulatory Secretariat Division (MVCB), 1800 F Street NW., Washington, DC 20405, 202-501-4755.
For clarification of content, contact Ms. Jill Denning, Program Analyst, Office of Government-wide Policy, at 202-208-7642. Contact the Regulatory Secretariat Division (MVCB), 1800 F Street NW., Washington, DC 20405, 202-501-4755, for information pertaining to status or publication schedules. Please cite FTR case 2016-301.
Government employees, Travel and transportation expenses.
5 U.S.C. 5707, and 5 U.S.C. 5707; 31 U.S.C. 1353.
Federal Communications Commission.
Proposed rule.
In this document, the Federal Communications Commission (Commission) seeks comment on proposals to provide relief to non-nationwide service providers by revising the Commission's wireless hearing aid compatibility reporting requirements.
Interested parties may file comments on or before November 13, 2017, and reply comments on or before November 27, 2017.
You may submit comments and reply comments on or before the dates indicated in the
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th Street SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, Annapolis, MD 20701.
U.S. Postal Service first-class, Express, and Priority mail must be
For additional information on the rulemaking process, see the
In addition to filing comments with the Secretary, a copy of any comments on the Paperwork Reduction Act information collection modifications proposed herein should be submitted to the Commission via email to
For further information on this proceeding, contact Michael Rowan, Wireless Telecommunications Bureau, (202) 418-1883, email
This is a summary of the Federal Communications Commission's Notice of Proposed Rulemaking, in WT Docket No. 17-228; FCC 17-123, adopted September 26, 2017, and released on September 27, 2017. This document is available for download at
1. The Commission seeks comment on whether to exempt a service provider that is not a Tier I carrier (Non-Tier I Service Provider) from the annual FCC Form 655 reporting requirements or otherwise to modify these requirements, while maintaining the reporting requirements for Tier I carriers and all handset manufacturers.
2. The Commission seeks comment on whether the annual reporting requirements for Non-Tier I Service Providers are still necessary to achieve the Commission's objectives for adopting the reporting requirements and whether the burden of complying with these reporting requirements for Non-Tier I Service Providers outweighs the associated benefits. The Commission, in adopting these reporting requirements, stated that its reporting requirements serve several purposes: Providing information to the public, assisting efforts to verify compliance, and monitoring the general state of hearing aid-compatible handset deployment. The Commission asks commenters to address the contribution of Non-Tier I Service Provider reports to these objectives and whether these reports are still necessary to achieve these objectives.
3. For example, the Commission seeks comment on the extent to which consumers rely on Non-Tier I Service Providers' annual reports for information about handset models. The Commission notes that the Commission's in-store testing and Web site posting requirements will continue to apply if the Commission adopts an exemption from the Form 655 reporting requirements. The Commission seeks comment on whether consumers will have sufficient information from service providers' ongoing compliance with these requirements. The Commission also seeks comment on whether the continued availability of Tier I carrier reports suggests that, in the aggregate, the informational benefit to consumers of Non-Tier I Service Provider reports will be minimal or otherwise supports exempting them from reporting requirements. Similarly, are consumers informed to a greater degree about the availability of handset models in the marketplace from the reports of device manufacturers?
4. The Commission also seeks comment on whether consumers can obtain information from other third-party resources and whether they may be better or more accessible sources of information to the public about handset offerings than the status reports filed with the Commission. For instance, the Global Accessibility Reporting Initiative (GARI) is a project run by the Mobile & Wireless Forum that is designed to help consumers learn more about the accessibility features of mobile devices and to help them identify devices with the features that may assist them with their particular needs. Are these information sources sufficient? If not, commenters should provide specific examples of the information these sources are missing.
5. With regard to monitoring the compliance of Non-Tier I Service Providers with the Commission's rules, the Commission seeks comment on whether the Commission should rely on its informal complaint process to help ensure Non-Tier I Service Providers continue to meet deployment benchmarks and other requirements. Given that these annual reports in recent years have reflected near universal compliance with the requirements, is detailed reporting from every small and regional service provider still justified to address any isolated instances of non-compliance by such providers? Would eliminating or modifying the reporting requirements help these service providers save costs without an appreciable negative impact on the Commission's enforcement objectives? For example, the Commission notes that the Commission already relies on the informal complaint process rather than reporting to monitor compliance with other hearing aid compatibility obligations, such as in-store testing requirements. The Commission solicits comment on whether our enforcement objectives can be met by continuing to monitor the reports from device manufacturers and Tier I carriers.
6. The Commission seeks comment on whether Non-Tier I Service Provider reporting is necessary to meet the Commission's objective of gauging the overall state of access to wireless hearing aid-compatible handset models. Is it sufficient if the Commission only receives reports from manufacturers and Tier I carriers? For instance, the Commission has previously recognized that Non-Tier I Service Providers have difficulty obtaining the newest hearing aid-compatible handsets in comparison to the Tier I carriers, and the Commission seeks comment on whether the majority of newer compatible handset models on the market is reflected in Tier I carriers' status reports. Do Tier I carrier reports better reflect the feasibility of achieving hearing aid compatibility in handsets than the reports of Non-Tier I Service Providers? Additionally, the Commission in 2010 noted the “growing distribution of wireless handsets through channels other than service providers.” To what extent has this development reduced the importance of service provider reports in assessing access to compatible models? To monitor the state of hearing aid-compatible handset availability and technologies, the Commission also seeks comment on whether the Commission can rely on supplemental submissions for this type of information from stakeholders in open docket WT Docket No. 15-285.
7. The Commission also seeks comment on the burdens on Non-Tier I Service Providers of complying with the
8. The Commission seeks comment on all potential cost savings and other potential benefits of our proposed reporting exemption. The FCC Form 655 Instructions state “each response to this collection of information will take, on average, two and a half (2.5) hours.” Is this estimate accurate? Are there resources or measures not accounted for in this estimate that are needed for small providers specifically to meet the reporting requirements? Please explain all such burdens in detail. Because all non-reporting requirements under section 20.19 will continue to apply to Non-Tier I Service Providers in the event the Commission adopts an exemption from the reporting requirements, including the obligation to offer a sufficient number of hearing aid-compatible handset models to meet the applicable benchmarks, parties should be careful to distinguish burdens that will continue to be incurred in complying with our section 20.19 rules, even in the absence of reporting requirements, such as burdens related to ascertaining the hearing aid compatibility ratings of various handset models offered to meet deployment benchmarks.
9.
10.
11.
12.
13.
14. As required by the Regulatory Flexibility Act of 1980,
15. For some time now, the Commission has required all covered device manufacturers and wireless service providers regardless of size to file annual reports on their offering of handsets that are compatible with hearing aids. Beginning in 2003, the Commission established a schedule requiring covered device manufacturers and wireless service providers to submit hearing aid compatibility reports every six months from 2004 through 2006, and then annually in 2007 and 2008. In 2008, the Commission extended annual reporting requirements on an open-ended basis for covered device manufacturers and wireless service providers in order to verify compliance with the hearing aid compatibility rules. The Commission required the same reporting content from all covered entities, regardless of size, including those that come under the
16. In 2008, the Wireless Telecommunications Bureau (WTB), pursuant to delegated authority, made electronic FCC Form 655 available for service providers and device manufacturers to use in submitting hearing aid compatibility status reports, and made its use mandatory beginning with the filing deadline for device manufacturers on July 15, 2009.
17. In this document, the Commission seeks comment on whether and to what extent to exempt wireless service providers that are not Tier I carriers (Non-Tier I Service Providers) from annual FCC Form 655 reporting requirements, while maintaining these requirements for Tier I carriers and all handset manufacturers. The Commission states that numerous parties, especially rural and small wireless service providers, have asserted for some time that preparing these annual reports is burdensome. The Commission seeks comment on the burdens of compliance with the Form 655 reporting requirements for Non-Tier I Service Providers, and whether the benefits of the reporting requirement as applied to these providers continues to outweigh the costs or burdens the reporting requirement places on them. Specifically, the Commission seeks comment on whether Non-Tier I Service Provider reporting is necessary to meet the Commission's objectives of providing information to the public, assisting efforts to verify compliance, and monitoring the general state of hearing aid-compatible handset deployment. With regard to monitoring the compliance of Non-Tier I Service Providers with the hearing aid compatibility rules, the Commission seeks comment on whether it should rely on the informal complaint process to help ensure Non-Tier I Service Providers continue to meet deployment benchmarks and other hearing aid compatibility requirements. The Commission also seeks comment on whether eliminating or modifying the reporting requirement would permit Non-Tier 1 Service Providers to save costs without an appreciable negative impact on the Commission's enforcement objectives.
18. In this document, the Commission asks detailed questions to help it evaluate these issues, and asks parties to submit specific data in response to the
19. The proposed actions for which comments have been sought in this document is authorized under sections 4(i), 303(r), and 710 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), and 610.
20. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as
21.
22. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of August 2016, there were approximately 356,494 small organizations based on registration and tax data filed by nonprofits with Internal Revenue Service (IRS).
23. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2012 Census of Governments indicates that there were 90,056 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number, there were 37, 132 general purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,184 special purpose governments (independent school districts and special districts) with populations of less than 50,000. The 2012 U.S. Census Bureau data for most types of governments in the local government category shows that the majority of these governments have populations of less than 50,000. Based on this data we estimate that at least 49,316 local government jurisdictions fall in the category of “small governmental jurisdictions.”
24.
25.
26.
27. The Commission's own data—available in its Universal Licensing System—indicate that, as of October 25, 2016, there are 280 Cellular licensees that will be affected by our actions today. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities. Similarly, according to Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) Telephony services. Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Thus, using available data, the Commission estimates that the majority of wireless firms can be considered small.
28. Also included in this classification is Personal Radio Services, which provide short-range, low power radio for personal communications, radio signaling, and business communications not provided for in other services. The Personal Radio Services include spectrum licensed under part 95 of the Commission's rules. These services include Citizen Band Radio Service (“CB”), General Mobile Radio Service (“GMRS”), Radio Control
29.
30. The Commission is not proposing to impose any additional reporting or record keeping requirements. Rather, as discussed in the next section, the Commission is seeking comment on whether and to what extent it can reduce burdens on small wireless service providers by exempting them from hearing aid compatibility reporting requirements. Presently, these requirements include filing electronic FCC Form 655 on an annual basis. However, the Commission also asks whether it should require those wireless service providers who qualify for the new exemption to file a certification, either annually or otherwise, that states that they meet the hearing aid compatibility deployment benchmarks and other requirements.
31. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
32. To assist the Commission's evaluation of the economic impact on small entities, as a result of actions that have been proposed in this
33. The Commission expects to more fully consider the economic impact on small entities, following the review of comments filed in response to this document. In seeking comment on whether to exempt non-nationwide wireless service providers from annual reporting requirements, the Commission considers several alternatives and steps it could take to implement its proposal. For example, the Commission invites comment on whether the hearing aid compatibility rules should incorporate an alternative definition or size standard on which a reporting exemption for small, rural, or regional service providers could be based. Specifically, the Commission asks whether the exemption could be based on a threshold number of subscribers. The Commission also seeks comment on whether to limit the new exemption to wireless service providers who meet the small size standard that is incorporated in the
34. None.
35. This document contains proposed modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, the Commission seeks specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.
36. The proceeding that the Notice of Proposed Rulemaking initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's
37. Accordingly,
38.
39.
Communications common carriers, Communications equipment, Radio.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend part 20 of title 47 of the Code of Federal Regulations as follows:
47 U.S.C. 151, 152(a) 154(i), 157, 160, 201, 214, 222, 251(e), 301, 302, 303, 303(b), 303(r), 307, 307(a), 309, 309(j)(3), 316, 316(a), 332, 610, 615, 615a, 615b, 615c, unless otherwise noted.
(i)
Federal Communications Commission.
Proposed rule.
In this document, a Notice of Proposed Rulemaking (
Comments are due on or before November 13, 2017, and reply comments are due on or before December 12, 2017. Written comments on the Paperwork Reduction Act proposed information collection requirements must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before December 12, 2017.
You may submit comments, identified by both WC Docket No. 17-192, and CC Docket No. 95-155 by any of the following methods:
For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Wireline Competition Bureau, Competition Policy Division, E. Alex Espinoza, at (202) 418-0849, or
This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM) in WC Docket No. 17-192, and CC Docket No. 95-155, adopted September 26, 2017, and released September 28, 2017. The full text of this document is available for public inspection during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. It is available on the Commission's Web site at
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.
1. Toll free calling originated in 1967, and to this day remains an important feature of the communications system. Even with the growth of e-commerce, many businesses, large and small, continue to use toll free numbers for sales and customer service, as well as for advertising and marketing purposes. Government organizations and non-profit health, safety, educational, or other non-profit public interest organizations also use toll free numbers to provide vital health and safety services to the public. While the Commission's current rule uses a first-come, first-served approach to the assignment of toll free numbers, to help ensure the continued usefulness and availability of this finite resource, we now examine alternative assignment methodologies. Specifically, we propose amending our rules to allow for use of an auction to assign certain toll free numbers—such as vanity and repeater numbers—in order to better promote the equitable and efficient use of numbers. With the opportunity afforded by the opening of the 833 toll free code, we propose to use an auction for assigning numbers for which mutually exclusive interest has been expressed. Mutually exclusive numbers are those toll free numbers for which there are two or more requests for assignment. In this Notice of Proposed Rulemaking (
2. Since mandating the porting of toll free numbers and introducing the second toll free code, 888, to relieve exhaust of the original 800 code, the Commission has sought to assign numbers in a manner that is equitable and efficient, and that fosters a smooth introduction of a new code. Doing so required the Commission to address the treatment of vanity numbers, those numbers that spell a name or word of value to the number holder (
3. In an attempt to extend the life of each toll free code, the Commission also prohibited warehousing, hoarding, and brokering of toll free numbers. Thus, the Commission's current rules prohibit “warehousing” of a toll free number, defined as the practice in which a Responsible Organization (RespOrg), an “entity chosen by a toll free subscriber to manage and administer the appropriate records in the toll free Service Management System for the toll free subscriber,” 47 CFR 52.101(b) either directly or indirectly through an affiliate, reserves a number from the toll free database without having an end user subscriber for whom the number is being reserved. Similarly, the Commission's rules prohibit the practice of “hoarding”—the acquisition by a toll free subscriber from a RespOrg of more toll free numbers than the toll free subscriber intends to use for the provision of toll free service. And, finally, the definition of hoarding also prohibits number brokering, which is the selling of a toll free number by a private entity for a fee.
4. Almost 20 years ago, the Commission considered an auction approach to toll free number assignment in the
5. We propose expanding the existing toll free number assignment rule to permit use of an auction methodology, among other assignment mechanisms, to assign toll free numbers. To do so, we propose to revise section 52.111 of our rules to allow the Commission to assign numbers in a manner that is equitable, including by auction, on a first-come, first-served basis, an alternative assignment methodology, or by a combination of the forgoing as circumstances require. We seek comment on this proposal.
6. We also seek comment on conducting a single round, sealed-bid Vickrey auction for the roughly 17,000 numbers set aside, pursuant to the
7.
8. We note that the first-come, first-served rule has raised questions about whether recent toll free code openings were equitable because certain RespOrgs had enhanced connectivity to the toll free database that allowed them to quickly reserve desirable numbers. To address these concerns for the 855 and 844 toll free code openings, the Bureau directed the TFNA to limit the quantity of toll free numbers a RespOrg may reserve to 100 per day for the first 30 days. The Bureau found that this limited allocation would distribute desirable numbers more equitably. If the Commission adopts an auction approach for toll free numbers, such rationing of numbers would not be necessary. All bidders would have the same access to numbers in a new toll free code. We seek comment on whether this market-based auction approach would yield a more equitable outcome by allowing any RespOrg an opportunity to bid for numbers based on their valuations.
9.
10. The investment by RespOrgs in enhanced connectivity to the database discussed above is evidence of strong competing demand among RespOrgs for toll free numbers. And the fact that the Commission places constraints on how many numbers a RespOrg can obtain at any point, and also on hoarding, suggests that certain toll free numbers are currently underpriced. We therefore believe that assignment via auction would more equitably and efficiently address this source of excess demand. Moreover, to the extent that, with the current assignment method, transaction costs impede or restrict the efficient assignment of toll free numbers, the public interest gains from implementing an efficient auction mechanism would be substantial. Thus, we believe that the equity and efficiency gains of an auction of mutually exclusive toll free numbers outweigh any costs of implementing an auction. We seek comment on this analysis. Also, if any commenters assert that an auction approach is inequitable, they should clearly explain why an auction approach would be inequitable, as well as how the current means of assignment, or some other means, would be more equitable.
11. In arriving at our 833 number auction proposal, the Commission has considered the experience of the Australian Communications and Media Authority (ACMA) in auctioning toll free numbers. Between 2005 and 2015, the ACMA attempted to auction 1.8 million unreleased “freephone” (toll free) and “local-rate numbers,” considered desirable (as vanity numbers or repeaters), which were branded as “smartnumbers®.” The results of the auction show that the most desirable smartnumbers® were sold in highly competitive auctions early in the process. However, after the initial auctions within the first year of the most desirable numbers, the vast majority of smartnumbers® were uncontested and thus auctioned at set reserve prices. In reviewing the outcome of the ACMA auction, we propose, at least for the 833 code, to auction only mutually exclusive toll free numbers for which there is some demonstration of demand, and to assign the rest on a first-come, first-served basis. We seek comment on how the Commission has considered the results of the ACMA experience in developing our own auction model.
12. As discussed above, the Commission proposes to assign toll free numbers in a manner that is equitable, including by auction, on a first-come, first-served basis, by alternative assignment methodologies, or by a combination of these methods, as circumstances require. In this section, we seek comment on certain auction procedures for the roughly 17,000 mutually exclusive numbers, which were set-aside in our
13.
14. We further propose an auction in which participants simultaneously submit separate bids for each number they are interested in, with the winning bid for each number being determined solely by bids for that number, independent of the bids for any other number. Thus, the proposed auction will not allow for package bids—bids for combinations of numbers. Thus, if a bidder values one number at, say $10, and another at $20, and the two together at $50, the bidder cannot place three bids, one of $10 for the first number, a second of $20 for the second, and a third of $50 for both. Instead, only two bids can be placed, one for each of the two numbers, with no guarantee both numbers will be won. While it is likely that some bidders may demand more than one number in an auction, we do not believe valuation synergies, to the extent they exist, warrant allowing package bids. We seek comment on this proposal. We further seek comment on other advantages or disadvantages of allowing package bids.
15.
16. A Vickrey auction could result in an equitable and efficient assignment of mutually exclusive toll free numbers. For example, in a Vickrey auction for one object, such as a toll free number, because the winner pays the second highest bid, the winner's surplus (the winner's value minus the amount paid), does not depend on the winner's bid. Since the amount paid is not a function of the winner's bid, it is optimal for bidders in this type of auction to bid their valuation. This result rests on the assumption that bidder values are independent,
17.
18.
19.
20.
21. We propose to allow only RespOrgs to bid in an auction; potential subscribers seeking mutually exclusive toll free numbers would need to approach one or more RespOrgs about placing a bid on their behalf. We seek comment on this proposal. We think our proposal is consistent with the RespOrg's role as manager and administrator of toll free records in the TFNA database. Our proposal also reflects in part the importance of RespOrgs as market makers. Further, RespOrgs may have strengths in maximizing the valuation of certain numbers, for example, by piecing together geographic coalitions of subscribers who may be unable to coordinate by themselves. We seek comment on this proposal. We also seek comment on whether we should consider allowing subscribers to directly participate in an auction. Are there benefits to allowing their participation? Would an auction that includes both subscribers and RespOrgs be difficult to implement? Assuming we use an auction methodology for future code openings or other toll free assignments and identify mutually exclusive numbers, how should we define mutual exclusivity? Should we consider mutually exclusive numbers those numbers which two or more RespOrgs have requested, or numbers that have been requested by two or more subscribers? If mutual exclusivity means toll free numbers requested by two or more RespOrgs, is there a way to determine how many of these numbers are sought by more than one subscriber? Are there legal restrictions to allowing subscribers to circumvent their relationship with RespOrgs to participate directly in an auction, and would other provisions in our existing toll free rules need to be revised to allow participation by subscribers?
22. The greater the number of auction participants, the more effective the 833 number auction and subsequent toll free number auctions will be. We seek comment on ways to notify potential subscribers about auctions and encourage their participation through their chosen RespOrg(s). Should we consider including subscriber information in the TFNA database? Currently, the TFNA can notify RespOrgs about auctions—because the toll free database identifies the RespOrg for each number assigned—but it cannot notify subscribers potentially interested in bidding for a number because the database does not contain subscriber information. Would inclusion of subscriber information in the toll free database provide greater market transparency for auction bidders, improving the efficiency of the auction? Are the costs of including this information in the database significant? Would having subscriber information in the database be useful for other reasons, such as helping the TFNA and the
23. We propose not to limit the quantity of toll free numbers RespOrgs can acquire through the auction and seek comment on this proposal. We think that limiting the number of bids that can be placed by a RespOrg in the auction may hamper efficiency because it may constrain primarily the bidders who hold the highest valuations. Do parties agree with this belief? If subscribers are allowed to bid for numbers, should we impose limits on the quantity of 833 numbers they can acquire in the auction?
24. We seek comment on the characteristics of an auctioneer who would be able to put in practice the auction process we propose above at the lowest cost. Should we designate the TFNA as the auctioneer?
25. We propose that the net proceeds from any toll free number auction proposed in this
26. We also seek comment on implementation issues from applying auction funds to offset the TFNA. We currently require that the TFNA's tariffed rates charged to RespOrgs be based on the cost of providing its services, determined on a year-by-year basis. What is the best way to factor in auction revenues? Because the TFNA is limited to recovering its revenue requirement, and must budget and adjust its fees accordingly each year, how should it account for additional revenues from a number auction? Should we create a system whereby auction proceeds realized in a given calendar year are held and remitted to the TFNA in the beginning of the following year (early January)? Or, are there alternative remittance systems that are preferable?
27. If an auction generates more revenue than the TFNA revenue requirement for a particular year, parties should comment on how to allocate those additional funds. Should the TFNA retain any excess auction revenues, and apply them to the revenue requirements of future years? Alternatively, should such remaining auction proceeds instead be remitted to the NANP Administrator (NANPA) to defray the general costs of administering it? Would directing any excess proceeds in this manner benefit all users of the NANP across the 20 countries that comprise it? Are any of the federal statutes discussed above implicated if we handle additional auctions proceeds in this manner?
28. The Commission seeks comment on the costs and benefits of other possible assignment approaches for desirable 833 numbers. We classify assignment approaches as either market-based, such as an auction, or administrative, such as a lottery or first-come, first-served. Notwithstanding our proposal to adopt the market-based auction approach described above, an administrative approach may also have value. Therefore, we also seek comment on possible benefits and drawbacks of administrative assignments.
29. We wish to use any 833 auction as an experiment to ensure that we develop well-tested rules going forward. After we review the record in response to this
30. Consistent with the market-based approach for assigning mutually exclusive toll free numbers, we seek comment on revising our current rules to promote development of a secondary market for toll free numbers generally. A secondary market would allow subscribers to reassign their toll free numbers to other subscribers for a fee (or other compensation) the parties negotiate. Under the Commission's rules, RespOrgs are responsible for managing and administering toll free records on behalf of subscribers.
31. Current market realities appear to support a secondary market as an efficient and productive use of numbers. Despite the fact that toll free numbers are a public resource and neither carriers nor subscribers “own” their numbers, it takes little effort to find toll free numbers advertised for sale. An
32. We also seek comment on whether the TFNA should receive any transaction proceeds or charge any fees to offset number administration costs. Such funds could be used for the same purpose as we propose for auction funds: to offset the costs of toll free numbering administration by the TFNA within the NANP for the benefit of all RespOrgs and subscribers. Would this be an efficient use of funds? If we did charge a transaction fee for the transfer of toll free numbers in the secondary market, what amount should be charged? Are there legal constraints in charging a transaction fee for the transfer of toll free numbers? Are there international concerns if such fees went to offset costs of the NANP? Additionally, we seek comment on whether a RespOrg should be able to charge a fee for such transfers, and on whether such fees, if charged, should be regulated. Or, should we put in place some other mechanisms to prevent the abuse of any market power RespOrgs might have? Would a secondary market have an impact on settling trademark or branding disputes in desirable toll free numbers?
33. Interested parties should further comment on what types of information the TFNA would need from the buyer and seller to document a reassignment. Would the TFNA need to develop an online system to record any reassignments in the secondary market? How will parties know when a number is available for reassignment,
34. We propose revising certain toll free number rules to support our market approach to assigning certain toll free numbers for new code openings, recovered toll free numbers, and in the secondary market. Specifically, we propose revising the first-come, first-served rule, and seek comment on eliminating the brokering rule entirely. We also seek comment on revising the warehousing and hoarding rules.
35.
36.
37.
38.
39. We seek comment on whether certain desirable toll free numbers necessary to promote health, safety, education, and other public interest goals should be set aside for use, without cost, by government (federal,
40. We also seek comment on ways the Commission may address possible abuse of toll free numbers after they have been assigned to a non-profit health, safety, education, or other non-profit public interest organizations or any purchaser in an auction or in the secondary market? Should the Commission propose a rule stating its ability to reclaim any toll free number that is used for fraudulent or otherwise unlawful purposes? Also, should the Commission create, or direct the TFNA to create, any terms and conditions for use of a toll free number purchased in an auction or the secondary market? Should the Commission codify its authority to reassign a number to another subscriber if there is a strong public interest need to use the number for another purpose. For example, following Hurricane Katrina in 2005, the Commission reassigned 800-RED-CROSS from a for-profit corporation to the American Red Cross so it could facilitate the Nation's response to the disaster wrought by Hurricane Katrina.
41. In light of the proposed changes to the toll free number assignment methodology in this
42.
43. Should the Commission consider a different regulatory treatment for SMS service? How, given the central role of the TFNA in the administration of toll free numbers, would we ensure the public is protected from unreasonable rates, terms, and conditions? Alternatively, if the Commission adheres to the current TFNA model, including its filing of a tariff, should the Commission require more transparency in Somos's operations and budget? Are there other ways to make Somos's financial information more transparent? Although the public tariff outlines Somos's general operating procedures, certain information may be difficult to discern and other information is provided to the Commission under confidential cover. As a non-profit organization, Somos is only allowed to recover operating costs. Part of the Commission's rationale in allowing Somos to reorganize as a non-profit membership was “any savings realized as a result of SMS/800, Inc.'s corporate restructuring is likely to be reflected in lower tariffed rates for RespOrgs, which should in turn lead to lower charges for toll free subscribers.” Would a more transparent, or itemized accounting of Somos's costs further this goal and also better inform RespOrgs and subscribers of the costs of acquiring toll free numbers? We seek comment and ideas from industry on the roles of the TFNA and tariff as an important means to help us modernize toll free number assignment.
44. The Commission has consistently found that the Act requires the Commission to ensure the equitable, efficient, and orderly assignment of toll free numbers. As noted above, section 251(e)(1) of the Act gives the Commission “exclusive jurisdiction over those portions of the North American Numbering Plan that pertain to the United States” and provides that numbers must be made “available on an equitable basis.” Accordingly, the Commission retains “authority to set policy with respect to all facets of numbering administration in the United States.” In addition, the Commission has stated that sections 201(b) and 251(e)(1) of the Act “empower the Commission to ensure that toll free numbers, which are a scarce and valuable national public resource, are allocated in an equitable and orderly manner that serves the public interest.” This exclusive jurisdiction over numbering policy enables the Commission to act flexibly and expeditiously on important numbering matters. We note the Commission has also relied on sections 1 and 4(i) of the Act to assign toll free numbers on an equitable and efficient basis.
45. The Commission has promulgated toll free number rules to satisfy these congressional mandates. The proposed actions in this
46. As we noted in the background section of this
47. For the reasons previously discussed in this
48. In this Appendix, to assist interested stakeholders in preparing focused and detailed comments on the
49. The way potential bidders in our proposed auction determine their valuations of coveted numbers, such as 1-833-FLOWERS, can determine whether there are benefits from having a multi-round auction. One possibility is individuals' valuations are idiosyncratic, that is, are inherent to the specific bidder, without commonalities or interdependencies in how subscriber valuations are determined. For example, potential bidders may develop their valuations based on the size of their merchant network, and their business models, and these valuations would not be changed if they were to discover a different bidder valued the same number differently.
50. RespOrgs act as intermediaries in the toll free market. RespOrgs' gains or surpluses from supplying a toll free number may be characterized by significant commonalities or interdependencies, that is, RespOrg valuations of toll free numbers may not be idiosyncratic. Instead, a RespOrg that observed another RespOrg with a significantly higher or lower valuation than its own might wonder if it was misinformed, and the other RespOrg knows something about the value of the number that it does not. A RespOrg derives surplus from acquiring a toll free number only to the extent that it can profitably supply it to a subscriber. This surplus is equal to the difference between the price the RespOrg obtains for the number, and the cost of supplying it. Differences in the technologies RespOrgs use to supply numbers, for example, to provide geographic-based calling, or in the markets the RespOrgs address may give rise to idiosyncratic differences in cost. However, if RespOrgs generally compete with other similar RespOrgs using the same technologies, seeking to supply the same subscribers with largely the same service, then the key factor that might lead such RespOrgs' valuations of a number to differ is their assessment of the highest price that a subscriber is willing to pay for the number (since the relevant RespOrg's have similar costs, and are supplying essentially the same service). While the Commission recognizes many RespOrgs have different business models, it also considers that in general RespOrgs largely use the same technologies to supply the same services to customers with a demand for certain types of valuable toll free numbers. For any such RespOrgs, the Commission does not view differences in the cost of supplying toll free number or their business models as giving rise to significant differences in competing RespOrgs' surpluses from supplying a given toll free number. The
51. If the Commission is right about competing RespOrgs largely using the same technologies to satisfy the same business models, then the surpluses of different RespOrgs from supplying a toll free number are not likely to differ significantly
52. To formulate their views on a Vickrey auction with no package bids, as proposed in the
53. In a Vickrey auction without package bids, but which allows simultaneous bidding over more than one number, only columns 1 and 2 are relevant. Bidder A obtains Number 2 because it bid the highest amount ($20). Bidder A pays the highest non-winning bid for Number 2 ($8). Bidder B obtains Number 1, because it bid the highest amount ($16). Bidder 2 pays the highest non-winning bid for Number 1 ($10). Moreover, our expectation is that the four bids reflect the bidders' true valuation of each number. This is because regardless of what other bids are made, a bidder can always do better by bidding its true value. If instead the bidder underbids, it may lose when it could have won by paying no more and potentially less than his value. If it overbids, it may win and potentially pay
54. In a generalized Vickrey auction with package bids, given the bids found in the table, the numbers are also assigned as in in the non-package generalized Vickrey auction. A different allocation would emerge, for example, if Bidder A valued both numbers at 37. Then Bidder A would get both numbers. In this case, however, the payments required of the winning bidders change. As in the case of the non-package auction, the payments in the generalized Vickrey auction are equal to the opportunity cost (highest alternative value) of the items won by each bidder. However, as is the case in the table, this changes the opportunity cost of the bid. The payments required in the package auction are determined as follows:
If Number 2 is assigned to Bidder B instead of Bidder A, then Bidder B would realize a value of $25 (because Bidder B would have obtained both numbers). By assigning Number 2 to Bidder A, the (opportunity) cost for Bidder B is $9 ($25 minus $16, the value for Bidder B from obtaining Number 1). If Number 1 is assigned to Bidder A instead of Bidder B, then Bidder A would realize a value of $32. By assigning Number 1 to Bidder B, the (opportunity) cost for Bidder A is $12 ($32 minus $20). Thus, the outcome of the generalized Vickrey auction is as follows: Bidder A obtains Number 2, for which it pays $9. Bidder B obtains Number 1, for which it pays $12.
55. Further, in such auctions, by similar reasoning to that provided for the non-package auction, the bidders best strategy is to bid their valuations. Accordingly, the highest value can be realized by assigning Number 2 to Bidder A and Number 1 to Bidder B. In this case, that value is $36: $20 for Bidder A and $16 for Bidder B. If Number 1 is assigned to Bidder A, and Number 2 to Bidder B, then the value of the assignment is $18. If both numbers are assigned to Bidder A, the value of the assignment is $32. If both numbers are assigned to Bidder B, the value of the assignment is $25. The generalized Vickrey auction assigns the two numbers to maximize value. Accordingly, the generalized Vickrey auction assigns Number 2 to Bidder A and Number 1 to Bidder B. Thus, the generalized Vickrey auction with package bids is economically efficient allocating the numbers to maximize the value to bidders.
56. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this
57. In this
58. The legal basis for any action that may be taken pursuant to this
59. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rule revisions, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A “small-business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
60.
61.
62.
63.
64.
65. We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that,
66.
67.
68.
69.
70.
71.
72. The Commission's own data—available in its Universal Licensing System—indicate that, as of October 25, 2016, there are 280 Cellular licensees that will be affected by our actions today. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities. Similarly, according to internally developed Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service, and Specialized Mobile Radio Telephony services. Of this total, an estimated 261 have 1,500 or fewer employees, and 152 have more than 1,500 employees. Thus, using available data, we estimate that the majority of wireless firms can be considered small.
73.
74.
75.
76.
77.
78.
79. The
80. In addition, we seek comment on revising our rules to promote development of a secondary market for toll free numbers. We seek comment on what types of information would be needed from the buyer and seller to document a reassignment, whether an online recording system is needed to record reassignments in the secondary market, and whether there should be a database for potential buyers. The
81. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rules for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.
82. This
83. The Notice also seeks comment on repealing or relaxing the prohibition against brokering and open number distribution to secondary markets. Theses proposal could minimize burdens on current and future toll free subscribers, some of which may be small entities. Finally, in the
84. None.
85. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document in Dockets WC 17-192, and CC 95-155. Comments may be filed using the Commission's Electronic Comment Filing System
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.
86. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's
87. Pursuant to the Regulatory Flexibility Act (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and actions considered in this Notice of Proposed Rulemaking. The text of the IRFA is set forth in section V above. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comment on the Notice of Proposed Rulemaking. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of this Notice of Proposed Rulemaking, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).
88. This document contains proposed new information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.
89. For further information about this proceeding, please contact E. Alex Espinoza, FCC Wireline Competition Bureau, Competition Policy Division, Room 5-C211, 445 12th Street SW., Washington, DC 20554, at (202) 418-0849 or
90. Accordingly,
91.
Telephone.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 52 as follows:
Secs. 1, 2, 4, 5, 48 Stat. 1066, as amended; 47 U.S.C. 151, 152, 154 and 155 unless otherwise noted. Interpret or apply secs. 3, 4, 201-05, 207-09, 218, 225-27, 251-52, 271 and 332, 48 Stat. 1070, as amended, 1077; 47 U.S.C. 153, 154, 201-05, 207-09, 218, 225-27, 251-52, 271 and 332 unless otherwise noted.
Toll free telephone numbers must be made available to Responsible Organizations and subscribers on an equitable basis. The Commission will assign toll free numbers by auction, on a first-come, first-served basis, by an alternative assignment methodology, or
Federal Communications Commission.
Proposed rule.
In this document, the Federal Communications Commission (Commission) proposes to eliminate rules that require certain broadcast and cable entities to maintain paper copies of Commission regulations.
Comments are due on or before November 13, 2017; reply comments are due on or before November 27, 2017.
You may submit comments, identified by MB Docket No. 17-231, by any of the following methods:
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•
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For additional information on this proceeding, contact Raelynn Remy of the Policy Division, Media Bureau at
This is a summary of the Commission's Notice of Proposed Rulemaking, FCC 17-121, adopted and released on September 26, 2017. The full text is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW., Room CY-A257, Washington, DC 20554. This document will also be available via ECFS at
1. We propose to eliminate the requirement, set forth in section 74.769 of our rules, that licensees or permittees of low power TV, TV translator, and TV booster stations maintain “a current copy of Volume I and Volume III of the Commission's rules.”
2. We also tentatively conclude that we should eliminate the requirement, set forth in section 76.1714(a), that certain cable operators maintain a current copy of part 76 of the Commission's rules and, if subject to the Emergency Alert System (EAS) rules contained in part 11 of those rules, an EAS Operating Handbook.
3. Parties opposing elimination of any rules discussed in this NPRM should explain how the benefits derived from
4. This document does not contain proposed new or revised information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501 through 3520). In addition, therefore, it does not contain any new or modified “information burden for small business concerns with fewer than 25 employees” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4).
5. Permit-But-Disclose. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's
6. Comments and Replies. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
•
•
• Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
7.
8.
9. For additional information on this proceeding, contact Raelynn Remy of the Policy Division, Media Bureau, at
10. As required by the Regulatory Flexibility Act of 1980, as amended (RFA)
11. The proposed rule changes stem from a Public Notice issued by the Commission in May 2017 launching an initiative to modernize the Commission's media regulations.
12. Specifically, the NPRM proposes to eliminate: (i) The requirement that licensees or permittees of low power TV, TV translator, and TV booster stations maintain a copy of Volume I and Volume III of the Commission's rules;
13. The proposed action is authorized pursuant to sections 1, 4(i), and 4(j) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), and 154(j).
14. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted.
15.
16.
17.
18. Because no commenter provided information specifically quantifying the costs and administrative burdens of complying with the existing recordkeeping requirements, we cannot precisely estimate the impact on small entities of eliminating them. The proposed rule revisions, if adopted, will afford all affected Commission regulatees, including small entities, greater flexibility in the manner by which they access and stay familiar with Commission rules governing their services. No party in the proceeding has opposed the proposals set forth in the NPRM. We thus find it reasonable to conclude that the benefits of eliminating the rules at issue will outweigh any costs.
19. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
20. The NPRM proposes to eliminate the obligation, imposed on certain broadcasters and cable regulatees, to maintain paper copies of Commission rules. Eliminating these requirements is intended to modernize the Commission's regulations and reduce costs and recordkeeping burdens for affected entities, include small entities. Whereas under the current rules, affected entities must expend time and resources maintaining and updating hard copies of Commission rules, such entities will be able to maintain their familiarity with Commission rules by accessing those rules online. As noted, the proposed rule revisions are unopposed. Thus, we anticipate that affected small entities only stand to benefit from such revisions, if adopted.
21. None.
22. We adopt this NPRM pursuant to the authority found in sections 1, 4(i), and 4(j) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), and 154(j).
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 74, 76 and 78 as follows:
47 U.S.C. 154, 302a, 303, 307, 309, 310, 336, and 554.
Each licensee or permittee of a station authorized under this subpart shall be familiar with rules relating to stations governed by this subpart.
(a) * * *
(5) * * *
(viii) The following sections are applicable to analog-to-digital and digital-to-digital replacement television translator stations:
Each licensee or permittee of a station authorized under this subpart shall be familiar with rules relating to stations governed by this subpart.
47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 339, 340, 341, 503, 521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572 and 573.
(d) Exceptions to the public inspection file requirements. The operator of every cable television system having fewer than 1,000 subscribers is exempt from the online public file and from the public record requirements contained in § 76.1701 (political file); § 76.1702 (EEO records available for public inspection); § 76.1703 (commercial records for children's programming); § 76.1704 (proof-of-performance test data); § 76.1706 (signal leakage logs and repair records); § 76.1714 (FCC rules); and § 76.1715 (sponsorship identification).
(a) The operator of a cable television system is expected to be familiar with the rules governing cable television systems and, if subject to the Emergency Alert System (EAS) rules contained in part 11 of this chapter, the EAS.
(c) Both the licensee of a cable television relay station (CARS) and the operator or operators responsible for the proper operation of the station are expected to be familiar with the rules governing cable television relay stations.
47 U.S.C. 152, 153, 154, 301, 303, 307, 308, 309.
Both the licensee of a cable television relay station (CARS) and the operator or operators responsible for the proper operation of the station are expected to be familiar with the rules governing CARS stations.
Agricultural Marketing Service, USDA.
Notice; request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the U.S. Department of Agriculture (USDA) Agricultural Marketing Service's (AMS) intent to request approval from the Office of Management and Budget (OMB) for an extension of and revision to the currently approved information collection used in support of the Regulations Governing the Inspection of Eggs (as authorized by the Egg Products Inspection Act (EPIA)), which is commonly referred to as the Shell Egg Surveillance Program.
Comments must be received by December 12, 2017.
Interested persons are invited to submit comments concerning this notice by using the electronic process available at
Michelle Degenhart, Assistant to the Director, Quality Assessment Division; (202) 260-8417; or
The EPIA authorized USDA to issue regulations describing how this function would be carried out to ensure that only eggs fit for human consumption are used for such purposes. To this end, USDA published the EPIA, commonly referred to as the Shell Egg Surveillance Program, in 7 CFR part 57.
Under the Shell Egg Surveillance Program, shell egg handlers and hatcheries are required to register with USDA. A state or Federal surveillance inspector visits each registered handler quarterly to verify that shell eggs packed for consumer use are in compliance with the regulations (
The information and recordkeeping requirements in this request are essential to carry out the intent of Congress, to administer the mandatory inspection program, and to take regulatory action, in accordance with the regulations and the EPIA. The forms within this collection package require the minimum information necessary to effectively carry out the requirements of the regulations, and their use is necessary to fulfill the intent of the EPIA.
The information collected is used only by authorized representatives of the AMS Livestock, Poultry, and Seed Program's Quality Assessment Division, which includes state agencies authorized to conduct inspections on AMS's behalf. The information is only used to verify compliance with the EPIA and the regulations, and it is used to facilitate regulatory action. The Agency is the primary user of the information; secondary users include each authorized state agency that have a cooperative agreement with AMS.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (2) the accuracy of the Agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All responses to this notice will be summarized and included in the request for OMB approval. All responses will become a matter of public record, including any personal information provided.
Agricultural Marketing Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Agricultural Marketing Service's (AMS) intention to request approval from the Office of Management and Budget, for a revision of a currently approved collection for the Regulations Governing the Inspection and Grading of Manufactured or Processed Dairy Products—Recordkeeping (Subpart B).
Comments received by December 12, 2017 will be considered.
Dairy products are graded according to U.S. grade standards by a USDA grader. Dairy processors, buyers, retailers, institutional users, and consumers have requested that such a program be developed to assure the uniform quality of dairy products purchased. In order for any service program to perform satisfactorily, there are regulations for the provider and user. For these reasons, the dairy inspection and grading program regulations were developed and issued under the authority of the AMA. These regulations are essential to administer the program to meet the needs of the user and to carry out the purposes of the AMA.
The information collection requirements in this request are essential to carry out the intent of the AMA to ensure that dairy products are produced under sanitary conditions and buyers are purchasing a quality product. In order for the General Specifications for Dairy Plants Approved for USDA Inspection and Grading Service to serve the government, industry, and the consumer, laboratory test results must be recorded.
Respondents are not required to submit information to the agency. The records are to be evaluated by a USDA inspector at the time of an inspection. These records include quality tests of each producer, plant records of required tests and analysis, and starter and cheese make records. As an offsetting benefit, the records required by USDA are also records that are routinely used by the inspected facility for their own supervisory and quality control purposes.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.
Revision to and extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request a revision to and extension of approval of an information collection associated with the regulations for the importation of fresh blueberry fruit from Morocco into the continental United States.
We will consider all comments that we receive on or before December 12, 2017.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
For information on the regulations related to the importation of fresh blueberries from Morocco into the continental United States, contact Ms. Dorothy Wayson, Senior Regulatory Specialist,
In accordance with § 319.56-69, blueberries from Morocco may be imported into the continental United States under certain conditions to prevent the introduction of plant pests into the United States. These conditions require the use of certain information collection activities, including application for permits to import plants and plant products, appeal of denial or revocation of permit, emergency action notification, notice of arrival, registration of production sites, inspections of crops, and remedial actions by production sites. Also, each consignment of blueberries must be accompanied by a phytosanitary certificate issued by the national plant protection organization (NPPO) of Morocco with an additional declaration stating that the provisions of § 319.56-69 have been met, and that the consignment was inspected prior to export and found free of
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities, as described, for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the 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, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
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.
Animal and Plant Health Inspection Service, USDA.
Revision to and extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request a revision to and extension of approval of an information collection associated with the regulations for the importation of pine nursery stock and various pine products from Canada to prevent the spread of pine shoot beetle into noninfested areas of the United States.
We will consider all comments that we receive on or before December 12, 2017.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
For information on the regulations for the importation of pine shoot beetle host material from Canada, contact Mr. Tyrone Jones, Trade Director, PHP, PPQ, APHIS, 4700 River Road Unit 137, Riverdale, MD 20737; (301) 851-2128. For copies of more detailed information on the information collection, contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2483.
As authorized by the PPA, the Animal and Plant Health Inspection Service (APHIS) regulates the importation of plants for planting into the United States from certain parts of the world as provided in “Subpart—Plants for Planting” (7 CFR 319.37 through 319.37-14). This subpart restricts, among other things, the importation of living plants, plant parts, and seeds for propagation. In addition, APHIS regulates the importation of lumber and other wood articles as provided in “Subpart—Logs, Lumber, and Other Wood Articles” (7 CFR 319.40-1 through 319.40-11). This subpart lists requirements for the importation of various logs, lumber, and other unmanufactured wood products into the United States. Both subparts contain regulations that help prevent the introduction and spread of pine shoot beetle (
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities, as described, for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the 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, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
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.
Animal and Plant Health Inspection Service, USDA.
Revision to and extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request a revision to and extension of approval of an information collection associated with the regulations for the importation of mangoes from Jamaica into the continental United States.
We will consider all comments that we receive on or before December 12, 2017.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
For information on the regulations for the importation of mangoes from Jamaica, contact Mr. Tony Roman, Senior Regulatory Policy Specialist, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737; (301) 851-2242. For copies of more detailed information on the information collection, contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2483.
In accordance with § 319.56-71, mangoes may be imported from Jamaica into the continental United States under certain conditions to prevent the introduction of plant pests into the United States. As a condition of entry, mangoes have to be produced in accordance with a systems approach employing a combination of mitigation measures for the pests listed in § 319.56-71 and be inspected prior to export from Jamaica and found free of these pests and diseases. Mangoes must be accompanied by a phytosanitary certificate with an additional declaration that the conditions for importation have been met. These regulations also require the use of
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities, as described, for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the 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, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
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.
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with the black stem rust quarantine and regulations.
We will consider all comments that we receive on or before December 12, 2017.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
For information on the black stem rust quarantine and regulations, contact Dr. Richard N. Johnson, National Policy Manager, PHP, PPQ, APHIS, 4700 River Road, Unit 26, Riverdale, MD 20737; (301) 851-2109. For copies of more detailed information on the information collection, contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2483.
Black stem rust is one of the most destructive plant diseases of small grains that is known to exist in the United States. The disease is caused by a fungus that reduces the quality and yield of infected wheat, oat, barley, and rye crops by robbing host plants of food and water. In addition to infecting small grains, the fungus lives on a variety of alternate host plants that are species of the genera
The black stem rust quarantine and regulations, contained in 7 CFR 301.38 through 301.38-8 (referred to below as the regulations), quarantine the conterminous 48 States and the District of Columbia and govern the interstate movement of certain plants of the genera
Paragraph (b) of § 301.38-2 provides the requirements for the submission of a request to the Animal and Plant Health Inspection Service to add a variety to the list of rust-resistant barberry varieties in the regulations. A request must include a description of the variety, including a written description and color pictures that can be used by an inspector to clearly identify the variety and distinguish it from other varieties. This requirement helps to ensure that State plant inspectors can clearly determine whether plants moving into or through their States are rust-resistant varieties listed in 7 CFR 301.38-2.
We are asking the Office of Management and Budget (OMB) to approve our use of this information collection activity for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the 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, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
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.
Animal and Plant Health Inspection Service, USDA.
Revision to and extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request a revision to and extension of approval of an information collection associated with the regulations for the importation of wheat and related articles from regions affected with Karnal bunt.
We will consider all comments that we receive on or before December 12, 2017.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
For information on Karnal bunt and the importation of wheat and related articles, contact Mr. George Galasso, National Trade Director, PPQ, APHIS, 4700 River Road Unit 140, Riverdale, MD 20737; (301) 851-2050. For copies of more detailed information on the information collection, contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2483.
Karnal bunt is a fungal disease of wheat (
To prevent the introduction and spread of various wheat diseases, including Karnal bunt, APHIS' regulations in “Subpart—Wheat Diseases” (7 CFR 319.59-1 through 319.59-4) prohibit the importation of wheat seed, plants, straw, and other products into the United States from regions affected with Karnal bunt.
The regulations require that certain regulated articles imported from Karnal bunt-free areas within regions regulated for Karnal bunt be accompanied by a phytosanitary certificate that must be completed by an official of the national plant protection organization (NPPO) of the region of origin. The certificate must include a declaration stating that the regulated articles originated in areas where Karnal bunt is not known to occur, as attested to either by survey results or by testing for bunted kernels or spores. In addition, there are other information collection activities including notices of arrival, disinfection documents, and emergency action notice.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities, as described, for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the 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, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
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.
Animal and Plant Health Inspection Service, USDA.
Revision to and extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request a revision to and extension of approval of an information collection associated with the gypsy moth program.
We will consider all comments that we receive on or before December 12, 2017.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
For information on the gypsy moth program, contact Mr. Paul Chaloux, National Policy Manager, PHP, PPQ, APHIS, 4700 River Road, Unit 137, Riverdale, MD 20737; (301) 851-2064. For copies of more detailed information on the information collection, contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2483.
As part of the mission, APHIS' Plant Protection and Quarantine (PPQ) program engages in detection surveys to monitor for the presence of, among other things, the European gypsy moth and the Asian gypsy moth. The European gypsy moth is one of the most destructive pests of fruit and ornamental trees as well as hardwood forests. First introduced into the United States in Medford, MA, in 1869, the European gypsy moth has gradually spread to infest the entire northeastern portion of the country. The gypsy moth regulations can be found in 7 CFR 301.45 through 301.45-12.
Heavily infested European gypsy moth areas are inundated with actively crawling larvae that cover trees, fences, vehicles, and houses during their search for food. Entire areas may be stripped of all foliage, often resulting in heavy damage to trees. The damage can have long-lasting effects, depriving wildlife of food and shelter, and severely limiting the recreational value of forested areas.
The Asian gypsy moth is an exotic strain of gypsy moth that is closely related to the European variety already established in the United States. While the Asian gypsy moth has been introduced into the United States on several occasions, it is currently not established in the United States. However, due to behavioral differences, the Asian gypsy moth is considered to pose an even greater threat to trees and forested areas than the European gypsy moth.
Unlike the flightless European gypsy moth female adult, the Asian gypsy moth female adult is capable of strong directed flight between mating and egg deposition, significantly increasing its ability to spread over a much greater area and become widely established within a short time. In addition, Asian gypsy moth larvae feed on a much wider variety of hosts, allowing them to exploit more areas and cause more damage than the European gypsy moth.
To determine the presence and extent of a European gypsy moth or an Asian gypsy moth infestation, APHIS sets traps in high-risk areas to collect specimens. Once an infestation is identified, control and eradication work (usually involving State cooperation) is initiated to eliminate the moths.
APHIS personnel, with assistance from State/local officials, check traps for the presence of gypsy moths. If a suspicious moth is found in the trap, it is sent to APHIS laboratories at the Otis Methods Development Center in Massachusetts so that it can be correctly identified through DNA analysis. DNA analysis is the only way to accurately identify these insects because the European gypsy moth and the Asian gypsy moth are strains of the same species, and they cannot be visually distinguished from each other.
The PPQ or State/local officials submitting the moth for analysis must complete a specimen worksheet, which accompanies the insect to the laboratory. The worksheet enables Federal and State/local officials to identify and track specific specimens through the DNA identification tests that are conducted. In addition, the information provided by the gypsy moth identification worksheets is vital to APHIS' ability to monitor, detect, and eradicate gypsy moth infestations.
The gypsy moth regulations (§ 301.45-4(a)) also require the
We are asking the Office of Management and Budget (OMB) to approve these information collection activities, as described, for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the 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, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
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.
Animal and Plant Health Inspection Service, USDA.
Notice of availability.
We are advising the public that an environmental assessment and finding of no significant impact have been prepared by the Animal and Plant Health Inspection Service relative to the release of three parasitoids,
Dr. Colin D. Stewart, Assistant Director, Pests, Pathogens, and Biocontrol Permits, Permitting and Compliance Coordination, PPQ, APHIS, 4700 River Road, Unit 133, Riverdale, MD 20737-1231; (301) 851-2237, email:
The lily leaf beetle,
On July 13, 2017, we published in the
We solicited comments on the EA for 30 days ending August 14, 2017. We received one comment by that date. The commenter was opposed to the release of the organism on principle, but did not raise any specific or substantive issues.
In this document, we are advising the public of our finding of no significant impact (FONSI) regarding the release of
The EA and FONSI may be viewed on the
The EA and FONSI have been prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the extension with no revision of a currently approved information collection,
Comments must be received in writing on or before December 12, 2017 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Comments concerning this notice should be addressed to Director, Forest Management, Mail Stop 1103, Forest Service, USDA, 1400 Independence Avenue SW., Washington, DC 20250.
Comments also may be submitted via facsimile to (703) 605-1575, or by email to
Comments submitted in response to this notice may be made available to the public through relevant Web sites and upon request. For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information. If you send an email comment, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. Please note that responses to this public comment request containing any routine notice about the confidentiality of the communication will be treated as public comments that may be made available to the public notwithstanding the inclusion of the routine notice.
The public may inspect the draft supporting statement and/or comments received at Forest Service, USDA, Forest Management Office, Third Floor SW Wing, 201 14th Street SW., Washington DC, during normal business hours. Visitors are encouraged to call ahead to (202) 205-1766 to facilitate entry to the building. The public may request an electronic copy of the draft supporting statement and/or any comments received be sent via return email. Requests should be emailed to
Sharon Nygaard-Scott, Forest Management Staff, by phone (202) 205-1766 or by email at
Under the Set-Aside Program, the Forest Service must recompute the shares of timber sales to be set aside for qualifying small businesses every 5 years based on the actual volume of sawtimber that has been purchased by small businesses. Additionally, shares must be recomputed if there is a change in manufacturing capability, if the purchaser size class changes, or if certain purchasers discontinue operations.
In 1992, the Agency adopted new administrative appeal procedures (36 CFR part 215), which excluded the Set-Aside Program. Prior to adoption of 36 CFR part 215, the Agency had accepted appeals of recomputation decisions under 36 CFR part 217; and therefore decided to establish procedures for providing notice to affected purchasers offering an opportunity to comment on the recomputation of shares (61 FR 7468). The Conference Report accompanying the 1997 Omnibus Appropriation Act (Pub. L. 104-208) directed the Forest Service to reinstate an appeals process for decisions concerning recomputation of Small Business Set-Aside shares, structural recomputations of SBA shares, or changes in policies impacting the Set-Aside Program prior to December 31, 1996. The Small Business Timber Sale Set-Aside Program; Appeal Procedures on Recomputation of Shares (36 CFR 223.118; 64 FR 411, January 5, 1999) outlines the types of decisions that are subject to appeal, who may appeal decisions, the procedures for appeal decisions, the timelines for appeal, and the contents of the notice of appeal.
The Forest Service provides qualifying timber sale purchasers 30-days for predecisional review and comment on draft decisions to reallocate shares, including the data used in making the proposed recomputation decision. Within 15 days after the close of the 30-day predecisional review period, an Agency official makes a decision on the shares to be set aside for small businesses and gives written notice of the decision to all parties on the national forest timber sale bidders list for the affected area. The written notice provides the date by which the appeal may be filed and how to obtain information on appeal procedures.
Only those timber sale purchasers, or their representatives, who are affected by small business share timber sale set-aside recomputation decisions and who have submitted predecisional comments, may appeal recomputation decisions. The appellant must file a notice of appeal with the appropriate Forest Service official within 20 days of the date on the notice of decision. The notice of appeal must include:
1. The appellant's name, mailing address, and daytime telephone number;
2. The title or type of recomputation decision involved and date of the decision;
3. The name of the responsible Forest Service official;
4. A brief description and date of the decision being appealed;
5. A statement of how the appellant is adversely affected by the decision being appealed;
6. A statement of facts in dispute regarding the issue(s) raised by the appeal;
7. Specific references to law, regulation, or policy that the appellant believes have been violated (if any) and the basis for such an allegation;
8. A statement as to whether and how the appellant has tried to resolve the appeal issues with the responsible Forest Service official, including evidence of submission of written comments at the predecisional stage; and
9. A statement of the relief the appellant seeks.
The data gathered in this information collection is not available from other sources.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission request toward Office of Management and Budget approval.
U.S. Commission on Civil Rights.
Notice of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Tennessee (State) Advisory Committee will hold a meeting on Wednesday, November 8, 2017 to continue the review and discussion of the hearing transcript on civil asset forfeiture.
The meeting will be held on Wednesday, November 8, 2017, 12:30 p.m. EST.
The meeting will be by teleconference. Toll-free call-in number: 877-440-5788, conference ID: 6324926.
Jeff Hinton, DFO, at
Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: (877) 440-5788, conference ID: 6324926. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1 (800) 977-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also entitled to submit written comments; the comments must be received in the regional office by November 3, 2017. Written comments may be mailed to the Southern Regional Office, U.S. Commission on Civil Rights, 61 Forsyth Street, Suite 16T126, Atlanta, GA 30303. They may also be faxed to the Commission at (404) 562-7005, or emailed to Regional Director, Jeffrey Hinton at
Records generated from this meeting may be inspected and reproduced at the Southern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The Sensors and Instrumentation Technical Advisory Committee (SITAC) will meet on October 25, 2017, 9:30 a.m., in the Herbert C. Hoover Building, Room 3884, 14th Street between Constitution and Pennsylvania Avenues NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on technical questions that affect the level of export controls applicable to sensors and instrumentation equipment and technology.
A limited number of seats will be available during the public session of the meeting. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate distribution of public presentation materials to the Committee members, the Committee suggests that the materials be forwarded before the meeting to Ms. Springer.
The Assistant Secretary for Administration, with the concurrence of the General Counsel, formally determined on August 30, 2017 pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 § 10(d), that the portion of this meeting dealing with pre-decisional changes to the Commerce Control List and U.S. export control policies shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.
For more information contact Yvette Springer on (202) 482-2813.
The Materials Processing Equipment Technical Advisory Committee (MPETAC) will meet on October 24, 2017, 9:00 a.m., Room 3884, in the Herbert C. Hoover Building, 14th Street between Pennsylvania and Constitution Avenues NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration with respect to technical questions that affect the level of export controls applicable to materials processing equipment and related technology.
A limited number of seats will be available for the public session. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate the distribution of public presentation materials to the Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Springer via email.
For more information, call Yvette Springer at (202) 482-2813.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) preliminarily determines that 100- to 150-seat large civil aircraft (aircraft) from Canada is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is April 1, 2016, through March 31, 2017.
Applicable October 13, 2017.
Drew Jackson or Lilit Astvatsatrian, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4406 or (202) 482-6412, respectively.
This preliminary determination is made in accordance with section 733(b) of the Tariff Act of 1930, as amended
The product covered by this investigation is aircraft from Canada. For a complete description of the scope of this investigation,
In accordance with the preamble to the Department's regulations,
Bombardier Inc. (Bombardier) is the sole mandatory respondent in this investigation, and failed to provide information requested in the Department's questionnaire. Accordingly, we preliminarily determine to base Bombardier's dumping margin on adverse facts available (AFA), in accordance with sections 776(a) and (b) of the Act and 19 CFR 351.308. As AFA, we applied the highest dumping margin calculated for Canadian exports of subject merchandise contained in the Petition, which is 79.82 percent.
The Department is conducting this investigation in accordance with section 731 of the Act. Pursuant to section 776(a) and (b) of the Act, the Department has preliminarily relied upon facts otherwise available with adverse inferences for Bombardier. For a full description of the methodology underlying the preliminary determination,
Sections 733(d)(1)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination the Department shall determine an estimated all-others rate for all exporters and producers not individually examined. This rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
The Department has preliminarily determined the estimated weighted-average dumping margin for the individually examined respondent entirely under section 776 of the Act. Consequently, pursuant to section 735(c)(5)(B) of the Act, the Department's normal practice under these circumstances has been to calculate the “all-others”` rate as a simple average of the alleged dumping margins from the Petition.
The Department preliminarily determines that the following estimated weighted-average dumping margins exist:
In accordance with section 733(d)(2) of the Act, the Department will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise, as described in Appendix I, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
The Department normally adjusts cash deposits for estimated antidumping duties by the amount of export subsidies countervailed in a companion countervailing duty (CVD) proceeding, when CVD provisional measures are in effect. However, because the Department has not made a preliminary affirmative determination for countervailable export subsidies in the companion CVD proceeding, the Department has not adjusted the estimated weighted-average dumping margin to offset countervailable export subsidies.
Normally, the Department discloses to interested parties the calculations performed in connection with a preliminary determination within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of the notice of preliminary determination in the
Because the examined respondent in this investigation did not provide information requested by the Department, and the Department preliminarily determines the examined respondent to have been uncooperative, we will not conduct verification.
Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than 21 days after the date of publication of the preliminary determination, unless the Secretary alters the time limit. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, the Department intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230, at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.
Section 735(a)(1) of the Act and 19 CFR 351.210(b)(1) provide that the Department will issue the final determination within 75 days after the date of its preliminary determination. Accordingly, the Department intends to make its final determination no later than 75 days after the signature date of this preliminary determination.
In accordance with section 733(f) of the Act, the Department will notify the International Trade Commission (ITC) of its preliminary determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether imports of the subject merchandise are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The merchandise covered by this investigation is aircraft, regardless of seating configuration, that have a standard 100- to 150-seat two-class seating capacity and a minimum 2,900 nautical mile range, as these terms are defined below.
“Standard 100- to 150-seat two-class seating capacity” refers to the capacity to accommodate 100 to 150 passengers, when eight passenger seats are configured for a 36-inch pitch, and the remaining passenger seats are configured for a 32-inch pitch. “Pitch” is the distance between a point on one seat and the same point on the seat in front of it.
“Standard 100- to 150-seat two-class seating capacity” does not delineate the number of seats actually in a subject aircraft or the actual seating configuration of a subject aircraft. Thus, the number of seats actually in a subject aircraft may be below 100 or exceed 150.
A “minimum 2,900 nautical mile range” means:
(i) Able to transport between 100 and 150 passengers and their luggage on routes equal to or longer than 2,900 nautical miles; or
(ii) covered by a U.S. Federal Aviation Administration (FAA) type certificate or supplemental type certificate that also covers other aircraft with a minimum 2,900 nautical mile range.
The scope includes all aircraft covered by the description above, regardless of whether they enter the United States fully or partially assembled, and regardless of whether, at the time of entry into the United States, they are approved for use by the FAA.
The merchandise covered by this investigation is currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheading 8802.40.0040. The merchandise may alternatively be classifiable under HTSUS subheading 8802.40.0090. Although these HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the investigation is dispositive.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed incidental harassment authorization; request for comments.
NMFS has received a request from the Alaska Department of Transportation and Public Facilities (ADOT&PF) for authorization to take marine mammals incidental to the Haines Ferry Terminal Modification Project in Haines, Alaska. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities.
Comments and information must be received no later than November 13, 2017.
Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to
Jaclyn Daly, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the applications and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as “an impact resulting from the specified activity:
(1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) directly displacing subsistence users; or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and
(2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.
The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review. This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion.
We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the IHA request.
On January 9, 2017, NMFS received a request from ADOT&PF for an IHA to take marine mammals incidental to conducting improvements at the Haines Ferry Terminal. On February 3, 2017, NMFS requested additional information and ADOT&PF submitted a revised application on March 27, 2017, which NMFS deemed adequate and complete. However, after further discussions, ADOT&PF submitted a final application on May 30, 2017, and then subsequently sent a request on August 17, 2017, to change the effective dates in the application to accommodate a delayed construction schedule. ADOT&PF's request is for harassment only and NMFS concurs that serious injury or mortality is not expected to result from this activity. Therefore, an IHA is appropriate.
ADOT&PF's request is for take of humpback whale (
ADOT&PF is proposing to construct two new berths and associated infrastructure adjacent at the existing Haines Ferry Terminal (see Attachment 1 in ADOT&PF's application for project drawings). The project includes impact and vibratory pile driving and vibratory pile removal. Sounds resulting from pile driving and removal may result in the incidental take of marine mammals by Level A and Level B harassment up to approximately 4.78 and 21.1 square kilometers (km
The IHA would be valid from October 1, 2018, through September 30, 2019; however, pile driving and removal would occur for only 21 days over the course of four months during this time period and work would not occur from March 1 through May 31, 2019. ADOT&PF anticipates up to 1 hour of vibratory pile driving and 15 to 30 minutes of impact pile driving per day.
The northern part of Lynn Canal braids into several inlets including Chilkat, Chilkoot, Taiya and Lutak Inlets. Tanani Point marks the confluence of Lutak Inlet and Chilkoot Inlet and is located approximately one mile (mi) southeast of the terminal. The Terminal is located near the mouth of Lutak Inlet, approximately four miles north of the town of Haines, in northern Southeast Alaska at 59°16′54″ N., 135°27′44.6″ W. (see Figures 1-1 and 1-2 in ADOT's application). At the terminal where pile driving may occur, Lutak Inlet is approximately 1.3 miles (mi) wide and water depth ranges from 20-40 feet (ft; 6-9 meters (m)); however, water depth in Lynn Canal reaches over 300 ft (91 m). Lutak Inlet is a glacial scoured fiord, characterized by a typical U-shaped glacial valley. The sediment is homogeneous, consisting of dark gray, silty gravel material, as well as cobbles and boulders. Other than the terminal, the region is not industrialized and is surrounded by several state parks and the Glacier Bay National Park and Preserve.
The Terminal is a multi-use dock used by Alaska Marine Highway Systems (AMHS) mainline and fast ferries, Alaska Marine Lines (AML) (tug and barge), and Delta Western (tug and barge). It is the second busiest AMHS port of call and can see up to four ferries coming and going during any given day in summer. The AMHS provides a transportation link for Alaska residents and businesses, as well as for non-residents visiting the state.
The Haines Ferry Terminal Modification Project involves constructing an AMHS End Berth Facility adjacent to the existing dock. The expansion is necessary because the current configuration does not allow for operation of the new Alaska Class vessels, which are expected to be operational in 2018. Specifically, modification work includes removing an existing structure and installing moorings, vehicle transfer float, float restraint structures, steel transfer bridges and associated abutment and bearing structure, berthing structures, catwalks and gangways, and a pile-supported passenger waiting shelter. The structure to be removed with a vibratory hammer is comprised of four 30-inch (in) cylindrical steel pipe piles. To construct the new infrastructure, ADOT&PF would install 37 new piles. Fifteen piles would be 36-in diameter with 1 in. wall thickness. The remaining 22 piles would be 30-in diameter and
All pile driving and removal would occur within 500 feet (152 meters) of the shoreline. Assuming two 30 in diameter piles could be removed each day, pile removal would take two days. Pile driving the 30-in piles is expected to take 11 days while an additional 8 days would be necessary to install the 36-in piles. In total, ADOT&PF would be elevating noise levels around the project area for 21 days (two days of pile removal plus 19 days of pile driving) of the 4 month construction window (four months from October 1, 2018, through September 30, 2019, excluding March 1, 2019 through May, 31 2019).
Other work for the project includes using a clamshell bucket dredge to
Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see the
Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS Stock Assessment Reports (SAR;
Table 1 lists all species with expected potential for occurrence in Lynn Canal and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2016). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's U.S. Alaska SARs (Muto
Three cetacean species have ranges near the terminal but are unlikely to occur in the project area: The Pacific white-sided dolphin (
Steller sea lion populations that primarily occur west of 144° W. (Cape Suckling, Alaska) comprise the western Distinct Population Segment (wDPS), while all others comprise the eastern DPS (eDPS); however, there is regular movement of both DPSs across this boundary (Muto
In Lynn Canal, Steller sea lions are most likely part of the eDPS; however, wDPS animals have moved into the area over the past several years. The first western DPS Steller sea lion documented in Lynn Canal occurred in 2003 at Benjamin Island in southern Lynn Canal (approximately 97 km or 60 miles south from the Ferry Terminal and 40 km or 25 miles north of Juneau, Alaska). This animal was subsequently re-sighted in 2003 and 2004. Two additional animals have been observed at Benjamin Island in 2005 and 2006. The Alaska Department of Fish and Game (ADF&G) has documented 88 western DPS Steller sea lions in the eastern region, of which 40 percent were female, and nine of these animals gave birth at rookeries in the eastern region. Data suggest five out of these nine females have permanently immigrated to the eastern region. Branded individuals from the western DPS have also been observed at Gran Point located about 22.5 km (14 mi) southeast of the project area. The eDPS stock has been increasing (Muto
Steller sea lions use terrestrial haulout sites to rest and take refuge. They also gather on well-defined, traditionally used rookeries to pup and breed. These habitats are typically gravel, rocky, or sand beaches; ledges; or rocky reefs (Allen and Angliss, 2013). Gran Point, which is located 14 mi (22.5 km) southeast of the project area, is the closest year-round Steller sea lion haulout. However, during the spring eulachon run, a seasonal haulout site is located on Taiya Point at the southern tip of Taiya Inlet (approximately 5 km or 3.1 mi from Haines Terminal). The eulachon run (which occurs for approximately three to four weeks during mid-March through May) in Lutak Inlet is extremely important to Steller sea lions for seasonal foraging. These spawning aggregations of forage fish provide densely aggregated, high-energy prey for Steller sea lions (and harbor seals) for brief time periods and influence haulout use (Sigler
Steller sea lions are included in subsistence harvests. From 2011-2012, an average of 50 animals from this stock were harvested each year, which is higher than previous estimates of 30 animals, on average, per year from 2004-2008 (Muto and Angliss, 2015). Incidental entanglement in fishing gear and marine debris is the biggest contributor to their annual human-caused mortality rate. In addition, since 2012, known cases of intentional mortality (
Harbor seals generally are nonmigratory, with local movements associated with such factors as tides, weather, season, food availability, and reproduction (Scheffer and Slipp 1944, Fisher 1952, Bigg 1969, 1981, Hastings
Harbor seals are included in subsistence harvests. From 2011-2012,
Under the MMPA, there are three stocks of humpback whales in the North Pacific: (1) The California/Oregon/Washington and Mexico stock, consisting of winter/spring populations in coastal Central America and coastal Mexico which migrate to the coast of California to southern British Columbia in summer/fall (Calambokidis
On September 8, 2016, NMFS published a final decision changing the status of humpback whales under the ESA (81 FR 62259), effective October 11, 2016. Previously, humpback whales were listed under the ESA as an endangered species worldwide. In the 2016 decision, NMFS recognized the existence of 14 DPSs, classified four of those as endangered and one as threatened, and determined that the remaining nine DPSs do not warrant protection under the ESA. WNP DPS whales do not occur in Southeast Alaska. Whales from the Mexico DPS, which is a threatened species, have a 6.1 percent probability of occurrence in Southeast Alaska. Humpback whales in Southeast Alaska are most likely to be from the Hawaii DPS (93.9 percent probability), which is not protected under the ESA.
Humpback whales are not common in the action area but, if they are sighted, are generally present during mid- to late spring (mid-May through June) and vacate the area by July to follow large aggregations of forage fish in lower Lynn Canal. However, in recent years humpback whales have been observed at the entrance to Taiya Inlet throughout the fall months (MOS 2016). Four to five whales were observed in the area from spring 2015 to November (MOS 2016).
Based on data regarding association patterns, acoustics, movements, and genetic differences, eight killer whale stocks are now recognized: (1) The Alaska Resident stock; (2) the Northern Resident stock; (3) the Southern Resident stock; (4) the Gulf of Alaska, Aleutian Islands, and Bering Sea Transient stock; (5) the AT1 Transient stock; (6) the West Coast transient stock, occurring from California through southeastern Alaska; and (7) the Offshore stock, and (8) the Hawaiian stock. Only the Alaska resident; Northern resident; Gulf of Alaska, Aleutian Islands, and Bering Sea Transient (Gulf of Alaska transient); and the West coast transient stocks are considered in this application because other stocks occur outside the geographic area under consideration. Any of these four stocks could be seen in the action area; however, the Northern resident stock is most likely to occur in the area.
The Alaska resident stock is found from southeastern Alaska to the Aleutian Islands and Bering Sea. Intermixing of Alaska residents have been documented among the three areas, at least as far west as the eastern Aleutian Islands (Allen and Angliss, 2013). The Northern resident stock occurs from Washington State through part of southeastern Alaska. The Northern Resident stock is a transboundary stock and includes killer whales that frequent British Columbia, Canada and southeastern Alaska (Dahlheim
Transient killer whales occur in smaller, less matrilineal groupings than resident killer whales. They are also more likely to rely on stealth tactics when foraging, making fewer and less conspicuous calls, and edging along shorelines and around headlands in order to hunt their prey, including, Steller sea lions, harbor seals, and smaller cetaceans, in highly coordinated attacks (Barrett-Lennard
Data from Lutak Inlet suggests that a small number of killer whales infrequently enter the inlet, generally during spring fish runs when large aggregations of pinnipeds are also present (K. Hastings, pers. comm.). Up to 15 to 20 killer whales have been observed in Taiya Inlet 4 to 5 times a year from early spring through fall (MOS 2016). Transient killer whales have also been observed in Lutak Inlet in front of the Terminal when sea lions are present (K. Hastings, pers. comm.), presumably following their preferred food source. The mean group size of four to six animals documented by Dahlheim
In Alaska, harbor porpoises are currently divided into three stocks, based primarily on geography. These are (1) the Southeast Alaska stock—occurring from the northern border of British Columbia to Cape Suckling, Alaska, (2) the Gulf of Alaska stock—occurring from Cape Suckling to Unimak Pass, and (3) the Bering Sea stock—occurring throughout the Aleutian Islands and all waters north of Unimak Pass (Allen and Angliss 2014). Only the Southeast Alaska stock is considered in this application because the other stocks are not found in the geographic area under consideration. The total estimated annual level of human-caused mortality and serious injury (M/SI) for harbor porpoise in Alaska (n=34) exceeds the calculated PBR of 8.9 harbor porpoise. However, this calculated PBR is based on the minimum population estimate for harbor porpoise in inland waters of southeast Alaska only (n=896) while the annual level of human caused M/SI is derived from take in all fisheries throughout Alaska. Therefore, PBR represents the total amount of animals that can be removed from all harbor porpoise stocks in Alaska combined. No mortality or serious injury of harbor porpoise from the Southeast Alaska stock has been observed incidental to U.S. commercial fisheries in Alaska in 2010-2014 (Breiwick 2013; MML unpubl. data). Population trends and status of this stock relative to its optimum sustainable population are currently unknown.
In Lynn Canal, observations of harbor porpoise are not frequent and occur primarily in lower Lynn Canal; however, the species has been observed as far north as Haines during the
There are no subsistence use of this species; however, entanglement in fishing gear contributes to human-caused mortality and serious injury. Muto
Currently one stock of Dall's porpoise is recognized in Alaskan waters (Muto
At present, there is no reliable information on trends in abundance for the Alaska stock of Dall's porpoise (Muto
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
• Low-frequency cetaceans (mysticetes): generalized hearing is estimated to occur between approximately 7 hertz (Hz) and 35 kilohertz (kHz);
• Mid-frequency cetaceans (larger toothed whales, beaked whales, and most delphinids): Generalized hearing is estimated to occur between approximately 150 Hz and 160 kHz;
• High-frequency cetaceans (porpoises, river dolphins, and members of the genera Kogia and Cephalorhynchus; including two members of the genus Lagenorhynchus, on the basis of recent echolocation data and genetic data): Generalized hearing is estimated to occur between approximately 275 Hz and 160 kHz;
• Pinnipeds in water; Phocidae (true seals): generalized hearing is estimated to occur between approximately 50 Hz to 86 kHz; and
• Pinnipeds in water; Otariidae (eared seals): generalized hearing is estimated to occur between 60 Hz and 39 kHz.
The pinniped functional hearing group was modified from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS (2016) for a review of available information. Six marine mammal species (four cetacean and two pinniped (one otariid and one phocid) species) have the reasonable potential to co-occur with the proposed survey activities. Of the cetacean species that may be present, one is classified as a low-frequency cetacean (
This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis and Determination” section will consider the content of this section, the “Estimated Take by Incidental Harassment” section, and the “Proposed Mitigation” section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks.
The introduction of anthropogenic noise into the aquatic environment from pile driving and removal is the primary means by which marine mammals may be harassed from ADOT&PF's specified activity. Animals exposed to natural or anthropogenic sound may experience physical and psychological effects, ranging in magnitude from none to severe (Southall
NMFS defines a noise-induced threshold shift (TS) as “a change, usually an increase, in the threshold of audibility at a specified frequency or portion of an individual's hearing range above a previously established reference level” (NMFS, 2016). The amount of threshold shift is customarily expressed in dB (ANSI 1995, Yost 2007). A TS can be permanent or temporary. As described in NMFS (2016), there are numerous factors to consider when examining the consequence of TS, including, but not limited to, the signal temporal pattern (
With the exception of a single study unintentionally inducing PTS in a harbor seal (Kastak et al., 2008), there are no empirical data measuring PTS in marine mammals largely due to the fact that, for various ethical reasons, experiments involving anthropogenic noise exposure at levels inducing PTS are not typically pursued or authorized (NMFS, 2016).
Depending on the degree (elevation of threshold in dB), duration (
The potential for TTS from impact pile driving exists. After exposure to playbacks of impact pile driving sounds (rate 2760 strikes/hour) in captivity, mean TTS increased from 0 dB after 15 minute exposure to 5 dB after 360 minute exposure; recovery occurred within 60 minute (Kastelein
Exposure to noise from pile driving and removal also has the potential to behavioral disturb marine mammals. Disturbance may result in changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where sound sources are located. Pinnipeds may increase their haul-out time, possibly to avoid in-water disturbance (Thorson and Reyff, 2006). These potential behavioral responses to sound are highly variable and context-specific and reactions, if any, depend on species, state of maturity, experience, current activity, reproductive state, auditory sensitivity, time of day, and many other factors (Richardson
If a marine mammal does react to an underwater sound by changing its behavior or moving a small distance, the impacts of that change may not be important to the individual, the stock, or the species as a whole. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on the animals could be important. In general, pinnipeds seem more tolerant of, or at least habituate more quickly to, potentially disturbing underwater sound than do cetaceans, and generally seem to be less responsive to exposure to industrial sound than most cetaceans.
In 2016, ADOT&PF documented observations of marine mammals during construction activities (
Masking is the obscuring of sounds of interest to an animal by other sounds, typically at similar frequencies. It may be caused by both natural (
Masking of natural sounds can result when human activities produce high levels of background sound at frequencies important to marine mammals. Conversely, if the background level of underwater sound is high (
Construction activities at the Haines Ferry terminal could have localized, temporary impacts on marine mammal habitat and their prey by increasing in-water sound pressure levels and slightly decreasing water quality. Increased noise levels may adversely affect marine mammal prey in the vicinity of the project area. During impact pile driving, elevated levels of underwater noise would ensonify across Lutak Inlet where both fish and mammals occur and could affect foraging success. ADOT&PF would avoid pile driving during the more critical months (March 1 through May 31) when ephemeral fish run in the inlet, thereby avoiding the greatest densities of marine mammals.
In-water pile driving, pile removal, and dredging activities would also cause short-term effects on water quality due to increased turbidity. Dredging is likely to cause the greatest increase in suspended solids; however, turbidity plumes created is localized to about 7.6 m (25 ft) and could last from a few minutes to several hours. Any contaminants associated with the re-suspended sediments would be tightly bound to the sediment matrix. Because of the relatively small dredge area, turbidity plumes would be limited to the immediate vicinity of the terminal and adjacent portion of the inlet. ADOT&PF would employ standard construction best management practices (BMPs; see section 9 and 11.1 in ADOT's application), thereby, reducing any impacts. Therefore, the impact from increased turbidity levels is expected to be discountable.
This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform both NMFS' consideration of whether the number of takes is small and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes would primarily be by Level B harassment, as use of the impact and vibratory hammers has the potential to result in disruption of behavioral patterns and/or TTS for individual marine mammals. Impact pile driving may also result in auditory injury (Level A harassment) for mysticetes, high frequency cetaceans, and phocids due to modeled auditory injury zones based on exposure to noise from installing two piles per day. However, there are multiple hours between impact pile driving each pile; therefore, these zones are conservative as animals are not known to linger in the area. Therefore, PTS potential is low and, if occurs, would likely be minimal (
Described in the most basic way, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals may be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) the number of days of activities. Below, we describe these components in more detail and present the proposed take estimate.
Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
Level B Harassment for non-explosive sources—Though significantly driven by received level, the onset of behavioral
Level A harassment for non-explosive sources—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Technical Guidance, 2016) identifies dual criteria to assess auditory injury (Level A harassment) for five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive).
These thresholds were developed by compiling and synthesizing the best available science and soliciting input multiple times from both the public and peer reviewers to inform the final product, and are provided in Table 2. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2016 Technical Guidance, which may be accessed at:
Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds.
ADOT&PF prepared an acoustic modeling report that discusses their modeling approach and identifies modeled source levels and harassment zones for the Haines Ferry Terminal project (Quijano
To assess potential underwater noise exposure of marine mammals during pile driving, ADOT&PF used two models: A Pile Driving Source Model (PDSM) to estimate the sound radiation generated by the pile driver acting upon the pile (
To model sounds resulting from impact and vibratory pile driving of 30-in and 36-in cylindrical pipe pipes, the PDSM was used in conjunction with GRL Engineer's Wave Equation Analysis Program (GRLWEAP) pile driving simulation software to obtain an equivalent pile source signature (
Once the pile source signature was computed, the FWRAM sound propagation modeling code was used to determine received levels as a function of depth, range, and azimuth direction. FWRAM is a time-domain acoustic model that used, as input, the PDSM-generated array of point sources representing the pile and computes synthetic pressure waveforms. To exclude sound field outliers, NMFS uses the maximum range at which the given sound level was encountered after excluding 5 percent of the farthest such points (R
Steel cylindrical pipe piles 41 m (135 ft) long with
Modeled source levels and distances to NMFS acoustic thresholds based on these source levels and the sound propagation model are presented in Table 3 and 4.
The modeling approach described above and in ADOT&PF's application constitutes a new approach in that it models both source levels and propagation loss to estimate distances to NMFS harassment thresholds. Some preliminary data comparing measured sound levels to those produced by the models has been presented, but no peer reviewed analysis has been undertaken. To test the validity of the model, NMFS has included a proposed requirement that ADOT&PF conduct a source source verification (SSV) study upon the onset of pile driving to validate the model or, if necessary, adjust the harassment zones based on measured data. This SSV study will also provide the first measurements of sound levels generated by 36-in piles driven by ADOT&PF. ADOT&PF has prepared a draft acoustic monitoring plan which can be found at
In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.
The data on marine mammals in this area are diverse and fairly robust due mostly to ADF&G surveys. Strong seasonal occurrence of marine mammals in this area is well documented; therefore, density estimates for each species were calculated by month rather than averaged throughout the year. For example, we have already discussed the seasonality of Steller sea lions and how prey aggregations affect their abundance. Monthly Steller sea lion densities were calculated based on abundance surveys conducted at Gran Point (ADF&G, pers. comm). Considering the Steller sea lion data used to calculate density is from Gran Point, ADOT&PF used this location to mark the southern boundary of the action area. The area from Gran Point north that encompasses Lutak Inlet and Lynn Canal is 91.3 km
Here we describe how the information provided above is brought together to produce a quantitative take estimate.
The following equation was used to calculate potential Level A take per species per pile type:
ADOT&PF may take 1.9 humpback whales by Level A harassment when impact driving 30″ piles (
For killer whales, Level B takes from vibratory pile driving were calculated using June density and the full 21.1 km
For Dall's porpoise, we used the July density of 0.03 animals/km
Harbor porpoise take estimates were based on a density of .054 porpoise/km
Harbor seal Level A take numbers were based on 1.09 seals/km
For Steller sea lions, Level B takes from vibratory pile driving were calculated using the most conservative June density (assuming worst case scenario that all work occurs in June) and the full 21.1 km
Table 6 includes the total proposed take levels, by species, manner of taking, and the percentage of stock potentially taken by Level B harassment (we did not include Level A take percentages as the proposed number of take is essentially zero percent for all stocks).
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, “and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking” for
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat, as well as subsistence uses. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned) and,
(2) the practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
The following mitigation measures are proposed in the IHA:
•
•
•
•
Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, we have preliminarily determined that the proposed mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors.
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks.
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
Monitoring would be conducted 30 minutes before, during, and 30 minutes after pile driving and removal activities. In addition, observers shall record all incidents of marine mammal occurrence, regardless of distance from activity, and shall document any behavioral reactions in concert with distance from piles being driven or removed. Pile driving activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving
A primary PSO would be placed at the terminal where pile driving would occur and a second observer would be placed at Tanani Point, located approximately 1 mi (1.6 km) southeast of the terminal. This second observer is at an advantage to observe species prior to entering the Level A zone as they move up Chilkoot Inlet, covering a majority of the Level B zone. PSOs would scan the waters using binoculars, and/or spotting scopes, and would use a handheld GPS or range-finder device to verify the distance to each sighting from the project site. All PSOs would be trained in marine mammal identification and behaviors and are required to have no other project-related tasks while conducting monitoring. The following measures also apply to visual monitoring:
(1) Monitoring will be conducted by qualified observers, who will be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator. Qualified observers are trained biologists, with the following minimum qualifications:
(a) Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target;
(b) Advanced education in biological science or related field (undergraduate degree or higher required);
(c) Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience);
(d) Experience or training in the field identification of marine mammals, including the identification of behaviors;
(e) Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
(f) Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates and times when in-water construction activities were suspended to avoid potential incidental injury from construction sound of marine mammals observed within a defined shutdown zone; and marine mammal behavior; and
(g) Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.
A draft marine mammal monitoring report would be submitted to NMFS within 90 days after the completion of pile driving and removal activities. It will include an overall description of work completed, a narrative regarding marine mammal sightings, and associated marine mammal observation data sheets. Specifically, the report must include:
• Date and time that monitored activity begins or ends;
• Construction activities occurring during each observation period;
• Weather parameters (
• Water conditions (
• Species, numbers, and, if possible, sex and age class of marine mammals;
• Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;
• Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;
• Locations of all marine mammal observations; and
• Other human activity in the area.
If no comments are received from NMFS within 30 days, the draft final report will constitute the final report. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such as an injury, serious injury or mortality, ADOT&PF would immediately cease the specified activities and report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the Alaska Regional Stranding Coordinator. The report would include the following information:
• Description of the incident;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Activities would not resume until NMFS is able to review the circumstances of the prohibited take. NMFS would work with ADOT&PF to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. ADOT&PF would not be able to resume their activities until notified by NMFS via letter, email, or telephone.
In the event that ADOT&PF discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that ADOT&PF discovers an injured or dead marine mammal and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (
ADOT&PF relied on source level and sound propagation models to estimate Level A and harassment zones. To validate the outputs of these models, ADOT&PF will conduct acoustic monitoring during the first two days of pile driving. The acoustic monitoring plan is available for review at
NMFS has defined negligible impact as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
The Level A harassment zones identified in Tables 3 and 4 are based upon an animal exposed to impact pile driving two piles per day. Considering duration of impact driving each pile (up to 15 minutes) and breaks between pile installations (to reset equipment and move pile into place), this means an animal would have to remain within the area estimated to be ensonified above the Level A harassment threshold for multiple hours. This is highly unlikely given marine mammal movement throughout the area. If an animal was exposed to accumulated sound energy, the resulting PTS would likely be small (
Behavioral responses of marine mammals to pile driving and removal at the Terminal, if any, are expected to be mild and temporary. Marine mammals within the Level B harassment zone may not show any visual cues they are disturbed by activities (as noted during modification to the Kodiak Ferry Dock) or could become alert, avoid the area, leave the area, or display other mild responses that are not observable such as changes in vocalization patterns. Given the short duration of noise-generating activities per day and that pile driving and removal would occur on 21 days across 4 months, any harassment would be temporary. In addition, ADOT&PF would not conduct pile driving or removal during the spring eulachon and herring runs as well as the fall salmon runs, when marine mammals are in greatest abundance and engaging in concentrated foraging behavior.
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No mortality is anticipated or authorized.
• ADOT&PF would avoid pile driving and removal during peak periods of marine mammals abundance and foraging (
• ADOT&PF would implement mitigation measures such as vibratory driving piles to the maximum extent practicable, soft-starts, use of sound attenuation devices, and shut downs.
• Monitoring reports from similar work in Alaska have documented little to no effect on individuals of the same species impacted by the specified activities.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under Section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
The amount of take NMFS proposes to authorize is 0.03 to 12.3 percent of any stock's best population estimate. The 12.3 percent is based on the possibility all 30 takes of killer whales are from the West Coast Transient stock (population size 243) which is highly unlikely. The next lowest percent of stock is for the Steller sea lion eDPS at 6.7 percent; however, this is also conservative because it assumes all pile driving occurs in June which has the highest Steller sea lion density and assumes all takes are of individual animals which is likely not the case. Harbor seal takes represent 6.3 percent of the Lynn Canal/Stephens passage population while takes for the remaining five species, including the Steller sea lion wDPS, represent less than 1 percent of all stocks.
Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
NMFS is proposing to authorize take of the Steller sea lion wDPS and the Mexico humpback whale DPS which are listed under the ESA. The Permit and Conservation Division has requested initiation of Section 7 consultation with the Alaska Region for the issuance of
As a result of these preliminary determinations, NMFS proposes to issue an IHA to ADOT&PF for conducting pile driving and removal at the Haines Ferry Terminal, Alaska, from October 1, 2018 September 30, 2019 provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued).
1. This IHA is valid from October 1 2018, through September 30, 2019.
2. This IHA is valid only for pile driving and removal during the Haines Ferry Terminal Modification Project, Haines, Alaska.
3.
(a) A copy of this IHA must be in the possession of, its designees, and work crew personnel operating under the authority of this IHA.
(b) The species authorized for taking is the Steller sea lions (
(c) The taking, by harassment, is limited to the species listed in condition 3(b). See Table 6 for manner of taking and numbers of take authorized, by species.
(d) The taking by serious injury or death of the species listed in condition 3(b) of this IHA or any taking of species of marine mammal not listed in condition 3(b) is prohibited and may result in the modification, suspension, or revocation of this IHA.
(e) The taking of any marine mammal in a manner prohibited under this IHA must be reported immediately to the Office of Protected Resources, NMFS.
(f) ADOT&PF shall conduct briefings between construction supervisors and crews, marine mammal monitoring team, and ADOT&PF staff prior to the start of pile driving and removal for the Haines Ferry Terminal Modification Project, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.
4.
The holder of this Authorization is required to implement the following mitigation measures:
(a)
(b)
(c)
(i) ADOT&PF shall drive all piles with a vibratory hammer to the maximum extent possible (
(ii) ADOT&PF shall use sound attenuation devices (
(iii) ADOT&PF shall use a “soft start” technique at the beginning of impact pile driving to allow any marine mammal that may be in the immediate area to leave before hammering at full energy. The soft start requires ADOT&PF to provide an initial set of three strikes from the impact hammer at 40 percent energy, followed by a one-minute waiting period, then two subsequent 3-strike sets.
(iv) ADOT&PF shall use a direct pull method as the primary removal method for piles and, if ineffective, then using a vibratory hammer;
(d)
(i) A shut-down zone of 10 m shall be established during impact pile driving. Pile driving shall not commence until marine mammals are not sighted within the shut-down zone for a 15-minute period. If a marine mammal enters the shut down zone during pile driving, the activity shall stop until the animal leaves the shut-down zone or until 15 minutes has elapsed without observation of the animal within the zone.
(ii) If any marine mammal is sighted within the Level A zone (see Tables 3 and 4) designated for that species prior to pile-driving, or during the soft start, ADOT&PF shall delay pile-driving until the animal is confirmed to have moved outside and on a path away from Level A zone or if 15 minutes have elapsed since the last sighting.
(iii) ADOT&PF shall use delay and shut-down procedures, if a species for which authorization has not been granted or if a species for which authorization has been granted but the authorized takes are met, approaches or is observed within the Level A and/or B harassment zone.
(iv) ADOT&PF shall use delay and shut-down procedures, if a species for which authorization has not been granted or if a species for which authorization has been granted but the authorized takes are met, approaches or is observed within the Level A and/or B harassment zone (as appropriate).
5.
The holder of this Authorization is required to abide by the following monitoring conditions:
(a) Two qualified Protected Species Observer (PSOs) shall be used to detect, document, and minimize impacts to marine mammals. One PSO shall be stationed at the Terminal and another shall be stationed at Tanani Point or other vantage point that allows visual line of sight across Chilkoot Inlet.
(b) Qualifications for PSOs for visual monitoring include:
(i) Visual acuity in both eyes (correction is permissible) sufficient for discernment of harbor seals on land or in the water with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target;
(ii) Advanced education in biological science or related field (undergraduate degree or higher required);
(iii) Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience);
(iv) Experience or training in the field identification of marine mammals, including the identification of behaviors;
(v) Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
(vi) Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when construction activities were conducted; dates and times when construction activities were suspended to avoid potential incidental injury from construction sound or visual disturbance of marine mammals observed; and marine mammal behavior; and
(vii) Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.
(c) PSO Monitoring and Data Collection: Monitoring shall be conducted before, during, and after pile driving and removal activities. PSOs shall record all incidents of marine mammal occurrence, regardless of distance from activity, and shall document any behavioral reactions in
(d) Monitoring requirements also include:
(i) The holder of this Authorization must designate at least one biologically-trained, on-site individual(s), approved in advance by NMFS, to monitor marine mammal species. The PSO shall be trained in marine mammal identification and behaviors and are required to have no other construction-related tasks while conducting monitoring.
(ii) PSOs shall be provided with the equipment necessary to effectively monitor for marine mammals in order to record species, behaviors, and responses to construction activities.
(iii)
(iv) Data collection during marine mammal monitoring shall consist of counts of all marine mammals by species and number (if possible, also include sex and age class), a description of behavior, location, direction of movement, type of construction that is occurring, time construction activities starts and ends, any noise or visual disturbance, and time of the observation. The type of take (
• Time of PSO arrival on site;
• Time of the commencement of construction activities;
• Distances to all marine mammals relative to the disturbance;
• Observations, notes on marine mammal behavior during construction activities, as described above, and on the number and distribution observed in the project vicinity;
• For observations of all other marine mammals (if observed) the time and duration of each animal's presence in the project vicinity; the number of animals observed; the behavior of each animal, including any response to construction activities;
• Time of the cessation of construction activities;
• Time of PSO departure from site; and
• An estimate of the number (by species) of marine mammals that are known to have been disturbed by construction activities (based on visual observation) with a discussion of any specific behaviors those individuals exhibited. Disturbance must be recorded according to NMFS' three-point scale.
(v)
(e)
6.
(a) The ADOT&PF shall submit a draft report to NMFS within 90 days of the completion of marine mammal monitoring, or sixty days prior to the issuance of any subsequent IHA for this project (if required), whichever comes first. The report shall include marine mammal observations pre-activity, during-activity, and post-activity of construction, and shall also provide descriptions of any behavioral responses by marine mammals due to disturbance from construction activities and a complete description of total take estimate based on the number of marine mammals observed during the course of construction. If comments are received from the NMFS Office of Protected Resources on the draft report, a final report shall be submitted to NMFS within 30 days thereafter following resolution of comments on the draft report from NMFS. If no comments are received from NMFS, the draft report will be considered to be the final report. This report must contain the informational elements described above and in the monitoring plan of the application and at minimum shall also include:
(b) Reporting injured or dead marine mammals:
(i) In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this IHA, such as serious injury or mortality, ADOT&PF shall immediately cease the specified activities and report the incident to the NMFS' Office of Protected Resources and the West Coast Regional Stranding Coordinator. The report must include the following information:
• Time and date of the incident;
• Description of the incident;
• Environmental conditions (
• Description of all marine mammal observations and active sound
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with ADOT&PF to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. ADOT&PF may not resume their activities until notified by NMFS.
(ii) In the event that ADOT&PF discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent
(iii) In the event that the ADOT&PF discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (
7. This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein, or if NMFS determines the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals.
We request comment on our analyses, the draft authorization, and any other aspect of this Notice of Proposed IHA for the proposed Haines Ferry Terminal Dock Modification Project. Please include with your comments any supporting data or literature citations to help inform our final decision on the request for MMPA authorization.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for nominations.
Nominations are being sought for appointment by the Secretary of Commerce to fill vacancies on the Marine Fisheries Advisory Committee (MAFAC or Committee) that are open or will be pending in February 2018. MAFAC is the only Federal advisory committee with the responsibility to advise the Secretary of Commerce (Secretary) on all matters concerning living marine resources that are the responsibility of the Department of Commerce. The Committee makes recommendations to the Secretary to assist in the development and implementation of Departmental regulations, policies, and programs critical to the mission and goals of NMFS. Nominations are encouraged from all interested parties involved with or representing interests affected by NMFS actions in managing living marine resources. Nominees should possess demonstrable expertise in a field related to the management of living marine resources and be able to fulfill the time commitments required for two annual meetings and year round subcommittee work. Individuals serve for a term of three years for no more than two consecutive terms if re-appointed. NMFS is seeking qualified nominees to fill upcoming vacancies being created by term limits.
Nominations must be postmarked or have an email date stamp on or before November 27, 2017.
Nominations should be sent to Heidi Lovett, MAFAC Assistant Director, NMFS Office of Policy, 14th Floor, 1315 East-West Highway, Silver Spring, MD 20910.
Heidi Lovett, MAFAC Assistant Director; (301) 427-8034; email:
The MAFAC was approved by the Secretary on December 28, 1970, and subsequently chartered under the Federal Advisory Committee Act, 5 U.S.C. App. 2, on February 17, 1971. The Committee meets twice a year with supplementary subcommittee meetings as determined necessary by the Committee Chair and Subcommittee Chairs. No less than 15 and no more than 21 individuals may serve on the Committee. Membership is comprised of highly qualified, diverse individuals representing commercial, recreational, subsistence, and aquaculture fisheries interests; seafood industry; environmental organizations; academic institutions; tribal and consumer groups; and other living marine resource interest groups from a balance of U.S. geographical regions, including the Western Pacific and Caribbean.
A MAFAC member cannot be a Federal employee, member of a Regional Fishery Management Council, registered Federal lobbyist, State employee, or agent of a foreign principal. Selected candidates must pass a security check and submit a financial disclosure form. Membership is voluntary, and except for reimbursable travel and related expenses, service is without pay.
Each nomination submission should include the nominee's name, a cover letter describing the nominee's qualifications and interest in serving on the Committee, curriculum vitae or resume of the nominee, and no more than three supporting letters describing the nominee's qualifications and interest in serving on the Committee. Self-nominations are acceptable. The following contact information should accompany each nominee's submission: name, address, telephone number, fax number, and email address (if available).
Nominations should be sent to Heidi Lovett (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of incidental harassment authorization.
NMFS has issued an incidental harassment authorization (IHA) to the City and Borough of Sitka (CBS) for the taking marine mammals incidental to modifying the Gary Paxton Industrial Park (GPIP) dock in Sawmill Cove, Alaska.
The IHA is valid from October 1, 2017 through December 31, 2017.
Electronic copies of the applications and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
Jaclyn Daly, Office of Protected Resources, NMFS, (301) 427-8401.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as an impact resulting from the specified activity:
(1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) directly displacing subsistence users; or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and
(2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.
The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
Accordingly, NMFS has determined that the issuance of the IHA qualifies to be categorically excluded from further NEPA review. This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion.
On June 21, 2017, NMFS received a complete application from CBS requesting take of marine mammals incidental to the GPIP dock modification project in Sawmill Cove, Alaska. CBS is authorized to take six species of marine mammals, by Level B harassment, and three of those six species by Level A harassment. Pile driving and removal would occur for 16 days from October 1 through December 31, 2017 with the majority of work completed in October. No subsequent IHAs would be necessary to complete the project. No mortality or serious injury is expected or authorized.
CBS is modifying an existing marine and commercial industrial site by removing existing aging docks and installing a new floating dock, small craft float, and transfer bridge. To do so, CBS must remove existing abandoned, creosote-treated piles and install new piles. Pile driving and pile removal associated with this work may result in auditory injury (Level A harassment) and behavioral harassment (Level B harassment) of select marine mammal species. All pile driving and removal would take place at the existing dock facility and occur for 16 days. The purpose of the project is to provide deep water port access, meet modern safety standards, and promote marine commerce in the region.
The IHA is valid from October 1, 2017, through December 31, 2017; however, the majority of work will occur in October. Removing old timber piles with a vibratory hammer will occur for up to 5 hours per day for 6 days. Removing the temporary template piles will occur for up to 1 hour on 2 additional days. Vibratory pile driving will occur for up to 2 hours per day for 6 days to install the permanent piles while impact pile driving will occur for up to 10 minutes a day for proofing following vibratory pile driving. In total, pile activities will occur for a maximum of 16 days .
Sawmill Cove is a small body of water located near Sitka, Alaska, at the mouth of Silver Bay,which opens to Sitka Sound and the Gulf of Alaska (see figures 1 and 2 in application). Bathymetry in Sawmill Cove shows a fairly even seafloor that gradually falls to a depth of approximately 50 feet (ft) (15 meters (m)). To the southeast, Silver Bay is approximately 0.5 miles (mi) (0.8 kilometers (km)) wide, 5.5 mi (8.9 km) long, and 150-250 ft (46-76 m) deep. The bay is uniform with few rock outcroppings or islands. To the southwest, the Eastern Channel opens to Sitka Sound, dropping off to depths of 400 ft (120 m) approximately 1.6 km (1 mi) southwest of the project site.
Sawmill Cove is an active marine commercial and industrial area. The dock footprint is previously disturbed with abandoned dock structures associated with the former Alaska Pulp Mill. Silver Bay Seafoods processing plant is located adjacent to the project site. This plant processes herring and salmon (primarily pink salmon).
The purpose of the project is to construct a multipurpose docking area that will serve a wide variety of vessels, provide deep water port access to the GPIP, meet modern standards for safety, and promote marine commerce in the region. The
The work includes removing 280 abandoned creosote-treated piles located in shallow water, installing a large floating deep-water dock (a repurposed barge measuring 250 ft (76.2 m) x 74 ft (22.6 m) x 19 ft (5.8 m)), small craft float (12 ft (3.7 m) x 100 ft (30.5 m)), and v-shaped float (see Figure 4 and 5 in CBS's application). To complete the new dock, CBS will construct two dolphin structures to support the floating dock. Each dolphin requires 6 temporary 30-in steel piles to act as a template for installing the permanent piles, 2 permanent 30-in steel batter piles (piles driven at an angle with the vertical to resist a lateral force) to act as the “legs” of the dolphin, and a single 48-in vertical steel piles which would constitute the center of the dolphin structure. CBS will use a vibratory and diesel impact hammer to install piles. The existing old timber piles associated with the old dock will
A notice of NMFS' proposal to issue an IHA was published in the
With respect to increased vessel traffic, the project would not significantly increase vessel traffic. Historically Sawmill Cove was used by the Alaska Pulp Corporation and outbound pulp shipments were frequent during the corporation's operations from 1959 to 1993. There are no identified manufacturing or processing activities that would achieve historic levels of use at the GPIP dock. Further, an assessment determined that Sitka's inbound and outbound cargo needs are being met at this time through a combination of private and public docks, and, given a flat population projection through 2035, no major changes in cargo shipments are expected (Northern Economics 2009). CBS does not have leases in place for use of the new GPIP dock. However, in the near future, the dock will likely be used to berth vessels associated with the existing commercial fishing industry but a net increase in vessels is not expected. In addition, moorings are part of the project; therefore, vessels may remain within Sawmill Cover instead of transiting to Sitka to dock overnight.
There are seven marine mammal species known to occur in the vicinity of the project area which may be subjected to take. These are the humpback whale, killer whale, Steller sea lion, harbor porpoise, harbor seal, California sea lion, and sea otter (
We have reviewed CBS's species descriptions, including life history information, for accuracy and completeness and refer the reader to Section 3 and 4 of CBS's application as well as the proposed incidental harassment authorization published in the
Table 1 lists marine mammal stocks that could occur in the vicinity of the dock project and summarizes key information regarding stock status and abundance. Please see NMFS' Stock Assessment Reports (SAR), available at
The
The
This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform both NMFS' consideration of whether the number of takes is “small” and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, Section 3(18) of the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes are primarily Level B harassment, as pile driving and removal has the potential to result in disruption of behavioral patterns and TTS for individual marine mammals. There is also some potential for auditory injury (Level A harassment) to result for high frequency species and harbor seals (phocids) due to larger predicted auditory injury zones. Auditory injury is unlikely to occur for all other hearing groups due to small zones or implementing shut-down mitigation. The mitigation and monitoring measures are expected to minimize the severity of such taking to the extent practicable. No mortality or serious injury is anticipated from the activity or authorized in the IHA. Below we describe how the take is estimated.
Described in the most basic way, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. Below, we describe these components in more detail and present the take estimate.
Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
Level B Harassment for non-explosive sources—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source (
Level A harassment for non-explosive sources—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Technical Guidance, 2016) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). CBS's activity includes the use of impulsive (impact pile driving) and non-impulsive (vibratory pile driving and removal) sources.
These thresholds were developed by compiling and synthesizing the best available science and soliciting input multiple times from both the public and peer reviewers to inform the final product, and are provided in Table 2. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2016 Technical Guidance, which may be accessed at
Distances to Level A and Level B thresholds were calculated based on various source levels for a given activity and pile type (
In this section, we provide the information about the presence, density, or group structure of marine mammals that will inform the take calculations.
Data on marine mammals in the project area is limited. Land-based surveys conducted at Sitka's Whale Park occurred from September through May, annually, from 1994 to 2000 (Straley and Pendell, 2017). From 2000 to 2016, Straley also collected marine mammal data from small vessels throughout the year. There are no density data available; therefore, probability of occurrence based on group sightings and typical group sizes were used in take calculations (Table 4).
Because density data are not available for Sitka Sound, we used group sighting data as an indicator of how often marine mammals may be present during the 16 days of pile driving/removing activity in consideration of the Level B harassment zones. We also considered typical group size to determine how many animals may be present on any given day. For all species, we used the following equation to estimate the number of animals, by species, potentially taken from exposure to pile driving and removing noise:
The Sitka Whale Park surveys found humpback whale groups may include up to four individuals (Straley and Pendell 2017). Based on sighting frequency, this species is present more often during winter months when the project would occur and we conservatively estimate that a group of 4 humpback whales may occur within the Level B harassment zone on any of the 16 days of pile activities. Therefore, we have authorized 64 Level B takes of humpback whales. Due to the decreased Level A harassment isopleth from the proposed IHA stage, CBS will shut-down impact pile driving if a humpback whale comes within the established shut-down zone; therefore, no Level A take for this species is anticipated or authorized (see
For killer whales, it is assumed eight killer whales could be present within the Level B harassment zone on any two days of pile activity; therefore, we have authorized 16 takes. No Level A take is
Harbor porpoise typically travel in groups of five and we anticipate a group could enter the Level A zone on two of the six days of impact pile driving and a group could be present within the Level B harassment zone on two days of the project. Therefore, we have authorized ten Level A takes (five animals × two days) and ten Level B takes (five animals × two days) of harbor porpoise.
Steller sea lions are common in the area during the work with one to ten animals present on any given day of work. We assume that on any day of the 16 days of pile driving, 14 Steller sea lions could be within the Level B harassment zone on each day of pile driving. Therefore, over the course of 16 days of pile driving, we have authorized 224 sea lions may be taken (14 animals × 16 days); however, this is likely representative of the number of exposures, not individuals taken. No Level A takes of Steller sea lions are anticipated or authorized from impact pile driving due to the small harassment zone and mitigation shut down measures (see
Harbor seals are found in the action area throughout the year but in low numbers. Group size is typically one to two animals. It is anticipated that two harbor seals could be present within the Level A zone every other day of the six days of impact pile driving. It is also assumed that a group of 2 harbor seals could be encountered in the Level B harassment zone during the 16 days of pile driving. Therefore, we have authorized 6 Level A takes (2 animals × 3 days) and 32 Level B takes (2 animals × 16 days) of harbor seals.
For harbor seals and Steller sea lions, the number of animals potentially present likely reflects the same individuals occurring over multiple days; therefore the number of takes likely represents exposures versus individuals. For all cetacean species, it is likely the calculated takes do reflect the number of individuals exposed because they would be expected to be transiting through the action area, not lingering like pinnipeds.
NMFS has also included 16 Level B takes of California sea lions in the IHA. No Level A takes are authorized because the shut-down zone established for Steller sea lions would apply and California sea lions are in the same hearing group as Steller sea lions meaning the distance to Level A harassment is the same. As described above, no research reports include sightings of California sea lions and they were not included in the notice of the proposed IHA. However, during the public comment period, the NPS identified that California sea lions, while not common, could potentially be in the project area while pile activities will occur. Therefore, NMFS has authorized 16 Level B takes which is one half the amount of harbor seal takes, another species which may occur in the project area but is less likely to occur than Steller sea lions. Similar to humpback and other pinnipeds, this amount of take represents exposures and not necessarily the number of individuals exposed given California sea lions may linger in the action area.
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, “and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking” for certain subsistence uses. NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation can ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors: (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat—which considers the nature of the potential adverse impact being mitigated (likelihood, scope, range), as well as the likelihood that the measure will be effective if implemented; and the likelihood of effective implementation, and; (2) the practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
The following mitigation measures, designed to minimize noise exposure, are included in the IHA:
• CBS shall not begin pile driving or removal until a PSO has given a notice to proceed.
• CBS shall first attempt to direct pull old, abandoned piles that would minimize noise input into the marine environment; if those efforts prove to be ineffective, they may proceed with a vibratory hammer.
• CBS shall operate the vibratory hammer at a reduced energy setting (30 to 50 percent of its rated energy).
• CBS shall use a pile cushion during impact hammering.
• CBS shall use a “soft start” technique when impact pile driving. CBS shall provide an initial set of three strikes from the impact hammer at 40 percent energy, followed by a one minute waiting period, then two subsequent 3-strike sets. If any marine mammal is sighted within a shut-down zone during the 30 minute survey prior to pile driving, or during the soft start, CBS shall delay pile-driving until the animal is confirmed to have moved outside and on a path away from the area or if 15 minutes (for pinnipeds or small cetaceans) or 30 minutes (for large cetaceans) have elapsed since the last sighting of the marine mammal within the shut-downzone. This soft-start shall be applied prior to beginning pile driving activities each day or when pile driving hammers have been idle for more than 30 minutes.
• CBS shall drive all piles with a vibratory hammer to the maximum extent possible (
• CBS shall use delay and shut-down procedures, if a species for which authorization has not been granted or if a species for which authorization has been granted but the authorized takes are met, approaches or is observed within the Level A and/or B harassment zone.
• CBS shall implement the shut-down zones identified in Table 6 to minimize harassment.
Based on our evaluation of the included measures, NMFS has determined that the mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. Effective reporting is critical to both compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors.
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks.
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
One land-based protected species observer (PSO) shall be present during
No less than 30 minutes prior to any pile driving or removal (other than timber pile removal), the boat-based PSO shall begin monitoring the Level A and B harassment zones. A boat-based PSO is not required during timber pile removal due to limited harassment zones. This PSO shall transit to the head of Silver Bay to ensure that there are no marine mammals for which take is not authorized or to document species for which take is authorized. The boat-based PSO shall communicate with the construction foreman or superintendent once the area is determined to be clear and pile driving activities can begin. The boat-based PSO shall then transit back to the construction site and spend the rest of the pile driving time monitoring the area from the boat (see Figure 3 in CBS's application).
If any marine mammals are present within a shut-down zone, pile driving and removal activities shall not begin until the animal(s) has left the shut-down zone or no marine mammals have been observed in the shut-down zone for 15 minutes (for pinnipeds) or 30 minutes (for cetaceans). The boat-based PSO shall remain near the mouth of Sawmill Cove for the duration of pile driving to monitor for any animals approaching the area.
The following measures also apply to visual monitoring:
(1) Monitoring shall be conducted by independent (
(a) Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target;
(b) Advanced education in biological science or related field (undergraduate degree or higher required);
(c) Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience);
(d) Experience or training in the field identification of marine mammals, including the identification of behaviors;
(e) Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
(f) Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates and times when in-water construction activities were suspended to avoid potential incidental injury from construction sound of marine mammals observed within a defined shut-down zone; and marine mammal behavior; and
(g) Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.
In addition, CBS must submit to NMFS OPR the curriculum vitae (CV) of all observers prior to monitoring.
The IHA requires CBS to submit a draft report to NMFS within ninety calendar days of the completion of marine mammal monitoring. A final report shall be prepared and submitted within thirty days following resolution of any comments on the draft report from NMFS. The report will contain, among other things, information on monitoring results, mitigation measure implementation, and number of animals, by species, taken. The CBS will also immediately report injured or dead marine mammals to NMFS and, if the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (
NMFS has defined negligible impact as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
Pile driving and removal would result in the harassment of marine mammals within the designated harassment zones due to increased noise levels during 16 days. Six days of work are dedicated to removing 280 old piles, which would emit low levels of noise into the aquatic environment if removed via a vibratory hammer. Vibratory pile driving, which also has relatively low source levels,
In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No mortality is anticipated or authorized.
• The number of piles in the design has been reduced to the lowest amount practicable (other designs required more piles); therefore, the amount of pile activity is minimal at 16 days over the course of 3 months.
• The majority of pile driving is scheduled to occur in October prior to peak humpback whale habitat use.
• Shut-down zone mitigation designed to avoid Level A harassment of low frequency cetaceans and otariids will occur during impact pile driving.
• Extremely limited impact pile driving would occur (ten minutes per day for six non-consecutive days).
• The project and ensonified areas include a cove and dead-end bay (Silver Bay) with no significant marine mammal habitat.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the specified activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of marine mammals may be authorized to be incidentally taken under Section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals.
NMFS has authorized a very small amount of Level A takes of marine mammals. Level B takes are more numerous and still only constitute between 0.01 and 6.6 percent of a given stock (Table 5). For pinnipeds, the number of takes likely represents repeated exposures of a smaller number of animals; therefore, the percent of stock taken is likely even smaller. Finally, the area where these takes may occur represents a negligible area with respect to each stock's range; therefore, it is unlikely a larger percentage of a stock's population would move through the action area.
Based on the analysis contained herein of the specified activity (including the mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.
Alaska Natives have traditionally harvested subsistence resources, including sea lions and harbor seals. In 2012 (the most recent year for which information is available), the community of Sitka had an estimated subsistence take of 49 harbor seals and 1 Steller sea lion (Wolf
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
There are two marine mammal species under NMFS' jurisdiction that are listed as endangered or threatened under the ESA with confirmed or possible occurrence in the action area: the wDPS of Steller sea lions and the humpback whale Mexico DPS. NMFS issued a Biological Opinion concluding that the issuance of the IHA is likely to adversely affect, but is not likely to jeopardize, the continued existence of the threatened and endangered species under NMFS' jurisdiction and is not likely to result in the destruction or adverse modification of critical habitat. The Biological Opinion for this action is available on NMFS' Web site (
NMFS has issued an IHA to CBS authorizing the take of small numbers of six marine mammal species incidental to the GPIP dock modification project, Sawmill Cove, Alaska, containing the previously discussed mitigation, monitoring and reporting requirements.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Deletions from the procurement list.
This action deletes products and services from the Procurement List previously furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia, 22202-4149.
Amy B. Jensen, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
On 9/8/2017 (82 FR 42546-42547), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products and services listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products and services deleted from the Procurement List.
Accordingly, the following products and services are deleted from the Procurement List:
U.S. Army Corps of Engineers, DOD.
Notice of Intent.
Pursuant to the requirements of section 102(2)(C) of the National Environmental Policy Act (NEPA), the U.S. Army Corps of Engineers, New York District (Corps) is preparing an integrated Feasibility Report/Environmental Impact Statement (EIS) laws for the proposed Peckman River Basin Flood Risk Management Feasibility Study. The study is assessing the feasibility of flood risk management alternatives to be implemented within the congressionally authorized study area with a specific emphasis on the Township of Little Falls and the Borough of Woodland Park in Passaic County, New Jersey.
Pertinent information about the study can be found at:
Send written comments and suggestions concerning the scope of issues to be evaluated within the EIS to Kimberly Rightler, Project Biologist/NEPA Coordinator, U.S. Army Corps of Engineers, New York District, Planning Division, Environmental, 26 Federal
Questions about the overall Peckman River Basin Flood Risk Management Feasibility Study should be directed to Robert Greco, Project Manager, U.S. Army Corps of Engineers, New York District, Programs and Project Management Division, Civil Works Programs Branch, 26 Federal Plaza, Room 2127, New York, NY 10279-0090; Phone: (917) 790-8394; email:
The U.S. Army Corps of Engineers (Corps), in partnership with the New Jersey Department of Environmental Protection (NJDEP) as the non-Federal sponsor is undertaking this study. Extensive development in the Peckman River Basin has resulted in flood damages with flooding occurring from intense thunderstorms and heavy rainfall. The District was authorized under U.S. House of Representatives Resolution Docket 2644, dated June 21, 2000 to identify recommendations in the interest of water resources development.
A Feasibility Cost Sharing Agreement (FCSA) was executed in 2002 with the NJDEP in 2002. A Notice of Intent (NOI) to prepare an Environmental Impact Statement (EIS) was published in the May 14, 2004 issue of the
The project area encompasses the portion of the Peckman River, Great Notch Brook and a portion of the Passaic River located in the Township of Little Falls and the Borough of Woodland Park in Passaic County, New Jersey.
The Corps and the NJDEP are currently anticipating hosting a NEPA Scoping Meeting in late November/early December 2017. Public notices announcing the meeting date, time, location and agenda will be published in the appropriate local newspapers, Little Falls Township Web page, Borough of Woodland Park Web page and on the Corps' New York District Web page (see STUDY WEBPAGE AND
A scoping comment period of 30 days will be established from the scheduled date of the meeting to allow agencies, organizations and individuals to submit comments, questions and/or concerns regarding the Feasibility Study. Comments, concerns and information submitted to the Corps will be evaluated and considered during the development of the Draft EIS.
The U.S. Army Corps of Engineers is the lead federal agency for the preparation of the environmental impact statement (EIS) and meeting the requirements of the National Environmental Policy Act and the NEPA Implementing Regulations of the President's Council on Environmental Quality (40 CFR 1500-1508). Federal agencies interested in participating as a Cooperating Agency are requested to submit a letter of intent to Colonel Thomas D. Asbery, District Engineer (see
Department of the Navy, DoD.
Notice.
The Department of the Navy (DoN) has prepared and filed with the U.S. Environmental Protection Agency a Draft Environmental Impact Statement/Overseas Environmental Impact Statement (EIS/OEIS). It is the role of DoN to maintain, train and equip combat ready naval forces capable of winning wars, deterring aggression, and maintaining freedom of the seas. To fulfil its role, the DoN will continue ongoing military readiness activities, which include training and research, development, testing, and evaluation activities (hereafter referred to as “training and testing”) conducted within the Hawaii-Southern California Training and Testing (HSTT) EIS/OEIS Study Area (hereafter referred to as the “Study Area”). In the Draft EIS/OEIS, the DoN re-evaluates potential environmental impacts associated with training and testing in the study area. The National Marine Fisheries Service (NMFS) is a cooperating agency for this EIS/OEIS. This notice announces the dates and locations of the public meetings and provides supplementary information about the environmental planning effort.
Public meetings will include an open-house information session, followed by a short presentation by the DoN and public oral comment session. DoN representatives will be available during the open-house information sessions to clarify information related to the Draft EIS/OEIS. Federal, state, and local agencies and officials, and interested organizations and individuals are encouraged to provide substantive comments on the Draft EIS/OEIS in writing during the public review period or in person at one of the scheduled public meetings.
Public meetings will be held in Hawaii from 4:00 to 8:00 p.m. and in San Diego from 5:00 to 8:00 p.m. A DoN presentation and public oral comment session will occur twice during the meetings. Public meetings will be held on the following dates and at the following locations:
Attendees will be able to submit oral and written comments during the public meetings. Oral comments from the public will be recorded by a court reporter and each speaker's comments will be limited to three (3) minutes. Equal weight will be given to oral and written statements. Comments may also be mailed to Naval Facilities Engineering Command Pacific, Attention: HSTT EIS/OEIS Project Manager, 258 Makalapa Drive, Suite 100, Pearl Harbor, HI 96860-3134, or electronically via the project Web site (
Concurrent with the NEPA public involvement process, the DoN is conducting National Historic Preservation Act section 106 consultations regarding potential effects of the Proposed Action on historic properties. Historic properties include districts, sites, buildings, structures, or objects listed or eligible for listing in the National Register of Historic Places. During each of the meetings, an information station will be available, where subject matter experts will explain the section 106 process and solicit public input.
Naval Facilities Engineering Command Pacific, Attention: HSTT EIS/OEIS Project Manager, 258 Makalapa Drive, Suite 100, Pearl Harbor, HI 96860-3134.
A Notice of Intent to prepare this Draft EIS/OEIS was published in the
The Proposed Action is to conduct DoN training and testing activities within the Study Area. These activities include the use of active sonar and explosives while employing marine species protective mitigation measures. The purpose of the Proposed Action is to maintain a ready force, which is needed to ensure the DoN can accomplish its mission to maintain, train, and equip combat-ready naval forces capable of winning wars, deterring aggression, and maintaining freedom of the seas, consistent with Congressional direction in Section 5062 of Title 10 of the U.S. Code (U.S.C.).
To achieve and maintain military readiness, the DoN proposes to: (1) Conduct training and testing activities at levels required to support DoN military readiness requirements beginning in 2018; and (2) Accommodate evolving mission requirements, including those resulting from the development, testing, and introduction of vessels, aircraft, and weapons systems into the fleet.
Proposed training and testing activities are similar to those that have occurred in the Study Area for decades. The tempo and types of training and testing activities fluctuate because of the introduction of new technologies, the evolving nature of international events, advances in warfighting doctrine and procedures, and changes in force structure (organization of ships, weapons, and personnel). These factors can influence the frequency, duration, intensity, and location of training and testing activities. This EIS/OEIS reflects the most up-to-date compilation of training and testing activities deemed necessary to accomplish military readiness requirements. The types and numbers of activities included in the Proposed Action account for fluctuations in training and testing to meet evolving or emergent military readiness requirements.
In the Draft EIS/OEIS, the DoN evaluates the potential environmental impacts of three alternatives, including a No Action Alternative. Under the No Action Alternative, the DoN would not conduct the proposed training and testing activities in the Study Area, and no authorizations or permits would be issued from NMFS. Under Alternative 1 (the DoN's preferred alternative), the DoN proposes to conduct military readiness training and testing activities, as needed to meet current and future readiness requirements, including new activities and activities subject to previous analysis that are ongoing and have historically occurred in the Study Area. Alternative 1 reflects a representative annual level of training and testing to account for the natural fluctuation of training cycles and deployment schedules that generally limit the maximum level of training from occurring year after year in any five-year period. Using a representative annual level of activity rather than a maximum level of training activity in every year has reduced the amount of active sonar estimated to be necessary to meet training requirements. Under Alternative 1, the DoN assumes that some unit-level training would be conducted using synthetic means (
Additional project information, including details on the key differences between the 2013 Final EIS/OEIS and the 2017 Draft EIS/OEIS, can be found on the project Web site at
Minimizing impacts on the marine environment from training and testing activities is an important goal for the DoN. The DoN will implement mitigation and monitoring measures to avoid or reduce environmental impacts from naval activities. Due to the exposure of marine mammals to underwater sound from sonar and explosives, NMFS has received an application from the DoN for a Marine Mammal Protection Act Letter of Authorization and governing regulations to authorize the unintentional takes of marine mammals incidental to the activities conducted in the Study Area. In accordance with section 7 of the Endangered Species Act, the DoN will consult with NMFS and the U.S. Fish and Wildlife Service, as appropriate, on the potential impacts of training and testing activities on federally listed species. In accordance with the Magnuson-Stevens Fishery Conservation and Management Act, the DoN will consult with NMFS on federally managed species and their managed essential fish habitat, as appropriate. As applicable, the DoN will comply with the Coastal Zone Management Act, National Historic Preservation Act, and the National Marine Sanctuaries Act.
The Draft EIS/OEIS was distributed to federal and local agencies in which the DoN consulted with. Copies of the Draft EIS/OEIS are available for public review at the following local public libraries:
The HSTT Draft EIS/OEIS is available for electronic viewing or download at
42 U.S.C. 4332, EO 12114, and 40 CFR 1500-1508.
Take notice that on October 5, 2017, pursuant to Rule 207(a)(5) of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.207(a)(5) and section 554(e) of the Administrative Procedure Act (5 U.S.C. 554(e)), Braintree Electric Light Department filed a petition for the Commission to authorize a limited, one-time waiver of the October 1 deadline for delivery of notification to ISO New England, Inc. (ISO-NE) of its proposed participation in ISO-NE's 2017-2018 Winter Reliability Program, as more fully described in the filing.
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St. NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Environmental Protection Agency (EPA).
Notice.
Section 5(g) of the Toxic Substances Control Act (TSCA) requires EPA to publish in the
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitters of the PMNs addressed in this action.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2017-0141, is available at
This document lists the statements of findings made by EPA after review of notices submitted under TSCA section 5(a) that certain new chemical substances or significant new uses are not likely to present an unreasonable risk of injury to health or the environment. This document presents statements of findings made by EPA during the period from July 1, 2017 to July 31, 2017.
TSCA section 5(a)(3) requires EPA to review a TSCA section 5(a) notice and make one of the following specific findings:
• The chemical substance or significant new use presents an unreasonable risk of injury to health or the environment;
• The information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects of the chemical substance or significant new use;
• The information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects and the chemical substance or significant new use may present an unreasonable risk of injury to health or the environment;
• The chemical substance is or will be produced in substantial quantities, and such substance either enters or may reasonably be anticipated to enter the environment in substantial quantities or there is or may be significant or substantial human exposure to the substance; or
• The chemical substance or significant new use is not likely to present an unreasonable risk of injury to health or the environment.
Unreasonable risk findings must be made without consideration of costs or other non-risk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant under the conditions of use. The term “conditions of use” is defined in TSCA section 3 to mean “the circumstances, as determined by the Administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.”
EPA is required under TSCA section 5(g) to publish in the
Anyone who plans to manufacture (which includes import) a new chemical substance for a non-exempt commercial purpose and any manufacturer or processor wishing to engage in a use of a chemical substance designated by EPA as a significant new use must submit a notice to EPA at least 90 days before commencing manufacture of the new chemical substance or before engaging in the significant new use.
The submitter of a notice to EPA for which EPA has made a finding of “not likely to present an unreasonable risk of injury to health or the environment” may commence manufacture of the chemical substance or manufacture or processing for the significant new use notwithstanding any remaining portion of the applicable review period.
In this unit, EPA provides the following information (to the extent that such information is not claimed as Confidential Business Information (CBI)) on the PMNs, MCANs and SNUNs for which, during this period, EPA has made findings under TSCA section 5(a)(3)(C) that the new chemical substances or significant new uses are not likely to present an unreasonable risk of injury to health or the environment:
• EPA case number assigned to the TSCA section 5(a) notice.
• Chemical identity (generic name, if the specific name is claimed as CBI).
• Web site link to EPA's decision document describing the basis of the “not likely to present an unreasonable risk” finding made by EPA under TSCA section 5(a)(3)(C).
15 U.S.C. 2601
Environmental Protection Agency (EPA).
Notice.
As provided under Section 24(c) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), State-designated lead agencies may register pesticides, within their respective States, to meet special local needs. EPA's regulations require the State lead agencies to notify EPA of such special local need registrations. EPA may disapprove any such State registration. EPA's regulations require that notice of these actions be published in the
Michael L. Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2017-0451, is available at
Section 24(c) of FIFRA (7 U.S.C. 136v(c)) authorizes States to register “additional uses of federally registered pesticides to meet special local needs.” Pursuant to FIFRA section 24(c), EPA's regulations at 40 CFR 162.153(h) require States to notify EPA of such special local need registrations. EPA's regulations pertaining to such special local need registrations state that “the Administrator may disapprove, on any reasonable grounds, any state registration which, when compared to a federally registered product, does not have . . . a similar use pattern. . . .” 40 CFR 162.154(a)(1). The regulations define “similar use pattern” to mean “a use of a pesticide . . . which is (among other things) substantially the same as the federally registered use.” 40 CFR 162.151.
On July 3, 2017, EPA disapproved special local need registrations from the Nevada Department of Agriculture, for use on cannabis grown in Nevada, to control various insect pests, mites, and plant diseases, as follows:
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Additional information may be found in the docket for this action, docket ID number EPA-HQ-OPP-2017-0451, available at
7 U.S.C. 136
Environmental Protection Agency (EPA).
Notice.
Pursuant to the Federal Advisory Committee Act, the Environmental Protection Agency's (EPA's) Office of Pesticide Programs is announcing a public meeting of the Pesticide Program Dialogue Committee (PPDC) on November 1-2, 2017. This meeting provides advice and recommendations to the EPA Administrator on issues associated with pesticide regulatory development and reform initiatives, evolving public policy and program implementation issues, and science issues associated with evaluating and reducing risks from use of pesticides.
The meeting will be held on Wednesday, November 1, 2017, from 9:00 a.m. to 5:00 p.m., and Thursday, November 2, 2017, from 9 a.m. to 12:00 p.m.
The PPDC Meeting will be held at 1 Potomac Yard South, 2777 S. Crystal Drive, Arlington, VA, in the lobby-level Conference Center.
EPA's Potomac Yard South Bldg. is approximately 1 mile from the Crystal City Metro Station.
Dea Zimmerman, Office of Pesticide Programs (L-17J), Environmental Protection Agency, 77 W. Jackson Boulevard, Chicago, IL 60604; telephone number: (312) 353-6344; email address:
You may be potentially affected by this action if you work in agricultural settings or if you are concerned about implementation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); the Federal Food, Drug, and Cosmetic Act (FFDCA); and the amendments to both of these major pesticide laws by the Food Quality Protection Act (FQPA) of 1996; the Pesticide Registration Improvement Act, and the Endangered Species Act. Potentially affected entities may include, but are not limited to: Agricultural workers and farmers; pesticide industry and trade associations; environmental, consumer, and farm worker groups; pesticide users and growers; animal rights groups; pest consultants; State, local, and tribal governments; academia; public health organizations; and the public. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2017-0042, is available at
The PPDC is a federal advisory committee chartered under the Federal Advisory Committee Act (FACA), Public Law 92-463. EPA established the PPDC in September 1995 to provide advice and recommendations to the EPA Administrator on issues associated with pesticide regulatory development and reform initiatives, evolving public policy and program implementation issues, and science issues associated with evaluating and reducing risks from use of pesticides. The following sectors are represented on the current PPDC: Environmental/public interest and animal rights groups; farm worker organizations; pesticide industry and trade associations; pesticide user, grower, and commodity groups; Federal and State/local/tribal governments; the general public; academia; and public health organizations.
PPDC meetings are free, open to the public, and no advance registration is required. Public comments may be made during the public comment session of each meeting or in writing to the person listed under
7 U.S.C. 136
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), 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 Office of Management and Budget (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 December 12, 2017. 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 Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
As part of its continuing effort to reduce paperwork burdens, and as required by the PRA of 1995 (44 U.S.C. 3501-3520), the FCC 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 Commission requests this information in order to make recommendations to the U.S. Department of State for granting recognized private operating agency (RPOA) status to requesting entities. The Commission does not require entities to request RPOA status. Rather, this is a voluntary application process for use by companies that believe that obtaining RPOA status will be beneficial in persuading foreign governments to allow them to conduct business abroad. RPOA status also permits companies to join the International Telecommunication Union's (ITU's) Telecommunications Sector, which is the standards-setting body of the ITU.
The information furnished in RPOA requests is collected pursuant to 47 CFR 63.701 of the Commission's rules. Entities submit these applications on a voluntary basis. The collection of information is a one-time collection for each respondent. Without this information collection, the Commission's policies and objectives for assisting unregulated providers of enhanced services to enter the market for international enhanced services would be thwarted.
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), 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 Office of Management and Budget (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 December 12, 2017. 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 Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
As part of its continuing effort to reduce paperwork burdens, and as required by the PRA of 1995 (44 U.S.C. 3501-3520), the FCC 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 Commission received serval petitions for reconsideration of the
Only those providers that have previously reported 4G LTE coverage in FCC Form 477 and have qualified 4G LTE coverage (defined by download speeds of 5 Mbps at the cell edge with 80 percent probability and a 30 percent loading factor) will be required to submit data under this new, one-time information collection. Such providers will be required to file propagation maps and model details with the Commission indicating their current 4G LTE coverage in accordance with a public notice that will be issued in advance of the start of period within which providers must make their filings that provides instructions for how to file the data submission, including a data specification, formatting information, and any other technical parameters that may be necessary for such filings. The Commission will use the new coverage data, in conjunction with subsidy data available from the Universal Service Administrative Company (USAC), to create the map of areas presumptively eligible for MF-II support.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act.
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 26, 2017.
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The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than October 26, 2017.
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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
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 November 8, 2017.
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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. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on March 2, 2017 to obtain comments from the public and affected agencies. CDC did not receive comments related to the notice. The purpose of this notice is to allow an additional 30 days for public comments.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. The Office of Management and Budget is particularly interested in comments that:
(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,
(e) Assess information collection costs.
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
Pulmonary Function Testing Course Approval Program (OMB Control Number 0920-0138, Expired 4/30/2017)—Reinstatement with Change—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
NIOSH has the responsibility under the Occupational Safety and Health Administration's Cotton Dust Standard, 29 CFR 1920.1043, for approving courses to train technicians to perform pulmonary function testing in the cotton industry. Successful completion of a NIOSH-approved course is mandatory under this Standard. In addition, regulations at 42 CFR 37.95(a) specify that persons administering spirometry tests for the national Coal Workers' Health Surveillance Program must successfully complete a NIOSH-approved spirometry training course and maintain a valid certificate by periodically completing NIOSH-approved spirometry refresher training courses. Also, 29 CFR 1910.1053(i)(2)(iv), 29 CFR 1910.1053(i)(3), 29 CFR 1926.1153(h)(2)(iv) and 29 CFR 1926.1153(h)(3) specify that pulmonary function tests for initial and periodic examinations in general industry and construction, performed under the respirable crystalline silica standard should be administered by a spirometry technician with a current certificate from a NIOSH-approved spirometry course. NIOSH is requesting a three-year approval.
To carry out its responsibility, NIOSH maintains a Pulmonary Function Training Course Approval Program. The program consists of an application submitted by potential sponsors (universities, hospitals, and private consulting firms) who seek NIOSH approval to conduct courses, and if approved, notification to NIOSH of any course or faculty changes during the approval period, which is limited to five years. The primary focus of this program is to verify that each course sponsor maintains faculty expertise and curriculum content that supports the training of technicians to perform spirometry testing under current professional clinical-practice guidelines.
NIOSH reviews the application form and added materials, including an agenda, curriculum vitae, and course materials to determine if the applicant has developed a program that adheres to the criteria required in the Standard.
Sponsors who elect to have their approval renewed for an additional five-year period submit a renewal application and supporting documentation for review by NIOSH staff to ensure the course curriculum meets all current standard requirements. Approved courses that elect to offer NIOSH-Approved Spirometry Refresher Courses must submit a separate application and supporting documents for review by NIOSH staff. Institutions and organizations throughout the country voluntarily submit applications and materials to become course sponsors and carry out training. Submissions are required for NIOSH to evaluate a course and determine whether the course meets the Standard's criteria and whether technicians meet the training requirements.
NIOSH will disseminate a one-time customer satisfaction survey to course directors and sponsor representatives to evaluate our service to courses, the effectiveness of the program changes implemented since 2005, and the usefulness of potential Program enhancements. The annualized figures slightly overestimate the actual burden, due to rounding of the number of respondents for even allocation over the three-year clearance period.
The respondent burden hours have decreased from 201 burden hours to 147 burden hours. Over the last three-year period, there are fewer sponsors, fewer refresher course applications, and all collection instruments are now available in electronic submittal formats.
There will be no cost to respondents.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project entitled
CDC must receive written comments on or before December 12, 2017.
You may submit comments, identified by Docket No. CDC-2017-0080 by any of the following methods:
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•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Leroy A. Richardson, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the
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,
Implementing the 6|18 Initiative: Case Studies—New—Office of the Director (OD), Centers for Disease Control and Prevention (CDC).
Major trends in health care are providing new opportunities to pay for and deliver prevention and to improve population health. New and alternative health care payment and delivery models are more patient-centered and facilitate the delivery of greater comprehensive care and prevention. Public health departments have been eager to leverage their skill sets and resources to complement those of the health care sector, to maximize impact for population health in this time of dynamic health system change and opportunity.
In this context, CDC developed the CDC's 6|18 Initiative to provide health care purchasers, payers, and providers with rigorous evidence about high-burden health conditions and associated evidence-based interventions. With a focus on the greatest short-term health and potential cost impact (generally in less than five years), the evidence informs their coverage decisions.
The name “6|18” comes from the initial focus on six common, costly and preventable health conditions (tobacco use, high blood pressure, diabetes, asthma, healthcare-associated infections and unintended pregnancies) and 18 evidence-based prevention and control interventions, which form the content of dialogue with health care purchasers, payers and providers. More information on the Initiative content and progress can be found at
The
Since cross-sector public health-health care collaboration to improve population health is still not a standard practice, information regarding public-payer collaboration with public health agencies is scarce. There are few or no case studies related to public health-health care collaboration around increasing preventive service utilization. CDC intends to fill this knowledge gap through this data collection effort.
As part of the 6|18 Initiative, CDC and its partners (Center for Health Care Strategies, Inc. (CHCS) and the Centers for Medicare and Medicaid Services (CMS)) provided technical assistance to state teams (
To document qualitative lessons learned related to the collaboration, CDC and its cooperative agreement sub-contractor, George Washington University, plan to conduct in-person and telephone semi-structured individual interviews with state Public Health Department and State Medicaid Agency officials.
Interview participants will have been directly involved in conceptualizing, planning, and/or implementing 6|18 Initiative-related activities, and will have participated in the cross-sector collaboration. CDC plans to engage up to 82 respondents (four to seven officials from each of the 17 state teams who participated in the
CDC plans to administer the interviews from 2018 to 2021, to allow time for unanticipated delays; and to accommodate state team schedules, busy seasons, and holidays. All participants will speak in their official capacity as state public health department or Medicaid agency officials. Prior to granting public access to written products, CDC will provide participants the opportunity to review written products.
CDC anticipates using the interview findings: (1) To describe, disseminate, and scale best practices to participating and non-participating states, and (2) for program improvement of the CDC's 6|18 Initiative. CDC will disseminate findings via written products such as peer-reviewed manuscripts and in-depth written case studies. The written products, which will share lessons learned and effective approaches to collaboration, can inform and potentially accelerate related efforts by other state teams. In addition,
Participants will have a maximum estimated burden of one hour and 15 minutes: One hour for the interview, and fifteen minutes for any needed preparation. CDC will base all interviews on the same interview guide.
CDC will seek a three-year OMB approval for this information collection project. CDC estimates that they will conduct 29 interviews per year. Participation is voluntary and respondents will not receive incentives for participation. There are no costs to respondents other than their time.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on the proposed revision of the information collection project entitled
Written comments must be received on or before December 12, 2017.
You may submit comments, identified by Docket No. CDC-2017-0092 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Leroy A. Richardson, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
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,
5. Assess information collection costs.
National Youth Tobacco Surveys (NYTS) 2018-2020 (OMB Control Number 0920-0621, expires 01/31/2018)—Revision—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
Tobacco use is the leading cause of preventable disease and death in the United States, and nearly all tobacco use begins during youth and young adulthood. A limited number of health risk behaviors, including tobacco use, account for the overwhelming majority of immediate and long-term sources of morbidity and mortality. Because many health risk behaviors are established during adolescence, there is a critical need for public health programs directed towards youth, and for information to support these programs.
Since 2004, the Centers for Disease Control and Prevention (CDC) has periodically collected information about tobacco use among adolescents (National Youth Tobacco Survey (NYTS) 2004, 2006, 2009, 2011, 2012, 2013-2017, OMB Control Number 0920-0621). This surveillance activity builds on previous surveys funded by the American Legacy Foundation in 1999, 2000, and 2002.
At present, the NYTS is the most comprehensive source of nationally representative tobacco data among students in grades 9-12, moreover, the
CDC plans to request OMB approval to conduct additional cycles of the NYTS in 2018, 2019, and 2020. CDC will conduct the survey among nationally representative samples of students attending public and private schools in grades 6-12, and administer to students either as an optically scannable booklet of multiple-choice questions or as a digitally-based survey. CDC will also collect information supporting the NYTS from state-, district-, and school-level administrators and teachers. During the 2018-2020 timeframe, changes will be incorporated that reflect CDC's ongoing collaboration with FDA and the need to measure progress toward meeting strategic goals established by the Family Smoking Prevention and Tobacco Control Act. Information collection will occur annually and may include a number of new questions, as well as increased representation of minority youth.
The survey will examine the following topics: Use of cigarettes, cigars, smokeless tobacco, electronic cigarettes, hookahs, pipes, bidis, snus, and dissolvable tobacco products; knowledge and attitudes; media and advertising; access to tobacco products and enforcement of restrictions on access; secondhand smoke including e-cigarette aerosol exposure; provision of school- and community-based interventions, and cessation.
CDC will continue to use the results of the NYTS to inform and evaluate the National Comprehensive Tobacco Control Program; provide data to inform the Department of Health and Human Service's Tobacco Control Strategic Action Plan, and provide national benchmark data for state-level Youth Tobacco Surveys. CDC also expects the information collected through the NYTS to provide multiple measures and data for monitoring progress on six of the 20 tobacco-related objectives (TU-2, 3, 7, 11, 18, and 19) for Healthy People 2020.
CDC seeks to request a three-year OMB approval. There are no costs to respondents other than their time.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled National Notifiable Diseases Surveillance System to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on December 26, 2016 to obtain comments from the public and affected agencies. CDC received one comment related to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(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 agency's 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,
(e) Assess information collection costs.
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
National Notifiable Diseases Surveillance System (0920-0728, January 31, 2019)—Revision—Center for Surveillance, Epidemiology and Laboratory Services (CSELS), Centers for Disease Control and Prevention (CDC).
The Public Health Services Act (42 U.S.C. 241) authorizes CDC to disseminate nationally notifiable condition information. The National Notifiable Diseases Surveillance System (NNDSS) is based on data collected at the state, territorial and local levels as a result of legislation and regulations in those jurisdictions that require health care providers, medical laboratories, and other entities to submit health-related data on reportable conditions to public health departments. These reportable conditions, which include infectious and non-infectious diseases, vary by jurisdiction depending upon each jurisdiction's health priorities and needs. Infectious disease agents and environmental hazards often cross geographical boundaries. Each year, the Council of State and Territorial Disease Epidemiologists (CSTE), supported by CDC, determines which reportable conditions should be designated nationally notifiable or under standardized surveillance and voluntarily submitted to CDC so that information can be shared across jurisdictional boundaries and surveillance and prevention and control activities can be coordinated at regional and national levels.
CDC requests a three-year approval for this Revision, which includes requests to receive: (1) Case notification data from the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau (independent nations that operate under a Compact of Free Association with the United States of America that are commonly referred to as “freely associated states”); (2) new laboratory data elements for all conditions; (3) new data elements for all vaccine-preventable diseases (VPDs); (4) new data elements for the following conditions that are already approved: Congenital Rubella Syndrome (CRS), Salmonellosis, Shigellosis, Campylobacteriosis, Shiga toxin-producing Escherichia coli (STEC), Hepatitis, and Hantavirus Pulmonary Syndrome (HPS); (5) case notification data for histoplasmosis which is now under standardized surveillance; (6) case notification data for Acute Flaccid Myelitis (AFM) which is now under standardized surveillance; and (7) case notification data for all enteric Escherichia coli infections should any of them become nationally notifiable or be placed under standardized surveillance. CDC already has approval to receive case notification data for STEC, which is nationally notifiable.
The burden estimates include the number of hours that the public health department uses to process and send case notification data from their jurisdiction to CDC. Specifically, the burden estimates include separate burden hours incurred for automated and non-automated transmissions, separate weekly burden hours incurred for modernizing surveillance systems as part of NNDSS Modernization Initiative (NMI) implementation, separate burden hours incurred for annual data reconciliation and submission, and separate one-time burden hours incurred for the addition of new diseases and data elements. These estimates are based on information from CDC employees that manage the NMI effort and conduct site visits to provide technical assistance to help the public health departments modernize their surveillance systems. The estimated annual burden is 18,529 hours.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled
CDC must receive written comments on or before December 12, 2017.
You may submit comments, identified by Docket No. CDC-2017-0091 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Leroy A. Richardson, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
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,
5. Assess information collection costs.
Contact Investigation Outcome Reporting Forms (OMB Control Number 0920-0900, Expiration 6/30/2018)—Revision—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
This is a request for revision to a currently approved information collection, OMB Control Number 0920-0900,
To understand which pieces of data are critical to understanding outcomes, CDC bases all revisions on reassessments of data from the past three years.
CDC proposes to collect passenger-level, epidemiologic, demographic, and health status data from state/local Health Departments and maritime operators at the conclusion of contact investigations of individuals believed to have had exposure to a communicable disease during travel. The health departments or maritime operators would obtain the CDC requested information while conducting the contact investigation according to their established policies and procedures, and would report the information to CDC on a voluntary basis. This information will assist CDC in fulfilling its regulatory responsibility to prevent the importation of communicable diseases from foreign countries (42 CFR part 71) and interstate control of communicable diseases in humans (42 CFR part 70).
CDC provides state and local health departments and maritime conveyance operators with information to notify and contact individuals and further investigate this exposure by contacting others with potential exposure to disease. However, there currently is no standardized tool or form to collect pertinent information regarding the outcome of such investigations.
To address the need to inform CDC of additional actions that may be needed to further protect public health based on the outcome of the contact investigations, CDC has developed forms to assist health departments and maritime conveyance operators in reporting to CDC. The forms are specific to the nature of the investigation: Tuberculosis (TB), Measles, Rubella, or the General form for other diseases of public health concern. The purpose of the forms is the same: To collect information to help CDC quarantine officials fully understand the extent of disease spread and transmission during travel and to inform the development and/or refinement of investigative protocols aimed at reducing the spread of communicable disease.
Respondents are state and local health departments and maritime conveyance operators. Respondents may use these standardized forms to submit data voluntarily to CDC for each individual contacted via a secure means of their choice,
In the past three years, CDC has used these forms to investigate TB cases on aircrafts and on cruise ships, as well as
The respondents are Cruise Ship Medical Staff/Cargo Ship Managers and State/local health department staff. There is no cost to respondents other than their time to complete the form and submit the data to CDC.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on “Online training for law enforcement to reduce risks associated with shift work and long work hours”. This study will develop and pilot test a new, online, interactive training program tailored for the law enforcement community that relays the health and safety risks associated with shift work, long work hours, and related workplace sleep issues and presents strategies for managers and officers to reduce these risks.
CDC must receive written comments on or before December 12, 2017.
You may submit comments, identified by Docket No. CDC-2017-0085 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Leroy A. Richardson, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
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
5. Assess information collection costs.
Online Training for Law Enforcement to Reduce Risks Associated with Shift Work and Long Work Hours—NEW—National Institute for Occupational Safety and Health, Centers for Disease Control and Prevention (CDC).
Law enforcement officers work in stressful and dangerous conditions to enforce law and order, prevent crime, and protect persons and property. Police often work during the evening, at night, and sometimes irregular and long hours. Shift work and long work hours are linked to many health and safety risks due to disturbances to sleep, circadian rhythms, and personal relationships. These work schedules and inadequate sleep are likely critical contributors to the many health problems seen in police: shorter life spans, high occupational injury rates, and burden of chronic illnesses. One important strategy to reduce these risks is training programs to inform employers and law enforcement officers about the risks and strategies to reduce the risks. This is a new Information Collection Request for 1 year of data collection. The Occupational Safety and Health Act of 1970 authorizes the National Institute for Occupational Safety and Health to carry out this data collection.
The purpose of this project is to develop a training program to relay the risks linked to shift work and long work hours and give workplace strategies for employers and personal strategies for the officers to reduce the risks. Once finalized, the training will be available on the NIOSH Web site.
The training will be pilot tested with 30 recent graduates of a police academy in their first field experience and 30 experienced officers. CDC will recruit sixty law enforcement officers during a 15-minute phone call. All will work full time on fixed night shifts. The pilot test will use a pretest and posttest design to examine sleep (both duration and quality), worktime sleepiness, and knowledge retained. Pre-test measures will be collected 2 weeks before the training. CDC will collect post-test measures the week of the training, 1 week after the training and at 8 and 9 weeks after the training. Additional post-test measures will include feedback about the training and if specific behaviors changed.
Before starting the pretest, the respondent will sign an informed consent form. The pilot pre-test will start with the respondent filling out a 10 minute online survey that includes four short surveys: (1) Demographic information and work experience; (2) the Epworth Sleepiness Scale; (3) the Pittsburgh Sleep Quality Index; and (4) a knowledge test. The respondent will be fitted with a wrist actigraph, which will record activity and estimate the times of sleep. The respondents will keep an online sleep activity diary and wear the actigraph continuously during weeks 1 to 4 of the study. The online sleep activity diary takes approximately 2 minutes a day to complete. The sleep diary and actigraph are being used together to obtain a more accurate timing of respondent's sleep and activity.
During the third week of the study, the respondent will participate in a 3.5-hour online training program. Immediately after completing the training, the respondent will take the post-test knowledge test and will provide feedback about the training, to include barriers to using the training information and what influential people in their life would want them to do with the training information. At the end of week 4, the respondent will return the actigraph. No data collection will occur during weeks 5 to 9 of the study.
The second post-test period will be weeks 11 and 12 of the study (weeks 8 and 9 after the training) to gather longer-term outcomes. At the beginning of week 11, the respondents will be fitted with another ACTi graph. The respondent will wear the ACTi graph and complete the sleep activity diary for the next 14 days. At the end of week 12 of the study, respondent will complete the Epworth Sleepiness Scale, Pittsburgh Sleep Quality Index, and Changes in Behaviors after Training. The combined response time is 5 minutes. The respondent will return the ACTi graph and study ends.
The burden table lists three 10-minute meetings during the post-test period when they will return the ACTi graph at the end of week 4, be fitted with an ACTi graph at the beginning of week 11 and return it at the end of week 12. The respondents will complete the sleep activity diary for 42 days total for 2 minutes each day. The total burden hours is 84.
CDC will use the findings from the pilot test to make improvements to the training program. The research team will reinforce or expand training content that showed less than desired results on the pilot test. Potential impacts of this project include improvements in management practices such as the design of work schedules and improvements in officers' personal behaviors for coping with the demands of shift work and long work hours. The total estimated annualized burden hours is 389. There are no costs to respondents other than their time.
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. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on February 10, 2017 to obtain comments from the public and affected agencies. CDC received one comment related to the previous notice. The purpose of this notice is to allow an additional 30 days for public comments.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. The Office of Management and Budget is particularly interested in comments that:
(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,
(e) Assess information collection costs.
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
Annual Progress Report (APR) for Injury Control Research Centers (ICRC)—New—National Center for Injury Prevention and Control (NCIPC), Centers for Disease Control and Prevention (CDC).
The Injury Control Research Centers (ICRCs) form a national network of ten comprehensive academic research centers that focus on three core functions: Research, training, and outreach. ICRCs are on the scientific front line conducting cutting-edge, multidisciplinary research on the causes, outcomes, and prevention of injuries and violence.
ICRC research focuses on issues of local and national importance including motor vehicle injuries; interpersonal violence and suicide; opioid overdoses; older adult falls; and traumatic brain injuries. ICRCs work with states and communities to ensure research is put into action to prevent injuries and violence. They provide technical assistance to disseminate and translate research findings which leads to increased awareness and influences action. ICRCs play a critical role training and developing the current and next generation of researchers and public health professionals. This helps ensure there is an adequate supply of qualified practitioners and researchers to advance prevention research, address new problems, and reach new populations across the nation.
The CDC seeks OMB approval for three years to collect Annual Progress Report (APR) information from 10 grantees funded under Grants for Injury Control Research Centers (ICRC). ICRC awardees will report activity information to CDC annually using three fillable electronic templates. The first Word-based template is the principal tool for the Indicators Data Collection (IDC), which is based on a set of program activity indicators and key ICRC evaluation questions. The second Word-based template collects information about non-CDC-funded studies, and the third template, which is Excel-based, collects information about ICRC personnel and publications. Information will be reported electronically to the NCIPC for program monitoring, and hard copies will be submitted to CDC's Office of Financial Resources (OFR). Together, the tools describe grantees' annual goals, objectives, progress, and performance towards overall cooperative agreement aims. The tools also describe how grantees implement and use evidence-based injury prevention and control strategies.
Information to be collected will provide crucial data for program performance monitoring, will allow CDC to analyze and synthesize information from grantees, help ensure consistency in documenting progress and technical assistance, enhance accountability of the use of federal funds, and provide timely reports as frequently requested by the Department of Health and Human Services, the White House, and Congress.
Submission of the Annual Progress Report is required for cooperative agreement grantees. The total estimated annualized burden hours are 500. There is no cost to respondents other than their time.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by December 12, 2017.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
William Parham at (410) 786-4669.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
1.
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry entitled “Assessing User Fees Under the Prescription Drug User Fee Amendments of 2017.” This draft guidance concerns FDA's implementation of the Prescription Drug User Fee Amendments of 2017 and certain proposed changes in policies and procedures surrounding its application.
Submit either electronic or written comments on the draft guidance by December 12, 2017 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002; or to the Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist the office in processing your requests. See the
Peter Chen, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Rm. 2185, Silver Spring, MD 20993, 240-402-8605,
FDA is announcing the availability of a draft guidance for industry entitled “Assessing User Fees Under the Prescription Drug User Fee Amendments of 2017.” This draft
PDUFA VI provides two different fee types that applicants pay: application and program fees. This draft guidance describes when these fees are incurred and the process for which applicants can submit payments. The draft guidance also provides information on consequences of failing to pay PDUFA VI fees as well as the process for submitting a reconsideration and appeals request.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on assessing user fees under the Prescription Drug User Fee Amendments of 2017. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.
Persons with access to the internet may obtain the draft guidance at either
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry entitled “Determining Whether to Submit an ANDA or a 505(b)(2) Application.” This guidance is intended to serve as a foundational guidance to assist applicants in determining which one of the abbreviated approval pathways under the Federal Food, Drug, and Cosmetic Act (the FD&C Act) is appropriate for the submission of a marketing application to FDA.
Submit either electronic or written comments on the draft guidance by December 12, 2017 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Elizabeth Giaquinto Friedman, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Rm. 1670, Silver Spring, MD 20993, 240-402-7930,
FDA is announcing the availability of a draft guidance for industry entitled “Determining Whether to Submit an ANDA or a 505(b)(2) Application.” This guidance is intended to serve as a foundational guidance to assist applicants in determining which one of the abbreviated approval pathways under the FD&C Act is appropriate for the submission of a marketing application to FDA. This guidance highlights criteria for submitting applications under the abbreviated approval pathways described in section 505(j) and 505(b)(2) of the FD&C Act (21 U.S.C. 355(j) and 21 U.S.C. 355(b)(2), respectively), identifies considerations to help potential applicants determine whether an application would be more appropriately submitted under section 505(j) or under section 505(b)(2) of the FD&C Act, and provides direction to potential applicants on requesting assistance from FDA in making this determination.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) (the Hatch-Waxman Amendments) added section 505(b)(2) and 505(j) of the FD&C Act, which describe abbreviated approval pathways for drug products regulated by the Agency under the FD&C Act. The Hatch-Waxman Amendments reflect Congress's efforts to balance the need to “make available more low cost generic drugs by establishing a generic drug approval procedure” with new incentives for drug development in the form of exclusivities and patent term extensions. With the passage of the Hatch-Waxman Amendments, the FD&C Act describes different routes for obtaining approval of two broad categories of drug applications: New drug applications (NDAs) and abbreviated new drug applications (ANDAs).
This guidance focuses on those applications that can be submitted as ANDAs under section 505(j) of the FD&C Act, petitioned ANDAs under section 505(j)(2)(C) of the FD&C Act, or NDAs under section 505(b)(2) of the FD&C Act. This guidance does not discuss stand-alone NDAs.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on factors for applicants to consider when determining whether to submit an ANDA or a 505(b)(2) application. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.
This draft guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR 314.94 have been approved under OMB control number 0910-0001. The collection of information for controlled correspondence and pre-ANDA meeting requests has been approved under OMB control number 0910-0797.
Persons with access to the Internet may obtain the draft guidance at either
Food and Drug Administration, HHS.
Notice of public meetings; request for comments.
The Food and Drug Administration (FDA or we) is announcing the following public meetings entitled “Agricultural Biotechnology Education and Outreach Initiative.” The purpose of the public meetings is to provide the public with an opportunity to share information, experiences, and suggestions to help inform the development of this education and outreach initiative.
The public meetings will be held on November 7, 2017, in Charlotte, North Carolina, and on November 14, 2017, in San Francisco, California. Submit either electronic or written comments by November 17, 2017. See the
The public meetings will be held at:
• The Omni Charlotte, 132 East Trade St., Charlotte, NC 28202 on November 7, 2017, and
• The San Francisco Marriott Marquis, 780 Mission St., San Francisco, CA 94103 on November 14, 2017.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before November 17, 2017. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” We will review this copy, including the claimed confidential information, in our consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
The Consolidated Appropriations Act, 2017 (Pub. L. 115-31) stipulates that the Commissioner of Food and Drugs, in coordination with the Secretary of Agriculture, will use appropriated funds to provide consumer outreach and education regarding agricultural biotechnology and biotechnology-derived food products and animal feed, including through publication and distribution of science-based educational information on the environmental, nutritional, food safety, economic, and humanitarian impacts of such biotechnology.
FDA is responsible for promoting and protecting the public health, including by ensuring that the nation's food supply is safe and nutritious. FDA provides information and outreach to a variety of audiences along with extensive, hands-on food safety and nutrition education programs for educators, health professionals, and consumers. Educational materials are targeted to consumers in general, as well as to specific groups such as children/youth, older Americans, underserved populations, individuals with weakened immune systems (related to food safety), pregnant women, and other subpopulations.
To further our public health mission, we develop food safety and nutrition outreach initiatives in conjunction with non-Federal organizations and individuals, including teachers, community leaders, health educators, animal owners, and private and public health professionals, to increase awareness of and provide education on food safety and nutrition.
In developing and implementing the Agricultural Biotechnology Education and Outreach Initiative, FDA will coordinate with the U.S. Department of Agriculture (USDA). We also will collaborate with other U.S. Federal Government Agencies, and public and private organizations as needed. These interactions will help us to develop a comprehensive and thorough framework for consumer education and awareness of the environmental, nutritional, food safety, economic, and humanitarian impacts of agricultural biotechnology. We believe public comment will be helpful to inform the development of this education and outreach initiative.
FDA is holding two public meetings, one in North Carolina and one in California, to provide the public with an opportunity to provide comments related to FDA's Agricultural Biotechnology Education and Outreach Initiative. We invite the public to share information, experiences, and suggestions that can help inform the development of the education and outreach initiative. We invite interested persons, including those participating in the public meetings, to respond to the following questions specifically regarding agricultural biotechnology and biotechnology-derived food products and animal feed:
1. What are the specific topics, questions, or other information that consumers would find most useful, and why?
2. Currently, how and from where do consumers most often receive information on this subject?
3. How can FDA (in coordination with USDA) best reach consumers with science-based educational information on this subject?
The comments received will help FDA identify education goals, messaging, and dissemination strategies
Registration is free and based on space availability, with priority given to early registrants. Persons interested in attending this public meeting must register by October 30, 2017, for the Charlotte, NC, meeting and must register by November 6, 2017, for the San Francisco, CA, meeting. Early registration is recommended because seating is limited; therefore, FDA may limit the number of participants from each organization. Registrants will receive confirmation when they have been accepted.
If you need special accommodations due to a disability, please contact Simone Katz, Strategic Results, 101 Lakeforest Blvd., Suite 390, Gaithersburg, MD 20877, 240-449-8427, Fax: 240-641-9042, email:
If you have never attended a Connect Pro event before, test your connection at
You may also register via email, mail, or fax. Please include your name, title, firm name, address, and phone and Fax numbers in your registration information and send to: Simone Katz, Strategic Results, 101 Lakeforest Blvd., Suite 390, Gaithersburg, MD 20877, 240-449-8427, Fax: 240-641-9042, email:
Individuals who wish to participate by webcast are asked to preregister at:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Orthopaedic and Rehabilitation Devices Panel of the Medical Devices Advisory Committee. The general function of the committee is to provide advice and recommendations to the Agency on FDA's regulatory issues. The meeting will be open to the public.
The meeting will be held on December 12, 2017, from 8 a.m. to 6 p.m.
Hilton Washington DC North/Gaithersburg, salons A, B, C, and D, 620 Perry Pkwy., Gaithersburg, MD 20877. The hotel's telephone number is 301-977-8900.
Sara J. Anderson, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. G616, Silver Spring, MD 20993-0002, 301-796-7047,
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 AnnMarie Williams at
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).
National Institutes of Health, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S.
Licensing information and copies of the patent applications listed below may be obtained by emailing the indicated licensing contact at the National Heart, Lung, and Blood, Office of Technology Transfer and Development Office of Technology Transfer, 31 Center Drive Room 4A29, MSC2479, Bethesda, MD 20892-2479; telephone: 301-402-5579. A signed Confidential Disclosure Agreement may be required to receive copies of the patent applications.
This notice is in accordance with 35 U.S.C. 209 and 37 CFR part 404 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing. A description of the technology follows.
The invention pertains to derivatives of docosahexaenoylethanolamide (synaptamide or DEA) and their use in inducing neurogenesis, neurite growth, and/or synaptogenesis. As such, these DEA derivatives can be used as therapeutics for neurodegenerative diseases such as traumatic brain injury, spinal cord injury, peripheral nerve injury, stroke, multiple sclerosis, autism, Alzheimer's disease, Huntington's disease, Parkinson's disease, amyotrophic lateral sclerosis. The DEA derivatives of the invention have increased potency and hydrolysis resistance as compared to native DEA. Docosahexaenoic acid (DHA), an n-3
• Neurogenesis,
• Neurite growth,
• Synaptogenesis,
• Therapeutics for traumatic brain injury, spinal cord injury, peripheral nerve injury, stroke, multiple sclerosis, autism, Alzheimer's disease, Huntington's disease, Parkinson's disease, and amyotrophic lateral sclerosis.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, 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.
National Institutes of Health, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S.
Licensing information and copies of the patent applications listed below may be obtained by emailing the indicated licensing contact at the National Heart, Lung, and Blood, Office of Technology Transfer and Development Office of Technology Transfer, 31 Center Drive Room 4A29, MSC2479, Bethesda, MD 20892-2479; telephone: 301-402-5579. A signed Confidential Disclosure Agreement may be required to receive copies of the patent applications.
This notice is in accordance with 35 U.S.C. 209 and 37 CFR part 404 to achieve commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing. A description of the technology follows.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
National Institutes of Health, HHS.
Notice.
In compliance with 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.
Comments regarding this information collection are best assured of having their full effect if received within 30 days of October 13, 2017.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the: Office of Management and Budget, Office of Regulatory Affairs,
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact: Joanne Demchok, Program Director, Cancer Diagnosis Program, Division of Cancer Treatment and Diagnosis, 9609 Medical Center Drive, Rockville, MD 20892 or call non-toll-free number (240) 276-5959 or Email your request, including your address to:
This proposed information collection was previously published in the
In compliance with 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.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 105.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the NHLBI Special Emphasis Panel.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
The National Heart, Lung and Blood Institute (NHLBI), National Institutes of Health, Department of Health and Human Services, is contemplating the grant of an Exclusive Patent License to Cook Medical Technologies, LLC, located in Bloomington, Indiana, to practice the inventions embodied in the patent applications listed in the Supplementary Information section of this notice.
Only written comments and/or applications for a license which are received by the NHLBI Office of Technology Transfer and Development October 30, 2017 will be considered.
Requests for copies of the patent applications, inquiries, and comments relating to the contemplated exclusive patent license should be directed to: Michael Shmilovich, Esq., Senior Licensing and Patent Manager, 31 Center Drive Room 4A29, MSC2479, Bethesda, MD 20892-2479, phone number 301-435-5019, or
The following and all continuing U.S. and foreign patents/patent applications thereof are the intellectual properties to be licensed under the prospective agreement to Cook Medical Technologies, LLC: NIH Ref. No. E-027-2013/0 “Devices And Methods for Treating Functional Triscupid Valve Regurgitation” U.S. Provisional Patent Application 61/785,652 filed March 14, 2013, International Patent Application PCT/US2014/025300 filed under the Patent Cooperation Treaty on March 13, 2014, European Patent Application 14723540.2 having an international filing date of March 13, 2014, and U.S. Patent Application 14/776,488 also having an international filing date of March 13, 2014. NIH Ref. No. E-115-2013/0 “Encircling Suture Delivery System For Flexible Circumferential Suture,” U.S. Provisional Patent Application 61/834,357 filed June 12, 2013, International Patent Application PCT/US2014/040716 filed under the Patent Cooperation Treaty on June 3, 2014, European Patent Application 14735030.0 having an international filing date of June 3, 2014 and U.S. Patent Application 14/898,020 also having an international filing date of June 3, 2014. The patent rights in these inventions have been assigned to the Government of the United States of America. The prospective exclusive patent License territory may be worldwide and a field of use limited to valvular regurgitation.
The invention embodied in NIH Ref. No. E-027-2013/0 relates to devices and methods for treating functional tricuspid valve regurgitation and related conditions. The devices are adapted for applying force to an area of a patient's heart along or near the atrioventricular groove and can include a tensioning element configured to be delivered by a flexible member guided through a catheter and positioned generally along or near the atrioventricular groove, and a compression member that can be positioned along the tensioning element and over a desired segment of the atrioventricular groove to develop force to be applied to an adjacent area of the heart by selective tensioning of the tensioning element.
The invention embodied in NIH Ref No. E-115-2013/0 relates to devices for delivering encircling implants that can include two separate limbs held together at a distal articulation by the implant being delivered. The implant can comprise a suture and/or a braided
This notice is made in accordance with 35 U.S.C. 209 and 37 CFR part 404. The prospective exclusive patent license will be royalty bearing and may be granted unless within fifteen (15) days from the date of this published notice, the NHLBI receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR part 404.
Complete applications for a license in the prospective field of use that are timely filed in response to this notice will be treated as objections to the grant of the contemplated exclusive patent license. Comments and objections submitted to this notice will not be made available for public inspection and, to the extent permitted by law, will not be released under the
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, 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.
National Institutes of Health, HHS.
Notice.
The National Institute of Allergy and Infectious Diseases, an institute of the National Institutes of Health, Department of Health and Human Services, is contemplating the grant of an Exclusive Commercialization Patent License to practice the inventions embodied in the Patents and Patent Applications listed in the Summary Information section of this notice to Forte Biosciences, Inc. located in San Diego, California.
Only written comments and/or applications for a license which are received by the National Institute of Allergy and Infectious Diseases' Technology Transfer and Intellectual Property Office on or before October 30, 2017 will be considered.
Requests for copies of the patent application, inquiries, and comments relating to the contemplated Exclusive Commercialization Patent License should be directed to: David Yang, Technology Transfer and Patenting Specialist, Technology Transfer and Intellectual Property Office, National Institute of Allergy and Infectious Diseases, National Institutes of Health, 5601 Fishers Lane, Suite 6D, Rockville, MD 20852-9804; Email:
U.S. Provisional Application 62/324,762, filed April 19, 2016, and PCT Patent Application PCT/US2017/028133, filed April 17, 2017, both entitled “Use of Gram Negative Species to Treat Atopic Dermatitis” [HHS Ref. E-099-2016/0], and U.S. and foreign patent applications claiming priority to the aforementioned applications.
The patent rights in these inventions have been assigned to the government of the United States of America.
The prospective exclusive license territory may be worldwide and the field of use may be limited to the following field of use: “Use of pharmaceutical and biological compositions comprising Gram-negative bacteria for the topical treatment of dermatological diseases and dermatological conditions”.
Atopic dermatitis (AD) is a common, recurrent, chronic inflammatory skin disease that is a cause of considerable economic and social burden. It is one of the most prevalent skin disorders, affecting ~25% of children in developed and developing countries and is expected to continue to escalate. This increased rate of incidence has changed the focus of research on AD toward epidemiology, prevention, and treatment.
The subject technology describes pharmaceutical and biological compositions comprising Gram-negative bacteria that can be developed into a topical treatment for atopic dermatitis (AD), as well as methods and kits using these compositions.
NIAID scientists have recently identified probiotic strains of
This notice is made in accordance with 35 U.S.C. 209 and 37 CFR part 404. The prospective exclusive license will be royalty bearing, and the prospective exclusive license may be granted unless within fifteen (15) days from the date of this published notice, the National Institute of Allergy and Infectious Diseases receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR part 404.
Complete applications for a license in the prospective field of use that are filed in response to this notice will be treated as objections to the grant of the contemplated Exclusive Commercialization Patent License Agreement. Comments and objections submitted to this notice will not be made available for public inspection and, to the extent permitted by law, will not be released under the
Office of the Secretary, Department of Homeland Security (DHS).
Notice.
This notice announces the appointment of the members of the Senior Executive Service (SES) Performance Review Board (PRB) for DHS. The purpose of the PRB is to view and make recommendations concerning proposed performance appraisals, ratings, bonuses, pay adjustments, and other appropriate personnel actions for incumbents of SES, Senior Level and Senior Professional positions of the Department.
The PRB members' terms begin October 13, 2017.
Elizabeth Haefeli, Office of the Chief Human Capital Officer,
Each Federal agency is required to establish one or more performance review boards to make recommendations, as necessary, in regard to the performance of senior executives within the agency. 5 U.S.C. 4314(c). This notice announces the appointment of the members of the PRB for DHS. The purpose of the PRB is to review and make recommendations concerning proposed performance
The Board shall consist of at least three members. In the case of an appraisal of a career appointee, more than half of the members shall consist of career appointees. Composition of the specific PRBs will be determined on an ad hoc basis from among the individuals listed below:
Office of the Chief Readiness Support Officer, Office of Management, Department of Homeland Security.
Notice of administrative corrections to directive and instruction.
The purpose of this notice is to provide information on administrative revisions to the Department of Homeland Security (DHS or Department) Categorical Exclusions found in DHS Instruction 023-01-001-01, Rev. 01, Implementation of the National Environmental Policy Act (herein after referred to as Instruction). The Instruction was finalized October 31, 2014 and became effective on March 26, 2015; however, unintended administrative errors have since been identified. These errors are limited to Categorical Exclusions found in Appendix A, Table 1 of the Instruction. The administrative revisions covered under this notice either resolve ambiguity to ensure application which is consistent with the administrative record or resolve typographical errors that had the potential to result in inappropriate application. These revisions are effective upon publication in the
The list of Categorical Exclusions, found in Appendix A, Table 1, of the Instruction is revised as of October 13, 2017.
Relevant documents are posted at
Ms. Jennifer Hass, Environmental Planning and Historic Preservation Program Manager, DHS,
DHS Directive 023-01 Rev. 01 (hereinafter Directive) and the Instruction establish the Department's policy and procedures for compliance with the National Environmental Policy Act (NEPA) and the Council on Environmental Quality (CEQ) regulations for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508). Together, the Directive and Instruction apply to all of the Components of DHS and help ensure the integration of environmental stewardship into DHS decision making as required by NEPA. The Instruction serves as the DHS implementing procedures for NEPA (as required by 40 CFR 1505.1 and 1507.3) and includes the Department's list of Categorical Exclusions, found in Appendix A, Table 1. Notice of the Directive and Instruction were published in the
During a recent review of the Instruction, a number of administrative errors were identified which have the potential to substantively alter the correct and intended application of several Categorical Exclusions. Based on our internal review, we have determined these errors occurred during the transcription process as Categorical Exclusions unique to the USCG and the Federal Emergency Management Agency were merged with the other DHS Component Categorical Exclusions to create a single, unified list of Categorical Exclusions for application within the Department. There was no intent to substantively alter the language or application of these Categorical Exclusions.
For the Categorical Exclusions unique to the USCG, the impacted Categorical Exclusions appear correctly in the USCG's Commandant Instruction M16475.1D which has been in effect since November 29, 2000 and the
In general, the administrative revisions include omission of an asterisk (*) designating the requirement to prepare a Record of Environmental consideration (REC); inclusion of an asterisk (*) designating the requirement to prepare a REC where that was not intended; administrative revision to more clearly delineate when a REC is required; clarification to resolve ambiguity to ensure application which consistent with the administrative record, and resolution of a typographical error. A copy of this
U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration (USCIS) invites the general public and other Federal agencies to comment upon this proposed revision of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until December 12, 2017.
All submissions received must include the OMB Control Number 1615-0040 in the body of the letter, the agency name and Docket ID USCIS-2005-0035. To avoid duplicate submissions, please use only
(1)
(2)
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, 20 Massachusetts Avenue NW., Washington, DC 20529-2140, telephone number 202-272-8377 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS Web site at
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
USCIS also collects biometric information from certain EAD applicants, from whom USCIS has not previously collected biometrics in connection with an underlying application or petition, to verify the applicant's identity, check or update their background information, and produce the EAD card.
(5)
(6)
(7)
Fish and Wildlife Service, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the U.S. Fish and Wildlife Service (Service), are proposing to renew an information collection.
Interested persons are invited to submit comments on or before December 12, 2017.
Send your comments on the information collection request (ICR) by mail to the Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803 (mail); or by email to
To request additional information about this ICR, contact Madonna L. Baucum, Service Information Collection Clearance Officer, by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of the Service; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Service enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Service minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
• Management of migratory bird populations frequenting the United States, and
• Setting hunting regulations that allow for the well-being of migratory bird populations.
These responsibilities dictate that we gather accurate data on various characteristics of migratory bird populations.
The North American Woodcock Singing Ground Survey is an essential part of the migratory bird management program. State, Federal, Provincial, local, and tribal conservation agencies conduct the survey annually to provide the data necessary to determine the population status of the woodcock. In addition, the information is vital in assessing the relative changes in the geographic distribution of the woodcock. We use the information primarily to develop recommendations for hunting regulations. Without information on the population's status, we might promulgate hunting regulations that:
• Are not sufficiently restrictive, which could cause harm to the woodcock population, or
• Are too restrictive, which would unduly restrict recreational opportunities afforded by woodcock hunting.
The Service, State conservation agencies, university associates, and other interested parties use the data for various research and management projects.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Bureau of Land Management, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Bureau of Land Management (BLM), are proposing to renew an information collection.
Interested persons are invited to submit comments on or before November 13, 2017.
Send written comments on this information collection request (ICR) to the Office of Management and Budget's Desk Officer for the Department of the Interior by email at
To request additional information about this ICR, contact Stuart Grange by email at
In accordance with the Paperwork Reduction Act of 1995, the BLM provides the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
A
We are again soliciting comments on the proposed ICR that is described below. We are especially interested in public comments addressing the following issues: (1) Is the collection necessary to the proper functions of the BLM; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the BLM enhance the quality, utility, and clarity of the information to be collected; and (5) how might the BLM minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Bureau of Land Management, Interior.
Notice of realty action.
In accordance with Section 7 of the Taylor Grazing Act and Executive Order 6910, as amended, the Bureau of Land Management (BLM), Carson City District, Nevada, has examined and found suitable for classification for lease/conveyance approximately 80 acres of public land in Washoe County, Nevada, under the provisions of the Recreation and Public Purposes (R&PP) Act of June 14, 1926, as amended. The Washoe County School District proposes to use the land for a middle school located in Sun Valley, Nevada.
Interested parties may submit written comments regarding the proposed classification or lease/conveyance on or before November 27, 2017.
Send written comments to Bryant Smith, Field Manager, BLM Sierra Front Field Office, 5665 Morgan Mill Road, Carson City, NV 89701.
John Grasso, Realty Specialist, at the address in the
Washoe County School District filed an R&PP application to use public land to authorize and construct a middle school in order to provide relief to overcrowding at Yvonne Shaw Middle School, located in Spring Valley. The land is described as:
The area described contains 80 acres more or less in Washoe County.
The land is not required for any Federal purpose. The proposed lease/conveyance is consistent with the BLM Carson City Field Office Consolidated Resource Management Plan dated May 2001, and is in the public interest. NEPA compliance documentation is being prepared under #DOI-BLM-NV-C020-2017-0016-EA.
The lease/conveyance, if issued, would be subject to the provisions of the R&PP Act and applicable regulations of the Secretary of the Interior, including, but not limited to, 43 CFR parts 2740-2743 and 2912, and would be subject to the following terms, conditions, and reservations:
1. The reservation to the United States of a right-of-way thereon for ditches and canals constructed by the authority of the United States, Act of August 30, 1890 (43 U.S.C. 945);
2. All minerals shall be reserved to the United States, together with the right to prospect for, mine and remove such deposits from the same under applicable law and such regulations as the Secretary of the Interior may prescribe; and subject to valid existing rights;
3. An appropriate indemnification clause protecting the United States from claims arising out of the lessees/patentee's use, occupancy, or occupations on the leased/patented lands; and
4. Additional terms and conditions that the authorized officer deems appropriate.
Upon publication of this Notice in the
Interested persons may submit comments involving the suitability of the land for development of a school. Comments on the classification are restricted to whether the land is physically suited for the proposal, whether the use will maximize the future use or uses of the land, whether the use is consistent with local planning and zoning, or whether the use is consistent with state and Federal programs.
Interested persons may submit comments, including notification of any encumbrances or other claims relating to the land, regarding the specific use proposed in the application and plan of development, whether the BLM followed appropriate administrative procedures in reaching a decision to lease/convey under the R&PP Act, or any other factors not directly related to the suitability of the land for the middle school.
Documents related to this action are on file at the BLM Sierra Front Field Office at the address in the
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, the BLM cannot guarantee that we will be able to do so. Only written comments submitted by postal service or overnight mail to the Field Manager, BLM Sierra Front Field Office will be considered properly filed.
Any adverse comments will be reviewed by the BLM Nevada State Director who may sustain, vacate, or modify this realty action. In the absence of any adverse comments, this realty action will become effective December 12, 2017. The land would not be offered for conveyance until after the classification becomes effective.
43 CFR 2741.
Bureau of Safety and Environmental Enforcement, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Bureau of Safety and Environmental Enforcement (BSEE) are proposing to renew an information collection with revisions.
Interested persons are invited to submit comments on or before November 13, 2017.
Send written comments on this information collection request (ICR) to the Office of Management and Budget's Desk Officer for the Department of the Interior by email at
To request additional information about this ICR, contact Nicole Mason by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
A
We are again soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of BSEE; (2) Will this information be processed and used in a timely manner; (3) Is the estimate of burden accurate; (4) How might BSEE enhance the quality, utility, and clarity of the information to be collected; and (5) How might BSEE minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The current Subpart D regulations specify the use of forms BSEE-0125 (End of Operations Report), and BSEE-0133/0133S (Well Activity Report). The information on BSEE-0125 is used to ensure that industry has accurate and up-to-date data and information on wells and leasehold activities under their jurisdiction and to ensure compliance with approved plans and any conditions placed upon a suspension or temporary probation. It is also used to evaluate the remedial action in the event of well equipment failure or well control loss. Form BSEE-0125 is updated and resubmitted in the event the well status changes. In addition, except for proprietary data, BSEE is required by the OCS Lands Act to make available to the public certain information submitted on BSEE-0125. The BSEE uses the information on BSEE-0133/0133S to monitor the conditions of a well and status of drilling operations. We review the information to be aware of the well conditions and current drilling activity (
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Federal Bureau of Investigation, DOJ.
Meeting notice.
The purpose of this notice is to announce the meeting of the Federal Bureau of Investigation's Criminal Justice Information Services (CJIS) Advisory Policy Board (APB). The CJIS APB is a federal advisory committee established pursuant to the Federal Advisory Committee Act (FACA). This meeting announcement is being published as required by Section 10 of the FACA.
The APB will meet in open session from 9:00 a.m. until 5 p.m., on December 6-7, 2017.
The meeting will take place at Renaissance Oklahoma City Convention Center Hotel, 10 North Broadway Avenue, Oklahoma City, OK 73102, telephone (405) 228-8000.
Inquiries may be addressed to Ms. Jillana Plybon; Management and Program Analyst; CJIS Training and Advisory Process Unit, Resources Management Section; FBI CJIS Division, Module C2, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306-0149; telephone (304) 625-5424, facsimile (304) 625-5090.
The FBI CJIS APB is responsible for reviewing policy issues and appropriate technical and operational issues related to the programs administered by the FBI's CJIS Division, and thereafter, making appropriate recommendations to the FBI Director. The programs administered by the CJIS Division are the Next Generation Identification, Interstate Identification Index, Law Enforcement Enterprise Portal, National Crime Information Center, National Instant Criminal Background Check System, National Incident-Based Reporting System, National Data Exchange, and Uniform Crime Reporting.
This meeting is open to the public. All attendees will be required to check-in at the meeting registration desk. Registrations will be accepted on a space available basis. 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 Designated Federal Officer (DFO). Any member of the public may file a written statement with the Board. Written comments shall be focused on the APB's current issues under discussion and may not be repetitive of previously submitted written statements. Written comments should be provided to Mr. R. Scott Trent, DFO, at least seven (7) days in advance of the meeting so that the comments may be made available to the APB for their consideration prior to the meeting.
Anyone requiring special accommodations should notify Mr. Trent at least seven (7) days in advance of the meeting.
Bureau of Justice Statistics, Department of Justice.
60-Day notice.
The Department of Justice (DOJ), Office of Justice Programs, Bureau of Justice Statistics, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until December 12, 2017.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Suzanne Strong, Statistician, Prosecution and Judicial Statistics, Bureau of Justice Statistics, 810 Seventh Street NW., Washington, DC 20531 (email:
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
There are no existing data collections that describe state and local law enforcement agencies' roles on tribal lands.
This collection involves at least a two-stage process. In the first phase, BJS will conduct a pilot test to determine if it is possible to sample agencies located in counties with tribal lands within their jurisdictions. BJS will telephone agencies in sampled counties to inquire about the agency's provision of services and whether the agency is aware of other police agencies that provide services to tribal lands. There are 267 counties that include tribal lands as part of their jurisdiction. BJS will sample 26 counties and select one agency within the county to ask about the delivery of services to tribal lands. There are 515 counties with no tribal lands in their jurisdiction. BJS will first sort the counties based on a measure of distance from tribal lands from closest to farthest. BJS will sample 37 agencies from the closest set of counties and 37 agencies from the farther set of counties. BJS will ask the selected agencies within those counties about their delivery of services to tribal lands.
BJS also needs to determine whether county agencies in Alaska provide services to Alaskan Native Villages, or if only the state police and village public safety officers (VPSO) provide services. There are 19 boroughs in Alaska, and at least 7 boroughs will be sampled in the first phase and the police agency for the borough will be asked about the provision of services to Alaska Native Villages. BJS will telephone approximately 107 agencies to determine if agencies in PL-280 states provide services, or if there is some specialization, particularly among city and county agencies, or agencies located closer to tribal lands. BJS will also cognitively test the revised survey with 10 agencies, including at least one state police agency, one Alaska VPSO agency, four county agencies, and four city agencies.
In the second phase, BJS will refine the sampling frame and will conduct the main survey effort. The SSLLEASTL survey is designed to collect information that will help fill the gaps in our understanding of the nature of crime on tribal lands. There are two survey instruments: One for Alaska and one for the remaining fifteen PL-280 states. The data collection instruments capture administrative, operational and caseload data from respondents. Information requested includes staffing of state and local law enforcement agencies; types of agreements state and local law enforcement agencies have with tribal governments; types of patrol services, traffic services, and detention services provided to tribal lands; information sharing between state and local law enforcement and tribal governments; training provided by state and local law enforcement to tribal law enforcement (including cross-deputization agreements); training received by state and local law enforcement agencies on tribal jurisdiction, tribal law and tribal culture; and the number and types of incidents policed by state and local law enforcement agencies. This survey is the first to describe the role that state and local law enforcement play in policing crime on tribal lands in PL-280 states.
(5)
(6)
Bureau of Justice Statistics, Department of Justice.
60-Day notice.
The Department of Justice (DOJ), Office of Justice Programs, Bureau of Justice Statistics, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until December 12, 2017.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Suzanne Strong, Statistician, Prosecution and Judicial Statistics, Bureau of Justice Statistics, 810 Seventh Street NW., Washington, DC 20531 (email:
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
This collection involves a two-stage process. In the first phase, BJS will conduct a pilot test to determine whether prosecutor offices located closer to tribal lands are responsible for providing services, or if all prosecutor offices within the state share equal responsibility for prosecuting crime occurring on tribal lands. There are 267 counties that include tribal lands within their jurisdiction. BJS will not need to sample these offices as there is one prosecutor office per county and the sample size would likely be a full census of all 267 offices. There are 515 counties with no tribal lands in their jurisdiction. BJS will sample 50 prosecutor offices from the 515 counties located in the counties with no tribal lands to determine whether these offices provide any services to tribal lands. BJS will also cognitively test the revised survey with 10 offices with tribal lands within their jurisdiction.
In the second phase, BJS will refine the sampling frame and conduct the full survey. The SSLPOSTL will collect information that will help fill the gaps in our understanding of the nature of crime on tribal lands. There are two survey instruments: One for Alaska and one for the remaining fifteen PL-280 states. The data collection instruments are designed to capture administrative, operational and caseload data from prosecutor offices that investigate and prosecute crimes that occur on tribal lands in PL-280 states. The information collected includes the staffing of prosecutor offices; types of agreements prosecutor offices have with tribal governments; whether prosecutors try
(5)
(6)
Employee Benefits Security Administration, Department of Labor.
Notice.
The Department of Labor (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA 95), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the Department's information collection requirements and provide the requested data in the desired format. Currently, the Employee Benefits Security Administration is soliciting comments on a revision of the Coverage of Certain Preventive Services under the Affordable Care Act—Private Sector information collection request (ICR) to reflect the Executive Order signed on May 4, 2017, “Executive Order Promoting Free Speech and Religious Liberty.” The order declares, regarding “Conscience Protections with Respect to Preventive-Care Mandate,” that “[t]he Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under section 300gg-13(a)(4) of title 42, United States Code.”
A copy of the information collection request (ICR) may be obtained by contacting the office listed in the
Written comments must be submitted to the office shown in the
Direct all written comments regarding the information collection request and burden estimates to the Office of Policy and Research, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-5718, Washington, DC 20210. Telephone: (202) 693-8410; Fax: (202) 219-4745. These are not toll-free numbers. Comments may also be submitted electronically to the following Internet email address:
The Departments of Labor, the Treasury, and Health and Human Services are issuing interim final regulations regarding coverage of certain preventive services under section 2713 of the Public Health Service Act (PHS Act), added by the Patient Protection and Affordable Care Act, as amended, and incorporated into the Employee Retirement Income Security Act of 1974 and the Internal Revenue Code. Section 2713 of the PHS Act requires coverage without cost sharing of certain preventive health services by non-grandfathered group health plans and health insurance coverage. Among these services are women's preventive health services, as specified in guidelines supported by the Health Resources and Services Administration (HRSA).
As authorized by final regulations issued on July 2, 2013 (78 FR 39870), and consistent with the HRSA guidelines, group health plans established or maintained by certain religious employers (and group health insurance coverage provided in connection with such plans) are exempt from the otherwise applicable requirement to cover certain contraceptive services. Additionally, under the final regulations, group health plans established or maintained by certain nonprofit organizations that hold themselves out as religious organizations and that have religious objections to contraceptive coverage (eligible organizations) are eligible for an accommodation.
The final regulations require each organization seeking accommodation to self-certify that it meets the definition of an eligible organization. The organization must send a copy of the self-certification to an issuer or third-party administrator. The organizations seeking the accommodation must maintain the self-certification/notification in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974, which generally requires records to be maintained for six years. The form that is used by eligible organizations for their self-certification is EBSA Form 700, which is an information collection request (ICR) subject to the Paperwork Reduction Act.
The August 2014 interim final and July 2015 final regulations augmented the 2013 final regulations and revised the EBSA Form 700 ICR in light of the
The 2017 interim final rules amend the Departments' July 2015 final regulations to expand the exemption to include additional entities (any kind of non-governmental employer) and persons that object based on religious beliefs or moral convictions objecting to contraceptive or sterilization coverage, and by making the accommodation compliance process optional for eligible organizations instead of mandatory. These rules leave in place HRSA's discretion to continue to require contraceptive and sterilization coverage where no objection exists, and to the extent that PHS Act section 2713 otherwise applies. With respect to employers, the expanded exemption in these rules covers employers that have religious beliefs or moral convictions objecting to coverage of all or a subset of contraceptives or sterilization and related patient education and counseling. While the rules cover any kind of non-governmental employer but, for the sake of clarity, these regulations also include an illustrative list of employers whose objection qualifies the plans they sponsor for an exemption.
Consistent with the current exemption, exempt entities will not be required to comply with a self-certification process. Although exempt entities do not need to file notices or certifications of their exemption, existing rules governing health plans require that a plan document specify what is and is not covered. Thus where an exemption applies and all or a subset of contraception is omitted from a plan's coverage, the plan document and otherwise applicable ERISA disclosures
As in the previous rule, institutions of higher education that arrange student health insurance coverage will continue to be treated similar to the way employers are treated for the purposes of such plans being exempt. These interim final rules also exempt group health plans sponsored by an entity other than an employer, and health insurance issuers in the group and individual market, that object based on religious beliefs or moral convictions to coverage of contraceptives or sterilization. The rules also exempt health coverage offered or provided to certain individuals with their own religious or moral objections.
Employers that under the previous rules had used the accommodation process, but can now be exempt may now choose to revoke their use of the accommodation process, but in order to do so they must provide participants and beneficiaries written notice of such revocation as soon as possible.
The Office of Management and Budget (OMB) approved the amendments to EBSA Form 700 required as a revision to OMB Control Number 1210-0150 under the emergency procedures for review and clearance in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35) and 5 CFR 1320.13. OMB's approval of the revision currently are schedule to expire on September 30, 2018. In an effort to consolidate the number of information collection requests, the Department is combining the burden from 1210-0152 into 1210-0150. Once this ICR is approved the Department will discontinue. 1210-0152.
This notice requests public comment pertaining to the Department's request for extension of OMB's approval of its revision to EBSA Form 700. After considering comments received in response to this notice, the Department intends to submit an ICR to OMB for continuing approval. Changes to the current ICR include an expansion to the number of firms that qualify for the exemption, making the accommodation process optional, and requiring firms that are revoking their current accommodation to send a notice to plan participants and beneficiaries. The Department notes that an agency may not conduct or sponsor, and a person is not required to respond to, an information collection unless it displays a valid OMB control number. A summary of the ICR and the current burden estimates follows:
The Department of Labor (Department) is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments submitted in response to this notice will be summarized and/or included in the ICR for OMB approval of the extension of the information collection; they will also become a matter of public record.
Bureau of Labor Statistics, Department of Labor.
Notice of solicitation of comments.
The Department of Labor through the Bureau of Labor Statistics (BLS) is currently soliciting comments for the second major revision of the Occupational Injury and Illness Classification System (OIICS), current version 2.01. The last major revision occurred in 2011. BLS is responsible for the development and publication of occupational injury, illness, and fatality data. These data are compiled by the Survey of Occupational Injuries and Illnesses (SOII) and the Census of Fatal Occupational Injuries (CFOI) programs. The OIICS is used to classify certain case characteristics associated with the nonfatal and fatal work injury cases received by the programs.
Written comments must be submitted to the office listed in the Addresses section of this notice on or before February 1, 2018.
Send comments to Christen Byler, Office of Safety, Health and Working Conditions, Bureau of Labor Statistics, Room 3180, 2 Massachusetts Avenue NE., Washington, DC 20212 or by email to:
Christen Byler, Office of Safety, Health and Working Conditions, Bureau of Labor Statistics, telephone number: 202-691-6252, or by email at:
The Occupational Injury and Illness Classification System is used to code case characteristics of nonfatal injuries and illnesses reported in the SOII and fatal injuries reported in CFOI. Cases are classified according to five code structures that describe the injury or illness and how it occurred:
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•
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The case characteristic classification structures are hierarchical with four levels of detail to facilitate the aggregation of information and to accommodate both variations in detail available on reporting forms and the needs of data users. For example, one user may wish to look at data for injuries involving all trucks (Source code 825); whereas, another user may be interested only in cases involving tractor trailer trucks (Source code 8254). With the 2011 adoption of OIICS 2.0, the numeric hierarchy also became an order of precedence within each of the characteristics, designating which codes should be given priority when multiple codes could be appropriate within a given case.
Each case characteristic structure is comprised of the following:
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•
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• Alphabetical indices.
The original Occupational Injury and Illness Classification System (OIICS) was released in December 1992. It was developed by the Bureau of Labor Statistics with input from data users and states participating in the BLS Occupational Safety and Health (OSH) Federal/State cooperative programs. It was ultimately based on the American National Standards Institute (ANSI) Z16.2-1962,
After its adoption in 1992, OIICS was approved for use as the American National Standard for Information Management for Occupational Safety and Health in 1995 (ANSI Z16.2-1995). In addition to the BLS occupational safety and health statistics program, the OIICS is used by several state workers' compensation agencies, the National Institute for Occupational Safety and Health, and other organizations.
In September 2007, the OIICS underwent a minor update to incorporate various interpretations and corrections. A major revision followed resulting in OIICS version 2.0 with an additional minor update culminating in version 2.01. Version 2.0 was adopted with reference year 2011 and was considered a major break in series. Included were major changes to rules of selection, new code births, as well as the introduction of rules of precedence designated by the numeric hierarchy of the structures. The current version of the OIICS (2.01) is available on the BLS Web site at
A second major revision of OIICS was initiated in spring 2017. This revision is intended to update the classification system to:
• Include new or emerging conditions or workplace hazards that could potentially result from an incident or exposure in the workplace.
• Provide for data aggregations not available with the current OIICS.
• Explore the need for new or expanded coding structures to capture other case characteristics, for example worker activity.
• Improve and clarify order of precedence and rules of selection.
• Improve the usability and layout of the OIICS manual.
In addition, BLS will review the International Statistical Classification of Diseases and Related Health Problems 10th Revision (ICD-10), new ANSI standards, international program comparisons, and other comparable coding structures to optimize the capture of actionable insights for safety intervention from BLS occupational safety and health data.
Comments and recommendations are requested from the public on the following aspects of the OIICS:
• The layout and organization of the manual.
• The order of precedence and rules of selection of the five case characteristics (Nature of Injury or Illness, Part of Body Affected, Source of Injury or Illness, Secondary Source, Event or Exposure).
• Potential new coded characteristics (worker activity, work environment exposures, location, etc.).
• The code categories, including recommendations for additional categories, and for merging or deleting existing categories. (Please provide justifications where possible.)
• The descriptions of the code categories, including the lists of inclusions and exclusions.
• Alphabetical indices and other desired tools for coding assistance.
• Any other thoughts on the coding system.
Occupational Safety and Health Administration (OSHA), Department of Labor.
Notice.
This document gives notice of OSHA's approval of a change to the state of Nevada's Occupational Safety and Health State Plan reinstating federal OSHA enforcement authority over private-sector employment on military facilities and bases in Nevada. The Nevada State Plan currently has coverage over some private-sector contractors on military bases. Therefore, OSHA amends the Nevada State Plan's coverage to reflect this change in the level of federal enforcement.
Section 18 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 667 (OSH Act), provides that states that assume responsibility for developing and enforcing their own occupational safety and health standards may do so by submitting and obtaining federal approval of a State Plan. State Plan approval occurs in stages which include initial approval under section 18(c) of the OSH Act and, ultimately, final approval under section 18(e).
The Nevada State Plan was initially approved under Section 18(c) of the OSH Act on January 4, 1974 (39 FR 1009). The Nevada State Plan is administered by the Department of Business and Industry, Division of Industrial Relations, Nevada Occupational Safety and Health Administration (Nevada OSHA). On April 18, 2000, OSHA announced the final approval of the Nevada State Plan pursuant to section 18(e) and amended 29 CFR part 1952 to reflect the Assistant Secretary's decision (65 FR 20742). As a result, federal OSHA relinquished its enforcement authority with regard to occupational safety and health issues covered by the Nevada State Plan.
Federal OSHA retained its authority over safety and health in the private sector over maritime employment; contract workers, and contractor-operated facilities engaged in U.S. Postal Service mail operations; contractors and subcontractors on land under exclusive federal jurisdiction; employment on Indian Land; and any hazard, industry, geographical area, operation, or facility over which the state is unable to effectively exercise jurisdiction for reasons not related to the required performance or structure of the plan.
To establish military facilities, the Federal Government may privately purchase or lease land, as any other entity would, and in those cases a State Plan can cover private-sector occupational safety and health on such land. In other cases, the Federal Government may ask a State to cede the land to the Federal Government, in which case the latter obtains jurisdiction over it; however, a State may retain some jurisdiction. Thus, the determination whether the State Plan or federal OSHA covers private-sector employers on military facilities can be complicated. For example, military facilities in Nevada sometimes encompass both land where jurisdiction has been ceded and land privately owned by the Federal Government (though federal OSHA covers all federal civilian employees on military facilities). This situation has created confusion as to whether federal OSHA or the Nevada State Plan covers private-sector employers on a military facility, and is a resource-intensive inquiry. Thus, the Nevada State Plan requested on December 14, 2016, that federal OSHA resume enforcement authority over all private-sector employment on military facilities and bases. After discussions between federal OSHA and Nevada OSHA, both agencies agreed that federal coverage of all private-sector contractors on military bases was the best solution to ensure prompt and effective protection to workers on military bases in Nevada.
Accordingly, notice is hereby given of the change in federal enforcement authority over private-sector contractors on military bases in Nevada, and coverage is transferred from the Nevada State Plan to federal OSHA.
Loren Sweatt, Deputy Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, authorized the preparation of this notice. OSHA is issuing this notice under the authority specified by Section 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 667), Secretary of Labor's Order No. 1-2012 (77 FR 3912), and 29 CFR parts 1902, 1953 and 1955.
Notice.
Currently, the Office of Workers' Compensation Programs is soliciting comments concerning the proposed collection: Representative Payee Report (CM-623), Representative Payee Report, Short Form (CM-623S) and Physician's/Medical Officer's Statement (CM-787). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this Notice. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.
Written comments must be submitted by December 12, 2017.
You may submit comments by mail, delivery service, or by hand to Ms. Yoon Ferguson, U.S. Department of Labor, 200 Constitution Ave. NW.,
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95).
* Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
* evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
* enhance the quality, utility and clarity of the information to be collected; and
* minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Notice.
Currently, the Office of Workers' Compensation Programs is soliciting comments concerning the proposed collection: Report of Changes that May Affect Your Black Lung Benefits (CM-929 and CM-929P). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this Notice. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.
Written comments must be submitted by December 12, 2017.
You may submit comments by mail, delivery service, or by hand to Ms. Yoon Ferguson, U.S. Department of Labor, 200 Constitution Ave. NW., Room S-3323, Washington, DC 20210; by fax to (202) 354-9647; or by Email to
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a
The CM-929P is sent to all beneficiaries who have a representative payee. Compensation is paid to a representative payee on behalf of the beneficiary when the beneficiary is unable to manage his/her benefits due to incapability, incompetence or minority. The CM-929P is printed by the DCMWC computer system with information specific to each beneficiary, such as name, address, number of dependents on record, state workers' compensation information, and amount of benefits. Additionally, representative payees are requested to provide information regarding the use of benefits received, where the beneficiary lives, and ensuring the needs of the beneficiary are being met. The representative payee reviews the information specific to the beneficiary, as well as provides their accounting of the funds received, and certifies that all information is current or provides updated information. The form includes a warning about potential consequences of failure to report changes.
This information collection is currently approved for use through December 31, 2017.
* Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
* evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
* enhance the quality, utility and clarity of the information to be collected; and
* minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
All comments should be submitted within 30 calendar days from the date of this publication.
Interested persons are invited to submit written comments
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Lori Parker, NASA Clearance Officer, NASA Headquarters, 300 E Street SW., JF0000, Washington, DC 20546, (202) 358-1351.
NASA is proposing construction of a Low Boom Flight Demonstration (LBFD) experimental aircraft, aka X-plane.
This information collection will enable NASA to pre-test methods to collect information from individuals to determine community response to the new, quieter sonic booms, prior to the start of flight testing the X-plane. No public exposure to any form of sonic boom will occur during the pre-testing phase.
The pre-test will be conducted by telephone interview. NASA wants to evaluate telephone surveys to assess prompt public response associated with experiencing low amplitude sonic booms over multiple, geographically dispersed communities. Responses will be voluntary.
The new X-plane is designed to produce low amplitude sonic booms. Ultimately, flight testing of the X-plane is intended to (1) demonstrate and validate the technology necessary for civil supersonic flights that create low amplitude sonic booms, and (2) assess community response to the new, quieter, sonic booms.
Telephone.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
2:00 p.m., Wednesday, October 18, 2017.
Board Room, 7th Floor, Room 7047, 1775 Duke Street (All visitors must use Diagonal Road Entrance), Alexandria, VA 22314-3428.
Open.
1. Board Briefing, NCUA's 2018-2019 Budget.
Gerard Poliquin, Secretary of the Board, Telephone: 703-518-6304.
Institute of Museum and Library Services, National Foundation for the Arts and the Humanities.
30-Day notice of submission of information collection approval from the Office of Management and Budget and request for comments.
As part of a Federal Government-wide effort to streamline the process to seek feedback from the public on service delivery, IMLS has submitted a Generic Information Collection Request (Generic ICR): “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery ” to OMB for approval under the Paperwork Reduction Act (PRA).
Comments must be submitted by November 10, 2017.
Send comments regarding these information collections to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 Seventeenth Street NW., Washington, DC 20503, Attention: FRA Desk Officer. Alternatively, comments may be sent via email to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, at the following address:
To request additional information, please contact Sandra R. Webb, Ph.D., Senior Advisor, Institute of Museum and Library Services, 955 L'Enfant Plaza North SW., Suite 4000, Washington, DC 20024-2135. Dr. Webb can be reached by Telephone: 202-653-4718, Fax: 202-653-4601, or by email at
Feedback collected under this generic clearance will provide useful information, but it will not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: The target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential non-response bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior to fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results.
The Agency received two comments in response to the 60-day notice published in the
Below we provide the projected average estimates for the next three years:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
National Endowment for the Humanities.
Notice of meetings.
The National Endowment for the Humanities will hold twelve meetings of the Humanities Panel, a federal advisory committee, during November, 2017. The purpose of the meetings is for panel review, discussion, evaluation, and recommendation of applications for financial assistance under the National Foundation on the Arts and Humanities Act of 1965.
See
The meetings will be held at Constitution Center at 400 7th Street SW., Washington, DC 20506, unless otherwise indicated.
Elizabeth Voyatzis, Committee Management Officer, 400 7th Street SW., Room 4060, Washington, DC 20506; (202) 606-8322;
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App.), notice is hereby given of the following meetings:
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Because these meetings will include review of personal and/or proprietary financial and commercial information given in confidence to the agency by grant applicants, the meetings will be closed to the public pursuant to sections 552b(c)(4) and 552b(c)(6) of Title 5, U.S.C., as amended. I have made this determination pursuant to the authority granted me by the Chairman's Delegation of Authority to Close Advisory Committee Meetings dated April 15, 2016.
October 17, 2017 at 1:00 p.m.
Board Agenda Room, No. 5065, 1015 Half St. SE., Washington, DC.
Closed.
Pursuant to § 102.139(a) of the Board's Rules and Regulations, the Board or a panel thereof will consider “the issuance of a subpoena, the Board's participation in a civil action or proceeding or an arbitration, or the initiation, conduct, or disposition . . . of particular representation or unfair labor practice proceedings under section 8, 9, or 10 of the [National Labor Relations] Act, or any court proceedings collateral or ancillary thereto.” See also 5 U.S.C. 552b(c)(10).
Roxanne Rothschild, Deputy Executive Secretary, 1015 Half Street SE., Washington, DC 20570. Telephone: (202) 273-2917.
The National Science Board's Awards and Facilities Committee, pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of the scheduling of a teleconference on short notice for the transaction of National Science Board business, as follows:
October 17, 2017, from 1:00-2:00 p.m. EDT.
Closed.
(1) Committee Chair's opening remarks; (2) Update on Arecibo.
This meeting will be held by teleconference at the National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314. Please refer to the National Science Board Web site
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, 10 CFR part 81, “Standard Specifications for Granting of Patent Licenses.”
Submit comments by November 13, 2017.
Submit comments directly to the OMB reviewer at: Aaron Szabo, Desk Officer, Office of Information and Regulatory Affairs (3150-0121), NEOB-10202, Office of Management and Budget, Washington, DC 20503; telephone: 202-395-3621, email:
David Cullison, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2017-0086 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:
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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, 10 CFR part 81, “Standard Specifications for Granting of Patent Licenses.” 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
The NRC published a
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For the Nuclear Regulatory Commission.
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, “Licensing Requirements for the Independent Storage of Spent Nuclear Fuel, High-Level Radioactive Waste and Reactor-Related Greater than Class C Waste.”
Submit comments by November 13, 2017.
Submit comments directly to the OMB reviewer at: Aaron Szabo Desk Officer, Office of Information and Regulatory Affairs (3150-0132), NEOB-10202, Office of Management and Budget, Washington, DC 20503; telephone: 202-395-3621, email:
David Cullison, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2016-0269 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:
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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 renewal of an existing collection of information to OMB for review entitled, “Licensing Requirements for the Independent Storage of Spent Nuclear Fuel, High-Level Radioactive Waste and Reactor-Related Greater than Class C Waste.” 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
The NRC published a
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For the Nuclear Regulatory Commission.
Week of October 16, 2017.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public.
By a vote of 3-0 on October 10 and 11, 2017, 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 16, 2017
The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Denise McGovern at 301-415-0981 or via email at
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
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a 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.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's Web site (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3010, and 39 CFR part 3020, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comment deadline(s) for each request appear in section II.
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Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on October 6, 2017, it filed with the Postal Regulatory Commission a
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to waive Nasdaq's Entry Fee when a new entity lists in connection with a transaction between two or more Nasdaq-listed companies (or involving assets from such companies), where at least one of the Nasdaq-listed companies ceases to be separately listed.
The text of the proposed rule change is set forth below. Proposed new language is italicized; deleted text is in brackets.
(1)-(6) No change.
(7) The fees described in this Rule 5910(a) shall not be applicable with respect to any securities that:
(i) No change.
(ii) are listed on the New York Stock Exchange and Nasdaq, if the issuer of such securities ceases to maintain their listing on the New York Stock Exchange and the securities instead are designated as national market securities under Rule 5220; [or]
(iii) are listed on another national securities exchange but not listed on
(8)-(11) No change.
(b)-(f) No change.
(1)-(6) No change.
(7) The fees described in this Rule 5920(a) shall not be applicable with respect to any securities that:
(i) No change.
(ii) are listed on the New York Stock Exchange and Nasdaq, if the issuer of such securities ceases to maintain their listing on the New York Stock Exchange and the securities instead are designated under the plan applicable to Nasdaq Capital Market securities; [or]
(iii) are listed on another national securities exchange, if the issuer of such securities is acquired by an unlisted company and, in connection with the acquisition, the unlisted company lists exclusively on the Nasdaq Capital Market
(8)-(11) No change.
(b)-(e) No change.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to adopt a waiver of Nasdaq's entry fee for a newly formed company resulting from a transaction between two or more Nasdaq-listed companies (or involving assets from such companies), where at least one of the Nasdaq-listed companies ceases to be separately listed.
Nasdaq charges most newly listing companies an entry fee, but excludes certain new listings from that fee where it believes it is equitable to do so. For example, Nasdaq does not charge an entry fee for companies that transfer from another national securities exchange given that these companies had previously paid an entry fee to that other exchange and to encourage companies to switch their listing to Nasdaq.
Nasdaq now proposes to exclude an additional category of companies from the entry fee: Newly formed companies resulting from a transaction between two or more Nasdaq-listed companies (or involving assets from such companies) where at least one of the Nasdaq-listed companies ceases to be separately listed. In such a case, while there may technically be a new legal entity created and listed for the first time, at least one of the companies ceases to be separately listed and so Nasdaq believes it is equitable to treat the new combined company as succeeding to that listing, which has already been subject to the applicable entry fees. In addition, given that all companies involved in the transaction are already listed on Nasdaq, the Exchange's regulatory staff will already be familiar with the companies and the transaction and the companies will be familiar with the Exchange's rules, which will result in a reduced burden on staff to review the new company than would otherwise be the case.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
As a preliminary matter, Nasdaq competes for listings with other national securities exchanges and companies can easily choose to list on, or transfer to, those alternative venues. As a result, the fees Nasdaq can charge listed companies are constrained by the fees charged by its competitors and Nasdaq cannot charge prices in a manner that would be unreasonable, inequitable, or unfairly discriminatory.
Nasdaq believes that the proposed waiver of Nasdaq's entry fee for a newly formed company resulting from a transaction between two or more Nasdaq-listed companies (or involving assets from such companies), where at least one of the Nasdaq-listed companies ceases to be separately listed, is reasonable and not unfairly discriminatory because it recognizes that the new combined company is essentially succeeding to the listing of the company that ceases to be separately listed in the transaction, which has already been subject to the applicable entry fees. In addition, given that all companies involved in the transaction are already listed on Nasdaq, the Exchange's regulatory staff will already be familiar with the companies and the transaction and the companies will be familiar with the Exchange's rules, which will result in a reduced burden on staff to review the new company than would otherwise be the case. These are non-discriminatory reasons to waive the fee for this situation. Nasdaq also notes that the proposed waiver would be applied in the same manner to all similarly situated companies.
Nasdaq also believes that the proposed waiver is not unfairly discriminatory in that it will encourage the new company to remain listed on Nasdaq at a time when the company is undergoing a change and may otherwise consider alternative listing venues. This competitive dynamic provides an additional reason as to why it is appropriate to distinguish companies in this situation from other new listings.
Finally, Nasdaq believes that the proposed fees are consistent with the investor protection objectives of Section
Nasdaq 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 market for listing services is extremely competitive and listed companies may freely choose alternative venues based on the aggregate fees assessed, and the value provided by each listing. In such an environment, Nasdaq must continually adjust its fees to remain competitive with other exchanges. Because other listing venues are similarly free to modify their own fees in response, Nasdaq believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) 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 (the “Act”),
The Exchange proposes to amend its Fees Schedule to correct an inadvertent marking error made to the Exhibit 5 in a previous rule filing.
The text of the proposed rule change is also available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for
The Exchange proposes to amend its Fees Schedule to correct an inadvertent marking error made to the Exhibit 5 in a previous rule filing. Specifically, on April 13, 2017, the Exchange filed a rule filing, SR-C2-2017-015, which proposed to eliminate certain PULSe fees, effective April 3, 2017.
Lastly, the Exchange notes that it had previously renamed the “OATS Reporting” fee to the “Equity Order Reports” fee.
Accordingly, the Exchange proposes to amend the Fees Schedule to reflect the accurate prices of the Drop Copy Fees and the accurate name of the Equity Order Reports fee. No substantive changes are being made by the proposed rule change.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The Exchange believes correcting an inadvertent marking error from a previous rule filing in order to accurately reflect the Drop Copy prices and the name of the Equity Order Reports fee will alleviate potential confusion, thereby removing impediments to and perfecting the mechanism of a free and open market and a national market system and protecting investors and the public interest.
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. As discussed above, the proposed change is merely intended to correct an inadvertent marking error made in a previous rule filing, which will alleviate potential confusion.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to reduce the fees for certain Investment Management Entities and Eligible Portfolio Companies.
While these amendments are effective upon filing, the Exchange has designated the proposed amendments to be operative on January 1, 2018.
The text of the proposed rule change is set forth below. Proposed new language is italicized; deleted text is in brackets.
(a)-(c) No change.
(d) The All-Inclusive Annual Listing Fee will be calculated on total shares outstanding according to the following schedules:
(1)-(3) No change.
(4) Limited Partnerships [(effective January 1, 2017)]:
(e) No change.
(a)-(c) No change.
(d) The All-Inclusive Annual Listing Fee will be calculated on total shares outstanding according to the following schedules:
(1)-(3) No change.
(4) Limited Partnerships [(effective January 1, 2017)]:
(e) No change.
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 proposes to reduce the fees for certain Investment Management Entities and Eligible Portfolio Companies. An Investment Management Entity for purposes of this provision would be defined as a company listed on Nasdaq or another national securities exchange which manages private investment vehicles that are not registered under the Investment Company Act. There are a small number of such companies that engage in the business of managing such private equity funds. Through these private equity funds, Investment Management Entities invest in private companies. An “Eligible Portfolio Company” of an Investment Management Entity is a Nasdaq-listed company in which the Investment Management Entity has owned at least 20% of the common stock on a continuous basis since prior to that company's initial listing.
Investment Management Entities typically provide significant managerial and advisory assistance to their portfolio companies, in part, based on their familiarity, as a public company listed on a national securities exchange, with the requirements for an exchange listing. An Investment Management Entity will frequently seek to exit its funds' investment in a privately-held portfolio company by conducting an initial public offering (IPO) on behalf of that portfolio company. The Investment Management Entity does not typically sell shares in the IPO but, rather, shares not sold in the IPO are gradually sold off over a period of years in the public market. While these Investment Management Entities have control or influence over the decision making of their portfolio companies in both their pre- and post-public phases, the decision as to where to list is typically made jointly by the portfolio company's senior management team and the Investment Management Entity. Nasdaq benefits from its ongoing relationships with these Investment Management Entities (and members of the management teams that had previously dealt with Nasdaq) when competing for the listing of their portfolio companies. In addition, Nasdaq benefits from the efficiencies in dealing with portfolio companies that are benefiting from the guidance and experience of the Investment Management Entities to which they are related.
Nasdaq incurs substantial costs in connection with its marketing to companies choosing a listing venue for their IPO. In those cases where the Exchange has a longstanding relationship with the Investment Management Entity controlling a listing applicant, Nasdaq's costs of marketing to the prospect company can be much lower than usual because of the Investment Management Entity's prior experience with Nasdaq. Typically, when pitching for the listing of a company that is choosing a listing venue for its IPO, Nasdaq incurs significant expense, including the time spent by its CEO and other senior management in preparing for and traveling to meetings with the prospect company, travel costs, the cost of developing pitching strategies and the cost of producing marketing materials. In addition, it has been the Exchange's experience that an Investment Management Entity puts high-quality and experienced management teams in place at its portfolio companies prior to listing and that the Investment Management Entity continues to provide significant support to those companies after listing. Consequently, those companies require lower levels of support from Nasdaq's business and regulation departments to assist them in navigating the initial and continued listing process and Nasdaq devotes significantly smaller staff resources to those companies on average than to the typical newly-listed company that is not controlled prior to listing by an Investment Management Entity.
Nasdaq believes that these cost savings attributable to its relationship with an Investment Management Entity allow for a reduction in continued listing fees to the Investment Management Entities that are significant shareholders in other Nasdaq-listed companies, as well as to those portfolio companies that have listed on Nasdaq as a consequence of those relationships. Nasdaq also believes that the proposed fee reduction would provide an incentive to Investment Management
A new listing that satisfies these requirements will be eligible for the discount upon listing based upon Nasdaq's review of public filings disclosing ownership. In order to qualify for this discount in any subsequent calendar year, an issuer must submit satisfactory proof to Nasdaq no later than December 31st of the prior year that it is eligible for the discount.
The proposed amendment will affect the All-Inclusive Annual Listing Fee schedule
Nasdaq notes that American Depositary Receipts (ADRs), closed-end funds and limited partnerships also have different fee schedules than other listed equity securities. Nasdaq believes that the characteristics of ADRs, closed-end funds and limited partnerships are different than the characteristics of Investment Management Entities and Eligible Portfolio Companies and that it is therefore appropriate to apply a different fee schedule for Investment Management Entities and Eligible Portfolio Companies. If an Eligible Portfolio Company or an Investment Management Entity with listed Eligible Portfolio Companies lists ADRs, or is a closed-end fund or a limited partnership, its All-Inclusive fee will be the lower of: (i) The fee applicable to ADRs, closed-end funds or limited partnerships, as applicable, or (ii) the 50% fee discount to the fee applicable to other equity securities listed on the same tier.
Nasdaq notes that no other company will be required to pay higher fees as a result of the proposed amendments and represents that the proposed fee change will have no impact on the resources available for its regulatory programs.
The proposed fee change will be operative January 1, 2018.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
As a preliminary matter, Nasdaq competes for listings with other national securities exchanges and companies can easily choose to list on, or transfer to, those alternative venues. As a result, the fees Nasdaq can charge listed companies are constrained by the fees charged by its competitors and Nasdaq cannot charge prices in a manner that would be unreasonable, inequitable, or unfairly discriminatory.
Nasdaq believes that the proposed fee change reducing the fee paid by Eligible Portfolio Companies and Investment Management Entities with listed Eligible Portfolio Companies is reasonable and not unfairly discriminatory because it recognizes the reduced regulatory and business costs Nasdaq incurs for listing these Investment Management Entities and Eligible Portfolio Companies. Specifically, Nasdaq benefits from significant cost and resource-utilization savings when listing portfolio companies of Investment Management Entities as it does not have to engage in significant marketing efforts because the decision makers at the Investment Management Entity are already familiar with Nasdaq. Typically when pitching for the listing of a company that is choosing a listing venue for its IPO, Nasdaq incurs significant expense, including: The time spent by its CEO and other senior management in preparing for and traveling to meetings with the prospect company, travel costs, the cost of developing pitching strategies and the cost of producing marketing materials. As Nasdaq saves much of this expense when pitching to a portfolio company of an Investment Management Entity with which Nasdaq has an established relationship, Nasdaq believes that it is reasonable to share some of those savings with listed Investment Management Entities and their Eligible Portfolio Companies. In addition, Nasdaq typically has lower costs and resource utilization in connection with the initial and continued listing of Eligible Portfolio Companies than with other new listings, as the Exchange benefits from dealing with the high-quality and experienced management teams Investment Management Entities put in place at portfolio companies prior to listing and the ongoing relationship those companies maintain with staff at the Investment Management Entity, who can share their experience as a public company listed on a national securities exchange. Nasdaq also believes that the proposed discount is reasonable in that it will create a reasonable commercial incentive for Investment Management Entities and the management of their portfolio companies to consider listing on Nasdaq and to remain listed.
Nasdaq believes that it is not unfairly discriminatory to discount continued listing fees as a means of recognizing its cost savings related to the listing of an Investment Management Entity and its Eligible Portfolio Companies. This is because a significant portion of the Exchange's savings arise from the efficiencies it experiences on an ongoing basis in dealing with Eligible Portfolio Companies for such time as the Investment Management Entity retains a
Currently, ADRs, closed-end funds and limited partnerships also pay lower All-Inclusive Annual Listing Fees than other issuers of equity securities. Nasdaq believes it is appropriate to apply a fee schedule to Investment Management Entities and Eligible Portfolio Companies that is different from those applicable to either ADRs, closed-end funds or limited partnerships due to their differing characteristics. Specifically, Nasdaq charges lower listing fees for ADRs because, among other differences, the U.S. listing is not typically the issuer of an ADR's primary listing.
While the proposed fee reduction only applies to Investment Management Entities and their Eligible Portfolio Companies on the All-Inclusive Annual Fee schedule, Nasdaq notes that all companies will transition to that fee schedule in 2018 at the same time that this fee change will become effective.
Finally, Nasdaq believes that the proposed fees are consistent with the investor protection objectives of Section 6(b)(5) of the Act
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. The market for listing services is extremely competitive and listed companies may freely choose alternative venues based on the aggregate fees assessed, and the value provided by each listing. This rule proposal does not burden competition with other listing venues, which are similarly free to set their fees. For these reasons, Nasdaq does not believe that the proposed rule change will result in any burden on competition for listings.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) 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.
Notice is hereby given of the following determinations: I hereby determine that certain objects to be included in the exhibition “Sunken Cities: Egypt's Lost Worlds,” imported from abroad for temporary exhibition within the United States, are of cultural significance. The objects are imported pursuant to a loan agreement with the foreign owner or custodian. I also determine that the exhibition or display of the exhibit objects at the Saint Louis Art Museum, Saint Louis, Missouri, from on or about March 25, 2018, until on or about September 9, 2018, at the Minneapolis Institute of Art, Minneapolis, Minnesota, from on or about October 28, 2018, until on or about April 14, 2019, and at possible additional exhibitions or venues yet to be determined, is in the national interest.
For further information, including a list of the imported objects, contact Elliot Chiu in the Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Notice is hereby given of the following determinations: I hereby determine that certain objects to be included in the exhibition “Repentant Monk: Illusion and Disillusion in the Art of Chen Hongshou,” imported from abroad for temporary exhibition within the United States, are of cultural significance. The objects are imported pursuant to a loan agreement with the foreign owner or custodian. I also determine that the exhibition or display of the exhibit objects at the University of California, Berkeley Art Museum and Pacific Film Archive, Berkeley, California, from on or about October 27, 2017, until on or about January 28, 2018, and at possible additional exhibitions or venues yet to be determined, is in the national interest.
For further information, including a list of the imported objects, contact Elliot Chiu in the Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Federal Aviation Administration (FAA), DOT.
Notice of release and permanent closure of the St. Clair Regional Airport, St. Clair, Missouri.
The FAA is publishing this notice of a pending action required by statute. Public Law 113-285 requires the FAA to release the City of St. Clair, Missouri, from all restrictions, conditions, and limitations on the use, encumbrance, conveyance, and closure of the St. Clair Regional Airport upon the satisfaction of certain conditions of the St. Clair Regional Airport (K39). On August 1, 2017, the City of St. Clair, Missouri provided written notice to the Federal Aviation Administration (FAA) of its intent to permanently close the St. Clair Regional Airport (K39), in St. Clair, Missouri. The City of St. Clair provided this notice to the FAA in excess of 30 days before the permanent closure. The FAA hereby publishes the City of St. Clair's notice of permanent closure of the St. Clair Regional Airport.
The permanent closure of the airport is applicable November 13, 2017.
Jim A. Johnson, FAA Central Region Airports Division, Airports Division Director, 901 Locust, Room 364, Kansas City, Missouri 64106, (816) 329-2600
Public Law 113-285 requires the FAA to release the City of St. Clair, Missouri, of restrictions, conditions, and limitations on the use, encumbrance, conveyance, and closure of the Airport upon the satisfaction of certain conditions of the St. Clair Regional Airport (K39). This non-towered, general aviation airport consist of approximately 79 acres and 6 based aircraft. Title 49 U.S.C. 46319 states that a public agency (as defined in section 47102) may not permanently close an airport listed in the National Plan of Integrated Airport Systems under section 47103 without providing written notice to the Administrator of the FAA at least 30 days before the date of the closure. The FAA recognizes that the City of St. Clair met this requirement on August 1, 2017.
Office of Foreign Assets Control, Department of the Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of persons whose property and interests in property have been unblocked and removed from the list of Specially Designated Nationals and Blocked Persons.
See
OFAC: Associate Director for Global Targeting, tel: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490; or the Department of the Treasury's Office of the General Counsel: Office of the Chief Counsel (Foreign Assets Control), tel.: 202-622-2410.
The list of Specially Designated Nationals and Blocked Persons (SDN List) and additional information concerning OFAC sanctions programs are available on OFAC's Web site (
On October 6, 2017, OFAC determined that the property and interests in property of the following persons are unblocked and removed from the SDN List under the relevant sanctions authority listed below.
1. GALINDO MARTINEZ, Fernando Alberto, c/o MELRUX RICA S PIZZA, Bogota, Colombia; Calle 24C No. 75-59, Bogota, Colombia; Calle 119A No. 57-40 Torre 6 Ap. 1018, Bogota, Colombia; Carrera 45 No. 24A-05, Bogota, Colombia; Carrera 75 No. 24C-22, Bogota, Colombia; DOB 09 Apr 1971; Cedula No. 79574058 (Colombia) (individual) [SDNTK].
2. LOPEZ MEJIA, Claudia Estela, c/o DOLPHIN DIVE SCHOOL S.A., Cartagena, Colombia; c/o INVERSIONES CIFUENTES Y CIA. S. EN C., Medellin, Colombia; c/o LE CLAUDE, S.A. DE C.V., Mexico City, Distrito Federal, Mexico; c/o OPERADORA NUEVA GRANADA, S.A. DE C.V., Mexico City, Distrito Federal, Mexico; Camino del Remanso, No. 80 A, Planta Baja, Colonia Lomas Country Club, Huixquilucan, Estado de Mexico C.P. 52779, Mexico; Camino del Remanso No. 80 Interior 2, Colonia Lomas Country Club, Huixquilucan, Estado de Mexico C.P. 52779, Mexico; Tamarindos 105, Colonia Bosques de las Lomas, Naucalpan de Juarez, Estado de Mexico, Mexico; DOB 16 Dec 1972; POB Belen de Umbria, Risaralda, Colombia; Cedula No. 42104723 (Colombia); Passport AK572650 (Colombia) (individual) [SDNTK].
3. LUNA CORDOBA, Rosa Edelmira, c/o ADMINISTRADORA GANADERA EL 45 LTDA., Medellin, Colombia; c/o CASA DEL GANADERO S.A., Medellin, Colombia; c/o ELECTROMUEBLES DEL BAJO CAUCA, Medellin, Colombia; c/o GANADERIA LUNA HERMANOS LTDA., Medellin, Colombia; c/o INVERSIONES EL MOMENTO S.A., Medellin, Colombia; c/o INVERSIONES LICOM LTDA., Medellin, Colombia; c/o SOCIEDAD MINERA GRIFOS S.A., El Bagre, Antioquia, Colombia; Calle 10E No. 25-41, Medellin, Colombia; Carrera 42 No. 34-15, Medellin, Colombia; 801 Brickell Key Blvd., unit 1907, Miami, FL 33131, United States; 13315 SW 128 Passage, Miami, FL 33186, United States; DOB 18 Sep 1960; POB Puerto Asis, Putumayo, Colombia; Cedula No. 41101742 (Colombia); Passport AK031225 (Colombia) (individual) [SDNT].
1. BALBOA BANK & TRUST, CORP. (a.k.a. BALBOA BANK AND TRUST, CORP.), Edificio Balboa Bank & Trust, Calle 50 y Calle Beatriz Maria Cabal, Panama, Panama; SWIFT/BIC BTACPAPA; RUC # 4199990-1-427208 (Panama) [SDNTK].
2. BALBOA SECURITIES, CORP., Edificio Balboa Bank & Trust, Calle 50 y Calle Beatriz Maria Cabal, Panama, Panama; RUC # 965431-1-528815 (Panama) [SDNTK].
3. STRATEGIC INVESTORS GROUP INC. (a.k.a. “SI GROUP”), Edificio Balboa Bank & Trust, Calle 50 y Calle Beatriz Maria Cabal, Panama, Panama; RUC # 1649734-1-675348 (Panama) [SDNTK].
4. PERSHORE INVESTMENTS S.A., Edificio Balboa Bank & Trust, Calle 50 y Calle Beatriz Maria Cabal, Panama, Panama; RUC # 1420780-1-631797 (Panama) [SDNTK].
5. STRATEGIC OIL CORP., Edificio Balboa Bank & Trust, Calle 50 y Calle Beatriz Maria Cabal, Panama, Panama; RUC # 2432399-1-809429 (Panama) [SDNTK].
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of persons whose property and interests in property have been unblocked pursuant to Executive Order 13581 of July 24, 2011, “Blocking Property of Transnational Criminal Organizations.”
OFAC's actions described in this notice were effective on October 4, 2017.
The Department of the Treasury's Office of Foreign Assets Control: Assistant Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490; Assistant Director for Licensing, tel.: 202-622-2480, Assistant Director for Regulatory Affairs, tel.: 202-622-4855, or the Department of the Treasury's Office of the Chief Counsel (Foreign Assets Control), Office of the General Counsel, tel.: 202-622-2410.
The list of Specially Designated Nationals and Blocked Persons (SDN List) and additional information concerning OFAC sanctions programs are available from OFAC's Web site at
On October 4, 2017, OFAC removed from the SDN List the persons listed below, whose property and interests in property were blocked pursuant to Executive Order 13581.
1. DAVIS, Robert Paul (a.k.a. DAVIS, Paul; a.k.a. DAVIS, Paul Nadin; a.k.a. DAVIS, R. Paul Nadin; a.k.a. DAVIS, Robert; a.k.a. NADIN-DAVIS, Robert Paul), 45 Knock Rushen Scarlett, Castletown, Isle of Man IM9 1TQ, United Kingdom; 69 Buchanan Street, Glasgow, Scotland G1 3HL, United Kingdom; D11, Glyme Court, Oxford Office Village, Langford Lane, Kidlington, Oxon, England OX5 1LQ, United Kingdom; Avondale House, Queens Promenade, Douglas, Isle of Man IM2 4ND, United Kingdom; Parkshot House, 5 Kew Road, Richmond, Surrey TW9 2PR, United Kingdom; 1 Ros Na Greine, Balleycasey, Shannon, Ireland; 1 Ros Na Greinne, Balleycasey, Shannon, Co. Clare, Ireland; 70 Empress Court, Oxford, United Kingdom; 2571 Carling Avenue, Ottawa, Ontario K2B 7H7, Canada; DOB 19 Jan 1956; POB Fulwood, United Kingdom; Passport 460085575 (United Kingdom); alt. Passport VF275682 (Canada); alt. Passport BD103703 (Canada) (individual) [TCO] (Linked To: PACNET AIR; Linked To: PACNET EUROPE; Linked To: PACNET ZAR; Linked To: PACNET INDIA; Linked To: ACCU-RATE CORPORATION; Linked To: CHEXX ITALIA SRL; Linked To: CHEXX INC.; Linked To: COUNTING HOUSE SERVICES LTD.; Linked To: THE PAYMENTS FACTORY LTD.; Linked To: PACNET SERVICES LTD.; Linked To: PACNET SERVICES (IRELAND) LIMITED; Linked To: AEROPAY LIMITED; Linked To: MANX RARE BREEDS LTD.; Linked To: PACNET GROUP).
2. DAY, Rosanne Phyllis (a.k.a. DAY, Rosanne; a.k.a. DRONSFIELD, Rosanne Phyllis), 3928 West 22nd Avenue, Vancouver, British Columbia V65 1K1, Canada; 69 Buchanan Street, Glasgow, Scotland G1 3HL, United Kingdom; Parkshot House, 5 Kew Road, Richmond, Surrey TW9 2PR, United Kingdom; DOB 12 Mar 1968; nationality United Kingdom (individual) [TCO] (Linked To: DEEPCOVE LABS; Linked To: PACNET SERVICES LTD.; Linked To: PACNET ZAR; Linked To: CHEXX INC.; Linked To: PACNET EUROPE; Linked To: PACNET GROUP).
3. HUMPHREYS, Gerard Alphonsus (a.k.a. HUMPHREYS, Gerry), Brittas House, Brittas, County Limerick, Ireland; D11 Glyme Court, Oxford Office Village, Langford Lane, Oxford Oxon OX5 1LQ, United Kingdom; DOB 17 Jul 1958; nationality Ireland; Passport B781829 (Ireland) (individual) [TCO] (Linked To: PACNET AIR; Linked To: PACNET HOLDINGS LIMITED; Linked To: CHEXX INC.; Linked To: PACNET SERVICES (IRELAND) LIMITED; Linked To: AEROPAY LIMITED; Linked To: PACNET EUROPE; Linked To: PACNET GROUP).
1. MANX RARE BREEDS LTD. (a.k.a. BALLALOAGHTAN FARM), The Barn Ballaloaghtan Kerrowkeil Hamlet, Grenaby IM9 3BB, United Kingdom; Web site
U.S. persons are permitted to engage in all lawful transactions with the persons listed above.
Departmental Offices, Treasury.
Notice of Fiscal Year 2016 service contract inventory.
The Department of the Treasury's Fiscal Year (FY) 2016 Service Contract Inventory. The Inventory lists all service contract actions over $25,000 awarded in FY 2016 and funded by Treasury, to include contract actions made on the Department's behalf by other agencies. Contract actions awarded by the Department on another agency's behalf with the other agency's funding are excluded.
Frank Bajowski, Office of the Procurement Executive, U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC 20220, at (202) 622-6760 or
In accordance with Section 743 of Division C of the FY 2010 Consolidated Appropriations Act, Public Law (Pub. L.) 111-117, agencies required to submit an inventory in accordance with the Federal Activities Inventory Reform Act of 1998 (Pub. L. 105-270; 31 U.S.C. 501 note), other than the Department of the Defense, shall also prepare an annual service contract inventory. Treasury's FY 2016 service contract inventory data is included in the government-wide inventory posted on
Internal Revenue Service, Department of the Treasury; Employee Benefits Security Administration, Department of Labor; and Centers for Medicare & Medicaid Services, Department of Health and Human Services.
Interim final rules with request for comments.
The United States has a long history of providing conscience protections in the regulation of health care for entities and individuals with objections based on religious beliefs and moral convictions. These interim final rules expand exemptions to protect religious beliefs for certain entities and individuals whose health plans are subject to a mandate of contraceptive coverage through guidance issued pursuant to the Patient Protection and Affordable Care Act. These rules do not alter the discretion of the Health Resources and Services Administration (HRSA), a component of the United States Department of Health and Human Services (HHS), to maintain the guidelines requiring contraceptive coverage where no regulatorily recognized objection exists. These rules also leave the “accommodation” process in place as an optional process for certain exempt entities that wish to use it voluntarily. These rules do not alter multiple other Federal programs that provide free or subsidized contraceptives for women at risk of unintended pregnancy.
Written comments may be submitted to the Department of Health and Human Services as specified below. Any comment that is submitted will be shared with the Department of Labor and the Department of the Treasury, and will also be made available to the public.
Do not include any personally identifiable information (such as name, address, or other contact information) or confidential business information that you do not want publicly disclosed. All comments may be posted on the Internet and can be retrieved by most Internet search engines. No deletions, modifications, or redactions will be made to the comments received, as they are public records. Comments may be submitted anonymously. Comments, identified by “Preventive Services,” may be submitted 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) 786-9994 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.
Comments received will be posted without change to
Jeff Wu (310) 492-4305 or
Congress has consistently sought to protect religious beliefs in the context of health care and human services, including health insurance, even as it has sought to promote access to health services.
The Departments have recently exercised our discretion to reevaluate these exemptions and accommodations. This evaluation includes consideration of various factors, such as the interests served by the existing Guidelines, regulations, and accommodation process;
In light of these factors, the Departments issue these new interim final rules to better balance the Government's interest in ensuring coverage for contraceptive and sterilization services in relation to the Government's interests, including as reflected throughout Federal law, to provide conscience protections for individuals and entities with sincerely held religious beliefs in certain health care contexts, and to minimize burdens in our regulation of the health insurance market.
Collectively, the Patient Protection and Affordable Care Act (Pub. L. 111-148), enacted on March 23, 2010, and the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152), enacted on March 30, 2010, are known as the Affordable Care Act. In signing the Affordable Care Act, President Obama issued Executive Order 13535 (March 24, 2010), which declared that, “[u]nder the Act, longstanding Federal laws to protect conscience (such as the Church Amendment, 42 U.S.C. 300a-7, and the Weldon Amendment, section 508(d)(1) of Pub. L. 111-8) remain intact” and that “[n]umerous executive agencies have a role in ensuring that these restrictions are enforced, including the HHS.”
The Affordable Care Act reorganizes, amends, and adds to the provisions of part A of title XXVII of the Public Health Service Act (PHS Act) relating to group health plans and health insurance issuers in the group and individual markets. In addition, the Affordable Care Act adds section 715(a)(1) to the Employee Retirement Income Security Act of 1974 (ERISA) and section 9815(a)(1) to the Internal Revenue Code (Code) to incorporate the provisions of part A of title XXVII of the PHS Act into ERISA and the Code, and thereby make them applicable to certain group health plans regulated under ERISA or the Code. The sections of the PHS Act incorporated into ERISA and the Code are sections 2701 through 2728 of the PHS Act.
These interim final rules concern section 2713 of the PHS Act. Where it applies, section 2713(a)(4) of the PHS Act requires coverage without cost sharing for “such additional” women's preventive care and screenings “as provided for” and “supported by” guidelines developed by HRSA/HHS. The Congress did not specify any particular additional preventive care and screenings with respect to women that HRSA could or should include in its Guidelines, nor did Congress indicate whether the Guidelines should include contraception and sterilization.
The Departments have consistently interpreted section 2714(a)(4) PHS Act's grant of authority to include broad discretion to decide the extent to which HRSA will provide for and support the coverage of additional women's preventive care and screenings in the Guidelines. In turn, the Departments have interpreted that discretion to include the ability to exempt entities from coverage requirements announced in HRSA's Guidelines. That interpretation is rooted in the text of section 2713(a)(4) of the PHS Act, which allows HRSA to decide the extent to which the Guidelines will provide for and support the coverage of additional women's preventive care and screenings.
Accordingly, the Departments have consistently interpreted section 2713(a)(4) of the PHS Act's reference to “comprehensive guidelines supported by HRSA for purposes of this paragraph” to grant HRSA authority to develop such Guidelines. And because the text refers to Guidelines “supported by HRSA for purposes of this paragraph,” the Departments have consistently interpreted that authority to afford HRSA broad discretion to consider the requirements of coverage and cost-sharing in determining the nature and extent of preventive care and screenings recommended in the guidelines. (76 FR 46623). As the Departments have noted, these Guidelines are different from “the other guidelines referenced in section 2713(a) of the PHS Act, which pre-dated the Affordable Care Act and were originally issued for purposes of identifying the non-binding recommended care that providers should provide to patients.” Id. Guidelines developed as nonbinding recommendations for care implicate significantly different legal and policy concerns than guidelines developed for a mandatory coverage requirement. To guide HRSA in exercising the discretion afforded to it in section 2713(a)(4) of the PHS Act, the Departments have previously promulgated regulations defining the scope of permissible exemptions and accommodations for such guidelines. (45 CFR 147.131). The interim final rules set forth herein are a necessary and appropriate exercise of the authority of HHS, of which HRSA is a component, and of the authority delegated to the Departments collectively as administrators of the statutes. (26 U.S.C. 9833; 29 U.S.C. 1191c; 42 U.S.C. 300gg-92)
Our interpretation of section 2713(a)(4) of the PHS Act is confirmed by the Affordable Care Act's statutory structure. Congress did not intend to require entirely uniform coverage of preventive services (76 FR 46623). To the contrary, Congress carved out an exemption from section 2713 of the PHS Act for grandfathered plans. In contrast, this exemption is not applicable to many of the other provisions in Title I of the Affordable Care Act—provisions previously referred to by the Departments as providing “particularly significant protections.” (75 FR 34540). Those provisions include: Section 2704 of the PHS Act, which prohibits preexisting condition exclusions or other discrimination based on health status in group health coverage; section 2708 of the PHS Act, which prohibits excessive waiting periods (as of January 1, 2014); section 2711 of the PHS Act, which relates to lifetime limits; section 2712 of the PHS Act, which prohibits rescission of health insurance coverage; section 2714 of the PHS Act, which extends dependent coverage until age 26; and section 2718 of the PHS Act, which imposes a medical loss ratio on health insurance issuers in the individual and group markets (for insured coverage), or requires them to provide rebates to policyholders. (75 FR 34538, 34540, 34542). Consequently, of the 150 million nonelderly people in America with employer-sponsored health coverage, approximately 25.5 million are estimated to be enrolled in grandfathered plans not subject to section 2713 of the PHS Act.
The Departments' interpretation of section 2713(a)(4) of the PHS Act to permit HRSA to establish exemptions from the Guidelines, and of the Departments' own authority as administering agencies to guide HRSA in establishing such exemptions, is also consistent with Executive Order 13535. That order, issued upon the signing of the Affordable Care Act, specified that “longstanding Federal laws to protect conscience * * * remain intact,” including laws that protect religious beliefs (and moral convictions) from certain requirements in the health care context. While the text of Executive Order 13535 does not require the expanded exemptions issued in these interim final rules, the expanded exemptions are, as explained below, consistent with longstanding Federal laws to protect religious beliefs regarding certain health matters, and are consistent with the intent that the Affordable Care Act would be implemented in accordance with the protections set forth in those laws.
On July 19, 2010, the Departments issued interim final rules implementing section 2713 of the PHS Act (75 FR 41726). Those interim final rules charged HRSA with developing the Guidelines authorized by section 2713(a)(4) of the PHS.
In developing the Guidelines, HRSA relied on an independent report from the Institute of Medicine (IOM, now known as the National Academy of Medicine) on women's preventive services, issued on July 19, 2011, “Clinical Preventive Services for Women, Closing the Gaps” (IOM 2011). The IOM's report was funded by the HHS Office of the Assistant Secretary for Planning and Evaluation (ASPE), pursuant to a funding opportunity that charged the IOM to conduct a review of effective preventive services to ensure women's health and well-being.
The IOM made a number of recommendations with respect to women's preventive services. As relevant here, the IOM recommended that the Guidelines cover the full range of Food and Drug Administration (FDA)-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity. Because FDA includes in the category of “contraceptives” certain drugs and devices that may not only prevent conception (fertilization), but may also prevent implantation of an embryo,
One of the 16 members of the IOM committee, Dr. Anthony LoSasso, a Professor at the University of Illinois at Chicago School of Public Health, wrote a formal dissenting opinion. He argued that the IOM committee did not have sufficient time to evaluate fully the evidence on whether the use of preventive services beyond those encompassed by the United States Preventive Services Task Force (USPSTF), HRSA's Bright Futures Project, and the Advisory Committee on Immunization Practices (ACIP) leads to lower rates of disability or disease and increased rates of well-being. He further argued that “the recommendations were made without high quality, systematic evidence of the preventive nature of the services considered,” and that “the committee process for evaluation of the evidence lacked transparency and was largely subject to the preferences of the committee's composition. Troublingly, the process tended to result in a mix of objective and subjective determinations filtered through a lens of advocacy.” Dr. LoSasso also raised concerns that the committee did not have time to develop a framework for determining whether coverage of any given preventive service leads to a reduction in healthcare expenditure.
On August 1, 2011, HRSA released onto its Web site its Guidelines for women's preventive services, adopting the recommendations of the IOM
In administering this Mandate, on August 1, 2011, the Departments promulgated interim final rules amending our 2010 interim final rules (76 FR 46621) (2011 interim final rules). The 2011 interim final rules specify that HRSA has the authority to establish exemptions from the contraceptive coverage requirement for certain group health plans established or maintained by certain religious employers and for health insurance coverage provided in connection with such plans.
Final regulations issued on February 10, 2012, adopted the definition of “religious employer” in the 2011 interim final rules without modification (2012 final regulations).
Contemporaneous with the issuance of the 2012 final regulations, HHS—with the agreement of the Department of Labor (DOL) and the Department of the Treasury—issued guidance establishing a temporary safe harbor from enforcement of the contraceptive coverage requirement by the Departments with respect to group health plans established or maintained by certain nonprofit organizations with religious objections to contraceptive coverage (and the group health insurance coverage provided in connection with such plans).
On March 21, 2012, the Departments published an advance notice of proposed rulemaking (ANPRM) that described possible approaches to achieve those goals with respect to religious nonprofit organizations, and solicited public comments on the same. (77 FR 16501). Following review of the comments on the ANPRM, the Departments published proposed regulations on February 6, 2013 (2013 NPRM) (78 FR 8456).
The 2013 NPRM proposed to expand the definition of “religious employer” for purposes of the religious employer
The 2013 NPRM also proposed to create a compliance process, which it called an accommodation, for group health plans established, maintained, or arranged by certain eligible religious nonprofit organizations that fell outside the houses of worship and integrated auxiliaries covered by section 6033(a)(3)(A)(i) or (iii) of the Code (and, thus, outside of the religious employer exemption). The 2013 NPRM proposed to define such eligible organizations as nonprofit entities that hold themselves out as religious, oppose providing coverage for certain contraceptive items on account of religious objections, and maintain a certification to this effect in their records. The 2013 NPRM stated, without citing a supporting source, that employees of eligible organizations “may be less likely than” employees of exempt houses of worship and integrated auxiliaries to share their employer's faith and opposition to contraception on religious grounds. (78 FR 8461). The 2013 NPRM therefore proposed that, in the case of an insured group health plan established or maintained by an eligible organization, the health insurance issuer providing group health insurance coverage in connection with the plan would provide contraceptive coverage to plan participants and beneficiaries without cost sharing, premium, fee, or other charge to plan participants or beneficiaries enrolled in the eligible organization's plan—and without any cost to the eligible organization.
On August 15, 2012, the Departments also extended our temporary safe harbor until the first plan year beginning on or after August 1, 2013.
The Departments published final regulations on July 2, 2013 (July 2013 final regulations) (78 FR 39869). The July 2013 final regulations finalized the expansion of the exemption for houses of worship and their integrated auxiliaries. Although some commenters had suggested that the exemption be further expanded, the Departments declined to adopt that approach. The July 2013 regulations stated that, because employees of objecting houses of worship and integrated auxiliaries are relatively likely to oppose contraception, exempting those organizations “does not undermine the governmental interests furthered by the contraceptive coverage requirement.” (78 FR 39874). But, like the 2013 NPRM, the July 2013 regulations assumed that “[h]ouses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection” to contraceptives (
The July 2013 regulations also finalized an accommodation for eligible organizations. Under the accommodation, an eligible organization was required to submit a self-certification to its group health insurance issuer or third party administrator, as applicable. Upon receiving that self-certification, the issuer or third party administrator would provide or arrange for payments for the contraceptive services to the plan participants and beneficiaries enrolled in the eligible organization's plan, without requiring any cost sharing on the part of plan participants and beneficiaries and without cost to the eligible organization. With respect to self-insured plans, the third party administrators (or issuers they contracted with) could receive reimbursements by reducing user fee payments (to Federally facilitated Exchanges) by the amounts paid out for contraceptive services under the accommodation, plus an allowance for certain administrative costs, as long as the Secretary of the Department of Health and Human Services requests and an authorizing exception under OMB Circular No. A-25R is in effect.
With respect to self-insured group health plans, the July 2013 final regulations specified that the self-certification was an instrument under which the plan was operated and that it obligated the third party administrator to provide or arrange for contraceptive coverage by operation of section 3(16) of ERISA. The regulations stated that, by submitting the self-certification form, the eligible organization “complies” with the contraceptive coverage requirement and does not have to contract, arrange, pay, or refer for contraceptive coverage. See, for example, Id. at 39874, 39896. Consistent with these statements, the Departments, through the Department of Labor, issued a self-certification form, EBSA Form 700. The form stated, in indented text labeled as a “Notice to Third Party Administrators of Self-Insured Health Plans,” that “[t]he obligations of the third party administrator are set forth in 26 CFR 54.9815-2713A, 29 CFR 2510.3-16, and 29 CFR 2590.715-2713A” and concluded, in unindented text, that “[t]his form is an instrument under which the plan is operated.”
The Departments extended the temporary safe harbor again on June 20, 2013, to encompass plan years beginning on or after August 1, 2013, and before January 1, 2014. The guidance extending the safe harbor included a form to be used by an organization during this temporary period to self-certify that its plan qualified for the temporary safe harbor if no prior form had been submitted.
During the period when the Departments were publishing and modifying our regulations, organizations and individuals filed dozens of lawsuits challenging the Mandate. Plaintiffs included religious nonprofit organizations, businesses run by religious families, individuals, and others. Religious plaintiffs principally argued that the Mandate violated the Religious Freedom Restoration Act of 1993 (RFRA) by forcing them to provide coverage or payments for sterilization and contraceptive services, including what they viewed as early abortifacient items, contrary to their religious beliefs. Based on this claim, in July 2012 a
A circuit split swiftly developed in cases filed by religiously motivated for-profit businesses, to which neither the religious employer exemption nor the eligible organization accommodation (as then promulgated) applied. Several for-profit businesses won rulings against the Mandate before the Unites States Court of Appeals for the Tenth Circuit, sitting en banc, while similar rulings against the Departments were issued by the Seventh and District of Columbia (DC) Circuits.
On June 30, 2014, the Supreme Court ruled against the Departments and held that, under RFRA, the Mandate could not be applied to the closely held for-profit corporations before the Court because their owners had religious objections to providing such coverage.
Meanwhile, another plaintiff obtained temporary relief from the Supreme Court in a case challenging the accommodation under RFRA. Wheaton College, a Christian liberal arts college in Illinois, objected that the accommodation was a compliance process that rendered it complicit in delivering payments for abortifacient contraceptive services to its employees. Wheaton College refused to execute the EBSA Form 700 required under the July 2013 final regulations. It was denied a preliminary injunction in the Federal district and appellate courts, and sought an emergency injunction pending appeal from the Unites States Supreme Court on June 30, 2014. On July 3, 2014, the Supreme Court issued an interim order in favor of the College, stating that, “[i]f the [plaintiff] informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the [Departments of Labor, Health and Human Services, and the Treasury] are enjoined from enforcing [the Mandate] against the [plaintiff] . . . pending final disposition of appellate review.”
In response to this litigation, on August 27, 2014, the Departments simultaneously issued a third set of interim final rules (August 2014 interim final rules) (79 FR 51092), and a notice of proposed rulemaking (August 2014 proposed rules) (79 FR 51118). The August 2014 interim final rules changed the accommodation process so that it could be initiated either by self-certification using EBSA Form 700 or through a notice informing the Secretary of the Department of Health and Human Services that an eligible organization had religious objections to coverage of all or a subset of contraceptive services. (79 FR 51092). In response to
In October 2014, based on an interpretation of the Supreme Court's interim order, HHS deemed Wheaton College as having submitted a sufficient notice to HHS. HHS conveyed that interpretation to the DOL, so as to trigger the accommodation process.
On July 14, 2015, the Departments finalized both the August 2014 interim final rules and the August 2014 proposed rules in a set of final regulations (the July 2015 final regulations) (80 FR 41318). (The July 2015 final regulations also encompassed issues related to other preventive services coverage.) The preamble to the July 2015 final regulations stated that, through the accommodation, payments
When an eligible organization maintains an insured group health plan or student health plan and provides the alternative notice, the July 2015 final regulations provide that HHS will inform the health insurance issuer of its obligations to cover contraceptive services to which the eligible organization objects. Where an eligible organization maintains a self-insured plan under ERISA and provides the alternative notice, the regulations provide that DOL will work with HHS to send a separate notification to the self-insured plan's third party administrator(s). The regulations further provide that such notification is an instrument under which the plan is operated for the purposes of section 3(16) of ERISA, and the instrument would designate the third party administrator as the entity obligated to provide or arrange for payments for contraceptives to which the eligible organization objects. The July 2015 final regulations continue to apply the amended notice requirement to eligible organizations that sponsor church plans exempt from ERISA pursuant to section 4(b)(2) of ERISA, but acknowledge that, with respect to the operation of the accommodation process, section 3(16) of ERISA does not provide a mechanism to impose an obligation to provide contraceptive coverage as a plan administrator on those eligible organizations' third party administrators. (80 FR 41323).
Meanwhile, a second split among Federal appeals courts had developed involving challenges to the Mandate's accommodation. Many religious nonprofit organizations argued that the accommodation impermissibly burdened their religious beliefs because it utilized the plans the organizations themselves sponsored to provide services to which they objected on religious grounds. They objected to the self-certification requirement on the same basis. Federal district courts split in the cases, granting preliminary injunction motions to religious groups in the majority of cases, but denying them to others. In most appellate cases, religious nonprofit organizations lost their challenges, where the courts often concluded that the accommodation imposed no substantial burden on their religious exercise under RFRA. For example,
On November 6, 2015, the U.S. Supreme Court granted certiorari in seven similar cases under the title of a filing from the Third Circuit,
On May 16, 2016, the Supreme Court issued a per curiam opinion in
After remand, as indicated by the Departments in court filings, some meetings were held between attorneys for the Government and for the plaintiffs in those cases. Separately, at various times after the Supreme Court's remand order, HHS and DOL sent letters to the issuers and third party administrators of certain plaintiffs in
On December 20, 2016, HRSA updated the Guidelines via its Web site,
On January 9, 2017, the Departments issued a document entitled, “FAQs About Affordable Care Act Implementation Part 36” (FAQ).
A separate category of unresolved litigation involved religious employees as plaintiffs. For example, in two cases, the plaintiff-employees work for a nonprofit organization that agrees with the employees (on moral grounds) in opposing coverage of certain contraceptives they believe to be abortifacient, and that is willing to offer them insurance coverage that omits such services. See
On May 4, 2017, the President issued an “Executive Order Promoting Free Speech and Religious Liberty.” Regarding “Conscience Protections with Respect to Preventive-Care Mandate,” that order instructs “[t]he Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services [to] consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under section 300gg-13(a)(4) of title 42, United States Code.”
RFRA provides that the Government “shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. 2000bb-1(a) and (b). In
Despite multiple rounds of rulemaking, however, the Departments have not assuaged the sincere religious objections to contraceptive coverage of numerous organizations, nor have we resolved the pending litigation. To the contrary, the Departments have been litigating RFRA challenges to the Mandate and related regulations for more than 5 years, and dozens of those challenges remain pending today. That litigation, and the related modifications to the accommodation, have consumed substantial governmental resources while creating uncertainty for objecting organizations, issuers, third party administrators, employees, and beneficiaries. Consistent with the President's Executive Order and the Government's desire to resolve the pending litigation and prevent future litigation from similar plaintiffs, the Departments have concluded that it is appropriate to reexamine the exemption and accommodation scheme currently in place for the Mandate.
These interim final rules (and the companion interim final rules published elsewhere in this
In addition to relying on the text of section 2713(a)(4) of the PHS Act and the Departments' discretion to promulgate rules to carry out the provisions of the PHS Act, the Departments also draw on Congress' decision in the Affordable Care Act neither to specify that contraception must be covered nor to require inflexible across-the-board application of section 2713 of the PHS Act. The Departments further consider Congress' extensive history of protecting religious objections when certain matters in health care are specifically regulated—often specifically with respect to contraception, sterilization, abortion, and activities connected to abortion.
Notable among the many statutes (listed in footnote 1 in Section I-Background) that include protections for religious beliefs are, not only the Church Amendments, but also protections for health plans or health care organizations in Medicaid or Medicare Advantage to object “on moral or religious grounds” to providing coverage of certain counseling or referral services. (42 U.S.C. 1395w-22(j)(3)(B); 42 U.S.C. 1396u-2(b)(3)). In addition, Congress has protected individuals who object to prescribing or providing contraceptives contrary to their religious beliefs. Consolidated Appropriations Act of 2017, Division C, Title VII, Sec. 726(c) (Financial Services and General Government Appropriations Act), Public Law 115-31 (May 5, 2017). Congress likewise provided that, if the District of Columbia requires “the provision of contraceptive coverage by health insurance plans,” “it is the intent of Congress that any legislation enacted on such issue should include a `conscience clause' which provides exceptions for
The Departments' authority to guide HRSA's discretion in determining the scope of any contraceptive coverage requirement under section 2713(a)(4) of the PHS Act includes the authority to provide exemptions and independently justifies this rulemaking. The Departments have also determined that requiring certain objecting entities or individuals to choose between the Mandate, the accommodation, or penalties for noncompliance violates their rights under RFRA.
The Departments believe that agencies charged with administering a statute or associated regulations or guidance that imposes a substantial burden on the exercise of religion under RFRA have discretion in determining how to avoid the imposition of such burden. The Departments have previously contended that the Mandate does not impose a substantial burden on entities and individuals. With respect to the coverage Mandate itself, apart from the accommodation, and as applied to entities with religious objections, our argument was rejected in
The Departments have reevaluated our position on this question, however, in light of all the arguments made in various cases, public comments that have been submitted, and the concerns discussed throughout these rules. We have concluded that requiring certain objecting entities or individuals to choose between the Mandate, the accommodation, or penalties for noncompliance imposes a substantial burden on religious exercise under RFRA. We believe that the Court's analysis in
Our reconsideration of these issues has also led us to conclude, consistent with the rulings in favor of religious employee plaintiffs in
Consistent with our conclusion earlier this year after the remand of cases in
Although the Departments previously took the position that the application of the Mandate to certain objecting employers was necessary to serve a compelling governmental interest, the Departments have now concluded, after reassessing the relevant interests and for the reasons stated below, that it does not. Under such circumstances, the Departments are required by law to alleviate the substantial burden created by the Mandate. Here, informed by the Departments' reassessment of the relevant interests, as well as by our desire to bring to a close the more than 5 years of litigation over RFRA challenges to the Mandate, the Departments have determined that the appropriate administrative response is to create a broader exemption, rather than simply adjusting the accommodation process.
RFRA requires the Government to respect religious beliefs under “the most demanding test known to constitutional law”: Where the Government imposes a substantial burden on religious exercise, it must demonstrate a compelling governmental interest and show that the law or requirement is the least restrictive means of furthering that interest.
Upon further examination of the relevant provisions of the Affordable Care Act and the administrative record on which the Mandate was based, the Departments have concluded that the application of the Mandate to entities with sincerely held religious objections to it does not serve a compelling governmental interest. The Departments have reached that conclusion for multiple reasons, no one of which is dispositive.
First, Congress did not mandate that contraception be covered at all under the Affordable Care Act. Instead, Congress merely provided for coverage
Second, while Congress specified that many health insurance requirements added by the Affordable Care Act—including provisions adjacent to section 2713 of the PHS Act—were so important that they needed to be applied to all health plans immediately, the preventive services requirement in section 2713 of the PHS Act was not made applicable to “grandfathered plans.” That feature of the Affordable Care Act is significant: As cited above, seven years after the Affordable Care Act's enactment, approximately 25.5 million people are estimated to be enrolled in grandfathered plans not subject to section 2713 of the PHS Act. We do not suggest that a requirement that is inapplicable to grandfathered plans or otherwise subject to exceptions could never qualify as a serving a compelling interest under RFRA. For example, “[e]ven a compelling interest may be outweighed in some circumstances by another even weightier consideration.”
Third, various entities that brought legal challenges to the Mandate (including some of the largest employers) have been willing to provide coverage of some, though not all, contraceptives. For example, the plaintiffs in
Fourth, the case for a compelling interest is undermined by the existing accommodation process, and how it applies to certain similarly situated entities based on whether or not they participate in certain self-insured group health plans, known as church plans, under applicable law. The Departments previously exempted eligible organizations from the contraceptive coverage requirement, and created an accommodation under which those organizations bore no obligation to provide for such coverage after submitting a self-certification or notice. Where a non-exempt religious organization uses an insured group health plan instead of a self-insured church plan, the health insurance issuer would be obliged to provide contraceptive coverage or payments to the plan's participants under the accommodation. Even in a self-insured church plan context, the preventive services requirement in section 2713(a)(4) of the PHS Act applies to the plan, and through the Code, to the religious organization that sponsors the plan. But under the accommodation, once a self-insured church plan files a self-certification or notice, the accommodation relieves it of any further obligation with respect to contraceptive services coverage. Having done so, the accommodation process would normally transfer the obligation to provide or arrange for contraceptive coverage to a self-insured plan's third party administrator (TPA). But the Departments lack authority to compel church plan TPAs to provide contraceptive coverage or levy fines against those TPAs for failing to provide it. This is because church plans are exempt from ERISA pursuant to section 4(b)(2) of ERISA. Section 2761(a) of the PHS Act provides that States may enforce the provisions of title XXVII of the PHS Act as they pertain to issuers, but not as they pertain to church plans that do not provide coverage through a policy issued by a health insurance issuer. The combined result of PHS Act section 2713's authority to remove contraceptive coverage obligations from self-insured church plans, and HHS's and DOL's lack of authority under the PHS Act or ERISA to require TPAs to become administrators of those plans to provide such coverage, has led to significant incongruity in the requirement to provide contraceptive coverage among nonprofit organizations with religious objections to the coverage.
More specifically, issuers and third party administrators for some, but not all, religious nonprofit organizations are subject to enforcement for failure to provide contraceptive coverage under the accommodation, depending on whether they participate in a self-insured church plan. Notably, many of those nonprofit organizations are not houses of worship or integrated auxiliaries. Under section 3(33)(C)(iv) of ERISA, many organizations in self-insured church plans need not be churches, but can merely “share[] common religious bonds and convictions with [a] church or convention or association of churches”. The effect is that many similar religious organizations are being treated very differently with respect to their employees receiving contraceptive coverage—depending on whether the organization is part of a church plan—even though the Departments claimed a compelling interest to deny exemptions to all such organizations. In this context, the fact that the Mandate and the Departments' application thereof “leaves appreciable damage to [their] supposedly vital interest unprohibited” is strong evidence that the Mandate “cannot be regarded as protecting an interest `of the highest order.' ”
Fifth, the Departments' previous assertion that the exemption for houses of worship was offered to respect a certain sphere of church autonomy (80 FR 41325) does not adequately explain some of the disparate results of the existing rules. And the desire to respect church autonomy is not grounds to prevent the Departments from expanding the exemption to other religious entities. The Departments previously treated religious organizations that operate in a similar fashion very differently for the purposes of the Mandate. For example, the Departments exempted houses of worship and integrated auxiliaries that may conduct activities, such as the
As the Supreme Court recently confirmed, a self-insured church plan exempt from ERISA through ERISA 3(33) can include a plan that is not actually established or maintained by a church or by a convention or association of churches, but is maintained by “an organization . . . the principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement benefits or welfare benefits, or both, for the employees of a church or a convention or association of churches, if such organization is controlled by or associated with a church or a convention or association of churches” (a so-called “principal-purpose organization”). See
After considering the differential treatment of various religious nonprofit organizations under the previous accommodation, the Departments conclude that it is appropriate to expand the exemption to other religious nonprofit organizations with sincerely held religious beliefs opposed to contraceptive coverage. We also conclude that it is not appropriate to limit the scope of a religious exemption by relying upon a small minority of State laws that contain narrow exemptions that focus on houses of worship and integrated auxiliaries. (76 FR 46623.)
Sixth, the Government's interest in ensuring contraceptive coverage for employees of particular objecting employers is undermined by the characteristics of many of those employers, especially nonprofit employers. The plaintiffs challenging the existing accommodation include, among other organizations, religious colleges and universities, and religious orders that provide health care or other charitable services. Based in part on our experience litigating against such organizations, the Departments now disagree with our previous assertion that “[h]ouses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection.”
Given the sincerely held religious beliefs of many religious organizations, imposing the contraceptive-coverage requirement on those that object based on such beliefs might undermine the Government's broader interests in ensuring health coverage by causing the entities to stop providing health coverage. For example, because the Affordable Care Act does not require
Seventh, we now believe the administrative record on which the Mandate rests is insufficient to meet the high threshold to establish a compelling governmental interest in ensuring that women covered by plans of objecting organizations receive cost-free contraceptive coverage through those plans. To begin, in support of the IOM's recommendations, which HRSA adopted, the IOM identified several studies showing a preventive services gap because women require more preventive care than men. (IOM 2011 at 19-21). Those studies did not identify contraceptives or sterilization as composing a specific portion of that gap, and the IOM did not consider or establish in the report whether any cost associated with that gap remains after all other women's preventive services are covered without cost-sharing.
Moreover, there are multiple Federal, State, and local programs that provide free or subsidized contraceptives for low-income women. Such Federal programs include, among others, Medicaid (with a 90 percent Federal match for family planning services), Title X, community health center grants, and Temporary Assistance for Needy Families. According to the Guttmacher Institute, government-subsidized family planning services are provided at 8,409 health centers overall.
The record also does not reflect that the Mandate is tailored to the women most likely to experience unintended pregnancy, identified by the 2011 IOM report as “women who are aged 18 to 24 years and unmarried, who have a low income, who are not high school graduates, and who are members of a racial or ethnic minority”. (IOM 2011 at 102). For example, with respect to religiously objecting organizations, the Mandate applies in employer-based group health plans and student insurance at private colleges and universities. It is not clear that applying the Mandate among those objecting entities is a narrowly tailored way to benefit the most at-risk population. The entities appear to encompass some such women, but also appear to omit many of them and to include a significantly larger cross-section of women as employees or plan participants. At the same time, the Mandate as applied to objecting employers appears to encompass a relatively small percentage of the number of women impacted by the Mandate overall, since most employers do not appear to have conscientious objections to the Mandate.
The rates of—and reasons for—unintended pregnancy are notoriously difficult to measure.
Similarly, in a study involving over 8,000 women between 2012 and 2015, conducted to determine whether contraceptive coverage under the Mandate changed contraceptive use patterns, the Guttmacher Institute concluded that “[w]e observed no changes in contraceptive use patterns among sexually active women.”
Contraception's association with positive health effects might also be partially offset by an association with negative health effects. In 2013 the National Institutes of Health indicated, in funding opportunity announcement for the development of new clinically useful female contraceptive products, that “hormonal contraceptives have the disadvantage of having many undesirable side effects[,] are associated with adverse events, and obese women are at higher risk for serious complications such as deep venous thrombosis.”
In addition, in relation to several studies cited above, imposing a coverage Mandate on objecting entities whose plans cover many enrollee families who may share objections to contraception could, among some populations, affect risky sexual behavior in a negative way. For example, it may not be a narrowly tailored way to advance the Government interests identified here to mandate contraceptive access to teenagers and young adults who are not already sexually active and at significant risk of unintended pregnancy.
Finally, evidence from studies that post-date the Mandate is not inconsistent with the observations the Departments make here. In 2016, HRSA awarded a 5-year cooperative agreement to the American College of Obstetricians and Gynecologists to develop recommendations for updated Women's Preventive Services Guidelines. The awardee formed an expert panel called the Women's Preventive Services Initiative that issued a report (the WPSI report).
As discussed above and based on the Departments' knowledge of litigation challenging the Mandate, during the time ASPE estimated the scope of preventive services coverage (2011-2013), houses of worship and integrated auxiliaries were exempt from the Mandate, other objecting religious nonprofit organizations were protected by the temporary safe harbor, and hundreds of accommodated self-insured church plan entities were not subject to enforcement of the Mandate through their third party administrators. In addition, dozens of for-profit entities that had filed lawsuits challenging the Mandate were protected by court orders pending the Supreme Court's resolution of
The WPSI report also identifies the at-risk population as young, low-income, and/or minority women: “[u]nintended pregnancies disproportionately occur in women age 18 to 24 years, especially among those with low incomes or from racial/ethnic minorities.”
The Departments need not take a position on these empirical questions. Our review is sufficient to lead us to conclude that significantly more uncertainty and ambiguity exists in the record than the Departments previously acknowledged when we declined to extend the exemption to certain objecting organizations and individuals as set forth herein, and that no compelling interest exists to counsel against us extending the exemption.
During public comment periods, some commenters noted that some drugs included in the preventive services contraceptive Mandate can also be useful for treating certain existing health conditions. The IOM similarly stated that “the non-contraceptive benefits of hormonal contraception include treatment of menstrual disorders, acne or hirsutism, and pelvic pain.” IOM 2011 at 107. Consequently, some commenters suggested that religious objections to the Mandate should not be permitted in cases where such methods are used to treat such conditions, even if those methods can also be used for contraceptive purposes. Section 2713(a)(4) of the PHS Act does not, however, apply to non-preventive care provided solely for treatment of an existing condition. It applies only to “such additional preventive care and screenings . . . as provided for” by HRSA (Section 2713(a)(4) of the PHS Act). HRSA's Guidelines implementing this section state repeatedly that they apply to “preventive” services or care, and with respect to the coverage of contraception specifically, they declare that the methods covered are “contraceptive” methods as a “Type of Preventive Service,” and that they are to be covered only “[a]s prescribed” by a physician or other health care provider.
An additional consideration supporting the Departments' present view is that alternative approaches can further the interests the Departments previously identified behind the Mandate. As noted above, the Government already engages in dozens of programs that subsidize contraception for the low-income women identified by the IOM as the most at risk for unintended pregnancy. The Departments have also acknowledged in legal briefing that contraception access can be provided through means other than coverage offered by religious objectors, for example, through “a family member's employer,” “an Exchange,” or “another government program.”
Many employer plan sponsors, institutions of education arranging student health coverage, and individuals enrolled in plans where their employers or issuers (as applicable) are willing to offer them a religiously acceptable plan, hold sincerely held religious beliefs against (respectively) providing, arranging, or participating in plans that comply with the Mandate either by providing contraceptive coverage or by using the accommodation. Because we have concluded that requiring such compliance through the Mandate or accommodation has constituted a substantial burden on the religious exercise of many such entities or individuals, and because we conclude requiring such compliance did not serve a compelling interest and was not the least restrictive means of serving a compelling interest, we now believe that requiring such compliance led to the violation of RFRA in many instances. We recognize that this is a change of position on this issue, and we make that change based on all the matters discussed in this preamble.
Even if RFRA does not compel the religious exemptions provided in these interim final rules, the Departments believe they are the most appropriate administrative response to the religious objections that have been raised. RFRA identifies certain circumstance under which government must accommodate religious exercise-when a government action imposes a substantial burden on the religious exercise of an adherent and imposition of that burden is not the least restrictive means of achieving a compelling government interest. RFRA does not, however, prescribe the accommodation that the government must adopt. Rather, agencies have discretion to fashion an appropriate and administrable response to respect religious liberty interests implicated by their own regulations. We know from
Now, however, the Departments have reassessed the relevant interests and determined that, even if exemptions are not required by RFRA, they would exercise their discretion to address the substantial burden identified in
For all of these reasons, and as further explained below, the Departments now believe it is appropriate to modify the scope of the discretion afforded to HRSA in the July 2015 final regulations to direct HRSA to provide the expanded exemptions and change the accommodation to an optional process if HRSA continues to otherwise provide for contraceptive coverage in the Guidelines. As set forth below, the expanded exemption encompasses non-governmental plan sponsors that object based on sincerely held religious beliefs, and institutions of higher education in their arrangement of student health plans. The accommodation is also maintained as an optional process for exempt employers, and will provide contraceptive availability for persons covered by the plans of entities that use it (a legitimate program purpose).
The Departments believe this approach is sufficiently respectful of religious objections while still allowing the Government to advance other interests. Even with the expanded exemption, HRSA maintains the discretion to require contraceptive coverage for nearly all entities to which the Mandate previously applied (since most plan sponsors do not appear to possess the requisite religious objections), and to reconsider those interests in the future where no covered objection exists. Other Government subsidies of contraception are likewise not affected by this rule.
As noted above, some individuals have brought suit objecting to being covered under an insurance policy that includes coverage for contraceptives. See, for example,
Although the Departments previously took the position that allowing individual religious exemptions would undermine the workability of the insurance system, the Departments now agree with those district courts that have concluded that an exemption that allows—but does not require—issuers and employers to omit contraceptives from coverage provided to objecting individuals does not undermine any compelling interest. See
The Departments note that the exemptions created here, like the exemptions created by the last Administration, do not burden third parties to a degree that counsels against providing the exemptions. Congress did not create a right to receive contraceptive coverage, and Congress explicitly chose not to impose the section 2713 of the PHS Act requirements on grandfathered plans that cover millions of people. Individuals who are unable to obtain contraceptive coverage through their employer-sponsored health plans because of the exemptions created in these interim final rules, or because of other exemptions to the Mandate, have other avenues for obtaining contraception, including the various governmental programs discussed above. As the Government is under no constitutional obligation to fund contraception,
That conclusion is consistent with the Supreme Court's observation that RFRA may require exemptions even from laws requiring claimants “to confer benefits on third parties.”
The Departments are issuing these interim final rules in light of the full history of relevant rulemaking (including prior interim final rules), public comments, and litigation throughout the Federal court system. The interim final rules seek to resolve this matter and the long-running litigation with respect to religious
The Departments acknowledge that the foregoing analysis represents a change from the policies and interpretations we previously adopted with respect to the Mandate and the governmental interests that underlie the Mandate. These changes in policy are within the Departments' authority. As the Supreme Court has acknowledged, “[a]gencies are free to change their existing policies as long as they provide a reasoned explanation for the change.”
Here, for all of the reasons discussed above, the Departments have determined that the Government's interest in the application of contraceptive coverage requirements in this specific context to the plans of certain entities and individuals does not outweigh the sincerely held religious objections of those entities and individuals based on the analyses set forth above. Thus, these interim final rules amend the Departments' July 2015 final regulations to expand the exemption to include additional entities and persons that object based on sincerely held religious beliefs. These rules leave in place HRSA's discretion to continue to require contraceptive and sterilization coverage where no such objection exists, and to the extent that section 2713 of the PHS Act applies. These interim final rules also maintain the existence of an accommodation process, but consistent with our expansion of the exemption, we make the process optional for eligible organizations. HRSA is simultaneously updating its Guidelines to reflect the requirements of these interim final rules.
These interim final rules modify the restatements of the requirements of section 2713(a) and (a)(4) of the PHS Act, contained in 26 CFR 54.9815-2713(a)(1) introductory text and (a)(1)(iv), 29 CFR 2590.715-2713(a)(1) introductory text and (a)(1)(iv), and 45 CFR 147.130(a)(1) introductory text and (a)(1)(iv), so that they conform to the statutory text of section 2713 of the PHS Act.
These interim final rules move the religious exemption from 45 CFR 147.131 to a new § 147.132 and expand it as follows. In the prefatory language of § 147.132, these interim final rules specify that not only are certain entities “exempt,” but the Guidelines shall not support or provide for an imposition of the contraceptive coverage requirement to such entities. This is an acknowledgement that section 2713(a)(4) of the PHS Act requires women's preventive services coverage only “as provided for in comprehensive guidelines supported by the Health Resources and Services Administration.” To the extent the HRSA Guidelines do not provide for or support the application of such coverage to exempt entities, the Affordable Care Act does not require the coverage. Section 147.132 not only describes the exemption of certain entities and plans, but does so by specifying that the HRSA Guidelines do not provide for, or support the application of, such coverage to exempt entities and plans.
In the new 45 CFR 147.132 as created by these interim final rules, these rules expand the exemption that was previously located in § 147.131(a). With respect to employers that sponsor group health plans, the new language of § 147.132(a)(1) introductory text and (a)(1)(i) provides exemptions for employers that object to coverage of all or a subset of contraceptives or sterilization and related patient education and counseling based on sincerely held religious beliefs.
For avoidance of doubt, the Departments wish to make clear that the expanded exemption created in § 147.132(a) applies to several distinct entities involved in the provision of coverage to the objecting employer's employees. This explanation is consistent with how prior rules have worked by means of similar language. Section 147.132(a)(1) introductory text and (a)(1)(i), by specifying that “[a] group health plan and health insurance coverage provided in connection with a group health plan” is exempt “to the extent the plan sponsor objects as specified in paragraph (a)(2),” exempt the group health plans the sponsors of which object, and exempt their health insurance issuers from providing the coverage in those plans (whether or not the issuers have their own objections). Consequently, with respect to Guidelines issued under § 147.130(a)(1)(iv), or the parallel provisions in 26 CFR 54.9815-2713(a)(1)(iv) and 29 CFR 2590.715-2713(a)(1)(iv), the plan sponsor, issuer, and plan covered in the exemption of that paragraph would face no penalty as a result of omitting contraceptive coverage from the benefits of the plan participants and beneficiaries.
Consistent with the restated exemption, exempt entities will not be required to comply with a self-certification process. Although exempt entities do not need to file notices or certifications of their exemption, and these interim final rules do not impose any new notice requirements on them, existing ERISA rules governing group health plans require that, with respect to plans subject to ERISA, a plan document must include a comprehensive summary of the benefits covered by the plan and a statement of the conditions for eligibility to receive benefits. Under ERISA, the plan document provides what benefits are provided to participants and beneficiaries under the plan and, therefore, if an objecting employer would like to exclude all or a subset of contraceptive services, it must ensure that the exclusion is clear in the plan document. Moreover, if there is a reduction in a covered service or benefit, the plan has to disclose that change to plan participants.
The exemptions in § 147.132(a) apply “to the extent” of the objecting entities' sincerely held religious beliefs. Thus, entities that hold a requisite objection to covering some, but not all, contraceptive items would be exempt with respect to the items to which they object, but not with respect to the items to which they do not object. Likewise, the requisite objection of a plan sponsor or institution of higher education in § 147.132(a)(1)(i) and (ii) exempts its group health plan, health insurance coverage offered by a health insurance issuer in connection with such plan, and its issuer in its offering of such coverage, but that exemption does not extend to coverage provided by that issuer to other group health plans where the plan sponsor has no qualifying objection. The objection of a health insurance issuer in § 147.132(a)(1)(iii) similarly operates only to the extent of its objection, and as otherwise limited as described below.
The scope of the exemption is expanded for non-governmental plan sponsors and certain entities that arrange health coverage under these interim final rules. The Departments have consistently taken the position that section 2713(a)(4) of the PHS Act grants HRSA authority to issue Guidelines that provide for and support exemptions from a contraceptive coverage requirement. Since the beginning of rulemaking concerning the Mandate, HRSA and the Departments have repeatedly exercised their discretion to create and modify various exemptions within the Guidelines.
The Departments believe the approach of these interim final rules better aligns our implementation of section 2713(a)(4) of the PHS Act with Congress' intent in the Affordable Care Act and throughout other Federal health care laws. As discussed above, many Federal health care laws and regulations provide exemptions for objections based on religious beliefs, and RFRA applies to the Affordable Care Act. Expanding the exemption removes religious obstacles that entities and certain individuals may face when they otherwise wish to participate in the health care market. This advances the Affordable Care Acts goal of expanding health coverage among entities and individuals that might otherwise be reluctant to participate. These rules also leave in place many Federal programs that subsidize contraceptives for women who are most at risk of unintended pregnancy and who may have more limited access to contraceptives.
The Departments further conclude that it would be inadequate to merely attempt to amend the accommodation process instead of expand the exemption. The Departments have stated in our regulations and court briefings that the existing accommodation with respect to self-insured plans requires contraceptive coverage as part of the same plan as the coverage provided by the employer, and operates in a way “seamless” to those plans. As a result, in significant respects, the accommodation process does not actually accommodate the objections of many entities. The Departments have engaged in an effort to attempt to identify an accommodation that would eliminate the plaintiffs' religious objections, including seeking public comment through an RFI, but we stated in January 2017 that we were unable to develop such an approach at that time.
The expanded exemptions in these interim final rules cover any kind of non-governmental employer plan sponsor with the requisite objections but, for the sake of clarity, they include an illustrative, non-exhaustive list of employers whose objections qualify the plans they sponsor for an exemption.
Under these interim final rules, the Departments do not limit the Guidelines exemption with reference to nonprofit status or to sections 6033(a)(3)(A)(i) or (iii) of the Code, as previous rules have done. A significant majority of States either impose no contraceptive coverage requirement or offer broader exemptions than the exemption contained in the July 2015 final regulations.
Despite not limiting the exemption to certain organizations referred to in section 6033(a)(3)(A)(i) or (iii) of the Code, the exemption in these rules includes such organizations. Section 147.132(a)(1)(i)(A) specifies, as under the prior exemption, that the exemption covers “a group health plan established or maintained by . . . [a] church, the integrated auxiliary of a church, a convention or association of churches, or a religious order.” In the preamble to rules setting forth the prior exemption at § 147.132(a), the Departments interpreted this same language used in those rules by declaring that “[t]he final regulations continue to provide that the availability of the exemption or accommodation be determined on an employer by employer basis, which the Departments continue to believe best balances the interests of religious employers and eligible organizations and those of employees and their dependents.” (78 FR 39886). Therefore, under the prior exemption, if an employer participated in a house of worship's plan—perhaps because it was affiliated with a house of worship—but was not an integrated auxiliary or a house of worship itself, that employer was not considered to be covered by the
Under these interim final rules, however, the Departments intend that, when this regulation text exempts a plan “established or maintained by” a house of worship or integrated auxiliary, such exemption will no longer “be determined on an employer by employer basis,” but will be determined on a plan basis—that is, by whether the plan is a “plan established or maintained by” a house of worship or integrated auxiliary. This interpretation better conforms to the text of the regulation setting forth the exemption—in both the prior regulation and in the text set forth in these interim final rules. It also offers appropriate respect to houses of worship and their integrated auxiliaries not only in their internal employment practices but in their choice of organizational form and/or in their activity of establishing or maintaining health plans for employees of associated employers that do not meet the threshold of being integrated auxiliaries. Moreover, under this interpretation, houses of worship would not be faced with the potential prospect of services to which they have a religious objection being covered for employees of an associated employer participating in a plan they have established and maintain.
The Departments do not believe there is a sufficient factual basis to exclude from this part of the exemption entities that are so closely associated with a house of worship or integrated auxiliary that they are permitted participation in its health plan, but are not themselves integrated auxiliaries. Additionally, this interpretation is not inconsistent with the operation of the accommodation under the prior rule, to the extent that, in practice and as discussed elsewhere herein, it does not force contraceptive coverage to be provided on behalf of the plan participants of many religious organizations in a self-insured church plan exempt from ERISA—which are exempt in part because the plans are established and maintained by a church. (Section 3(33)(A) of ERISA) In several lawsuits challenging the Mandate, the Departments took the position that some plans established and maintained by houses of worship, but that included entities that were not integrated auxiliaries, were church plans under section 3(33) of ERISA and, thus, the Government “has no authority to require the plaintiffs' TPAs to provide contraceptive coverage at this time.”
Section 147.132(a)(1)(i)(B) of the rules specifies that the exemption includes the plans of plan sponsors that are nonprofit organizations.
Under § 147.132(a)(1)(i)(C), the rules extend the exemption to the plans of closely held for-profit entities. This is consistent with the Supreme Court's ruling in
Under § 147.132(a)(1)(i)(D), the rules extend the exemption to the plans of for-profit entities that are not closely held. The July 2015 final regulations extended the accommodation to for-profit entities only if they are closely held, by positively defining what constitutes a closely held entity. The Departments implicitly recognized the difficulty of providing an affirmative definition of closely held entities in the July 2015 final regulations when we adopted a definition that included entities that are merely “substantially similar” to certain specified parameters, and we allowed entities that were not sure if they met the definition to inquire with HHS; HHS was permitted to decline to answer the inquiry, at which time the entity would be deemed to qualify as an eligible organization. The exemptions in these interim final rules do not need to address this difficulty because they include both for-profit entities that are closely held and for-profit entities that are not closely held.
In including entities in the exemption that are not closely held, these interim final rules provide for the possibility that some publicly traded entities may use the exemption. Even though the Supreme Court did not extend its holding in
Under § 147.132(a)(1)(i)(E), the rules extend the exemption to the plans of any other non-governmental employer. The plans of governmental employers are not covered by the plan sponsor exemption of § 147.132(a)(1)(i). The Departments are not aware of reasons why it would be appropriate or necessary to offer religious exemptions to governmental employer plan sponsors in the United States with respect to the contraceptive Mandate. But, as discussed below, governmental employers are permitted to respect an individual's objection under § 147.132(b) and thus to provide health insurance coverage without the objected-to contraceptive coverage to such individual. Where that exemption is operative, the Guidelines may not be construed to prevent a willing governmental plan sponsor of a group health plan from offering a separate benefit package option, or a separate policy, certificate or contract of insurance, to any individual who objects to coverage or payments for some or all contraceptive services based on sincerely held religious beliefs.
By the general extension of the exemption to the plans of plan sponsors in § 147.132(a)(1)(i), these interim final rules also exempt group health plans sponsored by an entity other than an employer (for example, a union) that objects based on sincerely held religious beliefs to coverage of contraceptives or sterilization.
As in the previous rules, the plans of institutions of higher education that arrange student health insurance coverage will continue to be treated similarly to the way in which the plans of employers are treated, but for the purposes of such plans being exempt or electing the optional accommodation, rather than merely being eligible for the accommodation as in the previous rule. These interim final rules specify, in § 147.132(a)(1)(ii), that the exemption is extended, in the case of institutions of higher education (as defined in 20 U.S.C. 1002), to their arrangement of student health insurance coverage, in a manner comparable to the applicability of the exemption for group health insurance coverage provided in connection with a group health plan established or maintained by a plan sponsor. As mentioned above, because the Affordable Care Act does not require institutions of higher education to arrange student coverage, some institutions of higher education that object to the Mandate appear to have chosen to stop arranging student plans rather than comply with the Mandate or use the accommodation. Extending the exemption in these interim final rules may remove an obstacle to such entities deciding to offer student plans, thereby giving students another health insurance option.
These interim final rules extend the exemption, in § 147.132(a)(1)(iii), to health insurance issuers offering group or individual health insurance coverage that sincerely hold their own religious objections to providing coverage for contraceptive services.
The Departments are not currently aware of health insurance issuers that possess their own religious objections to offering contraceptive coverage. Nevertheless, many Federal health care conscience laws and regulations protect issuers or plans specifically. For example, 42 U.S.C. 1395w-22(j)(3)(B) and 1396u-2(b)(3) protect plans or managed care organizations in Medicaid or Medicare Advantage. The Weldon Amendment protects HMOs, health insurance plans, and any other health care organizations are protected from being required to provide coverage or pay for abortions. See, for example, Consolidated Appropriations Act of 2017, Public Law 115-31, Div. H, Title V, Sec. 507(d). Congress also declared this year that “it is the intent of Congress” to include a “conscience clause” which provides exceptions for religious beliefs if the District of Columbia requires “the provision of contraceptive coverage by health insurance plans.” See
As discussed above, where the exemption for plan sponsors or institutions of higher education applies, issuers are exempt under those sections with respect to providing coverage in those plans. The issuer exemption in § 147.132(a)(1)(iii) adds to that protection, but the additional protection operates in a different way than the plan sponsor exemption operates. As set forth in these interim final rules, the only plan sponsors, or in the case of individual insurance coverage, individuals, who are eligible to purchase or enroll in health insurance coverage offered by an exempt issuer that does not cover some or all contraceptive services are plan sponsors or individuals who themselves object and are otherwise exempt based on their objection. Thus, the issuer exemption specifies that where a health insurance issuer providing group health insurance coverage is exempt under paragraph (a)(1)(iii), the plan remains subject to any requirement to provide coverage for contraceptive services under Guidelines issued under 42 CFR 147.130(a)(1)(iv) unless the plan is otherwise exempt from that requirement. Accordingly, the only plan sponsors, or in the case of individual insurance coverage, individuals, who are eligible to purchase or enroll in health insurance coverage offered by an issuer that is exempt under this paragraph (a)(1)(iii) that does not include coverage for some or all contraceptive services are plan sponsors or individuals who themselves object and are exempt. Issuers that hold religious objections should identify to plan sponsors the lack of contraceptive coverage in any health insurance coverage being offered that is based on the issuer's exemption, and communicate the group health plan's independent obligation to provide contraceptive coverage, unless the group health plan itself is exempt under regulations governing the Mandate.
In this way, the issuer exemption serves to protect objecting issuers both from being asked or required to issue policies that cover contraception in violation of the issuers' sincerely held religious beliefs, and from being asked or required to issue policies that omit contraceptive coverage to non-exempt entities or individuals, thus subjecting the issuers to potential liability if those plans are not exempt from the Guidelines. At the same time, the issuer exemption will not serve to remove contraceptive coverage obligations from any plan or plan sponsor that is not also exempt, nor will it prevent other issuers from being required to provide contraceptive coverage in individual insurance coverage. Permitting issuers to object to offering contraceptive coverage based on sincerely held religious beliefs will allow issuers to
The issuer exemption does not specifically include third party administrators, although the optional accommodation process provided under these interim final rules specifies that third party administrators cannot be required to contract with an entity that invokes that process. Some religious third party administrators have brought suit in conjunction with suits brought by organizations enrolled in ERISA-exempt church plans. Such plans are now exempt under these interim final rules, and their third party administrators, as claims processors, are under no obligation under section 2713(a)(4) of the PHS Act to provide benefits for contraceptive services, as that section applies only to plans and issuers. In the case of ERISA-covered plans, plan administrators are obligated under ERISA to follow the plan terms, but it is the Departments' understanding that third party administrators are not typically designated as plan administrators under section 3(16) of ERISA and, therefore, would not normally act as plan administrators under section 3(16) of ERISA. Therefore, to the Departments' knowledge, it is only under the existing accommodation process that third party administrators are required to undertake any obligations to provide or arrange for contraceptive coverage to which they might object. These interim final rules make the accommodation process optional for employers and other plan sponsors, and specify that third party administrators that have their own objection to complying with the accommodation process may decline to enter into, or continue, contracts as third party administrators of such plans. For these reasons, these interim final rules do not otherwise exempt third party administrators. The Departments solicit public comment, however, on whether there are situations where there may be an additional need to provide distinct protections for third party administrators that may have religious beliefs implicated by the Mandate.
Exemptions for objecting entities specify that they apply where the entities object as specified in § 147.132(a)(2). That paragraph specifies that exemptions for objecting entities will apply to the extent that an entity described in § 147.132(a)(1) objects to its establishing, maintaining, providing, offering, or arranging (as applicable) coverage, payments, or a plan that provides coverage or payments for some or all contraceptive services, based on its sincerely held religious beliefs.
These interim final rules include a special rule pertaining to individuals (referred to here as the “individual exemption”). Section 147.132(b) provides that nothing in § 147.130(a)(1)(iv), 26 CFR 54.9815-2713(a) (1)(iv), or 29 CFR 2590.715-2713(a)(1)(iv), may be construed to prevent a willing plan sponsor of a group health plan or a willing health insurance issuer offering group or individual health insurance coverage, from offering a separate benefit package option, or a separate policy, certificate, or contract of insurance, to any individual who objects to coverage or payments for some or all contraceptive services based on the individual's sincerely held religious beliefs. The individual exemption extends to the coverage unit in which the plan participant, or subscriber in the individual market, is enrolled (for instance, to family coverage covering the participant and his or her beneficiaries enrolled under the plan), but does not relieve the plan's or issuer's obligation to comply with the Mandate with respect to the group health plan at large or, as applicable, to any other individual policies the issuer offers.
This individual exemption allows plan sponsors and issuers that do not specifically object to contraceptive coverage to offer religiously acceptable coverage to their participants or subscribers who do object, while offering coverage that includes contraception to participants or subscribers who do not object. This individual exemption can apply with respect to individuals in plans sponsored by private employers or governmental employers. For example, in one case brought against the Departments, the State of Missouri enacted a law under which the State is not permitted to discriminate against insurance issuers that offer health plans without coverage for contraception based on employees' religious beliefs, or against the individual employees who accept such offers. See
This “individual exemption” cannot be used to force a plan (or its sponsor) or an issuer to provide coverage omitting contraception, or, with respect to health insurance coverage, to prevent the application of State law that requires coverage of such contraceptives or sterilization. Nor can the individual exemption be construed to require the guaranteed availability of coverage omitting contraception to a plan sponsor or individual who does not have a sincerely held religious objection. This individual exemption is limited to the requirement to provide contraceptive coverage under section 2713(a)(4) of the PHS Act, and does not affect any other Federal or State law governing the plan or coverage. Thus, if there are other applicable laws or plan terms governing the benefits, these interim final rules do not affect such other laws or terms.
The Departments believe the individual exemption will help to meet the Affordable Care Act's goal of increasing health coverage because it will reduce the incidence of certain individuals choosing to forego health coverage because the only coverage available would violate their sincerely held religious beliefs.
Despite expanding the scope of the exemption, these rules also keep the accommodation process, but revise it so as to make it optional. In this way, objecting employers are no longer required to choose between direct compliance or compliance through the accommodation. These rules maintain the location of the accommodation process in the Code of Federal Regulations at 45 CFR 147.131, 26 CFR 54.9815-2713A, and 29 CFR 2590.715-2713A. These rules, by virtue of expanding the plan sponsor exemption beyond houses of worship and integrated auxiliaries that were
The fees adjustment process for qualifying health issuers or third party administrators pursuant to 45 CFR 156.50 is not modified, and (as specified therein) requires for its applicability that an exception under OMB Circular No. A-25R be in effect as the Secretary of the Department of Health and Human Services requests.
If an eligible organization wishes to revoke its use of the accommodation, it can do so under these interim final rules and operate under its exempt status. As part of its revocation, the issuer or third party administrator of the eligible organization must provide participants and beneficiaries written notice of such revocation as specified in guidance issued by the Secretary of the Department of Health and Human Services. This revocation process applies both prospectively to eligible organizations who decide at a later date to avail themselves of the optional accommodation and then decide to revoke that accommodation, as well as to organizations that were included in the accommodation prior to the effective date of these interim final rules either by their submission of an EBSA Form 700 or notification, or by some other means under which their third party administrator or issuer was notified by DOL or HHS that the accommodation applies. Consistent with other applicable laws, the issuer or third party administrator of an eligible organization must promptly notify plan participants and beneficiaries of the change of status to the extent such participants and beneficiaries are currently being offered contraceptive coverage at the time the accommodated organization invokes its exemption. If contraceptive coverage is being offered by an issuer or third party administrator through the accommodation process, the revocation will be effective on the 1st day of the 1st plan year that begins on or after 30 days after the date of the revocation (to allow for the provision of notice to plan participants in cases where contraceptive benefits will no longer be provided). Alternatively, an eligible organization may give 60-days notice pursuant to section 2715(d)(4) of the PHS Act,
The Departments have eliminated the provision in the previous accommodation under which an issuer is deemed to have complied with the Mandate where the issuer relied reasonably and in good faith on a representation by an eligible organization as to its eligibility for the accommodation, even if that representation was later determined to be incorrect. Because any organization with a sincerely held religious objection to contraceptive coverage is now eligible for the optional accommodation under these interim final rules and is also exempt, the Departments believe there is minimal opportunity for mistake or misrepresentation by the organization, and the reliance provision is no longer necessary.
The interim final rules specify that when the rules refer to “contraceptive” services, benefits, or coverage, such terms include contraceptive or sterilization items, services, or related patient education or counseling, to the extent specified for purposes of § 147.130(a)(1)(iv). This was the case under the previous rules, as expressed in the preamble text of the various iterations of the regulations, but the Departments wish to make the scope clear by specifying it in the regulatory text.
The Departments believe that the Guidelines and the exemptions expanded herein will advance the limited purposes for which Congress imposed section 2713 of the PHS Act, while acting consistently with Congress' well-established record of allowing for religious exemptions with respect to especially sensitive health care and health insurance requirements. These interim final rules leave fully in place over a dozen Federal programs that provide, or subsidize, contraceptives for women, including for low income women based on financial need. These interim final rules also maintain HRSA's discretion to decide whether to continue to require contraceptive coverage under the Guidelines (in plans where Congress applied section 2713 of the PHS Act) if no objection exists. The Departments believe this array of programs and requirements better serves the interest of providing contraceptive coverage while protecting the conscience rights of entities that have sincerely held religious objections to some or all contraceptive or sterilization services.
The Departments request and encourage public comments on all matters addressed in these interim final rules.
Section 9833 of the Code, section 734 of ERISA, and section 2792 of the PHS Act authorize the Secretaries of the Treasury, Labor, and HHS (collectively, the Secretaries) to promulgate any interim final rules that they determine are appropriate to carry out the provisions of chapter 100 of the Code, part 7 of subtitle B of title I of ERISA, and part A of title XXVII of the PHS Act, which include sections 2701 through 2728 of the PHS Act and the incorporation of those sections into section 715 of ERISA and section 9815 of the Code. These interim final rules fall under those statutory authorized justifications, as did previous rules on this matter (75 FR 41726; 76 FR 46621; 79 FR 51092).
Section 553(b) of the Administrative Procedure Act (APA) requires notice and comment rulemaking, involving a notice of proposed rulemaking and a comment period prior to finalization of regulatory requirements—except when an agency, for good cause, finds that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest. These provisions of the APA do not apply here because of the specific authority granted to the Secretaries by section 9833 of the Code, section 734 of ERISA, and section 2792 of the PHS Act.
Even if these provisions of the APA applied, they would be satisfied: The Departments have determined that it would be impracticable and contrary to the public interest to delay putting these provisions in place until a full public notice-and-comment process is completed. As discussed earlier, the Departments have issued three interim final rules implementing this section of the PHS Act because of the immediate needs of covered entities and the weighty matters implicated by the HRSA Guidelines. As recently as December 20, 2016, HRSA updated
Dozens of lawsuits over the Mandate have been pending for nearly 5 years. The Supreme Court remanded several of those cases more than a year ago, stating that on remand “[w]e anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them”.
As discussed above, the Departments have concluded that, in many instances, requiring certain objecting entities or individuals to choose between the Mandate, the accommodation, or penalties for noncomplaince has violated RFRA. Good cause exists to issue the expanded exemption in these interim final rules in order to cure such violations (whether among litigants or among similarly situated parties that have not litigated), to help settle or resolve cases, and to ensure, moving forward, that our regulations are consistent with any approach we have taken in resolving certain litigation matters.
The Departments have also been subject to temporary injunctions protecting many religious nonprofit organizations from being subject to the accommodation process against their wishes, while many other organizations are fully exempt, have permanent court orders blocking the contraceptive coverage requirement, or are not subject to section 2713 of the PHS Act and its enforcement due to Congress' limited application of that requirement. Good cause exists to change the Departments' previous rules to direct HRSA to bring its Guidelines in accord with the legal realities and remove the threat of a future violation of religious beliefs, including where such violations are contrary to Federal law.
Other objecting entities similarly have not had the protection of court injunctions. This includes some nonprofit entities that have sued the Departments, but it also includes some organizations that do not have lawsuits pending against us. For example, many of the closely held for-profit companies that brought the array of lawsuits challenging the Mandate leading up to the decision in
These interim final rules provide a specific policy resolution that courts have been waiting to receive from the Departments for more than a year. If the Departments were to publish a notice of proposed rulemaking instead of these interim final rules, many more months could pass before the current Mandate is lifted from the entities receiving the expanded exemption, during which time those entities would be deprived of the relief clearly set forth in these interim final rules. In response to several of the previous rules on this issue—including three issued as interim final rules under the statutory authority cited above—the Departments received more than 100,000 public comments on multiple occasions. Those comments included extensive discussion about whether and by what extent to expand the exemption. Most recently, on July 26, 2016, the Departments issued a request for information (81 FR 47741) and received over 54,000 public comments about different possible ways to resolve these issues. In connection with past regulations, the Departments have offered or expanded a temporary safe harbor allowing organizations that were not exempt from the HRSA Guidelines to operate out of compliance with the Guidelines. The Departments will fully consider comments submitted in response to these interim final rules, but believe that good cause exists to issue the rules on an interim final basis before the comments are submitted and reviewed.
As the United States Court of Appeals for the D.C. Circuit stated with respect to an earlier interim final rule promulgated with respect to this issue in
Delaying the availability of the expanded exemption would delay the ability of those organizations and individuals to avail themselves of the relief afforded by these interim final rules. Good cause is supported by
Delaying the availability of the expanded exemption would also increase the costs of health insurance. As reflected in litigation pertaining to the Mandate, some entities are in grandfathered health plans that do not cover contraception. They wish to make changes to their health plans that will reduce the costs of insurance coverage for their beneficiaries or policyholders, but which would cause the plans to lose grandfathered status. They are refraining from making those changes—and therefore are continuing to incur and pass on higher insurance costs—to prevent the Mandate from applying to their plans in violation of their consciences. Issuing these rules on an interim final basis is necessary in order to help reduce the costs of health insurance for such entities and their plan participants.
These interim final rules also set forth an optional accommodation process, and expand eligibility for that process to a broader category of entities. Delaying the availability of the optional accommodation process would delay the ability of organizations that do not now qualify for the accommodation, but wish to opt into it, to be able to do so and therefore to provide a mechanism for contraceptive coverage to be provided to their employees while the organization's religious objections are accommodated.
For the foregoing reasons, the Departments have determined that it would be impracticable and contrary to the public interest to engage in full notice and comment rulemaking before putting these interim final rules into effect, and that it is in the public interest to promulgate interim final rules. For the same reasons, the Departments have determined, consistent with section 553(d) of the APA (5 U.S.C. 553(d)), that there is good cause to make these interim final rules effective immediately upon filing at the Office of the Federal Register.
We have examined the impacts of the interim final rules 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 Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999), the Congressional Review Act (5 U.S.C. 804(2) and Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs (January 30, 2017).
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, and 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.
Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a regulation: (1) Having an annual effect on the economy of $100 million or more in any one 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 must be prepared for major rules with economically significant effects ($100 million or more in any one year), and an “economically significant” regulatory action is subject to review by the Office of Management and Budget (OMB). As discussed below regarding anticipated effects of these rules and the Paperwork Reduction Act, these interim final rules are not likely to have economic impacts of $100 million or more in any 1 year, and therefore do not meet the definition of “economically significant” under Executive Order 12866. However, OMB has determined that the actions are significant within the meaning of section 3(f)(4) of the Executive Order. Therefore, OMB has reviewed these final regulations, and the Departments have provided the following assessment of their impact.
These interim final rules amend the Departments' July 2015 final regulations to expand the exemption from the requirement to provide coverage for contraceptives and sterilization, established under the HRSA Guidelines, promulgated under section 2713(a)(4) of the PHS Act, section 715(a)(1) of the ERISA, and section 9815(a)(1) of the Code, and to revise the accommodation process to make it optional for eligible organizations. The expanded exemption would apply to individuals and entities that have religious objections to some (or all) of the contraceptive and/or sterilization services that would be covered under the Guidelines. Such action is taken, among other reasons, to provide for participation in the health insurance market by certain entities or individuals free from penalties for violating sincerely held religious beliefs opposed to providing or receiving coverage of contraceptive services, and to resolve many of the lawsuits that have been filed against the Departments.
The Departments assess this interim final rule together with a companion interim final rule concerning moral but non-religious conscientious objections to contraception, published elsewhere in this
To the extent that entities choose to revoke their accommodated status to make use of the expanded exemption immediately, a notice will need to be sent to enrollees (either by the entity or by the issuer or third party administrator) that their contraceptive coverage is changing, and guidance will reflect that such a notice requirement is imposed no more than is already required by preexisting rules that require notices to be sent to enrollees of changes to coverage during a plan year. If the entities wait until the start of their next plan year to change to exempt status, instead of doing so during a plan year, those entities generally will also be able to avoid sending any supplementary notices in addition to what they would otherwise normally send prior to the start of a new plan year. Additionally, these interim final rules provide such entities with an offsetting regulatory benefit by the exemption itself and its relief of burdens on their religious beliefs. As discussed below, assuming that more than half of entities that have been using the previous accommodation will seek immediate revocation of their accommodated status and notices will be sent to all their enrollees, the total estimated cost of sending those notices will be $51,990.
The Departments estimate that these interim final rules will not result in any additional burdens or costs on issuers or third party administrators. As discussed below, the Departments believe that 109 of the 209 entities making use of the accommodation process will instead make use of their newly exempt status. In contrast, the Departments expect that a much smaller number (which we assume to be 9) will make use of the accommodation that were not provided access to it previously. Reduced burdens for issuers and third party administrators due to reductions in use of the accommodation will more than offset increased obligations on issuers and third party administrators serving the fewer number of entities that will newly opt into the accommodation. This will lead to a net decrease in burdens and costs on issuers and third party administrators, who will no longer have continuing obligations imposed on them by the accommodation.
These interim final rules will result in some persons covered in plans of newly exempt entities not receiving coverage or payments for contraceptive services. The Departments do not have sufficient data to determine the actual effect of these rules on plan participants and beneficiaries, including for costs they may incur for contraceptive coverage, nor of unintended pregnancies that may occur. As discussed above and for reasons explained here, there are multiple levels of uncertainty involved in measuring the effect of the expanded exemption, including but not limited to—
• How many entities will make use of their newly exempt status.
• how many entities will opt into the accommodation maintained by these rules, under which their plan participants will continue receiving contraceptive coverage.
• which contraceptive methods some newly exempt entities will continue to provide without cost-sharing despite the entity objecting to other methods (for example, as reflected in
• how many women will be covered by plans of entities using their newly exempt status.
• which of the women covered by those plans want and would have used contraceptive coverage or payments for contraceptive methods that are no longer covered by such plans.
• whether, given the broad availability of contraceptives and their relatively low cost, such women will obtain and use contraception even if it is not covered.
• the degree to which such women are in the category of women identified by IOM as most at risk of unintended pregnancy.
• the degree to which unintended pregnancies may result among those women, which would be attributable as an effect of these rules only if the women did not otherwise use contraception or a particular contraceptive method due to their plan making use of its newly exempt status.
• the degree to which such unintended pregnancies may be associated with negative health effects, or whether such effects may be offset by other factors, such as the fact that those women will be otherwise enrolled in insurance coverage.
• the extent to which such women will qualify for alternative sources of contraceptive access, such as through a parent's or spouse's plan, or through one of the many governmental programs that subsidize contraceptive coverage to supplement their access.
The Departments have access to sources of information discussed in the following paragraphs that are relevant to this issue, but those sources do not provide a full picture of the impact of these interim final rules.
First, the prior rules already exempted certain houses of worship and their integrated auxiliaries. Further, as discussed above, the prior accommodation process allows hundreds of additional religious nonprofit organizations in self-insured church plans that are exempt from ERISA to file a self-certification or notice that relieves not only themselves but, in effect, their third party administrators of any obligation to provide contraceptive coverage or payments. Although in the latter case, third party administrators are legally permitted to provide the coverage, several self-insured church plans themselves have expressed an objection in litigation to allowing such contraceptive coverage to be provided, and according to information received during litigation, it appears that such contraceptive coverage has not been provided. In addition, a significant portion of the lawsuits challenging the Mandate were brought by a single firm representing Catholic dioceses and related entities covered by their diocese-sponsored plans. In that litigation, the Departments took the position that, where those diocese-sponsored plans are self-insured, those plans are likely church plans exempt from ERISA.
It is possible that an even greater number of litigating or accommodated plans might have made use of self-insured church plan status under the previous accommodation. Notably, one of the largest nonprofit employers that had filed suit challenging the Mandate had, under these prior rules, shifted most of their employees into self-insured church plans, and the Departments have taken the position that various other employers that filed suit were eligible to assume self-insured church plan status.
Second, when the Departments previously created the exemption, expanded its application, and provided an accommodation (which, as mentioned, can lift obligations on self-insured church plans for hundreds of nonprofit organizations), we concluded that no significant burden or costs would result at all. (76 FR 46625; 78 FR 39889.) We reached this conclusion despite the impact, just described, whereby the previous rule apparently lead to women not receiving contraceptive coverage through hundreds of nonprofit entities using self-insured church plans. We also reached this conclusion without counting any significant burden or cost to some women covered in the plans of houses of worship or integrated auxiliaries that might want contraceptive coverage. This conclusion was based in part on the assertion, set forth in previous regulations, that employees of houses of worship and integrated auxiliaries likely share their employers' opposition to contraception. Many other religious nonprofit entities, however, both adopt and implement religious principles with similar fervency. For the reasons discussed above, the Departments no longer believe we can distinguish many of the women covered in the plans of religious nonprofit entities from the women covered in the plans of houses of worship and integrated auxiliaries regarding which the Departments assumed share their employers' objection to contraception, nor from women covered in the plans of religious entities using self-insured church plans regarding which we chose not to calculate any anticipated effect even though we conceded we were not requiring their third party administrators to provide contraceptive coverage. In the estimates and assumptions below, we include the potential effect of these interim rules on women covered by such entities, in order to capture all of the anticipated effects of these rules.
Third, these interim final rules extend the exemption to for-profit entities. Among the for-profit employers that filed suit challenging the Mandate, the one with the most employees was
Fourth, the Departments have a limited amount of information about entities that have made use of the accommodation process as set forth in the previous rules. HHS previously estimated that 209 entities would make use of the accommodation process. That estimate was based on HHS's observation in its August 2014 interim final rules and July 2015 final regulations that there were 122 eligible entities that had filed litigation challenging the accommodation process, and 87 closely held for-profit entities that had filed suit challenging the Mandate in general. (79 FR 51096; 80 FR 41336). The Departments acknowledged that entities that had not litigated might make use of the accommodation, but we stated we did not have better data to estimate how many might use the accommodation overall.
After issuing those rules, the Departments have not received complete data on the number of entities actually using the accommodation, because the accommodation does not require many accommodated entities to submit information to us. Our limited records indicate that approximately 63 entities have affirmatively submitted notices to HHS to use the accommodation. This includes some fully insured and some self-insured plans, but it does not include entities that may have used the accommodation by submitting an EBSA form 700 self-certification directly to their issuer or third party administrator. We have deemed some other entities as being subject to the accommodation through their litigation filings, but that might not have led to contraceptive coverage being
These sets of data are not inconsistent with our previous estimate that 209 entities would use the accommodation, but they indicate that some non-litigating entities used the accommodation, and some litigating entities did not, possibly amounting to a similar number. For this reason, and because we do not have more complete data available, we believe the previous estimate of 209 accommodated entities is still the best estimate available for how many entities have used the accommodation under the previous rule. This assumes that the number of litigating entities that did not use the accommodation is approximately the same as the number of non-litigating entities that did use it.
In considering how many entities will use the voluntary accommodation moving forward—and how many will use the expanded exemption—we also do not have specific data. We expect the 122 nonprofit entities that specifically challenged the accommodation in court to use the expanded exemption. But, as noted above, we believe a significant number of them are not presently participating in the accommodation, and that some nonprofit entities in self-insured church plans are not providing contraceptive coverage through their third party administrators even if they are using the accommodation. Among the 87 for-profit entities that filed suit challenging the Mandate in general, few if any filed suit challenging the accommodation. We do not know how many of those entities are using the accommodation, how many may be complying with the Mandate fully, how many may be relying on court injunctions to do neither, or how many will use the expanded exemption moving forward. Among entities that never litigated but used the accommodation, we expect many but not all of them to continue using the accommodation, and we do not have data to estimate how many such entities there are or how many will choose either option.
Overall, therefore, without sufficient data to estimate what the estimated 209 previously accommodated entities will do under these interim final rules, we assume that just over half of them will use the expanded exemption, and just under half will continue their accommodated status under the voluntary process set forth in these rules. Specifically, we assume that 109 previously accommodated entities will make use of their exempt status, and 100 will continue using the accommodation. This estimate is based in part on our view that most litigating nonprofit entities would prefer the exemption to the accommodation, but that many of either have not been using the accommodation or, if they have been using it, it is not providing contraceptive coverage for women in their plans where they participate in self-insured church plans. This estimate is also consistent with our lack of knowledge of how many for-profit entities were using the accommodation and will choose the exemption or the accommodation, given that many of them did not bring legal challenges against the accommodation after
In addition to these factors, we recognize that the expanded exemption and accommodation are newly available to religious for-profit entities that are not closely held and some other plan sponsors. As explained above, the Departments believe religious for-profit entities that are not closely held may exist, or may wish to come into being. HHS does not anticipate that there will be significant number of such entities, and among those, we believe that very few if any will use the accommodation. All of the for-profit entities that have challenged the Mandate have been religious closely held entities.
It is also possible that religious nonprofit or closely held for-profit entities that were already eligible for the accommodation but did not previously use it will opt into it moving forward, but because they could have done so under the previous rules, their opting into the accommodation is not caused by these rules.
Without any data to estimate how many of any entities newly eligible for and interested in using the accommodation might exist, HHS assumes for the purposes of estimating the anticipated effect of these rules that less than 10 entities (9) will do so. Therefore, we estimate that 109 entities will use the voluntary accommodation moving forward, 100 of which were already using the previous accommodation, and that 109 entities that have been using the previous accommodation will use the expanded exemption instead.
Fifth, in attempting to estimate the anticipated effect of these interim final rules on women receiving contraceptive coverage, the Departments have limited information about the entities that have filed suit challenging the Mandate. Approximately 209 entities have brought suit challenging the Mandate over more than 5 years. They have included a broad range of nonprofit entities and closely held for-profit entities. We discuss a number of potentially relevant points:
First, the Departments do not believe that out-of-pocket litigation costs have been a significant barrier to entities choosing to file suit. Based on the Departments' knowledge of these cases through public sources and litigation, nearly all the entities were represented pro bono and were subject to little or no discovery during the cases, and multiple public interest law firms publicly provided legal services for entities willing to challenge the Mandate.
Second, prior to the Affordable Care Act, the vast majority of entities already covered contraception, albeit not always without cost-sharing The Departments do not have data to indicate why entities that did not cover contraception prior to the Affordable Care Act chose not to cover it. As noted above, however, the Departments have maintained that compliance with the contraceptive Mandate is cost-neutral to issuers, which indicates that no significant financial incentive exists to omit contraceptive coverage. As indicated by the report by HHS ASPE discussed above, we have assumed that millions of women received preventive services after the Mandate went into effect because nearly all entities complied with the Guidelines. We are not aware of expressions from most of those entities indicating that they would have sincerely held religious objections to complying with the Mandate, and therefore that they would make use of the expanded exemption provided here.
Third, omitting contraceptive coverage has subjected some entities to serious public criticism and in some cases organized boycotts or opposition campaigns that have been reported in various media and online outlets regarding entities that have filed suit. The Departments expect that even if some entities might not receive such criticism, many entities will be reluctant to use the expanded exemption unless they are committed to their views to a significant degree.
Overall, the Departments do not know how many entities will use the expanded exemption. We expect that some non-litigating entities will use it, but given the aforementioned considerations, we believe it might not be very many more. Moreover, many litigating entities are already exempt or are not providing contraceptive coverage to women in their plans due to their participating in self-insured church plans, so the effect of the expanded exemption among litigating entities is significantly lower than it would be if all the women in their plans were already receiving the coverage.
To calculate the anticipated effects of this rule on contraceptive coverage among women covered by plans provided by litigating entities, we start by examining court documents and other public sources.
Among litigating entities that were neither exempt nor likely using self-insured church plans, our best estimate based on court documents and public sources is that such entities employed approximately 65,000 persons, male and female.
We also estimate that for the educational institutions objecting to the Mandate as applied to student coverage that they arranged, where the entities were neither exempt under the prior rule nor were their student plans self-insured, such student plans likely covered approximately 3,300 students. On average, we expect that approximately half of those students (1,650) are female. For the purposes of this estimate, we also assume that female policyholders covered by plans arranged by institutions of higher education are women of childbearing age. We expect that they would have less than the average number of dependents per policyholder than exists in standard plans, but for the purposes of providing an upper bound to this estimate, we assume that they would have an average of one dependent per policyholder, thus bringing the number of policyholders and dependents back up to 3,300. Many of those dependents are likely not to be women of childbearing age, but in order to provide an upper bound to this estimate, we assume they are. Therefore, for the purposes of this estimate, we assume that the effect of these expanded exemptions on student plans of litigating entities includes 3,300 women. Assuming that 44.3 perecent of such women use contraception covered by the Guidelines,
Together, this leads the Departments to estimate that approximately 8,700 women of childbearing age may have their contraception costs affected by plans of litigating entities using these expanded exemptions. As noted above, the Departments do not have data indicating how many of those women agree with their employers' or educational institutions' opposition to contraception (so that fewer of them than the national average might actually use contraception). Nor do we know how many would have alternative contraceptive access from a parent's or spouse's plan, or from Federal, State, or local governmental programs, nor how many of those women would fall in the category of being most at risk of unintended pregnancy, nor how many of those entities would provide some contraception in their plans while only objecting to certain contraceptives.
Sixth, in a brief filed in the
HHS's information indicates that religious nonprofit hospitals or health systems sponsored a significant minority of the accommodated self-insured plans that were using contraceptive user fees adjustments, yet those plans covered more than 80 percent of the persons covered in all plans using contraceptive user fees adjustments. Some of those plans cover nearly 100,000 persons each, and several others cover approximately 40,000 persons each. In other words, these plans were proportionately much larger than the plans provided by other entities using the contraceptive user fees adjustments.
There are two reasons to believe that a significant fraction of the persons covered by previously accommodated plans provided by religious nonprofit hospitals or health systems may not be affected by the expanded exemption. A broad range of religious hospitals or health systems have publicly indicated that they do not conscientiously oppose participating in the accommodation.
Considering all these data points and limitations, the Departments offer the following estimate of the number of women who will be impacted by the expanded exemption in these interim final rules. The Departments begin with the 8,700 women of childbearing age that use contraception who we estimate will be affected by use of the expanded exemption among litigating entities. In addition to that number, we calculate the following number of women affected by accommodated entities using the expanded exemption. As noted above, approximately 576,000 plan participants and beneficiaries were covered by self-insured plans that received contraceptive user fee adjustments in 2014. Although additional self-insured entities may have participated in the accommodation without making use of contraceptive user fees adjustments, we do not know what number of entities did so. We consider it likely that self-insured entities with relatively larger numbers of covered persons had sufficient financial incentive to make use of the contraceptive user fees adjustments. Therefore, without better data available, we assume that the number of persons covered by self-insured plans using contraceptive user fees adjustments approximates the number of persons covered by all self-insured plans using the accommodation.
An additional but unknown number of persons were likely covered in fully insured plans using the accommodation. The Departments do not have data on how many fully insured plans have been using the accommodation, nor on how many persons were covered by those plans. DOL estimates that, among persons covered by employer sponsored insurance, 56.1 percent are covered by self-insured plans and 43.9 percent are covered by fully insured plans.
As discussed below, and recognizing the limited data available for our estimates, the Departments estimate that 100 of the 209 entities that were using the accommodation under the prior rule
Applying these percentages to the total number of 1,027,000 persons we estimate are covered in accommodated plans, we estimate that approximately 257,000 persons previously covered in accommodated plans will be covered in the 109 plans that use the expanded exemption, and 770,000 persons will be covered in the estimated 100 plans that continue to use the accommodation. According to the Census data cited above, 20.2 percent of these persons are women of childbearing age, which amounts to approximately 51,900 women of childbearing age in previously accommodated plans that we estimate will use the expanded exemption. As noted above, approximately 44.3 percent of women of childbearing age use women's contraceptive methods covered by the Guidelines, so that we expect approximately 23,000 women that use contraception covered by the Guidelines to be affected by accommodated entities using the expanded exemption.
It is not clear the extent to which this number overlaps with the number estimated above of 8,700 women in plans of litigating entities that may be affected by these rules. Based on our limited information from the litigation and accommodation notices, we expect that the overlap is significant. Nevertheless, in order to estimate the possible effects of these rules, we assume there is no overlap between these two numbers, and therefore that these interim final rules would affect the contraceptive costs of approximately 31,700 women.
Under the assumptions just discussed, the number of women whose contraceptive costs will be impacted by the expanded exemption in these interim final rules is less than 0.1 percent of the 55.6 million women in private plans that HHS ASPE estimated
In order to estimate the cost of contraception to women affected by the expanded exemption, the Departments are aware that, under the prior accommodation process, the total user fee adjustment amount for self-insured plans for the 2015 benefit year was $33 million. These adjustments covered the cost of contraceptive coverage provided to women participants and beneficiaries in self-insured plans where the employer objected and made use of the accommodation, and where an authorizing exception under OMB Circular No. A-25R was in effect as the Secretary of the Department of Health and Human Services requests. Nine percent of that amount was attributable to administrative costs and margin, according to the provisions of 45 CFR 156.50(d)(3)(ii). Thus the amount of the adjustments attributable to the cost of contraceptive services was about $30 million. As discussed above, in 2015 that amount corresponded to 576,000 persons covered by such plans. Among those persons, as cited above, approximately 20.2 percent on average were women of childbearing age—that is, approximately 116,000 women. As noted above, approximately 44.3 percent of women of childbearing age use women's contraceptive methods covered by the Guidelines, which includes 51,400 women in those plans. Therefore, entities using contraceptive user fees adjustments received approximately $584 per year per woman of childbearing age that use contraception covered by the Guidelines and are covered in their plans.
As discussed above, the Departments estimate that the expanded exemptions will impact the contraceptive costs of approximately 31,700 women of childbearing age that use contraception covered by the Guidelines. At an average of $584 per year, the financial transfer effects attributable to the interim final rules on those women would be approximately $18.5 million.
To account for uncertainty in the estimate, we conducted a second analysis using an alternative framework, in order to thoroughly consider the possible upper bound economic impact of these interim final rules.
As noted above, the HHS ASPE report estimated that 55.6 million women aged 15 to 64 and covered by private insurance had preventive services coverage under the Affordable Care Act. Approximately 16.2 percent of those women were enrolled in plans on exchanges or were otherwise not covered by employer sponsored insurance, so only 46.6 million women aged 15 to 64 received the coverage through employer sponsored private insurance plans.
According to data tables from the Medical Expenditure Panel Survey (MEPS) of the Agency for Healthcare Research and Quality of HHS (
The Federal Government has approximately 8.2 million persons covered in its employee health plans. According to information we received from the Office of Personnel Management, this includes 2.1 million employees having 3.2 million dependents, and 1.9 million retirees (annuitants) having 1 million dependents. We do not have information about the ages of these policyholders and dependents, but for the purposes of this estimate we assume the annuitants and their dependents are aged 65 or older and the employees and their dependents are under age 65, so that the Federal Government's employee health plans cover 5.3 million persons under age 65.
Thus, overall we estimate there are 27.2 million persons under age 65 enrolled in private health insurance sponsored by government employers. Of those, 38.3 percent are women aged 15-64, that is, 10.5 million.
Prior to the implementation of the Affordable Care Act, approximately 6 percent of employer survey respondents did not offer contraceptive coverage, with 31 percent of respondents not knowing whether they offered such coverage.
It is unknown what motivated those employers to omit contraceptive coverage—whether they did so for conscientious reasons, or for other reasons. Despite our lack of information about their motives, we attempt to make a reasonable estimate of the upper bound of the number of those employers that omitted contraception before the Affordable Care Act and that would make use of these expanded exemptions based on sincerely held religious beliefs.
To begin, we estimate that publicly traded companies would not likely make use of these expanded exemptions. Even though the rule does not preclude publicly traded companies from dropping coverage based on a sincerely held religious belief, it is likely that attempts to object on religious grounds by publicly traded companies would be rare. The Departments take note of the Supreme Court's decision in
This assumption is significant because 31.3 percent of employees in the private sector work for publicly traded companies.
Moreover, these interim final rules build on existing rules that already exempt houses of worship and integrated auxiliaries and, as explained above, effectively remove obligations to provide contraceptive coverage within objecting self-insured church plans. These rules will therefore not effect transfers to women in the plans of such employers. In attempting to estimate the number of such employers, we consider the following information. Many Catholic dioceses have litigated or filed public comments opposing the Mandate, representing to the Departments and to courts around the country that official Catholic Church teaching opposes contraception. There are 17,651 Catholic parishes in the
We do not have data indicating how many of the entities that omitted coverage of contraception pre-Affordable Care Act did so on the basis of sincerely held religious beliefs that might qualify them for exempt status under these interim final rules, as opposed to having done so for other reasons. Besides the entities that filed lawsuits or submitted public comments concerning previous rules on this matter, we are not aware of entities that omitted contraception pre-Affordable Care Act and then opposed the contraceptive coverage requirement after it was imposed by the Guidelines. For the following reasons, however, we believe that a reasonable estimate is that no more than approximately one third of the persons covered by relevant entities—that is, no more than approximately 120,000 affected women—would likely be subject to potential transfer impacts under the expanded religious exemptions offered in these interim final rules. Consequently, as explained below, we believe that the potential impact of these interim final rules falls substantially below the $100 million threshold for economically significant and major rules.
First, as mentioned, we are not aware of information that would lead us to estimate that all or most entities that omitted coverage of contraception pre-Affordable Care Act did so on the basis of sincerely held conscientious objections in general or religious beliefs specifically, as opposed to having done so for other reasons. Moreover, as suggested by the Guidestone data mentioned previously, employers with conscientious objections may tend to have relatively few employees. Also, avoiding negative publicity, the difficulty of taking away a fringe benefit that employees have become accustomed to having, and avoiding the administrative cost of renegotiating insurance contracts, all provide reasons for some employers not to return to pre-Affordable Care Act lack of contraceptive coverage. Additionally, as discussed above, many employers with objections to contraception, including several of the largest litigants, only object to some contraceptives and cover as many as 14 of 18 of the contraceptive methods included in the Guidelines. This will reduce, and potentially eliminate, the contraceptive cost transfer for women covered in their plans.
In addition, not all sincerely held conscientious objections to contraceptive coverage are likely to be held by persons with religious beliefs as distinct from persons with sincerely held non-religious moral convictions, whose objections would not be encompassed by these interim final rules.
Based on our estimate of an average annual expenditure on contraceptive products and services of $584 per user,
We request comment on all aspects of the preceding regulatory impact analysis, as well as on how to attribute impacts to this interim final rule and the companion interim final rule concerning exemptions provided based on sincerely held (non-religious) moral convictions published elsewhere in this
For purposes of the Department of the Treasury, certain Internal Revenue Service (IRS) regulations, including this one, are exempt from the requirements in Executive Order 12866, as supplemented by Executive Order 13563. The Departments anticipate that there will be more entities reluctantly using the existing accommodation that will choose to operate under the newly expanded exemption, than entities that are not currently eligible to use the accommodation that will opt into it. The effect of this rule will therefore be that fewer overall adjustments are made to the Federally facilitated Exchange user fees for entities using the accommodation process, as long as the Secretary of the Department of Health and Human Services requests and an authorizing exception under OMB Circular No. A-25R is in effect, than would have occurred under the previous rule if this rule were not finalized. Therefore, a regulatory assessment is not required.
The Regulatory Flexibility Act (5 U.S.C. 601
Nevertheless, the Departments carefully considered the likely impact of the rule on small entities in connection with their assessment under Executive Order 12866. The Departments do not expect that these interim final rules will have a significant economic effect on a substantial number of small entities, because they will not result in any additional costs to affected entities, and in many cases will relieve burdens and costs from such entities. By exempting from the Mandate small businesses and nonprofit organizations with religious objections to some (or all) contraceptives and/or sterilization, the Departments have reduced regulatory burden on such small entities. Pursuant to section 7805(f) of the Code, these regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.
Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
However, we are requesting an emergency review of the information collection referenced later in this section. In compliance with the requirement of section 3506(c)(2)(A) of the PRA, we have submitted the following for emergency review to the Office of Management and Budget (OMB). We are requesting an emergency review and approval under both 5 CFR 1320.13(a)(2)(i) and (iii) of the implementing regulations of the PRA in order to implement provisions regarding self-certification or notices to HHS from eligible organizations (§ 147.131(c)(3)), notice of availability of separate payments for contraceptive services (§ 147.131(f)), and notice of revocation of accommodation (§ 147.131(c)(4)). In accordance with 5 CFR 1320.13(a)(2)(i), we believe public harm is reasonably likely to ensue if the normal clearance procedures are followed. The use of normal clearance procedures is reasonably likely to prevent or disrupt the collection of information. Similarly, in accordance with 5 CFR 1320.13(a)(2)(iii), we believe the use of normal clearance procedures is reasonably likely to cause a statutory or court ordered deadline to be missed. Many cases have been on remand for over a year from the Supreme Court, asking the Departments and the parties to resolve this matter. These interim final rules extend exemptions to entities, which involves no collection of information and which the Departments have statutory authority to do by the use of interim final rules. If the information collection involved in the amended accommodation process is not approved on an emergency basis, newly exempt entities that wish to opt into the amended accommodation process might not be able to do so until normal clearance procedures are completed.
A description of the information collection provisions implicated in these interim final rules is given in the following section with an estimate of the annual burden. Average labor costs (including 100 percent fringe benefits) used to estimate the costs are calculated using data available from the Bureau of Labor Statistics.
Each organization seeking to be treated as an eligible organization that wishes to use the optional accommodation process offered under
Notably, however, entities that are participating in the previous accommodation process, where a self-certification or notice has already been submitted, and where the entities choose to continue their accommodated status under these interim final rules, generally do not need to file a new self-certification or notice (unless they change their issuer or third party administrator). As explained above, HHS assumes that, among the 209 entities we estimated are using the previous accommodation, 109 will use the expanded exemption and 100 will continue under the voluntary accommodation. Those 100 entities will not need to file additional self-certifications or notices. HHS also assumes that an additional 9 entities that were not using the previous accommodation will opt into it. Those entities will be subject to the self-certification or notice requirement.
In order to estimate the cost for an entity that chooses to opt into the accommodation process, HHS assumes, as it did in its August 2014 interim final rules, that clerical staff for each eligible organization will gather and enter the necessary information and send the self-certification to the issuer or third party administrator as appropriate, or send the notice to HHS.
HHS estimates that each self-certification or notice to HHS will require $0.49 in postage and $0.05 in materials cost (paper and ink) and the total postage and materials cost for each self-certification or notice sent via mail will be $0.54. For purposes of this analysis, HHS assumes that 50 percent of self-certifications or notices to HHS will be mailed. The total cost for sending the self-certifications or notices to HHS by mail is approximately $2.70 for 5 entities. As DOL and HHS share jurisdiction they are splitting the cost burden so each will account for $1.35 of the cost burden.
As required by the July 2015 final regulations, a health insurance issuer or third party administrator providing or arranging separate payments for contraceptive services for participants and beneficiaries in insured or self-insured group health plans (or student enrollees and covered dependents in student health insurance coverage) of eligible organizations is required to provide a written notice to plan participants and beneficiaries (or student enrollees and covered dependents) informing them of the availability of such payments. The notice must be separate from, but contemporaneous with (to the extent possible), any application materials distributed in connection with enrollment (or re-enrollment) in group or student coverage of the eligible organization in any plan year to which the accommodation is to apply and will be provided annually. To satisfy the notice requirement, issuers and third party administrators may, but are not required to, use the model language set forth previously by HHS or substantially similar language. The burden for this ICR is currently approved under OMB control number 0938-1292.
As mentioned, HHS is anticipating that approximately 109 entities will use the optional accommodation (100 that used it previously, and 9 that will newly opt into it). It is unknown how many issuers or third party administrators provide health insurance coverage or services in connection with health plans of eligible organizations, but HHS will assume at least 109. It is estimated that each issuer or third party administrator will need approximately 1 hour of clerical labor (at $55.68 per hour)
As discussed above, the Departments estimate that 770,000 persons will be covered in the plans of the 100 entities that previously used the accommodation and will continue doing so, and that an additional 9 entities will newly opt into the accommodation. It is not known how many persons will be covered in the plans of the 9 entities newly using the accommodation. Assuming that those 9 entities will have a similar number of covered persons per entity, we estimate that all 109 accommodated entities will encompass 839,300 covered persons. We assume that sending one notice to each participant will satisfy the need to send the notices to all participants and dependents. Among persons covered by plans, approximately 50.1 percent are participants and 49.9 percent are
An eligible organization may revoke its use of the accommodation process; its issuer or third party administrator must provide written notice of such revocation to participants and beneficiaries as soon as practicable. As discussed above, HHS estimates that 109 entities that are using the accommodation process will revoke their use of the accommodation, and will therefore be required to cause the notification to be sent (the issuer or third party administrator can send the notice on behalf of the entity). For the purpose of calculating ICRs associated with revocations of the accommodation, and for various reasons discussed above, HHS assumes that litigating entities that were previously using the accommodation and that will revoke it fall within the estimated 109 entities that will revoke the accommodation overall.
As before, HHS assumes that, for each issuer or third party administrator, a manager and inside legal counsel and clerical staff will need approximately 2 hours to prepare and send the notification to participants and beneficiaries and maintain records (30 minutes for a manager at a cost of $117.40 per hour,
As discussed above, HHS estimates that there are 257,000 covered persons in accommodated plans that will revoke their accommodated status and use the expanded exemption.
We are soliciting comments on all of the information collection requirements contained in these interim final rules. In addition, we are also soliciting comments on all of the related information collection requirements currently approved under 0938-1292 and 0938-1248. HHS is requesting a new OMB control number that will ultimately contain the approval for the new information collection requirements contained in these interim
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
If you comment on these information collections, that is, reporting, recordkeeping or third-party disclosure requirements, please submit your comments electronically as specified in the
Under the Paperwork Reduction Act, an agency may not conduct or sponsor, and an individual is not required to respond to, a collection of information unless it displays a valid OMB control number. In accordance with the requirements of the PRA, the ICR for the EBSA Form 700 and alternative notice have previously been approved by OMB under control numbers 1210-0150 and 1210-0152. A copy of the ICR may be obtained by contacting the PRA addressee shown below or at
These interim final rules amend the ICR by changing the accommodation process to an optional process for exempt organizations and requiring a notice of revocation to be sent by the issuer or third party administrator to participants and beneficiaries in plans whose employer who revokes their accommodation. DOL submitted the ICRs in order to obtain OMB approval under the PRA for the regulatory revision. The request was made under emergency clearance procedures specified in regulations at 5 CFR 1320.13. In an effort to consolidate the number of information collection requests, DOL will combine the ICR related to the OMB control number 1210-0152 with the ICR related to the OMB control number 1210-0150. Once the ICR is approved DOL will discontinue 1210-0152. A copy of the information collection request may be obtained free of charge on the
Consistent with the analysis in the HHS PRA section above, the Departments expect that each of the estimated 9 eligible organizations newly opting into the accommodation will spend approximately 50 minutes in preparation time and incur $0.54 mailing cost to self-certify or notify HHS. Each of the 109 issuers or third party administrators for the 109 eligible organizations that make use of the accommodation overall will distribute Notices of Availability of Separate Payments for Contraceptive Services. These issuers and third party administrators will spend approximately 1.25 hours in preparation time and incur $0.54 cost per mailed notice. Notices of Availability of Separate Payments for Contraceptive Services will need to be sent to 420,489 policyholders, and 53.7 percent of the notices will be sent electronically, while 46.3 percent will be mailed. Finally, 109 entities using the previous accommodation process will revoke its use and will therefore be required to cause the Notice of Revocation of Accommodation to be sent (the issuer or third party administrator can send the notice on behalf of the entity). These entities will spend approximately two hours in preparation time and incur $0.54 cost per mailed notice. Notice of Revocation of Accommodation will need to be sent to an average of 128,757 policyholders and 53.7 percent of the notices will be sent electronically. The DOL information collections in this rule are found in 29 CFR 2510.3-16 and 2590.715-2713A and are summarized as follows:
Executive Order 13765 (January 20, 2017) directs that, “[t]o the maximum extent permitted by law, the Secretary of the Department of Health and Human Services and the heads of all other executive departments and agencies (agencies) with authorities and responsibilities under the Act shall exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.” In addition, agencies are directed to “take all actions consistent with law to minimize the unwarranted economic and regulatory burdens of the [Affordable Care Act], and prepare to afford the States more flexibility and control to create a more free and open healthcare market.” These interim final rules exercise the discretion provided to the Departments under the Affordable Care Act, RFRA, and other laws to grant exemptions and thereby minimize regulatory burdens of the Affordable Care Act on the affected entities and recipients of health care services.
Consistent with Executive Order 13771 (82 FR 9339, February 3, 2017), we have estimated the costs and cost savings attributable to this interim final rule. As discussed in more detail in the preceding analysis, this interim final rule lessens incremental reporting
The Unfunded Mandates Reform Act of 1995 (section 202(a) of Pub. L. 104-4), requires the Departments to prepare a written statement, which includes an assessment of anticipated costs and benefits, before issuing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $148 million, using the most current (2016) Implicit Price Deflater for the Gross Domestic Product. For purposes of the Unfunded Mandates Reform Act, these interim final rules do not include any Federal mandate that may result in expenditures by State, local, or tribal governments, nor do they include any Federal mandates that may impose an annual burden of $100 million, adjusted for inflation, or more on the private sector.
Executive Order 13132 outlines fundamental principles of federalism, and requires the adherence to specific criteria by Federal agencies in the process of their formulation and implementation of policies that have “substantial direct effects” on States, the relationship between the Federal Government and States, or the distribution of power and responsibilities among the various levels of Government. Federal agencies promulgating regulations that have these federalism implications must consult with State and local officials, and describe the extent of their consultation and the nature of the concerns of State and local officials in the preamble to the regulation.
These interim final rules do not have any Federalism implications, since they only provide exemptions from the contraceptive and sterilization coverage requirement in HRSA Guidelines supplied under section 2713 of the PHS Act.
The Department of the Treasury temporary regulations are adopted pursuant to the authority contained in sections 7805 and 9833 of the Code.
The Department of Labor regulations are adopted pursuant to the authority contained in 29 U.S.C. 1002(16), 1027, 1059, 1135, 1161-1168, 1169, 1181-1183, 1181 note, 1185, 1185a, 1185b, 1185d, 1191, 1191a, 1191b, and 1191c; sec. 101(g), Public Law 104-191, 110 Stat. 1936; sec. 401(b), Public Law 105-200, 112 Stat. 645 (42 U.S.C. 651 note); sec. 512(d), Public Law 110-343, 122 Stat. 3881; sec. 1001, 1201, and 1562(e), Public Law 111-148, 124 Stat. 119, as amended by Public Law 111-152, 124 Stat. 1029; Secretary of Labor's Order 1-2011, 77 FR 1088 (Jan. 9, 2012).
The Department of Health and Human Services regulations are adopted pursuant to the authority contained in sections 2701 through 2763, 2791, and 2792 of the PHS Act (42 U.S.C. 300gg through 300gg-63, 300gg-91, and 300gg-92), as amended; and Title I of the Affordable Care Act, sections 1301-1304, 1311-1312, 1321-1322, 1324, 1334, 1342-1343, 1401-1402, and 1412, Public Law 111-148, 124 Stat. 119 (42 U.S.C. 18021-18024, 18031-18032, 18041-18042, 18044, 18054, 18061, 18063, 18071, 18082, 26 U.S.C. 36B, and 31 U.S.C. 9701).
Excise taxes, Health care, Health insurance, Pensions, Reporting and recordkeeping requirements.
Continuation coverage, Disclosure, Employee benefit plans, Group health plans, Health care, Health insurance, Medical child support, Reporting and recordkeeping requirements.
Health care, Health insurance, Reporting and recordkeeping requirements, State regulation of health insurance.
For the reasons set forth in this preamble, 26 CFR part 54 is amended as follows:
26 U.S.C. 7805 * * *
(a) * * *
(1)
(iv) [Reserved]. For further guidance, see § 54.9815-2713T(a)(1)(iv).
(a)
(i)-(iii) [Reserved]. For further guidance, see § 54.9815-2713(a)(1)(i) through (iii).
(iv) With respect to women, such additional preventive care and screenings not described in paragraph (a)(1)(i) of § 54.9815-2713 as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of section 2713(a)(4) of the Public Health Service Act, subject to 45 CFR 147.131 and 147.132.
(2)-(c) [Reserved]. For further guidance, see § 54.9815-2713(a)(2) through (c).
(d)
(2) Paragraphs (a)(1) introductory text and (a)(1)(iv) of this section are effective on October 6, 2017.
(e)
(a) through (f) [Reserved]. For further guidance, see § 54.9815-2713AT.
(b)
(a)
(1) The organization is an objecting entity described in 45 CFR 147.132(a)(1)(i) or (ii);
(2) Notwithstanding its status under paragraph (a)(1) of this section and under 45 CFR 147.132(a), the organization voluntarily seeks to be considered an eligible organization to invoke the optional accommodation under paragraph (b) or (c) of this section as applicable; and
(3) [Reserved]
(4) The organization self-certifies in the form and manner specified by the Secretary of Labor or provides notice to the Secretary of the Department of Health and Human Services as described in paragraph (b) or (c) of this section. To qualify as an eligible organization, the organization must make such self-certification or notice available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (b) or (c) of this section applies. The self-certification or notice must be executed by a person authorized to make the certification or provide the notice on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of ERISA.
(5) An eligible organization may revoke its use of the accommodation process, and its issuer or third party administrator must provide participants and beneficiaries written notice of such revocation as specified in guidance issued by the Secretary of the Department of Health and Human Services. If contraceptive coverage is currently being offered by an issuer or third party administrator through the accommodation process, the revocation will be effective on the first day of the first plan year that begins on or after 30 days after the date of the revocation (to allow for the provision of notice to plan participants in cases where contraceptive benefits will no longer be provided). Alternatively, an eligible organization may give sixty-days notice pursuant to section 2715(d)(4) of the PHS Act and § 54.9815-2715(b), if applicable, to revoke its use of the accommodation process.
(b)
(i) The eligible organization or its plan must contract with one or more third party administrators.
(ii) The eligible organization must provide either a copy of the self-certification to each third party administrator or a notice to the Secretary of the Department of Health and Human Services that it is an eligible organization and of its objection as described in 45 CFR 147.132 to coverage of all or a subset of contraceptive services.
(A) When a copy of the self-certification is provided directly to a third party administrator, such self-certification must include notice that obligations of the third party administrator are set forth in 29 CFR 2510.3-16 and this section.
(B) When a notice is provided to the Secretary of Health and Human Services, the notice must include the name of the eligible organization; a statement that it objects as described in 45 CFR 147.132 to coverage of some or all contraceptive services (including an identification of the subset of contraceptive services to which coverage the eligible organization objects, if applicable), but that it would like to elect the optional accommodation process; the plan name and type (that is, whether it is a student health insurance plan within the meaning of 45 CFR 147.145(a) or a church plan within the meaning of section 3(33) of ERISA); and the name and contact information for any of the plan's third party administrators. If there is a change in any of the information required to be included in the notice, the eligible organization must provide updated information to the Secretary of the Department of Health and Human Services for the optional accommodation process to remain in effect. The Department of Labor (working with the Department of Health and Human Services), will send a separate notification to each of the plan's third party administrators informing the third party administrator that the Secretary of the Department of Health and Human Services has received a notice under paragraph (b)(1)(ii) of this section and describing the obligations of the third party administrator under 29 CFR 2510.3-16 and this section.
(2) If a third party administrator receives a copy of the self-certification from an eligible organization or a notification from the Department of Labor, as described in paragraph (b)(1)(ii) of this section, and is willing to enter into or remain in a contractual relationship with the eligible organization or its plan to provide administrative services for the plan, then the third party administrator will provide or arrange payments for contraceptive services, using one of the following methods—
(i) Provide payments for the contraceptive services for plan participants and beneficiaries without imposing any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries; or
(ii) Arrange for an issuer or other entity to provide payments for the contraceptive services for plan participants and beneficiaries without imposing any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries.
(3) If a third party administrator provides or arranges payments for contraceptive services in accordance with either paragraph (b)(2)(i) or (ii) of this section, the costs of providing or arranging such payments may be reimbursed through an adjustment to the Federally facilitated Exchange user fee for a participating issuer pursuant to 45 CFR 156.50(d).
(4) A third party administrator may not require any documentation other than a copy of the self-certification from the eligible organization or notification from the Department of Labor described in paragraph (b)(1)(ii) of this section.
(5) Where an otherwise eligible organization does not contract with a third party administrator and files a self-certification or notice under paragraph (b)(1)(ii) of this section, the obligations under paragraph (b)(2) of this section do not apply, and the otherwise eligible organization is under no requirement to provide coverage or payments for contraceptive services to which it objects. The plan administrator for that otherwise eligible organization may, if it and the otherwise eligible organization choose, arrange for payments for contraceptive services from an issuer or other entity in accordance with paragraph (b)(2)(ii) of this section, and such issuer or other entity may receive reimbursements in accordance with paragraph (b)(3) of this section.
(6) Where an otherwise eligible organization is an ERISA-exempt church plan within the meaning of section 3(33) of ERISA and it files a self-certification or notice under paragraph (b)(1)(ii) of this section, the obligations under paragraph (b)(2) of this section do not apply, and the otherwise eligible organization is under no requirement to provide coverage or payments for contraceptive services to which it objects. The third party administrator for that otherwise eligible organization may, if it and the otherwise eligible organization choose, provide or arrange payments for contraceptive services in accordance with paragraphs (b)(2)(i) or (ii) of this section, and receive reimbursements in accordance with paragraph (b)(3) of this section.
(c)
(i) The eligible organization or its plan must contract with one or more health insurance issuers.
(ii) The eligible organization must provide either a copy of the self-certification to each issuer providing coverage in connection with the plan or a notice to the Secretary of the Department of Health and Human Services that it is an eligible organization and of its objection as described in 45 CFR 147.132 to coverage for all or a subset of contraceptive services.
(A) When a self-certification is provided directly to an issuer, the issuer has sole responsibility for providing such coverage in accordance with § 54.9815-2713.
(B) When a notice is provided to the Secretary of the Department Health and Human Services, the notice must include the name of the eligible organization; a statement that it objects as described in 45 CFR 147.132 to coverage of some or all contraceptive services (including an identification of the subset of contraceptive services to which coverage the eligible organization objects, if applicable) but that it would like to elect the optional accommodation process; the plan name and type (that is, whether it is a student health insurance plan within the meaning of 45 CFR 147.145(a) or a church plan within the meaning of section 3(33) of ERISA); and the name and contact information for any of the plan's health insurance issuers. If there is a change in any of the information required to be included in the notice, the eligible organization must provide updated information to the Secretary of Department of Health and Human Services for the optional accommodation process to remain in effect. The Department of Health and Human Services will send a separate notification to each of the plan's health insurance issuers informing the issuer that the Secretary of the Department Health and Human Services has received a notice under paragraph (c)(2)(ii) of this section and describing the obligations of the issuer under this section.
(2) If an issuer receives a copy of the self-certification from an eligible organization or the notification from the Department of Health and Human Services as described in paragraph (c)(2)(ii) of this section and does not have its own objection as described in 45 CFR 147.132 to providing the contraceptive services to which the eligible organization objects, then the issuer will provide payments for contraceptive services as follows—
(i) The issuer must expressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan and provide separate payments for any contraceptive services required to be covered under § 54.9815-2713(a)(1)(iv) for plan participants and beneficiaries for so long as they remain enrolled in the plan.
(ii) With respect to payments for contraceptive services, the issuer may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries. The issuer must segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services. The issuer must provide payments for contraceptive services in a manner that is consistent with the requirements under sections 2706, 2709, 2711, 2713, 2719, and 2719A of the PHS Act, as incorporated into section 9815 of the PHS Act. If the group health plan of the eligible organization provides coverage for some but not all of any contraceptive services required to be covered under § 54.9815-2713(a)(1)(iv), the issuer is required to provide payments only for those contraceptive services for which the group health plan does not provide coverage. However, the issuer may provide payments for all contraceptive services, at the issuer's option.
(3) A health insurance issuer may not require any documentation other than a copy of the self-certification from the eligible organization or the notification from the Department of Health and Human Services described in paragraph (c)(1)(ii) of this section.
(d)
(e)
(f)
(g)
For the reasons set forth in the preamble, the Department of Labor amends 29 CFR part 2590 as follows:
29 U.S.C. 1027, 1059, 1135, 1161-1168, 1169, 1181-1183, 1181 note, 1185, 1185a, 1185b, 1191, 1191a, 1191b, and 1191c; sec. 101(g), Pub. L. 104-191, 110 Stat. 1936; sec. 401(b), Pub. L. 105-200, 112 Stat. 645 (42 U.S.C. 651 note); sec. 512(d), Pub. L. 110-343, 122 Stat. 3881; sec. 1001, 1201, and 1562(e), Pub. L. 111-148, 124 Stat. 119, as amended by Pub. L. 111-152, 124 Stat. 1029; Division M, Pub. L. 113-235, 128 Stat. 2130; Secretary of Labor's Order 1-2011, 77 FR 1088 (Jan. 9, 2012).
(a)
(iv) With respect to women, such additional preventive care and screenings not described in paragraph (a)(1)(i) of this section as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of section 2713(a)(4) of the Public Health Service Act, subject to 45 CFR 147.131 and 147.132.
(a)
(1) The organization is an objecting entity described in 45 CFR 147.132(a)(1)(i) or (ii);
(2) Notwithstanding its exempt status under 45 CFR 147.132(a), the organization voluntarily seeks to be considered an eligible organization to invoke the optional accommodation under paragraph (b) or (c) of this section as applicable; and
(3) [Reserved]
(4) The organization self-certifies in the form and manner specified by the Secretary or provides notice to the Secretary of the Department of Health and Human Services as described in paragraph (b) or (c) of this section. To qualify as an eligible organization, the organization must make such self-certification or notice available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (b) or (c) of this section applies. The self-certification or notice must be executed by a person authorized to make the certification or provide the notice on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of ERISA.
(5) An eligible organization may revoke its use of the accommodation process, and its issuer or third party administrator must provide participants and beneficiaries written notice of such revocation as specified in guidance issued by the Secretary of the Department of Health and Human Services. If contraceptive coverage is currently being offered by an issuer or third party administrator through the accommodation process, the revocation will be effective on the first day of the first plan year that begins on or after 30 days after the date of the revocation (to allow for the provision of notice to plan participants in cases where contraceptive benefits will no longer be provided). Alternatively, an eligible organization may give 60-days notice pursuant to PHS Act section 2715(d)(4) and § 2590.715-2715(b), if applicable, to revoke its use of the accommodation process.
(b)
(i) The eligible organization or its plan must contract with one or more third party administrators.
(ii) The eligible organization must provide either a copy of the self-certification to each third party administrator or a notice to the Secretary of the Department of Health and Human Services that it is an eligible organization and of its objection as described in 45 CFR 147.132 to coverage of all or a subset of contraceptive services.
(A) When a copy of the self-certification is provided directly to a third party administrator, such self-certification must include notice that obligations of the third party administrator are set forth in § 2510.3-16 of this chapter and this section.
(B) When a notice is provided to the Secretary of Health and Human Services, the notice must include the name of the eligible organization; a statement that it objects as described in 45 CFR 147.132 to coverage of some or all contraceptive services (including an identification of the subset of contraceptive services to which coverage the eligible organization objects, if applicable), but that it would like to elect the optional accommodation process; the plan name and type (that is, whether it is a student health insurance plan within the meaning of 45 CFR 147.145(a) or a church plan within the meaning of section 3(33) of ERISA); and the name and contact information for any of the plan's third party administrators. If there is a change in any of the information required to be included in the notice, the eligible organization must provide updated information to the Secretary of the Department of Health and Human Services for the optional accommodation process to remain in effect. The Department of Labor (working with the Department of Health and Human Services), will send a separate notification to each of the plan's third party administrators informing the third party administrator that the Secretary of the Department of Health and Human Services has received a notice under paragraph (b)(1)(ii) of this section and describing the obligations of the third party administrator under § 2510.3-16 of this chapter and this section.
(2) If a third party administrator receives a copy of the self-certification from an eligible organization or a notification from the Department of Labor, as described in paragraph (b)(1)(ii) of this section, and is willing to enter into or remain in a contractual relationship with the eligible organization or its plan to provide administrative services for the plan, then the third party administrator will provide or arrange payments for contraceptive services, using one of the following methods—
(i) Provide payments for the contraceptive services for plan participants and beneficiaries without imposing any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries; or
(ii) Arrange for an issuer or other entity to provide payments for contraceptive services for plan participants and beneficiaries without imposing any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries.
(3) If a third party administrator provides or arranges payments for contraceptive services in accordance with either paragraph (b)(2)(i) or (ii) of this section, the costs of providing or arranging such payments may be reimbursed through an adjustment to the Federally facilitated Exchange user fee for a participating issuer pursuant to 45 CFR 156.50(d).
(4) A third party administrator may not require any documentation other than a copy of the self-certification from the eligible organization or notification from the Department of Labor described in paragraph (b)(1)(ii) of this section.
(5) Where an otherwise eligible organization does not contract with a third party administrator and it files a self-certification or notice under paragraph (b)(1)(ii) of this section, the obligations under paragraph (b)(2) of this section do not apply, and the otherwise eligible organization is under no requirement to provide coverage or payments for contraceptive services to which it objects. The plan administrator for that otherwise eligible organization may, if it and the otherwise eligible organization choose, arrange for payments for contraceptive services from an issuer or other entity in accordance with paragraph (b)(2)(ii) of this section, and such issuer or other entity may receive reimbursements in accordance with paragraph (b)(3) of this section.
(c)
(i) The eligible organization or its plan must contract with one or more health insurance issuers.
(ii) The eligible organization must provide either a copy of the self-certification to each issuer providing coverage in connection with the plan or a notice to the Secretary of the Department of Health and Human Services that it is an eligible organization and of its objection as described in 45 CFR 147.132 to coverage for all or a subset of contraceptive services.
(A) When a self-certification is provided directly to an issuer, the issuer has sole responsibility for providing such coverage in accordance with § 2590.715-2713.
(B) When a notice is provided to the Secretary of the Department of Health and Human Services, the notice must include the name of the eligible organization; a statement that it objects as described in 45 CFR 147.132 to coverage of some or all contraceptive services (including an identification of the subset of contraceptive services to which coverage the eligible organization objects, if applicable) but that it would like to elect the optional accommodation process; the plan name and type (that is, whether it is a student health insurance plan within the meaning of 45 CFR 147.145(a) or a church plan within the meaning of section 3(33) of ERISA); and the name and contact information for any of the plan's health insurance issuers. If there is a change in any of the information required to be included in the notice, the eligible organization must provide updated information to the Secretary of Department Health and Human Services for the optional accommodation process to remain in effect. The Department of Health and Human Services will send a separate notification to each of the plan's health insurance issuers informing the issuer that the Secretary of Health and Human Services has received a notice under paragraph (c)(2)(ii) of this section and describing the obligations of the issuer under this section.
(2) If an issuer receives a copy of the self-certification from an eligible organization or the notification from the Department of Health and Human Services as described in paragraph (c)(2)(ii) of this section and does not have its own objection as described in 45 CFR 147.132 to providing the contraceptive services to which the eligible organization objects, then the issuer will provide payments for contraceptive services as follows—
(i) The issuer must expressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan and provide separate payments for any contraceptive services required to be covered under § 2590.715-2713(a)(1)(iv) for plan participants and beneficiaries
(ii) With respect to payments for contraceptive services, the issuer may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries. The issuer must segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services. The issuer must provide payments for contraceptive services in a manner that is consistent with the requirements under sections 2706, 2709, 2711, 2713, 2719, and 2719A of the PHS Act, as incorporated into section 715 of ERISA. If the group health plan of the eligible organization provides coverage for some but not all of any contraceptive services required to be covered under § 2590.715-2713(a)(1)(iv), the issuer is required to provide payments only for those contraceptive services for which the group health plan does not provide coverage. However, the issuer may provide payments for all contraceptive services, at the issuer's option.
(3) A health insurance issuer may not require any documentation other than a copy of the self-certification from the eligible organization or the notification from the Department of Health and Human Services described in paragraph (c)(1)(ii) of this section.
(d)
(e)
(f)
For the reasons set forth in the preamble, the Department of Health and Human Services amends 45 CFR part 147 as follows:
Secs 2701 through 2763, 2791, and 2792 of the Public Health Service Act (42 U.S.C. 300gg through 300gg-63, 300gg-91, and 300gg-92), as amended.
(a) * * *
(1)
(iv) With respect to women, such additional preventive care and screenings not described in paragraph (a)(1)(i) of this section as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of section 2713(a)(4) of the Public Health Service Act, subject to §§ 147.131 and 147.132.
(a)-(b) [Reserved]
(c)
(1) The organization is an objecting entity described in § 147.132(a)(1)(i) or (ii).
(2) Notwithstanding its exempt status under § 147.132(a), the organization voluntarily seeks to be considered an eligible organization to invoke the optional accommodation under paragraph (d) of this section; and
(3) The organization self-certifies in the form and manner specified by the Secretary or provides notice to the Secretary as described in paragraph (d) of this section. To qualify as an eligible organization, the organization must make such self-certification or notice available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (d) of this section applies. The self-certification or notice must be executed by a person authorized to make the certification or provide the notice on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of ERISA.
(4) An eligible organization may revoke its use of the accommodation process, and its issuer must provide participants and beneficiaries written notice of such revocation as specified in guidance issued by the Secretary of the Department of Health and Human Services. If contraceptive coverage is currently being offered by an issuer through the accommodation process, the revocation will be effective on the first day of the first plan year that begins on or after 30 days after the date of the revocation (to allow for the provision of notice to plan participants in cases where contraceptive benefits will no longer be provided). Alternatively, an eligible organization may give 60-days notice pursuant to section 2715(d)(4) of the PHS Act and § 147.200(b), if applicable, to revoke its use of the accommodation process.
(d)
(i) The eligible organization or its plan must contract with one or more health insurance issuers.
(ii) The eligible organization must provide either a copy of the self-certification to each issuer providing coverage in connection with the plan or a notice to the Secretary of the Department of Health and Human Services that it is an eligible organization and of its objection as described in § 147.132 to coverage for all or a subset of contraceptive services.
(A) When a self-certification is provided directly to an issuer, the issuer has sole responsibility for providing such coverage in accordance with § 147.130(a)(iv).
(B) When a notice is provided to the Secretary of the Department of Health and Human Services, the notice must include the name of the eligible organization; a statement that it objects as described in § 147.132 to coverage of some or all contraceptive services (including an identification of the subset of contraceptive services to which coverage the eligible organization objects, if applicable) but that it would like to elect the optional accommodation process; the plan name and type (that is, whether it is a student health insurance plan within the meaning of § 147.145(a) or a church plan within the meaning of section 3(33) of ERISA); and the name and contact information for any of the plan's health insurance issuers. If there is a change in any of the information required to be included in the notice, the eligible organization must provide updated information to the Secretary of the Department of Health and Human Services for the optional accommodation to remain in effect. The Department of Health and Human Services will send a separate notification to each of the plan's health insurance issuers informing the issuer that the Secretary of the Deparement of Health and Human Services has received a notice under paragraph (d)(1)(ii) of this section and describing the obligations of the issuer under this section.
(2) If an issuer receives a copy of the self-certification from an eligible organization or the notification from the Department of Health and Human Services as described in paragraph (d)(1)(ii) of this section and does not have an objection as described in § 147.132 to providing the contraceptive services identified in the self-certification or the notification from the Department of Health and Human Services, then the issuer will provide payments for contraceptive services as follows—
(i) The issuer must expressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan and provide separate payments for any contraceptive services required to be covered under § 141.130(a)(1)(iv) for plan participants and beneficiaries for so long as they remain enrolled in the plan.
(ii) With respect to payments for contraceptive services, the issuer may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries. The issuer must segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services. The issuer must provide payments for contraceptive services in a manner that is consistent with the requirements under sections 2706, 2709, 2711, 2713, 2719, and 2719A of the PHS Act. If the group health plan of the eligible organization provides coverage for some but not all of any contraceptive services required to be covered under § 147.130(a)(1)(iv), the issuer is required to provide payments only for those contraceptive services for which the group health plan does not provide coverage. However, the issuer may provide payments for all contraceptive services, at the issuer's option.
(3) A health insurance issuer may not require any documentation other than a copy of the self-certification from the eligible organization or the notification from the Department of Health and Human Services described in paragraph (d)(1)(ii) of this section.
(e)
(f)
(g)
(a)
(i) A group health plan and health insurance coverage provided in connection with a group health plan to the extent the non-governmental plan sponsor objects as specified in paragraph (a)(2) of this section. Such non-governmental plan sponsors include, but are not limited to, the following entities—
(A) A church, an integrated auxiliary of a church, a convention or association of churches, or a religious order.
(B) A nonprofit organization.
(C) A closely held for-profit entity.
(D) A for-profit entity that is not closely held.
(E) Any other non-governmental employer.
(ii) An institution of higher education as defined in 20 U.S.C. 1002 in its arrangement of student health insurance coverage, to the extent that institution objects as specified in paragraph (a)(2) of this section. In the case of student health insurance coverage, this section is applicable in a manner comparable to its applicability to group health insurance coverage provided in connection with a group health plan established or maintained by a plan sponsor that is an employer, and references to “plan participants and beneficiaries” will be interpreted as references to student enrollees and their covered dependents; and
(iii) A health insurance issuer offering group or individual insurance coverage to the extent the issuer objects as specified in paragraph (a)(2) of this section. Where a health insurance issuer providing group health insurance coverage is exempt under this paragraph (a)(1)(iii), the plan remains subject to any requirement to provide coverage for contraceptive services under Guidelines issued under § 147.130(a)(1)(iv) unless it is also exempt from that requirement.
(2) The exemption of this paragraph (a) will apply to the extent that an entity described in paragraph (a)(1) of this section objects to its establishing, maintaining, providing, offering, or arranging (as applicable) coverage, payments, or a plan that provides coverage or payments for some or all contraceptive services, based on its sincerely held religious beliefs.
(b)
(c)
(d)
Internal Revenue Service, Department of the Treasury; Employee Benefits Security Administration, Department of Labor; and Centers for Medicare & Medicaid Services, Department of Health and Human Services.
Interim final rules with request for comments.
The United States has a long history of providing conscience protections in the regulation of health care for entities and individuals with objections based on religious beliefs or moral convictions. These interim final rules expand exemptions to protect moral convictions for certain entities and individuals whose health plans are subject to a mandate of contraceptive coverage through guidance issued pursuant to the Patient Protection and Affordable Care Act. These rules do not alter the discretion of the Health Resources and Services Administration, a component of the United States Department of Health and Human Services, to maintain the guidelines requiring contraceptive coverage where no regulatorily recognized objection exists. These rules also provide certain morally objecting entities access to the voluntary “accommodation” process regarding such coverage. These rules do not alter multiple other Federal programs that provide free or subsidized contraceptives for women at risk of unintended pregnancy.
Written comments may be submitted to the Department of Health and Human Services as specified below. Any comment that is submitted will be shared with the Department of Labor and the Department of the Treasury, and will also be made available to the public.
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Please allow sufficient time for mailed comments to be received before the close of the comment period.
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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) 786-9994 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.
Comments received will be posted without change to
Jeff Wu (310) 492-4305 or
In the context of legal requirements touching on certain sensitive health care issues—including health coverage of contraceptives—Congress has a consistent history of supporting conscience protections for moral convictions alongside protections for religious beliefs, including as part of its efforts to promote access to health services.
The Departments have recently exercised our discretion to reevaluate these exemptions and accommodations. This evaluation includes consideration of various factors, such as: The interests served by the existing Guidelines, regulations, and accommodation process;
In light of these considerations, the Departments issue these interim final rules to better balance the Government's interest in promoting coverage for contraceptive and sterilization services with the Government's interests in providing conscience protections for individuals and entities with sincerely held moral convictions in certain health care contexts, and in minimizing burdens imposed by our regulation of the health insurance market.
Collectively, the Patient Protection and Affordable Care Act (Pub. L. 111-148), enacted on March 23, 2010, and the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152), enacted on March 30, 2010, are known as the Affordable Care Act. In signing the Affordable Care Act, President Obama issued Executive Order 13535 (March 24, 2010), which declared that, “[u]nder the Act, longstanding Federal laws to protect conscience (such as the Church Amendment, 42 U.S.C. 300a-7, and the Weldon Amendment, section 508(d)(1) of Pub. L. 111-8) remain intact” and that “[n]umerous executive agencies have a role in ensuring that these restrictions are enforced, including the Department of Health and Human Services (HHS).” Those laws protect objections based on moral convictions in addition to religious beliefs.
The Affordable Care Act reorganizes, amends, and adds to the provisions of part A of title XXVII of the Public Health Service Act (PHS Act) relating to group health plans and health insurance issuers in the group and individual markets. In addition, the Affordable Care Act adds section 715(a)(1) to the Employee Retirement Income Security Act of 1974 (ERISA) and section 9815(a)(1) to the Internal Revenue Code (Code) to incorporate the provisions of part A of title XXVII of the PHS Act into ERISA and the Code, and thereby make them applicable to certain group health plans regulated under ERISA or the Code. The sections of the PHS Act incorporated into ERISA and the Code are sections 2701 through 2728 of the PHS Act.
These interim final rules concern section 2713 of the PHS Act. Where it applies, section 2713(a)(4) of the PHS
The Departments have consistently interpreted section 2713(a)(4)'s of the PHS Act grant of authority to include broad discretion to decide the extent to which HRSA will provide for and support the coverage of additional women's preventive care and screenings in the Guidelines. In turn, the Departments have interpreted that discretion to include the ability to exempt entities from coverage requirements announced in HRSA's Guidelines. That interpretation is rooted in the text of section 2713(a)(4) of the PHS Act, which allows HRSA to decide the extent to which the Guidelines will provide for and support the coverage of additional women's preventive care and screenings.
Accordingly, the Departments have consistently interpreted section 2713(a)(4) of the PHS Act reference to “comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph” to grant HRSA authority to develop such Guidelines. And because the text refers to Guidelines “supported by the Health Resources and Services Administration for purposes of this paragraph,” the Departments have consistently interpreted that authority to afford HRSA broad discretion to consider the requirements of coverage and cost-sharing in determining the nature and extent of preventive care and screenings recommended in the guidelines. (76 FR 46623). As the Departments have noted, these Guidelines are different from “the other guidelines referenced in section 2713(a), which pre-dated the Affordable Care Act and were originally issued for purposes of identifying the non-binding recommended care that providers should provide to patients.”
Our interpretation of section 2713(a)(4) of the PHS Act is confirmed by the Affordable Care Act's statutory structure. The Congress did not intend to require entirely uniform coverage of preventive services. (76 FR 46623). To the contrary, Congress carved out an exemption from section 2713 for grandfathered plans. This exemption is not applicable to many of the other provisions in Title I of the Affordable Care Act—provisions previously referred to by the Departments as providing “particularly significant protections.” (75 FR 34540). Those provisions include: Section 2704, which prohibits preexisting condition exclusions or other discrimination based on health status in group health coverage; section 2708, which prohibits excessive waiting periods (as of January 1, 2014); section 2711, which relates to lifetime limits; section 2712, which prohibits rescissions of health insurance coverage; section 2714, which extends dependent coverage until age 26; and section 2718, which imposes a medical loss ratio on health insurance issuers in the individual and group markets (for insured coverage), or requires them to provide rebates to policyholders. (75 FR 34538, 34540, 34542). Consequently, of the 150 million nonelderly people in America with employer-sponsored health coverage, approximately 25.5 million are estimated to be enrolled in grandfathered plans not subject to section 2713 of the PHS Act.
The Departments' interpretation of section 2713(a)(4) of the PHS Act to permit HRSA to establish exemptions from the Guidelines, and of the Departments' own authority as administering agencies to guide HRSA in establishing such exemptions, is also consistent with Executive Order 13535. That order, issued upon the signing of the Affordable Care Act, specified that “longstanding Federal laws to protect conscience . . . remain intact,” including laws that protect religious beliefs and moral convictions from certain requirements in the health care context. Although the text of Executive Order 13535 does not require the expanded exemptions issued in these interim final rules, the expanded exemptions are, as explained below, consistent with longstanding Federal laws to protect conscience regarding certain health matters, and are consistent with the intent that the Affordable Care Act would be implemented in consideration of the protections set forth in those laws.
On July 19, 2010, the Departments issued interim final rules implementing section 2713 of the PHS Act (75 FR 41726). Those interim final rules charged HRSA with developing the Guidelines authorized by section 2713(a)(4) of the PHS Act.
In developing the Guidelines, HRSA relied on an independent report from the Institute of Medicine (IOM, now known as the National Academy of Medicine) on women's preventive services, issued on July 19, 2011, “Clinical Preventive Services for Women, Closing the Gaps” (IOM 2011). The IOM's report was funded by the HHS Office of the Assistant Secretary for Planning and Evaluation, pursuant to a funding opportunity that charged the IOM to conduct a review of effective preventive services to ensure women's health and well-being.
The IOM made a number of recommendations with respect to women's preventive services. As relevant here, the IOM recommended that the Guidelines cover the full range of Food and Drug Administration (FDA)-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity. Because FDA includes in the category of “contraceptives” certain drugs and devices that may not only prevent conception (fertilization), but may also prevent implantation of an embryo,
On August 1, 2011, HRSA released onto its Web site its Guidelines for women's preventive services, adopting the recommendations of the IOM.
In administering this Mandate, on August 1, 2011, the Departments promulgated interim final rules amending our 2010 interim final rules. (76 FR 46621) (2011 interim final rules). The 2011 interim final rules specified that HRSA has the authority to establish exemptions from the contraceptive coverage requirement for certain group health plans established or maintained by certain religious employers and for health insurance coverage provided in connection with such plans.
Final regulations issued on February 10, 2012, adopted the definition of “religious employer” in the 2011 interim final rules without modification (2012 final regulations).
Contemporaneously with the issuance of the 2012 final regulations, HHS—with the agreement of the Department of Labor (DOL) and the Department of the Treasury—issued guidance establishing a temporary safe harbor from enforcement of the contraceptive coverage requirement by the Departments with respect to group health plans established or maintained by certain nonprofit organizations with religious objections to contraceptive coverage (and the group health insurance coverage provided in connection with such plans).
On March 21, 2012, the Departments published an advance notice of proposed rulemaking (ANPRM) that described possible approaches to achieve those goals with respect to religious nonprofit organizations, and solicited public comments on the same. (77 FR 16501). Following review of the comments on the ANPRM, the Departments published proposed regulations on February 6, 2013 (2013 NPRM) (78 FR 8456).
The 2013 NPRM proposed to expand the definition of “religious employer” for purposes of the religious employer exemption. Specifically, it proposed to require only that the religious employer be organized and operate as a nonprofit entity and be referred to in section 6033(a)(3)(A)(i) or (iii) of the Code, eliminating the requirements that a religious employer—(1) have the inculcation of religious values as its purpose; (2) primarily employ persons who share its religious tenets; and (3) primarily serve persons who share its religious tenets. The proposed expanded
The 2013 NPRM also proposed to create a compliance process, which it called an accommodation, for group health plans established, maintained, or arranged by certain eligible nonprofit organizations that fell outside the houses of worship and integrated auxiliaries covered by section 6033(a)(3)(A)(i) or (iii) of the Code (and, thus, outside of the religious employer exemption). The 2013 NPRM proposed to define such eligible organizations as nonprofit entities that hold themselves out as religious, oppose providing coverage for certain contraceptive items on account of religious objections, and maintain a certification to this effect in their records. The 2013 NPRM stated, without citing a supporting source, that employees of eligible organizations “may be less likely than” employees of exempt houses of worship and integrated auxiliaries to share their employer's faith and opposition to contraception on religious grounds. (78 FR 8461). The 2013 NPRM therefore proposed that, in the case of an insured group health plan established or maintained by an eligible organization, the health insurance issuer providing group health insurance coverage in connection with the plan would provide contraceptive coverage to plan participants and beneficiaries without cost sharing, premium, fee, or other charge to plan participants or beneficiaries enrolled in the eligible organization's plan—and without any cost to the eligible organization.
The Departments published final regulations on July 2, 2013 (July 2013 final regulations) (78 FR 39869). The July 2013 final regulations finalized the expansion of the exemption for houses of worship and their integrated auxiliaries. Although some commenters had suggested that the exemption be further expanded, the Departments declined to adopt that approach. The July 2013 regulations stated that, because employees of objecting houses of worship and integrated auxiliaries are relatively likely to oppose contraception, exempting those organizations “does not undermine the governmental interests furthered by the contraceptive coverage requirement.” (78 FR 39874). However, like the 2013 NPRM, the July 2013 regulations assumed that “[h]ouses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection” to contraceptives.
The July 2013 regulation also finalized an accommodation for eligible organizations, which were then defined to include solely organizations that are religious. Under the accommodation, an eligible organization was required to submit a self-certification to its group health insurance issuer or third party administrator, as applicable. Upon receiving that self-certification, the issuer or third party administrator would provide or arrange for payments for the contraceptive services to the plan participants and beneficiaries enrolled in the eligible organization's plan, without requiring any cost sharing on the part of plan participants and beneficiaries and without cost to the eligible organization. With respect to self-insured plans, the third party administrators (or issuers they contracted with) could receive reimbursements by reducing user fee payments (to Federally facilitated Exchanges) by the amounts paid out for contraceptive services under the accommodation, plus an allowance for certain administrative costs, as long as the HHS Secretary requests and an authorizing exception under OMB Circular No. A-25R is in effect.
During the period when the Departments were publishing and modifying our regulations, organizations and individuals filed dozens of lawsuits challenging the Mandate. Plaintiffs included religious nonprofit organizations, businesses run by religious families, individuals, and others, including several non-religious organizations that opposed coverage of certain contraceptives under the Mandate on the basis of non-religious moral convictions. Religious for-profit entities won various court decisions leading to the Supreme Court's ruling in
On August 27, 2014, the Departments simultaneously issued a third set of interim final rules (August 2014 interim final rules) (79 FR 51092), and a notice of proposed rulemaking (August 2014 proposed rules) (79 FR 51118). The August 2014 interim final rules changed the accommodation process so that it could be initiated either by self-certification using EBSA Form 700 or through a notice informing the Secretary of HHS that an eligible organization had religious objections to coverage of all or a subset of contraceptive services (79 FR 51092). In response to
On July 14, 2015, the Departments finalized both the August 2014 interim final rules and the August 2014 proposed rules in a set of final regulations (the July 2015 final regulations) (80 FR 41318). (The July 2015 final regulations also encompassed issues related to other preventive services coverage.) The July 2015 final regulations allowed eligible organizations to submit a notice to HHS as an alternative to submitting the EBSA Form 700, but specified that such notice must include the eligible organization's name and an expression of its religious objection, along with the plan name, plan type, and name and contact information for any of the plan's third party administrators or health insurance issuers. The Departments indicated that such information represents the minimum information necessary for us to administer the accommodation process.
Meanwhile, a second series of legal challenges were filed by religious nonprofit organizations that stated the accommodation impermissibly burdened their religious beliefs because it utilized their health plans to provide services to which they objected on religious grounds, and it required them to submit a self-certification or notice. On November 6, 2015, the U.S. Supreme Court granted certiorari in seven similar cases under the title of a filing from the Third Circuit,
After remand, as indicated by the Departments in court filings, meetings were held between attorneys for the Government and for the plaintiffs in those cases. The Departments also issued a Request for Information (“RFI”) on July 26, 2016, seeking public comment on options for modifying the accommodation process in light of the supplemental briefing in
Beginning in 2015, lawsuits challenging the Mandate were also filed by various non-religious organizations with moral objections to contraceptive coverage. These organizations asserted that they believe some methods classified by FDA as contraceptives may have an abortifacient effect and therefore, in their view, are morally equivalent to abortion. These organizations have neither received an exemption from the Mandate nor do they qualify for the accommodation. For example, the organization that since 1974 has sponsored the annual March for Life in Washington, DC (March for Life), filed a complaint claiming that the Mandate violated the equal protection component of the Due Process Clause of the Fifth Amendment, and was arbitrary and capricious under the Administrative Procedure Act (APA). Citing, for example, (77 FR 8727), March for Life argued that the Departments' stated interests behind the Mandate were only advanced among women who “want” the coverage so as to prevent “unintended” pregnancy. March for Life contended that because it only hires employees who publicly advocate against abortion, including what they regard as abortifacient contraceptive items, the Departments' interests were not rationally advanced by imposing the Mandate upon it and its employees. Accordingly, March for Life contended that applying the Mandate to it (and other similarly situated organizations) lacked a rational basis and therefore doing so was arbitrary and capricious in violation of the APA. March for Life further contended that because the Departments concluded the government's interests were not undermined by exempting houses of worship and integrated auxiliaries (based on our assumption that such entities are relatively more likely than other religious nonprofits to have employees that share their views against contraception), applying the Mandate to March for Life or similar organizations that definitively hire only employees who oppose certain contraceptives lacked a rational basis and therefore violated their right of equal protection under the Due Process Clause.
March for Life's employees, who stated they were personally religious (although personal religiosity was not a condition of their employment), also sued as co-plaintiffs. They contended that the Mandate violates their rights under RFRA by making it impossible for them to obtain health insurance consistent with their religious beliefs, either from the plan March for Life wanted to offer them, or in the individual market, because the Departments offered no exemptions in either circumstance. Another non-religious nonprofit organization that opposed the Mandate's requirement to provide certain contraceptive coverage on moral grounds also filed a lawsuit challenging the Mandate.
Challenges by non-religious nonprofit organizations led to conflicting opinions among the Federal courts. A district court agreed with the March for Life plaintiffs on the organization's equal protection claim and the employees' RFRA claims (not specifically ruling on the APA claim), and issued a permanent injunction against the Departments that is still in place.
On December 20, 2016, HRSA updated the Guidelines via its Web site,
On January 9, 2017, the Departments issued a document entitled, “FAQs About Affordable Care Act Implementation Part 36.”
On May 4, 2017, the President issued Executive Order 13798, “Promoting Free Speech and Religious Liberty.” Section 3 of that order declares, “Conscience Protections with Respect to Preventive-Care Mandate. The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under section 300gg-13(a)(4) of title 42, United States Code.”
These interim final rules incorporate conscience protections into the contraceptive Mandate. They do so in part to bring the Mandate into conformity with Congress's long history of providing or supporting conscience protections in the regulation of sensitive health-care issues, cognizant that Congress neither required the Departments to impose the Mandate nor prohibited them from providing conscience protections if they did so. Specifically, these interim final rules expand exemptions to the contraceptive Mandate to protect certain entities and individuals that object to coverage of some or all contraceptives based on sincerely held moral convictions but not religious beliefs, and these rules make those exempt entities eligible for accommodations concerning the same Mandate.
The Departments have consistently interpreted HRSA's authority under section 2713(a)(4) of the PHS Act to allow for exemptions and accommodations to the contraceptive Mandate for certain objecting organizations. Section 2713(a)(4) of the PHS Act gives HRSA discretion to decide whether and in what circumstances it will support Guidelines providing for additional women's preventive services coverage. That authority includes HRSA's discretion to include contraceptive coverage in those Guidelines, but the Congress did not specify whether or to what extent HRSA should do so. Therefore, section 2713(a)(4) of the PHS Act allows HRSA to not apply the Guidelines to certain plans of entities or individuals with religious or moral objections to contraceptive coverage, and by not applying the Guidelines to them, to exempt those entities from the Mandate. These rules are a necessary and appropriate exercise of the authority of HHS, of which HRSA is a component, and of the authority delegated to the Departments collectively as administrators of the statutes. (26 U.S.C. 9833; 29 U.S.C. 1191c; 42 U.S.C. 300gg-92).
Our protection of conscience in these interim final rules is consistent with the structure and intent of the Affordable Care Act. The Affordable Care Act refrains from applying section 2713(a)(4) of the PHS Act to millions of women in grandfathered plans. In contrast, we anticipate that conscientious exemptions to the Mandate will impact a much smaller number of women. President Obama emphasized in signing the Affordable Care Act that “longstanding Federal law to protect conscience”—laws with conscience protections encompassing moral (as well as religious) objections—specifically including (but not limited to) the Church Amendments (42 U.S.C. 300a-7), “remain intact.” Executive Order 13535. Nothing in the Affordable Care Act suggests Congress' intent to deviate from its long history, discussed below, of protecting moral convictions in particular health care contexts. The Departments' implementation of section 2713(a)(4) of the PHS Act with respect to contraceptive coverage is a context similar to those encompassed by many other health care conscience protections provided or supported by Congress. This Mandate concerns contraception and sterilization services, including items believed by some citizens to have an abortifacient effect—that is, to cause the destruction of a human life at an early stage of embryonic development. These are highly sensitive issues in the history of health care regulation and have long been shielded by conscience protections in the laws of the United States.
In deciding the most appropriate way to exercise our discretion in this context, the Departments draw on nearly 50 years of statutory law and Supreme Court precedent discussing the protection of moral convictions in certain circumstances—particularly in the context of health care and health insurance coverage. Congress very recently expressed its intent on the matter of Government-mandated contraceptive coverage when it declared, with respect to the possibility that the District of Columbia would require contraceptive coverage, that “it is the intent of Congress that any legislation enacted on such issue should include a `conscience clause' which provides exceptions for religious beliefs and moral convictions.” Consolidated Appropriations Act of 2017, Division C, Title VIII, Sec. 808, Public Law 115-31 (May 5, 2017). In support of these interim final rules, we consider it significant that Congress' most recent statement on the prospect of Government mandated contraceptive coverage specifically intends that a conscience clause be included to protect moral convictions.
The many statutes listed in Section I-Background under footnote 1, which show Congress' consistent protection of moral convictions alongside religious beliefs in the Federal regulation of health care, includes laws such as the 1973 Church Amendments, which we discuss at length below, all the way to the 2017 Consolidated Appropriations Act discussed above. Notably among those laws, the Congress has enacted protections for health plans or health care organizations in Medicaid or Medicare Advantage to object “on moral or religious grounds” to providing coverage of certain counseling or referral services. 42 U.S.C. 1395w-
One of the most important and well-established federal statutes respecting conscientious objections in specific health care contexts was enacted over the course of several years beginning in 1973, initially as a response to court decisions raising the prospect that entities or individuals might be required to facilitate abortions or sterilizations. These sections of the United States Code are known as the Church Amendments, named after their primary sponsor Senator Frank Church (D-Idaho). The Church Amendments specifically provide conscience protections based on sincerely held moral convictions. Among other things, the amendments protect the recipients of certain Federal health funds from being required to perform, assist, or make their facilities available for abortions or sterilizations if they object “on the basis of religious beliefs or moral convictions,” and they prohibit recipients of certain Federal health funds from discriminating against any personnel “because he refused to perform or assist in the performance of such a procedure or abortion on the grounds that his performance or assistance in the performance of the procedure or abortion would be contrary to his religious beliefs or moral convictions” (42 U.S.C. 300a-7(b), (c)(1)). Later additions to the Church Amendments protect other conscientious objections, including some objections on the basis of moral conviction to “any lawful health service,” or to “any part of a health service program.” (42 U.S.C. 300a-7(c)(2), (d)). In contexts covered by those sections of the Church Amendments, the provision or coverage of certain contraceptives, depending on the circumstances, could constitute “any lawful health service” or a “part of a health service program.” As such, the protections provided by those provisions of the Church Amendments would encompass moral objections to contraceptive services or coverage.
The Church Amendments were enacted in the wake of the Supreme Court's decision in
The Congressional Record contains relevant discussions that occurred when the protection for moral convictions was first proposed in the Church Amendments. When Senator Church introduced the first of those amendments in 1973, he cited not only
Mr. STEVENSON. Mr. President, first of all I commend the Senator from Idaho for bringing this matter to the attention of the Senate. I ask the Senator a question.
One need not be of the Catholic faith or any other religious faith to feel deeply about the worth of human life. The protections afforded by this amendment run only to those whose religious beliefs would be offended by the necessity of performing or participating in the performance of certain medical procedures; others, for moral reasons, not necessarily for any religious belief, can feel equally as strong about human life. They too can revere human life.
As mortals, we cannot with confidence say, when life begins. But whether it is life, or the potentiality of life, our moral convictions as well as our religious beliefs, warrant protection from this intrusion by the Government. Would, therefore, the Senator include moral convictions?
Would the Senator consider an amendment on page 2, line 18 which would add to religious beliefs, the words “or moral”?
Mr. CHURCH. I would suggest to the Senator that perhaps his objective could be more clearly stated if the words “or moral conviction” were added after “religious belief.” I think that the Supreme Court in considering the protection we give religious beliefs has given comparable treatment to deeply held moral convictions. I would not be averse to amending the language of the amendment in such a manner. It is consistent with the general purpose. I see no reason why a deeply held moral conviction ought not be given the same treatment as a religious belief.
Mr. STEVENSON. The Senator's suggestion is well taken. I thank him.
As the debate proceeded, Senator Church went on to quote
Senator James L. Buckley (C-NY), speaking in support of the amendment, added the following perspective:
Mr. BUCKLEY. Mr. President, I compliment the Senator from Idaho for proposing this most important and timely amendment. It is timely in the first instance because the attempt has already been made to compel the performance of abortion and sterilization operations on the part of those who are fundamentally opposed to such procedures. And it is timely also because the
I believe it is ironic that we should have this debate at all. Who would have predicted a year or two ago that we would have to guard against even the possibility that someone might be free [sic]
I am delighted that the Senator from Idaho has amended his language to include the words “moral conviction,” because, of course, we know that this is not a matter of concern to any one religious body to the exclusion of all others, or even to men who believe in a God to the exclusion of all others. It has been a traditional concept in our society from the earliest times that the right of conscience, like the paramount right to life from which it is derived, is sacred.
In support of the same protections when they were debated in the U.S. House, Representative Margaret Heckler (R-MA)
These first of the Church Amendments, codified at 42 U.S.C. 300a-7(b) and (c)(1), passed the House 372-1, and were approved by the Senate 94-0. 119 Congr. Rec. at H4149; 119 Congr. Rec. S10405 (June 5, 1973). The subsequently adopted provisions that comprise the Church Amendments similarly extend protection to those organizations and individuals who object to the provision of certain services on the basis of their moral convictions. And, as noted above, subsequent statutes add protections for moral objections in many other situations. These include, for example:
• Protections for individuals and entities that object to abortion: See 42 U.S.C. 238n; 42 U.S.C. 18023; 42 U.S.C. 2996f(b); and Consolidated Appropriations Act of 2017, Div. H, Title V, Sec. 507(d), Public Law 115-31;
• Protections for entities and individuals that object to providing or covering contraceptives: See id. at Div. C, Title VIII, Sec. 808; id. at Div. C, Title VII, Sec. 726(c) (Financial Services and General Government Appropriations Act); and id. at Div. I, Title III; and
• Protections for entities and individuals that object to performing, assisting, counseling, or referring as pertains to suicide, assisted suicide, or advance directives: See 42 U.S.C. 290bb-36; 42 U.S.C. 14406; 42 U.S.C. 18113; and 42 U.S.C. 1396a(w)(3).
The Departments believe that the intent behind Congress' protection of moral convictions in certain health care contexts, especially to protect entities and individuals from governmental coercion, supports our decision in these interim final rules to protect sincerely held moral convictions from governmental compulsion threatened by the contraceptive Mandate.
The legislative history of the protection of moral convictions in the first Church Amendments shows that Members of Congress saw the protection as being consistent with Supreme Court decisions. Not only did Senator Church cite the abortion case
The Departments look to the description of moral convictions in
In the context of this particular Mandate, it is also worth noting that, in
The tradition of protecting moral convictions in certain health contexts is not limited to Congress. Multiple federal regulations protect objections based on moral convictions in such contexts.
Forty-five States have health care conscience protections covering objections to abortion, and several of those also cover sterilization or contraception.
The contraceptive Mandate implicates that governmental interest. Many persons and entities object to this Mandate in part because they consider some forms of FDA-approved contraceptives to be abortifacients and morally equivalent to abortion due to the possibility that some of the items may have the effect of preventing the implantation of a human embryo after fertilization. Based on our knowledge from the litigation, all of the current litigants asserting purely non-religious objections share this view, and most of the religious litigants do as well. The Supreme Court, in describing family business owners with religious objections, explained that “[t]he owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions.”
The Departments also look to guidance from the broader history of respect for conscience in the laws and founding principles of the United States. Members of Congress specifically relied on the American tradition of respect for conscience when they decided to protect moral convictions in health care. As quoted above, in supporting protecting conscience based on non-religious moral convictions, Senator Buckley declared “[i]t has been a traditional concept in our society from the earliest times that the right of conscience, like the paramount right to life from which it is derived, is sacred.” Rep. Heckler similarly stated that “the right of moral conscience . . . has always been a part of our national tradition.” This tradition is reflected, for example, in a letter President George Washington wrote saying that “[t]he Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: A policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship.”
These Founding Era statements of general principle do not specify how they would be applied in a particular health care context. We do not suggest that the specific protections offered in this rule would also be required or necessarily appropriate in any other context that does not raise the specific concerns implicated by this Mandate. These interim final rules do not address in any way how the Government would balance its interests with respect to
Protecting moral convictions, as set forth in the expanded exemptions and accommodations of these rules, is consistent with recent executive orders. President Trump's Executive Order concerning this Mandate directed the Departments to consider providing protections, not specifically for “religious” beliefs, but for “conscience.” We interpret that term to include moral convictions and not just religious beliefs. Likewise, President Trump's first Executive Order, EO 13765, declared that “the Secretary of Health and Human Services (Secretary) and the heads of all other executive departments and agencies (agencies) with authorities and responsibilities under the [ACA] shall exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.” This Mandate imposes both a cost, fee, tax, or penalty, and a regulatory burden, on individuals and purchasers of health insurance that have moral convictions opposed to providing contraceptive coverage. These interim final rules exercise the Departments' discretion to grant exemptions from the Mandate to reduce and relieve regulatory burdens and promote freedom in the health care market.
The sensitivity of certain health care matters makes it particularly important for the Government to tread carefully when engaging in regulation concerning those areas, and to respect individuals and organizations whose moral convictions are burdened by Government regulations. Providing conscience protections advances the Affordable Care Act's goal of expanding health coverage among entities and individuals that might otherwise be reluctant to participate in the market. For example, the Supreme Court in
Among the lawsuits challenging the Mandate, two have been filed based in part on non-religious moral convictions. In one case, the Departments are subject to a permanent injunction requiring us to respect the non-religious moral objections of an employer.
For additional discussion of the Government's balance of interests concerning religious beliefs issued contemporaneously with these interim final rules, see the related document published by the Department elsewhere in this issue of the
The Departments note that the exemptions created here, like the exemptions created by the last Administration, do not burden third parties to a degree that counsels against providing the exemptions. In addition to the apparent fact that many entities with non-religious moral objections to the Mandate appear to only hire persons that share those objections, Congress did not create a right to receive contraceptive coverage, and Congress explicitly chose not to impose the section 2713 requirements on grandfathered plans benefitting millions of people. Individuals who are unable to obtain contraceptive coverage through their employer-sponsored health plans because of the exemptions created in these interim final rules, or because of other exemptions to the Mandate, have other avenues for obtaining contraception, including through various other mechanisms by which the Government advances contraceptive coverage, particularly for low-income women, and which these interim final rules leave unchanged.
The Departments acknowledge that coverage of contraception is an important and highly controversial issue, implicating many different views, as reflected for example in the public comments received on multiple rulemakings over the course of implementation of section 2713(a)(4) of the PHS Act. Our expansion of conscience protections for moral convictions, similar to protections contained in numerous statutes governing health care regulation, is not taken lightly. However, after reconsidering the interests served by the Mandate in this particular context, the objections raised, and the relevant Federal law, the Departments have determined that expanding the exemptions to include protections for moral convictions is a more appropriate administrative response than continuing to refuse to extend the exemptions and accommodations to certain entities and individuals for whom the Mandate violates their sincerely held moral convictions. Although the number of organizations and individuals that may seek to take advantage of these exemptions and accommodations may be small, we believe that it is important formally to codify such protections for objections based on moral conviction, given the long-standing recognition of such protections in health care and health insurance context in law and regulation and the particularly sensitive nature of these issues in the health care context. These interim final rules leave unchanged HRSA's authority to decide whether to include contraceptives in the women's preventive services Guidelines for entities that are not exempted by law, regulation, or the Guidelines. These rules also do not change the many other mechanisms by which the Government advances contraceptive coverage, particularly for low-income women.
The Departments are issuing these interim final rules in light of the full history of relevant rulemaking (including 3 previous interim final rules), public comments, and the long-running litigation from non-religious moral objectors to the Mandate, as well as the information contained in the companion interim final rules issued elsewhere in this issue of the
For all of the reasons discussed and referenced above, the Departments have determined that the Government's interest in applying contraceptive coverage requirements to the plans of certain entities and individuals does not outweigh the sincerely held moral objections of those entities and individuals. Thus, these interim final rules amend the regulations amended in both the Departments' July 2015 final regulations and in the companion interim final rules concerning religious beliefs issued contemporaneously with these interim final rules and published elsewhere in this issue of the
These interim final rules expand those exemptions to include additional entities and persons that object based on sincerely held moral convictions. These rules leave in place HRSA's discretion to continue to require contraceptive and sterilization coverage where no objection specified in the regulations exists, and if section 2713 of the PHS Act otherwise applies. These interim final rules also maintain the existence of an accommodation process as a voluntary option for organizations with moral objections to contraceptive coverage, but consistent with our expansion of the exemption, we expand eligibility for the accommodation to include organizations with sincerely held moral convictions concerning contraceptive coverage. HRSA is simultaneously updating its Guidelines to reflect the requirements of these interim final rules.
In the new 45 CFR 147.133 as created by these interim final rules, we expand the exemption that was previously located in § 147.131(a), and that was expanded in § 147.132 by the companion interim final rules concerning religious beliefs issued contemporaneously with these interim final rules and published elsewhere in this issue of the
With respect to employers that sponsor group health plans, § 147.133(a)(1) and (a)(1)(i) provide exemptions for certain employers that object to coverage of all or a subset of contraceptives or sterilization and related patient education and counseling based on sincerely held moral convictions.
For avoidance of doubt, the Departments wish to make clear that the expanded exemption in § 147.133(a) applies to several distinct entities involved in the provision of coverage to the objecting employer's employees. This explanation is consistent with how prior rules have worked by means of similar language. Section 147.133(a)(1) and (a)(1)(i), by specifying that “[a] group health plan and health insurance coverage provided in connection with a group health plan” is exempt “to the extent the plan sponsor objects as specified in paragraph (a)(2),” exempt the group health plans the sponsors of which object, and exempt their health insurance issuers in providing the coverage in those plans (whether or not the issuers have their own objections). Consequently, with respect to Guidelines issued under § 147.130(a)(1)(iv), or the parallel provisions in 26 CFR 54.9815-2713T(a)(1)(iv) and 29 CFR 2590.715-2713(a)(1)(iv), the plan sponsor, issuer, and plan covered in the exemption of that paragraph would face no penalty as a result of omitting contraceptive coverage from the benefits of the plan participants and beneficiaries.
Consistent with the restated exemption, exempt entities will not be required to comply with a self-certification process. Although exempt entities do not need to file notices or certifications of their exemption, and these interim final rules do not impose any new notice requirements on them, existing ERISA rules governing group health plans require that, with respect to plans subject to ERISA, a plan document must include a comprehensive summary of the benefits covered by the plan and a statement of the conditions for eligibility to receive benefits. Under ERISA, the plan document provides what benefits are provided to participants and beneficiaries under the plan and, therefore, if an objecting employer would like to exclude all or a subset of contraceptive services, it must ensure that the exclusion is clear in the plan document. Moreover, if there is a reduction in a covered service or benefit, the plan has to disclose that change to plan participants.
The exemptions in § 147.133(a) apply “to the extent” of the objecting entities' sincerely held moral convictions. Thus, entities that hold a requisite objection to covering some, but not all, contraceptive items would be exempt with respect to the items to which they object, but not with respect to the items to which they do not object. Likewise, the requisite objection of a plan sponsor or institution of higher education in § 147.133(a)(1)(i) and (ii) exempts its group health plan, health insurance coverage offered by a health insurance issuer in connection with such plan, and its issuer in its offering of such coverage, but that exemption does not extend to coverage provided by that issuer to other group health plans where the plan sponsors have no qualifying objection. The objection of a health insurance issuer in § 147.133(a)(1)(iii) similarly operates only to the extent of its objection, and as otherwise limited as described below.
The rules cover certain kinds of non-governmental employer plan sponsors with the requisite objections, and the rules specify which kinds of entities qualify for the exemption.
Under these interim final rules, the Departments do not limit the exemption with reference to nonprofit status as previous rules have done. Many of the federal health care conscience statutes cited above offer protections for the moral convictions of entities without regard to whether they operate as nonprofits or for-profit entities. In addition, a significant majority of states either impose no contraceptive coverage requirement, or offer broader exemptions than the exemption contained in the July 2015 final regulations.
Section 147.133(a)(1)(i)(A) of the rules specifies that the exemption includes the plans of a plan sponsor that is a nonprofit organization with sincerely held moral convictions.
Section 147.133(a)(1)(i)(B) of the rules specifies that the exemption includes the plans of a plan sponsor that is a for-profit entity that has no publicly traded ownership interests (for this purpose, a publicly traded ownership interest is any class of common equity securities required to be registered under section 12 of the Securities Exchange Act of 1934).
Extending the exemption to certain for-profit entities is consistent with the Supreme Court's ruling in
The July 2015 final regulations extended the accommodation to for-profit entities only if they are closely held, by positively defining what constitutes a closely held entity. Any such positive definition runs up against the myriad state differences in defining such entities, and potentially intrudes into a traditional area of state regulation of business organizations. The Departments implicitly recognized the difficulty of defining closely held entities in the July 2015 final regulations when we adopted a definition that included entities that are merely “substantially similar” to certain specified parameters, and we allowed entities that were not sure if they met the definition to inquire with HHS; HHS was permitted to decline to answer the inquiry, at which time the entity would be deemed to qualify as an eligible organization. Instead of attempting to positively define closely held businesses for the purpose of this rule, the Departments consider it much more clear, effective, and preferable to define the category negatively by reference to one element of our previous definition, namely, that the entity has no publicly traded ownership interest (that is, any class of common equity securities required to be registered under section 12 of the Securities Exchange Act of 1934).
In this way, these interim final rules differ from the exemption provided to plan sponsors with objections based on sincerely held religious beliefs set forth in § 147.132(a)(1)—those extend to for-profit entities whether or not they are closely held or publicly traded. The Departments seek public comment on whether the exemption in § 147.133(a)(1)(i) for plan sponsors with moral objections to the Mandate should be finalized to encompass all of the types of plan sponsors covered by § 147.132(a)(1)(i), including publicly traded corporations with objections based on sincerely held moral convictions, and also non-federal governmental plan sponsors that may have objections based on sincerely held moral convictions.
In the case of particularly sensitive health care matters, several significant federal health care conscience statutes protect entities' moral objections without precluding publicly traded and governmental entities from using those protections. For example, the first paragraph of the Church Amendments provides certain protections for entities that object based on moral convictions to making their facilities or personnel available to assist in the performance of abortions or sterilizations, and the statute does not limit those protections based on whether the entities are publicly traded or governmental. (42 U.S.C. 300a-7(b)). Thus, under section 300a-7(b), a hospital in a publicly traded health system, or a local governmental hospital, could adopt sincerely held moral convictions by which it objects to providing facilities or personnel for abortions or sterilizations, and if the entity receives relevant funds from HHS specified by section 300a-7(b), the protections of that section would apply. The Coats-Snowe Amendment likewise provides certain protections for health care entities and postgraduate physician training programs that choose not to perform, refer for, or provide training for abortions, and the statute does not limit those protections based on whether the entities are publicly traded or governmental. (42 U.S.C. 238n).
The Weldon Amendment
Sections 1395w-22(j)(3)(B) and 1396u-2(b)(3) of 42 U.S.C. protect organizations that offer Medicaid and Medicare Advantage managed care plans from being required to provide, reimburse for, or provide coverage of a counseling or referral service if they object to doing so on moral grounds, and those paragraphs do not further specify that publicly traded entities do not qualify for the protections. Congress' most recent statement on Government requirements of contraceptive coverage specified that, if the District of Columbia requires “the provision of contraceptive coverage by health insurance plans,” “it is the intent of Congress that any legislation enacted on such issue should include a `conscience clause' which provides exceptions for religious beliefs and moral convictions.” Consolidated Appropriations Act of 2017, Division C, Title VIII, Sec. 808. Congress expressed no intent that such a conscience should be limited based on whether the entity is publicly traded.
At the same time, the Departments lack significant information about the need to extend the expanded exemption further. We have been subjected to litigation by nonprofit entities expressing objections to the Mandate based on non-religious moral convictions, and we have been sued by closely held for-profit entities expressing religious objections. This combination of different types of plaintiffs leads us to believe that there may be a small number of closely held for-profit entities that would seek to use an exemption to the contraceptive Mandate based on moral convictions. The fact that many closely held for-profit entities brought challenges to the Mandate has led us to offer protections that would include publicly traded entities with religious objections to the Mandate if such entities exist. But the combined lack of any lawsuits challenging the Mandate by for-profit entities with non-religious moral convictions, and of any lawsuits by any kind of publicly traded entity, leads us to not extend the expanded exemption in these interim final rules to publicly traded entities, but rather to invite public comment on whether to do so in
Despite our a lack of complete information, the Departments know that nonprofit entities have challenged the Mandate, and we assume that a closely held business might wish to assert non-religious moral convictions in objecting to the Mandate (although we anticipate very few if any will do so). Thus we have chosen in these interim final rules to include them in the expanded exemption and thereby remove an obstacle preventing such entities from claiming an exemption based on non-religious moral convictions. But we are less certain that we need to use these interim final rules to extend the expanded exemption for moral convictions to encompass other kinds of plan sponsors not included in the protections of these interim final rules. Therefore, with respect to plan sponsors not included in the expanded exemptions of § 147.133(a)(1)(i), and non-federal governmental plan sponsors that might have moral objections to the Mandate, we invite public comment on whether to include such entities when we finalize these rules at a later date.
The Departments further conclude that it would be inadequate to merely provide entities access to the accommodation process instead of to the exemption where those entities object to the Mandate based on sincerely held moral convictions. The Departments have stated in our regulations and court briefings that the existing accommodation with respect to self-insured plans requires contraceptive coverage as part of the same plan as the coverage provided by the employer, and operates in a way “seamless” to those plans. As a result, in significant respects, the accommodation process does not actually accommodate the objections of many entities. This has led many religious groups to challenge the accommodation in court, and we expect similar challenges would come from organizations objecting to the accommodation based on moral convictions if we offered them the accommodation but not an exemption. When we took that narrow approach with religious nonprofit entities it led to multiple cases in many courts that we needed to litigate to the Supreme Court various times. Although objections to the accommodation were not specifically litigated in the two cases brought by nonprofit non-religious organizations (because we have not even made them eligible for the accommodation), those organizations made it clear that they and their employees strongly oppose coverage of certain contraceptives in their plans and in connection with their plans.
The plans of institutions of higher education that arrange student health insurance coverage will be treated similarly to the way that plans of employers are treated for the purposes of such plans being exempt or accommodated based on moral convictions. These interim final rules specify, in § 147.133(a)(1)(ii), that the exemption is extended, in the case of institutions of higher education (as defined in 20 U.S.C. 1002), to their arrangement of student health insurance coverage, in a manner comparable to the applicability of the exemption for group health insurance coverage provided in connection with a group health plan established or maintained by a plan sponsor.
The Departments are not aware of institutions of higher education that arrange student coverage and object to the Mandate based on non-religious moral convictions. We have been sued by several institutions of higher education that arrange student coverage and object to the Mandate based on religious beliefs. We believe the existence of such entities with non-religious moral objections, or the possible formation of such entities in the future, is sufficiently possible so that we should provide protections for them in these interim final rules. But based on a lack of information about such entities, we assume that none will use the exemption concerning student coverage at this time.
These interim final rules extend the exemption, in § 147.133(a)(1)(iii), to health insurance issuers offering group or individual health insurance coverage that sincerely hold their own moral convictions opposed to providing coverage for contraceptive services.
As discussed above, where the exemption for plan sponsors or institutions of higher education applies, issuers are exempt under those sections with respect to providing coverage in those plans. The issuer exemption in § 147.133(a)(1)(iii) adds to that protection, but the additional protection operates in a different way than the plan sponsor exemption operates. The only plan sponsors, or in the case of individual insurance coverage, individuals, who are eligible to purchase or enroll in health insurance coverage offered by an exempt issuer that does not cover some or all contraceptive services are plan sponsors or individuals who themselves object and are otherwise exempt based on their objection (whether the objection is based on moral convictions, as set forth in these rules, or on religious beliefs, as set forth in exemptions created by the companion interim final rules published elsewhere in this issue of the
Under the rules as amended, issuers with objections based on sincerely held moral convictions could issue policies that omit contraception to plan sponsors or individuals that are otherwise exempt based on either their religious beliefs or their moral convictions, and issuers with sincerely held religious beliefs could likewise issue policies that omit contraception to plan sponsors or individuals that are otherwise exempt based on either their religious beliefs or their moral convictions.
Issuers that hold moral objections should identify to plan sponsors the
In this way, the issuer exemption serves to protect objecting issuers both from being asked or required to issue policies that cover contraception in violation of the issuers' sincerely held moral convictions, and from being asked or required to issue policies that omit contraceptive coverage to non-exempt entities or individuals, thus subjecting the issuers to potential liability if those plans are not exempt from the Guidelines. At the same time, the issuer exemption will not serve to remove contraceptive coverage obligations from any plan or plan sponsor that is not also exempt, nor will it prevent other issuers from being required to provide contraceptive coverage in individual insurance coverage. Protecting issuers that object to offering contraceptive coverage based on sincerely held moral convictions will help preserve space in the health insurance market for certain issuers so that exempt plan sponsors and individuals will be able to obtain coverage.
The Departments are not currently aware of health insurance issuers that possess their own religious or moral objections to offering contraceptive coverage. Nevertheless, many Federal health care conscience laws and regulations protect issuers or plans specifically. For example, as discussed above, 42 U.S.C. 1395w-22(j)(3)(B) and 1396u-2(b)(3) protect plans or managed care organizations in Medicaid or Medicare Advantage. The Weldon Amendment protects HMOs, health insurance plans, and any other health care organizations from being required to provide coverage or pay for abortions.
The issuer exemption does not specifically include third party administrators, for the reasons discussed in the companion interim final rules concerning religious beliefs issued contemporaneously with these interim final rules and published elsewhere in this issue of the
Exemptions for objecting entities specify that they apply where the entities object as specified in § 147.133(a)(2). That section specifies that exemptions for objecting entities will apply to the extent that an entity described in § 147.133(a)(1) objects to its establishing, maintaining, providing, offering, or arranging (as applicable) for coverage, payments, or a plan that provides coverage or payments for some or all contraceptive services, based on its sincerely held moral convictions.
These interim final rules include a special rule pertaining to individuals (referred to here as the “individual exemption”). Section 147.133(b) provides that nothing in § 147.130(a)(1)(iv), 26 CFR 54.9815-2713T(a)(1)(iv) and 29 CFR 2590.715-2713(a)(1)(iv), may be construed to prevent a willing plan sponsor of a group health plan and/or a willing health insurance issuer offering group or individual health insurance coverage, from offering a separate benefit package option, or a separate policy, certificate, or contract of insurance, to any individual who objects to coverage or payments for some or all contraceptive services based on the individual's sincerely held moral convictions. The individual exemption extends to the coverage unit in which the plan participant, or subscriber in the individual market, is enrolled (for instance, to family coverage covering the participant and his or her beneficiaries enrolled under the plan), but does not relieve the plan's or issuer's obligation to comply with the Mandate with respect to the group health plan at large or, as applicable, to any other individual policies the issuer offers.
This individual exemption allows plan sponsors and issuers that do not specifically object to contraceptive coverage to offer morally acceptable coverage to their participants or subscribers who do object, while offering coverage that includes contraception to participants or subscribers who do not object. This individual exemption can apply with respect to individuals in plans sponsored by private employers or governmental employers. For example, in one case brought against the Departments, the State of Missouri enacted a law under which the State is not permitted to discriminate against insurance issuers that offer health plans without coverage for contraception based on employees' moral convictions, or against the individual employees who accept such offers.
This “individual exemption” cannot be used to force a plan (or its sponsor) or an issuer to provide coverage omitting contraception, or, with respect to health insurance coverage, to prevent the application of state law that requires coverage of such contraceptives or sterilization. Nor can the individual exemption be construed to require the guaranteed availability of coverage omitting contraception to a plan sponsor or individual who does not have a sincerely held moral objection. This individual exemption is limited to the requirement to provide contraceptive coverage under section 2713(a)(4) of the PHS Act, and does not affect any other federal or state law governing the plan or coverage. Thus, if there are other applicable laws or plan terms governing the benefits, these interim final rules do not affect such other laws or terms.
The Departments believe the individual exemption will help to meet the Affordable Care Act's goal of increasing health coverage because it will reduce the incidence of certain individuals choosing to forego health coverage because the only coverage available would violate their sincerely held moral convictions.
For similar reasons, we have changed our position and now believe the individual exemption will not undermine any Government interest in uniformity in the health insurance market. At the level of plan offerings, the extent to which plans cover contraception under the prior rules is already far from uniform. The Congress did not require compliance with section 2713 of the PHS Act by all entities—in particular by grandfathered plans. The Departments' previous exemption for houses of worship and integrated auxiliaries, and our accommodation of self-insured church plans, show that the importance of a uniform health insurance system is not significantly harmed by allowing plans to omit contraception in many contexts.
With respect to operationalizing this provision of these rules, as well as the similar provision protecting individuals with religious objections to purchasing insurance that covers some or all contraceptives, in the interim final rules published elsewhere in this issue of the
In addition to expanding the exemption to those with sincerely held moral convictions, these rules also expand eligibility for the optional accommodation process to include employers with objections based on sincerely held moral convictions. This is accomplished by inserting references to the newly added exemption for moral convictions, 45 CFR 147.133, into the regulatory sections where the accommodation process is codified, 45 CFR 147.131, 26 CFR 54.9815-2713AT, and 29 CFR 2590.715-2713A. In all other respects the accommodation process works the same as it does for entities with objections based on sincerely held religious beliefs, as described in the companion interim final rules concerning religious beliefs issued contemporaneously with these interim final rules and published elsewhere in this issue of the
The Departments are not aware of entities with objections to the Mandate based on sincerely held moral convictions that wish to make use of the optional accommodation, and our present assumption is that no such entities will seek to use the accommodation rather than the exemption. But if such entities do wish to use the accommodation, making it available to them will both provide contraceptive coverage to their plan participants and respect those entities' objections. Because entities with objections to the Mandate based on sincerely held non-religious moral convictions have not previously had access to the accommodation, they would not be in a position to revoke their use of the accommodation at the time these interim final rules are issued, but could do so in the future under the same parameters set forth in the accommodation regulations.
These interim final rules insert references to 45 CFR 147.133 into the restatements of the requirements of section 2713(a) and (a)(4) of the PHS Act, contained in 26 CFR 54.9815-2713T(a)(1) introductory text and (a)(1)(iv), 29 CFR 2590.715-2713(a)(1) introductory text and (a)(1)(iv), and 45 CFR 147.130(a)(1) and (a)(1)(iv).
The Departments believe that the Guidelines, and the expanded exemptions and accommodations set forth in these interim final rules, will advance the legitimate but limited purposes for which Congress imposed section 2713 of the PHS Act, while acting consistently with Congress' well-established record of allowing for moral exemptions with respect to various health care matters. These interim final rules maintain HRSA's discretion to decide whether to continue to require contraceptive coverage under the Guidelines if no regulatorily recognized exemption exists (and in plans where Congress applied section 2713 of the PHS Act). As cited above, these interim final rules also leave fully in place over a dozen Federal programs that provide, or subsidize, contraceptives for women, including for low income women based on financial need. The Departments believe this array of programs and requirements better serves the interests of providing contraceptive coverage while protecting the moral convictions of entities and individuals concerning coverage of some or all contraceptive or sterilization services.
The Departments request and encourage public comments on all matters addressed in these interim final rules.
Section 9833 of the Code, section 734 of ERISA, and section 2792 of the PHS Act authorize the Secretaries of the Treasury, Labor, and HHS (collectively, the Secretaries) to promulgate any interim final rules that they determine are appropriate to carry out the provisions of chapter 100 of the Code, part 7 of subtitle B of title I of ERISA, and part A of title XXVII of the PHS Act, which include sections 2701 through 2728 of the PHS Act and the incorporation of those sections into section 715 of ERISA and section 9815 of the Code. These interim final rules fall under those statutory authorized justifications, as did previous rules on this matter (75 FR 41726; 76 FR 46621; and 79 FR 51092).
Section 553(b) of the APA requires notice and comment rulemaking, involving a notice of proposed rulemaking and a comment period prior
Even if these provisions of the APA applied, they would be satisfied: The Departments have determined that it would be impracticable and contrary to the public interest to delay putting these provisions in place until a full public notice-and-comment process is completed. As discussed earlier, the Departments have issued three interim final rules implementing this section of the PHS Act because of the immediate needs of covered entities and the weighty matters implicated by the HRSA Guidelines. As recently as December 20, 2016, HRSA updated those Guidelines without engaging in the regulatory process (because doing so is not a legal requirement), and announced that it plans to so continue to update the Guidelines.
Two lawsuits have been pending for several years by entities raising non-religious moral objections to the Mandate.
For entities and individuals facing a burden on their sincerely held moral convictions, providing them relief from Government regulations that impose such a burden is an important and urgent matter, and delay in doing so injures those entities in ways that cannot be repaired retroactively. The burdens of the existing rules undermine these entities' and individuals' participation in the health care market because they provide them with a serious disincentive—indeed a crisis of conscience—between participating in or providing quality and affordable health insurance coverage and being forced to violate their sincerely held moral convictions. The existence of inconsistent court rulings in multiple proceedings has also caused confusion and uncertainty that has extended for several years, with different federal courts taking different positions on whether entities with moral objections are entitled to relief from the Mandate. Delaying the availability of the expanded exemption would require entities to bear these burdens for many more months. Continuing to apply the Mandate's regulatory burden on individuals and organizations with moral convictions objecting to compliance with the Mandate also serves as a deterrent for citizens who might consider forming new entities consistent with their moral convictions and offering health insurance through those entities.
Moreover, we separately expanded exemptions to protect religious beliefs in the companion interim final rules issued contemporaneously with these interim final rules and published elsewhere in this issue of the
In response to several of the previous rules on this issue—including three issued as interim final rules under the statutory authority cited above—the Departments received more than 100,000 public comments on multiple occasions. Those comments included extensive discussion about whether and to what extent to expand the exemption. Most recently, on July 26, 2016, the Departments issued a request for information (81 FR 47741) and received over 54,000 public comments about different possible ways to resolve these issues. As noted above, the public comments in response to both the RFI and various prior rulemaking proceedings included specific requests that the exemptions be expanded to include those who oppose the Mandate for either religious or “moral” reasons.
As the U.S. Court of Appeals for the D.C. Circuit stated with respect to an earlier IFR promulgated with respect to this issue in
Delaying the availability of the expanded exemption could also increase the costs of health insurance for some entities. As reflected in litigation pertaining to the Mandate, some entities are in grandfathered health plans that do not cover
These interim final rules also expand access to the optional accommodation process for certain entities with objections to the Mandate based on moral convictions. If entities exist that wish to use that process, the Departments believe they should be able to do so without the delay that would be involved by not offering them the optional accommodation process by use of interim final rules. Proceeding otherwise could delay the provision of contraceptive coverage to those entities' employees.
For the foregoing reasons, the Departments have determined that it would be impracticable and contrary to the public interest to engage in full notice and comment rulemaking before putting these interim final rules into effect, and that it is in the public interest to promulgate interim final rules. For the same reasons, the Departments have determined, consistent with section 553(d) of the APA (5 U.S.C. 553(d)), that there is good cause to make these interim final rules effective immediately upon filing for public inspection at the Office of the Federal Register.
We have examined the impacts of the interim final rules 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 Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999), the Congressional Review Act (5 U.S.C. 804(2) and Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs (January 30, 2017).
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, and 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.
Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a regulation: (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 must be prepared for major rules with economically significant effects ($100 million or more in any one year), and an “economically significant” regulatory action is subject to review by the Office of Management and Budget (OMB). As discussed below regarding anticipated effects of these rules and the Paperwork Reduction Act, these interim final rules are not likely to have economic impacts of $100 million or more in any one year, and therefore do not meet the definition of “economically significant” under Executive Order 12866. However, OMB has determined that the actions are significant within the meaning of section 3(f)(4) of the Executive Order. Therefore, OMB has reviewed these final regulations and the Departments have provided the following assessment of their impact.
These interim final rules amend the Departments' July 2015 final regulations and do so in conjunction with the amendments made in the companion interim final rules concerning religious beliefs issued contemporaneously with these interim final rules and published elsewhere in this issue of the
The Departments acknowledge that expanding the exemption to include objections based on moral convictions might result in less insurance coverage of contraception for some women who may want the coverage. Although the Departments do not know the exact scope of that effect attributable to the moral exemption in these interim final rules, they believe it to be small.
With respect to the expanded exemption for nonprofit organizations, as noted above the Departments are aware of two small nonprofit
We also assume that those nine entities will operate in a fashion similar to the two similar entities of which we are aware, so that their employees will likely share their views against coverage of certain contraceptives. This is consistent with our conclusion in previous rules that no significant burden or costs would result from exempting houses of worship and integrated auxiliaries. (
A similar assumption is supported with respect to the expanded exemption for nonprofit organizations. To our knowledge, the vast majority of organizations objecting to the Mandate assert religious beliefs. The only nonprofit organizations of which we are aware that possess non-religious moral convictions against some or all contraceptive methods only hire persons who share their convictions. It is possible that the exemption for nonprofit organizations with moral convictions in these interim final rules could be used by a nonprofit organization that employs persons who do not share the organization's views on contraception, but it was also possible under our previous rules that a house of worship or integrated auxiliary could employ persons who do not share their views on contraception.
These interim final rules expand the exemption to include institutions of higher education that arrange student coverage and have non-religious moral objections to the Mandate, and they make exempt entities with moral objections eligible to use the accommodation. The Departments are not aware of either kind of entity. We believe the number of entities that object to the Mandate based on non-religious moral convictions is already very small. The only entities of which we are aware that have raised such objections are not institutions of higher education, and appear to hold objections that we assume would likely lead them to reject the accommodation process. Therefore, for the purposes of estimating the anticipated effect of these interim final rules on contraceptive coverage of women who wish to receive such coverage, we assume that—at this time—no entities with non-religious moral objections to the Mandate will be institutions of higher education that arrange student coverage, and no entities with non-religious moral objections will opt into the accommodation. We wish to make the expanded exemption and accommodation available to such entities in case they do exist or might come into existence, based on similar reasons to those given above for why the exemptions and accommodations are extended to other entities. We invite public comment on whether and how many such entities will make use of these interim final rules.
The expanded exemption for issuers will not result in a distinct effect on contraceptive coverage for women who wish to receive it because that exemption only applies in cases where plan sponsors or individuals are also otherwise exempt, and the effect of those exemptions is discussed elsewhere herein. The expanded exemption for individuals that oppose contraceptive coverage based on sincerely held moral convictions will provide coverage that omits contraception for individuals that object to contraceptive coverage.
The expanded moral exemption would also cover for-profit entities that do not have publicly traded ownership interests, and that have non-religious moral objections to the Mandate. The Departments are not aware of any for-profit entities that possess non-religious moral objections to the Mandate. However, scores of for-profit entities have filed suit challenging the Mandate. Among the over 200 entities that brought legal challenges, only two entities (less than 1 percent) raised non-religious moral objections—both were nonprofit. Among the general public polls vary about religious beliefs, but one prominent poll shows that 89 percent of Americans say they believe in God.
The expanded exemption encompassing certain for-profit entities could result in the removal of contraceptive coverage from women who do not share their employers' views. The Departments used data from the Current Population Survey (CPS) and the Medical Expenditure Panel Survey-Insurance Component (MEPS-IC) to obtain an estimate of the number of policyholders that will be covered by the plans of the nine for-profit entities we assume may make use of these expanded exemptions.
The Departments estimate that these interim final rules will not result in any additional burden or costs on issuers or third party administrators. As discussed above, we assume that no entities with non-religious moral convictions will use the accommodation, although we wish to make it available in case an entity voluntarily opts into it in order to allow contraceptive coverage to be provided to its plan participants and beneficiaries. Finally, because the accommodation process was not previously available to entities that possess non-religious moral objections to the Mandate, we do not anticipate that these interim final rules will result in any burden from such entities revoking their accommodated status.
The Departments believe the foregoing analysis represents a reasonable estimate of the likely impact under the rules expanded exemptions. The Departments acknowledge uncertainty in the estimate and therefore conducted a second analysis using an alternative framework, which is set forth in the companion interim final rule concerning religious beliefs issued contemporaneously with this interim final rule and published elsewhere in this issue of the
We reiterate the rareness of instances in which we are aware that employers assert non-religious objections to contraceptive coverage based on sincerely held moral convictions, as discussed above, and also that in the few instances where such an objection has been raised, employees of such employers also opposed contraception.
We request comment on all aspects of the preceding regulatory impact analysis.
For purposes of the Department of the Treasury, certain Internal Revenue Service (IRS) regulations, including this one, are exempt from the requirements in Executive Order 12866, as supplemented by Executive Order 13563. The Departments estimate that the likely effect of these interim final rules will be that entities will use the exemption and not the accommodation. Therefore, a regulatory assessment is not required.
The Regulatory Flexibility Act (5 U.S.C. 601
Nevertheless, the Departments carefully considered the likely impact of the rule on small entities in connection with their assessment under Executive Order 12866. The Departments do not expect that these interim final rules will have a significant economic effect on a substantial number of small entities, because they will not result in any additional costs to affected entities. Instead, by exempting from the Mandate small businesses and nonprofit organizations with moral objections to some or all contraceptives and/or sterilization, the Departments have reduced regulatory burden on small entities. Pursuant to section 7805(f) of the Code, these regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.
Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
We estimate that these interim final rules will not result in additional burdens not accounted for as set forth in the companion interim final rules concerning religious beliefs issued contemporaneously with these interim final rules and published elsewhere in this issue of the
As discussed above, however, we assume that no entities with non-religious moral objections to the Mandate will use the accommodation, and we know that no such entities were eligible for it until now, so that they do not possess accommodated status to revoke. Therefore we believe that the burden for these ICRs is accounted for in the collection approved under OMB Control Numbers 0938-1248 and 0938-1292, as described in the interim final rules concerning religious beliefs issued contemporaneously with these interim final rules.
We are soliciting comments on all of the possible information collection requirements contained in these interim final rules, including those discussed in the companion interim final rules concerning religious beliefs issued contemporaneously with these interim final rules and published elsewhere in this issue of the
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
If you comment on these information collections, that is, reporting, recordkeeping or third-party disclosure requirements, please submit your comments electronically as specified in the
Under the Paperwork Reduction Act, an agency may not conduct or sponsor, and an individual is not required to respond to, a collection of information unless it displays a valid OMB control number. In accordance with the requirements of the PRA, the ICR for the EBSA Form 700 and alternative notice have previously been approved by OMB under control numbers 1210-0150 and 1210-0152. A copy of the ICR may be obtained by contacting the PRA addressee shown below or at
Consistent with the analysis in the HHS PRA section above, although these interim final rules make entities with certain moral convictions eligible for the accommodation, we assume that no entities will use it rather than the exemption, and such entities were not previously eligible for the accommodation so as to revoke it. Therefore we believe these interim final rules do not involve additional burden not accounted for under OMB control number 1210-0150.
Regarding the ICRs discussed in the companion interim final rules concerning religious beliefs issued contemporaneously with these interim final rules and published elsewhere in this issue of the
Executive Order 13765 (January 20, 2017) directs that, “[t]o the maximum extent permitted by law, the Secretary of Health and Human Services (Secretary) and the heads of all other executive departments and agencies (agencies) with authorities and responsibilities under the Act shall exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.” In addition, agencies are directed to “take all actions consistent with law to minimize the unwarranted economic and regulatory burdens of the [Affordable Care Act], and prepare to afford the States more flexibility and control to create a more free and open healthcare market.” These interim final rules exercise the discretion provided to the Departments under the Affordable Care Act and other laws to grant exemptions and thereby minimize regulatory burdens of the Affordable Care Act on the affected entities and recipients of health care services.
Consistent with Executive Order 13771 (82 FR 9339, February 3, 2017), we have estimated the costs and cost savings attributable to this interim final rule. As discussed in more detail in the preceding analysis, this interim final rule lessens incremental reporting costs.
The Unfunded Mandates Reform Act of 1995 (section 202(a) of Pub. L. 104-4), requires the Departments to prepare a written statement, which includes an assessment of anticipated costs and benefits, before issuing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $148 million, using the most current (2016) Implicit Price Deflator for the Gross Domestic Product. For purposes of the Unfunded Mandates Reform Act, these interim final rules do not include any Federal mandate that may result in expenditures by State, local, or tribal governments, nor do they include any Federal mandates that may impose an annual burden of $100 million, adjusted for inflation, or more on the private sector.
Executive Order 13132 outlines fundamental principles of federalism, and requires the adherence to specific criteria by Federal agencies in the process of their formulation and implementation of policies that have “substantial direct effects” on States, the relationship between the Federal Government and States, or the distribution of power and responsibilities among the various levels of Government. Federal agencies promulgating regulations that have these federalism implications must consult with state and local officials, and describe the extent of their consultation and the nature of the concerns of state and local officials in the preamble to the regulation.
These interim final rules do not have any Federalism implications, since they only provide exemptions from the contraceptive and sterilization coverage requirement in HRSA Guidelines supplied under section 2713 of the PHS Act.
The Department of the Treasury temporary regulations are adopted pursuant to the authority contained in sections 7805 and 9833 of the Code.
The Department of Labor regulations are adopted pursuant to the authority contained in 29 U.S.C. 1002(16), 1027, 1059, 1135, 1161-1168, 1169, 1181-1183, 1181 note, 1185, 1185a, 1185b, 1185d, 1191, 1191a, 1191b, and 1191c; sec. 101(g), Public Law 104-191, 110 Stat. 1936; sec. 401(b), Public Law 105-200, 112 Stat. 645 (42 U.S.C. 651 note); sec. 512(d), Public Law 110-343, 122 Stat. 3881; sec. 1001, 1201, and 1562(e), Public Law 111-148, 124 Stat. 119, as amended by Public Law 111-152, 124 Stat. 1029; Secretary of Labor's Order 1-2011, 77 FR 1088 (Jan. 9, 2012).
The Department of Health and Human Services regulations are adopted pursuant to the authority contained in sections 2701 through 2763, 2791, and 2792 of the PHS Act (42 U.S.C. 300gg through 300gg-63, 300gg-91, and 300gg-92), as amended; and Title I of the Affordable Care Act, sections 1301-1304, 1311-1312, 1321-1322, 1324, 1334, 1342-1343, 1401-1402, and 1412, Pub. L. 111-148, 124 Stat. 119 (42 U.S.C. 18021-18024, 18031-18032, 18041-18042, 18044, 18054, 18061, 18063, 18071, 18082, 26 U.S.C. 36B, and 31 U.S.C. 9701).
Excise taxes, Health care, Health insurance, Pensions, Reporting and recordkeeping requirements.
Continuation coverage, Disclosure, Employee benefit plans, Group health plans, Health care, Health insurance, Medical child support, Reporting and recordkeeping requirements.
Health care, Health insurance, Reporting and recordkeeping
For the reasons set forth in this preamble, 26 CFR part 54 is amended as follows:
26 U.S.C. 7805. * * *
For the reasons set forth in the preamble, the Department of Labor amends 29 CFR part 2590 as follows:
29 U.S.C. 1027, 1059, 1135, 1161-1168, 1169, 1181-1183, 1181 note, 1185, 1185a, 1185b, 1191, 1191a, 1191b, and 1191c; sec. 101(g), Pub. L. 104-191, 110 Stat. 1936; sec. 401(b), Pub. L. 105-200, 112 Stat. 645 (42 U.S.C. 651 note); sec. 512(d), Pub. L. 110-343, 122 Stat. 3881; sec. 1001, 1201, and 1562(e), Pub. L. 111-148, 124 Stat. 119, as amended by Pub. L. 111-152, 124 Stat. 1029; Division M, Pub. L. 113-235, 128 Stat. 2130; Secretary of Labor's Order 1-2011, 77 FR 1088 (Jan. 9, 2012).
For the reasons set forth in the preamble, the Department of Health and Human Services amends 45 CFR part 147 as follows:
Secs 2701 through 2763, 2791, and 2792 of the Public Health Service Act (42 U.S.C. 300gg through 300gg-63, 300gg-91, and 300gg-92), as amended.
(a)
(i) A group health plan and health insurance coverage provided in connection with a group health plan to the extent one of the following non-governmental plan sponsors object as specified in paragraph (a)(2) of this section:
(A) A nonprofit organization; or
(B) A for-profit entity that has no publicly traded ownership interests (for this purpose, a publicly traded ownership interest is any class of common equity securities required to be registered under section 12 of the Securities Exchange Act of 1934);
(ii) An institution of higher education as defined in 20 U.S.C. 1002 in its arrangement of student health insurance coverage, to the extent that institution objects as specified in paragraph (a)(2) of this section. In the case of student health insurance coverage, this section is applicable in a manner comparable to its applicability to group health insurance coverage provided in connection with a group health plan established or maintained by a plan sponsor that is an employer, and references to “plan participants and beneficiaries” will be interpreted as references to student enrollees and their covered dependents; and
(iii) A health insurance issuer offering group or individual insurance coverage to the extent the issuer objects as specified in paragraph (a)(2) of this section. Where a health insurance issuer providing group health insurance coverage is exempt under paragraph (a)(1)(iii) of this section, the group health plan established or maintained by the plan sponsor with which the health insurance issuer contracts remains subject to any requirement to provide coverage for contraceptive services under Guidelines issued under § 147.130(a)(1)(iv) unless it is also exempt from that requirement.
(2) The exemption of this paragraph (a) will apply to the extent that an entity described in paragraph (a)(1) of this section objects to its establishing, maintaining, providing, offering, or arranging (as applicable) coverage or payments for some or all contraceptive services, or for a plan, issuer, or third party administrator that provides or arranges such coverage or payments, based on its sincerely held moral convictions.
(b)
(c)
(d)
Postal Service
Notice of a change in rates of general applicability for competitive products.
This notice sets forth changes in rates of general applicability for #petitive products.
Elizabeth A. Reed, 202-268-3179.
Pursuant to their authority under 39 U.S.C. 3632, the Governors of the Postal Service established prices for competitive products. The Governors' Decisions and the record of proceedings in connection with such decisions are reprinted below in accordance with section 3632(b)(2).
Pursuant to authority under section 3632 of title 39, as amended by the Postal Accountability and Enhancement Act of 2006 (“PAEA”), the Governors establish new prices of general applicability for the Postal Service's shipping services (competitive products). The price changes are described generally below, with a schedule of the new prices in the attachment.
The changes I establish should enable each competitive product to cover its attributable costs (39 U.S.C. § 3633(a)(2)) and should result in competitive products as a whole complying with 39 U.S.C. § 3633(a)(3), which, as implemented by 39 C.F.R. § 3015.7(c), requires competitive products collectively to contribute a minimum of 5.5 percent to the Postal Service's institutional costs. Accordingly, no issue of subsidization of competitive products by market dominant products should arise (39 U.S.C. § 3633(a)(1)). I therefore find that the new prices are in accordance with 39 U.S.C. §§ 3632-3633 and 39 C.F.R. § 3015.2.
Overall, the Priority Mail Express price change represents a 3.9 percent increase. The existing structure of zoned Retail, Commercial Base, and Commercial Plus price categories is maintained, with Commercial Base and Commercial Plus prices continuing to be set equal to each other.
Retail prices will increase an average of 3.9 percent. The price for the Retail Flat Rate Envelope, a significant portion of all Priority Mail Express volume, is increasing to $24.70.
The Commercial Base price category offers lower prices to customers who use online and other authorized postage payment methods. The Commercial Base prices will increase 3.7 percent on average. Commercial Base prices will be set at an average 11.3 percent discount off of Retail prices.
The Commercial Plus price category has traditionally offered even lower prices to large-volume customers. However, recognizing that the Postal Service is at a competitive disadvantage in the marketplace by publishing these highly discounted prices that are viewable by all customers, Commercial Plus prices were matched to the Commercial Base prices in 2016 and 2017, and will continue to be in 2018. For January, Commercial Plus prices as a whole will receive a 3.7 percent increase.
On average, the Priority Mail prices will be increased by 3.9 percent. The existing structure of Priority Mail Retail, Commercial Base, and Commercial Plus price categories is maintained.
Retail prices will increase an average of 0.8 percent. Retail Flat Rate Box prices will be: Small, $7.20; Medium, $13.65; Large, $18.90 and Large APO/FPO/DPO, $17.40. The regular Flat Rate Envelope will be priced at $6.70, with the Legal Size and Padded Flat Rate Envelopes priced at $7.00 and $7.25, respectively.
The Commercial Base price category offers lower prices to customers using authorized postage payment methods. The Commercial Base prices will increase 6.2 percent on average. Commercial Base prices will, on average, reflect a 9.4 percent discount off of Retail prices.
The Commercial Plus price category has traditionally offered even lower prices to large-volume customers. For January, Commercial Plus prices as a whole will receive a 6.1 percent increase and will average 12.7 percent off Retail prices.
On average, prices for non-Lightweight Parcel Select, the Postal Service's bulk ground shipping product, will increase 4.9 percent. Prices for Parcel Select Lightweight will increase by 7.0 percent.
Parcel Return Service prices will have an overall price increase of 4.9 percent. Prices for parcels retrieved at a return Sectional Center Facility (RSCF) will increase by 5.2 percent, and prices for parcels picked up at a return delivery unit (RDU) will increase 4.6 percent.
First-Class Package Service continues to be positioned as a lightweight (less than one pound) offering used by businesses for fulfillment purposes. Overall, First-Class Package Service prices will increase 3.9 percent.
Retail Ground prices will increase 3.9 percent. Customers shipping in Zones 1-4 will continue to receive Priority Mail service and will only default to Retail Ground if the item contains hazardous material or is otherwise not permitted to travel by air transportation.
Premium Forwarding Service prices will increase 3.9 percent in 2018. The retail counter enrollment fee will increase to $20.10. The online enrollment option, introduced in 2014, will now be available for $18.45. The weekly reshipment fee will increase to $20.10. The prices for the flat rate full and half trays, introduced in 2017, will remain unchanged in 2018. Prices for Adult Signature service will increase to $6.10 for the basic service and $6.35 for the person-specific service. Address Enhancement Service prices will be increasing between 2.7 and 4.2 percent depending on the particular rate element, to ensure adequate cost coverage. Competitive Post Office Box prices will be increasing 6.5 percent on average, which is within the existing price ranges. Package Intercept Service will increase 3.9 percent, to $13.45.
International expedited services include Global Express Guaranteed (GXG) and Priority Mail Express International (PMEI). Overall, GXG prices will rise by 3.9 percent, and PMEI will be subject to an overall 3.9 percent increase. Commercial Plus prices will be equivalent to Commercial Base;
The overall increase for Priority Mail International (PMI) will be 3.9 percent. Commercial Plus prices will be equivalent to Commercial Base; however, deeper discounting may still be made available to customers through negotiated service agreements.
Published prices for International Priority Airmail (IPA) and International Surface Air Lift (ISAL) will increase by 3.9 percent, and published prices for IPA and ISAL M-Bags will increase by 3.9 percent.
The published prices for Airmail M-Bags will increase by 3.9 percent.
The overall increase for First-Class Package International Service (FCPIS) prices will be 3.9 percent. Commercial Plus prices will be equivalent to Commercial Base; however, deeper discounting will still be made available to customers through negotiated service agreements.
Prices for several international ancillary services and special services will be increased, with an overall increase of 3.9 percent.
The changes in prices and classes set forth herein shall be effective at 12:01 A.M. on or about January 21, 2018. I direct the Secretary to have this decision published in the
Consistent with 39 USC 3632(a), I hereby certify that the following Governors voted in favor of Governors' Decision No. 16-8:
Pursuant to authority under section 3632 of title 39, as amended by the Postal Accountability and Enhancement Act of 2006 (“PAEA”), I establish price changes for the Postal Service's shipping services (competitive products), specifically for First-Class Package Service. The price changes are described generally below, with a schedule of the new prices in the attachment.
After First-Class Mail Retail parcels have been transferred to the competitive product list, I hereby authorize the attached prices for the First-Class Package Service Retail parcels price category as a second price increase for this competitive product. These changes reflect a 14.5 percent average increase over the prices that are reflected in Governors' Decision 16-9.
The changes I establish should enable each competitive product to cover its attributable costs (39 U.S.C. § 3633(a)(2)) and should result in competitive products as a whole complying with 39 U.S.C. § 3633(a)(3), which, as implemented by 39 C.F.R. § 3015.7(c), requires competitive products collectively to contribute a minimum of 5.5 percent to the Postal Service's institutional costs. Accordingly, no issue of subsidization of competitive products by market dominant products should arise (39 U.S.C. § 3633(a)(1)). I therefore find that the new prices are in accordance with 39 U.S.C. §§ 3632-3633 and 39 C.F.R. § 3015.2.
The changes in prices set forth herein shall be effective thirty (30) days after management has filed appropriate notice of these changes with the Postal Regulatory Commission (“Commission”). I direct the Secretary to have this decision published in the
Consistent with 39 USC 3632(a), I hereby certify that the following Governors voted in favor of Governors' Decision No. 16-10:
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Add $22.00 for each Pickup On Demand stop.
Add $12.50 for requesting Sunday or holiday delivery.
Add $5.00 for requesting delivery by 10:30 am.
Add $0.20 for each IMpb-noncompliant parcel paying commercial prices.
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In Zones 1-4 (including local), parcels weighing less than 20 pounds but measuring more than 84 inches in combined length and girth (but not more than 108 inches) are charged the applicable price for a 20-pound parcel.
In Zones 5-8, parcels exceeding one cubic foot are priced at the actual weight or the dimensional weight, whichever is greater.
For box-shaped parcels, the dimensional weight (pounds) is calculated by multiplying the length (inches) times the width (inches) times the height (inches) of the parcel, and dividing by 194.
For irregular-shaped parcels (parcels not appearing box-shaped), the dimensional weight (pounds) is calculated by multiplying the length (inches) times the width (inches) times the height (inches) at the associated maximum cross-sections of the parcel, dividing by 194, and multiplying by an adjustment factor of 0.785.
In Zones 1-4 (including local), parcels weighing less than 20 pounds but measuring more than 84 inches in combined length and girth (but not more than 108 inches) are charged the applicable price for a 20-pound parcel.
In Zones 5-8, parcels exceeding one cubic foot are priced at the actual weight or the dimensional weight, whichever is greater.
For box-shaped parcels, the dimensional weight (pounds) is calculated by multiplying the length (inches) times the width (inches) times the height (inches) of the parcel, and dividing by 194.
For irregular-shaped parcels (parcels not appearing box-shaped), the dimensional weight (pounds) is calculated by multiplying the length (inches) times the width (inches) times the height (inches) at the associated maximum cross-sections of the parcel, dividing by 194, and multiplying by an adjustment factor of 0.785.
In Zones 1-4 (including local), parcels weighing less than 20 pounds but measuring more than 84 inches in combined length and girth (but not more than 108 inches) are charged the applicable price for a 20-pound parcel.
In Zones 5-8, parcels exceeding one cubic foot are priced at the actual weight or the dimensional weight, whichever is greater.
For box-shaped parcels, the dimensional weight (pounds) is calculated by multiplying the length (inches) times the width (inches) times the height (inches) of the parcel, and dividing by 194.
For irregular-shaped parcels (parcels not appearing box-shaped), the dimensional weight (pounds) is calculated by multiplying the length (inches) times the width (inches) times the height (inches) at the associated maximum cross-sections of the parcel,
Add $22.00 for each Pickup On Demand stop.
Add $0.20 for each IMpb-noncompliant parcel paying commercial prices.
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Pieces exceeding 84 inches in length and girth combined (but not more than 108 inches) and weighing less than 20 pounds are subject to a price equal to that for a 20-pound parcel for the zone to which the parcel is addressed.
Regardless of weight, any piece that measures more than 108 inches (but not more than 130 inches) in length plus girth must pay the oversized price.
Parcel Select pieces that are forwarded on request of the addressee or forwarded or returned on request of the mailer will be subject to the applicable Parcel Select Ground price, plus $3.00, when forwarded or returned. For customers using Address Correction Service with Shipper Paid Forwarding/Return, and also using an IMpb, the additional fee will be $2.50.
Pieces exceeding 84 inches in length and girth combined (but not more than 108 inches) and weighing less than 20 pounds are subject to a price equal to that for a 20-pound parcel for the zone to which the parcel is addressed.
Regardless of weight, any piece that measures more than 108 inches (but not more than 130 inches) in length plus girth must pay the oversized price.
Parcel Select pieces that are forwarded on request of the addressee or forwarded or returned on request of the mailer will be subject to the applicable Parcel Select Ground price, plus $3.00, when forwarded or returned. For customers using Address Correction Service with Shipper Paid Forwarding/Return, and also using an IMpb, the additional fee will be $2.50.
Pieces exceeding 84 inches in length and girth combined (but not more than 108 inches) and weighing less than 20 pounds are subject to a price equal to that for a 20-pound parcel for the zone to which the parcel is addressed.
Regardless of weight, any piece that measures more than 108 inches (but not more than 130 inches) in length plus girth must pay the oversized price.
Parcel Select pieces that are forwarded on request of the addressee or forwarded or returned on request of the mailer will be subject to the applicable Parcel Select Ground price, plus $3.00, when forwarded or returned. For customers using Address Correction Service with Shipper Paid Forwarding/Return, and also using an IMpb, the additional fee will be $2.50.
Pieces exceeding 84 inches in length and girth combined (but not more than 108 inches) and weighing less than 20 pounds are subject to a price equal to that for a 20-pound parcel for the zone to which the parcel is addressed.
Regardless of weight, any piece that measures more than 108 inches (but not more than 130 inches) in length plus girth must pay the oversized price.
Parcel Select pieces that are forwarded on request of the addressee or forwarded or returned on request of the mailer will be subject to the applicable Parcel Select Ground price, plus $3.00, when forwarded or returned. For customers using Address Correction Service with Shipper Paid Forwarding/Return, and also using an IMpb, the additional fee will be $2.50.
Add $22.00 for each Pickup On Demand stop.
Add $0.20 for each IMpb-noncompliant parcel paying commercial prices.
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RSCF entered pieces exceeding 84 inches in length and girth combined, but not more than 108 inches, and weighing less than 20 pounds are subject to a price equal to that for a 20-pound parcel for the zone to which the parcel is addressed.
Regardless of weight, any piece that measures more than 108 inches (but not more than 130 inches) in length plus girth must pay the oversized price.
Regardless of weight, any piece that measures more than 108 inches (but not more than 130 inches) in length plus girth must pay the oversized price.
Add $0.20 for each IMpb-noncompliant parcel paying commercial prices.
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Add $0.20 for each irregularly shaped parcel (such as rolls, tubes, and triangles).
Add $0.20 for each IMpb-noncompliant parcel paying commercial prices.
Add $22.00 for each Pickup On Demand stop.
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Pieces delivered to or from designated intra-Alaska ZIP Codes not connected by overland routes are eligible for the following prices.
Pieces exceeding 84 inches in length and girth combined (but not more than 108 inches) and weighing less than 20 pounds are subject to a price equal to that for a 20-pound parcel for the zone to which the parcel is addressed.
Regardless of weight, any piece that measures more than 108 inches (but not more than 130 inches) in length plus girth must pay the oversized price.
Add $22.00 for each Pickup On Demand stop.
Add $0.20 for each IMpb-noncompliant parcel paying commercial prices.
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If a customer requests PMI at a Postal Service retail counter for an item for which postage has not been previously paid, weight-rated PMEI may be offered to certain destinations, for certain weight steps, at a discounted price equivalent to the corresponding weight-based rate in the PMI Parcels Retail price table (2315.6), if all PMEI eligibility requirements are met and the Postal Service determines that service can be improved and/or the PMEI destination country delivery costs are lower than PMI destination country delivery costs.
Add $22.00 for each Pickup On Demand stop.
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Add $22.00 for each Pickup On Demand stop
The International Service Center (ISC) Zone Chart identifies the appropriate distance code assigned to each origin.
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The price to be paid is the applicable per-piece price plus the applicable per-pound price. The per-piece price applies to each mailpiece regardless of weight. The per-pound price applies to the net weight (gross weight of the container minus the tare weight of the container) of the mail for the specific Country Price Group.
The price to be paid is the applicable per-piece price plus the applicable per-pound price. The per-piece price applies to each mailpiece regardless of weight. The per-pound price applies to the net weight (gross weight of the container minus the tare weight of the container) of the mail for the specific Country Price Group.
The price to be paid is the applicable per-piece price plus the applicable per-pound price. The per-piece price applies to each mailpiece regardless of weight. The per-pound price applies to the net weight (gross weight of the container minus the tare weight of the container) of the mail for the specific Country Price Group.
The price to be paid is the applicable per-pound price. The per-pound price applies to the total weight of the sack (M-bag) for the specific Country Price Group.
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The price to be paid is the applicable per-piece price plus the applicable per-pound price. The per-piece price applies to each mailpiece regardless of weight. The per-pound price applies to the net weight (gross weight of the container minus the tare weight of the container) of the mail for the specific price group.
The price to be paid is the applicable per-piece price plus the applicable per-pound price. The per-piece price applies to each mailpiece regardless of weight. The per-pound price applies to the net weight (gross weight of the container minus the tare weight of the container) of the mail for the specific price group.
The price to be paid is the applicable per-piece price plus the applicable per-pound price. The per-piece price applies to each mailpiece regardless of weight. The per-pound price applies to the net weight (gross weight of the container minus the tare weight of the container) of the mail for the specific price group.
The price to be paid is applicable per-pound price. The per-pound price applies to the total weight of the sack (M-bag) for the specific price group.
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The price is based on the applicable per-pound price. The per-pound price applies to the total weight of the sack (M-Bag) for the specific price group.
Payment is made in accordance with Part III of the Universal Postal Convention and associated UPU Letter Post Regulations. This information is available in the Letter Post Manual at
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A fee is charged for the return of an undeliverable-as-addressed Outbound Single-Piece First-Class Mail International item bearing a U.S. return address which was originally posted to an international addressee through a foreign postal administration, consolidator, or operator. The fee for each returned item is equal to the First-Class Mail International postage which would have been charged if the item had been posted through the Postal Service as First-Class Mail International. The fee is charged to the return addressee.
Add $22.00 for each Pickup On Demand stop.
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No additional payment.
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[Reserved]
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Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving portions of a revision to the Georgia State Implementation Plan (SIP) concerning the Cross-State Air Pollution Rule (CSAPR) and the Clean Air Interstate Rule (CAIR) that was submitted by Georgia on July 26, 2017. Under CSAPR, large electricity generating units (EGUs) in Georgia are subject to Federal Implementation Plans (FIPs) requiring the units to participate in CSAPR's federal trading program for annual emissions of nitrogen oxides (NO
This rule is effective November 13, 2017.
EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2017-0452. All documents in the docket are listed on the
Ashten Bailey, Air Regulatory Management Section, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Bailey can be reached by telephone at (404) 562-9164 or via electronic mail at
To help reduce interstate transport of ozone and PM
On December 23, 2008, CAIR was remanded to EPA by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in
In response to the remand of CAIR, EPA promulgated CSAPR on July 6, 2011.
Following the April 2014 Supreme Court decision, EPA filed a motion asking the D.C. Circuit to lift the stay in order to allow CSAPR to replace CAIR in an equitable and orderly manner while further D.C. Circuit proceedings were held to resolve remaining claims from petitioners. Additionally, EPA's motion requested to toll, by three years, all CSAPR compliance deadlines that had not passed as of the approval date of the stay. On October 23, 2014, the D.C. Circuit granted EPA's request, and on December 3, 2014 (79 FR 71663), in an interim final rule, EPA set the updated effective date of CSAPR as January 1, 2015, and tolled the implementation of CSAPR Phase 1 to 2015 and CSAPR Phase 2 to 2017. In accordance with the interim final rule, the sunset date for CAIR was December 31, 2014, and EPA began implementing CSAPR on January 1, 2015.
As discussed previously, EPA issued CSAPR in July 2011 to address the requirements of Clean Air Act (CAA or Act) section 110(a)(2)(D)(i)(I) concerning interstate transport of air pollution. As amended (including by the 2016 CSAPR Update
CSAPR includes provisions under which states may submit and EPA will approve SIP revisions to modify or replace the CSAPR FIP requirements while allowing states to continue to meet their transport-related obligations using either CSAPR's federal emissions trading programs or state emissions trading programs integrated with the federal programs, provided that the SIP revisions meet all relevant criteria.
States can submit two basic forms of CSAPR-related SIP revisions effective for emissions control periods in 2017 or later years.
Under the second alternative—a “full” SIP revision—a state may submit a SIP revision that upon approval replaces a CSAPR federal trading program for the state with a state trading program integrated with the federal trading program, so long as the state trading program is substantively identical to the federal trading program or does not substantively differ from the federal trading program except as discussed above with regard to the allowance allocation and/or applicability provisions.
The CSAPR regulations identify several important consequences and limitations associated with approval of a full SIP revision. First, upon EPA's approval of a full SIP revision as correcting the deficiency in the state's implementation plan that was the basis for a particular set of CSAPR FIP requirements, the obligation to participate in the corresponding CSAPR federal trading program is automatically eliminated for units subject to the state's jurisdiction without the need for a separate EPA withdrawal action, so long as EPA's approval of the SIP is full and unconditional.
On July 28, 2015, the D.C. Circuit issued a decision on a number of petitions related to CSAPR, which found that EPA required more emissions reductions than may have been necessary to address the downwind air quality problems to which some states contribute. The Court remanded several CSAPR emission budgets to EPA for reconsideration, including the Phase 2 SO
In the CSAPR rulemaking, EPA determined that air pollution transported from EGUs in Georgia would unlawfully affect other states' ability to attain or maintain the 1997 8-hour Ozone NAAQS, the 1997 Annual PM
On July 26, 2017, Georgia submitted to EPA a SIP revision including provisions that, upon approval, incorporates into Georgia's SIP CSAPR state trading program regulations to replace the CSAPR regulations for all three of these federal trading programs with regard to Georgia units, and removes SIP provisions related to CAIR. In a notice of proposed rulemaking (NPRM) published on August 16, 2017 (82 FR 38866), EPA proposed to approve the portions of Georgia's July 26, 2017, SIP submittal designed to replace the CSAPR federal trading programs and remove CAIR from Georgia's SIP. The NPRM provides additional detail regarding the background and rationale for EPA's actions. Comments on the NPRM were due on or before September 15, 2017. EPA received no adverse comments on the proposed action.
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Georgia Rules for Air Quality Control, Rule 391-3-1-.02(12), Rule 391-3-1-.02(13), and Rule 391-3-1-.02(14), state effective on July 20, 2017, comprising Georgia's Cross State Air Pollution Rule NO
EPA is approving the portions of Georgia's July 26, 2017, SIP submittal concerning the establishment for Georgia units of CSAPR state trading programs for annual NO
EPA promulgated FIPs requiring Georgia units to participate in the federal CSAPR NO
As noted previously, the Phase 2 SO
In addition, EPA is approving the portions of Georgia's July 26, 2017, SIP revision removing Georgia's state trading provisions adopted to implement CAIR: Georgia Rules for Air Quality control at provisions 391-3-1-.02(12), “Clean Air Interstate Rule NO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 December 12, 2017. Filing a petition for reconsideration by the
Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.
40 CFR part 52 is amended as follows:
42.U.S.C. 7401
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Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve portions of a revision to the South Carolina State Implementation Plan (SIP) concerning the Cross-State Air Pollution Rule (CSAPR). South Carolina submitted a draft version of this SIP revision for parallel processing on May 26, 2017, and a final version on September 5, 2017. Under CSAPR, large electricity generating units (EGUs) in South Carolina are subject to Federal Implementation Plans (FIPs) requiring the units to participate in CSAPR's federal trading program for annual emissions of nitrogen oxides (NO
This rule is effective November 13, 2017.
EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2017-0364. All documents in the docket are listed on the
Ashten Bailey, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Bailey can be reached by telephone at (404) 562-9164 or via electronic mail at
EPA issued CSAPR in July 2011 to address the requirements of Clean Air Act (CAA or Act) section 110(a)(2)(D)(i)(I) concerning interstate transport of air pollution.
CSAPR includes provisions under which states may submit and EPA will approve SIP revisions to modify or replace the CSAPR FIP requirements while allowing states to continue to meet their transport-related obligations using either CSAPR's federal emissions trading programs or state emissions trading programs integrated with the federal programs.
States can submit two basic forms of CSAPR-related SIP revisions effective for emissions control periods in 2017 or later years.
Under the second alternative—a “full” SIP revision—a state may submit a SIP revision that upon approval replaces a CSAPR federal trading program for the state with a state trading program integrated with the federal trading program, so long as the state trading program is substantively identical to the federal trading program or does not substantively differ from the federal trading program except as discussed previously with regard to the allowance allocation and/or applicability provisions.
The CSAPR regulations identify several important consequences and limitations associated with approval of a full SIP revision. First, upon EPA's approval of a full SIP revision as correcting the deficiency in the state's implementation plan that was the basis for a particular set of CSAPR FIP requirements, the obligation to participate in the corresponding CSAPR federal trading program is automatically eliminated for units subject to the state's jurisdiction without the need for a separate EPA withdrawal action, so long as EPA's approval of the SIP is full and unconditional.
On July 28, 2015, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued a decision on a number of petitions related to CSAPR, which found that EPA required more emissions reductions than may have been necessary to address the downwind air quality problems to which some states contribute. The court remanded several CSAPR emission budgets to EPA for reconsideration, including the Phase 2 SO
In the CSAPR rulemaking, EPA determined that air pollution transported from South Carolina would unlawfully affect other states' ability to attain or maintain the 1997 Annual PM
In a notice of proposed rulemaking (NPRM) published on August 10, 2017 (82 FR 37389), EPA proposed to approve the portions of South Carolina's May 26, 2017, draft SIP submittal designed to replace the CSAPR federal annual SO
South Carolina submitted the final version of its SIP revision on September 5, 2017.
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of South Carolina Regulation 61-62.97, entitled “Cross-State Air Pollution Rule (CSAPR) Trading Program,” state effective on August 25, 2017. EPA has made, and will continue to make, these materials generally available through
EPA is approving the portions of South Carolina's September 5, 2017, final SIP submittal concerning the establishment for South Carolina units of CSAPR state trading programs for annual NO
EPA promulgated the FIP provisions requiring South Carolina units to participate in the federal CSAPR NO
As noted in EPA's NPRM, the Phase 2 SO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
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 December 12, 2017. 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 may not be challenged later in proceedings to enforce its requirements.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.
40 CFR part 52 is amended as follows:
42.U.S.C. 7401
(c) * * *
| 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 |