Vol. 78 Monday, No. 130 July 8, 2013

Pages 40625–40934

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 78, No. 130

Monday, July 8, 2013

Agency for Healthcare Research and Quality Coast Guard NOTICES RULES Agency Information Collection Activities; Proposals, Drawbridge Operations: Submissions, and Approvals, 40740–40742 Trent River, New Bern, NC, 40632 Safety Zones: Agriculture Department Brandon Road Lock and Dam to Lake Michigan including See Animal and Plant Health Inspection Service Des Plaines River, Chicago Sanitary and Ship Canal, See Food and Nutrition Service Chicago River, and Calumet–Saganashkee Channel, See National Institute of Food and Agriculture Chicago, IL, 40635 NOTICES Venetian Fireworks; Kalamazoo Lake, Saugatuck, MI, Agency Information Collection Activities; Proposals, 40632–40635 Submissions, and Approvals, 40688 PROPOSED RULES Regulated Navigation Areas: Alcohol and Tobacco Tax and Trade Bureau Special Buzzards Bay Vessel Regulation, Buzzards Bay, PROPOSED RULES MA, 40651–40654 Establishment of the Malibu Coast Viticultural Area, NOTICES 40644–40651 Meetings: Merchant Marine Personnel Advisory Committee, 40757– Animal and Plant Health Inspection Service 40758 NOTICES Pest Risk Analysis for Importation: Commerce Department Swiss Chard from Colombia, 40688–40689 See Economic Analysis Bureau See Foreign-Trade Zones Board Blind or Severely Disabled, Committee for Purchase From See Industry and Security Bureau People Who Are See International Trade Administration See Committee for Purchase From People Who Are Blind or See National Oceanic and Atmospheric Administration Severely Disabled See National Telecommunications and Information Administration Centers for Disease Control and Prevention Commission of Fine Arts NOTICES NOTICES Agency Information Collection Activities; Proposals, Meetings: Submissions, and Approvals, 40742–40743 Commission of Fine Arts, 40727 Meetings: Advisory Committee on Childhood Lead Poisoning Committee for Purchase From People Who Are Blind or Prevention, 40743 Severely Disabled Board of Scientific Counselors, Office of Public Health NOTICES Preparedness and Response, 40743–40744 Procurement List; Additions and Deletions, 40727–40728 Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, 40744 Consumer Product Safety Commission Mine Safety and Health Research Advisory Committee, NOTICES 40743 Meetings; Sunshine Act, 40728 Requests for Nominations: Board of Scientific Counselors, Office of Infectious Defense Department Diseases, 40744–40745 NOTICES Agency Information Collection Activities; Proposals, Centers for Medicare & Medicaid Services Submissions, and Approvals, 40728–40729 PROPOSED RULES Agency Information Collection Activities; Proposals, Medicare Program: Submissions, and Approvals: End-Stage Renal Disease Prospective Payment System, Generic Clearance for the Collection of Qualitative Quality Incentive Program, and Durable Medical Feedback on Agency Service Delivery, 40729–40730 Equipment, Prosthetics, Orthotics, and Supplies, Meetings: 40836–40890 National Commission on the Structure of the Air Force, 40730–40731 Children and Families Administration NOTICES Economic Analysis Bureau Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 40745–40746 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Civil Rights Commission Quarterly Survey of U.S. Direct Investment Abroad; NOTICES Transactions of U.S. Reporter with Foreign Affiliate, Meetings; Sunshine Act, 40690 40690–40691

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Education Department Federal Procurement Policy Office NOTICES PROPOSED RULES Deadline Dates: Cost Accounting Standards: FAFSA, the Federal Pell Grant Program, the William D. CAS 413 Pension Adjustments for Extraordinary Events, Ford Federal Direct Loan Program, etc., 40731–40735 40665–40669

Energy Department Federal Reserve System See Federal Energy Regulatory Commission NOTICES NOTICES Formations of, Acquisitions by, and Mergers of Bank Proposed Subsequent Arrangements, 40735 Holding Companies, 40739–40740 Fine Arts Commission Environmental Protection Agency See Commission of Fine Arts RULES Delegations of Authority: Fish and Wildlife Service Southern Ute Indian Tribe to Implement and Enforce PROPOSED RULES National Emissions Standards; Hazardous Air Endangered and Threatened Wildlife and Plants: Pollutants and New Source Performance Standards, Designation of Critical Habitat for the Acuna Cactus and 40635–40638 the Fickeisen Plains Cactus, 40673–40686 PROPOSED RULES Status for Cape Sable Thoroughwort, Florida Semaphore Air Quality State Implementation Plans; Approvals and Cactus, and Aboriginal Prickly-Apple, etc., 40669– Promulgations: 40673 West Virginia; Redesignation of the West Virginia Portion NOTICES of the Parkersburg–Marietta Nonattainment Area, Permit Applications: etc., 40655–40663 Endangered Species; Marine Mammals, 40762–40764 Air Quality State Implementation Plans; Approvals, Disapprovals and Promulgations: Food and Nutrition Service Wyoming; Regional Haze State Implementation Plan; RULES Federal Implementation Plan for Regional Haze; National School Lunch Program: Public Hearings, 40654–40655 Direct Certification Continuous Improvement Plans Delegations of Authority: Required by the Healthy, Hunger-Free Kids Act, Southern Ute Indian Tribe to Implement and Enforce 40625 National Emissions Standards; Hazardous Air Nutrition Standards in the National School Lunch and Pollutants and New Source Performance Standards, School Breakfast Programs, 40625 40663–40664 NOTICES Foreign-Trade Zones Board Experimental Use Permits, 40737 NOTICES Privacy Act; Systems of Records, 40737–40738 Applications for Reorganization under Alternative Site Proposed Administrative Cost Recovery Settlements under Framework: CERCLA: Foreign-Trade Zone 18, San Jose, CA, 40691–40692 Double H Pesticide Burial Site, Grandview, WA, 40738 Applications for Subzones: Channel Control Merchants, LLC, Foreign-Trade Zone 92, Executive Office of the President Gulfport, MS, 40692 See Privacy and Civil Liberties Oversight Board Authorization of Production Activities: See Trade Representative, Office of United States Milwaukee Electric Tool Corp., Foreign-Trade Zone 262, Southaven (Desoto County), MS, 40692 Federal Aviation Administration PROPOSED RULES Geological Survey Airworthiness Directives: NOTICES Agusta S.p.A. (Type Certificate Currently Held by Nominations: AgustaWestland S.p.A.) (Agusta) Helicopters, 40640– National Geospatial Advisory Committee, 40764 40642 Diamond Aircraft Industries GmbH Airplanes, 40642– Government Accountability Office 40644 NOTICES Meetings: Federal Election Commission Advisory Council on the Standards for Internal Control in RULES the Federal Government, 40740 Reporting Ultimate Payees of Political Committee Health and Human Services Department Disbursements, 40625–40627 See Agency for Healthcare Research and Quality See Centers for Disease Control and Prevention Federal Energy Regulatory Commission See Centers for Medicare & Medicaid Services NOTICES See Children and Families Administration Combined Filings, 40735–40737 See Indian Health Service See National Institutes of Health Federal Maritime Commission NOTICES Healthcare Research and Quality Agency Agreements Filed, 40739 See Agency for Healthcare Research and Quality

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Homeland Security Department Justice Department See Coast Guard NOTICES See U.S. Citizenship and Immigration Services Proposed Consent Decrees under the Clean Water Act, See U.S. Customs and Border Protection 40769

Housing and Urban Development Department Land Management Bureau NOTICES NOTICES Agency Information Collection Activities; Proposals, Environmental Assessments; Availability, etc.: Submissions, and Approvals: Intent to Amend California Desert Conservation Area Certificates of Housing Counseling; Homeownership, and Plan for the Needles Field Office, 40764–40765 Home Retention, 40759–40760 Plats of Surveys: Training Evaluation Form, 40760–40761 Nevada, 40765–40766 Oregon/Washington, 40766 Indian Health Service Management and Budget Office NOTICES See Federal Procurement Policy Office Funding Availabilities: Urban Indian Education and Research Organization National Endowment for the Arts Cooperative Agreement Program, 40746–40755 PROPOSED RULES Statement for the Guidance of the Public: Industry and Security Bureau Organization, Procedure and Availability of Information, RULES 40664–40665 Export Administration Regulations: Military Vehicles; Vessels of War; Submersible Vessels, National Endowment for the Humanities Oceanographic Equipment; Related Items; and PROPOSED RULES Auxiliary and Miscellaneous Items, etc., 40892– Statement for the Guidance of the Public: 40919 Organization, Procedure and Availability of Information, 40664–40665 Institute of Museum and Library Services PROPOSED RULES National Foundation on the Arts and the Humanities Statement for the Guidance of the Public: See Institute of Museum and Library Services Organization, Procedure and Availability of Information, See National Endowment for the Arts 40664–40665 See National Endowment for the Humanities

Interior Department National Highway Traffic Safety Administration See Fish and Wildlife Service NOTICES See Geological Survey Agency Information Collection Activities; Proposals, See Land Management Bureau Submissions, and Approvals, 40823 See National Indian Gaming Commission National Indian Gaming Commission See National Park Service NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals: Submissions, and Approvals, 40766–40768 Private Rental Survey, 40761–40762 National Institute of Food and Agriculture NOTICES Internal Revenue Service Stakeholder Input: NOTICES Water Challenge Area within the Agriculture and Food Agency Information Collection Activities; Proposals, Research Initiative, 40689–40690 Submissions, and Approvals, 40824–40832 Agency Information Collection Activities; Proposals, National Institutes of Health Submissions, and Approvals: NOTICES Qualified Retirement Plans under Sections 401(k) and Meetings: 401(m) and Guidance on Cash or Deferred Center for Scientific Review, 40756 Arrangements, 40832–40833 National Institute of Allergy and Infectious Diseases, 40755–40756 International Trade Administration National Institute on Drug Abuse, 40755 NOTICES Prospective Grants of Start-Up Exclusive Commercialization Antidumping Duty Administrative and New Shipper Licenses: Reviews; Results, Extensions, Amendments, etc.: Development of a Circularly Permuted IL4-Targeted Tapered Roller Bearings and Parts Thereof, Finished and Pseudomonas Exotoxin A (cpIL4–PE38KDEL) for Unfinished, from the People’s Republic of China, Treatment of Cancers and Urological Disorders, 40692–40694 40757 Antidumping Duty Orders; Results, Extensions, Amendments, etc.: National Oceanic and Atmospheric Administration Persulfates from the People’s Republic of China, 40695 RULES Court Decisions Not in Harmony with Final Determinations Fisheries of the Exclusive Economic Zone Off Alaska: of Sales at Less Than Fair Value, etc.: Dusky Rockfish in the Western Regulatory Area of the Honey from the People’s Republic of China, 40696 Gulf of Alaska, 40638

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Northern Rockfish in the Western Regulatory Area of the Securities and Exchange Commission Gulf of Alaska; Closure, 40638–40639 NOTICES PROPOSED RULES Applications: Implementation of the Shark Conservation Act, 40687 Deregistration under the Investment Company Act, NOTICES 40779–40780 Agency Information Collection Activities; Proposals, Meetings; Sunshine Act, 40780–40781 Submissions, and Approvals: Self-Regulatory Organizations; Proposed Rule Changes: Alaska Crab Cost Recovery, 40696–40697 Chicago Stock Exchange, Inc., 40788–40790 Applications for Exempted Fishing Permits, 40697 EDGA Exchange, Inc., 40813–40815 Meetings: EDGX Exchange, Inc., 40781–40782 Caribbean Fishery Management Council, 40698 Financial Industry Regulatory Authority, Inc., 40792– Pacific Fishery Management Council, 40697–40698 40813 Takes of Marine Mammals Incidental to Specified NASDAQ OMX PHLX LLC, 40791–40792 Activities: NASDAQ Stock Market LLC, 40815–40816, 40782–40785 Demolition and Construction Activities of the Children’s New York Stock Exchange, LLC, 40816–40819 Pool Lifeguard Station, La Jolla, CA, 40705–40726 NYSE Arca, Inc., 40786–40788 Office of Naval Research Acoustic Technology Experiments in the Western North Pacific Ocean, Small Business Administration 40698–40705 NOTICES Disaster Declarations: National Park Service Washington, 40819 NOTICES Major Disaster Declarations: Concession Contracts; Extensions, 40768 Oklahoma; Amendment 4, 40819 Meetings: National Capital Memorial Advisory Commission, 40768– Social Security Administration 40769 NOTICES Agency Information Collection Activities; Proposals, National Telecommunications and Information Submissions, and Approvals, 40819–40820 Administration

NOTICES State Department Meetings: RULES Development of Consumer Data Privacy Code of Conduct International Traffic in Arms Regulations: Concerning Mobile Application Transparency, Canadian Firearms Components Exemption, 40630–40632 40726–40727 Continued Implementation of Export Control Reform, 40922–40933 NOTICES Nuclear Regulatory Commission Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Orders: Exchange Programs Alumni Website Registration, 40820– Fingerprinting and Criminal History Records Check 40821 Requirements for Access to Safeguards Information, Presidential Permits; Application for an Amendment: 40770–40773 Crossing of Non-Radioactive Hazardous Materials Across Requirements for the Protection of Certain Safeguards the World Trade Bridge in Laredo, TX, 40821 Information, 40773–40776 Regulatory Guides: Surface Transportation Board Service Limits and Loading Combinations for Class 1 NOTICES Linear-Type Supports and Class 1 Plate-and-Shell- Railroad-Shipper Transportation Advisory Council Type Supports, 40776–40777 Vacancy, 40823–40824

Office of United States Trade Representative Trade Representative, Office of United States See Trade Representative, Office of United States NOTICES Generalized System of Preferences: Postal Regulatory Commission Results of the 2012 Annual Review, 40822 NOTICES New Postal Products, 40777–40778 Transportation Department See Federal Aviation Administration Privacy and Civil Liberties Oversight Board See National Highway Traffic Safety Administration NOTICES See Surface Transportation Board Meetings: Surveillance Programs, 40778 Treasury Department See Alcohol and Tobacco Tax and Trade Bureau Railroad Retirement Board See Internal Revenue Service NOTICES RULES Agency Information Collection Activities; Proposals, Prohibitions and Conditions on the Importation and Submissions, and Approvals, 40778–40779 Exportation of Rough Diamonds, 40627–40630

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U.S. Citizenship and Immigration Services Part III NOTICES Commerce Department, Industry and Security Bureau, Agency Information Collection Activities; Proposals, 40892–40919 Submissions, and Approvals: Application for Temporary Protected Status, 40758– Part IV 40759 State Department, 40922–40933 U.S. Customs and Border Protection RULES Prohibitions and Conditions on the Importation and Reader Aids Exportation of Rough Diamonds, 40627–40630 Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. Separate Parts In This Issue To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http:// Part II listserv.access.gpo.gov and select Online mailing list Health and Human Services Department, Centers for archives, FEDREGTOC-L, Join or leave the list (or change Medicare & Medicaid Services, 40836–40890 settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

7 CFR 210...... 40625 220...... 40625 245...... 40625 272...... 40625 11 CFR 104...... 40625 14 CFR Proposed Rules: 39 (2 documents) ...... 40640, 40642 15 CFR 740...... 40892 742...... 40892 770...... 40892 772...... 40892 774...... 40892 19 CFR 12...... 40627 163...... 40627 178...... 40627 22 CFR 120...... 40922 121...... 40922 123 (2 documents) ...... 40630, 40922 124...... 40922 125...... 40922 27 CFR Proposed Rules: 9...... 40644 33 CFR 117...... 40632 165 (2 documents) ...... 40632, 40635 Proposed Rules: 165...... 40651 40 CFR 60...... 40635 61...... 40635 63...... 40635 Proposed Rules: 52 (2 documents) ...... 40654, 40655 60...... 40663 61...... 40663 63...... 40663 81...... 40655 41 CFR Proposed Rules: 413...... 40836 414...... 40836 45 CFR Proposed Rules: 1100...... 40664 48 CFR Proposed Rules: 9904...... 40665 50 CFR 679 (2 documents) ...... 40638 Proposed Rules: 17 (2 documents) ...... 40669, 40673 600...... 40687

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Rules and Regulations Federal Register Vol. 78, No. 130

Monday, July 8, 2013

This section of the FEDERAL REGISTER increase the availability of fruits, 2013, under OMB Control Number contains regulatory documents having general vegetables, whole grains, and fat-free 0584–0577. applicability and legal effect, most of which and low-fat fluid milk in school meals; FOR FURTHER INFORMATION CONTACT: are keyed to and codified in the Code of reduce the levels of sodium, saturated Requests for additional information or Federal Regulations, which is published under fat and trans fat in meals; and meet the 50 titles pursuant to 44 U.S.C. 1510. copies of this information collection nutrition needs of school children should be directed to Jon Garcia, The Code of Federal Regulations is sold by within their calorie requirements. These Program Analysis and Monitoring the Superintendent of Documents. Prices of improvements to the school meal Branch, Child Nutrition Division, 3101 new books are listed in the first FEDERAL programs, largely based on Park Center Drive, Alexandria, VA REGISTER issue of each week. recommendations made by the Institute 22302. of Medicine of the National Academies, are expected to enhance the diet and SUPPLEMENTARY INFORMATION: The DEPARTMENT OF AGRICULTURE health of school children, and help February 22, 2013 final rule amended mitigate the childhood obesity trend. the National School Lunch Program Food and Nutrition Service The proposed rule took comments on (NSLP) regulations to incorporate the associated ICR until March 14, 2011. provisions of the Healthy, Hunger-Free 7 CFR Parts 210 and 220 Compliance with provisions of this rule Kids Act of 2010 designed to encourage States to improve direct certification [FNS–2007–0038] is effective from July 1, 2012. This document announces OMB’s approval efforts with the Supplemental Nutrition RIN 0584–AD59 of the ICR under OMB Control Number Assistance Program (SNAP). The 0584–0006. provisions require State agencies to Nutrition Standards in the National meet certain direct certification School Lunch and School Breakfast Dated: June 26, 2013. performance benchmarks and to Programs; Approval of Information Audrey Rowe, develop and implement continuous Collection Request Administrator, Food and Nutrition Service. improvement plans if they fail to do so. [FR Doc. 2013–16278 Filed 7–5–13; 8:45 am] The final rule also amended NSLP and AGENCY: Food and Nutrition Service, BILLING CODE P SNAP regulations to provide for the USDA. collection of data elements needed to ACTION: Final rule; approval of compute each State’s direct certification information collection request. DEPARTMENT OF AGRICULTURE performance rate to compare with the new benchmarks. Improved direct SUMMARY: The Food and Nutrition Food and Nutrition Service Service published a final rule entitled certification efforts will help increase program accuracy, reduce paperwork for ‘‘Nutrition Standards in the National 7 CFR Parts 245 and 272 School Lunch and School Breakfast States and households, and increase Programs’’ on January 26, 2012. The RIN 0584–AE10 eligible children’s access to school Office of Management and Budget meals. The proposed rule took National School Lunch Program: Direct (OMB) cleared the associated comments on the associated ICR until Certification Continuous Improvement information collection requirements April 2, 2012. This document Plans Required by the Healthy, (ICR) on February 1, 2013. This announces OMB’s approval of the ICR Hunger-Free Kids Act of 2010; document announces approval of the under OMB Control Number 0584–0577. Approval of Information Collection ICR. Dated: June 26, 2013. Request Audrey Rowe, DATES: The ICR associated with the final rule published in the Federal Register AGENCY: Food and Nutrition Service, Administrator, Food and Nutrition Service. on January 26, 2012 at 77 FR 4088 was USDA. [FR Doc. 2013–16189 Filed 7–5–13; 8:45 am] approved by OMB on February 1, 2013, ACTION: Final rule; approval of BILLING CODE 3410–30–P under OMB Control Number 0584–0006. information collection request FOR FURTHER INFORMATION CONTACT: SUMMARY: The Food and Nutrition FEDERAL ELECTION COMMISSION Requests for additional information or Service published a final rule entitled copies of this information collection ‘‘National School Lunch Program: Direct 11 CFR Part 104 should be directed to Jon Garcia, Certification Continuous Improvement Program Analysis and Monitoring Plans Required by the Healthy, Hunger- [Notice 2013–09] Branch, Child Nutrition Division, 3101 Free Kids Act of 2010’’ on February 22, Park Center Drive, Alexandria, VA 2013. The Office of Management and Reporting Ultimate Payees of Political 22302. Budget (OMB) cleared the associated Committee Disbursements SUPPLEMENTARY INFORMATION: The information collection requirements AGENCY: Federal Election Commission. January 2012 final rule updates the meal (ICR) on April 10, 2013. This document ACTION: Notice of interpretive rule. patterns and nutrition standards for the announces approval of the ICR. National School Lunch and School DATES: The ICR associated with the final SUMMARY: The Federal Election Breakfast Programs to align them with rule published in the Federal Register Commission is clarifying its the Dietary Guidelines for Americans. on February 22, 2013 at 78 FR 12221 interpretation of the regulatory This rule requires most schools to was approved by OMB on April 10, requirement that political committees

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report the full name and address of each (1) The committee reimburses an expenses other than travel and person to whom they make individual (such as a campaign staffer) subsistence expenses if the individual’s expenditures or other disbursements who used personal funds to pay payments to the vendor on behalf of the aggregating more than $200 per calendar committee expenses aggregating more committee aggregate more than $200 in year, or per election cycle for authorized than $200 to a single vendor; a calendar year (or election cycle for committees, and the date, amount, and (2) the committee’s payment of its authorized committees). When the purpose of such payments, in three credit card bill includes charges of more reimbursement is for travel and situations: A political committee than $200 to a single vendor; and subsistence advances that exceed $500, reimburses an individual who advanced (3) the committee is the authorized a memo entry is required for each personal funds to pay committee committee of a candidate who used payment to a specific vendor by that expenses aggregating more than $200 to personal funds to pay committee individual on behalf of the political a single vendor; a political committee expenses aggregating more than $200 to committee if total payments to that pays a credit card bill that includes a a single vendor without receiving vendor by the political committee or by charge of more than $200 for a single reimbursement. that individual on behalf of the vendor; and a candidate uses personal As explained further below, in each committee aggregate more than $200 in funds to pay his or her authorized scenario the political committee will a calendar year (or election cycle for committee’s expenses that aggregate satisfy the reporting requirements by authorized committees). Each memo more than $200 to a single vendor itemizing as a memo entry on Schedule entry must include the name and without receiving reimbursement. B the name and address of the original address of the vendor, as well as the DATES: July 8, 2013. vendor, as well as the date, amount, and date, amount, and purpose of the payment. 11 CFR 104.3(b)(4)(i); 11 CFR FOR FURTHER INFORMATION CONTACT: purpose of the original purchase made 104.9.2 Amy L. Rothstein, Assistant General for or by the political committee. The For reimbursements of credit card Counsel, or Joanna S. Waldstreicher, Commission makes clear that this payments, the memo entry must include Attorney, 999 E Street NW., interpretation is based on long-standing the name and address of the vendor that Washington, DC 20463, (202) 694–1650 Commission practice and is not making any fundamental changes to its rules or provided the goods or services to the or (800) 424–9530. political committee, rather than the SUPPLEMENTARY INFORMATION: Political processes. Further, the Commission is only addressing the three issues at hand credit card company that processed the committees must report the name and payment, and the date, amount, and address of each person to whom they and is not extending the clarification to situations in which a vendor, acting as purpose of the payment to the vendor. make expenditures or other Further information about the reporting disbursements aggregating more than the committee’s agent, purchases goods and services on the committee’s behalf of credit card payments appears in $200 per calendar year, or per election Section 2, below. cycle for authorized committees, as well from subvendors. The relationship as the date, amount, and purpose of between committees and its vendors 2. Payments to Credit Card Companies raises different issues than the such payments. 2 U.S.C. 434(b)(5), (6); Any political committee that itemizes relationships that exist in these three 11 CFR 104.3(b)(3)(i), (vii) disbursements to credit card companies circumstances. (unauthorized committees); 11 CFR on Schedule B of its report filed with 104.3(b)(4)(i), (vi) (authorized 1. Reimbursements to Individuals for the Commission must itemize as a committees); see also 11 CFR 104.9(a), Certain Out-of-Pocket Expenses memo entry any transaction with a (b). single vendor charged on the credit card The Commission published a draft When an individual who is not acting as a vendor advances his or her personal that exceeds the $200 itemization Notice on January 31, 2013, to seek threshold. The memo entry must comment on a proposed interpretative funds, including a personal credit card, to pay costs incurred in providing goods include the name and address of the rule to clarify these requirements as vendor, and the date, amount, and they apply to the reporting of certain or services to, or obtaining goods or services that are used by or on behalf of, purpose of the charge. Itemizing the itemized disbursements by political ultimate payee, as the provider of goods committees to vendors. The a political committee, the political committee must treat the individual’s or services to the political committee, Commission received four comments: accurately reflects the credit card payment as a contribution.1 11 CFR Two opposed the draft; one supported company’s limited role as a payment the draft with a request that the 116.5(a), (b). The political committee must also treat the obligation arising Commission impose an additional 2 This clarification is consistent with the reporting requirement; and one from the individual’s payment as an Commission’s Report Analysis Division Review and resubmitted the comment supporting outstanding debt until reimbursed. 11 Referral Procedures for the 2011–2012 Election the draft without itself opining on the CFR 116.5(c); see also 11 CFR 104.11. Cycle, p. 98 (http://www.fec.gov/pdf/ If the political committee itemizes its RAD_Procedures.pdf), which is approved by the draft. Taking those comments into Commission for every two-year election cycle. consideration the Commission now reimbursement to the individual on Further, the Commission’s Reports Analysis issues this Notice to clarify its Schedule B of its report filed with the Division has been sending Requests for Additional interpretation of 11 CFR 104.3(b)(3)(i), Commission, then the political Information to authorized committees that did not committee may also need to provide itemize the ultimate payee for reimbursements to (vii); 11 CFR 104.3(b)(4)(i), (vi); and 11 staff above the applicable thresholds since the CFR 104.9(a), (b). These clarifications information about the vendor to which 1983–1984 election cycle. Similarly, the Reports are made to the reporting requirements the individual made payment in a Analysis Division has been sending Requests for contained in these Commission memo entry associated with the Additional Information to party and non-party reimbursement. A memo entry is committees that did not itemize the ultimate payee regulations and implicate no other for reimbursements to staff above the applicable regulations than those referenced above. required for any reimbursement of thresholds since the 2005–2006 election cycle after Specifically, this Notice clarifies how internal review procedures for authorized and 1 Certain travel and subsistence expenses that are unauthorized committees were merged. However, a a political committee should report not reimbursed, or that are reimbursed within a grace period for calendar year 2005 was provided disbursements in the following limited period of time, are exempt. 11 CFR 116.5(b); to party and non-party committees to allow for the scenarios: see also 11 CFR 100.79. development of administrative tracking systems.

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processor rather than as the provider of provisions of the Regulatory Flexibility Background goods and services to the committee. Act, which apply when notice and I. Purpose See 11 CFR 102.9. The itemization comment are required by the requirement prevents a committee from Administrative Procedure Act or In response to the role played by the avoiding the Act’s disclosure another statute, do not apply. See 5 illicit trade in diamonds in fueling requirements by placing operating U.S.C. 603(a). conflict and human rights violations in expenditures on a credit card.3 certain areas of the world, and to Dated: June 27, 2013. differentiate between the trade in 3. Unreimbursed Disbursements by On behalf of the Commission. conflict diamonds and the trade in Candidates Ellen L. Weintraub, legitimate diamonds, the United States A candidate may make unlimited Chair, Federal Election Commission. and numerous other countries expenditures from personal funds on [FR Doc. 2013–16125 Filed 7–5–13; 8:45 am] announced in the Interlaken Declaration behalf of his or her authorized BILLING CODE 6715–01–P of November 5, 2002, the launch of the committee. See 11 CFR 110.10. Any Kimberley Process Certification Scheme candidate who ‘‘makes a disbursement (KPCS) for rough diamonds. Under the KPCS, participating countries prohibit in connection with [his or her own] DEPARTMENT OF HOMELAND the importation of rough diamonds campaign, shall be considered . . . as SECURITY having made the disbursement . . . as from, or the exportation of rough an agent of the authorized committee or U.S. Customs and Border Protection diamonds to, a non-participant and committees of such candidate.’’ 2 U.S.C. require that shipments of rough 432(e)(2); see also 11 CFR 101.2(a). DEPARTMENT OF THE TREASURY diamonds from or to a participating Authorized committees must disclose country be controlled through the KPCS. these disbursements on their reports 19 CFR Part 12, 163, and 178 The U.S. Secretary of State is filed with the Commission just as they responsible for providing an up-to-date would disclose any other disbursements [USCBP–2012–0022; CBP Dec. 13–10] listing of all participants in the KPCS. that they may make. 2 U.S.C. 434(b)(4), Swaziland was added to the list of (5), (6)(A); 11 CFR 104.3(b)(4). RIN 1515–AD85 participants in the KPCS and the Thus, out-of-pocket spending by addition was announced in the Federal Prohibitions and Conditions on the candidates, as agents of their authorized Register (77 FR 27831) on May 11, 2012, committees, requires memo entry Importation and Exportation of Rough and Cambodia, Cameroon, Kazakhstan, itemization of the ultimate payee if the Diamonds and Panama were added to the list of aggregate amount of payments to that AGENCIES: U.S. Customs and Border participants and announced in the vendor exceeds $200 for the election Protection, Department of Homeland Federal Register (78 FR 12135) on cycle. The memo entry must include the Security; Department of the Treasury. February 21, 2013. date, amount, and purpose of the out-of- ACTION: Final rule. II. Clean Diamond Trade Act and pocket payments, as well as the name Executive Order and address of the vendor to which SUMMARY: This document amends the payment was made.4 U.S. Customs and Border Protection The Clean Diamond Trade Act (the This interpretive rule clarifies the (CBP) regulations to set forth the Act), Public Law 108–19, 117 Stat. 631 Commission’s interpretation of existing prohibitions and conditions that are (19 U.S.C. 3901 et seq.), was enacted on statutory and regulatory provisions, and applicable to the importation and April 25, 2003. Section 4 of the Act therefore does not constitute an agency exportation of rough diamonds pursuant requires the President, subject to certain action subject to the notice and to the Clean Diamond Trade Act, as waiver authorities, to prohibit the comment requirements or a delayed implemented by the President in importation into, or exportation from, effective date under the Administrative Executive Order 13312 dated July 29, the United States of any rough diamond, Procedure Act. See 5 U.S.C. 553. The 2003, and the Rough Diamonds Control from whatever source, that has not been Regulations (RDCR) issued by the Office controlled through the KPCS. Section 3 This clarification is consistent with the of Foreign Assets Control of the U.S. 5(a) of the Act authorizes the President Commission’s Report Analysis Division Review and Department of the Treasury. In addition to issue such proclamations, Referral Procedures for the 2011–2012 Election regulations, licenses, and orders, and Cycle, p. 96 (http://www.fec.gov/pdf/ to restating pertinent provisions of the RAD_Procedures.pdf). Similarly with RDCR, the amendments clarify that any conduct such investigations, as may be reimbursements to committee staff, the U.S. person exporting from, or necessary to carry out the Act. Section Commission’s Reports Analysis Division has been importing to, the United States a 5(b) of the Act sets forth the general sending Requests for Additional Information to recordkeeping requirements that apply authorized committees that did not provide memo shipment of rough diamonds must entries for credit card payments above the retain for a period of at least five years to persons seeking to export from or applicable thresholds since the 1983–1984 election a copy of the Kimberley Process import into the United States any rough cycle. diamonds. Section 5(b) specifically 4 Unlike the former two circumstances, this Certificate that currently must accompany such shipments and make provides that any United States person scenario is not addressed in the Commission’s seeking to export from or import into Reports Analysis Division Review and Referral the copy available for inspection when Procedures for the 2011–2012 Election Cycle that requested by CBP. The document also the United States any rough diamonds has been made public with redactions. Although shall keep a full record of, in the form the Reports Analysis Division will initiate a regular requires formal entry for shipments of rough diamonds. of reports or otherwise, complete practice of sending Requests for Additional information relating to any act or Information for failure to itemize the vendor for DATES: Effective August 7, 2013. candidate out-of-pocket expenditures on behalf of transaction to which any prohibition his or her authorized committee, this portion of the FOR FURTHER INFORMATION CONTACT: imposed under section 4(a) of the Act interpretive rule will be applied prospectively. The Brian Barulich, Regulations and applies. Section 5(b) further provides adequacy of the responses to Requests for Rulings, Office of International Trade, Additional Information on this issue will only be that such person may be required to judged for those sent after the adoption of this (202) 325–0059. furnish such information under oath, interpretive rule. SUPPLEMENTARY INFORMATION: including the production of books of

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account, records, contracts, letters, Submission of Kimberley Process CFR 758.7). The commenter also noted memoranda, or other papers, in the Certificates’’ and ‘‘Revised Notice of two CBP rulings and asserted that custody or control of such person. In Request for Faxed Submission of through these rulings, CBP is instructing addition to CBP having the authority to Kimberley Process Certificates,’’ the public to mount rough diamonds to apply the customs laws to import requiring importers, brokers, and parties escape regulatory controls. Finally, the violations of the Act, section 8 involved in the export of rough commenter requested information on authorizes CBP and U.S. Immigration diamonds to immediately fax their the amount of time and money that was and Customs Enforcement (ICE), as Kimberley Process Certificates spent to develop the proposed appropriate, to assess penalties and (including voided certificates) to the rulemaking. enforce the export laws and regulations. U.S. Census Bureau upon clearance of CBP Response: See also 15 CFR 30.70. Therefore, their shipments into the commerce of While some of the proposed pursuant to section 8, CBP may assess the United States by CBP or upon export amendments restate the pertinent penalties for export recordkeeping of their shipments from the United provisions of the RDCR and cross- violations. However, CBP notes that the States, as applicable. reference other agency regulations penalties issued pursuant to section 19 On August 15, 2012, CBP published a related to rough diamonds (e.g., 15 CFR U.S.C. 1509(g) for failure to comply with proposed rule in the Federal Register part 30), CBP has made substantive 19 U.S.C. 1509(a)(1)(A) do not apply to (77 FR 48918) proposing to amend title changes to its regulations through the recordkeeping requirements for export 19 of the Code of Federal Regulations other proposed amendments. For documents. (19 CFR) to restate pertinent provisions example, the proposed amendments On July 29, 2003, the President issued of the RDCR issued by OFAC. The clarify that any U.S. person exporting Executive Order 13312 (published in the document also proposed to make from or importing into the United States Federal Register (68 FR 45151) on July amendments to clarify that any U.S. a shipment of rough diamonds must 31, 2003) to implement the Act, person exporting from or importing into retain for a period of at least five years effective for rough diamonds imported the United States a shipment of rough a copy of the Kimberley Process into, or exported from, the United States diamonds must retain for a period of at Certificate that currently must on or after July 30, 2003. least five years a copy of the Kimberley accompany such shipments and make Process Certificate that currently must the copy available for inspection when III. Existing Regulations and requested by CBP. CBP also proposed to Requirements accompany such shipments and make the copy available for inspection when amend its current regulations to require CBP notes that persons importing into requested by CBP. CBP solicited public formal entry for shipments of rough or exporting from the United States a comments on the proposed rule. diamonds pursuant to the authority shipment of rough diamonds must provided in 19 U.S.C. 1484 and comply with the requirements of CBP, Discussion of Comments 1498(a)(1)(B). The restatements of the the Office of Foreign Assets Control Two commenters responded to the other agency regulations and the cross- (OFAC) of the Department of the solicitation of public comments in the references are made for the convenience Treasury (31 CFR part 592), and the U.S. proposed rule. The comments are of the importing public who use the Census Bureau (15 CFR part 30). Such discussed below. CBP regulations as a resource. persons should also be aware of any Comment: The particular existing regulations relevant Internet postings, guidance One commenter applauded the cited by the commenter do not affect the documents, or Federal Register notices purpose of the Clean Diamond Trade necessity of the amendments made in issued by the U.S. Department of State. Act but stated that it has not been this document. Specifically, section Also, it should be noted that ICE can effective in helping people determine 127.4 of title 22 of the CFR (22 CFR take enforcement action on illegally whether they are purchasing ‘‘blood’’ 127.4), is not directly related to the imported and exported rough diamonds. diamonds. importation or exportation of rough See 19 U.S.C. 3907. Examples of the CBP Response: diamonds as it relates to defense other government requirements are The Clean Diamond Trade Act articles, technical data, or defense provided below. OFAC, acting pursuant implements the Kimberley Process services; section 161.2 of title 19 of the to Executive Order 13312 and other Certification Scheme (KPCS) for rough CFR (19 CFR 161.2) states that CBP authorities, published in the Federal diamonds. The KPCS is a process, based enforces the laws of some other Register (69 FR 56936) the Rough on international cooperation and on the government agencies and provides Diamonds Control Regulations (RDCR) commitment of the entire supply chain, examples of those agencies; and the (31 CFR part 592) on September 23, to prevent the importation, or Department of Commerce regulation, 2004. To be controlled through the exportation, of conflict diamonds. One section 758.7 of title 15 of the CFR (15 KPCS, the RDCR require that all purpose of this rulemaking is to make CFR 758.7), requires, in relevant part, shipments of rough diamonds imported the Clean Diamond Trade Act as that CBP take appropriate action to into, or exported from, the United States effective as possible. comply with the Export Administration must be accompanied by an original Comment: Regulations. Kimberley Process Certificate. See 31 One commenter questioned the CBP also disagrees with the CFR 592.301(a)(1). The RDCR also necessity of this proposed rule given the commenter’s description of CBP require that all importers and exporters existing U.S. Census Bureau regulations administrative rulings, New York Ruling of rough diamonds file an annual report (15 CFR part 30) and the OFAC Letter (NY) N018792 and Headquarters with the U.S. Department of State regulations (31 CFR part 592) on rough Ruling Letter (HQ) H173035. CBP notes regarding their import and/or export diamonds, section 161.2 of the CBP that HQ H173035 modified NY N018792 activity and stockpile information. See regulations (19 CFR 161.2), the Clean and notification of the modification was 31 CFR 592.502. Diamond Trade Act (19 U.S.C. 3901 et published in the Customs Bulletin, Vol. The U.S. Census Bureau issued seq.), section 127.4 of the U.S. 46, No. 46, on November 7, 2012 after notices on December 12, 2005, and Department of State regulations (22 CFR a notice of the proposed action was April 3, 2007, respectively entitled 127.4), and section 758.7 of the U.S. published in the Customs Bulletin, Vol. ‘‘Notice of Request for Faxed Export Administration regulations (15 46, No. 13, on March 21, 2012. In its

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modified ruling, CBP clarified that 601 et seq.), as amended by the Small merchandise, Reporting and jewelry set with tumbled diamonds Business Regulatory Enforcement and recordkeeping requirements, Restricted imported from Zambia are not rough Fairness Act of 1996. A small entity may merchandise, Sanctions. diamonds and therefore are not subject be a small business (defined as any 19 CFR Part 163 to the KPCS and are not prohibited from independently owned and operated importation under the U.S. Clean business not dominant in its field that Administrative practice and Diamond Trade Act (19 U.S.C. 3901); qualifies as a small business per the procedure, Customs duties and however, CBP noted that loose tumbled Small Business Act); a small not-for- inspection, Exports, Imports, Penalties, diamonds from Zambia are not profit organization; or a small Reporting and recordkeeping admissible into the United States governmental jurisdiction (locality with requirements. because tumbled diamonds are fewer than 50,000 people). 19 CFR Part 178 considered rough and Zambia is not a CBP has considered the impact of this member of the KPCS. Please note that rule on small entities. As discussed in Administrative practice and rulings are binding on the ruling the NPRM, this rule clarifies that any procedure, Imports, Reporting and requester and are tailored to the specific U.S. person exporting from or importing recordkeeping requirement. facts and circumstances of the particular into the United States a shipment of Amendments to the CPB Regulations case at issue. rough diamonds must retain a copy of For the reasons set forth above, parts Conclusion the Kimberley Process Certificate for a 12, 163, and 178 of title 19 of the Code period of five years and make this copy of Federal Regulations (19 CFR parts 12, After review of the comments and available for inspection at the request of further consideration, CBP has decided 163, and 178) are amended as set forth CBP or face penalties, that may be below. to adopt as final the proposed rule greater than $500 (in 1980 dollars), published in the Federal Register (77 pursuant to 19 U.S.C. 1509 or 3907. CBP PART 12—SPECIAL CLASSES OF FR 48918) on August 15, 2012. believes the costs of retaining a copy of MERCHANDISE Executive Order 12866 and 13563 the Kimberley Process Certificate for five years and providing the copy to ■ 1. The general authority citation for Executive Orders 12866 and 13563 CBP upon request to be negligible. part 12, CBP regulations, continues, and direct agencies to assess the costs and Additionally, as discussed in the NPRM, a new specific authority citation for benefits of available regulatory CBP subject matter experts do not § 12.152 is added, to read as follows: alternatives and, if regulation is believe this rule will increase necessary, to select regulatory Authority: 5 U.S.C. 301; 19 U.S.C. 66, noncompliance with the KPCS for small approaches that maximize net benefits 1202 (General Note 3(i), Harmonized Tariff entities. During the comment period of Schedule of the United States (HTSUS)), (including potential economic, the NPRM, CBP did not receive any 1624. environmental, public health and safety comments that would amend these * * * * * effects, distributive impacts, and conclusions. Thus, CBP certifies that Section 12.152 also issued under 19 U.S.C. equity). Executive Order 13563 this rule will not have a significant 1484, 1498; the Clean Diamond Trade Act emphasizes the importance of impact on a substantial number of small (Pub. L. 108–19, 117 Stat. 631 (19 U.S.C. quantifying both costs and benefits, of 3901 et seq.)); Executive Order 13312 dated entities. reducing costs, of harmonizing rules, July 29, 2003. and of promoting flexibility. This rule is Paperwork Reduction Act ■ 2. Section 12.152 is added to read as not a ‘‘significant regulatory action,’’ Under the Paperwork Reduction Act, follows: under section 3(f) of Executive Order an agency may not conduct or sponsor, 12866. Accordingly, OMB has not § 12.152 Prohibitions and conditions on and an individual is not required to the importation and exportation of rough reviewed this regulation. respond to, a collection of information This rule increases CBP’s ability to diamonds. unless it displays a valid OMB control verify whether importations or (a) General. The Clean Diamond number. The collections of information exportations of rough diamonds are in Trade Act (Pub. L. 108–19) requires the contained in these regulations are compliance with the KPCS. OFAC President, subject to certain waiver provided for by OMB control number published the RDCR requiring the authorities, to prohibit the importation 1505–0198, to cover the requirements ultimate consignee to retain the original into, or exportation from, the United concerning CBP Form 7501, and by of the Kimberley Process Certificate. States, of any rough diamond, from OMB control number 1651–0076, to The amendments clarify that any U.S. whatever source, that has not been cover the recordkeeping requirement. person exporting from or importing into controlled through the Kimberley the United States a shipment of rough Signing Authority Process Certification Scheme. By Executive Order 13312 dated July 29, diamonds must retain a copy of the This document is being issued in Kimberley Process Certificate for a 2003, published in the Federal Register accordance with § 0.1(a)(1) of the CBP (68 FR 45151) on July 31, 2003, the period of five years and make this copy Regulations (19 CFR 0.1(a)(1)) available for inspection at the request of President implemented the Clean pertaining to the authority of the Diamond Trade Act, effective for rough CBP or face penalties pursuant to 19 Secretary of the Treasury (or his/her U.S.C. 1509 or 3907. CBP believes the diamonds imported into, or exported delegate) to approve regulations related from, the United States on or after July costs of retaining a copy of the to certain customs revenue functions. Kimberley Process Certificate for five 30, 2003. Pursuant to Executive Order years and producing the copy to CBP List of Subjects 13312 and other authorities, the Office upon request to be negligible. of Foreign Assets Control (OFAC), 19 CFR Part 12 Department of the Treasury, Regulatory Flexibility Act Customs duties and inspection, promulgated the Rough Diamonds This section examines the impact of Economic sanctions, Entry of Control Regulations (see 31 CFR part the rule on small entities as required by merchandise, Foreign assets control, 592). Any persons importing into or the Regulatory Flexibility Act (5 U.S.C. Exports, Imports, Prohibited exporting from the United States a

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shipment of rough diamonds must electronic equivalent filed with CBP in ■ 5. The Appendix to part 163 is comply with the requirements of CBP, connection with an importation of amended by adding a new listing under OFAC, and the U.S. Census Bureau (15 rough diamonds must retain the original section IV in numerical order to read as CFR part 30). Kimberley Process Certificate for a follows: (b) Definitions. For purposes of this period of at least five years from the Appendix to Part 163—Interim (a)(1)(A) section, the following definitions apply: date of importation and must make the List (1) Controlled through the Kimberley certificate available for examination at Process Certification Scheme. the request of CBP. * * * * * ‘‘Controlled through the Kimberley (2) Importer. The U.S. person that IV. * * * Process Certification Scheme’’ means imports into the United States a § 12.152 Kimberley Process Certificate for meeting the requirements set forth in 31 shipment of rough diamonds must rough diamonds. CFR 592.301; retain a copy of the Kimberley Process * * * * * (2) Kimberley Process Certificate. Certificate accompanying the shipment ‘‘Kimberley Process Certificate’’ means a for a period of at least five years from PART 178—APPROVAL OF forgery resistant document that meets the date of importation and must make INFORMATION COLLECTION the minimum requirements listed in the copy available for examination at REQUIREMENTS Annex I of the Kimberley Process the request of CBP. Certification Scheme, as well as the (3) Exporter. The U.S. person that ■ 6. The authority citation for part 178 requirements listed in 31 CFR 592.307; exports from the United States a continues to read as follows: (3) Rough diamond. ‘‘Rough shipment of rough diamonds must diamond’’ means any diamond that is Authority: 5 U.S.C. 301; 19 U.S.C. 1624, retain a copy of the Kimberley Process 44 U.S.C. 3501 et seq. unworked or simply sawn, cleaved, or Certificate accompanying the shipment ■ 7. Section 178.2 is amended by adding bruted and classifiable under for a period of at least five years from a new listing to the table in numerical subheading 7102.10, 7102.21, or the date of exportation and must make order to read as follows: 7102.31 of the Harmonized Tariff the copy available for examination at Schedule of the United States; the request of CBP. § 178.2 Listing of OMB control numbers. (4) United States. ‘‘United States’’, when used in the geographic sense, PART 163—RECORDKEEPING 19 CFR OMB Control means the several states, the District of Section Description No. Columbia, and any commonwealth, ■ 3. The specific authority citation for territory, or possession of the United part 163 is revised and the general States; and authority citation continues to read as ***** (5) United States person. ‘‘United follows: § 12.152 ... Certificate and 1505–0198 States person’’ means: record- and 1651– Authority: 5 U.S.C. 301; 19 U.S.C. 66, (i) Any United States citizen or any keeping re- 0076. 1484, 1508, 1509, 1510, 1624. quirements alien admitted for permanent residence * * * * * for the entry into the United States; of rough dia- (ii) Any entity organized under the Section 163.2 also issued under 19 U.S.C. 3904, 3907. monds. laws of the United States or any jurisdiction within the United States * * * * * ***** (including its foreign branches); and ■ 4. In § 163.2, paragraph (c) is revised to read as follows: (iii) Any person in the United States. Thomas S. Winkowski, (c) Original Kimberley Process Certificate. A shipment of rough § 163.2 Persons required to maintain Deputy Commissioner, Performing the duties records. of the Commissioner of U.S., Customs and diamonds imported into, or exported Border Protection. from, the United States must be * * * * * Approved: June 28, 2013. accompanied by an original Kimberley (c) Recordkeeping required for certain Process Certificate. exporters—(1) NAFTA. Any person who Timothy E. Skud, (d) Formal Entry Required. Formal exports goods to Canada or Mexico for Deputy Assistant Secretary of the Treasury. entry is required when importing a which a Certificate of Origin was [FR Doc. 2013–15972 Filed 7–5–13; 8:45 am] shipment of rough diamonds. Formal completed and signed pursuant to the BILLING CODE 9111–14–P entry procedures are prescribed in part North American Free Trade Agreement 142 of this chapter. must also maintain records in (e) Report of Kimberley Process accordance with part 181 of this DEPARTMENT OF STATE Certificate Unique Identifying Number. chapter. Customs brokers, importers, and filers (2) Kimberley Process Certification 22 CFR Part 123 making entry of a shipment of rough Scheme. Any U.S. person (see definition RIN 1400–AD07 diamonds must either submit through in § 12.152(b)(5)) who exports from the CBP’s Automated Broker Interface (ABI) United States any rough diamonds must [Public Notice 8371] system the unique identifying number retain a copy of the Kimberley Process International Traffic in Arms of the Kimberley Process Certificate Certificate accompanying each shipment Regulations: Canadian Firearms accompanying the shipment or, for non- for a period of at least five years from Components Exemption ABI entries, indicate the certificate the date of exportation. See 19 CFR number on the CBP Form 7501, Entry 12.152(f)(3). Any U.S. person who AGENCY: Department of State. Summary, on each applicable line item. exports from the United States any ACTION: Final rule. (f) Maintenance of Kimberley Process rough diamonds and does not keep Certificate—(1) Ultimate consignee. The records in this time frame may be SUMMARY: The Department of State is ultimate consignee identified on the subject to penalties under 19 U.S.C. amending the International Traffic in CBP Form 7501, Entry Summary, or its 3907. Arms Regulations to implement a

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statutory provision regarding the § 553(d) do not apply to this (including potential economic, exemption from licensing for export to rulemaking. Therefore, this rule is environmental, public health and safety Canada of firearms components not effective upon publication. effects, distributed impacts, and equity). exceeding $500 in value. These executive orders stress the Regulatory Flexibility Act DATES: This rule is effective July 8, importance of quantifying both costs 2013. Since the Department is of the and benefits, of reducing costs, of opinion that this rule is exempt from the harmonizing rules, and of promoting FOR FURTHER INFORMATION CONTACT: Ms. provisions of 5 U.S.C. 553, there is no flexibility. This rule has been Sarah J. Heidema, Acting Director, requirement for an analysis under the designated ‘‘significant regulatory Office of Defense Trade Controls Policy, Regulatory Flexibility Act. actions,’’ although not economically Department of State, telephone (202) Unfunded Mandates Reform Act of 1995 significant, under section 3(f) of 663–2792, email Executive Order 12866. Accordingly, [email protected]. ATTN: This rulemaking does not involve a this rule has been reviewed by the Part 123, Canadian Firearms mandate that will result in the Office of Management and Budget Components Exemption. expenditure by State, local, and tribal (OMB). SUPPLEMENTARY INFORMATION: The governments, in the aggregate, or by the Department of State is amending the private sector, of $100 million or more Executive Order 12988 International Traffic in Arms in any year and it will not significantly The Department of State has reviewed Regulations (ITAR) to implement or uniquely affect small governments. this rulemaking in light of sections 3(a) section 520 of the Consolidated and Therefore, no actions were deemed and 3(b)(2) of Executive Order 12988 to Further Continuing Appropriations Act necessary under the provisions of the eliminate ambiguity, minimize 2012 (Pub. L. 112–55), which applies to Unfunded Mandates Reform Act of litigation, establish clear legal fiscal year 2012 appropriations, as 1995. standards, and reduce burden. carried forward for fiscal year 2013 by Executive Order 13175 Paperwork Reduction Act the Full Year Continuing Appropriations Act 2013 (Pub. L. 113– The Department of State has This rule does not impose any new 6). The Department has the authority to determined that this rulemaking will reporting or recordkeeping requirements regulate the export control program not have tribal implications, will not subject to the Paperwork Reduction Act, pursuant to the Arms Export Control impose substantial direct compliance 44 U.S.C. Chapter 35. costs on Indian tribal governments, and Act, 22 U.S.C. 2778. List of Subjects in 22 CFR 123 Pursuant to section 520, the will not pre-empt tribal law. Department cannot require a license for Accordingly, the provisions of Arms and munitions, Exports, the export of certain firearms and Executive Order 13175 do not apply to Reporting and recordkeeping firearms components for end-use by the this rulemaking. requirements. Canadian government with a total Accordingly, for the reasons set forth Small Business Regulatory Enforcement above, Title 22, Chapter I, Subchapter transaction value not exceeding $500 Fairness Act of 1996 wholesale, and cannot require a license M, part 123, is amended as follows: for the export of certain firearms This rulemaking has been found not to be a major rule within the meaning PART 123—LICENSES FOR THE components for end-use in Canada with EXPORT OF DEFENSE ARTICLES a total transaction value not exceeding of the Small Business Regulatory $500 wholesale. ITAR § 123.17 is Enforcement Fairness Act of 1996. ■ 1. The authority citation for part 123 revised accordingly. In addition, ITAR Executive Orders 12372 and 13132 is revised to read as follows: § 123.16(b)(6) is amended to remove the This rulemaking will not have Authority: Secs. 2, 38, and 71, Pub. L. 90– words ‘‘for personal use,’’ as the substantial direct effects on the States, 629, 90 Stat. 744 (22 U.S.C. 2752, 2778, firearms exemption at ITAR § 123.17 on the relationship between the national 2797); 22 U.S.C. 2753; 22 U.S.C. 2651a; 22 includes use of the exemption for an government and the States, or on the U.S.C. 2776; Pub. L. 105–261, 112 Stat. 1920; end-use other than personal use. Sec. 1205(a), Pub. L. 107–228; Sec. 520, Pub. distribution of power and This rule implements a statutory L. 112–55; Section 1261, Pub. L. 112–239; responsibilities among the various mandate, and concerns a foreign affairs E.O. 13637, 78 FR 16129. levels of government. Therefore, in function of the United States. Therefore, ■ accordance with Executive Order 13132, 2. Section 123.16 is amended by the Department is publishing this as a it is determined that this rulemaking revising paragraph (b)(6) to read as final rule, and is not soliciting does not have sufficient federalism follows: comments. implications to require consultations or § 123.16 Exemptions of general Regulatory Analysis and Notices warrant the preparation of a federalism applicability. summary impact statement. The Administrative Procedure Act * * * * * regulations implementing Executive (b) * * * The Department of State is of the Order 12372 regarding (6) For exemptions for firearms and opinion that controlling the import and intergovernmental consultation on ammunition refer to § 123.17 of this export of defense articles and services is Federal programs and activities do not subchapter. a foreign affairs function of the United apply to this rulemaking. * * * * * States Government and that rules Executive Orders 12866 and 13563 ■ 3. Section 123.17 is amended by implementing this function are exempt revising paragraph (a) to read as follows: from sections 553 (rulemaking) and 554 Executive Orders 12866 and 13563 (adjudications) of the Administrative direct agencies to assess costs and § 123.17 Exports of firearms, ammunition, Procedure Act. Since the Department is benefits of available regulatory and personal protective gear. of the opinion that this rule is exempt alternatives and, if regulation is (a) Port Directors of U.S. Customs and from 5 U.S.C. 553, it is the view of the necessary, to select regulatory Border Protection shall permit the Department that the provisions of approaches that maximize net benefits export without a license of:

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(1) Parts and components for USML DEPARTMENT OF HOMELAND Multiple Sclerosis: Historic New Bern Category I(a) firearms, except barrels, SECURITY Bike Ride. cylinders, receivers (frames), or The US 70/Alfred C. Cunningham complete breech mechanisms, when the Coast Guard Bridge across the Trent River, mile 0.0, total value does not exceed $100 a double bascule lift Bridge, in New wholesale in any transaction, except to 33 CFR Part 117 Bern, NC, has a vertical clearance in the any of the countries or entities as closed position of 14 feet, above mean provided in § 126.1 of this subchapter; [Docket No. USCG–2013–0554] high water. Under the normal operating schedule, the US 70/Alfred C. (2) Parts, components, accessories, or Drawbridge Operation Regulation; Cunningham Bridge would open on attachments for USML Category I Trent River, New Bern, NC signal during this timeframe. However, firearms, except barrels, cylinders, under this temporary deviation, the AGENCY: Coast Guard, DHS. receivers (frames), complete breech drawbridge will be allowed to remain in mechanisms, or fully automatic firearms ACTION: Notice of deviation from the closed-to-navigation position from 8 and parts and components for such drawbridge regulations. a.m. to 9 a.m. on Saturday, September firearms, when: 7, 2013 and from 8 a.m. to 9 a.m. on SUMMARY: The Commander, Fifth Coast (i) The total value does not exceed Guard District, has issued a temporary Sunday, September 8, 2013 to $500 wholesale in any transaction; deviation from the operating schedule accommodate the Bike Multiple that governs the US 70/Alfred C. Sclerosis: Historic New Bern Bike Ride. (ii) The export is to Canada for end- Vessels able to pass under the closed Cunningham Bridge across the Trent use in Canada or return to the United span may do so. Mariners are advised to River, mile 0.0, at New Bern, NC. The States, or temporary import into the proceed with caution. The Coast Guard deviation allows the bridge draw span United States of Canadian-origin items will inform users of the waterway to remain in the closed to navigation and return to Canada for a Canadian through our local and broadcast Notices position for one hour on two citizen; and to Mariners of the limited operating consecutive days to accommodate the schedule for the drawbridge so that (iii) The exporter makes a declaration annual Bike Multiple Sclerosis: Historic vessels can arrange their transits to via the Automated Export System, New Bern Bike Ride. pursuant to § 123.22(a) of this minimize any impacts caused by the DATES: This deviation is effective from temporary deviation. There are no subchapter, and the exporter is eligible 8 a.m. to 9 a.m. on September 7, 2013 to export under this exemption, alternate routes for vessels and the and again from 8 a.m. to 9 a.m. on bridge will be able to open in the event pursuant to § 120.1(c) of this September 8, 2013. subchapter; or of an emergency. ADDRESSES: The docket for this In accordance with 33 CFR 117.35(e), (3) Parts, components, accessories, or deviation, [USCG–2013–0554] is the drawbridge must return to its regular attachments for USML Category I available at http://www.regulations.gov. operating schedule immediately at the firearms, including fully automatic Type the docket number in the end of the designated time period. firearms and parts and components for ‘‘SEARCH’’ box and click ‘‘SEARCH.’’ This deviation from the operating such firearms, when: Click on Open Docket Folder on the line regulations is authorized under 33 CFR (i) The total value does not exceed associated with this deviation. You may 117.35. $500 wholesale in any transaction; also visit the Docket Management Dated: June 20, 2013. Facility in Room W12–140 on the Waverly W. Gregory, Jr., (ii) The export is to Canada for end- ground floor of the Department of use by the Canadian Federal Transportation West Building, 1200 Bridge Program Manager, Fifth Coast Guard District. Government, a Canadian Provincial New Jersey Avenue SE., Washington, Government, or a Canadian Municipal DC 20590, between 9 a.m. and 5 p.m., [FR Doc. 2013–16250 Filed 7–5–13; 8:45 am] Government; and Monday through Friday, except Federal BILLING CODE 9110–04–P (iii) The exporter makes a declaration holidays. via the Automated Export System, FOR FURTHER INFORMATION CONTACT: If DEPARTMENT OF HOMELAND pursuant to § 123.22(a) of this you have questions on this temporary SECURITY subchapter, and the exporter is eligible deviation, call or email Mrs. Jessica to export under this exemption, Shea, Bridge Management Specialist, Coast Guard pursuant to § 120.1(c) of this Fifth Coast Guard District, telephone subchapter. (757) 398–6422. Email 33 CFR Part 165 [email protected]. If you have * * * * * [Docket No. USCG–2013–0539] questions on viewing the docket, call Rose E. Gottemoeller, Barbara Hairston, Program Manager, RIN 1625–AA00 Acting Under Secretary, Arms Control and Docket Operations, telephone (202)366– International Security, Department of State. 9826. Safety Zone; Venetian Fireworks; Kalamazoo Lake, Saugatuck, MI [FR Doc. 2013–16152 Filed 7–5–13; 8:45 am] SUPPLEMENTARY INFORMATION: The Event BILLING CODE 4710–25–P Director for the Bike Multiple Sclerosis: AGENCY: Coast Guard, DHS. Historic New Bern Bike Ride, with ACTION: Temporary final rule. approval from the North Carolina Department of Transportation, owner of SUMMARY: The Coast Guard is the drawbridge, has requested a establishing a temporary safety zone on temporary deviation from the current Kalamazoo Lake in Saugatuck, MI. This operating regulations set out in 33 CFR safety zone is intended to restrict 117.843(a) to accommodate a safe vessels from a portion of Kalamazoo passage for cyclists during the Bike Lake due to a fireworks display. This

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temporary safety zone is necessary to doing so would be impracticable. The D. Regulatory Analyses protect the surrounding public and final details for this event were not vessels from the hazards associated with known to the Coast Guard until there We developed this rule after the fireworks display. was insufficient time remaining before considering numerous statutes and executive orders related to rulemaking. DATES: the event to publish an NPRM. Thus, This rule is effective from 9 p.m. Below we summarize our analyses until 11 p.m. on July 27, 2013. delaying the effective date of this rule to wait for a comment period to run would based on these statutes and executive ADDRESSES: Documents mentioned in orders. this preamble are part of docket USCG– be impracticable because it would 2013–0539. To view documents inhibit the Coast Guard’s ability to 1. Regulatory Planning and Review protect spectators and vessels from the mentioned in this preamble as being This rule is not a significant available in the docket, go to http:// hazards associated with a maritime fireworks display, which are discussed regulatory action under section 3(f) of www.regulations.gov, type the docket Executive Order 12866, Regulatory number in the ‘‘SEARCH’’ box and click further below. Under 5 U.S.C. 553(d)(3), The Coast Planning and Review, as supplemented ‘‘SEARCH.’’ Click on Open Docket by Executive Order 13563, Improving Folder on the line associated with this Guard finds that good cause exists for making this temporary rule effective less Regulation and Regulatory Review, and rulemaking. You may also visit the does not require an assessment of Docket Management Facility in Room than 30 days after publication in the Federal Register. For the same reasons potential costs and benefits under W12–140 on the ground floor of the section 6(a)(3) of Executive Order 12866 Department of Transportation West discussed in the preceding paragraph, waiting for a 30 day notice period to run or under section 1 of Executive Order Building, 1200 New Jersey Avenue SE., 13563. The Office of Management and Washington, DC 20590, between 9 a.m. would be impracticable and contrary to the public interest. Budget has not reviewed it under those and 5 p.m., Monday through Friday, Orders. It is not ‘‘significant’’ under the except Federal holidays. B. Basis and Purpose regulatory policies and procedures of FOR FURTHER INFORMATION CONTACT: If The legal basis for the rule is the the Department of Homeland Security you have questions on this temporary Coast Guard’s authority to establish (DHS). rule, contact or email MST1 Joseph regulated navigation areas and limited We conclude that this rule is not a McCollum, U.S. Coast Guard Sector access areas: 33 U.S.C. 1231; 46 U.S.C. significant regulatory action because we Lake Michigan, at 414–747–7148 or Chapter 701, 3306, 3703; 50 U.S.C. 191, anticipate that it will have minimal [email protected]. If you 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, impact on the economy, will not have questions on viewing the docket, 160.5; Public Law 107–295, 116 Stat. interfere with other agencies, will not call Barbara Hairston, Program Manager, 2064; Department of Homeland Security adversely alter the budget of any grant Docket Operations, telephone (202) Delegation No. 0170.1. or loan recipients, and will not raise any 366–9826. During the evening of July 27, 2013, novel legal or policy issues. The safety SUPPLEMENTARY INFORMATION: the Fireworks Fund Committee in zone created by this rule will be small Table of Acronyms Saugatuck, MI will sponsor a fireworks and enforced for only one day in July. display from a barge on Kalamazoo Under certain conditions, moreover, DHS Department of Homeland Security vessels may still transit through the FR Federal Register Lake. The Captain of the Port, Lake Michigan, has determined that this safety zone when permitted by the NPRM Notice of Proposed Rulemaking Captain of the Port. TFR Temporary Final Rule fireworks display will pose a significant risk to public safety and property. Such 2. Impact on Small Entities A. Regulatory History and Information hazards include falling debris and This annual fireworks display is potential collisions among spectator Under the Regulatory Flexibility Act codified in 33 CFR 165.929(50) with a vessels. (5 U.S.C. 601–612), we have considered the impact of this proposed rule on display location on the south shore of C. Discussion of the Final Rule Lake Kalamazoo. However, the Coast small entities. The Coast Guard certifies Guard was informed by the event With the aforementioned hazards in under 5 U.S.C. 605(b) that this proposed organizer that this year’s display will mind, the Captain of the Port, Lake rule will not have a significant take place at a position approximately Michigan, has determined that this economic impact on a substantial 1000 feet to the north, in the middle of temporary safety zone is necessary to number of small entities. The Coast Lake Kalamazoo. This temporary final ensure the safety of spectators and Guard certifies under 5 U.S.C. 605(b) rule locates a temporary safety zone vessels during the fireworks display on that this rule will not have a significant over the 2013 fireworks launch site. Kalamazoo Lake. This zone will be economic impact on a substantial The Coast Guard is issuing this effective and enforced from 9 p.m. until number of small entities. This rule will temporary final rule without prior 11 p.m. on July 27, 2013. This zone will affect the following entities, some of notice and opportunity to comment encompass all waters of Kalamazoo which might be small entities: The pursuant to authority under section 4(a) Lake in Saugatuck, MI within an 800 owners or operators of vessels intending of the Administrative Procedure Act foot radius of an approximate launch to transit or anchor in a portion of (APA) (5 U.S.C. 553(b)). This provision position at 42°39′4.4″ N, 86°12′17.1″ W Kalamazoo Lake on July 27, 2013. authorizes an agency to issue a rule (NAD 83). This safety zone will not have a without prior notice and opportunity to Entry into, transiting, or anchoring significant economic impact on a comment when the agency for good within the safety zone is prohibited substantial number of small entities for cause finds that those procedures are unless authorized by the Captain of the the reasons cited in the Regulatory ‘‘impracticable, unnecessary, or contrary Port, Lake Michigan, or his designated Planning and Review section. to the public interest.’’ Under 5 U.S.C. on-scene representative. The Captain of Additionally, before enforcement of the 553(b)(B), the Coast Guard finds that the Port or his designated on-scene zone, we will issue a local Broadcast good cause exists for not publishing an representative may be contacted via Notice to Mariners so vessel owners and NPRM with respect to this rule because VHF Channel 16. operators can plan accordingly.

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3. Assistance for Small Entities State, local, or tribal government, in the of a category of actions that do not Under section 213(a) of the Small aggregate, or by the private sector of individually or cumulatively have a Business Regulatory Enforcement $100,000,000 (adjusted for inflation) or significant effect on the human Fairness Act of 1996 (Pub. L. 104–121), more in any one year. Though this rule environment. This rule involves the we want to assist small entities in will not result in such an expenditure, establishment of a safety zone and, understanding this rule. If the rule we do discuss the effects of this rule therefore it is categorically excluded would affect your small business, elsewhere in this preamble. from further review under paragraph 34(g) of Figure 2–1 of the Commandant organization, or governmental 8. Taking of Private Property jurisdiction and you have questions Instruction. An environmental analysis concerning its provisions or options for This rule will not cause a taking of checklist supporting this determination compliance, please contact the person private property or otherwise have and a Categorical Exclusion listed in the FOR FURTHER INFORMATION taking implications under Executive Determination are available in the CONTACT section above. Order 12630, Governmental Actions and docket where indicated under Small businesses may send comments Interference with Constitutionally ADDRESSES. Protected Property Rights. on the actions of Federal employees List of Subjects in 33 CFR Part 165 who enforce, or otherwise determine 9. Civil Justice Reform compliance with, Federal regulations to Harbors, Marine safety, Navigation the Small Business and Agriculture This rule meets applicable standards (water), Reporting and recordkeeping Regulatory Enforcement Ombudsman in sections 3(a) and 3(b)(2) of Executive requirements, Security measures, and the Regional Small Business Order 12988, Civil Justice Reform, to Waterways. Regulatory Fairness Boards. The minimize litigation, eliminate For the reasons discussed in the Ombudsman evaluates these actions ambiguity, and reduce burden. preamble, the Coast Guard amends 33 annually and rates each agency’s 10. Protection of Children CFR parts 165 as follows: responsiveness to small business. If you wish to comment on actions by We have analyzed this rule under PART 165—REGULATED NAVIGATION employees of the Coast Guard, call Executive Order 13045, Protection of AREAS AND LIMITED ACCESS AREAS 1–888–REG–FAIR (1–888–734–3247). Children from Environmental Health Risks and Safety Risks. This rule is not ■ 1. The authority citation for part 165 The Coast Guard will not retaliate continues to read as follows: against small entities that question or an economically significant rule and complain about this rule or any policy does not create an environmental risk to Authority: 33 U.S.C. 1231; 46 U.S.C. or action of the Coast Guard. health or risk to safety that may Chapters 701, 3306, 3703; 50 U.S.C. 191, 195; disproportionately affect children. 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 4. Collection of Information Pub. L. 107–295, 116 Stat. 2064; Department 11. Indian Tribal Governments of Homeland Security Delegation No. 0170.1. This rule will not call for a new collection of information under the This rule does not have tribal ■ 2. Add § 165.T09–0539 to read as Paperwork Reduction Act of 1995 (44 implications under Executive Order follows: U.S.C. 3501–3520). 13175, Consultation and Coordination with Indian Tribal Governments, § 165.T09–0539 Safety Zone; Venetian 5. Federalism because it does not have a substantial Fireworks; Kalamazoo Lake, Saugatuck, MI. A rule has implications for federalism direct effect on one or more Indian (a) Location. The safety zone will under Executive Order 13132, tribes, on the relationship between the encompass all waters of Kalamazoo Federalism, if it has a substantial direct Federal Government and Indian tribes, Lake near Saugatuck, MI within an 800 effect on the States, on the relationship or on the distribution of power and foot radius of an approximate launch ° ′ ″ ° ′ ″ between the national government and responsibilities between the Federal position at 42 39 4.4 N, 86 12 17.1 W the States, or on the distribution of Government and Indian tribes. (NAD 83). (b) Effective and Enforcement Period. power and responsibilities among the 12. Energy Effects various levels of government. We have This rule is effective and will be analyzed this rule under that Order and This action is not a ‘‘significant enforced from 9 p.m. until 11 p.m. on determined that this rule does not have energy action’’ under Executive Order July 27, 2013. implications for federalism. 13211, Actions Concerning Regulations (c) Regulations. (1) In accordance with That Significantly Affect Energy Supply, the general regulations in section 165.23 6. Protest Activities Distribution, or Use. of this part, entry into, transiting, or The Coast Guard respects the First anchoring within this safety zone is 13. Technical Standards Amendment rights of protesters. prohibited unless authorized by the Protesters are asked to contact the This rule does not use technical Captain of the Port, Lake Michigan or person listed in the FOR FURTHER standards. Therefore, we did not his designated on-scene representative. INFORMATION CONTACT section to consider the use of voluntary consensus (2) This safety zone is closed to all coordinate protest activities so that your standards. vessel traffic, except as may be permitted by the Captain of the Port, message can be received without 14. Environment jeopardizing the safety or security of Lake Michigan or his designated on- people, places or vessels. We have analyzed this rule under scene representative. Department of Homeland Security (3) The ‘‘on-scene representative’’ of 7. Unfunded Mandates Reform Act Management Directive 023–01 and the Captain of the Port, Lake Michigan The Unfunded Mandates Reform Act Commandant Instruction M16475.lD, is any Coast Guard commissioned, of 1995 (2 U.S.C. 1531–1538) requires which guide the Coast Guard in warrant or petty officer who has been Federal agencies to assess the effects of complying with the National designated by the Captain of the Port, their discretionary regulatory actions. In Environmental Policy Act of 1969 Lake Michigan to act on his behalf. particular, the Act addresses actions (NEPA)(42 U.S.C. 4321–4370f), and (4) Vessel operators desiring to enter that may result in the expenditure by a have determined that this action is one or operate within the safety zone shall

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contact the Captain of the Port, Lake or email MST1 Joseph McCollum, Dated: June 21, 2013. Michigan or his on-scene representative Prevention Department, Coast Guard M.W. Sibley, to obtain permission to do so. Sector Lake Michigan, telephone 414– Captain, U.S. Coast Guard, Captain of the The Captain of the Port, Lake 747–7148, email address Port, Lake Michigan. Michigan or his on-scene representative [email protected]. [FR Doc. 2013–16251 Filed 7–5–13; 8:45 am] may be contacted via VHF Channel 16. SUPPLEMENTARY INFORMATION: The Coast BILLING CODE 9110–04–P Vessel operators given permission to Guard will enforce a segment of the enter or operate in the safety zone must Safety Zone; Brandon Road Lock and comply with all directions given to Dam to Lake Michigan including Des ENVIRONMENTAL PROTECTION them by the Captain of the Port, Lake Plaines River, Chicago Sanitary and AGENCY Michigan, or his on-scene Ship Canal, Chicago River, Calumet- representative. Saganashkee Channel, Chicago, IL, 40 CFR Part 60, 61, and 63 Dated: June 21, 2013. listed in 33 CFR 165.930 for the USACE [EPA–R08–OAR–2012–0764; FRL–9828–6] M.W. Sibley, performance testing at the dispersal Captain, U.S. Coast Guard, Captain of the barriers. The Coast Guard will enforce Delegation of Authority to the Port, Lake Michigan. this safety zone between Mile Marker Southern Ute Indian Tribe To [FR Doc. 2013–16249 Filed 7–5–13; 8:45 am] 296.1 to Mile Marker 296.7 on all waters Implement and Enforce National BILLING CODE 9110–04–P of the Chicago Sanitary and Ship Canal Emissions Standards for Hazardous according to the following schedule: Air Pollutants and New Source (1) Dispersal Barrier performance Performance Standards DEPARTMENT OF HOMELAND testing schedule. AGENCY: Environmental Protection SECURITY July 15, 2013, from 1 p.m. until 5 Agency (EPA). p.m.; Coast Guard July 16, 2013, from 7 a.m. until 11 ACTION: Direct final rule. a.m. and 1 p.m. until 5 p.m.; SUMMARY: 33 CFR Part 165 EPA is taking final action to July 17, 2013, from 7 a.m. until 11 approve the Southern Ute Indian Tribe’s [Docket No. USCG–2011–0228] a.m. and 1 p.m. until 5 p.m.; (SUIT) July 3, 2012 request for July 18, 2013, from 7 a.m. until 11 delegation of authority to implement Safety Zone; Brandon Road Lock and a.m. and 1 p.m. until 5 p.m.; and enforce National Emissions July 19, 2013, from 7 a.m. until 11 Dam to Lake Michigan Including Des Standards for Hazardous Air Pollutants a.m. Plaines River, Chicago Sanitary and (NESHAP) and New Source This enforcement action is necessary Ship Canal, Chicago River, and Performance Standards (NSPS). This because the Captain of the Port, Lake Calumet-Saganashkee Channel, request establishes and requires SUIT to Michigan has determined that the Chicago, IL administer a NSPS and NESHAPs USACE Dispersal Barriers performance program per EPA regulations. The AGENCY: Coast Guard, DHS. testing poses risks to life and property. delegation is facilitated by SUIT’s ACTION: Notice of enforcement of Because of these risks, it is necessary to treatment ‘‘in the same manner as a regulation. control vessel movement during the state’’ (TAS) document, per CAA testing to prevent injury and property SUMMARY: The Coast Guard will enforce requirements. loss. a segment of the Safety Zone; Brandon In accordance with the general DATES: This rule is effective on Road Lock and Dam to Lake Michigan regulations in § 165.23 of this part, entry September 6, 2013 without further including Des Plaines River, Chicago into, transiting, mooring, laying up or notice, unless EPA receives adverse Sanitary and Ship Canal, Chicago River, anchoring within the enforced area of comment by August 7, 2013. If adverse Calumet-Saganashkee Channel on all this safety zone by any person or vessel comment is received, EPA will publish waters of the Chicago Sanitary and Ship is prohibited unless authorized by the a timely withdrawal of the direct final Canal from Mile Marker 296.1 to Mile Captain of the Port, Lake Michigan, or rule in the Federal Register informing Marker 296.7 at specified times on July his designated representative. The the public that the rule will not take 15 through July 19, 2013. This action is Captain of the Port, Lake Michigan, or effect. necessary to protect the waterways, his designated representative may be waterway users, and vessels from ADDRESSES: Submit your comments, contacted via the U.S. Coast Guard hazards associated with the U.S. Army identified by Docket ID No. EPA–R08– Sector Lake Michigan Command Center Corps of Engineers (USACE) dispersal OAR–2012–0764, by one of the at 414–747–7182 or on VHF channel 16. following methods: barriers performance testing. This notice is issued under authority • During the enforcement periods listed http://www.regulations.gov. Follow of 33 CFR 165.930 and 5 U.S.C. 552(a). below, entry into, transiting, mooring, the on-line instructions for submitting In addition to this notice in the Federal laying-up or anchoring within the comments. Register, the Captain of the Port, Lake • enforced area of this safety zone by any Email: [email protected]. Michigan, will also provide notice • person or vessel is prohibited unless Fax: (303) 312–6064 (please alert through other means, which may FOR FURTHER authorized by the Captain of the Port, the individual listed in the include Broadcast Notice to Mariners, Lake Michigan, or his designated INFORMATION CONTACT if you are faxing Local Notice to Mariners, local news representative. comments). media, distribution in leaflet form, and • Mail: Carl Daly, Director, Air DATES: The regulations in 33 CFR on-scene oral notice. Program, Environmental Protection 165.930 will be enforced at the times Additionally, the Captain of the Port, Agency (EPA), Region 8, Mailcode 8P– specified in the SUPPLEMENTARY Lake Michigan, may notify AR, 1595 Wynkoop Street, Denver, INFORMATION section. representatives from the maritime Colorado 80202–1129. FOR FURTHER INFORMATION CONTACT: If industry through telephonic and email • Hand Delivery: Carl Daly, Director, you have questions on this notice, call notifications. Air Program, Environmental Protection

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Agency (EPA), Region 8, Mailcode 8P– Denver, Colorado 80202–1129. EPA that you claim to be CBI. For CBI AR, 1595 Wynkoop Street, Denver, requests that if at all possible, you information in a disk or CD ROM that Colorado 80202–1129. Such deliveries contact the individual listed in the FOR you mail to EPA, mark the outside of the are only accepted Monday through FURTHER INFORMATION CONTACT section to disk or CD ROM as CBI and then Friday, 8:00 a.m. to 4:30 p.m., excluding view the hard copy of the docket. You identify electronically within the disk or Federal holidays. Special arrangements may view the hard copy of the docket CD ROM the specific information that is should be made for deliveries of boxed Monday through Friday, 8:00 a.m. to claimed as CBI. In addition to one information. 4:00 p.m., excluding Federal holidays. complete version of the comment that Instructions: Direct your comments to FOR FURTHER INFORMATION CONTACT: Kyle includes information claimed as CBI, a Docket EPA–R08–OAR–2012–0764. Olson, Air Program, Mailcode 8P–AR, copy of the comment that does not EPA’s policy is that all comments U.S. Environmental Protection Agency, contain the information claimed as CBI received will be included in the public Region 8, 1595 Wynkoop Street, Denver, must be submitted for inclusion in the docket without change and may be Colorado 80202–1129, (303) 312–6002 public docket. Information so marked made available online at http:// or [email protected]. will not be disclosed except in www.regulations.gov, including any SUPPLEMENTARY INFORMATION: EPA is accordance with procedures set forth in personal information provided, unless taking final action to approve the 40 CFR part 2. the comment includes information Southern Ute Indian Tribe’s (SUIT) July 2. Tips for Preparing Your Comments. claimed to be Confidential Business 3, 2012 request for delegation of When submitting comments, remember Information (CBI) or other information authority to implement and enforce to: whose disclosure is restricted by statute. National Emissions Standards for a. Identify the rulemaking by docket Do not submit information that you Hazardous Air Pollutants (NESHAP) number and other identifying consider to be CBI or otherwise and New Source Performance Standards information (subject heading, Federal protected through http:// (NSPS). This request establishes and Register date and page number). www.regulations.gov or email. The b. Follow directions—The agency may requires SUIT to administer a NSPS and http://www.regulations.gov Web site is ask you to respond to specific questions NESHAPs program per EPA regulations. an ‘‘anonymous access’’ system, which or organize comments by referencing a SUIT met the requirements of Clean Air means EPA will not know your identity Code of Federal Regulations (CFR) part Act (CAA) sections 111(c) and 112(l) or contact information unless you or section number. and 40 CFR subpart E for full approval provide it in the body of your comment. c. Explain why you agree or disagree; to administer CAA 111 and CAA 112 If you send an email comment directly suggest alternatives and substitute programs entirely due to its prior to EPA, without going through http:// language for your requested changes. www.regulations.gov, your email approval of its CAA Title V Part 70 d. Describe any assumptions and address will be automatically captured Permitting Program. The delegation is provide any technical information and/ and included as part of the comment facilitated by SUIT’s treatment ‘‘in the or data that you used. that is placed in the public docket and same manner as a state’’ (TAS) e. If you estimate potential costs or made available on the Internet. If you document, per CAA section 301(d)(2). burdens, explain how you arrived at submit an electronic comment, EPA This action is being taken under CAA your estimate in sufficient detail to recommends that you include your sections 111 and 112. allow for it to be reproduced. name and other contact information in Table of Contents f. Provide specific examples to the body of your comment and with any illustrate your concerns, and suggest disk or CD–ROM you submit. If EPA I. General Information alternatives. II. Delegation of Authority to SUIT cannot read your comment due to III. Final Action g. Explain your views as clearly as technical difficulties and cannot contact IV. Statutory and Executive Order Reviews possible, avoiding the use of profanity you for clarification, EPA may not be or personal threats. able to consider your comment. Definitions h. Make sure to submit your Electronic files should avoid the use of For the purpose of this document, we are comments by the comment period special characters, any form of giving meaning to certain words or initials as deadline identified. encryption, and be free of any defects or follows: (i) The words or initials Act or CAA II. Delegation of Authority to SUIT viruses. For additional instructions on mean or refer to the Clean Air Act, unless the submitting comments, go to Section I. context indicates otherwise. CAA sections 111(c)(1) and 112(l), as General Information of the (ii) The words EPA, we, us or our mean or amended, authorize EPA to delegate refer to the United States Environmental SUPPLEMENTARY INFORMATION section of authority to any state or tribal agency Protection Agency. which submits adequate regulatory this document. (iii) The word NESHAP means or refers to Docket: All documents in the docket National Emissions Standards for Hazardous procedures for implementation and are listed in the http:// Air Pollutants. enforcement of the NSPS and NESHAP. www.regulations.gov index. Although (iv) The word NSPS means or refers to the The NSPS are codified in 40 CFR part listed in the index, some information is New Source Performance Standards. 60 and the NESHAP are codified in 40 not publicly available, e.g., CBI or other (v) The word SUIT means or refers to the CFR part 63. Delegation confers primary information whose disclosure is Southern Ute Indian Tribe. responsibility for implementation and restricted by statute. Certain other (vi) The word TAS means or refers to enforcement to the respective tribal material, such as copyrighted material, Treatment As a State agency; however, EPA also retains the will be publicly available only in hard I. General Information concurrent authority to enforce the copy. Publicly available docket standards. materials are available either A. What should I consider as I prepare With a July 3, 2012 letter, the electronically at http:// my comments for EPA? Chairman of the Southern Ute Indian www.regulations.gov or in hard copy at 1. Submitting CBI. Do not submit this Tribe requested delegation of authority the Air Program, U.S. Environmental information to EPA through http:// for NSPS and NESHAP, promulgated in Protection Agency (EPA), Region 8, www.regulations.gov or email. Clearly Parts 2 and 3 of the SUIT Reservation Mailcode 8P–AR, 1595 Wynkoop Street, mark the part or all of the information Air Program. EPA’s review of SUIT’s

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program determined that it contained approving this rule because the Section 5(b) of Executive Order 13175, adequate and effective procedures for authority for this delegation is based we may not issue a regulation that has the implementation and enforcement of entirely on SUIT’s previous approval of tribal implications, that imposes these federal standards. Therefore, on the Part 70 permitting program [EPA– substantial direct compliance costs, and November 27, 2012, EPA Region 8 R08–OAR–2011–0015; FRL–9277–9] that is not required by statute, unless the Federal Government provides the notified SUIT that, pending publication IV. Statutory and Executive Order funds necessary to pay the direct in the Federal Register, the Tribe is Review authorized to accept delegation of NSPS compliance costs incurred by tribal and NESHAP standards with the Under Executive Order 12866 (58 FR governments, or we consult with tribal following letter: 51735, October 4, 1993), this action is officials early in the process of not a ‘‘significant regulatory action’’ and developing the proposed regulation. ‘‘The Honorable Jimmy R. Newton Jr., therefore is not subject to review by the Chairman Under Section 5(c) of Executive Order The Southern Ute Indian Tribe Office of Management and Budget. For 13175, we may not issue a regulation P.O. Box 737 this reason, this action is also not that has tribal implications and that Ignacio, Colorado 81137–0737 subject to Executive Order 13211, preempts tribal law, unless the Agency Re: Clean Air Act (CAA) 111 and 112, New ‘‘Actions Concerning Regulations That consults with tribal officials early in the Source Performance Standards (NSPS) Significantly Affect Energy Supply, process of developing the proposed and National Emission Standards for Distribution, or Use’’ (66 FR 28355, May regulation. While we conclude that this Hazardous Air Pollutants (NESHAP) 22, 2001). This action merely approves action will have tribal implications, this Program Approval Tribal law as meeting federal action is not a regulation and merely Dear Chairman Newton: requirements and imposes no additional approves a Tribal rule implementing a I am pleased to inform you that, because requirements beyond those imposed by federal standard. This action does not the Southern Ute Indian Tribe has an Tribal law. Accordingly, the alter the relationship or the distribution approved CAA Title V permitting program, Administrator certifies that this rule of power and responsibilities the EPA finds that the Tribe has the authority will not have a significant economic established in the Clean Air Act except to carry out NSPS (CAA 111) and NESHAP impact on a substantial number of small as regards implementation of CAA 111 (CAA 112) regulatory activities, and that the entities under the Regulatory Flexibility and 112. This action will neither impose Tribe can begin requesting delegation of Act (5 U.S.C. 601 et seq). Because this substantial direct compliance costs on specific NSPS & NESHAP standards. The rule approves pre-existing requirements Tribe’s treatment ‘‘in the same manner as a tribal governments, nor preempt tribal state’’ document has been updated to reflect and does not impose any additional law. this new Program approval (per CAA section enforceable duty, it does not contain The Congressional Review Act, 5 301(d)(2) and 40 CFR 49.6.) any unfunded mandate or significantly U.S.C. section 801 et seq, as added by NSPS establishes maximum emission or uniquely affect small governments, as the Small Business Regulatory levels for new stationary sources, and described in the Unfunded Mandates Enforcement Fairness Act of 1996, NESHAPs address the control of hazardous Reform Act of 1995 (Pub. L. 104–4). generally provides that before a rule air pollutants through Maximum Achievable This action also does not have may take effect, the agency Control Technology (MACT) standards and federalism implications because it does promulgating the rule must submit a related programs that enhance and support not have substantial direct effects on the rule report, which includes a copy of the NESHAP program. The Tribe is also states, on the relationship between the granted automatic delegation of NESHAP the rule, to each House of the Congress (CAA 112) standards through incorporation national government and the states, or and to the Comptroller General of the by reference of the standards when they are on the distribution of power and United States. EPA will submit a report adopted unchanged into the Reservation Air responsibilities among the various containing this rule and other required Code (RAC) from the federal standards. A levels of government, as specified in information to the U.S. Senate, the U.S. request for delegation of specific NSPS (CAA Executive Order 13132 (64 FR 43255, House of Representatives, and the 111) standards will require a letter to the August 10, 1999. This rule also is not Comptroller General of the United EPA. After such request the EPA would subject to Executive Order 13045 States prior to publication of the rule in publish a Federal Register notice containing ‘‘Protection of Children from the Federal Register. A major rule the letter of request and an updated Code of Environmental Health Risks and Safety cannot take effect until 60 days after it Federal Regulations (CFR) table, and the EPA Risks’’ (62 FR 19885, April 23, 1997), would respond by letter to the Tribe. is published in the Federal Register. To approve future requests for delegation because it approves a Tribal rule This action is not a ‘‘major rule’’ as of NSPS and NESHAPS regulations the EPA implementing a Federal standard. defined by 5 U.S.C. 804(2). will provide public notice through Executive Order 13175, entitled Under section 307(b)(1) of the Clean publication in the Federal Register as a ‘‘Consultation and Coordination with Air Act, petitions for judicial review of direct final rule. A direct final rule makes Indian Tribal Governments’’ (65 FR this action must be filed in the United CAA 111 and CAA 112 delegations effective 67249, November 6, 2000), requires us States Court of Appeals for the the day of publication. However, should the to develop an accountable process to appropriate circuit by September 3, EPA receive any adverse comments on the ensure ‘‘meaningful and timely input by 2013. Filing a petition for direct final rule, the delegation will be tribal officials in the development of reconsideration by the Administrator of reconsidered. regulatory policies that have tribal For more information on this approval, this final rule does not affect the finality please contact Carl Daly, Director of Region implications’’. ‘‘Policies that have tribal of this action for the purposes of judicial 8’s Air Program at (303) 312–6416. implications’’ is defined in the review nor does it extend the time Sincerely, Executive Order to include regulations within which a petition for judicial James B. Martin that have ‘‘substantial direct effects on review may be filed, and shall not Regional Administrator’’ one or more Indian tribes, on the postpone the effectiveness of such rule relationship between the Federal or action. Parties with objections to this III. Summary of Final Action Government and the Indian tribes, or on direct final rule are encouraged to file a We are approving delegation of the the distribution of power and comment in response to the parallel CAA 111 and 112 programs (NSPS and responsibilities between the Federal notice of proposed rulemaking for this NESHAP, respectively) to SUIT. We are Government and Indian tribes’’. Under action published in the proposed rules

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section of today’s Federal Register, SUMMARY: NMFS is prohibiting directed impracticable and contrary to the public rather than file an immediate petition fishing for dusky rockfish in the interest as it would prevent NMFS from for judicial review of this direct final Western Regulatory Area of the Gulf of responding to the most recent fisheries rule, so that EPA can withdraw this Alaska (GOA). This action is necessary data in a timely fashion and would direct final rule and address the to prevent exceeding the 2013 total delay the closure of directed fishing for comment in the proposed rulemaking. allowable catch (TAC) of dusky rockfish dusky rockfish in the Western This action may not be challenged later in the Western Regulatory Area of the Regulatory Area of the GOA. NMFS was in proceedings to enforce its GOA. unable to publish a notice providing requirements. (See section 307(b)(2).) DATES: Effective 1200 hrs, Alaska local time for public comment because the most recent, relevant data only became List of Subjects in 40 CFR Part 60, 61, time (A.l.t.), July 3, 2013, through 2400 available as of July 1, 2013. and 63 hrs, A.l.t., December 31, 2013. The AA also finds good cause to FOR FURTHER INFORMATION CONTACT: Environmental protection, waive the 30-day delay in the effective Steve Whitney, 907–586–7269. Administrative practice and procedure, date of this action under 5 U.S.C. Air pollution control, Aluminum, SUPPLEMENTARY INFORMATION: NMFS 553(d)(3). This finding is based upon Ammonium sulfate plants, Batteries, manages the groundfish fishery in the the reasons provided above for waiver of Beverages, Carbon monoxide, Cement GOA exclusive economic zone prior notice and opportunity for public industry, Chemicals, Coal, Copper, Dry according to the Fishery Management comment. cleaners, Electric power plants, Plan for Groundfish of the Gulf of This action is required by § 679.20 Fertilizers, Fluoride, Gasoline, Glass Alaska (FMP) prepared by the North and is exempt from review under and glass products, Grains, Graphic arts Pacific Fishery Management Council Executive Order 12866. under authority of the Magnuson- industry, Heaters, Household Authority: 16 U.S.C. 1801 et seq. appliances, Insulation, Stevens Fishery Conservation and Intergovernmental relations, Iron, Management Act. Regulations governing Dated: July 2, 2013. Labeling, Lead, Lime, Metallic and fishing by U.S. vessels in accordance Kelly Denit, nonmetallic mineral processing plants, with the FMP appear at subpart H of 50 Acting Deputy Director, Office of Sustainable Metals, Motor vehicles, National CFR part 600 and 50 CFR part 679. Fisheries, National Marine Fisheries Service. Emissions Standards for Hazardous Air The 2013 TAC of dusky rockfish in [FR Doc. 2013–16286 Filed 7–2–13; 4:15 pm] the Western Regulatory Area of the GOA Pollutants, Natural gas, New Source BILLING CODE 3510–22–P Performance Standards, Nitric acid is 377 metric tons (mt) as established by plants, Nitrogen dioxide, Paper and the final 2013 and 2014 harvest paper products industry, Particulate specifications for groundfish of the GOA DEPARTMENT OF COMMERCE matter, Paving and roofing materials, (78 FR 13162, February 26, 2013). In accordance with § 679.20(d)(1)(i), Petroleum, Phosphate, Plastics materials National Oceanic and Atmospheric the Administrator, Alaska Region, and synthetics, Polymers, Reporting and Administration NMFS (Regional Administrator), has recordkeeping requirements, Sewage determined that the 2013 TAC of dusky disposal, Steel, Sulfur oxides, Sulfuric 50 CFR Part 679 rockfish in the Western Regulatory Area acid plants, Tires, Tribal, Urethane, [Docket No. 120918468–3111–02] of the GOA will soon be reached. Vinyl, Volatile organic compounds, Therefore, the Regional Administrator is RIN 0648–XC740 Waste treatment and disposal, Zinc. establishing a directed fishing Dated: May 30, 2013. allowance of 277 mt, and is setting aside Fisheries of the Exclusive Economic Shaun L. McGrath, the remaining 100 mt as bycatch to Zone Off Alaska; Northern Rockfish in Regional Administrator, Region 8. support other anticipated groundfish the Western Regulatory Area of the [FR Doc. 2013–16327 Filed 7–5–13; 8:45 am] fisheries. In accordance with Gulf of Alaska BILLING CODE 6560–50–P § 679.20(d)(1)(iii), the Regional AGENCY: National Marine Fisheries Administrator finds that this directed Service (NMFS), National Oceanic and fishing allowance has been reached. Atmospheric Administration (NOAA), Consequently, NMFS is prohibiting DEPARTMENT OF COMMERCE Commerce. directed fishing for dusky rockfish in ACTION: Temporary rule; closure. National Oceanic and Atmospheric the Western Regulatory Area of the Administration GOA. SUMMARY: NMFS is prohibiting directed After the effective date of this closure fishing for northern rockfish in the 50 CFR Part 679 the maximum retainable amounts at Western Regulatory Area of the Gulf of § 679.20(e) and (f) will apply at all times Alaska (GOA). This action is necessary [Docket No. 120918468–3111–02] during a trip. to prevent exceeding the 2013 total RIN 0648–XC741 Classification allowable catch (TAC) of northern rockfish in the Western Regulatory Area This action responds to the best of the GOA. Fisheries of the Exclusive Economic available information recently obtained Zone Off Alaska; Dusky Rockfish in the from the fishery. The acting Assistant DATES: Effective 1200 hrs, Alaska local Western Regulatory Area of the Gulf of Administrator for Fisheries, NOAA time (A.l.t.), July 3, 2013, through 2400 Alaska (AA), finds good cause to waive the hrs, A.l.t., December 31, 2013. FOR FURTHER INFORMATION CONTACT: AGENCY: National Marine Fisheries requirement to provide prior notice and Steve Whitney, 907–586–7269. Service (NMFS), National Oceanic and opportunity for public comment Atmospheric Administration (NOAA), pursuant to the authority set forth at 5 SUPPLEMENTARY INFORMATION: NMFS Commerce. U.S.C. 553(b)(B) as such requirement is manages the groundfish fishery in the impracticable and contrary to the public GOA exclusive economic zone ACTION: Temporary rule; closure. interest. This requirement is according to the Fishery Management

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Plan for Groundfish of the Gulf of § 679.20(d)(1)(iii), the Regional data in a timely fashion and would Alaska (FMP) prepared by the North Administrator finds that this directed delay the closure of directed fishing for Pacific Fishery Management Council fishing allowance has been reached. northern rockfish in the Western under authority of the Magnuson- Consequently, NMFS is prohibiting Regulatory Area of the GOA. NMFS was Stevens Fishery Conservation and directed fishing for northern rockfish in unable to publish a notice providing Management Act. Regulations governing the Western Regulatory Area of the time for public comment because the fishing by U.S. vessels in accordance GOA. most recent, relevant data only became with the FMP appear at subpart H of 50 After the effective date of this closure available as of July 1, 2013. CFR part 600 and 50 CFR part 679. the maximum retainable amounts at The AA also finds good cause to The 2013 TAC of northern rockfish in § 679.20(e) and (f) will apply at all times waive the 30-day delay in the effective the Western Regulatory Area of the GOA during a trip. date of this action under 5 U.S.C. is 2,008 metric tons (mt) as established Classification 553(d)(3). This finding is based upon by the final 2013 and 2014 harvest the reasons provided above for waiver of specifications for groundfish of the GOA This action responds to the best prior notice and opportunity for public (78 FR 13162, February 26, 2013). available information recently obtained In accordance with § 679.20(d)(1)(i), from the fishery. The acting Assistant comment. the Administrator, Alaska Region, Administrator for Fisheries, NOAA This action is required by § 679.20 NMFS (Regional Administrator), has (AA), finds good cause to waive the and is exempt from review under determined that the 2013 TAC of requirement to provide prior notice and Executive Order 12866. northern rockfish in the Western opportunity for public comment Authority: 16 U.S.C. 1801 et seq. Regulatory Area of the GOA will soon pursuant to the authority set forth at 5 be reached. Therefore, the Regional U.S.C. 553(b)(B) as such requirement is Dated: July 2, 2013. Administrator is establishing a directed impracticable and contrary to the public Kelly Denit, fishing allowance of 1,858 mt, and is interest. This requirement is Acting Deputy Director, Office of Sustainable setting aside the remaining 150 mt as impracticable and contrary to the public Fisheries, National Marine Fisheries Service. bycatch to support other anticipated interest as it would prevent NMFS from [FR Doc. 2013–16284 Filed 7–2–13; 4:15 pm] groundfish fisheries. In accordance with responding to the most recent fisheries BILLING CODE 3510–22–P

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Proposed Rules Federal Register Vol. 78, No. 130

Monday, July 8, 2013

This section of the FEDERAL REGISTER Ground Floor, Room W12–140, 1200 filed electronically, commenters should contains notices to the public of the proposed New Jersey Avenue SE., Washington, submit only one time. issuance of rules and regulations. The DC 20590–0001. We will file in the docket all purpose of these notices is to give interested • Hand Delivery: Deliver to the comments that we receive, as well as a persons an opportunity to participate in the ‘‘Mail’’ address between 9 a.m. and 5 report summarizing each substantive rule making prior to the adoption of the final public contact with FAA personnel rules. p.m., Monday through Friday, except Federal holidays. concerning this proposed rulemaking. Before acting on this proposal, we will Examining the AD Docket DEPARTMENT OF TRANSPORTATION consider all comments we receive on or You may examine the AD docket on before the closing date for comments. Federal Aviation Administration the Internet at http:// We will consider comments filed after www.regulations.gov or in person at the the comment period has closed if it is 14 CFR Part 39 Docket Operations Office between 9 possible to do so without incurring a.m. and 5 p.m., Monday through expense or delay. We may change this [Docket No. FAA–2008–0256; Directorate proposal in light of the comments we Identifier 2007–SW–01–AD] Friday, except Federal holidays. The AD docket contains this proposed AD, the receive. RIN 2120–AA64 economic evaluation, any comments Discussion Airworthiness Directives; Agusta received and other information. The On June 19, 2008, we issued AD S.p.A. (Type Certificate Currently Held street address for the Docket Operations 2008–14–02, Amendment 39–15597 (73 by AgustaWestland S.p.A.) (Agusta) Office (telephone 800–647–5527) is in FR 39572, July 10, 2008), for Agusta Helicopters the ADDRESSES section. Comments will model AB 139 and AW 139 helicopters, be available in the AD docket shortly certificated in any category. AD 2008– AGENCY: Federal Aviation after receipt. 14–02 requires, within 10 hours time-in- Administration (FAA), DOT. For service information identified in service (TIS), or upon accumulating 100 ACTION: Notice of proposed rulemaking this proposed AD, contact Agusta hours TIS since new, whichever occurs (NPRM). Westland, Customer Support & Services, later, inspecting the fuselage frame 5700 Via Per Tornavento 15, 21019 Somma SUMMARY: middle section for a crack. AD 2008–14– We propose to revise an Lombardo (VA) Italy, ATTN: Giovanni existing airworthiness directive (AD) for 02 also requires repeating this Cecchelli; telephone 39–0331–711133; inspection at intervals not exceeding the Agusta Model AB139 and AW139 fax 39 0331 711180; or at http:// helicopters. The existing AD currently 100 hours TIS, and, if a crack is found, www.agustawestland.com/technical- before further flight, repairing the crack requires inspecting the fuselage frame to bullettins. You may review the service in accordance with FAA-approved detect fatigue cracks which could lead information at the FAA, Office of the procedures. AD 2008–14–02 was to structural failure and subsequent loss Regional Counsel, Southwest Region, prompted by European Aviation Safety of control of the helicopter. Since we 2601 Meacham Blvd., Room 663, Fort Agency (EASA) AD No. 2006–0357, issued that AD, Agusta has developed a Worth, Texas 76137. dated November 26, 2006 (EASA AD frame reinforcement modification which 2006–0357), which states that tests have supports extending the interval for FOR FURTHER INFORMATION CONTACT: shown that the Agusta AB/AW 139’s inspecting the fuselage frame for a Sharon Miles, Aviation Safety Engineer, fuselage frame 5700 middle section is fatigue crack. This proposed AD would Regulations and Policy Group, prone to fatigue damage. AD 2008–14– require inspecting the fuselage frame for Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, Texas 02 is intended to detect a crack in the a crack, but would reduce the fuselage frame structure, to prevent applicability from the existing AD to 76137; telephone (817) 222–5110; email [email protected]. structural failure of the frame, and exclude helicopters modified by the subsequent loss of control of the optional frame reinforcement SUPPLEMENTARY INFORMATION: helicopter. modification. The proposed actions are intended to detect a fatigue crack that Comments Invited Actions Since Existing AD Was Issued could result in failure of the fuselage We invite you to participate in this Since we issued AD 2008–14–02 (73 frame and subsequent loss of control of rulemaking by submitting written FR 39572, July 10, 2008), Agusta has the helicopter. comments, data, or views. We also issued Optional Bollettino Tecnico No. DATES: We must receive comments on invite comments relating to the 139–089, dated February 19, 2010 (BT this proposed AD by September 6, 2013. economic, environmental, energy, or 139–089), which describes procedures ADDRESSES: You may send comments by federalism impacts that might result for modifying with a structural any of the following methods: from adopting the proposals in this reinforcement two different part- • Federal eRulemaking Docket: Go to document. The most helpful comments numbered 5700 fuselage frames and one http://www.regulations.gov. Follow the reference a specific portion of the part-numbered 3900 fuselage frame, online instructions for sending your proposal, explain the reason for any thereby extending the repetitive comments electronically. recommended change, and include inspection interval for the three frames. • Fax: 202–493–2251. supporting data. To ensure the docket Subsequently, EASA issued AD No. • Mail: Send comments to the U.S. does not contain duplicate comments, 2006–0357R1, dated April 22, 2010 Department of Transportation, Docket commenters should send only one copy (EASA AD 2006–0357R1), which Operations, M–30, West Building of written comments, or if comments are revised EASA AD 2006–0357 by

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removing Agusta model AB139 and Differences Between the Proposed AD 1. Is not a ‘‘significant regulatory AW139 helicopters modified by BT and the EASA AD action’’ under Executive Order 12866; 139–089 with the structural reinforced The EASA AD requires contacting the 2. Is not a ‘‘significant rule’’ under the frames from the applicability type certificate (TC) holder for further DOT Regulatory Policies and Procedures requirements of the fatigue crack instructions if damage or a crack is (44 FR 11034, February 26, 1979); inspection. found; this proposed AD would require 3. Will not affect intrastate aviation in FAA’s Determination repairing the crack, before further flight, Alaska to the extent that it justifies with FAA-approved procedures with no making a regulatory distinction; and These helicopters have been approved requirement to contact the TC holder. 4. Will not have a significant by the aviation authority of Italy and are The EASA AD also excludes helicopters economic impact, positive or negative, approved for operation in the United with serial number 31002, 31003, on a substantial number of small entities States. Pursuant to our bilateral 31004, and 31007; whereas, this under the criteria of the Regulatory agreement with Italy, EASA, its proposed AD does not. Flexibility Act. technical representative, has notified us Costs of Compliance We prepared an economic evaluation of the unsafe condition described in the of the estimated costs to comply with EASA AD. We are issuing this AD We estimate that this proposed AD would affect 33 helicopters of U.S. this proposed AD and placed it in the because we evaluated all information AD docket. provided by EASA and determined the Registry. We estimate that operators unsafe condition exists and is likely to may incur the following costs in order List of Subjects in 14 CFR Part 39 to comply with this AD. It would take exist or develop on other helicopters of about one work-hour to comply with the Air transportation, Aircraft, Aviation these same type designs. initial and each subsequent inspection safety, Incorporation by reference, Related Service Information required by this AD. The average labor Safety. rate is $85 per work-hour so the The Proposed Amendment Agusta issued Bollettino Tecnico No. approximate cost for each inspection 139–018, Revision B, dated October 18, would be $85 per helicopter or $2,805 Accordingly, under the authority 2006, which specifies inspection for the U.S.-registered fleet. We estimate delegated to me by the Administrator, procedures for the middle section frame the cost to repair the fuselage middle the FAA proposes to amend 14 CFR part 5700 for all Model AB139 and AW139 frame section would be about $10,000. 39 as follows: helicopters except with serial number 31002, 31003, 31004, and 31007. Authority for This Rulemaking PART 39—AIRWORTHINESS Subsequently, Agusta issued BT 139– Title 49 of the United States Code DIRECTIVES 089, which describes procedures for specifies the FAA’s authority to issue installing carbon fiber structural rules on aviation safety. Subtitle I, ■ 1. The authority citation for part 39 reinforcement skins at frame station section 106, describes the authority of continues to read as follows: 5700 for two part-numbered fuselage the FAA Administrator. ‘‘Subtitle VII: Authority: 49 U.S.C. 106(g), 40113, 44701. frames and for one frame station 3900 Aviation Programs,’’ describes in more fuselage frame. Once the fuselage frames detail the scope of the Agency’s § 39.13 [Amended] authority. have been modified in accordance with ■ 2. The FAA amends § 39.13 by BT 139–089, the inspection interval of We are issuing this rulemaking under removing airworthiness directive (AD) Mandatory Inspection task MI53–12 the authority described in ‘‘Subtitle VII, AD 2008–14–02 (73 FR 39572, July 10, may be extended. EASA classified this Part A, Subpart III, Section 44701: 2008), and adding the following new service information as mandatory and General requirements.’’ Under that AD: revised its existing AD and issued AD section, Congress charges the FAA with promoting safe flight of civil aircraft in Agusta S.p.A. (Type Certificate Currently 2006–0357R1 to ensure the continued Held by AgustaWestland S.p.A.) airworthiness of these helicopters. air commerce by prescribing regulations for practices, methods, and procedures (Agusta): Docket No. FAA–2008–0256; Directorate Identifier 2007–SW–01–AD. Proposed AD Requirements the Administrator finds necessary for safety in air commerce. This regulation (a) Applicability This proposed AD would retain all is within the scope of that authority This AD applies to Agusta Model AB139 requirements of AD 2008–14–02 (73 FR because it addresses an unsafe condition and AW139 helicopters, except helicopters 39572, July 10, 2008), but would remove that is likely to exist or develop on with reinforcement skin part number (P/N) from the applicability section any products identified in this rulemaking 3G5306P08512 installed on left hand (LH) helicopter modified by installing the action. frame station 5700 P/N 3P5338A13352 and structural reinforcement skins in right hand (RH) frame station 5700 P/N accordance with BT 139–089. This Regulatory Findings 3P5338A13452; or with reinforcement skin proposed AD would continue to require P/N 3G5306P08513 installed on LH frame We determined that this proposed AD station 5700 P/N 3P5338A13353 and RH initially inspecting the fuselage frame would not have federalism implications frame station 5700 P/N 3P5338A13453; or 5700 middle section within 10 hours under Executive Order 13132. This with LH frame station 5700 P/N time-in-service (TIS), or upon proposed AD would not have a 3P5338A13354 and RH frame station 5700 P/ accumulating 100 hours TIS since new, substantial direct effect on the States, on N 3P5338A13454 installed, certificated in whichever occurs later, for a crack. This the relationship between the national any category. proposed action would also continue to Government and the States, or on the (b) Unsafe Condition require repeating this inspection at distribution of power and This AD defines the unsafe condition as a intervals not exceeding 100 hours TIS, responsibilities among the various fatigue crack in the fuselage frame 5700 and, if there is a crack, before further levels of government. middle section. This condition could result flight, repairing the crack in accordance For the reasons discussed, I certify in structural failure of the frame and with FAA-approved procedures. this proposed regulation: subsequent loss of control of the helicopter.

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(c) Affected ADs Issued in Fort Worth, Texas, on June 28, Aircraft Industries GmbH, N.A. Otto- This AD revises AD 2008–14–02, 2013. Str.5, A–2700 Wiener Neustadt, Austria; Amendment 39–15597 (73 FR 39572, July 10, Kim Smith, telephone: +43 2622 26700; fax: +43 2008). Directorate Manager, Rotorcraft Directorate, 2622 26780; email: office@diamond- Aircraft Certification Service. air.at; Internet: http:// (d) Comments Due Date [FR Doc. 2013–16312 Filed 7–5–13; 8:45 am] www.diamondaircraft.com/contact/ We must receive comments by September BILLING CODE 4910–13–P technical.php. You may review copies 6, 2013. of the referenced service information at (e) Compliance the FAA, Small Airplane Directorate, DEPARTMENT OF TRANSPORTATION 901 Locust, Kansas City, Missouri You are responsible for performing each 64106. For information on the action required by this AD within the Federal Aviation Administration availability of this material at the FAA, specified compliance time unless it has call (816) 329–4148. already been accomplished prior to that time. 14 CFR Part 39 Examining the AD Docket (f) Required Actions [Docket No. FAA–2013–0597; Directorate (1) Within 10 hours time-in-service (TIS), Identifier 2013–CE–016–AD] You may examine the AD docket on the Internet at http:// or upon accumulating 100 hours TIS since RIN 2120–AA64 new, whichever occurs later, inspect the www.regulations.gov; or in person at the fuselage frame 5700 middle section for a Airworthiness Directives; Diamond Docket Management Facility between 9 crack in accordance with the Compliance Aircraft Industries GmbH Airplanes a.m. and 5 p.m., Monday through Instructions, paragraphs 1. through 4., of Friday, except Federal holidays. The AD Agusta Bollettino Tecnico No. 139–018, AGENCY: Federal Aviation docket contains this proposed AD, the Revision B, dated October 18, 2006. Administration (FAA), Department of MCAI, the regulatory evaluation, any (2) Thereafter, at intervals not exceeding Transportation (DOT). comments received, and other 100 hours TIS, repeat the inspection as ACTION: Notice of proposed rulemaking information. The street address for the required by paragraph (f)(1) of this AD. (NPRM). Docket Office (telephone (800) 647– (3) If there is a crack, before further flight, 5527) is in the ADDRESSES section. repair the crack in accordance with an FAA- SUMMARY: We propose to adopt a new Comments will be available in the AD approved procedure. airworthiness directive (AD) for docket shortly after receipt. Diamond Aircraft Industries GmbH FOR FURTHER INFORMATION CONTACT: (g) Alternative Methods of Compliance Models DA 42, DA 42 NG, and DA 42 (AMOCs) Mike Kiesov, Aerospace Engineer, FAA, M–NG airplanes. This proposed AD Small Airplane Directorate, 901 Locust, (1) The Manager, Safety Management results from mandatory continuing Room 301, Kansas City, Missouri 64106; Group, FAA, may approve AMOCs for this airworthiness information (MCAI) telephone: (816) 329–4144; fax: (816) AD. Send your proposal to: Sharon Miles, originated by an aviation authority of 329–4090; email: [email protected]. Aviation Safety Engineer, Regulations and another country to identify and correct Policy Group, Rotorcraft Directorate, FAA, an unsafe condition on an aviation SUPPLEMENTARY INFORMATION: 2601 Meacham Blvd., Fort Worth, Texas product. The MCAI describes the unsafe Comments Invited 76137; telephone (817) 222–5110; email condition as insufficient clearance We invite you to send any written [email protected]. between the rod end safety washer and relevant data, views, or arguments about (2) For operations conducted under a 14 the nose landing gear attachment lever this proposed AD. Send your comments CFR part 119 operating certificate or under causes the rod end to bend at each gear to an address listed under the 14 CFR part 91, subpart K, we suggest that retraction sequence. We are issuing this ADDRESSES section. Include ‘‘Docket No. you notify your principal inspector, or proposed AD to require actions to FAA–2013–0597; Directorate Identifier lacking a principal inspector, the manager of address the unsafe condition on these 2013–CE–016–AD’’ at the beginning of the local flight standards district office or products. certificate holding district office before your comments. We specifically invite operating any aircraft complying with this DATES: We must receive comments on comments on the overall regulatory, AD through an AMOC. this proposed AD by August 22, 2013. economic, environmental, and energy ADDRESSES: You may send comments by aspects of this proposed AD. We will (h) Additional Information any of the following methods: consider all comments received by the (1) Agusta Bollettino Tecnico No. 139–089, • Federal eRulemaking Portal: Go to closing date and may amend this dated February 19, 2010, which is not http://www.regulations.gov. Follow the proposed AD because of those incorporated by reference, specifies instructions for submitting comments. comments. procedures to modify Model AB139 and • Fax: (202) 493–2251. We will post all comments we AW139 helicopters by installing structural • Mail: U.S. Department of receive, without change, to http:// reinforcement skins at frame station 5700 to Transportation, Docket Operations, M– regulations.gov, including any personal allow for extended inspection intervals for 30, West Building Ground Floor, Room information you provide. We will also fatigue. W12–140, 1200 New Jersey Avenue SE., post a report summarizing each (2) The subject of this AD is addressed in Washington, DC 20590. substantive verbal contact we receive European Aviation Safety Agency (EASA) AD • Hand Delivery: U.S. Department of about this proposed AD. No. 2006–0357R1, dated April 22, 2010. You Transportation, Docket Operations, M– may view the EASA AD at http:// 30, West Building Ground Floor, Room Discussion www.regulations.gov by searching for and W12–140, 1200 New Jersey Avenue SE., The European Aviation Safety Agency locating it in Docket No. FAA–2008–0256. Washington, DC 20590, between 9 a.m. (EASA), which is the Technical Agent (i) Subject and 5 p.m., Monday through Friday, for the Member States of the European except Federal holidays. Community, has issued AD No.: 2013– Joint Aircraft Service Component (JASC) For service information identified in 0121, dated June 4, 2013 (referred to Code: 5311, Fuselage, Main Frame. this proposed AD, contact Diamond after this as ‘‘the MCAI’’), to correct an

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unsafe condition for the specified Design Authority, they have notified us the relationship between the national products. The MCAI states: of the unsafe condition described in the Government and the States, or on the An incident was reported where a Diamond MCAI and service information distribution of power and DA 42 aeroplane experienced an un- referenced above. We are proposing this responsibilities among the various commanded rudder input and yaw after AD because we evaluated all levels of government. landing gear retraction, followed by restricted information and determined the unsafe For the reasons discussed above, I rudder travel. This situation caused the pilot condition exists and is likely to exist or certify this proposed regulation: to misinterpret this as an engine power loss. develop on other products of the same (1) Is not a ‘‘significant regulatory The rudder restriction could be removed by type design. action’’ under Executive Order 12866, extending the landing gear and an uneventful (2) Is not a ‘‘significant rule’’ under landing was made. Costs of Compliance the DOT Regulatory Policies and Subsequent investigation results showed that We estimate that this proposed AD the rod end of the nose landing gear (NLG) Procedures (44 FR 11034, February 26, actuator, Part Number (P/N) X11–0006/2, had will affect 170 products of U.S. registry. 1979), broken, causing the actuator to block the We also estimate that it would take (3) Will not affect intrastate aviation nearby rudder steering linkage. This failure about .5 work-hour per product to in Alaska, and was likely a result of insufficient clearance comply with the basic requirements of (4) Will not have a significant between the rod end safety washer and the this proposed AD. The average labor economic impact, positive or negative, NLG attachment lever, causing the rod end to rate is $85 per work-hour. on a substantial number of small entities bend at each gear retraction sequence. Based on these figures, we estimate under the criteria of the Regulatory This condition, if not detected and corrected, the cost of the proposed AD on U.S. Flexibility Act. could result in reduced control of the operators to be $7,225, or $42.50 per aeroplane. product. List of Subjects in 14 CFR Part 39 Prompted by this event, Diamond Aircraft Industries (DAI) issued Mandatory Service In addition, we estimate that any Air transportation, Aircraft, Aviation Bulletin (MSB) 42–099/MSB 42NG–035, necessary follow-on actions would take safety, Incorporation by reference, including Work Instruction (WI) WI–MSB– about 2.5 work-hours and require parts Safety. costing $235, for a cost of $447.50 per 42–099/WI–MSB 42NG–035 (published as a The Proposed Amendment single document), providing instructions to product. We have no way of identify and modify the affected NLG determining the number of products Accordingly, under the authority actuators, which includes installation of a that may need these actions. delegated to me by the Administrator, new rod end bearing and safety washer. According to the manufacturer, some the FAA proposes to amend 14 CFR part For the reasons described above, this AD of the costs of this proposed AD may be 39 as follows: requires an inspection to identify the affected covered under warranty, thereby NLG actuators, P/N X11–0006/2, and, if an reducing the cost impact on affected PART 39—AIRWORTHINESS affected unit is installed, modification of the DIRECTIVES actuator. individuals. We do not control warranty coverage for affected individuals. As a This AD also prohibits installation of any ■ 1. The authority citation for part 39 affected P/N X11–0006/2 NLG actuators that result, we have included all costs in our may be held as spares, unless they are cost estimate. continues to read as follows: modified. Authority: 49 U.S.C. 106(g), 40113, 44701. Authority for This Rulemaking Relevant Service Information Title 49 of the United States Code § 39.13 [Amended] Diamond Aircraft Industries GmbH specifies the FAA’s authority to issue ■ 2. The FAA amends § 39.13 by adding has issued Mandatory Service Bulletin rules on aviation safety. Subtitle I, the following new AD: MSB 42–099/1, MSB 42NG–035/1, section 106, describes the authority of Diamond Aircraft Industries GmbH: Docket dated May 3, 2013; and Work the FAA Administrator. ‘‘Subtitle VII: No. FAA–2013–0597; Directorate Instruction WI–MSB–42–099, WI–MSB Aviation Programs,’’ describes in more Identifier 2013–CE–016–AD. 42NG–035, Revision 1, dated May 3, detail the scope of the Agency’s (a) Comments Due Date 2013. The actions described in this authority. service information are intended to We are issuing this rulemaking under We must receive comments by August 22, correct the unsafe condition identified the authority described in ‘‘Subtitle VII, 2013. in the MCAI. Part A, Subpart III, Section 44701: (b) Affected ADs EASA AD No.: 2013–0121 references General requirements.’’ Under that None. MSB 42–099/MSB 42NG–035, dated section, Congress charges the FAA with April 22, 2013, as the applicable service promoting safe flight of civil aircraft in (c) Applicability information. DAI subsequently revised air commerce by prescribing regulations This AD applies to Diamond Aircraft this mandatory service bulletin to MSB for practices, methods, and procedures Industries GmbH Models DA 42, DA 42 NG, 42–099/1, MSB 42NG–035/1, dated May the Administrator finds necessary for and DA 42 M–NG airplanes, all serial numbers, certificated in any category. 3, 2013, based on a change to the safety in air commerce. This regulation applicable P/N of the NLG actuator. is within the scope of that authority (d) Subject This revision, MSB 42–099/1, MSB because it addresses an unsafe condition Air Transport Association of America 42NG–035/1, dated May 3, 2013, is that is likely to exist or develop on (ATA) Code 32: Landing Gear. referenced in this NPRM. products identified in this rulemaking (e) Reason action. FAA’s Determination and Requirements This AD was prompted by mandatory of the Proposed AD Regulatory Findings continuing airworthiness information (MCAI) originated by an aviation authority of another This product has been approved by We determined that this proposed AD country to identify and correct an unsafe the aviation authority of another would not have federalism implications condition on an aviation product. The MCAI country, and is approved for operation under Executive Order 13132. This describes the unsafe condition as insufficient in the United States. Pursuant to our proposed AD would not have a clearance between the rod end safety washer bilateral agreement with this State of substantial direct effect on the States, on and the nose landing gear (NLG) attachment

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lever causes the rod end to bend at each gear contact Diamond Aircraft Industries GmbH, • Hand delivery/courier in lieu of retraction sequence. We are issuing this AD N.A. Otto-Str.5, A–2700 Wiener Neustadt, mail: Alcohol and Tobacco Tax and to detect and correct insufficient clearance Austria; telephone: +43 2622 26700; fax: +43 Trade Bureau, 1310 G Street NW., Suite between the rod end safety washer and the 2622 26780; email: [email protected]; 200E, Washington, DC 20005. nose landing gear (NLG) attachment lever, Internet: http://www.diamondaircraft.com/ See the Public Participation section of which may cause the NLG actuator to break contact/technical.php. You may review and possibly restrict rudder control, resulting copies of the referenced service information this notice for specific instructions and in loss of control. at the FAA, Small Airplane Directorate, 901 requirements for submitting comments, and for information on how to request (f) Actions and Compliance Locust, Kansas City, Missouri 64106. For information on the availability of this a public hearing. Unless already done, do the following material at the FAA, call (816) 329–4148. You may view copies of this notice, actions as specified in paragraphs (f)(1) and selected supporting materials, and any (f)(2) of this AD: Issued in Kansas City, Missouri on June 28, 2013. comments that TTB receives about this (1) Within 100 hours time-in-service after proposal at http://www.regulations.gov the effective date of this AD or 6 calendar Earl Lawrence, months after the effective date of this AD, within Docket No. TTB–2013–0007. A Manager, Small Airplane Directorate, Aircraft link to that docket is posted on the TTB whichever occurs first, inspect the NLG Certification Service. actuator to identify the part number (P/N) Web site at http://www.ttb.gov/wine/ [FR Doc. 2013–16316 Filed 7–5–13; 8:45 am] and serial number (S/N). If a NLG actuator P/ wine-rulemaking.shtml under Notice N X11–0006/2 is installed with a S/N BILLING CODE 4910–13–P No. 138. You also may view copies of between 0001 and 0155 (inclusive), modify this notice, all related petitions, maps, the actuator by replacing the NLG rod end or other supporting materials, and any bearing and safety washer with new parts. DEPARTMENT OF THE TREASURY comments that TTB receives about this Follow the INSTRUCTIONS section of Work proposal by appointment at the TTB Instruction WI–MSB–42–099, WI–MSB Alcohol and Tobacco Tax and Trade Information Resource Center, 1310 G 42NG–035, Revision 1, dated May 3, 2013, as Bureau specified in the Accomplishments/ Street NW., Washington, DC 20005. Instructions paragraph of Mandatory Service Please call 202–453–2270 to make an Bulletin MSB 42–099/1, MSB 42NG–035/1, 27 CFR Part 9 appointment. dated May 3, 2013. [Docket No. TTB–2013–0007; Notice No. FOR FURTHER INFORMATION CONTACT: (2) As of the effective date of this AD, do 138] not install on any airplane a NLG actuator P/ Karen A. Thornton, Regulations and Rulings Division, Alcohol and Tobacco N X11–0006/2 with a S/N between 0001 and RIN 1513–AC01 0155 (inclusive), unless the actuator has been Tax and Trade Bureau, 1310 G Street modified following the INSTRUCTIONS Proposed Establishment of the Malibu NW., Box 12, Washington, DC 20005; section of Work Instruction WI–MSB–42– Coast Viticultural Area phone 202–453–1039, ext. 175. 099, WI–MSB 42NG–035, Revision 1, dated SUPPLEMENTARY INFORMATION: May 3, 2013, as specified in the AGENCY: Alcohol and Tobacco Tax and Accomplishments/Instructions paragraph of Trade Bureau, Treasury. Background on Viticultural Areas Mandatory Service Bulletin MSB 42–099/1, MSB 42NG–035/1, dated May 3, 2013. ACTION: Notice of proposed rulemaking. TTB Authority Section 105(e) of the Federal Alcohol (g) Other FAA AD Provisions SUMMARY: The Alcohol and Tobacco Tax Administration Act (FAA Act), 27 and Trade Bureau (TTB) proposes to The following provisions also apply to this U.S.C. 205(e), authorizes the Secretary AD: establish the ‘‘Malibu Coast’’ viticultural of the Treasury to prescribe regulations (1) Alternative Methods of Compliance area in portions of Los Angeles County for the labeling of wine, distilled spirits, (AMOCs): The Manager, Standards Office, and Ventura County, California. The and malt beverages. The FAA Act FAA, has the authority to approve AMOCs proposed viticultural area, if provides that these regulations should, for this AD, if requested using the procedures established, would include the existing found in 14 CFR 39.19. Send information to among other things, prohibit consumer Saddle Rock-Malibu and Malibu- ATTN: Mike Kiesov, Aerospace Engineer, deception and the use of misleading Newton Canyon viticultural areas. TTB FAA, Small Airplane Directorate, 901 Locust, statements on labels, and ensure that designates viticultural areas to allow Room 301, Kansas City, Missouri 64106; labels provide the consumer with telephone: (816) 329–4144; fax: (816) 329– vintners to better describe the origin of adequate information as to the identity 4090; email: [email protected]. Before their wines and to allow consumers to and quality of the product. The Alcohol using any approved AMOC on any airplane better identify wines they may and Tobacco Tax and Trade Bureau to which the AMOC applies, notify your purchase. TTB invites comments on this (TTB) administers the FAA Act appropriate principal inspector (PI) in the proposed addition to its regulations. FAA Flight Standards District Office (FSDO), pursuant to section 1111(d) of the or lacking a PI, your local FSDO. DATES: We must receive your comments Homeland Security Act of 2002, (2) Airworthy Product: For any requirement on or before September 6, 2013. codified at 6 U.S.C. 531(d). The in this AD to obtain corrective actions from ADDRESSES: Please send your comments Secretary has delegated various a manufacturer or other source, use these on this notice to one of the following actions if they are FAA-approved. Corrective authorities through Treasury actions are considered FAA-approved if they addresses (please note that TTB has a Department Order 120–01 (Revised), are approved by the State of Design Authority new address for comments submitted by dated January 21, 2003, to the TTB (or their delegated agent). You are required U.S. mail): Administrator to perform the functions to assure the product is airworthy before it • Internet: http://www.regulations.gov and duties in the administration and is returned to service. (via the online comment form for this enforcement of this law. (h) Related Information notice as posted within Docket No. Part 4 of the TTB regulations (27 CFR TTB–2013–0007 at ‘‘Regulations.gov,’’ part 4) allows the establishment of Refer to MCAI European Aviation Safety the Federal e-rulemaking portal); definitive viticultural areas and the use Agency (EASA) AD No.: 2013–0121, dated • June 4, 2013, for related information, which U.S. Mail: Director, Regulations and of their names as appellations of origin can be found in the AD docket on the Rulings Division, Alcohol and Tobacco on wine labels and in wine Internet at http://www.regulations.gov. For Tax and Trade Bureau, 1310 G Street advertisements. Part 9 of the TTB service information related to this AD, NW., Box 12, Washington, DC 20005; or regulations (27 CFR part 9) sets forth

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standards for the preparation and Malibu Coast Petition According to the petition, the submission of petitions for the distinguishing features of the proposed establishment or modification of TTB received a petition from Ralph Malibu Coast viticultural area include American viticultural areas and lists the Jens Carter, proposing the establishment its topography, soils, and climate. TTB approved American viticultural areas. of the ‘‘Malibu Coast’’ American notes that the proposed Malibu Coast viticultural area in portions of Los viticultural area does not lie within any Definition Angeles and Ventura Counties in existing viticultural area. However, the Section 4.25(e)(1)(i) of the TTB southern California. The proposed smaller existing Malibu-Newton Canyon regulations (27 CFR 4.25(e)(1)(i)) defines viticultural area is a long, narrow, (27 CFR 9.152) and Saddle Rock–Malibu a viticultural area for American wine as region along the Pacific coast, and is (27 CFR 9.203) viticultural areas are a delimited grape-growing region having largely located within the Santa Monica both located within the proposed distinguishing features as described in Mountains National Recreation Area. viticultural area. The proposed part 9 of the regulations and a name and The landscape of the proposed viticultural area does not overlap with a delineated boundary as established in viticultural area is characterized by any other existing or proposed part 9 of the regulations. These steep, rugged hillsides incised by steep- viticultural areas. Unless otherwise designations allow vintners and sided valleys and long, narrow canyons noted, all information and data consumers to attribute a given quality, that empty into the Pacific Ocean. The contained in this document concerning reputation, or other characteristic of a cities of Oxnard and Camarillo are to the the name, boundary, and distinguishing wine made from grapes grown in an area west, and the city of Los Angeles is features of the proposed viticultural area to its geographic origin. The located to the east. The Simi Valley and are from the petition for the proposed establishment of viticultural areas Simi Hills are located to the north of the Malibu Coast viticultural area and its allows vintners to describe more proposed viticultural area, as well as the supporting exhibits. accurately the origin of their wines to heavily urbanized regions of Thousand Name Evidence consumers and helps consumers to Oaks, Calabasas, Greenwich Village, and identify wines they may purchase. Conejo Valley. The proposed Malibu Coast Establishment of a viticultural area is The proposed viticultural area viticultural area lies along the coast of neither an approval nor an endorsement contains approximately 44,590 acres of the Pacific Ocean and includes the city by TTB of the wine produced in that privately-owned land. There are 52 of Malibu, California. According to the area. commercially producing vineyards petition, the name ‘‘Malibu’’ may have derived from a Chumash Indian word Requirements covering approximately 198 acres within the proposed viticultural area. ‘‘(hu)mal-iwu,’’ which means, ‘‘it makes Section 4.25(e)(2) of the TTB The vineyards within the proposed a loud noise all the time over there,’’ regulations outlines the procedure for viticultural area are scattered across the referring to the sound of the surf. The proposing an American viticultural area steep sides of the mountains, valleys, word was later translated by the Spaniards into ‘‘Umalibo.’’ The present- and provides that any interested party and canyons. The steep mountain slopes day spelling of ‘‘Malibu’’ first appeared may petition TTB to establish a grape- require extra effort to cultivate, thus in 1805, in documents to establish the growing region as a viticultural area. contributing to the small size of many Rancho Topanga Malibu Sequit land Section 9.12 of the TTB regulations (27 of the vineyards. Many of the vineyards grant. Much of the proposed viticultural CFR 9.12) prescribes standards for are planted as firebreaks near private area lies within the former land grant petitions for the establishment or homes, to separate the properties from and thus takes its name from that land modification of American viticultural the surrounding native chaparral grant. areas. Such petitions must include the vegetation, which is particularly following: A search of the United States • susceptible to fire due to its thick Geological Survey (USGS) Geographic Evidence that the area within the growth and high concentration of oils. proposed viticultural area boundary is Names Information System (GNIS) nationally or locally known by the The proposed viticultural area revealed 31 entries within the proposed viticultural area name specified in the contains several State and county parks viticultural area containing the word petition; and preserves, in addition to the Federal ‘‘Malibu’’ in the name, including 6 • An explanation of the basis for lands of the Santa Monica Mountains schools, 4 parks, 2 reservoirs, a stream, defining the boundary of the proposed National Recreation Area. According to a cliff, a beach, and an airport. viticultural area; the petition, approximately 15 percent According to the petition, several tasting • A narrative description of the of the land within the proposed rooms and vineyards within the features of the proposed viticultural area viticultural area is administered by the proposed viticultural area use the word that affect viticulture, such as climate, Federal Government and approximately ‘‘Malibu’’ in their names, including geology, soils, physical features, and 22 percent is administered by the Cielo Malibu Estate, Malibu Family elevation, and that make the proposed California Department of Parks and Wines, Malibu and Vine, Bodegas viticultural area distinctive and Recreation. The acreage count of the Gomez de Malibu, Donlin Malibu distinguish it from adjacent areas publicly-owned lands is not included in Estates Vineyards, Malibu Rocky Oaks, outside the proposed viticultural area the 44,590-acre size approximation of Malibu Sanity, and Malibu Vineyards. boundary; the proposed viticultural area because According to the petition, the growers • A copy of the appropriate United publicly-owned lands are not available in the proposed viticultural area chose States Geological Survey (USGS) map(s) for commercial viticulture. However, the name ‘‘Malibu Coast’’ to emphasize showing the location of the proposed the boundaries of the proposed Malibu the region’s location along the Pacific viticultural area, with the boundary of Coast viticultural area boundaries do Ocean and the influence the ocean has the proposed viticultural area clearly not physically exclude the publicly- on the climate. The petition included drawn thereon; and owned lands because boundaries that several exhibits offered as evidence of • A detailed narrative description of would exclude those lands would be the use of the name ‘‘Malibu Coast’’ the proposed viticultural area boundary cumbersome to describe and difficult to within the region of the proposed based on USGS map markings. administer. viticultural area. One exhibit, a National

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Park Service map titled ‘‘Geology of the proposed viticultural area due to its maximum height of 3,111 feet at Santa Monica Mountains,’’ shows a fault dense urban environment, which is Sandstone Peak, in the western portion line labeled as the ‘‘Malibu Coast Fault unsuitable for commercial viticulture. of the proposed viticultural area. Small Line’’ running from west of Point Dume, Although the geographical features of steep-sided valleys and narrow, north- which is in the center of the southern Topanga State Park are similar to those south oriented canyons that empty into boundary of the proposed viticultural of the proposed viticultural area, it is the Pacific Ocean are also interspersed area, to Santa Monica Bay, at the eastern unavailable for commercial viticultural throughout the mountainsides. edge of the proposed viticultural area. due to its status as a State park. According to the petition, the steep The petition also offers as name The southern boundary of the slopes provide excellent water drainage evidence information on two businesses proposed viticultural area follows State for vineyards. Additionally, the north- in the region that incorporate ‘‘Malibu Route 1 (the Pacific Coast Highway) in south orientation of the canyons allows Coast’’ in their names: Malibu Coast a westerly direction from Topanga State cool, moist air and fog from the Pacific Animal Hospital and Malibu Coast Park to the Naval Air Weapons Station Ocean to travel deep into the proposed Nursery and Landscaping. Finally, the and Naval Base Ventura County. A viticultural area and thus contributes to petitioner submitted a list of vineyards series of narrow State and county beach the moderate temperatures within the located within the proposed viticultural parks line the coast immediately outside proposed viticultural area. area, which included a vineyard named the length of the proposed southern The slopes of the Santa Monica Malibu Coastal Vineyard. boundary and, other than Point Dume, Mountains within the proposed the land south of State Route 1 is viticultural area tilt predominately Boundary Evidence excluded from the proposed viticultural toward the south, allowing the The proposed Malibu Coast area because these public beaches are vineyards planted on the south-facing viticultural area is a long, narrow region unavailable for commercial viticulture. slopes to receive high amounts of solar located within the Santa Monica The western boundary of the radiation. The southerly orientation of Mountains along the Pacific Ocean. The proposed viticultural area runs between the slopes also exposes the vineyards to boundary of the proposed viticultural State Route 1, near the Naval Air sunlight that is reflected off the water of area approximates the boundary of the Weapons Station and Naval Base the Pacific Ocean, an effect known as a Santa Monica Mountains National Ventura County, and U.S. Highway 101 ‘‘second sun.’’ The high level of solar Recreation Area, and the proposed east of the Camarillo Airport and radiation warms the soil in the viticultural area contains approximately follows a series of roads and elevation vineyards quickly, which stimulates 44,590 acres of privately owned land contours. The regions to the west of the vine growth and fruit maturation. The that are available for commercial proposed boundary were excluded from warmed soil then slowly releases the viticulture. the proposed viticultural area because stored heat back into the air in the early The northern portion of the proposed their flat, low elevations and marshy morning, at night, and during periods of boundary roughly follows U.S. Highway coastline are topographically distinctive cloud cover, providing a source of 101 from Oxnard to the city of Los from the marine terraces and high, steep warmth to the vines during the times Angeles and separates the largely rural mountains of the proposed viticultural when the surrounding air temperature is proposed viticultural area from the area. Additionally, because most of this cool. densely populated urban areas of region is covered by military Conejo Valley, Simi Valley, and the Thousand Oaks, Calabasas Greenwich installations and the dense urban areas Simi Hills are located to the north of the Village, Conejo Valley, Simi Valley, and of Oxnard and Camarillo, there is little proposed viticultural area, and the Simi Hills. The proposed northern suitable land available for commercial elevations within these regions are boundary also divides the high, steep viticulture. generally lower than elevations within slopes of the Santa Monica Mountains the proposed Malibu Coast viticultural within the proposed viticultural area Distinguishing Features area. According to USGS maps provided from the lower elevations of Conejo The distinguishing features of the with the petition, elevations within Valley, Simi Valley, and the Simi Hills. proposed Malibu Coast viticultural area Conejo Valley and Simi Valley range Because of its distance inland and the are topography, soils, and climate. between 640 and 700 feet. Elevations sheltering effects of the Santa Monica Because the proposed viticultural area is within the Simi Hills range between Mountains, the region north of the bordered by public beaches and the 1,800 and 2,400 feet. The Simi Hills proposed viticultural area is Pacific Ocean to the south, and both have a north-south orientation, significantly less influenced by the cool, Topanga State Park and the heavily compared to the east-west orientation of moist breezes of the Pacific Ocean. urbanized city of Los Angeles to the the Santa Monica Mountains, and However, a portion of Las Virgenes east, the discussion of distinguishing therefore do not receive as much solar Canyon that extends north of U.S. features only compares the proposed radiation as the southward-facing slopes Highway 101 is included within the viticultural area with the regions to the of the proposed viticultural area. proposed viticultural area because its north and west. Although there are canyons within the terrain is similar to that of the rest of the region north of the proposed viticultural proposed viticultural area and because Topography area, the canyons do not stretch all the Las Virgenes Creek, which lies within The topography of the proposed way to the ocean and thus do not serve the Las Virgenes Canyon and empties Malibu Coast viticultural area is as conduits for the cool, moist Pacific into the Pacific Ocean, allows the characterized by the Santa Monica air and fog to reach the inland areas. marine influence to travel the length of Mountains, which are oriented along an The terrain in the region west of the the canyon. east-west axis between the cities of Los proposed viticultural area is lower and The eastern portion of the proposed Angeles, to the east, and Oxnard and flatter than the terrain of the proposed boundary follows the Los Angeles city Camarillo, to the west. The mountain viticultural area. Elevations to the west limits and the boundary of Topanga range begins as low marine terraces of the proposed viticultural area range State Park. The city of Los Angeles lies along the coastline and rapidly rises from sea level along the shore of the east of the proposed viticultural area towards the north, increasing in Pacific Ocean to approximately 200 feet border and is excluded from the steepness and elevation, with a near the city of Camarillo, as shown on

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USGS maps. The coastline of the region of alluvium and are found on level to The region to the north of the west of the proposed viticultural area is moderately steep slopes. The soils are proposed viticultural area is primarily dominated by the low, flat wetlands of described as being very deep and influenced by the inland air mass, with Mugu Lagoon and lacks the marine moderately well drained. little marine influence. Although warm terraces that characterize the coastline The regions to the west of the air rising from both Conejo Valley and of the proposed viticultural area. proposed viticultural area contain soils Simi Valley draws moist air inland from Soils of the Sulfic Fluvaquents-Camarillo- the Pacific Ocean, most of the marine air Pacheco and the Camarillo-Hueneme- is significantly drier by the time it The soils of the proposed Malibu Pacheco association. These soils are travels over the Santa Monica Coast viticultural area are derived from comprised of alluvium derived Mountains and reaches the valleys. As both volcanic parent rock and primarily from sedimentary rocks and a result, relative humidity levels within sedimentary parent rock, including are found on nearly level terrain such as the inland valleys are lower than those combinations of sandstone, slate, and flood plains and tidal flats. These soils of the proposed viticultural area, with shale. According to the petition, this are also very deep and poorly drained. humidity levels averaging 20 percent or combination of both volcanic and lower during the summer. Lower Climate sedimentary soils is unique among other humidity levels also result in less California coastal regions, which The climate of the proposed Malibu rainfall in the inland valleys, with the generally lack volcanic soils. Coast viticultural area is influenced by weather station at Canoga Park Seventy-five percent of the soils air masses over both the Pacific Ocean averaging only 16.47 inches of rain a within the proposed viticultural area are and the inland valleys to the north of year. Because the Pacific air has also of four soil associations: Cotharin- the proposed viticultural area. During warmed by the time it reaches the Talepop-Rock Outcrop; Mipolomol- the afternoon, the warm air of the inland inland valleys, temperatures are hotter Topanga-Sapwi; Chumash-Malibu- valleys rises. As the warm air rises, it in the region north of the proposed Boades; and Zumaridge-Rock Outcrop- pulls cool, moist air from the ocean viticultural area. The Canoga Park Kawenga. Soils of the Cotharin-Talepop- along the canyons and up the weather station recorded an average of Rock Outcrop association derive from mountainsides of the proposed 5,176 GDD units, placing the area in the volcanic rocks. The Mipolomol- viticultural area. These moist breezes very warm Region V category. Topanga-Sapwi, Chumash-Malibu- raise the relative humidity levels within Boades, and Zumaridge-Rock Outcrop- The region to the west of the proposed the proposed viticultural area to about viticultural area shares a similar climate Kawenga associations all have soils that 50 percent during the summer. The are derived from sedimentary sources. with the lower coastal elevations of the moisture in the air reduces heat stress proposed Malibu Coast viticultural area. All four of the soil associations are on the vineyards. At night, the breezes described as shallow, well drained soils However, because much of the land is change direction as the relatively commonly found on steep slopes. either within the dense urban areas of warmer air over the ocean rises and Shallow soils prevent overly vigorous Oxnard and Camarillo or reserved for pulls the cooler, drier nighttime air from vine growth and produce a thinner leaf military purposes, it is generally the inland valleys into the proposed canopy that allows sunlight to reach the unsuitable for commercial viticulture. viticultural area. The dry nighttime fruit. In humid regions such as the breezes help remove excess moisture Comparison of the Proposed Malibu proposed viticultural area, mildew and from the vines and fruit and reduce the Coast Viticultural Area to the Existing rot can form on fruit that is too shaded growth of mildew. Malibu-Newton Canyon and Saddle by the leaf canopy. Well drained soils The proposed Malibu Coast Rock-Malibu Viticultural Areas are beneficial to viticulture because viticultural area has moderate growing water does not accumulate long enough season temperatures. Growing degree Malibu-Newton Canyon Viticultural to lead to root rot or mildew. 1 Area The petition states that continuous day (GDD) accumulations gathered human habitation within the Santa within the proposed viticultural area The Malibu-Newton Canyon Monica Mountains of the proposed between 2005 and 2009 show that the viticultural area was established by T.D. viticultural area has altered the nutrient proposed viticultural area receives ATF–375, which published in the content of the soils. Humans have between approximately 2,500 and 3,000 Federal Register on June 13, 1996 (61 inhabited the mountains for GDD units annually. This data FR 29949). It is a bowl-shaped valley approximately 8,000 years, and large categorizes the proposed viticultural located high on the south-facing side of villages have been common throughout area as a Region II or low Region III the Santa Monica Mountains in Los that time. The large number of bones climate on the Winkler scale. Angeles County, California. The floor of and shells deposited in waste pits by the Rainfall within the proposed the valley has an elevation of inhabitants throughout the ages has viticultural area varies depending on approximately 1,400 feet, with raised the level of calcium and elevation. Along the coastline and the elevations at the rim of the valley phosphorus in the soils to higher levels lower marine terraces, rainfall averages ranging from 1,800 to 2,000 feet along than in the surrounding regions, 12 to 16 inches annually. At higher the southern rim to 2,100 to 2,800 feet according to the United States elevations within the proposed along the northern rim. Although the Department of Agriculture’s 2006 viticultural area, rainfall may be as high viticultural area is located within a edition of the ‘‘Soil Survey of the Santa as 30 inches annually. valley, the terrain of the valley floor Monica Mountains National Recreation includes rolling hills and very few 1 In the Winkler climate classification system, Area.’’ Both calcium and phosphorus annual heat accumulation during the growing expanses of level ground. According to are important nutrients for vine growth season, measured in annual GDD, defines climatic the Web site of the single vineyard and fruit development. regions. One GDD accumulates for each degree within the Malibu-Newton Canyon The region located to the north of the Fahrenheit that a day’s mean temperature is above viticultural area, Rosenthal Estates, the 50 degrees, the minimum temperature required for proposed viticultural area contains soils grapevine growth (‘‘General Viticulture,’’ by Albert vines are all planted on the slopes of of the Rincon-Huerhuero-Azule J. Winkler, University of California Press, 1974, these rolling hills and the walls of the association. These soils are comprised pages 61–64). valley to ensure the optimal soil and

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drainage conditions for viticulture (see both the bowl shape and the high regulatory text published at the end of www.rosenthalestatewines.com) elevation of the Malibu-Newton Canyon this notice. T.D. ATF–375 described the Malibu- viticultural area shield it from much of Maps Newton Canyon viticultural area as a the marine fog, which is more common microclimate within the larger Santa along the lower slopes and within the The petitioner provided the required Monica Mountains. The southern rim of long, narrow, north-south ranging maps, and TTB lists them below in the the valley is high enough to block the canyons within the proposed Malibu proposed regulatory text. heaviest marine fogs from entering the Coast viticultural area. Impact on Current Wine Labels viticultural area, but low enough to allow some of the cooling breezes into Saddle Rock-Malibu Viticultural Area Part 4 of the TTB regulations prohibits any label reference on a wine that the canyon. The climate within the The Saddle Rock-Malibu viticultural indicates or implies an origin other than viticultural area is described as warm area was established by T.D. TTB–52, the wine’s true place of origin. If TTB and sunny, with summer temperatures which published in the Federal Register establishes this proposed viticultural frequently exceeding 80 degrees on July 17, 2006 (71 FR 40397). The area, its name, ‘‘Malibu Coast,’’ will be Fahrenheit. Light fog is often present in viticultural area is described as a valley recognized as a name of viticultural the evenings and early mornings, as in the higher elevations of the Santa significance under 27 CFR 4.39(i)(3). cooler air from higher elevations settles Monica Mountains in Los Angeles into the canyon. Rainfall averages The text of the proposed regulation County, California. Elevations within clarifies this point. Consequently, wine approximately 24 inches annually. Soils the Saddle Rock-Malibu viticultural area within the Malibu-Newton Canyon bottlers using ‘‘Malibu Coast’’ in a brand range from 1,700 to 2,236 feet. name, including a trademark, or in viticultural area are described as a According to T.D. TTB–52, the mixture of loam, clay, and silt and are another label reference as to the origin viticultural area is on the north-facing of the wine, would have to ensure that moderately deep and moderately to leeward side of the crest of the Santa highly fertile. the product is eligible to use the Monica Mountains, which limits the viticultural area’s full name as an The proposed Malibu Coast extent of the cooling marine influence viticultural area, if approved, would appellation of origin. and marine fog. As a result, the climate The approval of the proposed Malibu include the Malibu-Newton Canyon is warm and dry, with an average of viticultural area. Both the proposed and Coast viticultural area would not affect 4,000 GDD units. The soils are described any existing viticultural area, and any existing viticultural areas share several as a mixture of clay and loam that is characteristics which affect viticulture. bottlers using ‘‘Saddle Rock-Malibu’’ or well drained. Both the Malibu-Newton Canyon ‘‘Malibu-Newton Canyon’’ as an viticultural area and most of the slopes The proposed Malibu Coast appellation of origin or in a brand name of the proposed Malibu Coast viticultural area, if approved, would for wines made from grapes grown viticultural area face south, exposing include the Saddle Rock-Malibu within the Saddle Rock-Malibu or both regions to high amounts of solar viticultural area. Both the proposed and Malibu-Newton Canyon viticultural radiation that promote efficient existing viticultural areas share several areas would not be affected by the photosynthesis in grapevines. The characteristics, including high establishment of this new viticultural amounts of average annual rainfall elevations, well-drained soils, and warm area. The establishment of the Malibu within the Malibu-Newton Canyon temperatures. However, the Saddle Coast viticultural area would allow viticultural area and the proposed Rock-Malibu viticultural area also has vintners to use ‘‘Malibu Coast’’ or viticultural area fall within the same features that distinguish it from the ‘‘Saddle Rock-Malibu’’ as appellations range of precipitation. Additionally, surrounding proposed Malibu Coast of origin for wines made from grapes T.D. ATF–375 states that the soils of the viticultural area. The Saddle Rock- grown within the Saddle Rock-Malibu Malibu-Newton Canyon are calcareous, Malibu viticultural area is in a sheltered viticultural area if the wines meet the meaning they contain high levels of location on the leeward side of the eligibility requirements for the calcium, which is a characteristic of the ridgeline, which blocks most of the cool, appellation. Additionally, vintners soils of the proposed Malibu Coast moist marine influence and produces a would be allowed to use ‘‘Malibu Coast’’ viticultural area. Calcium plays an microclimate that is warmer than the or ‘‘Malibu-Newton Canyon’’ as important role in the development of average climate of the proposed Malibu appellations of origin for wines made grape clusters. Finally, the vineyards Coast viticultural area. Additionally, the from grapes grown within the Malibu- within the Malibu-Newton Canyon Saddle Rock-Malibu viticultural area is Newton Canyon viticultural area if the viticultural area are planted on sloping a single valley that contrasts with the wines meet the eligibility requirements hillsides, as are most of the vineyards in steep mountain landscape that for the appellation. the proposed Malibu Coast viticultural dominates the proposed Malibu Coast For a wine to be labeled with a area, and therefore require similar viticultural area, although the proposed viticultural area name or with a brand cultivation techniques. viticultural area does contain several name that includes a viticultural area The Malibu-Newton Canyon other canyons and high valleys. name, at least 85 percent of the wine must be derived from grapes grown viticultural area also has some unique TTB Determination features that distinguish it from the within the area represented by that surrounding proposed Malibu Coast TTB concludes that the petition to name, and the wine must meet the other viticultural area. The Malibu-Newton establish the 44,590-acre Malibu Coast conditions listed in 27 CFR 4.25(e)(3). If Canyon viticultural area is a single viticultural area merits consideration the wine is not eligible for labeling with bowl-shaped valley, whereas the and public comment, as invited in this a viticultural area name and that name proposed Malibu Coast viticultural area notice. appears in the brand name, then the encompasses an entire mountain range label is not in compliance and the Boundary Description characterized by marine terraces and bottler must change the brand name and steep slopes, although other steep-sided See the narrative boundary obtain approval of a new label. canyons and valleys do exist within the description of the petitioned-for Similarly, if the viticultural area name proposed viticultural area. Additionally, viticultural area in the proposed appears in another reference on the

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label in a misleading manner, the bottler rulemaking.shtml. Supplemental files Regulations.gov search page at http:// would have to obtain approval of a new may be attached to comments submitted www.regulations.gov. label. via Regulations.gov. For complete All posted comments will display the Different rules apply if a wine has a instructions on how to use commenter’s name, organization (if brand name containing a viticultural Regulations.gov, visit the site and click any), city, and State, and, in the case of area name that was used as a brand on the ‘‘Help’’ tab at the top of the page. mailed comments, all address • name on a label approved before July 7, U.S. Mail: You may send comments information, including email addresses. 1986. See 27 CFR 4.39(i)(2) for details. via postal mail to the Director, TTB may omit voluminous attachments Public Participation Regulations and Rulings Division, or material that the Bureau considers Alcohol and Tobacco Tax and Trade unsuitable for posting. Comments Invited Bureau, 1310 G Street NW., Box 12, Washington, DC 20005. You may also view copies of this TTB invites comments from interested notice, all related petitions, maps and • Hand Delivery/Courier: You may members of the public on whether it other supporting materials, and any hand-carry your comments or have them should establish the proposed Malibu electronic or mailed comments that TTB hand-carried to the Alcohol and Coast viticultural area. TTB is also receives about this proposal by Tobacco Tax and Trade Bureau, 1310 G interested in receiving comments on the appointment at the TTB Information Street NW., Suite 200E, Washington, DC sufficiency and accuracy of the name, Resource Center, 1310 G Street NW., 20005. boundary, topography, soils, climate, Washington, DC 20005. You may also Please submit your comments by the and other required information obtain copies at 20 cents per 8.5- x 11- closing date shown above in this notice. submitted in support of the petition. In inch page. Contact TTB’s information Your comments must reference Notice addition, TTB is interested in comments specialist at the above address or by No. 138 and include your name and on whether the geographic features of telephone at 202–453–2270 to schedule mailing address. Your comments also the existing Saddle Rock-Malibu and an appointment or to request copies of must be made in English, be legible, and Malibu-Newton Canyon viticultural comments or other materials. areas are so distinguishable from those be written in language acceptable for of the proposed Malibu Coast public disclosure. TTB does not Regulatory Flexibility Act viticultural area that either or both of acknowledge receipt of comments, and TTB certifies that this proposed the existing viticultural areas should not TTB considers all comments as regulation, if adopted, would not have be part of the proposed viticultural area. originals. a significant economic impact on a Please provide any available specific If you are commenting on behalf of an substantial number of small entities. information in support of your association, business, or other entity, The proposed regulation imposes no comments. your comment must include the entity’s new reporting, recordkeeping, or other Because of the potential impact of the name as well as your name and position administrative requirement. Any benefit establishment of the proposed Malibu title. If you comment via derived from the use of a viticultural Coast viticultural area on wine labels Regulations.gov, please enter the area name would be the result of a that include the term ‘‘Malibu Coast’’ as entity’s name in the ‘‘Organization’’ proprietor’s efforts and consumer discussed above under Impact on blank of the online comment form. If acceptance of wines from that area. Current Wine Labels, TTB is you comment via postal mail or hand Therefore, no regulatory flexibility particularly interested in comments delivery/courier, please submit your analysis is required. regarding whether there will be a entity’s comment on letterhead. conflict between the proposed area You may also write to the Executive Order 12866 name and currently used brand names. Administrator before the comment If a commenter believes that a conflict closing date to ask for a public hearing. This proposed rule is not a significant will arise, the comment should describe The Administrator reserves the right to regulatory action as defined by the nature of that conflict, including any determine whether to hold a public Executive Order 12866. Therefore, no anticipated negative economic impact hearing. regulatory assessment is required. that approval of the proposed Confidentiality Drafting Information viticultural area will have on an existing viticultural enterprise. TTB is also All submitted comments and Karen A. Thornton of the Regulations interested in receiving suggestions for attachments are part of the public record and Rulings Division drafted this ways to avoid conflicts, for example, by and subject to disclosure. Do not proposed rule. adopting a modified or different name enclose any material in your comments for the viticultural area. that you consider to be confidential or List of Subjects in 27 CFR Part 9 inappropriate for public disclosure. Submitting Comments Wine. Public Disclosure You may submit comments on this Proposed Regulatory Amendment notice by using one of the following On the Federal e-rulemaking portal, three methods: Regulations.gov, TTB will post, and you For the reasons discussed in the • Federal e-Rulemaking Portal: You may view, copies of this notice, selected preamble, TTB proposes to amend title may send comments via the online supporting materials, and any electronic 27, chapter I, part 9, Code of Federal comment form posted with this notice or mailed comments TTB receives about Regulations, as follows: within Docket No. TTB–2013–0007 on this proposal. A direct link to that PART 9—AMERICAN VITICULTURAL ‘‘Regulations.gov,’’ the Federal docket is available on the TTB Web site AREAS e-rulemaking portal, at http:// at http://www.ttb.gov/wine/wine- www.regulations.gov. A direct link to rulemaking.shtml under Notice No. 138. ■ that docket is available under Notice You may also reach the docket 1. The authority citation for part 9 No. 138 on the TTB Web site at containing this notice and the posted continues to read as follows: http://www.ttb.gov/wine/wine- comments received on it through the Authority: 27 U.S.C. 205.

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Subpart C—Approved American intermittent creek located within intersection with a second unnamed Viticultural Areas Walnut Canyon (near the Zuma Fire intermittent stream; then Station); then (16) Proceed westerly (downstream) ■ 2. Subpart C is amended by adding (5) Proceed southeasterly ____ along the unnamed intermittent stream §9. to read as follows: (downstream) along the unnamed approximately 0.75 mile to the stream’s §9.lll Malibu Coast. intermittent creek located within intersection with an unnamed medium- Walnut Canyon to the Pacific Ocean’s duty road known locally as Camarillo (a) Name. The name of the viticultural shoreline; then Street; then area described in this section is ‘‘Malibu (6) Proceed southwesterly along the (17) Proceed northerly on Camarillo Coast’’. For purposes of part 4 of this Pacific Ocean shoreline approximately chapter, ‘‘Malibu Coast’’ is a term of Street approximately 0.7 mile to the 1.5 miles to Point Dume and then street’s intersection with an unnamed viticultural significance. continue northwesterly along the Pacific (b) Approved maps. The 10 United light-duty road at the south-bank levee Ocean shoreline approximately 1.3 for Calleguas Creek; then States Geological Survey 1:24,000 scale miles to the mouth of an unnamed topographic maps used to determine the (18) Proceed easterly on the unnamed intermittent stream; then light-duty road approximately 0.9 mile boundary of the Malibu Coast (7) Proceed northeasterly along the viticultural area are titled: to the road’s intersection with the 100- unnamed intermittent stream (upstream) foot elevation line; then (1) Canoga Park, Calif., 1953; approximately 0.35 mile to the stream’s photorevised 1967; (19) Proceed initially westerly and intersection with State Route 1 (at BM then continue easterly and then (2) Topanga, CA, 1991; 30); then (3) Malibu Beach, CA, 1995; northerly along the meandering 100-foot (8) Proceed westerly on State Route 1 elevation line, crossing back and forth (4) Point Dume, CA, 1995; approximately 17.4 miles, crossing onto (5) Triunfo Pass, CA, 1994; between the Camarillo map and the the Triunfo Pass map and then the Point Newbury Park map, to the 100-foot (6) Point Mugu, Calif., 1949; Mugu map, to the road’s intersection photorevised 1967; photoinspected elevation line’s intersection with the with an unnamed light-duty road T1N/T2N boundary line near Conejo 1974; known locally as Calleguas Creek Road; (7) Carmarillo, Calif., 1950; Creek on the Newbury Park map; then then (20) Proceed east along the T1N/T2N photorevised 1967; (9) Proceed north-northeasterly boundary line approximately 0.7 mile to (8) Newbury Park, Calif., 1950; approximately 1.2 miles on Calleguas its intersection with U.S. Highway 101 photorevised 1967; Creek Road, crossing onto the Camarillo (Ventura Boulevard); then (9) Thousand Oaks, Calif., 1950; map, to the road’s intersection with an (21) Proceed easterly on U.S. Highway photorevised 1981; unnamed, unimproved road known 101 approximately 1.8 miles to the (10) Calabasas, Calif., 1952; locally as Caryl Drive; then photorevised 1967; (10) Encircle an unnamed 350-foot highway’s intersection with Conejo (c) Boundary. The Malibu Coast hill by proceeding westerly on Caryl Road (known locally as Old Conejo viticultural area is located in Los Drive approximately 0.2 mile to the Road); then Angeles and Ventura Counties, road’s intersection with an unnamed, (22) Proceed southerly and then California. The boundary of the Malibu unimproved road, then continuing on easterly on Conejo Road approximately Coast viticultural area is as follows: that unnamed, unimproved road around 0.75 mile to the road’s intersection with (1) The beginning point is on the the hill in a clock-wise direction for Borchard Road (also known locally as N. Canoga Park map beside Mulholland approximately 0.8 mile until the road Reino Road); then Drive at the 1,126-foot benchmark (BM intersects again with Caryl Drive; then (23) Proceed southerly on Borchard 1126), located on the marked Los (11) Proceed easterly on Caryl Drive Road (also known locally as N. Reino Angeles city boundary and the northern approximately 0.55 mile to the road’s Drive) approximately 0.9 mile to the boundary of section 24, T1N/R17W. intersection with an unnamed, point where Borchard Road (N. Reino From the beginning point, proceed east- unimproved road at Broome Ranch; Road) turns eastward, and then continue southeasterly along the Los Angeles city then easterly on Borchard Road boundary approximately 3.25 miles to (12) Proceed easterly on the unnamed, approximately 1.75 miles to Borchard the marked 1,718-foot elevation point; unimproved road approximately 0.2 Road’s intersection with U.S. Highway then mile to the road’s intersection with the 101 (Ventura Boulevard); then (2) Proceed south-southwesterly along 80-foot elevation line; then (24) Proceed easterly on U.S. Highway the Los Angeles city boundary (13) Proceed initially northeasterly 101 (Ventura Boulevard/Freeway) approximately 4.35 miles, crossing onto along the meandering 80-foot elevation approximately 5 miles, crossing onto the the Topanga map, to the northeast line, and then continue to follow the Thousand Oaks map, to the highway’s corner of section 19, T1S/R16W; then meandering 80-foot elevation line sixth and last intersection with the 920- (3) Proceed east-southeasterly along westerly, then northeasterly to its foot elevation line in section 14, T1N/ the Los Angeles city boundary intersection with West Potrero Road R19W (approximately 0.2 mile west of approximately 1.7 miles to the point (near Camarillo State Hospital, now the the intersection of U.S. Highway 101 east of Topanga Canyon where the city site of California State University and an unnamed road known locally as boundary turns south, and then Channel Islands); then Hampshire Road); then continue southerly along the city (14) Proceed easterly on West Potrero (25) Proceed southerly and then boundary approximately 1.9 miles to the Road approximately 0.5 mile to the southwesterly along the meandering boundary’s intersection with State road’s third intersection with the 200- 920-foot elevation line to its intersection Route 1 (the Pacific Coast Highway); foot elevation; then with an unnamed medium-duty road then (15) Proceed northerly along the 200- known locally as E. Potrero Road, (4) Proceed westerly on State Route 1, foot elevation line approximately 0.75 section 27, T1N/R19W; then crossing onto the Malibu Beach map mile, crossing over an unnamed (26) Proceed easterly on E. Potrero and then the Point Dume map, to the intermittent creek in Long Grade Road approximately 0.55 mile to its road’s intersection with the unnamed Canyon, to the elevation line’s intersection with an unnamed heavy-

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duty road known locally as Westlake (37) Proceed south along the Los Folder’’ on the line associated with this Boulevard, section 26, T1N/R19W; then Angeles city boundary approximately rulemaking. You may also visit the (27) Proceed northeasterly on 0.2 mile, then east-northeasterly Docket Management Facility in Room Westlake Boulevard approximately 0.4 approximately 0.2 mile, and then W12–140 on the ground floor of the mile to the road’s second intersection southeasterly approximately 0.9 mile to Department of Transportation West with the 900-foot elevation line, section the city boundary’s intersection with the Building, 1200 New Jersey Avenue SE., 26, T1N/R19W; then northern boundary of section 26, T1N/ Washington, DC 20590, between 9 a.m. (28) Proceed easterly along the 900- R17W; then and 5 p.m., Monday through Friday, foot elevation line, crossing the Los (38) Proceed east-northeasterly along except Federal holidays. Angeles County-Ventura County the Los Angeles city boundary You may submit comments, identified boundary, to the elevation line’s approximately 0.3 mile, and then by docket number, using any one of the intersection with the boundary of the continue easterly along the city following methods: Las Virgenes Land Grant (concurrent at boundary approximately 0.5 mile, (1) Federal eRulemaking Portal: this point with the northern boundary of crossing onto the Canoga Park map, and http://www.regulations.gov. section 31, T1N/R18W); then returning to the beginning point. (2) Fax: (202) 493–2251. (29) Proceed northeasterly along the (3) Mail or Delivery: Docket Las Virgenes Land Grant boundary Signed: June 24, 2013. Management Facility (M–30), U.S. approximately 0.3 mile, crossing John J. Manfreda, Department of Transportation, West Triunfo Canyon, to the boundary’s Administrator. Building Ground Floor, Room W12–140, intersection with the 1,000-foot [FR Doc. 2013–15876 Filed 7–5–13; 8:45 am] 1200 New Jersey Avenue SE., elevation line; then BILLING CODE 4810–31–P Washington, DC 20590–0001. Deliveries (30) Proceed westerly and then east- accepted between 9 a.m. and 5 p.m., northeasterly along the 1,000-foot Monday through Friday, except federal elevation line to the line’s intersection DEPARTMENT OF HOMELAND holidays. The telephone number is 202– with the Las Virgenes Land Grant SECURITY 366–9329. See the ‘‘Public Participation boundary, and then continue and Request for Comments’’ portion of northeasterly along the Las Virgenes Coast Guard the SUPPLEMENTARY INFORMATION section Land Grant boundary approximately 0.2 below for further instructions on mile to the boundary’s intersection with 33 CFR Part 165 submitting comments. To avoid U.S. Highway 101 (Ventura Freeway); [Docket No. USCG–2011–0322] duplication, please use only one of then these three methods. (31) Proceed easterly on U.S. Highway RIN 1625–AA11 FOR FURTHER INFORMATION CONTACT: If 101 (Ventura Freeway) approximately Regulated Navigation Area; Special you have questions on this rule, call or 5.7 miles, crossing onto the Calabasas email Mr. John J. Mauro, Waterways map, to the highway’s intersection with Buzzards Bay Vessel Regulation, Buzzards Bay, MA Management Division, U.S. Coast Guard the northern boundary of section 30, First District, (617) 223–8355, email T1N/R17, near Brents Junction; then AGENCY: Coast Guard, DHS. [email protected]. If you have (32) Proceed west along the northern ACTION: questions on viewing or submitting boundary of section 30, T1N/R17W Advance notice of proposed rulemaking. material to the docket, call Barbara approximately 0.5 mile to its Hairston, Program Manager, Docket intersection with the 1,000-foot SUMMARY: The Coast Guard is seeking Operations, telephone (202) 366–9826. elevation line; then comments and feedback on how best to SUPPLEMENTARY INFORMATION: (33) Proceed northerly, southerly, and enhance environmental protections and easterly along the meandering 1,000-foot navigation safety outlined in the Special Table of Acronyms elevation line, encompassing portions of Buzzards Bay regulations. Specifically, AIS Automatic Identification System Las Virgenes, East Las Virgenes, and the Coast Guard is seeking comments ANPRM Advanced Notice of Proposed Gates Canyons, to the elevation line’s related to potential modifications of the Rulemaking intersection with the western boundary current mandatory pilotage, escort tug, AWO American Waterways Operators COTP Captain of the Port of section 21, T1N/R17W; then and Vessel Movement Reporting System (34) Proceed north along the western DHS Department of Homeland Security (VMRS) Buzzards Bay requirements. FR Federal Register boundaries of sections 21 and 16, T1N/ The Coast Guard intends to use this R17W, to the section line’s intersection MOSPA Massachusetts Oil Spill Prevention input to propose new requirements on and Response Act with the Los Angeles County-Ventura barges carrying 5,000 or more barrels of RCP Responsible Carrier Program County boundary line; then oil or other hazardous material. RNA Regulated Navigation Area (35) Proceed east along the Los RA Technical Risk Assessment DATES: Angeles County-Ventura County Comments and related material VMRS Vessel Movement Reporting System boundary line approximately 0.45 mile, must be received by the Coast Guard on and then proceed north along the or before October 7, 2013. A. Executive Summary county boundary line approximately 0.1 Requests for public meetings must be Having weighed sometimes mile to the county boundary’s received by the Coast Guard on or before competing, but fundamentally intersection with Long Valley Road; July 29, 2013. important goals of environmental then ADDRESSES: Documents mentioned in protection, concerns of the local (36) Proceed east-southeasterly on this preamble are part of Docket Number community, judicious use of public Long Valley Road approximately 1.7 USCG–2011–0322. To view documents funds, restrained exercise of miles to the road’s intersection with the mentioned in this preamble as being governmental regulation, facilitation of Los Angeles city boundary available in the docket, go to http:// maritime commerce, and the (approximately 0.1 mile north of U.S. www.regulations.gov, type the docket standardization of safety regulations to Highway 101 (Ventura Freeway)), number in the ‘‘SEARCH’’ box and click avoid the fragmentation of regulatory section 23, T1N/R17W; then ‘‘SEARCH.’’ Click on ‘‘Open Docket regimes as a vessel transits across State

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or regional boundaries, we now seek to Management Facility. We recommend C. Regulatory History and Information develop the next phase of that you include your name and a comprehensive, balanced, and effective mailing address, an email address, or a The Oil Pollution Act of 1990 (OPA risk mitigation measures for Buzzards telephone number in the body of your 90) resulted in sweeping changes to the Bay. In particular, we want to update document so that we can contact you if way oil and chemical transportation is the following areas: we have questions regarding your conducted in the United States and • Federal Pilotage. The Coast Guard submission. throughout the world. This wide- believes laden tank barges transiting ranging legislation required changes in To submit your comment online, go to virtually every aspect of the oil Buzzards Bay and carrying 5,000 or http://www.regulations.gov, type the more barrels of oil or other hazardous transportation industry. It involved new docket number in the ‘‘SEARCH’’ box material should be under the direction construction requirements, operational and click ‘‘SEARCH.’’ Click on ‘‘Submit and control of an independent pilot changes, response planning, licensing a Comment’’ on the line associated with regardless of whether those tank barges and manning mandates, and increased this rulemaking. are single or double hull. liability limits. • Reporting and participation If you submit your comments by mail One significant pollution prevention requirements of the VMRS Buzzards or hand delivery, submit them in an standard in OPA 90 was the Bay. The Coast Guard believes unbound format, no larger than 81⁄2 by requirement that new tank barges and amending the reporting and 11 inches, suitable for copying and vessels be of double- hull construction. participation requirements of the VMRS electronic filing. If you submit This provision also required that Buzzards Bay to focus on that comments by mail and would like to existing single-hull tank vessels population of marine traffic that is laden know that they reached the Facility, (including barges) be retrofitted with a with 5,000 or more barrels of oil or please enclose a stamped, self-addressed double hull or be phased out of hazardous material, rather than all postcard or envelope. We will consider operation entirely by January 1, 2015. marine traffic, will enhance navigation all comments and material received In 1998, in response to the January safety and marine environmental during the comment period and may 1996 grounding of a single-hull tank protection. The intent is that the VMRS change the rule based on your barge off Moonstone Beach in Rhode × will still be manned on a 24 7 basis. comments. Island that resulted in the release of • Escort Tugs. The Coast Guard 2. Viewing Comments and Documents approximately 880,000 gallons of #2 believes that under certain conditions fuel oil, the Coast Guard established an (e.g. adverse weather, equipment To view comments, as well as RNA for the navigable waters of the limitations), double hull tank barges documents mentioned in this preamble First Coast Guard District. The RNA laden with 5,000 or more barrels of oil as being available in the docket, go to required any single-hull tank barge or hazardous material may require a tug http://www.regulations.gov, type the carrying petroleum as bulk cargo to be escort. Single-hull tank barges will docket number in the ‘‘SEARCH’’ box accompanied by an escort or assist tug continue to require tug escorts under all and click ‘‘SEARCH.’’ Click on Open unless towed by a tug equipped with circumstances. The Coast Guard notes Docket Folder on the line associated twin-screws and two engines that single hull tank barges are to be with this rulemaking. You may also visit independent of each other and capable phased out January 1, 2015. the Docket Management Facility in of maintaining control of the tank barge B. Public Participation and Request for Room W12–140 on the ground floor of in the event of a loss of one of the Comments the Department of Transportation West engines. It also stipulated that the escort Building, 1200 New Jersey Avenue SE., or assist tug must be of sufficient We encourage you to participate in Washington, DC 20590, between 9 a.m. this rulemaking by submitting capability to push or tow the tank barge and 5 p.m., Monday through Friday, promptly away from danger, and noted comments and related materials. All except Federal holidays. comments received will be posted that the use of double-hull barges would without change to http:// 3. Privacy Act remove the need for twin-screw, twin- www.regulations.gov and will include engine tugs. any personal information you have Anyone can search the electronic In response to the April 2003 provided. form of comments received into any of grounding of the oil-laden barge B–120, our dockets by the name of the which spilled approximately 98,000 1. Submitting Comments individual submitting the comment (or gallons of No. 6 oil into Buzzards Bay, If you submit a comment, please signing the comment, if submitted on the Coast Guard undertook several include the docket number for this behalf of an association, business, labor studies and assessments, facilitated rulemaking, indicate the specific section union, etc.). You may review a Privacy public discussion and ultimately of this document to which each Act notice regarding our public dockets implemented additional measures to comment applies, and provide a reason in the January 17, 2008, issue of the improve navigation safety and protect for each suggestion or recommendation. Federal Register (73 FR 3316). the marine environment. Those You may submit your comments and 4. Public Meeting measures included aids-to-navigation material online at http:// improvements and adoption of a www.regulations.gov, or by fax, mail, or We do not now plan to hold a public voluntary recommended vessel route hand delivery, but please use only one meeting. But you may submit a request (‘‘green lanes’’) in 2004, followed in of these means. If you submit a for one on or before July 29, 2013, using 2007 by an updated RNA that contained comment online, it will be considered one of the methods specified under requirements for escort tugs, federally received by the Coast Guard when you ADDRESSES. Please explain why you licensed pilots, and creation of a VMRS; successfully transmit the comment. If believe a public meeting would be these enhancements were accompanied you fax, hand deliver, or mail your beneficial. If we determine that one by widely expanded use of AIS. These comment, it will be considered as would aid this rulemaking, we will hold changes were intended to reduce the having been received by the Coast one at a time and place announced by navigation and environmental risks Guard when it is received at the Docket a later notice in the Federal Register. associated with tank barges laden with

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5,000 or more barrels of petroleum VMRS: We believe that the current product or other hazardous material— product or other hazardous material. regulations regarding the VMRS need thereby reducing costs and improving Since 2007, the American Waterways revision, in that the majority of vessels navigation safety in Buzzards Bay. Operators (AWO) Responsible Carrier currently monitored do not pose What changes to the VMRS Buzzards Program (RCP) and the emerging Coast significant threats of pollution Bay reporting and participation Guard Towing Vessel Inspection incidents. As currently written, the requirements are being considered by Program have also served to reduce the regulations direct watch stander focus the Coast Guard? likelihood of a material or human factor- from the higher risk population of oil related incident through vessel design and hazardous cargo laden tank barges Only tank barges laden with 5,000 or and equipment standards, maintenance to the much broader population of more barrels of petroleum or other programs, staffing and certification nearly ALL vessels transiting in hazardous material (both single hull and programs, and compliance programs. Buzzards Bay. In addition, in a double hull) would be required to For more information about the Coast comparative ranking of measures that submit intentions and position reports, Guard Towing Vessel Inspection would mitigate risk of an oil spill, the and would be actively monitored as Program, see the notice of proposed RA ranked the VMRS as one of the less they transited through Buzzards Bay by rulemaking published at 76 FR 49976. effective options for preventing spills in the VMRS control center at the Cape For more information about the AWO Buzzards Bay. Therefore, we believe Cod Canal. All other classes of vessels RCP, please see their Web site: http:// that the public would be best served if (such as ferries and commercial fishing www.americanwaterways.com/ the VMRS were to focus specifically on vessels) that currently participate in the commitment_safety/index.html. the highest risk vessels that transit VMRS in either an ‘‘active’’ or ‘‘passive’’ Buzzards Bay, (oil laden tank barges capacity (per the VMRS User Manual) D. Basis and Purpose carrying 5,000 or more barrels of would be exempt from VMRS Under the Ports and Waterways Safety petroleum or other hazardous cargo) requirements and would not be actively Act, the Coast Guard has the authority rather than ALL vessels. monitored by the VMRS control center. to establish RNAs in defined water areas Certain classes of vessels that frequent What would not change from the that are hazardous or in which Buzzards Bay and are currently subject current VMRS Buzzards Bay reporting hazardous conditions are determined to to the VMRS regulations, such as and participation requirements? exist. See 33 U.S.C. 1231 and commercial fishing vessels and ferries, Department of Homeland Security usually have a maximum capacity of 1. All vessels subject to the Bridge-To- Delegation No. 0170.1. 250 barrels of petroleum (primarily for Bridge Radiotelephone Act (i.e., In 2012, the Coast Guard and fuel). This is well below the 5,000-barrel primarily commercial vessels, including Massachusetts Department of threshold considered to be a significant ferries and commercial fishing vessels, Environmental Protection (Mass DEP) threat to the environment as defined in but not including recreational vessels) contracted with the Homeland Security the 2007 regulations that implemented would still be required to monitor the Systems Engineering Development several navigation safety measures in VMRS radio frequency (channel 13 Institute (HS–SEDI) to provide a Buzzards Bay and established the VHF–FM) at all times while operating technical risk assessment (RA) and VMRS. (See 72 FR 50052.) within the VMRS area and respond evaluation of measures to further reduce More than 20,000 commercial cargo promptly when hailed. (See Pub. L. 92– the level of potential risk of an oil spill vessels, tankers, tugs, barges, passenger 63; 85 Stat. 164; 33 U.S.C. 1201–1208; in Buzzards Bay and the Cape Cod vessels, and commercial fishing vessels 33 CFR 26; 47 CFR 80.1001–80.1023; 46 Canal (The RA will be provided in the pass through Buzzards Bay each year, CFR 7). docket). along with thousands of smaller 2. All vessels (including recreational The RA noted that double-hull tank recreational boats. Of those, roughly 600 vessels) would still be required to barge requirements, which become fully are tank barges laden with 5,000 or more observe the Inland Rules of the Road effective in January 2015, have barrels of petroleum or other hazardous (See Pub. L. 96–591; 94 Stat. 3415; 33 increasingly resulted in a significant material. When viewed in combination U.S.C. 2001–2038; 33 CFR 84–90). reduction in the probability of an oil with the increased measures already 3. All current reporting and spill after a marine incident that implemented along with those that we participation requirements for tank culminated in a collision, allision, or propose to put in place (including barges laden with 5,000 or more barrels grounding. The double hull requirement mandatory pilotage and condition-based of petroleum or other hazardous is noted as one of the primary tug escorts), the need for this additional material will continue to be in effect. contributors to risk reduction in control for tank barges laden with LESS 4. VMRS Buzzards Bay Control will Buzzards Bay. than 5,000 barrels of petroleum or other continue to be staffed and operated by The purpose of this proposed hazardous material is no longer U.S. Army Corps of Engineers, Cape Cod rulemaking is to provide for safety on necessary and counter-productive as it Canal. the navigable waters in the regulated diffuses watch stander attention from Federal Pilots: The existing regulation area. the higher risk target population. states that each single hull tank barge Changing certain reporting and transiting Buzzards Bay carrying 5,000 E. Discussion of the Proposed Rule participation requirements of the or more barrels of oil or other hazardous The Coast Guard plans to use the Buzzards Bay VMRS to more closely material must be under the direction results of this RA to evaluate the current focus monitoring activity on tank barges and control of a pilot, who is not a level of federal regulation for Buzzards laden with 5,000 or more barrels of member of the crew, operating under a Bay and the Cape Cod Canal, and to petroleum or other hazardous material valid, appropriately endorsed, Federal determine whether changes are would reduce reporting and first class pilots license issued by the necessary to the VMRS, federal pilots, participation on certain other classes of Coast Guard. Pilots are required to and/or tug escort system requirements vessels, and permit marine controllers embark, direct, and control from the in order to enhance safety in the marine to focus more closely on the intended primary tug during transits of Buzzards environment and further reduce the vessel population—tank barges laden Bay. The new regulation would extend potential for oil spills. with 5,000 or more barrels of petroleum this requirement to double hulls as well

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so that all oil or hazardous material- G. Preliminary Regulatory Analysis process by submitting comments to this laden tank barges carrying 5,000 or more This document is issued under notice. In accordance with Executive barrels of petroleum or other hazardous authority of 5 U.S.C. 552(a) and 33 CFR Order 13132, the Coast Guard will material would require pilots under all 1.05–30. provide a federalism impact statement circumstances. The RA acknowledges to document (1) the extent of the Coast that the independent pilotage Federalism Guard’s consultation with State and requirement proposed provides A rule has implications for federalism local officials that submit comments to additional decision support and under Executive Order 13132, this advanced notice of proposed experience on the tug when transiting Federalism, if it has a substantial direct rulemaking, (2) a summary of the nature Buzzards Bay, and significantly reduces effect on the States, on the relationship of any concerns raised by State or local the probability of a human factor- between the national government and governments and the Coast Guard’s induced incident. the States, or on the distribution of position thereon, and (3) the extent to Escort Tugs: The Coast Guard is power and responsibilities among the which the concerns of State and local considering establishing certain various levels of government. The U.S. officials have been met. We will also thresholds, the exceedance of which Supreme Court, in the cases of United report to the Office of Management and would trigger the requirement for an States v. Locke, 529 U.S. 89 (2000) and Budget any written communications escort tug for double-hull tank barges Ray v. Atlantic Richfield Co., 435 U.S. with the States. laden with 5,000 or more barrels of oil 151 (1978) has ruled that certain Dated: May 30, 2013. or hazardous material. These thresholds categories of regulation issued pursuant D.B. Abel, could be expressed in terms of to the Ports and Waterways Safety Act Rear Admiral, U.S. Coast Guard, Commander, meteorological conditions such as wind of 1972, as amended, are reserved First Coast Guard District. speed, wave height or visibility, or any exclusively to the Coast Guard, and that [FR Doc. 2013–16252 Filed 7–5–13; 8:45 am] other factors deemed appropriate, such State regulation in these areas is BILLING CODE 9110–04–P as equipment limitations or defects. preempted. In general, only the federal Specifically, the Coast Guard seeks the government may regulate the design, input of operators, pilots, industry construction, alteration, repair, associations, regulators, members of the ENVIRONMENTAL PROTECTION maintenance, operation, equipping, AGENCY Area Committee, and concerned citizens personnel qualification, and manning of on the potential threshold conditions tank vessels. Similarly, where the Coast 40 CFR Part 52 which would trigger the requirement of Guard enacts regulations that control an escort tug for double-hull tank barges vessel traffic or are otherwise intended [EPA–R08–OAR–2012–0026, FRL–9830–9] laden with 5,000 or more barrels of oil to protect navigation and the marine or hazardous material. Approval, Disapproval and environment, or affirmatively Promulgation of Implementation Plans; Once these threshold conditions are determines that such regulation is State of Wyoming; Regional Haze State fixed, industry would have the unnecessary or inappropriate, a State Implementation Plan; Federal flexibility to determine if the need to may not enact rules that conflict with Implementation Plan for Regional transit during these high-risk periods is the Coast Guard’s determination in that Haze; Notice of Public Hearings offset by the additional cost of the area, including situations in which the escort, or if a delay in transit awaiting State rules are identical to the federal AGENCY: Environmental Protection more favorable conditions is a better rules. Agency (EPA). option. As noted previously in our 2007 ACTION: Notice of public hearings; In a comparative ranking of measures rulemaking (See 72 FR 50052), the Coast extension of comment period. that would mitigate risk of an oil spill, Guard believes that State law is the RA quotes a National Academy of preempted on the subjects discussed in SUMMARY: EPA has scheduled additional Science study indicating that double this ANPRM, specifically with regard to public hearings for our proposed action hulls result in a 75 to 83 percent the subjects of vessel routing, manning, on Wyoming’s State Implementation reduction in the probability of a spill, and tug escort requirements in Buzzards Plan (SIP) addressing regional haze should a grounding, collision or allision Bay. under. We are making this change in occur. Therefore, escort tugs would Nevertheless, the Coast Guard response to letters submitted by the continue to accompany all single-hulled recognizes the key role State and local Governor of Wyoming on June 13, 2013, tank barges laden with 5,000 or more governments may have in making the Wyoming Congressional Delegation barrels of petroleum or other hazardous regulatory determinations. Sections 4 on June 14, 2013, and the Wyoming material through Buzzards Bay until and 6 of Executive Order 13132 require Department of Environmental Quality single-hulled tank barges are phased out that for any rules with preemptive on June 14, 2013. The comment period January 1, 2015. effect, the Coast Guard shall provide for this action was scheduled to close on elected officials of affected State and August 9, 2013. EPA is extending the F. Information Requested local governments and their comment period to August 26, 2013 to This advance notice of proposed representative national organizations allow for a full 30 days for the rulemaking invites public comment on the notice and opportunity for submission of additional comments the merits, advantages, and appropriate participation in any following the public hearings. disadvantages of changing certain vessel rulemaking proceedings, and to consult DATES: Public hearings for this proposal reporting and participation with such officials early in the are scheduled to be held on July 17, requirements of the Buzzards Bay rulemaking process. 2013 at the Laramie County Library, VMRS; Federal Pilots, not a member of Therefore, we invite affected State Cottonwood Room, 2200 Pioneer the crew, on board tugs towing both and local governments and their Avenue, Cheyenne, Wyoming 82001 single- and double-hulled tank barges; representative national organizations to and on July 26, 2013 at the Oil & Gas and Escort Tugs for double-hull tank indicate their desire for participation Conservation Commission, Meeting barges during adverse conditions. and consultation in this rulemaking Room 129, 2211 King Boulevard,

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Casper, Wyoming 82602. The public ENVIRONMENTAL PROTECTION Docket’s normal hours of operation, and hearings will be held from 1 p.m. until AGENCY special arrangements should be made 5 p.m. and again from 6 p.m. until 8 for deliveries of boxed information. 40 CFR Parts 52 and 81 p.m. at both locations. The comment Instructions: Direct your comments to period for the proposed rule published [EPA–R03–OAR–2012–0386; FRL–9829–5] Docket ID No. EPA–R03–OAR–2012– June 10, 2013 at 78 FR 34738 is 0386. EPA’s policy is that all comments extended. Comments must be received Approval and Promulgation of Air received will be included in the public on or before August 26, 2013. Quality Implementation Plans; West docket without change, and may be Virginia; Redesignation of the West FOR FURTHER INFORMATION CONTACT: made available online at Virginia Portion of the Parkersburg- Laurel Dygowski, EPA Region 8, www.regulations.gov, including any Marietta, WV–OH 1997 Annual Fine personal information provided, unless Mailcode 8P–AR, 1595 Wynkoop Street, Particulate Matter Nonattainment Area the comment includes information Denver, Colorado 80202–1129, (303) to Attainment and Approval of the claimed to be Confidential Business 312–6144, [email protected]. Associated Maintenance Plan Information (CBI) or other information SUPPLEMENTARY INFORMATION: whose disclosure is restricted by statute. On June AGENCY: Environmental Protection 10, 2013, we published a proposed rule Agency (EPA). Do not submit information that you partially approving and partially consider to be CBI or otherwise ACTION: Proposed rule; supplemental. disapproving Wyoming’s 40 CFR protected through www.regulations.gov 51.309(g) regional haze SIP. 78 FR SUMMARY: EPA is issuing a supplement or email. The www.regulations.gov Web 34738. In our June 10, 2013 proposed to its proposed approval of the State of site is an ‘‘anonymous access’’ system, rule, we provided notification that we West Virginia’s request to redesignate which means EPA will not know your were holding a public hearing on June the West Virginia portion of the identity or contact information unless 24, 2013, in Cheyenne, Wyoming. To Parkersburg-Marietta, WV–OH fine you provide it in the body of your partially accommodate requests for both particulate matter (PM2.5) nonattainment comment. If you send an email additional time to prepare for public area (Parkersburg-Marietta Area or Area) comment directly to EPA without going through www.regulations.gov, your hearings and an extension to the public to attainment for the 1997 annual PM2.5 comment period in letters from the national ambient air quality standard email address will be automatically Governor of Wyoming on June 13, 2013, (NAAQS). This supplemental proposal captured and included as part of the comment that is placed in the public the Wyoming Congressional Delegation revises and expands the basis for docket and made available on the on June 14, 2013, and the Wyoming proposing approval of the State’s Internet. If you submit an electronic Department of Environmental Quality request in light of developments since comment, EPA recommends that you on June 14, 2013, we have scheduled EPA issued its initial proposal on December 11, 2012. This supplemental include your name and other contact additional public hearings as stated information in the body of your above and extended the public comment proposal addresses the effects of two decisions of the United States Court of comment and with any disk or CD–ROM period to August 26, 2013. Appeals for the District of Columbia you submit. If EPA cannot read your The public hearings will provide (D.C. Circuit Court): The D.C. Circuit comment due to technical difficulties interested parties the opportunity to Court’s August 21, 2012 decision to and cannot contact you for clarification, present information and opinions to vacate and remand to EPA the Cross- EPA may not be able to consider your EPA concerning our proposal. Interested State Air Pollution Control Rule comment. Electronic files should avoid parties may also submit written (CSAPR); and the D.C. Circuit Court’s the use of special characters, any form comments, as discussed in the proposed January 4, 2013 decision to remand to of encryption, and be free of any defects rulemaking. Written statements and EPA two final rules implementing the or viruses. supporting information submitted PM2.5 NAAQS. EPA is seeking comment Docket: All documents in the during the comment period will be only on the issues raised in this electronic docket are listed in the considered with the same weight as any supplemental proposal and is not www.regulations.gov index. Although oral comments and supporting reopening for comment other issues listed in the index, some information is information presented at the public raised in its prior proposal. not publicly available, i.e., CBI or other hearings. DATES: Written comments must be information whose disclosure is received on or before August 7, 2013. Dated: June 21, 2013. restricted by statute. Certain other ADDRESSES: Submit your comments, material, such as copyrighted material, Howard M. Cantor, identified by Docket ID Number EPA– is not placed on the Internet and will be Acting Regional Administrator, Region 8. R03–OAR–2012–0386 by one of the publicly available only in hard copy [FR Doc. 2013–16295 Filed 7–5–13; 8:45 am] following methods: form. Publicly available docket BILLING CODE 6560–50–P A. www.regulations.gov. Follow the materials are available either on-line instructions for submitting electronically in www.regulations.gov or comments. in hard copy during normal business B. Email: [email protected]. hours at the Air Protection Division, C. Mail: EPA–R03–OAR–2012–0386, U.S. Environmental Protection Agency, Cristina Fernandez, Associate Director, Region III, 1650 Arch Street, Office of Air Quality Planning, Mailcode Philadelphia, Pennsylvania 19103. 3AP30, U.S. Environmental Protection Copies of the State submittal are Agency, Region III, 1650 Arch Street available at the West Virginia Philadelphia, Pennsylvania 19103. Department of Environmental D. Hand Delivery: At the previously- Protection, Division of Air Quality, 601 listed EPA Region III address. Such 57th Street SE., Charleston, West deliveries are only accepted during the Virginia 25304.

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FOR FURTHER INFORMATION CONTACT: Rose emissions inventory for a nonattainment that contributed to attainment of the Quinto, (215) 814–2182, or by email at area. For purposes of the PM2.5 NAAQS, 1997 annual PM2.5 standard in the [email protected]. this emissions inventory addresses not nonattainment area could be considered SUPPLEMENTARY INFORMATION: only direct emissions of PM2.5, but also permanent and enforceable. EPA emissions of all precursors with the recently promulgated CSAPR (76 FR Table of Contents potential to participate in PM2.5 48208, August 8, 2011) to replace Clean formation, i.e., SO2, NOX, VOC and NH3. Air Interstate Rule (CAIR), which has I. Background In the December 11, 2012 NPR, EPA II. Specific Issues on Which EPA Is Taking been in place since 2005. See 76 FR Comments proposed several actions related to the 59517. CAIR requires significant redesignation of the Area to attainment A. Effect of the August 21, 2012 D.C. reductions in emissions of SO2 and NOX Circuit Court Decision Regarding EPA’s for the 1997 annual PM2.5 NAAQS. First, from electric generating units to limit CSAPR EPA proposed to approve West the interstate transport of these 1. Background Virginia’s request to change the legal pollutants and the ozone and PM they 2. Supplemental Proposal on This Issue definition of the West Virginia portion 2.5 form in the atmosphere. See 76 FR B. Effect of the January 4, 2013 D.C. Circuit of the Parkersburg- Marietta Area from 70093. The D.C. Circuit Court initially Court Decision Regarding the PM2.5 nonattainment to attainment for the vacated CAIR, North Carolina v. EPA, Implementation Under Subpart 4 1997 annual PM NAAQS. Second, 1. Background 2.5 EPA proposed to approve the 531 F.3d 896 (D.C. Cir. 2008), but 2. Supplemental Proposal on This Issue ultimately remanded that rule to EPA a. Applicable Requirements for Purposes of maintenance plan for the West Virginia portion of the Area as a revision to the without vacatur to preserve the Evaluating the Redesignation Request environmental benefits provided by b. Subpart 4 Requirements and West Virginia SIP because the plan Parkersburg-Marietta Area’s meets the requirements of section 175A CAIR, North Carolina v. EPA, 550 F.3d Redesignation Request of the CAA. Third, EPA proposed to 1176, 1178 (D.C. Cir. 2008). c. Subpart 4 and Control of PM2.5 approve the insignificance CSAPR included regulatory changes Precursors determination for the onroad motor to sunset (i.e., discontinue) CAIR and d. Maintenance Plan and Evaluation of vehicle contribution of PM2.5, NOX and the CAIR Federal Implementation Plans Precursors SO in the West Virginia portion of the III. Summary of Proposed Action 2 (FIPs) for control periods in 2012 and IV. Statutory and Executive Order Reviews Area for transportation conformity beyond. See 76 FR 48322. Although purposes. EPA received no comments in West Virginia’s redesignation request I. Background response to the December 11, 2012 NPR and maintenance plan relied on proposing approval of the above reductions associated with CAIR, EPA On March 5, 2012, the State of West described redesignation request, Virginia through the West Virginia proposed to approve the request based maintenance plan and the insignificance in part on the fact that CAIR was to Department of Environmental Protection determination. EPA is not reopening the (WVDEP) formally submitted a request remain in force through the end of 2011 public comment period to submit and CSAPR would achieve ‘‘similar or to redesignate the West Virginia portion comment on the issues addressed in the of the Parkersburg-Marietta Area from greater reductions in the relevant areas December 11, 2012 NPR. in 2012 and beyond.’’ See 76 FR 59517. nonattainment to attainment of the 1997 EPA today is issuing a supplement to annual PM2.5 NAAQS. Concurrently, its December 11, 2012 NPR. This On December 30, 2011, the D.C. West Virginia submitted a maintenance supplemental NPR addresses two recent Circuit Court issued an order addressing plan for the Area as a SIP revision to decisions of the D.C. Circuit Court the status of CSAPR and CAIR in ensure continued attainment throughout which affect the proposed redesignation response to motions filed by numerous the Area over the next 10 years. and which have arisen since the parties seeking a stay of CSAPR pending On December 11, 2012 (77 FR 73560), issuance of the NPR: (1) The D.C. Circuit judicial review. In that order, the D.C. EPA published a notice of proposed Court’s August 21, 2012 decision to Circuit Court stayed CSAPR pending rulemaking (NPR or the December 11, vacate and remand to EPA the CSAPR resolution of the petitions for review of 2012 NPR) determining that the and (2) the D.C. Circuit Court’s January that rule in EME Homer City Generation, Parkersburg-Marietta Area has attained 4, 2013 decision to remand to EPA two L.P. v. EPA (No. 11–1302 and the 1997 annual PM2.5 NAAQS and that final rules implementing the PM2.5 consolidated cases). The D.C. Circuit the Area has met the requirements for NAAQS. Therefore, EPA’s supplemental Court also indicated that EPA was redesignation under section 107(d)(3)(E) proposal revises and expands the basis expected to continue to administer of the Clean Air Act (CAA) upon for EPA’s proposed approval of West CAIR in the interim until judicial approval of the base year emissions Virginia’s request to designate the review of CSAPR was completed. inventory. On December 12, 2012 (77 FR Parkersburg-Marietta Area to attainment On August 21, 2012, the D.C. Circuit 73924), EPA approved the base year for the 1997 annual PM NAAQS, in 2.5 Court issued the decision in EME Homer emissions inventory which included light of these developments since EPA’s City, to vacate and remand CSAPR and emissions estimates that cover the initial NPR. general source categories of point, area, ordered EPA to continue administering nonroad mobile, onroad mobile, and II. Specific Issues on Which EPA Is CAIR ‘‘pending . . . development of a biogenic sources. The pollutants that Taking Comments valid replacement.’’ EME Homer City at comprise the inventory are nitrogen A. Effect of the August 21, 2012 D.C. 38. The D.C. Circuit Court denied all oxides (NOX), volatile organic Circuit Court Decision Regarding EPA’s petitions for rehearing on January 24, compounds (VOCs), PM2.5, coarse CSAPR 2013. EPA and other parties have filed particles (PM10), ammonia (NH3), and petitions for certiorari to the U.S. 1. Background sulfur dioxide (SO2). This emissions Supreme Court, but those petitions have inventory satisfies the requirement of In its December 11, 2012 NPR to not been acted on to date. Nonetheless, section 172(c)(3) of the CAA, which redesignate the Parkersburg-Marietta EPA intends to continue to act in requires states to submit a Area, EPA proposed to determine that accordance with the EME Homer City comprehensive, accurate, and current the emission reduction requirements opinion.

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2. Supplemental Proposal on This Issue administer CAIR’s replacement. specific provisions of subpart 4 of Part In light of these unique circumstances Furthermore, the D.C. Circuit Court’s D of Title I. instruction provides an additional and for the reasons explained below, 2. Supplemental Proposal on This Issue EPA in this portion of its supplemental backstop by definition, any rule that replaces CAIR and meets the D.C. In this portion of EPA’s supplemental rule is seeking comment limited to the proposal, EPA is soliciting comment on impact of the D.C. Circuit Court’s Circuit Court’s direction would require upwind states to have SIPs that the limited issue of the effect of the D.C. decision in EME Homer City ruling on Circuit Court’s January 4, 2013 ruling on EPA’s proposal to approve the eliminate any significant contributions to downwind nonattainment and the proposed redesignation. As redesignation request and the related explained below, EPA is proposing to SIP revisions for the Parkersburg- prevent interference with maintenance in downwind areas. determine that the D.C. Circuit Court’s Marietta Area, including West Virginia’s January 4, 2013 decision does not plan for maintaining attainment of the Moreover, in vacating CSAPR and requiring EPA to continue administering prevent EPA from redesignating the 1997 annual PM2.5 standard in the Area. Parkersburg-Marietta Area to As explained in greater detail below, to CAIR, the D.C. Circuit Court emphasized that the consequences of attainment. Even in light of the D.C. the extent that attainment is due to Circuit Court’s decision, redesignation emission reductions associated with vacating CAIR ‘‘might be more severe now in light of the reliance interests for this Area is appropriate under the CAIR, EPA is here determining that CAA and EPA’s longstanding those reductions are sufficiently accumulated over the intervening four years.’’ EME Homer City, 696 F.3d at 38. interpretations of the CAA’s provisions permanent and enforceable for purposes regarding redesignation. EPA first of CAA sections 107(d)(3)(E)(iii) and The accumulated reliance interests include the interests of states that explains its longstanding interpretation 175A. that requirements that are imposed, or As directed by the D.C. Circuit Court, reasonably assumed they could rely on reductions associated with CAIR which that become due, after a complete CAIR remains in place and enforceable redesignation request is submitted for until EPA promulgates a valid brought certain nonattainment areas into attainment with the NAAQS. If EPA an area that is attaining the standard, are replacement rule to substitute for CAIR. not applicable for purposes of West Virginia’s SIP revision lists CAIR were prevented from relying on reductions associated with CAIR in evaluating a redesignation request. as a control measure that was adopted Second, EPA then shows that, even if by the State in 2006 and required redesignation actions, states would be forced to impose additional, redundant EPA applies the subpart 4 requirements compliance by January 1, 2009. CAIR to the Parkersburg-Marietta Area was thus in place and getting emission reductions on top of those achieved by CAIR. EPA believes this is precisely the redesignation request and disregards the reductions when Parkersburg-Marietta provisions of its 1997 PM2.5 began monitoring attainment of the 1997 type of irrational result the D.C. Circuit Court sought to avoid by ordering EPA implementation rule recently remanded annual PM2.5 standard during the 2006– by the D.C. Circuit Court, the State’s 2008 time period. The quality-assured, to continue administering CAIR. For these reasons also, EPA believes it is request for redesignation of this Area certified monitoring data continues to still qualifies for approval. EPA’s show the area in attainment of the 1997 appropriate to allow states to rely on CAIR, and the existing emissions discussion takes into account the effect PM2.5 standard through 2011. of the D.C. Circuit Court’s ruling on the reductions achieved by CAIR, as To the extent that West Virginia is Area’s maintenance plan, which EPA sufficiently permanent and enforceable relying on CAIR in its maintenance plan views as approvable when subpart 4 for regulatory purposes such as to support continued attainment into requirements are considered. the future, the recent directive from the redesignations. Following promulgation D.C. Circuit Court in EME Homer City of the replacement rule for CSAPR, EPA a. Applicable Requirements for ensures that the reductions associated will review existing SIPs as appropriate Purposes of Evaluating the with CAIR will be permanent and to identify whether there are any issues Redesignation Request that need to be addressed. enforceable for the necessary time With respect to the 1997 PM2.5 period. EPA has been ordered by the B. Effect of the January 4, 2013 D.C. Implementation Rule, the D.C. Circuit D.C. Circuit Court to develop a new rule Circuit Court Decision Regarding the Court’s January 4, 2013 ruling rejected to address interstate transport to replace PM2.5 Implementation Under Subpart 4 EPA’s reasons for implementing the CSAPR, and the opinion makes clear PM2.5 NAAQS solely in accordance with that after promulgating that new rule 1. Background the provisions of subpart 1, and EPA must provide states an opportunity On January 4, 2013, in Natural remanded that matter to EPA, so that it to draft and submit SIPs to implement Resources Defense Council v. EPA, the could address implementation of the that rule. Thus, CAIR will remain in D.C. Circuit Court remanded to EPA the 1997 PM2.5 NAAQS under subpart 4 of place until EPA has promulgated a final ‘‘Final Clean Air Fine Particle Part D of the CAA, in addition to rule through a notice-and-comment Implementation Rule’’ (72 FR 20586, subpart 1. For the purposes of rulemaking process, states have had an April 25, 2007) and the evaluating West Virginia’s redesignation opportunity to draft and submit SIPs in ‘‘Implementation of the New Source request for the Parkersburg-Marietta response to it, EPA has reviewed the Review (NSR) Program for Particulate Area, to the extent that implementation SIPs to determine if they can be Matter Less than 2.5 Micrometers under subpart 4 would impose approved, and EPA has taken action on (PM2.5)’’ final rule (73 FR 28321, May additional requirements for areas the SIPs, including promulgating a FIP 16, 2008) (collectively, ‘‘1997 PM2.5 designated nonattainment, EPA believes if appropriate. The D.C. Circuit Court’s Implementation Rule’’). 706 F.3d 428 that those requirements are not clear instruction to EPA is that it must (D.C. Cir. 2013). The D.C. Circuit Court ‘‘applicable’’ for the purposes of section continue to administer CAIR until a found that EPA erred in implementing 107(d)(3)(E) of the CAA, and thus EPA valid replacement exists, and thus EPA the 1997 PM2.5 NAAQS pursuant to the is not required to consider subpart 4 believes that CAIR emission reductions general implementation provisions of requirements with respect to the may be relied upon until the necessary subpart 1 of Part D of Title I of the CAA, Parkersburg-Marietta Area actions are taken by EPA and states to rather than the particulate-matter- redesignation. Under its longstanding

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interpretation of the CAA, EPA has Subsequent to the South Coast decision, request. Absent a showing that interpreted section 107(d)(3)(E) to mean, in evaluating and acting upon unadopted and unimplemented as a threshold matter, that the part D redesignation requests for the 1997 8- requirements are necessary for future provisions which are ‘‘applicable’’ and hour ozone standard that were maintenance, it is reasonable to view which must be approved in order for submitted to EPA for areas under the requirements applicable for EPA to redesignate an area include only subpart 1, EPA applied its longstanding purposes of evaluating the redesignation those which came due prior to a state’s interpretation of the CAA that request as including only those SIP submittal of a complete redesignation ‘‘applicable requirements,’’ for purposes requirements that have already come request. See ‘‘Procedures for Processing of evaluating a redesignation, are those due. These are the requirements that led Requests to Redesignate Areas to that had been due at the time the to attainment of the NAAQS. To require, Attainment,’’ Memorandum from John redesignation request was submitted. for redesignation approval, that a state Calcagni, Director, Air Quality See, e.g., Proposed Redesignation of also satisfy additional SIP requirements Management Division, September 4, Manitowoc County and Door County coming due after the state submits its 1992 (Calcagni memorandum). See also Nonattainment Areas (75 FR 22047, complete redesignation request, and ‘‘State Implementation Plan (SIP) 22050, April 27, 2010). In those actions, while EPA is reviewing it, would Requirements for Areas Submitting EPA therefore did not consider subpart compel the state to do more than is Requests for Redesignation to 2 requirements to be ‘‘applicable’’ for necessary to attain the NAAQS, without Attainment of the Ozone and Carbon the purposes of evaluating whether the a showing that the additional Monoxide (CO) National Ambient Air area should be redesignated under requirements are necessary for Quality Standards (NAAQS) on or after section 107(d)(3)(E) of the CAA. maintenance. November 15, 1992,’’ Memorandum EPA’s interpretation derives from the In the context of this redesignation, from Michael Shapiro, Acting Assistant provisions of section 107(d)(3) of the the timing and nature of the D.C. Circuit Administrator, Air and Radiation, CAA. Section 107(d)(3)(E)(v) states that, Court’s January 4, 2013 decision in September 17, 1993 (Shapiro for an area to be redesignated, a state NRDC v. EPA compound the memorandum); Final Redesignation of must meet ‘‘all requirements consequences of imposing requirements Detroit-Ann Arbor, (60 FR 12459, ‘applicable’ to the area under section that come due after the redesignation 12465–66, March 7, 1995); Final 110 and part D.’’ Section 107(d)(3)(E)(ii) request is submitted. West Virginia Redesignation of St. Louis, Missouri, (68 provides that EPA must have fully submitted its redesignation request on FR 25418, 25424–27, May 12, 2003); approved the ‘‘applicable’’ SIP for the March 5, 2012, but the D.C. Circuit Sierra Club v. EPA, 375 F.3d 537, 541 area seeking redesignation. These two Court did not issue its decision sections read together support EPA’s (7th Cir. 2004) (upholding EPA’s remanding EPA’s 1997 PM2.5 redesignation rulemaking applying this interpretation of ‘‘applicable’’ as only implementation rule concerning the interpretation and expressly rejecting those requirements that came due prior applicability of the provisions of Sierra Club’s view that the meaning of to submission of a complete subpart 4 until January 2013. ‘‘applicable’’ under the statute is redesignation request. First, holding To require West Virginia’s fully- ‘‘whatever should have been in the plan states to an ongoing obligation to adopt completed and pending redesignation at the time of attainment rather than new CAA requirements that arose after request to comply now with whatever actually was in the plan and the state submitted its redesignation requirements of subpart 4 that the D.C. already implemented or due at the time request, in order to be redesignated, Circuit Court announced only on of attainment’’).1 In this case, at the time would make it problematic or January 4, 2013, would be to give that West Virginia submitted its impossible for EPA to act on retroactive effect to such requirements redesignation request, requirements redesignation requests in accordance when the State had no notice that it was under subpart 4 were not due, and with the 18-month deadline Congress required to meet them. The D.C. Circuit indeed, were not yet known to apply. set for EPA action in section Court recognized the inequity of this EPA’s view that, for purposes of 107(d)(3)(D). If ‘‘applicable type of retroactive impact in Sierra Club evaluating the Parkersburg-Marietta requirements’’ were interpreted to be a v. Whitman, 285 F.3d 63 (D.C. Cir. Area redesignation, the subpart 4 continuing flow of requirements with no 2002),2 where it upheld the D.C. District requirements were not due at the time reasonable limitation, states, after Court’s ruling refusing to make West Virginia submitted the submitting a redesignation request, retroactive EPA’s determination that the redesignation request is in keeping with would be forced continuously to make St. Louis area did not meet its the EPA’s interpretation of subpart 2 additional SIP submissions that in turn attainment deadline. In that case, requirements for subpart 1 ozone areas would require EPA to undertake further petitioners urged the D.C. Circuit Court redesignated subsequent to the D.C. notice-and-comment rulemaking actions to make EPA’s nonattainment Circuit Court’s decision in South Coast to act on those submissions. This would determination effective as of the date Air Quality Mgmt. Dist. v. EPA, 472 F.3d create a regime of unceasing rulemaking that the statute required, rather than the 882 (D.C. Cir. 2006). In South Coast, the that would delay action on the later date on which EPA actually made D.C. Circuit Court found that EPA was redesignation request beyond the 18- the determination. The D.C. Circuit not permitted to implement the 1997 8- month timeframe provided by the CAA Court rejected this view, stating that hour ozone standard solely under for this purpose. applying it ‘‘would likely impose large subpart 1, and held that EPA was Second, a fundamental premise for costs on States, which would face fines required under the statute to implement redesignating a nonattainment area to the standard under the ozone-specific attainment is that the area has attained 2 Sierra Club v. Whitman was discussed and requirements of subpart 2 as well. the relevant NAAQS due to emission distinguished in a recent D.C. Circuit Court reductions from existing controls. Thus, decision that addressed retroactivity in a quite 1 Applicable requirements of the CAA that come an area for which a redesignation different context, where, unlike the situation here, due subsequent to the area’s submittal of a complete request has been submitted would have EPA sought to give its regulations retroactive effect. redesignation request remain applicable until a already attained the NAAQS as a result National Petrochemical and Refiners Ass’n v. EPA. redesignation is approved, but are not required as 630 F.3d 145, 163 (D.C. Cir. 2010), rehearing denied a prerequisite to redesignation. Section 175A(c) of of satisfying statutory requirements that 643 F.3d 958 (D.C. Cir. 2011), cert denied 132 S. the CAA. came due prior to the submission of the Ct. 571 (2011).

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and suits for not implementing air relationship of subpart 1 and subpart 4 the area can maintain the standard with pollution prevention plans . . . even SIP requirements, and pointed out that a prevention of significant deterioration though they were not on notice at the subpart 1 requirements were to an (PSD) program after redesignation. A time.’’ Id. at 68. Similarly, it would be extent ‘‘subsumed by, or integrally detailed rationale for this view is unreasonable to penalize West Virginia related to, the more specific PM10 described in a memorandum from Mary by rejecting its redesignation request for requirements.’’ (57 FR 13538, April 16, Nichols, Assistant Administrator for Air an area that is already attaining the 1997 1992). EPA’s December 11, 2012 NPR and Radiation, dated October 14, 1994, PM2.5 standard and that met all for this redesignation action addressed entitled, ‘‘Part D New Source Review applicable requirements known to be in how the Parkersburg-Marietta Area Requirements for Areas Requesting effect at the time of the request. For EPA meets the requirements for Redesignation to Attainment.’’ See also now to reject the redesignation request redesignation under subpart 1. These rulemakings for Detroit, Michigan (60 solely because the state did not subpart 1 requirements include, among FR 12467–12468, March 7, 1995); expressly address subpart 4 other things, provisions for attainment Cleveland-Akron-Lorain, Ohio (61 FR requirements of which it had no notice, demonstrations, reasonably available 20458, 20469–20470, May 7, 1996); would inflict the same unfairness control measures (RACM), reasonable Louisville, Kentucky (66 FR 53665, condemned by the D.C. Circuit Court in further progress (RFP), emissions October 23, 2001); and Grand Rapids, Sierra Club v. Whitman. inventories, and contingency measures. Michigan (61 FR 31834–31837, June 21, For the purposes of this redesignation, 1996). b. Subpart 4 Requirements and in order to identify any additional With respect to the specific Parkersburg-Marietta Area’s requirements which would apply under attainment planning requirements under Redesignation Request subpart 4, EPA is considering the subpart 4,5 when EPA evaluates a Even if EPA were to take the view that Parkersburg-Marietta Area to be a redesignation request under either the D.C. Circuit Court’s January 4, 2013 ‘‘moderate’’ PM2.5 nonattainment area. subpart 1 and/or 4, any area that is decision requires that, in the context of Under section 188 of the CAA, all areas attaining the PM2.5 standard is viewed pending redesignations, subpart 4 designated nonattainment areas under as having satisfied the attainment requirements were due and in effect at subpart 4 would initially be classified planning requirements for these the time the State submitted its by operation of law as ‘‘moderate’’ subparts. For redesignations, EPA has redesignation request, EPA proposes to nonattainment areas, and would remain for many years interpreted attainment- determine that the Parkersburg-Marietta moderate nonattainment areas unless linked requirements as not applicable Area still qualifies for redesignation to and until EPA reclassifies the area as a for areas attaining the standard. In the attainment. As explained below, EPA ‘‘serious’’ nonattainment area. General Preamble, EPA stated that: ‘‘The believes that the redesignation request Accordingly, EPA believes that it is requirements for RFP will not apply in for the Parkersburg-Marietta Area, appropriate to limit the evaluation of evaluating a request for redesignation to though not expressed in terms of the potential impact of subpart 4 attainment since, at a minimum, the air subpart 4 requirements, substantively requirements to those that would be quality data for the area must show that meets the requirements of that subpart applicable to moderate nonattainment the area has already attained. Showing for purposes of redesignating the area to areas. Sections 189(a) and (c) of subpart that the State will make RFP towards attainment. 4 apply to moderate nonattainment attainment will, therefore, have no With respect to evaluating the areas and include the following: (1) An meaning at that point.’’ See General relevant substantive requirements of approved permit program for Preamble for the Interpretation of Title subpart 4 for purposes of redesignating construction of new and modified major I of the Clean Air Act Amendments of the Parkersburg-Marietta Area, EPA stationary sources (section 189(a)(1)(A)); 1990; (57 FR 13498, 13564, April 16, notes that subpart 4 incorporates (2) an attainment demonstration (section 1992). components of subpart 1 of part D, 189(a)(1)(B)); (3) provisions for RACM The General Preamble also explained which contains general air quality (section 189(a)(1)(C)); and (4) that: ‘‘[t]he section 172(c)(9) planning requirements for areas quantitative milestones demonstrating requirements are directed at ensuring designated as nonattainment. See RFP toward attainment by the RFP and attainment by the applicable section 172(c). Subpart 4 itself contains applicable attainment date (section date. These requirements no longer specific planning and scheduling 189(c)). apply when an area has attained the 3 requirements for PM10 nonattainment The permit requirements of subpart 4, standard and is eligible for areas, and under the D.C. Circuit Court’s as contained in section 189(a)(1)(A), redesignation. Furthermore, section January 4, 2013 decision in NRDC v. refer to and apply the subpart 1 permit 175A for maintenance plans . . . EPA, these same statutory requirements provisions requirements of sections 172 provides specific requirements for also apply for PM2.5 nonattainment and 173 to PM10, without adding to contingency measures that effectively areas. EPA has longstanding general them. Consequently, EPA believes that supersede the requirements of section guidance that interprets the 1990 section 189(a)(1)(A) does not itself 172(c)(9) for these areas.’’ Id. EPA amendments to the CAA, making impose for redesignation purposes any similarly stated in its 1992 Calcagni recommendations to states for meeting additional requirements for moderate memorandum that, ‘‘The requirements the statutory requirements for SIPs for areas beyond those contained in subpart for reasonable further progress and other nonattainment areas. See, ‘‘State 1.4 In any event, in the context of measures needed for attainment will not Implementation Plans; General redesignation, EPA has long relied on apply for redesignations because they Preamble for the Implementation of the interpretation that a fully approved only have meaning for areas not Title I of the Clear Air Act Amendments nonattainment new source review attaining the standard.’’ of 1990,’’ (57 FR 13498, April 16, 1992) program is not considered an applicable It is evident that even if we were to (the ‘‘General Preamble’’). In the General requirement for redesignation, provided consider the D.C. Circuit Court’s January Preamble, EPA discussed the 4, 2013 decision in NRDC v. EPA to 4 The potential effect of section 189(e) on section 3 5 PM10 refers to particulates nominally 10 189(a)(1)(A) for purposes of evaluating this I.e., attainment demonstration, RFP, RACM, micrometers in diameter or smaller. redesignation is discussed below. milestone requirements, contingency measures.

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mean that attainment-related 189(c)(1), and contingency requirements nonattainment area governed by subpart requirements specific to subpart 4 under section 172(c)(9) of the CAA are 4, a precursor is presumptively should be imposed retroactively 6 and satisfied for purposes of evaluating the regulated. See 42 U.S.C. § 7513a(e) thus are now past due, those redesignation request. [section 189(e)].’’ Id. at 21, n.7. requirements do not apply to an area For a number of reasons, EPA believes c. Subpart 4 and Control of PM that is attaining the 1997 PM 2.5 that its proposed redesignation of the 2.5 Precursors standard, for the purpose of evaluating Parkersburg-Marietta Area is consistent a pending request to redesignate the The DC Circuit Court in NRDC v. EPA with the DC Circuit Court’s decision on area to attainment. EPA has consistently remanded to EPA the two rules at issue this aspect of subpart 4. First, while the enunciated this interpretation of in the case with instructions to EPA to DC Circuit Court, citing section 189(e), applicable requirements under section re-promulgate them consistent with the stated that ‘‘for a PM10 area governed by 107(d)(3)(E) of the CAA since the requirements of subpart 4. EPA in this subpart 4, a precursor is presumptively General Preamble was published more section addresses the DC Circuit Court’s regulated,’’ the DC Circuit Court than twenty years ago. Courts have opinion with respect to PM2.5 expressly declined to decide the specific recognized the scope of EPA’s authority precursors. While past implementation challenge to EPA’s 1997 PM2.5 to interpret ‘‘applicable requirements’’ of subpart 4 for PM10 has allowed for implementation rule provisions in the redesignation context. See Sierra control of PM10 precursors such as NOX regarding NH3 and VOC as precursors. Club v. EPA, 375 F.3d 537 (7th Cir. from major stationary, mobile, and area The DC Circuit Court had no occasion 2004). sources in order to attain the standard to reach whether and how it was Moreover, even outside the context of as expeditiously as practicable, section substantively necessary to regulate any redesignations, EPA has viewed the 189(e) of the CAA specifically provides specific precursor in a particular PM2.5 obligations to submit attainment-related that control requirements for major nonattainment area, and did not address SIP planning requirements of subpart 4 stationary sources of direct PM10 shall what might be necessary for purposes of as inapplicable for areas that EPA also apply to PM10 precursors from acting upon a redesignation request. determines are attaining the standard. those sources, except where EPA However, even if EPA takes the view EPA’s prior ‘‘Clean Data Policy’’ determines that major stationary sources that the requirements of subpart 4 were rulemakings for the PM10 NAAQS, also of such precursors ‘‘do not contribute deemed applicable at the time the state governed by the requirements of subpart significantly to PM10 levels which submitted the redesignation request, 4, explain EPA’s reasoning. They exceed the standard in the area.’’ and disregards the implementation describe the effects of a determination of EPA’s 1997 PM2.5 Implementation rule’s rebuttable presumptions regarding attainment on the attainment-related SIP Rule, remanded by the DC Circuit Court, NH3 and VOC as PM2.5 precursors, the planning requirements of subpart 4. See contained rebuttable presumptions regulatory consequence would be to ‘‘Determination of Attainment for Coso concerning certain PM2.5 precursors consider the need for regulation of all Junction Nonattainment Area,’’ (75 FR applicable to attainment plans and precursors from any sources in the area 27944, May 19, 2010). See also Coso control measures related to those plans. to demonstrate attainment and to apply Junction proposed PM10 redesignation, Specifically, in 40 CFR 51.1002, EPA the section 189(e) provisions to major (75 FR 36023, 36027, June 24, 2010); provided, among other things, that a stationary sources of precursors. In the Proposed and Final Determinations of state was ‘‘not required to address VOC case of Parkersburg-Marietta Area, EPA Attainment for San Joaquin [and NH3] as . . . PM2.5 attainment plan believes that doing so is consistent with Nonattainment Area (71 FR 40952, precursor[s] and to evaluate sources of proposing redesignation of the Area for 40954–55, July 19, 2006; and 71 FR VOC [and NH3] emissions in the State the 1997 PM2.5 standard. The 63641, 63643–47, October 30, 2006). In for control measures.’’ EPA intended Parkersburg-Marietta Area has attained short, EPA in this context has also long these to be rebuttable presumptions. the standard without any specific concluded that to require states to meet EPA established these presumptions at additional controls of NH3 and VOC superfluous SIP planning requirements the time because of uncertainties emissions from any sources in the area. is not necessary and not required by the regarding the emission inventories for Precursors in subpart 4 are CAA, so long as those areas continue to these pollutants and the effectiveness of specifically regulated under the attain the relevant NAAQS. specific control measures in various provisions of section 189(e), which In its December 11, 2012 NPR for this regions of the country in reducing PM2.5 requires, with important exceptions, action, EPA proposed to determine that concentrations. EPA also left open the control requirements for major 7 the Parkersburg-Marietta Area has possibility for such regulation of NH3 stationary sources of PM10 precursors. attained the 1997 PM2.5 NAAQS and and VOC in specific areas where that Under subpart 1 and EPA’s prior therefore meets the attainment-related was necessary. implementation rule, all major plan requirements of subpart 1. Under The DC Circuit Court in its January 4, stationary sources of PM2.5 precursors its longstanding interpretation, EPA is 2013 decision made reference to both were subject to regulation, with the proposing to determine here that the section 189(e) and 40 CFR 51. 1002, and exception of NH3 and VOC. Thus, we Area also meets the attainment-related stated that, ‘‘In light of our disposition, must address here whether additional plan requirements of subpart 4. we need not address the petitioners’ controls of NH3 and VOC from major Thus, EPA is proposing to conclude challenge to the presumptions in [40 stationary sources are required under that the requirements to submit an CFR 51.1002] that NH3 and VOCs are section 189(e) of subpart 4 in order to attainment demonstration under not PM2.5 precursors, as subpart 4 redesignate the Parkersburg-Marietta 189(a)(1)(B), a RACM determination expressly governs precursor Area for the 1997 annual PM2.5 under sections 172(c)(1) and presumptions.’’ NRDC v. EPA, at 27, 189(a)(1)(c), a RFP demonstration under n.10. 7 Under either subpart 1 or subpart 4, for Elsewhere in the DC Circuit Court’s purposes of demonstrating attainment as 6 As EPA has explained above, we do not believe opinion, however, the Court observed: expeditiously as practicable, a state is required to that the D.C. Circuit Court’s January 4, 2013 ‘‘NH is a precursor to fine particulate evaluate all economically and technologically decision should be interpreted so as to impose these 3 feasible control measures for direct PM emissions requirements on the states retroactively. Sierra Club matter, making it a precursor to both and precursor emissions, and adopt those measures v. Whitman, supra. PM2.5 and PM10. For a PM10 that are deemed reasonably available.

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standard. As explained below, we do West Virginia to address precursors subpart 4 rather than under subpart 1, not believe that any additional controls differently than they have already as interpreted in EPA’s remanded PM2.5 of NH3 and VOC are required in the would result in a substantively different implementation rule, EPA would still context of this redesignation. outcome. conclude that the Area had met all In the General Preamble, EPA Although, as EPA has emphasized, its applicable requirements for purposes of discusses its approach to implementing consideration here of precursor redesignation in accordance with section 189(e). See 57 FR 13538–13542. requirements under subpart 4 is in the section 107(d)(3(E)(ii) and (v) of the With regard to precursor regulation context of a redesignation to attainment, CAA. under section 189(e), the General EPA’s existing interpretation of subpart Preamble explicitly stated that control d. Maintenance Plan and Evaluation of 4 requirements with respect to Precursors of VOCs under other CAA requirements precursors in attainment plans for PM10 may suffice to relieve a state from the contemplates that states may develop With regard to the redesignation of need to adopt precursor controls under attainment plans that regulate only West Virginia, in evaluating the effect of section 189(e). See 57 FR 13542. EPA in those precursors that are necessary for the DC Circuit Court’s remand of EPA’s this supplemental proposal proposes to purposes of attainment in the area in implementation rule, which included determine that the West Virginia SIP has question, i.e., states may determine that presumptions against consideration of met the provisions of section 189(e) only certain precursors need be NH3 and VOC as PM2.5 precursors, EPA with respect to NH3 and VOCs as regulated for attainment and control in this supplemental proposal is also precursors. This proposed supplemental purposes.9 Courts have upheld this considering the impact of the decision determination is based on EPA’s approach to the requirements of subpart on the maintenance plan required under 10 sections 175A and 107(d)(3)(E)(iv) of the findings that (1) the Parkersburg- 4 for PM10. EPA believes that CAA. To begin with, EPA notes that the Marietta Area contains no major application of this approach to PM2.5 stationary sources of NH3, and (2) precursors under subpart 4 is Parkersburg-Marietta Area has attained existing major stationary sources of VOC reasonable. Because the Parkersburg- the 1997 annual PM2.5 standard and that are adequately controlled under other Marietta Area has already attained the the State has shown that attainment of provisions of the CAA regulating the that standard is due to permanent and 1997 annual PM2.5 NAAQS with its 8 ozone NAAQS. In the alternative, EPA current approach to regulation of PM enforceable emission reductions. 2.5 In the December 11, 2012 NPR, EPA proposes to determine that, under the precursors, EPA believes that it is proposed to determine that the State’s express exception provisions of section reasonable to conclude in the context of maintenance plan shows continued 189(e), and in the context of the this redesignation that there is no need maintenance of the standard by tracking redesignation of the Parkersburg- to revisit the attainment control strategy Marietta Area, which is attaining the the levels of the precursors whose with respect to the treatment of control brought about attainment of the 1997 annual PM2.5 standard, at present precursors. Even if the DC Circuit VOC and NH3 precursors from major 1997 annual PM2.5 standard in the Court’s decision is construed to impose Parkersburg-Marietta Area. EPA stationary sources do not contribute an obligation, in evaluating this significantly to levels exceeding the therefore, believes that the only redesignation request, to consider additional consideration related to the 1997 annual PM2.5 standard in the additional precursors under subpart 4, it Parkersburg-Marietta Area. See 57 FR maintenance plan requirements that would not affect EPA’s approval here of results from the DC Circuit Court’s 13539–42. West Virginia’s request for redesignation EPA notes that its 1997 PM January 4, 2013 decision, is that of 2.5 of the Parkersburg-Marietta Area. In the implementation rule provisions in 40 assessing the potential role of NH3 and context of a redesignation, the Area has CFR 51.1002 were not directed at VOCs in demonstrating continued shown that it has attained the standard. evaluation of PM2.5 precursors in the maintenance in this Area. As explained context of redesignation, but at SIP Moreover, the State has shown and EPA below, based upon documentation plans and control measures required to has proposed to determine that provided by the State and supporting bring a nonattainment area into attainment in this Area is due to information, EPA believes that the permanent and enforceable emissions attainment of the 1997 PM2.5 NAAQS. maintenance plan for the Parkersburg- By contrast, redesignation to attainment reductions on all precursors necessary Marietta Area need not include any to provide for continued attainment. It primarily requires the area to have additional emission reductions of NH3 already attained due to permanent and follows logically that no further control or VOCs in order to provide for enforceable emission reductions, and to of additional precursors is necessary. continued maintenance of the standard. demonstrate that controls in place can Accordingly, EPA does not view the First, as noted above in EPA’s continue to maintain the standard. January 4, 2013 decision of the DC discussion of section 189(e), VOC Thus, even if EPA regards the DC Circuit Court as precluding emission levels in this Area have Circuit Court’s January 4, 2013 decision redesignation of the Parkersburg- historically been well-controlled under as calling for ‘‘presumptive regulation’’ Marietta Area to attainment for the 1997 SIP requirements related to ozone and PM2.5 NAAQS at this time. of NH3 and VOC for PM2.5 under the other pollutants. Second, total NH3 attainment planning provisions of In summary, even if West Virginia emissions throughout the Parkersburg- subpart 4, those provisions in and of were required to address precursors for Marietta Area are very low, estimated to themselves do not require additional the Parkersburg-Marietta Area under be less than 2,000 tons per year. See controls of these precursors for an area Table 2 below. This amount of NH3 that already qualifies for redesignation. 9 See, e.g., ‘‘Approval and Promulgation of emissions appears especially small in Implementation Plans for California—San Joaquin comparison to the total amounts of SO2, Nor does EPA believe that requiring Valley PM10 Nonattainment Area; Serious Area Plan for Nonattainment of the 24-Hour and Annual PM10 NOX, and even direct PM2.5 emissions 8 The Parkersburg-Marietta Area has reduced VOC Standards,’’ 69 FR 30006 (May 26, 2004) (approving from sources in the Area. Third, as emissions through the implementation of various a PM10 attainment plan that impose controls on described below, available information control programs including VOC Reasonably direct PM10 and NOX emissions and did not impose shows that no precursor, including NH3 Available Control Technology regulations controls on SO2, VOC, or NH3 emissions). (45CSR21) and various onroad and nonroad motor 10 See, e.g., Assoc. of Irritated Residents v. EPA and VOCs, is expected to increase over vehicle control programs. et al., 423 F.3d 989 (9th Cir. 2005). the maintenance period so as to

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interfere with or undermine the State’s by 130 tpy between 2007 and 2020. See strategy that the State has already maintenance demonstration. Table 2 below. Given that the elected to pursue. Even if NH3 and VOC West Virginia’s maintenance plan Parkersburg-Marietta Area is already emissions were to increase shows that emissions of direct PM2.5, attaining the 1997 annual PM2.5 NAAQS unexpectedly between 2015 and 2022, SO2, and NOX are projected to decrease even with the current level of emissions the overall emissions reductions by 130 tons per year (tpy), 111,095 tpy, from sources in the Area, the downward projected in direct PM2.5, SO2, and NOX and 22,456 tpy, respectively, over the trend of emissions inventories would be would be sufficient to offset any maintenance period. See Table 1 below. consistent with continued attainment. increases. For these reasons, EPA In addition, emissions inventories used Indeed, projected emissions reductions believes that local emissions of all of the in the regulatory impact analysis (RIA) for the precursors that the State is potential PM2.5 precursors will not for the 2012 PM2.5 NAAQS show that addressing for purposes of the 1997 increase to the extent that they will VOC emissions are projected to decrease annual PM2.5 NAAQS indicate that the cause monitored PM2.5 levels to violate by 2,424 tpy between 2007 and 2020. Area should continue to attain the the 1997 PM2.5 standard during the NH3 emissions are projected to increase NAAQS following the precursor control maintenance period.

TABLE 1—COMPARISON OF 2008, 2015, 2022 SO2, NOX, AND DIRECT PM2.5 EMISSION TOTALS IN TONS PER YEAR (TPY) FOR THE PARKERSBURG-MARIETTA NONATTAINMENT AREA

SO2 NOX PM2.5

2008 ...... 159,535 35,412 3,686 2015 ...... 77,294 18,509 3,648 2022 ...... 48,439 12,985 3,557 Decrease from 2008 to 2022 ...... 111,095 22,426 130

TABLE 2—COMPARISON OF 2007 AND 2020 VOC AND AMMONIA EMISSION TOTALS BY SOURCE SECTOR (TPY) FOR THE PARKERSBURG-MARIETTA NONATTAINMENT AREA 11

VOC NH3 Net change Net change Sector 2007 2020 2007–2020 2007 2020 2007–2020

Point ...... 1,526 1,529 3 601 759 158 Area ...... 2,180 2,157 ¥23 774 793 19 Nonroad ...... 1,452 763 ¥689 2 2 0 On-road ...... 2,471 755 ¥1,716 89 42 ¥47 Fires ...... 257 257 0 18 18 0

Total ...... 7,885 5,461 ¥2,424 1,484 1,614 130

this Area will also continue to decrease PM2.5 NAAQS, the associated In addition, available air quality in 2020. maintenance plan, and the modeling analyses show continued Thus, EPA believes that there is insignificance determination for onroad ample justification to conclude that the maintenance of the standard during the motor vehicle contribution of PM2.5, Parkersburg-Marietta Area should be maintenance period. The current air NOX and SO2. EPA is seeking comment redesignated, even taking into only on the issues raised in its quality design value for the Area is 12.3 consideration the emissions of other supplemental proposal, and is not micrograms per cubic meter (mg/m3) precursors potentially relevant to PM2.5. reopening comment on other issues (based on 2009–2011 air quality data), After consideration of the D.C. Circuit addressed in its prior proposal. which is well below the 1997 annual Court’s January 4, 2013 decision, and for 3 PM2.5 NAAQS of 15 mg/m . Moreover, the reasons set forth in this IV. Statutory and Executive Order the modeling analysis conducted for the supplemental notice, EPA continues to Reviews RIA for the 2012 PM2.5 indicates that the propose approval of West Virginia’s Under the CAA, the Administrator is design value for this Area is expected to maintenance plan and it’s request to required to approve a SIP submission continue to decline through 2020. In the redesignate the Parkersburg-Marietta that complies with the provisions of the RIA analysis, the 2020 modeled design Area to attainment for the 1997 annual CAA and applicable Federal regulations. value for the Parkersburg- Marietta Area PM2.5 standard. 42 U.S.C. 7410(k); 40 CFR 52.02(a). is 9.2 mg/m3. Given that precursor Thus, in reviewing SIP submissions, emissions are projected to decrease III. Proposed Action EPA’s role is to approve state choices, through 2020, it is reasonable to After fully considering the D.C. provided that they meet the criteria of conclude that monitored PM2.5 levels in Circuit Court’s decisions in EME Homer the CAA. Accordingly, this action City on EPA’s CSAPR rule and NRDC v. merely proposes to approve state law as 11 These emissions estimates were taken from the EPA on EPA’s 1997 PM2.5 meeting Federal requirements and does emissions inventories developed for the RIA for the Implementation rule, EPA in this not impose additional requirements 2012 PM2.5 NAAQS. NH3 increases are due to some supplemental notice is proposing to beyond those imposed by state law. For (5%) increase in fertilizer application, but mostly proceed with approval of the request to that reason, this proposed action: from electric generating unit (EGU), and with huge • SO2 (point) reductions (213,738 in 2007 and 16,881 redesignate the Parkesburg-Marietta Is not a ‘‘significant regulatory in 2020) would offset any increases. Area to attainment for the 1997 annual action’’ subject to review by the Office

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of Management and Budget under Dated: June 13, 2013. Please see the direct final rule which Executive Order 12866 (58 FR 51735, W.C. Early, is located in the Rules Section of this October 4, 1993); Acting Regional Administrator, Region III. Federal Register for detailed instruction • Does not impose an information [FR Doc. 2013–16060 Filed 7–5–13; 8:45 am] on how to submit comments. collection burden under the provisions BILLING CODE P FOR FURTHER INFORMATION CONTACT: of the Paperwork Reduction Act (44 Kyle U.S.C. 3501 et seq.); Olson, Air Program, Mailcode 8P–AR, U.S. Environmental Protection Agency, • Is certified as not having a ENVIRONMENTAL PROTECTION significant economic impact on a AGENCY Region 8, 1595 Wynkoop Street, Denver, substantial number of small entities Colorado 80202–1129, (303) 312–6002 under the Regulatory Flexibility Act (5 40 CFR Part 60, 61, and 63 or [email protected]. U.S.C. 601 et seq.); [EPA–R08–OAR–2012–0764; FRL–9828–5] SUPPLEMENTARY INFORMATION: EPA is • Does not contain any unfunded taking final action approving Southern mandate or significantly or uniquely Delegation of Authority to the Ute Indian Tribe’s (SUIT) July 3, 2012 affect small governments, as described Southern Ute Indian Tribe To request for delegation of authority to in the Unfunded Mandates Reform Act Implement and Enforce National implement and enforce National of 1995 (Pub. L. 104–4); Emissions Standards for Hazardous Emissions Standards for Hazardous Air • Does not have Federalism Air Pollutants and New Source Pollutants (NESHAP) and New Source implications as specified in Executive Performance Standards Performance Standards (NSPS). This Order 13132 (64 FR 43255, August 10, AGENCY: Environmental Protection request establishes and requires SUIT to 1999); Agency (EPA). administer a NSPS and NESHAPs • Is not an economically significant ACTION: Proposed rule. program per EPA regulations. SUIT met regulatory action based on health or the requirements of Clean Air Act (CAA) safety risks subject to Executive Order SUMMARY: EPA is taking final action to sections 111(c) and 112(l) and 40 CFR 13045 (62 FR 19885, April 23, 1997); approve the Southern Ute Indian Tribe’s Subpart E for full approval to administer • Is not a significant regulatory action (SUIT) July 3, 2012 request for CAA 111 and CAA 112 programs subject to Executive Order 13211 (66 FR delegation of authority to implement entirely due to its prior approval of its 28355, May 22, 2001); and enforce National Emissions • CAA Title V Part 70 Permitting Program. Is not subject to requirements of Standards for Hazardous Air Pollutants The delegation is facilitated by SUIT’s Section 12(d) of the National (NESHAP) and New Source treatment ‘‘in the same manner as a Technology Transfer and Advancement Performance Standards (NSPS). This state’’ (TAS) document, per CAA section Act of 1995 (15 U.S.C. 272 note) because request establishes and requires SUIT to 301(d)(2). This action is being taken application of those requirements would administer a NSPS and NESHAPs under section 111 and 112 of the CAA. be inconsistent with the CAA; and program per EPA regulations. The In the ‘‘Rules and Regulations’’ • Does not provide EPA with the delegation is facilitated by SUIT’s section of this Federal Register, EPA is discretionary authority to address, as treatment ‘‘in the same manner as a appropriate, disproportionate human state’’ (TAS) document, per CAA approving the delegation as a direct health or environmental effects, using requirements. final rule without prior proposal practicable and legally permissible because the Agency views this as a methods, under Executive Order 12898 DATES: Written comments must be noncontroversial delegation and (59 FR 7629, February 16, 1994). received on or before August 7, 2013. anticipates no adverse comments. A In addition, this proposed rule ADDRESSES: Submit your comments, detailed rationale for the approval is set pertaining to the redesignation of the identified by Docket ID No. EPA–R08– forth in the preamble to the direct final West Virginia portion of the OAR–2012–0764, by one of the rule. If EPA receives no adverse Parkersburg-Marietta WV–OH 1997 following methods: comments, EPA will not take further • annual PM2.5 nonattainment area, does http://www.regulations.gov. Follow action on this proposed rule. If EPA not have tribal implications as specified the on-line instructions for submitting receives adverse comments, EPA will by Executive Order 13175 (65 FR 67249, comments. withdraw the direct final rule and it will • November 9, 2000), because the SIP is Email: [email protected]. not take effect. EPA will address all • not approved to apply in Indian country Fax: (303) 312–6064 (please alert public comments in a subsequent final located in the state, and EPA notes that the individual listed in the FOR FURTHER rule based on this proposed rule. EPA it will not impose substantial direct INFORMATION CONTACT if you are faxing will not institute a second comment costs on tribal governments or preempt comments). • period on this action. Any parties tribal law. Mail: Carl Daly, Director, Air interested in commenting must do so at Program, Environmental Protection List of Subjects this time. Please note that if EPA Agency (EPA), Region 8, Mailcode 8P– receives adverse comment on an 40 CFR Part 52 AR, 1595 Wynkoop Street, Denver, amendment, paragraph, or section of Colorado 80202–1129. this rule and if that provision may be Environmental protection, Air • Hand Delivery: Carl Daly, Director, severed from the remainder of the rule, pollution control, Nitrogen dioxide, Air Program, Environmental Protection EPA may adopt as final those provisions Ozone, Particulate matter, Reporting Agency (EPA), Region 8, Mailcode 8P– of the rule that are not the subject of an and recordkeeping requirements, Sulfur AR, 1595 Wynkoop Street, Denver, adverse comment. See the information oxides, Volatile organic compounds. Colorado 80202–1129. Such deliveries provided in the direct final action of the 40 CFR Part 81 are only accepted Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding same title which is located in the Rules Air pollution control, National parks, Federal holidays. Special arrangements and Regulations Section of this Federal Wilderness Areas. should be made for deliveries of boxed Register. Authority: 42 U.S.C. 7401 et seq. information. Authority: 42 U.S.C. 7401 et seq.

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Dated: May 30, 2013. FOR FURTHER INFORMATION CONTACT: Gina amended. This rule will not result in an Shaun L. McGrath, Raimond, Attorney Advisor, Office of annual effect on the economy of $100 Regional Administrator, Region 8. the General Counsel, National million or more; a major increase in [FR Doc. 2013–16328 Filed 7–5–13; 8:45 am] Endowment for the Humanities, 202– costs or prices; or significant adverse BILLING CODE 6560–50–P 606–8322. effects on competition, employment, SUPPLEMENTARY INFORMATION: The NEA, investment, productivity, innovation, or the NEH, the IMLS, and the FCAH make the ability of United States-based up the National Foundation on the Arts companies to compete with foreign- NATIONAL FOUNDATION ON THE and Humanities (Foundation). The based companies in domestic and ARTS AND THE HUMANITIES Foundation was established by the export markets. National Foundation on the Arts and National Endowment for the Arts Paperwork Reduction Act Humanities Act of 1965, 20 U.S.C. 951 et seq. The NEA, the NEH (for itself and NEA, NEH, and IMLS have National Endowment for the on behalf of the FCAH), and the former determined that the Paperwork Humanities Institute of Museum Services (now, the Reduction Act, 44 U.S.C. 3501 et seq., IMLS) last revised the joint regulations does not apply to the proposed rule Institute of Museum and Library on December 21, 1987. Each of these because the rule does not contain Services agencies has now decided to issue information collection requirements that separate FOIA regulations; therefore, require OMB approval. 45 CFR Part 1100 they are proposing to amend 45 CFR List of Subjects in 45 CFR Part 1100 part 1100. At this time, NEH has RIN 3135–AA26; 3136–AA31; 3137–AA23 proposed new FOIA regulations for Administrative practice and procedure, Freedom of Information. Statement for the Guidance of the itself and the FCAH in 45 CFR part For the reasons stated in the Public—Organization, Procedure and 1171, and IMLS has proposed new FOIA preamble, the NEA, the NEH (for itself Availability of Information regulations for itself in 45 CFR part 1184. NEA intends to propose new and on behalf of the FCAH), and the AGENCY: National Endowment for the FOIA regulations for itself in 45 CFR IMLS propose to amend 45 CFR part Arts, National Endowment for the part 1160. 1100 as follows: Humanities, and Institute of Museum and Library Services. E.O. 12866, Regulatory Review PART 1100—STATEMENT FOR THE GUIDANCE OF THE PUBLIC— ACTION: Proposed rule. NEA, NEH, and IMLS have determined that the proposed rule is not ORGANIZATION, PROCEDURE AND SUMMARY: The National Endowment for a ‘‘significant regulatory action’’ under AVAILABILITY OF INFORMATION the Arts (NEA), the National Executive Order 12866 and therefore is ■ 1. 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Endowment for the Arts. amending these joint regulations Under the FOIA, agencies may recover * * * * * because each agency has proposed or only the direct costs of searching for, ■ 3. Revise § 1100.2 to read as follows: reviewing, and duplicating the records plans to propose its own separate FOIA § 1100.2 Organization. that agencies process for requesters. regulations. The National Foundation on the Arts DATES: Written comments must be Thus, fees assessed for processing FOIA requests are nominal. and the Humanities was established by postmarked and electronic comments the National Foundation on the Arts and must be submitted on or before Unfunded Mandates Reform Act of the Humanities Act of 1965, 20 U.S.C. September 6, 2013. 1995 951 et seq. The Foundation is composed ADDRESSES: You may submit comments For purposes of the Unfunded of the National Endowment for the Arts, by any of the following methods: Mandates Reform Act of 1995, Public the National Endowment for the • Email: [email protected]. Please Law 104–4, the proposed rule will not Humanities, the Institute of Museum include ‘‘NFAH FOIA Regulations’’ in result in the expenditure by State, local, and Library Services, and the Federal the subject line of the message. and Tribal governments, in the Council on the Arts and the Humanities. • FAX: (202) 606–8600. Please send aggregate, or by the private sector, of The Institute of Museum and Library your comments to the attention of Gina $100 million or more in any one year, Services became a part of the National Raimond. and it will not significantly or uniquely Foundation on the Arts and the • Mail: Gina Raimond, Attorney affect small governments. Humanities pursuant to the Museum Advisor, Office of the General Counsel, and Library Services Act, as amended National Endowment for the Small Business Regulatory Enforcement (20 U.S.C. 9102). Each Endowment is Humanities, 1100 Pennsylvania Ave. Fairness Act of 1996 headed by a Chairman and has an NW., Room 529, Washington, DC 20506. This proposed rule is not a major rule advisory national council composed of To ensure proper handling, please as defined by section 251 of the Small 26 presidential appointees. The Institute reference ‘‘NFAH FOIA Regulations’’ on Business Regulatory Enforcement of Museum and Library Services is your correspondence. Fairness Act of 1996, 5 U.S.C. 804, as headed by a Director and has a National

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Museum and Library Services Board index providing identifying information provisions of this part and the reasons composed of 20 presidential appointees, for the public as to any matter which is for each such determination; the Director, and IMLS’s Deputy issued, adopted, or promulgated and * * * * * Directors for the Offices of Library which is required to be made available Services, and Museum Services. The pursuant to 5 U.S.C. 552(a)(1) and (2). India Pinkney, Federal Council on the Arts and the Publication and distribution of such General Counsel, National Endowment for the Arts. Humanities, comprised of Executive indices has been determined by the branch officials and appointees of the Foundation to be unnecessary and Michael P. McDonald, legislative branch, is authorized to make impracticable. The indices will be General Counsel, National Endowment for the agreements to indemnify against loss or provided upon request at a cost not to Humanities. damage for certain exhibitions and exceed the direct cost of the Andrew Christopher, advise on arts and humanities matters. duplication. Assistant General Counsel, Institute of The National Endowment for the Museum and Library Services. ■ Humanities, the Federal Council on the 6. In § 1100.5 revise paragraphs (a), [FR Doc. 2013–15620 Filed 7–5–13; 8:45 am] (b)(1), and the first sentence of Arts and Humanities, and the Institute BILLING CODE 7537–01–P; 7536–01–P; 7036–01–P of Museum and Library Services no paragraph (c) to read as follows: longer follow the regulations under this § 1100.5 Agency procedures for handling part. The procedures for disclosing requests for documents. records of the National Endowment for OFFICE OF MANAGEMENT AND the Humanities and the Federal Council (a) Upon receiving a request for BUDGET on the Arts and the Humanities are documents in accordance with the rules Office of Federal Procurement Policy available at 45 CFR part 1171. The of this part, the General Counsel or procedures for disclosing records of the respective Assistant General Counsel 48 CFR Part 9904 Institute of Museum and Library serving as the Freedom of Information Services are available at 45 CFR part Act Officer of the National Endowment Cost Accounting Standards: CAS 413 1184. for the Arts shall determine whether or Pension Adjustments for Extraordinary ■ 4. In § 1100.3 revise paragraphs (a), not the request shall be granted in Events (b), and (c) to read as follows: whole or in part. * * * * * AGENCY: Cost Accounting Standards § 1100.3 Availability of information to the Board, Office of Federal Procurement public. (b)(1) Any party whose request for Policy, Office of Management and (a) Descriptive brochures of the documents has been denied in whole or Budget. organization, programs, and function of in part may file an appeal no later than ACTION: Notice. the National Endowment for the Arts are ten (10) working days following receipt available upon request. Inquiries of the notification of denial. Appeals SUMMARY: The Office of Federal involving work of the National must be addressed to the Chairman, Procurement Policy (OFPP), Cost Endowment for the Arts should be National Endowment for the Arts, Accounting Standards (CAS) Board, is addressed to the National Endowment Washington, DC 20506. conducting fact-finding for the for the Arts, 1100 Pennsylvania Avenue * * * * * development of a Staff Discussion Paper NW., Washington, DC 20506. The (SDP) on CAS 413 Pension Adjustments telephone number of the National (c) In unusual circumstances, the time for Extraordinary Events. This is the Endowment for the Arts is (202) 682– limits prescribed to determine a request first step in a four-step process that may 5400. for documents with respect to initial result in a final rule. As part of these (b) The head of the National actions or actions on appeal may be efforts, the public is invited to attend Endowment for the Arts is responsible extended by written notice from the two public meetings that are scheduled for the effective administration of the General Counsel or respective Assistant for July 31, 2013 and August 14, 2013. Freedom of Information Act. The head General Counsel serving as the Freedom To facilitate fact-finding, the CAS Board of the National Endowment for the Arts of Information Act Officer of the encourages the submission of written pursuant to this responsibility hereby National Endowment for the Arts. * * * comments for consideration in the directs that every effort be expended to * * * * * drafting of the SDP. facilitate service to the public with DATES: respect to the obtaining of information ■ 7. In § 1100.7 revise the introductory and records. text and paragraph (a) to read as follows: Registration date for public meetings: (c) Requests for access to records of Advance registration for the public § 1100.7 Foundation report of actions. the National Endowment for the Arts meetings via email must be submitted by 5:00 p.m. (Eastern Standard Time), may be filed by mail with the General On or before March 1 of each calendar July 29 (for the July 31, 2013 meeting) Counsel of the National Endowment for year, the National Endowment for the and August 12 (for the August 14, 2013 the Arts or by email at [email protected]. Arts shall submit a report of its meeting). Please follow the procedures All requests should reasonably describe activities with regard to public the record or records sought. Requests at ‘‘Advance Registration for the Public information requests during the Meetings.’’ submitted should be clearly identified preceding calendar year to the Speaker as being made pursuant to the Freedom Comment date: Comments must be in of the House of Representatives and to writing and must be submitted by of Information Act. the President of the Senate. The report ■ September 6, 2013. 5. Revise § 1100.4 to read as follows: shall include: Public Meetings for Fact-Finding § 1100.4 Current Index. (a) The number of determinations The National Endowment for the Arts made by National Endowment for the Dates of public meetings: shall maintain and make available for Arts not to comply with requests for —Wednesday, July 31, 2013, 8:30 a.m.– public inspection and copying a current records made to the agency under the 12:30 p.m.

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—Wednesday, August 14, 2013, 8:30 follow the instructions for submitting in a final rule generally consists of the a.m.–12:30 p.m. comments; following four steps: ADDRESSES: 2. Email: Comments may be included 1. Prior to the adoption of a proposed Site of public meetings: The Offices of in an email address sent to Standard, consult with interested the Professional Services Council, 4401 [email protected]. The comments persons in fact-finding concerning the Wilson Blvd., Suite 1110, Arlington, VA may be submitted in the text of the following: the probable costs of 22203. email message or as an attachment. implementation compared to the probable benefits; advantages, For directions, see: http:// Type ‘‘Fact-finding—CAS adjustment _ _ for extraordinary events’’ in the subject disadvantages and improvements www.pscouncil.org/i/a/Directions to anticipated in the pricing and PSC/c/a/Directions_to_PSC. line. 3. Facsimile: Comments may also be administration of, and settlement of aspx?hkey=631433d0-29e9-4cc5-b438- disputes concerning, Government 419a7891e6bd. submitted by facsimile to (202) 395– 5105. Type ‘‘Fact-finding—CAS contracts; and the scope of, and Advance Registration for Public adjustment for extraordinary events’’ on alternatives available to, the action Meetings the coversheet; or proposed to be taken; 2. Prepare and publish a SDP based To advance register for the public 4. Mail: If you choose to submit your on the results of the fact-finding for meeting, submit your name, title, responses via regular mail, please comments; organization, postal address, telephone address them to: Office of Federal 3. Promulgate an Advance Notice of number, and email address in an email Procurement Policy, 725 17th Street Proposed Rulemaking for comments; to [email protected] with NW., Room 9013, Washington, DC and ‘‘Registration—CAS 413 adjustments for 20503, ATTN: Raymond J.M. Wong. Due 4. Promulgate a Notice of Proposed extraordinary events’’ in the subject to delays caused by the screening and Rulemaking for comments. line. To ensure seating due to space processing of mail, respondents are Fact-finding for the development of constraints, potential attendees of the strongly encouraged to submit responses the SDP, the subject of this notice of public meetings are strongly encouraged electronically. public meetings, is the first step in a to register in advance for the public Be sure to include your name, title, four-step statutory rulemaking process meetings. Please register by no later organization, postal address, telephone that may ultimately culminate in a final than 5:00 p.m. on either July 29 for the number, and email address in the text rule with respect to a Standard. July 31, 2013 meeting, or August 12 for of your comments and reference ‘‘Fact- B. Background and Summary the August 14, 2013 meeting. Attendees finding—CAS adjustment for will be sent email confirmation of their extraordinary events’’ in the subject line In response to the Notice of Proposed attendance for seating purposes by the irrespective of how you submit your Rulemaking (NPRM) on pension day prior to the meeting. If the number comments. Comments received by the harmonization (the CAS Pension of registrants exceeds the seating date specified in this notice will be Harmonizatoin Rule, 75 FR 25982, May capacity, priority will be given to the included as part of the official record. 10, 2010), the CAS Board received registrants on the basis of the date of Comments delayed due to use of regular public comments expressing concerns registration while considering the need mail may not be considered. that 48 CFR 9904.413–50(c)(12) for broad industry representation at the Please note that all public comments (otherwise known as CAS 413– meeting. Participants who attend the received will be available in their 50(c)(12)) on segment closings was not meetings without an advance entirely at http://www.whitehouse.gov/ being revised to harmonize with the registration will not be assured of omb/casb_index_public_comments/ and Pension Protection Act of 2006 (PPA) seating, or attendance if the maximum http://www.regulations.gov after the (Pub. L. 109–280, 120 Stat. 780). When room capacity is reached. close of the comment period. the CAS Pension Harmonization Rule was published as a Final Rule (76 FR Addresses for Submission of Comments Accordingly, you should not include any information that you would object 81296, December 27, 2011), the CAS All comments to this notice must be to being disclosed. Board summarized and responded to in writing. In lieu of, or in addition to, these comments under Topic 10, FOR FURTHER INFORMATION CONTACT: participating in the public meeting, ‘‘Segment Closings and Benefit Raymond J.M. Wong, Director, Cost interested parties may submit written Curtailments.’’ The CAS Board stated Accounting Standards Board (telephone: comments. Attendees to the public that it limited the amendment of 202–395–6805; email: meetings are encouraged to submit 9904.413–50(c)(12) provisions in the [email protected]). written comments in writing so that CAS Pension Harmonization Rule to the their comments can be given due SUPPLEMENTARY INFORMATION exemption of benefit curtailments consideration. Electronic comments mandated by the Employee Retirement A. Regulatory Process—Changes to 48 may be submitted in any one of three Income Security Act of 1974 (ERISA) by CFR Part 9904 ways: 26 U.S.C. 436. The CAS Board 1. Federal eRulemaking Portal: Rules, regulations, and standards explained that other issues and Comments may be submitted via issued by the CAS Board are codified at problems with the current CAS segment http://www.regulations.gov—a Federal 48 CFR Chapter 99. This notice closing and benefit curtailment E-Government Web site that allows the addresses fact-finding for the provisions were beyond the scope of public to find, review, and submit development of a Staff Discussion Paper pension harmonization required by comments on issues that agencies have (SDP) on CAS 413 Pension Adjustments paragraph (d) of section 106 of the PPA, published in the Federal Register, and for Extraordinary Events. CAS 413 is a and should be addressed in a separate that are open for comment. Simply type Standard, and as such is subject to the case. The CAS Board established a ‘‘Fact-finding—CAS 413 adjustments for statutorily prescribed rulemaking Working Group (WG) on pension extraordinary events’’ (without process for the promulgation of a adjustments for extraordinary events to quotation marks) in the Comment or Standard at 41 U.S.C. 1502(c). The support its consideration of revisions to Submission search box, click Go, and process that may ultimately culminate CAS 413. The WG, comprised of the

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staff and subject matter experts from the • 413–50(c)(5) Initial Allocation of (d) Assets and liabilities were Departments of Defense (DOD), Energy Plan Assets, accumulated across many years and (DOE), Health and Human Services • 413–50(c)(8) Participant Transfers market environments and cycles—Is a (HHS), the National Aeronautical Space Between Segments, and ‘‘mark-to-market’’ true-up still Administration (NASA), and the • 413–50(c)(9) Inactive Segments. appropriate? • Pension Benefit Guaranty Corporation Definitions of Segment Closing and 2. Issues related to CAS 413– Benefit Curtailment 50(c)(12)(i): The determination of the (PBGC), has been tasked by the CAS • Board to frame and evaluate issues, and CAS 412–50(b)(7) Minimum actuarial accrued liability shall be made develop options to address them. The Actuarial Liability using the accrued benefit cost method. CAS Board has directed the staff, C. Issues To Consider Relative to CAS The actuarial assumptions employed supported by the WG, to conduct fact- 413 Pension Adjustments for shall be consistent with the current and finding in order to develop a Staff Extraordinary Events prior long term assumptions used in the Discussion Paper for the CAS Board’s measurement of pension costs. If there To focus the fact-finding to address consideration. is a pension plan termination, the CAS 413 pension adjustments for Subsequently, the General actuarial accrued liability shall be extraordinary events with any revisions Accountability Office (GAO) observed measured as the amount paid to to CAS 413–50(c)(12) and associated that the CAS Board did not harmonize irrevocably settle all benefit obligations provisions, the WG has prepared a the discount rates used for settling up if or paid to the Pension Benefit Guarantee series of topical questions for the a contractor curtails a pension plan. Corporation (PBGC). How should the consideration of interested parties in the This means that liabilities could be actuarial accrued liability be measured development of their comments on the calculated differently under ERISA and for the following conditions: subject matter. The WG will consider all CAS rules if a contractor terminates a (a) If the Minimum Actuarial Liability comments germane to its tasking from plan or freezes new benefit accruals for is greater than accrued benefit cost the CAS Board, i.e., CAS 413 pension all participants. GAO recommended that method liability in the period the adjustments for extraordinary events, the CAS Board set a schedule for segment closing occurs? and not just the comments responding revising the part of CAS 413 dealing (b) If benefit obligation is settled by to the list of scenarios and questions, in with the settlement of pension plan payment of lump sums and/or annuity? drafting the SDP. Comments that are curtailments (in GAO–13–158, (c) If there are ‘‘changed conditions’’ deemed by the WG to be outside the ‘‘PENSION COSTS ON DOD due to segment closing, i.e., is the scope of the CAS Board’s tasking to the CONTRACTS—Additional Guidance retirement assumption still valid? WG will not be considered in (d) If there have been prior mergers, Needed to Ensure Costs are Consistent developing the SDP. The format of this spin-offs or other reorganizations? and Reasonable,’’ dated January 2013). list of questions presents a scenario (e) If liabilities were accumulated The CAS Board reviewed the report, and based on a CAS subsection, paragraph across many years and market advised GAO that its tasking to the WG or subparagraph followed by a series of environments/cycles—Is a ‘‘mark-to- generally addresses the GAO questions on the scenario. The order of market’’ true-up still appropriate? recommendation. In addition, the CAS the scenarios and questions does not 3. Issues related to CAS 413– Board Chair advised Congress that while imply any assessment of their relative 50(c)(12)(ii): In computing the market the CAS Board has begun the fact- importance by the CAS Board or WG. value of assets for the segment, if the finding step of the four-step CAS 1. Issues related to CAS 413–50(c)(12): contractor has not already allocated rulemaking process, it has not yet set a If a segment is closed, if there is a assets to the segment, such an allocation schedule as there are a number of pension plan termination, or if there is shall be made in accordance with the factors that may affect timing, such as a curtailment of benefits, the contractor requirements of paragraphs (c)(5)(i) and the extent and complexity of comments shall determine the difference between (ii) of this subsection [i.e., CAS 413–50]. received in response to the SDP, that the actuarial accrued liability for the The market value of the assets shall be make a set schedule too speculative at segment and the market value of the reduced by the accumulated value of this time. assets allocated to the segment, prepayment credits, if any. Conversely, The staff, supported by the WG, has irrespective of whether or not the the market value of the assets shall be begun research on the subject matter. pension plan is terminated. The increased by the current value of any The CAS Board has authorized the WG difference between the market value of unfunded actuarial liability separately to consult with interested persons the assets and the actuarial accrued identified and maintained in accordance concerning the advantages, liability for the segment represents an with CAS 412–50(a)(2). disadvantages and improvements adjustment of previously-determined (a) How should CAS 413–50(c)(5) anticipated in the pricing and pension costs. handle the lack of historical records on administration of Government contracts (a) Should all benefit curtailments be plan contributions, benefits and as a result of a possible amendment to excluded? earnings (see Teledyne, Inc. v. U.S., 50 the Standards, specifically CAS 412 and (b) The original promulgation of CAS Fed. Cl. 155 (2001), aff’d sub nom, 316 413. 413 implemented adjustments for large F.3d 1366 (Fed. Cir. 2003))? In other In additional to potential revisions to actuarial gains from ‘‘abnormal words, what if there are incomplete, 9904.413–50(c)(12), the WG has forfeiture.’’ The 1995 amendments inadequate, or lost historical records identified other CAS 412 and 413 introduced the concept of a true-up of because adequate detailed records were provisions that are potentially directly assets and liabilities. What should be NOT kept for some period of time impacted by revisions to CAS 413– the purpose of this provision in the during the life of the segment? 50(c)(12). future? (b) What if there have been prior These provisions include: (c) There are few plans with benefit mergers, spin-offs or other • 412–50(c)(2)(ii) Assignable Cost formulas based on final pay. Qualified reorganizations that cause tracing the Credits, plans can no longer have significant segment’s legacy difficult? • 413–50(c)(3) Pension Plan Merger delays for vesting. Is the concept of an (c) Assets were accumulated across or Spin-Off, ‘‘abnormal forfeiture’’ still valid? many years and market environments

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and cycles—Is a ‘‘mark-to-market’’ true- under CAS 412 and 413, i.e., assets (a) If the contractor has other cost- up still appropriate? transfers based on IRC 414(l) (Merger based contracts how is the adjustment 4. Issues related to CAS 413– and consolidation of plans or transfers credit recognized in future cost 50(c)(12)(iii): The calculation of the of plan assets) or the negotiated sales accounting periods? Should the difference between the market value of agreement? contractor create prepayment credit the assets and the actuarial accrued (b) How should you handle the equal to the gross adjustment credit liability shall be made as of the date of difference between the transferred assets amount? the event (e.g., contract termination, and the assets allocated to the segment (b) If the contractor has other cost- plan amendment, plant closure) that under CAS 413? based contracts how is the adjustment caused the closing of the segment, (c) If the segment is partially sold and debit recognized in future cost pension plan termination, or partially retained, how are the plan accounting periods? Should the curtailment of benefits. If such a date is assets and liabilities accounted for? contractor create an unfunded accrual not readily determinable, or if its use Does the CAS Board need to address equal to the gross adjustment charge can result in an inequitable calculation, how plan assets and liabilities are amount? the contracting parties shall agree on an divided and transferred? (c) What if adjustment is paid into or appropriate date. (d) Should the provisions on out of the pension fund? (a) Does the CAS Board need to applicable interest rate used for CAS 9. Issues related to CAS 413– address the intent or use of the phrase: 413–50(c)(12)(i) purposes reflect 50(c)(12)(viii): If a benefit curtailment is ‘‘If its use can result in an inequitable whether the contractor has retained the caused by a cessation of benefit accruals calculation?’’ plan liability or settled the liability? mandated by ERISA based on the plan’s 5. Issues related to CAS 413– 7. Issues related to CAS 413– funding level, then no adjustment for 50(c)(12)(iv): Pension plan 50(c)(12)(vi): The Government’s share of the curtailment of benefit pursuant to improvements adopted within 60 the adjustment amount determined for a this paragraph (c)(12) is required. months of the date of the event which segment shall be the product of the Instead, the curtailment of benefits shall increase the actuarial accrued liability adjustment amount and a fraction. The be recognized as follows: shall be recognized on a prorata basis adjustment amount shall be reduced for (A) If the written plan document using the number of months the date of any excise tax imposed upon assets provides that benefit accruals are adoption preceded the event date. Plan withdrawn from the funding agency of nonforfeitable once employment service improvements mandated by law or a qualified pension plan. The numerator has been rendered and shall be collective bargaining agreement are not of such fraction shall be the sum of the retroactively restored if and when the subject to this phase-in. benefit accrual limitation ceases, then, (a) What about automatic Internal pension plan costs allocated to all the contractor may elect to recognize the Revenue Code (IRC) sections 415 contracts and subcontracts (including expected benefit accruals in the (Limitations on benefits and Foreign Military Sales) subject to this actuarial accrued liability and normal contribution under qualified plans) and Standard during a period of years cost during the period of cessation for 401(a)(17) (Compensation limit) representative of the Government’s the determination of pension cost in improvements? participation in the pension plan. The (b) What about ‘‘prudent’’ benefit denominator of such fraction shall be accordance with the provisions of CAS improvements and how could the total pension costs assigned to cost 412 and 413. ‘‘prudent’’ be determined? accounting periods during those same (B) Otherwise, the curtailment of (c) What if a plan is replaced by a new years. This amount shall represent an benefits shall be recognized as an defined benefit plan or replacement adjustment of contract prices or cost actuarial gain or loss for the period. The defined benefit plan? allowance as appropriate. The subsequent restoration of missed benefit 6. Issues related to CAS 413– adjustment may be recognized by accruals shall be recognized as an 50(c)(12)(v): If a segment is closed due modifying a single contract, several but actuarial gain or loss in the period in to a sale or other transfer of ownership not all contracts, or all contracts, or by which the restoration occurs. to a successor in interest in the contracts use of any other suitable technique. (a) Now that the CAS Pension of the segment and all of the pension (a) How should the lack of historical Harmonization Rule been in effect for plan assets and actuarial accrued accrued and allocated cost data be over a year, have there been any issues liabilities pertaining to the closed handled? related to this subparagraph? segment are transferred to the successor (b) What if there have been prior 10. General Questions: Besides the segment, then no adjustment amount mergers, spin-offs or other questions raised concerning specific pursuant to this paragraph (c)(12) is reorganizations? provisions within CAS 413–50(c)(12), required. If only some of the pension 8. Issues related to CAS 413– the staff has identified a few general plan assets and actuarial accrued 50(c)(12)(vii): The full amount of the questions. liabilities of the closed segment are Government’s share of an adjustment is (a) Should the CAS Board eliminate transferred, then the adjustment amount allocable, without limit, as a credit or CAS 413–50(c)(12) in its entirety, i.e., is required under this paragraph (c)(12) charge during the cost accounting this provision still needed? shall be determined based on the period in which the event occurred and (b) Should the CAS Board consider pension plan assets and actuarial contract prices/costs will be adjusted special issues related to CAS 413– accrued liabilities remaining with the accordingly. However, if the contractor 50(c)(12) when short, non-repetitive contractor. In either case, the effect of continues to perform Government contracts (e.g., 5-years) are awarded? the transferred assets and liabilities is contracts, the contracting parties may Should such contracts be subject to CAS carried forward and recognized in the negotiate an amortization schedule, 413–50(c)(12)? accounting for pension cost at the including interest adjustments. Any (c) Should the CAS Board amend CAS successor contractor. amortization agreement shall consider 412–50(c)(2)(ii) to allow an Assignable (a) What happens when the actual the magnitude of the adjustment credit Cost Limitation ‘‘buffer’’ to better ensure assets transferred are not based on the or charge, and the size and nature of the that the plan or segment has adequate assets accumulated and accounted for continuing contracts. resources in case of segment closings,

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plan terminations or sudden market August 7, 2013. Comments submitted SUPPLEMENTARY INFORMATION: declines? electronically using the Federal Public Comments (d) If the CAS Board continues to eRulemaking Portal (see ADDRESSES require a ‘‘true-up’’ of assets and section, below) must be received by We are reopening the comment period liabilities or permits an Assignable Cost 11:59 p.m. Eastern Time on the closing for our proposed listing determination Limitation Buffer, should the CAS date. Any comments that we receive for Chromolaena frustrata, Consolea Board remove the CAS 412–50(c)(2)(i) after the closing date may not be corallicola, and Harrisia aboriginum $0 floor and permit negative pension considered in the final decisions on and our proposed critical habitat costs instead? these actions. designation for Chromolaena frustrata that was published in the Federal Joseph G. Jordan, ADDRESSES: Document availability: You may obtain copies of the October 11, Register on October 11, 2012 (77 FR Chair, Cost Accounting Standards Board. 61836). We are also specifically seeking [FR Doc. 2013–16113 Filed 7–5–13; 8:45 am] 2012, proposed rule on the internet at http://www.regulations.gov at Docket comments on the draft economic BILLING CODE P No. FWS–R4–ES–2012–0076 or by mail analysis, which is now available, for the from the South Florida Ecological critical habitat designation. We will Services Office (see FOR FURTHER consider information and DEPARTMENT OF THE INTERIOR INFORMATION CONTACT). You may obtain recommendations from all interested parties. See ADDRESSES for information Fish and Wildlife Service a copy of the draft economic analysis at Docket No. FWS–R4–ES–2013–0029. on where to send your comments. We are also notifying the public that 50 CFR Part 17 Written Comments: You may submit written comments by one of the we will publish two separate rules, one [Docket Nos. FWS–R4–ES–2012–0076 and following methods: for the final listing determination for FWS–R4–ES–2013–0029; 4500030113] (1) Electronically: Go to the Federal Chromolaena frustrata, Consolea RIN 1018–AY08; 1018–AZ51 eRulemaking Portal: http:// corallicola, and Harrisia aboriginum www.regulations.gov. Submit comments and another for the final critical habitat Endangered and Threatened Wildlife on the listing proposal to Docket No. determination for Chromolaena and Plants; Endangered Species FWS–R4–ES–2012–0076, and submit frustrata. The final listing rule will Status for Cape Sable Thoroughwort, comments on the critical habitat publish under the existing docket Florida Semaphore Cactus, and proposal and the associated draft number, FWS–R4–ES–2012–0076, and Aboriginal Prickly-Apple, and economic analysis to Docket No. FWS– the final critical habitat designation will Designation of Critical Habitat for Cape R4–ES–2013–0029. See SUPPLEMENTARY publish under docket number FWS–R4– Sable Thoroughwort INFORMATION for an explanation of the ES–2013–0029. two dockets. We request that you provide AGENCY: Fish and Wildlife Service, comments that are specifically on our Interior. (2) By hard copy: Submit comment on the listing proposal by U.S. mail or listing determination under the existing ACTION: Proposed rule; reopening of hand-delivery to: Public Comments docket number FWS–R4–ES–2012– comment period; availability of draft Processing, Attn: FWS–R4–ES–2012– 0076. We are particularly interested in economic analysis. 0076; Division of Policy and Directives comments concerning: (1) Biological, commercial trade, or SUMMARY: Management; U.S. Fish and Wildlife We, the U.S. Fish and other relevant data concerning any Service; 4401 N. Fairfax Drive, MS Wildlife Service (Service), announce the threats (or lack thereof) to these species reopening of the public comment period 2042–PDM; Arlington, VA 22203. and regulations that may be addressing on the October 11, 2012, proposed rule Submit comment on the critical habitat those threats. to list Chromolaena frustrata (Cape proposal and draft economic analysis by (2) Additional information concerning Sable thoroughwort), Consolea U.S. mail or hand-delivery to: Public the historical and current status, range, corallicola (Florida semaphore cactus), Comments Processing, Attn: FWS–R4– distribution, and population size of and Harrisia aboriginum (aboriginal ES–2013–0029; Division of Policy and these species, including the locations of prickly-apple) as endangered species Directives Management; U.S. Fish and any additional populations of these under the Endangered Species Act of Wildlife Service; 4401 N. Fairfax Drive, species. 1973, as amended (Act), and to MS 2042–PDM; Arlington, VA 22203. (3) Any information on the biological designate critical habitat for We request that you send comments or ecological requirements of these Chromolaena frustrata under the Act. only by the methods described above. species and ongoing conservation We also announce the availability of a We will post all comments on http:// measures for these species and their draft economic analysis (DEA) of the www.regulations.gov. This generally habitats. proposed designation of critical habitat means that we will post any personal (4) Current or planned activities in the for Chromolaena frustrata and an information you provide us (see the areas occupied by these species and amended required determinations Public Comments section below for possible impacts of these activities on section of the proposal. We are more information). these species. reopening the comment period to allow FOR FURTHER INFORMATION CONTACT: We request that you provide all interested parties an opportunity to Larry Williams, Field Supervisor, U.S. comments that are specifically on the comment simultaneously on the Fish and Wildlife Service, South Florida critical habitat determination and draft proposed rule, the associated DEA, and Ecological Services Office, 1339 20th economic analysis under docket number the amended required determinations Street, Vero Beach, FL 32960; by FWS–R4–ES–2013–0029. We are section. Comments previously telephone 772–562–3909; or by particularly interested in comments submitted need not be resubmitted, as facsimile 772–562–4288. Persons who concerning: they will be fully considered in use a telecommunications device for the (5) The reasons why we should or preparation of the final rule. deaf (TDD) may call the Federal should not designate habitat as ‘‘critical DATES: We will consider comments Information Relay Service (FIRS) at habitat’’ under section 4 of the Act (16 received or postmarked on or before 800–877–8339. U.S.C. 1531 et seq.), including whether

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there are threats to the species from period from October 11, 2012, to is available online at http:// human activity, the degree of which can December 10, 2012, please do not www.regulations.gov (at Docket Number be expected to increase due to the resubmit them. We will incorporate FWS–R4–ES–2012–0076) or from the designation, and whether that increase them into the public record as part of South Florida Ecological Services Office in threat outweighs the benefit of this comment period, and we will fully (see FOR FURTHER INFORMATION CONTACT). designation such that the designation of consider them in the preparation of our On October 11, 2012, we published a critical habitat is not prudent. final determinations. Our final proposed rule to designate critical (6) Specific information on: determinations will take into habitat for Chromolaena frustrata (77 (a) The amount and distribution of consideration all written comments and FR 61836). We proposed to designate Chromolaena frustrata habitat; any additional information we receive approximately 3,466 hectares (8,565 (b) What areas occupied by the during both comment periods. acres) in nine units located in Miami- species at the time of listing that contain You may submit your comments and Dade and Monroe Counties, Florida, as features essential for the conservation of materials concerning the proposed rule critical habitat. That proposal had a 60- the species we should include in the or DEA by one of the methods listed in day comment period, ending December designation and why; and the ADDRESSES section. We request that 10, 2012. (c) What areas not occupied at the you send comments only by the Critical Habitat time of listing are essential for the methods described in the ADDRESSES conservation of the species and why. section. Section 3 of the Act defines critical (7) Land use designations and current If you submit a comment via http:// habitat as the specific areas within the or planned activities in the subject areas www.regulations.gov, your entire geographical area occupied by a species, occupied by Chromolaena frustrata or comment—including any personal at the time it is listed in accordance proposed to be designated as critical identifying information—will be posted with the Act, on which are found those habitat, and possible impacts of these on the Web site. We will post all physical or biological features essential activities on these species and proposed hardcopy comments on http:// to the conservation of the species and critical habitat. www.regulations.gov as well. If you that may require special management (8) Information on the projected and submit a hardcopy comment that considerations or protection, and reasonably likely impacts of climate includes personal identifying specific areas outside the geographical change on Chromolaena frustrata and information, you may request at the top area occupied by a species at the time proposed critical habitat. of your document that we withhold this it is listed, upon a determination that (9) Any probable economic, national information from public review. such areas are essential for the security, or other relevant impacts that However, we cannot guarantee that we conservation of the species. If the may result from designating any area will be able to do so. proposed rule is made final, section 7 of that may be included in the final Comments and materials we receive, the Act will prohibit destruction or designation. We are particularly as well as supporting documentation we adverse modification of critical habitat interested in any impacts on small used in preparing the proposed rule and by any activity funded, authorized, or entities, and the benefits of including or DEA, will be available for public carried out by any Federal agency. excluding areas from the proposed inspection on http:// Federal agencies proposing actions designation that are subject to these www.regulations.gov at Docket No. affecting critical habitat must consult impacts. FWS–R4–ES–2012–0076 (for the with us on the effects of their proposed (10) Whether we could improve or proposed listings), and at Docket No. actions, under section 7(a)(2) of the Act. modify our approach to designating FWS–R4–ES–2013–0029 (for the Consideration of Impacts Under Section critical habitat in any way to provide for proposed critical habitat and draft 4(b)(2) of the Act greater public participation and economic analysis) or by appointment, understanding, or to better during normal business hours, at the Section 4(b)(2) of the Act requires that accommodate public concerns and U.S. Fish and Wildlife Service, South we designate or revise critical habitat comments. Florida Ecological Services Office (see based upon the best scientific data (11) Information on the extent to FOR FURTHER INFORMATION CONTACT). You available, after taking into consideration which the description of economic may obtain copies of the proposed rule the economic impact, impact on impacts in the DEA is complete and on the Internet at http:// national security, or any other relevant accurate. www.regulations.gov at Docket Number impact of specifying any particular area (12) The likelihood of adverse social FWS–R4–ES–2012–0076 and the draft as critical habitat. We may exclude an reactions to the designation of critical economic analysis at Docket No. FWS– area from critical habitat if we habitat, as discussed in the DEA, and R4–ES–2013–0029, or by mail from the determine that the benefits of excluding how the consequences of such reactions, South Florida Ecological Services Office the area outweigh the benefits of if likely to occur, would relate to the (see FOR FURTHER INFORMATION CONTACT including the area as critical habitat, conservation and regulatory benefits of section). provided such exclusion will not result the proposed critical habitat in the extinction of the species. designation. Background When considering the benefits of (13) Whether any specific areas we are It is our intent to discuss only those inclusion for an area, we consider the proposing for critical habitat topics directly relevant to the additional regulatory benefits that area designation should be considered for designation of critical habitat for would receive from the protection from exclusion under section 4(b)(2) of the Chromolaena frustrata in this adverse modification or destruction as a Act, and whether the benefits of document. For more information on result of actions with a Federal nexus potentially excluding any specific area previous Federal actions concerning C. (activities conducted, funded, outweigh the benefits of including that frustrata, the species, or its habitat, refer permitted, or authorized by Federal area under section 4(b)(2) of the Act. to the proposed listing rule and agencies), the educational benefits of If you submitted comments or proposed designation of critical habitat mapping areas containing essential information on the proposed rule (77 FR published in the Federal Register on features that aid in the recovery of the 61836) during the initial comment October 11, 2012 (77 FR 61836), which listed species, and any benefits that may

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result from designation due to State or designation of critical habitat (i.e., incremental costs of the proposed Federal laws that may apply to critical incremental impacts). For a further critical habitat designation on habitat. description of the methodology of the commercial, residential, and When considering the benefits of analysis, see Chapter 2, recreational development would be exclusion, we consider, among other ‘‘METHODOLOGY,’’ of the DEA. approximately $39,000 over the next 20 things, whether exclusion of a specific The DEA provides estimated costs of years (7 percent discount rate). The DEA area is likely to result in conservation; the foreseeable potential economic provides an estimate that consultations the continuation, strengthening, or impacts of the proposed critical habitat in the Key Largo unit would account for encouragement of partnerships; or designation for Chromolaena frustrata 77 percent of these costs. implementation of a management plan. over the next 20 years, which was The DEA estimates the administrative In the case of Chromolaena frustrata, determined to be the appropriate period cost of consultations for restoration and the benefits of critical habitat include for analysis because limited planning conservation to be $22,437 for formal public awareness of the presence of C. information is available for most consultations and $7,492 for informal frustrata and the importance of habitat activities to forecast activity levels for consultations. It is estimated that the protection, and, where a Federal nexus projects beyond a 20-year timeframe. It incremental costs of the proposed exists, increased habitat protection for identifies potential incremental costs as critical habitat designation on C. frustrata due to protection from a result of the proposed critical habitat restoration and conservation projects to adverse modification or destruction of designation; these are those costs be approximately $240,000 over the critical habitat. In practice, situations attributed to critical habitat over and next 20 years (7 percent discount rate). with a Federal nexus exist primarily on above those baseline costs attributable The majority, 91 percent, of these costs Federal lands or for projects undertaken to listing. are estimated to occur within the Key by Federal agencies. The DEA provides estimated costs of Largo unit. Given the presence of other We have not proposed to exclude any the probable economic impacts of the listed species that may trigger areas from critical habitat. However, the proposed critical habitat designation of consultation requirements related to final decision on whether to exclude Chromolaena frustrata associated with restoration and conservation projects, any areas will be based on the best the following categories of activity: these costs for C. frustrata are likely scientific and commercial data available Commercial, residential and overestimates of the incremental cost of at the time of the final designation, recreational development; Federal land the proposed critical habitat designation including information obtained during management; and restoration and on restoration and conservation the comment period and information conservation. projects. about the economic impact of The DEA estimates that As we stated earlier, we are soliciting designation. Accordingly, we have approximately $578,000 in direct data and comments from the public on prepared a DEA concerning the incremental costs would result from the the DEA, as well as all aspects of the proposed critical habitat designation, critical habitat designation over the next proposed rule and our amended which is available for review and 20 years (at a 7 percent discount rate). required determinations. We may revise comment (see ADDRESSES). The DEA estimates 93 percent of the the proposed rule or supporting costs would be attributable to documents to incorporate or address Draft Economic Analysis consultations regarding Federal land information we receive during the The purpose of the DEA is to identify management and restoration and public comment period. In particular, and analyze the potential economic conservation activities, with the we may exclude an area from critical impacts associated with the proposed remaining 7 percent attributable to habitat if we determine that the benefits critical habitat designation for development in the area. Over half of of excluding the area outweigh the Chromolaena frustrata. The DEA the estimated incremental costs are benefits of including the area, provided separates conservation measures into expected to result from actions the exclusion will not result in the two distinct categories according to occurring with the Key Largo unit, in extinction of this species. ‘‘without critical habitat’’ and ‘‘with Monroe County, Florida. critical habitat’’ scenarios. The ‘‘without Overall, 92 percent of the area Required Determinations—Amended critical habitat’’ scenario represents the proposed as critical habitat is located In our October 11, 2012, proposed baseline for the analysis, considering within Federal, State, or local rule (77 FR 61836), we indicated that we protections otherwise afforded to the conservation areas. The DEA estimates would defer our determination of Chromolaena frustrata (e.g., under the that the administrative cost of compliance with several statutes and Federal listing, if adopted, and under consultations for Federal land executive orders until the information other Federal, State, and local management to be $61,474 for formal concerning potential economic impacts regulations). The ‘‘with critical habitat’’ consultations and $1,138 for informal of the designation and potential effects scenario describes the incremental consultations. It estimates that the on landowners and stakeholders became impacts specifically due to designation incremental costs of the proposed available in the DEA. We have now of critical habitat for the species. In critical habitat designation on Federal made use of the DEA data to make these other words, these incremental land management would be determinations. In this document, we conservation measures and associated approximately $299,000 over the next affirm the information in our proposed economic impacts would not occur but 20 years (7 percent discount rate). Over rule concerning Executive Orders for the designation. Conservation half of these costs are expected to occur (E.O.s) 12866 and 13563 (Regulatory measures implemented under the within the Everglades National Park Planning and Review), E.O. 12630 baseline (without critical habitat) unit. (Takings), E.O. 13132 (Federalism), E.O. scenario are described qualitatively The DEA estimates the administrative 12988 (Civil Justice Reform), E.O. 13211 within the DEA, but economic impacts cost of consultations for commercial, (Energy Supply, Distribution, or Use), associated with these measures are not residential, and recreational the Unfunded Mandates Reform Act quantified. Economic impacts are only development to be $5,387 per formal (2 U.S.C. 1501 et seq.), the Paperwork quantified for conservation measures consultation and $2,412 per informal Reduction Act of 1995 (44 U.S.C. 3501 implemented specifically due to the consultation. It is estimated that the et seq.), the National Environmental

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Policy Act might trigger regulatory impacts under where a Federal action agency is (42 U.S.C. 4321 et seq.), and the this designation as well as types of involved in a particular action that may President’s memorandum of April 29, project modifications that may result. In affect the designated critical habitat. 1994, ‘‘Government-to-Government general, the term ‘‘significant economic Under these circumstances, only the Relations with Native American Tribal impact’’ is meant to apply to a typical Federal action agency is directly Governments’’ (59 FR 22951). However, small business firm’s business regulated by the designation, and, based on the DEA data, we are operations. therefore, consistent with the Service’s amending our required determination To determine if the proposed current interpretation of RFA and recent designation of critical habitat for concerning the Regulatory Flexibility case law, the Service may limit its Act (5 U.S.C. 601 et seq.). Chromolaena frustrata would affect a evaluation of the potential impacts to substantial number of small entities, we Regulatory Flexibility Act (5 U.S.C. 601 considered the number of small entities those identified for Federal action et seq.) affected within particular types of agencies. Under this interpretation, Under the Regulatory Flexibility Act economic activities, such as there is no requirement under the RFA (RFA; 5 U.S.C. 601 et seq.), as amended commercial, residential, and to evaluate potential impacts to entities by the Small Business Regulatory recreational development; Federal land not directly regulated, such as small Enforcement Fairness Act of 1996 management; and restoration and businesses. However, Executive Orders (SBREFA; 5 U.S.C. 801 et seq.), conservation. In order to determine 12866 and 13563 direct Federal agencies whenever an agency is required to whether it is appropriate for our agency to assess the costs and benefits of publish a notice of rulemaking for any to certify that the proposed rule would available regulatory alternatives in proposed or final rule, it must prepare not have a significant economic impact quantitative (to the extent feasible) and and make available for public comment on a substantial number of small qualitative terms. Consequently, it is the a regulatory flexibility analysis that entities, we considered each industry or current practice of the Service to assess describes the effects of the rule on small category individually. In estimating the to the extent practicable these potential entities (i.e., small businesses, small numbers of small entities potentially impacts, if sufficient data are available, organizations, and small government affected, we also considered whether whether or not this analysis is believed jurisdictions). However, no regulatory their activities have any Federal by the Service to be strictly required by flexibility analysis is required if the involvement. Critical habitat the RFA. In other words, while the head of the agency certifies the rule will designation will not affect activities that effects analysis required under the RFA not have a significant economic impact do not have any Federal involvement; is limited to entities directly regulated on a substantial number of small designation of critical habitat only entities. The SBREFA amended the RFA affects activities conducted, funded, by the rulemaking, the effects analysis to require Federal agencies to provide a permitted, or authorized by Federal under the Act, consistent with the E.O. certification statement of the factual agencies. In areas where a listed species regulatory analysis requirements, can basis for certifying that the rule will not is present, Federal agencies already are take into consideration impacts to both have a significant economic impact on required to consult with us under directly and indirectly impacted a substantial number of small entities. section 7 of the Act on activities they entities, where practicable and Based on our DEA of the proposed fund, permit, or implement that may reasonable. designation, we provide our analysis for affect the species. If we finalize the In summary, we have considered determining whether the proposed rule proposed critical habitat designation, whether the proposed designation would result in a significant economic consultations to avoid the destruction or would result in a significant economic impact on a substantial number of small adverse modification of critical habitat impact on a substantial number of small entities. Based on comments we receive, would be incorporated into the existing entities. Information for this analysis we may revise this determination as part consultation process. was gathered from the Small Business of our final rulemaking. In the DEA, we evaluated the According to the Small Business potential economic effects on small Administration, stakeholders, and the Administration, small entities include entities resulting from implementation Service. For the above reasons and small organizations such as of conservation actions related to the based on currently available independent nonprofit organizations; proposed designation of critical habitat information, we certify that, if small governmental jurisdictions, for Chromolaena frustrata. Based upon promulgated, the proposed critical including school boards and city and the results of the DEA, we do not habitat designation would not have a town governments that serve fewer than anticipate significant adverse impacts to significant economic impact on a 50,000 residents; and small businesses small entities as a result of the proposed substantial number of small business (13 CFR 121.201). Small businesses critical habitat designation. Please refer entities. Therefore, an initial regulatory include manufacturing and mining to the DEA of the proposed critical flexibility analysis is not required. concerns with fewer than 500 habitat designation for a more detailed employees, wholesale trade entities discussion of potential economic Authors with fewer than 100 employees, retail impacts. The primary authors of this notice are and service businesses with less than $5 The Service’s current understanding the staff members of the South Florida million in annual sales, general and of recent case law is that Federal Ecological Services Office, Region 4, heavy construction businesses with less agencies are only required to evaluate than $27.5 million in annual business, the potential impacts of rulemaking on U.S. Fish and Wildlife Service. special trade contractors doing less than those entities directly regulated by the Authority $11.5 million in annual business, and rulemaking; therefore, they are not agricultural businesses with annual required to evaluate the potential The authority for this action is the sales less than $750,000. To determine impacts to those entities not directly Endangered Species Act of 1973, as if potential economic impacts to these regulated. The designation of critical amended (16 U.S.C. 1531 et seq.). small entities are significant, we habitat for an endangered or threatened considered the types of activities that species only has a regulatory effect

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Dated: June 20, 2013. Written comments: You may submit (c) Special management Rachel Jacobson, written comments by one of the considerations or protection that may be Principal Deputy Assistant Secretary for Fish following methods: needed in critical habitat areas we are and Wildlife and Parks. (1) Electronically: Go to the Federal proposing, including management for [FR Doc. 2013–16239 Filed 7–5–13; 8:45 am] eRulemaking Portal: http:// the potential effects of climate change; BILLING CODE 4310–55–P www.regulations.gov. Search for Docket and No. FWS–R2–ES–2013–0025, which is (d) What areas occupied by the the docket number for this rulemaking. species at the time of listing that contain DEPARTMENT OF THE INTERIOR (2) By hard copy: Submit by U.S. mail features essential for the conservation of or hand-delivery to: Public Comments the species we should include in the Fish and Wildlife Service Processing, Attn: FWS–R2–ES–2013– designation and why. 0025; Division of Policy and Directives (3) Land use designations and current 50 CFR Part 17 Management; U.S. Fish and Wildlife or planned activities in the subject areas Service; 4401 N. Fairfax Drive, MS and their possible impacts on proposed [Docket No. FWS–R2–ES–2013–0025; 2042–PDM; Arlington, VA 22203. critical habitat. 4500030113] We request that you send comments (4) Any foreseeable economic, only by the methods described above. national security, or other relevant We will post all comments on http:// impacts that may result from RIN 1018–AZ43 www.regulations.gov. This generally designating any area that may be Endangered and Threatened Wildlife means that we will post any personal included in the final designation. We and Plants; Designation of Critical information you provide us (see the are particularly interested in any Habitat for the Acun˜ a Cactus and the Public Comments section below for impacts on small entities, and the Fickeisen Plains Cactus more information). benefits of including or excluding areas FOR FURTHER INFORMATION CONTACT: from the proposed designation that are AGENCY: Fish and Wildlife Service, Steve Spangle, Field Supervisor, U.S. subject to these impacts. Interior. Fish and Wildlife Service, Arizona (5) Whether our approach to ACTION: Proposed rule; revisions and Ecological Services Field Office, 2321 designating critical habitat could be reopening of comment period. W. Royal Palm Road, Suite 103, improved or modified in any way to Phoenix, AZ 85021; telephone (602) provide for greater public participation SUMMARY: We, the U.S. Fish and 242–0210; facsimile (602) 242–2513. and understanding, or to assist us in Wildlife Service (Service), announce the Persons who use a telecommunications accommodating public concerns and reopening of the public comment period device for the deaf (TDD) may call the comments. on the October 3, 2012, proposed listing Federal Information Relay Service (6) Information on the extent to which and designation of critical habitat for (FIRS) at 800–877–8339. the description of economic impacts in Echinomastus erectocentrus var. SUPPLEMENTARY INFORMATION: the DEA is complete and accurate. acunensis (acun˜ a cactus) and (7) The likelihood of adverse social Public Comments Pediocactus peeblesianus var. reactions to the designation of critical fickeiseniae (Fickeisen plains cactus) We are reopening the comment period habitat, as discussed in the DEA, and under the Endangered Species Act of for our proposed critical habitat how the consequences of such reactions, 1973, as amended (Act). We are designations for the acun˜ a cactus and if likely to occur, would relate to the reopening the comment period to allow the Fickeisen plains cactus that conservation and regulatory benefits of all interested parties an opportunity to published in the Federal Register on the proposed critical habitat comment on revisions to the proposed October 3, 2012 (77 FR 60509). We are designation. critical habitat designations, which are specifically seeking comments on the (8) Information that may inform our described in this document; the revised proposed critical habitat consideration of exclusion, including associated draft economic analysis designations described in this benefits of exclusion and benefits of (DEA) for the proposed critical habitat document; see ADDRESSES for including the areas proposed as critical designations; and the amended required information on how to submit your habitat for the Fickeisen plains cactus determinations. Comments previously comments. We will consider on the Navajo Nation based on the submitted need not be resubmitted, as information and recommendations from ‘‘Navajo Nation Fickeisen Plains Cactus they will be fully considered in all interested parties. We also seek Management Plan’’ and on the Babbitt preparation of the final rule. comments concerning: Ranches based on their ‘‘Draft Babbitt (1) The reasons why we should or Ranches Fickeisen Plains Cactus DATES: We will consider comments should not designate habitat as ‘‘critical Management Plan.’’ Both plans were received or postmarked on or before July habitat’’ under section 4 of the Act (16 submitted during the March 28 through 23, 2013. Comments submitted U.S.C. 1531 et seq.), including whether April 29, 2013, comment period (78 FR electronically using the Federal there are threats to the species from 18938) and are available on http:// eRulemaking Portal (see ADDRESSES human activity, the degree of which can www.regulations.gov at Docket No. section, below) must be received by be expected to increase due to the FWS–R2–ES–2013–0025. 11:59 p.m. Eastern Time on the closing designation, and whether that increase If you submitted comments or date. in threat outweighs the benefit of information on the proposed rule (77 FR ADDRESSES: Document availability: You designation such that the designation of 60509) during the initial comment may obtain copies of the October 3, critical habitat is not prudent. period from October 3 to December 3, 2012, proposed rule on the Internet at (2) Specific information on: 2012, or during the second comment http://www.regulations.gov at Docket (a) The distribution of the acun˜ a period (78 FR 18938) from March 28 to No. FWS–R2–ES–2012–0061 or by mail cactus or the Fickeisen plains cactus; April 29, 2013, please do not resubmit from the Arizona Ecological Services (b) The amount and distribution of them. We will incorporate them into the Field Office (see FOR FURTHER acun˜ a cactus or the Fickeisen plains public record as part of this comment INFORMATION CONTACT). cactus habitat; period, and we will fully consider them

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in the preparation of our final Docket Number FWS–R2–ES–2013– plains cactus, we are proposing to determination. Our final determination 0025) or from the Arizona Ecological remove Unit 4, Snake Gulch, and add a concerning critical habitat will take into Services Field Office (see FOR FURTHER new unit on U.S. Forest Service land. consideration all written comments and INFORMATION CONTACT). For the acun˜ a cactus, we propose to any additional information we receive designate approximately 7,657 ha Previous Federal Actions during this and the prior two comment (18,921 ac) as critical habitat in periods. On the basis of public On October 3, 2012, we published a Maricopa, Pima, and Pinal Counties, comments, we may, during the proposed rule to list the acun˜ a cactus Arizona. For the Fickeisen plains development of our final determination, and the Fickeisen plains cactus as cactus, we propose to designate find that areas proposed are not endangered and to designate critical approximately 19,066 ha (47,123 ac) as essential, are appropriate for exclusion habitat for both plants (77 FR 60509). critical habitat in Coconino and Mohave under section 4(b)(2) of the Act, or are For the acun˜ a cactus, we proposed to Counties, Arizona. Therefore, acun˜ a not appropriate for exclusion. designate as critical habitat cactus proposed critical habitat is You may submit your comments and approximately 21,740 hectares (ha) reduced by 14,184 ha (34,799 ac), and materials concerning the proposed rule (53,720 acres (ac)) in six units located in Fickeisen plains cactus proposed or DEA by one of the methods listed in Maricopa, Pima, and Pinal Counties, critical habitat is reduced by 835 ha the ADDRESSES section. We request that Arizona. For the Fickeisen plains (2,063 ac). you send comments only by the cactus, we proposed to designate as methods described in the ADDRESSES critical habitat approximately 19,901 ha Criteria Used To Identify Critical section. (49,186 ac) in nine units located in Habitat If you submit a comment via http:// Coconino and Mohave Counties, In our October 3, 2012 (77 FR 60509), www.regulations.gov, your entire Arizona. That proposal had a 60-day proposed rule, we identified additional comment—including any personal comment period, ending December 3, areas, not occupied at the time of listing, identifying information—will be posted 2012. On March 28, 2013, we reopened as essential for the conservation of the on the Web site. We will post all the comment period for 30 days to acun˜ a cactus. These areas were hardcopy comments on http:// announce the availability of the DEA (78 delineated using monitoring records www.regulations.gov as well. If you FR 18938). We will submit for from Organ Pipe Cactus National submit a hardcopy comment that publication in the Federal Register final Monument (OPCNM) and GIS includes personal identifying listing and critical habitat designations precipitation data. We noted that information, you may request at the top for the acun˜ a cactus and the Fickeisen flowering and recruitment peaked in of your document that we withhold this plains cactus on or before October 3, 1992, coinciding with a very wet winter information from public review. 2013. with recorded precipitation of 29.7 cm However, we cannot guarantee that we Critical Habitat (11.66 in). We intended to delineate will be able to do so. areas that were projected to have 29.7 Comments and materials we receive, Section 3 of the Act defines critical cm (11.66 in) or higher winter as well as supporting documentation we habitat as the specific areas within the precipitation based on the past 30-year used in preparing the proposed rule and geographical area occupied by a species, average. However, we mistakenly based DEA, will be available for public at the time it is listed in accordance our delineations on annual inspection on http:// with the Act, on which are found those precipitation, not winter precipitation. www.regulations.gov at Docket No. physical or biological features essential We reevaluated our model, and there are FWS–R2–ES–2013–0025, or by to the conservation of the species and no areas that meet the 29.7-cm (11.66- appointment, during normal business that may require special management in) winter rainfall criterion. In hours, at the U.S. Fish and Wildlife considerations or protection, and summary, we acknowledge that long- Service, Arizona Ecological Services specific areas outside the geographical term drought is a threat to acun˜ a cactus; FOR FURTHER Field Office (see area occupied by a species at the time however, we do not have any additional INFORMATION CONTACT). You may obtain it is listed, upon a determination that information that allows us to delineate copies of the proposed rule and the DEA such areas are essential for the areas outside of those currently on the Internet at http:// conservation of the species. If the occupied that would be essential for the www.regulations.gov at Docket Number proposed critical habitat designation is conservation of the species. FWS–R2–ES–2013–0025, or by mail made final, section 7 of the Act will from the Arizona Ecological Services prohibit destruction or adverse Acun˜ a cactus FOR FURTHER Field Office (see modification of critical habitat by any Unit 1—Organ Pipe Cactus National INFORMATION CONTACT section). activity funded, authorized, or carried Monument out by any Federal agency. Federal Background agencies proposing actions affecting The Dripping Spring Subunit (1,591 It is our intent to discuss only those critical habitat must consult with us on ha (3,931 ac)) was originally proposed topics directly relevant to the the effects of their proposed actions, based on an acun˜ a cactus herbarium designation of critical habitat for the under section 7(a)(2) of the Act. specimen collected in 1952, which acun˜ a cactus and the Fickeisen plains noted the collection location as south of cactus in this document. For more Revised Proposed Critical Habitat Dripping Spring within 3 m (10 ft) of the information on previous Federal actions Based on information we received U.S.-Mexico border; the exact location concerning the acun˜ a cactus and the during the comment periods, we are was not provided. Although OPCNM Fickeisen plains cactus, refer to the revising our proposed critical habitat for staff were unaware of this herbarium proposed listing determination and both cacti species (see the Criteria Used collection, they stated in their designation of critical habitat published to Identify Critical Habitat section of the comments they had visited the general in the Federal Register on October 3, October 3, 2012, proposed rule (77 FR area of the collection while doing 2012 (77 FR 60509) or the draft 60509)). The new information resulted surveys for sensitive cultural and economic analysis, which are available in revisions to most of the acun˜ a cactus natural resources, as well as for online at http://www.regulations.gov (at critical habitat units. For the Fickeisen buffelgrass, and no acun˜ a cactus plants

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were noted. Although it is likely this proposed Unit 1 contains 2,416 ha habitat proposed in our October 3, 2012, was once a population supporting (5,971 ac). proposed rule. Consequently, we are enough individuals to warrant removing the entire Cimarron Mountain All Units Containing Unoccupied Acun˜ a collection for herbaria, it now seems Subunit (2,100 ha (5,190 ac)) from our Cactus Habitat likely this population no longer exists at proposed designation. All of these lands this location; therefore we consider this In our proposed critical habitat rule, are on the Tohono O’odham Nation. unit to be unoccupied. We also we proposed to designate unoccupied Within proposed Unit 4, the entire Sand reevaluated the habitat to consider critical habitat for acun˜ a cactus in areas Tank Mountain Subunit (3,107 ha (7,677 whether or not this unoccupied area is receiving higher winter rainfall, thus ac)) of Federal lands is removed. The essential for the conservation of the allowing space for growth and amount of land removed within the species. In the October 3, 2012, expansion of the species in the face of Javelina Mountain Subunit of the Sand proposed rule, we outlined criteria for ongoing drought and climate change Tank Mountains Unit is 362 ha (895 ac), designation of critical habitat, and we model predictions. However, we leaving 549 ha (1,355 ac) on Bureau of determined that unoccupied areas with received public comments regarding the Land Management (BLM) lands within suitable acun˜ a cactus habitat and that data we used to identify the unoccupied the Sonoran Desert National Monument. receive higher mean winter critical habitat areas. In reviewing the The amount of land removed within precipitation were necessary for the information, we acknowledge that we proposed Unit 5, Mineral Mountain, is conservation of the species. As the incorrectly used annual rainfall data 304 ha (752 ac) of BLM land, leaving Dripping Spring Subunit does not rather than winter rainfall data in our 787 ha (1,945 ac) on BLM, Bureau of receive this amount (29.7 cm (11.66 in)) evaluation (see Criteria Used to Identify Reclamation (BOR), and State lands. of winter rainfall, it does not meet the Critical Habitat above). As a result, we Within proposed Unit 6, Box O Wash, definition of critical habitat for the reevaluated the data and determined we are removing 6,240 ha (15,419 ac) of species, and we are no longer proposing that no areas in southern Arizona meet land, leaving 1,981 ha (4,895 ac) split it as critical habitat for the acun˜ a cactus. rainfall criteria established in the between two subunits, A and B; this We have removed this subunit from our proposed rule. Therefore, we are land is distributed among Federal, State, proposed designation. The revised removing all the unoccupied critical and private landowners.

TABLE 1—ACUN˜ A CACTUS PROPOSED CRITICAL HABITAT AND REVISED PROPOSED CRITICAL HABITAT

Proposed critical habi- Revised proposed Unit tat critical habitat Difference ha (ac) ha (ac) ha (ac)

Unit 1 ...... 4,007 (9,902) 2,416 (5,971) 1,591 (3,931) Unit 2 ...... 666 (1,645) 666 (1,645) 0 (0) Unit 3 ...... 3,737 (9,234) 1,258 (3,109)* 2,579 (6,373) Unit 4 ...... 4,018 (9,928) 549 (1,355) 3,469 (8,572) Unit 5 ...... 1,092 (2,697) 787 (1,945) 305 (752) Unit 6 ...... 8,221 (20,314) 1,981 (4,895) 6,240 (15,419)

Totals ...... 21,741 (53,720) 7,657 (18,921) 14,084 (34,799) * See Exemptions for Acun˜a Cactus section below.

Revised Proposed Unit Descriptions for proposed critical habitat for acun˜ a Acun˜ a Cactus cactus. Below we present unit descriptions for those units for which we are revising

TABLE 2—REVISED AREA OF PROPOSED CRITICAL HABITAT FOR THE ACUN˜ A CACTUS

Federal State Tribal Private Total Total Unit or subunit Ha Ac Ha Ac Ha Ac Ha Ac Ha Ac

Unit 1—Organ Pipe Cactus Na- tional Monument...... 2,416 5,971 0 0 0 0 0 0 2,416 5,971 Unit 3—Sauceda Mountains ...... 1,102 2,724 0 0 156 385 0 0 1,258 3,109 Unit 4—Sand Tank Mountains ..... 549 1,355 0 0 0 0 0 0 549 1,355 Unit 5—Mineral Mountain ...... 570 1,408 217 537 0 0 0 0 787 1,945 Unit 6a—Box O Wash A Subunit 4 9 1,348 3,332 0 0 369 913 1,721 4,253 Unit 6b—Box O Wash B Subunit 0 0 158 391 0 0 102 251 260 642

Grand Total...... 4,640 11,466 1,723 4,260 156 385 471 1,164 6,991 17,276 Note: Area sizes may not sum due to rounding.

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Unit 1: Organ Pipe Cactus National combined number of plants occurring populations of the acun˜ a cactus on Monument within this unit is 200, occurring in private and State-owned lands, which Proposed Unit 1 consists of 2,416 ha three separate populations. This unit are close enough in proximity to be (5,971 ac) within OPCNM in contains all of the primary constituent combined within the 900-m (2,953-ft) southwestern Pima County, Arizona. elements of the physical or biological radius defined for pollinators. Lands features essential to the conservation of The unit is on federally owned land within this subunit are occupied at the the acun˜ a cactus. administered by the National Park time of listing; the combined number of Grazing and mining are not permitted Service. Land within this unit is plants occurring within this subunit is within the Sonoran Desert National 11. This subunit contains all of the occupied at the time of listing with the Monument; however, off-road, border- ˜ primary constituent elements of the largest known population of the acuna related activities and trespass livestock cactus, approximately 2,000 physical or biological features essential grazing may occur in this unit. Special to the conservation of the acun˜ a cactus. individuals. This unit contains all of the management considerations or primary constituent elements of the Subunit 6b: Box O Wash B—Subunit protection may be required within this 6b consists of 158 ha (391 ac) of State- physical or biological features essential unit to address increased off-road, to the conservation of the acun˜ a cactus. owned land and 102 ha (251 ac) of border-related human disturbances; to private land east of Florence, Arizona. Grazing and mining are not permitted minimize disturbance to acun˜ a cactus within OPCNM; however, off-road, This subunit is comprised of one individuals, the soil, and associated population of the acun˜ a cactus on State- border-related activities do occur in native vegetation; and to prevent or OPCNM. Special management owned land; the 900-m (2,953-ft) radius remove invasive, exotic plants within defined for pollinators overlaps into considerations or protection may be acun˜ a cactus habitat. required to address off-road, border- private land. This area was surveyed in related human disturbances; invasive Unit 5: Mineral Mountain 2008, and 32 living acun˜ a cacti were found. A 2011 survey resulted in no plant removal; and insect predation in Proposed Unit 5 consists of 787 ha living plants located; however this was acun˜ a cactus habitat. (1,945 ac) on Mineral Mountain of not a thorough survey. Therefore, we north-central Pinal County, Arizona. Unit 3: Sauceda Mountains consider lands within this subunit This unit contains 570 ha (1,408 ac) of occupied at the time of listing. This Proposed Unit 3 is located in the federally owned land and 217 ha (537 subunit contains all of the primary Sauceda Mountains of northwestern ac) of State-owned land. The Federal constituent elements of the physical or Pima and southwestern Maricopa land is administered by the BLM (569 biological features essential to the Counties, Arizona. This unit contains ha (1,406 ac)) and the Bureau of conservation of the acun˜ a cactus. 1,102 ha (2,724 ac) of federally owned Reclamation (1 ha (2 ac)). land and 156 ha (385 ac) of tribally This unit contains five separate Livestock grazing and off-road vehicle owned land. The Federal land is known populations totaling at least 30 activity occur in both subunits of administered by the BLM; the Tribal individuals on lands administered by proposed Unit 6, and mining occurs land is administered by the Tohono the BLM and the State of Arizona. This nearby. Special management O’odham Nation. This unit is comprised unit contains all of the primary considerations or protection may be of four separate populations, which are constituent elements of the physical or required within both subunits of this close enough in proximity as to be biological features essential to the unit to minimize habitat fragmentation; combined within the 900-m (2,953-ft) conservation of the acun˜ a cactus. to minimize disturbance to acun˜ a cactus radius defined for pollinators. Lands Livestock grazing and off-road vehicle individuals, soil, and associated native within this unit are occupied at the time activity occur on this unit, and mining vegetation; and to prevent or remove of listing; the combined number of occurs nearby. Special management invasive, exotic plants within acun˜ a plants occurring within this unit is 212. considerations or protection may be cactus habitat. This unit contains all of the primary required within the unit to minimize Exemptions for Acun˜ a Cactus constituent elements of the physical or habitat fragmentation; to minimize biological features essential to the disturbance to acun˜ a cactus individuals, Application of Section 4(a)(3) of the Act conservation of the acun˜ a cactus. soil, and associated native vegetation; The Sikes Act Improvement Act of The features essential to the and to prevent or remove invasive, 1997 (Sikes Act) (16 U.S.C. 670a) conservation of the species within the exotic plants within acun˜ a cactus required each military installation that unit are threatened by mining; grazing; habitat. includes land and water suitable for the and off-road, border-related activities. conservation and management of Special management considerations or Unit 6: Box O Wash natural resources to complete an protection may be required within the Proposed Unit 6 is located near Box integrated natural resources unit to minimize habitat fragmentation; O Wash of north-central Pinal County, management plan (INRMP) by to minimize disturbance to individual Arizona. This unit consists of two November 17, 2001. An INRMP acun˜ a cactus individuals, soil, and subunits totaling 1,981 ha (4,895 ac). integrates implementation of the associated native vegetation; and to This unit contains 4 ha (9 ac) of military mission of the installation with prevent or remove invasive, exotic federally owned land, 1,506 ha (3,722 stewardship of the natural resources plants within acun˜ a cactus habitat. ac) of State-owned land, and 471 ha found on the base. Each INRMP (1,164 ac) of privately owned land. The Unit 4: Sand Tank Mountains includes: Federal land is administered by the Proposed Unit 4 consists of 549 ha BLM. (1) An assessment of the ecological (1,355 ac) within the Sonoran Desert Subunit 6a: Box O Wash A—Subunit needs on the installation, including the National Monument of southwestern 6a consists of 3.7 ha (9.1 ac) of BLM need to provide for the conservation of Maricopa County, Arizona. The unit is land, 369 ha (913 ac) of private land, listed species; on federally owned land administered and 1,348 ha (3,332 ac) of State land (2) A statement of goals and priorities; by the BLM. Land within this unit is east of Florence, Arizona. This subunit (3) A detailed description of occupied at the time of listing; the is comprised of two separate management actions to be implemented

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to provide for these ecological needs; including 379 ha (935 ac) of habitat on critical habitat (see Public Comments and BMGR within the Coffeepot Mountain section above). (4) A monitoring and adaptive Subunit in this revised critical habitat On October 3, 2012, we proposed management plan. designation because of this exemption. approximately 945 ha (2,335 ac) as Among other things, each INRMP This leaves 1,258 ha (3,109 ac) in the critical habitat within the Snake Gulch must, to the extent appropriate and Coffeepot Mountain Subunit on Bureau Unit on Federal land (77 FR 60509, p. applicable, provide for fish and wildlife of Land Management and Tohono 60560). The Snake Gulch Unit is located management; fish and wildlife habitat O’odham Nation lands as proposed near the western boundary of the Kaibab enhancement or modification; wetland critical habitat for the acun˜ a cactus. National Forest on the North Kaibab protection, enhancement, and The BMGR completed a revision to Ranger District. It includes one of two restoration where necessary to support the INRMP in relation to ongoing and known occurrences of the Fickeisen fish and wildlife; and enforcement of planned conservation efforts for the plains cactus on the Kaibab National applicable natural resource laws. acun˜ a cactus and provided this revision Forest. Plants were observed in the The National Defense Authorization to us during a public comment period. 1980s in the area near Willow Point in Act for Fiscal Year 2004 (Pub. L. 108– The benefits for acun˜ a cactus from this the vicinity of Snake Gulch (Heritage 136) amended the Act to limit areas revised INRMP include: Avoid Data Management System 2012). After eligible for designation as critical disturbance of vegetation and this date, no other site visits had habitat. Specifically, section 4(a)(3)(B)(i) pollinators within 900 meters of known occurred to verify the location and of the Act (16 U.S.C. 1533(a)(3)(B)(i)) acun˜ a cactus plants; develop and status of the plant. During the public now provides: ‘‘The Secretary shall not implement procedures to control comment periods, the Kaibab National designate as critical habitat any lands or trespass livestock; monitor illegal Forest conducted surveys near Willow other geographic areas owned or immigration, contraband trafficking, and Point and within the proposed controlled by the Department of border-related enforcement; and designated critical habitat, but no plants Defense, or designated for its use, that continue to monitor and control were found (Hannemann 2013, p. 1; are subject to an integrated natural invasive plant species to maintain Hannemann 2013, pers. comm.). resources management plan prepared quality habitat and prevent unnatural Further, the Kaibab National Forest had under section 101 of the Sikes Act (16 fire. Further, BMGR’s environmental previously conducted surveys in the U.S.C. 670a), if the Secretary determines staff reviews projects and enforces Snake Gulch area in 2002 and 2003, for in writing that such plan provides a existing regulations and orders that, a section 7 consultation, and those benefit to the species for which critical through their implementation, avoid efforts failed to locate plants (USFS habitat is proposed for designation.’’ and minimize impacts to natural 2004, p. 601). Further investigation of We consult with the military on the resources, including acun˜ a cacti and the source of the 1980s information development and implementation of their habitat. In addition, BMGR’s revealed that the observed occurrence of INRMPs for installations with listed INRMP provides protection to acun˜ a the Fickeisen plains cactus in the Snake species. We analyzed INRMPs cactus habitat by prohibiting both Gulch vicinity was in error. Based on developed by military installations mining and agriculture on their lands. this finding and with three negative located within the range of the critical BMGR’s INRMP specifies periodic survey results, we consider the area at habitat designation for acun˜ a cactus to monitoring of the distribution and Snake Gulch to be unoccupied by the determine if they meet the criteria for abundance of acun˜ a cacti populations Fickeisen plains cactus. We are exemption from critical habitat under on the range. removing the 945-ha (2,335-ac) Snake Based on the above considerations, section 4(a)(3) of the Act. The following Gulch Unit from our proposed critical and in accordance with section areas are Department of Defense lands habitat designation. We also reevaluated 4(a)(3)(B)(i) of the Act, we have with completed, Service-approved the habitat to consider whether determined that conservation efforts INRMPs within the revised proposed unoccupied areas are essential for the identified in the 2007 INRMP for BMGR critical habitat designation. conservation of the species. In the and the revised acun˜ a cactus portion of October 3, 2012, proposed rule, we Approved INRMPs this INRMP developed in 2012 provide determined that within the range of the ˜ Barry M. Goldwater Gunnery Range a benefit to the acuna cactus and its Fickeisen plains cactus there are (BMGR)—Arizona habitat. Therefore, lands subject to the adequate amounts of area occupied by INRMP for BMGR, which includes the the plant to provide for and ensure the The BMGR has an approved INRMP. lands leased from the Department of conservation of the species. We have The U.S. Air Force is committed to Defense by other parties, are exempt determined that, even without the working closely with the Service to from critical habitat designation under habitat previously considered occupied continually refine the existing INRMP as section 4(a)(3) of the Act, and we are not at the Snake Gulch Unit, there are part of the Sikes Act’s INRMP review including approximately 379 ha (935 ac) adequate amounts of area occupied by process. Based on our review of the of habitat in this revised proposed the plant proposed as critical habitat to INRMP for this military installation, and critical habitat designation. provide for and ensure the conservation in accordance with section 4(a)(3)(B)(i) of the species without the designation of Fickeisen Plains Cactus of the Act, we have determined that the any unoccupied areas as critical habitat. portion of the acun˜ a cactus habitat We are revising two areas of proposed Therefore, we are not proposing any within this installation, identified as Fickeisen plains cactus critical habitat: unoccupied areas as critical habitat for meeting the definition of critical habitat, (1) We are removing Unit 4, Snake the Fickeisen plains cactus. is subject to the INRMP, and that Gulch Unit, from proposed critical We also received new information on conservation efforts identified in this habitat; and (2) we are proposing an the available habitat at South Canyon INRMP will provide a benefit to the additional area as critical habitat on the that is located on the eastern boundary acun˜ a cactus. Therefore, lands within Kaibab National Forest. We also of the Kaibab National Forest near the this installation are exempt from critical announce additional areas being Colorado River. This site is different habitat designation under section considered for exclusion from the final from Subunit 5d (South Canyon) (in 4(a)(3)(B)(i) of the Act. We are not designation of Fickeisen plains cactus Unit 5, House Rock Valley) that is on

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BLM lands. This area was known to be the Fickeisen plains cactus and compliance with several statutes and occupied by the plant based on its published a summary of the analysis in executive orders until the information discovery in 2004 (Phillips 2013, pers. the Federal Register (78 FR 18938). For concerning potential economic impacts comm.); however, the location and the acun˜ a cactus, in this document, we of the designation and potential effects number of plants had not been recorded. are removing specific areas from the on landowners and stakeholders became The Kaibab National Forest surveyed proposed designation of critical habitat available in the draft economic analysis. the area in late March 2013, and for the acun˜ a cactus. In the March 28, Because we have made changes to the documented 62 individuals 2013, draft economic analysis, we proposed rules for both species, in this (Hannemann 2013, pers. comm.). We are estimated the total present value document, we reaffirm the information proposing to designate this area (South incremental impacts to be in our proposed rule concerning Canyon Unit) as critical habitat along approximately $60,000 over 20 years Executive Orders (E.O.s) 12866 and the rim of South Canyon. This area following the designation of the acun˜ a 13563 (Regulatory Planning and would constitute an addition of 110 ha cactus critical habitat, assuming a 7 Review), E.O. 12630 (Takings), E.O. (272 ac) to proposed critical habitat for percent discount rate ($65,000 assuming 13132 (Federalism), E.O. 12988 (Civil the Fickeisen plains cactus. a 3 percent discount rate). Since we are Justice Reform), E.O. 13211 (Energy, revising the proposed designation by Supply, Distribution, and Use), the Revised Proposed Unit Descriptions for removing areas and now exempting the Unfunded Mandates Reform Act (2 Fickeisen Plains Cactus Barry M. Goldwater Range from critical U.S.C. 1501 et seq.), the Paperwork Unit 4: South Canyon habitat, the total incremental impacts Reduction Act of 1995 (44 U.S.C. 3501 will be less than $60,000 over 20 years. et seq.), and the National Environmental Proposed Unit 4 is located on the For the Fickeisen plains cactus, we eastern boundary of the North Kaibab Policy Act (42 U.S.C. 4321 et seq.). We are removing the Snake Gulch Unit and also affirm the statement in our March Ranger District of the Kaibab National proposing the South Canyon Unit. In the Forest in Coconino County. It is 28, 2013, publication (78 FR 18938) March 28, 2013, draft economic concerning the President’s bounded by the Colorado River near analysis, we estimated the total present Marble Canyon at House Rock Valley. It memorandum of April 29, 1994, value incremental impacts to be ‘‘Government-to-Government Relations includes land originally designated as approximately $39,000 over 20 years the Grand Canyon National Game with Native American Tribal following the designation of the Governments’’ (59 FR 22951). Because Preserve that is now referred to as the Fickeisen plains cactus critical habitat, Buffalo Ranch Management Area. It we have made changes to the proposed assuming a 7 percent discount rate critical habitat designations for both contains 110 ha (272 ac) of federally ($43,000 assuming a 3 percent discount owned land that is administered by the species, we are amending our required rate). The draft economic analysis determination concerning the Kaibab National Forest. estimated the potential incremental This unit contains at least 62 Regulatory Flexibility Act (5 U.S.C. 601 costs of the Snake Gulch Unit to be et seq.). individuals scattered among six areas approximately $7,000 over the next 20 along the rim of South Canyon Point. It years as a result of the consideration of Regulatory Flexibility Act (5 U.S.C. 601 contains all of the primary constituent adverse modification in section 7 et seq.) elements of the physical or biological consultations. With the addition of the features essential to the conservation of South Canyon Unit, we estimate similar Under the Regulatory Flexibility Act the Fickeisen plains cactus. probable incremental administrative (RFA; 5 U.S.C. 601 et seq.), as amended The primary land uses within costs resulting from consideration of by the Small Business Regulatory proposed Unit 4 include big game adverse modification in section 7 Enforcement Fairness Act of 1996 hunting and recreational activities consultations. Therefore, we estimate (SBREFA; 5 U.S.C. 801 et seq.), throughout the year. The area is very the total present value incremental whenever an agency is required to remote and may receive limited number impacts to be approximately $39,000 publish a notice of rulemaking for any of hikers, hunters, or campers. Under a over 20 years following the designation proposed or final rule, it must prepare memorandum of understanding, the of the Fickeisen plains cactus critical and make available for public comment Kaibab National Forest and the Arizona habitat. a regulatory flexibility analysis that Game and Fish Department commit to As stated earlier, we are soliciting describes the effects of the rule on small managing the natural resources of this data and comments from the public on entities (i.e., small businesses, small area, mainly big game species, to ensure the draft economic analysis, as well as organizations, and small government that sensitive resources are not all aspects of the revisions to the jurisdictions). However, no regulatory impacted and desired conditions are proposed rule described in this flexibility analysis is required if the achieved (USFS 2012, p. 92). Livestock document and our amended required head of the agency certifies the rule will grazing by cattle and mining activities determinations. We may revise the not have a significant economic impact are not authorized within the Buffalo proposed rule or supporting documents on a substantial number of small Ranch Management Area. Special to incorporate or address information entities. The SBREFA amended the RFA management considerations or we receive during the public comment to require Federal agencies to provide a protection may be required within the period. In particular, we may exclude an certification statement of the factual unit to minimize habitat disturbance to area from critical habitat if we basis for certifying that the rule will not the soil and associated native determine that the benefits of excluding have a significant economic impact on vegetation, and prevent invasion of the area outweigh the benefits of a substantial number of small entities. nonnative plants within Fickeisen including the area, provided the Based on our draft economic analysis of plains cactus habitat. exclusion will not result in the the proposed designation, we provide extinction of this species. our analysis for determining whether Draft Economic Analysis the proposed rule would result in a On March 28, 2013, we released the Required Determinations—Amended significant economic impact on a draft economic analysis of the proposed In our March 28, 2013 (78 FR 18938), substantial number of small entities. designations for the acun˜ a cactus and publication, we affirmed our Based on comments we receive, we may

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revise this determination as part of our would be incorporated into the habitat. The designation of critical final rulemaking. consultation process. habitat for an endangered or threatened According to the Small Business In the draft economic analysis, we species only has a regulatory effect Administration, small entities include evaluated the potential economic effects where a Federal action agency is small organizations such as on small entities resulting from involved in a particular action that may independent nonprofit organizations; implementation of conservation actions affect the designated critical habitat. small governmental jurisdictions, related to the proposed designation of Under these circumstances, only the including school boards and city and critical habitat for the acun˜ a cactus and Federal action agency is directly town governments that serve fewer than the Fickeisen plains cactus. As a result regulated by the designation, and, 50,000 residents; and small businesses of changes to the proposed critical therefore, consistent with the Service’s habitat designation, more than 63 (13 CFR 121.201). Small businesses current interpretation of the RFA and percent of land in the proposed include manufacturing and mining recent case law, the Service may limit designation for acun˜ a cactus and less concerns with fewer than 500 its evaluation of the potential impacts to employees, wholesale trade entities than 34 percent of the land in the proposed designation for Fickeisen those identified for Federal action with fewer than 100 employees, retail agencies. Under this interpretation, and service businesses with less than $5 plains cactus is federally owned. Anticipated incremental impacts in there is no requirement under the RFA million in annual sales, general and to evaluate the potential impacts to heavy construction businesses with less proposed critical habitat are primarily related to consultations on livestock entities not directly regulated, such as than $27.5 million in annual business, small businesses. However, Executive special trade contractors doing less than grazing and other Federal land Orders 12866 and 13563 direct Federal $11.5 million in annual business, and management activities. The remaining agencies to assess cost and benefits of agricultural businesses with annual forecast impacts are anticipated to be available regulatory alternatives in sales less than $750,000. To determine conducted for transportation quantitative (to the extent feasible) and if potential economic impacts to these construction and maintenance projects, small entities are significant, we Partners for Fish and Wildlife programs, qualitative terms. Consequently, it is the considered the types of activities that and activities on the Tohono O’odham current practice of the Service to assess might trigger regulatory impacts under or Navajo Nations’ lands. The Arizona to the extent practicable these potential this designation as well as types of Department of Transportation (ADOT) impacts, if sufficient data are available, and Tribes are not considered small project modifications that may result. In whether or not this analysis is believed entities. Therefore, of the remaining general, the term ‘‘significant economic by the Service to be strictly required by activities affected by the proposed impact’’ is meant to apply to a typical the RFA. In other words, while the critical habitat designations for the small business firm’s business effects analysis required under the RFA cacti, only one is expected to incur costs operations. is limited to entities directly regulated to small entities: uranium mining. One by the rulemaking, the effects analysis To determine if the proposed consultation is projected for the EZ designation of critical habitat for the under the Act, consistent with the E.O. uranium mine. This one consultation regulatory analysis requirements, can acun˜ a cactus and the Fickeisen plains will result in impacts to Energy Fuels take into consideration impacts to both cactus would affect a substantial Inc. (operators of the EZ Mine) of directly and indirectly impacted number of small entities, we considered approximately $900 on a present value entities, where practicable and the number of small entities affected basis, or approximately $80 on an within particular types of economic annualized basis, which constitutes an reasonable. activities, such as uranium mining, impact of less than one-tenth of a In summary, we have considered livestock grazing, and transportation percent of annual revenues. Of the whether the revised proposed construction and maintenance projects. activities affected by the proposed designation would result in a significant In order to determine whether it is designation for the acun˜ a cactus and the economic impact on a substantial appropriate for our agency to certify that Fickeisen plains cactus, none is number of small entities. Information the proposed rule would not have a expected to incur incremental costs to for this analysis was gathered from the significant economic impact on a third-party small entities. The forecast Small Business Administration, substantial number of small entities, we consultations either do not include third stakeholders, and the Service. We considered each industry or category parties (programmatic consultations, conclude that future consultations are individually. In estimating the numbers intra-Service consultations, and not likely to involve a third party or the of small entities potentially affected, we consultations with another Federal third parties are not considered small also considered whether their activities agency) or the third parties are not entities. For the above reasons and have any Federal involvement. Critical considered small entities (consultations based on currently available habitat designation will not affect with the ADOT and the Tribes). Please information, we certify that, if activities that do not have any Federal refer to the Appendix A of the draft promulgated, the proposed critical involvement; designation of critical economic analysis of the proposed habitat designations would not have a habitat only affects activities conducted, critical habitat designation for a more significant economic impact on a funded, permitted, or authorized by detailed discussion of potential Federal agencies. In areas where the substantial number of small business economic impacts. entities. Therefore, an initial regulatory acun˜ a cactus or the Fickeisen plains The Service’s current understanding flexibility analysis is not required. cactus are present, Federal agencies will of recent case law is that Federal be required to consult with us under agencies are only required to evaluate Authors section 7 of the Act on activities they the potential impacts of rulemaking on fund, permit, or implement that may those entities directly regulated by the The primary authors of this notice are affect the species. If we finalize the rulemaking; therefore, they are not the staff members of the Arizona proposed critical habitat designation, required to evaluate the potential Ecological Services Field Office, consultations to avoid the destruction or impacts to those entities not directly Southwest Region, U.S. Fish and adverse modification of critical habitat regulated by the designation of critical Wildlife Service.

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List of Subjects in 50 CFR Part 17 PART 17—ENDANGERED AND fickeiseniae (Fickeisen plains cactus),’’ THREATENED WILDLIFE AND PLANTS at 77 FR 60509, by revising paragraphs Endangered and threatened species, (a)(5), (a)(9), (a)(10), and (a)(11). Exports, Imports, Reporting and ■ 1. The authority citation for part 17 recordkeeping requirements, continues to read as follows: The revisions read as follows: Transportation. Authority: 16 U.S.C. 1361–1407; 1531– § 17.96 Critical habitat—plants. Proposed Regulation Promulgation 1544; and 4201–4245, unless otherwise noted. (a) Flowering plants. Accordingly, we propose to further ■ 2. Amend § 17.96(a) as follows: * * * * * amend part 17, subchapter B of chapter ■ a. In the entry proposed for Family Cactaceae: Echinomastus I, title 50 of the Code of Federal ‘‘Echinomastus erectocentrus var. erectocentrus var. acunensis (acun˜ a Regulations, as proposed to be amended acunensis (acun˜ a cactus)’’ at 77 FR cactus) 60509, by revising paragraphs (a)(5), on October 3, 2012, at 77 FR 60509, as * * * * * set forth below: (a)(6), (a)(7), (a)(9), and (a)(10); and ■ b. In the entry proposed for (5) Index map follows: ‘‘Pediocactus peeblesianus var. BILLING CODE 4310–55–P

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(6) Unit 1: Organ Pipe Cactus National Monument, Pima County, AZ. Map of Unit 1 follows:

Location of Critical Habitat for the Acuna Cactus - Unit 1

UNIT 1 : Organ Pipe Cactus NM

, r,/ f~-' Critical Habitat Rivers

KmO 1 2 3 Major Roads County Boundaries

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(7) Unit 2: Ajo, Pima County, AZ. Map of Units 2 and 3 follows:

Location of Critical Habitat for the Acuna Cactus - Units 2 and 3

UNIT 3 : Sauceda UNIT 2 : Ajo Mountains

_.}OWnsites Subunit "\\ ~ Little Ajo Mountains ··Subunit

Critical Habitat

Mi 0 2 4 6 Rivers I I I I ~ Km 0 2 4 6 Major Roads County Boundaries

* * * * *

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(9) Unit 4: Sand Tank Mountains, Maricopa County, AZ. Map of Unit 4 follows:

UNIT 4 : Sand Tank Mountains

Critical Habitat

Mi 0 2 4 6 Rivers I I I ~ Km 0 2 4 6 Major Roads County Boundaries

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(10) Unit 5: Mineral Mountain, Pinal County, AZ. Map of Units 5 and 6 follows:

Location of Critical Habitat for the Acuna Cactus - Units 5 and 6

UNIT 5 : Mineral Mountain

UNIT 6 : Box 0 Wash

Subunit A

Subunit B

Critical Habitat

Mi 0 2 4 6 Rivers I I I I I Major Roads ~ Krn 0 2 4 6 County Boundaries

* * * * *

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Family Cactaceae: Pediocactus (5) Note: Index map follows: peeblesianus var. fickeiseniae (Fickeisen plains cactus) * * * * *

• , • Hurricane Sunshine• Cliffs Ridge • . House, Rock'~"t· • Valley ... i.· •. "', /~ Tiger / South • Wash Canyon

" Cataract l3l& Little c~orado Canyon '\, River Overloo~' . G~ay" • Mountain

_ Critical Habitat

Mi 01--,-6'-,--,-12,---,18 Rivers I I I I I ~ Km 0 6 12 18 Major Roads County Boundaries

* * * * *

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(9) Unit 4: South Canyon Unit, Coconino County, AZ. Map of Units 4, 5, and 6 follows:

Location of Critical Habitat for the Fickeisen Plains Cactus - House Rock Valley, Tiger Wash and South Canyon Units

Beanhole Well Subunit

It North Canyon House Rock ~ Wash Subunit Valley Unit -~ Tiger Wash 1 ~ Marble Canyon' Subunit '" Subunit Wash 2 South Canyon ~~~; Subunit (BLM)'"

Tiger Wash South Canyon I Unit I Unit / Shinumo Wash Subun

Critical Habitat Mi G 1.5 3 4.5 I I I I Rivers Km 0 2 4 S ~ Major Roads

(10) Unit 5: House Rock Valley Unit, provided at paragraph (a)(9) of this Dated: June 26, 2013. Coconino County AZ. Map of Unit 5 is entry. Rachel Jacobson, provided at paragraph (a)(9) of this * * * * * Principal Deputy Assistant Secretary for Fish entry. and Wildlife and Parks. (11) Unit 6: Tiger Wash Unit, [FR Doc. 2013–16240 Filed 7–5–13; 8:45 am] Coconino County AZ. Map of Unit 6 is BILLING CODE 4310–55–C

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DEPARTMENT OF COMMERCE Comments must be received no later Regulatory Impact Review (RIR), and the than July 31, 2013. Initial Regulatory Flexibility Analysis National Oceanic and Atmospheric ADDRESSES: You may submit comments (IRFA) prepared for this action are Administration on this document, identified by NOAA– available on the Federal e-Rulemaking NMFS–2012–0092, by any of the Portal www.regulations.gov. 50 CFR Part 600 following methods: FOR FURTHER INFORMATION CONTACT: Erin • Electronic Submission: Submit all [Docket No. 111014628–3329–01] Wilkinson, 301–427–8561; electronic public comments via the [email protected]. RIN 0648–BB54 Federal e-Rulemaking Portal www.regulations.gov. To submit SUPPLEMENTARY INFORMATION: On May 2, Magnuson-Stevens Act Provisions; comments via the e-Rulemaking Portal, 2013, NMFS published a proposed rule Implementation of the Shark first click the ‘‘submit a comment’’ icon, in the Federal Register (78 FR 25685) to Conservation Act of 2010; Extension of then enter NOAA–NMFS–2012–0092 in implement provisions of the SCA that Comment Period the keyword search. Locate the prohibit any person from removing any document you wish to comment on of the fins of a shark at sea, possessing AGENCY: National Marine Fisheries from the resulting list and click on the shark fins on board a fishing vessel Service (NMFS), National Oceanic and ‘‘Submit a Comment’’ icon on the right unless they are naturally attached to the Atmospheric Administration (NOAA), of that line. corresponding carcass, transferring or Commerce. • Mail: Submit written comments to receiving fins from one vessel to another ACTION: Proposed rule; extension of Erin Wilkinson, National Marine at sea unless the fins are naturally comment period. Fisheries Service (SF3), NOAA; 1315 attached to the corresponding carcass, East-West Highway, Silver Spring, MD landing shark fins unless they are SUMMARY: NMFS published a proposed 20910. naturally attached to the corresponding rule on May 2, 2013, to implement • Fax 301–713–1193; Attn: Erin carcass, or landing shark carcasses provisions of the Shark Conservation Wilkinson without their fins naturally attached. Act of 2010 (SCA) that prohibit any Instructions: Comments must be NMFS proposes this action to amend person from removing any of the fins of submitted by one of the above methods existing regulations and make them a shark at sea, possessing shark fins on to ensure that the comments are consistent with the SCA. board a fishing vessel unless they are received, documented, and considered naturally attached to the corresponding by NMFS. Comments sent by any other Public Comment Extension carcass, transferring or receiving fins method, to any other address or The public comment period for the from one vessel to another at sea unless individual, or received after the end of the fins are naturally attached to the proposed rule ends on July 8, 2013. the comment period, may not be NMFS is extending the public comment corresponding carcass, landing shark considered. All comments received are fins unless they are naturally attached to period for an additional 23 days until a part of the public record and will July 31, 2013. The extension of the the corresponding carcass, or landing generally be posted for public viewing shark carcasses without their fins comment period ensures that NMFS on www.regulations.gov without change. provides adequate time for stakeholders naturally attached. NMFS proposes this All personal identifying information action to amend existing regulations and and members of the public to comment (e.g., name, address, etc.) submitted on the proposed rule to implement the make them consistent with the SCA. voluntarily by the sender will be The public comment period for the provisions of the Shark Conservation publicly accessible. Do not submit Act of 2010. proposed rule was previously extended, confidential business information, or and ends on July 8, 2013. NMFS has otherwise sensitive or protected Authority: 16 U.S.C. 1801 et seq. decided to further extend the public information. NMFS will accept Dated: July 2, 2013. comment period for 23 days, until July anonymous comments (enter ‘‘N/A’’ in Alan D. Risenhoover, 31, 2013 to provide additional time for the required fields if you wish to remain Director, Office of Sustainable Fisheries, stakeholders and other members of the anonymous). Attachments to electronic performing the functions and duties of the public to submit comments. comments will be accepted in Microsoft Deputy Assistant Administrator for DATES: The public comment period for Word or Excel, WordPerfect, or Adobe Regulatory Programs, National Marine the proposed rule published at 78 FR PDF file formats only. Fisheries Service. 25685, May 2, 2013, is extended from Electronic copies of the [FR Doc. 2013–16298 Filed 7–5–13; 8:45 am] July 8, 2013, until July 31, 2013. Environmental Assessment (EA), the BILLING CODE 3510–22–P

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Notices Federal Register Vol. 78, No. 130

Monday, July 8, 2013

This section of the FEDERAL REGISTER potential persons who are to respond to Total Burden Hours: 6,008. contains documents other than rules or the collection of information that such Charlene Parker, proposed rules that are applicable to the persons are not required to respond to Departmental Information Collection public. Notices of hearings and investigations, the collection of information unless it committee meetings, agency decisions and Clearance Officer. displays a currently valid OMB control rulings, delegations of authority, filing of [FR Doc. 2013–16206 Filed 7–5–13; 8:45 am] number. petitions and applications and agency BILLING CODE 3410–20–P statements of organization and functions are examples of documents appearing in this National Agricultural Statistics Service section. Title: Census of Aquaculture. DEPARTMENT OF AGRICULTURE OMB Control Number: 0535–0237. Animal and Plant Health Inspection DEPARTMENT OF AGRICULTURE Summary of Collection: The primary Service objective of the 2013 Census of Submission for OMB Review; [Docket No. APHIS–2013–0052] Aquaculture is to obtain a Comment Request comprehensive and detailed picture of Notice of Availability of a Pest Risk July 1, 2013. the aquaculture sector of the economy. Analysis for the Importation of Swiss The Department of Agriculture has Authority to administer the census of Chard From Colombia Into the submitted the following information aquaculture is covered by Public Law Continental United States collection requirement(s) to OMB for 105–113, the Census of Agriculture Act review and clearance under the of 1997, and U.S. Code Title 7. The AGENCY: Animal and Plant Health Paperwork Reduction Act of 1995, census of aquaculture will be the only Inspection Service, USDA. Public Law 104–13. Comments source of data comparable and ACTION: Notice of availability. regarding (a) Whether the collection of consistent at the national and State SUMMARY: We are advising the public information is necessary for the proper levels. It will cover all operations, performance of the functions of the that we have prepared a pest risk commercial or noncommercial, for analysis that evaluates the risks agency, including whether the which $1,000 or more of aquaculture information will have practical utility; associated with the importation of Swiss products were sold or normally would (b) the accuracy of the agency’s estimate chard from Colombia into the have been sold during the census year. of burden including the validity of the continental United States. Based on that methodology and assumptions used; (c) The census of aquaculture is one of a analysis, we have concluded that the ways to enhance the quality, utility and series of special study programs that application of one or more designated clarity of the information to be comprise the follow-ons to the census of phytosanitary measures will be collected; (d) ways to minimize the agriculture and is designed to provide sufficient to mitigate the risks of burden of the collection of information more detailed statistics on the introducing or disseminating plant pests on those who are to respond, including aquaculture industry. or noxious weeds via the importation of through the use of appropriate Need and Use of the Information: The Swiss chard from Colombia. We are making the pest risk analysis available automated, electronic, mechanical or National Agricultural Statistics Service to the public for review and comment. other technological collection will collect data to provide a DATES: techniques or other forms of information comprehensive inventory on the We will consider all comments that we receive on or before September technology. number of operations, freshwater and Comments regarding this information 6, 2013. saltwater acreage used for aquaculture collection received by August 7, 2013 production, water sources used for ADDRESSES: You may submit comments will be considered. Written comments production, methods of production, by either of the following methods: should be addressed to: Desk Officer for • Federal eRulemaking Portal: Go to total production, sales outlets, value of Agriculture, Office of Information and http://www.regulations.gov/#!document Regulatory Affairs, Office of aquaculture products sold and sales by Detail;D=APHIS-2013-0052-0001. Management and Budget (OMB), New aquaculture species, products • Postal Mail/Commercial Delivery: Executive Office Building, 725—17th distributed for recreation, restoration or Send your comment to Docket No. Street NW., Washington, DC 20503. conservation by species. These data will APHIS–2013–0052, Regulatory Analysis Commenters are encouraged to submit provide information on the aquaculture and Development, PPD, APHIS, Station their comments to OMB via email to: industry necessary for farmers, 3A–03.8, 4700 River Road Unit 118, [email protected] or fax government and various groups, Riverdale, MD 20737–1238. (202) 395–5806 and to Departmental concerned with the aquaculture Supporting documents and any Clearance Office, USDA, OCIO, Mail industry to evaluate policy and comments we receive on this docket Stop 7602, Washington, DC 20250– programs, make marketing decisions may be viewed at http:// 7602. Copies of the submission(s) may and determine the economic impact on www.regulations.gov/#!docket be obtained by calling (202) 720–8681. the economy. Detail;D=APHIS-2013-0052 or in our An agency may not conduct or Description of Respondents: Farms. reading room, which is located in Room sponsor a collection of information 1141 of the USDA South Building, 14th unless the collection of information Number of Respondents: 8,000. Street and Independence Avenue SW., displays a currently valid OMB control Frequency of Responses: Reporting: Washington, DC. Normal reading room number and the agency informs One-time (Every 5-years). hours are 8 a.m. to 4:30 p.m., Monday

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through Friday, except holidays. To be found free of Copitarsia incommoda and new challenge area. It is open to the sure someone is there to help you, Liriomyza huidobrensis. public and the focus of the listening please call (202) 799–7039 before Therefore, in accordance with session is to gather stakeholder input coming. § 319.56–4(c), we are announcing the that will be used in developing the availability of our PRA and RMD for Request for Applications (RFA) in FY FOR FURTHER INFORMATION CONTACT: Ms. public review and comment. The PRA 2014. NIFA is particularly interested in Dorothy Wayson, Senior Regulatory and RMD may be viewed on the input on how best to achieve the most Policy Specialist, Plant Health Regulations.gov Web site or in our impact, within budget constraints, in Programs, PPQ, APHIS, 4700 River Road reading room (see ADDRESSES above for the early years of this new challenge Unit 133, Riverdale, MD 20737–1231; instructions for accessing area. (301) 851–2036. Regulations.gov and information on the All comments must be received by SUPPLEMENTARY INFORMATION: location and hours of the reading room). close of business on July 30, 2013, to be Background You may also request paper copies of considered in the initial drafting of the the PRA and RMD by calling or writing FY 2014 AFRI Water program RFA. Under the regulations in ‘‘Subpart— to the person listed under FOR FURTHER DATES: The web-based listening session Fruits and Vegetables’’ (7 CFR 319.56– INFORMATION CONTACT. Please refer to the will be held on Tuesday, July 16, 2013, 1 through 319.56–58), the Animal and subject of the analysis that you wish to from 1:00 p.m. to 3:00 p.m., Eastern Plant Health Inspection Service (APHIS) review when requesting copies. Standard Time (EST). All written prohibits or restricts the importation of After reviewing any comments we comments must be received by 5 p.m. fruits and vegetables into the United receive, we will announce our decision EST on Tuesday, July 30, 2013. States from certain parts of the world to regarding the import status of Swiss ADDRESSES: The web-based listening prevent the introduction and chard from Colombia in a subsequent session will be hosted using Adobe dissemination of plant pests that are notice. If the overall conclusions of the Connect. On July 16th, please access the new to or not widely distributed within analysis and the Administrator’s following Web site, http://nifa- the United States. determination of risk remain unchanged connect.nifa.usda.gov/afri-water/. In Section 319.56–4 contains a following our consideration of the addition, audio conference call performance-based process for comments, then we will authorize the capabilities can be accessed at 1–888– approving the importation of importation of Swiss chard from 858–2144, participant code 1512861#. commodities that, based on the findings Colombia into the continental United You may submit written comments, of a pest risk analysis, can be safely States subject to the requirements identified by NIFA–2013–0010, by any imported subject to one or more of the specified in the RMD. of the following methods: designated phytosanitary measures Authority: 7 U.S.C. 450, 7701–7772, and Federal eRulemaking Portal: http:// listed in paragraph (b) of that section. 7781–7786; 21 U.S.C. 136 and 136a; 7 CFR www.regulations.gov. Follow the APHIS received a request from the 2.22, 2.80, and 371.3. instructions for submitting comments. Government of Colombia to allow the Done in Washington, DC, this 1st day of Email: [email protected]. Include importation of Swiss chard (Beta July 2013. NIFA–2013–0010 in the subject line of vulgaris ssp. cicla (L.) Koch) into the Kevin Shea, the message. Fax: 202–401–1782. United States. Currently, Swiss chard is Administrator, Animal and Plant Health not authorized for entry from Colombia. Inspection Service. Mail: Paper, disk or CD–ROM We completed a pest risk assessment submissions should be submitted to [FR Doc. 2013–16207 Filed 7–5–13; 8:45 am] (PRA) to identify pests of quarantine AFRI; Institute of Food Production and BILLING CODE 3410–34–P significance that could follow the Sustainability (IFPS), National Institute pathway of importation if such imports of Food and Agriculture, U.S. were to be allowed. Based on the PRA, DEPARTMENT OF AGRICULTURE Department of Agriculture, STOP 2240, we then completed a risk management 1400 Independence Avenue SW., document (RMD) to identify National Institute of Food and Washington, DC 20250–2220. phytosanitary measures that could be Agriculture Hand Delivery/Courier: AFRI, IFPS, applied to mitigate the risks of National Institute of Food and introducing or disseminating the Solicitation of Input From Stakeholders Agriculture, U.S. Department of identified pests via the importation of Regarding the New Water Challenge Agriculture, Room 3444, Waterfront Swiss chard from Colombia. We have Area Within the Agriculture and Food Centre, 800 9th Street SW., Washington, concluded that Swiss chard can safely Research Initiative DC 20024. be imported into the continental United Instructions: All submissions received AGENCY: National Institute of Food and States from Colombia using one or more must include the agency name (NIFA) Agriculture, USDA. of the five designated phytosanitary and reference to NIFA–2013–0010. All measures listed in § 319.56–4(b). These ACTION: Notice of web-based listening comments received will be posted to measures are that: session and request for stakeholder http://www.regulations.gov, including input. • Swiss chard may be imported into any personal information provided. the continental United States in SUMMARY: As part of the National FOR FURTHER INFORMATION CONTACT: Ms. commercial consignments only; Institute of Food and Agriculture’s Terri Joya, (202) 401–1282 (phone), • The Swiss chard is subject to (NIFA) strategy to successfully (202) 401–1782 (fax), or inspection at the port of entry; and implement the Agriculture and Food [email protected]. • The Swiss chard must be Research Initiative (AFRI), NIFA intends SUPPLEMENTARY INFORMATION: accompanied by a phytosanitary to initiate a new challenge area within Additional Web-based Listening Session certificate issued by the national plant AFRI in Fiscal Year (FY) 2014 to and Comment Procedures—Persons protection organization of Colombia address water issues. NIFA will be wishing to present oral comments with an additional declaration stating holding a web-based listening session in during the web-based listening session that the consignment was inspected and order to solicit stakeholder input on this on Tuesday, July 16, 2013 are requested

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to pre-register by contacting Ms. Terri agricultural landscapes with focus on • Discussion re: Proposed Findings and Joya at (202) 401–1282, by fax at (202) nitrogen and phosphorous; and (3) Recommendations for the 2013 401–1782 or by email to tjoya@nifa. Reducing impacts of chemicals of Statutory Enforcement Report usda.gov. Participants may reserve one emerging concern and the presence and • Status Update on the Sex Trafficking: 5-minute comment period. More time movement of waterborne pathogens in A Gender-Based Violation of Civil may be available, depending on the the landscape. Information regarding the Rights Report number of people wishing to make a AFRI program can be found at http:// • Status Update on the Federal Civil presentation. Reservations will be www.nifa.usda.gov/funding/afri/ Rights Engagement with Arab and confirmed on a first-come, first-served afri.html. AFRI grants are authorized for Muslim American Communities Post basis. All other participants may FYs 2009–2013, of which the Secretary 9/11 Report provide comments during the web- may retain no more than 4 percent for III. Management and Operations based listening session if time permits, administrative costs. Grants will be or submit written comments. All written awarded on the basis of merit, quality, • Staff Director’s report comments must be received by close of and relevance and may have terms of up • Acting Chief of Regional Programs’ business July 30, 2013, to be considered. to 10 years. Subject to the availability of report All comments and the official transcript appropriations to carry out the research of the meeting, when they become IV. Approval of State Advisory component of the AFRI program, the Committee Appointment Slates available, may be reviewed on the NIFA Secretary may award grants to State Web page, http://www.nifa.usda.gov/ agricultural experiment stations; • Kentucky funding/afri/afri_listen_session.html for colleges and universities; university • Maine six months. Additional AFRI Program- research foundations; other research • Minnesota specific web-based listening sessions institutions and organizations; Federal • New Hampshire may occur after July 16, 2013 to obtain agencies; national laboratories; private • New York public comments for use in developing organizations or corporations; V. Adjourn Meeting other AFRI RFAs. Dates and times will individuals; or any group consisting of be posted to the following URL: http:// two or more of the aforementioned FOR FURTHER INFORMATION CONTACT www.nifa.usda.gov/funding/afri/ entities. The integrated component of PERSON: Lenore Ostrowsky, Acting _ _ afri faq webinars.html. the AFRI program, the Secretary may Chief, Public Affairs Unit (202) 376– Background and Purpose awards grants to colleges and 8591. universities; 1994 Land-Grant Hearing-impaired persons who will Significant variations from the Institutions; and Hispanic-serving attend the meeting and require the historical rate of water supply and agricultural colleges and universities. services of a sign language interpreter availability are projected to have major should contact Pamela Dunston at (202) impacts on agricultural, forest, and Implementation Plans 376–8105 or at [email protected] range production systems. The new NIFA plans to consider stakeholder at least seven business days before the water program area within AFRI will be input received from this web-based scheduled date of the meeting. coordinated with, and leverage, efforts listening session as well as other written in other AFRI challenge areas, such as Dated: July 3, 2013. comments in developing the FY 2014 TinaLouise Martin, the Food Security, Food Safety, Climate solicitations for this program. Variability and Change and Sustainable Director of Management/Human Resources. Bioenergy challenge areas, and help Done at Washington, DC, this 26th day of [FR Doc. 2013–16454 Filed 7–3–13; 4:15 pm] June, 2013. solve critical water resource problems in BILLING CODE 6335–01–P rural and agricultural watersheds across Sonny Ramaswamy, the United States. The program will Director, National Institute of Food and focus on developing solutions for water Agriculture. management that link food, water, [FR Doc. 2013–16204 Filed 7–5–13; 8:45 am] DEPARTMENT OF COMMERCE climate change, energy, and BILLING CODE 3410–22–P Bureau of Economic Analysis environmental issues. Funding will be used to develop and transfer Proposed Information Collection; management practices, technologies, COMMISSION ON CIVIL RIGHTS Comment Request; Direct Investment and tools for farmers, ranchers, forest Surveys: BE–577, Quarterly Survey of owners and managers, and citizens to Sunshine Act Meetings U.S. Direct Investment Abroad: improve water resource quantity and Transactions of U.S. Reporter With quality. NIFA’s approach will link AGENCY: United States Commission on Foreign Affiliate social, economic, and behavioral Civil Rights sciences with traditional biophysical ACTION: Revised Notice of Business AGENCY: Bureau of Economic Analysis, sciences and engineering to address Meeting. Commerce. watershed- or aquifer-scale problems. ACTION: Notice. NIFA has tentatively identified three DATE AND TIME: Friday, July 12, 2013; critical topics that warrant immediate, 9:30 a.m. EST SUMMARY: The Department of comprehensive, and coordinated efforts Commerce, as part of its continuing PLACE: 1331 Pennsylvania Ave. NW., in research, education, and extension. effort to reduce paperwork and Suite 1150, Washington, DC 20425 These three topics are: (1) Ensuring respondent burden, invites the general agricultural water security, addressing MEETING AGENDA public and other Federal agencies to surface water, groundwater and I. Approval of Agenda comment on proposed and/or reclaimed water needed to produce a continuing information collections, as wide array of agricultural goods and II. Program Planning required by the Paperwork Reduction services now and into the future; (2) • Approval of Final Draft of 2013 Act of 1995, Public Law 104–13 (44 Improving nutrient management in Statutory Enforcement Report U.S.C. 3506(c)(2)(A)).

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DATES: Written comments must be fiscal year: (1) Total assets, (2) annual they also will become a matter of public submitted on or before September 6, sales or gross operating revenues record. 2013. excluding sales taxes, or (3) net income Dated: July 2, 2013. ADDRESSES: Direct all written comments after provision for foreign income taxes. Glenna Mickelson, to Jennifer Jessup, Departmental As an alternative to filing paper forms, BEA offers an electronic filing Management Analyst, Office of Chief Paperwork Clearance Officer, Information Officer. Department of Commerce, Room 6616, option, the eFile system, for use in reporting on Form BE–577. For more [FR Doc. 2013–16265 Filed 7–5–13; 8:45 am] 14th and Constitution Avenue NW., BILLING CODE 3510–06–P Washington, DC 20230, or via email at information about eFile, go to [email protected]. www.bea.gov/efile. Potential respondents are those U.S. FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF COMMERCE parents that reported owning foreign Requests for additional information or business enterprises in the 2009 copies of the information collection Foreign-Trade Zones Board benchmark survey of U.S. direct instrument and instructions should be investment abroad, along with entities [B–72–2013] directed to Sarahelen Thompson, Acting that subsequently entered the direct Chief, Direct Investment Division (BE– investment universe. The data collected Foreign-Trade Zone 18—San Jose, 50), Bureau of Economic Analysis, U.S. are sample data. Universe estimates are California; Application for Department of Commerce, Washington, developed from the reported sample Reorganization (Expansion of Service DC 20230; phone: (202) 606–9660; fax: data. Area) Under Alternative Site (202) 606–5318; or via email at Framework [email protected]. III. Data An application has been submitted to SUPPLEMENTARY INFORMATION: OMB Control Number: 0608–0004. the Foreign-Trade Zones (FTZ) Board by Form Number: BE–577. I. Abstract the City of San Jose, grantee of Foreign- Type of Review: Regular submission. The Quarterly Survey of U.S. Direct Affected Public: Businesses or other Trade Zone 18, requesting authority to Investment Abroad—Transactions of for-profit organizations. reorganize the zone to expand its service U.S. Reporter with Foreign Affiliate Estimated Number of Respondents: area under the alternative site (Form BE–577), obtains quarterly data 1,900 U.S. parents filing for 15,000 framework (ASF) adopted by the FTZ on transactions and positions between foreign affiliates per quarter; 60,000 Board (15 CFR 400.2(c)). The ASF is an U.S.-owned foreign business enterprises annually. option for grantees for the establishment and their U.S. parents. The survey is a Estimated Time per Response: 1 hour or reorganization of zones and can sample survey that covers all foreign is the average, but may vary permit significantly greater flexibility in affiliates above a size-exemption level. considerably among respondents the designation of new subzones or The sample data are used to derive because of differences in company ‘‘usage-driven’’ FTZ sites for operators/ universe estimates in nonbenchmark structure and complexity. users located within a grantee’s ‘‘service years from similar data reported in the Estimated Total Annual Burden area’’ in the context of the FTZ Board’s BE–10, Benchmark Survey of U.S. Direct Hours: 60,000. standard 2,000-acre activation limit for Investment Abroad, which is conducted Estimated Total Annual Cost to a zone. The application was submitted every five years. The data are used in Public: $0. pursuant to the Foreign-Trade Zones the preparation of the U.S. international Respondent’s Obligation: Mandatory. Act, as amended (19 U.S.C. 81a–81u), transactions accounts, the input-output Legal Authority: International and the regulations of the FTZ Board (15 accounts, the national income and Investment and Trade in Services CFR part 400). It was formally docketed product accounts, and the international Survey Act (Pub. L. 94–472, 22 U.S.C. on July 1, 2013. investment position of the United 3101–3108, as amended by P.L. 98–573 FTZ 18 was approved by the Board on States. The data are needed to measure and Pub. L. 101–533). November 27, 1974 (Board Order 103, 39 FR 42031, 12/04/1974) and the size and economic significance of IV. Request for Comments direct investment abroad, measure reorganized under the ASF on July 23, changes in such investment, and assess Comments are invited on: (a) Whether 2012 (Board Order 1842, 77 FR 45334, its impact on the U.S. and foreign the proposed collection of information 07/31/2012). The zone project currently economies. is necessary for the proper performance has a service area that includes all of No changes to the survey forms or of the functions of the Agency, San Jose, California. reporting requirements are proposed. including whether the information will The applicant is now requesting have practical utility; (b) the accuracy of authority to expand the service area of II. Method of Collection the Agency’s estimate of the burden the zone to include all of Santa Clara Survey forms are sent to potential (including hours and cost) of the County, the cities of Santa Cruz and respondents each quarter; responses are proposed collection of information; (c) Scotts Valley in Santa Cruz County and due within 30 days after the close of ways to enhance the quality, utility, and the cities of Fremont, Hayward, Newark each fiscal quarter, except for the final clarity of the information to be and Union in City in Alameda County, quarter of the fiscal year, when reports collected; and (d) ways to minimize the California, as described in the should be filed within 45 days. A report burden of the collection of information application. If approved, the grantee must be filed for every foreign business on respondents, including through the would be able to serve sites throughout enterprise whose voting stock (or the use of automated collection techniques the expanded service area based on equivalent) is owned 10 percent or more or other forms of information companies’ needs for FTZ designation. by a U.S. business enterprise and for technology. The proposed expanded service area is which any one of the following three Comments submitted in response to adjacent to the San Jose U.S. Customs items was greater than $60 million this notice will be summarized and/or and Border Protection Ports of Entry. (positive or negative) at the end of, or included in the request for OMB In accordance with the FTZ Board’s for, the foreign business enterprise’s approval of this information collection; regulations, Christopher Kemp of the

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FTZ Staff is designated examiner to would be subject to the existing authorized, subject to the FTZ Act and evaluate and analyze the facts and activation limit of FTZ 92. the FTZ Board’s regulations, including information presented in the application In accordance with the Board’s Section 400.14, and further subject to a and case record and to report findings regulations, Camille Evans of the FTZ restriction requiring that all foreign and recommendations to the FTZ Board. Staff is designated examiner to review inputs included in textile categories Public comment is invited from the application and make (classified within HTSUS 4202.92, interested parties. Submissions shall be recommendations to the Executive 6101.20, 6101.30, 6201.93, 6201.99, addressed to the FTZ Board’s Executive Secretary. 6202.93, 6202.99, 6216.00, 6217.10, and Secretary at the address below. The Public comment is invited from 6307.90) used in the production activity closing period for their receipt is interested parties. Submissions shall be must be admitted to the zone in September 6, 2013. Rebuttal comments addressed to the Board’s Executive privileged foreign status (19 CFR in response to material submitted Secretary at the address below. The 146.41) or domestic (duty-paid) status during the foregoing period may be closing period for their receipt is August (19 CFR 146.43). 19, 2013. Rebuttal comments in submitted during the subsequent 15-day Dated: June 28, 2013. period to September 23, 2013. response to material submitted during the foregoing period may be submitted Elizabeth Whiteman, A copy of the application will be Acting Executive Secretary. available for public inspection at the during the subsequent 15-day period to [FR Doc. 2013–16351 Filed 7–5–13; 8:45 am] Office of the Executive Secretary, September 3, 2013. Foreign-Trade Zones Board, Room A copy of the application will be BILLING CODE 3510–DS–P 21013, U.S. Department of Commerce, available for public inspection at the Office of the Executive Secretary, 1401 Constitution Avenue NW., DEPARTMENT OF COMMERCE Washington, DC 20230–0002, and in the Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, ‘‘Reading Room’’ section of the FTZ International Trade Administration Board’s Web site, which is accessible 1401 Constitution Avenue NW., via www.trade.gov/ftz. For further Washington, DC 20230–0002, and in the [A–570–601] information, contact Christopher Kemp ‘‘Reading Room’’ section of the Board’s Tapered Roller Bearings and Parts at [email protected] or (202) Web site, which is accessible via Thereof, Finished and Unfinished, 482–0862. www.trade.gov/ftz. FOR FURTHER INFORMATION CONTACT: From the People’s Republic of China: Dated: July 1, 2013. Camille Evans at Preliminary Results of Antidumping Elizabeth Whiteman, [email protected] or (202) 482– Duty Administrative Review and New Acting Executive Secretary. 2350. Shipper Reviews; 2011–2012 [FR Doc. 2013–16350 Filed 7–5–13; 8:45 am] Dated: July 1, 2013. AGENCY: Import Administration, BILLING CODE 3510–DS–P Elizabeth Whiteman, International Trade Administration, Acting Executive Secretary. Department of Commerce. DEPARTMENT OF COMMERCE [FR Doc. 2013–16349 Filed 7–5–13; 8:45 am] SUMMARY: The Department of Commerce BILLING CODE 3510–DS–P (Department) is conducting an Foreign-Trade Zones Board administrative review and two new shipper reviews (NSRs) of the [S–106–2013] DEPARTMENT OF COMMERCE antidumping duty order on tapered roller bearings and parts thereof, Foreign-Trade Zone 92—Gulfport, Foreign-Trade Zones Board finished and unfinished (TRBs), from Mississippi; Application for Subzone; [B–22–2013] the People’s Republic of China (PRC). Channel Control Merchants, LLC, The administrative review covers six Hattiesburg, Mississippi Foreign-Trade Zone 262—Southaven exporters of the subject merchandise,1 (Desoto County), Mississippi; of which the Department selected one An application has been submitted to Authorization of Production Activity; mandatory respondent for individual the Foreign-Trade Zones Board (the Milwaukee Electric Tool Corporation examination (i.e., Changshan Peer Board) by the Mississippi Coast Foreign (Power and Hand Tools); Olive Branch, Bearing Co. Ltd. (CPZ/SKF)). The NSRs Trade Zone, Inc., grantee of FTZ 92, Greenwood, and Jackson, Mississippi cover Haining Automann Parts Co., Ltd. requesting subzone status for the facility (Automann), and Zhejiang Zhengda of Channel Control Merchants, LLC, On February 28, 2013, Northern Bearing Co., Ltd. (Zhengda). The period located in Hattiesburg, Mississippi. The Mississippi FTZ, Inc., grantee of FTZ of review is June 1, 2011, through May application was submitted pursuant to 262, submitted a notification of 31, 2012. the provisions of the Foreign-Trade proposed production activity to the We have preliminarily determined Zones Act, as amended (19 U.S.C. 81a- Foreign-Trade Zones (FTZ) Board on that certain respondents sold subject 81u), and the regulations of the Board behalf of Milwaukee Electric Tool merchandise in the United States at (15 CFR part 400). It was formally Corporation, in Olive Branch, prices below normal value (NV). If these docketed on July 1, 2013. Greenwood, and Jackson, Mississippi. preliminary results are adopted in the The proposed subzone (17.28 acres) is The notification was processed in final results of these reviews, we will located at 5154 State Highway 42 in accordance with the regulations of the instruct U.S. Customs and Border Hattiesburg, Mississippi. (A portion of FTZ Board (15 CFR part 400), including the proposed subzone is currently notice in the Federal Register inviting 1 This figure does not include two companies for designated as a temporary site of FTZ 92 public comment (78 FR 17350, 3–21– which the Department has rescinded this (Site 14, 4 acres) which will expire on 2013). The FTZ Board has determined administrative review. See Tapered Roller Bearings and Parts Thereof, Finished and Unfinished From October 31, 2013.) No authorization for that no further review of the activity is the People’s Republic of China: Rescission, in Part, production activity has been requested warranted at this time. The production of Antidumping Duty Administrative Review, 78 FR at this time. The proposed subzone activity described in the notification is 34985 (June 11, 2013).

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Protection (CBP) to assess antidumping amended (the Act). Constructed export Preliminary Decision Memorandum are duties on all appropriate entries. and export prices have been calculated identical in content. DATES in accordance with section 772 of the : Effective Date: July 8, 2013. Preliminary Results of Review FOR FURTHER INFORMATION CONTACT: Act. Because the PRC is a nonmarket Blaine Wiltse or Henry Almond, AD/ economy (NME) within the meaning of Regarding the administrative review, CVD Operations, Office 2, Import section 771(18) of the Act, NV has been we preliminarily determine that the Administration, International Trade calculated in accordance with section following weighted-average dumping Administration, U.S. Department of 773(c) of the Act. Specifically, the margins exist for the period June 1, Commerce, 14th Street and Constitution respondents’ factors of production have 2011, through May 31, 2012: Avenue NW., Washington, DC 20230; been valued using surrogate values from Weighted- telephone: (202) 482–6345 or (202) 482– Thailand, which is economically average 0049, respectively. comparable to the PRC and a significant Exporter dumping SUPPLEMENTARY INFORMATION: producer of comparable merchandise. margin (percent) Scope of the Order For a full description of the methodology underlying our The merchandise covered by the order Changshan Peer Bearing conclusions, see the Preliminary Co., Ltd...... 0.63 includes tapered roller bearings. The Dana Heavy Axle S.A. de C. subject merchandise is currently Decision Memorandum, which is hereby adopted by this notice.3 The V. * ...... 0.63 classifiable under Harmonized Tariff Zhejiang Sihe Machine Co., Schedule of the United States (HTSUS) Preliminary Decision Memorandum is a public document and is on file Ltd * ...... 0.63 subheadings: 8482.20.00, 8482.91.00.50, Zhejiang Zhaofeng Mechan- 8482.99.15, 8482.99.45, 8483.20.40, electronically via Import ical and Electronic Co., 8483.20.80, 8483.30.80, 8483.90.20, Administration’s Antidumping and Ltd. * ...... 0.63 8483.90.30, 8483.90.80, 8708.70.6060, Countervailing Duty Centralized PRC-Wide Entity 4 ...... 92.84 Electronic Service System (IA ACCESS). 8708.99.2300, 8708.99.4850, * This company applied for or demonstrated 8708.99.6890, 8708.99.8115, and IA ACCESS is available to registered eligibility for a separate rate in this administra- 8708.99.8180. The HTSUS subheadings users at http://iaaccess.trade.gov, and is tive review. The rate for this company is the are provided for convenience and available to all parties in the Central calculated weighted-average dumping margin Records Unit, room 7046 of the main for CPZ/SKF. See the Preliminary Decision customs purposes only; the written Memorandum. description of the scope of the order is Department of Commerce building. In dispositive.2 addition, a complete version of the Preliminary Decision Memorandum can Regarding the NSRs, we preliminarily Methodology be accessed directly on the internet at determine that the following weighted- The Department has conducted this http://www.trade.gov/ia/. The signed average dumping margins exist for the review in accordance with section Preliminary Decision Memorandum and period June 1, 2011, through May 31, 751(a)(1)(A) of the Tariff Act of 1930, as the electronic versions of the 2012:

Weighted- average Exporter Producer dumping margin (percent)

Haining Automann Parts Co., Ltd ...... Haining Automann Parts Co., Ltd ...... 59.59 Zhejiang Zhengda Bearing Co., Ltd ...... Zhejiang Zhengda Bearing Co., Ltd ...... 0.00

Disclosure and Public Comment limited to comments raised in the case Department of Commerce, 14th Street briefs.6 and Constitution Avenue NW, The Department will disclose Any interested party may request a Washington, DC 20230.8 calculations performed for these hearing within 30 days of publication of preliminary results to the parties within The Department will issue the final this notice.7 Hearing requests should results of this administrative review and five days of the date of publication of contain the following information: (1) this notice in accordance with 19 CFR these NSRs, which will include the The party’s name, address, and results of its analysis of all issues raised 351.224(b). Interested parties may telephone number; (2) the number of submit case briefs no later than 30 days in the case briefs, within 120 days of participants; and (3) a list of the issues publication of these preliminary results, after the date of publication of these to be discussed. Oral presentations will pursuant to section 751(a)(3)(A) of the preliminary results of review.5 Rebuttals be limited to issues raised in the briefs. Act. to case briefs may be filed no later than If a request for a hearing is made, parties five days after the written comments are will be notified of the time and date for filed and all rebuttal comments must be the hearing to be held at the U.S.

2 See Notice of Antidumping Duty Order; Tapered Bearings and Parts Thereof, Finished and 4 The PRC-Wide Entity includes all entities for Roller Bearings and Parts Thereof, Finished or Unfinished, from the People’s Republic of China’’ which the Department initiated a review but which Unfinished, From the People’s Republic of China, from Christian Marsh, Deputy Assistant Secretary did not establish their eligibility for a separate rate. 52 FR 22667 (June 15, 1987), for a complete for Antidumping and Countervailing Duty See the Preliminary Decision Memorandum. Operations to Paul Piquado, Assistant Secretary for description of the scope of the order. 5 See 19 CFR 351.309(c). Import Administration, dated July 1, 2013 3 6 See ‘‘Decision Memorandum for Preliminary (Preliminary Decision Memorandum), issued See 19 CFR 351.309(d). Results of Antidumping Duty Administrative concurrently with and hereby adopted by this 7 See 19 CFR 351.310(c). Review and New Shipper Reviews: Tapered Roller notice. 8 See 19 CFR 351.310(d).

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Deadline for Submission of Publicly assigned to each respondent in the final With respect to the NSRs, consistent Available Surrogate Value Information results of this administrative review. For with the Department’s practice, the In accordance with 19 CFR the PRC-wide entity, the assessment rate Department has established a 351.301(c)(3)(ii), the deadline for will be equal to the weighted-average combination cash deposit rate for submission of publicly available dumping margin assigned to it in the Automann and Zhengda as follows: (1) information to value factors of final results of this administrative For subject merchandise exported and production under 19 CFR 351.408(c) is review. produced by Automann or Zhengda, the 20 days after the date of publication of We will instruct CBP to assess cash deposit rate will be the rate the preliminary results. In accordance antidumping duties on all appropriate established for each company in the with 19 CFR 351.301(c)(1) (2012), if an entries covered by these reviews. Where final results of this review; (2) for interested party submits factual either the respondent’s weighted- subject merchandise exported by information less than ten days before or average dumping margin is zero or de Automann or Zhengda but not produced on the applicable deadline for minimis, or an importer-specific by the same company, the cash deposit submission of such factual information, assessment rate is zero or de minimis, rate will be the rate for the PRC-wide we will instruct CBP to liquidate the an interested party may submit factual entity, 92.84 percent; (3) for subject appropriate entries without regard to information to rebut, clarify, or correct merchandise produced by Automann or the factual information no later than ten antidumping duties. Zhengda but not exported by the same days after such factual information is The Department recently announced a company, the cash deposit rate will be served on the interested party. However, refinement to its assessment practice in the rate applicable to that exporter. the Department generally will not NME cases. Pursuant to this refinement accept in the rebuttal submission in practice, for entries that were not These deposit requirements, when additional or alternative surrogate value reported in the U.S. sales databases imposed, shall remain in effect until information not previously on the submitted by companies individually further notice. record, if the deadline for submission of examined during this review, the Notification to Importers surrogate value information has passed.9 Department will instruct CBP to Furthermore, the Department generally liquidate such entries at the PRC-wide This notice also serves as a will not accept business proprietary rate. Additionally, if the Department preliminary reminder to importers of information in either the surrogate value determines that an exporter had no their responsibility under 19 CFR submissions or the rebuttals thereto, as shipments of the subject merchandise, 351.402(f) to file a certificate regarding the regulation regarding the submission any suspended entries that entered of surrogate values allows only for the the reimbursement of antidumping under that exporter’s case number (i.e., duties prior to liquidation of the submission of publicly available at that exporter’s rate) will be liquidated relevant entries during this review information.10 at the PRC-wide rate. period. Failure to comply with this Assessment Rates Cash Deposit Requirements requirement could result in the Upon issuance of the final results, the The following cash deposit Secretary’s presumption that Department will determine, and CBP requirements will be effective upon reimbursement of antidumping duties shall assess, antidumping duties on all publication of the final results of this occurred and the subsequent assessment appropriate entries covered by these administrative review for all shipments of double antidumping duties. reviews.11 The Department intends to of the subject merchandise entered, or We are issuing and publishing these issue assessment instructions to CBP 15 withdrawn from warehouse, for preliminary results of reviews in days after the publication date of the consumption on or after the publication final results of these reviews. accordance with sections 751(a)(1), date, as provided for by section For each individually examined 751(a)(2)(B) and 777(i)(1) of the Act. 751(a)(2)(C) of the Act: (1) For the respondent in these reviews (i.e., CPZ/ Dated: July 1, 2013. exporters listed above which have a SKF, Automann, and Zhengda) which Paul Piquado, has a weighted-average dumping margin separate rate, the cash deposit rate will be the rate established in the final Assistant Secretary for Import which is not zero or de minimis (i.e., Administration. less than 0.5 percent), we will calculate results of this review (except, if the rate importer-specific ad valorem duty is zero or de minimis, then a cash Appendix—List of Topics Discussed in assessment rates based on the ratio of deposit rate of zero will be established the Preliminary Decision Memorandum the total amount of dumping calculated for that company); (2) for previously for the importer’s examined sales to the investigated or reviewed PRC and non- 1. Summary total entered value of those sales, in PRC exporters not listed above that have 2. Background accordance with 19 CFR 351.212(b)(1). separate rates, the cash deposit rate will 3. Scope of the Order 4. Bona Fides Analysis For the respondents which were not continue to be the exporter-specific rate 5. Discussion of the Methodology selected for individual examination in published for the most recently a. Non-Market Economy Country this administrative review and which completed segment of this proceeding; b. Separate Rates qualified for a separate rate, the (3) for all PRC exporters of subject c. Separate Rate for Non-Selected assessment rate will be equal to the merchandise that have not been found Companies weighted-average dumping margin to be entitled to a separate rate, the cash deposit rate will be the rate for the PRC- d. Surrogate Country e. Date of Sale 9 See, e.g., Glycine from the People’s Republic of wide entity, 92.84 percent; and (4) for China: Final Results of Antidumping Duty all non-PRC exporters of subject f. Normal Value Comparisons Administrative Review and Final Rescission, in merchandise which have not received 6. Conclusion Part, 72 FR 58809 (October 17, 2007), and [FR Doc. 2013–16344 Filed 7–5–13; 8:45 am] accompanying Issues and Decision Memorandum at their own rate, the cash deposit rate will Comment 2. be the rate applicable to the PRC BILLING CODE 3510–DS–P 10 See 19 CFR 351.301(c)(3). exporter(s) that supplied that non-PRC 11 See 19 CFR 351.212(b). exporter.

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DEPARTMENT OF COMMERCE response from FMC within the deadline Final Results of Review specified in 19 CFR 351.218(d)(3)(i). We International Trade Administration did not receive responses from any Pursuant to section 752(c)(3) of the Act, we determine that revocation of the [A–570–847] respondent interested parties to this proceeding. As a result, pursuant to antidumping duty order on persulfates Persulfates From the People’s section 751(c)(3)(B) of the Act and 19 from the PRC would be likely to lead to Republic of China: Final Results of CFR 351.218(e)(1)(ii)(C)(2), the continuation or recurrence of dumping. Expedited Third Sunset Review of Department determined to conduct an Furthermore, we find that the Antidumping Duty Order expedited review of the order. magnitude of the margin of dumping that is likely to prevail if the order was Scope of the Order AGENCY: Import Administration, revoked to be the following weighted- International Trade Administration, The products covered by the order are average percentage margins: Department of Commerce. persulfates, including ammonium, SUMMARY: On March 1, 2013, the potassium, and sodium persulfates. The Weighted-av- Department of Commerce (‘‘the chemical formula for these persulfates Exporters erage margin (percent) Department’’) initiated a sunset review are, respectively, (NH4)2S2O8, K2S2O8, of the antidumping duty order on and Na2S2O8. Potassium persulfates are Sinochem Jiangsu Wuxi Im- persulfates from the People’s Republic currently classifiable under subheading port & Export Corporation 119.02 of China (‘‘PRC’’). On the basis of a 2833.40.10 of the Harmonized Tariff Shanghai Ai Jian Import & notice of intent to participate, and an Schedule of the United States Export Corporation adequate substantive response filed on (‘‘HTSUS’’). Sodium persulfates are (Shanghai AJ) ...... 119.02 behalf of domestic interested parties, as classifiable under HTSUS subheading Guangdong Petroleum well as a lack of response from any 2833.40.20. Ammonium and other Chemical Import and Ex- respondent interested parties, the persulfates are classifiable under port Trade ...... Department conducted an expedited HTSUS subheadings 2833.40.50 and (Guangdong Petroleum) ...... 119.02 (120-day) sunset review. As a result of 2833.40.60. Although the HTSUS PRC-wide ...... 119.02 the sunset review, the Department finds subheadings are provided for that revocation of the antidumping duty convenience and customs purposes, the Administrative Protective Order order would be likely to lead to written description of the scope of the continuation or recurrence of dumping. order is dispositive. This notice also serves as the only The magnitude of the dumping margins reminder to parties subject to likely to prevail is identified in the Analysis of Comments Received administrative protective orders Final Results of Review section of this All issues raised in this review are (‘‘APO’’) of their responsibility notice. addressed in the ‘‘Issues and Decision concerning the return or destruction of DATES: Effective Date: July 8, 2013. Memorandum’’ (‘‘Decision proprietary information disclosed under FOR FURTHER INFORMATION CONTACT: Memorandum’’) from Christian Marsh, APO in accordance with 19 CFR Magd Zalok, AD/CVD Operations, Office Deputy Assistant Secretary for 351.305. Timely notification of the 4, Import Administration, International Antidumping and Countervailing Duty return or destruction of APO materials Trade Administration, U.S. Department Operations, to Paul Piquado, Assistant or conversion to judicial protective of Commerce, 14th Street and Secretary for Import Administration, order is hereby requested. Failure to Constitution Avenue NW., Washington, dated July 1, 2013, which is hereby comply with the regulations and terms DC 20230; telephone: (202) 482–4162. adopted by this notice. The issues of an APO is a violation which is subject discussed in the Decision Memorandum SUPPLEMENTARY INFORMATION: to sanction. include the likelihood of continuation We are issuing and publishing the Background or recurrence of dumping and the results and notice in accordance with On March 1, 2013, the Department magnitude of the margins likely to prevail if the order were revoked. sections 751(c), 752(c), and 777(i)(1) of published the notice of initiation of the the Act. sunset review of the antidumping duty Parties can find a complete discussion order on persulfates from the PRC of all issues raised in this review and Dated: July 1, 2013. pursuant to section 751(c) of the Tariff the corresponding recommendations in Paul Piquado, Act of 1930, as amended (‘‘the Act’’).1 this public memorandum, which is on Assistant Secretary for Import On March 15, 2013, the Department file in the Central Records Unit Administration. received a notice of intent to participate (‘‘CRU’’), Room 7046 of the main [FR Doc. 2013–16346 Filed 7–5–13; 8:45 am] Department building, as well as from a domestic interested party, FMC BILLING CODE 3510–DS–P Corporation (‘‘FMC’’), within the electronically via Import deadline specified in 19 CFR Administration’s Antidumping and 315.218(d)(1)(i), and provided Countervailing Duty Centralized information required under 19 CFR Electronic Service System (‘‘IA 315.218(d)(1)(ii). FMC claimed ACCESS’’). IA ACCESS is available to interested party status under section registered users at http:// 771(9)(C) of the Act as a domestic iaacess.trade.gov and in the CRU. In producer of persulfates in the United addition, a complete version of the States and a petitioner in the original Decision Memorandum can be accessed investigation. On April 1, 2013, the directly on the web at http:// Department received a substantive www.trade.gov/ia/. The signed Decision Memorandum and the electronic 1 See Initiation of Five-Year (‘‘Sunset’’) Review, 76 versions of the Decision Memorandum FR 13862 (March 1, 2013). are identical in content.

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DEPARTMENT OF COMMERCE background of this case in its previous This notice is issued and published in results of redetermination pursuant to accordance with sections 516A(c)(1), International Trade Administration remand.2 In the Remand Results, the 735(d), and 777(i)(1) of the Act. [A–570–863] Department found that that importers Dated: June 28, 2013. did not know, or could not have known, Paul Piquado, that honey from the People’s Republic Honey From the People’s Republic of Assistant Secretary for Import China: Notice of Court Decision Not in of China was being sold at less than fair Administration. value, and that therefore no critical Harmony With Final Determination of [FR Doc. 2013–16347 Filed 7–5–13; 8:45 am] circumstances existed for any entity Sales at Less Than Fair Value and BILLING CODE 3510–DS–P Notice of Amended Final examined during the investigation. Determination of Sales at Less Than On June 18, 2013, the CIT sustained Fair Value Pursuant to Court Decision the Department’s Remand Results, DEPARTMENT OF COMMERCE stating that the Department’s AGENCY: Import Administration, determination that critical National Oceanic and Atmospheric International Trade Administration, circumstances did not exist was Administration Department of Commerce. supported by substantial evidence and SUMMARY: On June 18, 2013, the United was in accordance with the law.3 Proposed Information Collection; States Court of International Trade (CIT) Timken Notice Comment Request; Alaska Crab Cost sustained the Department of Recovery Commerce’s (the Department’s) final In its decision in Timken, 893 F.2d at AGENCY: results of remand redetermination in 341, as clarified by Diamond Sawblades, National Oceanic and Atmospheric Administration (NOAA), which it determined that critical the Federal Circuit held that, pursuant Commerce. circumstances did not exist during the to section 516A(e) of the Tariff Act of less than fair value investigation 1930, as amended (the Act), the ACTION: Notice. Department must publish a notice of a pursuant to the CIT’s remand order in SUMMARY: court decision that is not ‘‘in harmony’’ The Department of Zhejiang Native Produce & Animal By- Commerce, as part of its continuing Products Import & Export Corp. v. with a Department determination and must suspend liquidation of entries effort to reduce paperwork and United States, Court No. 02–00057, Slip respondent burden, invites the general Op. 11–110 (September 6, 2011).1 pending a ‘‘conclusive’’ court decision. The CIT’s June 18, 2013, judgment in public and other Federal agencies to Consistent with the decision of the take this opportunity to comment on United States Court of Appeals for the this case constitutes a final decision of that court that is not in harmony with proposed and/or continuing information Federal Circuit (Federal Circuit) in collections, as required by the Timken Co. v. United States, 893 F.2d the Department’s Final Determination. This notice is published in fulfillment Paperwork Reduction Act of 1995. 337 (Fed. Cir. 1990) (Timken), as DATES: Written comments must be clarified by Diamond Sawblades Mfrs. of the publication requirements of Timken. Accordingly, the Department submitted on or before September 6, Coalition v. United States, 626 F.3d 2013. 1374 (Fed. Cir. 2010) (Diamond will continue the suspension of Sawblades), the Department is notifying liquidation of the subject merchandise ADDRESSES: Direct all written comments the public that the final CIT judgment pending the expiration of the period of to Jennifer Jessup, Departmental in this case is not in harmony with the appeal or, if appealed, pending a final Paperwork Clearance Officer, Department’s Notice of Final and conclusive court decision. Department of Commerce, Room 6616, Determination of Sales at Less Than Amended Final Less Than Fair Value 14th and Constitution Avenue NW., Fair Value; Honey from the People’s Determination Washington, DC 20230 (or via the Republic of China, 66 FR 50608 Internet at [email protected]). Because there is now a final court FOR FURTHER INFORMATION CONTACT: (October 4, 2001) (Final Determination) decision with respect to this case, the and is amending its Final Requests for additional information or Department amends its final less than copies of the information collection Determination. fair value determination to reflect that DATES: Effective Date: July 8, 2013. instrument and instructions should be critical circumstances did not exist for directed to Patsy A. Bearden, 907–586– FOR FURTHER INFORMATION CONTACT: John any company or entity in the 7008 or [email protected]. Drury or Angelica Mendoza, AD/CVD investigation. In the event the CIT’s SUPPLEMENTARY INFORMATION: Operations, Office 7, Import ruling is not appealed or, if appealed, Administration, International Trade upheld by the Federal Circuit, the I. Abstract Administration, U.S. Department of Department will instruct CBP to This request is for extension of a Commerce, 14th Street and Constitution liquidate entries that were suspended, current information collection. Fishery Avenue NW., Room 7850, Washington, due to the original affirmative critical Management Plans (FMP) are developed DC 20230; telephone (202) 482–0195 or circumstances finding, without regard to under the authority of the Magnuson- (202) 482–3019, respectively. antidumping duties, and to lift Stevens Fishery Conservation and SUPPLEMENTARY INFORMATION: suspension of liquidation of such Management Act (16 U.S.C. 1801 et seq.) entries.4 Background The FMP for Bering Sea and Aleutian Islands (BSAI) Crab includes the Crab 2 See Zhejiang Native Produce & Animal By- On March 22, 2013, the Department Rationalization (CR) Program, a limited issued the Remand Results. The Products Import & Export Corp., et al., v. United States, Results of Redetermination Pursuant to access system that allocates BSAI Crab Department provided an extensive Remand (December 8, 2010), at 2–8. resources among harvesters, processors, 3 See Zhejiang Native Produce & Animal By- and coastal communities. The intent of 1 See Final Results of Redetermination Pursuant Products Imp. & Exp. Corp. v. United States, Court to Court Remand Zhejiang Native Produce & No. 02–00057, Slip Op. 13–76 (Ct. Int’l Trade June the Alaska Crab Cost Recovery is to Animal By-Products Import & Export Corp., et al. 18, 2013). v. United States Court No. 02–00057 (March 22, 4 The Department does not intend to instruct CBP continue to be suspended pursuant to a separate 2012) (Remand Results). to liquidate any entries at issue that otherwise injunction in another case.

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monitor crab landings in the BSAI crab DEPARTMENT OF COMMERCE meeting, the Council recommended that fisheries through receipt of reports and NMFS issue an EFP for the total 3,000 provide for cost recovery payment of National Oceanic and Atmospheric mt of the 3,000 mt initially set aside. fees for all CR crab received. Administration The applicants proposed the use of RIN 0648–XC743 3,000 mt to replicate summer surveys II. Method of Collection conducted under EFP’s approved in Methods of submittal include email of Magnuson-Stevens Act Provisions; 2009–2012. electronic forms, and mail and facsimile General Provisions for Domestic One of the goals set forth in the EFP transmission of paper forms. Fisheries; Application for Exempted application is the development of an Fishing Permits index of biomass for Pacific sardine, III. Data with the desire that this index be AGENCY: National Marine Fisheries included in the subsequent Pacific OMB Control Number: 0648–0570. Service (NMFS), National Oceanic and sardine stock assessment. If NMFS does Form Number: None. Atmospheric Administration (NOAA), not issue this EFP, then the set-aside Commerce. Type of Review: Regular submission will be re-allocated to the third period’s ACTION: Notice; request for comments. (extension of a current information directed harvest allocation. Likewise any amount of the set-aside allocated to collection). SUMMARY: The Regional Administrator, an EFP for use during the closed fishing Southwest Region, NMFS, has made a Affected Public: Business or other for- time in the second allocation period preliminary determination that an profit organizations; individuals or (prior to September 15), but not utilized, application for an Exempted Fishing households. will roll into the third allocation Permit (EFP) warrants further period’s directed fishery. Estimated Number of Respondents: consideration. The application was 31. submitted by members of the Pacific Authority: 16 U.S.C. 1801 et seq. Estimated Time per Response: 40 sardine fishing industry who request an Dated: July 2, 2013. hours for Eligible Crab Community exemption from seasonal closures of the Kelly Denit, Organization (ECCO) annual report; 2 sardine directed fishery to conduct a Acting Deputy Director, Office of Sustainable hours for Registered Crab Receiver survey designed to estimate the Fisheries, National Marine Fisheries Service. (RCR) Ex-vessel Volume and Value population size of Pacific sardine. [FR Doc. 2013–16299 Filed 7–5–13; 8:45 am] Report, 30 minutes for RCR Fee NMFS requests public comment on the BILLING CODE 3510–22–P Submittal. application. Estimated Total Annual Burden DATES: Comments must be received by Hours: 113. July 23, 2013. DEPARTMENT OF COMMERCE ADDRESSES: You may submit comments Estimated Total Annual Cost to National Oceanic and Atmospheric Public: $ 11. on this notice identified by 0648–XC743 by any one of the following methods: Administration IV. Request for Comments • Mail: Rodney R. McInnis, Regional RIN 0648–XC745 Administrator, Southwest Region, Comments are invited on: (a) Whether NMFS, 501 West Ocean Blvd., Suite Pacific Fishery Management Council; the proposed collection of information 4200, Long Beach, CA 90802. Public Meeting is necessary for the proper performance • Fax: (562) 980–4047, Attn: Joshua of the functions of the agency, including Lindsay. AGENCY: National Marine Fisheries whether the information shall have Service (NMFS), National Oceanic and FOR FURTHER INFORMATION CONTACT: A practical utility; (b) the accuracy of the copy of the application can viewed at Atmospheric Administration (NOAA), agency’s estimate of the burden the following Web site http:// Commerce. (including hours and cost) of the swr.nmfs.noaa.gov/fmd/cps/; or by ACTION: Notice of public meeting. proposed collection of information; (c) contacting Joshua Lindsay, Southwest SUMMARY: The Pacific Fishery ways to enhance the quality, utility, and Region, NMFS, (562) 980–4034. clarity of the information to be Management Council’s (Pacific Council) SUPPLEMENTARY INFORMATION: On June collected; and (d) ways to minimize the South of Humbug Policy Committee 17, 2013, NMFS published a final rule burden of the collection of information (Policy Committee) for Pacific halibut to implement the harvest guideline (HG) on respondents, including through the will hold a working meeting, which is and annual specifications for the 2013 open to the public. use of automated collection techniques Pacific sardine fishing season off the DATES: or other forms of information U.S. West Coast (78 FR 36117). As part The Policy Committee meeting technology. of these management measures, 3,000 will be held Tuesday, July 30, 2013 from Comments submitted in response to metric tons (mt) of the maximum 10 a.m. until business for the day is this notice will be summarized and/or harvest guideline (HG) was subtracted completed. included in the request for OMB and set aside for potential EFPs. This ADDRESSES: The meeting will be held at approval of this information collection; 3,000 mt set-aside was intended to the Pacific Council Office, Large they also will become a matter of public allow for potential research fishing in Conference Room, 7700 NE Ambassador record. the second seasonal period (July 1– Place, Suite 101, Portland, OR 97220– 1384 telephone: (503) 820–2280. In Dated: July 2, 2013. September 14, 2013) to occur if that period’s directed fishery allocation is addition to the Pacific Council office, Gwellnar Banks, reached and directed fishing is closed. listening and public comment stations Management Analyst, Office of the Chief An EFP would allow the fishing may be available. Please contact the Information Officer. activities proposed by the applicants to Council office, (503) 820–2280, or our [FR Doc. 2013–16262 Filed 7–5–13; 8:45 am] occur when directed fishing is not Web site (www.pcouncil.org) for more BILLING CODE 3510–22–P allowed. At the March 2013, Council information.

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Council address: Pacific Fishery ACTION: Notice of a public meeting. information or request for sign language Management Council, 7700 NE interpretation and/other auxiliary aids, Ambassador Place, Suite 101, Portland, SUMMARY: The Caribbean Fishery please contact Mr. Miguel A. Rolo´n, OR 97220–1384. Management Council (Council) Ad Hoc Executive Director, Caribbean Fishery Committee on Socio-Economic Impact FOR FURTHER INFORMATION CONTACT: Ms. Management Council, 270 Mun˜ oz of Yearly Closures will hold a meeting. Kelly Ames, Staff Officer, Pacific Rivera Avenue, Suite 401, San Juan, Council; telephone: (503) 820–2280. DATES: The meeting will be held on Puerto Rico, 00918, telephone (787) Wednesday, July 24, 2013, from 10 a.m. SUPPLEMENTARY INFORMATION: The 766–5926, at least 5 days prior to the to 4:30 p.m. overarching goals of the Policy meeting date. Committee meeting are to evaluate ADDRESSES: Caribbean Fishery Dated: July 2, 2013. measures for controlling recreational Management Council Office, 270 Munoz Tracey L. Thompson, catch of Pacific halibut south of Rivera Avenue, Suite 401, San Juan, Acting Deputy Director, Office of Sustainable Humbug Mountain (southern Oregon Puerto Rico 00918. Fisheries, National Marine Fisheries Service. and northern California) to comply with FOR FURTHER INFORMATION CONTACT: [FR Doc. 2013–16291 Filed 7–5–13; 8:45 am] the allocation provisions of the Catch Caribbean Fishery Management Council, BILLING CODE 3510–22–P Sharing Plan and the overall total 270 Mun˜ oz Rivera Avenue, Suite 401, allowable catch apportioned to Area 2A. San Juan, Puerto Rico 00918, telephone: No management actions will be decided (787) 766–5926. DEPARTMENT OF COMMERCE by the Policy Committee. The Policy SUPPLEMENTARY INFORMATION: The Ad Committee’s task will be to develop Hoc Committee on Socio-Economic National Oceanic and Atmospheric recommendations for Council Impact of Yearly Closures will meet to Administration consideration at their September 2013 discuss the items contained in the RIN 0648–XC560 meeting in Boise, ID. following agenda: Although non-emergency issues not Takes of Marine Mammals Incidental to contained in the meeting agenda may July 24, 2013, 10 a.m.–4:30 p.m. Specified Activities; Office of Naval come before the Policy Committee for • Call to order Research Acoustic Technology discussion, those issues may not be the • Adoption of Agenda Experiments in the Western North subject of formal action during this • Review and Analysis of Economic Pacific Ocean meeting. Policy Committee action will Parameters (per day of fishing) for AGENCY: National Marine Fisheries Puerto Rico and the U.S. Virgin be restricted to those issues specifically Service (NMFS), National Oceanic and Islands listed in this notice and any issues Atmospheric Administration (NOAA), • Discussion arising after publication of this notice Commerce. that require emergency action under • Recommendations to CFMC (August ACTION: Notice; issuance of an Incidental section 305(c) of the Magnuson-Stevens 2013 meeting) Harassment Authorization. Fishery Conservation and Management • Other business Act, provided the public has been The established times for addressing SUMMARY: In accordance with provisions notified of the Policy Committee’s intent items on the agenda may be adjusted as of the Marine Mammal Protection Act to take final action to address the necessary to accommodate the timely (MMPA) as amended, notification is emergency. completion of discussion relevant to the hereby given that an Incidental Special Accommodations agenda items. To further accommodate Harassment Authorization (IHA) has discussion and completion of all items been issued to the U.S. Navy’s Office of This meeting is physically accessible on the agenda, the meeting may be Naval Research (ONR) to take marine to people with disabilities. Requests for extended from, or completed prior to mammals, by harassment, incidental to sign language interpretation or other the date established in this notice. conducting Acoustic Technology auxiliary aids should be directed to Mr. The meeting is open to the public, Experiments (ATE) in the western North Kris Kleinschmidt at (503) 820–2280 at and will be conducted in English. Pacific Ocean. least 5 days prior to the meeting date. Fishers and other interested persons are DATES: This authorization is effective Dated: July 2, 2013. invited to attend and participate with from July 1, 2013, through June 30, Tracey L. Thompson, oral or written statements regarding 2014. agenda issues. Acting Deputy Director, Office of Sustainable ADDRESSES: An electronic copy of the Fisheries, National Marine Fisheries Service. Although non-emergency issues not application containing a list of the contained in this agenda may come [FR Doc. 2013–16290 Filed 7–5–13; 8:45 am] references used in this document may before this group for discussion, those BILLING CODE 3510–22–P be obtained by visiting the Internet at: issues may not be subjects for formal http://www.nmfs.noaa.gov/pr/permits/ action during this meeting. Actions will incidental.htm#applications. DEPARTMENT OF COMMERCE be restricted to those issues specifically Documents cited in this notice may be identified in this notice, and any issues viewed, by appointment, during regular National Oceanic and Atmospheric arising after publication of this notice business hours, at the aforementioned Administration that require emergency action under address. section 305(c) of the Magnuson-Stevens RIN 0648–XC746 Fishery Conservation and Management FOR FURTHER INFORMATION CONTACT: Caribbean Fishery Management Act, provided that the public has been Michelle Magliocca, Office of Protected Council; Public Meeting notified of the Council’s intent to take Resources, NMFS, (301) 427–8401. final action to address the emergency. SUPPLEMENTARY INFORMATION: AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Special Accommodations Background Atmospheric Administration (NOAA), The meeting is physically accessible Sections 101(a)(5)(A) and (D) of the Commerce. to people with disabilities. For more MMPA (16 U.S.C. 1361 et seq.) direct

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the Secretary of Commerce to authorize, Summary of Request states that skeletal remains of long- upon request, the incidental, but not On December 20, 2012, NMFS beaked common dolphins were found in intentional, taking of small numbers of received an application from ONR for Vietnamese whale temples, but no marine mammals by U.S. citizens who the taking of marine mammals evidence of short-beaked common engage in a specified activity (other than incidental to ATE in the western North dolphins have been recorded for the commercial fishing) within a specified Pacific Ocean. ONR provided additional region. Furthermore, several visual geographical region if certain findings information on March 7, 2013 and surveys in the western Pacific region and the Main Hawaiian Islands have not are made and, if the taking is limited to NMFS determined that the application observed short-beaked common harassment, a notice of a proposed was adequate and complete on March 7, dolphins (Barlow, 2006; Fulling et al., authorization is provided to the public 2013. On April 2, 2013, NMFS 2011). Given the lack of observations in for review. published a Federal Register notice (78 recent surveys, the density estimate that An authorization for incidental FR 19652) requesting comments from was derived from data in the eastern takings shall be granted if NMFS finds the public concerning ONR’s proposed North Pacific (Ferguson and Barlow, that the taking will have a negligible activity along with NMFS’ proposed 2001 and 2003) was modified to reflect impact on the species or stock(s), will IHA. the expected distribution of short- not have an unmitigable adverse impact ONR will conduct ATE in one of nine beaked common dolphins in the Sea of on the availability of the species or provinces comprising the western North Japan and North Philippine Sea stock(s) for subsistence uses (where Pacific Ocean. The activity will occur provinces and the unlikely presence of relevant), and if the permissible for no more than 2 weeks during the methods of taking and requirements short-beaked common dolphins in the spring or summer of 2013. South China Sea, West Philippine Sea, pertaining to the mitigation, monitoring, Transmissions from four underwater and reporting of such takings are set Offshore Guam, and Northwest Pacific active acoustic sources may result in the Ocean (10–25° N). forth. NMFS has defined ‘‘negligible take of marine mammals. Take, by Level impact’’ in 50 CFR 216.103 as ‘‘. . . an Gray whale—Western Pacific gray B harassment only, of individuals of up whales are believed to migrate across impact resulting from the specified to 34 species is authorized for the activity that cannot be reasonably the East China Sea to and from specified activity. A detailed unknown winter breeding grounds. The expected to, and is not reasonably likely description of ONR’s activity was to, adversely affect the species or stock reference that the commenter cites provided in the proposed IHA (78 FR (Omura, 1988) has anecdotal through effects on annual rates of 19652, April 2, 2013). recruitment or survival.’’ observations of gray whales in the Yellow Sea in May (spring). There is no Section 101(a)(5)(D) of the MMPA Comments and Responses indication if any observations in established an expedited process by A notice of receipt and request for summer months and western Pacific which U.S. citizens can apply for a 1- public comment on the application and gray whales are known to occur in more year authorization to incidentally take proposed authorization was published northern areas during the summer small numbers of marine mammals by on April 2, 2013 (78 FR 19652). During (Meier et al., 2007; Weller et al., 2002). harassment, provided that there is no the 30-day public comment period, we Pacific white-sided dolphins—Pacific potential for serious injury or mortality received comments from eighteen white-sided dolphins display a north- to result from the activity. Section individuals and the Marine Mammal south migratory pattern, moving from 101(a)(5)(D) establishes a 45-day time Commission (Commission). warm-temperate waters in winter to limit for NMFS’ review of an Comment 1: Numerous people cool-temperate waters in summer. The application followed by a 30-day public suggested that the Navy’s proposed commenter cites Hayano et al. (2004), notice and comment period on any activity would result in the harm and which states, ‘‘In the Sea of Japan, the proposed authorizations for the death of too many marine mammals. dolphins were observed mostly in incidental harassment of marine Response: The Navy did not propose, coastal waters off Iki Island in January- mammals. Within 45 days of the close and NMFS is not authorizing, the take March, and off the central-northern of the comment period, NMFS must of marine mammals by injury or Japan in June-July, suggesting they either issue or deny the authorization. mortality. The Navy’s activity may migrate northward along the coast of The National Defense Authorization result in the behavioral harassment of Japan in spring to off the western coast Act (NDAA) (Pub. L. 108–136) removed marine mammals. It is also important to of Hokkaido and/or to the Sea of the ‘‘small numbers’’ and ‘‘specified note that the take estimates provided in Okhotsk where they summer.’’ The cited geographical region’’ limitations and the proposed IHA (78 FR 19652, April reference of Miyashita (1993) does not amended the definition of ‘‘harassment’’ 2, 2013) are the maximum amount of include any reference to Pacific white- as it applies to a ‘‘military readiness take expected for any of the nine sided dolphins. Pacific white-sided activity’’ to read as follows (section provinces in the western North Pacific dolphins are not expected to be in the 3(18)(B) of the MMPA): (i) Any act that Ocean. southern half of the Sea of Japan during injures or has the significant potential to Comment 2: One commenter summer months. injure a marine mammal or marine suggested that marine mammal species Pantropical spotted dolphins— mammal stock in the wild [Level A were omitted from some of the proposed Pantropical spotted dolphins inhabit Harassment]; or (ii) Any act that action areas in the analysis (i.e., short- tropical and subtropical waters, from disturbs or is likely to disturb a marine beaked common dolphin, gray whale, south of approximately 37° N. The map mammal or marine mammal stock in the Pacific white-sided dolphin, pantropical of sightings in June from Miyashita wild by causing disruption of natural spotted dolphin, and sei whale). (1993) (as cited by the commenter) show behavioral patterns, including, but not Response: Short-beaked common them south of 35° N. As the East of limited to, migration, surfacing, nursing, dolphins—Short-beaked common Japan province is at the northern limit breeding, feeding, or sheltering, to a dolphins are a cool-temperate species of their distributional range, they are not point where such behavioral patterns and they are not expected to occur in expected in this region during the cold- are abandoned or significantly altered the South China Sea. The Smith et al water months of spring, but may be [Level B Harassment]. (1997) paper the commenter refers to present during summer months.

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Sei whale—The papers that the estimates plus two standard deviations Comment 7: The Commission commenter cited on passive acoustic for the densities based on surveys in recommended that NMFS require ONR recordings (Stafford et al., 2001; areas other than the locations where the to use passive acoustic monitoring Stafford, 2003) do not refer to sei experiments could occur; (2) describe continually during the experiments to whales. As for the two cited papers on any known or suspected sources of bias supplement daytime visual monitoring. recent surveys (DoN, 2007; Fulling et associated with the use of those data; Response: NMFS disagrees that al., 2011), they both refer to the same and (3) reestimate the numbers of takes passive acoustic monitoring should be survey that occurred in the offshore using those mean densities plus two required during daytime hours. Guam region in January-April 2007. standard deviations. However, ONR will use passive acoustic There were eight sightings of sei whales Response: NMFS disagrees that the monitoring at night and during other during these winter months, but there is density estimates need to be periods of decreased visual observation no evidence to suggest that sei whales reevaluated. The estimation of take capabilities. NMFS does not believe that are found offshore Guam in summer already overestimates what is likely to supplementing visual monitoring with months. occur because the Navy considered a passive acoustic monitoring during Comment 3: One commenter stated worst-case scenario of nine different daytime hours will add to the protection that harassment estimates were omitted locations (only one of which the activity of marine mammals in the vast majority for some species in the area (i.e., Kogia will actually occur in). Furthermore, the of cases, as the location of a marine spp. in the East China Sea and Risso’s analysis does not take into mammal cannot be identified using a dolphin in the South China Sea). consideration the required mitigation single sound recorder. Response: The value of 0.0000 for and monitoring measures in the IHA. Marine Mammals in the Area of the both species’ was inadvertently left out Specified Activity of the table for Level A harassment. This Comment 6: The Commission does not change NMFS’ analysis or recommended that NMFS require ONR Thirty-four marine mammal species authorized take amounts. to use a third clearance time category of may potentially occur in at least one of Comment 4: One commenter 60 minutes for deep-diving species after the nine provinces comprising the suggested that the harassment analysis a delay or shut down, if the animal is western North Pacific Ocean in which was based on calculations using an out- not observed to have left the mitigation the ATE may occur. Eight of these of-date database (Generalized Digital zone. species are listed as endangered under Environmental Model (GDEM) 2.5) and Response: NMFS disagrees that the the U.S. Endangered Species Act of inappropriate model. clearance time should be lengthened for 1973 (ESA; 16 U.S.C. 1531 et seq.) and Response: The Navy compared sound deep-diving species for the following depleted under the MMPA: blue whale velocity profiles between GDEM 2.5 and reasons: (1) Just because an animal can (Balaenoptera musculus), fin whale 3.0 at each of the nine modeling sites. dive for longer than 30 minutes does not (Balaenoptera physalus), gray whale There were no significant differences mean that they always do, so the 60- (Eschrichtius robustus), humpback observed in the profiles at any of the minute delay would only potentially whale (Megaptera novaeangliae), North nine sites. The Navy reran the add value in instances when animals Pacific right whale (Eubalaena propagation model with GDEM 3.0 data had remained underwater for more than japonica), sei whale (Balaenoptera at the experiment site for multiple 30 minutes; (2) The animal would need borealis), sperm whale (Physeter odontocetes, and the harassment to have stayed in the immediate vicinity macrocephalus), and Hawaiian monk estimates using GDEM 2.5 were more of the sound source for an hour. seal (Monachus schauinslandi). conservative. It is important to note that Considering the maximum area that Although 34 species of marine the Navy’s activity is taking place in both the vessel and the animal could mammals may potentially occur in the deep water areas, so the sound speed cover in an hour, it is improbable that waters of the nine western North Pacific variability between the two databases this would randomly occur. Moreover, provinces, the two species of Kogia are for this activity is negligible. Future considering that many animals have often considered together due to the analyses of this nature will utilize been shown to avoid both acoustic difficulty in identifying these animals to GDEM 3.0 data. sources and ships without acoustic the species level at sea and the sparse The commenter suggested that the sources, it is improbable that a deep- information that is known about the High Frequency Bottom Loss (HFBL) diving cetacean (as opposed to a individual species. The 34 species model should have been used; however, dolphin that might bow ride) would considered include eight mysticetes, 25 this model is not appropriate for choose to remain in the immediate odontocetes, and one pinniped (Table analyzing sources below 1.5 kHz. vicinity of the acoustic source; and (3) 1). Detailed descriptions of these species Moreover, the Navy’s activity will be Visual observers are not always able to are provided in the section 4 of ONR’s conducted in deep water so that bottom differentiate species to the degree that application and summarized in the loss and type are negligible would be necessary to implement this Federal Register notice for a proposed considerations. measure. NMFS does not believe that IHA (78 FR 19652, April 2, 2013) and Comment 5: The Commission increasing the clearance time to 60 not repeated here. Further information recommended that NMFS assess the minutes will add to the protection of on all the species can also be found in potential risk to marine mammals from marine mammals in the vast majority of the NMFS Stock Assessment Reports the ATE by requiring ONR to (1) provide cases, and therefore, we have not (SAR) online: http:// the best available mean density required it. www.nmfs.noaa.gov/pr/pdfs/sars.

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TABLE 1—MARINE MAMMALS POTENTIALLY OCCURRING IN THE NINE PROVINCES OF THE WESTERN NORTH PACIFIC WHERE THE ATE MAY BE CONDUCTED AND THEIR STATUS

Common name Scientific name ESA and MMPA status

Mysticetes

Blue Whale ...... Balaenoptera musculus ...... Endangered/Depleted. Bryde’s Whale ...... Balaenoptera edeni. Common Minke Whale ...... Balaenoptera acutorostrata. Fin Whale ...... Balaenoptera physalus ...... Endangered/Depleted. Gray Whale ...... Eschrichtius robustus ...... Endangered/Depleted.1 Humpback Whale ...... Megaptera novaeangliae ...... Endangered/Depleted. North Pacific Right Whale ...... Eubalaena japonica ...... Endangered/Depleted. Sei Whale ...... Balaenoptera borealis ...... Endangered/Depleted.

Odontocetes

Baird’s Beaked Whale ...... Berardius bairdii. Blainville’s Beaked Whale ...... Mesoplodon densirostris. Common Bottlenose Dolphin ...... Tursiops truncatus. Cuvier’s Beaked Whale ...... Ziphius cavirostris. Dall’s Porpoise ...... Phocoenoides dalli. False killer whale ...... Pseudorca crassidens.2 Fraser’s Dolphin ...... Lagenodelphis hosei. Ginkgo-toothed Beaked Whale ...... Mesoplodon ginkgodens. Hubbs’ Beaked Whale ...... Mesoplodon carhubbsi. Killer Whale ...... Orca orcinus. Kogia spp...... Longman’s Beaked Whale ...... Indopacetus pacificus. Melon-headed Whale ...... Peponocephala electra. Pacific White-sided Dolphin ...... Lagenorhynchus obliquidens. Pantropical Spotted Dolphin ...... Stenella attenuata Pygmy Killer Whale ...... Feresa attenuata. Risso’s Dolphin ...... Grampus griseus. Rough-toothed Dolphin ...... Steno bredanensis. Short-beaked Common Dolphin ...... Delphinus delphis. Short-finned Pilot Whale ...... Globicephala macrorhynchus. Sperm Whale ...... Physeter macrocephalus ...... Endangered/Depleted. Spinner Dolphin ...... Stenella longirostris. Stejneger’s Beaked Whale ...... Mesoplodon stejnegeri. Striped Dolphin ...... Stenella coeruleoalba.

Pinnipeds

Hawaiian Monk Seal ...... Monachus schauinslandi ...... Endangered/Depleted. 1 Only the western Pacific population is listed as endangered under the ESA. 2 As a species, the false killer whale is not listed under the ESA; however, the insular Main Hawaiian Islands distinct population segment (DPS) of false killer whales is listed as endangered under the ESA.

Potential Effects of the Specified constitute injury, but temporary are also no international marine Activity on Marine Mammals threshold shift (TTS) is considered a mammal protected areas located within type of Level B harassment (Southall et the vicinity of the experiment area. This section of the proposed rule al., 2007). Although the possibility During the ONR ATE, only acoustic included a detailed account of potential cannot be entirely excluded, it is transducers and receivers as well as effects (78 FR 19652, April 2, 2013), unlikely that the ATE will result in any standard oceanographic equipment will including tolerance, masking, cases of temporary or permanent be deployed. Experimental systems are behavioral disturbance, hearing hearing impairment, or any significant planned to be retrieved after data impairment, non-auditory physiological non-auditory physical or physiological collection has been completed. The effects, stranding, and mortality. In effects. Based on the available data and acoustic and oceanographic summary, acoustic stimuli generated by studies described here, some behavioral instrumentation that would be deployed underwater signals from no more than disturbance is possible, but NMFS operates in accordance with all four acoustic sources have the potential expects the disturbance to be localized applicable international rules and to cause Level B harassment of marine and short-term. regulations related to environmental mammals in the action area. The compliance, especially for discharge of impacts to marine mammals from these Anticipated Effects on Marine Mammal potentially hazardous materials. sources are expected to be limited to Habitat Therefore, no discharges of pollutants some masking effects and behavioral No ESA-designated critical habitats of will result from the deployment and responses in the areas ensonified by the any marine mammal species are located operation of the acoustic and acoustic sources. in or near the waters of the nine western oceanographic instruments and systems. Permanent hearing impairment, in the North Pacific Ocean provinces in which During the ONR ATE, deployment unlikely event that it occurs, would the ONR ATE may be conducted. There and operation of the sound sources will

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result in no physical alterations to the zones are measured as the radius from Based on our evaluation of the marine environment other than addition a source and represent a distance that applicant’s proposed measures and of elevated underwater sound levels, visual observers will monitor during those proposed by NMFS, we have which may have some effect on marine daylight hours to ensure that no marine determined that the above mitigation mammals. Any increase in underwater mammals enter the designated area. The measures provide the means of effecting sound levels will be temporary (lasting mitigation zone will be monitored for 30 the least practicable adverse impact on no more than 2 weeks) and limited in minutes before the active acoustic marine mammal species or stocks and geographic scope. A small number of source transmissions begin and will their habitat, paying particular attention marine mammals present near the continue until 30 minutes after the to rookeries, mating grounds, and areas proposed activity may be temporarily active acoustic source transmissions are of similar significance, while also displaced due to sound source terminated, or 30 minutes after sunset, considering personnel safety, transmissions. However, concentrations whichever comes first. Visual detections practicality of implementation, and of marine mammals and/or marine of marine mammals will be impact on the effectiveness of the mammal prey species are not expected communicated immediately for military readiness activity. information dissemination and to be encountered in or near the vicinity Monitoring and Reporting of the waters in the western North appropriate action, as described directly Pacific provinces in which the ONR below. In order to issue an ITA for an activity, section 101(a)(5)(D) of the ATE may occur. There are no critical Delay and Shut-Down Procedures feeding, breeding, or migrating areas for MMPA states that NMFS must set forth, any marine mammal species that may During daytime transmissions, ONR where applicable, ‘‘requirements occur in the action area. No long-term will immediately delay or shut down pertaining to the monitoring and impacts associated with the increase in active acoustic source transmissions if a reporting of such taking.’’ The MMPA ambient noise levels are expected. marine mammal is visually detected implementing regulations at 50 CFR within the 1 km exclusion zone. Based 216.104 (a)(13) indicate that requests for Mitigation Measures on NMFS’ recommendation, ITAs must include the suggested means In order to issue an incidental take transmissions will not commence/ of accomplishing the necessary authorization (ITA) under section resume for 15 minutes (for small monitoring and reporting that will result 101(a)(5)(D) of the MMPA, NMFS must odontocetes and pinnipeds) or 30 in increased knowledge of the species prescribe, where applicable, the minutes (for mysticetes and large and of the level of taking or impacts on permissible methods of taking pursuant odontocetes) after the animal has moved populations of marine mammals that are to such activity, and other means of out of the exclusion zone or there has expected to be present in the proposed effecting the least practicable impact on been no further visual detection of the action area. animal. During nighttime transmissions, such species or stock and its habitat, Monitoring paying particular attention to rookeries, ONR will immediately delay or shut mating grounds, and areas of similar down active acoustic source ONR will conduct marine mammal monitoring during the specified activity significance, and the availability of such transmissions if a marine mammal is for the purpose of implementing species or stock for taking for certain detected using passive acoustic required mitigation and to provide subsistence uses (where relevant). monitoring. Based on NMFS’ The NDAA of 2004 amended the recommendation, transmissions will information on species presence and MMPA as it relates to military-readiness commence/resume 15 minutes (for abundance in the action area. Protected activities and the ITA process such that small odontocetes and pinnipeds) or 30 species observers (both visual and ‘‘least practicable adverse impact’’ shall minutes (for mysticetes and large acoustic) will maintain a log that include consideration of personnel odontocetes) after there has been no includes duration of time spent safety, practicality of implementation, further detection of the animal. searching/listening for marine and impact on the effectiveness of the NMFS has carefully evaluated the mammals; numbers and species of ‘‘military readiness activity.’’ The applicant’s proposed mitigation marine mammals detected; any unusual training activities described in ONR’s measures and considered a range of marine mammal behavior; and the date, application are considered military other measures in the context of time, and location of the animal and any readiness activities. assuring that NMFS prescribes the sonobuoy deployments. ONR’s The following mitigation measures means of effecting the least practicable monitoring plan is described below. will be implemented during the ONR impact on the affected marine mammal Vessel-based Visual Monitoring— ATE: species and stocks and their habitat. Our ONR will continuously monitor for evaluation of potential measures marine mammals when active acoustic Vessel Movement included consideration of the following sources are being used during daylight ONR will maneuver the research factors in relation to one another: hours. Two visual observers will be on vessel, as feasible, to avoid closing • The manner in which, and the effort during active ATE source within 457 m (1,499 ft) of a marine degree to which, the successful transmissions occurring during daylight mammal. Standard operating implementation of the measure is hours. One observer will be positioned procedures for the research vessel will expected to minimize adverse impacts on the deck level above the bridge, be to avoid collision with marine to marine mammals; about 12 m above the water line, while mammals, including maintaining a • The proven or likely efficacy of the the second observer will be located on minimum safe maneuvering distance specific measure to minimize adverse the bridge level, about 9.8 m above the from detected animals. impacts as planned; and water line. Protected species observers • The practicability of the measure will be trained for visually detecting Mitigation Zone for applicant implementation, including and identifying marine mammal ONR will use a 1-km mitigation zone consideration of personnel safety, species. Observers will begin to avoid take by Level A harassment and practicality of implementation, and monitoring 30 minutes before the active reduce the potential impacts to marine impact on the effectiveness of the acoustic source transmissions are mammals from ONR ATE. Mitigation military readiness activity. scheduled to begin and will continue

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until 30 minutes after the active pertaining to all monitoring. The 90-day must include the same information acoustic source transmissions are reports will summarize the dates and identified in the paragraph above. terminated, or 30 minutes after sunset, locations of active acoustic source Activities may continue while NMFS whichever comes first. transmissions, and all marine mammal reviews the circumstances of the Passive Acoustic Monitoring—ONR sightings (dates, times, locations, incident. NMFS would work with ONR will conduct passive acoustic activities, associated active acoustic to determine whether modifications in monitoring from the vessel when active transmissions). The reports will also the activities are appropriate. acoustic sources are deployed during include estimates of the number and In the event that ONR discovers an nighttime (i.e., no more than 35 hours nature of exposures that could result in injured or dead marine mammal, and total) and other periods of decreased ‘takes’ of marine mammals. the lead protected species observer visual observation capabilities. Passive In the unanticipated event that the determines that the injury or death is acoustic monitoring will include specified activity clearly causes the take not associated with or related to the listening for vocalizations and visually of a marine mammal in a manner activities authorized in the IHA (e.g., inspecting spectrograms of radio prohibited by the IHA, such as an injury previously wounded animal, carcass frequency-transmitted signals from a (Level A harassment), serious injury, or with moderate to advanced deployed AN/SSQ–53 DIFAR sonobuoy mortality (e.g., ship-strike, gear decomposition, or scavenger damage), by personnel trained in detecting and interaction, etc.), ONR would ONR would report the incident to the identifying marine mammal sounds. immediately cease the specified Chief of the Permits and Conservation Passive acoustic monitoring will begin activities and immediately (as soon as Division, Office of Protected Resources, 30 minutes before transmissions are possible, according to security protocol) NMFS within 24 hours of the discovery. scheduled to begin and continue until report the incident to the Chief of the ONR would provide photographs or 30 minutes after transmissions are Permits and Conservation Division, video footage (if available) or other terminated, or 30 minutes after sunrise, Office of Protected Resources, NMFS. documentation of the stranded animal whichever occurs first. The report must include the following sighting to NMFS. If a passively detected sound is information: estimated to be from a marine mammal, Time, date, and location (latitude/ Estimated Take by Incidental the acoustic observer will notify the longitude) of the incident; Harassment appropriate personnel and shutdown Name and type of vessel involved; With respect to military readiness procedures will be implemented. For Vessel’s speed during and leading up activities, section 3(18)(B) of the MMPA any marine mammal detection, the Test to the incident; defines ‘‘harassment’’ as: any act that Director will order the immediate delay/ Description of the incident injures or has the significant potential to suspension of the active acoustic source Status of all sound sources used in the injure a marine mammal or marine transmissions and/or deployment. 24 hours preceding the incident; mammal stock in the wild [Level A Based on NMFS’ recommendation, Water depth; harassment]; or (ii) any act that disturbs transmissions may commence/resume Environmental conditions (e.g., wind or is likely to disturb a marine mammal 15 minutes (for small odontocetes) or 30 speed and direction, Beaufort sea state, or marine mammal stock in the wild by minutes (for mysticetes and large cloud cover, and visibility); causing disruption of natural behavioral odontocetes) after there has been no Description of all marine mammal patterns, including, but not limited to, further detection of the animal. observations in the 24 hours preceding the incident; migration, surfacing, nursing, breeding, Reporting Species identification or description feeding, or sheltering, to a point where Protected species observers (both of the animal(s) involved; such behavioral patterns are abandoned visual and acoustic) will maintain a log Fate of the animal(s); and or significantly altered [Level B that includes duration of time spent Photographs or video footage of the harassment]. searching/listening for marine animal(s) (if equipment is available). This section of the proposed rule mammals; numbers and species of Activities would not resume until included a detailed description of the marine mammals detected; any unusual NMFS is able to review the Navy’s analysis and how take estimates marine mammal behavior; and the date, circumstances of the prohibited take. were calculated (78 FR 19652, April 2, time, and location of the animal and any NMFS would work with ONR to 2013). That information has not changed sonobuoy deployments. Data would be determine what is necessary to and is not repeated here. In summary, used to estimate numbers of animals minimize the likelihood of further only take by Level B harassment is potentially ‘taken’ by harassment (as prohibited take and ensure MMPA anticipated and authorized as a result of defined in the MMPA). Based on NMFS’ compliance. ONR may not resume their the specified activity. Acoustic stimuli recommendation, protected species activities until notified by NMFS via (i.e., increased underwater sound) observers will record the behavioral letter, email, or telephone. generated during the transmission of state of all marine mammals observed In the event that ONR discovers an active acoustic sources have the and the status of the active acoustic injured or dead marine mammal, and potential to cause temporary, short-term source when observers see an animal. the lead protected species observer changes in marine mammal behavior. ONR will submit two reports to NMFS determines that the cause of the injury There is no evidence that the planned within 90 days after the end of the or death is unknown and the death is activities will result in injury, serious proposed activity: one unclassified relatively recent (i.e., in less than a injury, or mortality within the specified report and one classified report. The moderate state of decomposition as geographic area. The required mitigation reports will describe the operations that described in the next paragraph), ONR and monitoring measures are expected were conducted and sightings of marine would immediately report the incident to minimize any potential risk for injury mammals near the operations. The to the Chief of the Permits and or mortality. The maximum estimated reports will provide full documentation Conservation Division, Office of take amounts are summarized in Table of methods, results, and interpretation Protected Resources, NMFS. The report 2 below.

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TABLE 2—MAXIMUM ESTIMATED TAKE FROM EXPOSURE TO ACOUSTIC SOURCES EMPLOYED DURING THE ONR ATE BY MARINE MAMMAL SPECIES POTENTIALLY OCCURRING IN THE NINE PROVINCES OF THE WESTERN NORTH PACIFIC OCEAN

Maximum MMPA Level Maximum MMPA Level Authorized take by Level Marine mammal species A harassment B harassment B harassment

Mysticetes

Blue Whale ...... 0.0000 0.0156 1 Bryde’s Whale ...... 0.0000 1.9562 2 Common Minke Whale ...... 0.0000 7.70636 8 Fin Whale ...... 0.0000 1.70956 2 Gray Whale ...... 0.0000 0.0038 1 Humpback Whale ...... 0.0000 1.6395 2 North Pacific Right Whale ...... 0.0000 0.0214 1 Sei Whale ...... 0.0000 1.0446 2

Odontocetes

Baird’s Beaked Whale ...... 0.0000 0.6882 1 Blainville’s Beaked Whale ...... 0.0000 0.5985 1 Common Bottlenose Dolphin ...... 0.0000 23.7805 24 Cuvier’s Beaked Whale ...... 0.0000 2.2811 3 Dall’s Porpoise ...... 0.0000 53.0706 54 Dwarf Sperm Whale ...... 0.0000 4.2209 5 False Killer Whale ...... 0.0000 7.3891 8 Fraser’s Dolphin ...... 0.0000 5.7854 6 Ginkgo-toothed Beaked Whale ...... 0.0000 0.5985 1 Hubbs’ Beaked Whale ...... 0.0000 0.1928 1 Killer Whale ...... 0.0000 0.1600 1 Kogia spp...... 0.0000 2.2840 3 Longman’s Beaked Whale ...... 0.0000 0.2993 1 Melon-headed Whale ...... 0.0000 15.4891 16 Mesoplodon spp...... 0.0000 0.1928 1 Pacific White-sided Dolphin ...... 0.0000 7.5305 8 Pantropical Spotted Dolphin ...... 0.0000 35.8584 36 Pygmy Killer Whale ...... 0.0000 4.3103 5 Pygmy Sperm Whale ...... 0.0000 1.7203 2 Risso’s Dolphin ...... 0.0000 11.3736 12 Rough-toothed Dolphin ...... 0.0000 5.8877 6 Short-beaked Common Dolphin ...... 0.0000 86.3962 87 Short-finned Pilot Whale ...... 0.0000 18.7461 19 Sperm Whale ...... 0.0000 1.6701 2 Spinner Dolphin ...... 0.0000 2.1661 3 Stejneger’s Beaked Whale ...... 0.0000 0.2855 1 Striped Dolphin ...... 0.0000 23.9042 24

Pinnipeds

Hawaiian Monk Seal ...... 0.0000 0.0067 1

Negligible Impact Analysis and As mentioned previously, NMFS of behavioral harassment anticipated, Determination estimates that 34 species of marine the activity is not expected to impact NMFS has defined ‘‘negligible mammals may be affected by Level B rates of recruitment or survival. impact’’ in 50 CFR 216.103 as ‘‘. . . an harassment during the ONR ATE. No Furthermore, there are no critical impact resulting from the specified injuries, serious injuries, or mortalities feeding, breeding, or migrating areas for activity that cannot be reasonably are anticipated to occur as a result of the any of the species that may be found expected to, and is not reasonably likely specified activity, and none are there at the time of the activity. to, adversely affect the species or stock authorized. Additionally, for reasons NMFS has determined, provided that through effects on annual rates of presented earlier in this document, the aforementioned mitigation and recruitment or survival.’’ In making a temporary or permanent hearing monitoring measures are implemented, negligible impact determination, NMFS impairment is not anticipated to occur that the impact of conducting the ONR considers a variety of factors, including, during the specified activity. Only ATE, may result, at worst, in a but not limited to: short-term behavioral disturbance is temporary modification in behavior • The number of anticipated anticipated to occur due to the limited and/or low-level physiological effects mortalities; duration of active acoustic (Level B harassment) of certain species • The number and nature of transmissions and the estimated marine of marine mammals. Of the ESA-listed anticipated injuries; mammal densities in the area. ONR’s marine mammals that may potentially • The number, nature, intensity, and specified activity will occur for about 2 occur in the action area, North Pacific duration of Level B harassment; and weeks and active acoustic sources will right whale populations lack sufficient • The context in which the takes operate intermittently during this time. data to determine trends in abundance occur. Due to the nature, degree, and context and sperm whale populations are not

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well known in the southern hemisphere. National Environmental Policy Act Fisheries Service, 1315 East-West While behavioral modifications, (NEPA) Highway, Silver Spring, MD 20910 or by including temporarily vacating the area ONR prepared a draft Overseas telephoning the contacts listed here. during the transmission of active Environmental Assessment (OEA) to A copy of the IHA application acoustic transmissions, may be made by address the potential environmental containing a list of the references used these species to avoid the resultant impacts that could occur as a result of in this document may be obtained by acoustic disturbance, the availability of the proposed activity. To meet NMFS’ writing to the address specified above, alternate areas and the short and National Environmental Policy Act telephoning the contact listed below sporadic duration of the demonstration, (NEPA; 42 U.S.C. 4321 et seq.) (see FOR FURTHER INFORMATION CONTACT), have led NMFS to determine that this requirements for the issuance of an IHA or visiting the Internet at: http:// action will have a negligible impact on to ONR, NMFS prepared an www.nmfs.noaa.gov/pr/permits/ the species in the specified geographic independent NEPA analysis, which incidental.htm. region. included an EA and Finding of No FOR FURTHER INFORMATION CONTACT: Based on the analysis contained Significant Impact (FONSI). These Howard Goldstein or Jolie Harrison, herein of the likely effects of the documents are available on our Web site Office of Protected Resources, NMFS, specified activity on marine mammals at http://www.nmfs.noaa.gov/pr/ 301–427–8401. and their habitat, and taking into permits/incidental.htm. NMFS SUPPLEMENTARY INFORMATION: consideration the implementation of the determined that issuance of the IHA Background mitigation and monitoring measures, will not significantly impact the quality NMFS finds that ONR’s specified of the human environment and that Section 101(a)(5)(D) of the MMPA, as activity may result in the incidental take preparation of an Environmental Impact amended (16 U.S.C. 1371 (a)(5)(D)), of marine mammals, by Level B Statement is not required. directs the Secretary of Commerce harassment only, and that the total Dated: June 28, 2013. (Secretary) to allow, upon request, the taking from the ATE will have a Donna S. Wieting, incidental, but not intentional, taking of small numbers of marine mammals of a negligible impact on the affected species Director, Office of Protected Resources, or stocks. National Marine Fisheries Service. species or population stock, by United States citizens who engage in a specified [FR Doc. 2013–16296 Filed 7–5–13; 8:45 am] Impact on Availability of Affected activity (other than commercial fishing) Species or Stock for Taking for BILLING CODE 3510–22–P within a specified geographical region if Subsistence Uses certain findings are made and, if the DEPARTMENT OF COMMERCE taking is limited to harassment, a notice There are no relevant subsistence uses of a proposed authorization is provided of marine mammals implicated by this National Oceanic and Atmospheric to the public for review. action. Therefore, NMFS has Administration Authorization for the incidental determined that the total taking of taking of small numbers of marine affected species or stocks will not have RIN 0648–XC498 mammals shall be granted if NMFS an unmitigable adverse impact on the Takes of Marine Mammals Incidental to finds that the taking will have a availability of such species or stocks for negligible impact on the species or taking for subsistence purposes. Specified Activities; Demolition and Construction Activities of the stock(s), will not have an unmitigable Endangered Species Act Children’s Pool Lifeguard Station at La adverse impact on the availability of the Jolla, California species or stock(s) for subsistence uses Of the species of marine mammals (where relevant). The authorization that may occur in the proposed AGENCY: National Marine Fisheries must set forth the permissible methods demonstration area, eight are listed as Service (NMFS), National Oceanic and of taking, other means of effecting the endangered under the ESA: blue whale, Atmospheric Administration (NOAA), least practicable adverse impact on the fin whale, gray whale, humpback whale, Commerce. species or stock and its habitat, and North Pacific right whale, sei whale, ACTION: Notice; issuance of an Incidental requirements pertaining to the sperm whale, and Hawaiian monk seal. Take Authorization (ITA). mitigation, monitoring and reporting of Under section 7 of the ESA, ONR such takings. NMFS has defined initiated formal consultation with SUMMARY: In accordance with the ‘‘negligible impact’’ in 50 CFR 216.103 NMFS, Office of Protected Resources, Marine Mammal Protection Act as ‘‘. . . an impact resulting from the Endangered Species Act Interagency (MMPA) regulations, notification is specified activity that cannot be Cooperation Division, on their specified hereby given that NMFS has issued an reasonably expected to, and is not activity. NMFS’ Office of Protected Incidental Harassment Authorization reasonably likely to, adversely affect the Resources, Permits and Conservation (IHA) to the City of San Diego to take species or stock through effects on Division, also initiated formal small numbers of three species of annual rates of recruitment or survival.’’ consultation under section 7 of the ESA marine mammals, by Level B Section 101(a)(5)(D) of the MMPA with NMFS’ Office of Protected harassment, incidental to demolition established an expedited process by Resources, Endangered Species Act and construction activities of the which citizens of the United States can Interagency Cooperation Division. Children’s Pool Lifeguard Station in La apply for an authorization to NMFS issued a Biological Opinion Jolla, California, June to December 2013. incidentally take small numbers of concluding that the Navy’s action is not DATES: Effective June 28, 2013, through marine mammals by harassment. likely to jeopardize the continued June 27, 2014. Section 101(a)(5)(D) of the MMPA existence of endangered blue, fin, gray, ADDRESSES: A copy of the final IHA and establishes a 45-day time limit for humpback, North Pacific right, sei, or application are available by writing to P. NMFS’s review of an application sperm whales or Hawaiian monk seals, Michael Payne, Chief, Permits and followed by a 30-day public notice and or adversely modify critical habitat Conservation Division, Office of comment period on any proposed designated for those species. Protected Resources, National Marine authorizations for the incidental

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harassment of small numbers of marine and lifeguards have taken an average of climbing, snorkeling, swimming, mammals. Within 45 days of the close 8,147 preventive actions and 86 water wading, traffic, sirens, barking dogs, and of the public comment period, NMFS rescues annually (CASA, 2010; 2011; road construction) when compared to must either issue or deny the 2012). The existing lifeguard facility the behavior of other harbor seals in authorization. was built in 1967, it is old, deteriorating other ‘‘non-urbanized’’ areas (Yochem Except with respect to certain from saltwater intrusion, and no longer and Stewart, 1998; Hanan & Associates, activities not pertinent here, the MMPA serves neither the needs of the lifeguard 2004; 2011; Hanan, 2005) (see http:// defines ‘‘harassment’’ as: any act of staff nor the beach-going public. The www.youtube.comwatch?v= pursuit, torment, or annoyance which (i) structure was condemned on February 4IRUYVTULsg). During the working has the potential to injure a marine 22, 2008 due to its deteriorated day, the City of San Diego estimates mammal or marine mammal stock in the conditions and the lack of structural there will be sound source levels above wild [Level A harassment]; or (ii) has integrity; therefore, it can no longer be 90 dB re 20 mPa during 106 days, the potential to disturb a marine used in its current state. Since the including 27 days of 100 to 110 dB re mammal or marine mammal stock in the existing building is no longer viable, a 20 mPa at the demolition and wild by causing disruption of behavioral temporary lifeguard tower was moved construction site. The contractor used patterns, including, but not limited to, in, but because of basic year-round published or manufacturer’s migration, breathing, nursing, breeding, working condition needs for the measurements to estimate sound levels. feeding, or sheltering [Level B lifeguards and the demand for lifeguard On average, pinnipeds will be about harassment]. 16 U.S.C. 1362(18). services, a new station is required. The 30.5 meters (m) (100 feet [ft]) or more Summary of Request project includes the demolition of the from the construction site with a existing lifeguard station and potential minimum of about 15.2 m (50 On December 3, 2012, NMFS received construction of a new, three-story, ft) and a peak of about 83 dB re 20 mPa an application from the City of San lifeguard station on the same site. The at the mean hauling-out distance (30.5 Diego, Engineering and Capital Projects new facility will have an observation m). The City of San Diego used the Department, requesting an IHA. A tower, first aid room, male/female formula and online calculator on the revised IHA application was submitted locker rooms, and a second observation/ Web site: http://sengpielaudio.com/ on April 1, 2013. The requested IHA ready room area, an accessible ramp to calculator-distance.htm and measured would authorize the take, by Level B the new unisex public restrooms on the distances from the sound source to (behavioral) harassment, of small lower floor, a public viewing area, and determine the area of potential impacts numbers of Pacific harbor seals (Phoca a plaza in front of the lifeguard station. from in-air sound. No studies of ambient vitulina richardii), California sea lions The new lifeguard station facilities will sound levels have been conducted at the (Zalophus californianus), and northern ° Children’s Pool, the City of San Diego elephant seals (Mirounga angustirostris) provide a 270 view of beaches, bluffs, incidental to demolition and and reefs for continued service to the intends to measure in-air background construction activities of the Children’s public onshore as well as in the water. noise levels in the days immediately Pool Lifeguard Station at La Jolla, Sound levels during all phases of the prior to, during, and after the California. The demolition and project will not exceed 110 dB re 20 mPa demolition and construction activities. construction operations are planned to at five feet from the sound sources. The The existing lifeguard station is take place during June to December 110 dB estimate is based on equipment located on a bluff above Children’s Pool 2013 in La Jolla, California. On May 3, manufacturers estimates obtained by the (32° 50′ 50.02″ North, 117° 16′ 42.8″ 2013, NMFS published a notice in the construction contractor. The City of San West) nearby reef and beach areas (see Federal Register (78 FR 25958) making Diego utilized the published detailed maps and photographs on preliminary determinations and manufacturers data based on the pages 30 to 31 of the ‘‘Mitigated proposing to issue an IHA. The notice planned equipment (i.e., a 980 Case Negative Declaration’’ in the IHA initiated a 30-day public comment backhoe, dump truck, air compressor, application). The building has period. Additional information on the electric screw guns, jackhammer, deteriorated significantly and must be demolition and construction activities at concrete saw, and chop saws) to be removed. A backhoe will be used for the Children’s Pool Lifeguard Station is utilized on the project site. Operation of demolishing the existing structure, and contained in the application, which is the equipment is the primary activity materials will be loaded into dump available upon request (see ADDRESSES). within the demolition and construction trucks to be hauled offsite. Material will of activities that is likely to affect be hauled to a local landfill where it Description of the Specified Activity marine mammals by potentially will be separated into recycled content The Children’s Pool was created in exposing them to in-air (i.e., airborne or and waste. In its place, a new lifeguard 1931 by building a breakwater wall sub-aerial) noise. Generally, harbor seals station is scheduled to be constructed which created a protected pool for are considered skittish and have the within and adjacent to the existing swimming. This pool has partially filled tendency to react or flush into the water facility. The new three-story, building with sand, but still has open water for at low levels of sound and/or will contain beach access level public swimming, as well as a beach for movements. While a range of behavioral restrooms and showers, lifeguard sunbathing and walking. The Children’s responses can be expected, it is difficult lockers, and sewage pump room; second Pool and nearby shore areas are used by to predict what activities might cause level containing two work stations, swimmers, sunbathers, SCUBA divers noticeable behavioral reactions with ready/observation room, kitchenette, and snorkelers, shore/surf fishermen, Pacific harbor seals at this site. restroom, and first aid station; and third school classrooms, tide pool explorers, Children’s Pool is a highly disturbed ‘‘observation’’ level will include a single kayakers, surfers, boogie and skim haul-out site and rookery, and the occupancy observation space, radio boarders, seal, bird and nature waters as harbor seals observed at this location are storage closet, and exterior catwalk. well as other activities by the general unusually tolerant to the presence of Interior stairs will link the floors. The public. Over the last three years (2010 humans, and do not respond in the existing below grade retaining walls will through 2012), an average of 1,556,184 same manner when exposed to stimuli remain in place and new retaining walls people have visited the Children’s Pool (e.g., laughing, clapping, stomping, will be constructed for a ramp from

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street level to the lower level for Install—temporary perimeter fencing, Timeframe—Approximately 41 days. emergency vehicle beach access and temporary utilities and foundation, The exact dates of the planned pedestrian access to the lower level temporary life guard tower, temporary activities depend on logistics and restrooms and showers. A 5.6 m (18.5 ft) office trailer, temporary sanitary scheduling. Additional details regarding wall would be located along the north facilities, and temporary sound wall/ the demolition and construction end of the lower level. The walls would visual barrier. activities of the Children’s Pool be designed for a minimum design life Equipment—truck, backhoe, trailer, Lifeguard Station can be found in the of 50 years and would not be small auger, hand/power tools, and City of San Diego’s IHA application. The undermined from ongoing coastal concrete truck. IHA application can also be found erosion. The walls would not be readily Timeframe—Approximately 12 days. online at: http://www.nmfs.noaa.gov/pr/ viewed from Coast Boulevard, the (2.) Demolition and site clearing: permits/incidental.htm#applications. public sidewalks or the surrounding Dismantle and remove existing community. station, remove hardscape and Dates, Duration, and Specific Lower level improvements include landscape, trucks expected to haul-off Geographic Region new beach access restrooms and less than 5 loads of debris via Coast The La Jolla Children’s Pool Lifeguard showers, lifeguard lockers, and a sewage Boulevard. Station is located at 827 1⁄2 Coast pump room. The plaza level plan Equipment—excavator, hydraulic Boulevard, La Jolla, California 92037 includes two work stations, a ready/ ram, jackhammer, trucks, and hand/ (32°50′ 50.02″ North, 117°16′42.8″ West. observation room, kitchenette, restroom power tools. Because the City of San Diego is already and first aid station. The observation Timeframe—Approximately 13 days. requiring a moratorium on all level includes a single occupancy (3.) Site preparation and utilities: construction activities during harbor observation space, radio storage closet, Rough grade building site and modify seal pupping and weaning (i.e., and exterior catwalk. The existing plaza underground utilities. December 15th to May 30th; see page 5 would be reconfigured to provide a 3.1 Equipment—loader, backhoe, and of the Negative Declaration in the IHA m (10 ft) wide ramp for emergency truck. application), work on this project can vehicles to the beach and for Timeframe—Approximately 17 days. only be performed between June 1st and pedestrians to the lower level accessible (4.) Building foundation: December 15th of any year. The City of Dig/shore foundation, pour concrete, restrooms and showers. Enhanced San Diego is planning to begin the waterproofing, and remove shoring. paving, seating and viewing space, project at the Children’s Pool in La Jolla, Equipment—backhoe, concrete pump/ drinking fountains, adapted landscaping California on June 1, 2013, with site truck, hand/power tools, small drill rig, and water efficient irrigation is also preparation (see page 30 to 31 of the and crane. included. No material is expected to Negative Declaration in the IHA Timeframe—Approximately 22 days. enter or be washed into the marine application) followed by demolition of (5.) Building shell: environment that may affect water the existing station and construction of quality, as the City of San Diego has Pre-cast concrete panel walls, panel walls, rough carpentry and roof framing, the new lifeguard station to be developed the U.S. Environmental completed by December 15, 2013. The Protection Agency’s National Pollutant wall board, cable railing, metal flashing, and roofing. IHA may extend through June of 2014 Discharge Elimination System and the to finish the demolition and Stormwater Pollution Prevention Plan, Equipment—crane, truck, fork lift, hand/power tools. construction activities if needed. The required for the demolition and locations and distances (in ft) from the construction activities. Timeframe—Approximately 35 days. (6.) Building exterior: demolition/construction site to the Demolition and construction of the Children’s Pool haul-out area, new lifeguard station is estimated to Doors and windows, siding paint, light fixtures, and plumbing fixtures. breakwater ledge/rocks haul-out area, take approximately 7 months (148 reef haul-out area, and Casa Beach haul- actual demolition and construction Equipment—truck, hand/power tools, and chop saw. out area can be found in the City of San days) and be completed by December Diego’s IHA application. 15, 2013. Demolition and construction Timeframe—Approximately 4 weeks. (7.) Building interiors: activities will occur Monday through Comments and Responses Walls, sewage lift station, rough and Friday (no work will occur on holidays) finish mechanical electrical plumbing A notice of the proposed IHA for the during daylight hours only, as structural (MEPS), wall board, door City of San Diego’s demolition and stipulated in the ‘‘Mitigated Negative frames, doors and paint. construction activities was published in Declaration’’ and local ordinances. Equipment—truck, hand/power tools, the Federal Register on May 3, 2013 (78 Demolition and construction activities and chop saw. FR 25958). During the 30-day public are divided into phases: Timeframe—Approximately 37 days. comment period, NMFS received (1.) Mobilization and temporary (8.) Site improvements: comments from the Marine Mammal facilities; Commission (Commission), Western (2.) Demolition and site clearing; Modify storm drain, concrete seat walls, curbs, and planters, fine grade, Alliance for Nature (WAN), San Diego (3.) Site preparation and utilities; Council of Divers (SDCOD), and (4.) Building foundation; irrigation, hardscape, landscape, hand numerous individuals. The comments (5.) Building shell; rails, plaques, and benches. (6.) Building exterior; Equipment—backhoe, truck, hand/ are online at: http:// (7.) Building interior; power tools, concrete pump/truck, and www.nmfs.noaa.gov/pr/permits/ (8.) Site improvements; and fork lift. incidental.htm. Following are their (9.) Final inspection and Timeframe—Approximately 37 days. substantive comments and NMFS’s demobilization. (9.) Final inspection, demobilization: responses: Detail summary (phases overlap in System testing, remove construction Comment 1: The Commission time): equipment, inspection, and corrections. recommends that NMFS issue the IHA, (1.) Mobilization and temporary Equipment—truck, and hand/power subject to inclusion of the proposed facilities: tools. mitigation and monitoring measures.

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Response: NMFS concurs with the Comment 4: WAN and several Response: NMFS included the date of Commission’s recommendation and has individuals state that all demolition and December 31st in the proposed IHA, but issued the IHA to the City of San Diego. construction work should be completed we have since changed that date and NMFS has modified several of the and cease after November 1st to avoid required that the City of San Diego to monitoring and mitigation measures sensitive and critical life stages of cease planned demolition and included in the proposed IHA for harbor seals and not cause displacement construction activities for the Children’s practicability reasons, as well as from breeding areas. In the pregnancy Pool Lifeguard Station by December 15, included several additional measures cycle, the female is impregnated soon 2013. No demolition and construction (see ‘‘Mitigation’’ and ‘‘Monitoring and after weaning the pup. If the majority of activities will occur from December Reporting’’ sections below for more births occur February, March, and April, 15th to June 1st. This should provide information). weaning occurs from mid-March more protection for the pregnant and Comment 2: SDCOD and several through mid-May. Implantation occurs nursing harbor seals in case they give individuals support the City of San as early as mid-April through mid-June. birth before January 1st. Diego’s demolition and construction The earliest second trimester could Harbor seals breed shortly after activities at the Children’s Pool occur as early as mid-July. The earliest weaning their pups. Delayed Lifeguard Station and would like the third trimester could occur in implantation of the fertilized blastocyst action to begin immediately. The IHA November. occurs 1.5 to 3 months following application is well-researched and Pregnant females have been sighted breeding. The gestation period is approximately 9 months. The first full- accurate, as it invokes every necessary on the beach beginning in late October caution and more, as Dr. Doyle Hanan term harbor seal pups are usually born to early November. Approximately 90% has thoroughly documented the at Children’s Pool in January. Pups of adult females are in the advanced information in reports and has shown typically wean from their mothers in 4 stages of pregnancy by early November. that the population of harbor seals is to 7 weeks. The last pups of the season Hauling-out to rest is a daily robust and resilient and not adversely may not wean until the end of May requirement, and prolonged exposure to impacted by human activity. The area is (Wilkin, 2004). NMFS has received demolition and construction activities considered very valuable for documented reports of aborted harbor has the potential to displace marine recreational purposes to people who seal pups at Children’s Pool. One mammals from breeding areas. The live near this location. The construction potential cause of abortion or premature proposed IHA allows demolition and of the new lifeguard station is important parturition is elevated maternal stress of for human safety. construction activities to continue until pregnant harbor seal females, and this Response: NMFS has factored the December 31st, which is two weeks after cannot be ruled out. However, other commenters’ recommendations and the start of the pupping season (at this causes, such as infection disease or opinions into our final decision. latitude) and long after the harbor seals genetic conditions, cannot be ruled out Comment 3: An individual state’s that are in advanced stages of pregnancy. either. Increased stress of pregnant they support the Children’s Pool as an The project scheduling includes harbor seals could potentially result in important haul-out site and rookery for demolition and construction activities abortions or premature parturition harbor seals and other marine mammals, during use by pregnant females and goes (Wilkin, 2004). Dr. Hanan (2005) states and oppose the issuance of the IHA to into the start of the pupping season that ‘‘it is normal for there to be some the City of San Diego. (officially starts December 15th). premature harbor seal pup births and Response: Since February 2000, Therefore, it does not avoid sensitive pup abandonment. There are many NMFS has managed the Children’s Pool life stages. If the project is allowed to possible reasons for these occurrences. as a haul-out and rookery for harbor continue through the end of December, For example, a female may reject a pup seals and other pinnipeds. NMFS based it could result in premature births and if something is biologically wrong with this decision on the understanding that abortions, as well as site abandonment, the pup.’’ Based on his extensive harbor seals first began to haul-out at when the pregnant females are subjected experience, interactions with humans the Children’s Pool in 1995, with ever to constant high levels of stress. Any are not likely to be a significant cause increasing numbers and in 1999, for the major disruption could be harmful to of harbor seal pup abandonment. first time, harbor seal pup births were the pregnant females and their unborn In 2006, the pupping season was documented at the Children’s Pool. As pups (which could also affect the considered by the City of San Diego to described in detail in the Federal viability of the harbor seal colony at the be from January 1st to May 1st. In 2007, Register notice for the proposed IHA (78 Children’s Pool) (Yochem and Stewart, it was extended to December 15th to FR 25957, May 3, 2013), as well as in 1998). An earlier end-date would May 15th to provide more protection for this document, NMFS does not believe minimize the risk to pregnant females, the pregnant and nursing harbor seals. that the City of San Diego’s demolition give them a chance to rest and prepare The docent program at the Children’s and construction activities would cause for birth, and reduce impacts to the Pool has observed and reported some injury, serious injury, or mortality to rookery. It is pure speculation to state premature births in mid-December; marine mammals, nor are those effects that the activities will not result in the however, none of the four scientific authorized under the IHA. The required alteration of reproductive behaviors or papers written on the Children’s Pool monitoring and mitigation measures have any impact on site selection or have observed births in December. In that the City of San Diego would birthing, particularly since the comparison to the City of San Diego’s implement during the demolition and demolition and construction noise will originally proposed demolition and construction activities would further continue into the late stages of construction schedule, the activities reduce the adverse effects on marine pregnancy. The potential for threatening were changed to start in early to mid- mammals to the lowest levels the viability of the pregnancy are June 2013, with all of the heavy practicable. NMFS anticipates only definitely present during this period of demolition and construction activities behavioral disturbance to occur during demolition and construction. Therefore, to be completed by November 1, 2013. the conduct of the demolition and the level of incidental harassment The revised timing avoids the heaviest construction activities at the Children’s should be elevated to Level A portion of the demolition and Pool Lifeguard Station. harassment. construction during November and

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December. There are 8 days in on the harbor seals, that is not possible construction disturbances. The benefit November and 2 days in December as long as humans are present at the of monitoring by PSOs will be to scheduled for sound to exceed 100 dB beach, since there is no way to distinguish, document and provide at the source (not to exceed 90 dB at the distinguish between the impacts of the insight on impacts from the presence of haul-out area closest to the demolition demolition and construction activities humans and/or the demolition and and construction activities). These and the impacts from human presence. construction activities. Dr. Hanan, the activities are related to hardscape and Human presence, which continually lead PSO, has substantial experience landscaping activities, finish work, and causes large flushes and harassment of observing pinniped behavior (he first demobilization of construction these harbor seals, will continue to be started observing harbor seals in this equipment. These activities should pose allowed and the monitoring does not area in 1979 and has spent significant little, if any, potential impacts that even bother to record the presence of time observing seals along the U.S. west would be considered Level B people on the beach. The contention coast and offshore islands during the harassment to harbor seals at the that these harbor seals are habituated to last 34 years) and the data collected will Children’s Pool. the presence of humans and therefore hopefully allow the City of San Diego to The MMPA defines Level A will not be impacted by the sound of be able to identify these causes, harassment as ‘‘any act of pursuit, demolition and construction activities is especially for flushing and other torment, or annoyance which has the not accurate. These harbor seals react to behavioral responses in nearly all cases. potential to injure a marine mammal or both human disturbance and sound, and When observing harbor seals, sometimes marine mammal stock in the wild.’’ As in particular are not habituated at all to there are alerts and ‘‘flushings’’ for no described in detail in the Federal the demolition and construction noise. apparent reason, which is all the more Register notice for the proposed IHA (78 There is no attempt made to provide a reason to have PSO’s on-site FR 25957, May 3, 2013), as well as in mechanism to distinguish these two documenting harbor seal behavior, this document, NMFS does not believe separate impacts. Monitoring without human presence, and demolition and that the City of San Diego’s demolition the presence of the public will allow for construction activities for comparison to and construction activities would cause a more accurate determination as to previous observations at this site and injury, serious injury, or mortality to what the short-term and long-term other sites with harbor seals that are marine mammals, nor are those impacts of the demolition and away from the Children’s Pool. NMFS authorized under the IHA. The required construction activities may have on and the City of San Diego do not see the monitoring and mitigation measures harbor seals in the action area. need to close the stairs and beach to the that the City of San Diego would Response: Closing the beach during public in order to improve monitoring. implement during the demolition and the demolition and construction Comment 6: WAN and several construction activities would further activities as well as for 60 to 90 days individuals recommend providing reduce the adverse effects on marine after the completion of the project adequate sound mitigation to reduce the mammals to the lowest levels would require a permit from the in-air sound levels and protect the practicable. NMFS anticipates only California Coastal Commission and is harbor seals hearing from the in-air behavioral disturbance to occur during not feasible at this time. It is also not noise generated by the demolition and the conduct of the demolition and within NMFS’s jurisdiction. There are construction activities. There is no construction activities at the Children’s signs posted at the Children’s Pool attempt to reduce the sound levels. This Pool Lifeguard Station. warning that harassment of marine is critical since harbor seals orient by Comment 5: WAN and several mammals is against the law, although sound as well as visual cues, both on individuals state that access to the no such signage is required by law. land and in the water. Above 90 dB, Children’s Pool beach must be closed to NMFS has posted a sign at the harbor seals hearing can be permanently the public as direct harassment occurs Children’s Pool that states ‘‘Warning! impaired. The IHA takes the position on a regular basis. NMFS must require Marine mammals are protected by that because many of the harbor seals in the City of San Diego to close Casa Federal laws. Please! Do NOT disturb La Jolla are acclimated to humans Beach during the demolition and marine mammals. Observe them from a watching them from distances of 15.2 m construction of the lifeguard station and safe distance and keep pets on a leash. (50 ft) or sometimes less, that the harbor maintain the closure for 60 to 90 days Marine mammals are wild animals and seal colony will therefore be unaffected after completion of the project, for can be dangerous! It is against the law by noise levels of 90 to 110 dB. There public safety reasons for humans and to to feed, harass, hunt, capture, or kill is no scientific basis to support this protect harbor seals from possible marine mammals. This includes any act assertion. adverse impacts from the noise, of pursuit, torment, or annoyance that The project intends to create a visible equipment, and workers. The City of has the potential to injure or disturb a barrier with a plywood wall and then San Diego can close the beach as part of marine mammal. Violators are subject to claims this will also serve as an acoustic the Coastal Development Permit (CDP) civil and criminal penalties under the barrier. This is not the case, as visual for the demolition and construction Marine Mammal Protection Act. Report barriers are not necessarily acoustic without having to obtain California violations to the NMFS Enforcement barriers. Here only one layer of plywood Coastal Commission approval by Hotline: 1–800–853–1964.’’ is planned and that will have no impact barricading the stairs. The stairs are While the City of San Diego and on the sound levels, there is no under the City of San Diego’s NMFS agree that harbor seals often alert evidence that a single layer of plywood jurisdiction and the CDP for the or flush for minor, as well as, significant has any acoustic deadening properties at demolition and construction is under stimulus including sound and visual all. The City of San Diego should erect the City of San Diego and was never cues, we believe that required NMFS- a temporary sound barrier wall which appealed to the California Coastal approved Protected Species Observers would consist of a sound blanket or two Commission. This is highly feasible and (PSOs) will be able to differentiate layers of plywood with acoustic should be required. between demolition and construction- deadening material between them Although the IHA requires monitoring related disturbances versus those from (which should be at least as wide as it and recording the impact of the the presence of the public that are is tall). Other methods to reduce noise demolition and construction activities unrelated to the demolition and include sound walls, mufflers, and

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sound blankets on all noise-generating dates and times that the demolition and WAN anticipates that the number of equipment. None of these devices are construction activities should take flushing incidents will rise during the being used, and such an acoustic wall place. To the maximum extent summer as well as on weekends. Video is feasible and should be required. As practicable, the demolition and of one of the human-caused disturbance such, the IHA fails to use the best construction activities will be events can be found online at: http:// available technology to reduce the noise conducted from approximately 8:30 a.m. www.youtube.com/watch?v= impacts on the harbor seals resulting in to 3:30 p.m. (i.e., daylight hours), during UWH3z2iP1Ms&feature=youtu.be. More unnecessary Level B harassment. the daily period of lowest haul-out information on these incidents can be Sound could also be mitigated further occurrence; however, demolition and found in WAN’s comments. Also, WAN by moving heavy noise-generating construction activities may be extended states that the demolition and machinery to the far south side of the 7 a.m. to 7 p.m. to help assure that the construction noise can be expected to site so that in-air sound levels are lower; project is completed during the 2013 dramatically increase the impacts of transferring debris to the dump trucks at demolition and construction window. humans on the harbor seals and may be the street level rather than the trucks Harbor seals typically have the highest sufficient cause them to abandon the picking up the material at sand level; daily or hourly haul-out period during site. They cite several incidents in removing the old tower from the street the afternoon from 3 p.m. to 6 p.m. March and April 2013 where harbor piece-by-piece and not from the beach; Comment 8: WAN and several seals left the beach in response to levels as well as pre-fabricating the new individuals state that the proposed IHA of unrecorded noise that are presumed lifeguard tower and other preparation of improperly characterizes the La Jolla to be lower than those expected to be materials offsite to decrease on-site stock of Pacific harbor seals as generated by the demolition and demolition and construction noise and habituated to human disturbance (e.g., construction activities. Video of one of shorten on-site construction time. human presence and associated loud these disturbance events can be found Response: In the City of San Diego’s noises) and can therefore tolerate online at: http://www.youtube.com/ IHA application, they showed that the additional disturbance. In their watch?v=VRQyn6IOUxY. highest in-air sounds generated by the comments they present studies and In summary, these harbor seals are not demolition and construction activities video monitoring reports that support habituated to the point that they would (approximately 110 dB) will dissipate to their assessments that the harbor seals be expected to ignore additional human 90 dB or lower from the closest point of have not been exposed to unfamiliar disturbance and there is no scientific the building site to the harbor seal haul- noise from demolition and construction analysis of the added impact to them of out area, which is located equipment and will experience acoustic this additional human activity, approximately 10 m away. Therefore, as well as visual disturbance from these particularly to an entirely new type of additional sound barriers and mufflers activities. They further state that there disturbance. The planned demolition are not necessary as the sound will not are very few scientific studies regarding and construction activities will exceed expose harbor seals to 90 dB or higher, the effects of in-air sound on these any past experience and may lead to which is lower than the NMFS’s pinnipeds, and that most studies are on adverse effects on this population. threshold for in-air sound for Level B the effects of in-water sound (see WAN’s Response: Generally, harbor seals are harassment for harbor seals. NMFS has full public comments online at: http:// considered skittish and have the not established a threshold for in-air www.nmfs.noaa.gov/pr/permits/ tendency to react or flush into the water sound for Level A harassment (injury) incidental.htm#iha). They also at low levels of sound and/or for harbor seals and does not anticipate expressed concern that the demolition movements. While a range of behavioral it to occur during the City of San Diego’s and construction activities would lead responses can be expected, it is difficult demolition and construction activities. to physiological responses to the to predict what activities might cause The City of San Diego will require the additional stimuli (see Lindy Weilgart’s noticeable behavioral reactions with contractor conducting the demolition response on habituation and tolerance Pacific harbor seals at this site. and construction activities to keep the in WAN’s comments). The proposed Children’s Pool is a highly disturbed loudest sound as far away as possible activity could have the potential to haul-out site and rookery, and the from the Children’s Pool beach. There displace the harbor seals from this harbor seals observed at this location are will be no trucks on the beach, although breeding area and the applicant has not unusually tolerant to the presence of there is a need for the bobcat loader to provided any credible scientific humans, and do not respond in the pick up material directly below the evidence to the contrary. Video same manner when exposed to stimuli existing building. Every effort will be evidence has shown that pregnant or (e.g., laughing, clapping, stomping, made to keep sound levels as low as sick harbor seals may not respond to climbing, snorkeling, swimming, and possible near the Children’s Pool beach direct harassment, but this does not wading) when compared to the behavior and on the top level above the beach. mean that they are habituated to the of other harbor seals in other areas Comment 7: An individual states that extent claimed in the proposed IHA. (Hanan & Associates, 2004, 2011; harbor seals use the Children’s Pool WAN has documented human-caused Hanan, 2005). beach differently at different times of disturbance at the Children’s Pool site Due to this uncertainty about how the the year. Detailed knowledge of the using monitoring information from a harbor seals will behaviorally react to behavior of seals using this haul-out site continuously-operated surveillance in-air sounds and visual cues from the and rookery would indicate that camera. They have indicated that there demolition and construction activities, lifeguard tower demolition and is a significant difference between the the City of San Diego has established a construction activities should take place numbers of harbor seals on the beach monitoring program to document during daylight between the hours of 9 with and without human presence (see responses and possible impacts. Dr. a.m. and 5 p.m. when most, if not all of Table 1 of WAN’s comments). In recent Hanan, the lead PSO, has been the harbor seals, have departed the months during the later winter and observing harbor seals at or near beach to avoid the hottest part of the spring period, they have documented Children’s Pool and along the west coast day. numerous flushing incidents due to the of the U.S. since 1979. Based on his Response: NMFS disagrees with the presence of human, especially when experience and expertise (court individuals recommendations for the they are on the ocean-side of the rope. approved on harbor seals at Children’s

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Pool; Valorie O’Sullivan v. City of San determination as to what the impacts of WAM webcam can monitor the Diego, 2005), he believes that when the the project are. The only way to Children’s Pool beach 24 hours/7 days harbor seals are in attendance at the determine if abandonment has occurred per week and can monitor the number Children’s Pool, they display or if there has been any long-term of pinnipeds accessing the beach before, remarkable tolerance and are acclimated impact (e.g., a reduction in numbers) is during, and after the demolition and to human presence and anthropological to require a 60-day post-project construction activities. WAN is willing sounds (Hanan, 2004; Hanan, 2011). monitoring period and then a to work with the City of San Diego to Based on previous monitoring and requirement to put in place a recovery employ the technical advantage of the observations, these ‘‘urbanized’’ animals plan, to help re-establish the colony surveillance camera during the project. still alert and flush, but much less than should it turn out that the projected lack WAN has obtained data on harassment, ‘‘non-urbanized’’ harbor seals at other of impact proves false. haul-out patterns, presence of humans sites and especially remote sites. Larger, Response: The City of San Diego has on the beach (both behind and in front older harbor seals seem less likely to modified the monitoring program and it of the rope), weather, etc. WAN states alert and flush than younger harbor will extend for 60 days following the that there is considerable baseline data seals, which are more active when on end of the demolition and construction available that is not being used. The land, moving into and out of the water activities. The City of San Diego will number of harbor seals can vary widely continuously. Regarding the issue of have a program where PSOs that will depending on a number of factors, potential abandonment, please see the randomly select a day per week to visit weather, tides, and presence of humans. response to comment 15 (below) in this the Children’s Pool. The monitoring Three to five days is an insufficient document. data collected at the Children’s Pool site amount of time to get any statistically Comment 9: Several individuals state will be integrated with 10 randomly meaningful baseline data. Since that the proposed IHA does not specify selected 30 minute monitoring periods February 2013, monitoring reports have what timeframe the harbor seals are to using the WAN webcam on three non- been recorded every hour during the be monitored prior to the beginning the observed days via their computers. day from 6 a.m. to 2 a.m. the next demolition and construction activities NMFS has included this as a morning. This baseline data is backed- to assess ‘‘normal reactions’’ often found requirement in the IHA. A re- up by video recording of the entire day at the beach. Such monitoring should establishment or recovery plan has not (24 hours/7days per week). This begin weeks before the demolition and been developed because the City of San extensive data should be reviewed and construction starts. In addition, the City Diego and NMFS thinks that analyzed for use in determining an of San Diego should obtain monitoring abandonment by the harbor seals at the accurate baseline, particularly as it from WAN to determine a baseline for Children’s Pool site is highly unlikely. relates to haul-out patterns. To the presence of harbor seals and their Comment 11: WAN and several understand a complex situation it is individuals state that the monitoring distribution to analyze impacts from the necessary to reduce as many variables as plan should include observations of the demolition and construction activities. possible. Response: The City of San Diego numbers of people on the beach, their began visual and acoustic monitoring location relative to the harbor seals, and Response: NMFS regulations suggest for the demolition and construction any impacts of their presence at the time means of learning of, encouraging, and activities in early June to establish of counting the harbor seals on the coordinating research opportunities, baseline information on the presence beach. The presence of the public is a plans, and activities relating to reducing and distribution of harbor seals and major factor affecting the behavior of the such incidental taking and evaluating its ambient sound levels at the site. To harbor seals and a determination should effects. NMFS has encouraged the City date, Dr. Hanan and other PSOs have be made as to whether or not the of San Diego to work with WAN to been onsite monitoring on June 3, 5, 6, harassment is attributable to the review and analyze any available data to 12, and 13, 2012. Most days and nights presence of the public or to the determine baseline information as well they have also been monitoring the demolition and construction activities. as evaluate the impacts from the Children’s Pool beach using the WAN Recording this data is necessary in order demolition and construction activities webcam. to understand the influence of people on the pinnipeds at the Children’s Pool. Comment 10: WAN and several on harassment. The noise caused by the The City of San Diego informed NMFS individuals recommend requiring presence of humans or the noise caused it is open to working with the WAN’s monitoring to continue for 60 to 90 days by demolition and construction La Jolla Harbor Seal Webcam, which can after the completion of demolition and activities may be additive, synergistic, be found online at: http:// construction activities to determine or multiplicative, magnifying the effects www.wanconservancy.org/ whether there is any long-term of the human disturbance. la_jolla_harbor_seal_earthcam.htm. The displacement from the breeding and Response: NMFS has included a City of San Diego may do periodic resting area. There should be monitoring requirement to this effect in the IHA checks using the webcam for monitoring for at least 60 days after the demolition issued to the City of San Diego. purposes. The camera is not expected to and construction activities cease to be Comment 12: WAN states that the replace NMFS-qualified PSOs at the site certain that the same number of harbor monitoring proposed is to start 30 making accurate counts, measuring seals frequent the beach, as did prior to minutes prior to demolition and sound levels and observing the public the start of the demolition and construction activities and at least 30 and the construction, as well as the construction activities. NMFS fails to minutes after cessation of the in-air seals. In the camera view, you may be require post-project monitoring for a noise-generating activity. The able to see visual evidence of Level B reasonable period of time to determine monitoring should be conducted at all harassment, but it probably would not if the proposed activities have caused times (24 hours/7days per week) or at be able to be distinguished between displacement from the area and least one hour prior to sunrise and one harassment from demolition and abandonment of the site as a rookery. hour after sunset, in order to know what construction activities and the public The basis for this is that ‘‘no funds were impact the demolition and construction since the camera has a limited scope included for this purpose.’’ The lack of may or may not have on the harbor seals and only shows the Children’s Pool funding does not justify omission of a since humans are also present then. The beach and pinnipeds (usually a specific

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portion of the beach, but not the reef nor project-by-project basis. NMFS is the travel to offshore areas such as the nearby beaches). Federal agency charged with issuing the Channel Islands (Steward and Yochem, Comment 13: WAN asks why have no IHA under the MMPA to the City of San 1994; Hanan, 1996; Hanan & Associates, studies been done to determine the Diego and requiring the mitigation, 2011). extent of the current background noise? monitoring, and reporting measures. The City of San Diego will be Even if such studies show background The Commission is an independent monitoring the harbor seals reactions to noise is elevated, the sound levels come agency of the U.S. government, noise levels, demolition and in major part from the ocean itself and established under Title II of the MMPA construction practices, machinery from traffic noise above. The demolition to provide independent oversight of the placement, and workers in the study. and construction noise will be in marine mammal conservation policies See the ‘‘Monitoring and Reporting’’ addition to the existing sound sources, and programs being carried out by section of this document for more will be additive, and will be totally Federal regulatory agencies. A information on the City of San Diego’s different in sound level and frequency. description of the seven duties the monitoring plan. If monthly monitoring Response: The City of San Diego will Commission is charged with as well as results in observations of impacts conduct acoustic monitoring by PSOs other responsibilities can be found greater than anticipated, NMFS will using hand-held digital sound level online at: http://www.mmc.gov/about/ work with the City of San Diego to meters. The acoustic monitoring will be welcome.shtml#missions. NMFS develop and implement additional conducted at the beach of the haul-out forwarded copies of the IHA application monitoring and mitigation measures to site as well as at surrounding areas of and notice of proposed IHA (78 FR further reduce potential impacts from the Children’s Pool. The acoustic 25958, May 3, 2013) to the Commission the demolition and construction monitoring will be conducted before, and its Committee of Scientific activities. If the City of San Diego during, and after demolition and Advisors, and the Commission provided exceeds their authorized take in the IHA construction activities to gather baseline a letter to NMFS on May 21, 2013. The for demolition and construction data on background (i.e., ambient) Commission recommends that NMFS activities at the Children’s Pool sound levels as well as validate issue the IHA, subject to inclusion of the Lifeguard Station, they will re-initiate predicted sound levels from the proposed mitigation and monitoring consultation under the MMPA with equipment being used. measures (see above in this document). NMFS. Comment 14: An individual states Comment 15: WAN and several After the first two months of that it is very important that these PSOs individuals state that using 12,783 takes monitoring during demolition and must be honest and objective, and not over the entire project period equates to construction activities, the City of San volunteers from any animal extremist 1,826 takes per month. If after at least Diego will take the mean number of group. Dr. Hanan, as the lead PSO, is a month of monitoring the average observed harbor seals at the Children’s obligated to report on all observable actual take exceeds the predicted Pool in a 24-hour period across that two reactions. Currently there are number of authorized takes by 25% or months and compare it to the mean of independent monitors from the animal results in adverse impacts to the colony, the lower 95 percent confidence interval activist groups at the Children’s Pool. the demolition and construction in Figure 1 (see below). If the observed They may have had good attentions, but activities should be shut-down and the mean is lower, the City of San Diego members of these organizations are City of San Diego required to work with will shut-down demolition and biased and not objective, and any NMFS to develop and implement a construction activities and work with comments and information must be revised mitigation plan to reduce the NMFS and other harbor seal experts carefully reviewed for accuracy as to not further reduce the number of takes and (e.g., Mark Lowry, Dr. Sarah Allen, Dr. wrongly influence decision makers. impacts to the expected level. Pamela Yochem, and/or Dr. Brent The SDCOD have objection to some of The harbor seals do not have any safe Stewart) to develop and implement a the oversight of monitoring data places to go if the demolition and revised mitigation plan to further reduce gathered on the effects of the activities construction activities cause their the number of takes and potential on harbor seals. The SDCOD requests abandonment. Given anthropogenic impacts. Once a week every week the Commission take direct oversight impacts to the ocean or other thereafter, the City of San Diego will and ensure that the research is solely in unexpected catastrophic events, this take the same mean of observed harbor control of Dr. Hanan without conditions fragment of a colony might well be a seals across the previous three tide or personnel imposed as well as to saving remnant if something were to cycles (a tide cycle is approximately 2 provide oversight to prevent the happen to the waters off the other large weeks) and compare it to the 95% lower degradation of science and law, to harbor seal colonies of the Channel confidence interval in Figure 1 for the provide impartial oversight and a more Islands, Point Mugu or Carpenteria. If it same time period. If the observed mean neutral body. The personnel choices is determined that harbor seals have not is lower, the City of San Diego will shut- and monitoring data should not be returned to the Children’s Pool beach in down and take the action described under the control of an agency directly their pre-project numbers or have above. If abandonment of the site is involved in secondary purposes as there abandoned the site, the City of San likely, monitoring will be expanded is motive to skew data. The Commission Diego should work with NMFS to away from the Children’s Pool to needs to ensure any IHA is administered develop a program designed to re- determine if animals have been so the MMPA works per intent with establish the colony at the site. temporarily displaced to haul-out sites undistorted science behind it. This Response: Harbor seals observed at in the southern California area (e.g., needs to be a condition of the IHA being the Children’s Pool site already use Torrey Pines, Point Loma, etc.). A re- issued by NMFS. nearby haul-out sites at Point Loma and establishment or recovery plan has not Response: Dr. Hanan, an independent Torrey Pines State Beach (at night) in been developed because the City of San biologist, will be the lead PSO for the low numbers. Point Mugu, Carpenteria, Diego and NMFS think that mitigation and monitoring program Goleta, and Point Conception are abandonment by the harbor seals at the required by the IHA. NMFS-qualified mainland haul-out sites that are used by Children’s Pool site is highly unlikely. PSO resumes and curriculum vitaes are large numbers of harbor seals in the Comment 16: WAN states that the reviewed and approved by NMFS on a region. These harbor seals may also duration of the demolition and

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construction activities are not short; it is is very likely to outstrip the animal’s lifeguard station, which has yet to be planned for five days per week, each reserves—stress, lack of adequate haul- completed, and none has been and every week for seven months. There out time to rest, re-oxygenate, keep up authorized. should be a follow-up study and report their internal warmth and build up their Comment 20: WAN states that NMFS submitted at least 60 days after strength, necessary every day. The fails to properly characterize this colony cessation of all activities to determine colony only consists of around 250 of harbor seals as a ‘‘population stock,’’ whether or not any long-term or harbor seals, the expected number of as this population of animals is spatially permanent impacts have occurred. ‘‘takings’’ could very well cause isolated, hauls-out, breeds, and mates Response: All monitoring data desertion of the site and a high rate of among its members in this area. NMFS collected before, during, and after mortality. Thus, recommend a change to references outdated stock assessment demolition and construction activities the IHA to include Level A harassment, reports that were done before the colony will be included in the biological as it is a more realistic type of ‘‘take.’’ at La Jolla was well established and no monitoring notes to be submitted. The Response: The MMPA defines Level A genetic studies have been conducted. City of San Diego would notify NMFS harassment as ‘‘any act of pursuit, This distinct group of seals should be Headquarters and the NMFS Southwest torment, or annoyance which has the characterized as a ‘‘population stock’’ Regional Office prior to initiation of the potential to injure a marine mammal or that meets the definition in the MMPA demolition and construction activities. marine mammal stock in the wild.’’ As as it is a distinct group with distinct A draft final report must be submitted described in detail in the Federal behavioral patterns in this particular to NMFS within 90 days after the Register notice for the proposed IHA (78 location at the Children’s Pool. conclusion of the demolition and FR 25957, May 3, 2013), as well as in Response: The MMPA defines the construction activities of the Children’s this document, NMFS does not believe term ‘‘population stock’’ or ‘‘stock’’ as a Pool Lifeguard Station. The report that the City of San Diego’s demolition group of marine mammals of the same would include a summary of the and construction activities would cause species or smaller taxa in a common information gathered pursuant to the injury, serious injury, or mortality to spatial arrangement, that interbreed monitoring requirements set forth in the marine mammals, nor are those when mature. In NMFS’s U.S. Pacific IHA, including dates and times of authorized under the IHA. The required marine mammal stock assessments, operations, and all marine mammal monitoring and mitigation measures NMFS considers the Pacific harbor seals sightings (dates, times, locations, that the City of San Diego would that occur at the Children’s Pool to be species, behavioral observations implement during the demolition and part of the California stock (NMFS, [activity, group cohesiveness, direction construction activities would further 2011). Although NMFS knows that and speed of travel, etc.], tidal stage, reduce the adverse effects on marine geographic structure exists along an weather conditions, Beaufort sea state mammals to the lowest levels almost continuous distribution of harbor and wind force, activities, associated practicable. NMFS anticipates only seals from California to Alaska, stock demolition and construction activities). behavioral disturbance to occur during boundaries are difficult to draw because A final report must be submitted to the the conduct of the demolition and any rigid line is (to a greater or lesser Regional Administrator within 30 days construction activities at the Children’s extent) arbitrary from a biological after receiving comments from NMFS on Pool Lifeguard Station. perspective. An unknown number of the draft final report. If no comments are Comment 19: WAN and an individual harbor seals also occur along the west received from NMFS, the draft final state that NMFS fails to analyze that coast of Baja California, at least as far report would be considered to be the there may be possible long-term impacts south as Isla Asuncion, which is about final report. on the harbor seal population from 161 km (100 miles) south of Punta Comment 17: WAN states that if there increased visitors and noise at the new Eugenia. Animals along Baja California were serious injury or injury, an facilities. The new facilities could are not considered to be part of the immediate report should also be made increase the number of visitors to the California stock because it is not known to Sea World’s stranding program so beach. In particular, the new facilities if there is any demographically that Sea World might make an attempt will have bathrooms at the beach level significant movement of harbor seals at rescuing the injured animal for (current facilities are at the street level). between California and Mexico and possible rehabilitation. Since the bathrooms in the new there is no international agreement for Response: Contacting Sea World’s lifeguard tower are at beach level, which joint management of harbor seals stranded animal hotline (1–800–541– is closer to the harbor seals, it would be (NMFS, 2011). Determination of 7325) is the standard operating important to study the long-term population structure of harbor seals procedure for live stranded animals impacts on the harbor seals from the using the area will require further (sick and injured) at Children’s Pool. increased number of visitors and research using a combination of Sea World should also be notified for bathroom use. The IHA should include scientific techniques that includes dead stranded pinnipeds so that a a study to assess the impact of noise morphological and genetic analysis necropsy can be performed. NMFS from increased visitors and bathroom. (Hanan & Associates, 2011). should be notified as well, but for The IHA should not be approved, as it Comment 21: WAN and other immediate response purposes Sea stands, unless these problems are dealt individuals state that the take estimates World should be contacted first. Dead with, as it would not satisfy either in the City of San Diego’s IHA stranded cetaceans should be reported Federal requirements under the MMPA application do not meet the ‘‘small to NMFS Southwest Fisheries Science or the San Diego City Municipal Code. numbers’’ requirement of the MMPA. Center at 858–546–7162. NMFS has Response: NMFS does not believe that NMFS has blatantly disregarded the included this as a reporting requirement the future use of the bathroom on the MMPA’s prohibition on allowing the in the IHA. beach level when the new facilities are take of more than small numbers of Comment 18: An individual states completed to be in the scope of this marine mammals. Most egregiously, that given these are wild animals, project and IHA request. The City of San NMFS estimates that 12,783 takes will putting out maximum effort to find their Diego has not requested take, by Level occur affecting 100% of the La Jolla own food supply and maintain their B harassment, incidental to the use of population stock. NMFS does not own health, the duration of the project the bathroom by visitors at the new attempt to explain how its take

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estimates meet the ‘‘small numbers’’ conclusions reached were based on from the specified activity that cannot requirement. The IHA entirely conjecture and not on evidence. For the be reasonably expected to, and is not disregards this statutory requirement. IHA to meet the requirements of the reasonably likely to, adversely affect the NMFS does not attempt to define small MMPA, it must be accompanied by species or stock through effects on numbers, nor does it undertake any sort accurate and appropriate scientific annual rates of recruitment or survival.’’ of analysis of what small numbers might studies; however, it fails to meet that NMFS believes that the time period of be, thus violating the MMPA. The test. the demolition and construction number of takes should be reduced to a Response: NMFS and the City of San activities, the small footprint of in-air smaller percentage to the population Diego have used the best available data sound, the requirement to implement stock as to meet the small numbers and science regarding the biology of mitigation measures, and the inclusion requirement of the MMPA. pinnipeds affected and the propagation of the monitoring and reporting Response: NMFS has determined, of in-air sounds from the equipment measures, will reduce the amount and provided that the aforementioned used during demolition and severity of the potential impacts from mitigation and monitoring measures are construction activities in making the the activity to the degree that it will implemented, that the impact of the City decision on whether or not to issue the have a negligible impact on the species of San Diego conducting demolition and IHA to the City of San Diego for the or stocks in the action area. The City of construction activities at the Children’s demolition and construction activities at San Diego has applied for an IHA and Pool Lifeguard Station, June to the Children’s Pool Lifeguard Station. has met the necessary requirements for December 2013, may result, at worst, in Regarding exposure of marine mammals issuance of an IHA for small numbers of a temporary modification in behavior to high-level in-air sounds, NMFS has marine mammals, by Level B and/or low-level physiological effects established at or above 90 dB re 20 mPa harassment, incidental to the demolition (Level B harassment) of small numbers for harbor seals and at or above 100 dB and construction activities at the m of 3 species of marine mammals (see re 20 Pa for all other pinniped species Children’s Pool Lifeguard Station in La Table 2 below for authorized take (i.e., seals and sea lions) as a criterion Jolla, California. Therefore, NMFS has numbers and approximate percentage of for potential Level B harassment issued an IHA to the City of San Diego. best population estimate of stock). (Lawson et al., 2002; Southall et al., NMFS has determined that the 12,783 2007). NMFS has not established Description of Marine Mammals in the authorized takes (i.e., number of criterion for potential Level A Specified Geographic Area of the exposures) of approximately up to 600 harassment. The required Specified Activity Pacific harbor seals is a small number, determinations, mitigation and as it is approximately 1.98% of the monitoring measures in the IHA are Three species of pinnipeds are known estimated best population (30,196 supported by the best available to or could occur in the Children’s Pool animals) in the California stock. The scientific information, which has been action area and off the Pacific coastline authorized takes of California sea lions available for public review. The IHA has (see Table 1 below). Pacific harbor seals, and northern elephant seals is less than been designed to ensure that the California sea lions, and northern 0.01 percent of the respective U.S. and impacts on the affected species or stocks elephant seals are the three species of California breeding stocks. of marine mammals will be negligible marine mammals that occur and are Comment 22: WAN and an individual and the takings will be at the lower level likely to be found within the activity state that the IHA cannot legally be practicable. area; thus, they are likely to be exposed issued under the MMPA, as it does not Generally, under the MMPA, NMFS to effects of the specified activities. rely on the best available scientific data shall authorize the harassment of small NMFS and the City of San Diego do not regarding the impacts from the noise- numbers of marine mammals incidental expect incidental take of other marine generated by demolition and to an otherwise lawful activity, mammal species. A variety of other construction activities on marine provided NMFS finds that the taking marine mammals have on occasion been mammals and have greater than a will have a negligible impact on the reported from the coastal waters of negligible impact on the stock of Pacific species or stock, will not have an southern California. These include gray harbor seals, especially since the unmitigable adverse impact on the whales, killer whales, bottlenose incidence of ‘‘take’’ on this population availability of the species or stock for dolphins, Steller sea lions, northern fur is 100%. Throughout the document the subsistence uses (where relevant), and if seals, and Guadalupe fur seals. IHA fails to provide reference to valid, the permissible methods of taking and However, none of these species have up-to-date studies to justify many of the requirements pertaining to the been reported to occur in the action conclusions. Studies were either not mitigation, monitoring, and reporting of area. Table 1 below outlines the cited because there are none, or were such takings are set forth to achieve the cetacean and pinnipeds species, their cited that had no relevance or were so least practicable adverse impact. NMFS habitat, and conservation status in the out-dated that they also had no has defined ‘‘negligible impact’’ in 50 nearshore area of the general region of relevance. For the most part, CFR 216.103 as ‘‘an impact resulting the project area.

TABLE 1—THE HABITAT, ABUNDANCE, AND CONSERVATION STATUS OF MARINE MAMMALS INHABITING THE GENERAL REGION OF THE ACTION AREA IN THE PACIFIC OCEAN OFF THE SOUTHERN COAST OF CALIFORNIA

Best population Species Habitat estimate ESA 2 MMPA 3 Population trend (minimum) 1

Mysticetes

Gray whale (Eschrichtius Coastal and shelf ..... 19,126 (18,107) ...... DL—Eastern Pacific NC—Eastern Pacific Increasing over past robustus). stock; EN—West- stock; D—Western several decades. ern Pacific stock. Pacific stock.

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TABLE 1—THE HABITAT, ABUNDANCE, AND CONSERVATION STATUS OF MARINE MAMMALS INHABITING THE GENERAL REGION OF THE ACTION AREA IN THE PACIFIC OCEAN OFF THE SOUTHERN COAST OF CALIFORNIA—Continued

Best population Species Habitat estimate ESA 2 MMPA 3 Population trend (minimum) 1

Odontocetes

Killer whale (Orcinus orca) Widely distributed .... 354 (354)—West NL; EN—Southern NC; D—Southern Increasing—West Coast Transient resident population. Resident and AT1 Coast Transient stock. Transient popu- stock. lations. Bottlenose dolphin Offshore, inshore, 323 (290)—California NL ...... NC ...... Stable. (Tursiops truncatus). coastal, estuaries. Coastal stock. Long-beaked common dol- Inshore ...... 107,016 (76,224)— NL ...... NC ...... Increasing. phin (Delphinus California stock. capensis).

Pinnipeds

Pacific harbor seal (Phoca Coastal ...... 30,196 (26,667)— NL ...... NC ...... Increased in Cali- vitulina richardii). California stock. fornia 1981 to 2004. Northern elephant seal Coastal, pelagic 124,000 (74,913)— NL ...... NC ...... Increasing through (Mirounga angustirostris). when not migrating. California breeding 2005, now stable. stock. California sea lion Coastal, shelf ...... 296,750 (153,337)— NL ...... NC ...... Increasing. (Zalophus californianus). U.S. stock. Steller sea lion Coastal, shelf ...... 72,223 (58,334)— T—Eastern U.S. D ...... Overall increasing, (Eumetopias jubatus). Eastern U.S. stock. stock; EN—West- decreasing in Cali- ern U.S. stock. fornia. Northern fur seal Pelagic, offshore ...... 9,968 (5,395)—San NL ...... NC—San Miguel Is- Increasing. (Callorhinus ursinus). Miguel Island land stock. stock. Guadalupe fur seal Coastal, shelf ...... 7,408 (3,028)—Mex- T ...... D ...... Increasing. (Arctocephalus ico to California. townsendi). NA = Not available or not assessed. 1 NMFS Marine Mammal Stock Assessment Reports. 2 U.S. Endangered Species Act: EN = Endangered, T = Threatened, DL = Delisted, and NL = Not listed. 3 U.S. Marine Mammal Protection Act: D = Depleted, S = Strategic, and NC = Not classified.

The rocks and beaches at or near the North Pacific near Japan, and P. v. California and Mexico and there is no Children’s Pool in La Jolla, California, richardii in the eastern North Pacific. international agreement for joint are almost exclusively Pacific harbor The subspecies in the eastern North management of harbor seals. In seal hauling-out sites. On infrequent Pacific Ocean inhabits near-shore California, approximately 400 to 600 occasions, one or two California sea coastal and estuarine areas from Baja harbor seal haul-out sites are distributed lions or a single juvenile northern California, Mexico, to the Pribilof along the mainland coast and on elephant seal, have been observed on Islands in Alaska. These seals do not offshore islands, including intertidal the sand or rocks at or near the make extensive pelagic migrations, but sandbars and ledges, rocky shores and Children’s Pool (i.e., breakwater ledge/ do travel 300 to 500 kilometers (km) islets, and beaches (Harvey et al., 1995; rocks haul-out area, reef haul-out area, (162 to 270 nautical miles [nmi]) on Hanan, 1996; Lowry et al., 2008). Of and Casa Beach haul-out area). These occasion to find food or suitable these haul-out sites, only 14 locations sites are not usual haul-out locations for breeding areas (Herder, 1986; Harvey are rookeries (2 locations have multiple California sea lions and/or northern and Goley, 2011). Previous assessments sites, for a total of 17 sites) on or near elephant seals. The City of San Diego of the status of harbor seals have the mainland of California. Preferred commissioned two studies of harbor recognized three stocks along the west haul-out sites are those that are seal abundance trends at the Children’s coast of the continental U.S.: (1) protected from the wind and waves, and Pool. Both studies reported that California, (2) Oregon and Washington allow access to deep water for foraging appearances of California sea lions and outer coast waters, and (3) inland waters (Perrin et al., 2008). Harbor seals are one northern elephant seals are infrequent, of Washington. An unknown number of of the most common and frequently but not rare at Children’s Pool (Yochem harbor seals also occur along the west observed marine mammals along the and Stewart, 1998; Hanan & Associates, coast of Baja California, at least as far coastal environment. 2004). south as Isla Asuncion, which is about The population of harbor seals has Pacific Harbor Seal 100 miles south of Punta Eugenia. grown off the U.S. west coast and has Animals along Baja California are not led to new haul-out sites being used in Harbor seals are widely distributed in considered to be a part of the California California (Hanan, 1996). Pacific harbor the North Atlantic and North Pacific. stock because it is not known if there is seals haul-out year-round on nearby Two subspecies exist in the Pacific any demographically significant beaches and rocks (i.e., breakwater Ocean: P. v. stejnegeri in the western movement of harbor seals between ledge/rocks haul-out area, reef haul-out

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area, and Casa Beach haul-out area) Children’s Pool beach with additional studies further indicate that seals are below the lifeguard tower at Children’s harbor seals on the rocks and in the constantly moving along the coast Pool. According to Yochem (2005), the water (Wan, personal communication). including to/from the offshore islands Children’s Pool beach site is used by Almost every day, except for weekends, and that there may be as many as 600 harbor seals at all hours of the day and the number of harbor seals on the beach individual harbor seals using Children’s at all tides with the exception of was over 250 individuals. During the Pool during a year, but certainly not all occasional high tide/high swell events months of September 2012 to January at one time. in which the entire beach is awash. 2013, the average number of harbor The City of San Diego has fitted a Harbor seals have been observed seals on the beach during hours prior to polynomial curve to the number of hauling-out and documented giving people on the beach or with people expected harbor seals hauling-out at the birth at the Children’s Pool since the behind the rope varied from 83 to 120 Children’s Pool by month (see Figure 1 1990’s (Yochem and Stewart, 1998; animals. During this same period when of the IHA application and Figure 2 Hanan & Associates, 2004). It is the only there were people on the beach with or below) based on counts at the Children’s rookery in San Diego County and the without the rope, but where people Pool by Hanan & Associates (2004, only mainland rookery on the U.S. west were across the rope, the average varied 2011), Yochem and Stewart (1998), and coast between the border of Mexico and between 7 to 27, which is significantly the Children’s Pool docents (Hanan & Point Mugu in Ventura County, less. The weather (i.e., wind and/or Associates, 2004). A three percent California (321.9 km [200 miles]). Also, rain) as well as the proximity of humans annual growth rate of the population it is one of the three known haul-out to the beach likely affect the presence of was applied to Yochem and Stewart sites for this species in San Diego harbor seals on the beach. These (1998) counts to normalize them to County. They haul-out, give birth to animals have been observed in this area Hanan & Associates and docent counts pups, nurse, and molt their pelage on moving to/from the Children’s Pool, in 2003 to 2004. the beach and often forage for food in exchanging with the rocky reef directly A complete count of all harbor seals nearby areas. Harbor seal numbers have west of and adjacent to the breakwater in California is impossible because some increased since 1979 and seals are and with Seal Rock, which is about 150 are always away from the haul-out sites. documented to give birth on these m (492 ft) west of the Children’s Pool. A complete pup count (as is done for beaches during December through May Harbor seals have also been reported on other pinnipeds in California) is also not (Hanan, 2004; 2011). The official start to the sandy beach just southwest of the possible because harbor seals are pupping season is December 15th. Children’s Pool. At low tide, additional precocial, with pups entering the water Females in an advanced stage of space for hauling-out is available on the almost immediately after birth. Population size is estimated by counting pregnancy begin to show up on the rocky reef areas outside the retaining the number of seals ashore during the Children’s Pool beach by late October to wall and on beaches immediately peak haul-out period (May to July) and early November. Several studies have southward. Haul-out times vary by time by multiplying this count by a identified harbor seal behavior and of year, from less than an hour to many correction factor equal to the inverse of estimated harbor seal numbers hours. There have been no foraging the estimated fraction of seals on land. including patterns of daily and seasonal studies at this site, but harbor seals have Based on the most recent harbor seal area use (Yochem and Stewart, 1998; been observed in nearshore waters and counts (2009) and including a revised Hanan & Associates, 2004, 2011; Linder, kelp beds nearby, including La Jolla correction factor, the estimated 2011). Males, females, and pups (in Cove. population of harbor seals in California season) of all ages and stages of Radio-tagging and photographic is 30,196 individuals (NMFS, 2011), development are observed at the studies have revealed that only a with an estimated minimum population Children’s Pool and adjacent areas. portion of seals utilizing a hauling-out of 26,667 for the California stock of In southern California, a considerable site are present at any specific moment harbor seals. Counts of harbor seals in amount of information is known about or day (Hanan, 1996, 2005; Gilbert et al., California increased from 1981 to 2004. the movements and ecology of harbor 2005; Harvey and Goley, 2011; and The harbor seal is not listed under the seals, but population structure in the Linder, 2011). These radio-tagging ESA and the California stock is not region is not as well known (Stewart studies indicate that harbor seals in considered depleted or strategic under and Yochem, 1994, 2000; Keper et al., Santa Barbara County haul-out about 70 the MMPA (Carretta et al., 2010). 2005; Hanan & Associates, 2011). Linder to 90% of the days annually (Hanan, (2011) suggests that this population 1996), the City of San Diego expects California Sea Lion moves along the California coast and the harbor seals to behave similarly at the The California sea lion is now beach at Children’s Pool is part of a Children’s Pool. Tagged and branded considered to be a full species, ‘‘regional network of interconnected’’ harbor seals from other haul-out sites separated from the Galapagos sea lion haul-out and pupping sites. Harbor seals have been observed by Dr. Hanan at the (Zalophus wollebaeki) and the extinct often haul-out in protected bays, inlets, Children’s Pool. Harbor seals have been Japanese sea lion (Zalophus japonicus) and beaches (Reeves et al., 1992). At and observed with red-stained heads and (Brunner, 2003; Wolf et al., 2007; near the Children’s Pool, harbor seals coats, which are typical of some harbor Schramm et al., 2009). The breeding haul-out on the sand, rocks, and seals in San Francisco Bay, indicating areas of the California sea lion are on breakwater base in numbers of 0 to 15 that seals tagged at other locations and islands located in southern California, harbor seals to a maximum of about 150 haul-out sites do visit the Children’s western Baja California, and the Gulf of to 200 harbor seals depending on the Pool. A few seals have been tagged at California. Genetic analysis of California time of day, season, and weather the Children’s Pool and there are no sea lions identified five genetically conditions (Hanan & Associates, 2004, reports of these tagged animals at other distinct geographic populations: (1) 2011; Linder, 2011). Based on sites (probably because of very low re- Pacific Temperate, (2) Pacific monitoring from a camera, WAN reports sighting efforts and a small sample size Subtropical, (3) Southern Gulf of that during the month of May 2013, at [10 individuals radio-tagged]), which California, (4) Central Gulf of California, any given time, up to 302 harbor seals may indicate a degree of site-fidelity and (5) Northern Gulf of California were documented resting on the (Yochem and Stewart, 1998). These (Schramm et al., 2009). In that study,

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the Pacific Temperate population demographically isolated from the Baja The City of San Diego requests included rookeries within U.S. waters California population. The California authorization for Level B harassment of and the Coronados Islands just south of breeding population is considered in three species of marine mammals (i.e., U.S./Mexico border. Animals from the NMFS stock assessment report to be a Pacific harbor seals, California sea lions, Pacific Temperate population range separate stock. and northern elephant seals) incidental north into Canadian waters, and A complete population count of to the use of equipment and its movement of animals between U.S. elephant seals is not possible because propagation of in-air noise from various waters and Baja California waters has all age classes are not ashore at the same acoustic mechanisms associated with been documented, though the distance time. Elephant seal population size is the demolition and construction between the major U.S. and Baja typically estimated by counting the activities of the Children’s Pool California rookeries is at least 740.8 km number of pups produced and Lifeguard Station at La Jolla, California (400 nmi). Males from western Baja multiplying by the inverse of the discussed above. Several species of California rookeries may spend most of expected ratio of pups to total animals marine mammals may potentially occur the year in the U.S. (McCann, 1985). Based on the estimated in the specified geographic area and The entire population cannot be 35,549 pups born in California in 2005 thus may be affected by the action. counted because all age and sex classes and an appropriate multiplier for a Pacific harbor seals are the most are never ashore at the same time. In rapidly growing population, the common species, the California sea lion lieu of counting all sea lions, pups are California stock was approximately and northern elephant seal are observed counted during the breeding season 124,000 in 2005. The minimum occasionally, and thus considered likely (because this is the only age class that population size for northern elephant to be exposed to sound associated with is ashore in its entirety), and the seals can be estimated very the demolition and construction numbers of births is estimated from the conservatively as 74,913, which is equal activities. Behavioral disturbance may pup count. The size of the population is to twice the observed pup count (to potentially occur as well incidental to then estimated from the number of account for the pups and their mothers), the visual presence of humans and births and the proportion of pups in the plus 3,815 males and juveniles counted demolition/construction activities; population. Censuses are conducted in at the Channel Islands and central however, pinnipeds at this site have July after all pups have been born. There California sites in 2005 (Lowry, NMFS likely adapted or become acclimated to are no rookeries at or near the unpublished data). Based on trends in human presence at this site. Large Children’s Pool. Population estimates pup counts, northern elephant seal numbers of people come to the site to for the U.S. stock of California sea lions, colonies were continuing to grow in view the pinnipeds at all hours and they range from a minimum of 153,337 to an California through 2005, but appear to perform many activities that can disturb average estimate of 296,750 animals. be stable or slowly decreasing in Mexico pinnipeds at other sites, but this often They are considered to be at carrying (Stewart et al., 1994). Northern elephant does not occur at Children’s Pool as capacity of the environment. The seals are not listed under the ESA and they seem to have acclimated to human California sea lion is not listed under are not considered as depleted or a presence and associated noises (e.g., the ESA and the U.S. stock is not strategic stock under the MMPA. nearby vehicles, overhead aircrafts, considered depleted or strategic under small boats, audio systems, dogs, human the MMPA. Further information on the biology and local distribution of these marine activities on foot, and human Northern Elephant Seal mammal species and others in the vocalizations) (Hanan & Associates, Northern elephant seals breed and region can be found in the City of San 2004; 2011). These ‘‘urbanized’’ harbor give birth in California (U.S.) and Baja Diego’s application, which is available seals do not exhibit sensitivity at a level California (Mexico), primarily on upon request (see ADDRESSES), and the similar to that noted in harbor seals in offshore islands (Stewart et al., 1994), NMFS Marine Mammal Stock some other regions affected by human from December to March (Stewart and Assessment Reports, which are available disturbance (Allen et al., 1984; Suryan Huber, 1993). Males feed near the online at: http://www.nmfs.noaa.gov/pr/ and Harvey, 1999; Henry and Hammil, eastern Aleutian Islands and in the Gulf sars/. 2001; Johnson and Acevedo-Gutierrez, 2007; Jansen et al., 2006; Hanan & of Alaska, and females feed further Potential Effects on Marine Mammals south, south of 45° North (Stewart and Associates, 2011). Lifeguards at the Huber, 1993; Le Boeuf et al., 1993). Richardson et al. (1995) has Children’s Pool and nearby areas Adults return to land between March documented changes in behavior and estimate that an average of 1,556,184 and August to molt, with males auditory threshold shifts in response to people per year or 129,682 per month returning later than females. Adults in-air and underwater noise. Behavioral visit the site from 2010 to 2012. The vast return to their feeding areas again responses to loud noises could include majority of these visitors have come to between their spring/summer molting startling, alertness, changes in physical the Children’s Pool specifically to watch and their winter breeding seasons. movement, temporary flushing from the the harbor seals. A maximum of 15 Populations of northern elephant beach, site abandonment, and pup personnel, at any one time, are expected seals in the U.S. and Mexico were all abandonment (Allen, 1991; Kastak and to be part of the demolition and originally derived from a few tens or a Schusterman, 1996; Kastak et al., 1999; construction activities. few hundreds of individuals surviving Hanan & Associates, 2011). NMFS and Current NMFS practice, regarding in Mexico after being nearly hunted to the City of San Diego anticipate short- exposure of marine mammals to high- extinction (Stewart et al., 1994). Given term behavioral impacts on pinnipeds at level in-air sounds, as a threshold for the very recent derivation of most the Children’s Pool to include startling, potential Level B harassment, is at or rookeries, no genetic differentiation alertness, changes in physical above 90 dB re 20 mPa for harbor seals would be expected. Although movement movement, temporary flushing from the and at or above 100 dB re 20 mPa for all and genetic exchange continues beach, and general diminished use of other pinniped species (Lawson et al., between rookeries when they start the haul-out site during the demolition 2002; Southall et al., 2007). NMFS does breeding (Huber et al., 1991). The and construction activities (Hanan & not expect exposure of marine mammals California breeding population is now Associates, 2011). to high-level underwater sounds from

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demolition and construction activities or by foraging outside of the immediate the haul-out site within a short time that would be considered for potential Children’s Pool area. (Hanan & Associates, 2002; Yochem, Level B harassment. The acoustic In-Air Noise—The principal source of 2004; Hanan & Associates, 2011). mechanisms involved entail in-air non- in-air noise would be from a 980 Case Although harbor seals could also be impulsive noise caused by the backhoe, dump truck, air compressor, affected by in-air noise and activity demolition and construction activities. electric screw guns, jackhammer, associated with demolition and Expected in-air noise levels are concrete saw, and chop saws used for construction at the lifeguard station, anticipated to result in elevated sound the demolition and construction harbor seals at Children’s Pool haul-outs intensities near the demolition and activities. Background noise levels near are presumably acclimated to human construction activities. No other the Children’s Pool are likely already activity to some extent due to the daily mechanisms are expected to affect elevated due to normal activities (e.g., coming and going (i.e., presence) of marine mammal use of the area. The human presence and traffic) and the humans, and to other existing activities other activities, would not affect any ocean. There have been no studies in the area. These activities may occur haul-out and would not entail noise, conducted at the Children’s Pool at any time of the day and may produce and activity surrounding the water regarding background noise in the area, noise for periods of up to several hours materially different from normal but the City of San Diego will conduct at a time. The operation of loud operations at the lifeguard station, to pre- and post-acoustic monitoring to equipment are above and outside of the which the animals may be somewhat determine ambient sound levels as well range of normal activity at the habituated already. as noise-levels generated from the Children’s Pool and have the potential Since no demolition or construction demolition and construction activities. to cause seals to leave a haul-out at the activities will be performed during the Marine mammals at Children’s Pool Children’s Pool. This would constitute pupping and weaning season (i.e., mid- haul-outs are presumably tolerant and Level B harassment (behavioral). In December through mid-May), there will acclimated to the daily coming and view of the relatively small area that be no impacts on birthing rates or pup going of humans, automobiles, and to would be affected by elevated in-air survivorship at the Children’s Pool. other existing activities at the action noise and the proximity to the haul-out There will be no in-water demolition area. These activities may occur at any sites, it appears probable that some and construction activities in or near the time of the day for periods of up to harbor seals could show a behavioral water so pinniped activities in the water several hours at a time. response, despite their tolerance to Hanan & Associates (2004) noted that current levels of human-generated should not be affected. Additionally, harbor seals hauled-out at the Children’s noise; incidental take by this pinnipeds utilizing the Children’s Pool Pool are exposed to the constant mechanism may occur during the beach as a haul-out site are a very small presence of humans (on the beach, sea demolition and construction activities. portion of the species and/or stock wall, lifeguard tower, and sidewalks). Harbor seal presence in the activity populations and any impacts would There are so many human visitors to the area is perennial, with daily presence at have little effect at the species and/or Children’s Pool site at all hours of the a nearby haul-out (Seal Rock is several stock population levels. day and night, season, and weather that hundred yards east of the Children’s As noted above, current NMFS human scent and visual presence are Pool site) during the months when the practice, regarding exposure of marine generally not considered issues (Hanan, activity would occur. The potentially mammals to high-level in-air sounds, as 2004; 2011). At this site, the Pacific affected harbor seals include adults of a potential threshold for Level B harbor seals are most disturbed when both sexes. The harbor seals at harassment, is at or above 90 dB re 20 people get very close to them on the Children’s Pool may be non-migratory mPa for harbor seals and at or above 100 beach (i.e., probably 2 to 3 m [6.6 to 9.8 residents, exhibiting site fidelity at the dB re 20 mPa for all other pinniped ft]. However, the City of San Diego haul-out sites. Harbor seals often stay species. Pinnipeds at Children’s Pool wants to be authorized for incidental within a 50 km (31.1 miles) range of are likely already exposed to and take coverage in case pinnipeds alert to haul-outs, but young individuals and habituated to loud noise and human the novel presence or sounds of adult males have lower site fidelity and presence, and thus may have areas of equipment not previously experienced dispersal rates. Adult females are effect comparable to the radius of effect by pinnipeds at this location. The known to mate and give birth in the area calculated for noise from the demolition contractors will not directly approach where they were born (i.e., high degree and construction activities. Behavioral the Pacific harbor seals during the of natal philopatry) (Harkonen and considerations suggest that the demolition and construction activities. Harding, 2001; Linder, 2011). Cannon pinnipeds would be able to determine At the individual level, a newly (2009) documented individuals moving that a noise source does not constitute arrived pinniped (moved in from between haul-out sites at Las Islas a threat if it is more than a certain another area) may not have acclimated Coronados, Mexico and the Children’s distance away, and the sound levels to humans and noise as pinnipeds that Pool, which are located approximately involved are not high enough to result have been on site for awhile. These 50 km apart (Linder, 2011). However, it in injury (Level A harassment). recent arrivals may alert to these is possible that at least some of the Nonetheless, these data suggest that stimuli, perhaps flushing into the water. harbor seals using this site come from demolition and construction activities However, after a few days of using the moderate distances, as they are known may affect pinniped behavior beach at Children’s Pool, the City of San to travel distances up to approximately throughout the Children’s Pool area, i.e., Diego would expect the pinnipeds to 550 km (297 nmi) for foraging or mating within approximately a few hundred acclimate and not react to humans purposes (Herder, 1986; Linder, 2011; feet of the activity. The nature of that (unless close to them) or noises at the Hanan & Associates, 2011). A study by effect is unpredictable, but logical demolition and construction activities Greenslade (2002) on diet and foraging responses on the part of the pinnipeds site. Observations have shown that loud ecology suggests that the harbor seals at include tolerance (noise levels would and startling noises have consistently Children’s Pool travel some distance likely not be loud enough to induce caused some of the harbor seals at the away from the haul-out site to feed, as temporary threshold shift in harbor site to flush into the water, and the main prey species in their diet (i.e., seals), or avoidance by using haul-outs generally the harbor seals returned to Pacific sanddab and Pacific hake) do not

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occur in the kelp forest near the La Jolla that they are present, it is possible area, and no permanent change in seal area (Linder, 2011). California sea lions and northern or sea lion use of haul-outs and related Although harbor seals are tolerant to elephant seals might be subject to habitat features is anticipated to occur the presence of humans and other behavioral harassment. as a result of the project (Hanan & visible and non-visible disturbances, The potential effects to marine Associates, 2011). The temporary they may display a range of behaviors mammals described in this section of impacts on the acoustic environment are when exposed to noise from demolition the document do not take into not expected to have any permanent and construction activities. Using the consideration the monitoring and effects on the species or stock webcam, WAN has documented that mitigation measures described later in populations of marine mammals when major flushing events occur it can this document (see the ‘‘Mitigation’’ and occurring at the Children’s Pool. The take a day or two for them to return in ‘‘Monitoring and Reporting’’ sections) area of habitat affected is small and the the same numbers. Videos of these which, as noted are designed to effect effects are temporary, thus there is no events can be found online at: http:// the least practicable adverse impact on reason to expect any significant www.youtube.com/watch?v= affected marine mammal species or reduction in habitat available for UWH3z2iP1Ms&Feature=youtu.be and stocks. foraging and other habitat uses. http://www.youtube.com/watch?v= NMFS anticipates that the action will Anticipated Effects on Marine Mammal VRQyn6IOUxY. result in no impacts to marine mammal Habitat It is likely that many harbor seals in habitat beyond rendering the areas the ‘‘urbanized’’ population would be All demolition and construction immediately around the Children’s Pool affected more than once over the course activities are beyond or outside the less desirable during demolition and of the demolition and construction habitat areas where harbor seals and construction activities of the Children’s period; therefore, it is possible that other pinnipeds are found. Visual Pool Lifeguard Station as the impacts some measure of adaptation or barriers will be erected to shield will be localized. Impacts to marine acclimatization would occur on the part construction activities from the visual mammals, invertebrates, and fish of the harbor seals, whereby they would perception and potentially dampen species are not expected to be tolerate elevated noise levels and/or acoustic effects on pinnipeds. Because detrimental. utilize haul-outs relatively distant from the public occasionally harasses the the demolition and construction harbor seals with various activities, the Mitigation activities. This strategy is possible, but NMFS-qualified PSO monitoring the site In order to issue an ITA under section it is difficult to predict whether the will make observations and attempt to 101(a)(5)(D) of the MMPA, NMFS must harbor seals would show such a distinguish and attribute any observed set forth the permissible methods of response. Project scheduling avoids the harassment to the public or to the taking pursuant to such activity, and most sensitive breeding phases of harbor demolition and construction activities other means of effecting the least seals. Project activities producing in-air and give all details in the observation practicable adverse impact on such noise would commence in June, after report. If any short-term, temporary species or stock and its habitat, paying pupping season and when pups have impacts to habitat due to sounds or particular attention to rookeries, mating been weaned. Project activities visual presence of equipment and grounds, and areas of similar producing in-air noise are scheduled to workers did occur, the City of San Diego significance, and on the availability of terminate by the middle of December, would expect pinniped behavior to such species or stock for taking for which is before adult female harbor return to pre-demolition and certain subsistence uses. seals begin pupping. Visibly pregnant construction conditions soon after the The City of San Diego has established females may begin using this site in activities are completed which is the Children’s Pool as a shared beach for November, and perhaps as early as anticipated to occur before the next pinnipeds and people. In the past, October. pupping season (Hanan & Associates, during the pupping season, a rope was Effects on California Sea Lions and 2011). This site is already very placed along the upper part of the beach Northern Elephant Seals—California sea disturbed by member of the public who to designate how close people can come lions and northern elephant seals, come to the area during the day and to the haul-out area. The timeframe for although abundant in northern night to view the pinnipeds. The City of the rope has been extended so that it is California waters, have seldom been San Diego and NMFS do not project any now present year-round. The demolition recorded at the Children’s Pool. Their loss or modification of physical habitat and construction activities are planned low abundance in the area may be due for these species. Any potential to occur outside the harbor seal pupping to the presence of a large and active temporary loss or modification of and weaning periods. Visual and harbor seal population there, which habitat due to in-air noise or visual acoustic barriers will be constructed. likely competes with the California sea presence of equipment and workers The visual and acoustic barrier will be lions and northern elephant seals for during the activities is expected by the constructed of plywood, 1.8 to 2.4 m (6 foraging resources. Any California sea City of San Diego and NMFS to be to 8 ft) tall. The barriers will be placed lions that visit the action area during quickly restored after demolition and at the site with input from NMFS construction activities would be subject construction activities end and all Southwest Regional Office (SWRO) to the same type of impacts described equipment and barriers are removed. personnel so that they will hide as above for harbor seals. There is a The anticipated adverse impacts upon advantageously as possible the possibility of behavioral effects related habitat consist of temporary changes to demolition and construction activities to project acoustic impacts, in the event the in-air acoustic environment, as that may be seen by pinnipeds. The of California sea lion and northern detailed in the IHA application. These barriers may dampen the acoustic sound elephant seal presence in the activity changes are minor, temporary, and of sources, but are not expected to exclude area. California sea lions and northern limited duration to the period of sound from the environment. As the site elephant seals have been seen in the demolition and construction activities. is a beach with construction along the activity area, albeit infrequently, and No aspect of the project is anticipated to cliff and on flat areas above the cliff, a there are no quantitative estimates of the have any permanent effect on the complete barrier cannot likely be frequency of their occurrence. Assuming location of pinniped haul-outs in the constructed to hide all demolition and

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construction activities for the project. The activity planned by the applicant activities if needed. Avoiding periods Once the walls of the lifeguard station’s includes a variety of measures when the highest number of marine building are in place, much of the calculated to minimize potential mammal individuals are in the action demolition and construction activities impacts on marine mammals, including: area is another mitigation measure to will take place above the Children’s • Construction shall be prohibited protect marine mammals from Pool beach (i.e., out of sight) as well as during the Pacific harbor seal pupping demolition and construction activities. inside the building (i.e., a visual and season (December 15th to May 15th) and partial sound barrier). There will be no for an additional four weeks to Abandonment activities in the ocean or closer to the accommodate lactation and weaning of After the first two months of water’s edge and since harbor seals mate late season pups. Thus, construction underwater in the ocean, there will be shall be prohibited from December 15th monitoring during demolition and no impacts on mating activities. to June 1st. construction activities, the City of San California sea lions and northern • Demolition and construction Diego will take the mean number of elephant seals are such infrequent users activities shall be scheduled, to the observed harbor seals at the Children’s of this area and their rookeries are so far maximum extent practicable, during the Pool in a 24-hour period across that two away (at least 104.6 km [65 miles] at daily period of lowest haul-out months and compare it to the mean of offshore islands) that there will be no occurrence, from approximately 8:30 the lower 95 percent confidence interval adverse impact on these species. a.m. to 3:30 p.m.; however, demolition in Figure 1 (see below). If the observed Since the notice of the proposed IHA and construction activities may be mean is lower, the City of San Diego (78 FR 25958, May 3, 2013), NMFS has extended from 7 a.m. to 7 p.m. to help will shut-down demolition and modified several of the monitoring and assure that the project can be completed construction activities and work with mitigation measures included in the during the 2013 demolition and NMFS and other harbor seal experts proposed IHA for practicability reasons, construction window. Harbor seals (e.g., Mark Lowry, Dr. Sarah Allen, Dr. as well as included several additional typically have the highest daily or Pamela Yochem, and/or Dr. Brent measures. These include changing the hourly haul-out period during the Stewart) to develop and implement a pupping season from December 15th to afternoon from 3 p.m. to 6 p.m. revised mitigation plan to further reduce May 15th and prohibiting demolition • A visual and acoustic barrier will be the number of takes and potential and construction activities during this erected and maintained for the duration impacts. Once a week every week time; extending demolition and of the project to shield demolition and thereafter, the City of San Diego will construction activities from 7 a.m. to 7 construction activities from beach view. take the same mean of observed harbor p.m. to help assure that the project is The temporary barrier shall consist of 1⁄2 seals across the previous three tide completed during the 2013 demolition to 3⁄4 inch (1.3 to 1.9 centimeters [cm]) cycles (a tide cycle is approximately 2 and construction window; continuing plywood constructed 1.8 to 2.4 m (6 to weeks) and compare it to the 95% lower monitoring for 60 days following the 8 ft) high depending on the location. confidence interval in Figure 1 for the end of demolition and construction • Use of trained PSOs to detect, same time period. If the observed mean activities; and triggering a shut-down of document, and minimize impacts (i.e., is lower, the City of San Diego will shut- demolition and construction activities possible shut-down of noise-generating down and take the action described in the unexpected event of operations [turning off the equipment so above. If abandonment of the site is abandonment of the Children’s Pool that in-air sounds associated with likely, monitoring will be expanded site. The mitigation measure on construction no longer exceed levels away from the Children’s Pool to scheduling the heaviest demolition and that are potentially harmful to marine determine if animals have been construction activities (with the highest mammals]) to marine mammals. sound levels) during the annual period temporarily displaced to haul-out sites of lowest haul-out occurrence (October Timing Constraints for In-Air Noise in the southern California area (e.g., to November) was removed as it was To minimize in-air noise impacts on Torrey Pines, Point Loma, etc.). For the included in the City of San Diego’s marine mammals, underwater purpose of this action, NMFS will Mitigated Negative Declaration when it construction activities shall be limited consider the Children’s Pool site to was anticipated that the City of San to the period when the species of possibly be abandoned if zero harbor Diego would obtain an IHA in the concern will be least likely to be in the seals are present each day during the summer of 2012 and begin demolition project area. The construction window daytime and nighttime hours for at least and construction activities in the fall of for demolition and construction three tide cycles (a tide cycle is 2012. This is no longer practicable due activities shall be from June 1 to approximately 2 weeks), but this cannot to logistics, scheduling and to allow the December 15, 2013. The IHA may be confirmed until observed to continue planned activities to be completed extend through June of 2014 to finish to be zero during a full pupping and before the next pupping season. the demolition and construction molting season.

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More information regarding the City taking.’’ The MMPA implementing distance from sound sources. Daily of San Diego’s monitoring and regulations at 50 CFR 216.104 (a)(13) monitoring reports will be maintained mitigation measures, for the demolition indicate that requests for IHAs must for periodic summary reports to the City and construction activities at the include the suggested means of of San Diego and to NMFS. Children’s Pool Lifeguard Station can be accomplishing the necessary monitoring Observations will be entered into found in the IHA application. and reporting that will result in maintained Hanan & Associates NMFS has carefully evaluated the increased knowledge of the species and computers. The City of San Diego plans applicant’s mitigation measures and of the level of taking or impacts on to follow the reporting in the Mitigated considered a range of other measures in populations of marine mammals that are Negative Declaration that states ‘‘the the context of ensuring that NMFS expected to be present in the action biologist shall document field activity prescribes the means of effecting the area. via the Consultant Site Visit Record. least practicable adverse impact on the The City of San Diego has developed The Consultant Site Visit Record shall affected marine mammal species and a monitoring plan (see Appendix I. be either emailed or faxed to the City of stocks and their habitat. NMFS’s Mitigated Negative Declaration in the San Diego’s Mitigation Monitoring evaluation of potential measures IHA application) based on discussions Coordination process (MMC) on the 1st included consideration of the following between the project biologist, Dr. Doyle day of monitoring, the 1st week of each factors in relation in one another: month, the last day of monitoring, and • Hanan, and NMFS biologists. The plan The manner in which, and the has been vetted by City of San Diego immediately in the case of any degree to which, the successful planners and reviewers. The plan has undocumented discovery. The project implementation of the measure is been formal presented to the public for biologist shall submit a final expected to minimize adverse impacts review and comment. The City of San construction monitoring report to MMC to marine mammals; Diego has responded in writing and in within 30 days of construction • The proven or likely efficacy of the public testimony (see City of Council completion.’’ The MMC ‘‘coordinates specific measure to minimize adverse Hearing, December 14, 2011) to all the monitoring of development projects impacts as planned; and and requires that changes are approved • The practicability of the measure public concerns. and implemented to be in conformance for applicant implementation, including The basic plan is to survey prior to with the permit requirements and to consideration of personnel safety, construction activities and then monitor practicality of implementation, and demolition and construction activities minimize any damage to the impact on the effectiveness of the by NMFS-approved PSOs with high- environment.’’ These documents will activity. resolution binoculars and handheld also be sent to NMFS. NMFS has determined that the digital sound level meters (measuring The City of San Diego will include mitigation measures will have the least devices). PSOs will observe from a sound measurements at and near the practicable adverse impact on the station along the breakwater wall as demolition and construction site in their species or stocks of marine mammals in well as the base of the cliff below the initial survey prior to the activities as a the action area. demolition/construction area. PSOs will background and baseline for the project. be on site approximately 30 minutes While no specific acoustic study is Monitoring and Reporting before the start of demolition and planned, the City of San Diego’s In order to issue an ITA for an construction activities and continue for Mitigated Negative Declaration states activity, section 101(a)(5)(D) of the 30 minutes after activities have ceased. that marine mammal monitoring shall MMPA states that NMFS must set forth Monitors will have authority to stop be conducted for three to five days prior ‘‘requirements pertaining to the construction as necessary depending on to construction and shall include hourly monitoring and reporting of such sound levels, pinniped presence, and systematic counts of pinnipeds using

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the beach, Seal Rock, and associated monitoring and reporting shall be time and duration of each animal’s reef areas. Monitoring three to five days performed for the action: presence in the project vicinity; the prior to construction will provide (1) A NMFS-approved or -qualified number of animals observed; the baseline data regarding recent haul-out PSO shall attend the project site prior behavior of each animal, including any behavior and patterns as well as to, during, and after construction response to noise-generating activities; background noise levels near the time of activities cease each day throughout the • Time of the cessation of in-air noise demolition and construction activities. demolition and construction window. generating activities; and • The City of San Diego has modified its (2) The PSO shall be approved by Time of observer departure from monitoring program to include 60 days NMFS prior to demolition and site. of monitoring post-demolition and construction activities. All monitoring data collected during construction activities. Following (3) The PSO shall search for marine demolition and construction will be demolition and construction, the City of mammals within the Children’s Pool included in the biological monitoring San Diego will have a program of onsite area. notes to be submitted. A final report PSOs that will randomly select a day (4) The PSO shall be present during summarizing the demolition and per week integrated with 10 randomly demolition and construction activities construction monitoring and any selected 30 minute monitoring periods to observe for the presence of marine general trends observed will also be using the WAN webcam on three non- mammals in the vicinity of the specified submitted to NMFS within 90 days after observed days via their computers when activity. All such activity will occur monitoring has ended during the period the WAN webcam is working. During during daylight hours (i.e., 30 minutes of the lifeguard station demolition and the demolition and construction after sunrise and 30 minutes before construction. The City of San Diego would notify activities, monitoring shall assess sunset). If inclement weather limits NMFS Headquarters and the NMFS behavior and potential behavioral visibility within the area of effect, the Southwest Regional Office prior to responses to demolition and PSO will perform visual scans to the initiation of the demolition and construction noise and activities. Visual extent conditions allow construction activities. A draft final digital recordings and photographs shall (5) If marine mammals are sighted by report must be submitted to NMFS be used to document individuals and the PSO within the acoustic thresholds areas, the PSO shall record the number within 90 days after the conclusion of behavioral responses to demolition and the demolition and construction construction. The City of San Diego plan of marine mammals within the area of effect and the duration of their presence activities of the Children’s Pool to make hourly counts of the number of Lifeguard Station. The report would pinnipeds present and record sound or while the noise-generating activity is occurring. The PSO will also note include a summary of the information visual events that result in behavioral gathered pursuant to the monitoring responses and changes, whether during whether the marine mammals appeared to respond to the noise and if so, the requirements set forth in the IHA, construction or from public stimuli. including dates and times of operations, During these events, pictures and video nature of that response. The PSO shall record the following information: Date and all marine mammal sightings (dates, will also be taken when possible. The times, locations, species, behavioral ‘‘Mitigated Negative Declaration’’ states and time of initial sighting, tidal stage, weather conditions, Beaufort sea state, observations [activity, group ‘‘monitoring shall assess behavior and cohesiveness, direction and speed of potential behavioral responses to species, behavior (activity, group cohesiveness, direction and speed of travel, etc.], tidal stage, weather construction noise and activities. Visual conditions, Beaufort sea state and wind digital recordings and photographs shall travel, etc.), number, group composition, distance to sound source, force, activities, associated demolition be used to document individuals and and construction activities). A final behavioral responses to construction.’’ number of animals impacted, demolition/construction activities report must be submitted to the The City of San Diego is open to occurring at time of sighting, and Regional Administrator within 30 days working with the WAN’s La Jolla Harbor monitoring and mitigation measures after receiving comments from NMFS on Seal Webcam, which can be found implemented (or not implemented). The the draft final report. If no comments are online at: http:// observations will be reported to NMFS. received from NMFS, the draft final www.wanconservancy.org/ (6) A final report will be submitted report would be considered to be the la_jolla_harbor_seal_earthcam.htm. The summarizing all in-air demolition and final report. City of San Diego may do periodic construction activities and marine While the IHA would not authorize checks using the webcam for monitoring mammal monitoring during the time of injury (i.e., Level A harassment), serious purposes. The camera is not expected to the authorization, and any long term injury, or mortality, should the replace NMFS-qualified PSOs at the site impacts from the project. applicant, contractor, monitor or any making accurate counts, measuring A written log of dates and times of other individual associated with the sound levels and observing the public monitoring activity will be kept. The log demolition and construction project and the construction, as well as the shall report the following information: observe an injured or dead marine harbor seals. In the camera view, you • Time of observer arrival on site; mammal, the incident (regardless of may be able to see visual evidence of • Time of the commencement of in- cause) will be reported to NMFS as soon Level B harassment, but it probably air noise generating activities, and as practicable. The report should would not be able to be distinguished description of the activities; include species or description of between harassment from demolition • Distances to all marine mammals animal, condition of animal, location, and construction activities and the relative to the sound source; time first found, observed behaviors (if public since the camera has a limited • For harbor seal observations, notes alive) and photo or video, if available. scope and only shows the Children’s on seal behavior during noise-generating In the unanticipated event that the Pool beach and pinnipeds (usually a activity, as described above, and on the City of San Diego discovers a live specific portion of the beach, but not the number and distribution of seals stranded marine mammal (sick and/or reef nor nearby beaches). observed in the project vicinity; injured) at Children’s Pool, they shall Consistent with NMFS procedures, • For observations of all marine immediately contact Sea World’s the following marine mammal mammals other than harbor seals, the stranded animal hotline at 1–800–541–

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7235. Sea World shall also be notified recent (i.e., in less than a moderate state wild [Level A harassment]; or (ii) has for dead stranded pinnipeds so that a of decomposition as described in the the potential to disturb a marine necropsy can be performed. In all cases, next paragraph), the City of San Diego mammal or marine mammal stock in the NMFS shall be notified as well, but for will immediately report the incident to wild by causing disruption of behavioral immediate response purposes, Sea the Chief of the Permits and patterns, including, but not limited to, World shall be contacted first. Conservation Division, Office of migration, breathing, nursing, breeding, In the unanticipated event that the Protected Resources, NMFS, at 301– feeding, or sheltering [Level B specified activity clearly causes the take 427–8401, and/or by email to harassment]. of a marine mammal in a manner [email protected] and The City of San Diego and NMFS prohibited by this IHA, such as an [email protected], and the injury (Level A harassment), serious anticipate takes of Pacific harbor seals, NMFS Southwest Regional Office (562– California sea lions, and northern injury or mortality, the City of San 980–4017) and/or by email to the Diego shall immediately cease the elephant seals by Level B (behavioral) Southwest Regional Stranding harassment only incidental to the specified activities and immediately Coordinator ([email protected]). report the incident to the Chief of the project at the Children’s Pool. No takes The report must include the same by injury (Level A harassment), serious Permits and Conservation Division, information identified above. Activities injury, or mortality is expected. There is Office of Protected Resources, NMFS, at may continue while NMFS reviews the a high likelihood that many of the 301–427–8401 and/or by email to circumstances of the incident. NMFS harbor seals present during the [email protected] and will work with the City of San Diego to demolition and construction activities [email protected] and the determine whether modifications in the will not be flushed off of the beach or Southwest Regional Stranding activities are appropriate. rocks, as pinnipeds at this site are Coordinator ([email protected]). In the event that the City of San Diego The report must include the following conditioned to human presence and discovers an injured or dead marine loud noises (Hanan, 2004; 2011) (see information: mammal, and the lead PSO determines • Time, date, and location (latitude/ http://www.youtube.com/ that the injury or death is not associated longitude) of the incident; watch?v=4IRUYVTULsg). • with or related to the activities The type of activity involved; With demolition and construction • Description of the circumstances authorized (e.g., previously wounded animal, carcass with moderate to activities scheduled to begin in June during and leading up to the incident; 2013, the City of San Diego expects a • Status of all sound source use in the advanced decomposition, or scavenger range of 0 to 190 harbor seals to be 24 hours preceding the incident; water damage), the City of San Diego shall present daily during June and a seasonal depth; environmental conditions (e.g., report the incident to the Chief of the decline through November to about 0 to wind speed and direction, Beaufort sea Permits and Conservation Division, 50 harbor seals present daily. If all of state, cloud cover, and visibility); Office of Protected Resources, NMFS, at • Description of marine mammal 301–427–8401, and/or by email to the estimated harbor seals present are observations in the 24 hours preceding [email protected] and taken by incidental harassment each the incident; species identification or [email protected], and the day, there could be a maximum of description of the animal(s) involved; NMFS Southwest Regional Office (562– 12,783 takes (i.e., approximately 3,579 • The fate of the animal(s); and 980–4017) and/or by email to the adult males and 2,684 juvenile males, photographs or video footage of the Southwest Regional Stranding 3,451 adult females and 2,429 juvenile animal (if equipment is available). Coordinator ([email protected]), females based on age and sex ratios Activities shall not resume until within 24 hours of the discovery. The presented in Harkonen et al., 1999) over NMFS is able to review the City of San Diego shall provide the entire duration of the demolition circumstances of the prohibited take. photographs or video footage (if and construction activities. The City of NMFS shall work with the City of San available) or other documentation of the San Diego expects about 90% of the Diego to determine what is necessary to stranded animal sighting to NMFS and adult females to be pregnant after June minimize the likelihood of further the Marine Mammal Stranding Network. and July (Greig, 2002). An unknown portion of the incidental takes would be prohibited take and ensure MMPA Estimated Take by Incidental from repeated exposures as harbor seals compliance. The City of San Diego may Harassment not resume their activities until notified leave and return to the Children’s Pool by NMFS via letter, email, or telephone. Except with respect to certain area. A polynomial curve fit to counts In the event that the City of San Diego activities not pertinent here, the MMPA by month was used by the City of San discovers an injured or dead marine defines ‘‘harassment’’ as: Any act of Diego to estimate the number of harbor mammal, and the lead PSO determines pursuit, torment, or annoyance which (i) seals expected to be hauled-out by day that the cause of the injury or death is has the potential to injure a marine (see below and Figure 1 of the IHA unknown and the death is relatively mammal or marine mammal stock in the application).

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Assuming the total seals predicted to California sea lions and/or northern NMFS will consider pinnipeds haul-out daily at the Children’s Pool are elephant seals are ever observed at the flushing into the water; moving more exposed to sound levels that are Children’s Pool (i.e., one or two than 1 m (3.3 ft), but not into the water; considered Level B harassment during individuals). The City of San Diego becoming alert and moving, but do not days where sound is predicted to exceed requests the authority to incidentally moving more than 1 m; and changing 90 dB at the demolition/construction take (i.e., exposures) 12,783 Pacific direction of current movement by site (106 days), there could be a harbor seals, 100 California sea lions, individuals as behavioral criteria for maximum of approximately 12,783 and 25 northern elephant seals of 600, take by Level B harassment. The City of incidental takes (i.e., exposures) of 2, and 1 individual, respectively. More San Diego will estimate the portion of approximately up to 600 individual information on the number of requested pinnipeds present that are observed to Pacific harbor seals over the duration of authorized takes, estimated number of exhibit these behaviors as well as the the activities. The estimated 600 individuals, and the approximate apparent source of the stimulus (i.e., if individual Pacific harbor seals will be taken by Level B harassment multiple percentage of the stock for the three it is from human presence, demolition times during the demolition and species in the action area can be found and construction activities, or other). construction activities. Very few in Table 2 (below).

TABLE 2—SUMMARY OF THE ANTICIPATED INCIDENTAL TAKE BY LEVEL B HARASSMENT OF PINNIPEDS FOR THE CITY OF SAN DIEGO’S DEMOLITION AND CONSTRUCTION ACTIVITIES GENERATING IN-AIR NOISE AT THE CHILDREN’S POOL LIFEGUARD STATION IN LA JOLLA, CALIFORNIA

Requested Approximate take Estimated percentage of Species authorization number of estimated (number of individuals stock exposures) taken (individuals)

Pacific harbor seal ...... 12,783 600 1.98 California sea lion ...... 100 2 <0.01 Northern elephant seal ...... 25 1 <0.01

Encouraging and Coordinating be evaluated as to observed sound levels data will provide instructional for IHA Research and any pinniped reaction by type of permitting in future projects. Potential Each demolition/construction phase sound source. Flushing will be mitigation will be discussed and and potential harassment activity will documented by sex and age class. These suggested in the final report. NMFS has

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encouraged the City of San Diego to City of San Diego’s demolition and construction activities have the work with WAN to review and analyze construction activities, and none are potential to displace marine mammals any available data to determine baseline authorized by NMFS. The activities are from breeding areas for a prolonged information as well as evaluate the not expected to result in the alteration period (e.g., Lusseau and Bejder, 2007; impacts from the demolition and of reproductive behaviors, and the Weilgart, 2007), based on the best construction activities on the pinnipeds potentially affected species would be available information, this does not at the Children’s Pool. The City of San subjected to temporary only to seem to be the case for the Pacific Diego is open to working with the temporary and minor behavioral harbor seals at the Children’s Pool. Over WAN’s La Jolla Harbor Seal Webcam, impacts. many years, the Pacific harbor seals which can be found online at: http:// As discussed in detail above, the have repeatedly hauled-out to pup and www.wanconservancy.org/ project scheduling avoids sensitive life overall the NMFS Stock Assessment la_jolla_harbor_seal_earthcam.htm. The stages for Pacific harbor seals. Project Reports (NMFS, 2011) for this stock City of San Diego may do periodic activities producing in-air noise would have shown that the population is checks using the webcam for monitoring commence in June and end by increasing and is considered stable. purposes. December 15th. June is after the end of Additionally, the demolition and the pupping season and affords construction activities will be increasing Negligible Impact and Small Numbers additional time to accommodate sound levels in the environment in a Analyses and Determinations lactation and weaning of season pups as relatively small area surrounding the As a preliminary matter, NMFS well as considers periods of lowest lifeguard station (compared to the range typically includes our negligible impact haul-out occurrence. The December of the animals), and some animals may and small numbers analyses and 15th end date should provide more only be exposed to and harassed by determinations under the same section protection for the pregnant and nursing sound for less than a day. heading of our Federal Register notices. harbor seals in case they give birth Of the 3 marine mammal species Despite co-locating these terms, NMFS before January 1st; however, most births under NMFS jurisdiction that may or acknowledges that negligible impact occur after the beginning of January. are known to likely occur in the action and small numbers are distinct Table 2 of this document outlines the area, none are listed as threatened or standards under the MMPA and treat number of requested Level B harassment endangered under the ESA. No them as such. The analyses presented takes that are anticipated as a result of incidental take has been requested to be below do no conflate the two standards; these activities. Due to the nature, authorized for ESA-listed species as instead, each standard has been degree, and context of Level B none are expected to be within the considered independently and NMFS (behavioral) harassment anticipated and action area. There is generally has applied the relevant factors to described (see ‘‘Potential Effects on insufficient data to determine inform our negligible impact and small Marine Mammals’’ section above) in this population trends for the other depleted numbers determinations. notice, this activity is not expected to species in the study area. To protect NMFS has defined ‘‘negligible impact rates of annual recruitment or these animals (and other marine impact’’ in 50 CFR 216.103 as ‘‘. . . an survival for the affected species or stock mammals in the action area), the City of impact resulting from the specified (i.e., California stock of Pacific harbor San Diego must prohibit demolition and activity that cannot be reasonably seals, U.S. stock of California sea lions, construction activities during harbor expected to, and is not reasonably likely and California breeding stock of seal pupping season; scheduling to, adversely affect the species or stock northern elephant seals), particularly demolition and construction activities through effects on annual rates of given the NMFS and the applicant’s with highest sound levels during the recruitment or survival.’’ plan to implement required mitigation, annual period of lowest haul-out In making a negligible impact monitoring, and reporting measures to occurrence and during the daily period determination, NMFS evaluated factors minimize impacts to marine mammals. of lowest haul-out occurrence; limiting such as: For the other marine mammal species activities to the hours of daylight; (1) The number of anticipated that may occur within the action area, erecting a temporary visual and acoustic injuries, serious injuries, or mortalities; there are no known designated or barrier; and using PSOs. No injury, (2) The number, nature, and intensity, important feeding and/or reproductive serious injury, or mortality is expected and duration of Level B harassment (all areas. Many animals perform vital to occur and due to the nature, degree, relatively limited); and functions, such as feeding, resting, and context of the Level B harassment (3) The context in which the takes traveling, and socializing, on a diel anticipated, and the activity is not occur (i.e., impacts to areas of cycle (i.e., 24 hour cycle). Behavioral expected to impact rates of recruitment significance, impacts to local reactions to noise exposure (such as or survival. populations, and cumulative impacts disruption of critical life functions, As mentioned previously, NMFS when taking into account successive/ displacement, or avoidance of important estimates that 3 species of marine contemporaneous actions when added habitat) are more likely to be significant mammals under its jurisdiction could be to baseline data); if they last more than one diel cycle or potentially affected by Level B (4) The status of stock or species of recur on subsequent days (Southall et harassment over the course of the IHA. marine mammals (i.e., depleted, not al., 2007). However, for many years It is estimated that up to 600 individual depleted, decreasing, increasing, stable, Pacific harbor seals have been hauling- Pacific harbor seals, 2 individual impact relative to the size of the out at Children’s Pool during the year California sea lions, and 1 northern population); (including during pupping season and elephant seal will be taken (multiple (5) Impacts on habitat affecting rates while females are pregnant) and have times) by Level B harassment, which of recruitment/survival; and been exposed to anthropogenic sound would be approximately 1.98, less than (6) The effectiveness of monitoring sources such as vehicle traffic, human 0.01, and less than 0.01 of the respective and mitigation measures. voices, etc. and are frequently exposed California, U.S., and California breeding No injuries (Level A harassment), to stimuli from human presence. While stocks. The population estimates for the serious injuries, or mortalities are studies have shown the types of sound marine mammal species that may be anticipated to occur as a result of the sources used during the demolition and taken by Level B harassment were

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provided in Table 2 of this document. Impact on Availability of Affected Dated: July 2, 2013. NMFS’s practice has been to apply the Species or Stock for Taking for Helen M. Golde, 90 dB re 20 mPa and 100 dB re 20 mPa Subsistence Uses Deputy Director, Office of Protected received level threshold for in-air sound Resources, National Marine Fisheries Service. levels to determine whether take by Section 101(a)(5)(D) of the MMPA [FR Doc. 2013–16263 Filed 7–5–13; 8:45 am] also requires NMFS to determine that Level B harassment occurs. Southall et BILLING CODE 3510–22–P al. (2007) provide a severity scale for the authorization will not have an ranking observed behavioral responses unmitigable adverse effect on the of both free-ranging marine mammals availability of marine mammal species DEPARTMENT OF COMMERCE and laboratory subjects to various types or stocks for subsistence use. There are National Telecommunications and of anthropogenic sound (see Table 4 in no relevant subsistence uses of marine Information Administration Southall et al. [2007]). NMFS has not mammals in the study area (off of southern California in the northeast Multistakeholder Meeting To Develop established a threshold for Level A Consumer Data Privacy Code of harassment (injury) for marine Pacific Ocean) that implicate MMPA section 101(a)(5)(D). Conduct Concerning Mobile mammals exposed to in-air noise, Application Transparency however, Southall et al. (2007) Endangered Species Act recommends 149 dB re 20 mPa (peak AGENCY: National Telecommunications flat) as the potential threshold for injury NMFS (Permits and Conservation and Information Administration, U.S. from in-air noise for all pinnipeds. No Division) has determined that a section Department of Commerce. in-air sounds from demolition and 7 consultation for the issuance of an ACTION: Notice of open meeting; construction activities will exceed 110 IHA under section 101(a)(5)(D) of the reschedule. dB at the source. MMPA for this activity is not necessary for any ESA-listed marine mammal SUMMARY: Through this Notice, the While behavioral modifications, National Telecommunications and including temporarily vacating the area species under its jurisdiction as the action will not affect ESA-listed species. Information Administration (NTIA) during the demolition and construction announces that the July 9, 2013 open activities, may be made by these species National Environmental Policy Act meeting announced in the Federal to avoid the resultant acoustic Register on June 12, 2013 of the privacy disturbance, the availability of alternate For consistency with regulations multistakeholder process concerning areas within these areas for species and published by the Council of mobile application transparency has the short and sporadic duration of the Environmental Quality (CEQ) and been rescheduled for July 25, 2013. activities, have led NMFS to determine NOAA Administrative Order 216–6, DATES: The rescheduled meeting will be that the taking by Level B harassment Environmental Review Procedures for held on July 25, 2013 from 1:00 p.m. to from the specified activity will have a Implementing the National 5:00 p.m., Eastern Time. See negligible impact on the affected species Environmental Policy Act, NMFS SUPPLEMENTARY INFORMATION for details. in the specified geographic region. prepared an EA titled ‘‘Environmental ADDRESSES: The rescheduled meeting NMFS believes that the time period of Assessment on the Issuance of an will be held in the Gallery at the the demolition and construction Incidental Harassment Authorization to American Institute of Architects, 1735 activities, the requirement to implement the City of San Diego to Take Marine New York Avenue NW., Washington, mitigation measures (e.g., prohibiting Mammals by Harassment Incidental to DC 20006. demolition and construction activities Demolition and Construction Activities FOR FURTHER INFORMATION CONTACT: John during pupping season, scheduling at the Children’s Pool Lifeguard Station operations to periods of the lowest haul- Verdi, National Telecommunications in La Jolla, California.’’ After and Information Administration, U.S. out occurrence, visual and acoustic considering the EA, the information in barriers, and the addition of a new Department of Commerce, 1401 the IHA application, and the Federal Constitution Avenue NW., Room 4725, measure that helps protect against Register notice, as well as public Washington, DC 20230; telephone (202) unexpected abandonment of the site), comments, NMFS has determined that 482–8238; email [email protected]. and the inclusion of the monitoring and the issuance of the IHA is not likely to Please direct media inquiries to NTIA’s reporting measures, will reduce the result in significant impacts on the Office of Public Affairs, (202) 482–7002. amount and severity of the potential human environment and has prepared a impacts from the activity to the degree SUPPLEMENTARY INFORMATION: Finding of No Significant Impact Background: For additional that will have a negligible impact on the (FONSI). An Environmental Impact species or stocks in the action area. information, please see the Federal Statement is not required and will not Register notice published on June 12, NMFS has determined, provided that be prepared for the action. 2013. Notice of Open Public Meeting, the aforementioned mitigation and Authorization Multistakeholder Meeting To Develop monitoring measures are implemented, Consumer Data Privacy Code of that the impact of the demolition and NMFS has issued an IHA to the City Conduct Concerning Mobile Application construction activities at the Children’s of San Diego for the take, by Level B Transparency, 78 FR 35260 (June 12, Pool Lifeguard Station in La Jolla, harassment, of small numbers of marine 2013) (Multistakeholder Meeting California, June to December 2013, may mammals incidental to demolition and Notice). result, at worst, in a temporary construction activities at the Children’s Matters To Be Considered: The July modification in behavior and/or low- Pool Lifeguard Station in La Jolla, 25, 2013 meeting is part of a series of level physiological effects (Level B California, provided the previously NTIA-convened multistakeholder harassment) of small numbers of certain discussions concerning mobile mentioned mitigation, monitoring, and species of marine mammals. See Table application transparency. For additional reporting requirements are incorporated. 2 for the requested authorized take information, please see the numbers of marine mammals. Multistakeholder Meeting Notice.

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Time and Date: NTIA will convene a Draft agendas and additional Regulatory Flexibility Act Certification meeting of the privacy multistakeholder information regarding the Commission I certify that the following action will process on July 25, 2013, from 1:00 p.m. are available on our Web site: not have a significant impact on a to 5:00 p.m., Eastern Time. The meeting www.cfa.gov. Inquiries regarding the substantial number of small entities. time is subject to change. Please refer to agenda and requests to submit written The major factors considered for this NTIA’s Web site, http:// or oral statements should be addressed certification were: www.ntia.doc.gov/other-publication/ to Thomas Luebke, Secretary, U.S. 1. The action will not result in any 2012/privacy-multistakeholder-process- Commission of Fine Arts, at the above additional reporting, recordkeeping or mobile-application-transparency, for the address; by emailing [email protected]; other compliance requirements for small most current information. or by calling 202–504–2200. Individuals entities other than the small Place: The rescheduled meeting will requiring sign language interpretation organization that will provide the be held in the Gallery at the American for the hearing impaired should contact service to the Government. Institute of Architects, 1735 New York the Secretary at least 10 days before the 2. The action will result in Avenue NW., Washington, DC 20006. meeting date. authorizing small entity to provide the The location of the meeting is subject to Dated June 27, 2013 in Washington, DC. service to the Government. change. Please refer to NTIA’s Web site, 3. There are no known regulatory Thomas Luebke, http://www.ntia.doc.gov/other- alternatives which would accomplish publication/2012/privacy- Secretary, AIA. the objectives of the Javits-Wagner- multistakeholder-process-mobile- [FR Doc. 2013–16243 Filed 7–5–13; 8:45 am] O’Day Act (41 U.S.C. 8501–8506) in application-transparency, for the most BILLING CODE 6331–01–M connection with the service proposed current information. for addition to the Procurement List. Other Information: The meeting is open to the public and the press. The End of Certification meeting is physically accessible to COMMITTEE FOR PURCHASE FROM Accordingly, the following service is people with disabilities. Requests for PEOPLE WHO ARE BLIND OR added to the Procurement List: sign language interpretation or other SEVERELY DISABLED Service auxiliary aids should be directed to John Procurement List Addition Service Type/Locations: Military Personnel Verdi at (202) 482–8238 or Support Service, Force Support Div., [email protected] at least seven (7) AGENCY: Committee for Purchase From Manpower & Military Personnel Branch, business days prior to the meeting. The Joint Expeditionary Base Little Creek- meeting will also be webcast. Requests People Who Are Blind or Severely Fort Story, Fort Story, VA. Force Support for real-time captioning of the webcast Disabled. Div., Manpower & Military Personnel or other auxiliary aids should be ACTION: Addition to the Procurement Branch, Joint Base Langley-Eustis Joint directed to John Verdi at (202) 482–8238 List. Base Langley-Eustis, VA. or [email protected] at least seven (7) NPA: ServiceSource, Inc., Alexandria, VA. Contracting Activity: Dept of the Air Force, SUMMARY: business days prior to the meeting. This action adds a service to FA4800 633 CONS LGCP, Langley AFB, There will be an opportunity for the Procurement List that will be VA. stakeholders viewing the webcast to provided by nonprofit agency participate remotely in the meeting employing persons who are blind or Barry S. Lineback, through a moderated conference bridge, have other severe disabilities. Director, Business Operations. [FR Doc. 2013–16274 Filed 7–5–13; 8:45 am] including polling functionality. Access DATES: Effective Date: 8/8/2013. details for the meeting are subject to BILLING CODE 6353–01–P change. Please refer to NTIA’s Web site, ADDRESSES: Committee for Purchase http://www.ntia.doc.gov/other- From People Who Are Blind or Severely publication/2012/privacy- Disabled, 1401 S. Clark Street, Suite COMMITTEE FOR PURCHASE FROM multistakeholder-process-mobile- 10800, Arlington, Virginia, 22202–4149. PEOPLE WHO ARE BLIND OR application-transparency, for the most FOR FURTHER INFORMATION CONTACT: SEVERELY DISABLED current information. Barry S. Lineback, Telephone: (703) Procurement List; Proposed Additions Dated: July 2, 2013. 603–7740, Fax: (703) 603–0655, or email Kathy Smith, [email protected]. AGENCY: Committee for Purchase From Chief Counsel, National Telecommunications SUPPLEMENTARY INFORMATION: People Who Are Blind or Severely and Information Administration. Disabled. [FR Doc. 2013–16300 Filed 7–5–13; 8:45 am] Addition ACTION: Proposed Additions to the BILLING CODE 3510–60–P On 5/3/2013 (78 FR 25970–25971), Procurement List. the Committee for Purchase From SUMMARY: The Committee is proposing People Who Are Blind or Severely to add products and a service to the COMMISSION OF FINE ARTS Disabled published notice of proposed Procurement List that will be furnished addition to the Procurement List. Notice of Meeting by nonprofit agencies employing After consideration of the material persons who are blind or have other The next meeting of the U.S. presented to it concerning capability of severe disabilities. Commission of Fine Arts is scheduled qualified nonprofit agency to provide Comments Must Be Received on or for 18 July 2013, at 9:00 a.m. in the the service and impact of the addition Before: 8/8/2013. Commission offices at the National on the current or most recent ADDRESSES: Committee for Purchase Building Museum, Suite 312, Judiciary contractors, the Committee has From People Who Are Blind or Severely Square, 401 F Street NW., Washington determined that the service listed below Disabled, 1401 S. Clark Street, Suite DC, 20001–2728. Items of discussion is suitable for procurement by the 10800, Arlington, Virginia, 22202–4149. may include buildings, parks, and Federal Government under 41 U.S.C. For Further Information or to Submit memorials. 8501–8506 and 41 CFR 51–2.4. Comments Contact: Barry S. Lineback,

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Telephone: (703) 603–7740, Fax: (703) PLACE: Room 420, Bethesda Towers, DEPARTMENT OF DEFENSE 603–0655, or email 4330 East West Highway, Bethesda, [email protected]. Maryland. Office of the Secretary SUPPLEMENTARY INFORMATION: This STATUS: Commission Meeting—Open to [Docket ID DoD–2013–OS–0149] notice is published pursuant to 41 the Public U.S.C. 8503 (a)(2) and 41 CFR 51–2.3. Its Proposed Collection; Comment purpose is to provide interested persons MATTERS TO BE CONSIDERED: Request an opportunity to submit comments on Hearing: Agenda and Priorities for AGENCY: Office of the Under Secretary of the proposed actions. Fiscal Years 2014 and 2015 Defense (Personnel and Readiness), Additions A live webcast of the Meeting can be DoD. If the Committee approves the viewed at www.cpsc.gov/live. For a ACTION: Notice. proposed additions, the entities of the recorded message containing the latest In compliance with Section Federal Government identified in this agenda information, call (301) 504– 3506(c)(2)(A) of the Paperwork notice will be required to procure the 7948. Reduction Act of 1995, the Office of the products and service listed below from CONTACT PERSON FOR MORE INFORMATION: Under Secretary of Defense (Personnel nonprofit agencies employing persons Todd A. Stevenson, Office of the and Readiness) announces a proposed who are blind or have other severe public information collection and seeks disabilities. Secretary, U.S. Consumer Product Safety Commission, 4330 East West public comment on the provisions The following products and service thereof. Comments are invited on: (a) are proposed for addition to the Highway, Bethesda, MD 20814, (301) 504–7923. Whether the proposed collection of Procurement List for production by the information is necessary for the proper nonprofit agencies listed: Dated: July 2, 2013. performance of the functions of the Products Todd A. Stevenson, agency, including whether the information shall have practical utility; Towel, Hazardous Material Absorbent, Secretary. Cotton, Red [FR Doc. 2013–16420 Filed 7–3–13; 4:15 pm] (b) the accuracy of the agency’s estimate of the burden of the proposed BILLING CODE 6355–01–P NSN: 4235–01–526–4342—15’’ x 15’’ information collection; (c) ways to NPA: Winston-Salem Industries for the Blind, Inc., Winston-Salem, NC enhance the quality, utility, and clarity Contracting Activity: Defense Logistics CONSUMER PRODUCT SAFETY of the information to be collected; and Agency Aviation, Richmond, VA COMMISSION (d) ways to minimize the burden of the Coverage: B-List for the Broad Government information collection on respondents, Requirement as aggregated by the Defense Sunshine Act Meetings including through the use of automated Logistics Agency Aviation, Richmond, VA. collection techniques or other forms of Power Duster TIME AND DATE: Tuesday, July 9, 2013, 10 information technology. NSN: 6850–01–517–1506—10 oz. CN a.m.–12 p.m. DATES: Consideration will be given to all NSN: 6850–01–412–0040—10 oz. 12/BX comments received by September 6, PLACE: Room 420, Bethesda Towers, 2013. Cleaner, Brake Parts 4330 East West Highway, Bethesda, ADDRESSES: You may submit comments, NSN: 6850–01–167–0678—17 oz. Maryland. NPA: The Lighthouse for the Blind, St. Louis, identified by docket number and title, MO STATUS: Commission Meeting—Open to by any of the following methods: Contracting Activity: Defense Logistics the Public Federal eRulemaking portal: http:// Agency Aviation, Richmond, www.regulations.gov. Follow the Coverage: B-List for the Broad Government Matters To Be Considered instructions for submitting comments. Requirement as aggregated by the Defense Mail: Federal Docket Management Briefing Matter: Logistics Agency Aviation, Richmond, VA. Systems Office, 4800 Mark Center Drive, 1. Amendment to Play Yard Standard Service 2nd Floor, East Tower, Suite 02G09, 2. Bassinets and Cradles Alexandria, VA 22350–3100. Service Type/Location: Grounds Maintenance Instructions: All submissions received Service, USCG, Air Station-Savannah, 1297 A live webcast of the Meeting can be must include the agency name, docket N Lightning Rd, Savannah, GA viewed at www.cpsc.gov/live. NPA: Goodwill Industries of the Coastal number, and title for this Federal Empire, Inc., Savannah, GA For a recorded message containing the Register document. The general policy Contracting Activity: U.S. Coast Guard, Base latest agenda information, call (301) for comments and other submissions Miami, Miami, FL 504–7948. from members of the public is to make these submissions available for public Barry S. Lineback, CONTACT PERSON FOR MORE INFORMATION: viewing on the Internet at http:// Director, Business Operations. Todd A. Stevenson, Office of the www.regulations.gov as they are [FR Doc. 2013–16273 Filed 7–5–13; 8:45 am] Secretary, U.S. Consumer Product received without change, including any BILLING CODE 6353–01–P Safety Commission, 4330 East West personal identifiers or contact Highway, Bethesda, MD 20814, (301) information. 504–7923. FOR FURTHER INFORMATION CONTACT: CONSUMER PRODUCT SAFETY To Dated: July 2, 2013. COMMISSION request more information on this Todd A. Stevenson, proposed information collection or to Sunshine Act Meetings Secretary. obtain a copy of the proposal and [FR Doc. 2013–16419 Filed 7–3–13; 4:15 pm] associated collection instruments, TIME AND DATE: Wednesday, July 10, please write to the Office of the Under 2013, 10 a.m.–12 p.m. BILLING CODE 6355–01–P Secretary of Defense (Personnel and

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Readiness), Department of Defense Summary of Information Collection ADDRESSES: Written comments and Education Activity (DoDEA), 4800 Mark The Project Tomorrow Speak-Up recommendations on the proposed Center Drive, Alexandria, VA 22350 National Research Project will be open information collection should be sent to ATTN: Dr. Sandra D. Embler or call to all teachers, administrators, parents/ Ms. Seehra at the Office of Management (571) 372–6006. sponsors of students attending a DoDEA and Budget, Desk Officer for DoD, Room Title and OMB Control Number: school, as well as students in grades 3– 10236, New Executive Office Building, ‘‘2013 Speak Up Survey,’’ OMB Control 12. The survey does not gather Washington, DC 20503. Number: 0704–TBD. information that would personally You may also submit comments, Needs and Uses: The Speak-Up identify individuals, and participation identified by docket number and title, National Survey is an annual online in the survey is completely voluntary. by the following method: • Federal eRulemaking Portal: http:// survey created and administered by The survey is administered through an www.regulations.gov. Follow the Project Tomorrow. DoDEA will online, web-based technology. The instructions for submitting comments. participate in the survey in order to questions will provide all stakeholders Instructions: All submissions received gather information from students and with the opportunity to provide input must include the agency name, docket parents of students attending DoDEA on their educational use of technology number and title for this Federal schools on the use of technology in as well as their experience with Register document. The general policy education throughout the United States. technology at schools. The data will be for comments and other submissions The survey provides data on how these incorporated into goals in DoDEA’s from members of the public is to make groups are using and would like to use currently in-process Technology Plan. these submissions available for public technology for learning in and out of The survey results will be used at all viewing on the Internet at http:// school. Broad areas of information levels of the organization to improve www.regulations.gov as they are gathered via the surveys include: The programs and services offered to received without change, including any benefits of using technology for DoDEA’s students. The survey results personal identifiers or contact learning; attitudes and interest in math will also be used as an outcome measure information. and science, as well as career to monitor progress on the goals of the aspirations; how respondents self-assess new Technology Plan. FOR FURTHER INFORMATION CONTACT: Ms. their 21st century skills competencies. Patricia Toppings. To request additional Dated: June 19, 2013. The information gathered via the information please contact Ms. surveys does not currently exist, Aaron Siegel, Toppings, DoD Clearance Officer, at especially in a format that allows Alternate OSD Federal Register Liaison WHS/ESD Information Management comparisons between DoDEA and Officer, Department of Defense. Division, 4800 Mark Center Drive, East national trends. The data resulting from [FR Doc. 2013–16283 Filed 7–5–13; 8:45 am] Tower, Suite 02G09, Alexandria, VA the survey will be used by DoDEA as a BILLING CODE 5001–06–P 22350–3100. planning tool and needs assessment. SUPPLEMENTARY INFORMATION: The information from the survey as Title: Generic Clearance for the DEPARTMENT OF DEFENSE compared with national trends will be Collection of Qualitative Feedback on effective in assisting DoDEA in Office of the Secretary Agency Service Delivery providing well-planned technology Abstract: The information collection initiatives that meet the needs of our [Docket ID: DoD–2013–OS–0026] activity will garner qualitative customer military-connected students and other and stakeholder feedback in an efficient, stakeholders. The data will also be used Agency Information Collection timely manner, in accordance with the to plan training and professional Activities; Proposed Collection; Administration’s commitment to development for DoDEA employees, Comment Request: Generic Clearance improving service delivery. By especially teachers, as it will accurately for the Collection of Qualitative qualitative feedback we mean reflect the needs of teachers and other Feedback on Agency Service Delivery information that provides useful staff members alike. The data are insights on perceptions and opinions, essential to meet the President’s charge AGENCY: Washington Headquarters but are not statistical surveys that yield in the recent technology-focused Service (WHS), DOD. quantitative results that can be ConnectED initiative as well as the ACTION: 30-day notice of submission of generalized to the population of study. Presidential Study Directive 9: information collection approval from This feedback will provide insights into Strengthening Military Families, which the Office of Management and Budget customer or stakeholder perceptions, states that ‘‘The Department of Defense and request for comments. experiences and expectations, provide commits to making DOD Education an early warning of issues with service, Activity (DODEA) schools a leader in SUMMARY: As part of an effort to or focus attention on areas where the use of advanced learning streamline the process to seek feedback communication, training or changes in technologies that have the potential to from the public on service delivery, operations might improve delivery of significantly improve student WHS has submitted a Generic products or services. These collections performance.’’ Information Collection Request (Generic will allow for ongoing, collaborative and Affected Public: Individuals or ICR): ‘‘Generic Clearance for the actionable communications between the households. Collection of Qualitative Feedback on Agency and its customers and Annual Burden Hours: 431. Agency Service Delivery ’’ to OMB for stakeholders. It will also allow feedback approval under the Paperwork to contribute directly to the Number of Respondents: 1292. Reduction Act (PRA) (44 U.S.C. 3501 et. Responses per Respondent: 1. improvement of program management. seq.). Feedback collected under this generic Average Burden per Response: 20 DATES: Comments must be submitted clearance will provide useful minutes. August 7, 2013. information, but it will not yield data Frequency: Annually. OMB Desk Officer: Ms. Jasmeet that can be generalized to the overall SUPPLEMENTARY INFORMATION: Seehra. population. This type of generic

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clearance for qualitative information DEPARTMENT OF DEFENSE components of the Air Force could be will not be used for quantitative recruited; (e) maintains a peacetime information collections that are Office of the Secretary rotation force to support operational designed to yield reliably actionable tempo goals of 1:2 for regular members results, such as monitoring trends over Meeting of the National Commission of the Air Forces and 1:5 for members time or documenting program on the Structure of the Air Force of the reserve components of the Air performance. Such data uses require AGENCY: Director of Administration and Force; and (f) maximizes and more rigorous designs that address: the Management, DoD. appropriately balances affordability, target population to which ACTION: Notice of Advisory Committee efficiency, effectiveness, capability, and generalizations will be made, the Meeting. readiness. Individual Commissioners sampling frame, the sample design will also report their activities, (including stratification and clustering), SUMMARY: Under the provisions of the information collection, and analyses to the precision requirements or power Federal Advisory Committee Act the full Commission. calculations that justify the proposed (FACA) of 1972 (5 U.S.C., Appendix, as Meeting Accessibility: Pursuant to 5 sample size, the expected response rate, amended), the Government in the U.S.C. 552b, as amended, and 41 CFR methods for assessing potential non- Sunshine Act of 1976 (5 U.S.C. 552b, as 102–3.140 through 102–3.165, and the response bias, the protocols for data amended), and 41 CFR 102–3.150, the availability of space, the meeting is collection, and any testing procedures Department of Defense (DoD) announces open to the public. The building at 2521 that were or will be undertaken prior that the following Federal advisory South Clark Street, Suite 200, Crystal fielding the study. Depending on the committee meeting of the National City, VA 22202 is fully handicap degree of influence the results are likely Commission on the Structure of the Air accessible. Several public parking to have, such collections may still be Force (‘‘the Commission’’) will take facilities are nearby. All visitors will be eligible for submission for other generic place. asked to show current, picture identification and complete a metal mechanisms that are designed to yield DATES: Date of Open Meeting, including quantitative results. Hearing and Commission Discussion: detector scan. Written Comments: Pursuant to 41 Current Actions: Extension of a Tuesday, July 23, 2013, from 8:00 a.m. CFR 102–3.105(j) and 102–3.140 and previous information collection for to 5:00 p.m. Registration will begin at section 10(a)(3) of the FACA, the public DoD’s Interactive Customer Evaluation 8:00 a.m. or interested organizations may submit (ICE) system. ADDRESSES: 2521 South Clark Street, written comments to the Commission in Type of Review: Extension. Suite 200, Crystal City, VA 22202. response to the stated agenda of the Affected Public: Individuals or FOR FURTHER INFORMATION CONTACT: Mrs. open meeting or the Commission’s Households, Businesses or Other For- Marcia Moore, Designated Federal mission. The Designated Federal Officer Profit. Officer, National Commission on the (DFO) will review all submitted written Annual Estimates Structure of the Air Force, 1950 Defense statements. Written comments should Pentagon, Room 3A874, Washington, be submitted to Mrs. Marcia Moore, Expected Annual Number of DC 20301–1950. Email: DFO, via facsimile or electronic mail, Activities/Collections: 30,000 [email protected]. Desk: (703) the preferred modes of submission. Each Annual Number of Respondents: 545–9113. Facsimile: (703) 692–5625. page of the comment must include the 322,570 SUPPLEMENTARY INFORMATION: author’s name, title or affiliation, Annual Number of Responses: Purpose of Meeting: The members of address, and daytime phone number. 322,570 the Commission will hear testimony All contact information may be found in Frequency of Response: On Occasion from individual witnesses and then will FOR FURTHER INFORMATION CONTACT. Average Burden per Response: 4 min. discuss the information presented at the Oral Comments: In addition to written Annual Burden Hours: 21505 hearings. statements, one hour will be reserved for individuals or interested groups to Agenda 3-Year Estimates: The 3-Year ceiling address the Commission on July 23, for this Generic Collection will be: Representatives from defense think 2013. Interested oral commenters must Total Expected Number of Activities/ tanks, U.S. Air Force leadership, and the summarize their oral statement in Collections: 34,500 Congressional Budget Office have been writing and submit with their Total Number of Respondents: asked to address the evaluation factors registration. The Commission’s staff will 967,710 under consideration by the Commission assign time to oral commenters at the Total Number of Responses: 967,710 for a U.S. Air Force structure that—(a) meeting, for no more than 5 minutes Frequency of Response: On Occasion meets current and anticipated each. While requests to make an oral Average Burden per Response: 4 min. requirements of the combatant presentation to the Commission will be Total Burden Hours: 64,514 commands; (b) achieves an appropriate honored on a first come, first served An agency may not conduct or balance between the regular and reserve basis, other opportunities for oral sponsor, and a person is not required to components of the Air Force, taking comments will be provided at future respond to, a collection of information advantage of the unique strengths and meetings. unless it displays a currently valid capabilities of each; (c) ensures that the Registration: Individuals who wish to Office of Management and Budget regular and reserve components of the attend the public hearing and meeting Control Number. Air Force have the capacity needed to on Tuesday, July 23, 2013 are support current and anticipated encouraged to register for the event in Dated: July 2, 2013. homeland defense and disaster advance with the Designated Federal Aaron Siegel, assistance missions in the United States; Officer, using the electronic mail and Alternate OSD Federal Register Liaison (d) provides for sufficient numbers of facsimile contact information found in Officer, Department of Defense. regular members of the Air Force to FOR FURTHER INFORMATION CONTACT. The [FR Doc. 2013–16269 Filed 7–5–13; 8:45 am] provide a base of trained personnel from communication should include the BILLING CODE 5001–06–P which the personnel of the reserve registrant’s full name, title, affiliation or

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employer, email address, and daytime Federal Perkins Loan Program; 84.063 the student’s last date of enrollment for phone number. If applicable, include Federal Pell Grant Program; 84.268 the 2013–2014 award year or September written comments and a request to William D. Ford Federal Direct Loan 27, 2014, whichever is earlier. As a speak during the oral comment session. Program; 84.379 TEACH Grant Program; reminder, a FAFSA must be submitted (Oral comment requests must be 84.408 Iraq and Afghanistan Service for the dependent student for whom a accompanied by a summary of your Grant Program. parent has applied for a Direct PLUS presentation.) Registrations and written SUMMARY: The Secretary announces Loan. comments must be typed. deadline dates for the receipt of For all Federal student aid programs documents and other information from except for (1) Direct PLUS Loans that Background applicants and institutions participating will be made to parent borrowers, and The National Commission on the in certain Federal student aid programs (2) Direct Unsubsidized Loans that will Structure of the Air Force was authorized under title IV of the Higher be made to dependent students who established by the National Defense Education Act of 1965, as amended have been determined by the institution, Authorization Act for Fiscal Year 2013 (HEA), for the 2013–2014 award year. pursuant to HEA section 479A(a), to be (Pub. L. 112–239). The Department of The Federal student aid programs eligible for such a loan without Defense sponsor for the Commission is covered by this deadline date notice are providing parental information on the the Director of Administration and the Federal Pell Grant, William D. Ford FAFSA, the ISIR or SAR must have an Management, Mr. Michael L. Rhodes. Federal Direct Loan (Direct Loan), official expected family contribution The Commission is tasked to submit a Teacher Education Assistance for (EFC) and must be received by the report, containing a comprehensive College and Higher Education (TEACH) institution no later than the earlier of study and recommendations, by Grant, and Iraq and Afghanistan Service the student’s last date of enrollment for February 1, 2014 to the President of the Grant programs. the 2013–2014 award year or September United States and the Congressional These programs, administered by the 27, 2014. defense committees. The report will U.S. Department of Education For a student who is requesting aid contain a detailed statement of the (Department), provide financial through the Federal Pell Grant, FSEOG, findings and conclusions of the assistance to students attending eligible FWS, and Federal Perkins Loan Commission, together with its postsecondary educational institutions programs or for a student requesting recommendations for such legislation to help them pay their educational Direct Subsidized Loans, who does not and administrative actions it may costs. meet the conditions for a late consider appropriate in light of the Deadline and Submission Dates: See disbursement under 34 CFR 668.164(g), results of the study. The comprehensive Tables A and B at the end of this notice. a valid ISIR or SAR must be received no study of the structure of the U.S. Air later than the student’s last date of Table A—Deadline Dates for Students Force will determine whether, and how, enrollment for the 2013–2014 award To Submit a Free Application for the structure should be modified to best year or September 27, 2014, whichever Federal Student Aid (FAFSA) and for fulfill current and anticipated mission is earlier. For a student meeting the Students To Ensure the Receipt of requirements for the U.S. Air Force in conditions for a late disbursement for Institutional Student Information a manner consistent with available these programs, a valid ISIR or SAR Records (ISIRs) or Student Aid Reports resources. must be received no later than the 180 (SARs) by Institutions for the 2013– Dated: July 2, 2013. days after the student withdrew or 2014 Award Year became ineligible or September 27, Aaron Siegel, Table A provides information and 2014, whichever is earlier. Alternate OSD Federal Register Liaison deadline dates for receipt of the Free In accordance with 34 CFR Officer, Department of Defense. Application for Federal Student Aid 668.164(g)(4)(i), an institution may not [FR Doc. 2013–16277 Filed 7–5–13; 8:45 am] (FAFSA), corrections to and signatures make a late disbursement of title IV BILLING CODE 5001–06–P for the FAFSA, ISIRs, and SARs, and student assistance funds later than 180 verification documents. days after the date of the institution’s The deadline date for the receipt of a determination that the student was no DEPARTMENT OF EDUCATION FAFSA by the Department’s Central longer enrolled. Table A provides that, Processing System is June 30, 2014, to make a late disbursement of title IV Deadline Dates for Reports and Other regardless of the method that the student assistance funds, an institution Records Associated With the Free applicant uses to submit the FAFSA. must receive a valid ISIR or valid SAR Application for Federal Student Aid The deadline date for the receipt of a no later than 180 days after its (FAFSA), the Federal Pell Grant signature page for the FAFSA (if determination that the student was no Program, the William D. Ford Federal required), correction, notice of change of longer enrolled, but not later than Direct Loan Program, the Teacher address or school, or request for a September 27, 2014. Education Assistance for College and duplicate SAR is September 20, 2014. Higher Education (TEACH) Grant Verification documents must be Table B—Federal Pell Grant, Iraq and Program, and the Iraq and Afghanistan received by the institution no later than Afghanistan Service Grant, Direct Loan, Service Grant Program for the 2013– 120 days after the student’s last date of and TEACH Grant Programs 2014 Award Year enrollment for the 2013–2014 award Submission Dates for Disbursement Information by Institutions for the AGENCY: Federal Student Aid, year or September 27, 2014, whichever is earlier. As a reminder, verification is 2013–2014 Award Year or Processing Department of Education. Year ACTION: Notice. not required for unsubsidized Direct Stafford Loans and PLUS Loans, TEACH Table B provides the earliest Catalog Federal Domestic Assistance Grants, and Iraq and Afghanistan submission and deadline dates for (CFDA) Numbers: 84.007 Federal Service Grants. institutions to submit Federal Pell Supplemental Educational Opportunity For all Federal student aid programs, Grant, Iraq and Afghanistan Service Grant Program (FSEOG); 84.033 Federal an ISIR or SAR for the student must be Grant, Direct Loan, and TEACH Grant Work Study Program (FWS); 84.038 received by the institution no later than disbursement records to the

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Department’s Common Origination and process in the 2013–2014 Federal Accessible Format: Individuals with Disbursement (COD) System and Student Aid Handbook and in the 2013– disabilities can obtain this document in deadline dates for an institution’s 2014 ISIR Guide. an accessible format (e.g., braille, large request for administrative relief if it Additional information on the print, audiotape, or compact disc) on cannot meet the established deadline for institutional reporting requirements for request to the program contact person specified reasons. the Federal Pell Grant Program, Iraq and listed under FOR FURTHER INFORMATION An institution must submit Federal Afghanistan Service Grant Program, CONTACT. Pell Grant, Iraq and Afghanistan Service Direct Loan Program, and TEACH Grant Electronic Access to This Document: Grant, Direct Loan, and TEACH Grant Program is contained in the 2013–2014 The official version of this document is disbursement records, as applicable, no Common Origin and Disbursement the document published in the Federal later than 15 days after making the (COD) Technical Reference. Register. Free Internet access to the disbursement or becoming aware of the You may access these publications by official edition of the Federal Register need to adjust a student’s previously selecting the ‘‘iLibrary’’ link at the and the Code of Federal Regulations is reported disbursement. In accordance Information for Financial Aid available via the Federal Digital System with 34 CFR 668.164(a), title IV funds Professionals Web site at: at: www.gpo.gov/fdsys. At this site you are disbursed on the date that the www.ifap.ed.gov. can view this document, as well as all institution: (a) Credits those funds to a Applicable Regulations: The student’s account in the institution’s other documents of this Department following regulations apply: published in the Federal Register, in general ledger or any subledger of the (1) Student Assistance General general ledger, or (b) pays those funds text or Adobe Portable Document Provisions, 34 CFR part 668. Format (PDF). To use PDF you must to a student directly. Title IV funds are (2) Federal Pell Grant Program, 34 disbursed even if an institution uses its have Adobe Acrobat Reader, which is CFR part 690. available free at the site. own funds in advance of receiving (3) William D. Ford Direct Loan You may also access documents of the program funds from the Secretary. Program, 34 CFR part 685. An institution’s failure to submit Department published in the Federal (4) Teacher Education Assistance for disbursement records within the Register by using the article search College and Higher Education Grant required timeframe may result in the feature at: www.federalregister.gov. Program, 34 CFR part 686. Secretary rejecting all or part of the Specifically, through the advanced reported disbursement. Such failure FOR FURTHER INFORMATION CONTACT: Ian search feature at this site, you can limit may result in an audit or program Foss, U.S. Department of Education, your search to documents published by review finding or the initiation of an Federal Student Aid, 830 First Street, the Department. NE., Union Center Plaza, room 114I1, adverse action, such as a fine or other Program Authority: 20 U.S.C. 1070a, penalty for such failure, in accordance Washington, DC 20202–5345. Telephone: (202) 377–3681 or by email: 1070a–1, 1070b–1070b–4, 1070g, 1070h, with subpart G of the General Provisions 1087a–1087j, and 1087aa–1087ii; 42 U.S.C. [email protected]. regulations in 34 CFR part 668. 2751–2756b. If you use a telecommunications Other Sources for Detailed Information device for the deaf (TDD) or text Dated: July 2, 2013. We publish a detailed discussion of telephone (TTY), call the Federal Relay James W. Runcie, the Federal student aid application Service, toll free, at 1–800–877–8339. Chief Operating Officer, Federal Student Aid.

TABLE A—DEADLINE DATES FOR STUDENTS TO SUBMIT A FREE APPLICATION FOR FEDERAL STUDENT AID (FAFSA) AND FOR STUDENTS TO ENSURE THE RECEIPT OF INSTITUTIONAL STUDENT INFORMATION RECORDS (ISIRS) OR STUDENT AID REPORTS (SARS) BY INSTITUTIONS FOR THE 2013–2014 AWARD YEAR

Who submits? What is submitted? Where is it submitted? What is the deadline date for receipt?

Student ...... Free Application for Federal Student Aid Electronically to the Department’s Cen- June 30, 2014. (FAFSA)—‘‘FAFSA on the Web’’ (origi- tral Processing System (CPS). nal or renewal). Signature page (if required) ...... To the address printed on the signature September 20, 2014. page. Student An electronic FAFSA (original or re- Electronically to the Department’s CPS June 30, 2014.1 through an newal). using the ‘‘Electronic Data Exchange’’ Institution. (EDE) or ‘‘FAA Access to CPS Online’’. Student ...... A paper original FAFSA ...... To the address printed on the FAFSA or June 30, 2014. envelope provided with the form. Student ...... Electronic corrections to the FAFSA Electronically to the Department’s CPS .. September 20, 2014.1 using ‘‘Corrections on the Web’’. Signature page (if required) ...... To the address printed on the signature September 20, 2014. page. Student Electronic corrections to the FAFSA ...... Electronically to the Department’s CPS September 20, 2014.1 through an using the ‘‘Electronic Data Exchange’’ Institution. (EDE) or ‘‘FAA Access to CPS Online’’. Student ...... Paper corrections to the FAFSA using a To the address printed on the SAR ...... September 20, 2014. SAR, including change of mailing and email addresses and change of institu- tions. Student ...... Change of mailing and email addresses, To the Federal Student Aid Information September 20, 2014. change of institutions, or requests for Center by calling 1–800–433–3243. a duplicate SAR.

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TABLE A—DEADLINE DATES FOR STUDENTS TO SUBMIT A FREE APPLICATION FOR FEDERAL STUDENT AID (FAFSA) AND FOR STUDENTS TO ENSURE THE RECEIPT OF INSTITUTIONAL STUDENT INFORMATION RECORDS (ISIRS) OR STUDENT AID REPORTS (SARS) BY INSTITUTIONS FOR THE 2013–2014 AWARD YEAR—Continued

Who submits? What is submitted? Where is it submitted? What is the deadline date for receipt?

Student ...... SAR with, except for Parent PLUS To the institution ...... The earlier of: Loans and Direct Unsubsidized Loans —The student’s last date of enrollment made to a dependent student under for the 2013–2014 award year; or HEA section 478A(a), an official ex- —September 27, 2014.2 pected family contribution (EFC) cal- culated by the Department’s CPS.. Student ISIR with, except for Parent PLUS Loans To the institution from the Department’s The earlier of: through CPS. and Direct Unsubsidized Loans made CPS. —The student’s last date of enrollment to a dependent student under HEA for the 2013–2014 award year; or section 478A(a), an official expected —September 27, 2014.2 family contribution (EFC) calculated by the Department’s CPS.. Student ...... Valid SAR (Pell Grant, FSEOG, FWS, To the institution ...... Except for a student meeting the condi- Perkins Loan, and Direct Subsidized tions for a late disbursement under 34 Loans). CFR 668.164(g), the earlier of: —The student’s last date of enrollment for the 2013–2014 award year; or —September 27, 2014.2 Student Valid ISIR (Pell Grant, FSEOG, FWS, To the institution from the Department’s through CPS. Perkins Loan, and Direct Subsidized CPS. Loans). Student ...... Valid SAR (Pell Grant, FSEOG, FWS, To the institution ...... For a student receiving a late disburse- Perkins Loan, and Direct Subsidized ment under 34 CFR 668.164(g)(4)(i), Loans). the earlier of: —180 days after the date of the institu- tion’s determination that the student withdrew or otherwise became ineli- gible; or —September 27, 2014.2 Student Valid ISIR (Pell Grant, FSEOG, FWS, To the institution from the Department’s through CPS. Perkins Loan, and Direct Subsidized CPS. Loans). Student ...... Verification documents ...... To the institution ...... The earlier of: 3 —120 days after the student’s last date of enrollment for the 2013–2014 award year; or —September 27, 2014.2 1 The deadline for electronic transactions is 11:59 p.m. (Central Time) on the deadline date. Transmissions must be completed and accepted before 12:00 midnight to meet the deadline. If transmissions are started before 12:00 midnight but are not completed until after 12:00 midnight, those transmissions do not meet the deadline. In addition, any transmission submitted on or just prior to the deadline date that is rejected may not be reprocessed because the deadline will have passed by the time the user gets the information notifying him or her of the rejection. 2 The date the ISIR/SAR transaction was processed by CPS is considered to be the date the institution received the ISIR or SAR regardless of whether the institution has downloaded the ISIR from its SAIG mailbox or when the student submits the SAR to the institution. 3 Although the Secretary has set this deadline date for the submission of verification documents, if corrections are required, deadline dates for submission of paper or electronic corrections and, for Federal Pell Grant and applicants selected for verification, deadline dates for the submis- sion of a valid SAR or valid ISIR to the institution must still be met. An institution may establish an earlier deadline for the submission of verification documents for purposes of the campus-based programs and the Federal Direct Loan Program, but it cannot be later than this dead- line date.

TABLE B—FEDERAL PELL GRANT, IRAQ AND AFGHANISTAN SERVICE GRANT, DIRECT LOAN, AND TEACH GRANT PRO- GRAMS SUBMISSION DATES FOR DISBURSEMENT INFORMATION BY INSTITUTIONS FOR THE 2013–2014 AWARD YEAR OR PROCESSING YEAR 1

What are the deadlines for disbursement and for Which program? What is submitted? Where is it submitted? submission of records and information?

All (Federal Pell Grant, Di- At least one acceptable To the Common Origination and The earliest disbursement date is January 30, rect Loan, TEACH disbursement record Disbursement (COD) System 2013. Grant, and Iraq and Af- must be submitted for using the Student Aid Internet The earliest submission date for anticipated dis- ghanistan Service Grant each recipient at the in- Gateway (SAIG) to the COD bursement information is March 23, 2013. programs). stitution. System using the COD Web The earliest submission date for actual disburse- site at: www.cod.ed.gov. ment information is March 23, 2013, but no ear- lier than: (a) 7 calendar days prior to the disbursement date under the advance payment method or the Cash Monitoring #1 payment method; or (b) The date of disbursement under the Reimburse- ment or Cash Monitoring #2 payment methods.

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TABLE B—FEDERAL PELL GRANT, IRAQ AND AFGHANISTAN SERVICE GRANT, DIRECT LOAN, AND TEACH GRANT PRO- GRAMS SUBMISSION DATES FOR DISBURSEMENT INFORMATION BY INSTITUTIONS FOR THE 2013–2014 AWARD YEAR OR PROCESSING YEAR 1—Continued

What are the deadlines for disbursement and for Which program? What is submitted? Where is it submitted? submission of records and information?

Federal Pell Grant, Iraq At least one acceptable To the Common Origination and Except as provided below, the latest submission and Afghanistan Serv- disbursement record Disbursement (COD) System date 2 is the earlier of: ice Grant, and TEACH must be submitted for using the Student Aid Internet (a) 15 calendar days after the institution makes a Grant Program. each recipient at the in- Gateway (SAIG) to the COD disbursement or becomes aware of the need to stitution. System using the COD Web make an adjustment to previously reported dis- site at: www.cod.ed.gov. bursement data, except that records of disburse- ments made between January 1, 2013 and March 23, 2013 may be submitted no later than April 7, 2013; or (b) September 30, 2014. Note: Downward adjustments after September 30, 2014, of a previously reported and accepted award or disbursement, may be submitted no later than September 30, 2019. Direct Loan Program ...... At least one acceptable To the Common Origination and Except as provided below, the deadline submission disbursement record Disbursement (COD) System date 2 is the earlier of: must be submitted for using the Student Aid Internet (a) 15 calendar days after the institution makes a each recipient at the in- Gateway (SAIG) to the COD disbursement or becomes aware of the need to stitution. System using the COD Web make an adjustment to previously reported dis- site at: www.cod.ed.gov. bursement data, except that records of disburse- ments made between January 1, 2013, and March 23, 2013, may be submitted no later than April 7, 2013; or (b) July 31, 2015. All (Federal Pell Grant, Di- At least one acceptable Via COD Web site at: The earlier of: rect Loan, TEACH disbursement record www.cod.ed.gov. (a) When the institution is fully reconciled and is Grant, and Iraq and Af- must be submitted for ready to submit all additional data for the pro- ghanistan Service Grant each recipient at the in- gram and the award year; or programs). stitution. Any disburse- (b) September 30, 2019. ment information for submission after the deadline submission date may be submitted only upon approval of a request for an exten- sion. Requests for ex- tensions to the estab- lished disbursement submission deadlines may be made for rea- sons, including, but not limited to:. (a) A program review or initial audit finding under 34 CFR 690.83; (b) A late disbursement under 34 CFR 668.164(g); or (c) Disbursements pre- viously blocked as a re- sult of another institu- tion failing to post a downward adjustment Federal Pell Grant and Request for administra- Via COD Web site at: The earlier of: Iraq and Afghanistan tive relief based on a www.cod.ed.gov. (a) A date designated by the Secretary after con- Service Grant. natural disaster or sultation with the institution; or other unusual cir- (b) February 1, 2015. cumstance or an ad- ministrative error made by the Department.

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TABLE B—FEDERAL PELL GRANT, IRAQ AND AFGHANISTAN SERVICE GRANT, DIRECT LOAN, AND TEACH GRANT PRO- GRAMS SUBMISSION DATES FOR DISBURSEMENT INFORMATION BY INSTITUTIONS FOR THE 2013–2014 AWARD YEAR OR PROCESSING YEAR 1—Continued

What are the deadlines for disbursement and for Which program? What is submitted? Where is it submitted? submission of records and information?

Federal Pell Grant and Request for administra- Via COD Web site at: The earlier of: Iraq and Afghanistan tive relief if a student www.cod.ed.gov. (a) 15 days after the student reenrolls; or Service Grant. reenters the institution (b) May 3, 2015. within 180 days after initially withdrawing, and the institution is re- porting a disbursement for the student within 15 days of the stu- dent’s reenrollment but after September 30, 20133. 1 A COD Processing Year is a period of time in which institutions are permitted to submit Direct Loan records to the COD System that are re- lated to a given award year. For a Direct Loan, the period of time includes loans that have a loan period covering any day in the 2013–2014 award year. 2 Transmissions must be completed and accepted before 12:00 midnight (Eastern Time) to meet the deadline. If transmissions are started be- fore 12:00 midnight but are not completed until after 12:00 midnight, those transmissions will not meet the deadline. In addition, any transmission submitted on or just prior to the deadline date that is rejected may not be reprocessed because the deadline will have passed by the time the user gets the information notifying him or her of the rejection. 3 Applies only to students enrolled in clock-hour and nonterm credit-hour educational programs. Note: The COD System must accept origination data for a student from an institution before it accepts disbursement information from the insti- tution for that student. Institutions may submit origination and disbursement data for a student in the same transmission. However, if the origina- tion data is rejected, the disbursement data is rejected.

[FR Doc. 2013–16331 Filed 7–5–13; 8:45 am] SUPPLEMENTARY INFORMATION: This DEPARTMENT OF ENERGY BILLING CODE 4000–01–P] subsequent arrangement concerns the retransfer of 591,716 kg of U.S.-origin Federal Energy Regulatory natural uranium hexafluoride (UF6) Commission (67.60% U), 400,000 kg of which is DEPARTMENT OF ENERGY Combined Notice of Filings #2 uranium, from Cameco Corporation Proposed Subsequent Arrangement (Cameco) in Saskatoon, Saskatchewan, Take notice that the Commission Canada, to URENCO in Gronau, received the following electric rate AGENCY: Office of Nonproliferation and Germany. The material, which is filings: International Security, Department of currently located at Cameco, will be Energy. Docket Numbers: ER10–2374–004; used for toll enrichment by URENCO at ER10–1533–005. ACTION: Proposed subsequent its facility in Gronau, Germany. The arrangement. Applicants: Puget Sound Energy, Inc., material was originally obtained by Macquarie Energy LLC. SUMMARY: This notice is being issued Cameco from Power Resources Inc., Description: Triennial Updated under the authority of section 131a. of Cameco Resources-Crowe Butte Market Power Analysis in the Northwest the Atomic Energy Act of 1954, as Operation, and White Mesa Mill Region of Puget Sound Energy, Inc., et. amended. The Department is providing pursuant to export license XSOU8798. al. notice of a proposed subsequent In accordance with section 131a. of Filed Date: 6/28/13. arrangement under the Agreement for the Atomic Energy Act of 1954, as Accession Number: 20130628–5138. Cooperation Concerning Civil Uses of amended, it has been determined that Comments Due: 5 p.m. ET 8/27/13. Nuclear Energy Between the this subsequent arrangement concerning Docket Numbers: ER10–2864–001; Government of the United States of the retransfer of nuclear material of ER10–2863–001; ER10–2867–001; America and the Government of Canada United States origin will not be inimical ER10–2862–001. and the Agreement for Cooperation in to the common defense and security of Applicants: Las Vegas Cogeneration the Peaceful Uses of Nuclear Energy the United States. LP, Las Vegas Cogeneration II, LLC, Between the United States of America Valencia Power, LLC, Harbor and the European Atomic Energy Dated: June 21, 2013. Cogeneration Company, LLC. Community. For the Department of Energy. Description: Triennial Market Power DATES: This subsequent arrangement Anne M. Harrington, Analysis of SGOC Southwest MBR will take effect no sooner than July 23, Deputy Administrator, Defense Nuclear Sellers for the Southwest Region. 2013. Nonproliferation. Filed Date: 6/28/13. FOR FURTHER INFORMATION CONTACT: Mr. [FR Doc. 2013–16287 Filed 7–5–13; 8:45 am] Accession Number: 20130628–5216. Sean Oehlbert, Office of BILLING CODE 6450–01–P Comments Due: 5 p.m. ET 8/27/13. Nonproliferation and International Docket Numbers: ER10–2994–008; Security, National Nuclear Security ER10–2822–004; ER10–3158–004; Administration, Department of Energy. ER10–3159–003; ER10–1720–004; Telephone: 202–586–3806 or email: ER12–308–004; ER10–3162–004; ER10– [email protected]. 3161–004.

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Applicants: Iberdrola Renewables, Docket Numbers: ER13–1842–000. Filed Date: 6/28/13. LLC, Atlantic Renewable Projects II Applicants: PacifiCorp. Accession Number: 20130628–5152. LLC, Dillon Wind LLC, Dry Lake Wind Description: PacifiCorp submits tariff Comments Due: 5 p.m. ET 7/19/13. Power, LLC, Dry Lake Wind Power II filing per 35.13(a)(2)(iii): BPA Docket Numbers: ER13–1849–000. LLC, Manzana Wind LLC, Mountain Cooperative Communications Applicants: Kern River Cogeneration View Power Partners III, LLC, Shiloh I Agreement 6th Revised to be effective 8/ Company. Wind Project, LLC. 28/2013. Description: Triennial Market Power Description: Updated Market Power Filed Date: 6/28/13. Analysis for the Southwest Region to be Analysis for the Southwest Region of Accession Number: 20130628–5136. effective 6/29/2013. Iberdrola Renewables, LLC, et. al. Comments Due: 5 p.m. ET 7/19/13. Filed Date: 6/28/13. Filed Date: 6/28/13. Docket Numbers: ER13–1843–000. Accession Number: 20130628–5156. Accession Number: 20130628–5225. Applicants: Walnut Creek Energy, Comments Due: 5 p.m. ET 8/27/13. Comments Due: 5 p.m. ET 8/27/13. LLC. Docket Numbers: ER13–1850–000. Docket Numbers: ER11–4436–002; Description: Walnut Creek Energy, Applicants: Mid-Set Cogeneration ER10–2473–003; ER10–2502–003; LLC submits tariff filing per 35.37: Company. ER10–2472–003; ER11–2424–011. Triennial Market Power Analysis for the Description: Triennial Market Power Applicants: Black Hills Power, Inc., Southwest Region to be effective 6/29/ Analysis for the Southwest Region to be Cheyenne Light Fuel & Power Company, 2013. effective 6/29/2013. Black Hills/Colorado Electric Utility Co, Filed Date: 6/28/13. Filed Date: 6/28/13. Black Hills Colorado IPP, LLC, Black Accession Number: 20130628–5145. Accession Number: 20130628–5159. Hills Wyoming, LLC. Comments Due: 5 p.m. ET 8/27/13. Comments Due: 5 p.m. ET 8/27/13. Description: Updated Market Power Docket Numbers: ER13–1844–000. Docket Numbers: ER13–1851–000. Analysis of the Black Hills Corporation Applicants: High Lonesome Mesa, Applicants: New England Power Pool Public Utilities for the Northwest LLC. Participants Committee, ISO New Region. Description: High Lonesome Mesa, England Inc. Filed Date: 6/28/13. LLC submits tariff filing per 35.37: Description: New England Power Pool Accession Number: 20130628–5181. Triennial Market Power Analysis for the Participants Committee Winter 2013– Comments Due: 5 p.m. ET 8/27/13. Southwest Region to be effective 6/29/ 2014 Reliability Program to be effective Docket Numbers: ER12–1320–001. 2013. 8/27/2013. Filed Date: 6/28/13. Applicants: Desert View Power, Inc. Filed Date: 6/28/13. Accession Number: 20130628–5146. Description: Desert View Power, Inc. Accession Number: 20130628–5161. Comments Due: 5 p.m. ET 8/27/13. submits tariff filing per 35: Notice of Comments Due: 5 p.m. ET 7/19/13. Change in Status to be effective 8/28/ Docket Numbers: ER13–1845–000. 2013. Applicants: Midway-Sunset Docket Numbers: ER13–1852–000. Applicants: Sargent Canyon Filed Date: 6/28/13. Cogeneration Company. Accession Number: 20130628–5182. Description: Triennial Market Power Cogeneration Company. Comments Due: 5 p.m. ET 7/19/13. Analysis for the Southwest Region to be Description: Triennial Market Power Analysis for the Southwest Region to be Docket Numbers: ER13–1700–001. effective 6/29/2013. Filed Date: 6/28/13. effective 6/29/2013. Applicants: KASS Commodities. Filed Date: 6/28/13. Description: KASS Commodities Accession Number: 20130628–5148. Comments Due: 5 p.m. ET 8/27/13. Accession Number: 20130628–5168. submits tariff filing per 35.17(b): Comments Due: 5 p.m. ET 8/27/13. Amended MBR Tariff Filing to be Docket Numbers: ER13–1846–000. effective 7/8/2013. Applicants: Coalinga Cogeneration Docket Numbers: ER13–1853–000. Filed Date: 6/28/13. Company. Applicants: Sunrise Power Company, Accession Number: 20130628–5150. Description: Triennial Market Power LLC. Comments Due: 5 p.m. ET 7/19/13. Analysis for the Southwest Region to be Description: Triennial Market Power Analysis for the Southwest Region to be Docket Numbers: ER13–1840–000. effective 6/29/2013. effective 6/29/2013. Applicants: Southwest Power Pool, Filed Date: 6/28/13. Filed Date: 6/28/13. Inc. Accession Number: 20130628–5149. Accession Number: 20130628–5172. Description: Southwest Power Pool, Comments Due: 5 p.m. ET 8/27/13. Comments Due: 5 p.m. ET 8/27/13. Inc. submits tariff filing per Docket Numbers: ER13–1847–000. 35.13(a)(2)(iii): 1628R5 Western Farmers Applicants: Watson Cogeneration Docket Numbers: ER13–1854–000. Electric Cooperative NITSA NOA to be Company. Applicants: Sycamore Cogeneration effective 6/1/2013. Description: Triennial Market Power Company. Filed Date: 6/28/13. Analysis for the Southwest Region to be Description: Triennial Market Power Accession Number: 20130628–5130. effective 6/29/2013. Analysis for the Southwest Region to be Comments Due: 5 p.m. ET 7/19/13. Filed Date: 6/28/13. effective 6/29/2013. Filed Date: 6/28/13. Docket Numbers: ER13–1841–000. Accession Number: 20130628–5151. Accession Number: 20130628–5176. Applicants: Southwest Power Pool, Comments Due: 5 p.m. ET 8/27/13. Comments Due: 5 p.m. ET 8/27/13. Inc. Docket Numbers: ER13–1848–000. Description: Southwest Power Pool, Applicants: Southern California Docket Numbers: ER13–1855–000. Inc. submits tariff filing per Edison Company. Applicants: XO Energy SW, LP. 35.13(a)(2)(iii): 607R19 Westar Energy, Description: Southern California Description: XO Energy SW, LP Inc. NITSA and NOAs to be effective 6/ Edison Company submits tariff filing Baseline New to be effective 7/1/2013. 1/2013. per 35.13(a)(2)(iii): Amended Service Filed Date: 6/28/13. Filed Date: 6/28/13. Agmts for Wholesale Distribution Serv Accession Number: 20130628–5177. Accession Number: 20130628–5131. for Devers-Mirage Project to be effective Comments Due: 5 p.m. ET 7/19/13. Comments Due: 5 p.m. ET 7/19/13. 6/1/2013. Docket Numbers: ER13–1856–000.

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Applicants: Citizens Sunrise Biopesticides and Pollution Prevention approximately 97 acres to evaluate the Transmission LLC. Division (7511P), Office of Pesticide suppression of the native Aedes Description: Annual Operating Cost Programs, Environmental Protection polynesiensis). One of the sites will be True-Up Adjustment Informational Agency, 1200 Pennsylvania Ave. NW., a control site. The program is authorized Filing to be effective 7/1/2013. Washington, DC 20460–0001; telephone only in the United States Territory of Filed Date: 6/28/13. number: (703) 308–8097; email address: Samoa. The EUP is effective from June Accession Number: 20130628–5178. [email protected]; and 15, 2012 to June 20, 2013. Four Comments Due: 5 p.m. ET 7/19/13. Jeannine Kausch (88347–EUP–1), comments were received in response to Docket Numbers: ER13–1857–000. Biopesticides and Pollution Prevention the May 8, 2012, notice of receipt in the Applicants: Idaho Power Company. Division (7511P), Office of Pesticide Federal Register, 77 FR 27054, FRL– Description: Triennial and Change in Programs, Environmental Protection 9342–8. The Agency’s and applicant’s Status June 2013 to be effective 8/5/ Agency, 1200 Pennsylvania Ave. NW., responses to these comments are 2010. Washington, DC 20460–0001; telephone included in this docket (Ref. 1 and 2). Filed Date: 6/28/13. number: (703) 347–8920; email address: References: 1. U.S. EPA BPPD Accession Number: 20130628–5221. [email protected]. memorandum (S. Bacchus through K. Comments Due: 5 p.m. ET 7/19/13. SUPPLEMENTARY INFORMATION: Nesci to K. Matthews), May 20, 2013; 2. Robert I. Rose, email to S. Bacchus (U.S. The filings are accessible in the I. General Information Commission’s eLibrary system by EPA BPPD). University of Kentucky’s clicking on the links or querying the A. Does this action apply to me? response to Oxitec’s comment. June 19, 2012. docket number. These actions are directed to the 2. 88347–EUP–1. (EPA–HQ–OPP– Any person desiring to intervene or public in general. Although these 2013–0427). Issuance. Phyllom, LLC, protest in any of the above proceedings actions may be of particular interest to 922 San Leandro Ave., Suite F, must file in accordance with Rules 211 those persons who conduct or sponsor Mountain View, CA 94043. This EUP and 214 of the Commission’s research on pesticides, the Agency has allows the use of 2,448 pounds of the Regulations (18 CFR 385.211 and not attempted to describe all the specific insecticide, Bacillus thuringiensis 385.214) on or before 5:00 p.m. Eastern entities that may be affected by these subspecies galleriae strain SDS–502 time on the specified comment date. actions. Protests may be considered, but fermentation solids, spores, and intervention is necessary to become a B. How can I get copies of this document insecticidal toxins, on 1,400 acres of party to the proceeding. and other related information? forested areas to evaluate the control of eFiling is encouraged. More detailed The docket for these actions, emerald ash borer (Agrilus planipennis). information relating to filing identified by docket identification (ID) The program is authorized only in the requirements, interventions, protests, numbers EPA–HQ–OPP–2012–0181 States of Illinois, Minnesota, service, and qualifying facilities filings (88877–EUP–1) and EPA–HQ–OPP– Pennsylvania, and Wisconsin. The EUP can be found at: http://www.ferc.gov/ 2013–0427 (88347–EUP–1) are available is effective from May 8, 2013 to August docs-filing/efiling/filing-req.pdf. For at http://www.regulations.gov or at the 31, 2014. other information, call (866) 208–3676 Office of Pesticide Programs Regulatory Authority: 7 U.S.C. 136c. (toll free). For TTY, call (202) 502–8659. Public Docket (OPP Docket) in the List of Subjects Dated: June 28, 2013. Environmental Protection Agency Docket Center (EPA/DC), EPA West Environmental protection, Nathaniel J. Davis, Sr., Bldg., Rm. 3334, 1301 Constitution Ave. Experimental use permits. Deputy Secretary. NW., Washington, DC 20460–0001. The Dated: June 27, 2013. [FR Doc. 2013–16326 Filed 7–5–13; 8:45 am] Public Reading Room is open from 8:30 Daniel J. Rosenblatt, BILLING CODE 6717–01–P a.m. to 4:30 p.m., Monday through Acting Director, Registration Division, Office Friday, excluding legal holidays. The of Pesticide Programs. telephone number for the Public [FR Doc. 2013–16317 Filed 7–5–13; 8:45 am] ENVIRONMENTAL PROTECTION Reading Room is (202) 566–1744, and BILLING CODE 6560–50–P AGENCY the telephone number for the OPP [EPA–HQ–OPP–2012–0181 and EPA–HQ– Docket is (703) 305–5805. Please review OPP–2013–0427; FRL–9392–3] the visitor instructions and additional ENVIRONMENTAL PROTECTION information about the docket available AGENCY Issuance of Two Experimental Use at http://www.epa.gov/dockets. [FRL–9831–4; EPA–HQ–OEI–2012–0806] Permits II. EUPs Notification of Deletion of System of AGENCY: Environmental Protection EPA has issued the following EUPs: Agency (EPA). 1. 88877–EUP–1. (EPA–HQ–OPP– Records; Office of Criminal Enforcement, Forensics & Training, ACTION: Notice. 2012–0181). Issuance. Stephen L. Dobson, University of Kentucky, National Enforcement Investigations SUMMARY: EPA has granted experimental Department of Entomology, S–225 Ag. Center, Master Tracking System (EPA– use permits (EUPs) to the following Science Center North, Lexington, KY 46) pesticide applicants: Stephen L. Dobson 40546–0091. This EUP allows the AGENCY: Environmental Protection (University of Kentucky) and Phyllom, release of 30,000 mosquitoes per week Agency (EPA). LLC. An EUP permits use of a pesticide for 26 weeks from approximately 52 ACTION: Notice. for experimental or research purposes grams of Wolbachia pipientis infected only in accordance with the limitations Aedes polynesiensis mosquito eggs SUMMARY: The Environmental Protection in the permit. (containing approximately 0.52 mg Agency is removing the Master Tracking FOR FURTHER INFORMATION CONTACT: Wolbachia pipientis microbial active System (EPA–46), published in the Shanaz Bacchus (88877–EUP–1), ingredient used as an insecticide on Federal Register on October 1, 2011,

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from its inventory of Privacy Act Dated: June 14, 2013. 1200 Sixth Avenue, Seattle, Washington systems. A personal identifier is no Malcolm D. Jackson, 98101. A copy of the proposed longer used to retrieve the information Assistant Administrator and Chief settlement may be obtained from in the system. Information Officer. Candace Smith, Regional Hearing Clerk, [FR Doc. 2013–16329 Filed 7–5–13; 8:45 am] U.S. EPA Region 10, 1200 Sixth Avenue, DATES: This notice is effective BILLING CODE 6560–50–P Suite 900, Mail Stop ORC–158, Seattle, immediately upon publication in the Washington 98101. Comments should Federal Register. reference the Double H Pesticide Burial FOR FURTHER INFORMATION CONTACT: ENVIRONMENTAL PROTECTION Site, CERCLA Docket No. 10–2009– Valerie James, Infrastructure and Project AGENCY 0193, and should be addressed to Support Branch Chief, National Clifford J. Villa, Assistant Regional [FRL–9831–3; 10–2009–0193] Counsel, U.S. EPA Region 10, Mail Stop Enforcement Investigations Center, ORC–158, 1200 Sixth Avenue, Suite Office of Criminal Enforcement, Proposed CERCLA Administrative 900, Seattle, Washington 98101. Forensics & Training at (303) 462–9051 Cost Recovery Settlement; Double H FOR FURTHER INFORMATION CONTACT: or Tammy Stein, Infrastructure Section Pesticide Burial Site Clifford J. Villa, Assistant Regional Chief, National Enforcement AGENCY: Environmental Protection Counsel, U.S. EPA Region 10, Mail Stop Investigations Center, Office of Criminal Agency (EPA). ORC–158, 1200 Sixth Avenue, Suite Enforcement, Forensics & Training at ACTION: Notice; request for public 900, Seattle, Washington 98101; (206) (303) 462–9054, P.O. Box 25227, Denver comment. 553–1185. Federal Center, 6th and Kipling, SUPPLEMENTARY INFORMATION: The Building 25, Denver, CO 80225. SUMMARY: In accordance with Section Double H Pesticide Burial Site is located 122(i) of the Comprehensive SUPPLEMENTARY INFORMATION: near Grandview, Yakima County, Environmental Response, Washington. The site was the location of General Information Compensation, and Liability Act, as unpermitted disposal of pesticide amended (CERCLA), notice is hereby containers and other hazardous The Master Tracking System, EPA–46, given of a proposed administrative substances. Consistent with the terms of contains information about individuals settlement for recovery of response costs the ASAOC, the settling parties who are the subject of investigations incurred for the Double H Pesticide conducted an action in 2009 to remove conducted by the EPA Office of Burial Site in Grandview, Yakima contaminated materials from this site for Criminal Enforcement. The investigative County, Washington. Under this proper disposal. Work under the reports concern violations of federal proposed settlement, the settling parties ASAOC was conducted subject to EPA environmental statutes and regulations are Double H, L.P.; James T. Hansen; oversight. By notice dated January 10, and include information provided by Linda L. Hansen; George W. Higgins; 2011, EPA confirmed the completion of individuals related to the subject and Edith M. Higgins. The proposed the required work at the Site. As violation. Since personal identifiers are settlement requires the settling parties provided by the ASAOC, EPA no longer used to retrieve the to pay $370,256.98 to the EPA subsequently submitted a bill to settling information in this system, the Agency Hazardous Substance Superfund. Upon parties for reimbursement of EPA’s costs is deleting the Master Tracking System payment of this sum to EPA, the settling for oversight and related expenses at the from its inventory of Privacy Act parties will be released from all other Site. The total amount of this bill, dated systems. obligations for payments to EPA as well January 15, 2013, was $545,315.59. Of as requirements for maintaining this amount, settling parties paid How can I get copies of this document insurance and financial assurance $73,459.42, and invoked dispute and other related information? established under an Administrative resolution over the remaining costs Settlement Agreement and Order on totaling $472,153.75. After the EPA established a docket for this Consent (‘‘ASAOC’’), CERCLA Docket reviewing the activities comprising action under Docket ID No. EPA–HQ– No. 10–2009–0193, signed between the these disputed costs, and considering OEI–2012–0806. Copies of the docket settling parties and the EPA in 2009. other factors, EPA and the settling materials are available at For 30 days following the date of parties propose to settle this dispute www.regulations.gov or in hard copy at publication of this notice, the EPA will through a final payment of $370,256.98. the EPA Docket Center (EPA/DC), EPA receive written comments relating to the Upon payment of this sum to EPA, the West, Room 3334, 1301 Constitution proposed settlement. The EPA will settling parties will be released from all Ave. NW., Washington, DC. The EPA consider all comments received and other obligations for payments to EPA as Docket Center Public Reading Room is may modify or withdraw its consent to well as requirements under the ASAOC open from 8:30 a.m. to 4:30 p.m., the settlement if comments received for maintaining insurance and financial Monday through Friday, excluding legal disclose facts or considerations which assurance. Other provisions of the holidays. The telephone number for the indicate that the settlement is ASAOC, including Section XIX Public Reading Room is (202) 566–1744. inappropriate, improper, or inadequate. (Covenant Not To Sue By EPA), Section The telephone number for the OEI The EPA’s response to any comments XX (Reservations of Rights By EPA), and Docket Center is (202) 566–1752. received will be available for public Section XXI (Covenant Not To Sue By inspection at the U.S. EPA Region 10 Respondents) will remain subject to How can I get electronic access to this Office, located at 1200 Sixth Avenue, their original terms. document? Seattle, Washington 98101. Dated: June 27, 2013. You may access this Federal Register DATES: Comments must be submitted on Chris D. Field, document electronically under the or before August 7, 2013. Manager, Emergency Management Program, ‘‘Federal Register’’ listings at ADDRESSES: The proposed settlement is U.S. EPA Region 10. www.regulations.gov. available for public inspection at the [FR Doc. 2013–16348 Filed 7–5–13; 8:45 am] U.S. EPA Region 10 Office, located at BILLING CODE 6560–50–P

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FEDERAL MARITIME COMMISSION Filing Party: Candace J. Running; acquire Virginia Commerce Bank, both Broward County Board of County of Arlington, Virginia. Notice of Agreements Filed Commissioners; Office of the County B. Federal Reserve Bank of St. Louis Attorney; 1850 Eller Drive, Suite 502; (Yvonne Sparks, Community The Commission hereby gives notice Fort Lauderdale, FL 33316. Development Officer) P.O. Box 442, St. of the filing of the following agreements Synopsis: The Amendment adds an Louis, Missouri 63166–2034: under the Shipping Act of 1984. additional service to the terms of the 1. Banc Investors, L.L.C., Town and Interested parties may submit comments Agreement. Country, Missouri; to acquire 33.32 on the agreements to the Secretary, percent of the voting shares of 1st Federal Maritime Commission, By Order of the Federal Maritime Commission. Advantage Bancshares, Inc., and thereby Washington, DC 20573, within ten days Dated: July 2, 2013. indirectly acquire 1st Advantage Bank, of the date this notice appears in the Karen V. Gregory, both of St. Peters, Missouri. Federal Register. Copies of the agreements are available through the Secretary. Board of Governors of the Federal Reserve Commission’s Web site (www.fmc.gov) [FR Doc. 2013–16294 Filed 7–5–13; 8:45 am] System, July 2, 2013. or by contacting the Office of BILLING CODE 6730–01–P Michael J. Lewandowski, Agreements at (202) 523–5793 or Associate Secretary of the Board. [email protected]. [FR Doc. 2013–16275 Filed 7–5–13; 8:45 am] Agreement No.: 012084–002. FEDERAL RESERVE SYSTEM BILLING CODE 6210–01–P Title: HLAG/Maersk Line Gulf-South America Slot Charter Agreement. Formations of, Acquisitions by, and Parties: A.P. Moller-Maersk A/S and Mergers of Bank Holding Companies FEDERAL RESERVE SYSTEM Hapag-Lloyd AG. The companies listed in this notice Filing Party: Robert K. Magovern, Formations of, Acquisitions by, and have applied to the Board for approval, Mergers of Bank Holding Companies Esq.; Cozen O’Connor; 1627 I Street pursuant to the Bank Holding Company NW., Suite 1100; Washington, DC Act of 1956 (12 U.S.C. 1841 et seq.) The companies listed in this notice 20006–4007. (BHC Act), Regulation Y (12 CFR part have applied to the Board for approval, Synopsis: The amendment would add 225), and all other applicable statutes pursuant to the Bank Holding Company an additional service string from which and regulations to become a bank Act of 1956 (12 U.S.C. 1841 et seq.) Maersk could charter space from Hapag- holding company and/or to acquire the (BHC Act), Regulation Y (12 CFR Part Lloyd. The parties have requested assets or the ownership of, control of, or 225), and all other applicable statutes Expedited Review. the power to vote shares of a bank or and regulations to become a bank Agreement No.: 012163–002. bank holding company and all of the holding company and/or to acquire the Title: MSC/CMA CGM U.S. East banks and nonbanking companies assets or the ownership of, control of, or Coast—East Coast South America owned by the bank holding company, the power to vote shares of a bank or Service Space Charter Agreement. including the companies listed below. bank holding company and all of the Parties: Mediterranean Shipping The applications listed below, as well banks and nonbanking companies Company S.A. and CMA CGM S.A. as other related filings required by the owned by the bank holding company, Filing Party: Marc J. Fink, Esquire; Board, are available for immediate including the companies listed below. Cozen O’Connor; 1627 I Street NW., inspection at the Federal Reserve Bank The applications listed below, as well Suite 1100; Washington, DC 20006– indicated. The applications will also be as other related filings required by the 4007. available for inspection at the offices of Board, are available for immediate Synopsis: The Amendment would the Board of Governors. Interested inspection at the Federal Reserve Bank increase slot allocations and revise persons may express their views in indicated. The applications will also be vessel size. The Parties request writing on the standards enumerated in available for inspection at the offices of Expedited Review. the BHC Act (12 U.S.C. 1842(c)). If the the Board of Governors. Interested Agreement No.: 201166–001. proposal also involves the acquisition of persons may express their views in Title: Marine Terminal Lease and a nonbanking company, the review also writing on the standards enumerated in Operating Agreement. includes whether the acquisition of the the BHC Act (12 U.S.C. 1842(c)). If the Parties: Broward County, Florida nonbanking company complies with the proposal also involves the acquisition of International Terminal, LLC, and standards in section 4 of the BHC Act a nonbanking company, the review also Compania Sud Americana de Vapores, (12 U.S.C. 1843). Unless otherwise includes whether the acquisition of the S.A. (as guarantor). noted, nonbanking activities will be nonbanking company complies with the Filing Party: Candace J. Running; conducted throughout the United States. standards in section 4 of the BHC Act Broward County Board of County Unless otherwise noted, comments (12 U.S.C. 1843). Unless otherwise Commissioners; Office of the County regarding each of these applications noted, nonbanking activities will be Attorney; 1850 Eller Drive, Suite 502; must be received at the Reserve Bank conducted throughout the United States. Fort Lauderdale, FL 33316. indicated or the offices of the Board of Unless otherwise noted, comments Synopsis: The Amendment updates Governors not later than August 1, 2013. regarding each of these applications the terms for the lease and operation of A Federal Reserve Bank of Richmond must be received at the Reserve Bank terminal facilities at Port Everglades, (Adam M. Drimer, Assistant Vice indicated or the offices of the Board of Florida. President) 701 East Byrd Street, Governors not later than August 1, 2013. Agreement No.: 201166–002. Richmond, Virginia 23261–4528: A Federal Reserve Bank of Richmond Title: Marine Terminal Lease and 1. United Bankshares, Inc., (Adam M. Drimer, Assistant Vice Operating Agreement. Charleston, West Virginia, and George President) 701 East Byrd Street, Parties: Broward County, Florida Mason Bankshares, Inc., Fairfax, Richmond, Virginia 23261–4528: International Terminal, LLC, and Virginia; to acquire 100 percent of the 1. United Bankshares, Inc., Compania Sud Americana de Vapores, voting shares of Virginia Commerce Charleston, West Virginia, and George S.A. (as guarantor). Bancorp, Inc, and thereby indirectly Mason Bankshares, Inc., Fairfax,

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Virginia; to acquire 100 percent of the follows an initial meeting, on May 20, SUPPLEMENTARY INFORMATION: voting shares of Virginia Commerce 2013, of the GBAC. During the May 20, Proposed Project Bancorp, Inc, and thereby indirectly 2013 meeting the GBAC discussed an acquire Virginia Commerce Bank, both initial Green Book draft. Members of the Pretest of the Ambulatory Surgery/ of Arlington, Virginia. public will be provided an opportunity Procedure Survey on Patient Safety B. Federal Reserve Bank of St. Louis to address the Council with a brief (five- Culture Questionnaire (Ambulatory (Yvonne Sparks, Community minute) comment period on matters Surgery SOPS) Development Officer) P.O. Box 442, St. directly related to the proposed update Louis, Missouri 63166–2034: and revision. Any interested person One setting which has demonstrated 1. Banc Investors, L.L.C., Town and who plans to participate in the tremendous growth both in the volume Country, Missouri; to acquire 33.32 teleconference as an observer must and complexity of procedures being percent of the voting shares of 1st contact Kristen Kociolek, Assistant performed is ambulatory surgical and Advantage Bancshares, Inc., and thereby Director, 202–512–2989, prior to July procedure centers (ASCs). ASCs are indirectly acquire 1st Advantage Bank, 19, 2013. The toll free call-in number is defined by the Centers for Medicare & both of St. Peters, Missouri. 1–800–369–1927, and the participant Medicaid Services (CMS) as distinct code is 41706. entities that operate exclusively to Board of Governors of the Federal Reserve provide surgical services to patients System, July 2, 2013. Authority: 31 U.S.C. 3512 (c), (d). who do not require hospitalization and Michael J. Lewandowski, James Dalkin, are not expected to need to stay in a Associate Secretary of the Board. Director, Financial Management and surgical facility longer than 24 hours (42 [FR Doc. 2013–16280 Filed 7–5–13; 8:45 am] Assurance, U.S. Government Accountability CFR 416.2). Many of the services BILLING CODE 6210–01–P Office. performed in these facilities extend [FR Doc. 2013–16256 Filed 7–5–13; 8:45 am] beyond procedures traditionally thought BILLING CODE 1610–02–M of as surgery, including endoscopy, and GOVERNMENT ACCOUNTABILITY injections to treat chronic pain. OFFICE Currently, there are over 5,300 Medicare-certified ASCs in the U.S., Advisory Council on the Standards for DEPARTMENT OF HEALTH AND HUMAN SERVICES which represents a greater than 54% Internal Control in the Federal increase since 2001. In 2007, Medicare Government Agency for Healthcare Research and paid for more than 6 million surgeries AGENCY: Government Accountability Quality performed in these facilities at a cost of Office. nearly $3 billion. Recent CMS audits Agency Information Collection suggest infection control deficiencies in ACTION: Notice of teleconference Activities: Proposed Collection; these facilities are widespread. For meeting. Comment Request example, preliminary data from 2011 found that 51 percent of ASCs surveyed SUMMARY: The US Government AGENCY: Agency for Healthcare Research had an infection control deficiency; 11 Accountability Office (GAO) is and Quality, HHS. preparing to revise the Standards for percent were considered very serious ACTION: Notice. Internal Control in the Federal deficiencies. These findings are only Government, known as the ‘‘Green SUMMARY: This notice announces the slightly lower than 2010 audits and a Book,’’ under the authority provided in intention of the Agency for Healthcare 2008 sample of ASCs in three states. the Federal Managers’ Financial Research and Quality (AHRQ) to request Given the widespread impact of ASCs Integrity Act. As part of the revision that the Office of Management and on patient safety, the new Ambulatory process, GAO is holding a Budget (OMB) approve the proposed Surgery/Procedure Survey on Patient teleconference with the Green Book information collection project: ‘‘Pretest Safety Culture (Ambulatory Surgery Advisory Council (GBAC). The of the Ambulatory Surgery/Procedure SOPS) will measure ASC staff Comptroller General has established the Survey on Patient Safety Culture perceptions about what is important in GBAC to provide input and Questionnaire (Ambulatory Surgery their organization and what attitudes recommendations to the Comptroller SOPS).’’ In accordance with the and behaviors related to patient safety General on revisions to the ‘‘Green Paperwork Reduction Act, 44 U.S.C. culture are supported, rewarded, and Book.’’ The purpose of the meeting is to 3501–3521, AHRQ invites the public to expected. The survey will help ASCs to discuss proposed revisions to the comment on this proposed information identify and discuss strengths and ‘‘Green Book.’’ collection. weaknesses of patient safety culture DATES: The meeting will be held July 25, DATES: Comments on this notice must be within their individual facilities. They 2013 from 10:00 a.m. to 12:00 p.m. EDT. received by September 6, 2013. can then use that knowledge to develop FOR FURTHER INFORMATION CONTACT: For ADDRESSES: Written comments should appropriate action plans to improve information on the Green Book be submitted to: Doris Lefkowitz, their practices and their culture of Advisory Council and the Standards for Reports Clearance Officer, AHRQ, by patient safety. This survey is designed Internal Control in the Federal email at [email protected]. for use in ASCs that practice all types Government please contact Kristen Copies of the proposed collection of surgical procedures including those Kociolek, Assistant Director, Financial plans, data collection instruments, and that require incisions and less invasive Management and Assurance telephone specific details on the estimated burden or non-surgical procedures such as 202–512–2989, 441 G Street NW., can be obtained from the AHRQ Reports gastrointestinal procedures or pain Washington, DC 20548–0001. Clearance Officer. management injections. SUPPLEMENTARY INFORMATION: The FOR FURTHER INFORMATION CONTACT: This research has the following goals: meeting will be a teleconference held by Doris Lefkowitz, AHRQ Reports (1) Develop, cognitively test and the US Government Accountability Clearance Officer, (301) 427–1477, or by modify as necessary the Ambulatory Office. This teleconference meeting email at [email protected]. Surgery/Procedure Survey on Patient

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Safety Culture Questionnaire 40 ASCs. The purpose of the pretest is improvement initiatives such as the (Ambulatory Surgery SOPS); and to collect data for an assessment of the implementation of a surgical safety (2) Pretest and modify the reliability and construct validity of the checklist. This survey is an expansion of questionnaire as necessary; and survey items and composites, allowing AHRQ’s suite of surveys on patient (3) Make the final questionnaire for their further refinement. A site-level safety culture, which are available on publicly available. point of contact (POC) will be recruited the AHRQ Web site at (http:// This study is being conducted by in each ASC to manage the data www.ahrq.gov/professionals/quality- AHRQ through its contractor, Health collection at that organization (compile patient-safety/surveys/index.html). Research & Educational Trust (HRET), sample information, distribute surveys, Those surveys have been used by and subcontractor, Westat, pursuant to promote survey response, etc.). thousands of hospitals, nursing homes, AHRQ’s statutory authority to conduct (3) Dissemination activities. The final medical offices, and pharmacies across and support research on healthcare and questionnaire will be made publicly the U.S. to assess patient safety culture. on systems for the delivery of such care, available through the AHRQ Web site. The Ambulatory Surgery SOPS contains including activities with respect to the This activity does not impose a burden new and revised questions and quality, effectiveness, efficiency, on the public and is therefore not composites that more accurately apply appropriateness and value of healthcare included in the burden estimates in to the ambulatory surgery setting. services and with respect to quality Exhibit 1. measurement and improvement. 42 Estimated Annual Respondent Burden The information collected will be U.S.C. 299a(a)(1) and (2). used to test and improve the draft Exhibit 1 shows the estimated Method of Collection survey items in the Ambulatory Surgery annualized burden hours for the To achieve the projects’ goals the SOPS. Psychometric analysis will be respondents’ time to participate in this following activities-and data collections conducted on the pretest data to research. Cognitive interviews will be will be implemented: examine item nonresponse, item conducted with 15 ASC staff (1) Cognitive interviews. One round of response variability, factor structure, (approximately three physicians, six cognitive interviews on the Ambulatory reliability, and construct validity of the nurses, two medical technicians, two Surgery SOPS will be conducted by items included in the survey. Because administrative managers, and two telephone with 15 respondents from the survey items are being developed to administrative assistants) and will take ASCs. The purpose of these interviews measure specific aspects of patient about one hour and 30 minutes to is to understand the cognitive processes safety culture in the ambulatory surgery complete. The Ambulatory Surgery the respondent engages in when setting, the factor structure of the survey SOPS will be completed by 529 ASC answering a question on the survey and items will be evaluated through staff from 40 facilities (about 13 per to refine the survey’s items and multilevel confirmatory factor analysis. facility). Each survey will require composites. These interviews will be On the basis of the data analyses, items approximately 15 minutes to complete. conducted with a mix of physicians, or factors may be dropped. A site-level POC will spend management, nurses, surgical The final survey instrument will be approximately 6 hours administering technicians, and administrative staff made available to the public for use in the Ambulatory Surgery SOPS. The total throughout the U.S. from ASCs with ASCs to assess their safety culture from burden is estimated to be 395 hours varying characteristics (e.g., size, the perspectives of their staff. The annually. geographic location, and type of survey can be used by ASCs to identify Exhibit 2 shows the estimated ownership). areas for patient safety culture annualized cost burden associated with (2) Pretest for the Ambulatory Surgery improvement. Researchers are also the respondents’ time to participate in SOPS. The draft questionnaire will be likely to use the survey to assess the this research. The total cost burden is pretested with physicians and staff from impact of ASC’s patient safety culture estimated to be $16,173 annually.

EXHIBIT 1—ESTIMATED ANNUALIZED BURDEN HOURS

Number of Form name Number of responses per Hours per Total burden respondents respondent response hours

Cognitive interviews ...... 15 1 1.5 23 Pretest for the Ambulatory Surgery SOPS ...... 529 1 15/60 132 POC Administration of the survey ...... 40 1 6 240

Total ...... 584 na na 395

EXHIBIT 2—ESTIMATED ANNUALIZED COST BURDEN

Average Form name Number of Total burden hourly wage Total cost respondents hours rate* burden

Cognitive interviews ...... 15 23 a $46.52 $1,070 Pretest for the Ambulatory Surgery SOPS ...... 529 132 b 46.04 6,077 POC Administration of the survey ...... 40 240 c 37.61 9,026

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EXHIBIT 2—ESTIMATED ANNUALIZED COST BURDEN—Continued orm name

Average Form name Number of Total burden hourly wage Total cost respondents hours rate* burden

Total ...... 584 395 na 16,173 a Based on the weighted average wages for 1 Anesthesiologist (29–1061, $108.35), 2 Surgeons (29–1067, $106.48), 2 Administrative Services Managers (11–3011, $37.61), 6 Registered Nurses (29–1141, $34.23), 2 Medical and Clinical Laboratory Technicians (29–2030, $28.90), 1 Li- censed Practical or Licensed Vocational Nurse (29–2061, $21.17), and 1 Office and Administrative Support Workers, All Other (43–9199, $16.92). b Based on the weighted average wages for 150 Registered Nurses, 85 Office and Administrative Support Workers, 85 Medical and Clinical Laboratory Technicians, 70 Surgeons, 50 Licensed Practical/Vocational Nurses, 49 Anesthesiologists, and 40 Administrative Services Managers. c Based on the on the average wages for 1 Administrative Services Managers. * National Occupational Employment and Wage Estimates in the United States, May 2012, ‘‘U.S. Department of Labor, Bureau of Labor Statis- tics’’ (available at http://www.bls.gov/oes/current/naics4_621400.htm [for outpatient care setting]

Request for Comments Paperwork Reduction Act (44 U.S.C. and fund one to two well-organized, In accordance with the Paperwork Chapter 35). To request a copy of these broad-based, active local coalitions Reduction Act, comments on AHRQ’s requests, call the CDC Reports Clearance (referred to as coordinated community information collection are requested Officer at (404) 639–7570 or send an responses or CCRs) that are already with regard to any of the following: (a) email to [email protected]. Send written engaging in, or are at capacity to engage Whether the proposed collection of comments to CDC Desk Officer, Office of in, IPV primary prevention strategies information is necessary for the proper Management and Budget, Washington, affecting the structural determinants of performance of AHRQ health care DC 20503 or by fax to (202) 395–5806. health at the societal and/or community research and health care information Written comments should be received levels of the social ecological model. dissemination functions, including within 30 days of this notice. State Domestic Violence Coalitions whether the information will have Proposed Project (SDVCs) must facilitate and support practical utility; (b) the accuracy of local-level implementation and hire DELTA FOCUS Program Evaluation— empowerment evaluators to support the AHRQ’s estimate of burden (including New—National Center for Injury hours and costs) of the proposed evaluation of IPV prevention strategies Prevention and Control (NCIPC), by the CCRs. SDVCs must also collection(s) of information; (c) ways to Centers for Disease Control and implement and with their enhance the quality, utility, and clarity Prevention (CDC). of the information to be collected; and empowerment evaluators, evaluate (d) ways to minimize the burden of the Background and Brief Description state-level IPV prevention strategies. collection of information upon the Intimate Partner Violence (IPV) is a CDC seeks OMB approval for one year respondents, including the use of serious, preventable public health to collect information electronically automated collection techniques or problem that affects millions of from awardees, their CCRs and their other forms of information technology. Americans and results in serious empowerment evaluators. Data will be Comments submitted in response to consequences for victims, families, and collected in year one and analyzed and this notice will be summarized and communities. IPV occurs between two disseminated in years two and three. A included in the Agency’s subsequent people in a close relationship. The term reinstatement request will be made to request for OMB approval of the ‘‘intimate partner’’ describes physical, collect data in the fourth year of the proposed information collection. All sexual, or psychological harm by a program. Information will be collected comments will become a matter of current or former partner or spouse. IPV using the DELTA FOCUS Program public record. can impact health in many ways, Evaluation Survey (referred to as DF Dated: June 25, 2013. including long-term health problems, Survey). The DF survey will collect Carolyn M. Clancy, emotional impacts, and links to negative information about SDVCs satisfaction Director. health behaviors. IPV exists along a with CDC efforts to support them; continuum from a single episode of [FR Doc. 2013–16076 Filed 7–5–13; 8:45 am] process, program and strategy violence to ongoing battering; many BILLING CODE 4160–90–M implementation factors that affect their victims do not report IPV to police, ability to meet the requirements of the friends, or family. funding opportunity announcement; DEPARTMENT OF HEALTH AND The purpose of the DELTA FOCUS prevention knowledge and use of the HUMAN SERVICES (Domestic Violence Prevention public health approach; and Enhancement and Leadership Through sustainability of prevention activities Centers for Disease Control and Alliances, Focusing on Outcomes for and successes. Prevention Communities United with States) program is to promote the prevention of The DF Survey will be completed by [30Day–13–13PQ] IPV through the implementation and 10 SDVC executive directors, 10 SDVC evaluation of strategies that create a project coordinators, 19 CCR project Agency Forms Undergoing Paperwork coordinators, and 10 SDVC Reduction Act Review foundation for the development of practice-based evidence. By empowerment evaluators and take a The Centers for Disease Control and emphasizing primary prevention, this maximum of 1 hour to complete. The Prevention (CDC) publishes a list of program will support comprehensive total estimated annualized burden is 49 information collection requests under and coordinated approaches to IPV hours. review by the Office of Management and prevention. Each state domestic There are no costs to respondents Budget (OMB) in compliance with the violence coalition is required to identify other than their time.

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ESTIMATED ANNUALIZED BURDEN TO RESPONDENTS

Average Number of Number of burden per Type of respondents Form name respondents responses per response respondent (in hours)

State Domestic Violence Coalition Executive Director ...... DELTA FOCUS Survey ...... 10 1 1 State Domestic Violence Coalition Project Coordinator ...... DELTA FOCUS Survey ...... 10 1 1 Coordinated Community Response Project Coordinator ...... DELTA FOCUS Survey ...... 19 1 1 State Domestic Violence Coalition Empowerment Evaluator DELTA FOCUS Survey ...... 10 1 1

Leroy A. Richardson, update on improved oxygen supplies for self- childhood lead poisoning prevention Chief, Information Collection Review Office, escape; an update from the National Personal practices and recommends improvements in Office of Scientific Integrity, Office of the Protective Technology Laboratory; a national childhood lead poisoning Associate Director for Science, Office of the presentation on emerging lithium batteries; prevention efforts. Director, Centers for Disease Control and and findings for improving rock dusting in Matters To Be Discussed: Agenda items Prevention. underground coal mines. Agenda items are will include the following: Program Update; subject to change as priorities dictate. Presentation of ACCLPP Laboratory Report [FR Doc. 2013–16254 Filed 7–5–13; 8:45 am] Contact Person for More Information: on ‘‘Guidelines for Measuring Lead in Blood BILLING CODE 4163–18–P Jeffery L. Kohler, Ph.D., Designated Federal Using Point of Care Instruments’’ and Officer, MSHRAC, NIOSH, CDC, 626 Discussion, ACCLPP Comments, Discussion Cochrans Mill Road, Mailstop P05, and Vote on Laboratory Workgroup Report. DEPARTMENT OF HEALTH AND Pittsburgh, Pennsylvania 15236, telephone (In 2009 the Laboratory Workgroup was HUMAN SERVICES (412) 386–5301, fax (412) 386–5300. established and charged by ACCLPP with The Director, Management Analysis and conducting a review of five laboratory issues. Centers for Disease Control and Services Office, has been delegated the The second of these five issues was to Prevention authority to sign Federal Register Notices address the need for recommended standards pertaining to announcements of meetings and of practice for those using point of care blood Mine Safety and Health Research other committee management activities, for lead testing. The report to be presented to the Advisory Committee, National Institute both the Centers for Disease Control and ACCLPP at this meeting is the result of that for Occupational Safety and Health Prevention and the Agency for Toxic review.) Substances and Disease Registry. Agenda items are subject to change as (MSHRAC, NIOSH) priorities dictate. In accordance with section 10(a)(2) of Elaine L. Baker, SUPPLEMENTARY INFORMATION: The the Federal Advisory Committee Act Director, Management Analysis and Services public comment period is scheduled on July Office, Centers for Disease Control and 25, 2013 from 4:15 p.m. until 4:30 p.m. (Pub. L. 92–463), the Centers for Disease Prevention. Contact Person for More Information: Control and Prevention (CDC) [FR Doc. 2013–16184 Filed 7–5–13; 8:45 am] Sandra Malcom, Committee Management announces the following meeting for the Specialist, NCEH/ATSDR, 4770 Buford aforementioned committee: BILLING CODE 4163–18–P Highway, Mail Stop F–61, Chamblee, Georgia Time and Date: 30345; telephone 770/488–0577, Fax: 770/ 9:00 a.m.–5:45 p.m., July 24, 2013; 488–3377; Email: [email protected]. DEPARTMENT OF HEALTH AND The Director, Management Analysis and 9:00 a.m.–12:30 p.m., July 25, 2013. HUMAN SERVICES Place: NIOSH Pittsburgh Office, 626 Services Office, has been delegated the authority to sign Federal Register notices Cochrans Mill Road, Bldg. 140, Room 101, Centers for Disease Control and Pittsburgh, Pennsylvania, 15236 Telephone: pertaining to announcements of meetings and (412) 386–5302, Fax: (412) 386–5300. Prevention (CDC) other committee management activities, for Status: Open to public, limited only by the both the Centers for Disease Control and space available. The meeting room Advisory Committee on Childhood Prevention and the Agency for Toxic accommodates approximately 25 people. Lead Poisoning Prevention (ACCLPP) Substances and Disease Registry. Purpose: This committee is charged with Elaine L. Baker, providing advice to the Secretary, In accordance with section 10(a)(2) of Department of Health and Human Services; the Federal Advisory Committee Act Director, Management Analysis and Services the Director, CDC; and the Director, NIOSH, (Pub. L. 92–463), the CDC, National Office, Centers for Disease Control and on priorities in mine safety and health Center for Environmental Health Prevention. research, including grants and contracts for (NCEH) announces the following [FR Doc. 2013–16181 Filed 7–5–13; 8:45 am] such research, 30 U.S.C. 812(b)(2), Section meeting of the aforementioned BILLING CODE 4163–18–P 102(b)(2). committee: Matters To Be Discussed: The meeting will focus on safety and health research projects Times and Dates: 2:00 p.m.–4:30 p.m., July DEPARTMENT OF HEALTH AND 25, 2013 and outcomes in the following areas: HUMAN SERVICES improved dissemination of research results Place: Teleconference. Status: The meeting is open to the public, through the use of trade literature; a plan for Centers for Disease Control and periodically updating the demographic limited only by the conference lines survey of the mining industry; an analysis of available; the toll free dial-in number is 1– Prevention the research needs of the stone, sand and 888–554–6025 with a passcode of 2785801. gravel sector; reinventing deep vein mining Purpose: The Committee provides advice Board of Scientific Counselors, Office to improve health and safety; the National and guidance to the Secretary; the Assistant of Public Health Preparedness and Academies of Science self-escape study; the Secretary for Health; and the Director, CDC, Response, Board of Scientific total worker health program; an update on regarding new scientific knowledge and Counselors (BSC OPHPR) Division of Respiratory Disease Studies technological developments and their research; an update on the 1 mg initiative for practical implications for childhood lead In accordance with section 10(a)(2) of reducing coal dust exposures; the use of a poisoning prevention efforts. The committee the Federal Advisory Committee Act helmet cam for reducing dust exposures; an also reviews and reports regularly on (Pub. L. 92–463), the Centers for Disease

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Control and Prevention (CDC), DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND announces the following meeting of the HUMAN SERVICES HUMAN SERVICES aforementioned committee: Centers for Disease Control and Time and Date: 1:00 p.m.–3:00 p.m., Centers for Disease Control and August 5, 2013. Prevention Prevention Place: Web Conference, Audio Bridge Request for Nominations of Number (USA Toll Free): 866–660–7262, Disease, Disability, and Injury Passcode: 7173682, Web Link: https:// Prevention and Control Special Candidates To Serve on the Board of www.livemeeting.com/cc/cdc/join, Meeting Emphasis Panel (SEP): Initial Review Scientific Counselors (BSC), Office of ID: S2M23S. Infectious Diseases (OID) Status: Open to the public limited only by The meeting announced below The Centers for Disease Control and the conference lines available. Public concerns Centers for Disease Control participants should pre-register for the Prevention (CDC) is soliciting and Prevention Public Health nominations for possible membership meeting as described below in ‘‘Additional Preparedness and Response Research to Information for Public Participants’’. on the BSC, OID. This board consists of Purpose: This Board is charged with Aid Recovery from Hurricane Sandy, 17 experts in fields related to infectious providing advice and guidance to the Request for Applications (RFA) TP13– diseases who are selected by the Secretary, Department of Health and Human 001 (republished on www.Grants.gov on Secretary of the U.S. Department of Services (HHS), the Assistant Secretary for June 28, 2013), initial review. Health and Human Services (HHS). The Health (ASH), the Director, Centers for In accordance with Section 10(a)(2) of board advises the HHS Secretary; the Disease Control and Prevention (CDC), and the Federal Advisory Committee Act CDC Director; the OID Director; and the the Director, Office of Public Health (Pub. L. 92–463), the Centers for Disease Directors of the National Center for Preparedness and Response (OPHPR), Immunization and Respiratory Diseases concerning strategies and goals for the Control and Prevention (CDC) announces the aforementioned meeting: (NCIRD), the National Center for programs and research within OPHPR, Emerging and Zoonotic Infectious monitoring the overall strategic direction and Times and Dates: 12:00 p.m.–5:00 p.m., Diseases (NCEZID), and the National focus of the OPHPR Divisions and Offices, July 25, 2013 (Closed). Center for HIV/AIDS, Viral Hepatitis, and administration and oversight of peer Place: Teleconference. review of OPHPR scientific programs. For STD, and TB Prevention (NCHHSTP) Status: The meeting will be closed to the additional information about the Board, concerning strategies, goals, and public in accordance with provisions set please visit: http://www.cdc.gov/phpr/ priorities for the programs and research forth in Section 552b(c) (4) and (6), Title 5 science/counselors.htm. within the national centers, and Matters To Be Discussed: Agenda items for U.S.C., and the Determination of the Director, monitors the overall strategic direction this meeting include: (1) A presentation on Management Analysis and Services Office, and focus of OID and the national assessing the cost of preparedness; (2) an CDC, pursuant to Public Law 92–463. centers. update on measuring operational readiness. Matters To Be Discussed: The meeting will Nominations are being sought for Agenda items are subject to change as include the initial review, discussion, and individuals who have expertise and priorities dictate. evaluation of applications received in qualifications necessary to contribute to Additional Information For Public response to ‘‘Centers for Disease Control and the accomplishment of the board’s Participants: Members of the public that wish Prevention Public Health Preparedness and to participate in this meeting should pre- mission. Nominees will be selected by Response Research to Aid Recovery from the HHS Secretary or designee from register by submitting the following Hurricane Sandy, RFA TP13–001’’, authorities knowledgeable in the fields information by email, facsimile, or phone republished on Grants.gov on June 28, 2013. of infectious diseases and related (see Contact Person For More Information) no Contact Person for More Information: disciplines, including epidemiology, later than 12:00 noon (EDT) on Friday, July Shoukat Qari, D.V.M, Ph.D., Scientific 26, 2013: microbiology, bacteriology, virology, Review Officer, CDC, 1600 Clifton Road, NE., • Full Name Mailstop K72, Atlanta, Georgia 30333, parasitology, mycology, immunology, • Organizational Affiliation Telephone: (770) 488–8808. public health, entomology, clinical • Phone Number or Email Address The Director, Management Analysis and medicine, and veterinary medicine, as Contact Person for More Information: Services Office, has been delegated the well as from the general public. Marquita Black, Office of Science and Public authority to sign Federal Register notices Members may be invited to serve for Health Practice Executive Assistant, Centers pertaining to announcements of meetings and terms of up to four years. for Disease Control and Prevention, 1600 other committee management activities, for The U.S. Department of Health and Clifton Road NE., Mailstop D–44, Atlanta, both the Centers for Disease Control and Human Services policy stipulates that Georgia 30333, Telephone: (404) 639–7325; committee membership shall be Facsimile: (404) 639–7977; Email: Prevention and the Agency for Toxic Substances and Disease Registry. balanced in terms of professional [email protected]. training and background, points of view The Director, Management Analysis and Elaine L. Baker, Services Office, has been delegated the represented, and the committee’s Director, Management Analysis and Services authority to sign Federal Register notices function. In addition to a broad range of Office, Centers for Disease Control and pertaining to announcements of meetings and expertise, consideration is given to a Prevention. other committee management activities for broad representation of geographic areas both the Centers for Disease Control and [FR Doc. 2013–16185 Filed 7–5–13; 8:45 am] within the U.S., with diverse Prevention, and Agency for Toxic Substances BILLING CODE 4163–18–P representation of both genders, ethnic and Disease Registry. and racial minorities, and persons with disabilities. Nominees must be U.S. Elaine L. Baker, citizens, and cannot be full-time Director, Management Analysis and Services employees of the U.S. Government. Office, Centers for Disease Control and Candidates should submit the Prevention. following items: [FR Doc. 2013–16183 Filed 7–5–13; 8:45 am] • Current curriculum vitae, including BILLING CODE 4163–18–P complete contact information (name,

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affiliation, mailing address, telephone Prevention, and the Agency for Toxic is the procedure by which States request number, email address) Substances and Disease Registry. and obtain approval for Federal financial participation in their cost of • A letter of recommendation stating Elaine L. Baker, the qualifications of the candidate. acquiring Automatic Data Processing Director, Management Analysis and Services (ADP) equipment and services. State Nomination materials must be Office, Centers for Disease Control and Prevention. agencies that submit APD requests postmarked by July 31, 2013, and sent provide the Department of Health and [FR Doc. 2013–16182 Filed 7–5–13; 8:45 am] to: Kim Distel, Office of Infectious Human Services (HHS) with the Diseases, Centers for Disease Control BILLING CODE 4163–18–P following information necessary to and Prevention, 1600 Clifton Road, NE., determine the States’ needs to acquire Mailstop D10, Atlanta, Georgia 30333, DEPARTMENT OF HEALTH AND the requested ADP equipment and/or telephone (404) 639–2100. HUMAN SERVICES services: The Director, Management Analysis (1) A statement of need; and Services Office, has been delegated Administration for Children and (2) A requirements analysis and the authority to sign Federal Register Families feasibility study; notices pertaining to announcements of (3) A procurement plan Submission for OMB Review; (4) A proposed activity schedule; and, meetings and other committee Comment Request management activities for both the (5) A proposed budget. Centers for Disease Control and Title: ADP & Services Conditions for HHS’ determination of a State FFP for ACF. Agency’s need to acquire requested ADP OMB No.: 0970–0417. equipment or services is authorized at Description: The Advance Planning sections 402(a)(5), 452(a)(1), 1902(a)(4) Document (APD) process, established in and 1102 of the Social Security Act. the rules at 45 CFR part 95, subpart F, Respondents: States.

ANNUAL BURDEN ESTIMATES

Number of Average burden Instrument Number of responses per hours per Total burden respondents respondent response hours

RFP and Contract ...... 54 1.5 4 324 Emergency Funding Request ...... 5 .1 2 1 Biennial Reports ...... 26 1 1 .50 39 Advance Planning Document ...... 34 1 .2 120 4,896 Operational Advance Planning Document ...... 20 1 30 600

Estimated Total Annual Burden Management and Budget, Paperwork Description: This information Hours: 5,862. Reduction Project, Fax: 202–395–7285, collection is authorized under Section Additional Information: Email: 411(a)(3) of the Social Security Act. This Copies of the proposed collection may [email protected], request is for renewal of approval to use be obtained by writing to the Attn: Desk Officer for the the Administration for Children and Administration for Children and Administration for Children and Families’ (ACF) 196 form for periodic Families, Office of Planning, Research Families. financial reporting under the Temporary and Evaluation, 370 L’Enfant Assistance for Needy Families (TANF) Robert Sargis, Promenade SW., Washington, DC 20447, program. States participating in the Attn: ACF Reports Clearance Officer. All Reports Clearance Officer. TANF program are required by statute to requests should be identified by the title [FR Doc. 2013–16192 Filed 7–5–13; 8:45 am] report financial data on a quarterly of the information collection. Email BILLING CODE 4184–01–P basis. This form meets the legal address: [email protected]. standard and provides essential data on OMB Comment: the use of Federal funds. Failure to OMB is required to make a decision DEPARTMENT OF HEALTH AND collect the data would seriously concerning the collection of information HUMAN SERVICES compromise ACF’s ability to monitor between 30 and 60 days after Administration for Children and program expenditures, estimate funding publication of this document in the Families needs, and to prepare budget Federal Register. Therefore, a comment submissions required by Congress. is best assured of having its full effect Submission for OMB Review; Financial reporting under the TANF if OMB receives it within 30 days of Comment Request program is governed by 45 CFR Part publication. Written comments and 265. This renewal restores columns for recommendations for the proposed Title: TANF Quarterly Financial reporting Emergency Contingency Fund information collection should be sent Report, ACF–196. Grant expenditures. directly to the following: Office of OMB No.: 0970–0247. Respondents: TANF Agencies.

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ANNUAL BURDEN ESTIMATES

Number of Average Instrument Number of responses per burden hours Total burden respondents respondent per response hours

ACF–196 ...... 51 4 10 2,040 Estimated Total Annual Burden Hours: 2,040.

Additional Information: Copies of the I. Funding Opportunity Description 2013, is approximately $800,000. proposed collection may be obtained by Individual award amounts are Statutory Authority writing to the Administration for anticipated to be between $500,000 and Children and Families, Office of The Indian Health Service (IHS) is $800,000. Competing and continuation Planning, Research and Evaluation, 370 accepting competitive cooperative awards issued under this announcement L’Enfant Promenade SW., Washington, agreement applications for the Urban are subject to the availability of funds. DC 20447, Attn: ACF Reports Clearance Indian Education and Research In the absence of funding, the IHS is Officer. All requests should be Organization Cooperative Agreement under no obligation to make awards that identified by the title of the information Program project period September 1, are selected for funding under this collection. Email address: 2013—August 31, 2016. This program is announcement. authorized under: the Indian Health [email protected]. Care Improvement Act (IHCIA), as Anticipated Number of Awards OMB Comment: OMB is required to amended, (25 U.S.C. 1652, 1654, and One award will be issued under this make a decision concerning the 1655), and Section 301(a) of the Public program announcement. collection of information between 30 Health Service Act. This program is Project Period and 60 days after publication of this described in the Catalog of Federal document in the Federal Register. Domestic Assistance under 93.193. The cooperative agreement project Therefore, a comment is best assured of period is September 1, 2013 to August Background having its full effect if OMB receives it 31, 2016. The Office of Urban Indian Health within 30 days of publication. Written Cooperative Agreement comments and recommendations for the Programs (OUIHP) oversees the proposed information collection should implementation of the IHCIA provisions In the Department of Health and be sent directly to the following: Office for making health services more Human Services (HHS), a cooperative of Management and Budget, Paperwork accessible to urban Indians. Pursuant to agreement is administered under the Reduction Project, Email: those authorities, the IHS enters into same policies as a grant. The funding [email protected], contracts and grants with urban Indian agency (IHS) is required to have substantial programmatic involvement Attn: Desk Officer for the organizations for the provision of health in the project during the entire award Administration for Children and care and referral services for urban segment. Below is a detailed description Families. Indians residing in the urban centers. Those services may include (1) alcohol of the level of involvement required for Robert Sargis, and substance abuse prevention, both IHS and the grantee. IHS will be Reports Clearance Officer. treatment, rehabilitation and education; responsible for activities listed under [FR Doc. 2013–16220 Filed 7–5–13; 8:45 am] (2) mental health needs and section A and the grantee will be responsible for activities listed under BILLING CODE 4184–01–P assessments; (3) health promotion and disease prevention services; and (4) section B as stated: immunization services. In addition, IHS Substantial Involvement Description for DEPARTMENT OF HEALTH AND may enter into contracts with and make Cooperative Agreement HUMAN SERVICES grants to urban Indian organizations to employ American Indian and Alaska A. IHS Programmatic Involvement Indian Health Service Natives (AI/AN) trained as Community In addition to the usual monitoring Health Representatives to provide and technical assistance provided under [Funding Announcement Number: HHS– health care services. the cooperative agreement, the IHS/ 2013–IHS–OUIHP–0001] Purpose OUIHP responsibilities shall include: (1) Assurance of the availability of the Urban Indian Education and Research The purpose of this IHS cooperative services of experienced staff to agreement is to fund a national urban Organization Cooperative Agreement participate in the planning and Indian organization to act as an Program; Office of Urban Indian Health development of all phases of this education and research partner for Programs; Announcement Type: New cooperative agreement; OUIHP and urban Indian organizations (2) Working closely with the IHS Catalog of Federal Domestic Assistance funded under the Indian Health Care Public Affairs Office regarding Number: 93.193 Improvement Act. dissemination of publications completed under the cooperative Key Dates II. Award Information agreement, and cooperating on the Type of Award Application Deadline Date: August referral of inquiries and request for 13, 2013. Cooperative Agreement. technical assistance, publications and other information; Review Date: August 19, 2013. Estimated Funds Available (3) Participation in, including the Earliest Anticipated Start Date: The total amount of funding planning of, any meetings conducted as September 1, 2013. identified for the current fiscal year, FY part of project activities;

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(4) Assistance in establishing federal (10) Acknowledge IHS/OUIHP has deemed ineligible, IHS will not return interagency and state contacts necessary uncontested access to any and all data the application. The applicant will be for the successful completion of tasks generated under this cooperative notified by email by the Division of and activities identified in the approved agreement, and agree to provide royalty- Grants Management (DGM) of this scope of work; free, nonexclusive, and irrevocable decision. (5) Identification of other awardees license for the government to reproduce, Proof of Non-Profit Status and organizations with whom the publish, or otherwise use any products awardee will be asked to develop derived from activities conducted under Organizations claiming non-profit cooperative and collaborative this cooperative agreement. status must submit proof. A copy of the relationships; and (11) Comply with relevant Office of 501(c)(3) Certificate must be received (6) Assisting the awardee to establish, Management and Budget (OMB) with the application submission by the review and update priorities for Circular provisions regarding lobbying, Application Deadline Date listed under activities conducted under the auspices any applicable lobbying restrictions the Key Dates section on page one of of the cooperative agreement. provided under other law and any this announcement. applicable restriction on the use of An applicant submitting any of the B. Grantee Cooperative Agreement appropriated funds for lobbying above additional documentation after Award Activities activities. the initial application submission due Requirements and obligations of the date is required to ensure the C. Joint Responsibilities of Awardee and cooperative agreement recipient shall information was received by the IHS by IHS/OUIHP include: obtaining documentation confirming (1) Work collaboratively with the The IHS/OUIHP and the awardee delivery (i.e. FedEx tracking, postal urban Indian organizations funded have a joint responsibility to determine return receipt, etc.). which issues will be addressed during under the IHCIA; IV. Application and Submission the project period, the sequence in (2) Respond in a flexible manner to Information collaborating on occasional short-term which they will be addressed, what projects, in addition to long-term and approaches and strategies will be used 1. Obtaining Application Materials on-going efforts; to address them, and how relevant The application package and detailed (3) Work closely with the Federal information will be transmitted to instructions for this announcement can Project Officer when hiring new key specified target audiences and used to be found at http://www.Grants.gov or project staff and planning/implementing enhance project activities and advance https://www.ihs.gov/dgm/ new activities; the program. index.cfm?module=dsp_dgm_funding. (4) Consult with the Federal Project III. Eligibility Information Questions regarding the electronic Officer before scheduling any meetings, application process may be directed to including project advisory/steering 1. Eligibility Paul Gettys at (301) 443–5204. committee meetings, that pertain to the This is a competitive application for scope of work and at which the Project an urban Indian organization as defined 2. Content and Form Application Officer’s attendance would be by 25 U.S.C. 1603(29), which has a Submission appropriate; Board of Directors that is at least 51 The applicant must include the (5) Provide the Federal Project Officer percent urban Indian and can project narrative in the appendix to the with the opportunity to review, provide demonstrate the Board of Directors is application package. Mandatory advisory input, and approve at the governed primarily by the urban Indian documents for all applicants include: program level, any publications, organizations from diverse locations. • Table of contents. audiovisuals and other materials The applicant must provide proof of • Abstract (one page) summarizing produced, as well as meetings/ non-profit status, e.g. 501(c)(3), and a the project. conferences planned, under the listing of Board members including their • Application forms: auspices of this cooperative agreement status as an urban Indian, professions, Æ SF–424, Application for Federal (such review should start as part of education degrees, and board Assistance. concept development and include appointment terms. Æ SF–424A, Budget Information— review of drafts and final products); Non-Construction Programs. Note: Please refer to Section IV.2 Æ (6) Provide the Federal Project Officer (Application and Submission Information/ SF–424B, Assurances—Non- with an electronic copy of, or electronic Subsection 2, Content and Form of Construction Programs. access to, each product developed under Application Submission) for additional proof • Budget Justification and Narrative the auspices of this project; of applicant status documents required such (must be single spaced and not exceed (7) Participate in the implementation as proof of non-profit status, etc. five pages). of awardee performance measures, • Project Narrative (must be single including the collection of information 2. Cost Sharing or Matching spaced and not exceed 70 pages). and administrative data, as designated The IHS does not require matching Æ Background information on the by the OUIHP; funds or cost sharing for grants or organization. (8) Ensure that all products developed cooperative agreements. Æ Proposed scope of work, or produced, either partially or in full, objectives, and activities that provide a under the auspices of this cooperative 3. Other Requirements description of what will be agreement are fully accessible and If application budgets exceed the accomplished, including a Time Frame available for free to members of the highest dollar amount outlined under Chart. public; the ‘‘Estimated Funds Available’’ • Letter of Support from (9) Identify IHS/OUIHP as a funding section within this funding Organization’s Board of Directors. sponsor on written products and during announcement, the application will be • 501(c)(3) Certificate meetings and conferences relevant to considered ineligible and will not be • Biographical sketches for all Key cooperative agreement activities; and reviewed for further consideration. If Personnel.

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• Contractor/Consultant resumes or and Technical Assistance for UIOs, Medicare Services (CMS), Health qualifications and scope of work. Education, Public Relations, and Resources and Services Administration • Disclosure of Lobbying Activities Marketing of UIOs (HRSA), Substance Abuse and Mental (SF–LLL). This section outlines the needs of Health Services Administration • Certification Regarding Lobbying urban Indian organizations. The target (SAMHSA), Centers for Disease Control (GG-Lobbying Form). population and its unmet health needs and Prevention (CDC), and Agency for • Copy of current Negotiated Indirect must be described and documented in Healthcare Research and Quality Cost (IDC) rate agreement (required) in this section. Include socio-cultural (AHRQ), and states to be able to order to receive IDC. determinants of health and health proactively plan, implement, and • Copy of Current Approved disparities impacting the urban Indian evaluate the impact of their activities on Organizational Chart. population or communities served and • urban Indian organizations’ priorities Documentation of current Office of unmet. Demographic data should be for health care reform. The work with Management and Budget (OMB) A–133 used and cited whenever possible to AHRQ needs to include specialized required Financial Audit. support the information provided. focus on the Patient Centered Medical Acceptable forms of documentation Please discuss any relevant barriers that Home (PCMH), which is a model for include: Æ the project hopes to overcome. This transforming the organization and Email confirmation from Federal section should help reviewers Audit Clearinghouse (FAC) that audits delivery of primary care, and its understand the urban Indian potential to improve the quality, safety, were submitted; or organizations that will be served by the Æ Face sheets from audit reports. efficiency, and effectiveness of urban proposed project. These can be found on the FAC Web Indian health care. The AHRQ PCMH site: http://harvester.census.gov/sac/ Instructions Resource Center is a valuable tool to achieve intended outcomes. dissem/accessoptions.html?submit= Applicants should summarize the Go+To+Database. D. Applicants should summarize the need for services including: (1) Public need to make certain that public policy Public Policy Requirements policy, (2) research and data, (3) program activities are complementary, structured training and technical All Federal-wide public policies coordinated and non-duplicative. apply to IHS grants with exception of assistance for urban Indian E. Applicants should summarize the the Discrimination policy. organizations, and (4) education, public need to enhance communication, relations and marketing of urban Indian interaction and coordination on health Requirements for Project and Budget organizations. Describe how the care reform activities by initiating and Narratives applicant determined it has the maintaining partnerships and A. Project Narrative: This narrative administrative infrastructure to provide collaborative relationships with other should be a separate Word document these services. Explain the previous urban Indian organizations, national that is no longer than 70 pages and planning activities the applicant has Indian Tribal organizations, key state must: be single-spaced, be type written, completed and if the applicant has and local health entities, and education have consecutively numbered pages, use identified or will establish best- and safety networks. black type not smaller than 12 practices or evidence-based practices (2) Research and Data characters per one inch, and be printed relative to these services. 1 ″ A. Applicants should describe the on one side only of standard size 8 ⁄2 (1) Public Policy x 11″ paper. need to collect and analyze health Be sure to succinctly answer all A. Applicants should summarize the disparities data, morbidity and mortality questions listed under the evaluation public policy opportunities and data, urban Indian health services costs criteria (refer to Section V.1, Evaluation challenges of health care reform on data and conduct data analyses in order criteria in this announcement) and place urban Indian organizations: Public Law to reduce urban Indian health all responses and required information 111–148, The Patient Protection and disparities and identify, improve, in the correct section (noted below), or Affordable Care Act (ACA) of March 21, evaluate, and document urban Indian they will not be considered or scored. 2010; House of Representatives 4872, organization practice-based and These narratives will assist the the Health Care and Education evidence-based best practices. Objective Review Committee (ORC) in Reconciliation Act of March 23, 2010; B. Applicants should summarize the becoming more familiar with the and the Indian Health Care need to have access to cost and cost- grantee’s activities and Improvement Reauthorization and benefit information to create accurate accomplishments prior to this grant Extension Act of 2009 (IHCIA). reasonable annual urban Indian health award. If the narrative exceeds the page B. Applicants should identify and budgets. limit, only the first 70 pages will be align the urban Indian organizations’ C. Applicants should describe reviewed. The 70-page limit for the priorities with the Agency priorities in coordination with IHS funded Tribal narrative does not include the work the context of health care reform. and Urban Epidemiological Centers, the plan, standard forms, table of contents, Applicants should describe how the CDC, and the IHS to reduce and/or budget, budget justifications, narratives, Healthy People 2020 goals and eliminate barriers that prevent access to and/or other appendix items. objectives will be incorporated to guide data. There are three parts to the narrative: their national health promotion and (3) Structured Training and Technical Part A—Program Information; Part B— disease prevention efforts to improve Assistance for Urban Indian Program Planning and Evaluation; and the health of urban Indians. These Organizations Part C—Program Report. See below for priorities should align with the urban additional details about what must be Indian organizations’ budget A. Applicants should describe the included in the narrative. formulation process that establishes need for education, technical support their specific health priorities. and training to urban Indian Part A: Program Information C. Applicants should summarize the organizations as they implement health Section 1: Needs—Public Policy, need to work with, but not be limited care reform and work with the Health Research and Data, Structured Training to, the Centers for Medicaid and Insurance Marketplace to implement,

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sustain and improve access to quality with and incorporate the Healthy People components: Resources/inputs, health care services for urban Indians. 2020 benchmarks and be monitored to activities, outputs, outcomes, and B. Applicants should describe the encourage collaborations, empower impacts. (A useful resource is the logic need for training and technical individuals toward making informed model Development Guide, W.K. assistance to support urban Indian health decisions, and measure the Kellogg Foundation, 2004, available at organization administration: (1) Board impact of prevention activities to http://www.wkkf.org). The project logic of directors: roles and responsibilities, improve the health of urban Indians. model should be included as part of the criteria to guide medical staff These goals are broad statements that application appendix. credentialing and privileging, and establish the overall direction for, and 5. Evidence should be provided that ensure quality and patient safety; (2) focus of, a project. They serve as the the approaches and activities can develop business plans; (3) enhance foundation for developing project reasonably be expected to be effective. revenue and third-party billing; (4) objectives. Literature relevant to the methodology achieve and maintain program Applicants should provide at least may be cited as appropriate. accreditation; (5) acquire state licensure, one specific, achievable, measurable, Work Plan PCMH certification or other state time-framed outcome objective for each credentialing; and (6) enrollment in proposed project goal. Outcome Describe the activities or steps that Medicaid, Medicare, State Children’s objectives are specific statements of will be used to achieve each of the Health Insurance Programs, and positive change to be effected in order activities proposed during the entire qualified health plans through an to achieve the goals of the project. That project period in the Methodology Exchange, whether State-based, is, outcome objectives are measurable section. Use a time line that includes Federally-facilitated, or a Partnership steps, or stepping stones, for reaching each activity and identifies responsible arrangement. goals. They form the basis for staff. As appropriate, identify monitoring progress toward achieving meaningful support and collaboration (4) Education, Public Relations and project goals and setting targets for with key stakeholders in planning, Marketing of Urban Indian accountability. Each objective should be designing and implementing all Organizations specific; stated in measurable terms; be activities, including development of the A. Applicants should summarize the achievable within a given time frame application and, further, the extent to need to market the urban Indian and available resources; be relevant to which these contributors reflect the organizations through development of and congruent within the larger project cultural and geographic diversity of the national, regional and local marketing goal; and include a specific time frame urban Indian and urban Indian strategies and campaigns. for achievement. Collectively, the organization locations. B. Applicants should describe the proposed outcome objectives should need for enhanced communication frame the set of national outcomes that Instructions among local private and non-profit the applicant wants to achieve in 1. Applicants should include a Work health care entities and county and state meeting project goals. Plan that describes the sequence of specific activities and steps that will be health departments. Instructions C. Applicants should describe their used to carry out each proposed communications strategy and 1. Applicants should describe methodological approach. Applicants collaborative activities. proposed approaches and activities for should explicitly describe who will achieving project goals and objectives. conduct each activity, as well as when, Part B: Program Planning and Methods or activities should be where, and how each activity will be Evaluation presented for addressing each focus of carried out. Section 1: Program Plans— intent for the four service areas for 2. A detailed time line of proposed Methodology, Project Goals and which application is made, as outlined project activities should be developed Objectives, Project Logic Model, Work in Part A. Program Information Needs. by the applicant, and attached as an Plan, Resolution of Challenges, and In particular, applicants should appendix. The time line should link Impact demonstrate that the proposed activities to project objectives and methodological approaches are national Methodology should cover the three years of the in scope and contribute to increased project period. Propose methods that will be used to capacity within the urban Indian health 3. Applicants should describe an meet each of the previously-described system. efficient and effective plan for managing program requirements and expectations 2. Applicants should describe the the project, including its personnel and in this funding opportunity specific activities necessary to carry out resources. announcement. As appropriate, include each methodological approach. 4. Applicants should describe an development of effective tools and Applicants should take into effective plan for monitoring and strategies for ongoing staff training, consideration the logic, technical tracking project activities. outreach, collaborations, clear soundness, feasibility, creativity and communication, and information innovativeness, potential utility, and Resolution of Challenges sharing/dissemination with efforts to national applicability of the activities it Discuss challenges that are likely to involve urban Indian organization staff proposes. be encountered in designing and and patients, Federal entities, and state 3. The description of the project implementing the activities described in health personnel. methodology should extend across the the work plan sections, as well as three years of the project effort. approaches that will be used to address Goals and Objectives 4. Applicants should develop a such challenges. Applicants should state the goals for project logic model, a systematic the proposed project. Project goals, diagram, that links anticipated Instructions which should be national in scope, outcomes with the project’s activities/ Applicants should discuss challenges, describe the desired long-term processes and theoretical assumptions. including both opportunities and outcomes. Project goals need to align It should include the following basic barriers, that are likely to be

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encountered in designing and measurable progress toward reaching B. Budget Narrative: This narrative implementing the activities described in the project’s stated goals through must describe the budget requested and the Description of Methodology and achievement of the project’s measurable match the scope of work described the Work Plan sections, as well as objectives. The evaluation protocol project narrative. The budget narrative approaches that will be used to address should be based on a clear rationale should not exceed five pages. such challenges. relating the identified needs of the target population with project goals, award 3. Submission Dates and Times Impact activities, and the evaluation measures. Applications must be submitted This section of the Project Narrative Whenever possible, the measurements electronically through Grants.gov by discusses the proposed project’s of progress toward goals should focus 12:00 a.m., midnight Eastern Daylight national audiences that the applicant on outcomes and results over which the Time (EDT) on the Application Deadline plans to engage, and how project project has some degree of influence, Date listed in the Key Dates section on activities will yield materials, resources rather than on intermediate measures page one of this announcement. Any and other benefits for them. such as process or outputs. However, it application received after the Instructions is understood that efforts similar to the categories of the Urban Indian application deadline will not be 1. Applicants should explain how the Education and Research Organization accepted for processing, nor will it be proposed project’s products and results Cooperative Agreement program given further consideration for funding. will have a national scope and frequently focus on intermediate The applicant will be notified by the applicability. measures as part of their evaluation. DGM via email of this decision. 2. Applicants should provide an Applicants are encouraged to If technical challenges arise and inclusive description of its national incorporate the expertise of a assistance is required with the target audiences as well as its proposed professional evaluation specialist (either electronic application process, contact strategies for reaching these audiences. on-staff or as a consultant) at the design Grants.gov Customer Support via email The plan should include, but not be stage of the project methodology. to [email protected] or at (800) 518– limited to, electronic and Internet Instructions 4726. Customer Support is available to capacity. address questions 24 hours a day, 7 days 3. Applicants should describe how 1. Applicants should provide a well- a week (except on Federal holidays). If and to what extent the proposed project conceived and logical plan for assessing problems persist, contact Paul Gettys, activities will directly improve the achievement of the project’s process DGM ([email protected]) at (301) leadership within the urban Indian and outcome objectives and for 443–5204. Please be sure to contact Mr. health services and systems being evaluating changes in the specific Gettys at least ten days prior to the targeted, and contribute to improve problems and contributing factors. The application deadline. Please do not health status among urban Indians. The evaluation plan should focus primarily contact the DGM until you have applicant should include a description on outcomes over which the project has received a Grants.gov tracking number. of how it intends to mobilize its influence and that have the capacity to In the event you are not able to obtain audiences to learn from and actually use produce meaningful data on an annual a tracking number, call the DGM as soon the materials, products and resources it basis. as possible. has developed to address the four 2. Applicants should develop at least If the applicant needs to submit a program requirements identified in Part two (2) performance measures by which paper application instead of submitting A. Program Information Needs. it will track its progress over time. A electronically via Grants.gov, prior Section 2: Program Evaluation performance measure is a quantifiable indicator of progress and achievement approval must be requested and Evaluation and Technical Support that includes outcome, output, input, obtained (see Section IV.6 below for Capacity efficiency, and explanatory indicators. It additional information). The waiver must be documented in writing (emails Describe current experience, skills, can measure such domains as and knowledge, including individuals productivity, effectiveness, quality and are acceptable), before submitting a on staff, materials published, and timeliness (Government Accounting paper application. A copy of the written previous work of a similar nature. As Standards Board, http:// approval must be submitted along with appropriate, describe the data collection www.seagov.org/aboutpmg/ the hardcopy that is mailed to the DGM. strategy to collect, analyze and track performance_measurement.shtml). Once a waiver request has been approved, the applicant will receive a data to measure process and impact/ Part C: Program Report outcomes, with urban Indian confirmation of approval and the organizations, Tribes, national Indian Section 1: Describe major mailing address to submit the organizations and states and explain accomplishments over the last 24 application. Paper applications that are how the data will be used to inform months. Please identify and describe submitted without a waiver from the program development and service significant program achievements Acting Director of DGM will not be delivery. associated with the delivery of quality reviewed or considered further for Evaluation and self-assessment have health services. Provide a comparison of funding. The applicant will be notified vital importance for quality the actual accomplishments to the goals via email of this decision by the Grants improvement and assessing the value- established for the project period, or if Management Officer of DGM. Paper added contribution of urban Indian applicable, provide justification for the applications must be received by the education and research investments. lack of progress. DGM no later than 5:00 p.m., EDT, on Consequently, cooperative agreement Section 2: Describe major activities the Application Deadline Date listed in projects are expected to incorporate a over the last 12 months. Please identify the Key Dates section on page one of carefully designed and well-planned and summarize recent major health this announcement. Late applications evaluation protocol capable of related project activities of the work will not be accepted for processing or demonstrating and documenting done during the project period. considered for funding.

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4. Intergovernmental Review request in writing (emails are available to the public pursuant to the Executive Order 12372 requiring acceptable) to [email protected] Transparency Act. with a copy to [email protected]. intergovernmental review is not System for Award Management (SAM) applicable to this program. Please include a clear justification for the need to deviate from the standard Organizations that were not registered 5. Funding Restrictions electronic submission process. with Central Contractor Registration • • Pre-award costs are not allowable. If the waiver is approved, the (CCR) and have not registered with SAM • The available funds are inclusive of application should be sent directly to will need to obtain a DUNS number first direct and appropriate indirect costs. the DGM by the Application Deadline and then access the SAM online • Only one grant/cooperative Date listed in the Key Dates section on registration through the SAM home page agreement will be awarded per page one of this announcement. at https://www.sam.gov (U.S. applicant. • Applicants are strongly encouraged organizations will also need to provide • IHS will not acknowledge receipt of not to wait until the deadline date to an Employer Identification Number applications. begin the application process through from the Internal Revenue Service that Grants.gov as the registration process for may take an additional 2–5 weeks to 6. Electronic Submission Requirements SAM and Grants.gov could take up to become active). Completing and All applications must be submitted fifteen working days. submitting the registration takes electronically. Please use the http:// • Please use the optional attachment approximately one hour to complete www.Grants.gov Web site to submit an feature in Grants.gov to attach and SAM registration will take 3–5 application electronically and select the additional documentation that may be business days to process. Registration ‘‘Find Grant Opportunities’’ link on the requested by the DGM. with the SAM is free of charge. homepage. Download a copy of the • All applicants must comply with Applicants may register online at application package, complete it offline, any page limitation requirements https://www.sam.gov. and then upload and submit the described in this Funding Additional information on completed application via the http:// Announcement. implementing the Transparency Act, www.Grants.gov Web site. Electronic • After electronically submitting the including the specific requirements for copies of the application may not be application, the applicant will receive DUNS and SAM, can be found on the submitted as attachments to email an automatic acknowledgment from IHS Grants Management, Grants Policy messages addressed to IHS employees or Grants.gov that contains a Grants.gov Web site: https://www.ihs.gov/dgm/ _ _ _ offices. tracking number. The DGM will index.cfm?module=dsp dgm policy If an applicant receives a waiver to download the application from topics. submit paper application documents, Grants.gov and provide necessary copies V. Application Review Information please follow the rules and time lines to the appropriate agency officials. that are noted below. The applicant Neither the DGM nor the OUIHP will The instructions for preparing the must seek assistance at least ten days notify the applicant that the application application narrative also constitute the prior to the Application Deadline Date has been received. evaluation criteria for reviewing and listed in the Key Dates section on page • Email applications will not be scoring the application. Weights one of this announcement. accepted under this announcement. assigned to each section are noted in Applicants that do not adhere to the parentheses. The 70-page narrative Dun and Bradstreet (D&B) Data should include only the first year of time lines for System for Award Universal Numbering System (DUNS) Management (SAM) and/or http:// activities; information for multi-year www.Grants.gov registration or that fail All IHS applicants and grantee projects should be included as an to request timely assistance with organizations are required to obtain a appendix. See ‘‘Multi-year Project technical issues will not be considered DUNS number and maintain an active Requirements’’ at the end of this section for a waiver to submit a paper registration in the SAM database. The for more information. The narrative application. DUNS number is a unique 9-digit section should be written in a manner Please be aware of the following: identification number provided by D&B that is clear to outside reviewers • Please search for the application which uniquely identifies each entity. unfamiliar with prior related activities package in http://www.Grants.gov by The DUNS number is site specific; of the applicant. It should be well entering the CFDA number or the therefore, each distinct performance site organized, succinct, and contain all Funding Opportunity Number. Both may be assigned a DUNS number. information necessary for reviewers to numbers are located in the header of Obtaining a DUNS number is easy, and understand the project fully. Points will this announcement. there is no charge. To obtain a DUNS be assigned to each evaluation criteria • If you experience technical number, please access it through http:// adding up to a total of 100 points. A challenges while submitting your fedgov.dnb.com/webform, or to expedite minimum score of 70 points is required application electronically, please the process, call (866) 705–5711. for funding. Points are assigned as contact Grants.gov Support directly at: All HHS recipients are required by the follows: [email protected] or (800) 518–4726. Federal Funding Accountability and 1. Criteria Customer Support is available to Transparency Act of 2006, as amended A. Program Information and Need for address questions 24 hours a day, 7 days (‘‘Transparency Act’’), to report Assistance (20 points) a week (except on Federal holidays). information on subawards. Accordingly, • Upon contacting Grants.gov, obtain all IHS grantees must notify potential In the context of Healthy People 2020: a tracking number as proof of contact. first-tier subrecipients that no entity (1) The target population and its unmet The tracking number is helpful if there may receive a first-tier subaward unless health needs are described and are technical issues that cannot be the entity has provided its DUNS documented; (2) Socio-cultural resolved and a waiver from the agency number to the prime grantee determinants of health and health must be obtained. organization. This requirement ensures disparities impacting the urban Indian • If it is determined that a waiver is the use of a universal identifier to population or communities served are needed, the applicant must submit a enhance the quality of information identified and described; (3)

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Demographic data is used and cited to identify, improve, evaluate, and outreach, collaborations, clear support the information provided; (4) document urban Indian organizations’ communication, and information Relevant barriers that the project hopes practice-based and evidence-based best sharing/dissemination with efforts to to overcome are discussed; (5) practices. involve urban Indian organization staff Information provided helps reviewers G. Summarize the need to have access and patients, Federal entities, and state understand the urban Indian to cost and cost-benefit information to health personnel. organizations that will be served by the create accurate reasonable annual urban Goals and Objectives proposed project; (6) Describe how the Indian health budgets. applicant determined it has the H. Describe coordination with IHS State the goals for each program administrative infrastructure to provide funded Tribal and Urban requirement. Project goals are national the four program requirements: public Epidemiological Centers, the CDC, and in scope, describe the desired long-term policy, research and data, structured the IHS to reduce and/or eliminate outcomes for each program requirement, training and technical assistance and for barriers that prevent access to data. and align with and incorporate the urban Indian organizations, and Healthy People 2020 benchmarks. (3) Structured Training and Technical education, public relations and Provide at least one specific, Assistance for Urban Indian marketing of urban Indian achievable, measurable, time-framed Organizations organizations; and (7) Explain previous outcome objective for each proposed planning activities the applicant has I. Describe the need for education, project goal. Each objective identified is completed and if the applicant has technical support and training to urban specific, stated in measurable terms, identified or will establish best- Indian organizations as they implement achievable within a specified time frame practices or evidence-based practices health care reform and work with the and the available resources, is relevant relative to each of the four program Health Insurance Marketplace to to and congruent within the larger requirements. implement, sustain and improve access project goal; and includes a specific to quality health care services for urban (1) Public Policy time frame for achievement. The Indians. proposed outcome objectives frame the A. Summarize the public policy J. Describe the need for training and set of national outcomes the applicant opportunities and challenges of health technical assistance to support urban wants to achieve in meeting project care reform on urban Indian Indian organization administration: (1) goals. organizations. Board of directors: roles and B. Identify and align the urban Indian responsibilities, criteria to guide Methodology organizations’ priorities with the medical staff credentialing and 1. Applicant described proposed Agency priorities in the context of privileging, and ensure quality and approaches and activities for achieving health care reform. Describe how the patient safety, (2) develop business project goals and objectives. Methods or Healthy People 2020 goals and plans, (3) enhance revenue and third- activities are presented for addressing objectives are incorporated to guide party billing, (4) achieve and maintain each focus of intent for each of the four national health promotion and disease program accreditation, (5) acquire state program requirements outlined in Part prevention efforts. The priorities should licensure, PCMH certification or other A. Program Information Needs. align with the urban Indian state credentialing, and (6) enrollment Applicant demonstrates that the organizations’ budget formulation in Medicaid, Medicare and SHCIP proposed methodological approaches process that establishes their specific programs. are national in scope and contribute to health priorities. (4) Education, Public Relations and increased capacity within the urban C. Summarize the need to work with Indian health system. the HHS Operating Divisions including Marketing of Urban Indian 2. Applicant described the specific CMS, HRSA, SAMHSA, CDC, AHRQ, Organizations activities necessary to carry out each and states to proactively plan, K. Summarize the need to market the methodological approach. Applicant implement, and evaluate the impact of urban Indian organizations through demonstrated consideration of logic, activities on urban Indian organizations’ development of national, regional and technical soundness, feasibility, priorities for health care reform. local marketing strategies and creativity and innovativeness, potential D. Summarize the need to make campaigns. certain that public policy program utility, and national applicability of the L. Describe the need for enhanced activities it proposed. activities are complementary, communication among local private and coordinated and non-duplicative. 3. The description of the project non-profit health care entities and methodology extends across the three E. Summarize enhanced county and state health departments. communication, interaction, and years of the project effort. M. Describe communications strategy 4. The applicant developed a project coordination of health care reform and collaborative activities. activities, such as the PCMH model, by logic model, a systematic diagram, that initiating and maintaining partnerships B. Project Objective(s) and Approach (40 links anticipated outcomes with the and collaborative relationships with points) project’s activities/processes and national Indian Tribal organizations, theoretical assumptions. It includes the Program Plans—Goals and Objectives, following basic components: Resources/ key state and local health entities, and Methodology, Project Logic Model, Work education and safety networks. inputs, activities, outputs, outcomes, Plan, Resolution of Challenges, and and impacts. The project logic model is (2) Research and Data Impact included as part of the application F. Describe the need to collect and Describe methods that will be used to appendix. analyze health disparities data, meet each of the four program 5. Applicant provided evidence that morbidity and mortality data, urban requirements and expectations in this its approaches and activities can Indian health services costs data and funding opportunity announcement. reasonably be expected to be effective. conduct data analyses in order to reduce Address development of effective tools Literature relevant to the methodology urban Indian health disparities and and strategies for ongoing staff training, is cited as appropriate.

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Work Plan The applicant developed at least two Appendix Items A work plan is included that (2) performance measures by which it • Work plan, logic model and/or time describes the sequence of specific will track its progress over time. The line for proposed objectives. activities and steps that will be used to performance measures are quantifiable • Position descriptions for key staff. carry out each proposed methodological indicators of progress and achievement • Resumes of key staff that reflect approach. The applicant explicitly that include outcome, output, input, current duties. described who will conduct each efficiency, and explanatory indicators. • Consultant or contractor proposed activity, as well as when, where, and The performance measures can be scope of work and letter of commitment how each activity will be carried out. A measured by domains including (if applicable). detailed time line of proposed project productivity, effectiveness, quality and • Current Indirect Cost Rate activities was developed and included timeliness. Agreement. • in the appendix. The time line links D. Organizational Capabilities, Key Organizational chart(s) highlighting activities to project objectives and Personnel and Qualifications (15 points) proposed project staff and their covers the three years of the project supervisors as well as other key contacts period. The applicant described an Organizational Capabilities within the organization and key efficient and effective plan for managing community contacts. The applicant identified its credibility • Additional documents to support the project, including its personnel and including how long and why the resources. The applicant described an narrative (i.e. data tables, key news organization exists, accomplishments articles, etc.). effective plan for monitoring and and impact, size and characteristics of tracking project activities. its constituency, its funding sources and 2. Review and Selection Resolution of Challenges their positive comments on the Each application will be prescreened The applicant identified and organization’s work, and results of by the DGM staff for eligibility and discussed challenges, including both internal and external evaluations of the completeness as outlined in the funding opportunities and barriers, that are programs. Include a listing of the announcement. Incomplete applications likely to be encountered in designing current Board of Directors (the listing of and applications that are non- and implementing the activities Board members includes their status as responsive to the eligibility criteria will described in the Description of an urban Indian, professions, education not be referred to the ORC. Applicants Methodology and Work Plan sections, as degrees, and board appointment terms) will be notified by DGM, via email, to well as approaches that will be used to and discuss the organization’s outline minor missing components (i.e., address such challenges. administrative capacity including OMB signature on the SF–424, audit Circular administrative requirements for Impact documentation, key contact form) non-profit organizations, fiscal and needed for an otherwise complete The applicant explained how the human resources policies and application. All missing documents proposed project’s products and results procedures and audit reporting. must be sent to DGM on or before the will have a national scope and Key Personnel and Qualifications due date listed in the email of applicability. The applicant provided an notification of missing documents inclusive description of its national Identify current staff and new staff required. target audiences as well as its proposed education, experience, skills, and To obtain a minimum score for strategies for reaching these audiences. knowledge; materials published; and funding by the ORC, applicants must The plan includes, but is not limited to, previous work of a similar nature. address all program requirements and electronic and Internet capacity. The Describe data collection strategy to provide all required documentation. If applicant described how and to what collect, analyze and track data to an applicant receives less than a extent the proposed project activities measure process and impact/outcomes minimum score, it will be considered to will directly improve leadership with with urban Indian organizations, Tribes, be ‘‘Disapproved’’ and will be informed the urban Indian health services and national Indian organizations and states via email by the IHS program office of systems being targeted, and contribution and explain how the data will be used their application’s deficiencies. A to improve health status among urban to inform program development and summary statement outlining the Indians. The applicant included a service delivery. strengths and weaknesses of the description of how it intends to application will be provided to each E. Categorical Budget and Budget mobilize its audiences to learn from and disapproved applicant. The summary Justification (10 points) actually use the materials, products and statement will be sent to the Authorized resources it has developed to address The applicant was specific and Organizational Representative (AOR) the four services areas identified in A. provided an itemized categorical budget that is identified on the face page (SF– Program Information needs. and a clear succinct budget narrative 424), of the application within 30 days C. Program Evaluation and Technical justification to support the scope of of the completion of the Objective Support Capacity (15 points) work described in the project narrative. Review. The applicant provided a well- Multi-Year Project Requirements (if VI. Award Administration Information conceived and logical plan for assessing applicable) the achievement of the project’s process 1. Award Notices and outcome objectives and for Projects requiring second and third The Notice of Award (NoA) is a evaluating changes in the specific years must include a brief project legally binding document signed by the problems and contributing factors. The narrative and budget (one additional Grants Management Officer and serves evaluation plan focuses primarily on page per year) addressing the as the official notification of the grant outcomes over which the project has developmental plans for each additional award. The NoA will be initiated by the influence and that have the capacity to year of the project. Required DGM in our grant system, produce meaningful data on an annual information on multi-years should be GrantSolutions (https:// basis. included as an appendix. www.grantsolutions.gov). Each entity

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that is approved for funding under this • 2 CFR Part 230—Cost Principles A. Progress Reports announcement will need to request or for Non-Profit Organizations (OMB Program progress reports are required have a user account in GrantSolutions Circular A–122). semi-annually, within 30 days after the in order to retrieve their NoA. The NoA E. Audit Requirements: • OMB Circular A–133, Audits of budget period ends. These reports must is the authorizing document for which include a brief comparison of actual funds are dispersed to the approved States, Local Governments, and Non- profit Organizations. accomplishments to the goals entities and reflects the amount of established for the period, or, if Federal funds awarded, the purpose of 3. Indirect Costs applicable, provide sound justification the grant, the terms and conditions of This section applies to all grant for the lack of progress, and other the award, the effective date of the pertinent information as required. A award, and the budget/project period. recipients that request reimbursement of indirect costs (IDC) in their grant final report must be submitted within 90 Disapproved Applicants application. In accordance with HHS days of expiration of the budget/project Applicants who received a score less Grants Policy Statement, Part II–27, IHS period. than the recommended funding level for requires applicants to obtain a current B. Financial Reports approval, 70, and were deemed to be IDC rate agreement prior to award. The Federal Financial Report FFR (SF– disapproved by the ORC, will receive an rate agreement must be prepared in 425), Cash Transaction Reports are due Executive Summary Statement from the accordance with the applicable cost 30 days after the close of every calendar IHS program office within 30 days of the principles and guidance as provided by quarter to the Division of Payment conclusion of the ORC outlining the the cognizant agency or office. A current Management, HHS at: http:// weaknesses and strengths of their rate covers the applicable grant www.dpm.psc.gov. It is recommended application submitted. The IHS program activities under the current award’s that you also send a copy of your FFR office will also provide additional budget period. If the current rate is not (SF–425) report to your Grants contact information as needed to on file with the DGM at the time of Management Specialist. Failure to address questions and concerns as well award, the IDC portion of the budget submit timely reports may cause a as provide technical assistance if will be restricted. The restrictions disruption in timely payments to your desired. remain in place until the current rate is provided to the DGM. organization. Approved But Unfunded Applicants Generally, IDC rates for IHS grantees Grantees are responsible and Approved but unfunded applicants are negotiated with the Division of Cost accountable for accurate information that met the minimum scoring range Allocation (DCA) https://rates.psc.gov/ being reported on all required reports: and were deemed by the ORC to be and the Department of Interior (Interior the Progress Reports and Federal ‘‘Approved’’, but were not funded due Business Center) http://www.doi.gov/ Financial Report. _ _ to lack of funding, will have their ibc/services/Indirect Cost Services/ C. Federal Subaward Reporting System applications held by DGM for a period index.cfm. For questions regarding the (FSRS) of one year. If additional funding indirect cost policy, please call (301) becomes available during the course of 443–5204 to request assistance. This award may be subject to the Transparency Act subaward and FY 2013, the approved application 4. Reporting Requirements maybe reconsidered by the awarding executive compensation reporting program office for possible funding. The The grantee must submit required requirements of 2 CFR Part 170. applicant will also receive an Executive reports consistent with the applicable The Transparency Act requires the Summary Statement from the IHS deadlines. Failure to submit required OMB to establish a single searchable program office within 30 days of the reports within the time allowed may database, accessible to the public, with conclusion of the ORC. result in suspension or termination of information on financial assistance an active grant, withholding of awards made by Federal agencies. The Note: Any correspondence other than the additional awards for the project, or Transparency Act also includes a official NoA signed by an IHS Grants other enforcement actions such as requirement for recipients of Federal Management Official announcing to the grants to report information about first- Project Director that an award has been made withholding of payments or converting to their organization is not an authorization to the reimbursement method of tier subawards and executive to implement their program on behalf of IHS. payment. Continued failure to submit compensation under Federal assistance required reports may result in one or awards. 2. Administrative Requirements both of the following: (1) the imposition IHS has implemented a Term of Award into all IHS Standard Terms and Cooperative agreements are of special award provisions; and (2) the Conditions, NoAs and funding administered in accordance with the non-funding or non-award of other announcements regarding the FSRS following regulations, policies, and eligible projects or activities. This reporting requirement. This IHS Term of OMB cost principles: requirement applies whether the A. The criteria as outlined in this delinquency is attributable to the failure Award is applicable to all IHS grant and Program Announcement. of the grantee organization or the cooperative agreements issued on or B. Administrative Regulations for individual responsible for preparation after October 1, 2010, with a $25,000 Grants: of the reports. Reports must be subaward obligation dollar threshold • 45 CFR Part 74, Uniform submitted electronically via met for any specific reporting period. Administrative Requirements for GrantSolutions. Personnel responsible Additionally, all new (discretionary) Awards and Subawards to Institutions for submitting reports will be required IHS awards (where the project period is of Higher Education, Hospitals, and to obtain a login and password for made up of more than one budget other Non-profit Organizations. GrantSolutions. Please see the Agency period) and where: (1) the project period C. Grants Policy: Contacts list in section VII for the start date was October 1, 2010 or after • HHS Grants Policy Statement, systems contact information. and (2) the primary awardee will have Revised 01/07. The reporting requirements for this a $25,000 subaward obligation dollar D. Cost Principles: program are noted below. threshold during any specific reporting

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period will be required to address the DEPARTMENT OF HEALTH AND Dated: July 1, 2013. FSRS reporting. For the full IHS award HUMAN SERVICES David Clary, term implementing this requirement Program Analyst, Office of Federal Advisory and additional award applicability National Institutes of Health Committee Policy. information, visit the Grants National Institute of Allergy and [FR Doc. 2013–16234 Filed 7–5–13; 8:45 am] Management Grants Policy Web site at: Infectious Diseases; Notice of Closed BILLING CODE 4140–01–P https://www.ihs.gov/dgm/ Meetings index.cfm?module=dsp_dgm_ policy_topics. Pursuant to section 10(d) of the DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as Telecommunication for the hearing HUMAN SERVICES amended (5 U.S.C. App.), notice is impaired is available at: TTY (301) 443– hereby given of the following meetings. National Institutes of Health 6394. The meetings will be closed to the VII. Agency Contacts public in accordance with the National Institute on Drug Abuse; provisions set forth in sections Notice of Closed Meeting 1. Questions on the programmatic 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., issues may be directed to: Phyllis Wolfe, as amended. The grant applications and Pursuant to section 10(d) of the Director, Office of Urban Indian Health the discussions could disclose Federal Advisory Committee Act, as Programs, 801 Thompson Avenue, Suite confidential trade secrets or commercial amended (5 U.S.C. App), notice is 200, Rockville, MD 20852, Phone: (301) property such as patentable material, hereby given of the following meeting. and personal information concerning 443–1631, Email: [email protected]. The meeting will be closed to the individuals associated with the grant 2. Questions on grants management public in accordance with the applications, the disclosure of which and fiscal matters may be directed to: would constitute a clearly unwarranted provisions set forth in sections Patience Musikikongo, Grants invasion of personal privacy. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Management Specialist, Division of as amended. The grant applications and Grants Operations, 801 Thompson Name of Committee: Microbiology, the discussions could disclose Infectious Diseases and AIDS Initial Review Avenue, TMP Suite 360, Rockville, MD Group; Acquired Immunodeficiency confidential trade secrets or commercial 20852, Phone: (301) 443–5204, Email: Syndrome Research Review Committee; property such as patentable materials, [email protected]. AIDS. and personal information concerning 3. Questions on systems matters may Date: July 25–26, 2013. individuals associated with the grant Time: July 25, 2013, 2:00 p.m. to 05:00 applications, the disclosure of which be directed to: Paul Gettys, Grant p.m., Central Time. Systems Coordinator, 801 Thompson Agenda: To review and evaluate grant would constitute a clearly unwarranted Avenue, TMP Suite 360, Rockville, MD applications. invasion of personal privacy. 20852, Phone: (301) 443–5204, Fax: Place: Courtyard Marriott Chicago River Name of Committee: National Institute on (301) 443–9602, Email: North Hotel, 30 East Hubbard, Chicago, IL Drug Abuse Special Emphasis Panel; NIH 60611. [email protected]. Summer Research Experience Programs Time: July 26, 2013, 8:30 a.m. to 12:00 (R25). VIII. Other Information p.m., Central Time. Agenda: To review and evaluate grant Date: July 19, 2013. The Public Health Service strongly applications. Time: 1:30 p.m. to 3:00 p.m. encourages all cooperative agreement Place: Courtyard Marriott Chicago River Agenda: To review and evaluate grant North Hotel, 30 East Hubbard, Chicago, IL and contract recipients to provide a applications. 60611. Place: National Institutes of Health, smoke-free workplace and promote the Contact Person: Vasundhara Varthakavi, Neuroscience Center, 6001 Executive non-use of all tobacco products. In Ph.D., Scientific Review Officer, Scientific Boulevard, Rockville, MD 20852 (Telephone Review Program, NIH/NIAID/DEA/ARRB, addition, Public Law 103–227, the Pro- Conference Call). Children Act of 1994, prohibits smoking 6700 B Rockledge Drive, Room 3256, Bethesda, MD 20892–7616, 301–451–1740, Contact Person: Eliane Lazar-Wesley, in certain facilities (or in some cases, [email protected]. Ph.D., Scientific Review Officer, Office of any portion of the facility) in which Name of Committee: National Institute of Extramural Affairs, National Institute on regular or routine education, library, Allergy and Infectious Diseases Special Drug Abuse, NIH, DHHS, Room 4245, MSC day care, health care, or early childhood Emphasis Panel; IAM Review Meeting. 9550, 6001 Executive Blvd., Bethesda, MD development services are provided to Date: July 29–31, 2013. 20892–9550, 301–451–4530, [email protected]. children. This is consistent with the Time: 8:00 a.m. to 4:00 p.m. (Catalogue of Federal Domestic Assistance Agenda: To review and evaluate grant HHS mission to protect and advance the Program Nos.: 93.279, Drug Abuse and applications. physical and mental health of the Place: National Institutes of Health, 6700B Addiction Research Programs, National American people. Rockledge Drive, Bethesda, MD 20817, Institutes of Health, HHS) Dated: June 28, 2013. (Virtual Meeting). Dated: July 2, 2013. Contact Person: Maryam Feili-Hariri, Yvette Roubideaux, Ph.D., Scientific Review Officer, Scientific Michelle Trout, Acting Director, Indian Health Service. Review Program, Division of Extramural Program Analyst, Office of Federal Advisory [FR Doc. 2013–16270 Filed 7–5–13; 8:45 am] Activities, National Institutes of Health/ Committee Policy. NIAID, 6700B Rockledge Drive, MSC 7616, [FR Doc. 2013–16339 Filed 7–5–13; 8:45 am] BILLING CODE 4165–16–P Bethesda, MD 20892–7616, 301–594–3243, [email protected]. BILLING CODE 4140–01–P (Catalogue of Federal Domestic Assistance Program Nos. 93.855, Allergy, Immunology, and Transplantation Research; 93.856, Microbiology and Infectious Diseases Research, National Institutes of Health, HHS)

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DEPARTMENT OF HEALTH AND provisions set forth in sections Name of Committee: Center for Scientific HUMAN SERVICES 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Review Special Emphasis Panel; PAR 11– as amended. The grant applications and 044: Indo-US Collaboration on Low Cost National Institutes of Health the discussions could disclose Medical Devices. confidential trade secrets or commercial Date: July 31–August 1, 2013. National Institute of Allergy and property such as patentable material, Time: 7:00 a.m. to 5:00 p.m. Infectious Diseases; Notice of Closed and personal information concerning Agenda: To review and evaluate grant Meeting individuals associated with the grant applications. applications, the disclosure of which Place: National Institutes of Health, 6701 Pursuant to section 10(d) of the Rockledge Drive, Bethesda, MD 20892, Federal Advisory Committee Act, as would constitute a clearly unwarranted invasion of personal privacy. (Virtual Meeting). amended (5 U.S.C. App.), notice is Contact Person: Ping Fan, MD, Ph.D., hereby given of the following meeting. Name of Committee: Center for Scientific Scientific Review Officer, Center for Review Special Emphasis Panel; The meeting will be closed to the Scientific Review, National Institutes of Neuropsychiatric and Neuroimmunologic public in accordance with the Health, 6701 Rockledge Drive, Room 5154, provisions set forth in sections Studies. Date: July 17, 2013. MSC 7840, Bethesda, MD 20892, 301–408– 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., 9971, [email protected]. as amended. The grant applications and Time: 3:00 p.m. to 5:00 p.m. Agenda: To review and evaluate grant Name of Committee: Center for Scientific the discussions could disclose applications. Review Special Emphasis Panel; AREA: confidential trade secrets or commercial Place: National Institutes of Health, 6701 Endocrinology, Metabolism, Nutrition, and property such as patentable material, Rockledge Drive, Bethesda, MD 20892, Reproduction. and personal information concerning (Telephone Conference Call). Date: July 31, 2013. individuals associated with the grant Contact Person: Julius Cinque, MS, Time: 8:00 a.m. to 6:00 p.m. Scientific Review Officer, Center for applications, the disclosure of which Agenda: To review and evaluate grant Scientific Review, National Institutes of would constitute a clearly unwarranted applications. invasion of personal privacy. Health, 6701 Rockledge Drive, Room 5186, MSC 7846, Bethesda, MD 20892, (301) 435– Place: National Institutes of Health, 6701 Name of Committee: National Institute of 1252, [email protected]. Rockledge Drive, Bethesda, MD 20892, Allergy and Infectious Diseases Special (Virtual Meeting). This notice is being published less than 15 Emphasis Panel; Integrated Preclinical/ days prior to the meeting due to the timing Contact Person: Gary Hunnicutt, Ph.D., Clinical AIDS Vaccine Development Program Scientific Review Officer, Center for (U19). limitations imposed by the review and funding cycle. Scientific Review, National Institutes of Date: July 30–31, 2013. Health, 6701 Rockledge Drive, Room 6164, Time: 8:00 a.m. to 5:00 p.m. Name of Committee: Center for Scientific MSC 7892, Bethesda, MD 20892, 301–435– Agenda: To review and evaluate grant Review Special Emphasis Panel; PAR MH14– applications. 141: Revision Applications for Research on 0229, [email protected]. Place: Hyatt Regency Bethesda, One Assessing the Role of Stigma in HIV Name of Committee: Center for Scientific Bethesda Metro Center, 7400 Wisconsin Prevention and Care (R34). Review Special Emphasis Panel; Member Avenue, Bethesda, MD 20814. Date: July 17, 2013. Conflict: Neuropharmacology. Contact Person: Nancy Vazquez- Time: 12:00 p.m. to 5:00 p.m. Date: July 31, 2013. Agenda: To review and evaluate grant Maldonado, Ph.D., Scientific Review Officer, Time: 1:00 p.m. to 3:00 p.m. applications. Scientific Review Program, DEA/NIAID/NIH/ Agenda: To review and evaluate grant DHHS, 6700B Rockledge Drive, MSC–7616, Place: National Institutes of Health, 6701 applications. Bethesda, MD 20892–7616, 301–496–3253, Rockledge Drive, Bethesda, MD 20892, Place: National Institutes of Health, 6701 [email protected]. (Telephone Conference Call). Rockledge Drive, Bethesda, MD 20892, (Catalogue of Federal Domestic Assistance Contact Person: Jose H. Guerrier, Ph.D., (Telephone Conference Call). Program Nos. 93.855, Allergy, Immunology, Scientific Review Officer, Center for and Transplantation Research; 93.856, Scientific Review, National Institutes of Contact Person: Richard D. Crosland, Microbiology and Infectious Diseases Health, 6701 Rockledge Drive, Room 5218, Ph.D., Scientific Review Officer, Center for Research, National Institutes of Health, HHS) MSC 7852, Bethesda, MD 20892, 301–435– Scientific Review, National Institutes of 1137, [email protected]. Health, 6701 Rockledge Drive, Room 4158, Dated: July 1, 2013. This notice is being published less than 15 MSC 7850, Bethesda, MD 20892, 301–435– David Clary, days prior to the meeting due to the timing 1220, [email protected]. Program Analyst, Office of Federal Advisory limitations imposed by the review and (Catalogue of Federal Domestic Assistance Committee Policy. funding cycle. Program Nos. 93.306, Comparative Medicine; Name of Committee: Center for Scientific [FR Doc. 2013–16235 Filed 7–5–13; 8:45 am] 93.333, Clinical Research, 93.306, 93.333, BILLING CODE 4140–01–P Review Special Emphasis Panel; PAR–13– 007: Early-Stage Pharmacological Validation 93.337, 93.393–93.396, 93.837–93.844, of Novel Targets and Accompanying Pre- 93.846–93.878, 93.892, 93.893, National Institutes of Health, HHS) DEPARTMENT OF HEALTH AND Therapeutic Leads for Diseases of Interest to the NIDDK. Dated: July 1, 2013. HUMAN SERVICES Date: July 30, 2013. Time: 10:00 a.m. to 9:00 p.m. Michelle Trout, National Institutes of Health Agenda: To review and evaluate grant OFACP Analyst, Office of Federal Advisory applications. Committee Policy. Center for Scientific Review; Notice of Place: National Institutes of Health, 6701 [FR Doc. 2013–16236 Filed 7–5–13; 8:45 am] Closed Meetings Rockledge Drive, Bethesda, MD 20892, BILLING CODE 4140–01–P Pursuant to section 10(d) of the (Virtual Meeting). Contact Person: John Bleasdale, Ph.D., Federal Advisory Committee Act, as Scientific Review Officer, Center for amended (5 U.S.C. App.), notice is Scientific Review, National Institutes of hereby given of the following meetings. Health, 6701 Rockledge Drive, Room 6170, The meetings will be closed to the MSC 7892, Bethesda, MD 20892, 301–435– public in accordance with the 4514, [email protected].

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DEPARTMENT OF HEALTH AND The prospective start-up exclusive conditions of 35 U.S.C. 209 and 37 CFR HUMAN SERVICES commercialization license territory may Part 404. The prospective start-up be worldwide, and the field of use may exclusive license may be granted unless National Institutes of Health be limited to: the NIH receives written evidence and argument that establishes that the grant Prospective Grant of Start-Up The treatment of cancers and urological disorders that express the IL4 receptor on of the license would not be consistent Exclusive Commercialization License: their cell surface by using cpIL4–PE38KDEL. with the requirements of 35 U.S.C. 209 The Development of a Circularly and 37 CFR Part 404 within fifteen (15) DATES: Only written comments and/or Permuted IL4-Targeted Pseudomonas days from the date of this published applications for a license which are Exotoxin A (cpIL4–PE38KDEL) for the notice. Treatment of Cancers and Urological received by the NIH Office of Complete applications for a license in Disorders Technology Transfer on or before July the field of use filed in response to this 23, 2013 will be considered. notice will be treated as objections to AGENCY: National Institutes of Health, ADDRESSES: Requests for copies of the HHS. the grant of the contemplated start-up patent application, inquiries, comments, exclusive license. Comments and ACTION: Notice. and other materials relating to the objections submitted to this notice will contemplated start-up exclusive not be made available for public SUMMARY: This notice, in accordance commercialization license should be with 35 U.S.C. 209 and 37 CFR Part 404, inspection and, to the extent permitted directed to: David A. Lambertson, Ph.D., by law, will not be released under the indicates that the National Institutes of Senior Licensing and Patenting Health, Department of Health and Freedom of Information Act, 5 U.S.C. Manager, Office of Technology Transfer, 552. Human Services, is contemplating the National Institutes of Health, 6011 grant of a start-up exclusive Executive Boulevard, Suite 325, Dates: July 1, 2013. commercialization license to practice Rockville, MD 20852–3804; Telephone: Richard U. Rodriguez, the inventions embodied in: (301) 435–4632; Facsimile: (301) 402– Director, Division of Technology Development (a) Technology families E–047–1994/ 0220; Email: [email protected]. & Transfer, Office of Technology Transfer, 0 and E–047–1994/1, including U.S. SUPPLEMENTARY INFORMATION: Targeted National Institutes of Health. Patent 5,635,599 entitled ‘‘Proteins toxins are fusion proteins which have [FR Doc. 2013–16237 Filed 7–5–13; 8:45 am] Comprising Circularly Permuted been designed to direct therapeutic BILLING CODE 4140–01–P Ligands’’ [HHS Ref. E–047–1994/0–US– agents to specific diseased cells. 01], PCT Application PCT/US95/04468 Targeted toxins comprise two primary entitled ‘‘Circularly Permutated Ligands domains: a targeting domain and a toxin DEPARTMENT OF HOMELAND and Circularly Permuted Chimeric domain (the therapeutic agent). SECURITY Molecules’’ [HHS Ref. E–047–1994/0– Diseased cells are targeted through the PCT–02], European Patent 0754192 interaction of the targeting domain with Coast Guard entitled ‘‘Proteins Comprising Circularly a protein that is preferentially expressed [Docket No. USCG–2013–0574] Permuted Ligand’’ [HHS Ref. E–047– on the cells. Once targeted to the cells, 1994/0–EP–15, validated in Austria, the toxin domain is able to exert its Merchant Marine Personnel Advisory Belgium, France, Italy, Liechtenstein, cytotoxic activity and kill the specific Committee: Intercessional Meeting The Netherlands, Spain, Switzerland cell without affecting cells which do not and the United Kingdom], Canadian express the target. Since there are a AGENCY: Coast Guard, DHS. Patent 2187283 entitled ‘‘Proteins number of cell surface proteins that are ACTION: Notice of Federal Advisory Comprising Circularly Permuted preferentially expressed on diseased Committee Working Group Meeting. Ligands’’ [HHS Ref. E–047–1994/0–CA– cells, targeted toxins are potential SUMMARY: A working group of the 14], Australian Patent 694211 entitled therapeutic candidates in the treatment Merchant Marine Personnel Advisory ‘‘Proteins Comprising Circularly of several diseases such as cancer and Committee (MERPAC) will meet to work Permuted Ligands’’ [HHS Ref. E–047– urological disorders. 1994/0–CA–14], and U.S. Patent The specific targeted toxins for which on Task Statement 82, entitled ‘‘The 6,011,002 entitled ‘‘Circularly this start-up exclusive license may be review and submittal of Permutated Ligands and Circularly granted comprise a targeting domain recommendations for proposed Permuted Chimeric Molecules’’ [HHS which contains a circularly permuted revisions to forms CG–719K, Merchant Ref. E–047–1994/1–US–01]; interleukin 4 (cpIL4) ligand, which Mariner Credential Medical Evaluation (b) Technology family E–021–2010/0, binds to the IL4 receptor. The IL4 Report and CG–719K/E, Merchant including U.S. Patent Application 61/ receptor is a cell surface protein that is Mariner Evaluation of Fitness for Entry 105,408 entitled ‘‘Targeted Cargo preferentially expressed on several Level Ratings.’’ This meeting will be Protein Combination Therapy’’ [HHS types of cancer cells and cells associated open to the public. Ref. E–021–2010/0–US–01] and U.S. with urological disorders. By linking DATES: A MERPAC working group will Patent Application 12/579,281 entitled cpIL4 to the Pseudomonas extoxin A meet on July 24, 2013, and July 25, ‘‘Targeted Cargo Protein Combination variant PE38KDEL, it is possible to 2013, from 8 a.m. until 4 p.m. Please Therapy’’ [HHS Ref. E–021–2010/0–US– selectively kill the IL4 receptor- note that the meeting may adjourn early 02]; expressing cells, leaving non-diseased if all business is finished. Written and all related continuing and foreign cells alone. This can result in an comments to be distributed to working patents/patent applications for these effective therapeutic strategy with fewer group members and placed on technology families, to Medicenna side effects than a non-targeted therapy. MERPAC’s Web site are due by July 10, Therapeutics, Inc. The patent rights in The prospective start-up exclusive 2013. these inventions have been assigned to commercialization license is being ADDRESSES: The working group will and/or exclusively licensed to the considered under the small business meet at the Jemal Building of U.S. Coast Government of the United States of initiative launched on 1 October 2011, Guard Headquarters, Room 10–0718, America. and will comply with the terms and 1900 Half St. SW., Washington, DC

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20593. Attendees will be required to Federal Officer of MERPAC, telephone to consider with regards to Task provide a picture identification card and 202–372–1445. If you have any Statement 82, entitled ‘‘The review and pass through a magnetometer in order to questions on viewing or submitting submittal of recommendations for gain admittance to the Jemal Building. material to the docket, call Barbara proposed revisions to forms CG–719K, Visitors should also arrive at least 30 Hairston, Program Manager, Docket Merchant Mariner Credential Medical minutes in advance of the meeting in Operations, telephone 202–366–9826. Evaluation Report and CG–719K/E, case of long lines at the entrance. SUPPLEMENTARY INFORMATION: Notice of Merchant Mariner Evaluation of Fitness For further information about the this meeting is given under the Federal for Entry Level Ratings’’; and Coast Guard facilities or services for Advisory Committee Act (FACA), Title (4) Adjournment of meeting. individuals with disabilities or to 5, United States Code (Pub. L. 92–463). Dated: June 25, 2013. request special assistance, contact Mr. MERPAC is an advisory committee J. G. Lantz, Davis Breyer at (202) 372–1445 or authorized under section 871 of the [email protected]. Director of Commercial Regulations and Homeland Security Act of 2002, Title 6, Standards. To facilitate public participation, we United States Code, section 451, and are inviting public comment on the chartered under the provisions of the [FR Doc. 2013–16253 Filed 7–5–13; 8:45 am] issues to be considered by the working FACA. The Committee acts solely in an BILLING CODE 9110–04–P group, as listed in the ‘‘Agenda’’ section advisory capacity to the Secretary of the below. Comments must be submitted in Department of Homeland Security DEPARTMENT OF HOMELAND writing on or before July 10, 2013, and (DHS) through the Commandant of the SECURITY must be identified by Docket No. Coast Guard and the Director of USCG–2013–0574 and may be Commercial Regulations and Standards U.S. Citizenship and Immigration submitted by one of the following on matters relating to personnel in the Services methods: U.S. merchant marine, including but not • Federal eRulemaking Portal: http:// limited to training, qualifications, [OMB Control Number 1615–0043] www.regulations.gov. Follow the certification, documentation, and fitness instructions for submitting comments standards. The Committee will advise, Agency Information Collection (preferred method to avoid delays in consult with, and make Activities: Application for Temporary processing). recommendations reflecting its Protected Status, Form I–821; Revision • Fax: 202–493–2251. of a Currently Approved Collection • independent judgment to the Secretary. Mail: Docket Management Facility A copy of all meeting documentation, ACTION: 60-Day Notice. (M–30), U.S. Department of including the Task Statement, is Transportation, West Building Ground available at https://homeport.uscg.mil SUMMARY: The Department of Homeland Floor, Room W12–140, 1200 New Jersey by using these key strokes: Missions; Security (DHS), U.S. Citizenship and Avenue SE., Washington, DC 20590– Port and Waterways Safety; Advisory Immigration Services (USCIS) invites 0001. Committees; MERPAC; and then use the the general public and other Federal • Hand delivery: Same as mail announcements key. Alternatively, you agencies to comment on the proposed address above, between 9 a.m. and 5 may contact Mr. Breyer as noted in the revision of a currently approved p.m., Monday through Friday, except ADDRESSES section above. collection of information. In accordance Federal Holidays. The telephone with the Paperwork Reduction Act number is 202–366–9329. Agenda (PRA) of 1995, the information Instructions: All submissions received Day 1 must include the words ‘‘Department of collection notice is published in the Homeland Security’’ and the docket The agenda for the July 24, 2013, Federal Register to obtain comments number for this action. Comments working group meeting is as follows: regarding the nature of the information received will be posted without (1) Review forms CG–719K, Merchant collection, the categories of alteration at http://www.regulations.gov, Mariner Credential Medical Evaluation respondents, the estimated burden (i.e. including any personal information Report and CG–719K/E, Merchant the time, effort, and resources used by provided. You may review a Privacy Act Mariner Evaluation of Fitness for Entry the respondents to respond), the notice regarding our public dockets in Level Ratings for possible revision; estimated cost to the respondent, and the January 17, 2008, issue of the (2) Public comment period; the actual information collection (3) Discuss and prepare proposed Federal Register (73 FR 3316). instruments. recommendations for the full committee Docket: For access to the docket to DATES: Comments are encouraged and to consider with regards to Task read documents or comments related to will be accepted for 60 days until Statement 82, entitled ‘‘The review and this notice, go to http:// September 6, 2013. submittal of recommendations for www.regulations.gov, enter the docket ADDRESSES: All submissions received number in the ‘‘Search’’ field and follow proposed revisions to forms CG–719K, Merchant Mariner Credential Medical must include the OMB Control Number instructions on the Web site. 1615–0043 in the subject box, the Public oral comment periods will be Evaluation Report and CG–719K/E, Merchant Mariner Evaluation of Fitness agency name and Docket ID USCIS– held during the working group meeting. 2007–0013. To avoid duplicate Speakers are requested to limit their for Entry Level Ratings’’; and (4) Adjournment of meeting. submissions, please use only one of the comments to 3 minutes. Please note that following methods to submit comments: the public oral comment periods may Day 2 (1) Online. Submit comments via the end before the prescribed ending time The agenda for the July 25, 2013, Federal eRulemaking Portal Web site at following the last call for comments. working group meeting is as follows: www.regulations.gov under e-Docket ID Contact Davis Breyer as indicated above (1) Continue discussion on proposed number USCIS–2007–0013; no later than July 10, 2013 to register as recommendations; (2) Email. Submit comments to a speaker. (2) Public comment period; [email protected]; or FOR FURTHER INFORMATION CONTACT: Mr. (3) Discuss and prepare final (3) Mail. Submit written comments to Davis Breyer, Alternate Designated recommendations for the full committee DHS, USCIS, Office of Policy and

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Strategy, Chief, Regulatory Coordination (3) Agency form number, if any, and • The average time required and Division, 20 Massachusetts Avenue the applicable component of the DHS money expended to secure secondary NW., Washington, DC 20529–2140. sponsoring the collection: Form I–821; evidence such as an affidavit. SUPPLEMENTARY INFORMATION: USCIS. • The percentage of total applicants Comments: Regardless of the method (4) Affected public who will be asked who require English translations of their used for submitting comments or or required to respond, as well as a brief supporting documents. • material, all submissions will be posted, abstract: Primary: Individuals or The percentage of supporting without change, to the Federal households. Form I–821 is necessary for documents for each individual eRulemaking Portal at http:// USCIS to gather the information applicant that require translation into English. www.regulations.gov, and will include necessary to adjudicate TPS • any personal information you provide. applications and determine if an The time required to find, hire, or Therefore, submitting this information applicant is eligible for TPS. otherwise obtain translations of supporting documents for immigration makes it public. You may wish to (5) An estimate of the total number of benefit requests. consider limiting the amount of respondents and the amount of time • personal information that you provide The average out of pocket monetary estimated for an average respondent to cost if any to obtain translations of in any voluntary submission you make respond: 91,882 respondents responding to DHS. DHS may withhold information supporting documents when required. via the paper-based Form I–821 at an If you need a copy of the information provided in comments from public view estimated 1 hour and 55 minutes (1.92 collection instrument with instructions, if it determines the information may hours) per response. 81,481 respondents or additional information, please visit impact the privacy of an individual or responding via the USCIS Electronic the Federal eRulemaking Portal site at: is offensive. For additional information, Immigration System (USCIS ELIS) at an http://www.regulations.gov. We may please read the Privacy Act notice that estimated 1 hour and 45 minutes (1.75 also be contacted at: USCIS, Office of is available via the link in the footer of hours) per response. 173,363 Policy and Strategy, Regulatory http://www.regulations.gov. respondents for biometrics processing at Coordination Division, 20 Note: The address listed in this notice an estimated 1 hour and 10 minutes Massachusetts Avenue NW., should only be used to submit comments (1.17 hours) per response. Washington, DC 20529–2140, concerning this information collection. (6) An estimate of the total public Telephone number 202–272–8377. Please do not submit requests for individual burden (in hours) associated with the case status inquiries to this address. If you collection: 521,840 total annual burden Dated: July 2, 2013. are seeking information about the status of Samantha Deshommes, your individual case, please check ‘‘My Case hours. DHS, USCIS has been engaged in an Acting Chief, Regulatory Coordination Status’’ online at: https://egov.uscis.gov/cris/ Division, Office of Policy and Strategy, U.S. Dashboard.do, or call the USCIS National effort to accurately estimate the burden Citizenship and Immigration Services, Customer Service Center at 1–800–375–5283. in terms of time and costs incurred by Department of Homeland Security. applicants for obtaining assistance from Written comments and suggestions [FR Doc. 2013–16279 Filed 7–5–13; 8:45 am] paid professionals to assist them in the from the public and affected agencies BILLING CODE 9111–97–P should address one or more of the completion of information collections following four points: for document preparation, translating (1) Evaluate whether the proposed evidence to English, and translating English form instructions into the DEPARTMENT OF HOUSING AND collection of information is necessary URBAN DEVELOPMENT for the proper performance of the applicant’s native language. We have functions of the agency, including published several notices in the Federal [Docket No. FR–5687–N–31] whether the information will have Register requesting comments from practical utility; interested and knowledgeable 60-Day Notice of Proposed Information (2) Evaluate the accuracy of the immigration benefit program Collection: Certificate of Housing agency’s estimate of the burden of the stakeholders and the general public. In Counseling: Homeownership and proposed collection of information, this notice, USCIS is requesting Certificate of Housing Counseling: including the validity of the meaningful input on the following Home Retention methodology and assumptions used; aspects of this information collection: AGENCY: Office of Housing Counseling, • (3) Enhance the quality, utility, and The time burden incurred by HUD. clarity of the information to be preparers (persons who assist the ACTION: Notice. collected; and/or respondent with the preparation of the (4) Minimize the burden of the form) who are not paid. SUMMARY: HUD is seeking approval from collection of information on those who • For preparers who are paid, the the Office of Management and Budget are to respond, including through the time and expense to the respondent to (OMB) for the information collection use of appropriate automated, find and secure such preparers for described below. In accordance with the electronic, mechanical, or other assistance. Paperwork Reduction Act, HUD is technological collection techniques or • The amount that paid preparers requesting comment from all interested other forms of information technology, charge for their services. parties on the proposed collection of e.g., permitting electronic submission of • information. The purpose of this notice responses. The time required to obtain supporting documents for Form I–821. is to allow for 60 days of public comment. Overview of this Information Collection • The monetary costs incurred to (1) Type of Information Collection: obtain supporting documents from DATES: Comments Due Date: September Revision of a Currently Approved sources such as a landlord, church, 6, 2013. Collection. utility, public agency (housing, social ADDRESSES: Interested persons are (2) Title of the Form/Collection: services, law enforcement), school, invited to submit comments regarding Application for Temporary Protected medical care provider, advocacy group, this proposal. Comments should refer to Status. law firm, or military service. the proposal by name and/or OMB

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Control Number and should be sent to: parties concerning the collection of 20410–5000; telephone 202–402–3400 Colette Pollard, Reports Management information described in Section A on (this is not a toll-free number) or email Officer, QDAM, Department of Housing the following: at [email protected] for a copy of and Urban Development, 451 7th Street (1) Whether the proposed collection the proposed forms or other available SW., Room 4176, Washington, DC of information is necessary for the information. Persons with hearing or 20410–5000; telephone 202–402–5564 proper performance of the functions of speech impairments may access this (this is not a toll-free number) or email the agency, including whether the number through TTY by calling the toll- at [email protected] for a copy of information will have practical utility; free Federal Relay Service at (800) 877– the proposed forms or other available (2) The accuracy of the agency’s 8339. information. Persons with hearing or estimate of the burden of the proposed FOR FURTHER INFORMATION CONTACT: speech impairments may access this collection of information; Arlette Mussington, Office of Policy, number through TTY by calling the toll- (3) Ways to enhance the quality, Programs and Legislative Initiatives, free Federal Relay Service at (800) 877– utility, and clarity of the information to PIH, Department of Housing and Urban 8339. be collected; and Development, 451 7th Street SW., (4) Ways to minimize the burden of FOR FURTHER INFORMATION CONTACT: (L’Enfant Plaza, Room 2206), the collection of information on those Betsy Cromwell, Office of Housing Washington, DC 20410; telephone 202– who are to respond; including through Counseling, Department of Housing and 402–4109 This is not a toll-free number. the use of appropriate automated Urban Development, 451 7th Street SW., Persons with hearing or speech collection techniques or other forms of Washington, DC 20410; email Betsy impairments may access this number information technology, e.g., permitting Cromwell, at through TTY by calling the toll-free electronic submission of responses. [email protected] or Federal Relay Service at (800) 877–8339. HUD encourages interested parties to telephone 202–708–0317, x 2628. This Copies of available documents submit comment in response to these is not a toll-free number. Persons with submitted to OMB may be obtained questions. hearing or speech impairments may from Ms. Mussington. Authority: Section 3507 of the Paperwork access this number through TTY by SUPPLEMENTARY INFORMATION: This Reduction Act of 1995, 44 U.S.C. Chapter 35. calling the toll-free Federal Relay notice informs the public that HUD is Service at (800) 877–8339. Copies of Dated: June 27, 2013. seeking approval from OMB for the available documents submitted to OMB Laura M. Marin, information collection described in may be obtained from Ms. Cromwell. Acting General Deputy Assistant Secretary Section A. SUPPLEMENTARY INFORMATION: This for Housing-Acting General Deputy Federal notice informs the public that HUD is Housing Commissioner. A. Overview of Information Collection seeking approval from OMB for the [FR Doc. 2013–16305 Filed 7–5–13; 8:45 am] Title of Information Collection: information collection described in BILLING CODE 4210–67–P Training Evaluation Form. Section A. OMB Approval Number: 2577–0271. Type of Request: Extension of A. Overview of Information Collection DEPARTMENT OF HOUSING AND currently approved collection. Title of Information Collection: URBAN DEVELOPMENT Form Number: HUD 50945. Certificate of Housing Counseling: [Docket No. FR–5690–N–07] Description of the need for the Homeownership and Certificate of information and proposed use: Housing Counseling: Home Retention. 60-Day Notice of Proposed Information Executive Order 13571, ‘‘Streamlining OMB Approval Number: 2502–New. Collection: Training Evaluation Form Service Delivery and Improving Type of Request (i.e. new, revision or Customer Service’’ states ‘‘The public extension of currently approved AGENCY: Office of the Assistance deserves competent, efficient, and collection): New collection. Secretary for Public and Indian responsive service from the Federal Form Number: 9911, 9912. Housing, HUD. Government. Executive departments Description of the need for the ACTION: Notice. and agencies (agencies) must information and proposed use: continuously evaluate their performance SUMMARY: HUD is seeking approval from Counseling certificates will provide in meeting this standard and work to the Office of Management and Budget proof to lenders and other interested improve it. Executive Order 12862 (OMB) for the information collection parties that clients have received (Setting Customer Service Standards), described below. In accordance with the counseling from a HUD-approved issued on September 11, 1993, requires Paperwork Reduction Act, HUD is counseling agency on the subject matter, agencies that provide significant requesting comment from all interested either homeownership or home services directly to the public to identify parties on the proposed collection of retention counseling. The certificates and survey their customers, establish information. The purpose of this notice may be required to access certain loan service standards and track performance is to allow for 60 days of public programs or benefits. against those standards, and benchmark Respondents (i.e. affected public): comment. customer service performance against 8,000. DATES: Comments Due Date: September the best in business. Estimated Number of Respondents: 6, 2013. Individual and Households. To that end, the Office of Public and Estimated Number of Responses: ADDRESSES: Interested persons are Indian Housing (PIH) will use a 832,000. invited to submit comments regarding standardized training assessment Frequency of Response: Quarterly. this proposal. Comments should refer to instrument to evaluate learners’ Average Hours per Response: 15 mins. the proposal by name and/or OMB reactions to training or technical Total Estimated Burdens: 208,000. Control Number and should be sent to: assistance programs. With the Colette Pollard, Reports Management information collected PIH will measure, B. Solicitation of Public Comment Officer, QDAM, Department of Housing evaluate, and compare the performance This notice is soliciting comments and Urban Development, 451 7th Street of its various training programs over from members of the public and affected SW., Room 4176, Washington, DC time. The design of this form follows

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industry-accepted best practices, training. The training consists of pre- stakeholders on major regulatory allowing additional comparisons to requisite computer-based component changes, such as was done for asset other training programs in business and followed by an instructor led management in 2010 and 2011. These government. component. To become familiar with sessions may be held as technical Examples of how the Training the UPCS inspection process and assistance seminars, conferences, or Evaluation Form is currently being used requirements, thereby facilitating and briefings. and will be used are: On-site Core enhancing maintenance of properties And, PIH anticipates launching a Web Curriculum training in Financial and preparation for upcoming contract site dedicated to providing links to Management and Governance training at inspections, public housing agency existing HUD web-based learning in 22 locations in FY 2013. This training (PHA) employees and multifamily materials. will be web-based in the future. To property owners and agents (POAs) are Respondents (i.e., affected public): inspect HUD insured and assisted able to take a computer-based UPCS The training evaluation form will be properties, prospective contract training. completed by members of the public inspectors are required to successfully PIH proposes to use the training form and individuals at state and local complete HUD Uniform Physical in the future for all other training government entities who participate in Condition Standards (UPCS) inspection offered to PIH program participants and a HUD training course.

Burden Hourly Information collection Number of Frequency of Responses hour per Annual cost per Annual cost respondents response per annum response burden hours response

Training Eval. Form ..... 64,180 1 64,180 .033 2,120 $24.10 $51,092

Total ...... 64,180 1 64,180 .033 2,120 24.10 51,092

B. Solicitation of Public Comment DEPARTMENT OF THE INTERIOR 939–5050, or fax: 303–969–6634, or by email to [email protected]. This notice is soliciting comments Office of the Secretary SUPPLEMENTARY INFORMATION: from members of the public and affected parties concerning the collection of [XXXD4523WC DWDFSE000.3V0000 I. Abstract information described in Section A on DS68664000 DP.BCQSO.13DOIC3Y] This notice is for renewal of the following: information collection. Proposed Renewal of Information The Office of Management and Budget (1) Whether the proposed collection Collection; Private Rental Survey of information is necessary for the (OMB) regulations at 5 CFR part 1320, proper performance of the functions of AGENCY: Office of Acquisition and which implement the Paperwork the agency, including whether the Property Management, Office of the Reduction Act of 1995, 44 U.S.C. 3501 information will have practical utility; Secretary, Interior. et seq., require that interested members of the public and affected agencies have (2) The accuracy of the agency’s ACTION: Notice and request for comments. an opportunity to comment on estimate of the burden of the proposed information collection and collection of information; SUMMARY: In compliance with the recordkeeping activities (see 5 CFR (3) Ways to enhance the quality, Paperwork Reduction Act of 1995, the 1320.8 (d)). utility, and clarity of the information to Office of Acquisition and Property Public Law 88–459 authorizes Federal be collected; and Management, Office of the Secretary, agencies to provide housing for Government employees under specified (4) Ways to minimize the burden of Department of the Interior announces the proposed extension of a public circumstances. In compliance with the collection of information on those OMB Circular A–45 (Revised), Rental who are to respond; including through information collection and seeks public comments on the provisions thereof. and Construction of Government the use of appropriate automated DATES: Consideration will be given to all Quarters, a review of private rental collection techniques or other forms of market housing rates is required at least information technology, e.g., permitting comments received by September 6, 2013. once every 5 years to ensure that the electronic submission of responses. rental, utility charges, and charges for HUD encourages interested parties to ADDRESSES: Send your written related services to occupants of submit comment in response to these comments to: Doug Pokorney, Quarters Government Furnished Housing (GFH) questions. Rental Program Manager, 7301 W. are comparable to corresponding Mansfield Ave., Denver, CO 80235, or charges in the private sector. To avoid Authority: Section 3507 of the Paperwork fax to: 303–969–6634, or by email to unnecessary duplication and Reduction Act of 1995, 44 U.S.C. Chapter 35. [email protected]. Individuals inconsistent rental rates, the Department Dated: June 28, 2013. providing comments should reference of the Interior, Office of the Secretary, Merrie Nichols-Dixon, OMB control number 1084–0033, Interior Business Center, conducts ‘‘Private Rental Survey’’. Deputy Director for Office of Policy, Program housing surveys in support of employee and Legislative Initiatives. FOR FURTHER INFORMATION CONTACT: To housing management programs for the [FR Doc. 2013–16304 Filed 7–5–13; 8:45 am] request a copy of the information Departments of the Interior (DOI), collection request, any explanatory Agriculture, Commerce, Homeland BILLING CODE 4210–67–P information and related forms, contact Security, Justice, Transportation, Health Doug Pokorney, Quarters Rental and Human Services, and Veterans Program Manager, 7301 W. Mansfield Affairs. In this survey, two collection Ave., Denver, CO 80235, or phone: 303– forms are used: OS–2000, covering

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‘‘Houses—Apartments—Mobile Homes’’ agencies, including whether the DEPARTMENT OF THE INTERIOR and OS–2001, covering ‘‘Trailer information will have practical utility; Spaces.’’ (b) The accuracy of the agencies’ Fish and Wildlife Service This collection of information estimate of the burden of the collection [FWS–HQ–IA–2013–N150; provides data that helps DOI and the of information and the validity of the FXIA16710900000P5–123–FF09A30000] other Federal agencies to manage GFH methodology and assumptions used; in accordance with the requirements of (c) Ways to enhance the quality, Endangered Species; Marine OMB Circular A–45 (Revised). If this utility, and clarity of the information to Mammals; Receipt of Applications for information were not collected from the be collected; and Permit public, DOI and the other Federal (d) Ways to minimize the burden of AGENCY: agencies required to provide GFH would the collection of information on Fish and Wildlife Service, be required to use professional respondents, including through the use Interior. appraisals of open market rental costs of appropriate automated, electronic, ACTION: Notice of receipt of applications for GFH, again, in accordance with OMB mechanical, or other collection for permit. techniques or other forms of information Circular A–45, but at an increased cost SUMMARY: We, the U.S. Fish and technology. to the taxpayer. Wildlife Service, invite the public to ‘‘Burden’’ means the total time, effort, comment on the following applications II. Data and financial resources expended by to conduct certain activities with (1) Title: Private Rental Survey. persons to generate, maintain, retain, endangered species, marine mammals, OMB Control Number: 1084–0033. disclose, or provide information to or or both. With some exceptions, the Current Expiration Date: September for a Federal agency. This includes the Endangered Species Act (ESA) and 30, 2013. time needed to review instructions; to Marine Mammal Protection Act Type of Review: Information develop, acquire, install, and use (MMPA) prohibit activities with listed Collection Renewal. technology and systems for the purposes species unless Federal authorization is Affected Entities: Individuals or of collecting, validating, and verifying acquired that allows such activities. households, businesses and other for information, processing and profit institutions. maintaining information, and disclosing DATES: We must receive comments or Estimated annual number of and providing information; to train requests for documents on or before respondents: OS–2000: 3,841; OS–2001: personnel and to be able to respond to August 7, 2013. We must receive 200; Total: 4,041. a collection of information, to search requests for marine mammal permit Frequency of responses: Once per data sources, and to complete and public hearings, in writing, at the respondent every fourth year. Note: review the collection of information; address shown in the ADDRESSES section Three or four of 15 total survey regions and to transmit or otherwise disclose by August 7, 2013. are surveyed every year. Therefore a the information. ADDRESSES: Brenda Tapia, Division of respondent may be potentially be All written comments, with names Management Authority, U.S. Fish and surveyed every fourth year, if an and addresses, will be available for Wildlife Service, 4401 North Fairfax individual respondent lives in the same public inspection. If you wish us to Drive, Room 212, Arlington, VA 22203; unit and the exact same unit happens to withhold your personal information, fax (703) 358–2280; or email be surveyed again four years later. In you must prominently state at the [email protected]. addition, if an individual business is a beginning of your comment what FOR FURTHER INFORMATION CONTACT: significant rental property owner or personal information you want us to Brenda Tapia, (703) 358–2104 rental property manager in the withhold. We will honor your request to (telephone); (703) 358–2280 (fax); community they may provide multiple the extent allowable by law. If you wish [email protected] (email). responses in the same survey. to view any comments received, you SUPPLEMENTARY INFORMATION: (2) Annual reporting and may do so by scheduling an recordkeeping burden: Estimated appointment with the point of contact I. Public Comment Procedures burden per response: OS–2000: 8 given in the ADDRESSES section. A valid A. How do I request copies of minutes; OS–2001: 6 minutes. picture identification is required for applications or comment on submitted Average number of estimated annual entry into the Department of the applications? responses: OS–2000: 3,804 (average); Interior. OS–2001: 200 (average). Comments submitted in response to Send your request for copies of Total estimated average annual this notice will be summarized and/or applications or comments and materials reporting: OS–2000: 507 hours; OS– included in the request for OMB concerning any of the applications to 2001: 20 hours, Total: 527 hours. approval of this information collection; the contact listed under ADDRESSES. (3) Description of the need and use of they also will become a matter of public Please include the Federal Register the information: This information record. notice publication date, the PRT- collection provides the data that enables An agency may not conduct or number, and the name of the applicant DOI to determine open market rental sponsor, and a person is not required to in your request or submission. We will costs for GFH. These rates, in turn, respond to, a collection of information not consider requests or comments sent enable DOI and other Federal agencies unless it displays a currently valid to an email or address not listed under to set GFH rental rates in accordance Office of Management and Budget ADDRESSES. If you provide an email with the requirements of OMB Circular control number. address in your request for copies of A–45 (Revised). applications, we will attempt to respond Dated: July 1, 2013. to your request electronically. III. Request for Comments Debra E. Sonderman, Please make your requests or The Departments invite comments on: Director, Office of Acquisition and Property comments as specific as possible. Please (a) Whether the collection of Management. confine your comments to issues for information is necessary for the proper [FR Doc. 2013–16247 Filed 7–5–13; 8:45 am] which we seek comments in this notice, performance of the functions of the BILLING CODE 4310–RK–P and explain the basis for your

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comments. Include sufficient hearing is at the discretion of the Applicant: John Anderson, Houston, information with your comments to Service Director. TX; PRT–09440B allow us to authenticate any scientific or III. Permit Applications The applicant requests renewal of commercial data you include. their captive-bred wildlife registration The comments and recommendations A. Endangered Species under 50 CFR 17.21(g) for the scimitar- that will be most useful and likely to Applicant: University of California, horned oryx (Oryx dammah) to enhance influence agency decisions are: (1) Santa Cruz, CA; PRT–96462A their propagation or survival. This Those supported by quantitative notification covers activities to be information or studies; and (2) Those The applicant requests a permit to import hair and skin punch samples conducted by the applicant over a 5- that include citations to, and analyses year period. of, the applicable laws and regulations. from four captive-bred Chimpanzee We will not consider or include in our (Pan troglodytes) and Bonobo (Pan Applicant: John Anderson, Houston, administrative record comments we paniscus) hybrids for the purpose of TX; PRT–09439B scientific research and enhancement of receive after the close of the comment The applicant requests a permit the survival of the species. period (see DATES) or comments authorizing interstate and foreign delivered to an address other than those Applicant: Seneca Park Zoo, Rochester, commerce, export, and cull of excess listed above (see ADDRESSES). NY; PRT–687596 scimitar-horned oryx (Oryx dammah) B. May I review comments submitted by The applicant requests renewal of from the captive herd maintained at others? their captive-bred wildlife registration their facility, for the purpose of under 50 CFR 17.21(g) for the following enhancement of the survival of the Comments, including names and families and species, to enhance their species. This notification covers street addresses of respondents, will be propagation or survival. This activities to be conducted by the available for public review at the street notification covers activities to be applicant over a 5-year period. address listed under ADDRESSES. The conducted by the applicant over a 5- Applicant: Reide Sneddon, Laguna public may review documents and other year period. Hills, CA; PRT–089277 information applicants have sent in support of the application unless our Families The applicant requests renewal of allowing viewing would violate the Felidae (does not include jaguar, margay their captive-bred wildlife registration Privacy Act or Freedom of Information and ocelot) under 50 CFR 17.21(g) for the Galapagos Act. Before including your address, Hominidae tortoise (Chelonoidis nigra) and radiated phone number, email address, or other Hylobatidae tortoise (Astrochelys radiata) to enhance personal identifying information in your Lemuridae their propagation or survival. This comment, you should be aware that Species notification covers activities to be your entire comment—including your conducted by the applicant over a 5- personal identifying information—may Bali starling (Leucopsar rothschildi) year period. be made publicly available at any time. Applicant: Walter Sturgeon, Spring Applicant: University of Pennsylvania, While you can ask us in your comment Hope, NC; PRT–683352 Hahn Laboratory; PRT–08072B to withhold your personal identifying The applicant requests renewal of information from public review, we The applicant requests a permit to their captive-bred wildlife registration import biological samples of wild- cannot guarantee that we will be able to under 50 CFR 17.21(g) for the family do so. caught and captive-born Chimpanzees Gruidae and Bali starling (Leucopsar (Pan troglodytes) for the purpose of rothschildi) to enhance their II. Background scientific research and enhancement of propagation or survival. This the survival of the species. This To help us carry out our conservation notification covers activities to be notification covers activities to be responsibilities for affected species, and conducted by the applicant over a 5- conducted by the applicant over a 5- in consideration of section 10(a)(1)(A) of year period. the Endangered Species Act of 1973, as year period. Applicant: World Class Reptiles, amended (16 U.S.C. 1531 et seq.), and Applicant: John Alexander, Bakersfield, Bastrop, TX; PRT–09757B the Marine Mammal Protection Act of CA; PRT–09161B 1972, as amended (16 U.S.C. 1361 et The applicant requests a captive-bred seq.), along with Executive Order 13576, wildlife registration under 50 CFR The applicant requests a permit to ‘‘Delivering an Efficient, Effective, and 17.21(g) for the dwarf crocodile import a sport-hunted trophy of one Accountable Government,’’ and the (Osteolaemus tetraspis), African male bontebok (Damaliscus pygargus President’s Memorandum for the Heads slender-snouted crocodile (Crocodylus pygargus) culled from a captive herd of Executive Departments and Agencies cataphractus), Yacare caiman (Caiman maintained under the management of January 21, 2009—Transparency and yacare), caiman (Caiman crocodilus), program of the Republic of South Africa, Open Government (74 FR 4685; January broad-snouted caiman (Caiman for the purpose of enhancement of the 26, 2009), which call on all Federal latirostris), Galapagos tortoise survival of the species. agencies to promote openness and (Chelonoidis nigra), radiated tortoise B. Endangered Marine Mammals and transparency in Government by (Astrochelys radiata), Cuban ground Marine Mammals disclosing information to the public, we iguana (Cyclura nubila nubila), Grand invite public comment on these permit Cayman blue iguana (Cyclura lewisi), Applicant: Thomas Postel, Clermont, applications before final action is taken. and Cayman Brac ground iguana FL; PRT–19806A Under the MMPA, you may request a (Cyclura nubila caymanensis) to The applicant requests renewal of the hearing on any MMPA application enhance the species’ propagation or permit to photograph West Indian received. If you request a hearing, give survival. This notification covers manatees (Trichechus manatus) above specific reasons why a hearing would be activities to be conducted by the and underwater for commercial and appropriate. The holding of such a applicant over a 5-year period. educational purposes in the waters of

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the State of Florida. This notification requirements of the Committee and DEPARTMENT OF THE INTERIOR covers activities to be conducted by the permit the Department of the Interior to applicant over a 5-year period. contact a potential member. Nominees Bureau of Land Management Concurrent with publishing this are strongly encouraged to include [LLCA9300000;L14300000;EU0000;CACA notice in the Federal Register, we are supporting letters from employers, 053961] forwarding copies of the above associations, professional organizations, applications to the Marine Mammal and/or other organizations that indicate Notice of Intent To Amend the Commission and the Committee of the support by a meaningful California Desert Conservation Area Scientific Advisors for their review. constituency for the nominee. Plan for the Needles Field Office and Prepare an Associated Environmental Brenda Tapia, FOR FURTHER INFORMATION CONTACT: John Program Analyst/Data Administrator, Branch Mahoney, USGS (206–220–4621). Assessment of Permits, Division of Management Additional information about the NGAC AGENCY: Bureau of Land Management, Authority. and the nomination process is posted on Interior. [FR Doc. 2013–16244 Filed 7–5–13; 8:45 am] the NGAC Web page at www.fgdc.gov/ ACTION: Notice of Intent. BILLING CODE 4310–55–P ngac. SUMMARY: In compliance with the SUPPLEMENTARY INFORMATION: The National Environmental Policy Act of DEPARTMENT OF THE INTERIOR Committee conducts its operations in 1969, as amended (NEPA), and the accordance with the provisions of Federal Land Policy and Management Geological Survey FACA. It reports to the Secretary of the Act of 1976, as amended (FLPMA), the Interior through the Federal Geographic Bureau of Land Management (BLM) Call for Nominations to the National Data Committee (FGDC) and functions Needles Field Office, Needles, Geospatial Advisory Committee solely as an advisory body. The California, intends to prepare an Committee provides recommendations AGENCY: U.S. Geological Survey, amendment to the 1980 California and advice to the Department and the Interior. Desert Conservation Area (CDCA) Plan FGDC on policy and management issues ACTION: Call for Nominations. with an associated Environmental related to the effective operation of Assessment (EA) to analyze the sale of SUMMARY: The Department of the Federal geospatial programs. the reversionary interest held by the Interior is seeking nominations to serve The NGAC includes up to 30 on the National Geospatial Advisory United States (U.S.) in 50 acres of land members, selected to generally achieve previously conveyed out of Federal Committee (NGAC). The NGAC is a a balanced representation of the Federal Advisory Committee established ownership and by this notice is viewpoints of the various partners announcing the beginning of the under the authority of the Federal involved in national geospatial Advisory Committee Act (FACA). The scoping process to solicit public activities. NGAC members are comments and identify issues. Committee provides advice and appointed for staggered terms, and DATES: This notice initiates the public recommendations to the Secretary of the approximately one-half of the positions scoping process for the CDCA Plan Interior through the Federal Geographic on the committee will be appointed amendment with an associated EA. Data Committee related to management during this round of appointments. Comments on issues may be submitted of Federal geospatial programs, Nominations will be reviewed by the in writing until August 7, 2013. The development of the National Spatial FGDC and additional information may BLM does not plan to hold any scoping Data Infrastructure, and the be requested from nominees. Final meetings for this plan amendment. In implementation of Office of selection and appointment of committee order to be included in the analysis, all Management and Budget Circular A–16 members will be made by the Secretary comments must be received prior to the and Executive Order 12906. The of the Interior. Individuals who are close of the 30-day scoping period. We Committee reviews and comments upon currently federally registered lobbyists will provide additional opportunities geospatial policy and management are ineligible to serve on all FACA and for public participation as appropriate. issues and provides a forum for views non-FACA boards, committees, or of non-Federal stakeholders in the councils. ADDRESSES: You may submit comments geospatial community. on issues and planning criteria related The Committee meets approximately DATES: Nominations to participate on to the CDCA Plan amendment and 3–4 times per year. Committee members this Committee must be received by associated EA by any of the following will serve without compensation, but August 12, 2013. methods: travel and per diem costs will be • Email: [email protected] ADDRESSES: Send nominations provided by USGS. The USGS will also electronically to • Fax: 760–326–7099 provide necessary support services to • Mail: Raymond Lee, BLM Needles [email protected], or by mail the Committee. Committee meetings are to John Mahoney, U.S. Geological Field Manager, 1303 S. Highway 95, open to the public. Notice of committee Needles, CA 92363 Survey, U.S. Department of the Interior, meetings are published in the Federal 909 First Avenue, Suite 800, Seattle, Documents pertinent to this proposal Register at least 15 days before the date may be examined at the Needles Field WA 98104. Nominations may come of the meeting. The public will have an from employers, associations, Office, 1303 S. U.S. Highway 95, opportunity to provide input at these Needles, CA 92363. professional organizations, or other meetings. geospatial organizations. Nominations FOR FURTHER INFORMATION CONTACT: should include a resume providing an Dated: June 27, 2013. George R. Meckfessel, Planning and adequate description of the nominee’s Ivan DeLoatch, Environmental Coordinator, BLM qualifications, including information Executive Director, Federal Geographic Data Needles Field Office, telephone 760– that would enable the Department of the Committee. 326–7008; address 1303 S. U.S. Interior to make an informed decision [FR Doc. 2013–16261 Filed 7–5–13; 8:45 am] Highway 95, Needles, CA 92363; email regarding meeting the membership BILLING CODE 4311–AM–P [email protected]. You may request

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to have your name added to the BLM’s Plan, as amended, and a plan 2. Issues to be resolved through policy mailing list. Further information is also amendment is required to process a or administrative action; or available online at the Needles BLM direct sale. The purpose of the public 3. Issues beyond the scope of this plan Field Office Web site: http:// scoping process is to determine relevant amendment. www.blm.gov/ca/st/en/fo/needles.html. issues that will influence the scope of The BLM will provide an explanation Persons who use a the environmental analysis, including in the EA as to why an issue was placed telecommunications device for the deaf alternatives, and guide the planning in category two or three. The public is (TDD) may call the Federal Information process. also encouraged to help identify any Relay Service (FIRS) at 1–800–877–8339 The BLM anticipates that the EA will management questions and concerns to contact the above individual during consider both a plan amendment and that should be addressed in the plan normal business hours. The FIRS is possible subsequent sales of the Federal amendment. The BLM will work available 24 hours a day, 7 days a week, reversionary interest and has identified collaboratively with interested parties to to leave a message or question with the local land uses and input from local identify the management decisions that above individual. You will receive a governments as the primary preliminary are best suited to local, regional, and reply during normal business hours. issue of concern. The BLM anticipates national needs and concerns. SUPPLEMENTARY INFORMATION: This that the EA will include, at a minimum, Before including your address, phone document provides notice that the BLM input from the disciplines of land use number, email address, or other Needles Field Office, Needles, planning, biology, and archaeology. personal identifying information in your California, intends to prepare an This plan amendment will be limited to comment, you should be aware that amendment to the 1980 CDCA Plan with an analysis of whether the reversionary your entire comment—including your an associated EA; announces the interest in the land described above personal identifying information—may beginning of the scoping process; and meets the criteria for sale under Section be made publicly available at any time. seeks public input on issues and 203 of FLPMA, which are the planning While you can ask us in your comment planning criteria. The planning area is criteria for this amendment. to withhold your personal identifying located in San Bernardino County, You may submit comments on issues information from public review, we California, and encompasses the and planning criteria in writing to the cannot guarantee that we will be able to reversionary interest held by the U.S. in BLM using one of the methods listed in do so. 50 acres of land previously conveyed the ADDRESSES section above. To be Authority: 40 CFR 1501.7 and 43 CFR out of Federal ownership. The BLM most helpful, your comments should be 1610.2. anticipates receiving requests from the submitted by the close of the 30-day Cynthia Staszak, current owners to purchase the scoping period. reversionary interest held by the U.S. in Associate Deputy State Director, Resources The BLM will use its fulfillment of California. portions of the following described the NEPA public participation [FR Doc. 2013–16276 Filed 7–5–13; 8:45 am] land: requirements to assist the agency in satisfying the public involvement BILLING CODE 4310–40–P San Bernardino Meridian requirements under Section 106 of the T. 9 N., R. 23 E., National Historic Preservation Act DEPARTMENT OF THE INTERIOR Sec. 31, NWNENE and NWNE. (NHPA) (16 U.S.C. 470(f)) pursuant to Containing 50 acres in San Bernardino 36 CFR 800.2(d)(3). The information Bureau of Land Management County, California. about historic and cultural resources within the area potentially affected by [LLNV952000 L14200000.BJ0000 241A; 13– The land described above was 08807; MO# 4500052367; TAS: 14X1109] conveyed in 1966 to the City of Needles the proposed action will assist the BLM under the authority of the Recreation in identifying and evaluating impacts to Filing of Plats of Survey; NV and Public Purposes Act of June 14, such resources in the context of both 1926 (R&PP) for park and recreational NEPA and Section 106 of the NHPA. AGENCY: Bureau of Land Management, purposes. The land is surrounded by The BLM will consult with Indian Interior. private land and is not contiguous to tribes on a government-to-government ACTION: Notice. any other public land. When public basis in accordance with Executive SUMMARY: The purpose of this notice is land is conveyed under the authority of Order 13175 and other policies. Tribal to inform the public and interested State the R&PP, the U.S. retains a reversionary concerns, including impacts on Indian and local government officials of the interest in the land, which could result trust assets and potential impacts to filing of Plats of Survey in Nevada. in title to the land reverting to the U.S. cultural resources, will be given due if the land is not used for the purposes consideration. Federal, State, and local DATES: Effective Dates: Filing is effective for which it was conveyed, or if the land agencies, along with tribes and other at 10:00 a.m. on the dates indicated is sold or transferred without the BLM’s stakeholders that may be interested in or below. approval. The BLM is responsible for affected by the proposed action that the FOR FURTHER INFORMATION CONTACT: monitoring the reversionary interest in BLM is evaluating, are invited to David D. Morlan, Chief, Branch of perpetuity to ensure the land is used for participate in the scoping process and, Geographic Sciences, Bureau of Land the purposes for which it was conveyed. if eligible, may request or be requested Management, Nevada State Office, 1340 Since the land described above was by the BLM to participate in the Financial Blvd., Reno, NV 89502–7147, conveyed in 1966, the BLM has development of the environmental phone: 775–861–6490. Persons who use approved the transfer of title to a analysis as a cooperating agency. a telecommunications device for the portion of the land to the County of San The BLM will evaluate identified deaf (TDD) may call the Federal Bernardino and has approved several issues to be addressed in the plan Information Relay Service (FIRS) at 1– changes in use of the land. The amendment, and will place them into 800–877–8339 to contact the above reversionary interest in the land one of three categories: individual during normal business described above was not specifically 1. Issues to be resolved in the plan hours. The FIRS is available 24 hours a identified for sale in the 1980 CDCA amendment; day, 7 days a week, to leave a message

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or question with the above individual. classifications, the requirement of 800–877–8339 to contact the above You will receive a reply during normal applicable laws, and other segregations individual during normal business business hours. of record, these lands are open to hours. The FIRS is available 24 hours a SUPPLEMENTARY INFORMATION: application, petition and disposal, day, 7 days a week, to leave a message 1. The Supplemental Plat of the including application under the mineral or question with the above individual. following described lands was officially leasing laws. All such valid applications You will receive a reply during normal filed at the Nevada State Office, Reno, received on or before the official filing business hours. Nevada on April 10, 2013: of the Plat of Survey described in Plat SUPPLEMENTARY INFORMATION: A person The supplemental plat, in 1 sheet, of Survey #4, shall be considered as or party who wishes to protest against showing the subdivision of former lot simultaneously filed at that time. this survey must file a written notice 16, section 19, Township 22 South, Applications received thereafter shall be with the Oregon State Director, Bureau Range 60 East, Mount Diablo Meridian, considered in order of filing. of Land Management, stating that they Nevada under Group 923 was accepted The surveys listed above are now the wish to protest. A statement of reasons April 5, 2013. This supplemental plat basic record for describing the lands for for a protest may be filed with the notice was prepared to meet certain all authorized purposes. These surveys of protest and must be filed with the administrative needs of the BLM. have been placed in the open files in the Oregon State Director within thirty days 2. The Plat of Survey of the following BLM Nevada State Office and are after the protest is filed. If a protest described lands was officially filed at available to the public as a matter of against the survey is received prior to the Bureau of Land Management (BLM) information. Copies of the surveys and the date of official filing, the filing will Nevada State Office, Reno, Nevada on related field notes may be furnished to be stayed pending consideration of the April 15, 2013: the public upon payment of the protest. A plat will not be officially filed The plat, in 1 sheet, representing the appropriate fees. until the day after all protests have been dependent resurvey of a portion of the Dated: June 26, 2013. dismissed or otherwise resolved. Before including your address, phone subdivisional lines and the subdivision David D. Morlan, number, email address, or other of section 33, Township 23 South, Chief Cadastral Surveyor, Nevada. Range 64 East, of the Mount Diablo personal identifying information in your [FR Doc. 2013–16309 Filed 7–5–13; 8:45 am] Meridian, Nevada, under Group No. comment, you should be aware that BILLING CODE 4310–HC–P 915, was accepted April 10, 2013. This your entire comment—including your survey was executed to meet certain personal identifying information—may be made publicly available at any time. administrative needs of the BLM. DEPARTMENT OF THE INTERIOR 3. The Plat of Survey of the following While you can ask us in your comment described lands will be officially filed at Bureau of Land Management to withhold your personal identifying the Nevada State Office, Reno, Nevada information from public review, we on the first business day after thirty (30) [LLOR957000–L63100000–HD0000– cannot guarantee that we will be able to 13XL1116AF: HAG13–0232] days from the publication of this notice: do so. This plat, in 3 sheets, representing the Filing of Plats of Survey: Oregon/ Mary J.M. Hartel, dependent resurvey of a portion of a Washington Chief Cadastral Surveyor of Oregon/ portion of the south boundary of Washington. AGENCY: Bureau of Land Management, Township 40 North, Range 31 East; and [FR Doc. 2013–16308 Filed 7–5–13; 8:45 am] Interior. the dependent resurvey of the east BILLING CODE 4310–33–P boundary, a portion of the north ACTION: Notice. boundary and a portion of the subdivisional lines, and the subdivision SUMMARY: The plats of survey of the DEPARTMENT OF THE INTERIOR of certain sections, Township 39 North, following described lands are scheduled Range 31 East, of the Mount Diablo to be officially filed in the Bureau of National Indian Gaming Commission Meridian, Nevada, under Group No. Land Management, Oregon State Office, 807, was accepted June 25, 2013. This Portland, Oregon, 30 days from the date Renewals of Information Collections survey was executed to meet certain of this publication. Under the Paperwork Reduction Act administrative needs of the BLM. Willamette Meridian AGENCY: National Indian Gaming 4. The Plat of Survey of the following Oregon Commission, Interior. described lands will be officially filed at ACTION: Notice of request for comments. the Nevada State Office, Reno, Nevada T. 32 S., R. 1 W., accepted June 14, 2013 on the first business day after thirty (30) T. 15 S., R. 12 E., accepted June 14, 2013 SUMMARY: In compliance with the days from the publication of this notice: T. 38 S., R. 2 W., accepted June 14, 2013 Paperwork Reduction Act of 1995, the This plat, in 1 sheet, representing the ADDRESSES: A copy of the plats may be National Indian Gaming Commission dependent resurvey of portions of the obtained from the Public Room at the (NIGC or Commission) is seeking south and north boundaries and a Bureau of Land Management, Oregon comments on the renewal of portion of the subdivisional lines, the State Office, 333 SW. 1st Avenue, information collections for the following survey of a portion of the subdivisional Portland, Oregon 97204, upon required activities: (i) Compliance and lines, and the subdivision of certain payment. enforcement actions under the Indian sections, Township 38 North, Range 31 FOR FURTHER INFORMATION CONTACT: Kyle Gaming Regulatory Act as authorized by East, of the Mount Diablo Meridian, Hensley, (503) 808–6132, Branch of Office of Management and Budget Nevada, under Group No. 802, was Geographic Sciences, Bureau of Land (OMB) Control Number 3141–0001; (ii) accepted June 25, 2013. This survey was Management, 333 SW. 1st Avenue, approval of tribal ordinances, and executed to meet certain administrative Portland, Oregon 97204. Persons who background investigation and issuance needs of the BLM. use a telecommunications device for the of licenses as authorized by OMB Subject to valid existing rights, the deaf (TDD) may call the Federal Control Number 3141–0003; (iii) provisions of existing withdrawals and Information Relay Service (FIRS) at 1– National Environmental Policy Act

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submissions as authorized by OMB II. Data ordinance, or amendment thereof, to be Control Number 3141–0006; and (iv) Title: Indian Gaming Compliance and approved, including a copy of the issuance to tribes of certificates of self- Enforcement. authorizing resolution by which it was regulation for Class II gaming as OMB Control Number: 3141–0001. enacted by the tribal government, and a authorized by OMB Control Number Brief Description of Collection: The request for approval of the ordinance or 3141–0008. These information Indian Gaming Regulatory Act (IGRA or resolution; (ii) designation of an agent collections all expire on October 31, the Act), 25 U.S.C. 2701 et seq., governs for service of process; (iii) a description 2013. the regulation of gaming on Indian of procedures the tribe will employ in conducting background investigations DATES: Submit comments on or before lands. Although IGRA places primary on primary management officials September 6, 2013. responsibility with the tribes for regulating their Class II gaming (PMOs) and key employees; (iv) a ADDRESSES: Comments can be mailed, description of procedures the tribe will activities, § 2706(b) directs the faxed, or emailed to the attention of: use to issue licenses to PMOs and key Commission to monitor Class II gaming Armando J. Acosta, National Indian employees; (v) copies of all gaming conducted on Indian lands on a Gaming Commission, 1441 L Street regulations; (vi) a copy of any applicable continuing basis. Amongst other actions NW., Suite 9100, Washington, DC tribal-state compact; (vii) a description necessary to carry out the Commission’s 20005. Comments may be faxed to (202) of dispute resolution procedures for statutory duties, the Act authorizes the 632–7066 and may be sent disputes arising between the gaming Commission to access and inspect all electronically to [email protected], subject: public and the tribe or management papers, books, and records relating to PRA renewals. contractor; and (viii) identification of gross revenues of a Class II gaming FOR FURTHER INFORMATION CONTACT: the law enforcement agency that will operation. The Act also requires tribes Armando J. Acosta at (202) 632–7003; take fingerprints and a description of to provide the Commission with annual fax (202) 632–7066 (not toll-free the procedures for conducting criminal independent audits of their gaming numbers). history checks. The Commission also operations, including audits of all requires a tribal ordinance to provide SUPPLEMENTARY INFORMATION: contracts in excess of $25,000. 25 U.S.C. that the tribe will perform background I. Request for Comments 2710(b)(2)(C), (D); 2710(d)(1)(A)(ii). In investigations and issue licenses for accordance with these statutory PMOs and key employees according to You are invited to comment on these mandates, Commission regulations requirements that are as stringent as collections concerning: (i) Whether the require Indian gaming operations to those contained in Commission collections of information are necessary keep and maintain permanent financial regulations. The NIGC Chair will use the for the proper performance of the records, and to submit to the information collected to approve or functions of the agency, including Commission independent audits of their disapprove the ordinance or amendment whether the information will have gaming operations on an annual basis. thereof. practical utility; (ii) the accuracy of the This information collection is Commission regulations also require agency’s estimates of the burdens mandatory and allows the Commission tribes to perform background (including the hours and cost) of the to fulfill its statutory responsibilities investigations and issue licenses for proposed collections of information, under IGRA to regulate Class II gaming PMOs and key employees using certain including the validity of the on Indian lands. information provided by applicants, methodologies and assumptions used; Respondents: Indian tribal gaming such as names, addresses, previous (iii) ways to enhance the quality, utility, operations. employment records, previous and clarity of the information to be Estimated Number of Respondents: relationships with either Indian tribes or collected; (iv) ways to minimize the 1268. the gaming industry, licensing related to burdens of the information collections Estimated Annual Responses: 1268. those relationships, any convictions, on those who are to respond, including Estimated Time per Response: and any other information that a tribe through the use of appropriate Depending on the type of information feels is relevant to the employment of automated, electronic, mechanical, or collection, the range of time can vary the individuals being investigated. other collection techniques or forms of from 20.5 burden hours to 1506.75 Tribes are then required to keep information technology. Please note that burden hours for one item. complete application files. Tribes are an agency may not conduct or sponsor, Frequency of Responses: 1 per year. also required to create and keep and an individual need not respond to, Estimated Total Annual Burden investigative reports, and to submit to a collection of information unless it has Hours on Respondents: 1,065,955.5. the Commission notices of results a valid OMB Control Number. Estimated Total Non-hour Cost (licensing eligibility determinations) on It is the Commission’s policy to make Burden: $50,665,016. PMOs and key employees. Tribes must all comments available to the public for Title: Approval of Class II and Class notify the Commission if they issue or review at the location listed in the III Ordinances, Background do not issue licenses to PMOs and key ADDRESSES section. Before including Investigations, and Gaming Licenses. employees, and if they revoke said your address, phone number, email OMB Control Number: 3141–0003. licenses. The Commission uses this address, or other personal identifying Brief Description of Collection: The information to review the eligibility and information in your comment, you Act sets standards for the regulation of suitability determinations that tribes should be aware that your entire gaming on Indian lands, including make and advises them if it disagrees comment—including your personal requirements for the approval or with any particular determination. identifying information—may be made disapproval of tribal gaming ordinances. These information collections are publicly available at any time. While Section 2705(a)(3) requires the NIGC mandatory and allow the Commission to you may ask in your comment that the Chair to review all Class II and Class III carry out its statutory duties. Commission withhold your personal tribal gaming ordinances. In accordance Respondents: Indian tribal gaming identifying information from public with this statutory provision, operations. review, the Commission cannot Commission regulations require tribes to Estimated Number of Respondents: guarantee that it will be able to do so. submit: (i) A copy of the gaming 1,580.

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Estimated Annual Responses: activities; and an enterprise free of proposes to extend the following 193,751. evidence of criminal or dishonest concession contracts until the dates Estimated Time per Response: activity. The tribe must also have shown: Depending on the type of information adopted and implemented proper collection, the range of time can vary accounting, licensing, and enforcement CONCID Extend until— from 1.0 burden hour to 1,419 burden systems, and conducted the gaming hours for one item. CC–ORCA001–03 ...... December 31, operation on a fiscally or economically 2014. Frequency of Response: Varies. sound basis. Commission regulations CC–DENA005–04 ...... December 31, Estimated Total Annual Burden require a tribe interested in receiving a 2014. Hours on Respondents: 1,392,450. certificate to file with the Commission CC–DENA006–04 ...... December 31, Estimated Total Non-hour Cost a petition generally describing the 2014. Burden: $3,334,176. tribe’s gaming operations, its regulatory CC–DENA008–04 ...... December 31, Title: NEPA Compliance. process, its uses of net gaming revenue, 2014. OMB Control Number: 3141–0006. and its accounting and recordkeeping CC–DENA009–04 ...... December 31, Brief Description of Collection: The systems. The tribe must also provide 2014. National Environmental Policy Act CC–DENA010–04 ...... December 31, copies of various documents in support 2014. (NEPA) requires federal agencies to of the petition. Tribes who have been analyze proposed major federal actions CC–DENA011–04 ...... December 31, issued a certificate of self-regulation are 2014. that significantly affect the quality of the required to submit to the Commission CC–KATM001–08 ...... December 31, human environment. The Commission certain information on an annual basis, 2015. has identified one type of action that it including information that establishes undertakes that requires review under that the tribe continuously meets the DATES: Effective May 1, 2013. NEPA—approving third-party regulatory eligibility and approval FOR FURTHER INFORMATION CONTACT: management contracts for the operation requirements and supporting Deborah Harvey, Acting Chief, of gaming activity under IGRA. documentation that explains how tribal Commercial Services Program, National Depending on the nature of the subject gaming revenues were used in Park Service, 1201 Eye Street NW., 11th contract and other circumstances, accordance with the requirements in 25 Floor, Washington, DC 20005; telephone approval of such management contracts U.S.C. 2710(b)(2)(B). Submission of the (202) 513–7156. may be categorically excluded from petition and supporting documentation SUPPLEMENTARY INFORMATION: NEPA, may require the preparation of Pursuant is voluntary. The Commission will use to 36 CFR 51.23, the National Park an Environmental Assessment (EA), or the information submitted by the tribe may require the preparation of an Service has determined the proposed in determining whether to issue the extensions are necessary to avoid Environmental Impact Statement (EIS). certificate of self-regulation. Once a In any case, the proponents of a interruption of visitor services and has certificate of self-regulation has been taken all reasonable and appropriate management contract will be expected issued, the submission of certain other to submit information to the steps to consider alternatives to avoid information is mandatory. such interruption. Commission and assist in the Respondents: Tribal governments. Dated: May 17, 2013. development of the required NEPA Estimated Number of Respondents: 8. documentation. Estimated Annual Responses: 64. Lena McDowall, Respondents: Tribal governing bodies, Estimated Time per Response: Associate Director, Business Services. management companies. Depending on the information [FR Doc. 2013–16264 Filed 7–5–13; 8:45 am] Estimated Number of Respondents: 3. collection, the range of time can vary BILLING CODE 4312–53–P Estimated Annual Responses: 3. from 0.75 burden hour to 1,940 burden Estimated Time per Response: hours for one item. Depending on whether the response is Frequency of Responses: Varies. DEPARTMENT OF THE INTERIOR an EA or an EIS, the range of time can Estimated Total Annual Burden vary from 2.5 burden hours to 12.0 National Park Service Hours on Respondents: 4,130. burden hours for one item. Estimated Total Non-hour Cost [NPS–NCR–NACA–12572; PPNCNCROL0, Frequency of Response: Varies. PPMPSPD1Y.M000] Estimated Total Annual Burden Burden: $172,450. Hours on Respondents: 26.5. Dated: July 1, 2013. Notice of Meeting, National Capital Estimated Total Non-hour Cost Christinia J. Thomas, Memorial Advisory Commission Burden: $14,846,686. Deputy Chief of Staff. AGENCY: National Park Service, Interior. Title: Issuance of Certificates of Self- [FR Doc. 2013–16179 Filed 7–5–13; 8:45 am] Regulation to Tribes for Class II Gaming. ACTION: Notice of meeting. BILLING CODE 7565–01–P OMB Control Number: 3141–0008. Brief Description of Collection: The SUMMARY: This notice sets forth the date of the National Capital Memorial Act allows any Indian tribe that has DEPARTMENT OF THE INTERIOR conducted Class II gaming for at least Advisory Commission. three years to petition the Commission [NPS–CONC–ABSV–13034; DATES: The public meeting of the for a certificate of self-regulation for its PPMVSCS1Y.Y00000, PPWOBSADC0] National Capital Memorial Advisory Class II gaming operation(s). The Commission will be held on Tuesday, Notice of Extension of Concession July 23, 2013, at 1:00 p.m. (EST). Commission will issue the certificate if Contracts it determines that the tribe has ADDRESSES: The Commission members conducted its gaming activities in a AGENCY: National Park Service, Interior. will meet in the National Building Museum, Room 312, 401 F Street NW., manner that has: Resulted in an ACTION: Public Notice. effective and honest accounting of all Washington, DC 20001. revenues; a reputation for safe, fair, and SUMMARY: The National Park Service FOR FURTHER INFORMATION CONTACT: Mr. honest operation of the gaming hereby gives public notice that it Glenn DeMarr by telephone at (202)

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619–7025 or by email at (c) H.R. 318, a proposal to authorize maintenance, and contract [email protected], or Mr. Scott a Wall of Remembrance as part of the specifications. Simmons by telephone at (202) 619– Korean War Veterans Memorial. The publication of this notice opens 7097 or by email at (d) H. R. 2395, a proposal to amend a period for public comment on the [email protected]. Information is the Commemorative Works Act to Consent Decree. Comments should be also available at the Commission’s Web provide for the display of donor addressed to the Assistant Attorney site, http://parkplanning.nps.gov/ contribution acknowledgments at General, Environment and Natural ncmac. memorials authorized under the Commemorative Works Act. Resources Division, and should refer to SUPPLEMENTARY INFORMATION: The United States v. Kansas Department of Commission was established by Public (4) Other Business. The meeting will begin at 1:00 p.m. Transportation, D.J. Ref. No. 90–5–1–1– Law 99–652, the Commemorative Works 10420. All comments must be submitted Act (40 U.S.C. Chapter 89 et seq.), to and is open to the public. Persons who no later than thirty (30) days after the advise the Secretary of the Interior (the wish to file a written statement or testify Secretary) and the Administrator, at the meeting or who want further publication date of this notice. General Services Administration, (the information concerning the meeting Comments may be submitted either by Administrator) on policy and may contact Mr. DeMarr or Mr. email or by mail: procedures for establishment of, and Simmons. Before including your address, phone number, email address, To submit proposals to establish, commemorative comments: Send them to: works in the District of Columbia and its or other personal identifying environs, as well as such other matters information in your comment, you By email ... pubcomment- as it may deem appropriate concerning should be aware that your entire [email protected]. commemorative works. comment—including your personal By mail ..... Assistant Attorney General, The Commission examines each identifying information—may be made U.S. DOJ—ENRD, memorial proposal for conformance to publicly available at any time. While P.O. Box 7611, the Commemorative Works Act, and you can ask us in your comment to Washington, DC 20044–7611. makes recommendations to the withhold your personal identifying Secretary and the Administrator and to information from public review, we During the public comment period, Members and Committees of Congress. cannot guarantee that we will be able to the Consent Decree may be examined The Commission also serves as a source do so. and downloaded at this Justice of information for persons seeking to Dated: June 27, 2013. Department Web site: http:// establish memorials in Washington, DC, Stephen E. Whitesell, www.usdoj.gov/enrd/ and its environs. _ The members of the Commission are Regional Director, National Capital Region. Consent Decrees.html. We will provide as follows: [FR Doc. 2013–16267 Filed 7–5–13; 8:45 am] a paper copy of the Consent Decree upon written request and payment of Director, National Park Service BILLING CODE 4310–DL–P Administrator, General Services reproduction costs. Please mail your Administration request and payment to: Consent Decree Chairman, National Capital Planning DEPARTMENT OF JUSTICE Library, U.S. DOJ—ENRD, P.O. Box Commission 7611, Washington, DC 20044–7611. Notice of Lodging of Proposed Chairman, Commission of Fine Arts Please enclose a check or money order Consent Decree Under the Clean Water Mayor of the District of Columbia for $15.25 (25 cents per page Architect of the Capitol Act Chairman, American Battle Monuments reproduction cost) payable to the United Commission On July 1, 2013, the Department of States Treasury. Justice lodged a proposed consent Secretary of Defense Robert E. Maher, Jr., The Commission will consider decree with the United States District Court for the District of Kansas in the Assistant Section Chief, Environmental informational items and memorial Enforcement Section, Environment and legislation introduced in the 113th lawsuit entitled United States v. Kansas Department of Transportation, Civil Natural Resources Division. Congress: [FR Doc. 2013–16282 Filed 7–5–13; 8:45 am] (1) Memorial to President John Adams Action No. 13–cv–04069. and his Legacy—further review of The consent decree resolves the BILLING CODE 4410–15–P Freedom Plaza in Washington, DC, as United States’ complaint for civil the preferred site for the memorial penalties and injunctive relief against (Action Item). the Kansas Department of (2) Memorial to Slaves and Free Black Transportation (‘‘KDOT’’) relating to Persons who Served in the American four separate road-building projects. Revolution—preliminary discussion of The complaint alleged violations of site considerations (Informational Section 301(a) and 402 of the Clean Presentation). Water Act (‘‘CWA’’), which prohibits (3) Legislation introduced in the the discharge of pollutants to waters of 113th Congress (Action Items). the United States unless authorized by (a) S. 704 and H.R. 620, proposals to an NPDES permit. Under the terms of authorize a Rachel Carson Trail in the the settlement, KDOT will pay a civil District of Columbia. penalty of $477,500 to the United States. (b) H.R. 222, a proposal to authorize KDOT will also implement a variety of the World War I Memorial Foundation injunctive relief measures, which are to establish a National World War I above and beyond what is required by Memorial on the National Mall in the their NPDES construction storm water District of Columbia. permit regarding personnel, training,

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NUCLEAR REGULATORY they make available the appropriate regulations in 10 CFR 2.202, 10 CFR COMMISSION documentation), have satisfied the AEA Parts 30 and 73, IT IS HEREBY fingerprinting requirement and need not ORDERED, effective immediately, that [EA–13–041; NRC–2013–0145] be fingerprinted again. Therefore, in all licensees identified in Attachment 1 In the Matter of Licensee Identified In accordance with Section 149 of the AEA to this order and all other persons who Attachment 1 and All Other Persons the Commission is imposing additional seek or obtain access to safeguards Who Seek or Obtain Access to requirements for access to SGI, as set information, as described above, shall Safeguards Information Described forth by this Order, so that affected comply with the requirements set forth Herein; Order Imposing Fingerprinting licensees can obtain and grant access to in this order. and Criminal History Records Check SGI. This Order also imposes A. 1. No person may have access to Requirements for Access to requirements for access to SGI by any SGI unless that person has a need-to- 3 Safeguards Information (Effective person, from any person, whether or know the SGI, has been fingerprinted or Immediately) not a Licensee, Applicant, or Certificate who has a favorably-decided FBI Holder of the Commission or Agreement identification and criminal history I States. records check, and satisfies all other The Licensee identified in II applicable requirements for access to Attachment 1 1 to this Order, holds a SGI. Fingerprinting and the FBI The Commission has broad statutory license issued in accordance with the identification and criminal history authority to protect and prohibit the Atomic Energy Act (AEA) of 1954, as records check are not required, unauthorized disclosure of SGI. Section amended, by the U.S. Nuclear however, for any person who is relieved 147 of the AEA grants the Commission Regulatory Commission (NRC) or an from that requirement by 10 CFR 73.59 explicit authority to issue such Orders Agreement State, authorizing them to (77 FR 34206 (June 11, 2012)), or who as necessary to prohibit the engage in an activity subject to has a favorably-decided U.S. unauthorized disclosure of SGI. regulation by the Commission or Government criminal history records Furthermore, Section 149 of the AEA check within the last five (5) years, or Agreement States. In accordance with requires fingerprinting and an FBI Section 149 of the AEA, fingerprinting who has an active Federal security identification and a criminal history clearance, provided in the latter two and a Federal Bureau of Investigation records check of each individual who (FBI) identification and criminal history cases that the appropriate seeks access to SGI. In addition, no documentation is made available to the records check are required of any person person may have access to SGI unless Licensee’s NRC-approved reviewing who is to be permitted to have access to the person has an established need-to- 2 official described in paragraph III.C.2 of Safeguards Information (SGI). The know the information and satisfies the this Order. NRC’s implementation of this trustworthy and reliability requirements 2. No person may have access to any requirement cannot await the described in Attachment 3 to Order EA– SGI if the NRC has determined, based completion of the SGI rulemaking, 13–040 (NRC–2013–0144). which is underway. Although the AEA In order to provide assurance that the on fingerprinting and an FBI permits the Commission by rule to Licensees identified in Attachment 1 to identification and criminal history except certain categories of individuals this Order are implementing appropriate records check, that the person may not from the fingerprinting requirement, measures to comply with the have access to SGI. which the Commission has done (see 10 fingerprinting and criminal history B. No person may provide SGI to any CFR 73.59, 77 FR 34206 (June 11, 2012), records check requirements for access to other person except in accordance with it is unlikely that licensee employees or SGI, all Licensees identified in Condition III.A. above. Prior to others are excepted from the Attachment 1 to this Order shall providing SGI to any person, a copy of fingerprinting requirement by the implement the requirements of this this Order shall be provided to that ‘‘fingerprinting relief’’ rule. Individuals Order. In addition, pursuant to 10 CFR person. relieved from fingerprinting and 2.202, I find that in light of the common C. All Licensees identified in criminal history records checks under defense and security matters identified Attachment 1 to this Order shall comply the relief rule include Federal, State, above, which warrant the issuance of with the following requirements: and local officials and law enforcement this Order, the public health, safety and 1. The Licensee shall, within twenty personnel; Agreement State inspectors interest require that this Order be (20) days of the date of this Order, who conduct security inspections on effective immediately. establish and maintain a fingerprinting behalf of the NRC; members of Congress program that meets the requirements of and certain employees of members of III Attachment 2 to this Order. Congress or Congressional Committees, Accordingly, pursuant to Sections 81, 2. The Licensee shall, within twenty and representatives of the International 147, 149, 161b, 161i, 161o, 182 and 186 (20) days of the date of this Order, Atomic Energy Agency (IAEA) or certain of the Atomic Energy Act of 1954, as submit the fingerprints of one (1) foreign government organizations. In amended, and the Commission’s individual who (a) the Licensee addition, individuals who have a nominates as the ‘‘reviewing official’’ favorably-decided U.S. Government 3 Person means (1) any individual, corporation, for determining access to SGI by other partnership, firm, association, trust, estate, public individuals, and (b) has an established criminal history records check within or private institution, group, government agency the last five (5) years, or individuals other than the Commission or the U.S. Department need-to-know the information and has who have active Federal security of Energy (DOE), except that the DOE shall be been determined to be trustworthy and clearances (provided in either case that considered a person with respect to those facilities reliable in accordance with the of the DOE specified in section 202 of the Energy requirements described in Attachment 3 Reorganization Act of 1974 (88 Stat. 1244), any 1 Attachment 1 contains sensitive information State or any political subdivision of, or any political to Order EA–13–040. The NRC will and will not be released to the public. entity within a State, any foreign government or determine whether this individual (or 2 Safeguards Information is a form of sensitive, nation or any political subdivision of any such any subsequent reviewing official) may unclassified, security-related information that the government or nation, or other entity; and (2) any have access to SGI and, therefore, will Commission has the authority to designate and legal successor, representative, agent, or agency of protect under section 147 of the AEA. the foregoing. be permitted to serve as the Licensee’s

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reviewing official.4 The Licensee may, Licensee relies and the reasons as to Meta System Help Desk will not be able at the same time or later, submit the why the Order should not have been to offer assistance in using unlisted fingerprints of other individuals to issued. If a person other than the software. whom the Licensee seeks to grant access Licensee requests a hearing, that person If a participant is electronically to SGI or designate an additional shall set forth with particularity the submitting a document to the NRC in reviewing official(s). Fingerprints shall manner in which his interest is accordance with the E-Filing rule, the be submitted and reviewed in adversely affected by this Order and participant must file the document accordance with the procedures shall address the criteria set forth in 10 using the NRC’s online, Web-based described in Attachment 2 of this Order. CFR 2.309(d). submission form. In order to serve 3. The Licensee shall, in writing, All documents filed in NRC documents through EIE, users will be within twenty (20) days of the date of adjudicatory proceedings, including a required to install a Web browser plug- this Order, notify the Commission, (1) if request for hearing, a petition for leave in from the NRC Web site. Further it is unable to comply with any of the to intervene, any motion or other information on the Web-based requirements described in this Order, document filed in the proceeding prior submission form, including the including Attachment 2 to this Order, or to the submission of a request for installation of the Web browser plug-in, (2) if compliance with any of the hearing or petition to intervene, and is available on the NRC’s public Web requirements is unnecessary in its documents filed by interested site at http://www.nrc.gov/site-help/e- specific circumstances. The notification governmental entities participating submittals.html. shall provide the Licensee’s justification under 10 CFR 2.315(c), must be filed in Once a participant has obtained a for seeking relief from or variation of accordance with the NRC E-Filing rule digital ID certificate and a docket has any specific requirement. (72 FR 49139, August, 28, 2007). The E- been created, the participant can then Licensee responses to C.1., C.2., and Filing process requires participants to submit a request for a hearing or C.3. above shall be submitted to the submit and serve all adjudicatory petition for leave to intervene. Director, Office of Federal and State documents over the internet, or in some Submissions should be in Portable Materials and Environmental cases to mail copies on electronic Document Format (PDF) in accordance Management Programs, U.S. Nuclear storage media. Participants may not with NRC guidance available on the Regulatory Commission, Washington, submit paper copies of their filings NRC public Web site at http:// DC 20555. In addition, Licensee unless they seek an exemption in www.nrc.gov/site-help/e- responses shall be marked as ‘‘Security- accordance with the procedures submittals.html. A filing is considered Related Information—Withhold Under described below. complete at the time the documents are 10 CFR 2.390.’’ To comply with the procedural submitted through the NRC’s E-Filing The Director, Office of Federal and requirements of E-Filing, at least ten system. To be timely, an electronic State Materials and Environmental (10) days prior to the filing deadline the filing must be submitted to the E-Filing Management Programs, may, in writing, participant should contact the Office of system no later than 11:59 p.m. Eastern relax or rescind any of the above the Secretary by email at Time on the due date. Upon receipt of conditions upon demonstration of good [email protected], or by telephone a transmission, the E-Filing system cause by the Licensee. at 301–415–1677, to request (1) a digital time-stamps the document and sends IV ID certificate, which allows the the submitter an email notice participant (or its counsel or confirming receipt of the document. The In accordance with 10 CFR 2.202, the representative) to digitally sign E-Filing system also distributes an email Licensee must, and any other person documents and access the E-Submittal notice that provides access to the adversely affected by this Order may, server for any proceeding in which it is document to the NRC Office of the submit an answer to this Order within participating; and (2) advise the General Counsel and any others who twenty (20) days of the date of this Secretary that the participant will be have advised the Office of the Secretary Order. In addition, the Licensee and any submitting a request or petition for that they wish to participate in the other person adversely affected by this hearing (even in instances in which the proceeding, so that the filer need not Order may request a hearing of this participant or its counsel or serve the document on those Order within twenty (20) days of the representative, already holds an NRC- participants separately. Therefore, date of the Order. Where good cause is issued digital ID certificate). Based upon applicants and other participants (or shown, consideration will be given to this information, the Secretary will their counsel or representative) must extending the time to request a hearing. establish an electronic docket for the apply for and receive a digital ID A request for extension of time must be hearing in this proceeding if the certificate before a hearing request/ made, in writing, to the Director, Office Secretary has not already established an petition to intervene is filed so that they of Federal and State Materials and electronic docket. can obtain access to the document via Environmental Management Programs, Information about applying for a the E-Filing system. U.S. Nuclear Regulatory Commission, digital ID certificate is available on A person filing electronically using Washington, DC 20555, and include a NRC’s public Web site at http:// the agency’s adjudicatory E-Filing statement of good cause for the www.nrc.gov/site-help/e-submittals/ system may seek assistance by extension. apply-certificates.html. System contacting the NRC Meta System Help The answer may consent to this requirements for accessing the E- Desk through the ‘‘Contact Us’’ link Order. If the answer includes a request Submittal server are detailed in NRC’s located on the NRC Web site at http:// for a hearing, it shall, under oath or ‘‘Guidance for Electronic Submission,’’ www.nrc.gov/site-help/e- affirmation, specifically set forth the which is available on the agency’s submittals.html, by email at matters of fact and law on which the public Web site at http://www.nrc.gov/ [email protected], or by a toll- site-help/e-submittals.html. Participants free call at 866–672–7640. The NRC 4 The NRC’s determination of this individual’s may attempt to use other software not Meta System Help Desk is available access to SGI in accordance with the process described in Enclosure 5 to the transmittal letter of listed on the Web site, but should note between 8 a.m. and 8 p.m., Eastern this Order is an administrative determination that that the NRC’s E-Filing system does not Time, Monday through Friday, is outside the scope of this Order. support unlisted software, and the NRC excluding government holidays.

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Participants who believe that they set aside the immediate effectiveness of check within the last five (5) years, or have good cause for not submitting the Order on the ground that the Order, has an active Federal security clearance. documents electronically must file an including the need for immediate Written confirmation from the agency/ exemption request, in accordance with effectiveness, is not based on adequate employer which granted the Federal 10 CFR 2.302(g), with their initial paper evidence but on mere suspicion, security clearance or reviewed the filing requesting authorization to unfounded allegations, or error. criminal history records check must be continue to submit documents in paper In the absence of any request for provided. The Licensee must retain this format. Such filings must be submitted hearing, or written approval of an documentation for a period of three (3) by (1) first class mail addressed to the extension of time in which to request a years from the date the individual no Office of the Secretary of the hearing, the provisions specified in longer requires access to SGI associated Commission, U.S. Nuclear Regulatory Section III above shall be final twenty with the Licensee’s activities. Commission, Washington, DC 20555– (20) days from the date of this Order 4. All fingerprints obtained by the 0001, Attention: Rulemaking and without further order or proceedings. Licensee pursuant to this Order must be Adjudications Staff; or (2) courier, If an extension of time for requesting submitted to the Commission for express mail, or expedited delivery a hearing has been approved, the transmission to the FBI. service to the Office of the Secretary, provisions specified in Section III shall 5. The Licensee shall review the Sixteenth Floor, One White Flint North, be final when the extension expires if a information received from the FBI and 11555 Rockville Pike, Rockville, hearing request has not been received. consider it, in conjunction with the Maryland, 20852, Attention: An answer or a request for hearing shall trustworthy and reliability requirements Rulemaking and Adjudications Staff. not stay the immediate effectiveness of included in Attachment 3 to NRC Order Participants filing a document in this this order. EA–13–040, in making a determination manner are responsible for serving the Dated at Rockville, Maryland, this 27th day whether to grant access to SGI to document on all other participants. of June, 2013. individuals who have a need-to-know Filing is considered complete by first- For the Nuclear Regulatory Commission. the SGI. class mail as of the time of deposit in Brian J. McDermott, 6. The Licensee shall use any the mail, or by courier, express mail, or information obtained as part of a Director, Division of Materials Safety and expedited delivery service upon State Agreements, Office of Federal and State criminal history records check solely for depositing the document with the Materials and Environmental Management the purpose of determining an provider of the service. A presiding Programs. individual’s suitability for access to SGI. officer, having granted an exemption 7. The Licensee shall document the request from using E-Filing, may require Attachment 1: List of Applicable basis for its determination whether to a participant or party to use E-Filing if Materials Licensees Redacted grant access to SGI. the presiding officer subsequently Attachment 2: Requirements for B. The Licensee shall notify the NRC determines that the reason for granting Fingerprinting and Criminal History of any desired change in reviewing the exemption from use of E-Filing no Records Checks of Individuals When officials. The NRC will determine longer exists. Licensee’s Reviewing Official Is whether the individual nominated as Documents submitted in adjudicatory Determining Access to Safeguards the new reviewing official may have proceedings will appear in NRC’s Information access to SGI based on a previously- electronic hearing docket which is obtained or new criminal history check General Requirements available to the public at http:// and, therefore, will be permitted to ehd1.nrc.gov/ehd, unless excluded Licensees shall comply with the serve as the Licensee’s reviewing pursuant to an order of the Commission, requirements of this attachment. official. or the presiding officer. Participants are A. 1. Each Licensee subject to the requested not to include personal provisions of this attachment shall Prohibitions privacy information, such as social fingerprint each individual who is A Licensee shall not base a final security numbers, home addresses, or seeking or permitted access to determination to deny an individual home phone numbers in their filings, Safeguards Information (SGI). The access to SGI solely on the basis of unless an NRC regulation or other law Licensee shall review and use the information received from the FBI requires submission of such information received from the Federal involving: an arrest more than one (1) information. With respect to Bureau of Investigation (FBI) and ensure year old for which there is no copyrighted works, except for limited that the provisions contained in the information of the disposition of the excerpts that serve the purpose of the subject Order and this attachment are case, or an arrest that resulted in adjudicatory filings and would satisfied. dismissal of the charge or an acquittal. constitute a Fair Use application, 2. The Licensee shall notify each A Licensee shall not use information participants are requested not to include affected individual that the fingerprints received from a criminal history check copyrighted materials in their will be used to secure a review of his/ obtained pursuant to this Order in a submission. her criminal history record and inform manner that would infringe upon the If a hearing is requested by the the individual of the procedures for rights of any individual under the First Licensee or a person whose interest is revising the record or including an Amendment to the Constitution of the adversely affected, the Commission will explanation in the record, as specified United States, nor shall the Licensee use issue an Order designating the time and in the ‘‘Right to Correct and Complete the information in any way which place of any hearing. If a hearing is held Information’’ section of this attachment. would discriminate among individuals the issue to be considered at such 3. Fingerprints need not be taken if an on the basis of race, religion, national hearing shall be whether this Order employed individual (e.g., a Licensee origin, sex, or age. should be sustained. employee, contractor, manufacturer, or Pursuant to 10 CFR 2.202(c)(2)(i), the supplier) is relieved from the Procedures for Processing Fingerprint Licensee may, in addition to requesting fingerprinting requirement by 10 CFR Checks a hearing, at the time the answer is filed 73.59, has a favorably-decided U.S. For the purpose of complying with or sooner, move the presiding officer to Government criminal history records this Order, Licensees shall, using an

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appropriate method listed in 10 CFR application(s) for criminal history the personal information from 73.4, submit to the NRC’s Division of records checks, including the FBI unauthorized disclosure. Facilities and Security, Mail Stop TWB– fingerprint record. 2. The Licensee may not disclose the 05B32M, one completed, legible record or personal information collected Right To Correct and Complete standard fingerprint card (Form FD–258, and maintained to persons other than Information ORIMDNRC000Z), or where practicable, the subject individual, his/her other fingerprint records for each Prior to any final adverse representative, or to those who have a individual seeking access to Safeguards determination, the Licensee shall make need to access the information in Information, to the Director of the available to the individual the contents performing assigned duties in the Division of Facilities and Security, of any criminal records obtained from process of determining access to marked for the attention of the the FBI for the purpose of assuring Safeguards Information. No individual Division’s Criminal History Program. correct and complete information. authorized to have access to the Copies of these forms may be obtained Written confirmation by the individual information may re-disseminate the by writing the Office of Information of receipt of this notification must be information to any other individual who Services, U.S. Nuclear Regulatory maintained by the Licensee for a period does not have a need-to-know. Commission, Washington, DC 20555, by of one (1) year from the date of the 3. The personal information obtained calling 630–829–9565, or by email to notification. on an individual from a criminal history [email protected]. Practicable If, after reviewing the record, an record check may be transferred to alternative formats are set forth in 10 individual believes that it is incorrect or another Licensee if the Licensee holding CFR 73.4. The Licensee shall establish incomplete in any respect and wishes to the criminal history record check procedures to ensure that the quality of change, correct, or update the alleged receives the individual’s written request the fingerprints taken results in deficiency, or to explain any matter in to re-disseminate the information the record, the individual may initiate minimizing the rejection rate of contained in his/her file, and the challenge procedures. These procedures fingerprint cards due to illegible or gaining Licensee verifies information include either direct application by the incomplete cards. such as the individual’s name, date of individual challenging the record to the The NRC will review submitted birth, social security number, sex, and agency (i.e., law enforcement agency) fingerprint cards for completeness. Any other applicable physical characteristics that contributed the questioned Form FD–258 fingerprint record for identification purposes. information, or direct challenge as to the containing omissions or evident errors 4. The Licensee shall make criminal accuracy or completeness of any entry will be returned to the Licensee for history records, obtained under this on the criminal history record to the corrections. The fee for processing section, available for examination by an fingerprint checks includes one re- Assistant Director, Federal Bureau of Investigation Identification Division, authorized representative of the NRC to submission if the initial submission is determine compliance with the returned by the FBI because the Washington, DC 20537–9700 (as set forth in 28 CFR 16.30 through 16.34). In regulations and laws. fingerprint impressions cannot be 5. The Licensee shall retain all classified. The one free re-submission the latter case, the FBI forwards the challenge to the agency that submitted fingerprint and criminal history records must have the FBI Transaction Control received from the FBI, or a copy if the Number reflected on the re-submission. the data and requests that agency to verify or correct the challenged entry. individual’s file has been transferred, If additional submissions are necessary, for three (3) years after termination of they will be treated as initial submittals Upon receipt of an official employment or determination of access and will require a second payment of communication directly from the agency to SGI (whether access was approved or the processing fee. that contributed the original Fees for processing fingerprint checks information, the FBI Identification denied). After the required three (3) year are due upon application. Licensees Division makes any changes necessary period, these documents shall be shall submit payment with the in accordance with the information destroyed by a method that will prevent application for processing fingerprints supplied by that agency. The Licensee reconstruction of the information in by corporate check, certified check, must provide at least ten (10) days for whole or in part. cashier’s check, or money order, made an individual to initiate an action [FR Doc. 2013–16288 Filed 7–5–13; 8:45 am] payable to ‘‘U.S. NRC.’’ [For guidance challenging the results of an FBI BILLING CODE 7590–01–P on making electronic payments, contact criminal history records check after the the Facilities Security Branch, Division record is made available for his/her of Facilities and Security, at 301–492– review. The Licensee may make a final NUCLEAR REGULATORY 3531]. Combined payment for multiple SGI access determination based upon COMMISSION applications is acceptable. The the criminal history record only upon [EA–13–040; NRC–2013–0144] application fee (currently $26) is the receipt of the FBI’s ultimate sum of the user fee charged by the FBI confirmation or correction of the record. Order Imposing Requirements for the for each fingerprint card or other Upon a final adverse determination on Protection of Certain Safeguards fingerprint record submitted by the NRC access to SGI, the Licensee shall provide Information (Effective Immediately); In on behalf of a Licensee, and an NRC the individual its documented basis for the Matter of Licensee Identified in processing fee, which covers denial. Access to SGI shall not be Attachment 1 and All Other Persons administrative costs associated with the granted to an individual during the Who Obtain Safeguards Information NRC handling of Licensee fingerprint review process. Described Herein submissions. The Commission will directly notify Licensees who are Protection of Information I subject to this regulation of any fee 1. Each Licensee who obtains a The Licensee, identified in changes. criminal history record on an individual Attachment 1 1 to this Order, holds a The Commission will forward to the pursuant to this Order shall establish submitting Licensee all data received and maintain a system of files and 1 Attachment 1 contains sensitive information from the FBI as a result of the Licensee’s procedures for protecting the record and and will not be released to the public.

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license issued in accordance with the requirements contained in Attachments requirements identified in Attachments Atomic Energy Act of 1954, as amended, 2 and 3 to this Order applicable to the 2 and 3 to this Order. In addition, (AEA) by the U.S. Nuclear Regulatory handling and unauthorized disclosure pursuant to 10 CFR Part 2.202, I find Commission (NRC) or an Agreement of Safeguards Information as serious that in light of the common defense and State, authorizing it to possess, use, and breaches of adequate protection of the security matters identified above, which transfer items containing radioactive public health and safety and the warrant the issuance of this Order, the material quantities of concern. The NRC common defense and security of the public health, safety and interest require intends to issue security Orders to this United States. that this Order be effective immediately. Access to Safeguards Information is licensee in the near future. The Order III will require compliance with specific limited to those persons who have Additional Security Measures to established the need-to-know the Accordingly, pursuant to Sections 81, enhance the security for certain information, are considered to be 147, 161b, 161i, 161o, 182 and 186 of radioactive material quantities of trustworthy and reliable, and meet the the Atomic Energy Act of 1954, as concern. The Commission has requirements of Order EA–13–041. A amended, and the Commission’s determined that these documents will need-to-know means a determination by regulations in 10 CFR 2.202, 10 CFR contain Safeguards Information, will not a person having responsibility for Part 30, 10 CFR Part 32, 10 CFR Part 35, be released to the public, and must be protecting Safeguard Information that a 10 CFR Part 70, and 10 CFR Part 73, it protected from unauthorized disclosure. proposed recipient’s access to is hereby ordered, effective Therefore, the Commission is imposing Safeguards Information is necessary in immediately, that all licensees the requirements, as set forth in the performance of official, contractual, identified in attachment 1 to this order Attachments 2 and 3 to this Order and or licensee duties of employment. and all other persons who produce, in Order EA–13–041 (NRC–2013–0145), The Licensee and all other persons receive, or acquire the additional so that the Licensee can receive these who obtain Safeguards Information security measures identified above documents. This Order also imposes must ensure that they develop, maintain (whether draft or final) or any related requirements for the protection of and implement strict policies and safeguards information shall comply Safeguards Information in the hands of procedures for the proper handling of with the requirements of attachments 2 any person,2 whether or not a licensee Safeguards Information to prevent and 3 to this order. of the Commission, who produces, unauthorized disclosure, in accordance The Director, Office of Federal and receives, or acquires Safeguards with the requirements in Attachments 2 State Materials and Environmental Information. and 3 to this Order. The Licensee must Management Programs, may, in writing, ensure that all contractors whose relax or rescind any of the above II employees may have access to conditions upon demonstration of good The Commission has broad statutory Safeguards Information either adhere to cause by the licensee. the licensee’s policies and procedures authority to protect and prohibit the IV unauthorized disclosure of Safeguards on Safeguards Information or develop, In accordance with 10 CFR 2.202, the Information. Section 147 of the AEA or maintain and implement their own Licensee must, and any other person grants the Commission explicit acceptable policies and procedures. The adversely affected by this Order may, authority to ‘‘. . . issue such orders, as Licensee remains responsible for the submit an answer to this Order within necessary to prohibit the unauthorized conduct of their contractors. The twenty (20) days of the date of this disclosure of safeguards information policies and procedures necessary to Order. In addition, the Licensee and any . . . .’’ This authority extends to ensure compliance with applicable requirements contained in Attachments other person adversely affected by this information concerning the security 2 and 3 to this Order must address, at Order may request a hearing of this measures for the physical protection of a minimum, the following: the general Order within twenty (20) days of the special nuclear material, source performance requirement that each date of the Order. Where good cause is material, and byproduct material. person who produces, receives, or shown, consideration will be given to Licensees and all persons who produce, acquires Safeguards Information shall extending the time to request a hearing. receive, or acquire Safeguards ensure that Safeguards Information is A request for extension of time must Information must ensure proper protected against unauthorized be made, in writing, to the Director, handling and protection of Safeguards disclosure; protection of Safeguards Office of Federal and State Materials Information to avoid unauthorized Information at fixed sites, in use and in and Environmental Management disclosure in accordance with the storage, and while in transit; Programs, U.S. Nuclear Regulatory specific requirements for the protection correspondence containing Safeguards Commission, Washington, DC 20555– of Safeguards Information contained in Information; access to Safeguards 0001, and include a statement of good Attachments 2 and 3 to this Order. The Information; preparation, marking, cause for the extension. Commission hereby provides notice that reproduction and destruction of The answer may consent to this it intends to treat violations of the documents; external transmission of Order. If the answer includes a request documents; use of automatic data for a hearing, it shall, under oath or 2 Person means (1) any individual, corporation, partnership, firm, association, trust, estate, public processing systems; removal of the affirmation, specifically set forth the or private institution, group, government agency Safeguards Information category; the matters of fact and law on which the other than the Commission or the U.S. Department need-to-know the information; and Licensee relies and the reasons as to of Energy (DOE), except that the DOE shall be background checks to determine access why the Order should not have been considered a person with respect to those facilities of the DOE specified in section 202 of the Energy to the information. issued. If a person other than the Reorganization Act of 1974 (88 Stat. 1244), any In order to provide assurance that the Licensee requests a hearing, that person State or any political subdivision of, or any political Licensee is implementing prudent shall set forth with particularity the entity within a State, any foreign government or measures to achieve a consistent level of manner in which his interest is nation or any political subdivision of any such government or nation, or other entity; and (2) any protection to prohibit the unauthorized adversely affected by this Order and legal successor, representative, agent, or agency of disclosure of Safeguards Information, shall address the criteria set forth in 10 the foregoing. the Licensee shall implement the CFR 2.309(d).

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All documents filed in NRC documents through Electronic by: (1) First class mail addressed to the adjudicatory proceedings, including a Information Exchange, users will be Office of the Secretary of the request for hearing, a petition for leave required to install a Web browser plug- Commission, U.S. Nuclear Regulatory to intervene, any motion or other in from the NRC Web site. Further Commission, Washington, DC 20555– document filed in the proceeding prior information on the Web-based 0001, Attention: Rulemaking and to the submission of a request for submission form, including the Adjudications Staff; or (2) courier, hearing or petition to intervene, and installation of the Web browser plug-in, express mail, or expedited delivery documents filed by interested is available on the NRC’s public Web service to the Office of the Secretary, governmental entities participating site at http://www.nrc.gov/site-help/e- Sixteenth Floor, One White Flint North, under 10 CFR 2.315(c), must be filed in submittals.html. 11555 Rockville Pike, Rockville, accordance with the NRC E-Filing rule Once a participant has obtained a Maryland, 20852, Attention: (72 FR 49139, August, 28, 2007). The E- digital ID certificate and a docket has Rulemaking and Adjudications Staff. Filing process requires participants to been created, the participant can then Participants filing a document in this submit and serve all adjudicatory submit a request for a hearing or manner are responsible for serving the documents over the internet, or in some petition for leave to intervene. document on all other participants. cases to mail copies on electronic Submissions should be in Portable Filing is considered complete by first- storage media. Participants may not Document Format (PDF) in accordance class mail as of the time of deposit in submit paper copies of their filings with NRC guidance available on the the mail, or by courier, express mail, or unless they seek an exemption in NRC public Web site at http:// expedited delivery service upon accordance with the procedures www.nrc.gov/site-help/e- depositing the document with the described below. submittals.html. A filing is considered provider of the service. A presiding To comply with the procedural complete at the time the documents are officer, having granted an exemption requirements of E-Filing, at least ten submitted through the NRC’s E-Filing request from using E-Filing, may require (10) days prior to the filing deadline, the system. To be timely, an electronic a participant or party to use E-Filing if participant should contact the Office of filing must be submitted to the E-Filing the presiding officer subsequently the Secretary by email at system no later than 11:59 p.m. Eastern determines that the reason for granting [email protected], or by telephone Time on the due date. Upon receipt of the exemption from use of E-Filing no at (301) 415–1677, to request (1) a a transmission, the E-Filing system longer exists. digital identification (ID) certificate, time-stamps the document and sends Documents submitted in adjudicatory which allows the participant (or its the submitter an email notice proceedings will appear in NRC’s counsel or representative) to digitally confirming receipt of the document. The electronic hearing docket which is sign documents and access the E- E-Filing system also distributes an email available to the public at http:// Submittal server for any proceeding in notice that provides access to the ehd1.nrc.gov/ehd/, unless excluded which it is participating; and (2) advise document to the NRC Office of the pursuant to an order of the Commission, the Secretary that the participant will be General Counsel and any others who or the presiding officer. Participants are submitting a request or petition for have advised the Office of the Secretary requested not to include personal hearing (even in instances in which the that they wish to participate in the privacy information, such as social participant, or its counsel or proceeding, so that the filer need not security numbers, home addresses, or representative, already holds an NRC- serve the document on those home phone numbers in their filings, issued digital ID certificate). Based upon participants separately. Therefore, unless an NRC regulation or other law this information, the Secretary will applicants and other participants (or requires submission of such establish an electronic docket for the their counsel or representative) must information. With respect to hearing in this proceeding if the apply for and receive a digital ID copyrighted works, except for limited Secretary has not already established an certificate before a hearing request/ excerpts that serve the purpose of the electronic docket. petition to intervene is filed so that they adjudicatory filings and would Information about applying for a can obtain access to the document via constitute a Fair Use application, digital ID certificate is available on the E-Filing system. participants are requested not to include NRC’s public Web site at http:// A person filing electronically using copyrighted materials in their www.nrc.gov/site-help/e-submittals/ the agency’s adjudicatory E-Filing submission. apply-certificates.html. System system may seek assistance by If a hearing is requested by the requirements for accessing the E- contacting the NRC Meta System Help Licensee or a person whose interest is Submittal server are detailed in NRC’s Desk through the ‘‘Contact Us’’ link adversely affected, the Commission will ‘‘Guidance for Electronic Submission,’’ located on the NRC Web site at http:// issue an Order designating the time and which is available on the agency’s www.nrc.gov/site-help/e- place of any hearing. If a hearing is held public Web site at http://www.nrc.gov/ submittals.html, by email at the issue to be considered at such site-help/e-submittals.html. Participants [email protected], or by a toll- hearing shall be whether this Order may attempt to use other software not free call at (866) 672–7640. The NRC should be sustained. listed on the Web site, but should note Meta System Help Desk is available Pursuant to 10 CFR 2.202(c)(2)(i), the that the NRC’s E-Filing system does not between 8 a.m. and 8 p.m., Eastern Licensee may, in addition to requesting support unlisted software, and the NRC Time, Monday through Friday, a hearing, at the time the answer is filed Meta System Help Desk will not be able excluding government holidays. or sooner, move the presiding officer to to offer assistance in using unlisted Participants who believe that they set aside the immediate effectiveness of software. have good cause for not submitting the Order on the ground that the Order, If a participant is electronically documents electronically must file an including the need for immediate submitting a document to the NRC in exemption request, in accordance with effectiveness, is not based on adequate accordance with the E-Filing rule, the 10 CFR 2.302(g), with their initial paper evidence but on mere suspicion, participant must file the document filing requesting authorization to unfounded allegations, or error. using the NRC’s online, Web-based continue to submit documents in paper In the absence of any request for submission form. In order to serve format. Such filings must be submitted hearing, or written approval of an

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extension of time in which to request a period, educational references may be Gallagher; telephone: 301–492–3668; hearing, the provisions specified in used in lieu of employment history. email: [email protected]. For Section III above shall be final twenty The licensee’s background technical questions, contact the (20) days from the date of this Order investigation requirements may be individual(s) listed in the FOR FURTHER without further order or proceedings. satisfied for an individual that has an INFORMATION CONTACT section of this If an extension of time for requesting active Federal security clearance. document. a hearing has been approved, the 2. The licensee shall retain • NRC’s Agencywide Documents provisions specified in Section III shall documentation regarding the Access and Management System be final when the extension expires if a trustworthiness and reliability of (ADAMS): You may access publicly hearing request has not been received. individual employees for three years available documents online in the NRC An answer or a request for hearing shall after the individual’s employment ends. Library at http://www.nrc.gov/reading- not stay the immediate effectiveness of In order for an individual to be rm/adams.html. To begin the search, this order. granted access to Safeguards select ‘‘ADAMS Public Documents’’ and Information, the individual must be then select ‘‘Begin Web-based ADAMS Dated at Rockville, Maryland this 27th day determined to be trustworthy and Search.’’ For problems with ADAMS, of June, 2013. reliable, as described in requirement 1 please contact the NRC’s Public For the Nuclear Regulatory Commission. above, and meet the requirements of Document Room (PDR) reference staff at Brian J. McDermott, NRC Order EA–13–041. 1–800–397–4209, 301–415–4737, or by [FR Doc. 2013–16285 Filed 7–5–13; 8:45 am] Director, Division of Materials Safety and email to [email protected]. Revision State Agreements, Office of Federal and State BILLING CODE 7590–01–P 3 of RG 1.124 and Revision 3 of RG Materials and Environmental Management 1.130 are available in ADAMS under Programs. Accession Nos. ML13141A666 and NUCLEAR REGULATORY ML13141A667, respectively. Attachment 1: List of Applicable COMMISSION • Materials Licensees NRC’s PDR: You may examine and [NRC–2013–0141] purchase copies of public documents at Redacted the NRC’s Public Document Room O1– Attachment 2: Modified Handling Issuance of Regulatory Guide 1.124 F21, One White Flint North, 11555 Requirements for the Protection of and Regulatory Guide 1.130 Rockville Pike, Rockville, Maryland Certain Safeguards Information (SGI– AGENCY: Nuclear Regulatory 20852. M) General Requirement Commission. Regulatory guides are not copyrighted, and NRC approval is not ACTION: Regulatory Guide; Issuance. Redacted required to reproduce them. Attachment 3: Trustworthiness and SUMMARY: The U.S. Nuclear Regulatory FOR FURTHER INFORMATION CONTACT: Reliability Requirements for Commission (NRC) is issuing Revision 3 Hector Rodriguez-Luccioni, Office of Individuals Handling Safeguards of Regulatory Guide (RG) 1.124, Nuclear Regulatory Research, U.S. Information ‘‘Service Limits and Loading Nuclear Regulatory Commission, In order to ensure the safe handling, Combinations for Class 1 Linear-Type Washington, DC 20555–0001; telephone: use, and control of information Supports,’’ and Revision 3 of RG 1.130, 301–251–7685, email: Hector.Rodriguez- designated as Safeguards Information, ‘‘Service Limits and Loading [email protected]. each licensee shall control and limit Combinations for Class 1 Plate-and- SUPPLEMENTARY INFORMATION: access to the information to only those Shell-Type Supports.’’ There are no I. Introduction individuals who have established the substantive changes to these regulatory need-to-know the information, and are guides. The revisions include an update The NRC is issuing a revision to considered to be trustworthy and of the Edition and Addenda of the existing guides in the NRC’s reliable. Licensees shall document the American Society of Mechanical ‘‘Regulatory Guide’’ series. Regulatory basis for concluding that there is Engineers (ASME) Boiler and Pressure guides were developed to describe and reasonable assurance that individuals Vessel Code (B&PVC). Regulatory make available to the public information granted access to Safeguards Guides 1.124 and 1.130 delineates levels methods that are acceptable to the NRC Information are trustworthy and of service limits and appropriate staff for implementing specific parts of reliable, and do not constitute an combinations of loadings associated the agency’s regulations, techniques that unreasonable risk for malevolent use of with normal operation, postulated the staff uses in evaluating specific the information. accidents, and specified seismic events problems or postulated accidents, and The Licensee shall comply with the for the design of Class 1 linear-type data that the staff needs in its review of requirements of this attachment: component and piping supports, and applications for permits and licenses. 1. The trustworthiness and reliability Class 1 plate-and-shell-type component The NRC is issuing Revision 3 of RG of an individual shall be determined and piping supports, respectively. 1.124 (ADAMS Accession No. ML based on a background investigation: ADDRESSES: Please refer to Docket ID 13141A666) and Revision 3 of RG 1.130 (a) The background investigation shall NRC–2013–0141 when contacting the (ADAMS Accession No. ML13141A667) address at least the past three years and, NRC about the availability of as final regulatory guides without an at a minimum, include verification of information regarding these documents. opportunity for public comment, employment, education, and personal You may access information related to because the changes between Revision 2 references. The licensee shall also, to these documents, which the NRC and Revision 3 are non-substantive. The the extent possible, obtain independent possesses and are publicly available, most significant change in Revision 3 of information to corroborate that provided using any of the following methods: both regulatory guides is the approval by the employee (i.e., seeking references • Federal Rulemaking Web site: Go to for use of the 2007 Edition through the not supplied by the individual). http://www.regulations.gov and search 2008 Addenda of the Boiler and (b) If an individual’s employment has for Docket ID NRC–2013–0141. Address Pressure Vessel Code (ASME B&PV been less than the required three-year questions about NRC dockets to Carol Code), Section III, Division 1 (limited to

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the subject matters covered in each do not constitute backfitting nor are FOR FURTHER INFORMATION CONTACT: regulatory guide). The earlier revisions they otherwise inconsistent with the Stephen L. Sharfman, General Counsel, of both guides (Revision 2) approved for issue finality provisions in 10 CFR part at 202–789–6820. use the ASME B&PV Code, 2001 Edition 52. The revisions to these two regulatory SUPPLEMENTARY INFORMATION: through the 2003 Addenda. There were guides also include editorial changes to no changes from the 2001 Edition improve clarity and to provide a new Table of Contents through the 2003 Addenda, to the 2007 standardized format for regulatory I. Introduction Edition through the 2008 Addenda guides, and the approval for use of the II. Background affecting the technical content of either 2007 Edition through the 2008 Addenda III. Contents of Filing of the two regulatory guides. The of the ASME B&PV Code, Section III, IV. Commission Action remaining changes reflected in Revision Division 1. These changes do not fall V. Ordering Paragraph 3 of each regulatory guide are editorial within the kinds of agency actions that I. Introduction in nature, to improve clarity and to constitute backfitting or are subject to On June 28, 2013, the Postal Service provide for a new standardized format limitations in the issue finality filed a notice stating that it has entered for the regulatory guides. Therefore, the provisions of part 52. Accordingly, the into an additional Global Expedited NRC has determined that an NRC did not address the Backfit Rule or opportunity for public comment is not Package Services (GEPS) 3 negotiated issue finality provisions of part 52 for service agreement (Agreement).1 The necessary on Revision 3 of both RG these types of changes. 1.124 and RG 1.130. Postal Service seeks inclusion of the III. Congressional Review Act Agreement within the GEPS 3 product. II. Submitting Suggestions for Id. at 2. Improvement of Regulatory Guides These regulatory guides are rules as defined in the Congressional Review II. Background The NRC typically seeks public Act (5 U.S.C. 801–808). However, the The Commission first approved the comment on a draft version of a Office of Management and Budget has regulatory guide by announcing its addition of a GEPS negotiated service not found them to be major rules as agreement to the competitive product availability for comment in the Federal defined in the Congressional Review Register. However, as explained on page list as a result of consideration of Act. Governors’ Decision No. 08–7 in Docket 7 of NRC Management Directive 6.6 2 ‘‘Regulatory Guides,’’ (ADAMS No. CP2008–5. The Commission later Accession Number ML110330475) the Dated at Rockville, Maryland, this 27th day added GEPS 3 to the competitive of June, 2013. NRC may directly issue a final product list and authorized the regulatory guide without a draft version For the Nuclear Regulatory Commission. agreement filed in Docket No. CP2010– or public comment period if the changes Thomas H. Boyce, 71 to serve as the baseline agreement for Chief, Regulatory Guide Development Branch, comparison of potentially functionally to the regulatory guide are non- 3 substantive. Division of Engineering, Office of Nuclear equivalent agreements. Revision 3 of RG 1.124 and Revision Regulatory Research. The effective date of the Agreement 3 of RG 1.130 are being issued without [FR Doc. 2013–16292 Filed 7–5–13; 8:45 am] will be established by the Postal Service after it has received all regulatory public comment. However, you may at BILLING CODE 7590–01–P any time submit suggestions to the NRC approvals. Id. Attachment 1 at 6. It is set for improvement of existing regulatory to expire on the last day of the month guides or for the development of new which falls one calendar year from the regulatory guides to address new issues. POSTAL REGULATORY COMMISSION effective date. Id. Suggestions can be submitted by the III. Contents of Filing form available online at http:// [Docket No. CP2013–71; Order No. 1770] The Notice includes the following www.nrc.gov/reading-rm/doc- New Postal Product attachments: collections/reg-guides/contactus.html. • Attachment 1—a redacted copy of Suggestions will be considered in future AGENCY: Postal Regulatory Commission. the Agreement; updates and enhancements of the • Attachment 2—a redacted copy of ACTION: Notice. regulatory guide. the certified statement required by 39 III. Backfitting and Issue Finality SUMMARY: The Commission is noticing a CFR 3015.5(c)(2); • Attachment 3—a redacted copy of Issuance of this final regulatory guide recent Postal Service filing concerning the addition of Global Expedited Governors’ Decision No. 08–7, which does not constitute backfitting as establishes prices and classifications for defined in 10 CFR 50.109 (the Backfit Package Services (GEPS) 3 negotiated service agreement to the competitive Global Expedited Package Services Rule) and is not otherwise inconsistent Contracts; and with the issue finality provisions in 10 product list. This notice informs the • public of the filing, invites public Attachment 4—an application for CFR part 52. Revision 3 of RG 1.124 and non-public treatment of materials to be comment, and takes other 1.130 approves for use the 2007 Edition filed under seal. through the 2008 Addenda of the Boiler administrative steps. and Pressure Vessel Code (ASME B&PV DATES: Comments are due: July 8, 2013. 1 Notice of United States Postal Service of Filing Code), Section III, Division 1 (limited to ADDRESSES: Submit comments a Functionally Equivalent Global Expedited the subject matters covered in each electronically via the Commission’s Package Services 3 Negotiated Service Agreement and Application for Non-Public Treatment of regulatory guide). There were no Filing Online system at http:// Materials Filed Under Seal, June 28, 2013 (Notice). changes from the 2001 Edition through www.prc.gov. Those who cannot submit 2 See Order No. 86, Docket No. CP2008–5, Order the 2003 Addenda, to the 2007 Edition comments electronically should contact Concerning Global Expedited Package Services through the 2008 Addenda affecting the the person identified in the FOR Contracts, June 27, 2008. 3 See Order No. 503, Docket Nos. MC2010–28 and technical content of either of the two FURTHER INFORMATION CONTACT CP2010–71, Order Approving Global Expedited regulatory guides. Therefore, the section by telephone for advice on filing Package Services 3 Negotiated Service Agreement, revisions to these two regulatory guides alternatives. July 29, 2010.

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Materials filed under seal include By the Commission. assistance, such as sign language unredacted copies of the Agreement, the Shoshana M. Grove, interpretation or other reasonable certified statement, and supporting Secretary. accommodations, should contact Susan financial workpapers. Id. Attachment 4 [FR Doc. 2013–16266 Filed 7–5–13; 8:45 am] Reingold, Chief Administrative Officer, at 3. The Postal Service filed redacted BILLING CODE 7710–FW–P 202–331–1986, at least 72 hours prior to versions of the financial workpapers as the meeting date. public Excel files. Dated: July 1, 2013. In the Notice, the Postal Service PRIVACY AND CIVIL LIBERTIES Diane Janosek, asserts that the Agreement is OVERSIGHT BOARD functionally equivalent to the GEPS 3 Chief Legal Officer, Privacy and Civil Liberties Oversight Board. baseline agreement, notwithstanding [Notice—PCLOB–2013–04; Docket No. [FR Doc. 2013–16246 Filed 7–5–13; 8:45 am] differences in two of the introductory 2013–0004; Sequence No. 4] paragraphs of the Agreement; revisions BILLING CODE 6820–B3–P to several existing articles; new, deleted, Notice of Meeting and renumbered articles; and addition AGENCY: Privacy and Civil Liberties RAILROAD RETIREMENT BOARD of an Annex 2. Id. at 3–7. The Postal Oversight Board. Service states that these differences affect neither the fundamental service ACTION: Notice of a meeting. Agency Forms Submitted for OMB Review, Request for Comments being offered under the Agreement nor SUMMARY: The Privacy and Civil the Agreement’s fundamental structure. Liberties Oversight Board will conduct SUMMARY: In accordance with the Id. at 7. a public workshop with invited experts, Paperwork Reduction Act of 1995 (44 The Postal Service concludes that the academics and advocacy organizations U.S.C. Chapter 35), the Railroad Agreement is in compliance with the regarding surveillance programs Retirement Board (RRB) is forwarding requirements of 39 U.S.C. 3633 and that operated pursuant to Section 215 of the an Information Collection Request (ICR) the Agreement is functionally USA PATRIOT Act and Section 702 of to the Office of Information and equivalent to the baseline agreement. Id. Foreign Intelligence Surveillance Act. Regulatory Affairs (OIRA), Office of The Postal Service therefore requests DATES: July 9, 2013 at 9:30 a.m.–4:30 Management and Budget (OMB). Our that the Commission add the Agreement ICR describes the information we seek to the GEPS 3 product. Id. p.m. (Eastern Time). Comments: You may submit to collect from the public. Review and IV. Commission Action comments, identified by the docket approval by OIRA ensures that we impose appropriate paperwork burdens. The Commission establishes Docket number in the heading of this document The RRB invites comments on the No. CP2013–71 for consideration of by the following method: proposed collection of information to matters raised by the Notice. Interested • Federal eRulemaking Portal: Go to determine (1) The practical utility of the persons may submit comments on http://www.regulations.gov. Follow the collection; (2) the accuracy of the whether the Postal Service’s filings are on-line instructions for submitting estimated burden of the collection; (3) consistent with 39 U.S.C. 3632, 3633, or comments. ways to enhance the quality, utility, and 3642, 39 CFR part 3015, and subpart B • Written comments may be clarity of the information that is the of 39 CFR part 3020. Comments are due submitted at any time prior to the subject of collection; and (4) ways to no later than July 8, 2013. The public closing of the docket at 11:59 p.m. minimize the burden of collections on portions of the Postal Service’s filing Eastern Time on August 1, 2013. respondents, including the use of can be accessed via the Commission’s All comments will be made publicly automated collection techniques or Web site, http://www.prc.gov. available and posted without change. Do other forms of information technology. Information concerning access to non- not include personal or confidential Comments to the RRB or OIRA must public material is located in 39 CFR part information. contain the OMB control number of the 3007. ADDRESSES: Mayflower Renaissance ICR. For proper consideration of your The Commission appoints Pamela A. Hotel Washington, 1127 Connecticut Thompson to serve as Public comments, it is best if the RRB and Ave. NW., Washington DC 20036. OIRA receive them within 30 days of Representative in the above captioned Facility’s location is near Farragut North proceeding. the publication date. Metro station. Under Section 12 of the Railroad V. Ordering Paragraph FOR FURTHER INFORMATION CONTACT: Retirement Act, the Railroad Retirement It is ordered: Susan Reingold, Chief Administrative Board (RRB) may pay benefits to a 1. The Commission establishes Docket Officer, 202–331–1986. representative payee when an employee, No. CP2013–71 for consideration of the SUPPLEMENTARY INFORMATION: spouse or survivor annuitant is incompetent or is a minor. A matters raised by the Postal Service’s Procedures for Public Participation Notice. representative payee may be a court- 2. Comments by interested persons in See also Federal Register at 78 FR appointed guardian, a statutory this proceeding are due no later than 39021, published on June 28, 2013, for conservator or an individual selected by July 8, 2013. more information on workshop and the the RRB. The procedures pertaining to 3. Pursuant to 39 U.S.C. 505, the submission of comments. Docket the appointment and responsibilities of Commission appoints Pamela A. number for comments is PCLOB–2013– a representative payee are prescribed in Thompson to serve as an officer of the 0004. 20 CFR 266. Commission (Public Representative) to The workshop will be open to the The forms furnished by the RRB to represent the interests of the general public. The Board is contemplating apply for representative payee status, public in this docket. moderated panel discussions with and for securing the information needed 4. The Secretary shall arrange for invited experts, academics, and to support the application follow. RRB publication of this order in the Federal advocacy organizations. Individuals Form AA–5, Application for Register. who plan to attend and require special Substitution of Payee, obtains

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information needed to determine the CFR 266.9 and provides a means for the Type of request: Revision of a selection of a representative payee who representative payee to maintain records currently approved collection will serve in the best interest of the pertaining to the receipt and use of RRB Affected public: Individuals or beneficiary. RRB Form G–478, benefits. The booklet is provided for the households; business or other for profit Statement Regarding Patient’s representative payee’s convenience. The Capability to Manage Benefits, obtains RRB also accepts records that are kept Abstract: Under Section 12 of the information about an annuitant’s by representative payee’s as part of a Railroad Retirement Act, the Railroad capability to manage their own benefits. common business practice. Retirement Board (RRB) may pay The form is completed by the Completion is voluntary. One benefits to a representative payee when annuitant’s personal physician or by a response is requested of each an employee, spouse or survivor medical officer, if the annuitant is in an respondent. annuitant is incompetent or is a minor. institution. It is not required when a Previous Requests for Comments: The The collection obtains information court has appointed an individual or RRB has already published the initial related to the representative payee institution to manage the annuitant’s 60-day notice (78 FR 23599 on April 19, application, supporting documentation funds or, in the absence of such 2013) required by 44 U.S.C. 3506(c)(2). and the maintenance of records appointment, when the annuitant is a That request elicited no comments. pertaining to the receipt and use of minor. The RRB also provides benefits. representative payees with a booklet at Information Collection Request (ICR) the time of their appointment. The Title: Application to Act as Changes proposed: The RRB is booklet, RRB Form RB–5, Your Duties Representative Payee proposing non-burden impacting as Representative Payee-Representative OMB Control Number: 3220–0052 editorial changes to Form AA–5 and the Payee’s Record, advises representative Forms submitted: AA–5, G–478, and RB–5 booklet. No changes are proposed payees of their responsibilities under 20 RB–5 for Form G–478.

THE BURDEN ESTIMATE FOR THE ICR IS AS FOLLOWS:

Annual Time Burden Form No. responses (minutes) (hours)

AA–5 ...... 3,000 ...... 850.0 Individuals ...... 2,250 17 637.5 Institutions ...... 750 ...... 212.5 G–478 ...... 2,000 6 200.0 RB–5 ...... 15,300 ...... 15,300 Individuals ...... 11,475 60 11,475 Institutions ...... 3,825 ...... 3,825

Total ...... 20,300 ...... 16,350

Additional Information or Comments: SECURITIES AND EXCHANGE 23, 2013, and should be accompanied Copies of the forms and supporting COMMISSION by proof of service on the applicant, in documents can be obtained from Dana the form of an affidavit or, for lawyers, Hickman at (312) 751–4981 or [Release No. IC–30585] a certificate of service. Hearing requests [email protected]. should state the nature of the writer’s Notice of Applications for Comments regarding the information interest, the reason for the request, and Deregistration Under Section 8(f) of the the issues contested. Persons who wish collection should be addressed to Investment Company Act of 1940 Charles Mierzwa, Railroad Retirement to be notified of a hearing may request Board, 844 North Rush Street, Chicago, June 28, 2013. notification by writing to the Secretary, Illinois, 60611–2092 or The following is a notice of U.S. Securities and Exchange [email protected] and to the applications for deregistration under Commission, 100 F Street NE., OMB Desk Officer for the RRB, Fax: section 8(f) of the Investment Company Washington, DC 20549–1090. 202–395–6974, Email address: Act of 1940 for the month of June 2013. FOR FURTHER INFORMATION CONTACT: [email protected]. A copy of each application may be Diane L. Titus at (202) 551–6810, SEC, obtained via the Commission’s Web site Charles Mierzwa, Division of Investment Management, by searching for the file number, or for Exemptive Applications Office, 100 F Chief of Information Resources Management. an applicant using the Company name Street NE., Washington, DC 20549– [FR Doc. 2013–16187 Filed 7–5–13; 8:45 am] box, at http://www.sec.gov/search/ 8010. BILLING CODE 7905–01–P search.htm or by calling (202) 551– 8090. An order granting each Glickenhaus Value Portfolios 1996 application will be issued unless the Equity Collection [File No. 811–7423] SEC orders a hearing. Interested persons may request a hearing on any Summary: Applicant, a unit application by writing to the SEC’s investment trust, seeks an order Secretary at the address below and declaring that it has ceased to be an serving the relevant applicant with a investment company. On February 23, copy of the request, personally or by 1999, applicant made a liquidating mail. Hearing requests should be distribution to its shareholders, based received by the SEC by 5:30 p.m. on July on net asset value.

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Filing Dates: The application was applicant made a liquidating fewer than one hundred beneficial filed on February 25, 2013, and distribution to its shareholders, based owners and does not propose to make a amended on June 13, 2013. on net asset value. Expenses of $99,804 public offering of its securities. Applicant’s Address: 546 Fifth Ave., incurred in connection with the Applicant will continue to operate as a New York, NY 10022. liquidation were paid by applicant. private investment fund in reliance on Filing Date: The application was filed section 3(c)(1) of the Act. Empire Builder Tax Free Bond Fund on May 23, 2013. Filing Dates: The application was [File No. 811–3907] Applicant’s Address: 750 North St. filed on May 29, 2013, and amended on Summary: Applicant seeks an order Paul St., Suite 1300, Dallas, TX 75201. June 6, 2013. declaring that it has ceased to be an Applicant’s Address: 85 Broad St., Oppenheimer Transition 2010 Fund investment company. Applicant 24th Floor, New York, NY 10004. [File No. 811–21920] transferred its assets to Neuberger Lord Abbett Stock Appreciation Fund Berman New York Municipal Income Oppenheimer Transition 2015 Fund [File No. 811–9597] Fund and, on March 8, 2013, made a [File No. 811–21921] final distribution to its shareholders Oppenheimer Transition 2020 Fund Summary: Applicant seeks an order based on net asset value. Expenses of [File No. 811–21923] declaring that it has ceased to be an $162,230 incurred in connection with investment company. Applicant the reorganization were paid by Oppenheimer Transition 2030 Fund transferred its assets to Lord Abbett Neuberger Berman Management LLC, [File No. 811–21924] Growth Leaders Fund, a series of Lord the investment adviser to the acquiring Oppenheimer Transition 2050 Fund Abbett Securities Trust, and on March fund. [File No. 811–22150] 22, 2013, made a distribution to its Filing Date: The application was filed shareholders based on net asset value. Oppenheimer Transition 2040 Fund Expenses of $138,196 incurred in on May 30, 2013. [File No. 811–22151] Applicant’s Address: Neuberger connection with the reorganization were Berman Income Funds, 605 Third Ave., Oppenheimer Transition 2025 Fund paid by Lord Abbett & Co. LLC, 2nd Floor, New York, NY 10158. [File No. 811–22152] investment adviser to the applicant. Filing Date: The application was filed Jacob Funds II [File No. 811–7881] Summary: Each applicant seeks an order declaring that it has ceased to be on June 5, 2013. Summary: Applicant seeks an order an investment company. The applicants Applicant’s Address: 90 Hudson St., declaring that it has ceased to be an have transferred their assets to series of Jersey City, NJ 07302. investment company. Applicant Oppenheimer Portfolio Series and, Persimmon Growth Partners Fund LP transferred its assets to Jacob Funds Inc. between October 5, 2012, and November [File No. 811–22457] and, on November 9, 2012, made a final 2, 2012, each applicant made a final Persimmon Growth Partners Investor distribution to its shareholders based on distribution to its shareholders based on Fund [File No. 811–22458] net asset value. Expenses of $372,095 net asset value. Expenses of $39,605, incurred in connection with the $41,694, $45,138, $49,893, $43,318, Summary: Each applicant, a closed- reorganization were paid by applicant $45,271, and $41,549, respectively, end investment company seeks an order and Jacob Asset Management of New incurred in connection with the declaring that it has ceased to be an York LLC, applicant’s investment reorganizations were paid by each investment company. On June 11, 2013, adviser. applicant. each applicant made final liquidating Filing Date: The application was filed Filing Date: The applications were distributions to its shareholders, based on May 24, 2013. filed on May 31, 2013. on net asset value. Expenses of $31,498 Applicant’s Address: 399 Park Ave., Applicants’ Address: 6803 S. Tucson and $52,742, respectively, incurred in 4th Floor, New York, NY 10022. Way, Centennial, CO 80112. connection with the liquidations were paid by each applicant. Salient Alternative Strategies Fund Madison Mosaic Equity Trust [File No. [File No. 811–22388] Filing Dates: The applications were 811–3615] filed on March 11, 2013, and amended Summary: Applicant, a closed-end Summary: Applicant seeks an order on June 21, 2013. investment company, seeks an order declaring that it has ceased to be an Applicants’ Address: 1777 Sentry declaring that it has ceased to be an investment company. The applicant has Pkwy. West, Gwynedd Hall, Suite 102, investment company. Applicant transferred its assets to corresponding Blue Bell, PA 19422. transferred its assets to Salient series of Madison Funds and, on April For the Commission, by the Division of Alternative Strategies I Fund and, on 19, 2013, made a final distribution to its Investment Management, pursuant to March 31, 2013, made a final shareholders based on net asset value. delegated authority. distribution to its shareholders based on Expenses of $176,003 incurred in Elizabeth M. Murphy, net asset value. Expenses of $16,244 connection with the reorganization were Secretary. incurred in connection with the paid by Madison Investment Advisors, [FR Doc. 2013–16218 Filed 7–5–13; 8:45 am] reorganization were paid by applicant. LLC, applicant’s investment adviser. Filing Date: The application was filed Filing Date: The application was filed BILLING CODE 8011–01–P on May 21, 2013. on May 2, 2013. Applicant’s Address: c/o Salient Applicant’s Address: 500 Science Dr., SECURITIES AND EXCHANGE Advisors, L.P., 4265 San Felipe Rd., Madison, WI 53711. COMMISSION Suite 800, Houston, TX 77027. Global Chartist Fund, LLC [File No. Armstrong Associates Inc. [File No. 811–22617] Sunshine Act Meetings 811–1548] Summary: Applicant, a closed-end Notice is hereby given, pursuant to Summary: Applicant seeks an order investment company, seeks an order the provisions of the Government in the declaring that it has ceased to be an declaring that it has ceased to be an Sunshine Act, Public Law 94–409, that investment company. On May 10, 2013, investment company. Applicant has the Securities and Exchange

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Commission will hold a Closed Meeting below, which items have been prepared Exchange proposes to reduce the on Thursday, July 10, 2013 at 4:00 p.m. by the self-regulatory organization. The quantity of free Direct Logical Ports Commissioners, Counsel to the Commission is publishing this notice to from five (5) sessions to two (2) Commissioners, the Secretary to the solicit comments on the proposed rule sessions. The Exchange would assess a Commission, and recording secretaries change from interested persons. monthly fee per logical port for will attend the Closed Meeting. Certain Members and non-Members that I. Self-Regulatory Organization’s staff members who have an interest in maintain three or more Direct Logical Statement of the Terms of Substance of the matters also may be present. Ports. In addition, the Exchange, the Proposed Rule Change The General Counsel of the pursuant to an information circular Commission, or her designee, has The Exchange proposes to amend its dated June 4, 2013, communicated to certified that, in her opinion, one or fees and rebates applicable to Members 3 Members and non-Members that the more of the exemptions set forth in 5 and non-Members of the Exchange Exchange would propose these changes U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) pursuant to EDGX Rule 15.1(a) and (c). in a subsequent filing with the and 17 CFR 200.402(a)(3), (5), (7), 9(ii) All of the changes described herein are Securities and Exchange Commission.6 and (10), permit consideration of the applicable to EDGX Members. The text The Exchange further proposes to scheduled matters at the Closed of the proposed rule change is available make a ministerial change to its fee Meeting. on the Exchange’s Internet Web site at schedule by changing the name of its Commissioner Gallagher, as duty www.directedge.com, at the Exchange’s HP–API logical ports from ‘‘HP–API’’ to officer, voted to consider the items principal office, and at the Public ‘‘Edge XPRS (HP–API).’’ listed for the Closed Meeting in a closed Reference Room of the Commission. The Exchange proposes to implement session. these amendments to its fee schedule on II. Self-Regulatory Organization’s July 1, 2013. The subject matter of the Closed Statement of the Purpose of, and Meeting will be: Statutory Basis for, the Proposed Rule 2. Statutory Basis institution and settlement of Change The Exchange believes that the injunctive actions; proposed rule changes are consistent adjudicatory matters; and In its filing with the Commission, the self-regulatory organization included with the objectives of Section 6 of the other matters relating to enforcement Act,7 in general, and furthers the proceedings. statements concerning the purpose of, and basis for, the proposed rule change objectives of Section 6(b)(4),8 in At times, changes in Commission particular, as the proposed rule changes priorities require alterations in the and discussed any comments it received on the proposed rule change. The text are designed to provide for the equitable scheduling of meeting items. allocation of reasonable dues, fees and For further information and to of these statements may be examined at the places specified in Item IV below. other charges among Members and other ascertain what, if any, matters have been persons using the Exchange’s facilities. added, deleted or postponed, please The self-regulatory organization has prepared summaries, set forth in The Exchange believes its proposal to contact the Office of the Secretary at amend its fee schedule to reduce the (202) 551–5400. sections A, B and C below, of the most significant aspects of such statements. quantity of free Direct Logical Ports Dated: July 3, 2013. from five sessions to two sessions Elizabeth M. Murphy, A. Self-Regulatory Organization’s represents an equitable allocation of Statement of the Purpose of, and the Secretary. reasonable dues, fees and other charges Statutory Basis for, the Proposed Rule [FR Doc. 2013–16481 Filed 7–3–13; 4:15 pm] because the Exchange has recently Change implemented several infrastructure BILLING CODE 8011–01–P 1. Purpose enhancements that optimized processing speed and capacity per port, The Exchange maintains logical ports thereby requiring fewer ports to SECURITIES AND EXCHANGE for order entry (FIX, HP–API), drop COMMISSION communicate the same information. In copies (DROP), EdgeRisk and market addition, the proposal to reduce the [Release No. 34–69899; File No. SR–EDGX– data (collectively, ‘‘Direct Logical number of logical ports from five to two 2013–24] Ports’’).4 In SR–EDGX–2012–36, the will offset the costs of necessary Exchange reduced the number of free hardware, infrastructure expenses, Self-Regulatory Organizations; EDGX Direct Logical Ports from ten (10) maintenance fees and staff support costs Exchange, Inc.; Notice of Filing and 5 sessions to five (5) sessions. The in operating a national securities Immediate Effectiveness of Proposed exchange. The revenue generated from Rule Change Relating to Amendments 3 A Member is any registered broker or dealer, or its proposal will also pay for the to the EDGX Exchange, Inc. Fee any person associated with a registered broker or technical infrastructure and operating Schedule dealer that has been admitted to membership in the Exchange. expenses of logical ports along with July 1, 2013. 4 See Securities Exchange Act Release No. 69670 administrative and infrastructure costs Pursuant to Section 19(b)(1) of the (May 30, 2013) 78 FR 33871 (June 5, 2013) (SR– associated with allowing Members and EDGX–2013–18) (adding EdgeRisk ports to the list non-Members to establish logical ports Securities Exchange Act of 1934 (the of logical ports offered by the Exchange); Securities ‘‘Act’’),1 and Rule 19b–4 thereunder,2 and Exchange Act Release No. 64963 (July 26, to connect to the Exchange’s systems. notice is hereby given that on June 26, 2011), 76 FR 45895 (August 1, 2011) (SR–EDGX– The Exchange also believes that 2013, EDGX Exchange, Inc. (the 2011–21) (discussing the Exchange’s proposal to reducing the quantity of free Direct include logical ports that receive market data Logical Ports from five to two sessions ‘‘Exchange’’ or ‘‘EDGX’’) filed with the among the types of logical ports that the Exchange Securities and Exchange Commission assesses a monthly fee to Members and non- (‘‘Commission’’) the proposed rule Members). 6 See Direct Edge Trading Notice #13–23: Logical 5 Port Fee Changes Effective July 1, 2013, http:// change as described in Items I, II and III See Securities and Exchange Act Release No. 67741 (August 28, 2012), 77 FR 53950 (September www.directedge.com/About/Announcements/ 4, 2012) (SR–EDGX–2012–36) (discussing the ViewNewsletterDetail.aspx?NewsletterID=1010. 1 15 U.S.C. 78s(b)(1). Exchange’s proposal to reduce its number of free 7 15 U.S.C. 78f. 2 17 CFR 240.19b–4. logical ports from ten (10) to five (5)). 8 15 U.S.C. 78f(b)(4).

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will promote efficient use of the ports sessions would allow the Exchange to comments more efficiently, please use by market participants, not only helping remain competitive with other market only one method. The Commission will the Exchange to continue to maintain centers and thus would not burden post all comments on the Commission’s and improve its infrastructure, market intermarket competition. Internet Web site (http://www.sec.gov/ technology, and services, but also The Exchange believes its proposal rules/sro.shtml). Copies of the encourage Members and non-Members would not burden intramarket submission, all subsequent to request and enable only the ports that competition because the proposed rule amendments, all written statements are necessary for their operations related change would apply uniformly to all with respect to the proposed rule to the Exchange. Members and non-Members. change that are filed with the The Exchange believes that it is Commission, and all written reasonable to reduce the number of free C. Self-Regulatory Organization’s communications relating to the logical ports available to Members and Statement on Comments on the proposed rule change between the non-Members because such practice is Proposed Rule Change Received From Commission and any person, other than consistent with that of other exchanges, Members, Participants, or Others those that may be withheld from the such as BATS Exchange, Inc., BATS Y- The Exchange has not solicited, and public in accordance with the Exchange, Inc. and the NASDAQ Stock does not intend to solicit, comments on provisions of 5 U.S.C. 552, will be Exchange LLC.9 Additionally, Members this proposed rule change. The available for Web site viewing and and non-Members may opt to disfavor Exchange has not received any printing in the Commission’s Public the Exchange’s pricing if they believe unsolicited written comments from Reference Room, 100 F Street NE., that alternative venues offer them better Members or other interested parties. Washington, DC 20549, on official value. Accordingly, if the Exchange business days between the hours of III. Date of Effectiveness of the were to charge excessive fees, the 10:00 a.m. and 3:00 p.m. Copies of the Proposed Rule Change and Timing for Exchange would stand to lose not only filing also will be available for Commission Action connectivity revenues but also revenues inspection and copying at the principal associated with the execution of orders The foregoing rule change has become office of the Exchange. All comments routed to it, and, to the extent effective pursuant to Section 19(b)(3)(A) received will be posted without change; applicable, market data revenues. The of the Act 11 and Rule 19b–4(f)(2) 12 the Commission does not edit personal Exchange believes that this competitive thereunder. At any time within 60 days identifying information from dynamic imposes powerful restraints on of the filing of such proposed rule submissions. You should submit only the ability of any exchange to charge change, the Commission summarily may information that you wish to make unreasonable fees for connectivity. temporarily suspend such rule change if available publicly. All submissions Lastly, the Exchange believes that the it appears to the Commission that such should refer to File Number SR–EDGX– proposed reduction in quantity of free action is necessary or appropriate in the 2013–24 and should be submitted on or ports is non-discriminatory because it public interest, for the protection of before July 29, 2013. applies uniformly to Members and non- investors, or otherwise in furtherance of For the Commission, by the Division of Members. the purposes of the Act. Trading and Markets, pursuant to delegated 13 B. Self-Regulatory Organization’s IV. Solicitation of Comments authority. Statement on Burden on Competition Elizabeth M. Murphy, Interested persons are invited to Secretary. The Exchange believes that the submit written data, views, and [FR Doc. 2013–16226 Filed 7–5–13; 8:45 am] proposed rule change does not impose arguments concerning the foregoing, any burden on competition that is not including whether the proposed rule BILLING CODE 8011–01–P necessary or appropriate in furtherance change is consistent with the Act. of the purposes of the Act. The Comments may be submitted by any of SECURITIES AND EXCHANGE Exchange does not believe that the the following methods: proposed amendment to its fee schedule COMMISSION represents a significant departure from Electronic Comments [Release No. 34–69897; File No. SR– previous Exchange fees or such fees • Use the Commission’s Internet NASDAQ–2013–092] offered by the Exchange’s competitors.10 comment form (http://www.sec.gov/ Self-Regulatory Organizations; The Accordingly, the Exchange believes that rules/sro.shtml); or reducing the quantity of free Direct • Send an email to rule- NASDAQ Stock Market LLC; Notice of Logical Ports from five sessions to two [email protected]. Please include File Filing and Immediate Effectiveness of Number SR–EDGX–2013–24 on the Proposed Rule Change To Amend 9 NASDAQ Rule 4120(c)(7) To Modify the See BATS, BATS BZX & BYX Exchange Fee subject line. Schedules, http://batstrading.com/FeeSchedule/ Parameters for Releasing IPO (charging a monthly fee of $400 per logical port Paper Comments Securities for Trading Pursuant to the other than a Multicast PITCH Spin Server Port or GRP Port). See also NASDAQ, Price List-Trading & • Send paper comments in triplicate IPO Halt Cross Under NASDAQ Rule Connectivity, http://www.nasdaqtrader.com/ to Elizabeth M. Murphy, Secretary, 4753 Trader.aspx?id=PriceListTrading2 (charging a Securities and Exchange Commission, monthly fee of $500 per logical port pair for FIX/ July 1, 2013. OUCH/RASHPort/DROP connectivity to NY-Metro 100 F Street NE., Washington, DC Pursuant to Section 19(b)(1) of the and Mid-Atlantic Datacenters). 20549–1090. Securities Exchange Act of 1934 (the 10 See BATS, BATS BZX & BYX Exchange Fee All submissions should refer to File ‘‘Act’’),1 and Rule 19b–4 thereunder,2 Schedules, http://batstrading.com/FeeSchedule/ (charging a monthly fee of $400 per logical port Number SR–EDGX–2013–24. This file notice is hereby given that, on June 25, other than a Multicast PITCH Spin Server Port or number should be included on the 2013, The NASDAQ Stock Market LLC GRP Port). See also NASDAQ, Price List-Trading & subject line if email is used. To help the (‘‘NASDAQ’’ or ‘‘Exchange’’), filed with Connectivity, http://www.nasdaqtrader.com/ Commission process and review your Trader.aspx?id=PriceListTrading2 (charging a monthly fee of $500 per logical port pair for FIX/ 13 17 CFR 200.30–3(a)(12). OUCH/RASHPort/DROP connectivity to NY-Metro 11 15 U.S.C. 78s(b)(3)(A). 1 15 U.S.C. 78s(b)(1). and Mid-Atlantic Datacenters). 12 17 CFR 240.19b–4(f)(2). 2 17 CFR 240.19b–4.

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the Securities and Exchange (B) A trading halt initiated under Rule above at the request of an underwriter of an Commission (‘‘Commission’’) the 4120(a)(7) shall be terminated when Nasdaq IPO.] proposed rule change as described in releases the security for trading. Prior to * * * * * Items I, II, and III below, which Items terminating the halt, there will be a 15- II. Self-Regulatory Organization’s have been prepared by the Exchange. minute Display Only Period during which market participants may enter quotes and Statement of the Purpose of, and The Commission is publishing this orders in that security in Nasdaq systems. In Statutory Basis for, the Proposed Rule notice to solicit comments on the addition, beginning at 4:00 a.m., market Change proposed rule change from interested participants may enter orders in a security persons. that is the subject of an Initial Public Offering In its filing with the Commission, the (‘‘IPO’’) on Nasdaq and designate such orders Exchange included statements I. Self-Regulatory Organization’s to be held until the beginning of the Display concerning the purpose of and basis for Statement of the Terms of Substance of Only Period, at which time they will be the proposed rule change and discussed the Proposed Rule Change entered into the system. [At]After the any comments it received on the The Exchange proposes to amend conclusion of the 15-minute Display Only proposed rule change. The text of these NASDAQ Rule 4120(c)(7) 3 to modify Period (the time after conclusion of the statements may be examined at the the parameters for releasing IPO Display Only Period is hereafter referred to places specified in Item IV below. The as the ‘‘Pre-Launch Period’’), the security securities for trading pursuant to the shall be released for trading by Nasdaq at Exchange has prepared summaries, set IPO Halt Cross under NASDAQ Rule such time as both of the following conditions forth in Sections A, B, and C below, of 4753. NASDAQ will implement the are simultaneously met: (i) Nasdaq receives the most significant aspects of such proposed changes in mid-to-late August notice from the underwriter of the IPO that statements. 2013. Public notice of the the security is ready to trade and (ii) there A. Self-Regulatory Organization’s implementation date will be provided is no order imbalance in the security as Statement of the Purpose of, and by NASDAQ in an Equity Trader Alert defined in subparagraph (C) below. The Statutory Basis for, the Proposed Rule at least one week prior to underwriter, with concurrence of Nasdaq, Change implementation. may determine at any point during the IPO The text of the proposed rule change Halt Cross process up through the Pre- 1. Purpose Launch Period to postpone and reschedule is below. Proposed new language is the IPO.[ unless Nasdaq extends the Display The Exchange proposes to amend italicized; proposed deletions are in Only Period for up to six additional 5-minute Rule 4120(c)(7)(B) and (C) and to delete brackets. Display Only Periods pursuant to Rule 4120(c)(7)(D) to modify the process * * * * * subparagraph (C) or (D) below. At the by which a company’s securities conclusion of the Display Only Period(s), 4120. Limit Up-Limit Down Plan and approved for listing on NASDAQ in an there shall be an additional delay of between initial public offering (‘‘IPO’’) are Trading Halts zero and 15 seconds (randomly selected) and (a)–(b) No change. then trading shall resume pursuant to Rule released for trading pursuant to (c) Procedure for Initiating and 4753.] Market participants may continue to NASDAQ’s IPO Halt Cross under Terminating a Trading Halt enter orders and order cancellations for NASDAQ Rule 4753. Rule 4120(c)(7)(B) (1)–(6) No change. participation in the cross auction during the governs the orderly launch of trading of (7)(A) A trading halt or pause initiated Pre-Launch Period up to the point that the IPO securities approved for listing on under Rule 4120(a)(1), (4), (5), (6), (9), (10), cross auction process commences. NASDAQ in an initial public offering. (11), or (12)(F) shall be terminated when (C) If at the end of a Display Only Period, Rule 4120(c)(7)(B), provides a fifteen- Nasdaq releases the security for trading. For Nasdaq detects an order imbalance in the minute ‘‘Display Only Period’’ prior to any such security listed on Nasdaq, prior to security, Nasdaq will extend the Display terminating the halt imposed on an IPO terminating the halt or pause, there will be Only Period as permitted under security before it opens for trading for a 5-minute Display Only Period during subparagraph[s] (A) [and (B) above]. In the which market participants may enter case of subparagraph (B), any order the first time on NASDAQ pursuant to quotations and orders in that security in imbalance during the Pre-Launch Period will the IPO Halt Cross. Under Rule Nasdaq systems. In addition, in instances result in a delay of the release for trading of 4120(c)(7)(B), at the conclusion of the where a trading halt is in effect prior to the the IPO until the end of the order imbalance fifteen-minute Display Only Period commencement of the Display Only Period, and satisfaction of the other requirements for NASDAQ may extend the period for up market participants may enter orders in a release of the IPO contained in subparagraph to six additional five-minute Display security that is the subject of the trading halt (B). Order imbalances under subparagraph Only Periods, pursuant to the basis on Nasdaq and designate such orders to be (A) shall be established when (i) the Current described under Rule 4120(c)(7)(C). held until the beginning of the Display Only Reference Prices, as defined in Rule Period. Such orders will be held in a Rule 4120(c)(7)(C) allows an extension 4753(a)(2)(A), disseminated 15 seconds and when NASDAQ detects an order suspended state until the beginning of the immediately prior to the end of the Display imbalance in the security. Rule Display Only Period, at which time they will Only Period differ by more than the greater be entered into the system. At the conclusion of 5 percent or 50 cents, or (ii) all buy or sell 4120(c)(7)(D) permits NASDAQ to of the 5-minute Display Only Period, the market orders will not be executed in the extend any of these Display-Only security shall be released for trading unless cross. Order imbalances under subparagraph Periods for an additional five-minute Nasdaq extends the Display Only Period for (B) shall be established when (i) the Current Display Only Period (up to the an additional 1-minute period pursuant to Reference Prices, as defined in Rule maximum of six additional periods) at subparagraph (C) below. At the conclusion of 4753(a)(2)(A), disseminated 15 seconds and the request of an underwriter of the IPO. the Display Only Period, trading shall immediately prior to commencing the release immediately resume pursuant to Rule 4753. NASDAQ believes that the existing of the IPO for trading during the Pre-Launch rule has worked well in matching Period differ by more than the greater of 5 3 The rule text reflects changes that are effective investor interest in an auction to percent or 50 cents, or (ii) all buy or sell establish the price at which the security as of June 14, 2013, but not yet operative. See SR– market orders will not be executed in the NASDAQ–2013–086 (pending publication in the cross. is released for trading on NASDAQ. The Federal Register). The text of the rule change is rule also recognizes the critical role available on the Exchange’s Web site at http:// [(D) At any time within the last five nasdaq.cchwallstreet.com, at the principal office of minutes prior to the end of a Display Only played by the underwriter, with its the Exchange, and at the Commission’s Public Period, Nasdaq may extend the Display Only unique knowledge of the issuer and the Reference Room. Period as permitted under subparagraph (B) market, in establishing the appropriate

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time to release the security for trading. information about the pending IPO seconds earlier. The system would While issuers and underwriters have given their unique position in the prevent launch of the IPO in the event provided positive feedback on the market, including the status of IPO of an order imbalance at any point in current process that NASDAQ believes orders on the underwriter’s book. the Pre-Launch Period until the end of has worked successfully in hundreds of NASDAQ believes that it is in the best the order imbalance, whereupon the IPO IPOs, we have periodically heard interest of the markets to give would launch once the requirements of suggestions regarding potential changes underwriters input into the timing of Rule 4120(c)(7)(B) are satisfied.5 to the IPO Halt Cross. For example, the IPO Halt Cross to help to ensure the NASDAQ proposes to delete several certain market participants have fair and orderly launch of trading in the elements of the existing Rule 4120(c)(7). questioned whether the six extension IPO security. The condition that there The existing language in Rule limit to the Display Only Period— be no order imbalance in the security is 4120(c)(7)(B) that provides for a limiting the launch process to a total of designed to ensure that the security randomization period of between zero 30 minutes—creates an unnecessary price is reasonably stable at the time and 15 seconds at the conclusion of the deadline within which the IPO must be trading commences. Under Rule Display Only Period would be launched or otherwise rescheduled. 4120(c)(7)(C), an order imbalance occurs eliminated. The randomization period NASDAQ has had one situation where when (1) the Current Reference Prices 4 was designed to reduce the risk that all six extensions have been used and disseminated 15 seconds and market participants might try to game several where four or five extensions immediately prior to the end of the the system around the end of a Display have occurred and it is possible that Display Only Period differ by more than Only Period, the timing of which is underwriters in the future would want the greater of 5 percent or 50 cents, or fixed in the rule. Because the proposed to extend beyond six Display Only (2) all buy or sell market orders will not changes would eliminate fixed Display Periods if permitted by the rule. be executed in the cross. This Only Periods and make it harder for Others have questioned whether there protection, as modified below to extend someone with malicious intent to time should be more flexibility with respect to the Pre-Launch Period, would also activity to influence the IPO Halt Cross, to the Display Only Periods, which prevent circumstances where a NASDAQ believes that the current under the current rule can only be misunderstanding by the underwriter as randomization language is duplicative extended in fixed five-minute to the state of the order book risked and unnecessary. NASDAQ also increments. The current rule would launching trading at a time of material proposes to delete Rule 4120(c)(7)(D) prevent trading from commencing if volatility in the book for the security. As that memorializes the ability of conditions improve within the five- is currently the case, this measurement underwriters to request an extension of minute period. NASDAQ agrees that the would be calculated by the IPO Halt the Display Only Period. The rule should be modified to permit the Cross system, which would underwriter’s role in the process has launch of trading whenever conditions automatically prevent launch of the IPO been moved to the proposed language of are appropriate. when an order imbalance existed. The Rule 4120(c)(7)(B), as discussed above. NASDAQ’s proposed changes would NASDAQ believes that its proposed proposed language allowing an not alter pricing and cross information changes to Rule 4120(c)(7) will increase underwriter to postpone and reschedule publicly available to market participants its flexibility to commence trading when the IPO with the concurrence of seeking to participate in the IPO Halt appropriate while retaining a NASDAQ is designed to allow flexibility Cross. NASDAQ would continue to transparent process that has been the if unforeseen market events make it disseminate throughout the Display hallmark of the rule. In particular, inadvisable to proceed with the IPO. Only Period and the Pre-Launch Period NASDAQ proposes to delete the NASDAQ also proposes to modify the updated electronic messages in five requirement in Rule 4120(c)(7)(B) that language of Rule 4120(c)(7)(C) to extend limits the number of extensions of the second intervals containing information the protections in the event of an order on the eligible interest and the price at Display Only Period to six five-minute imbalance to the Pre-Launch Period. periods. Instead, IPOs coming out of the which such interest would execute at The proposed modification is not time of dissemination.6 Market initial 15-minute Display Only Period designed to substantively modify how would enter what is defined as the ‘‘Pre- participants will continue to be able to order imbalances are handled in the IPO submit and cancel orders during the Launch Period’’ that will not be of a Halt Cross. It is instead designed to fixed duration. The Pre-Launch Period Pre-Launch Period as they are currently apply the same principles to the Pre- able to do during Display Only Periods will continue until: Launch Period which, unlike in the (1) the IPO is released when the and any extensions. Messages to submit existing Display Only Period, has no following two conditions are or cancel orders will not be eligible to fixed duration. Therefore, the existing simultaneously met: participate in the cross auction once the • Nasdaq receives notice from the language with respect to element (1) of cross auction process commences, as is underwriter of the IPO that the security the definition of order imbalance— currently the case. is ready to trade, and measuring two points in time 15 The changes to NASDAQ’s IPO • there is no order imbalance in the seconds before and immediately before process are consistent with how we security (as discussed below); or the end of the period—would not work understand IPOs are handled at other (2) the underwriter, with concurrence during the Pre-Launch Period. The exchanges. For example, we understand of Nasdaq, determines at any point proposed language would use a rolling during the IPO Halt Cross process up measurement point during the Pre- 5 Order imbalances in crosses other than IPO Halt through the Pre-Launch Period to Launch Period and compare the Current Crosses would continue to be handled in the same manner as is currently the case under Rule postpone and reschedule the IPO. Reference Price at that point in time against the Current Reference Price 15 4120(c)(7)(A). The underwriter’s involvement in 6 The information disseminated in accordance timing the commencement of trading is with Rule 4753(a)(2) includes the Current Reference consistent with current practice. In 4 The Current Reference Price is defined in Rule Price, the shares paired at the Current Reference 4753(a)(2)(A) as the price at which the maximum Price, any order imbalance (shares that are not administering the IPO cross process number of shares can be paired. In situations where paired), the buy/sell direction of any imbalance and since 2006, NASDAQ has found that more than one price exists, the rule establishes the the indicative price at which the cross would occur underwriters possess valuable Current Reference Price in a number of scenarios. at that point in time.

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that the New York Stock Exchange B. Self-Regulatory Organization’s Number SR–NASDAQ–2013–092 on the (‘‘NYSE’’) operates a similar process that Statement on Burden on Competition subject line. includes substantial input from The Exchange does not believe that Paper Comments underwriters and does not contain fixed the proposed rule change will result in time limits within which to launch the any burden on competition that is not • Send paper comments in triplicate IPO.7 During this indefinite period the necessary or appropriate in furtherance to Elizabeth M. Murphy, Secretary, NYSE disseminates similar information of the purposes of the Act, as amended. Securities and Exchange Commission, concerning the state of the auction as The Exchange believes that the proposal 100 F Street NE., Washington, DC that disseminated by NASDAQ.8 is irrelevant to competition because it is 20549–1090. Similarly, BATS Exchange permits not driven by, nor impactful to, All submissions should refer to File extension to its IPO Auction Quote-Only competition. Number SR–NASDAQ–2013–092. This period upon the request of an C. Self-Regulatory Organization’s file number should be included on the underwriter and for other reasons Statement on Comments on the subject line if email is used. To help the similar to those contained in Rule Proposed Rule Change Received From Commission process and review your 4120(c)(7)(B) and (C), with no limit on Members, Participants, or Others comments more efficiently, please use the number or length of extensions.9 We Written comments were neither only one method. The Commission will believe these changes to NASDAQ’s IPO solicited nor received. post all comments on the Commission’s Halt Cross will assist market Internet Web site (http://www.sec.gov/ participants and underwriters who III. Date of Effectiveness of the rules/sro.shtml). Copies of the participate in IPOs on several Proposed Rule Change and Timing for submission, all subsequent exchanges. Commission Action amendments, all written statements Because the foregoing proposed rule 2. Statutory Basis with respect to the proposed rule change does not: (i) Significantly affect change that are filed with the the protection of investors or the public The Exchange believes that the Commission, and all written interest; (ii) impose any significant proposed rule change is consistent with communications relating to the 10 burden on competition; and (iii) become the provisions of Section 6 of the Act, proposed rule change between the operative for 30 days from the date on in general, and with Section 6(b)(5) of Commission and any person, other than the Act,11 in particular, in that it is which it was filed, or such shorter time as the Commission may designate, it has those that may be withheld from the designed to promote just and equitable public in accordance with the principles of trade, to foster cooperation become effective pursuant to Section 19(b)(3)(A)(ii) of the Act 12 and provisions of 5 U.S.C. 552, will be and coordination with persons engaged subparagraph (f)(6) of Rule 19b–4 available for Web site viewing and in regulating, clearing, settling, thereunder.13 printing in the Commission’s Public processing information with respect to, At any time within 60 days of the Reference Room, 100 F Street NE., and facilitating transaction in securities, filing of the proposed rule change, the Washington, DC 20549, on official to remove impediments to and perfect Commission summarily may business days between the hours of the mechanism of a free and open temporarily suspend such rule change if 10:00 a.m. and 3:00 p.m. Copies of the market and a national market system it appears to the Commission that such filing also will be available for and, in general, to protect investors and action is necessary or appropriate in the inspection and copying at the principal the public interest, and is not designed public interest, for the protection of office of the Exchange. All comments to permit unfair discrimination between investors, or otherwise in furtherance of received will be posted without change; customers, issuers, brokers, or dealers. the purposes of the Act. The Exchange the Commission does not edit personal The proposed rule change promotes this has provided the Commission written identifying information from goal by establishing in NASDAQ’s rules notice of its intent to file the proposed submissions. You should submit only an IPO process that protects investors rule change, along with a brief information that you wish to make and the public interest by ensuring an description and text of the proposed available publicly. All submissions orderly opening of trading in IPOs on rule change, at least five business days should refer to File Number SR– prior to the date of filing of the NASDAQ and eliminates unnecessary NASDAQ–2013–092 and should be proposed rule change. fixed time limits that could impact the submitted on or before July 29, 2013. success of IPOs. NASDAQ also believes IV. Solicitation of Comments that the proposal is consistent with For the Commission, by the Division of Interested persons are invited to Trading and Markets, pursuant to delegated rules of other exchanges and will avoid submit written data, views, and authority.14 confusion among participants in the arguments concerning the foregoing, process. NASDAQ notes that the criteria Elizabeth M. Murphy, including whether the proposed rule Secretary. it applies in launching IPOs are applied change, as amended, is consistent with consistently to every IPO, and therefore the Act. Comments may be submitted by [FR Doc. 2013–16228 Filed 7–5–13; 8:45 am] do not permit NASDAQ to discriminate any of the following methods: BILLING CODE 8011–01–P in any manner. Electronic Comments • 7 NYSE Rule 123D. See NYSE, Inside the IPO Use the Commission’s Internet Process, available at https://usequities.nyx.com/ comment form (http://www.sec.gov/ page/inside-nyse-ipo-process. rules/sro.shtml); or 8 NYSE Rule 15(a). • Send an email to rule- 9 BATS Exchange Chapter XI, Rule [email protected]. Please include File 11.23(d)(2)(B)(ii). 10 15 U.S.C. 78f. 12 15 U.S.C. 78s(b)(3)(a)(ii). 11 15 U.S.C. 78f(b)(5). 13 17 CFR 240.19b–4(f)(6). 14 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s detail about charges for ports in the COMMISSION Statement of the Purpose of, and backup datacenter. Specifically, the Statutory Basis for, the Proposed Rule Exchange proposes to add text stating [Release No. 34–69904; File No. SR– Change that no fee will apply to ports in the backup datacenter that are utilized NYSEArca–2013–64] 1. Purpose when the primary datacenter is Self-Regulatory Organizations; NYSE The Exchange proposes to amend the unavailable but that a fee will apply if Arca, Inc.; Notice of Filing and NYSE Arca Equities Fee Schedule to such ports are utilized when the Immediate Effectiveness of Proposed change the monthly fees for the use of primary datacenter is available.7 Rule Change Amending the NYSE Arca certain ports. The Exchange proposes to The Exchange notes that the proposed Equities Schedule of Fees and implement the fee changes on July 1, change is not otherwise intended to Charges for Exchange Services To 2013.4 address any other issues, and the Change the Monthly Fees for the Use The Exchange currently makes ports Exchange is not aware of any problems of Certain Ports available that provide connectivity to that member organizations would have the Exchange’s trading systems (i.e., in complying with the proposed change. July 1, 2013. ports for entry of orders and/or quotes The Exchange believes that it is 1 (‘‘order/quote entry ports’’)) and charges subject to significant competitive forces, Pursuant to Section 19(b)(1) of the 5 Securities Exchange Act of 1934 (the $200 per port per month. The Fee as described below in the Exchange’s ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 Schedule currently provides that no fees statement regarding the burden on notice is hereby given that, on June 28, apply to ports in the backup datacenter competition. that are not utilized during the relevant 2013, NYSE Arca, Inc. (the ‘‘Exchange’’ 2. Statutory Basis or ‘‘NYSE Arca’’) filed with the month. The Exchange proposes that the $200 The Exchange believes that the Securities and Exchange Commission fee per port per month would apply to proposed rule change is consistent with (the ‘‘Commission’’) the proposed rule users with five or fewer order/quote Section 6(b) of the Act,8 in general, and change as described in Items I, II, and entry ports and that the fee for users furthers the objectives of Sections III below, which Items have been with more than five order/quote entry 6(b)(4) and 6(b)(5) of the Act,9 in prepared by the self-regulatory ports would be $500 per port per month, particular, because it provides for the organization. The Commission is including for the first five ports.6 The equitable allocation of reasonable dues, publishing this notice to solicit Exchange is proposing this change in fees, and other charges among its comments on the proposed rule change order to permit the Exchange to offset, members, issuers and other persons from interested persons. in part, its infrastructure costs using its facilities and does not unfairly I. Self-Regulatory Organization’s associated with making such ports discriminate between customers, Statement of the Terms of the Substance available. The proposed change would issuers, brokers or dealers. of the Proposed Rule Change also encourage users to become more The Exchange believes that the efficient with, and reduce the number proposed change to the monthly rates is The Exchange proposes to amend the of, their order/quote ports, thereby reasonable because the fees charged for NYSE Arca Equities Schedule of Fees resulting in a corresponding increase in order/quote entry ports are expected to and Charges for Exchange Services (the the efficiency that the Exchange would permit the Exchange to offset, in part, its ‘‘Fee Schedule’’) to change the monthly be able to realize with respect to infrastructure costs associated with fees for the use of certain ports. The managing its own infrastructure. In this making such ports available, including Exchange proposes to implement the fee regard, as users decrease the number of costs based on gateway software and changes on July 1, 2013. The text of the order/quote ports that they utilize, the hardware enhancements and resources proposed rule change is available on the Exchange would similarly be able to dedicated to gateway development, Exchange’s Web site at www.nyse.com, decrease the amount of its hardware that quality assurance, and support. In this at the principal office of the Exchange, it is required to support to interface regard, the Exchange believes that the and at the Commission’s Public with such ports. proposed fees are competitive with Reference Room. The Exchange also proposes to add those charged by other exchanges.10 The text to the Fee Schedule to add further proposed change is also reasonable II. Self-Regulatory Organization’s because the proposed per port rates Statement of the Purpose of, and 4 The Exchange notes that billing for ports is would encourage users to become more Statutory Basis for, the Proposed Rule based on the number of ports on the third business efficient with, and reduce the number Change day prior to the end of the month. In addition, the level of activity with respect to a particular port of, ports used for order/quote entry, In its filing with the Commission, the does not affect the assessment of monthly fees, such thereby resulting in a corresponding self-regulatory organization included that, except for ports that are not charged and ports considered established for backup purposes, even if 7 The Exchange notes that it monitors usage of statements concerning the purpose of, a particular port is not used, a port fee still applies. backup ports for billing purposes. Since the primary Additionally, separate port fees are charged for an and basis for, the proposed rule change datacenter in Mahwah, New Jersey, was established, order/quote entry port that is authorized for both and discussed any comments it received it has always been available, and the backup equity and option order/quote entry. on the proposed rule change. The text datacenter has not yet been utilized for disaster 5 The Fee Schedule provides that users of the recovery. of those statements may be examined at Exchange’s Risk Management Gateway service 8 the places specified in Item IV below. (‘‘RMG’’) are not charged for order/quote entry ports 15 U.S.C. 78f(b). 9 The Exchange has prepared summaries, if such ports are designated as being used for RMG 15 U.S.C. 78f(b)(4) and (5). purposes. See Securities Exchange Act Release No. 10 For example, the charge on the NASDAQ Stock set forth in sections A, B, and C below, 68227 (November 14, 2012), 77 FR 69679 Market LLC (‘‘NASDAQ’’) for a FIX Trading Port is of the most significant parts of such (November 20, 2012) (SR–NYSEArca–2012–123). $500 per port per month. See Nasdaq Rule 7015. A statements. 6 For example, a user with five ports would be separate charge for Pre-Trade Risk Management charged $200 per port per month for a total of ports also is applicable, which ranges from $400 to $1,000 per month for all five ports. A user with six $600 and is capped at $25,000 per firm per month. 1 15 U.S.C. 78s(b)(1). ports would be charged $500 per port per month, See Nasdaq Rule 7016. EDGA Exchange, Inc. 2 15 U.S.C. 78a. including for the first five ports, for a total of $3,000 (‘‘EDGA’’) and EDGX Exchange, Inc. (‘‘EDGX’’) also 3 17 CFR 240.19b–4. per month for all six ports. each charge $500 per port per month.

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increase in the efficiency that the In this regard, the Exchange its trading systems. This would also Exchange would be able to realize with anticipates that, as a result of the provide incentive for users to become respect to managing its own proposed increase of the order/quote more efficient with their use of ports infrastructure. entry port fee under the tiered structure, and could therefore result in such users The Exchange also believes that these users would become more efficient with becoming more competitive due to changes to the fees are equitable and not their utilization of order/quote entry decreased costs. In this regard, the unfairly discriminatory because they ports and would decrease the number of Exchange notes that at least one of the would apply to all users of order/quote order/quote entry ports so as to qualify Exchange’s competitors charges entry ports on the Exchange, subject to for the $200 rate per port. Such a different rates depending on the number the exceptions noted above.11 The decrease in order/quote entry port use of ports utilized.15 Exchange also believes that it is would result in a corresponding Additionally, adding detail to the Fee equitable and not unfairly decrease in the infrastructure that the Schedule to provide that no fee will discriminatory to charge a higher fee to Exchange is required to support for apply to ports in the backup datacenter users with more than five order/quote connectivity to its trading systems and that are utilized when the primary data entry ports, as compared to users with a decrease in the costs related thereto. center is unavailable, but that a fee will five or fewer order/quote entry ports, The Exchange also believes that the apply when a port in the backup because the Exchange believes that proposed change to the Fee Schedule datacenter is utilized when the primary users with more than five order/quote concerning backup datacenter ports is datacenter is available, will provide entry ports would be incentivized to reasonable because it will result in ETP better notice to ETP Holders and become more efficient with their Holders not being charged when the encourage them to only use the backup utilization of ports.12 ports are solely used for backup datacenter for its intended purpose, The Exchange has considered purposes, which the Exchange believes which is to help preserve business multiple factors in proposing the tiered will encourage appropriate business continuity and competition if the approach to order/quote entry port continuity planning. However, if a port Exchange’s primary datacenter were pricing, including that the fee increase in the backup datacenter were used for unavailable. would occur once a user has more than quote or order entry when the primary Finally, the Exchange notes that it five order/quote entry ports. The datacenter was available (i.e., not for operates in a highly competitive market Exchange believes that this approach to backup purposes), then it would be in which market participants can pricing is equitable and not unfairly charged like any other port. The readily favor competing venues if they discriminatory, including for the Exchange believes that this is also deem fee levels at a particular venue to following reasons. Specifically, the equitable and not unfairly be excessive. In such an environment, Exchange believes that there is a discriminatory because it would apply the Exchange must continually review, correlation between the number of equally to all users that request ports in and consider adjusting, its fees and order/quote entry ports utilized by users the backup datacenter and, furthermore, credits to remain competitive with other and the level of trading volume sent to because it would contribute to the fair, exchanges. For the reasons described the Exchange by such users, such that efficient, and appropriate use of the above, the Exchange believes that the a user with significant trading activity backup datacenter. proposed rule change reflects this For the reasons above, the Exchange sent to the Exchange likely utilizes a competitive environment. believes that the proposal is consistent greater number of order/quote entry with the Act. C. Self-Regulatory Organization’s ports than a user with minimal trading Statement on Comments on the activity sent to the Exchange. However, B. Self-Regulatory Organization’s Proposed Rule Change Received From despite this correlation, and regardless Statement on Burden on Competition Members, Participants, or Others of the amount of activity a user sends In accordance with Section 6(b)(8) of No written comments were solicited to the Exchange via its order/quote entry the Act,13 the Exchange does not believe ports, or the size of the firm, every user or received with respect to the proposed that the proposed rule change will rule change. that connects its systems to the impose any burden on competition that Exchange’s trading systems requires at is not necessary or appropriate in III. Date of Effectiveness of the least one port for order/quote entry. furtherance of the purposes of the Act. Proposed Rule Change and Timing for Many users also maintain a certain Instead, the Exchange believes that the Commission Action number of additional order/quote entry proposed change will permit the The foregoing rule change is effective ports for redundancy and/or hardware Exchange to set fees for ports that are upon filing pursuant to Section configuration purposes. These users competitive with those charged by other 19(b)(3)(A) 16 of the Act and have a limited opportunity to become exchanges.14 Moreover, the Exchange subparagraph (f)(2) of Rule 19b–4 17 more efficient with their use of ports. believes that charging different rates for thereunder, because it establishes a due, Accordingly, the Exchange believes that users with five or fewer order/quote fee, or other charge imposed by the five is a reasonable number of ports that entry ports as compared to users with Exchange. would permit a user that sends a lesser more than five ports would not impose At any time within 60 days of the amount of trading activity to the any burden on competition that is not filing of such proposed rule change, the Exchange to manage its ports in such a necessary or appropriate in furtherance Commission summarily may way that it could sufficiently address of the purposes of the Act because the temporarily suspend such rule change if these redundancy and configuration Exchange believes that a reduction in it appears to the Commission that such concerns without crossing the threshold the number of order/quote entry ports action is necessary or appropriate in the for which higher fees apply. would result in a decrease in the public interest, for the protection of infrastructure that the Exchange is 11 investors, or otherwise in furtherance of See supra note 5. required to support for connectivity to 12 The Exchange also notes that at least one of its competitors charges different rates depending on 15 See supra note 12. the number of ports utilized. Specifically, EDGA 13 15 U.S.C. 78f(b)(8). 16 15 U.S.C. 78s(b)(3)(A). and EDGX each provide the first five ports for free. 14 See supra note 10. 17 17 CFR 240.19b–4(f)(2).

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the purposes of the Act. If the Number SR–NYSEArca–2013–64, and and basis for, the proposed rule change Commission takes such action, the should be submitted on or before July and discussed any comments it received Commission shall institute proceedings 29, 2013. on the proposed rule change. The text 18 under Section 19(b)(2)(B) of the Act to For the Commission, by the Division of of those statements may be examined at determine whether the proposed rule Trading and Markets, pursuant to delegated the places specified in Item IV below. change should be approved or authority.19 The Exchange has prepared summaries, disapproved. Elizabeth M. Murphy, set forth in sections A, B and C below, of the most significant parts of such IV. Solicitation of Comments Secretary. [FR Doc. 2013–16233 Filed 7–5–13; 8:45 am] statements. Interested persons are invited to submit written data, views, and BILLING CODE 8011–01–P A. Self-Regulatory Organization’s arguments concerning the foregoing, Statement of the Purpose of, and including whether the proposed rule Statutory Basis for, the Proposed Rule SECURITIES AND EXCHANGE Change change is consistent with the Act. COMMISSION Comments may be submitted by any of 1. Purpose the following methods: [Release No. 34–69903; File No. SR–CHX– 2013–12] The Exchange proposes to amend Electronic Comments Section E of the Fee Schedule, effective • Use the Commission’s Internet Self-Regulatory Organizations; July 1, 2013. Specifically, the Exchange comment form (http://www.sec.gov/ Chicago Stock Exchange, Inc.; Notice proposes to eliminate references in rules/sro.shtml); or of Filing and Immediate Effectiveness Sections E.1 and E.8 to ‘‘Derivative • Send an email to rule- of Proposed Rule Change To Amend Securities Products’’ (‘‘DSPs’’) and [email protected]. Please include File the Single-Sided Order Fees and ‘‘Non-Derivative Securities Products’’ Number SR–NYSEArca–2013–64 on the Credits and the Order Cancellation Fee (‘‘Non-DSPs’’) and to eliminate references in Section E.1 to ‘‘Regular’’ subject line. July 1, 2012. 1 Trading Session and ‘‘Early and Late’’ Paper Comments Pursuant to Section 19(b)(1) of the Trading Sessions. Moreover, the Securities Exchange Act of 1934 • Send paper comments in triplicate Exchange proposes to amend Section (‘‘Act’’) 2 and Rule 19b–4 thereunder,3 to Elizabeth M. Murphy, Secretary, E.1 to set the liquidity providing fee for notice is hereby given that on June 26, Securities and Exchange Commission, all Tape A, B, and C securities priced 2013, the Chicago Stock Exchange, Inc. 100 F Street NE., Washington, DC greater than or equal to $1.00/share at (‘‘CHX’’ or ‘‘Exchange’’) filed with the 20549–1090. $0.00250/share and the Liquidity All submissions should refer to File Securities and Exchange Commission Removing Fee for all Tape A, B, and C Number SR–NYSEArca–2013–64. This (the ‘‘Commission’’) the proposed rule securities priced greater than or equal to file number should be included on the change as described in Items I, II and III $1.00/share at $0.0030/share. subject line if email is used. below, which Items have been prepared To help the Commission process and by the self-regulatory organization. The Current Section E.1 review your comments more efficiently, Commission is publishing this notice to On November 2, 2012, the Exchange please use only one method. The solicit comments on the proposed rule adopted current Section E.1 of the Fee Commission will post all comments on change from interested persons. Schedule,4 amended in February 2013,5 the Commission’s Internet Web site I. Self-Regulatory Organization’s which permits twenty-four (24) distinct (http://www.sec.gov/rules/sro.shtml). Statement of the Terms of the Substance sets of credits and fees. Specifically, the Copies of the submission, all subsequent of the Proposed Rule Change Section E.1 fee table distinguishes amendments, all written statements between ‘‘Regular’’ Trading Session and CHX proposes to amend its Schedule with respect to the proposed rule ‘‘Early and Late’’ Trading Sessions and of Participant Fees and Assessments change that are filed with the divides each trading session into Tape (the ‘‘Fee Schedule’’) to amend the Commission, and all written A, B, and C securities. Moreover, each Single-Sided Order Fees and Credits communications relating to the Tape is divided into DSPs and Non- and the Order Cancellation Fee. The proposed rule change between the DSPs and each set of DSPs and Non- Exchange proposes to implement the fee Commission and any person, other than DSPs are further divided into securities changes on July 1, 2013. The text of this those that may be withheld from the priced greater than or equal to $1.00/ proposed rule change is available on the public in accordance with the share or those that are priced less than Exchange’s Web site at http:// provisions of 5 U.S.C. 552, will be $1.00/share. www.chx.com/rules/ available for Web site viewing and With respect to the current values of proposed_rules.htm, at the principal printing in the Commission’s Public the credits and fees of Section E.1, for office of the Exchange, and at the Reference Room on official business transactions in Tape A and Tape B Non- Commission’s Public Reference Room. days between the hours of 10:00 a.m. DSPs priced greater than or equal to and 3:00 p.m. Copies of such filing also II. Self-Regulatory Organization’s $1.00/share that are executed in the will be available for inspection and Statement of the Purpose of, and Regular Trading Session, the current Fee copying at the principal offices of Statutory Basis for, the Proposed Rule Schedule gives no credit for providing NYSE. All comments received will be Change liquidity, and charges a $0.0030/share posted without change; the Commission In its filing with the Commission, the Liquidity Removing Fee. For does not edit personal identifying self-regulatory organization included transactions in Tape A and Tape B DSPs information from submissions. You statements concerning the purpose of, should submit only information that 4 See Securities Exchange Act Release No. 68182 (November 8, 2012), 77 FR 68167 (November 15, you wish to make available publicly. All 19 17 CFR 200.30–3(a)(12). 2012) (SR–CHX–2012–16). submissions should refer to File 1 15 U.S.C. 78s(b)(1). 5 See Securities Exchange Act Release No. 68894 2 15 U.S.C. 78a. (February 15, 2013), 78 FR 11258 (February 15, 18 15 U.S.C. 78s(b)(2)(B). 3 17 CFR 240.19b–4. 2013) (SR–CHX–2013–06).

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priced greater than or equal to $1.00/ security types priced less than $1.00/ Fee (Regular Trading Session only)’’ share that are executed in the Regular share, the Exchange will maintain the section of its Fee Schedule,6 amended Trading Session, the current Fee current Liquidity Providing Credit of in June 2013,7 that incorporated, inter Schedule gives a credit of $0.0022/share $0.00009/share. alia, references to Derivative and Non- for providing liquidity, and charges a With respect to the Liquidity Derivative Securities Products within $0.0030/share Liquidity Removing Fee. Removing Fee, the Exchange proposes Tape A, B, and C. Specifically, current For transactions in Tape C DSPs and to set the fee at $0.0030/share for all Section E.8(b) provides for six different Non-DSPs priced greater than or equal Tape A, B, and C securities priced sets of Order Cancellation Fee values, to $1.00/share that are executed in the greater than or equal to $1.00/share. for DSP and Non-DSPs in Tape A, B, Regular Trading Session, the current Fee Specifically, the fee for Tapes A and B and C securities. Schedule gives a credit of $0.0001/share will remain the same, but the fee for Proposed Section E.8 for providing liquidity, and charges a Tape C will increase from $0.0006/share $0.0006/share Liquidity Removing Fee. to $0.0030/share. For transactions in all The Exchange proposes to eliminate Additionally, for transactions in all security types priced less than $1.00/ references to ‘‘Derivative Securities securities priced greater than or equal to share, the Exchange will maintain the Products’’ and ‘‘Non-Derivative $1.00/share that are executed in the current Liquidity Removing Fee of Securities Products’’ within Section Early and Late Trading Session, the 0.30% of trade value. E.8.8 Specifically, the Exchange current Fee Schedule gives a credit of Moreover, the Exchange proposes to proposes to remove paragraphs titled $0.0022/share for providing liquidity, make non-substantive changes to the ‘‘Tape A Non-Derivative Securities and charges a $0.0030/share Liquidity ‘‘Security Price’’ column to amend the Products,’’ ‘‘Tape B Non-Derivative Removing Fee. Finally, for transactions security prices for Tapes A, B, and C Securities Products,’’ and ‘‘Tape C Non- in all securities priced less than $1.00/ securities to reflect a ‘‘$’’ sign in front Derivative Securities Products’’ from share that are executed in the Regular of ‘‘1.00.’’ Thus, the proposed security Section E.8(b) of the Fee Schedule. Trading Session, or the Early and Late prices for each Tape A, B, and C Additionally, the Exchange proposes to Trading Session, the current Fee securities will indicate ‘‘≥$1.00/share’’ delete the words ‘‘Derivative’’ and Schedule gives a credit of $0.00009/ for securities priced greater than or ‘‘Products’’ from the remaining three (3) share for providing liquidity, and equal to $1.00/share and ‘‘< $1.00/ paragraphs of Section E.8(b). As a result, charges a fee of 0.30% of trade value for share’’ for securities priced less than the proposed Section E.8(b) will only removing liquidity. $1.00/share. make references to Tape A, B, and C Given these changes, the Exchange securities, omitting any mention of Proposed Section E.1 proposes to amend paragraph (b) to DSPs and Non-DSPs. The Exchange now proposes to amend replace ‘‘$0.0022/share’’ with ‘‘$0.0025/ Similar to the Section E.1, the the Section E.1 fee table to reduce the share’’ and eliminate references to Exchange has determined that number of distinct sets of credits and ‘‘Derivative Securities Products’’ and differentiating between DSPs and Non- fees, to set the Liquidity Providing the ‘‘Regular’’ Trading Session. Also, the DSPs in the context of the Order Credit for all Tape A, B, and C securities Exchange proposes to delete current Cancellation Fee is unnecessary and priced greater than or equal to $1.00/ paragraph (c) as it relates to the current overly particularized. The Exchange share at $0.00250/share, and to set the Liquidity Providing Credit in all submits that the proposed distinction Liquidity Removing Fee for all Tape A, securities paid for orders executed in between Tapes A, B, and C securities B, and C securities priced greater than the ‘‘Early or Late Trading Sessions,’’ provides adequate granularity for the or equal to $1.00/share at $0.0030/share. which is now obsolete. Finally, the purposes of establishing the Order With respect to the Section E.1 fee Exchange proposes to change current Cancellation Fee values. table, the Exchange proposes to remove paragraph (d) to proposed paragraph (c). 2. Statutory Basis all references to DSPs and Non-DSPs, Since its last amendment to the Fee while preserving the distinction Schedule, the Exchange has found that The Exchange believes that the between Tape A, B, and C security types the distinction between Tape A, B, and proposed rule change is consistent with that are priced greater than or equal to C security types provides sufficient Section 6(b) of the Act 9 in general, and $1.00/share and those priced less than granularity. Thus, the Exchange has furthers the objectives of Section 6(b)(4) $1.00/share. In addition, the Exchange determined that differentiating between of the Act 10 in particular, in that it proposes to eliminate the current DSPs and Non-DSPs, as well as the provides for the equitable allocation of distinction between ‘‘Regular’’ Trading ‘‘Regular’’ Trading Session and ‘‘Early reasonable dues, fees and other charges Session and ‘‘Early and Late’’ Trading and Late’’ Trading Sessions, is among members and other persons Sessions, and adopt a set of credit and unnecessary and overly particularized. using any facility or system which the fee values, irrespective of the trading Additionally, the Exchange believes that Exchange operates or controls, and does session in which the transaction this new credit and fee structure will not unfairly discriminate between occurred. incentivize activity by Participants on customers, issuers, or broker dealers. With respect to the Liquidity the Exchange’s trading facilities, Specifically, with respect to Section Providing Credit, the Exchange proposes encourage order flow, and allow the E.1, since the proposed credit and fee to set the credit at $0.00250/share for all Exchange to remain competitive in Tape A, B, and C securities priced 6 See Securities Exchange Act Release No. 68219 today’s orders marketplace. Moreover, (November 13, 2012), 77 FR 69673 (November 20, greater than or equal to $1.00/share. the Exchange submits that increasing 2012) (SR–CHX–2012–15). Specifically, the credit for Tapes A and the Liquidity Providing Credit from 7 See Securities Exchange Act Release No. 69701 B DSP securities will increase from $0.00220/share to $0.00250/share will (June 5, 2013), 78 FR 35082 (June 11, 2013) (SR– $0.00220/share to $0.00250/share, further promote displayed liquidity on CHX–2013–11). 8 Tapes A and B Non-DSP securities will the Exchange. Unlike proposed Section E.1, the Exchange increase from $0.00/share to $0.00250/ proposes to maintain the applicability of the Order Current Section E.8 Cancellation Fee to the Regular Trading Session share, and all Tape C securities will only. increase from $0.00010/share to On November 2, 2012, the Exchange 9 15 U.S.C. 78f. $0.00250/share. For transactions in all adopted the current ‘‘Order Cancelation 10 15 U.S.C. 78f(b)(4).

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structure will continue to apply to all greater than or equal to $1.00/share Paper Comments single-sided orders of 100 or more contributes to the protection of investors • shares executed in the CHX Matching and the public interest by simplifying Send paper comments in triplicate System, the Exchange believes that it the schedule of credits paid and fees to Elizabeth M. Murphy, Secretary, will equitably allocate the credits and assessed by the Exchange. Securities and Exchange Commission, fees among Participants in a non- Consequently, the proposed rule change 100 F Street NE., Washington, DC discriminatory nature, notwithstanding is necessary and appropriate in 20549–1090. the omission of references to ‘‘DSP’’ and furtherance of the purposes of the Act. All submissions should refer to File ‘‘Non-DSPs,’’ as well as ‘‘Regular’’ and Number SR–CHX–2013–12. This file ‘‘Early and Late’’ Trading Sessions. C. Self-Regulatory Organization’s Statement on Comments on the number should be included on the Furthermore, the proposed values for subject line if email is used. To help the the Liquidity Providing Credit of Proposed Rule Change Received From Commission process and review your $0.00250/share and Liquidity Removing Members, Participants, or Others comments more efficiently, please use Fees of $0.0030/share for each of the No written comments were solicited only one method. The Commission will security types priced greater than or or received with respect to the proposed post all comments on the Commission’s equal to $1.00/share are reasonable, rule change. where the proposed Liquidity Providing Internet Web site (http://www.sec.gov/ Credit will be increased to the benefit of III. Date of Effectiveness of the rules/sro.shtml). Copies of the liquidity providers and the proposed Proposed Rule Change and Timing for submission, all subsequent Liquidity Removing Fee will not exceed Commission Action amendments, all written statements the current value for Tape A and Tape The foregoing rule change is effective with respect to the proposed rule B securities priced at or greater than upon filing pursuant to Section change that are filed with the $1.00/share. Moreover, the proposed fee 19(b)(3)(A)(ii) of the Act 12 and Commission, and all written values are generally similar to the fees subparagraph (f)(2) of Rule 19b–4 communications relating to the of other exchanges, such as NASDAQ.11 thereunder 13 because it establishes or proposed rule change between the With respect to Section E.8, the changes a due, fee, or other charge Commission and any person, other than Exchange submits that removing imposed by the Exchange. those that may be withheld from the references to ‘‘Derivative Securities At any time within 60 days of the public in accordance with the Products’’ and ‘‘Non-Derivative filing of the proposed rule change, the provisions of 5 U.S.C. 552, will be Securities Products’’ will allow the Commission summarily may available for Web site viewing and Order Cancellation Fee to continue to be temporarily suspend such rule change if printing in the Commission’s Public equitable and reasonable, as it does not it appears to the Commission that such Reference Room, 100 F Street NE., impact the Order Cancellation Fee action is necessary or appropriate in the values nor does it impact to whom the Washington, DC 20549–1090, on official public interest, for the protection of fee is applicable. business days between the hours of Finally, the Exchange notes that it investors, or otherwise in furtherance of 10:00 a.m. and 3:00 p.m. Copies of such operates in a highly competitive market the purposes of the Act. If the filing also will be available for in which market participants can Commission takes such action, the inspection and copying at the principal readily favor competing venues. In such Commission shall institute proceedings offices of CHX. All comments received an environment, the Exchange must to determine whether the proposed rule will be posted without change; the continually review, and consider should be approved or disapproved. Commission does not edit personal adjusting, its fees and credits to remain As fully discussed above, the identifying information from competitive with other exchanges. For Exchange believes that the proposed submissions. You should submit only the reasons described above, the changes represent a fair and reasonable information that you wish to make Exchange believes that the proposed structure designed to create equable available publicly. All submissions credit and fee amounts to incent activity rule change reflects this competitive should refer to File Number SR–CHX– among all Participants within the environment. 2013–12, and should be submitted on or Exchange’s trading facilities. B. Self-Regulatory Organization’s before July 29, 2013. IV. Solicitation of Comments Statement on Burden on Competition For the Commission, by the Division of The Exchange does not believe that Interested persons are invited to Trading and Markets, pursuant to delegated the proposed rule change will impose submit written data, views, and authority.14 any burden on competition that is not arguments concerning the foregoing, Elizabeth M. Murphy, necessary or appropriate in furtherance including whether the proposed rule Secretary. of the purposes of the Act. Specifically, change is consistent with the Act. [FR Doc. 2013–16232 Filed 7–5–13; 8:45 am] the proposed changes to eliminate the Comments may be submitted by any of BILLING CODE 8011–01–P distinction in Section E of the Fee the following methods: Schedule between DSPs and Non-DSPs, Electronic Comments the different trading sessions, and to set an across the board Liquidity Providing • Use the Commission’s Internet Credit of $0.00250/share and Liquidity comment form (http://www.sec.gov/ Removing Fees of $0.0030/share for rules/sro.shtml); or Tapes A, B, and C securities priced • Send an email to rule- [email protected]. Please include File 11 NASDAQ ‘‘Fees to Remove Liquidity, Shares Number SR–CHX–2013–12 on the Executed at or above $1.00’’ ranges from $0.0029/ subject line. share to $0.0030/share and ‘‘Rebate to Add Displayed Liquidity, Shares Executed at or Above $1.00’’ ranges from $0.0020/share to $0.00305/ 12 15 U.S.C. 78s(b)(3)(A)(ii). share. 13 17 CFR 240.19b–4(f)(2). 14 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s The change with respect to the fee COMMISSION Statement of the Purpose of, and charged for orders in securities listed on Statutory Basis for, the Proposed Rule venues other than NASDAQ or NYSE [Release No. 34–69901; File No. SR–Phlx– Change that are entered through a PSX MPID through which a member organization 2013–70] 1. Purpose provides an average daily volume of Self-Regulatory Organizations; Phlx is proposing two modifications 10,000 or more shares of liquidity NASDAQ OMX PHLX LLC; Notice of to its schedule of fees and rebates for during the month is reasonable because Filing and Immediate Effectiveness of transactions occurring on PSX.3 First, it will make the applicable fee Proposed Rule Change to the the Exchange currently charges a fee of equivalent to the fee already charged Schedule of Fees and Rebates for the $0.0028 per share executed for orders in with respect to orders entered by the Execution of Quotes and Orders on securities listed on The NASDAQ Stock same member organization with respect NASDAQ OMX PSX Market (‘‘NASDAQ’’) or the New York to securities listed on NASDAQ or Stock Exchange (‘‘NYSE’’) entered NYSE. Moreover, the fee in question is July 1, 2013. through a PSX market participant consistent with the requirements of SEC 7 Pursuant to Section 19(b)(1) of the identifier (‘‘MPID’’) through which a Rule 610(c) under Regulation NMS. In adopting that rule, the Commission Securities Exchange Act of 1934 member organization provides an average daily volume of 10,000 or more found that fees not in excess of $0.0030 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 shares of liquidity during the month. per share executed would promote the notice is hereby given that, on June 25, The Exchange also charges a fee of objective of equal regulation and 2013, NASDAQ OMX PHLX LLC $0.0028 per share executed for orders in preventing excessive fees.8 The change (‘‘Phlx’’ or ‘‘Exchange’’) filed with the securities listed on NASDAQ or NYSE is consistent with an equitable Securities and Exchange Commission that are designated as eligible for allocation of fees because the modified (‘‘SEC’’ or ‘‘Commission’’) the proposed routing, to the extent that such orders fee applicable to the volume tier in rule change as described in Items I, II, execute on PSX rather than routing. question remains lower than the fee and III below, which Items have been Orders that do not qualify for these charged to member organizations not prepared by the Exchange. The discounts are charged $0.0030 per share achieving the tier, and therefore Commission is publishing this notice to executed. For orders in securities listed continues to provide a financial solicit comments on the proposed rule on exchanges other than NASDAQ and incentive for member organizations to change from interested persons. NYSE, however, the Exchange currently achieve higher volume levels at PSX. charges $0.0025 per share executed if The change is not unfairly I. Self-Regulatory Organization’s entered through a PSX MPID through discriminatory because the resulting fee Statement of the Terms of Substance of which a member organization provides is equivalent to the fee charged with the Proposed Rule Change an average daily volume of 10,000 or respect to orders in securities listed on The Exchange proposes changes to its more shares of liquidity during the NASDAQ or NYSE. Finally, the fee schedule of fees and rebates for month, and also charges $0.0025 per change does not unduly burden execution of quotes and orders on share executed for orders in securities competition because affected member NASDAQ OMX PSX (‘‘PSX’’). Phlx listed on exchanges other than organizations will continue to pay an NASDAQ or NYSE that are designated access fee that is lower than the base proposes to implement the proposed as eligible for routing. The Exchange is rate of $0.0030 per share executed, and rule change on July 1, 2013. The text of proposing to change both of these fees therefore their ability to compete will the proposed rule change is available on to $0.0028 per share executed, so that not be impacted; rather, they will the Exchange’s Web site at http:// the fees for accessing liquidity in all continue to pay a comparatively lower nasdaqomxphlx.cchwallstreet.com/ securities, regardless of listing venue, fee that reflects a volume-based nasdaqomxphlx/phlx, at the principal will be equivalent.4 discount, conceptually similar to office of the Exchange, and at the volume-based pricing incentives that are 2. Statutory Basis Commission’s Public Reference Room. provided by numerous other trading II. Self-Regulatory Organization’s Phlx believes that the proposed rule venues. Statement of the Purpose of, and change is consistent with the provisions The change with respect to the fee Statutory Basis for, the Proposed Rule of Section 6 of the Act,5 in general, and charged for routable orders in securities Change with Sections 6(b)(4) and 6(b)(5) of the listed on venues other than NASDAQ or Act,6 in particular, in that it provides for NYSE is reasonable because it will make In its filing with the Commission, the the equitable allocation of reasonable the applicable fee equivalent to the fee Exchange included statements dues, fees and other charges among already charged with respect to routable concerning the purpose of and basis for members and issuers and other persons orders entered with respect to securities the proposed rule change and discussed using any facility or system which Phlx listed on NASDAQ or NYSE. Moreover, any comments it received on the operates or controls, and is not designed the fee in question is consistent with the proposed rule change. The text of these to permit unfair discrimination between requirements of SEC Rule 610(c) under statements may be examined at the customers, issuers, brokers, or dealers. Regulation NMS.9 In adopting that rule, places specified in Item IV below. The the Commission found that fees not in Exchange has prepared summaries, set 3 The changes apply to securities priced at $1 or excess of $0.0030 per share executed forth in sections A, B, and C below, of more per share. would promote the objective of equal 4 As is the case with securities listed on NASDAQ regulation and preventing excessive the most significant aspects of such or NYSE, the fee for orders in securities listed on statements. other venues that do not qualify for discounts is $0.0030 per share executed. This fee is not 7 17 CFR 242.610(c). changing. 8 Securities Exchange Act Release No. 51808 1 15 U.S.C. 78s(b)(1). 5 15 U.S.C. 78f. (June 9, 2005), 70 FR 37496, 37596 (June 29, 2005). 2 17 CFR 240.19b–4. 6 15 U.S.C. 78f(b)(4) and (5). 9 17 CFR 242.610(c).

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fees.10 The change is consistent with an member organizations or competing Commission, and all written equitable allocation of fees because the order execution venues to maintain communications relating to the modified fee remains lower than the fee their competitive standing in the proposed rule change between the charged with respect to non-routable financial markets. Commission and any person, other than orders not qualifying for a volume C. Self-Regulatory Organization’s those that may be withheld from the discount, and therefore continues to Statement on Comments on the public in accordance with the provide a means by which member provisions of 5 U.S.C. 552, will be organizations not qualifying for a Proposed Rule Change Received From Members, Participants, or Others available for Web site viewing and volume tier may achieve a rate more printing in the Commission’s Public favorable than the undiscounted rate. No written comments were either Reference Room, 100 F Street NE., The change is not unfairly solicited or received. Washington, DC 20549, on official discriminatory because the resulting fee III. Date of Effectiveness of the business days between the hours of is equivalent to the fee charged with Proposed Rule Change and Timing for 10:00 a.m. and 3:00 p.m. Copies of the respect to orders in securities listed on Commission Action filing also will be available for NASDAQ or NYSE. Finally, the fee change does not unduly burden The foregoing rule change has become inspection and copying at the principal competition because affected member effective pursuant to Section 19(b)(3)(A) office of the Exchange. All comments organizations will continue to pay an of the Act 12 and paragraph (f) of Rule received will be posted without change; access fee that is lower than the base 19b–4 thereunder.13 At any time within the Commission does not edit personal rate of $0.0030 per share executed, and 60 days of the filing of the proposed rule identifying information from therefore their ability to compete will change, the Commission summarily may submissions. You should submit only not be impacted; rather, they will temporarily suspend such rule change if information that you wish to make continue to pay a comparatively lower it appears to the Commission that such available publicly. All submissions fee that reflects a discount designed to action is necessary or appropriate in the should refer to File Number SR–Phlx– encourage member organizations to use public interest, for the protection of 2013–70 and should be submitted on or the routing services of PSX. investors, or otherwise in furtherance of before July 29, 2013. the purposes of the Act. B. Self-Regulatory Organization’s For the Commission, by the Division of Statement on Burden on Competition IV. Solicitation of Comments Trading and Markets, pursuant to delegated authority.14 Phlx does not believe that the Interested persons are invited to proposed rule change will result in any submit written data, views, and Elizabeth M. Murphy, burden on competition that is not arguments concerning the foregoing, Secretary. necessary or appropriate in furtherance including whether the proposed rule [FR Doc. 2013–16229 Filed 7–5–13; 8:45 am] of the purposes of the Act, as change is consistent with the Act. BILLING CODE 8011–01–P amended.11 Phlx notes that it operates Comments may be submitted by any of in a highly competitive market in which the following methods: market participants can readily favor SECURITIES AND EXCHANGE Electronic Comments competing venues if they deem fee COMMISSION levels at a particular venue to be • Use the Commission’s Internet comment form (http://www.sec.gov/ excessive, or rebate opportunities [Release No. 34–69902; File No. SR–FINRA– available at other venues to be more rules/sro.shtml); or 2013–025] favorable. In such an environment, Phlx • Send an email to rule- must continually adjust its fees to [email protected]. Please include File Self-Regulatory Organizations; remain competitive with other Number SR–Phlx–2013–70 on the Financial Industry Regulatory exchanges and with alternative trading subject line. Authority, Inc.; Notice of Filing of a systems that have been exempted from Paper Comments Proposed Rule Change To Adopt Rules compliance with the statutory standards • Send paper comments in triplicate Regarding Supervision in the applicable to exchanges. Because Consolidated FINRA Rulebook competitors are free to modify their own to Elizabeth M. Murphy, Secretary, fees in response, and because market Securities and Exchange Commission, July 1, 2013. 100 F Street NE., Washington, DC participants may readily adjust their Pursuant to Section 19(b)(1) of the order routing practices, Phlx believes 20549–1090. Securities Exchange Act of 1934 that the degree to which fee changes in All submissions should refer to File (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 this market may impose any burden on Number SR–Phlx–2013–70. This file notice is hereby given that on June 21, competition is extremely limited. In this number should be included on the instance, Phlx is instituting a limited fee subject line if email is used. To help the 2013, Financial Industry Regulatory increase, but one that is designed to Commission process and review your Authority, Inc. (‘‘FINRA’’) filed with the make the fee schedule consistent across comments more efficiently, please use Securities and Exchange Commission all securities. If the changes are only one method. The Commission will (‘‘SEC’’ or ‘‘Commission’’) the proposed unattractive to market participants, it is post all comments on the Commission’s rule change as described in Items I, II, likely that PSX will lose market share as Internet Web site (http://www.sec.gov/ and III below, which Items have been member organizations opt to trade rules/sro.shtml). Copies of the substantially prepared by FINRA. The securities at other execution venues. submission, all subsequent Commission is publishing this notice to Accordingly, Phlx does not believe that amendments, all written statements solicit comments on the proposed rule the changes will impair the ability of with respect to the proposed rule change from interested persons. change that are filed with the 10 Securities Exchange Act Release No. 51808 14 17 CFR 200.30–3(a)(12). (June 9, 2005), 70 FR 37496, 37596 (June 29, 2005). 12 15 U.S.C. 78s(b)(3)(A). 1 15 U.S.C. 78s(b)(1). 11 15 U.S.C. 78f(b)(8). 13 17 CFR 240.19b–4(f). 2 17 CFR 240.19b–4.

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I. Self-Regulatory Organization’s A. Self-Regulatory Organization’s similar to NASD Rule 3010(a) except for Statement of the Terms of Substance of Statement of the Purpose of, and two revisions. First, proposed FINRA the Proposed Rule Change Statutory Basis for, the Proposed Rule Rule 3110(a) would refer only to Change associated persons instead of the current FINRA is proposing to adopt the reference in NASD Rule 3010(a) to each 1. Purpose consolidated FINRA supervision rules. ‘‘registered representative, registered Specifically, the proposed rule change As part of the process of developing principal, and other associated person.’’ would (1) adopt FINRA Rules 3110 a new consolidated rulebook Second, proposed FINRA Rule 3110(a) (Supervision) and 3120 (Supervisory (‘‘Consolidated FINRA Rulebook’’),3 would require a member’s supervisory Control System) to largely replace FINRA is proposing to adopt new system to be reasonably designed to NASD Rules 3010 (Supervision) and FINRA Rules 3110 (Supervision) and achieve compliance with MSRB rules, 3012 (Supervisory Control System), 3120 (Supervisory Control System) and which NASD Rule 3010(a) does not respectively; (2) incorporate into FINRA to delete NASD Rule 3010 (Supervision) explicitly reference.4 (with the exception of 3010(e) Rule 3110 and its supplementary (Qualifications Investigated) and 3010(f) (i) Proposed FINRA Rule 3110(a)(1): material the requirements of NASD IM– (Applicant’s Responsibility)) and NASD Establishment and Maintenance of 1000–4 (Branch Offices and Offices of Rule 3012 (Supervisory Control Written Procedures Supervisory Jurisdiction), NASD IM– System), on which they are largely Proposed FINRA Rule 3110(a)(1), 3010–1 (Standards for Reasonable based. The proposed rule change also which is identical to NASD Rule Review), Incorporated NYSE Rule 401A would delete Incorporated NYSE Rule 3010(a)(1), would require a member’s (Customer Complaints), and 342 and much of its supplementary supervisory system to include the Incorporated NYSE Rule 342.21 (Trade material and interpretations as they are, establishment and maintenance of Review and Investigation); (3) replace in main part, either duplicative of, or do written procedures. NASD Rule 3010(b)(2) (often referred to not align with, the proposed supervision (ii) Proposed FINRA Rule 3110(a)(2): as the ‘‘Taping Rule’’) with new FINRA requirements. The proposed rule Designated Principal Rule 3170 (Tape Recording of Registered change, however, would incorporate— Persons by Certain Firms); (4) replace on a tiered basis—provisions from Proposed FINRA Rule 3110(a)(2), NASD Rule 3110(i) (Holding of Incorporated NYSE Rule 342. The which is identical to NASD Rule Customer Mail) with new FINRA Rule details of the proposed rule change are 3010(a)(2), would require a member’s 3150 (Holding of Customer Mail); and described below. supervisory system to include the (5) delete the following Incorporated designation of an appropriately (1) Proposed FINRA Rule 3110 registered principal(s) with authority to NYSE Rules and NYSE Rule (Supervision) carry out the supervisory Interpretations: (i) NYSE Rule 342 Proposed FINRA Rule 3110 is based responsibilities for each type of business (Offices—Approval, Supervision and primarily on existing requirements in in which the member engages for which Control) and related NYSE Rule NASD Rule 3010 and Incorporated registration as a broker-dealer is Interpretations; (ii) NYSE Rule 343 NYSE Rule 342 relating to, among other required. (Offices—Sole Tenancy, and Hours) and things, supervisory systems, written (iii) Proposed FINRA Rule 3110(a)(3) related NYSE Rule Interpretations; (iii) procedures, internal inspections, and and Proposed Supplementary Material NYSE Rule 351(e) (Reporting review of correspondence. Proposed .01–.02 Requirements) and NYSE Rule FINRA Rule 3110 also would Interpretation 351(e)/01 (Reports of incorporate provisions in other NASD Proposed FINRA Rule 3110(a)(3) Investigation); (iv) NYSE Rule 354 rules that pertain to supervision, would require the registration and (Reports to Control Persons); and (v) including NASD Rule 3012. designation as a branch office or an NYSE Rule 401 (Business Conduct). office of supervisory jurisdiction (A) Proposed FINRA Rule 3110(a) (‘‘OSJ’’) of each location, including the The text of the proposed rule change (Supervisory System) main office, as those terms are defined is available on FINRA’s Web site at Proposed FINRA Rule 3110(a) would in the proposed rule. Proposed FINRA http://www.finra.org, at the principal require a member to have a supervisory Rule 3110(a)(3) is based on similar office of FINRA and at the system for the activities of its associated provisions in NASD Rule 3010(a)(3). In Commission’s Public Reference Room. persons that is reasonably designed to addition, the proposed rule provision II. Self-Regulatory Organization’s achieve compliance with the applicable and proposed Supplementary Material Statement of the Purpose of, and securities laws and regulations and .01 (Registration of Main Office) incorporate the requirement in NASD Statutory Basis for, the Proposed Rule FINRA and Municipal Securities IM–1000–4 (Branch Offices and Offices Change Rulemaking Board (‘‘MSRB’’) rules. The proposed rule provision is substantially of Supervisory Jurisdiction) that all In its filing with the Commission, branch offices and OSJs must be FINRA included statements concerning 3 The current FINRA rulebook consists of: (1) registered as either a branch office or FINRA Rules; (2) NASD Rules; and (3) rules OSJ, respectively. FINRA is deleting the purpose of and basis for the incorporated from the NYSE (‘‘Incorporated NYSE proposed rule change and discussed any NASD IM–1000–4 as part of this Rules’’) (together, the NASD Rules and Incorporated proposed rule change. comments it received on the proposed NYSE Rules are referred to as the ‘‘Transitional rule change. The text of these statements Rulebook’’). While the NASD Rules generally apply to all FINRA members, the Incorporated NYSE 4 In this regard, SEC staff has confirmed FINRA may be examined at the places specified Rules apply only to those members of FINRA that staff’s view that a violation of the MSRB rules also in Item IV below. FINRA has prepared are also members of the NYSE (‘‘Dual Members’’). would be a violation of the federal securities laws, summaries, set forth in sections A, B, The FINRA Rules apply to all FINRA members, as it would constitute a violation of SEA Section unless such rules have a more limited application 15B(c)(1). See Letter from James L. Eastman, Chief and C below, of the most significant by their terms. For more information about the Counsel and Associate Director, Division of Trading aspects of such statements. rulebook consolidation process, see Information and Markets, SEC, to Patrice M. Gliniecki, Senior Notice, March 12, 2008 (Rulebook Consolidation Vice President and Deputy General Counsel, FINRA Process). (March 17, 2009).

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In addition, the proposed rule change that office. Such on-site principal must require a member to use reasonable moves, with no substantive changes, the have a physical presence, on a regular efforts to determine that all supervisory provisions in NASD Rule 3010(a)(3) and routine basis, at the OSJ for which personnel have the necessary setting forth factors a member should the principal has supervisory experience or training to be qualified to consider in designating additional responsibilities. The proposed carry out their assigned responsibilities. locations as OSJs into proposed supplementary material would establish Proposed FINRA Rule 3110(a)(7) would Supplementary Material .02 a general presumption that a principal require each registered representative (Designation of Additional OSJs). will not be assigned to supervise more and registered principal to participate, than one OSJ. If a member determines at least once each year, in an interview (iv) Proposed FINRA Rule 3110(a)(4) it is necessary to designate and assign a or meeting at which compliance matters and Proposed Supplementary Material single appropriately registered principal relevant to the particular representative .03–.04 to supervise more than one OSJ, the or principal are discussed. These Proposed FINRA Rule 3110(a)(4) proposed supplementary material proposed provisions would replace the would require a member to designate would require the member to take into nearly identical provisions in NASD one or more appropriately registered consideration, among others, the Rule 3010(a)(5) through (7) with only principals in each OSJ and one or more following factors: minor editorial changes. appropriately registered representatives • Whether the principal is qualified Proposed Supplementary Material .05 or principals in each non-OSJ branch by virtue of experience and training to (Annual Compliance Meeting) would office with authority to carry out the supervise the activities and associated codify existing guidance that a member supervisory responsibilities assigned to persons in each location; is not required to conduct in-person that office by the member. This • Whether the principal has the meetings with each registered person or proposed provision would replace the capacity and time to supervise the groups of registered persons to comply nearly identical provision in NASD Rule activities and associated persons in each with the annual compliance meetings 3010(a)(4) with a minor editorial change location; required by proposed FINRA Rule to delete the phrase ‘‘including the main • Whether the principal is a 3110(a)(7).5 However, a member that office,’’ from the rule text. producing registered representative; chooses to conduct meetings using other • Supplementary Material .03 (One- Whether the OSJ locations are in methods (e.g., on-demand webcast or Person OSJs) codifies existing guidance sufficiently close proximity to ensure course, video conference, interactive on the supervision of one-person OSJs. that the principal is physically present classroom setting, telephone, or other Specifically, the proposed at each location on a regular and routine electronic means) must ensure, at a supplementary material would clarify basis; and • minimum, that each registered person the core concept that the registered The nature of activities at each attends the entire meeting (e.g., an on- principal designated to carry out location, including size and number of demand annual compliance webcast supervisory responsibilities assigned to associated persons, scope of business would require each registered person to such an OSJ (‘‘on-site principal’’) cannot activities, nature and complexity of use a unique user ID and password to supervise his or her own activities if products and services offered, volume of gain access and use a technology such principal is authorized to engage business done, the disciplinary history platform to track the time spent on the in business activities other than the of persons assigned to such locations, webcast, provide click-as-you-go supervision of associated persons or and any other indicators of irregularities confirmation, and have an attestation of other offices as enumerated in proposed or misconduct. completion at the end of a webcast) and FINRA Rule 3110(e)(1)(D) through (G). Where a member determines to assign is able to ask questions regarding the Proposed Supplementary Material .03 one principal to supervise more than presentation and receive answers in a also would provide that, in such one OSJ, the member must document timely fashion (e.g., an on-demand instances, the on-site principal must be the factors it used to determine why the annual compliance webcast that allows under the effective supervision and member considers such supervisory registered persons to ask questions via control of another appropriately structure to be reasonable. There is a an email to a presenter or a centralized registered principal (‘‘senior principal’’). further general presumption that a address or via a telephone hotline and The senior principal is responsible for determination by a member to assign receive timely responses directly or supervising the activities of the on-site one principal to supervise more than view such responses on the member’s principal at such office and must two OSJs is unreasonable. If a member intranet site). conduct on-site supervision of such OSJ determines to designate and assign one on a regular periodic schedule principal to supervise more than two (B) Proposed FINRA Rule 3110(b) determined by the member. The OSJs, the proposed supplementary (Written Procedures) proposed supplementary material material would provide that such FINRA proposes to consolidate would require a member to consider, determination will be subject to greater various provisions and rules that among other factors, the nature and scrutiny, and the member will have a currently require written procedures complexity of the securities activities greater burden to evidence the into proposed FINRA Rule 3110(b), for which the location is responsible, reasonableness of such structure. the nature and extent of contact with (v) Proposed FINRA Rule 3110(a)(5) 5 See Notices to Members 99–45 (June 1999) and customers, and the disciplinary history 05–44 (June 2005); see also Letter from Afshin of the on-site principal in determining through (7) and Proposed Atabaki, FINRA, to Evan Charkes, Citigroup Global this schedule. Supplementary Material .05 Markets, Inc., dated November 30, 2006 (members may use on-demand webcast technology to satisfy Proposed Supplementary Material .04 Proposed FINRA Rule 3110(a)(5) the annual compliance meeting requirement, (Supervision of Multiple OSJs by a would require that each registered subject to specified safeguards and conditions); Single Principal) would clarify the person be assigned to an appropriately letter from Afshin Atabaki, FINRA, to S. Kendrick requirement in proposed Rule 3110(a)(4) registered representative(s) or Dunn, Pacific Select Distributors, Inc., dated February 5, 2013 (members may use on-demand to designate an on-site principal in each principal(s) who is responsible for course without voice narration to satisfy annual OSJ with authority to carry out the supervising that person’s activities. compliance meeting requirement, subject to supervisory responsibilities assigned to Proposed FINRA Rule 3110(a)(6) would specified safeguards and conditions).

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including provisions from NASD Rule (iv) Proposed FINRA Rule 3110(b)(4) • The identification and reporting to 3010(d) relating to the supervision and (Review of Correspondence and Internal FINRA of customer complaints (FINRA review of registered representatives’ Communications) and Proposed Rule 4530); 9 and transactions and correspondence and Supplementary Material .07–.10 • The identification and prior written Incorporated NYSE Rule 401A approval of changes in account name(s) (Customer Complaints) relating to the Proposed FINRA Rule 3110(b)(4) (including related accounts) or review of customer complaints. In would generally incorporate the designation(s) (including error accounts) addition, proposed supplementary substance of NASD Rule 3010(d)(2) regarding customer orders (FINRA Rule material, which is discussed in detail (Review of Correspondence) requiring 4515). below, would codify and expand members to have supervisory Proposed Supplementary Material .07 guidance in these areas. procedures for the review of (Risk-based Review of Correspondence correspondence. In addition, the and Internal Communications), (i) Proposed FINRA Rule 3110(b)(1) proposed provision and proposed however, would require a member, by (General Requirements) related supplementary material would employing risk-based principles, to Proposed FINRA Rule 3110(b)(1) incorporate existing guidance regarding decide the extent to which additional would require a member to establish, the supervision of electronic policies and procedures for the review maintain, and enforce written communications in Regulatory Notice of incoming and outgoing written procedures to supervise the types of 07–59 (December 2007). (including electronic) correspondence business in which it engages and the Specifically, proposed FINRA Rule with the public that fall outside of the activities of its associated persons that 3110(b)(4) would require that a member subject matters listed in proposed are reasonably designed to achieve have supervisory procedures for the FINRA Rule 3110(b)(4) are necessary for compliance with applicable securities review of the member’s incoming and its business and structure. If a member’s laws and regulations, FINRA rules, and outgoing written (including electronic) procedures do not require that all MSRB rules. The proposed rule correspondence with the public and correspondence be reviewed before use provision is substantially similar to internal communications that relate to or distribution, the procedures must NASD Rule 3010(b)(1) except for two provide for: its investment banking or securities • revisions that mirror changes in business. In particular, the proposed The education and training of proposed FINRA Rule 3110(a). First, rule would require a member to have associated persons regarding the firm’s proposed FINRA Rule 3110(b)(1) would supervisory procedures requiring the procedures governing correspondence; • The documentation of such refer only to associated persons instead member’s review of incoming and education and training; and of the current reference in NASD Rule outgoing written (including electronic) 3010(b)(1) to ‘‘registered representatives, • Surveillance and follow-up to correspondence with the public to ensure that such procedures are registered principals, and other properly identify and handle in associated persons.’’ Second, FINRA implemented and followed. accordance with firm procedures, In addition, proposed Supplementary Rule 3110(b)(1) would require a customer complaints, instructions, member’s written supervisory Material .07 would require a member, funds and securities, and by employing risk-based principles, to procedures to be reasonably designed to communications that are of a subject achieve compliance with MSRB rules, decide the extent to which additional matter that require review under FINRA policies and procedures for the review which NASD Rule 3010(b)(1) does not and MSRB rules and federal securities explicitly reference.6 of internal communications that are not laws. In addition, proposed FINRA Rule of a subject matter that require review (ii) Proposed FINRA Rule 3110(b)(2) 3110(b)(4) would require a member to under FINRA and MSRB rules and (Review of Member’s Investment have supervisory procedures to review federal securities laws are necessary for Banking and Securities Business) and internal communications to properly its business and structure. Proposed Supplementary Material .06 identify communications that are of a Proposed FINRA Rule 3110(b)(4) also FINRA is retaining the provision in subject matter that require review under would require that a registered principal NASD Rule 3010(d)(1) requiring FINRA and MSRB rules and federal review correspondence with the public principal review, evidenced in writing, securities laws. Those communications and internal communications and of all transactions, but is relocating the include (without limitation): evidence those reviews in writing provision to proposed FINRA Rule • Communications between non- (either electronically or on paper). 3110(b)(2). FINRA is also proposing to research and research departments Proposed Supplementary Material .09 amend the provision to clarify that such concerning a research report’s contents (Delegation of Correspondence and review would include all transactions (NASD Rule 2711(b)(3) and Internal Communication Review relating to the member’s investment Incorporated NYSE Rule 472(b)(3)); Functions) would allow a supervisor/ banking or securities business. Proposed • Certain communications with the principal to delegate review functions to Supplementary Material .06 (Risk-based public that require a principal’s pre- an unregistered person; however, the Review of Member’s Investment approval (FINRA Rule 2210); 8 supervisor/principal remains ultimately Banking and Securities Business) would responsible for the performance of all permit a member to use a risk-based (Supervision of Outside Securities Activities) and necessary supervisory reviews. system to review these transactions. proposed Supplementary Material .07 (Reliance on Proposed Supplementary Material .08 Bank or Affiliated Entity to Supervise Dual (Evidence of Review of Correspondence (iii) Proposed FINRA Rule 3110(b)(3) Employees). FINRA, however, has determined to and Internal Communications) would FINRA is preserving this provision for address NASD Rule 3040 as a separate proposal. codify existing FINRA guidance that 8 7 See Securities Exchange Act Release No. 66681 future rulemaking. (March 29, 2012), 77 FR 20452 (April 4, 2012) merely opening a communication is not (Notice of Filing of Amendment No. 3 and Order 6 See supra note 3. Granting Accelerated Approval of SR–FINRA– 9 With respect to customer complaints, as detailed 7 As noted in Regulatory Notice 08–24 (May 2011–035); see also Regulatory Notice 12–29 (June further below, proposed FINRA Rule 3110(b)(5) also 2008), FINRA proposed to delete NASD Rule 3040 2012) (SEC Approves New Rules Governing would affirmatively require members to capture, (Private Securities Transactions of an Associated Communications With the Public—Effective Date: acknowledge, and respond to all written (including Person) and replace it with FINRA Rule 3110(b)(3) February 4, 2013). electronic) customer complaints.

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sufficient review.10 Instead, a member assess, and they raise competing views where a supervisor holds a very senior must identify what communication was as to the substance of the complaint executive position within the firm. reviewed, the identity of the reviewer, being alleged. Consequently, oral Members relying on this exception the date of review, and the actions taken complaints do not lend themselves as would not be required to notify FINRA by the member as a result of any effectively to a review program as of their reliance. significant regulatory issues identified written complaints, which are more Proposed FINRA Rule 3110(b)(6)(D) during the review. readily documented and retained. would require a member to have Finally, proposed Supplementary However, FINRA reminds members that procedures to prevent the standards of Material .10 (Retention of the failure to address any customer supervision required pursuant to Correspondence and Internal complaint, written or oral, may be a proposed FINRA Rule 3110(a) from Communications), which is largely violation of FINRA Rule 2010 being reduced in any manner due to any based on the requirements in NASD (Standards of Commercial Honor and conflicts of interest that may be present Rule 3010(d)(3) (Retention of Principles of Trade). with respect to the associated person Correspondence), would require a (vi) Proposed FINRA Rule 3110(b)(6) being supervised, such as the person’s member to retain its internal (Documentation and Supervision of position, the amount of revenue such communications and correspondence of Supervisory Personnel) and Proposed person generates for the firm, or any associated persons relating to the Supplementary Material .11 compensation that the associated person member’s investment banking or Proposed FINRA Rule 3110(b)(6) is conducting the supervision may derive securities business in accordance with based largely on existing provisions in from the associated person being SEA Rule 17a–4(b) 11 and make those NASD Rule 3010(b)(3) requiring a supervised. There is no exception from records available to FINRA upon member’s supervisory procedures to set this provision. request. forth the member’s supervisory system (vii) Proposed FINRA Rule 3110(b)(7) (v) Proposed FINRA Rule 3110(b)(5) and to include a record of the member’s (Maintenance of Written Supervisory (Review of Customer Complaints) supervisory personnel with such details Procedures) and Proposed Incorporated NYSE Rule 401A as titles, registration status, locations, Supplementary Material .12 (Customer Complaints) requires firms to and responsibilities. The proposed rule Proposed FINRA Rule 3110(b)(7), acknowledge and respond to all also would include a new provision, which would replace similar customer complaints subject to the proposed FINRA Rule 3110(b)(6)(C), requirements in NASD Rule 3010(b)(4), reporting requirements of Incorporated that would address potential abuses in would require a member to keep and NYSE Rule 351(d) (Reporting connection with the supervision of maintain a copy of the member’s written Requirements). Previously, this meant supervisors. This provision would supervisory procedures, or the relevant that firms had to acknowledge and replace NASD Rule 3012(a)(2) portions thereof, at each OSJ and at each respond to both written and oral concerning the supervision of a location where supervisory activities are customer complaints. However, as part producing manager’s customer account conducted on behalf of the member. The of the effort to harmonize the NASD and activity and the requirement to impose member must also promptly amend its NYSE rules in the interim period before heightened supervision when any written supervisory procedures to completion of the Consolidated FINRA producing manager’s revenues rise reflect changes in applicable securities Rulebook, Incorporated NYSE Rule above a specific threshold. laws or regulations, including FINRA 351(d) was amended to limit the Specifically, the proposed provision and MSRB rules, and as changes occur definition of ‘‘customer complaint’’ to would require members to have in its supervisory system. In addition, include only written complaints, procedures prohibiting associated each member must promptly thereby making the definition persons who perform a supervisory communicate its written supervisory substantially similar to that in NASD function from: procedures and amendments to all Rule 3070(c) (Reporting • supervising their own activities; associated persons to whom such Requirements).12 and written supervisory procedures and Proposed FINRA Rule 3110(b)(5), • reporting to, or having their amendments are relevant based on their which would require a member’s compensation or continued employment activities and responsibilities. supervisory procedures to include determined by, someone they are Proposed Supplementary Material .12 procedures to capture, acknowledge, supervising. (Use of Electronic Media to and respond to all written (including The proposal, however, would create Communicate Written Supervisory electronic) customer complaints, an exception for a member that Procedures) would permit a member to essentially incorporates the customer determines, with respect to any of its satisfy its obligation to communicate its complaint requirement in Incorporated supervisory personnel, that compliance written supervisory procedures, and any NYSE Rule 401A, including the with either of these conditions is not amendments thereto, using electronic limitation on including only written possible because of the member’s size or media, provided that: (1) The written (including electronic) customer a supervisory personnel’s position supervisory procedures have been complaints. FINRA believes that oral within the firm. A member relying on promptly communicated to, and are complaints are difficult to capture and this exception must document the readily accessible by, all associated factors the member used to reach such persons to whom such supervisory 10 See Regulatory Notice 07–59 (December 2007). determination and how the supervisory procedures apply based on their 11 17 CFR 240.17a–4(b). arrangement with respect to such activities and responsibilities through, 12 FINRA adopted FINRA Rule 4530 (Reporting supervisory personnel otherwise for example, the member’s intranet Requirements) to replace NASD Rule 3070 and comparable provisions in Incorporated NYSE Rule comports with proposed FINRA Rule system; (2) all amendments to the 351. See Securities Exchange Act Release No. 63260 3110(a). Proposed Supplementary written supervisory procedures are (November 5, 2010), 75 FR 69508 (November 12, Material .11 (Supervision of Supervisory promptly posted to the member’s 2010) (Notice of Filing of Amendments No. 1 and Personnel) would explain that a member electronic media; (3) associated persons 2 and Order Granting Accelerated Approval of File No. SR–FINRA–2010–034). FINRA Rule 4530 generally will need to rely on this are notified that amendments relevant to became effective on July 1, 2011. See Regulatory exception only because it is a sole their activities and responsibilities have Notice 11–06 (February 2011). proprietor in a single-person firm or been made to the written supervisory

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procedures; (4) the member has supervised by the branch manager’s customers to third party accounts, from reasonable procedures to monitor and supervisor, and the branch office customer accounts to outside entities maintain the security of the material manager generates 20% or more of the (e.g., banks, investment companies, posted to ensure that it cannot be revenue of the business units supervised etc.), from customer accounts to altered by unauthorized persons; and (5) by the branch office manager’s locations other than a customer’s the member retains current and prior supervisor. The proposal would replace primary residence (e.g., post office box, versions of its written supervisory these requirements with provisions ‘‘in care of’’ accounts, alternate address, procedures in compliance with the requiring a member to: etc.), and between customers and applicable record retention • prevent the inspection standards registered representatives, including the requirements of SEA Rule 17a–4(e)(7).13 required pursuant to proposed FINRA hand-delivery of checks; and (5) (C) Proposed FINRA Rule 3110(c) Rule 3110(c)(1) from being reduced in changes of customer account (Internal Inspections) and Proposed any manner due to any conflicts of information, including address and Supplementary Material .13–.15 interest that may be present, including investment objective changes and Proposed FINRA Rule 3110(c)(1), but not limited to, economic, validation of such changes. With respect based largely on NASD Rule 3010(c)(1), commercial, or financial interests in the to the transmittal of funds or securities would retain the existing requirements associated persons and businesses being from customers to third party accounts, for each member to review, at least inspected; and the proposal would eliminate NASD annually, the businesses in which it • ensure that the person conducting Rule 3012’s parenthetical text (‘‘i.e., a engages and inspect each office on a an inspection pursuant to proposed transmittal that would result in a change specified schedule. That inspection FINRA Rule 3110(c)(1) is not an in beneficial ownership)’’ to clarify that schedule would require that OSJs and associated person assigned to the all transmittals to an account where a supervisory branch offices be inspected location or is not directly or indirectly customer on the original account is not at least annually, non-supervisory supervised by, or otherwise reporting to, a named account holder are included. branch offices be inspected at least an associated person assigned to the Proposed FINRA Rule 3110(c)(2)(B) every three years, and non-branch location. would require for transmittals of funds locations be inspected on a regular A member that determines it cannot or securities a means or method of periodic schedule. The proposed rule comply with this last condition due to customer confirmation, notification, or provision also would clarify that the its size or business model must follow-up that can be documented but term ‘‘annually,’’ as used in proposed document in the inspection report both would make clear that members may FINRA Rule 3110(c), means on a the factors the member used to make its use risk-based methods to determine the calendar-year basis. determination and how the inspection authenticity of the transmittal Proposed Supplementary Material .14 otherwise comports with proposed instructions. Proposed FINRA Rule (General Presumption of Three-Year FINRA Rule 3110(c)(1). Proposed 3110(c)(2)(C) also would require for Limit for Periodic Inspection Schedules) Supplementary Material .15 (Exception changes of customer account would provide a general presumption to Persons Prohibited from Conducting information a means or method of that a non-branch location will be Inspections) would provide that such a customer confirmation, notification or inspected at least every three years, determination generally will arise only follow-up that can be documented and even in the absence of any indicators of in instances where the member has only that complies with SEA Rules 17a– irregularities or misconduct (i.e., ‘‘red one office or the member has a business 3(a)(17)(i)(B)(2) 15 and 17a– flags’’). If a member establishes a model where small or single-person 3(a)(17)(i)(B)(3).16 Finally, proposed periodic inspection schedule longer offices report directly to an OSJ manager FINRA Rule 3110(c)(2)(D) would make than three years, the member must who is also considered the offices’ clear that if a location being inspected document in its written supervisory and branch office manager. The proposal does not engage in all of the activities inspection procedures the factors used also generally would retain as listed above, the member must identify in determining that a longer periodic Supplementary Material .13 (Standards those activities in the location’s written inspection cycle is appropriate. As with for Reasonable Review) the content of inspection report and document in the NASD Rule 3010(c), proposed FINRA NASD IM–3010–1 (Standards for report that supervisory policies and Rule 3110(c) would require a member to Reasonable Review) relating to procedures must be in place at that retain a written record of each review standards for the reasonable review of location before the location can engage and inspection, reduce a location’s offices.14 in them. inspection to a written report, and keep In addition, the proposal would (D) Proposed FINRA Rule 3110(d) each inspection report on file either for relocate into proposed FINRA Rule (Transaction Review and Investigation) a minimum of three years or, if the 3110(c)(2) provisions in NASD Rule Section 15(g) of the Act,17 adopted as location’s inspection schedule is longer 3012 regarding the review and part of the Insider Trading and than three years, until the next monitoring of specified activities, such Securities Fraud Enforcement Act of inspection report has been written. as transmittals of funds and securities 1988 (‘‘ITSFEA’’),18 requires every The proposal revises NASD Rule and customer changes of address and registered broker or dealer to establish, 3010(c)(3)’s provisions prohibiting investment objectives. Specifically, maintain, and enforce written policies certain persons from conducting office proposed FINRA Rule 3110(c)(2)(A) and procedures reasonably designed to inspections to make the provisions less would require a member to test and prevent the misuse of material, non- prescriptive. To that end, the proposed verify a location’s procedures for: (1) public information by the broker or rule would eliminate the heightened Safeguarding of customer funds and office inspection requirements members securities; (2) maintaining books and 15 17 CFR 240.17a–3(a)(17)(i)(B)(2) (changes in must implement if the person records; (3) supervision of supervisory the name or address of customer or owner). 16 conducting the office inspection either personnel; (4) transmittals of funds (e.g., 17 CFR 240.17a–3(a)(17)(i)(B)(3) (changes in an reports to the branch office manager’s account’s investment objectives). wires or checks, etc.) or securities from 17 15 U.S.C. 78o(g). supervisor or works in an office 18 See Insider Trading and Securities Fraud 14 See also Incorporated NYSE Rule 342.10 Enforcement Act of 1988, Pub. L. No. 100–704, 102 13 17 CFR 240.17a–4(e)(7). (Definition of Branch Office). Stat. 4677.

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dealer or any associated person of the provide reports to FINRA regarding report at least annually summarizing the broker or dealer. Incorporated NYSE such investigations. These members test results and any necessary Rule 342.21 sets forth specific would be required to make written amendments to those procedures. supervisory procedures for compliance reports to FINRA within ten business Proposed FINRA Rule 3120(b) would with ITSFEA by requiring firms to days of the end of each calendar quarter require a member that reported $200 review trades in NYSE-listed securities describing each internal investigation million or more in gross revenue (total and related financial instruments that initiated in the previous calendar revenue less, if applicable, commodities are effected for the member’s account or quarter, including the member’s revenue) on its FOCUS reports in the for the accounts of the member’s identity, the commencement date of prior calendar year to include in the employees and family members. each internal investigation, the status of report it submits to senior management: Incorporated NYSE Rule 342.21 also each open internal investigation, the • a tabulation of the reports requires members to promptly conduct resolution of any internal investigation pertaining to customer complaints and an internal investigation into any trade reached during the previous calendar internal investigations made to FINRA the firm identifies that may have quarter, and with respect to each during the preceding year; and violated insider trading laws or rules. internal investigation, the identity of the • a discussion of the preceding year’s FINRA is proposing FINRA Rule security, trades, accounts, member’s compliance efforts, including 3110(d) to incorporate into the associated persons or family members of procedures and educational programs, Consolidated FINRA Rulebook the such associated person holding a in each of the following areas: provisions of Incorporated NYSE Rule covered account, under review, and a • trading and market activities; 342.21, with some modifications, and copy of the member’s policies and • investment banking activities; extend the requirement beyond NYSE- procedures required by proposed FINRA • antifraud and sales practices; listed securities and related financial Rule 3110(d)(1)(A). If a member subject • finance and operations; instruments to cover all securities. • supervision; and to this requirement did not have an • Specifically, proposed FINRA Rule open internal investigation or either anti-money laundering. 3110(d)(1) would require a member to initiate or complete an internal The categories listed above are have supervisory procedures for the investigation during a particular incorporated from the annual report review of securities transactions that are calendar quarter, the member would not content requirements of Incorporated effected for the account(s) of the be required to submit a report for that NYSE Rule 342.30 (Annual Report and member or associated persons of the quarter. Certification). member as well as any other ‘‘covered In addition, the proposed rule would (3) Proposed FINRA Rule 3150 account’’ 19 to identify trades that may require a written report within five (Holding of Customer Mail) violate the provisions of the Act, the business days of completion of such The proposed rule change would rules thereunder, or FINRA rules internal investigation in which it was replace NASD Rule 3110(i) (Holding of prohibiting insider trading and determined that a violation of the Customer Mail) with proposed FINRA manipulative and deceptive devices. provisions of the Exchange Act, the Rule 3150, a more general rule that The proposed rule change also would rules thereunder, or FINRA rules would eliminate the strict time limits in require members to promptly conduct prohibiting insider trading and NASD Rule 3110(i) and generally would an internal investigation into any manipulative and deceptive devices had allow a member to hold a customer’s identified trades to determine whether a occurred. The report must detail the mail for a specific time period in violation of those laws or rules has completion of the investigation, accordance with the customer’s written occurred. including the results of the instructions if the member meets Proposed FINRA Rule 3110(d)(2) investigation, any internal disciplinary specified conditions. Specifically, would require any member that engages action taken, and any referral of the proposed FINRA Rule 3150(a) would in ‘‘investment banking services,’’ 20 to matter to FINRA, another self-regulatory provide that a member may hold mail organization (‘‘SRO’’), the SEC, or any for a customer who will not be receiving 19 Proposed FINRA Rule 3110(d)(3)(A) defines the other federal, state, or international mail at his or her usual address, term ‘‘covered account’’ to include (i) any account regulatory authority. provided that the member: held by the spouse, domestic partner, child, parent, • receives written instructions from sibling, son-in-law, daughter-in-law, father-in-law, (E) Proposed FINRA Rule 3110(e) or mother-in-law of a person associated with the (Definitions) the customer that include the time member where such account is introduced or Proposed FINRA Rule 3110(e) would period during which the member is carried by the member; (ii) any account introduced retain the definitions of ‘‘branch office,’’ requested to hold the customer’s mail. If or carried by the member in which a person associated with the member has a beneficial ‘‘office of supervisory jurisdiction,’’ and the time period included in the interest; (iii) any account introduced or carried by ‘‘business day’’ in NASD Rule 3010(g). customer’s instructions is longer than the member over which a person associated with The branch office definition already has three consecutive months (including the member has the authority to make investment any aggregation of time periods from decisions; and (iv) any account of a person been harmonized with the definition of associated with a member that is disclosed to the ‘‘branch office’’ in Incorporated NYSE prior requests), the customer’s member pursuant to NASD Rule 3050 or NYSE Rule Rule 342.10. instructions must include an acceptable 407, as applicable. reason for the request (e.g., safety or 20 Proposed FINRA Rule 3110(d)(3)(B) defines the (2) Proposed FINRA Rule 3120 security concerns). Convenience is not term ‘‘investment banking services’’ to include, (Supervisory Control System) without limitation, acting as an underwriter, an acceptable reason for holding mail participating in a selling group in an offering for the FINRA is proposing to replace NASD longer than three months; issuer, or otherwise acting in furtherance of a public Rule 3012 (Supervisory Control System) • informs the customer in writing of offering of the issuer; acting as a financial adviser with FINRA Rule 3120. Proposed any alternate methods, such as email or in a merger or acquisition; providing venture capital or equity lines of credit or serving as placement FINRA Rule 3120(a) would retain NASD access through the member’s Web site, agent for the issuer or otherwise acting in Rule 3012(a)(1)’s testing and verification that the customer may use to receive or furtherance of a private offering of the issuer. This requirements for the member’s monitor account activity and proposed definition is the same definition as in supervisory procedures, including the information and obtains the customer’s proposed FINRA Rule 2240(a)(4) (Research Analysts and Research Reports). See Regulatory Notice 08– requirement to prepare and submit to confirmation of the receipt of such 55 (October 2008). the member’s senior management a information; and

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• verifies at reasonable intervals that Commission approval. The effective having their compensation or continued the instructions still apply. date will be no later than 365 days employment determined by, a person or In addition, proposed FINRA Rule following Commission approval. persons they are supervising, where a 3150(b) would require that the member member determines that compliance 2. Statutory Basis be able to communicate, as necessary, with either of these conditions is not with the customer in a timely manner FINRA believes that the proposed rule possible because of the member’s size or during the time the member is holding change is consistent with the provisions supervisory personnel’s position within the customer’s mail to provide of Section 15A(b)(6) of the Act,21 which the firm. The proposed rule change also important account information (e.g., requires, among other things, that provides an exception from proposed privacy notices, the SIPC information FINRA rules must be designed to FINRA Rule 3110’s requirement that the disclosures required by FINRA Rule prevent fraudulent and manipulative person conducting a location inspection 2266 (SIPC Information)). acts and practices, to promote just and not be an associated person assigned to Finally, proposed FINRA Rule 3150(c) equitable principles of trade, and, in the location or is not directly or would require a member holding a general, to protect investors and the indirectly supervised by, or otherwise customer’s mail to take actions public interest. FINRA also believes that reporting to, an associated person reasonably designed to ensure that the the proposed rule change would clarify assigned to that location, where the customer’s mail is not tampered with, and streamline the supervision and member determines that compliance held without the customer’s consent, or supervisory rules for adoption as FINRA with this requirement is not possible used by an associated person of the Rules in the Consolidated FINRA either because of the member’s size or member in any manner that would Rulebook. business model. These exceptions are violate FINRA rules, MSRB rules, or the B. Self-Regulatory Organization’s designed in particular to provide relief federal securities laws. Statement on Burden on Competition to smaller-sized members, such as sole (4) Proposed FINRA Rule 3170 (Tape proprietors or members with only one Recording of Registered Persons by FINRA does not believe that the office, as well as members with a Certain Firms) proposed rule change would result in business model where small or single FINRA proposes to reconstitute NASD any burden on competition that is not person offices report directly to an OSJ Rule 3010(b)(2) (Tape Recording of necessary or appropriate in furtherance manager who is also considered the Conversations) without any substantive of the purposes of the Act. The office’s branch office manager. At the changes as new FINRA Rule 3170. The proposed rule change’s risk-based same time, the proposed rule change is only proposed changes to the rule text approach for specified aspects of a designed to protect against concerns are minor editorial changes to assist member’s supervisory procedures is that a member relying on the exceptions with readability, changes to the intended to allow firms the flexibility to would be unable to comply with its definition of disciplinary history to establish their supervisory programs in supervisory and inspection obligations reflect the adoption of the enumerated a manner that reflects their business by requiring the member to document NASD rules as FINRA rules, and a models, and based on those models, both the factors the member used to definition clarifying that the term ‘‘tape focus on areas where heightened reach the determination that it needs to recording’’ would include without concerns may be warranted. For rely on the exceptions and how the limitation, any electronic or digital example, proposed FINRA Rule 3110’s member’s reliance on the exception recording that meets the requirements of provisions requiring supervisory otherwise comports with the applicable proposed FINRA Rule 3170. procedures for the risk-based review of standards set forth in proposed FINRA all transactions relating to a member’s Rule 3110. (5) Proposal to Eliminate NYSE Rules investment banking or securities The proposed rule change also seeks As stated previously, the proposed business and review of a member’s to mitigate compliance costs and rule change would delete corresponding correspondence and internal burdens with respect to proposed provisions in the Incorporated NYSE communications that are not of a subject FINRA Rule 3120’s annual reporting Rules and Interpretations that are, in matter that require review under FINRA requirements by requiring that only main part, either duplicative of, or do and MSRB rules would alleviate members reporting $200 million or more not align with, the proposed supervision compliance costs by providing members in gross revenues in the preceding year requirements discussed above. with greater flexibility to tailor their (increased from the $150 million Specifically, the proposed deleted rule supervisory and supervisory control threshold originally proposed in the provisions are: procedures to reflect their business, Initial Filing) 22 include in their annual • Incorporated NYSE Rule 342; size, and organizational structure. reports supplemental information from • Incorporated NYSE Rule In addition, FINRA believes that the Incorporated NYSE Rule 342.30’s Interpretations 342(a)(b)/01 through proposed rule change is tailored to annual report content requirements. 342(a)(b)/03, 342(b)/01 through 342(b)/ minimize the membership’s burden and FINRA believes that the revised 02, 342(c)/02, 342(e)/01, 342.10/01, cost of complying with the consolidated threshold strikes the appropriate 342.13/01, 342.15/01 through 342.15/05, supervision rules by providing balance as it encompasses larger dual 342.16/01 through 342.16/03; exceptions, based on a member’s size, member firms, members engaged in • Incorporated NYSE Rules 343, resources, and business model, to significant underwriting activities 343.10 and NYSE Rule Interpretation specified supervisory and inspection (including variable annuity principal 343(a)/01; requirements in proposed FINRA Rule underwriting and fund distributions) • Incorporated NYSE Rule 351(e) and 3110. Specifically, the proposed rule and substantial trading activities or NYSE Rule Interpretation 351(e)/01; change provides an exception from market making business, and members • Incorporated NYSE Rule 354; and proposed FINRA Rule 3110’s provisions with extensive sales platforms— • Incorporated NYSE Rule 401. prohibiting a member’s supervisory approximately 160 member firms in FINRA will announce the effective personnel from supervising their own total. The additional content date of the proposed rule change in a activities and from reporting to, or requirements applicable to such firms Regulatory Notice to be published no later than 90 days following 21 15 U.S.C. 78o–3(b)(6). 22 See infra note 22.

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would provide a valuable resource in Initial Filing on September 27, 2011 heightened concern may be warranted. the context of understanding and prior to filing a response to comments.26 In addition, as FINRA noted in the examining those firms and their Accordingly, the comments to the Initial Initial Filing, the proposed rules further activities, which can generally be more Filing and FINRA’s responses are protect investors by retaining certain complex or sizeable than smaller firms’ discussed below. specific prescriptive requirements of activities. FINRA also considered that (a) General Comments NASD Rules 3010 and 3012, such as most members meeting the proposed mandatory inspection cycles, threshold currently are subject to Several commenters to the Initial prohibitions on who can conduct Incorporated NYSE Rule 342.30’s Filing expressed overall support for the location inspections, and procedures for reporting requirement. Further, the proposed rule change, as well as the monitoring of certain enumerated metric is easily determined by reference expressing support for specific aspects activities, while providing additional to the member’s FOCUS reports in the of the proposal, such as the principles- prescriptive requirements where calendar year prior to the annual report. based requirements for supervising necessary, including special supervision In addition, FINRA has modified supervisory personnel and codification for supervisory personnel rather than proposed FINRA Rule 3110(d)’s of existing guidance regarding just the existing special supervision for reporting obligations for internal supervision of electronic producing managers, specific investigation reports to FINRA regarding communications and the use of procedures to detect and investigate suspected ITSFEA violations in electronic media to conduct required potential insider trading violations, and 27 response to commenters’ concerns annual compliance meetings. additional content requirements for regarding potential burdens and However, one commenter opposed the specified firms’ annual reports. compliance costs. The modifications flexibility within the proposed rules, eliminate the requirement to file with especially the proposed risk-based or (b) Comments on Proposed FINRA Rule FINRA an initial report of an internal principles-based review standards for 3110(a) investigation within ten business days certain obligations, such as the approval (1) Suggested Amendment to FINRA of its commencement and replace it of securities transactions and the review Rule 3110(a) with a quarterly reporting requirement. of certain correspondence, stating that Proposed FINRA Rule 3110(a) In addition, FINRA has replaced the such flexibility would result in reduced (Supervisory System) would require a proposed requirement to report the or diminished supervisory requirements member to have a supervisory system completion of each internal that would not achieve the purpose of for the activities of its associated investigation within five business days protecting the investing public.28 persons that is reasonably designed to of its completion with a more focused In response, FINRA notes that the achieve compliance with applicable requirement that is limited to proposed rules’ risk-based approach for securities laws and regulations and investigations that resulted in a finding specified aspects of a member’s FINRA and MSRB rules. One of violation. supervisory procedures is intended to increase, not diminish, investor commenter to the Initial Filing C. Self-Regulatory Organization’s protection by allowing firms the suggested that FINRA amend proposed Statement on Comments on the flexibility to establish their supervisory FINRA Rule 3110(a) to require a Proposed Rule Change Received From programs in a manner that reflects their supervisory system for the ‘‘securities Members, Participants, or Others business models, and based on those activities’’ of a member’s associated FINRA published the proposed models, focus on areas where persons, as FINRA’s rulemaking and consolidated FINRA supervision rules examination authority does not extend 29 in Regulatory Notice 08–24 (May 2008) 2011 (‘‘CAI’’); letter from Stephanie L. Brown, to non-securities activities. The requesting comment from interested Managing Director and General Counsel, LPL commenter further contended that the Financial, to Elizabeth M. Murphy, Secretary, SEC, suggested amendment would make the parties. FINRA received 47 comment dated July 20, 2011 (‘‘LPL’’); letter from Scott Cook, letters in response to Regulatory Notice Senior Vice President Compliance, Charles Schwab provision consistent with proposed 08–24. On June 10, 2011, FINRA filed & Co., Inc., to Elizabeth M. Murphy, Secretary, SEC, FINRA Rule 3110(a)(2), which would with the SEC SR–FINRA–2011–028 (the dated July 20, 2011 (‘‘Schwab’’); letter from Joan require a member to designate an Hinchman, Executive Director, President and CEO, appropriately registered principal to be ‘‘Initial Filing’’), a proposed rule change National Society of Compliance Professionals Inc., to adopt the consolidated FINRA to Elizabeth M. Murphy, Secretary, SEC, dated July responsible for each type of a firm’s supervision rules, which addressed the 20, 2011 (‘‘NSCP’’); letter from Sarah McCafferty, business for which registration as a comments received in response to Vice President and Chief Compliance Officer, T. broker-dealer is required. As noted 23 Rowe Price Investment Services, Inc., to Elizabeth above and in the Initial Filing, proposed Regulatory Notice 08–24. M. Murphy, Secretary, SEC, dated July 20, 2011 (‘‘T. On June 29, 2011, the Initial Filing Rowe Price’’); letter from Peter J. Mougey, FINRA Rule 3110(a) is transferring was published for comment in the President, Public Investors Arbitration Bar existing rule text in NASD Rule 3010(a) Federal Register,24 and the SEC Association, to Elizabeth M. Murphy, Secretary, with only minor changes (i.e., including SEC, dated July 20, 2011 (‘‘PIABA’’); letter from an express reference to the MSRB rules, received 12 comment letters in response John Polanin and Claire Santaniello, Co-Chairs, 25 to the proposal. FINRA withdrew the Compliance and Regulatory Policy Committee 2011, referring only to associated persons Securities Industry and Financial Markets instead of the current reference in 23 See Securities Exchange Act Release No. 64736 Association, to Elizabeth M. Murphy, Secretary, NASD Rule 3010(a) to each ‘‘registered (June 23, 2011), 76 FR 38245 (June 29, 2011) (Notice SEC, dated July 20, 2011 (‘‘SIFMA’’); and letter from representative, registered principal, and of Filing of File No. SR–FINRA–2011–028). Tamara K. Salmon, Senior Associate Counsel, other associated person’’). FINRA 24 Investment Company Institute, to Elizabeth M. See supra note 22. continues to believe that proposed 25 Letters from David T. Bellaire, Esq., General Murphy, Secretary, SEC, dated July 20, 2011 Counsel and Director of Government Affairs, (‘‘ICI’’). The comment letters are available on the FINRA Rule 3110(a) would set forth the Financial Services Institute, to Elizabeth M. SEC’s Web site. appropriate standard for members’ Murphy, Secretary, SEC, dated July 14, 2011 and 26 See Securities Exchange Act Release No. 65477 supervisory systems, i.e., that a (October 4, 2011), 76 FR 62890 (October 11, 2011) July 20, 2011 (‘‘FSI’’); letters from Clifford Kirsch member’s supervisory system for the and Eric A. Arnold, Sutherland Asbill and Brennan, (Notice of Withdrawal of File No. SR–FINRA–2011– LLP, on behalf of the Committee of Annuity 028). activities of its associated persons be Insurers, to Elizabeth M. Murphy, Secretary, SEC, 27 SIFMA, FSI, CAI, Schwab, T. Rowe Price. dated July 12, 2011, July 20, 2011, and August 4, 28 PIABA. 29 SIFMA.

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reasonably designed to achieve requirements of proposed FINRA Rule The senior principal is responsible for compliance with applicable securities 3110.32 supervising the activities of the on-site principal at such OSJ and must conduct laws and regulations and FINRA and (3) Deleted Supplementary Material MSRB rules. In this regard, FINRA notes on-site supervision of the OSJ on a that Exchange Act Section 15A(b)(6) In the Initial Filing, proposed FINRA regular periodic schedule to be mandates, among other things, that Rule 3110 included Supplementary determined by the member. Material .01 (Business Lines) providing FINRA’s rules be designed to prevent that for a member’s supervisory system (1) Clarification of ‘‘Close Supervision fraudulent and manipulative acts and required by proposed FINRA Rule and Control’’ Requirement practices, to promote just and equitable 3110(a) to be reasonably designed to As proposed in the Initial Filing, principles of trade, and, in general, to achieve compliance with FINRA Rule Supplementary Material .03 would have protect investors and the public interest. 2010 (Standards of Commercial Honor required that the on-site principal be Proposed FINRA Rule 3110(a) also is and Principles of Trade), it must include under the senior principal’s ‘‘close consistent with proposed FINRA Rule supervision for all of the member’s supervision and control.’’ Although one 3110(b)(1), which would require a business lines irrespective of whether commenter to the Initial Filing member to have supervisory procedures they require broker-dealer registration. supported proposed Supplementary for the types of business in which it A number of commenters provided Material .03,35 another commenter engages and the activities of its comments on this proposed requested that FINRA clarify the term associated persons.30 Accordingly, supplementary material. FINRA, ‘‘close supervision and control,’’ stating FINRA declines to make the suggested however, has decided that the best that such term could be subject to a change. course is to eliminate the proposed variety of interpretations.36 In response, supplementary material from the FINRA has amended ‘‘close supervision (2) Outside Business Activities 33 proposed rule and will continue to and control’’ to read ‘‘effective apply FINRA Rule 2010’s standards to Commenters requested that FINRA supervision and control,’’ which should non-securities activities of members and clarify that outside business activities of provide members with greater clarity. their associated persons consistent with While the senior principal is not registered persons would be subject to existing case law.34 FINRA Rule 3270 (Outside Business required to be physically present, full- Activities of Registered Persons) rather (c) Comments on Proposed time at the one-person OSJ, the member must be able to demonstrate ‘‘effective than to proposed FINRA Rule 3110.31 Supplementary Material .03 supervision and control’’ of the FINRA Rule 3270 generally pertains to As stated above, proposed activities of the on-site principal at such outside business activities that are not Supplementary Material .03 (One- OSJ. within the scope of the registered Person OSJs) would codify existing representative’s relationship with the guidance on the designation and (2) Consideration of Independent member, and members must comply supervision of one-person OSJs and Broker-Dealer Business Model with the rule’s requirements with would clarify that the registered Two commenters expressed concern respect to covered outside business principal assigned to such an OSJ (‘‘on- that the proposed supplementary activities. However, a member’s site principal’’) cannot supervise his or material does not take into account the supervisory system required by her own sales activities and must be business and supervisory structure of proposed FINRA Rule 3110 must under the effective supervision and independent broker-dealer firms.37 include supervisory procedures that are control of another appropriately Specifically, one commenter supported registered principal (‘‘senior principal’’). reasonably designed to ensure the notion that self-supervision of one’s compliance with FINRA Rule 3270, own securities activities may be 32 FINRA also considers this reply to be including the member’s obligation responsive to FSI’s request that FINRA clarify problematic and agreed that the pursuant to FINRA Rule 3270 to whether proposed FINRA Rule 3110(b)(1), which designation of a senior principal to evaluate the proposed activity to would require a member to establish, maintain, and oversee the activity of the on-site enforce written supervisory procedures for its principal may be necessary, but determine whether the activity properly supervisory system, would apply to outside is characterized as an outside business business activities of registered persons. suggested that firms should have the activity. If a member’s evaluation 33 The deletion of this proposed supplementary flexibility to address self-supervision, revealed that the proposed activity was material has resulted in a change in numbering of and any conflicts such self-supervision the remaining supplementary material to proposed may present, in their own manner.38 within the scope of the representative’s FINRA Rule 3110. For ease of reference, the The commenter also stated that the relationship with the member, then that proposed rule change employs the new proposed requirement of ‘‘periodic on-site activity would be subject to the numbers in all instances. 34 See, e.g., Ialeggio v. SEC, No. 98–70854, 1999 supervision’’ by a senior principal may U.S. App. LEXIS 10362, at *4–5 (9th Cir. May 20, not create the appropriate efficiencies or 30 As noted above, proposed FINRA Rule 1999) (‘‘NASD’s disciplinary authority is broad enhance the overall supervisory 3110(b)(1) is substantially similar to NASD Rule enough to encompass business-related conduct that 3010(b)(1)’s requirements to establish, maintain, is inconsistent with just and equitable principles of structure as intended, and moreover and enforce written procedures to supervise the trade, even if that activity does not involve a ignores the long established business types of business in which it engages and to security’’ (citations omitted)); see also Vail v. SEC, practices of conducting supervision supervise the activities of registered representatives, 101 F.3d 37, 39 (5th Cir. 1996) (registered remotely. registered principals, and other associated persons representative, who was serving as treasurer for a FINRA believes proposed but includes minor language revisions to mirror political-affiliation club, violated just and equitable changes in proposed FINRA Rule 3110(a). principles of trade when he misappropriated funds Supplementary Material .03 strikes the Specifically, proposed FINRA Rule 3110(b)(1) refers from the club); In re John M.E. Saad, Securities correct balance between the flexibility only to associated persons instead of the current Exchange Act Release No. 62178, 2010 SEC LEXIS firms need to establish a supervisory reference in NASD Rule 3010(b)(1) to ‘‘registered 1761, at *13–14 (May 26, 2010) (registered representatives, registered principals, and other representative’s falsification of receipts and 35 associated persons’’ and references the MSRB rules, submission on a fraudulent expense report violated PIABA. which NASD Rule 3010(b)(1) does not explicitly just and equitable principles of trade), remanded on 36 FSI. reference. other grounds, No. 10–1195, 2013 U.S. App. LEXIS 37 LPL, FSI. 31 CAI, FSI. 11691 (D.C. Cir. June 11, 2013). 38 LPL.

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structure best suited to their business activities of other associated persons or One commenter to the Initial Filing models by allowing firms to establish other offices (e.g., acting as a field supported proposed Supplementary one-person OSJs, with the need for principal for other associated persons or Material .04,43 but three commenters effective supervision by clarifying that a offices). raised concerns regarding aspects of the reasonable supervisory structure cannot proposed supplementary material.44 (3) Use of Technological Supervisory permit a principal to supervise his or Specifically, one commenter objected her own sales activities due to the Tools that the proposed supplementary conflict of interest such situation Both commenters also stated that the material was ‘‘unnecessarily restrictive’’ presents.39 Accordingly, FINRA believes proposal ‘‘ignore[s] the nature of by depriving members of the flexibility that the requirement in proposed business in today’s high technology to determine how to supervise their Supplementary Material .03 to have a environment’’ and that technology can OSJs.45 The same commenter also senior principal regularly supervise the effectively assist with supervision.41 argued that the requirement of a activities of an on-site producing Moreover, one commenter stated that ‘‘physical presence, on a regular and principal is necessary to ensure that the the proposal disregards the substantial routine basis’’ was overly burdensome on-site principal’s activities are costs that would be incurred by and unnecessary in light of effective appropriately supervised. independent broker-dealers that have electronic supervisory methods and The second commenter expressed long-established business practices of suggested that FINRA either remove it concern that proposed Supplementary conducting supervision remotely.42 or provide additional clarification on Material .03 would prohibit a ‘‘field FINRA recognizes that technological the phrase.46 All three commenters OSJ’’ supervisory structure used by supervisory tools may augment a senior objected to the proposed presumption many independent broker-dealer firms. principal’s supervision. However, that one principal supervising more According to the commenter, a ‘‘field FINRA believes technology cannot than two OSJs is unreasonable,47 with OSJ’’ supervisory structure uses field replace the need for a senior principal one commenter also objecting to the OSJ principals to supervise branch who is responsible for supervising the presumption that a principal will not be offices (e.g., approving client accounts, sales activities of the on-site principal; assigned to supervise more than one reviewing simple requests, and conducting regular periodic on-site OSJ.48 That particular commenter stated performing other low-level compliance supervision of a producing principal is that such negative presumptions were functions). The ‘‘field OSJ’’ principals necessary to ensure effective inappropriate and could limit the are then supervised by a firm’s home supervision. In addition, FINRA notes development and design of more office principals. Specifically, the 49 that the proposed supplementary effective supervisory models. Finally, commenter was concerned that a ‘‘field material does not specify an exact time one commenter stated that proposed office’’ supervisory structure would be frame for such on-site supervision. Supplementary Material .04 prohibited by proposed Supplementary Rather, proposed Supplementary interchangeably uses the terms ‘‘on-site Material .03 because such structure Material .03 would provide members would allow a ‘‘field OSJ’’ principal to 43 with the flexibility to establish a regular PIABA. engage in certain basic compliance tasks 44 periodic schedule for such on-site Schwab, SIFMA, FSI. FSI also stated that related to his own business, and may proposed Supplementary Material .04 and proposed supervision by the senior principal not meet the previous ‘‘close FINRA Rule 3110(a)(4) should clearly state that based on a variety of factors, including firms have discretion to create supervisory systems supervision and control’’ standard.40 the nature and complexity of the that are reasonably designed to achieve compliance The commenter requested more latitude securities activities for which the one- with applicable FINRA rules and MSRB rules. to create effective compliance FINRA notes that proposed FINRA Rule 3110(a) person OSJ is responsible, the nature supervision systems and an explanation already provides the overarching standard that and extent of contact with customers, supervisory systems be reasonably designed to to justify the ‘‘disparate impact on IBD and the disciplinary history of the on- achieve compliance with the enumerated laws and firms.’’ site principal. rules. As noted above, proposed 45 SIFMA. SIFMA also stated in footnote 14 of its Supplementary Material .03 would (d) Comments on Proposed comment letter, that it assumes ‘‘that proposed require effective supervision and control Supplementary Material [.04] is not intended to Supplementary Material .04 change existing requirements regarding product- of the sales activities of the on-site specific principals that can be designated for a firm principal at the one-person OSJ by a As detailed above, proposed as a whole as opposed to being designated for a senior principal. The proposed Supplementary Material.04 particular office, e.g. a member firm’s municipal supplementary material does not (Supervision of Multiple OSJs by a securities principal. See MSRB Rule G–27.’’ It is Single Principal) would establish a difficult to interpret the specific nature of the prohibit the on-site principal at the one- commenter’s concerns from this assertion. person OSJ from supervising the general presumption that a principal However, in the context of the commenter’s will not be assigned to supervise more municipal securities example, FINRA believes that 39 See SEC Division of Market Regulation, Staff than one OSJ. The proposed proposed Supplementary Material .04 does not Legal Bulletin No. 17: Remote Office Supervision supplementary material would set forth conflict with the specific requirements in MSRB (March 19, 2004) (reminding broker-dealers that Rule G–27 (Supervision) regarding the obligation of factors a member should consider if one or more appropriate principals designated small, remote offices require vigilant supervision assigning a principal to two or more and specifically noting that ‘‘[n]o individual can under Rule G–27 to supervise the municipal supervise themselves’’); NASD Regulatory & OSJs. There is a further general securities activity of the dealer and the dealer’s Compliance Alert, Volume 11, Number 2 (June presumption that a principal associated persons to ensure compliance with the 1997) (cited by Staff Legal Bulletin No. 17 as supervising more than two OSJs is rules of the MSRB. 46 SIFMA raised a similar comment on Regulatory support for statement that individuals cannot unreasonable and such determination supervise themselves); see also In re Stuart K. Notice 08–24 that the proposed supplementary Patrick, 51 S.E.C. 419, 422 (May 17, 1993) will be subject to greater scrutiny, and material’s requirement of a ‘‘physical presence’’ on (‘‘[s]upervision, by its very nature, cannot be the member will have a greater burden a regular and routine basis was overly burdensome. performed by the employee himself’’) (SEC order to evidence the reasonableness of such As discussed in the Initial Filing, FINRA declined to make a change to the provision. See Exhibit 2b, sustaining application of the New York Stock structure. Exchange’s supervisory rule—also cited by Staff page 240. Legal Bulletin No. 17 as support for statement that 47 Schwab, SIFMA, FSI. individuals cannot supervise themselves). 41 LPL, FSI. 48 Schwab. 40 FSI. 42 LPL. 49 Schwab.

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supervisor’’ and ‘‘designated principal’’ supervise the OSJ pursuant to proposed using a review methodology based on a and requested that FINRA clarify that FINRA Rule 3110(a)(4).51 reasonable sampling of information in the terms are not intended to encompass (e) Comments on Proposed FINRA which the sample is designed to discern a member’s ‘‘up-the-chain’’ reporting Rule 3110(b)(2) and Supplementary the degree of overall compliance, the structure.50 Material .06 areas that pose the greatest numbers and As stated above, proposed FINRA In response, FINRA notes that the risks of violation, and any possibly Rule 3110(b)(2) would require that a presumptions are consistent with the needed changes to firm policies and member have supervisory procedures long-standing requirement (and procedures. FINRA believes that for the review by a registered principal, cornerstone of a member’s supervisory allowing risk-based review in limited evidenced in writing, of all transactions structure) in NASD Rule 3010(a)(4) for circumstances improves investor relating to the member’s investment members to have an on-site principal in protection by ensuring that those areas banking or securities business. Proposed that pose the greatest potential for each OSJ location, which is being Supplementary Material .06 (Risk-based transferred virtually unchanged as investor harm are reviewed more Review of Member’s Investment quickly to uncover potential violations. proposed FINRA Rule 3110(a)(4). Thus, Banking and Securities Business) would the physical presence, on a regular (f) Comments on Proposed FINRA permit a member to use a risk-based Rule 3110(b)(4) and Supplementary basis, of a principal already is required system to review these transactions. at each OSJ. FINRA believes the term Materials .07–.10 Two commenters to the Initial Filing (1) Review of Internal ‘‘physical presence, on a regular basis,’’ requested that FINRA clarify in the body supports the general requirement in Communications of FINRA Rule 3110(b)(2) that members As proposed in the Initial Filing, NASD Rule 3010(a)(4) to have a may use risk-based reviews of their principal in each OSJ. FINRA Rule 3110(b)(4) (Review of investment banking and securities Correspondence and Internal 52 Proposed Supplementary Material .04 transactions. Alternatively, one Communications) would require a would provide members with greater commenter requested that FINRA member to have procedures to review flexibility than currently exists under eliminate the word ‘‘all’’ in proposed incoming and outgoing written NASD Rule 3010. In recognition of FINRA Rule 3110(b)(2) to clarify that the (including electronic) correspondence today’s evolving business models, the rule language is modified by proposed and internal communications relating to 53 proposed supplementary material Supplementary Material .06. its investment banking or securities would allow members the flexibility to FINRA declines to make the suggested business. The supervisory procedures designate and assign one principal to changes. Proposed FINRA Rule must ensure that the member properly supervise more than one OSJ if the 3110(b)(2) would transfer into the identifies and handles in accordance member determines that such Consolidated FINRA Rulebook a with firm procedures, customer supervision is reasonable and effective. member’s fundamental obligation complaints, instructions, funds and However, FINRA expressly included the regarding principal review of all securities, and communications that are general presumption to make clear its transactions relating to its investment of a subject matter requiring review view that effective supervision by one banking and securities business, while under FINRA or MSRB rules and the principal at more than two OSJs at the same time providing federal securities laws. Also as presents unique supervisory challenges supplementary material that would originally proposed, Supplementary and should be carefully considered and permit, but does not require, a member Material .07 (Risk-based Review of evidenced by a member. The proposed to conduct risk-based reviews of such Correspondence and Internal supplementary material would require a transactions. Also, as FINRA noted in Communications) would permit a member that is assigning a principal to the Initial Filing, supplementary member to use risk-based principles to supervise more than one OSJ to material is part of the rule, and FINRA decide the extent to which additional consider, among other things, whether believes that locating the risk-based policies and procedures for the review the OSJ locations are sufficiently close discussion in Supplementary Material of incoming and outgoing written in proximity to ensure that the principal .06 improves the readability of the rule (including electronic) correspondence is physically present at each location on without affecting the weight or with the public and internal a regular and routine basis. In addition, significance of the provision. communications that fall outside of the In addition, as FINRA stated in the as discussed above, while a member has subject matters listed in proposed Initial Filing the term ‘‘risk-based,’’ the flexibility to use appropriate FINRA Rule 3110(b)(4) are appropriate which the proposed rule uses in several technology as part of its supervisory for its business and structure. places, describes the type of systems, FINRA does not believe that A number of commenters to the Initial methodology a member may use to such technology can replace the Filing suggested that proposed FINRA identify and prioritize for review those effectiveness of on-site supervision. Rule 3110(b)(4) and proposed areas that pose the greatest risk of Thus, FINRA declines to remove this Supplementary Material .07 could be potential securities laws and SRO rule requirement. read to create a new affirmative violations. FINRA acknowledges that In response to the comment to clarify obligation to supervise all written members may need to prioritize their the use of the terms ‘‘on-site supervisor’’ (including electronic) internal review processes due to the volume of and ‘‘designated principal’’ in communications relating to investment information that must be reviewed by Supplementary Material .04 to make it banking and securities activities.54 clear that the terms are not intended to 51 FINRA also noted in the Initial Filing that, in Commenters requested that FINRA encompass a member’s ‘‘up-the-chain’’ response to comments, it had modified the either revise these provisions to reflect reporting structure, FINRA clarifies that, proposed supplementary material to make it clear the guidance in Regulatory Notice 07–59 for purposes of this provision, the two that the presumption applies only to the (December 2007) regarding the review of terms refer to one person—the on-site designation of the on-site principal supervisor 55 required for FINRA Rule 3110(a)(4) purposes in internal communications or that principal assigned and designated to each OSJ location. 52 SIFMA, NSCP. 54 CAI, ICI, T. Rowe Price, Schwab, FSI, SIFMA. 50 SIFMA. 53 SIFMA. 55 CAI, ICI, T. Rowe Price, SIFMA.

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FINRA remove the review requirements as it is unclear how an opened the body of proposed FINRA Rule for internal communications (including communication, by itself, would be 3110(b)(4).61 FINRA declines to make the use of a risk-based review standard) sufficient to demonstrate actual review the suggested change. As stated above, from the provisions.56 of the communication.59 For this reason, supplementary material is part of the In response to the commenters’ FINRA declines to delete the provision. rule, and FINRA believes that locating concerns, FINRA has modified proposed The same commenter also requested this provision in Supplementary FINRA Rule 3110(b)(4) and that FINRA clarify what other evidence Material .09 improves the readability of Supplementary Material .07 to more of review is necessary if an email does the rule without affecting the weight or precisely reflect the guidance in not raise any issues that warrant follow- significance of the provision. up. FINRA does not believe further Regulatory Notice 07–59 that a member (4) Retention of Correspondence and clarification is necessary as proposed must have supervisory procedures to Internal Communications provide for the member’s review of its Supplementary Material .08 specifies internal communications to properly the required evidence of review. As Proposed Supplementary Material .10 identify communications that are of a noted above, the proposed (Retention of Correspondence and subject matter that require review under supplementary material would require a Internal Communications) would FINRA or MSRB rules and the federal member to identify what require, among other things, that a securities laws and that, by employing communication was reviewed, the member retain internal communications risk-based principles, the member must identity of the reviewer, the date of and correspondence of associated decide the extent to which additional review, and the actions taken by the persons relating to the member’s policies and procedures for the review member as a result of any significant investment banking or securities of additional internal communications regulatory issues identified during the business for the period of time and are necessary for its business and review. Where review has not identified accessibility specified in SEA Rule 17a– structure. These modifications reflect any such issues, this last requirement 4(b) (not less than three years, the first would not apply. two years in an easily accessible FINRA’s intent, as noted in the Initial 62 Filing, to codify Regulatory Notice 07– The commenter also suggests that place). One commenter to the Initial Filing 59’s guidance regarding the supervision FINRA assist members’ management of requested that FINRA expand the record of electronic communications.57 recordkeeping costs by clarifying that a member does not have to retain the retention period in proposed (2) Evidence of Review specified information fields required by Supplementary Material .10 to six years Proposed Supplementary Material .08 Supplementary Material .08 for to match the eligibility provisions for (Evidence of Review of Correspondence communications that are reviewed customer arbitration disputes in FINRA Rule 12206 (Time Limits).63 FINRA and Internal Communications) would through electronic review systems or declines to make the suggested change. clarify that merely opening a lexicon-based screening tools if those As noted in the Initial Filing, the communication is not sufficient review. messages do not generate review alerts. proposed rule purposefully aligns the Instead, a member must identify what FINRA declines to accept this record retention period for communication was reviewed, the suggestion; the required documentation communications with the SEC’s record identity of the reviewer, the date of is necessary to demonstrate that the retention period for the same types of review, and the actions taken by the communication was actually reviewed. communications to achieve consistent member as a result of any significant In addition, failing to record and retain regulation in this area. regulatory issues identified during the such information, such as the identity of review. the reviewer, could be contrary to a (g) Comments on Proposed FINRA Rule One commenter requested that FINRA member’s record retention obligations 3110(b)(5) delete the provision stating that merely required under both FINRA and SEC Proposed FINRA Rule 3110(b)(5) 60 opening a communication is not rules. (Review of Customer Complaints) would 58 sufficient review. FINRA addressed (3) Delegation of Review Functions require members to have supervisory this issue in the Initial Filing and procedures to capture, acknowledge, Proposed Supplementary Material .09 declined to make the suggested change. and respond to all written (including (Delegation of Correspondence and As noted in the Initial Filing, proposed electronic) customer complaints. Supplementary Material .08 would Internal Communication Review codify existing guidance that FINRA Functions) would permit a supervisor/ (1) New Requirement for Certain believes remains appropriate, especially principal to delegate certain review Members functions, while remaining ultimately One commenter to the Initial Filing 56 FSI, Schwab. responsible for the performance of all noted that the requirement to 57 One commenter, ICI, also questioned the necessary supervisory reviews. ‘‘acknowledge’’ customer complaints meaning of the phrase ‘‘and funds and securities’’ One commenter to the Initial Filing would be a new requirement for firms in proposed FINRA Rule 3110(b)(4)’s language suggested that the proposed stating that a member’s supervisory procedures currently required to comply only with must ‘‘ensure that the member properly identifies supplementary material be included in NASD rules.64 FINRA previously ‘and handle[s] in accordance with firm procedures, addressed this comment in the Initial customer complaints, instructions, and funds and 59 See also Regulatory Notice 07–59 (December securities, and communications that are of a subject 2007) (‘‘Members should remind their reviewers matter that require review under FINRA and MSRB that merely opening the communication will not be 61 SIFMA. rules.’ ’’ The word ‘‘and’’ before ‘‘funds and deemed a sufficient review.’’). 62 17 CFR 240.17a–4(b). securities’’ was a typographical error. As corrected, 60 See NASD Rule 3010(d)(3) (Retention of 63 PIABA. PIABA also requested that FINRA the provision requires that a member’s supervisory Correspondence) (to be replaced by proposed propose a rule requiring that records pertaining to procedures ‘‘must ensure that the member properly Supplementary Material .10) (both provisions correspondence and internal communications as identifies and handles in accordance with firm require that, among other things, the person who well as any other customer-related documents, be procedures, customer complaints, instructions, reviewed correspondence be ascertainable from the made available upon request to customers and funds and securities, and communications that are member’s retained records); see also SEA Rule 17a– former customers within a reasonable time and at of a subject matter that require review under FINRA 4(b)(4) (requiring, among other things, that a broker- no charge. FINRA considers the comment to be and MSRB rules.’’ dealer’s retained communications records include outside the scope of the proposed rule change. 58 SIFMA. any approvals of communications sent). 64 Schwab.

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Filing and acknowledged that this writing.67 In addition, FINRA continues individual raising the same issues. For requirement would be a new to remind members that the failure to complaints containing threats, in requirement for many FINRA members. address any customer complaint, addition to acknowledging and Nevertheless, FINRA believes that the written or oral, may be a violation of responding to the complaint, the investor protection that this provision FINRA Rule 2010. member may wish to adopt procedures would provide outweighs any potential (3) Guidance on Certain Types of to review such complaints in light of the compliance burdens because requiring Customer Complaints potential seriousness of the threat and members to acknowledge customer decide on appropriate action, up to, and complaints would help to ensure that One commenter asked how FINRA including, contacting the appropriate customers are timely notified that their Rule 3110(b)(5)’s proposed requirements law enforcement authority, if deemed complaints have been received and would apply to repetitious, threatening, necessary. FINRA also notes that, while recorded, and that they can expect the or anonymous complaints received by members would not be able to issues raised in their complaints to be members. Specifically, the commenter acknowledge or respond to truly addressed within a reasonable period. In asked whether a member could address anonymous complaints, a member addition, the records of repeated complaints from the same would still have an obligation to capture acknowledgements should provide person on the same issue by responding and review the complaint to determine supervisory personnel with another tool only once to the issue and informing the whether it contains a legitimate for confirming that the issues raised in complainant that no further responses grievance. complaints are ultimately addressed would be forthcoming. The commenter through timely responses. The also requested that FINRA amend (h) Comments on Proposed FINRA Rule acknowledgment requirement also proposed FINRA Rule 3110(b)(5) to 3110(b)(6) and Supplementary Material should help to focus members’ attention recognize that members cannot respond .11 68 on specific situations where investor to anonymous customer complaints. Proposed FINRA Rule 3110(b)(6) harm may be occurring, as well as to In addition, the commenter asked (Documentation and Supervision of alert members to more general problems whether an oral response to a complaint Supervisory Personnel) is based largely customers may be having with their would be appropriate, as long as the on existing provisions in NASD Rule registered representatives, products, or member maintained sufficient records to 3010(b)(3) requiring a member’s services. In this regard, the document the response. supervisory procedures to set forth the Proposed FINRA Rule 3110(b)(5) was acknowledgement requirement may member’s supervisory system and to drafted in a manner to provide members serve to strengthen members’ risk include a record of the member’s with the flexibility to design assessment capabilities. Further, the supervisory personnel with such details supervisory procedures that would be absence in the proposed rule of a as titles, registration status, locations, appropriate for each member’s size, specific time period in which members and responsibilities. The proposed rule business model, and the volume and must acknowledge their receipt of also would include two new provisions: customer complaints provides members type of complaints received. • Accordingly, the proposed provision Proposed FINRA Rule 3110(b)(6)(C) a certain amount of flexibility in requiring a member to have procedures designing their supervisory procedures does not set forth prescriptive requirements a member must use to prohibiting its supervisory personnel to address this new responsibility. As from supervising their own activities noted in the Initial Filing, however, acknowledge and respond to a written complaint or how a firm must handle and reporting to, or having their members would be expected to explain compensation or continued employment the reasonableness of a period in excess repetitious, threatening, or anonymous determined by, a person the supervisor of 30 days. complaints. For many customer complaints, a member may evidence is supervising (the provision also would (2) Exclusion of Oral Complaints both its acknowledgement and response provide a limited size and resources One commenter supported the in one communication. For complaints exception to this general requirement); decision to include only written raising multiple or complicated issues, and • customer complaints in proposed members may choose first to Proposed FINRA Rule 3110(b)(6)(D) FINRA Rule 3110(b)(5).65 Another acknowledge the complaint and send a requiring a member to have procedures commenter, however, stated that following response after completing a to prevent the standards of supervision members should be required to reduce review of the issues raised. With respect required pursuant to proposed FINRA an oral complaint to writing or to to repetitious complaints from the same Rule 3110(a) from being reduced in any provide the customer with a form.66 As individual that raise no new issues, a manner due to any conflicts of interest FINRA noted in the Initial Filing, member may choose to provide a that may be present with respect to the FINRA declined to include oral response only once. A member may also associated person being supervised, complaints because they are difficult to consider whether to include a notation such as the person’s position, the capture and assess, whereas members on the response that the member will amount of revenue such person can more readily capture and assess not provide additional responses to generates for the firm, or any written complaints. For these reasons, subsequent complaints from that compensation that the supervisor may FINRA continues to believe that derive from the associated person being proposed FINRA Rule 3110(b)(5) should 67 See Exhibit 2b, page 249. supervised. include only written customer 68 T. Rowe Price. The commenter also requested Proposed Supplementary Material .11 complaints. However, as FINRA stated that FINRA clarify that anonymous complaints do (Supervision of Supervisory Personnel) not need to be considered complaints for purposes in the Initial Filing, FINRA encourages of FINRA Rule 4530 (Reporting Requirements). would provide that a member generally members to provide customers with a FINRA considers the commenter’s request for will need to rely on the exception form or other format that will allow clarification regarding FINRA Rule 4530 to be provided in proposed FINRA Rule customers to detail their complaints in outside the scope of the proposed rule change, 3110(b)(6)(C) only because it is a sole though FINRA notes that the FINRA Rule 4530 reporting system instructs members regarding how proprietor in a single-person firm or 65 T. Rowe Price. to report anonymous complaints for purposes of the where a supervisor holds a very senior 66 PIABA. rule. executive position within the firm.

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(1) Commission Overrides reasonably designed standard comports with proposed FINRA Rule One commenter requested that FINRA recognizes that while a supervisory 3110(a). system cannot guarantee strict add rule language explaining that the (i) Comments on Proposed FINRA compliance, the system must be a prohibition against supervisors having Rule 3110(b)(7) and Supplementary product of sound thinking and within their compensation determined by a Material .12 person who is supervised, does not the bounds of common sense, taking FINRA Rule 3110(b)(7) (Maintenance include a supervisor receiving into consideration the factors that are commission overrides.69 FINRA unique to a member’s business.72 of Written Supervisory Procedures) addressed this comment in the Initial Accordingly, a member’s conflict of would require a member to retain and Filing and declined to make the interest procedures should reflect a keep current, a copy of the member’s suggested change. FINRA noted in the member’s sound, common sense written supervisory procedures at each Initial Filing that, although a supervised identification of potential conflicts of OSJ and at each location where person may affect his or her supervisor’s interest, based on factors unique to the supervisory activities are conducted on compensation (through overrides or in member’s business, and address how behalf of the member. As proposed in other ways), proposed FINRA Rule the member will prevent these conflicts the Initial Filing, the member would 3110(b)(6) concerns only those from reducing in any manner the also have to communicate any situations where a supervised person standards of supervision for its amendments to its written supervisory directly controls a supervisor’s supervisory personnel. procedures throughout its organization. compensation or continued Proposed Supplementary Material .12 FINRA also declines the suggestion to (Use of Electronic Media to employment. In the commission include a reasonableness standard. As override context, however, the member Communicate Written Supervisory FINRA noted in the Initial Filing, Procedures) would permit a member to would still need to address this conflict amending the proposed conflict of in its procedures; that is, the override satisfy its obligation to communicate its interest requirement in this manner written supervisory procedures, and any may not be a factor in reducing the would have the effect of altering the standard of supervision in any manner. amendments thereto, using electronic standards within the rule that describe For these reasons, FINRA declines to media, provided that the member the outcome the procedures should try make the suggested change. In addition, complies with certain conditions. to achieve, resulting in an FINRA notes that the commenter impermissible relaxation of the standard (1) Communicating Written expressly agreed with FINRA’s around which the rule is designed. Supervisory Procedures statements on this point in the Initial Several commenters to the Initial Filing and has not provided additional (3) Limited Exception information to support adding the Filing requested that FINRA revise suggested rule language. One commenter stated, without proposed FINRA Rule 3110(b)(7) and additional detail, that there were Supplementary Material .12 to require (2) Conflicts of Interest ‘‘potentially limitless’’ situations where that members communicate such Some commenters expressed concern a member would need to rely on the material only to relevant associated that requiring members to have proposed exception from the general persons and/or supervisory personnel procedures to prevent the supervision supervisory requirements and requested rather than to all associated persons.74 standards from being reduced in any that FINRA amend proposed The commenters suggested it would be manner due to any conflicts of interest Supplementary Material .11 to provide inappropriate to communicate written that may be present creates a strict only illustrative examples of when a supervisory procedures and liability standard that would require member could rely on the exception.73 amendments throughout a firm if those members to eliminate any and all FINRA declines to make the suggested procedures or amendments are relevant conflicts of interest that could be change. The proposed exception is only to a limited business line or set of inconsistent with existing supervisory specifically based on a member’s associated persons. In response to these roles, no matter how slight.70 inability to comply with the general concerns, FINRA has revised proposed Commenters suggested that FINRA supervisory requirements because of the FINRA Rule 3110(b)(7) and either eliminate the provision or amend member’s size or supervisory Supplementary Material .12 to clarify the provision to include a personnel’s position within the firm, that a member is responsible for 71 reasonableness standard. and proposed Supplementary Material promptly communicating its written FINRA disagrees with this strict .11 reflects FINRA’s belief that a supervisory procedures and liability argument and declines to member will generally need to rely on amendments to all associated persons to eliminate the provision. The reasonably the exception only because it is a sole whom such written supervisory designed standard that applies to the proprietor in a single-person firm or procedures and amendments are supervisory procedures required relevant based on their activities and where a supervisor holds a very senior throughout proposed FINRA Rule responsibilities. FINRA declines to executive position within the firm. 3110(b) does not recognize a strict adopt the suggestion to limit the However, a member may still rely on the liability obligation requiring requirement to distribute written exception in other instances where it identification and elimination of all supervisory procedures and cannot comply because of its size or conflicts of interest. Rather, the amendments to ‘‘supervisory supervisory personnel’s position within personnel.’’ As noted further below, all the firm, provided the member 69 FSI. associated persons are deemed to have documents the factors used to reach its 70 Schwab, SIFMA, FSI. As part of its argument, knowledge of and are subject to a determination and how the supervisory FSI noted that the Initial Filing’s discussion of member’s supervisory procedures and examples of potential conflicts of interest included arrangement with respect to the amendments. Requiring a member to ‘‘any other factor that would present a conflict’’ and supervisory personnel otherwise asked that FINRA clarify that this language would apply only to conflicts of interest that are known, 74 SIFMA, T. Rowe Price, NSCP (requesting or should reasonably be known, to the firm. 72 See Notice to Members 99–45 (June 1999). changes to Supplementary Material .12), Schwab 71 Schwab, SIFMA. 73 CAI. (requesting changes to FINRA Rule 3110(b)(7)).

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communicate to all associated persons, (4) Notification of ‘‘Substantive’’ member’s annual review must be and not just ‘‘supervisory personnel,’’ Amendments reasonably designed to assist the the written supervisory procedures and In addition, the commenter requested member in detecting and preventing amendment relevant to their activities that FINRA revise the proposed violations of, and achieving compliance helps ensure that the member’s supplementary material’s requirement with, applicable securities laws and associated persons have this requisite to notify associated persons of regulations and FINRA and MSRB rules. knowledge. amendments to a member’s written Proposed FINRA Rule 3110(c)(3)(A) (2) Accessibility of Written supervisory procedures to require would require members to prevent the Supervisory Procedures notification of only ‘‘substantive’’ inspection standards required pursuant amendments. FINRA declines to make to proposed FINRA Rule 3110(c)(1) from As proposed in the Initial Filing, the suggested change, especially as it is being reduced in any manner due to any Supplementary Material .12 required unclear what standard members could conflicts of interest that may be present, that a member using electronic media to use to consistently identify a including but not limited to, economic, communicate its written supervisory ‘‘substantive’’ amendment for these commercial, or financial interests in the procedures make its procedures purposes. FINRA, however, has associated persons and businesses being ‘‘quickly and easily accessible’’ to amended this provision to require that inspected. associated persons through, for associated persons be notified that amendments relevant to their activities Proposed FINRA Rule 3110(c)(3)(B) example, the member’s intranet system. would generally prohibit an associated One commenter requested that the term and responsibilities have been made to the written supervisory procedures. person from conducting a location’s ‘‘quickly and easily accessible’’ be inspection if the person is either modified to ‘‘readily accessible,’’ which (5) Verifying Associated Persons’ assigned to that location or is directly or the commenter contended is a term Review of Amendments indirectly supervised by someone regularly used in FINRA and SEC assigned to that location. Proposed 75 As proposed in the Initial Filing, rules. In response, FINRA has Supplementary Material .12 required FINRA Rule 3110(c)(3)(C) would modified proposed Supplementary that a member using electronic media to provide an exception from these general Material .12 to use this term. communicate its written supervisory prohibitions, while proposed (3) Use of ‘‘Promptly’’ procedures be able to verify, at least Supplementary Material .15 (Exception once each calendar year through to Persons Prohibited from Conducting The same commenter also requested electronic tracking, written Inspections) would set forth the general that FINRA delete the term ‘‘promptly’’ certifications, or other means that presumption that only a member with from proposed Supplementary Material associated persons have reviewed the one office or an independent contractor .12’s requirement that members written supervisory procedures. business model will need to rely upon promptly post all written supervisory Commenters requested that FINRA the exception. eliminate the verification requirement procedures amendments to the Proposed Supplementary Material .14 or revise the provision to apply only to electronic media. Instead, the (General Presumption of Three-Year supervisory personnel.76 As one commenter requested that FINRA Limit for Periodic Inspection Schedules) commenter noted, proposed FINRA require that the written supervisory would set forth a general presumption procedures be ‘‘timely communicated.’’ Rule 3110(b)(7) does not contain a similar requirement for the of a three-year limit for periodic non- FINRA, however, declines to make this branch location inspection schedules. change as it views ‘‘promptly’’ and dissemination of hard copies of written ‘‘timely’’ as having the same meaning in supervisory procedures.77 In response, (1) Reference to Inspection Standards the context of updating and distributing FINRA has deleted this requirement written supervisory procedures from proposed Supplementary Material One commenter objected to proposed amendments. In addition, FINRA has .12. FINRA views such annual FINRA Rule 3110(c)(3)(A)’s reference to amended proposed FINRA Rule verification process as unnecessary in FINRA Rule 3110(c)(1) on the basis that 3110(b)(7) to clarify that each member light of the fact that all associated this subparagraph does not contain any 78 must promptly amend its written persons are deemed to have knowledge inspection standards. However, as supervisory procedures to reflect of and are subject to a member’s noted above, proposed FINRA Rule changes in applicable securities laws or supervisory procedures and 3110(c)(1) would retain the requirement regulations, including FINRA and amendments irrespective of whether that a member’s annual review of its MSRB rules, and as changes occur in its members verify that their associated business (which would include location supervisory system and has included in persons have reviewed such procedures. inspections conducted during that the proposed rule a member’s general (j) Comments on Proposed FINRA Rule review) must be reasonably designed to obligation to promptly communicate its 3110(c) and Supplementary Materials assist the member in detecting and written supervisory procedures and .14–.15 preventing violations of, and achieving compliance with, applicable securities amendments. FINRA clarifies that, for Proposed FINRA Rule 3110(c)(1) purposes of distributing a member’s laws and regulations and with (Internal Inspections), based largely on applicable FINRA and MSRB rules.79 written supervisory procedures NASD Rule 3010(c)(1), would retain the amendments, ‘‘promptly’’ means prior existing requirements for each member 78 to the effective date of any changes (or to review, at least annually, the NSCP. as expeditiously as possible following 79 NSCP also asks that FINRA clarify that the term businesses in which it engages and ‘‘reduced in any manner’’ means that the frequency any immediately effective changes) in inspect each office on a specified of internal inspections should not be reduced the securities laws or regulations or schedule. The provision also would because of any conflicts of interest. FINRA notes FINRA and MSRB rules necessitating retain the existing requirement that the that the term ‘‘reduced in any manner’’ does not the amendments. have a fixed interpretation, but rather should be considered within the context of proposed FINRA 76 SIFMA, Schwab (eliminate), NSCP (revise). Rule 3110(c)(1)’s reasonably designed inspection 75 SIFMA. 77 SIFMA. standards discussed above.

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(2) Conflicts of Interest conducting home or administrative (k) Comments on Proposed FINRA Some commenters suggested that office inspections as one of the Rule 3110(d) proposed FINRA Rule 3110(c)(3)(A) enumerated situations covered by the (1) General Requirement would create a strict liability standard presumption.82 Another commenter Proposed FINRA Rule 3110(d)(1) that would require a firm to identify and stated that it should not have to (Transaction Review and Investigation) eliminate any conflicts of interest, no document its reasons for relying on the would require a member to have matter how slight, that would prevent a exception from the general inspection supervisory procedures to review location’s inspection standards from restrictions, especially when the securities transactions that are effected being reduced in any manner and documentation will not be in line with for a member’s or its associated persons’ suggested that the provision be the general presumption in proposed amended to include a reasonableness accounts, as well as any other ‘‘covered Supplementary Material .15. The account,’’ to identify trades that may standard.80 FINRA disagrees with commenter also requested that FINRA commenters’ strict liability argument. violate the provisions of the SEA, its revise the proposed supplementary regulations, or FINRA rules prohibiting The standard does not require material to provide only illustrative identification and elimination of all insider trading and manipulative and examples of when a member may rely deceptive devices. possible conflicts of interest. Rather, the upon the exception.83 proposed provision is intended to One commenter suggested that the address conflicts of interest that would FINRA declines to make the suggested proposed rule should be limited to cause diminished inspection standards changes. Proposed FINRA Rule identifying insider trading and not for a location that, in turn, could result 3110(c)(3)(B) would require that any require trades to be reviewed for in a failure to detect violative conduct reliance on the exception from its possible violations of rules regarding committed at that location. FINRA also general restrictions must be ‘‘manipulative and deceptive devices,’’ does not believe proposed FINRA Rule documented. A member’s especially as retail brokerages are 3110(c)(3)(A) should include a documentation of its reliance on the already obligated under existing rules to reasonableness standard. As FINRA review accounts for that type of exception is crucial to understanding 85 noted in the Initial Filing, this proposed whether the member has inspection activity. The commenter noted that SEA Rule 10b5–1(a) states that requirement does not pertain to a procedures that are reasonably designed ‘‘manipulative and deceptive devices’’ member’s supervisory procedures, to assist the member in detecting and includes, among other things, insider which a member must ‘‘reasonably preventing violations of, and achieving design’’ to achieve compliance with trading. The commenter argued that compliance with, applicable securities ‘‘other things’’ could reasonably be applicable federal laws and regulations laws and regulations, and with and SRO rules, but instead defines a expected to encompass manipulation of applicable FINRA and MSRB rules. standard around which inspections security prices as described in Section must be conducted. (5) Presumption of Three-Year Limit 9 of the SEA and asserted that detecting for Periodic Inspection Schedules that type of activity could be costly and (3) Associated Persons Conducting burdensome, especially for online Inspections One commenter requested that FINRA brokerage services that would be One commenter requested deleting eliminate proposed Supplementary ‘‘forced to establish electronic feeds of proposed FINRA Rule 3110(c)(3)(B)’s Material .14 on the basis that it would trading activity in covered accounts proposed restrictions prohibiting certain be problematic for firms to meet the held at other member firms to enable the associated persons from conducting a proposed supplementary material’s ‘computerized surveillance of account location’s inspection on the basis that presumption of a three-year limit for activity’ in those accounts.’’ the restrictions would otherwise force periodic non-branch location inspection The required review in proposed firms to remove valuable on-site schedules when conducting inspections FINRA Rule 3110(d)(1) for ‘‘trades that personnel who routinely conduct for locations that, despite being used may violate the provisions of the inspections and carry out supervisory only one-day per calendar year, would Exchange Act, the rules thereunder, or procedures in the office.81 As stated in be considered non-branch locations.84 FINRA rules prohibiting insider trading the Initial Filing, FINRA believes that and manipulative and deceptive FINRA declines to make the suggested the proposed rule change would provide devices’’ is taken from existing change. As noted in the Initial Filing, members with sufficient flexibility to obligations in Incorporated NYSE Rule proposed Supplementary Material .14 conduct their inspections using only 342.21 (Trade Review and firm personnel. In addition, the merely establishes a three-year Investigation). FINRA believes that the proposed rule would provide an presumption and provides members continued use of this standard is exception to the proposed restrictions with the flexibility to use an inspection appropriate for many of the same for those members that cannot comply schedule period that is either shorter or reasons identified by the Commission with the provision, either because of longer than three years. If a member when it approved NYSE Rule 342.21. In their size or business model. For these chooses to use a periodic inspection approving NYSE Rule 342.21, the reasons, FINRA declines to make the schedule longer than three years, then Commission noted that, among other suggested change. the proposed supplementary material things, the increased surveillance (4) Reliance on the Limited Size and would require the member to properly mandated by the rule ‘‘should have a Resources Exception document the factors used in positive impact upon the compliance determining the appropriateness of the efforts of Exchange members and One commenter requested that FINRA longer schedule. member organizations[.]’’ 86 In addition, amend proposed Supplementary the Commission found that ‘‘mandating Material .15 to include home or administrative office personnel 85 NSCP. 82 CAI. 86 Securities Exchange Act Release No. 25763 80 Schwab, SIFMA. 83 T. Rowe Price. (May 27, 1988), 53 FR 20925 (June 7, 1988) (Order 81 CAI. 84 NSCP. Approving File No. SR–NYSE–87–10).

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such a thorough review will not only member’s business, which would be less timely and less comprehensive increase the possibility of detecting include an assessment of the risks than information firms have available illegal trades, but also will have a presented by different transactions and with respect to accounts they hold or deterrent effect on insider trading and different departments within a firm. introduce. manipulative and deceptive Thus, while some members may need to One commenter requested that FINRA practices.’’ 87 FINRA believes that the develop restricted lists and/or watch provide a substantial implementation benefits identified by the Commission, lists, other members may only need to period because implementing the new which would continue to be present by periodically review employee and review process would be burdensome adopting the standards of NYSE Rule proprietary trading. . . . [T]here is no and time consuming, especially in light 342.21 into the Consolidated FINRA requirement that a member examine of the ‘‘covered accounts’’ definition.92 Rulebook, would help to prevent every trade of every employee or every FINRA would provide firms with fraudulent and manipulative acts and proprietary trade.’’ As noted, the review adequate time to develop and establish practices, promote just and equitable would be informed by the firm’s policies and procedures for complying principles of trade, and protect business model, and firms may with new rules and obligations. FINRA investors, particularly since the determine that certain departments or notes, however, that the proposed provision covers the review of trading employees pose a greater risk and procedures, in large part, help activity of the member in addition to its examine trading in those accounts implement existing obligations for associated persons. accordingly. There is no implied broker-dealers pursuant to Section 15(g) FINRA also notes that there is no obligation on firms as to how best to of the SEA. Thus, while some firms may obligation on members to establish conduct the reviews. need to revise and update procedures to electronic feeds of trading activity at One commenter expressed concerns comply with new requirements, FINRA other firms. As discussed in detail about a firm’s ability to prevent expects that many members will already below, FINRA has revised the definition violations of insider trading or the use have some level of policies and of ‘‘covered account’’ to clarify a of manipulative and deceptive devices, procedures in place to meet their member’s obligations regarding which especially when supervising account existing obligations under Section 15(g) accounts must be reviewed. Under the activity occurring in an account held at of the SEA. another firm in which an associated new definition, members are required to (2) ‘‘Covered Accounts’’ review (1) accounts of an associated person has a beneficial interest, where person (and certain of his or her family the firm will, at best, receive post As proposed in the Initial Filing, members) that are held at or introduced transaction notification through FINRA Rule 3110(d)(3)(A) defined by the member; and (2) accounts held confirmation statements.90 The ‘‘covered account’’ to include (i) any away from the member if the associated commenter asked FINRA to clarify that account held by the spouse, child, son- person is required to disclose the a firm’s supervisory obligations for in-law, or daughter-in-law of a person account pursuant to FINRA rules brokerage accounts held outside of the associated with the member where such (currently, NASD Rule 3050 member is limited to detecting and account is introduced or carried by the (Transactions for or by Associated reporting indicia of potential insider member; (ii) any account in which a Persons) and Incorporated NYSE Rule trading or use of manipulative and person associated with the member has 407 (Transactions—Employees of deceptive devices. a beneficial interest; and (iii) any Members, Member Organizations and Section 15(g) of the SEA requires account over which a person associated the Exchange)). Thus, the only outside broker-dealers to ‘‘establish, maintain, with the member has the authority to and enforce written policies and trading activity members are required to make investment decisions. FINRA, procedures reasonably designed * * * review under this provision is activity however, has revised the definition as to prevent the misuse * * * of material, in a covered account that is disclosed to described below in response to nonpublic information by such broker the member pursuant to other FINRA comments. or dealer or any person associated with rules.88 In addition, FINRA emphasizes One commenter asserted that the such broker or dealer.’’91 Transaction that firms are permitted to take a risk- definition of ‘‘covered account’’ was review is one tool for firms in meeting based approach to monitoring trading unduly narrow and should include an this statutory obligation, in addition to activity. associated person’s parents, siblings, steps such as information barriers and One commenter stated that the Initial mother-in-law, and father-in-law, as restricted lists that broker-dealers may 93 Filing ‘‘appears to infer that firms may well as any life partner. Other implement to meet this requirement. be required to, at a minimum, conduct commenters argued that the definition Reviewing transactions can also help periodic reviews of trading’’ and did not was too broad. For example, one firms spot potential weaknesses in, or agree that this would always be the case commenter suggested limiting the scope violations of, other procedures. Robust for all firm personnel when using a risk- of (ii) and (iii) to accounts introduced or transaction review also provides a 94 based review, as provided for under carried by the member while another deterrent effect that can prevent insider Rule 3110(d).89 In the Initial Filing, commenter suggested that FINRA use a trading and other manipulative or FINRA stated that a ‘‘member’s more uniform definition that does not deceptive trading activity by associated procedures should take into differentiate between accounts that are persons. As noted above, the only consideration the nature of the introduced or carried by the member account activity outside of the member versus those that are not.95 Other firm that it must review under this 87 Id. 88 FINRA notes that NASD Rule 3050(b)(2) provision is trading activity in certain 92 CAI. requires the firm at which the trading activity is accounts reported to the firm pursuant 93 PIABA. taking place to provide the member with duplicate to other FINRA rules, and FINRA 94 NSCP. confirmations, account statements, or other account recognizes that the information firms 95 SIFMA. This commenter also stated its belief information upon written request. Incorporated receive regarding outside accounts may that, for carrying members, an account should not NYSE Rule 407(a) generally requires the member to be subject to review only by virtue of its being promptly send duplicate confirmations and account introduced by an unaffiliated correspondent broker. statements. 90 FSI. FINRA questions whether such accounts would 89 CAI. 91 15 U.S.C. 78o(g). Continued

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commenters stated that the definition of the first category above (i.e., those held definition as long as a firm engaged in ‘‘covered account’’ should not include at or introduced by the member), FINRA this activity does not also engage in the accounts of associated persons’ adult has expanded the definition to include functions typically seen as traditional children or their spouses.96 One additional family members. FINRA has underwriting activities, such as those commenter stated that adult children also clarified that the only accounts described in the proposal.101 Other and their spouses are under no held away from the member (or the commenters requested that FINRA obligation to provide associated persons member’s clearing firm) that fall within revise the definition to exclude with information related to their the definition of ‘‘covered account’’ are activities such as serving as a principal accounts introduced or carried by the those accounts of associated persons underwriter or a selling firm of variable member.97 Another commenter asserted disclosed to the member pursuant to annuities 102 or selling shares of real that extending review to this class of other FINRA rules. estate investment trusts, variable accounts will require an unnecessary annuity contracts, and limited and burdensome layer of filtering to an (3) Internal Investigation Reporting partnerships.103 already ‘‘robust’’ system of compliance As proposed in the Initial Filing, FINRA does not believe that any of with no added benefit.98 FINRA Rule 3110(d)(2) would have the categories of activity identified by In response to these comments, required any member that engages in the commenters should be categorically FINRA has revised the definition of ‘‘investment banking services,’’ to excluded from the definition of ‘‘covered account.’’ As amended, the provide reports to FINRA regarding ‘‘investment banking services,’’ given its transaction review requirements in the internal investigations within ten limited use for the purposes of proposed proposed rule would apply to two types business days of the initiation of an FINRA Rule 3110. All members, of ‘‘covered accounts’’: (i) Certain investigation, update the status of all including those who engage in accounts held at or introduced by the ongoing investigations each quarter, and ‘‘investment banking services,’’ are member and (ii) accounts that are report to FINRA within five business required to include in their supervisory reported to the member pursuant to days of the completion of any internal procedures a process for reviewing other FINRA rules. Consequently, firms investigation. As described below, securities transactions and promptly are under no obligation under this FINRA is retaining the definition of conducting an internal investigation provision to review transaction ‘‘investment banking services’’ as into any trade that may violate the information in accounts to which they proposed but has substantially revised provisions of the SEA, the rules do not have access to confirmations and the reporting requirements. thereunder, or FINRA rules prohibiting account statements. In addition, FINRA insider trading and manipulative and has amended the definition of ‘‘covered (A) ‘‘Investment Banking Services’’ deceptive devices. The only additional account’’ to add the accounts of parents, The reporting requirements in requirement of those firms that engage siblings, fathers-in-law, mothers-in-law, proposed FINRA Rule 3110(d)(2) would in ‘‘investment banking services’’ is that and domestic partners if the account is apply only to those firms that engage in they report information regarding their held at or introduced by the member. ‘‘investment banking services.’’ internal investigations to FINRA. Although some commenters requested Proposed FINRA Rule 3110(d)(3)(B) Because individuals engaged in that FINRA exclude accounts of adult defines the term ‘‘investment banking investment banking activities may have children and spouses, the primary services’’ to include, without limitation, special access to material, non-public purpose of the rule is to help firms acting as an underwriter, participating information,104 which increases the risk identify insider trading, and FINRA in a selling group in an offering for the of insider trading by those individuals, does not view the accounts of an issuer, or otherwise acting in FINRA believes that this additional associated person’s adult children and furtherance of a public offering of the reporting requirement is appropriate. To spouses as presenting less risk for that issuer; acting as a financial adviser in a the extent the commenters are correct type of trading activity than other merger or acquisition; providing venture that certain types of underwriting 99 accounts. Thus, for those accounts in capital or equity lines of credit or activities do not present the same risks serving as placement agent for the issuer of insider trading, the instances of generally be subject to review under the proposed or otherwise acting in furtherance of a reporting obligations on firms that only rule because an account held by a carrying firm for 100 an unaffiliated correspondent broker would private offering of the issuer. engage in those activities should not be generally not be an account of the carrying firm or Several commenters to the Initial significant. To the extent such firms do one of its associated persons. Filing requested that FINRA exclude have internal investigative actions to 96 Schwab, T. Rowe Price. certain activity from the definition of report, FINRA believes that they should 97 Schwab. ‘‘investment banking services.’’ One be reported. 98 T. Rowe Price. commenter suggested that distribution 99 See, e.g., Securities Exchange Act Release No. (B) Reporting Requirements 43154 (August 15, 2000), 65 FR 51716 (August 24, activities undertaken by firms in 2000) (noting that the Commission’s experience connection with investment companies Several commenters suggested that ‘‘indicates that most instances of insider trading and 529 plans should not fall under this FINRA eliminate the requirement that between or among family members involve spouses, members must, within ten business days parents and children, or siblings’’). See also Securities Exchange Act Release No. 42259 household with or are not financially dependent on of the initiation of an internal (December 20, 1999), 64 FR 72590, 72604 the employee. See Schwab, SIFMA. investigation, file a written report and (December 28, 1999) (noting that the inclusion of 100 One commenter asked that FINRA clarify that replace it with more targeted disclosure children in proposed Rule 10b5–2 was not intended this definition only applies to proposed FINRA to be limited to minor children because the Rule 3110 and not to other rules. See CAI. 101 T. Rowe Price. Commission’s ‘‘enforcement cases in this area Paragraph (d)(3) begins with the language ‘‘For 102 typically involve communications between parents purposes of this Rule’’; consequently, the proposed CAI. and adult sons or daughters’’). For this same reason, definition is solely for purposes of determining 103 FSI. FINRA declines to incorporate the definitions in those firms subject to the proposed reporting 104 See, e.g., United States v. Contorinis, 692 F.3d NYSE Information Memo 89–17 (April 4, 1989), requirement in proposed FINRA Rule 3110(d)(2). 136, 144 (2d Cir. 2012) (affirming co-portfolio which excepted from the covered accounts outlined FINRA notes, however, that it has proposed to use manager’s conviction for insider trading and in NYSE Information Memo 88–21 (July 29, 1988) the same definition for purposes of the proposed securities fraud based on tips received from an those accounts held by children of employees and research analyst conflict of interest rules. See investment banker with material, non-public their spouses who do not reside in the same Regulatory Notice 08–55 (October 2008). information regarding pending merger discussions).

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within a more reasonable time frame, a finding of violation. Under the violate the provisions of the Exchange such as that in Incorporated NYSE Rule amended provision, members engaged Act, the rules thereunder, or FINRA 351(e) (Reporting Requirements).105 One in investment banking services must, rules prohibiting insider trading and commenter stated that firms already within five business days of completion manipulative and deceptive devices, have robust and detailed procedures for of an internal investigation in which it regardless of whether a violation was complying with the reporting was determined that a violation of the ultimately discovered. Information requirements in Incorporated NYSE provisions of the SEA, the rules regarding internal investigations that do Rule 351(e), and FINRA’s proposed thereunder, or FINRA rules prohibiting not result in a finding of violation must changes would be costly and insider trading and manipulative and be included in the quarterly report. burdensome to implement and would deceptive devices had occurred, file FINRA believes that this reporting not appear to yield substantial benefits, with FINRA a written report detailing obligation is necessary to help protect especially as members cannot know the completion of the investigation, investors and market integrity. As whether an internal investigation has including the results of the described in the Initial Filing, the viability or merit within ten business investigation, any internal disciplinary rationale for filing a report when no days.106 action taken, and any referral of the violation has been found by the member In light of the comments, FINRA has matter to FINRA, another SRO, the SEC, is because a fact pattern that may result modified the reporting obligations for or any other federal, state, or in a member concluding that no firms that are engaged in investment international regulatory authority. misconduct has occurred could banking services in a manner that One commenter questioned the need nonetheless prove vital to FINRA in reduces the potential burden for firms, to file reports of investigations that did connecting the underlying conduct to while also providing necessary not result in a finding of violation, other conduct about which the member information to assist FINRA in stating that the Initial Filing, more than may not know. preventing and detecting violations of the rule text, indicates that reports are (l) Comments on Proposed FINRA insider trading and use of manipulative required even if violations have not and deceptive devices. First, FINRA has Rule 3120 been found during the investigation.107 eliminated the requirement that firms The commenter believed that additional All of the comments FINRA received file an initial report of an internal reporting is unnecessary and exceeded regarding proposed FINRA Rule 3120 investigation within ten business days the reporting requirements in FINRA (Supervisory Control System) addressed of its commencement and has replaced Rule 4530 (Reporting Requirements). the provisions requiring a member that it with a quarterly reporting The commenter also asserted that meets a specified gross revenue requirement. Under the amended FINRA has not provided any rationale threshold in the preceding year to provision, within ten business days of for why firms must still file a report include additional content in the the end of each calendar quarter, a even when violations have not been proposed rule’s annual report to senior member engaged in investment banking found during the investigation. management. FINRA originally services must file a written report proposed a gross revenue threshold of Unlike FINRA Rule 4530, proposed describing each internal investigation $150 million or more in the Initial FINRA Rule 3110(d) would require initiated in the previous calendar Filing; however, as discussed further more targeted and detailed reporting. quarter. The report must include the below, FINRA has revised the threshold While FINRA Rule 4530(b) requires identity of the member, the date each to $200 million or more. internal investigation commenced, the reporting only where a member The required additional content status of each open internal concludes or reasonably should have includes a tabulation of the reports investigation, the resolution of any concluded that an associated person of pertaining to the previous year’s internal investigation reached during the member or the member itself has customer complaints and internal the previous calendar quarter, and, with violated, among other things, any 108 investigations made to FINRA. Also, the respect to each internal investigation, securities-related law or rule, the report must include a discussion of the the identity of the security, trades, proposed reporting requirement in preceding year’s compliance efforts, accounts, associated persons of the proposed FINRA Rule 3110(d)(2) would including procedures and educational member, or associated person of the require that members engaged in programs, in each of the following areas: member’s family members holding a investment banking services report (1) Trading and marketing activities; (2) covered account, under review, and that investigations (and results of those investment banking activities; (3) includes a copy of the member’s investigations) of securities transactions antifraud and sales practices; (4) finance policies and procedures required by effected for the accounts of the member, and operations; (5) supervision; and (6) proposed FINRA Rule 3110(d)(1). Also, the member’s associated persons, and anti-money laundering. as noted above, if a member subject to any other covered account109 that may this requirement did not have an open (1) Revenue Threshold internal investigation or either initiate 107 T. Rowe Price. One commenter suggested that all 108 or complete an internal investigation See FINRA Rules 4530(b) and 4530.01. members be required to include the during a particular calendar quarter, the 109 As noted above, for purposes of proposed FINRA Rule 3110(d), a ‘‘covered account’’ is supplemental information in the report, member would not be required to defined to include: (1) Any account held by the not merely those members reporting submit a report for that quarter. Second, spouse, domestic partner, child, parent, sibling, more than $150 million in revenue.110 FINRA has replaced the proposed son-in-law, daughter-in-law, father-in-law, or FINRA addressed this comment in the requirement to report the completion of mother-in-law of a person associated with the member where such account is introduced or Initial Filing and declined to make the each internal investigation within five carried by the member; (2) any account introduced suggested change. As FINRA noted in business days of its completion with a or carried by the member in which a person that rule filing, FINRA believes that the more focused requirement that is associated with the member has a beneficial additional information reported by limited to investigations that resulted in interest; (3) any account introduced or carried by the member over which a person associated with the member has the authority to make investment member pursuant to NASD Rule 3050 or NYSE Rule 105 SIFMA, T. Rowe Price. decisions; and (4) any account of a person 407, as applicable. 106 SIFMA. associated with a member that is disclosed to the 110 PIABA.

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members meeting the gross revenue annual reports and requested that the suggested that FINRA eliminate this threshold, now proposed as $200 additional content requirements listed requirement since the term ‘‘risk million or more, would prove to be above be revised as merely examples of management,’’ as proposed, appears to valuable information for FINRA’s additional report content.112 Other encompass specific control functions for regulatory program, especially as commenters suggested that the various types of risk (e.g., market, credit, Incorporated NYSE Rule 342.30’s additional content topics were vague liquidity, operational). The commenter annual report supplemental information and requested that FINRA provide more asserted that, because there are no SEC was a valuable tool for the NYSE guidance (e.g., definitions, examples) on or FINRA rules relating to ‘‘risk 111 113 regulatory program. Also, as FINRA the additional content requirements. management’’ as there are with finance noted in the Initial Filing, such In particular, one commenter asked and operations, the compliance information would be valuable whether the tabulation of reports departments generally do not have compliance information for the senior pertaining to customer complaints and programs to assess the performance of management of the firm. internal investigations was the same as that function and supervisors so FINRA, however, recognizes the the customer complaint data for FINRA designated for purposes of FINRA rules burden the additional content Rule 4530.114 requirements could place on FINRA FINRA disagrees with the are not therefore charged with members and, as a result, proposed only commenters’ suggestions that the supervision of compliance efforts in the requiring certain members to include supplementary information topics are area of risk management. Alternatively, such additional content in their reports. vague and require examples or the commenter suggested that FINRA Although FINRA considered several definitions. The topics refer to specific acknowledge that ‘‘risk management’’ alternative metrics (e.g., number of components common to a member’s relates solely to ‘‘compliance risk,’’ registered persons), FINRA decided to business. In addition, as FINRA noted in which would be covered by the firm’s use a gross revenue metric. FINRA has the Initial Filing, with the exception of compliance department.115 Another further attempted to balance the value of risk management (which is no longer commenter also stated that the risk the information with the burden by included, as discussed below), the management topic appears to fall increasing the gross revenue threshold categories listed above are incorporated outside of the responsibilities of many from the $150 million threshold from the annual report content compliance departments and requested proposed in the Initial Filing to $200 requirements of Incorporated NYSE that FINRA confirm whether chief million. FINRA believes that the revised Rule 342.30 (Annual Report and compliance officers can rely on such threshold strikes the appropriate Certification) and are familiar to many items as certifications and balance as it encompasses larger dual of the firms that would be required to representations from managers of areas member firms, members engaged in comply with proposed FINRA Rule not under the purview of, or routinely significant underwriting activities 3120’s additional content requirements. overseen by, the compliance department (including variable annuity principal Also, FINRA made clear in the Initial in completing and submitting the underwriting and fund distributions) Filing that the proposed requirement to annual report.116 and substantial trading activities or include a tabulation of information FINRA originally proposed the market making business, and members provided to FINRA regarding customer requirement for the purpose of with extensive sales platforms— complaints and internal investigations providing senior management with a approximately 160 member firms in was not duplicative of existing narrative specifically reflecting whether total, for which the additional content requirements in FINRA Rule 4530, as requirements would provide a valuable each rule serves a distinct purpose. a member is effectively supervising and resource in the context of understanding Whereas FINRA Rule 4530 requires managing its business risks. However, in and examining those firms and their reporting certain information to FINRA, response to commenters’ ongoing activities, which can generally be more the requirement in proposed FINRA concerns regarding the role of complex or sizeable than smaller firms’ Rule 3120 covers information required compliance departments with respect to activities. FINRA also took into account to be provided to a firm’s senior risk management activities, FINRA is the fact that most members meeting that management. To that end, however, eliminating risk management from the threshold already comply with firms may use the information reported additional content requirements under Incorporated NYSE Rule 342.30’s to FINRA pursuant to FINRA Rule 4530, proposed FINRA Rule 3120 and will reporting requirement. Further, the as well as other relevant information consider whether to address separately metric is easily determined by reference reported to FINRA pursuant to other members’ risk management practices. to the member’s most recent FOCUS regulatory requirements (e.g., Based on its examination and reports in the calendar year prior to the investigation information reported to enforcement experience, FINRA has annual report. FINRA continues to FINRA pursuant to proposed FINRA found that a strong risk management believe that its rationale supports the Rule 3110(d)), to prepare the tabulation program mitigates a member’s potential gross revenue threshold, as revised to required by proposed FINRA Rule 3120. compliance problems.117 $200 million, and again declines to (3) Risk Management make the suggested change. 115 SIFMA. As proposed in the Initial Filing, 116 NSCP. (2) Additional Content Requirements FINRA Rule 3120 would have required 117 See e.g., Regulatory Notice 10–57 (November One commenter suggested that that a member meeting the applicable 2010) (guidance on developing and maintaining members should have the flexibility to robust funding and liquidity risk management gross revenue threshold must include a practices to prepare for adverse circumstances); determine the content of their respective discussion of the preceding year’s Notice to Members 99–92 (November 1999) (SEC, compliance efforts in the area of risk NASD Regulation, and NYSE Issue Joint Statement 111 See also Regulatory Notice 08–24 (noting that management. At least one commenter on Broker/Dealer Risk Management Practices) the supplemental information in Incorporated (emphasizing the importance of maintaining an NYSE Rule 342.30’s annual report was a valuable appropriate risk management system and providing tool for the NYSE regulatory program and would 112 T. Rowe Price. examples of weaknesses and strengths in various also be valuable information for FINRA’s regulatory 113 CAI, FSI. broker-dealers’ risk management policies and program going forward). 114 CAI. practices).

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(m) Comments on Proposed FINRA Rule All submissions should refer to File 2013, EDGA Exchange, Inc. (the 3170 Number SR–FINRA–2013–025. This file ‘‘Exchange’’ or ‘‘EDGA’’) filed with the SIFMA requested that FINRA confirm number should be included on the Securities and Exchange Commission whether it would continue to maintain subject line if email is used. To help the (‘‘Commission’’) the proposed rule and disseminate the ‘‘Disciplined Firms Commission process and review your change as described in Items I, II and III List’’ once new FINRA Rule 3170 (Tape comments more efficiently, please use below, which items have been prepared Recording of Registered Persons by only one method. The Commission will by the self-regulatory organization. The Certain Firms), which replaces NASD post all comments on the Commission’s Commission is publishing this notice to Rule 3010(b)(2) (the ‘‘Taping Rule’’), Internet Web site (http://www.sec.gov/ solicit comments on the proposed rule becomes effective. Currently, FINRA rules/sro.shtml). Copies of the change from interested persons. submission, all subsequent provides a ‘‘Disciplined Firms List’’ I. Self-Regulatory Organization’s identifying those firms that meet NASD amendments, all written statements with respect to the proposed rule Statement of the Terms of Substance of Rule 3010(b)(2)’s definition of the Proposed Rule Change ‘‘disciplined firm.’’ This list assists change that are filed with the Commission, and all written The Exchange proposes to amend its members that are required to establish 3 special supervisory procedures, communications relating to the fees and rebates applicable to Members including the tape recording of proposed rule change between the and non-Members of the Exchange conversations, when they have hired Commission and any person, other than pursuant to EDGA Rule 15.1(a) and (c). more than a specified percentage of those that may be withheld from the All of the changes described herein are registered persons from firms that meet public in accordance with the applicable to EDGA Members. The text the Taping Rule’s definition of provisions of 5 U.S.C. 552, will be of the proposed rule change is available available for Web site viewing and ‘‘disciplined firm.’’ FINRA intends to on the Exchange’s Internet Web site at printing in the Commission’s Public continue to maintain the list to assist www.directedge.com, at the Exchange’s Reference Room, 100 F Street NE., members in meeting their supervisory principal office, and at the Public Washington, DC 20549, on official obligations under FINRA Rule 3170. Reference Room of the Commission. business days between the hours of 10 III. Date of Effectiveness of the a.m. and 3 p.m. Copies of such filing II. Self-Regulatory Organization’s Proposed Rule Change and Timing for also will be available for inspection and Statement of the Purpose of, and Commission Action copying at the principal office of Statutory Basis for, the Proposed Rule Change Within 45 days of the date of FINRA. All comments received will be publication of this notice in the Federal posted without change; the Commission In its filing with the Commission, the Register or within such longer period (i) does not edit personal identifying self-regulatory organization included as the Commission may designate up to information from submissions. You statements concerning the purpose of, 90 days of such date if it finds such should submit only information that and basis for, the proposed rule change longer period to be appropriate and you wish to make available publicly. All and discussed any comments it received publishes its reasons for so finding or submissions should refer to File on the proposed rule change. The text (ii) as to which the self-regulatory Number SR–FINRA–2013–025 and of these statements may be examined at organization consents, the Commission should be submitted on or before July the places specified in Item IV below. will: 29, 2013. The self-regulatory organization has (A) by order approve or disapprove For the Commission, by the Division of prepared summaries, set forth in such proposed rule change, or Trading and Markets, pursuant to delegated sections A, B and C below, of the most (B) institute proceedings to determine authority.118 significant aspects of such statements. whether the proposed rule change Elizabeth M. Murphy, A. Self-Regulatory Organization’s should be disapproved. Secretary. Statement of the Purpose of, and the IV. Solicitation of Comments [FR Doc. 2013–16231 Filed 7–5–13; 8:45 am] Statutory Basis for, the Proposed Rule BILLING CODE 8011–01–P Change Interested persons are invited to submit written data, views and 1. Purpose arguments concerning the foregoing, SECURITIES AND EXCHANGE The Exchange maintains logical ports including whether the proposed rule COMMISSION for order entry (FIX, HP–API), drop change is consistent with the Act. [Release No. 34–69900; File No. SR–EDGA– copies (DROP), EdgeRisk and market Comments may be submitted by any of 2013–18] data (collectively, ‘‘Direct Logical the following methods: Ports’’).4 In SR–EDGA–2012–37, the Electronic Comments Self-Regulatory Organizations; EDGA Exchange reduced the number of free • Exchange, Inc.; Notice of Filing and Direct Logical Ports from ten (10) Use the Commission’s Internet Immediate Effectiveness of Proposed comment form (http://www.sec.gov/ Rule Change Relating to Amendments 3 A Member is any registered broker or dealer, or rules/sro.shtml); or • To the EDGA Exchange, Inc. Fee any person associated with a registered broker or Send an email to rule- Schedule dealer that has been admitted to membership in the [email protected]. Please include File Exchange. Number SR–FINRA–2013–025 on the July 1, 2013. 4 See Securities Exchange Act Release No. 69669 (May 30, 2013) 78 FR 33880 (June 5, 2013) (SR– subject line. Pursuant to Section 19(b)(1) of the EDGA–2013–14) (adding EdgeRisk ports to the list Paper Comments Securities Exchange Act of 1934 (the of logical ports offered by the Exchange); Securities ‘‘Act’’),1 and Rule 19b–4 thereunder,2 and Exchange Act Release No. 64964 (July 26, • Send paper comments in triplicate notice is hereby given that on June 26, 2011), 76 FR 45898 (August 1, 2011) (SR–EDGA– to Elizabeth M. Murphy, Secretary, 2011–22) (discussing the Exchange’s proposal to include logical ports that receive market data Securities and Exchange Commission, 118 17 CFR 200.30–3(a)(12). among the types of logical ports that the Exchange 100 F Street NE., Washington, DC 1 15 U.S.C. 78s(b)(1). assesses a monthly fee to Members and non- 20549–1090. 2 17 CFR 240.19b–4. Members).

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sessions to five (5) sessions.5 The non-Members to establish logical ports Accordingly, the Exchange believes that Exchange proposes to reduce the to connect to the Exchange’s systems. reducing the quantity of free Direct quantity of free Direct Logical Ports The Exchange also believes that Logical Ports from five sessions to two from five (5) sessions to two (2) reducing the quantity of free Direct sessions would allow the Exchange to sessions. The Exchange would assess a Logical Ports from five to two sessions remain competitive with other market monthly fee per logical port for will promote efficient use of the ports centers and thus would not burden Members and non-Members that by market participants, not only helping intermarket competition. maintain three or more Direct Logical the Exchange to continue to maintain The Exchange believes its proposal Ports. In addition, the Exchange, and improve its infrastructure, market would not burden intramarket pursuant to an information circular technology, and services, but also competition because the proposed rule dated June 4, 2013, communicated to encourage Members and non-Members change would apply uniformly to all Members and non-Members that the to request and enable only the ports that Members and non-Members. Exchange would propose these changes are necessary for their operations related C. Self-Regulatory Organization’s in a subsequent filing with the to the Exchange. Statement on Comments on the Securities and Exchange Commission.6 The Exchange believes that it is The Exchange further proposes to reasonable to reduce the number of free Proposed Rule Change Received From make a ministerial change to its fee logical ports available to Members and Members, Participants, or Others schedule by changing the name of its non-Members because such practice is The Exchange has not solicited, and HP–API logical ports from ‘‘HP–API’’ to consistent with that of other exchanges, does not intend to solicit, comments on ‘‘Edge XPRS (HP–API).’’ such as BATS Exchange, Inc., BATS Y- this proposed rule change. The The Exchange proposes to implement Exchange, Inc. and the NASDAQ Stock Exchange has not received any these amendments to its fee schedule on Exchange LLC.9 Additionally, Members unsolicited written comments from July 1, 2013. and non-Members may opt to disfavor Members or other interested parties. the Exchange’s pricing if they believe 2. Statutory Basis III. Date of Effectiveness of the that alternative venues offer them better Proposed Rule Change and Timing for The Exchange believes that the value. Accordingly, if the Exchange Commission Action proposed rule changes are consistent were to charge excessive fees, the with the objectives of Section 6 of the Exchange would stand to lose not only The foregoing rule change has become Act,7 in general, and furthers the connectivity revenues but also revenues effective pursuant to Section 19(b)(3)(A) objectives of Section 6(b)(4),8 in associated with the execution of orders of the Act 11 and Rule 19b–4(f)(2) 12 particular, as the proposed rule changes routed to it, and, to the extent thereunder. At any time within 60 days are designed to provide for the equitable applicable, market data revenues. The of the filing of such proposed rule allocation of reasonable dues, fees and Exchange believes that this competitive change, the Commission summarily may other charges among Members and other dynamic imposes powerful restraints on temporarily suspend such rule change if persons using the Exchange’s facilities. the ability of any exchange to charge it appears to the Commission that such The Exchange believes its proposal to unreasonable fees for connectivity. action is necessary or appropriate in the amend its fee schedule to reduce the Lastly, the Exchange believes that the public interest, for the protection of quantity of free Direct Logical Ports proposed reduction in quantity of free investors, or otherwise in furtherance of from five sessions to two sessions ports is non-discriminatory because it the purposes of the Act. represents an equitable allocation of applies uniformly to Members and non- IV. Solicitation of Comments reasonable dues, fees and other charges Members. because the Exchange has recently Interested persons are invited to implemented several infrastructure B. Self-Regulatory Organization’s submit written data, views, and enhancements that optimized Statement on Burden on Competition arguments concerning the foregoing, processing speed and capacity per port, The Exchange believes that the including whether the proposed rule thereby requiring fewer ports to proposed rule change does not impose change is consistent with the Act. communicate the same information. In any burden on competition that is not Comments may be submitted by any of addition, the proposal to reduce the necessary or appropriate in furtherance the following methods: number of logical ports from five to two of the purposes of the Act. The Electronic Comments will offset the costs of necessary Exchange does not believe that the • hardware, infrastructure expenses, proposed amendment to its fee schedule Use the Commission’s Internet maintenance fees and staff support costs represents a significant departure from comment form (http://www.sec.gov/ in operating a national securities rules/sro.shtml); or previous Exchange fees or such fees • exchange. The revenue generated from offered by the Exchange’s competitors.10 Send an email to rule- its proposal will also pay for the [email protected]. Please include File technical infrastructure and operating 9 See BATS, BATS BZX & BYX Exchange Fee Number SR–EDGA–2013–18 on the expenses of logical ports along with Schedules, http://batstrading.com/FeeSchedule/ subject line. administrative and infrastructure costs (charging a monthly fee of $400 per logical port Paper Comments associated with allowing Members and other than a Multicast PITCH Spin Server Port or GRP Port). See also NASDAQ, Price List-Trading & • Send paper comments in triplicate Connectivity, http://www.nasdaqtrader.com/ 5 See Securities and Exchange Act Release No. Trader.aspx?id=PriceListTrading2 (charging a to Elizabeth M. Murphy, Secretary, 67742 (August 28, 2012), 77 FR 53951 (September monthly fee of $500 per logical port pair for FIX/ Securities and Exchange Commission, 4, 2012) (SR–EDGA–2012–37) (discussing the OUCH/RASHPort/DROP connectivity to NY-Metro 100 F Street NE., Washington, DC Exchange’s proposal to reduce its number of free and Mid-Atlantic Datacenters). 20549–1090. logical ports from ten (10) to five (5)). 10 See BATS, BATS BZX & BYX Exchange Fee 6 See Direct Edge Trading Notice #13–23: Logical Schedules, http://batstrading.com/FeeSchedule/ Port Fee Changes Effective July 1, 2013, http:// (charging a monthly fee of $400 per logical port monthly fee of $500 per logical port pair for FIX/ www.directedge.com/About/Announcements/ other than a Multicast PITCH Spin Server Port or OUCH/RASHPort/DROP connectivity to NY-Metro ViewNewsletterDetail.aspx?NewsletterID=1010. GRP Port). See also NASDAQ, Price List-Trading & and Mid-Atlantic Datacenters). 7 15 U.S.C. 78f. Connectivity, http://www.nasdaqtrader.com/ 11 15 U.S.C. 78s(b)(3)(A). 8 15 U.S.C. 78f(b)(4). Trader.aspx?id=PriceListTrading2 (charging a 12 17 CFR 240.19b–4 (f)(2).

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All submissions should refer to File 2013, The NASDAQ Stock Market LLC during regular market hours 4 in an Number SR–EDGA–2013–18. This file (‘‘NASDAQ’’ or ‘‘Exchange’’) filed with average of at least 1,000 securities number should be included on the the Securities and Exchange during the month.5 subject line if email is used. To help the Commission (‘‘SEC’’ or ‘‘Commission’’) A member that is a QMM with respect Commission process and review your the proposed rule change as described to a particular MPID (a ‘‘QMM MPID’’) comments more efficiently, please use in Items I, II and III, below, which Items is eligible to receive certain discounts only one method. The Commission will have been prepared by NASDAQ. The and credits. NASDAQ is now proposing post all comments on the Commission’s Commission is publishing this notice to to eliminate one of these discounts. At Internet Web site (http://www.sec.gov/ solicit comments on the proposed rule present, a QMM receives a discount on rules/sro.shtml). Copies of the change from interested persons. fees for ports used for entering orders submission, all subsequent I. Self-Regulatory Organization’s for a QMM MPID, up to a total discount amendments, all written statements Statement of the Terms of Substance of equal to the lesser of the QMM’s total with respect to the proposed rule the Proposed Rule Change fees for such ports or $5,000.6 As change that are filed with the provided in Rule 7015, the specific fees NASDAQ is proposing changes to fees Commission, and all written subject to this discount are: (i) All ports under its Qualified Market Maker communications relating to the using the NASDAQ Information (‘‘QMM’’) pricing incentive program proposed rule change between the Exchange (‘‘QIX’’) protocol,7 (ii) under Rules 7014 and 7015. NASDAQ Commission and any person, other than Financial Information Exchange (‘‘FIX’’) proposes to implement the proposed those that may be withheld from the trading ports,8 and (iii) ports using other rule change on July 1, 2013. The text of public in accordance with the trading telecommunications protocols.9 the proposed rule change is available on provisions of 5 U.S.C. 552, will be Beginning July 1, 2013, the port available for Web site viewing and the Exchange’s Web site at http:// discount will be eliminated. All other printing in the Commission’s Public nasdaq.cchwallstreet.com/, at the discounts and credits associated with Reference Room, 100 F Street NE., principal office of the Exchange, and at the QMM program will remain in effect. Washington, DC 20549, on official the Commission’s Public Reference business days between the hours of Room. 2. Statutory Basis 10:00 a.m. and 3:00 p.m. Copies of the II. Self-Regulatory Organization’s filing also will be available for NASDAQ believes that the proposed Statement of the Purpose of, and inspection and copying at the principal rule change is consistent with the Statutory Basis for, the Proposed Rule 10 office of the Exchange. All comments provisions of Section 6 of the Act, in Change received will be posted without change; general, and with Sections 6(b)(4), the Commission does not edit personal In its filing with the Commission, the 6(b)(5), and 6(b)(8) of the Act,11 in identifying information from Exchange included statements particular, in that it provides for the submissions. You should submit only concerning the purpose of and basis for equitable allocation of reasonable dues, information that you wish to make the proposed rule change. The text of fees and other charges among members available publicly. All submissions these statements may be examined at and issuers and other persons using any should refer to File Number SR–EDGA– the places specified in Item IV below. facility or system which NASDAQ 2013–18 and should be submitted on or The Exchange has prepared summaries, operates or controls, is not designed to before July 29,2013. set forth in sections A, B, and C below, permit unfair discrimination between customers, issuers, brokers, or dealers, For the Commission, by the Division of of the most significant aspects of such Trading and Markets, pursuant to delegated statements. and does not impose any burden on 13 competition not necessary or authority. A. Self-Regulatory Organization’s Elizabeth M. Murphy, Statement of the Purpose of, and the 4 Secretary. Defined as 9:30 a.m. through 4:00 p.m., or such Statutory Basis for, the Proposed Rule shorter period as may be designated by NASDAQ [FR Doc. 2013–16227 Filed 7–5–13; 8:45 am] Change on a day when the securities markets close early BILLING CODE 8011–01–P (such as the day after Thanksgiving). 1. Purpose 5 A member MPID is considered to be quoting at Under NASDAQ’s QMM Program, a the NBBO if it has a displayed order at either the SECURITIES AND EXCHANGE national best bid or the national best offer or both member may be designated as a QMM the national best bid and offer. On a daily basis, COMMISSION with respect to one or more of its market NASDAQ will determine the number of securities [Release No. 34–69898; File No. SR– participant identifiers (‘‘MPIDs’’) if: in which the member satisfied the 25% NBBO • requirement. To qualify for QMM designation, the NASDAQ–2013–093] the member is not assessed any ‘‘Excess Order Fee’’ under Rule 7018 MPID must meet the requirement for an average of 1,000 securities per day over the course of the Self-Regulatory Organizations; The during the month; 3 and • month. Thus, if a member MPID satisfied the 25% NASDAQ Stock Market LLC; Notice of through such MPID the member NBBO requirement in 900 securities for half the Filing and Immediate Effectiveness of quotes at the national best bid or best days in the month, and satisfied the requirement for offer (‘‘NBBO’’) at least 25% of the time 1,100 securities for the other days in the month, it Proposed Rule Change To Modify the would meet the requirement for an average of 1,000 Fees Under the QMM Pricing Incentive securities. 3 Program Under Rules 7014 and 7015 Rule 7018(m). Last year, NASDAQ introduced 6 The ports subject to the discount are not used an Excess Order Fee, aimed at reducing inefficient for receipt of market data. order entry practices of certain market participants July 1, 2013. 7 The applicable undiscounted fees are $1,200 per that place excessive burdens on the systems of month for a port pair or ECN direct connection port Pursuant to Section 19(b)(1) of the NASDAQ and its members and that may negatively pair, and $1,000 per month for an unsolicited Securities Exchange Act of 1934 impact the usefulness and life cycle cost of market message port. See Rule 7015(a). (‘‘Act’’) 1, and Rule 19b–4 2 thereunder, data. In general, the determination of whether to 8 The applicable undiscounted fee is $500 per notice is hereby given that on June 26, impose the fee on a particular MPID is made by calculating the ratio between (i) entered orders, port per month. See Rule 7015(b). weighted by the distance of the order from the 9 The applicable undiscounted fee is $500 per 13 17 CFR 200.30–3(a)(12). NBBO, and (ii) orders that execute in whole or in port pair per month. See Rule 7015(g). 1 15 U.S.C. 78s(b)(1). part. The fee is imposed on MPIDs that have an 10 15 U.S.C. 78f. 2 17 CFR 240.19b–4. ‘‘Order Entry Ratio’’ of more than 100. 11 15 U.S.C. 78f(b)(4), (5) and (8).

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appropriate in furtherance of the participants, it is likely that NASDAQ submission, all subsequent purposes of the Act. will lose market share as a result. amendments, all written statements The proposed change with respect to Accordingly, NASDAQ does not believe with respect to the proposed rule the QMM Program is reasonable because that the proposed changes will impair change that are filed with the even with the change, QMMs will still the ability of members or competing Commission, and all written continue to receive meaningful financial order execution venues to maintain communications relating to the incentives consistent with the their competitive standing in the proposed rule change between the commitment to enhancing market financial markets. Commission and any person, other than quality that is reflected in their those that may be withheld from the achievement of the program’s quoting C. Self-Regulatory Organization’s public in accordance with the requirements. The proposed change is Statement on Comments on the provisions of 5 U.S.C. 552, will be consistent with an equitable allocation Proposed Rule Change Received From available for Web site viewing and of fees and is not unfairly Members, Participants, or Others printing in the Commission’s Public discriminatory because it will cause the Written comments were neither Reference Room, 100 F Street NE., fees paid by QMMs with respect to solicited nor received. Washington, DC 20549, on official order entry ports to be equivalent to the business days between the hours of III. Date of Effectiveness of the fees paid by other market participants 10:00 a.m. and 3:00 p.m. Copies of the Proposed Rule Change and Timing for for comparable access. Finally, the filing also will be available for Commission Action change does not impose any burden on inspection and copying at the principal competition that is not necessary or The foregoing rule change has become office of the Exchange. All comments appropriate because although it will effective pursuant to Section 19(b)(3)(A) received will be posted without change; result in a fee increase for QMMs of the Act 12 and paragraph (f) of Rule the Commission does not edit personal currently qualifying for the discount, it 19b–4 thereunder.13 At any time within identifying information from will also serve to return the applicable 60 days of the filing of the proposed rule submissions. You should submit only fees to the level in place before the change, the Commission summarily may information that you wish to make introduction of the QMM program and temporarily suspend such rule change if available publicly. All submissions make them equivalent to fees paid by it appears to the Commission that such should refer to File Number SR– other market participants for action is necessary or appropriate in the NASDAQ–2013–093 and should be comparable access. public interest, for the protection of submitted on or before July 29, 2013. B. Self-Regulatory Organization’s investors, or otherwise in furtherance of For the Commission, by the Division of Statement on Burden on Competition the purposes of the Act. Trading and Markets, pursuant to delegated 14 IV. Solicitation of Comments authority. NASDAQ does not believe that the Elizabeth M. Murphy, proposed rule change will result in any Interested persons are invited to Secretary. burden on competition that is not submit written data, views, and [FR Doc. 2013–16225 Filed 7–5–13; 8:45 am] necessary or appropriate in furtherance arguments concerning the foregoing, of the purposes of the Act, as amended. including whether the proposed rule BILLING CODE 8011–01–P NASDAQ notes that it operates in a change is consistent with the Act. highly competitive market in which Comments may be submitted by any of SECURITIES AND EXCHANGE market participants can readily favor the following methods: COMMISSION competing venues if they deem fee levels at a particular venue to be Electronic Comments [Release No. 34–69914; File No. SR–NYSE– excessive, or rebate opportunities • Use the Commission’s Internet 2013–40] available at other venues to be more comment form (http://www.sec.gov/ favorable. In such an environment, rules/sro.shtml); or Self-Regulatory Organizations; New NASDAQ must continually adjust its • Send an email to rule- York Stock Exchange LLC; Notice of fees to remain competitive with other [email protected]. Please include File Filing of Proposed Rule Change exchanges and with alternative trading Number SR–NASDAQ–2013–093 on the Amending 303A.00 of the Exchange’s systems that have been exempted from subject line. Listed Company Manual To Provide a compliance with the statutory standards One-Year Transition Period To Comply applicable to exchanges. Because Paper Comments With the Internal Audit Requirement of competitors are free to modify their own • Send paper comments in triplicate Section 303A.07(c) for Companies fees in response, and because market to Elizabeth M. Murphy, Secretary, Listing in Connection With An Initial participants may readily adjust their Securities and Exchange Commission, Public Offering, as New Registrants or order routing practices, NASDAQ 100 F Street NE., Washington, DC by Means of a Carve-Out or Spin-Off believes that the degree to which fee 20549–1090. Transaction changes in this market may impose any All submissions should refer to File July 2, 2013. burden on competition is extremely Number SR–NASDAQ–2013–093. This Pursuant to Section 19(b)(1) 1 of the limited. In this instance, although the file number should be included on the Securities Exchange Act of 1934 (the proposed change eliminates one of the subject line if email is used. To help the ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 discounts provided through a Commission process and review your notice is hereby given that, on June 18, previously introduced pricing incentive comments more efficiently, please use 2013, New York Stock Exchange LLC program, the incentive program in only one method. The Commission will (‘‘NYSE’’ or the ‘‘Exchange’’) filed with question remain in place and is itself post all comments on the Commission’s the Securities and Exchange reflective of the need for exchanges to Internet Web site (http://www.sec.gov/ offer significant financial incentives to rules/sro.shtml). Copies of the 14 17 CFR 200.30–3(a)(12). attract order flow in a highly 1 15 U.S.C.78s(b)(1). competitive environment. Moreover, if 12 15 U.S.C. 78s(b)(3)(A). 2 15 U.S.C. 78a. the changes are unattractive to market 13 17 CFR 240.19b–4(f). 3 17 CFR 240.19b–4.

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Commission (the ‘‘Commission’’) the of listing to comply with the internal exchange. The Exchange believes that proposed rule change as described in audit function requirement of Section providing a transitional period after Items I, II, and III below, which Items 303A.07(c). Neither the Nasdaq Stock listing for a newly public company to have been prepared by the self- Market LLC (‘‘Nasdaq’’) nor NYSE MKT establish its internal audit function regulatory organization. The LLC (‘‘NYSE MKT’’) has an internal would benefit investors by making the Commission is publishing this notice to audit requirement. Consequently, any company’s implementation of the solicit comments on the proposed rule company transferring from Nasdaq or internal audit function more effective change from interested persons. NYSE MKT to the NYSE has one year and efficient and reducing the costs that from the date of listing to comply with a company faces in its first year as a I. Self-Regulatory Organization’s the requirement specifically set forth in public company. The proposed Statement of the Terms of the Substance its rules. By contrast, Section 303A.00 transition period would also limit any of the Proposed Rule Change does not provide any transition period interference by the Exchange’s internal The Exchange proposes to amend for compliance with the internal audit audit requirement with a company’s 303A.00 of the Exchange’s Listed requirement to a company which is business decision regarding the timing Company Manual (the ‘‘Manual’’) to listing in connection with: (i) Its IPO 4 and use of resources relating to its provide a one-year transition period to or whose common stock has not initial listing. In that regard, the comply with the internal audit previously been registered under the Exchange notes that newly-public requirement of Section 303A.07(c) for Exchange Act or (ii) by means of a companies are typically in the process companies listing in connection with an carve-out or spin-off transaction.5 The of upgrading their accounting systems initial public offering (‘‘IPO’’), as new Exchange believes that the lack of a and internal controls and hiring registrants or by means of a carve-out or transition period in relation to the additional staff to meet the greater spin-off transaction. The text of the internal audit requirement for these demands placed on public companies. proposed rule change is available on the categories of newly-listed companies is In addition, many such companies Exchange’s Web site at www.nyse.com, anomalous in light of the treatment of appoint a number of new directors at at the principal office of the Exchange, companies transferring from other the time of listing to comply with NYSE and at the Commission’s Public markets. Accordingly, the Exchange independence requirements. Frequently, Reference Room. proposes to amend Section 303A.00 to a newly-listed company will appoint a extend the application of the one-year completely new audit committee on the II. Self-Regulatory Organization’s transition period to comply with the Statement of the Purpose of, and date of listing. As the audit committee internal audit function requirement to has an oversight role with respect to Statutory Basis for, the Proposed Rule such companies. Change internal audit and risk management, it The Exchange believes that providing is appropriate for that newly-constituted In its filing with the Commission, the a transition period to comply with the committee to have a significant role in self-regulatory organization included internal audit function requirement to the design and implementation of the statements concerning the purpose of, companies listing in connection with company’s internal audit function. A and basis for, the proposed rule change their IPO, as new registrants or by mean one-year transition period would give a and discussed any comments it received of a carve-out or spin-off transaction newly-appointed audit committee an on the proposed rule change. The text does not give rise to any novel opportunity to become familiar with the of those statements may be examined at regulatory issues that do not arise in internal controls and risk management connection with the existing transition the places specified in Item IV below. of the company and determine what provision for companies transferring The Exchange has prepared summaries, kind of internal audit function is from another national securities set forth in sections A, B, and C below, suitable for the company given its of the most significant parts of such specific circumstances. statements. 4 For purposes of Section 303A other than Sections 303A.06 (which incorporates Exchange Given the limited scope of the A. Self-Regulatory Organization’s Act Rule 10A–3 by reference) and 303A.12(b), proposed transition provision and the Section 303A.00 currently provides that a company fact that other national securities Statement of the Purpose of, and is considered to be listing in conjunction with an Statutory Basis for, the Proposed Rule IPO if, immediately prior to listing, it does not have exchanges do not have comparable Change a class of common stock registered under the rules, the Exchange believes that the Exchange Act. Conseqently [sic], a company whose extension of the transition provision to 1. Purpose common stock has not previously been registered under the Exchange Act is eligible to avail itself of IPOs, new registrants, carve-outs and Section 303A.07(c) of the Listed the IPO transition periods in Section 303A.00 spin-offs is consistent with the Company Manual requires that any regardless of whether that company is conducting protection of investors and the public listed company which is subject to a public offering at the time of its initial listing. The interest. Moreover, given that any Exchange’s proposed amendment would provide a Section 303A.07 must have an internal one-year transition period for compliance with the company which would be able to avail audit function to provide management internal audit function requirement to all itself of the proposed transition could and the audit committee with ongoing companies currently eligible for the IPO transition list on Nasdaq without ever having to assessments of the listed company’s risk periods in Section 303A.00. comply with an internal audit 5 Section 102.01B of the Manual defines a carve- management processes and system of out as the initial offering of an equity security to requirement, the Exchange believes that internal control. A listed company may the public by a publicly traded company for an investors would be at least as well choose to outsource this function to a underlying interest in its existing business (which protected by having these companies third party service provider other than may be subsidiary, division, or business unit). For listed on the Exchange, where they all practical purposes, a carve-out is the same as an its independent auditor. IPO, as it involves the listing of a newly-public would be subject to such a requirement Consistent with the transition company in connection with the initial public after the transition period. After provisions of Section 303A.00, any offering of its common stock. A spin-off involves adoption of the proposed amendment, company listing upon transfer from the distribution by a listed company of all of the all companies that are subject to Section outstanding common stock of a subsidiary to the another national securities exchange listed company’s shareholders and the listing of the 303A.07 would continue to be required that does not have an internal audit new company, generally without any concurrent to have an internal audit function no requirement has one year from the date offering. later than one year after their listing

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date. The Exchange proposes to amend Section 303A.00, the review should internal audit function during that Section 303A.07 to include a sentence include discussion of management’s period. explicitly stating this fact. plans with respect to the B. Self-Regulatory Organization’s The Exchange notes that there are responsibilities, budget and staffing of Statement on Burden on Competition several provisions in Section 303A.07 the internal audit function and its plans that set forth duties of the audit for the implementation of the internal The Exchange does not believe that committee with respect to the internal audit function. the proposed rule change will impose audit function. The Exchange proposes any burden on competition that is not • Section 303A.07(b)(i)(H) provides to amend those provisions to clarify the necessary or appropriate in furtherance that the audit committee’s charter must duties of the audit committee with of the purpose of the Act, as it simply provide that the committee will report respect to the internal audit function provides a transition period for newly- during any transition period applicable regularly to the board of directors to listed companies to comply with the to IPOs, new registrants, transfers from review, among other things, the Exchange’s internal audit requirement. another national securities exchange, performance of the company’s internal carve-outs and spin-offs. The proposed audit function. The proposed C. Self-Regulatory Organization’s amendments are as follows: amendment would provide that if the Statement on Comments on the • Section 303A.07(b)(i)(A) provides listed company does not yet have an Proposed Rule Change Received From that the audit committee’s charter must internal audit function because it is Members, Participants, or Others provide that the committee will assist availing itself of a transition period No written comments were solicited board oversight of (1) the integrity of the pursuant to Section 303A.00, the or received with respect to the proposed listed company’s financial statements, committee should review with the board rule change. (2) the listed company’s compliance management’s activities with respect to with legal and regulatory requirements, the design and implementation of the III. Date of Effectiveness of the (3) the independent auditor’s internal audit function. Proposed Rule Change and Timing for qualifications and independence, and Commission Action 2. Statutory Basis (4) the performance of the listed Within 45 days of the date of company’s internal audit function and The Exchange believes that the publication of this notice in the Federal independent auditors. The proposed proposed rule change is consistent with Register or within such longer period (i) amendment would provide that if the Section 6(b) 6 of the Securities Exchange as the Commission may designate up to listed company does not yet have an Act of 1934 (the ‘‘Act’’), in general, and 90 days of such date if it finds such internal audit function because it is furthers the objectives of Section 6(b)(5) longer period to be appropriate and availing itself of a transition period of the Act,7 in particular in that it is publishes its reasons for so finding or pursuant to Section 303A.00, the charter designed to promote just and equitable (ii) as to which the self-regulatory must provide that the committee will principles of trade, to foster cooperation organization consents, the Commission assist board oversight of the design and and coordination with persons engaged will: implementation of the internal audit in regulating, clearing, settling, (A) By order approve or disapprove function) [sic]. processing information with respect to, the proposed rule change, or • Section 303A.07(b)(i)(E) provides and facilitating transactions in (B) Institute proceedings to determine that the audit committee’s charter must whether the proposed rule change securities, to remove impediments to provide that the committee will meet should be disapproved. separately, periodically, with and perfect the mechanism of a free and management, with internal auditors (or open market and a national market IV. Solicitation of Comments other personnel responsible for the system, and, in general, to protect Interested persons are invited to internal audit function) and with investors and the public interest. The submit written data, views, and independent auditors. The proposed Exchange believes that the proposed arguments concerning the foregoing, amendment would provide that if the amendment is consistent with the including whether the proposed rule listed company does not yet have an investor protection objectives of Section change is consistent with the Act. internal audit function because it is 6(b)(5) of the Act in that the proposed Comments may be submitted by any of availing itself of a transition period amendment would provide an the following methods: pursuant to Section 303A.00, the appropriate transition period to comply committee must meet periodically with with the internal audit requirement to Electronic Comments the company personnel primarily companies listing in connection with an • Use the Commission’s Internet responsible for the design and IPO, as a new registrant, or by means of comment form (http://www.sec.gov/ implementation of the internal audit a carve-out or spin-off transaction, while rules/sro.shtml); or function. retaining its general requirement that all • Send an email to rule- • Section 303A.07(b)(i)(F) provides such companies must have an internal [email protected]. Please include File that the audit committee’s charter must audit function no later than one year Number SR–NYSE–2013–40 on the provide that the committee will review from the company’s listing date. The subject line. with the independent auditor any audit Exchange notes that during any Paper Comments problems or difficulties and transition period the audit committee management’s response. This review is would continue to have a role in • Send paper comments in triplicate required to include discussion of the overseeing the listed company’s to Elizabeth M. Murphy, Secretary, responsibilities, budget and staffing of financial systems and internal controls Securities and Exchange Commission, the listed company’s internal audit and would also be involved in 100 F Street NE., Washington, DC function. The proposed amendment overseeing the design and 20549–1090. would provide that if the listed implementation of the company’s All submissions should refer to File company does not yet have an internal Number SR–NYSE–2013–40. This file audit function because it is availing 6 15 U.S.C. 78f(b). number should be included on the itself of a transition period pursuant to 7 15 U.S.C. 78f(b)(5). subject line if email is used.

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To help the Commission process and FOR FURTHER INFORMATION CONTACT: A. FOR FURTHER INFORMATION CONTACT: A. review your comments more efficiently, Escobar, Office of Disaster Assistance, Escobar, Office of Disaster Assistance, please use only one method. The U.S. Small Business Administration, U.S. Small Business Administration, Commission will post all comments on 409 3rd Street SW., Suite 6050, 409 3rd Street SW., Suite 6050, the Commission’s Internet Web site Washington, DC 20416. Washington, DC 20416. (http://www.sec.gov/rules/sro.shtml). SUPPLEMENTARY INFORMATION: Notice is SUPPLEMENTARY INFORMATION: The notice Copies of the submission, all subsequent hereby given that as a result of the of the Presidential disaster declaration amendments, all written statements Administrator’s EIDL declaration, for the State of Oklahoma, dated 05/20/ with respect to the proposed rule applications for economic injury 2013 is hereby amended to include the change that are filed with the disaster loans may be filed at the following areas as adversely affected by Commission, and all written address listed above or other locally the disaster: communications relating to the announced locations. Primary Counties: (Physical Damage and proposed rule change between the The following areas have been Economic Injury Loans): Okfuskee Commission and any person, other than determined to be adversely affected by Okmulgee Le Flore those that may be withheld from the the disaster: Contiguous Counties: (Economic Injury public in accordance with the Primary Counties: Skagit. Loans Only): provisions of 5 U.S.C. 552, will be Contiguous Counties: Oklahoma: Haskell Hughes Latimer available for Web site viewing and Washington: Chelan; Island; Mccurtain Mcintosh Muskogee printing in the Commission’s Public Okanogan; Snohomish; Whatcom. Pushmataha Sequoyah Tulsa Reference Room on official business The Interest Rates are: Wagoner days between the hours of 10:00 a.m. Arkansas: Polk Scott Sebastian and 3:00 p.m. Copies of such filing also Percent All other information in the original will be available for inspection and declaration remains unchanged. copying at the principal offices of Businesses and small agricultural NYSE. All comments received will be cooperatives without credit (Catalog of Federal Domestic Assistance Numbers 59002 and 59008) posted without change; the Commission available elsewhere ...... 4.000 does not edit personal identifying Non-Profit Organizations Without James E. Rivera, Credit Available Elsewhere ...... 2.875 information from submissions. You Associate Administrator for Disaster should submit only information that Assistance. The number assigned to this disaster you wish to make available publicly. All [FR Doc. 2013–16221 Filed 7–5–13; 8:45 am] submissions should refer to File for economic injury is 136410. The State which received an EIDL BILLING CODE 8025–01–P Number SR–NYSE–2013–40, and Declaration # is Washington. should be submitted on or before July 29, 2013. (Catalog of Federal Domestic Assistance Number 59002) SOCIAL SECURITY ADMINISTRATION For the Commission, by the Division of Trading and Markets, pursuant to delegated Dated:June 27, 2013. Agency Information Collection authority.8 Karen G. Mills, Activities: Comment Request Elizabeth M. Murphy, Administrator. The Social Security Administration Secretary. [FR Doc. 2013–16219 Filed 7–5–13; 8:45 am] (SSA) publishes a list of information [FR Doc. 2013–16289 Filed 7–5–13; 8:45 am] BILLING CODE 8025–01–P collection packages requiring clearance BILLING CODE 8011–01–P by the Office of Management and SMALL BUSINESS ADMINISTRATION Budget (OMB) in compliance with Public Law 104–13, the Paperwork SMALL BUSINESS ADMINISTRATION [Disaster Declaration #13586 and #13587] Reduction Act of 1995, effective October [Disaster Declaration # 13641] 1, 1995. This notice includes revisions Oklahoma Disaster Number OK–00071 of OMB-approved information Washington Disaster # WA–00038 AGENCY: U.S. Small Business collections. Declaration of Economic Injury Administration. SSA is soliciting comments on the accuracy of the agency’s burden AGENCY: U.S. Small Business ACTION: Amendment 4. estimate; the need for the information; Administration. SUMMARY: This is an amendment of the its practical utility; ways to enhance its ACTION: Notice. Presidential declaration of a major quality, utility, and clarity; and ways to SUMMARY: This is a notice of an disaster for the State of Oklahoma minimize burden on respondents, Economic Injury Disaster Loan (EIDL) (FEMA—4117–DR), dated 05/20/2013. including the use of automated declaration for the State of Washington, Incident: Severe storms, tornadoes collection techniques or other forms of dated 06/27/2013. and flooding. information technology. Mail, email, or Incident: Interstate 5 Bridge Collapse. Incident Period: 05/18/2013 through fax your comments and Incident Period: 05/23/2013. 06/02/2013. recommendations on the information Effective Date: 06/27/2013. Effective Date: 06/26/2013. collection(s) to the OMB Desk Officer EIDL Loan Application Deadline Date: Physical Loan Application Deadline and SSA Reports Clearance Officer at 03/27/2014. Date: 07/19/2013. the following addresses or fax numbers. ADDRESSES: Submit completed loan EIDL Loan Application Deadline Date: (OMB) Office of Management and applications to: U.S. Small Business 02/20/2014. Budget, Attn: Desk Officer for SSA, Fax: Administration, Processing and ADDRESSES: Submit completed loan 202–395–6974, Email address: Disbursement Center, 14925 Kingsport applications to: U.S. Small Business [email protected]. Road, Fort Worth, TX 76155. Administration, Processing And (SSA) Social Security Administration, Disbursement Center, 14925 Kingsport DCRDP, Attn: Reports Clearance 8 17 CFR 200.30–3(a)(12). Road, Fort Worth, TX 76155. Director, 107 Altmeyer Building, 6401

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Security Blvd., Baltimore, MD 21235, 1. Program Discrimination complaint of discrimination. SSA uses Fax: 410–966–2830, Email address: Complaint—0960–0585. SSA collects the information to (1) identify the [email protected]. information on Form SSA–437 to complaint; (2) identify the alleged SSA submitted the information investigate and formally resolve discriminatory act; (3) establish the date complaints of discrimination based on collections below to OMB for clearance. of such alleged action; (4) establish the disability, race, color, national origin Your comments regarding the identity of any individual(s) with (including limited English language information about the alleged information collections would be most proficiency), sex (including sexual useful if OMB and SSA receive them 30 discrimination; and (5) establish other orientation and gender identity), age, relevant information that would assist days from the date of this publication. religion, or retaliation for having in the investigation and resolution of To be sure we consider your comments, participated in a proceeding under this the complaint. Respondents are we must receive them no later than administrative complaint process in individuals who believe an SSA August 7, 2013. Individuals can obtain connection with an SSA program or copies of the OMB clearance packages activity. Individuals who believe SSA program or activity, or SSA employees, by writing to discriminated against them on any of contractors or agents discriminated [email protected]. the above bases may file a written against them.

TYPE OF REQUEST: REVISION OF AN OMB-APPROVED INFORMATION COLLECTION

Average Estimated Number of Frequency of burden per total annual Modality of collection respondents response response burden (minutes) (hours)

SSA–437 ...... 255 1 60 255

2. Work Incentives Planning and claimant information via project sites beneficiary and SSI recipient outcomes Assistance Program—0960–0629. As and community work incentives under the WIPA program to determine part of SSA’s strategy to assist Social coordinators (CWIC). SSA uses this the extent to which beneficiaries with Security Disability Insurance (SSDI) information to ensure proper disabilities and SSI recipients achieve beneficiaries and Supplemental Security management of the project, with their employment, financial, and health- Income (SSI) recipients who wish to particular emphasis on administration, care goals. SSA will also use the data in return to work and achieve self- budgeting, and training. In addition, its analysis and future planning for SSDI sufficiency, SSA established the Work project sites and CWICs collect data and SSI programs. Respondents are Incentives Planning and Assistance from SSDI beneficiaries and SSI SSDI beneficiaries, SSI recipients, (WIPA) program. This community- recipients on background employment, community project sites, and based, work incentive, planning and training, benefits, and work incentives. employment advisors. assistance project collects identifying SSA is interested in identifying SSDI

TYPE OF REQUEST: REVISION OF AN OMB-APPROVED INFORMATION COLLECTION

Average Estimated Number of Frequency of burden per total annual Modality of collection respondents response response burden (minutes) (hours)

SSDI Beneficiaries and SSI Recipients ...... 40,000 1 30 20,000 Project Sites ...... 96 1 15 24 CWICs ...... 400 1 20 134

Totals ...... 40,496 ...... 20,158

Dated: July 2, 2013. DEPARTMENT OF STATE from all interested individuals and Faye Lipsky, organizations. The purpose of this [Public Notice 8374] Reports Clearance Director, Social Security notice is to allow 60 days for public Administration. 60-Day Notice of Proposed Information comment preceding submission of the [FR Doc. 2013–16245 Filed 7–5–13; 8:45 am] Collection: Exchange Programs collection to OMB. BILLING CODE 4191–02–P Alumni Web Site Registration DATES: The Department will accept comments from the public up to ACTION: Notice of request for public September 6, 2013. comment. ADDRESSES: You may submit comments SUMMARY: The Department of State is by any of the following methods: seeking Office of Management and • Web: Persons with access to the Budget (OMB) approval for the Internet may use the Federal Docket information collection described below. Management System (FDMS) to In accordance with the Paperwork comment on this notice by going to Reduction Act of 1995, we are www.Regulations.gov. You can search requesting comments on this collection for the document by entering ‘‘Public

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Notice 8374’’ in the Search bar. If or other forms of information Laredo, Texas and Nuevo Laredo, necessary, use the Narrow by Agency technology. Tamaulipas, Mexico. This application filter option on the Results page. Please note that comments submitted has been filed by the City of Laredo, the • Email: [email protected] in response to this Notice are public original permittee for the World Trade • Mail: Bureau of Educational and record. Before including any detailed Bridge. A Presidential permit for the Cultural Affairs; U.S. Department of personal information, you should be World Trade Bridge crossing was issued State; SA–5, Room C2–C20; aware that your comments as submitted, by the Department of State on October Washington, DC 20522–0503 including your personal information, 7, 1994. You must include the DS form will be available for public review. The Department of State’s jurisdiction number (if applicable), information Abstract of proposed collection: with respect to this application is based collection title, and the OMB control The International Exchange Alumni upon the International Bridge Act of number in any correspondence. Web site requires information to process 1972, 33 U.S.C. 535 et seq., and FOR FURTHER INFORMATION CONTACT: users’ voluntary request for Executive Order 11423, dated August Direct requests for additional participation in the International 16, 1968, as amended. The Department information regarding the collection Exchange Alumni Web site. Other than of State has determined that, under listed in this notice, including requests contact exchange program information, Executive Order 11423, an amended for copies of the proposed collection which is required for Web site Presidential permit is required to allow instrument and supporting documents, registration, all other information is the transit of HAZMATs as this to Chang Suh, Alumni Outreach provided on a voluntary basis. Specialist, Bureau of Educational and Participants also have the option of constitutes a substantial change to the Cultural Affairs; U.S. Department of restricting access to their information. operations of the crossing as authorized State; SA–5, Room C2–C20; Respondents to this registration form by the existing Presidential permit. Washington, DC 20522–0503, who may are U.S. government-sponsored As provided in E.O. 11423, the be reached on 202–632–6183 or at exchange program participants and Department is circulating the City of [email protected]. alumni. Alumni Affairs collects data Laredo’s application, along with the EA, from users to not only verify their status SUPPLEMENTARY INFORMATION: to concerned agencies for comment. or participation in a program, but to • Title of Information Collection: Under E.O. 11423, the Department has help alumni network with one another Exchange Programs Alumni Web site the responsibility to determine, taking and aid embassy staff in their alumni Registration into account input from these agencies outreach. • OMB Control Number: 1405–0192 and other stakeholders, whether • Type of Request: Extension of an Methodology: issuance of an amendment to the Approved Request Information provided for registration Presidential Permit would serve the • Originating Office: Bureau of is collected electronically via the national interest. Alumni Web site, alumni.state.gov. Educational and Cultural Affairs, ECA/ Interested members of the public are P/A Additional Information: International Exchange Alumni is a invited to submit written comments • Form Number: DS–7006 regarding this application on or before • secure, encrypted Web site. Respondents: Exchange program August 7, 2013 to alumni and current participants of U.S. Dated: July 1, 2013. [email protected] or to government-sponsored exchange Tania Chomiak-Salvi, Peter Marigliano, Border Affairs Officer, programs Director, Office of Policy and Evaluation, WHA/MEX, HST Room 1329A, • Estimated Number of Respondents: Bureau of Educational and Cultural Affairs, Department of State, 2201 C St. NW., 20,000 Department of State. Washington, DC 20520. • Estimated Number of Responses: [FR Doc. 2013–16335 Filed 7–5–13; 8:45 am] 20,000 BILLING CODE 4701–05–P FOR FURTHER INFORMATION CONTACT: • Average Time Per Response: 10 Peter Marigliano, Border Affairs Officer, minutes WHA/MEX, HST Room 1329A, • Total Estimated Burden Time: 3,333 DEPARTMENT OF STATE Department of State, 2201 C St. NW., hours Washington, DC 20520. Telephone: [Public Notice 8373] • Frequency: One time per (202) 647–9895, email: WHA- respondent [email protected]. • Bureau of Western Hemisphere Affairs, Obligation to Respond: Required to Executive Order 11423, as Amended; SUPPLEMENTARY INFORMATION: The Obtain or Retain a Benefit Notice of Receipt of Application for an application and related documents are We are soliciting public comments to Amendment to a Presidential Permit To available for review in the Office of permit the Department to: Allow the Crossing of Non-Radioactive • Mexican Affairs, Border Affairs Unit, Evaluate whether the proposed Hazardous Materials Across the World Department of State, during normal information collection is necessary for Trade Bridge in the City of Laredo, business hours throughout the comment the proper functions of the Department. Texas • Evaluate the accuracy of our period. Any questions related to this estimate of the time and cost burden for AGENCY: Department of State. notice may be addressed to Mr. this proposed collection, including the ACTION: Notice. Marigliano using the contact validity of the methodology and information above. SUMMARY: The Department of State assumptions used. Dated: June 27, 2013. • Enhance the quality, utility, and hereby gives notice that it has received clarity of the information to be an application for an amendment to the Hugo F. Rodriguez, collected. existing Presidential permit to allow the Acting Director, Office of Mexican Affairs, • Minimize the reporting burden on crossing of non-hazardous radioactive Department of State. those who are to respond, including the materials (HAZMAT) across the World [FR Doc. 2013–16333 Filed 7–5–13; 8:45 am] use of automated collection techniques Trade Bridge between the City of BILLING CODE 4710–29–P

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OFFICE OF THE UNITED STATES including CNL waivers and CNL List VI (Decisions on Products Eligible TRADE REPRESENTATIVE revocations. This notice provides for Redesignation). further information on the results of the Generalized System of Preferences 2012 Annual GSP Review, including the Country Practice Petitions (GSP): Results of the 2012 Annual GSP disposition of country practice The status of country practice Review; Notice of a Country Practice petitions. These results, comprising Petition Accepted as Part of the 2012 petitions considered in the 2012 GSP seven lists, are available for the public Annual Review is described in List VII Annual GSP Review to view at http://www.regulations.gov in (Active and Pending GSP Country docket USTR–2012–0013, under AGENCY: Office of the United States Practice Reviews). This list includes ‘‘Supporting and Related Materials’’ and Trade Representative. petitions accepted as part of annual at http://www.ustr.gov/trade-topics/ ACTION: Notice. trade-development/preference- reviews from previous years. SUMMARY: This notice announces the programs/generalized-system- The USTR has accepted for review results of the 2012 Annual GSP Review preferences-gsp/current-review. one country practice petition submitted as part of the 2012 GSP Annual Review: with respect to: (1) Products considered Specific Results for addition to the list of eligible A petition seeking to withdraw or products for GSP; (2) decisions related The Administration has decided to suspend GSP benefits for Ecuador on to competitive need limitations (CNLs), defer a decision on the final disposition the basis of Ecuador’s alleged failure to including petitions for waivers of CNLs of petitions to add the following meet the GSP statutory eligibility and revocation of previous CNL products to the list of products eligible criterion regarding recognition and waivers; (3) redesignations of products for duty-free treatment under GSP for all enforcement of arbitral awards (19 previously excluded from GSP GSP beneficiary countries: Sweetheart U.S.C. 2462(b)(2)(E)). The GSP eligibility for certain countries; and (4) and spray roses (HTS 0603.11.00), Subcommittee’s review of this petition petitions to modify the GSP status of certain frozen vegetables (HTS will consider whether the withdrawal or certain GSP beneficiary countries 0710.80.97), and certain preserved suspension of GSP benefits is warranted artichokes (HTS 2005.99.80). The because of country practices. in light of the type, nature, and content Administration denied the petition to FOR FURTHER INFORMATION CONTACT: of the awards at issue, as well as make certain refined copper wire (HTS Tameka Cooper, GSP Program, Office of whether Ecuador’s actions in response the United States Trade Representative, 7408.19.00.30) eligible for duty-free treatment under the GSP. See List I to the awards comply with the cited 600 17th Street NW., Washington, DC eligibility criterion. The review will not 20508. The telephone number is (202) (Decisions on Petitions to Add Products consider the details or merits of either 395–6971; the fax number is (202) 395– to the List of Eligible Products for GSP). the Ecuadorian domestic litigation 9674, and the email address is The President granted a petition for a underlying the ongoing arbitral [email protected]. waiver of CNLs for calcium silicon ferroalloys (HTS 7202.99.20) from proceedings or the arbitral proceedings SUPPLEMENTARY INFORMATION: The GSP Brazil. See List II (Decision on Petition themselves. A subsequent notice program provides for the duty-free to Grant a Waiver of the Competitive published in the Federal Register will treatment of designated articles when Need Limitations). Additionally, the announce the schedule for a hearing and imported from beneficiary developing President revoked an existing CNL receipt of public comments, including countries. The GSP program is waiver for certain pneumatic radial tires related filing deadlines, on this newly authorized by Title V of the Trade Act (HTS 4011.10.10) from Indonesia, as accepted country practice case. of 1974 (19 U.S.C. 2461 et seq.), as reflected in List III (Decision on amended. As determined in the previously-cited Competitive Need Limitation Waiver Presidential Proclamation dated June Results of the 2012 Annual GSP Review Revocations). 27, 2013, the President has suspended In the 2012 Annual Review, the Trade Effective July 1, 2013, imports of an Bangladesh’s benefits under the GSP. Policy Staff Committee (TPSC) article, certain corn (HTS 1005.90.40), This suspension will be effective 60 reviewed: (1) Petitions to add four from Brazil are excluded from GSP days after the date the proclamation is eligibility because imports of that article different products to the list of those published in the Federal Register. eligible for duty-free treatment under from Brazil exceeded the CNL in 2012. GSP; (2) one petition to waive CNLs for See List IV (Product Newly Subject to Country practice petitions accepted a product from a beneficiary country; (3) Exclusion by Competitive Need for review in previous years that revocation of a CNL waiver for a Limitation). continue to be under review include: product from a beneficiary country The President granted de minimis Indonesia, Russia, Ukraine, and where 2012 imports exceeded certain waivers to 100 articles that exceeded the Uzbekistan regarding intellectual statutory limits; (4) products eligible for 50-percent import-share CNL, but for property rights, and Fiji, Georgia, Iraq, de minimis waivers of CNLs; (5) which the aggregate value of all U.S. Niger, the Philippines, and Uzbekistan redesignation of products previously imports of that article was below the regarding worker rights. excluded from GSP eligibility for certain 2012 de minimis level of $21 million. William D. Jackson, beneficiary countries; and 6) one See List V (Decisions on Products country practice petition submitted as Eligible for De Minimis Waivers). The Deputy Assistant U.S. Trade Representative part of the 2012 Annual Review and articles for which de minimis waivers for the Generalized System of Preferences and Chair of the GSP Subcommittee of the Trade several active petitions submitted as were granted will continue to be eligible for duty-free treatment under GSP when Policy Staff Committee, Office of the U.S. part of earlier reviews. Trade Representative. In a Presidential Proclamation dated imported from the associated countries. June 27, 2013, the President No products previously excluded [FR Doc. 2013–16201 Filed 7–5–13; 8:45 am] implemented his decisions regarding from GSP eligibility for certain countries BILLING CODE 3290–F3–P GSP product eligibility issues arising were redesignated as eligible for GSP as out of the 2012 Annual GSP Review, a result of the 2012 Annual Review. See

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DEPARTMENT OF TRANSPORTATION In conducting the proposed telephone DEPARTMENT OF TRANSPORTATION interviews, the interviewers would use National Highway Traffic Safety computer-assisted telephone Surface Transportation Board Administration interviewing to reduce interview length [U.S. DOT Docket Number NHTSA–2013– and minimize recording errors. No [Docket No. EP 526 (Sub-No. 5)] 0176] personally identifiable information will be collected during the telephone Notice of Railroad-Shipper Transportation Advisory Council Reports, Forms, and Record Keeping interviews. NHTSA has decided not to Vacancy Requirements use a Spanish-language translation or AGENCY: National Highway Traffic bilingual interviewers based on the AGENCY: Surface Transportation Board, Safety Administration (NHTSA), DOT. prevalence of the use of English in the DOT. ACTION: Notice. United States. ACTION: Notice of vacancies on the Respondents: Telephone interviews Railroad-Shipper Transportation SUMMARY: In compliance with the will be administered to a national Advisory Council (RSTAC) and Paperwork Reduction Act of 1995 (44 sample of people 18 and older who are solicitation of nominations. U.S.C. chapter 35), this notice primary drivers of vehicles with a SUMMARY: The Board hereby gives notice announces that the Information specific make and model. Collection Request (ICR) abstracted of two vacancies on RSTAC. One is for below will be submitted to the Office of Estimated Number of Respondents: a large shipper representative, and the Management and Budge (OMB) for 2,500 survey respondents. other is for an at-large (public interest) review. The ICR describes the nature of Estimated Time per Response: 15 representative. The Board is soliciting the information collection and its minutes per interview. suggestions for candidates to fill these expected burden. A Federal Register two vacancies. Total Estimated Annual Burden: 625 Notice with a 60-day comment period hours. DATES: Suggestions of candidates for soliciting public comments on the membership on RSTAC are due on July following information was published on Frequency of Collection: The survey 31, 2013. will be administered a single time. January 28, 2013 (Federal Register/Vol. ADDRESSES: Suggestions may be 78, No. 18/pp. 5866–5867). ADDRESSES: Send comments regarding submitted either via the Board’s e-filing DATES: Submit comments to the Office the burden estimate, including format or in the traditional paper of Management and Budget (OMB) on or suggestions for reducing the burden, to format. Any person using e-filing should before August 7, 2013. the Office of Information and Regulatory attach a document and otherwise FOR FURTHER INFORMATION CONTACT: Affairs, Office of Management and comply with the instructions at the E- Carla Rush at the National Highway Budget, 725 17th Street NW., FILING link on the Board’s Web site, at Traffic Safety Administration, Office of Washington, DC 20503, Attention: Desk http://www.stb.dot.gov. Any person Crashworthiness Standards, Department Officer for Department of submitting a filing in the traditional of Transportation, 1200 New Jersey Transportation, National Highway paper format should send an original Avenue SE., Washington, DC 20590. Traffic Safety Administration, or by and 10 copies to: Surface Transportation Board, Attn: Docket No. EP 526 (Sub- Mrs. Rush’s phone number is (202) 366– email at [email protected], 4583 and her email address is No. 5), 395 E Street SW., Washington, or fax: 202–395–5806. [email protected]. DC 20423–0001 (if sending via express Comments Are Invited On: Whether company or private courier, please use SUPPLEMENTARY INFORMATION: the proposed collection of information OMB Control Number: To be issued at zip code 20024). Please note that is necessary for the proper performance time of approval. submissions will be available to the of the functions of the Department of Title: National Survey of Principal public at the Board’s offices and posted Drivers of Vehicles with a Rear Seat Belt Transportation, including whether the on the Board’s Web site under Docket Reminder System information will have practical utility; No. EP 526 (Sub-No. 5). Type of Request: New collection. the accuracy of the Department’s FOR FURTHER INFORMATION CONTACT: Abstract: NHTSA seeks to collect data estimate of the burden of the proposed Gabriel Meyer at 202–245–0150. from those who drive vehicles equipped information collection; ways to enhance Assistance for the hearing impaired is with a Rear Seat Belt Reminder System the quality, utility and clarity of the available through the Federal (SBRS), which are currently available on information to be collected; and ways to Information Relay Service (FIRS) at 1– only a few vehicle models sold in the minimize the burden of the collection of 800–877–8339. U.S., the test group, and draw information on respondents, including SUPPLEMENTARY INFORMATION: The comparisons to those who drive similar the use of automated collection Board, created in 1996 to take over vehicles without a rear SBRS (the techniques or other forms of information many of the functions previously comparison group). To this end, NHTSA technology. A comment to OMB is most performed by the Interstate Commerce will collect basic demographic effective if OMB receives it within 30 Commission, exercises broad authority information from both groups and days of publication of this notice. over transportation by rail carriers, information on their passengers seat belt including regulation of railroad rates Issued on: June 27, 2013. usage habits, as well as the and service (49 U.S.C. 10701–10747, effectiveness, preferences and Lori K. Summers, 11101–11124), as well as the acceptance of the rear SBRS. NHTSA Acting Associate Administrator for construction, acquisition, operation, and will use the findings from this proposed Rulemaking. abandonment of rail lines (49 U.S.C. collection of information in support of [FR Doc. 2013–16268 Filed 7–5–13; 8:45 am] 10901–10907) and railroad line sales, an analysis of the potential benefits of BILLING CODE 4910–59–P consolidations, mergers, and common requiring a rear SBRS in new vehicles control arrangements (49 U.S.C. 10902, sold in the United States. 11323–11327).

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RSTAC was established upon the Chairman, however, may request DEPARTMENT OF THE TREASURY enactment of the ICC Termination Act of funding from the Department of 1995 (ICCTA), on December 29, 1995, to Transportation to cover travel expenses, Internal Revenue Service advise the Board’s Chairman, the subject to certain restrictions in ICCTA. Secretary of Transportation, the RSTAC also may solicit and use private Proposed Collection; Comment Committee on Commerce, Science, and funding for its activities, again subject to Request for Form 8038–TC Transportation of the Senate, and the certain restrictions in ICCTA. RSTAC AGENCY: Internal Revenue Service (IRS), Committee on Transportation and members currently have elected to Treasury. Infrastructure of the House of submit annual dues to pay for RSTAC ACTION: Notice and request for Representatives with respect to rail expenses. comments. transportation policy issues RSTAC RSTAC members must be citizens of considers significant. RSTAC focuses on the United States and represent as SUMMARY: The Department of the issues of importance to small shippers broadly as practicable the various Treasury, as part of its continuing effort and small railroads, including car segments of the railroad and rail shipper to reduce paperwork and respondent supply, rates, competition, and industries. They may not be full-time burden, invites the general public and procedures for addressing claims. employees of the United States. Further, other Federal agencies to take this ICCTA directs RSTAC to develop RSTAC members appointed or opportunity to comment on proposed private-sector mechanisms to prevent, reappointed after June 18, 2010, are and/or continuing information or identify and address, obstacles to the prohibited from serving as federally collections, as required by the most effective and efficient registered lobbyists during their RSTAC Paperwork Reduction Act of 1995, transportation system practicable. The term. Public Law 104–13 (44 U.S.C. Secretary of Transportation and the The members of RSTAC are appointed 3506(c)(2)(A)). Currently, the IRS is members of the Board cooperate with for a term of three years. A member may soliciting comments concerning Form serve after the expiration of his or her RSTAC in providing research, technical, 8038–TC, Information Return for Tax term until a successor has taken office. and other reasonable support. RSTAC Credit Bonds. also prepares an annual report No member will be eligible to serve in DATES: Written comments should be concerning its activities and excess of two consecutive terms. received on or before September 6, 2013 recommendations on whatever Due to the unanticipated resignation to be assured of consideration. regulatory or legislative relief it of RSTAC members, two vacancies considers appropriate. RSTAC is not currently exist. One is for a large ADDRESSES: Direct all written comments subject to the Federal Advisory shipper representative, and the other is to Yvette Lawrence, Internal Revenue Committee Act. for an at-large (public interest) Service, room 6129, 1111 Constitution RSTAC consists of 19 members. Of representative. Upon appointment by Avenue NW., Washington, DC 20224. this number, 15 members are appointed the Chairman, both representatives will FOR FURTHER INFORMATION CONTACT: by the Chairman of the Board, and the serve for three years, and may be Requests for additional information or remaining four members are comprised eligible to serve a second three-year copies of notice should be directed to of the Secretary of Transportation and term following the end of their first Allan Hopkins, at (202) 622–6665, or at the Members of the Board, who serve as term. Internal Revenue Service, room 6129, ex officio, nonvoting members. Of the 15 Suggestions for candidates to fill the 1111 Constitution Avenue NW., members, nine members are voting two vacancies should be submitted in Washington, DC 20224, or through the members and are appointed from senior letter form, identify the name of the internet, at [email protected]. executive officers of organizations candidate, provide a summary of why SUPPLEMENTARY INFORMATION: engaged in the railroad and rail the candidate is qualified to serve on Title: Information Return for Tax shipping industries. At least four of the RSTAC, and contain a representation Credit Bonds. voting members must be representatives that the candidate is willing to serve as OMB Number: 1545–2160. of small shippers as determined by the a member of RSTAC effective Notice Number: Form 8038–TC. Chairman, and at least four of the voting immediately upon appointment. RSTAC Abstract: Form 8038–TC will be used members must be representatives of candidate suggestions should be filed by issuers of qualified tax-exempt credit Class II or III railroads. The remaining with the Board by July 31, 2013. bonds, including tax credit bonds six members to be appointed—three Members selected to serve on RSTAC enacted under American Recovery and representing Class I railroads and three are chosen at the discretion of the Reinvestment Act of 2009, to capture representing large shipper Board’s Chairman. Please note that information required by IRC section organizations—serve in a nonvoting, submissions will be available to the 149(e) using a schedule approach. For advisory capacity, but are entitled to public at the Board’s offices and posted applicable types of bond issues, filers participate in RSTAC deliberations. on the Board’s Web site under Docket will this form instead of Form 8038, RSTAC is required by statute to meet No. EP 526 (Sub-No. 5). Information Return for Tax-Exempt at least semi-annually. In recent years, This action will not significantly Private Activity Bond Issues. RSTAC has chosen to meet four times a affect either the quality of the human Current Actions: There are no changes year, with the first meeting each environment or the conservation of being made to the form at this time. February. Meetings are generally held at energy resources. Type of Review: Extension of the Board’s headquarters in Washington, Authority: 49 U.S.C. 726. currently approved collection. DC, although some may be held in other Affected Public: Not for profit locations. Decided: July 1, 2013. institutions. RSTAC members receive no By the Board, Rachel D. Campbell, Estimated Number of Respondents: compensation for their services and are Director, Office of Proceedings. 540. required to provide for the expenses Raina S. White, Estimated Average Time per incidental to their service, including Clearance Clerk. Respondent: 28 hrs., 44 min. travel expenses, as the Board cannot [FR Doc. 2013–16224 Filed 7–5–13; 8:45 am] Estimated Total Annual Burden provide for these expenses. The RSTAC BILLING CODE 4915–01–P Hours: 15,520 hrs.

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The following paragraph applies to all 3506(c)(2)(A)). Currently, the IRS is information is necessary for the proper of the collections of information covered soliciting comments concerning performance of the functions of the by this notice: Revenue Procedure 2004–15, Waivers of agency, including whether the An agency may not conduct or Minimum Funding Standards. information shall have practical utility; sponsor, and a person is not required to DATES: Written comments should be (b) the accuracy of the agency’s estimate respond to, a collection of information received on or before September 6, 2013 of the burden of the collection of unless the collection of information to be assured of consideration. information; (c) ways to enhance the displays a valid OMB control number. ADDRESSES: Direct all written comments quality, utility, and clarity of the Books or records relating to a collection to Yvette Lawrence, Internal Revenue information to be collected; (d) ways to of information must be retained as long Service, Room 6129, 1111 Constitution minimize the burden of the collection of as their contents may become material Avenue NW., Washington, DC 20224. information on respondents, including in the administration of any internal through the use of automated collection FOR FURTHER INFORMATION CONTACT: revenue law. Generally, tax returns and techniques or other forms of information Requests for additional information or tax return information are confidential, technology; and (e) estimates of capital copies of the revenue procedure should as required by 26 U.S.C. 6103. or start-up costs and costs of operation, be directed to Allan Hopkins, at (202) Request For Comments: Comments maintenance, and purchase of services 622–6665, or at Internal Revenue submitted in response to this notice will to provide information. be summarized and/or included in the Service, room 6129, 1111 Constitution Approved: June 17, 2013. request for OMB approval. All Avenue NW., Washington, DC 20224, or comments will become a matter of through the Internet at Allan Hopkins, public record. Comments are invited on: [email protected]. Tax Analyst. (a) Whether the collection of SUPPLEMENTARY INFORMATION: [FR Doc. 2013–16197 Filed 7–5–13; 8:45 am] information is necessary for the proper Title: Waivers of Minimum Funding BILLING CODE 4830–01–P performance of the functions of the Standards. agency, including whether the OMB Number: 1545–1873. information shall have practical utility; Revenue Procedure Number: Revenue DEPARTMENT OF THE TREASURY (b) the accuracy of the agency’s estimate Procedure 2004–15. Internal Revenue Service of the burden of the collection of Abstract: Revenue Procedure 2004–15 describes the process for obtaining a information; (c) ways to enhance the Proposed Collection; Comment waiver from the minimum funding quality, utility, and clarity of the Request for Regulation Project information to be collected; (d) ways to standards set forth in section 412 of the minimize the burden of the collection of Code. AGENCY: Internal Revenue Service (IRS), information on respondents, including Current Actions: There are no changes Treasury. being made to the revenue procedure at through the use of automated collection ACTION: Notice and request for this time. techniques or other forms of information comments. technology; and (e) estimates of capital Type of Review: Extension of a or start-up costs and costs of operation, currently approved collection. SUMMARY: The Department of the maintenance, and purchase of services Affected Public: Business or other for- Treasury, as part of its continuing effort to provide information. profit organizations not-for-profit to reduce paperwork and respondent institutions, farms and state, local or Approved: June 17, 2013. burden, invites the general public and tribal governments. other Federal agencies to take this Allan Hopkins, Estimated Number of Respondents: opportunity to comment on proposed Tax Analyst. 55. and/or continuing information [FR Doc. 2013–16205 Filed 7–5–13; 8:45 am] Estimated Annual Average Time per collections, as required by the BILLING CODE 4830–01–P Respondent: 172 hours. Estimated Total Annual Hours: 9,460 Paperwork Reduction Act of 1995, hours. Public Law 104–13 (44 U.S.C. DEPARTMENT OF THE TREASURY The following paragraph applies to all 3506(c)(2)(A)). Currently, the IRS is of the collections of information covered soliciting comments concerning Internal Revenue Service by this notice: procedural rules for excise taxes An agency may not conduct or currently reportable on Form 720. Proposed Collection; Comment sponsor, and a person is not required to DATES: Written comments should be Request for Revenue Procedure respond to, a collection of information received on or before September 6, 2013 2004–15 unless the collection of information to be assured of consideration. AGENCY: Internal Revenue Service (IRS), displays a valid OMB control number. ADDRESSES: Direct all written comments Treasury. Books or records relating to a collection to Yvette Lawrence, Internal Revenue ACTION: Notice and request for of information must be retained as long Service, room 6129, 1111 Constitution comments. as their contents may become material Avenue NW., Washington, DC 20224. in the administration of any internal FOR FURTHER INFORMATION CONTACT: SUMMARY: The Department of the revenue law. Generally, tax returns and Requests for additional information or Treasury, as part of its continuing effort tax return information are confidential, copies of the regulations should be to reduce paperwork and respondent as required by 26 U.S.C. 6103. directed to Allan Hopkins at Internal burden, invites the general public and Request for Comments: Comments Revenue Service, room 6129, 1111 other Federal agencies to take this submitted in response to this notice will Constitution Avenue NW., Washington, opportunity to comment on proposed be summarized and/or included in the DC 20224, or at (202) 622–6665, or and/or continuing information request for OMB approval. All through the internet at collections, as required by the comments will become a matter of [email protected]. Paperwork Reduction Act of 1995, public record. Comments are invited on: Public Law 104–13 (44 U.S.C. (a) Whether the collection of SUPPLEMENTARY INFORMATION:

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Title: Procedural Rules for Excise DEPARTMENT OF THE TREASURY Type of Review: Extension of a Taxes Currently Reportable on Form currently approved collection. 720. Internal Revenue Service Affected Public: Individuals or OMB Number: 1545–1296. households, business or other for-profit Regulation Project Number: PS–27– Proposed Collection; Comment organizations. 91. Request for Revenue Procedure Estimated Number of Respondents: Abstract: Internal Revenue Code 2006–54 300. Estimated Time per Respondent: 30 section 6302(c) authorizes the use of AGENCY: Internal Revenue Service (IRS), Government depositaries for the receipt Treasury. hours. of taxes imposed under the internal Estimated Total Annual Burden ACTION: Notice and request for Hours: 9,000. revenue laws. These regulations provide comments. reporting and recordkeeping The following paragraph applies to all requirements related to return, SUMMARY: The Department of the of the collections of information covered payments, and deposits of tax for excise Treasury, as part of its continuing effort by this notice: taxes currently reportable on Form 720. to reduce paperwork and respondent An agency may not conduct or Current Actions: There are no changes burden, invites the general public and sponsor, and a person is not required to being made to this existing regulation. other Federal agencies to take this respond to, a collection of information Type of Review: Extension of a opportunity to comment on proposed unless the collection of information currently approved collection. and/or continuing information displays a valid OMB control number. Affected Public: Business or other for- collections, as required by the Books or records relating to a collection profit organizations. Paperwork Reduction Act of 1995, of information must be retained as long Estimated Number of Respondents: Public Law 104–13 (44 U.S.C. as their contents may become material 10,500. 3506(c)(2)(A)). Currently, the IRS is in the administration of any internal Estimated Time per Respondent: 14 soliciting comments concerning revenue law. Generally, tax returns and minutes. Revenue Procedure 2006–54, tax return information are confidential, Estimated Total Annual Burden: Procedures for Requesting Competent as required by 26 U.S.C. 6103. Request for Comments: Comments 242,350. Authority Assistance Under Tax submitted in response to this notice will An agency may not conduct or Treaties. sponsor, and a person is not required to be summarized and/or included in the DATES: Written comments should be respond to, a collection of information request for OMB approval. All received on or before September 6, 2013 unless the collection of information comments will become a matter of to be assured of consideration. displays a valid OMB control number. public record. Comments are invited on: Books or records relating to a collection ADDRESSES: Direct all written comments (a) Whether the collection of of information must be retained as long to Yvette Lawrence, Internal Revenue information is necessary for the proper as their contents may become material Service, Room 6129, 1111 Constitution performance of the functions of the in the administration of any internal Avenue NW., Washington, DC 20224. agency, including whether the revenue law. Generally, tax returns and FOR FURTHER INFORMATION CONTACT: information shall have practical utility; tax return information are confidential, Requests for additional information or (b) the accuracy of the agency’s estimate as required by 26 U.S.C. 6103. copies of revenue procedures should be of the burden of the collection of Request for Comments: Comments directed to Allan Hopkins at Internal information; (c) ways to enhance the submitted in response to this notice will Revenue Service, room 6129, 1111 quality, utility, and clarity of the be summarized and/or included in the Constitution Avenue NW., Washington, information to be collected; (d) ways to request for OMB approval. All DC 20224, or at (202) 622–6665, or minimize the burden of the collection of comments will become a matter of through the internet at information on respondents, including public record. Comments are invited on: [email protected]. through the use of automated collection techniques or other forms of information (a) Whether the collection of SUPPLEMENTARY INFORMATION: technology; and (e) estimates of capital information is necessary for the proper Title: Procedures for Requesting or start-up costs and costs of operation, performance of the functions of the Competent Authority Assistance Under maintenance, and purchase of services agency, including whether the Tax Treaties. information shall have practical utility; OMB Number: 1545–2044. to provide information. (b) the accuracy of the agency’s estimate Revenue Procedure Number: Rev. Approved: June 17, 2013. of the burden of the collection of Proc. 2006–54. Allan Hopkins, information; (c) ways to enhance the Abstract: Taxpayers who believe that Tax Analyst. quality, utility, and clarity of the the actions of the United States, a treaty [FR Doc. 2013–16202 Filed 7–5–13; 8:45 am] information to be collected; (d) ways to country, or both, result or will result in BILLING CODE 4830–01–P minimize the burden of the collection of taxation that is contrary to the information on respondents, including provisions of an applicable tax treaty are through the use of automated collection required to submit the requested DEPARTMENT OF THE TREASURY techniques or other forms of information information in order to receive technology; and (e) estimates of capital assistance from the IRS official acting as Internal Revenue Service or start-up costs and costs of operation, the U.S. competent authority. The Proposed Collection; Comment maintenance, and purchase of services information is used to assist the Request for Revenue Procedure to provide information. taxpayer in reaching a mutual agreement with the IRS and the 2006–50 Approved: June 17, 2013. appropriate foreign competent Allan Hopkins, AGENCY: Internal Revenue Service (IRS), authority. Treasury. Tax Analyst. Current Actions: There are no changes ACTION: Notice and request for [FR Doc. 2013–16186 Filed 7–5–13; 8:45 am] being made to the revenue procedures at comments. BILLING CODE 4830–01–P this time.

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SUMMARY: The Department of the The following paragraph applies to all soliciting comments concerning Treasury, as part of its continuing effort of the collections of information covered registration requirements with respect to to reduce paperwork and respondent by this notice: certain debt obligations; application of burden, invites the general public and An agency may not conduct or repeal of 30 percent withholding by the other Federal agencies to take this sponsor, and a person is not required to tax reform act of 1984. opportunity to comment on proposed respond to, a collection of information DATES: Written comments should be and/or continuing information unless the collection of information received on or before September 6, 2013 collections, as required by the displays a valid OMB control number. to be assured of consideration. Paperwork Reduction Act of 1995, Books or records relating to a collection ADDRESSES: Direct all written comments Public Law 104–13 (44 U.S.C. of information must be retained as long to Yvette Lawrence, Internal Revenue 3506(c)(2)(A)). Currently, the IRS is as their contents may become material Service, Room 6516, 1111 Constitution soliciting comments concerning in the administration of any internal Avenue NW., Washington, DC 20224. Revenue Procedure 2006–50, Expenses revenue law. Generally, tax returns and FOR FURTHER INFORMATION CONTACT: Paid by Certain Whaling Captains in tax return information are confidential, Requests for additional information or Support of Native Alaskan Subsistence as required by 26 U.S.C. 6103. copies of the information collection Whaling. Request for Comments: Comments submitted in response to this notice will should be directed to Allan Hopkins, at DATES: Written comments should be be summarized and/or included in the (202) 622–6665, or at Internal Revenue received on or before September 6, 2013 request for OMB approval. All Service, room 6129, 1111 Constitution to be assured of consideration. comments will become a matter of Avenue NW., Washington, DC 20224, or ADDRESSES: Direct all written comments public record. Comments are invited on: through the internet, at to Yvette Lawrence, Internal Revenue (a) Whether the collection of [email protected]. Service, room 6129, 1111 Constitution information is necessary for the proper SUPPLEMENTARY INFORMATION: Avenue NW., Washington, DC 20224. performance of the functions of the Title: Registration Requirements With FOR FURTHER INFORMATION CONTACT: agency, including whether the Respect to Certain Debt Obligations; Requests for additional information or information shall have practical utility; Application of Repeal of 30 Percent copies of the revenue procedure should (b) the accuracy of the agency’s estimate Withholding by the Tax Reform Act of be directed to Allan Hopkins at Internal of the burden of the collection of 1984. Revenue Service, room 6129, 1111 information; (c) ways to enhance the OMB Number: 1545–1132. Constitution Avenue NW., Washington, quality, utility, and clarity of the Regulation Project Number: INTL– DC 20224, or at (202) 622–6665, or information to be collected; (d) ways to 536–89. through the Internet at minimize the burden of the collection of Abstract: Sections 165(j) and 1287(a) [email protected]. information on respondents, including of the Internal Revenue Code provide through the use of automated collection that persons holding registration- SUPPLEMENTARY INFORMATION: techniques or other forms of information required obligations in bearer form are Title: Expenses Paid by Certain technology; and (e) estimates of capital subject to certain penalties. These Whaling Captains in Support of Native or start-up costs and costs of operation, sections also provide that certain Alaskan Subsistence Whaling. maintenance, and purchase of services persons may be exempted from these OMB Number: 1545–2041. to provide information. penalties if they comply with reporting Revenue Procedure Number: Revenue requirements with respect to ownership, Approved: June 17, 2013. Procedure 2006–50. transfers, and payments on the Allan Hopkins, Abstract: This revenue procedure obligations. The reporting and provides the procedures under which Tax Analyst. recordkeeping requirements in this the whaling expenses of an individual [FR Doc. 2013–16198 Filed 7–5–13; 8:45 am] regulation are necessary to ensure that recognized by the Alaska Eskimo BILLING CODE 4830–01–P persons holding registration-required Whaling Commission (AEWC) as a obligations in bearer form properly whaling captain charged with the report interest and gain on disposition responsibility of maintaining and DEPARTMENT OF THE TREASURY of the obligations. Current Actions: There is no change to carrying out sanctioned whaling Internal Revenue Service activities are substantiated for purposes this existing regulation. of Internal Revenue Code § 170(n), as Proposed Collection; Comment Type of Review: Extension of OMB enacted by the American Jobs Creation Request for Regulation Project approval. Act of 2004 and effective for whaling Affected Public: Business or other for- expenses incurred after December 31, AGENCY: Internal Revenue Service (IRS), profit organizations. 2004. Pub. L. No. 109–357, § 335. Treasury. Estimated Number of Respondents/ Current Actions: There are no changes ACTION: Notice and request for Recordkeepers: 5000. being made to the revenue procedure at comments. Estimated Time per Respondent/ this time. Recordkeeper: 10 minutes. SUMMARY: The Department of the Estimated Total Annual Reporting/ Type of Review: Extension of a Treasury, as part of its continuing effort Recordkeeping Hours: 850. currently approved collection. to reduce paperwork and respondent The following paragraph applies to all Affected Public: Individuals or burden, invites the general public and of the collections of information covered households. other Federal agencies to take this by this notice: Estimated Number of Respondents: opportunity to comment on proposed An agency may not conduct or 24. and/or continuing information sponsor, and a person is not required to Estimated Time per Respondent: 2 collections, as required by the respond to, a collection of information hours. Paperwork Reduction Act of 1995, unless the collection of information Estimated Total Annual Burden Public Law 104–13 (44 U.S.C. displays a valid OMB control number. Hours: 48. 3506(c)(2)(A)). Currently, the IRS is Books or records relating to a collection

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of information must be retained as long ADDRESSES: Direct all written comments be summarized and/or included in the as their contents may become material to Yvette Lawrence, Internal Revenue request for OMB approval. All in the administration of any internal Service, Room 6129, 1111 Constitution comments will become a matter of revenue law. Generally, tax returns and Avenue NW., Washington, DC 20224. public record. Comments are invited on: tax return information are confidential, FOR FURTHER INFORMATION CONTACT: (a) Whether the collection of as required by 26 U.S.C. 6103. Requests for additional information or information is necessary for the proper Request for Comments: Comments copies of the revenue procedure should performance of the functions of the submitted in response to this notice will be directed to Allan Hopkins at Internal agency, including whether the be summarized and/or included in the Revenue Service, room 6129, 1111 information shall have practical utility; request for OMB approval. All Constitution Avenue NW., Washington, (b) the accuracy of the agency’s estimate comments will become a matter of DC 20224, or at (202) 622–6665, or of the burden of the collection of public record. Comments are invited on: through the internet at information; (c) ways to enhance the (a) Whether the collection of [email protected]. quality, utility, and clarity of the information is necessary for the proper information to be collected; (d) ways to SUPPLEMENTARY INFORMATION: minimize the burden of the collection of performance of the functions of the Title: Diversification Requirements for information on respondents, including agency, including whether the Qualified Defined Contribution Plans through the use of automated collection information shall have practical utility; Holding Publicly Traded Employer techniques or other forms of information (b) the accuracy of the agency’s estimate Securities. technology; and (e) estimates of capital of the burden of the collection of OMB Number: 1545–2049. or start-up costs and costs of operation, information; (c) ways to enhance the Revenue Procedure Number: Notice maintenance, and purchase of services quality, utility, and clarity of the 2006–107. information to be collected; (d) ways to Abstract: This notice provides to provide information. minimize the burden of the collection of transitional guidance on § 401(a)(35) of Approved: June 17, 2013. information on respondents, including the Internal Revenue Code, added by Allan Hopkins, through the use of automated collection section 901 of the Pension Protection Tax Analyst. techniques or other forms of information Act of 2006, Public Law 109–280, 120 technology; and (e) estimates of capital [FR Doc. 2013–16203 Filed 7–5–13; 8:45 am] Stat. 780 (PPA ’06), which provides BILLING CODE 4830–01–P or start-up costs and costs of operation, diversification rights with respect to maintenance, and purchase of services publicly traded employer securities held to provide information. by a defined contribution plan. This DEPARTMENT OF THE TREASURY Approved: June 17, 2013. notice also states that Treasury and the Allan Hopkins, Service expect to issue regulations Internal Revenue Service Tax Analyst. under § 401(a)(35) that incorporate the transitional relief in this notice and Proposed Collection: Comment [FR Doc. 2013–16200 Filed 7–5–13; 8:45 am] Request for Form 8875 BILLING CODE 4830–01–P requests comments on the transitional guidance in this notice and on the AGENCY: Internal Revenue Service (IRS), topics that need to be addressed in the Treasury. regulations. DEPARTMENT OF THE TREASURY ACTION: Notice and request for Current Actions: There are no changes comments. Internal Revenue Service being made to the Notice at this time. Type of Review: Extension of a SUMMARY: The Department of the Proposed Collection; Comment currently approved collection. Treasury, as part of its continuing effort Request for Notice 2006–107 Affected Public: Business and other to reduce paperwork and respondent for-profit. AGENCY: burden, invites the general public and Internal Revenue Service (IRS), Estimated Number of Respondents: Treasury. other Federal agencies to take this 10,300. opportunity to comment on proposed ACTION: Notice and request for Estimated Time per Respondent: 45 and/or continuing information comments. minutes. collections, as required by the Estimated Total Annual Burden Paperwork Reduction Act of 1995, SUMMARY: The Department of the Hours: 7,725. Treasury, as part of its continuing effort Public Law 104–13 (44 U.S.C. The following paragraph applies to all 3506(c)(2)(A)). Currently, the IRS is to reduce paperwork and respondent of the collections of information covered burden, invites the general public and soliciting comments concerning Form by this notice: 8875, Taxable REIT Subsidiary Election. other Federal agencies to take this An agency may not conduct or DATES: opportunity to comment on proposed sponsor, and a person is not required to Written comments should be and/or continuing information respond to, a collection of information received on or before September 6, 2013 collections, as required by the unless the collection of information to be assured of consideration. Paperwork Reduction Act of 1995, displays a valid OMB control number. ADDRESSES: Direct all written comments Public Law 104–13 (44 U.S.C. Books or records relating to a to Yvette Lawrence, Internal Revenue 3506(c)(2)(A)). Currently, the IRS is collection of information must be Service, Room 6129, 1111 Constitution soliciting comments concerning Notice retained as long as their contents may Avenue NW., Washington, DC 20224. 2006–107, Diversification Requirements become material in the administration FOR FURTHER INFORMATION CONTACT: for Qualified Defined Contribution of any internal revenue law. Generally, Requests for additional information or Plans Holding Publicly Traded tax returns and tax return information copies of the form and instructions Employer Securities. are confidential, as required by 26 should be directed to Allan Hopkins, DATES: Written comments should be U.S.C. 6103. (202) 622–6665, or at Internal Revenue received on or before September 6, 2013 Request for Comments: Comments Service, Room 6129, 1111 Constitution to be assured of consideration. submitted in response to this notice will Avenue NW., Washington DC 20224, or

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through the internet, at DEPARTMENT OF THE TREASURY The following paragraph applies to all [email protected]. of the collections of information covered Internal Revenue Service by this notice: SUPPLEMENTARY INFORMATION: An agency may not conduct or Title: Taxable REIT Subsidiary Proposed Collection; Comment sponsor, and a person is not required to Election. Request for Form 720–CS respond to, a collection of information OMB Number: 1545–1721. AGENCY: Internal Revenue Service (IRS), unless the collection of information Form Number: 8875. Treasury. displays a valid OMB control number. Books or records relating to a collection Abstract: A corporation and a REIT ACTION: Notice and request for of information must be retained as long use Form 8875 to jointly elect to have comments. the corporation treated as a taxable REIT as their contents may become material subsidiary as provided in section 856(l). SUMMARY: The Department of the in the administration of any internal Treasury, as part of its continuing effort revenue law. Generally, tax returns and Current Actions: There are no changes tax return information are confidential, being made to the form at this time. to reduce paperwork and respondent burden, invites the general public and as required by 26 U.S.C. 6103. Affected Public: Business or other for- other Federal agencies to take this Request for Comments: Comments profit organizations. opportunity to comment on proposed submitted in response to this notice will Estimated Number of Respondents: and/or continuing information be summarized and/or included in the 1,000. collections, as required by the request for OMB approval. All Estimated Time per Respondent: 7 hr., Paperwork Reduction Act of 1995, comments will become a matter of 40 min. Public Law 104–13 (44 U.S.C. public record. Comments are invited on: Estimated Total Annual Burden 3506(c)(2)(A)). Currently, the IRS is (a) Whether the collection of Hours: 7,660. soliciting comments concerning Form information is necessary for the proper performance of the functions of the The following paragraph applies to all 720–CS, Carrier Summary Report. agency, including whether the of the collections of information covered DATES: Written comments should be information shall have practical utility; by this notice: An agency may not received on or before September 6, 2013 (b) the accuracy of the agency’s estimate conduct or sponsor, and a person is not to be assured of consideration. of the burden of the collection of required to respond to, a collection of ADDRESSES: Direct all written comments information; (c) ways to enhance the information unless the collection of to Yvette Lawrence, Internal Revenue quality, utility, and clarity of the information displays a valid OMB Service, room 6129, 1111 Constitution information to be collected; (d) ways to control number. Books or records Avenue NW., Washington, DC 20224. minimize the burden of the collection of relating to a collection of information FOR FURTHER INFORMATION CONTACT: information on respondents, including must be retained as long as their Requests for additional information or through the use of automated collection contents may become material in the copies of the form and instructions techniques or other forms of information administration of any internal revenue should be directed to Allan Hopkins at technology; and (e) estimates of capital law. Generally, tax returns and tax (202) 622–6665, or at Internal Revenue or start-up costs and costs of operation, return information are confidential, as Service, room 6129, 1111 Constitution maintenance, and purchase of services required by 26 U.S.C. 6103. Avenue NW., Washington, DC 20224, or to provide information. Request For Comments: Comments through the Internet at submitted in response to this notice will [email protected]. Approved: June 17, 2013. Allan Hopkins, be summarized and/or included in the SUPPLEMENTARY INFORMATION: request for OMB approval. All Title: Carrier Summary Report. Tax Analyst. comments will become a matter of OMB Number: 1545–1733. [FR Doc. 2013–16212 Filed 7–5–13; 8:45 am] public record. Comments are invited on: Form Number: 720–CS. BILLING CODE 4830–01–P (a) Whether the collection of Abstract: Representatives of the motor information is necessary for the proper fuel industry, state governments, and performance of the functions of the the Federal government are working to DEPARTMENT OF THE TREASURY agency, including whether the ensure compliance with excise taxes on Internal Revenue Service information shall have practical utility; motor fuels. This joint effort has (b) the accuracy of the agency’s estimate resulted in a system to track the Proposed Collection; Comment of the burden of the collection of movement of all products to and from Request for Form 8868 information; (c) ways to enhance the terminals. Form 720–CS is an quality, utility, and clarity of the information return that will be used by AGENCY: Internal Revenue Service (IRS), information to be collected; (d) ways to carriers to report their monthly Treasury. minimize the burden of the collection of deliveries and receipts of products to ACTION: Notice and request for information on respondents, including and from terminals. comments. through the use of automated collection Current Actions: There is no change to techniques or other forms of information Form 720–CS at this time. SUMMARY: The Department of the technology; and (e) estimates of capital Type of Review: Extension of a Treasury, as part of its continuing effort or start-up costs and costs of operation, currently approved collection. to reduce paperwork and respondent maintenance, and purchase of services Affected Public: Business or other for- burden, invites the general public and to provide information. profit organizations. other Federal agencies to take this Estimated Number of Respondents: opportunity to comment on proposed Approved: June 17, 2013. 39,900. and/or continuing information Allan Hopkins, Estimated Time per Respondent: 5 collections, as required by the Tax Analyst. hours, 15 minutes. Paperwork Reduction Act of 1995, [FR Doc. 2013–16216 Filed 7–5–13; 8:45 am] Estimated Total Annual Burden Public Law 104–13(44 U.S.C. BILLING CODE 4830–01–P Hours: 209,418. 3506(c)(2)(A)). Currently, the IRS is

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soliciting comments concerning Form information is necessary for the proper SUPPLEMENTARY INFORMATION: 8868, Application for Extension of Time performance of the functions of the Title: Information Regarding Request To File an Exempt Organization Return. agency, including whether the for Refund of Social Security Tax DATES: Written comments should be information shall have practical utility; Erroneously Withheld on Wages received on or September 6, 2013 to be (b) the accuracy of the agency’s estimate Received by a Nonresident Alien on an assured of consideration. of the burden of the collection of F, J, or M Type Visa. OMB Number: 1545–1862. ADDRESSES: Direct all written comments information; (c) ways to enhance the Form Number: 8316. to Yvette Lawrence, Internal Revenue quality, utility, and clarity of the information to be collected; (d) ways to Abstract: Certain foreign students and Service, Room 6129, 1111 Constitution other nonresident visitors are exempt Avenue NW., Washington, DC 20224. minimize the burden of the collection of information on respondents, including from FICA tax for services performed as FOR FURTHER INFORMATION CONTACT: through the use of automated collection specified in the Immigration and Requests for additional information or techniques or other forms of information Naturalization Act. Applicants for copies of the form and instructions technology; and (e) estimates of capital refund of this FICA tax withheld by should be directed to Allan Hopkins, or start-up costs and costs of operation, their employer must complete Form (202) 622–6665, or at Internal Revenue maintenance, and purchase of services 8316 to verify that they are entitled to Service, Room 6129, 1111 Constitution to provide information. a refund of the FICA, that the employer Avenue NW., Washington DC 20224, or has not paid back any part of the tax through the internet, at Approved: June 17, 2013. withheld and that the taxpayer has [email protected]. Allan Hopkins, attempted to secure a refund from his/ SUPPLEMENTARY INFORMATION: Tax Analyst. her employer. Title: Application for Extension of [FR Doc. 2013–16195 Filed 7–5–13; 8:45 am] Current Actions: There are no changes Time To File an Exempt Organization BILLING CODE 4830–01–P being made to the form at this time. Return. Type of Review: Extension of a OMB Number: 1545–1709. currently approved collection. Form Number: 8868. DEPARTMENT OF THE TREASURY Affected Public: Individuals. Abstract: Sections 6081 and 1.6081 of Estimated Number of Respondents: the Internal Revenue Code and Internal Revenue Service 22,000. regulations permit the Internal Revenue Estimated Time per Respondent: 15 Proposed Collection; Comment Service to grant a reasonable extension minutes. Request for Form 8316 of time to file a return. Form 8868 Estimated Total Annual Burden provides the necessary information for a AGENCY: Internal Revenue Service (IRS), Hours: 5,500. taxpayer to apply for an extension to file Treasury. The following paragraph applies to all a fiduciary or certain exempt of the collections of information covered ACTION: Notice and request for by this notice: organization return. comments. Current Actions: There are no changes An agency may not conduct or being made to the form at this time. SUMMARY: The Department of the sponsor, and a person is not required to Type of Review: Extension of a Treasury, as part of its continuing effort respond to, a collection of information previously approved collection. to reduce paperwork and respondent unless the collection of information Affected Public: Not-for-profit burden, invites the general public and displays a valid OMB control number. institutions. other Federal agencies to take this Books or records relating to a collection Estimated Number of Respondents: opportunity to comment on proposed of information must be retained as long 248,932. and/or continuing information as their contents may become material Estimated Time per Respondent: 10 collections, as required by the in the administration of any internal hrs., 24 mins. Paperwork Reduction Act of 1995, revenue law. Generally, tax returns and Estimated Total Annual Burden Public Law 104–13 (44 U.S.C. tax return information are confidential, Hours: 1,291,498. 3506(c)(2)(A)). Currently, the IRS is as required by 26 U.S.C. 6103. The following paragraph applies to all soliciting comments concerning Form Request for Comments: Comments of the collections of information covered 8316, Information Regarding Request for submitted in response to this notice will by this notice: Refund of Social Security Tax be summarized and/or included in the An agency may not conduct or Erroneously Withheld on Wages request for OMB approval. All sponsor, and a person is not required to Received by a Nonresident Alien on an comments will become a matter of respond to, a collection of information F, J, or M Type Visa. public record. Comments are invited on: unless the collection of information (a) Whether the collection of DATES: displays a valid OMB control number. Written comments should be information is necessary for the proper Books or records relating to a collection received on or before September 6, 2013 performance of the functions of the of information must be retained as long to be assured of consideration. agency, including whether the as their contents may become material ADDRESSES: Direct all written comments information shall have practical utility; in the administration of any internal to Yvette Lawrence, Internal Revenue (b) the accuracy of the agency’s estimate revenue law. Generally, tax returns and Service, Room 6129, 1111 Constitution of the burden of the collection of tax return information are confidential, Avenue NW., Washington, DC 20224. information; (c) ways to enhance the as required by 26 U.S.C. 6103. FOR FURTHER INFORMATION CONTACT: quality, utility, and clarity of the Request for Comments: Comments Requests for additional information or information to be collected; (d) ways to submitted in response to this notice will copies of the form should be directed to minimize the burden of the collection of be summarized and/or included in the Allan Hopkins at Internal Revenue information on respondents, including request for OMB approval. All Service, room 6129, 1111 Constitution through the use of automated collection comments will become a matter of Avenue NW., Washington, DC 20224, or techniques or other forms of information public record. Comments are invited on: at (202) 622–6665 or through the technology; and (e) estimates of capital (a) Whether the collection of Internet at [email protected]. or start-up costs and costs of operation,

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maintenance, and purchase of services governments that issue qualified zone DEPARTMENT OF THE TREASURY to provide information. academy bonds under § 1397E of the Internal Revenue Service Approved: June 17, 2013. IRC. Allan Hopkins, Current Actions: There are no changes Proposed Collection; Comment Tax Analyst. being made to the regulation at this Request for Regulation Project [FR Doc. 2013–16213 Filed 7–5–13; 8:45 am] time. AGENCY: Internal Revenue Service (IRS), BILLING CODE 4830–01–P Type of Review: Extension of a Treasury. currently approved collection. ACTION: Notice and request for DEPARTMENT OF THE TREASURY Affected Public: State, Local or Tribal comments. Government. Internal Revenue Service Estimated Number of Respondents: 6. SUMMARY: The Department of the Treasury, as part of its continuing effort Proposed Collection; Comment Estimated Average Time per to reduce paperwork and respondent Request for Regulation Project Respondent: 30 minutes. burden, invites the general public and Estimated Total Annual Reporting other Federal agencies to take this AGENCY: Internal Revenue Service (IRS), opportunity to comment on proposed Treasury. Hours: 3. The following paragraph applies to all and/or continuing information ACTION: Notice and request for collections, as required by the comments. of the collections of information covered by this notice: Paperwork Reduction Act of 1995, SUMMARY: The Department of the Public Law 104–13 (44 U.S.C. An agency may not conduct or Treasury, as part of its continuing effort 3506(c)(2)(A)). Currently, the IRS is sponsor, and a person is not required to to reduce paperwork and respondent soliciting comments concerning burden, invites the general public and respond to, a collection of information allocation and sourcing of income and other Federal agencies to take this unless the collection of information deductions among taxpayers engaged in opportunity to comment on proposed displays a valid OMB control number. a global dealing operation. and/or continuing information Books or records relating to a collection DATES: Written comments should be collections, as required by the of information must be retained as long received on or before September 6, 2013 Paperwork Reduction Act of 1995, as their contents may become material to be assured of consideration. Public Law 104–13 (44 U.S.C. in the administration of any internal ADDRESSES: Direct all written comments 3506(c)(2)(A)). Currently, the IRS is revenue law. Generally, tax returns and to Yvette Lawrence, Internal Revenue soliciting comments concerning tax return information are confidential, Service, Room 6129, 1111 Constitution qualified zone academy bonds: as required by 26 U.S.C. 6103. Avenue NW., Washington, DC 20224. Obligations of states and political Request for Comments: Comments FOR FURTHER INFORMATION CONTACT: subdivision. submitted in response to this notice will Requests for additional information or DATES: Written comments should be be summarized and/or included in the copies of the regulations should be received on or before September 6, 2013 request for OMB approval. All directed to Allan Hopkins at Internal to be assured of consideration. comments will become a matter of Revenue Service, Room 6129, 1111 ADDRESSES: Direct all written comments public record. Comments are invited on: Constitution Avenue NW., Washington, to Yvette Lawrence, Internal Revenue (a) Whether the collection of DC 20224, or at (202) 622–6665, or Service, Room 6129, 1111 Constitution information is necessary for the proper through the Internet at Avenue NW., Washington, DC 20224. performance of the functions of the [email protected]. FOR FURTHER INFORMATION CONTACT: agency, including whether the SUPPLEMENTARY INFORMATION: Requests for additional information or information shall have practical utility; Title: Allocation and Sourcing of copies of the regulation should be (b) the accuracy of the agency’s estimate Income and Deductions Among directed to Allan Hopkins, (202) 622– of the burden of the collection of Taxpayers Engaged in a Global Dealing 6665, or at Internal Revenue Service, information; (c) ways to enhance the Operation. Room 6129, 1111 Constitution Avenue quality, utility, and clarity of the OMB Number: 1545–1599. NW., Washington DC 20224, or through information to be collected; (d) ways to Regulation Project Number: REG– the Internet, at minimize the burden of the collection of 208299–90. [email protected]. information on respondents, including Abstract: This regulation provides SUPPLEMENTARY INFORMATION: through the use of automated collection rules for the allocation among Title: Qualified Zone Academy Bonds: techniques or other forms of information controlled taxpayers and sourcing of Obligations of States and Political technology; and (e) estimates of capital income, deductions, gains and losses Subdivision. or start-up costs and costs of operation, from a global dealing operation. The OMB Number: 1545–1908. maintenance, and purchase of services information requested in §§ 1.475(g)– 2(b), 1.482–8(b)(3), (c)(3), (e)(3), (e)(5), Regulation Number: Regulation to provide information. 121475–03 (T.D. 9339). (e)(6), (d)(3), and 1.863–3(h) is necessary Abstract: The agency needs the Approved: June 17, 2013. for the Service we determine whether information to ensure compliance with Allan Hopkins, the taxpayer has entered into controlled the requirement under the regulation Tax Analyst. transactions at an arm’s length price. that the taxpayer rebates the earnings on [FR Doc. 2013–16199 Filed 7–5–13; 8:45 am] Current Actions: There is no change to the defeasance escrow to the United this existing regulation. BILLING CODE 4830–01–P States. The agency will use the notice to Type of Review: Extension of ensure that the respondent pays rebate currently approved collection. when rebate becomes due. The Affected Public: Business or other for- respondent are state and local profit organizations.

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Estimated Number of Respondents: opportunity to comment on proposed (a) Whether the collection of 500. and/or continuing information information is necessary for the proper Estimated Time per Respondent: 40 collections, as required by the performance of the functions of the hours. Paperwork Reduction Act of 1995, agency, including whether the Estimate Total Annual Burden Hours: Public Law 104–13(44 U.S.C. information shall have practical utility; 20,000. 3506(c)(2)(A)). Currently, the IRS is (b) the accuracy of the agency’s estimate The following paragraph applies to all soliciting comments concerning Form of the burden of the collection of of the collections of information covered 1098–T, Tuition Payment Statement. information; (c) ways to enhance the by this notice: DATES: Written comments should be quality, utility, and clarity of the An agency may not conduct or received on or before September 6, 2013 information to be collected; (d) ways to sponsor, and a person is not required to to be assured of consideration. minimize the burden of the collection of respond to, a collection of information ADDRESSES: Direct all written comments information on respondents, including unless the collection of information to Yvette Larence, Internal Revenue through the use of automated collection displays a valid OMB control number. Service, room 6129, 1111 Constitution techniques or other forms of information Books or records relating to a collection Avenue NW., Washington, DC 20224. technology; and (e) estimates of capital of information must be retained as long or start-up costs and costs of operation, FOR FURTHER INFORMATION CONTACT: as their contents may become material maintenance, and purchase of services Requests for additional information or in the administration of any internal to provide information. revenue law. Generally, tax returns and copies of the form and instructions tax return information are confidential, should be directed to Allan Hopkins at Approved: June 17, 2013. as required by 26 U.S.C. 6103. Internal Revenue Service, room 6129, Allan Hopkins, Request for Comments: Comments 1111 Constitution Avenue NW., Tax Analyst. submitted in response to this notice will Washington, DC 20224, or at (202) 622– [FR Doc. 2013–16194 Filed 7–5–13; 8:45 am] be summarized and/or included in the 6665, or through the internet at BILLING CODE 4830–01–P request for OMB approval. All [email protected]. comments will become a matter of SUPPLEMENTARY INFORMATION: public record. Comments are invited on: Title: Tuition Payments Statement. DEPARTMENT OF THE TREASURY (a) Whether the collection of OMB Number: 1545–1574. information is necessary for the proper Form Number: Form 1098–T. Internal Revenue Service Abstract: Section 6050S of the performance of the functions of the Proposed Collection; Comment Internal Revenue Code requires eligible agency, including whether the Request for Qualified Retirement Plans education institutions to report certain information shall have practical utility; Under Sections 401(k) and 401(m) and information to the IRS and to students. (b) the accuracy of the agency’s estimate Guidance on Cash or Deferred Form 1098–T has been developed to of the burden of the collection of Arrangements information; (c) ways to enhance the meet this requirement. quality, utility, and clarity of the Current Actions: There are no changes AGENCY: Internal Revenue Service (IRS), information to be collected; (d) ways to being made to the form at this time. Treasury. minimize the burden of the collection of Type of Review: Extension of a ACTION: Notice and request for information on respondents, including currently approved collection. comments. through the use of automated collection Affected Public: Business or other for- techniques or other forms of information profit organizations and not-for-profit SUMMARY: The Department of the technology; and (e) estimates of capital institutions. Treasury, as part of its continuing effort or start-up costs and costs of operation, Estimated Number of Responses: to reduce paperwork and respondent maintenance, and purchase of services 21,078,651. burden, invites the general public and to provide information. Estimated Time per Response: 13 other Federal agencies to take this minutes. opportunity to comment on proposed Approved: June 17, 2013. Estimated Total Annual Burden and/or continuing information Allan Hopkins, Hours: 4,848,090. collections, as required by the Tax Analyst. The following paragraph applies to all Paperwork Reduction Act of 1995, [FR Doc. 2013–16210 Filed 7–5–13; 8:45 am] of the collections of information covered Public Law 104–13 (44 U.S.C. BILLING CODE 4830–01–P by this notice: 3506(c)(2)(A)). Currently, the IRS is An agency may not conduct or soliciting comments concerning sponsor, and a person is not required to guidance on cash or deferred DEPARTMENT OF THE TREASURY respond to, a collection of information arrangements. unless the collection of information Internal Revenue Service displays a valid OMB control number. DATES: Written comments should be Books or records relating to a collection received on or before September 6, 2013 Proposed Collection; Comment of information must be retained as long to be assured of consideration. Request for Form 1098–T as their contents may become material ADDRESSES: Direct all written comments AGENCY: Internal Revenue Service (IRS), in the administration of any internal to Yvette Lawrence, Internal Revenue Treasury. revenue law. Generally, tax returns and Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224. ACTION: Notice and request for tax return information are confidential, comments. as required by 26 U.S.C. 6103. FOR FURTHER INFORMATION CONTACT: Request for Comments: Comments Requests for additional information or SUMMARY: The Department of the submitted in response to this notice will copies of the regulations should be Treasury, as part of its continuing effort be summarized and/or included in the directed to Allan Hopkins at Internal to reduce paperwork and respondent request for OMB approval. All Revenue Service, Room 6129, 1111 burden, invites the general public and comments will become a matter of Constitution Avenue NW., Washington, other Federal agencies to take this public record. Comments are invited on: DC 20224, or at (202) 622–6665, or

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through the Internet at Affected Public: Business or other for- public record. Comments are invited on: [email protected]. profit, Not-for-profit institutions and (a) Whether the collection of State, Local or Tribal Government. information is necessary for the proper SUPPLEMENTARY INFORMATION: Estimated Number of Respondents: performance of the functions of the Title: REG–108639–99 (NPRM) 22,500. agency, including whether the Sections 401(k) and 401(m); Notice Estimated Time per Respondent: 1 information shall have practical utility; 2000–3 Guidance on Cash or Deferred hour. (b) the accuracy of the agency’s estimate Arrangements. Estimated Total Annual Burden of the burden of the collection of Hours: 26,500. information; (c) ways to enhance the OMB Number: 1545–1669. An agency may not conduct or Regulation/Notice Number: REG– sponsor, and a person is not required to quality, utility, and clarity of the 108639–99/Notice 2000–3. respond to, a collection of information information to be collected; (d) ways to minimize the burden of the collection of Abstract: The final regulations unless the collection of information displays a valid OMB control number. information on respondents, including provide guidance for qualified through the use of automated collection retirement plans containing cash or Books or records relating to a collection techniques or other forms of information deferred arrangements under section of information must be retained as long technology; and (e) estimates of capital 401(k) and providing matching as their contents may become material or start-up costs and costs of operation, contributions or employee contributions in the administration of any internal maintenance, and purchase of services under section 401(m). The IRS needs revenue law. Generally, tax returns and to provide information. this information to insure compliance tax return information are confidential, with sections 401(k) and 401(m). as required by 26 U.S.C. 6103. Approved: June 17, 2013. Request For Comments: Comments Allan Hopkins, Current Actions: There are no changes submitted in response to this notice will being made to this regulation. be summarized and/or included in the Tax Analyst. Type of Review: Extension of a request for OMB approval. All [FR Doc. 2013–16211 Filed 7–5–13; 8:45 am] currently approved collection. comments will become a matter of BILLING CODE 4830–01–P

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Part II

Department of Health and Human Services

Centers for Medicare & Medicaid Services 42 CFR Parts 413 and 414 Medicare Program; End-Stage Renal Disease Prospective Payment System, Quality Incentive Program, and Durable Medical Equipment, Prosthetics, Orthotics, and Supplies; Proposed Rule

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DEPARTMENT OF HEALTH AND Please allow sufficient time for mailed the definition of routinely purchased HUMAN SERVICES comments to be received before the DME. close of the comment period. Christopher Molling (410) 786–6399, for Centers for Medicare & Medicaid 3. By express or overnight mail. You issues related to DMEPOS technical Services may send written comments to the amendments and corrections. following address ONLY: Centers for Hafsa Vahora, (410) 786–7899, for issues 42 CFR Parts 413 and 414 Medicare & Medicaid Services, related to the implementation of Department of Health and Human budget neutral fee schedules for [CMS–1526–P] Services, Attention: CMS–1526–P, Mail splints and casts, and IOLs inserted in Stop C4–26–05, 7500 Security a physician’s office. Boulevard, Baltimore, MD 21244–1850. RIN 0938–AR55 SUPPLEMENTARY INFORMATION: 4. By hand or courier. Alternatively, Inspection of Public Comments: All you may deliver (by hand or courier) Medicare Program; End-Stage Renal comments received before the close of your written comments ONLY to the Disease Prospective Payment System, the comment period are available for following addresses prior to the close of Quality Incentive Program, and viewing by the public, including any the comment period: a. For delivery in Durable Medical Equipment, personally identifiable or confidential Washington, DC—Centers for Medicare Prosthetics, Orthotics, and Supplies business information that is included in & Medicaid Services, Department of a comment. We post all comments AGENCY: Centers for Medicare & Health and Human Services, Room 445– received before the close of the Medicaid Services (CMS), HHS. G, Hubert H. Humphrey Building, 200 comment period on the following Web Independence Avenue SW., ACTION: Proposed rule. site as soon as possible after they have Washington, DC 20201 been received: http:// SUMMARY: This rule proposes to update (Because access to the interior of the and make revisions to the End-Stage Hubert H. Humphrey Building is not www.regulations.gov. Follow the search Renal Disease (ESRD) prospective readily available to persons without instructions on that Web site to view payment system (PPS) for calendar year Federal government identification, public comments. (CY) 2014. This rule also proposes to set commenters are encouraged to leave Comments received timely will also forth requirements for the ESRD quality their comments in the CMS drop slots be available for public inspection as incentive program (QIP), including for located in the main lobby of the they are received, generally beginning payment year (PY) 2016 and beyond. In building. A stamp-in clock is available approximately 3 weeks after publication addition, this rule proposes to clarify for persons wishing to retain a proof of of a document, at the headquarters of the grandfathering provision related to filing by stamping in and retaining an the Centers for Medicare & Medicaid the 3-year minimum lifetime extra copy of the comments being filed.) Services, 7500 Security Boulevard, requirement (MLR) for Durable Medical b. For delivery in Baltimore, MD— Baltimore, Maryland 21244, Monday Equipment (DME). In addition, it Centers for Medicare & Medicaid through Friday of each week from 8:30 provides clarification of the definition Services, Department of Health and a.m. to 4 p.m. To schedule an of routinely purchased DME. This rule Human Services, 7500 Security appointment to view public comments, also proposes the implementation of Boulevard, Baltimore, MD 21244–1850. phone 1–800–743–3951. budget-neutral fee schedules for splints If you intend to deliver your Electronic Access and casts, and intraocular lenses (IOLs) comments to the Baltimore address, call This Federal Register document is inserted in a physician’s office. Finally, telephone number (410) 786–9994 in also available from the Federal Register this rule would make a few technical advance to schedule your arrival with online database through Federal Digital amendments and corrections to existing one of our staff members. System (FDsys), a service of the U.S. regulations related to payment for Comments erroneously mailed to the Government Printing Office. This DMEPOS items and services. addresses indicated as appropriate for hand or courier delivery may be delayed database can be accessed via the DATES: To be assured consideration, internet at http://www.gpo.gov/fdsys/. comments must be received at one of and received after the comment period. For information on viewing public the addresses provided below, no later Addenda Are Only Available Through comments, see the beginning of the than 5 p.m. E.S.T on August 30, 2013. the Internet on the CMS Web site SUPPLEMENTARY INFORMATION section. ADDRESSES: In commenting, please refer FOR FURTHER INFORMATION CONTACT: In the past, a majority of the Addenda to file code CMS–1526–P. Because of Michelle Cruse, (410) 786–7540, for referred to throughout the preamble of staff and resource limitations, we cannot issues related to the ESRD PPS. our proposed and final rules were accept comments by facsimile (FAX) Stephanie Frilling, (410) 786–4507, for available in the Federal Register. transmission. issues related to the ESRD PPS wage However, the Addenda of the annual You may submit comments in one of index, home dialysis training, and the proposed and final rules will no longer four ways (please choose only one of the delay in payment for oral-only drugs be available in the Federal Register. ways listed): under the ESRD PPS. Instead, these Addenda to the annual 1. Electronically. You may submit Heidi Oumarou, (410) 786–7942, for proposed and final rules will be electronic comments on this regulation issues related to the ESRD market available only through the Internet on to http://www.regulations.gov. Follow basket. the CMS Web site. The Addenda to the the ‘‘Submit a comment’’ instructions. Anita Segar, (410) 786–4614, for issues End-Stage Renal Disease (ESRD) 2. By regular mail. You may mail related to the ESRD QIP. Prospective Payment System (PPS) rules written comments to the following Sandhya Gilkerson, (410) 786–4085, for are available at: http://www.cms.gov/ address ONLY: Centers for Medicare & issues related to the clarification of ESRDPayment/PAY/list.asp. Readers Medicaid Services, Department of the grandfathering provision related who experience any problems accessing Health and Human Services, Attention: to the 3-year MLR for DME. any of the Addenda to the proposed and CMS–1526–P, P.O. Box 8010, Baltimore, Anita Greenberg (410) 786–4601, for final rules of the ESRD PPS that are MD 21244–8010. issues related to the clarification of posted on the CMS Web site identified

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above should contact Michelle Cruse at a. One ICD–9–CM Code Crosswalks to One 8. Proposed Scoring for the PY 2016 ESRD 410–786–7540. ICD–10–CM Code QIP Proposed Measures b. One ICD–9–CM Code Crosswalks to a. Proposals for Scoring Facility Table of Contents Multiple ICD–10–CM Codes Performance on Clinical Measures Based To assist readers in referencing c. Multiple ICD–9–CM Codes Crosswalk to on Achievement One ICD–10–CM Code b. Proposals for Scoring Facility sections contained in this preamble, we 6. Proposed Revisions to the Outlier Policy Performance on Clinical Measures Based are providing a Table of Contents. Some a. Impact of Proposed Changes to the on Improvement of the issues discussed in this preamble Outlier Policy c. Proposals for Calculating Facility affect the payment policies, but do not b. Outlier Policy Percentage Performance on Reporting Measures require changes to the regulations in the C. Discussion of Self-Dialysis and Home 9. Proposals for Weighting the PY 2016 Code of Federal Regulations (CFR). Dialysis Training Add On Adjustment ESRD QIP Measures and Calculating the I. Executive Summary and Request for Public Comments PY 2016 ESRD QIP Total Performance A. Purpose a. Medicare Policy for Self-Dialysis Score 1. End-Stage Renal Disease (ESRD) Training, Home Dialysis Training, and a. Weighting Individual Measures to Prospective Payment System (PPS) Retraining Compute Measure Topic Scores for the 2. End-Stage Renal Disease (ESRD) Quality b. Payment Methodology Kt/V Dialysis Adequacy measure topic, Incentive Program (QIP) D. Delay of Payment for Oral-Only Drugs the Vascular Access Type measure topic, 3. Durable Medical Equipment, Prosthetics, Under the ESRD PPS and the Anemia Management Clinical Orthotics, and Supplies (DMEPOS) III. End-Stage Renal Disease (ESRD) Quality measure topic B. Summary of the Major Provisions Incentive Program (QIP) b. Proposal for Weighting the Total 1. ESRD PPS A. Background Performance Score 2. ESRD QIP B. Considerations in Updating and c. Examples of the Proposed PY 2016 ESRD 3. DMEPOS Expanding Quality Measures under the QIP Scoring Methodology C. Summary of Costs and Benefits ESRD QIP for PY 2016 and Subsequent 10. Proposed Minimum Data for Scoring 1. Impacts of the Proposed ESRD PPS PYs Measures for the PY 2016 ESRD QIP and 2. Impacts for ESRD QIP 1. Value-Based Purchasing (VBP) Overview Future Payment Years 3. Impacts for DMEPOS 2. Brief Overview of Proposed PY 2016 11. Proposed Payment Reductions for the II. Calendar Year (CY) 2013 End-Stage Renal Measures PY 2016 ESRD QIP and Future Payment Disease (ESRD) Prospective Payment 3. Measures Application Partnership Years System (PPS) Review 12. Data Validation A. Background on the End-Stage Renal C. Proposed Measures for the PY 2016 13. Proposals for Scoring Facilities Whose Disease (ESRD) Prospective Payment ESRD QIP and Subsequent PYs of the Ownership has Changed System (PPS) ESRD QIP 14. Proposals for Public Reporting B. Routine Updates and Proposed Policy 1. PY 2015 Measures Continuing in PY Requirements Changes to the CY 2014 ESRD PPS 2016 and Future Payment Years IV. Clarification of the Definition of 1. Composite Rate Portion of the ESRD PPS 2. Proposal to Expand One PY 2015 Routinely Purchased Durable Medical Blended Payment Measure and Revise Two PY 2015 Equipment (DME) 2. ESRD PPS Base Rate Measures for PY 2016 and Subsequent A. Background a. Proposed Adjustment to the ESRD PPS Payment Years 1. Background for DME Base Rate to Reflect Change in a. Proposed Expanded ICH CAHPS 2. Medicare Guidance and Rulemaking Utilization of ESRD-Related Drugs and Reporting Measure Regarding Definition of Routinely Biologicals b. Proposed Revised Mineral Metabolism Purchased DME i. Methodology for Reducing the CY 2014 Reporting Measure 3. Payment for Inexpensive or Routinely ESRD PPS Base Rate c. Proposed Revised Anemia Management Purchased Items and Capped Rental ii. Determining Utilization of ESRD-Related Reporting Measure Items Drugs and Biologicals 3. New Measures Proposed for PY 2016 B. Current Issues iii. Pricing of ESRD-Related Drugs and and Subsequent Payment Years of the C. Classification of Items under the Biologicals ESRD QIP Existing Regulations and Definition of iv. Calculation of the Amount of the Per a. Proposed Clinical Anemia Management Routinely Purchased Equipment Treatment Reduction Measure and Anemia Management V. Clarification of the 3-year Minimum v. Comparison of ASP versus PPI Clinical Measure Topic Lifetime Requirement (MLR) for DME 3. ESRD Bundled Market Basket i. Anemia Management: Hgb > 12 A. Background a. Overview and Background ii. Anemia of Chronic Kidney Disease: B. Current Issues b. Proposed Market Basket Update Increase Patient Informed Consent for Anemia C. Scope of the 3-Year MLR Factor and Labor-related Share for ESRD Treatment VI. Implementation of Budget-Neutral Fee Facilities for CY 2014 b. Hypercalcemia Schedules for Splints, Casts and c. Proposed Productivity Adjustment c. Use of Iron Therapy for Pediatric Intraocular Lenses (IOLs) d. Calculation of the ESRDB Market Basket Patients Reporting Measure A. Background Update, Adjusted for Multifactor d. NHSN Bloodstream Infection in 1. Payment Under Reasonable Charges Productivity for CY 2014 Hemodialysis Outpatients Clinical 2. Payment Under Fee Schedules 4. The Proposed CY 2014 Wage Index Measure B. Provisions of the Proposed Regulations a. Payment Under the ESRD PPS for e. Comorbidity Reporting Measure VII. DMEPOS Technical Amendments and Facilities Located in Guam, American 4. Other Measures under Development Corrections Samoa, and the Northern Mariana 5. Proposed Scoring for the PY 2016 ESRD A. Background Islands and Proposed Wage Index Value QIP and Future Payment Years B. Proposed Technical Amendments and for Guam 6. Proposed Performance Period for the PY Corrections b. Proposed Policies for Areas with No 2016 ESRD QIP VIII. Collection of Information Requirements Wage Data 7. Proposed Performance Standards for the A. Legislative Requirement for Solicitation c. Proposed Reduction to the ESRD Wage PY 2016 ESRD QIP and Future Payment of Comments Index Floor Years B. Requirements in Regulation Text d. Proposed Wage Index Budget-Neutrality a. Proposed Clinical Measure Performance C. Additional Information Collection Adjustment Standards Requirements 5. Application of the International b. Estimated Performance Standards for 1. ESRD QIP Classification of Diseases (ICD), Tenth Proposed Clinical Measures a. Proposed Expanded ICH CAHPS Revision, to the Comorbidity Payment c. Proposed Performance Standards for Reporting Measure for PY 2016 and Adjustment Codes Reporting Measures Future Payment Years of the ESRD QIP

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b. Proposed Data Validation Requirements ICD International Classification of Diseases under the ESRD PPS before January 1, for the PY 2016 ESRD QIP ICD–9–CM International Classification of 2016. 2. Clarification of the Definition of Disease, 9th Revision, Clinical Routinely Purchased Durable Medical Modification 2. End-Stage Renal Disease (ESRD) Equipment ICH CAHPS In-Center Hemodialysis Quality Incentive Program (QIP) 3. Clarification of the 3-year Minimum Consumer Assessment of Healthcare Lifetime Requirement for DME Providers and Systems This rule also proposes to set forth 4. Implementation of Budget-Neutral Fee IGI IHS Global Insight requirements for the ESRD Quality Schedules for Splints, Casts and IOLs Intraocular Lenses Incentive Program (QIP), including for Intraocular Lenses IPPS Inpatient Prospective Payment System payment year (PY) 2016. The program is IX. Response to Comments MAP Medicare Allowable Payment authorized under section 153(c) of X. Economic Analyses MFP Multifactor Productivity MIPPA, which added section 1881(h) to A. Regulatory Impact Analysis MLR Minimum Lifetime Requirement the Social Security Act (the Act). The 1. Introduction NHSN National Health Safety Network 2. Statement of Need ESRD QIP is the most recent step in NQF National Quality Forum fostering improved patient outcomes by 3. Overall Impact OMB Office of Management and Budget B. Detailed Economic Analysis PFS Physician Fee Schedule establishing incentives for dialysis 1. CY 2014 End-Stage Renal Disease QIP Quality Incentive Program facilities to meet performance standards Prospective Payment System SHR Standardized Hospitalization Ratio established by CMS. a. Effects on ESRD Facilities Admissions 3. Durable Medical Equipment, b. Effects on Other Providers SMR Standardized Mortality Ratio c. Effects on the Medicare Program TPS Total Performance Score Prosthetics, Orthotics, and Supplies d. Effects on Medicare Beneficiaries VBP Value Based Purchasing (DMEPOS) e. Alternatives Considered 2. End-Stage Renal Disease Quality I. Executive Summary This rule would clarify the definition Incentive Program of routinely purchased equipment a. Effects of the PY 2016 ESRD QIP A. Purpose covered under the DME benefit category b. Alternatives Considered for the PY 2016 and the scope of the 3-year minimum ESRD QIP 1. End-Stage Renal Disease (ESRD) Prospective Payment System (PPS) lifetime requirement (MLR) for DME. In 3. DMEPOS Provisions addition, this rule proposes to a. Effects of the Implementation of Fee Schedules for Splints, Casts and IOLs On January 1, 2011, we implemented implement budget neutral fee schedules b. Clarification of the 3-year MLR the ESRD PPS, a case-mix adjusted for splints and casts as well as c. Definition of Routinely Purchased DME bundled prospective payment system intraocular lenses (IOLs) inserted in a C. Accounting Statement. for renal dialysis services furnished by physician’s office. Finally, this rule XI. Regulatory Flexibility Act Analysis ESRD facilities. Effective January 1, would make a few technical XII. Unfunded Mandates Reform Act 2014, the transition to the ESRD PPS amendments and corrections to existing Analysis will conclude and all Medicare ESRD regulations related to payment for XIII. Federalism Analysis DMEPOS items and services. XIV. Congressional Review Act facilities will be paid 100 percent under XV. Files Available to the Public via the the ESRD PPS. This rule proposes to B. Summary of the Major Provisions Internet update and make revisions to the End- Regulations Text Stage Renal Disease (ESRD) prospective 1. ESRD PPS Acronyms payment system (PPS) for calendar year • Update to the ESRD PPS base rate (CY) 2014. In accordance with section for CY 2014: For CY 2014, we propose Because of the many terms to which 1881(b)(14) of the Social Security Act an ESRD PPS base rate of $216.95. This we refer by acronym in this final rule, (the Act), as added by section 153(b) of amount reflects the application of the we are listing the acronyms used and the Medicare Improvements for Patients proposed ESRD bundled (ESRDB) their corresponding meanings in and Providers Act of 2008 (MIPPA) market basket reduced by the alphabetical order below: (Public Law 110–275), and section productivity adjustment, or 2.5 percent, AHRQ Agency for Healthcare Research and 1881(b)(14)(F) of the Act, as added by the wage index budget-neutrality Quality section 153(b) of MIPPA and amended adjustment factor of 1.000411, and the ASP Average Sales Price by section 3401(h) of the Affordable BLS Bureau of Labor Statistics drug utilization adjustment to the CY Care Act (ACA) (Pub. L. 111–148), 2013 ESRD PPS base rate of $240.36. CBSA Core based statistical area established that beginning CY 2012, and CCN CMS Certification Number The proposed CY 2014 ESRDB market CDC Centers for Disease Control and each subsequent year, the Secretary basket increase factor is 2.9 percent. The Prevention shall reduce the market basket increase current forecast of the proposed CY CKD Chronic Kidney Disease factor by a productivity adjustment 2014 productivity adjustment is 0.4 CY Calendar Year described in section 1886(b)(3)(B)(xi)(II) percent. The proposed drug utilization DFC Dialysis Facility Compare of the Act. adjustment factor to account for changes DME Durable Medical Equipment In addition, section 1881(b)(14)(I) of in utilization as required by section DMEPOS Durable Medical Equipment, the Act, as added by section 632(a) of 1881(b)(14)(I) is ¥12 percent. Prosthetics, Orthotics, and Supplies • ESA Erythropoiesis stimulating agent the American Taxpayer Relief Act of Updates to the wage index and ESRD End-Stage Renal Disease 2012 (ATRA) (Pub. L. 112–240) requires wage index floor: We adjust wage ESRDB End-Stage Renal Disease bundled the Secretary, by comparing per patient indices on an annual basis using the ESRD PPS End-Stage Renal Disease utilization from 2007 with such data most current hospital wage data to Prospective Payment System from 2012, to reduce the single payment account for differing wage levels in FDA Food and Drug Administration amount to reflect the Secretary’s areas in which ESRD facilities are GEM General Equivalence Mappings estimate of the change in the utilization located. In CY 2014, we are not HAIs Healthcare-Acquired Infections HCPCS Healthcare Common Procedure of ESRD-related drugs and biologicals. proposing any changes to the Coding System Section 632(b) of ATRA prevents the application of the wage index budget- HHS Department of Health and Human Secretary from paying for oral-only neutrality adjustment factor and will Services ESRD-related drugs and biologicals continue to apply the budget-neutrality

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adjustment to the base rate for the ESRD • To evaluate dialysis adequacy: IOLs inserted in a physician’s office: For PPS. We have been gradually decreasing Æ A Kt/V measure for adult CY 2014, we are proposing to the wage index floor by .05 in an effort hemodialysis patients, a clinical implement budget neutral fee schedule to gradually phase out the floor. For CY measure amounts for splints, casts, and IOLs 2014 and CY 2015 we are proposing to Æ A Kt/V measure for adult peritoneal inserted in a physician’s office. Section continue our policy for the gradual dialysis patients, a clinical measure 1842(s) of the Act authorizes CMS to phase out of the wage index floor and Æ A Kt/V measure for pediatric implement fee schedule amounts for to reduce the wage index floor values to hemodialysis patients, a clinical these items if they established so that 0.45 and 0.40, respectively. measure they are initially budget neutral. In • Update to the outlier policy: We are • To determine whether patients are 2011, total allowed charges for splints updating the outlier services fixed treated using the most beneficial and casts were $5.6 million, while total dollar loss amounts for adult and type of vascular access: allowed charges for intraocular lenses pediatric patients and Medicare Æ An arteriovenous fistula measure, a inserted in a physician’s office were $76 Allowable Payments (MAPs) for adult clinical measure thousand. patients for CY 2014 using 2012 claims Æ A catheter measure, a clinical data. Based on the use of more current measure C. Summary of Costs and Benefits • data, the fixed-dollar loss amount for To address effective bone mineral In section X.B. of this proposed rule, pediatric beneficiaries would increase metabolism management: we set forth a detailed analysis of the Æ Hypercalcemia, a clinical measure* impacts that the proposed changes from $47.32 to $54.23 and the MAP Æ amount would remain $38.65 as Mineral Metabolism, a reporting would have on affected entities and measure† beneficiaries. The impacts include the compared to CY 2013 values. For adult • beneficiaries, the fixed-dollar loss To address safety: following: Æ National Healthcare Safety Network amount would decrease from $110.22 to 1. Impacts of the Proposed ESRD PPS $94.26 and the MAP amount would (NHSN) Bloodstream Infection in decrease from $61.38 to $52.45. The 1 Hemodialysis Outpatients, a The impact chart in section X.B.1. of percent target for outlier payments was clinical measure* this proposed rule displays the • To assess patient experience: not achieved in CY 2012. We believe estimated change in payments to ESRD Æ ICH CAHPS survey reporting using CY 2012 claims data to update the facilities in CY 2014 compared to measure‡ estimated payments in CY 2013. The outlier MAP and fixed dollar loss • To gather data regarding amounts for CY 2014 will increase overall impact of the CY 2014 changes comorbidities: is projected to be a 9.4 percent decrease payments for ESRD beneficiaries Æ Comorbidity, a reporting measure* requiring higher resource utilization in in payments. Hospital-based ESRD * Denotes that this measure is new to accordance with a 1 percent outlier facilities have an estimated 9.3 percent the ESRD QIP. decrease in payments compared with percentage. † • Application of ICD–10–CM Denotes that this measure is revised in freestanding facilities with an estimated Diagnosis Codes to the comorbidity the ESRD QIP. 9.4 percent decrease. ‡ Denotes that this measure is expanded payment adjustment codes: Effective We estimate that the aggregate ESRD in the ESRD QIP. October 1, 2014, CMS will implement PPS expenditures would decrease by the 10th revision of the ICD coding It also proposes to establish CY 2014 approximately $780 million from CY scheme. We discuss and provide a as the performance period for the PY 2013 to CY 2014. This reflects a $210 crosswalk from ICD–9–CM to ICD–10– 2016 ESRD QIP, establish performance million increase from the payment rate CM for codes that are subject to the standards for each measure, and adopt update, a $30 million increase due to comorbidity payment adjustment. We scoring and payment reduction the updates to the outlier threshold propose that all ICD–10–CM codes to methodologies that are similar to those amounts, and a $1.02 billion decrease in which ICD–9–CM codes that are eligible finalized for the PY 2015 ESRD QIP. expenditures specifically related to the ¥12 percent drug utilization adjustment for the comorbidity payment adjustment 3. DMEPOS crosswalk will be eligible for the required by section 1881(b)(14)(I). The • Definition of routinely purchased comorbidity payment adjustment with estimated 9.4 percent overall payment DME: This rule would clarify the two exceptions. decrease would result in a $190 million definition of routinely purchased DME savings to beneficiaries. 2. ESRD QIP set forth at section § 414.220(a), as well 2. Impacts for ESRD QIP This proposed rule proposes to as address the classification of and implement requirements for the ESRD payment for expensive items of DME The overall economic impact of the QIP. With respect to the PY 2016 ESRD and accessories (over $150) as a capped proposed ESRD QIP is an estimated QIP, we propose to continue some of the rental items in accordance with $26.4 million in PY 2016. In PY 2016, previous ESRD QIP measures, add new § 414.229, if the items were not acquired we expect the total payment reductions measures, and expand the scope of some by purchase on a national basis at least to be approximately $26.4 million, and of the existing measures to cover the 75 percent of the time during the period the costs associated with the collection July 1986 through June 1987. of information requirements for certain measure topics as follows: • • To evaluate anemia management: Clarification of to the 3-year MLR measures to be approximately $39.5 Æ Hemoglobin Greater Than 12 g/dL, and Related Grandfathering Policy: This thousand. For PY 2017 and future a clinical measure rule would provide further clarification payment years, we expect the costs Æ Patient Informed Consent for about how we would apply the 3-year associated with the collection of Anemia Treatment, a clinical minimum lifetime requirement (MLR) information requirements for the measure* set forth at § 414.202, which must be expanded ICH CAHPS measure in the Æ Anemia Management, a reporting satisfied for an item or device to be proposed ESRD QIP to be approximately measure† considered durable medical equipment. $9.7 million. Æ Pediatric Iron Therapy, a reporting • Implementation of budget neutral The ESRD QIP will continue to measure* fee schedules for splints and casts, and incentivize facilities to provide higher

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quality care to beneficiaries. The II. Calendar Year (CY) 2014 End-Stage • A composite base rate of $145.20 reporting measures associated with the Renal Disease (ESRD) Prospective per treatment for renal dialysis services collection of information requirements Payment System (PPS) that is used in the composite rate are critical to better understanding the portion of the ESRD PPS payment for A. Background on the End-Stage Renal quality of care beneficiaries receive, ESRD facilities receiving blended Disease (ESRD) Prospective Payment particularly patients’ experience of care, payments during the transition. This System (PPS) and will be used to incentivize amount reflected the application of the improvements in the quality of care On August 12, 2010, we published in ESRDB market basket reduced by the provided. the Federal Register a final rule (75 FR multifactor productivity adjustment, or 49030 through 49214) titled, ‘‘End-Stage a 2.3 percent increase. 3. Impacts for DMEPOS Renal Disease Prospective Payment • A zero update to the drug add-on The overall impact of the DMEPOS System’’, hereinafter referred to as the adjustment and maintaining the $20.33 proposal to implement fee schedules for CY 2011 ESRD PPS final rule. In the CY per treatment drug add-on amount for splints and casts and IOLs inserted in a 2011 ESRD PPS final rule, we the composite rate portion of the ESRD physician’s office is insignificant. The implemented a case-mix adjusted PPS blended payment. This resulted in reasonable charge amounts that we bundled PPS for Medicare outpatient a 14.0 percent drug add-on adjustment propose to convert to fee schedule ESRD dialysis services beginning to the composite rate portion of the amounts would be budget neutral the January 1, 2011, in accordance with ESRD PPS blended payment. first year and would be updated section 1881(b)(14) of the Act, as added • A 0.1 percent transition budget- annually thereafter based on the by section 153(b) of MIPPA. neutrality adjustment factor. consumer price index for all consumers On November 10, 2011, we published • A 1.001141 wage index budget- (CPI–U) for the 12-month period ending in the Federal Register, a final rule (76 neutrality adjustment factor for the June 30 of the previous year and, FR 70228 through 70316) titled, composite portion of the ESRD PPS reduced by the productivity adjustment ‘‘Medicare Program; End-Stage Renal blended payment, which is applied to described in section 1886(b)(3)(B)(xi)(II) Disease Prospective Payment System the wage index values. of the Act. For the 3-year MLR, we and Quality Incentive Program; • A 1.000613 wage index budget- believe that a vast majority of the Ambulance Fee Schedule; Durable neutrality adjustment factor for the categories of items that were classified Medical Equipment; and Competitive ESRD PPS portion of the blended as DME before January 1, 2012, did Acquisition of Certain Durable Medical payment and for the ESRD PPS, which function for 3 or more years (76 FR Equipment, Prosthetics, Orthotics and is applied to the ESRD PPS base rate. 70289). The 3-year MLR is designed to Supplies’’ (hereinafter referred to as the • A 0.05 reduction to the wage index represent a minimum threshold for CY 2012 ESRD PPS final rule). In that floor which resulted in a wage index determination of durability for final rule, for the ESRD PPS, we made floor of 0.500 under the ESRD PPS. equipment that is consistent with the a number of routine updates for CY • A 0.501 wage index floor under the statutory DME payment provisions and 2012, implemented the second year of composite rate portion of the blended applies on a prospective basis, effective the transition to the ESRD PPS, made payment (1.500 × 1.001141 = 0.501). January 1, 2012. CMS recognizes that several policy changes and • Revisions to the outlier policy. the healthcare industry and clarifications, and made technical Specifically, for pediatric beneficiaries, beneficiaries have come to rely on items changes. a fixed-dollar loss amount of $47.32 and that have qualified as DME on or prior On November 9, 2012, we published a Medicare Allowable Payment (MAP) to January 1, 2012, regardless of whether in the Federal Register, a final rule (77 amount of $41.39. For adult those items met the 3-year MLR set forth FR 67450 through 67531) titled, beneficiaries, a fixed-dollar loss amount at § 414.202. We note that given that ‘‘Medicare Program; End-Stage Renal of $110.22 and a MAP amount of reliance and consistent with the Disease Prospective Payment System, $59.42. regulation at § 414.202, CMS will not Quality Incentive Program, and Bad • Eliminating the restriction on reopen those prior decisions and Debt Reductions for All Medicare daptomycin to allow ESRD facilities to reclassify the equipment in light of the Providers’’ (hereinafter referred to as the receive separate payment by appending new 3-year standard. We believe that CY 2013 ESRD PPS final rule). In that the AY modifier on the claim for continuing the Medicare coverage for all final rule, for the ESRD PPS, we made daptomycin when the diagnosis the items that qualified as DME on or a number of routine updates for CY reported on the claim indicates the drug prior to January 1, 2012, could avoid 2013, implemented the third year of the was used to treat a non-ESRD related disrupting the continuity of care for the transition to the ESRD PPS, and made condition. beneficiaries that received these items several policy changes and reiterations. • Excluding alteplase and other for medical treatment prior to January 1, In that rule, we finalized the following: thrombolytics from separate payment 2012, without creating a significant • An ESRD PPS base rate of $240.36 for the composite rate portion of fiscal impact on the Medicare Program. per treatment for renal dialysis services. blended payments during the remainder We expect that the overall impact of The ESRD PPS base rate applies to the of the transition. reaffirming the definition of routinely ESRD PPS portion of the blended • Use of the Average Sales Price purchased DME and our proposal for payments during the transition and to (ASP) methodology, including any classifying certain expensive items as the ESRD PPS payments. This amount modifications finalized in the Physician cap rental would be a decrease in reflected the CY 2013 ESRD bundled Fee Schedule (PFS) final rules, to expenditures because payment on a 13- (ESRDB) market basket update of 2.9 compute outlier MAP amounts, the drug month capped rental basis rather than a percent minus a multifactor add-on, and any other policy that lump sum purchase basis for certain, productivity adjustment of 0.6 percent, requires the use of payment amounts for very expensive items would lower total that is, a 2.3 percent increase. This drugs and biologicals that would be payments for these items and because amount also reflected the application of separately paid absent the ESRD PPS many beneficiaries would not rent the the wage index budget-neutrality and for the composite rate portion of the items for as long as 13 months. adjustment of 1.000613. blended payment during the transition.

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Finally, in the CY 2013 ESRD PPS 1881(b)(14)(D)(ii) and 1881(b)(14)(A)(ii) Prices (ASP) and changes in prices for final rule, we reiterated policies of the Act, respectively. Specifically, the drugs and biologicals reflected in the regarding the following billing practices ESRD PPS base rate was developed from ESRD market basket percentage increase because we believed that ESRD facilities CY 2007 claims (that is, the lowest per factor under section 1881(b)(14)(F). may be billing renal dialysis services for patient utilization year as required by Consistent with these requirements, we separate payment: section 1881(b)(14)(A)(ii) of the Act), propose to apply a payment adjustment • Any item or service included in the updated to CY 2011, and represented to the CY 2014 ESRD PPS base rate that composite rate should not be identified the average per treatment Medicare reflects the change in utilization of on ESRD claims. Allowable Payment (MAP) for ESRD-related drugs and biologicals from • An AY modifier can be appended to composite rate and separately billable CY 2007 to CY 2012. services. In accordance with section claims for drugs and laboratory tests i. Methodology for Reducing the CY 1881(b)(14)(D) of the Act and codified in that are not ESRD-related to allow for 2014 ESRD PPS Base Rate separate payment. The AY modifier regulations at § 413.230, the ESRD PPS should not be used for renal dialysis base rate is adjusted for the patient- We are proposing an adjustment that services and we have monitoring efforts specific case-mix adjustments, would reduce the ESRD PPS base rate. in place to analyze billing trends. applicable facility adjustments, Because the ESRD PPS base rate is a per geographic differences in area wage treatment base rate, the adjustment B. Routine Updates and Proposed Policy levels using an area wage index, as well would be calculated on a per treatment Changes to the CY 2014 ESRD PPS as applicable outlier payments or basis. We propose to calculate the 1. Composite Rate Portion of the ESRD training payments. amount of the per treatment adjustment PPS Blended Payment As discussed in section II.B.3., section by applying CY 2014 prices for ESRD- 1881(b)(14)(F)(i) of the Act, as added by related drugs and biologicals to the Section 1881(b)(14)(E)(i) of the Act section 153(b) of MIPPA and amended utilization data for CY 2007 and CY requires a 4-year transition under the by section 3401(h) of the Affordable 2012. We note the CY 2014 ESRD PPS ESRD PPS. We are proposing to Care Act, provides that, beginning in base rate is reflective of 2007 utilization implement the fourth year of the 2012, the ESRD PPS payment amounts because the base rate is based on CY transition for those ESRD facilities that are required to be annually increased by 2007 data. We believe using prices for did not elect to receive 100 percent of the rate of increase in the ESRD market drugs and biologicals inflated to 2014 the payment amount under the ESRD basket, reduced by the productivity levels allows us to appropriately PPS. For CY 2014, under 42 CFR adjustment described in section measure changes that are attributable to 413.239(a)(4), 100 percent of the 1886(b)(3)(B)(xi)(II). Accordingly, for utilization patterns as opposed to payment amount will be determined in this proposed rule, we applied the 2.5 differences in pricing for drugs and accordance with section 1881(b)(14). percent increase to the CY 2013 ESRD biologicals in 2007 and 2012. In Accordingly, a blended rate will no PPS base rate of $240.36, which results addition, we believe that because we are longer be provided, all facilities will be in a proposed CY 2014 ESRD PPS base proposing to make the reduction in CY paid 100 percent under the ESRD PPS, rate of $246.37 ($240.36 × 1.025 = 2014, we should price the ESRD-related and there will no longer be a transition $246.37). drugs and biologicals for the year in budget neutrality adjustment factor In addition, as discussed in section which the adjustment applies. For applied to these payments starting on II.B.4.d. of this proposed rule, for CY purposes of this analysis, we view January 1, 2014. Therefore, facilities that 2014 we are applying the wage index utilization of drugs and biologicals as participate in the transition will no budget-neutrality adjustment factor of units of a drug or biological furnished longer receive a portion of their 1.000411 to the CY 2014 ESRD PPS base to a patient per treatment for ESRD. We payments based on the basic case-mix rate (that is, $246.37), yielding a would take the estimated amount of the adjusted composite rate payment proposed CY 2014 ESRD PPS wage- per treatment difference between the system. Because payments will no index budget-neutrality adjusted base estimated spending of drugs and longer be based on the basic case-mix rate of $246.47 ($246.37 × 1.000411 = biologicals in CY 2007 and CY 2012 and adjusted composite rate, we will not $246.47). reduce this amount by the same update the drug add-on or wage index adjustment factors that were used to a. Proposed Adjustment to the ESRD values (which included a budget calculate the ESRD PPS base rate from PPS Base Rate to Reflect Change in neutrality adjustment factor) that the CY 2007 unadjusted rate per Utilization of ESRD-Related Drugs and comprised that rate. In this proposed treatment, which are the Biologicals rule we only discuss updates and policy standardization, outlier, and the 98 changes that affect the components of Section 1881(b)(14)(I) of the Act, as percent budget-neutrality adjustments. the ESRD PPS. added by section 632(a) of the American A detailed explanation of these Taxpayer Relief Act of 2012 (ATRA), 2. ESRD PPS Base Rate adjustment factors is provided in the CY requires that, for services furnished on 2011 ESRD PPS final rule (75 FR 49081 In the CY 2011 ESRD PPS final rule or after January 1, 2014, the Secretary through 49082). We propose to reduce (75 FR 49071 through 49083), we shall make reductions to the single the CY 2014 ESRD PPS base rate by the discussed the development of the ESRD payment for renal dialysis services to resulting amount. PPS per treatment base rate that is reflect the Secretary’s estimate of the codified in the Medicare regulations at change in the utilization of ESRD- ii. Determining Utilization of ESRD- § 413.220 and § 413.230. The CY 2011 related drugs and biologicals (excluding Related Drugs and Biologicals ESRD PPS final rule also provides a oral-only ESRD-related drugs) by Section 1881(b)(14)(I) requires the detailed discussion of the methodology comparing per patient utilization data single payment amount to be reduced by used to calculate the ESRD PPS base from 2007 with such data from 2012. an amount that ‘‘reflects the Secretary’s rate and the computation of factors used Section 1881(b)(14)(I) further requires estimate of the change in utilization of to adjust the ESRD PPS base rate for that in making the reductions, the drugs and biologicals described in projected outlier payments and budget- Secretary take into account the most clauses (ii), (iii), and (iv) of neutrality in accordance with sections recently available data on Average Sales subparagraph (B) (other than oral-only

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ESRD-related drugs, as such term is December 31, 2012). For the CY 2014 2011, separately paid under Part B. For used in the final rule promulgated by ESRD PPS final rule, we will use the CY setting the CY 2011 ESRD PPS base rate, the Secretary in the Federal Register on 2012 claims file updated through June for Part B separately billable drugs, we August 12, 2010 (75 FR 49030))’’. As we 30, 2013, (that is, claims with dates of used the first two quarters of ASP+6 and mentioned above, for purposes of this service from January 1 through then used the Producer Price Index (PPI) analysis, we view utilization of drugs December 31, 2012, that were received, to inflate the prices to CY 2011 (75 FR and biologicals as units of a drug or processed, paid, and passed to the 49079). We also included the MAP biological furnished to a patient per National Claims History File as of June amounts for the ESRD-related oral- treatment. ESRD facilities report this 30, 2013) to calculate 2012 utilization. equivalent drugs and biologicals that information on claims. To calculate this We solicit comments on the proposed were, prior to January 1, 2011, adjustment, we analyzed the utilization use of 2007 and 2012 claims data to separately paid under Part D (75 FR of erythropoiesis stimulating agents capture the utilization of ESRD-related 49080). For setting the CY 2011 ESRD (ESAs) and any oral forms of such drugs and biologicals in those years. PPS base rate for these drugs, we used agents furnished to individuals for the Because section 1881(b)(14)(I) the growth rates for overall prescription treatment of ESRD. We also analyzed requires that we compare per patient the utilization of other injectable drugs utilization of ESRD-related drugs and drug prices that were used in the and biologicals (such as iron sucrose biologicals in 2007 with per patient National Health Expenditure Projections and doxercalciferol) and any oral utilization in 2012, we believe that this (NHE) for updating prices for former equivalent form of such drug or would also include utilization of drugs Part D drugs to CY 2011 from CY 2007. biological furnished to individuals for and biologicals furnished in ESRD We propose to inflate the prices the treatment of ESRD that were facilities located in the United States established in the CY 2011 ESRD PPS included in the expanded bundle of Territories of Guam, American Samoa final rule for ESRD-related drugs and services covered by the ESRD PPS. We and the Northern Mariana Islands (the biologicals and their oral equivalents to did not include diagnostic laboratory Pacific Rim), even though facilities in CY 2014 by applying the ESRD bundled tests or other items and services in the the Pacific Rim were not paid under the (ESRDB) market basket, the productivity comparison analysis because section ESRD PPS during these years. Therefore, adjustment, and the wage index budget 1811(b)(14)(I) only refers to estimating we propose to use 2007 and 2012 neutrality adjustment factors. Because the change in utilization of drugs and utilization of ESRD-related drugs and the base rate and the ESRDB market biologicals. biologicals (including oral equivalents) basket account for ESRD-related drugs Section 1881(b)(14)(I) of the Act for ESRD facilities located in these and biologicals, and we have updated requires the Secretary to compare per territories in our analysis of the all components of the base rate annually patient utilization data from 2007 with reduction required by section per patient utilization data from 2012. 1881(b)(14)(I). For this proposed rule, using a market basket minus For the CY 2007 utilization data for we did not readily have access to the productivity with wage index budget ESRD-related drugs and biologicals, we 2007 utilization data for the ESRD neutrality adjustment factor, we believe propose to use the data analysis facilities located in these areas; that using these inflation factors are prepared for the CY 2011 ESRD PPS however, we plan to include these data consistent with how these services are final rule. In the CY 2011 ESRD PPS in our calculation for the final rule. paid under the ESRD PPS. The drug final rule (75 FR 49071 through 49083) Because there are very few ESRD component of the ESRDB market basket we discuss in detail the development of facilities in this region, we do not uses the PPI for prescription drugs as a the ESRD PPS base rate and as we stated believe that the inclusion of utilization proxy for the growth in drug prices. We above, the base rate represents the of drugs and biologicals furnished in CY believe using the ESRDB market basket average MAP for composite rate and 2007 at these facilities will have a to price drugs and biologicals for CY separately billable services which was significant impact on the amount of the 2014 complies with the requirement in based on 2007 claims data. We explain adjustment. We solicit comments on the section 1881(b)(14)(I) that the Secretary in the CY 2011 ESRD PPS final rule that proposal to include data on the take into account the changes in prices in order to comply with section utilization of drugs and biologicals for drugs and biologicals reflected in the 1881(b)(14)(A)(ii) of the Act we furnished in ESRD facilities located in ESRDB market basket percentage determined that 2007 was the year with the Pacific Rim when comparing increase factor. The ESRDB market the lowest per patient utilization of utilization of drugs and biologicals in basket minus productivity increase renal dialysis services by Medicare CY 2007 with CY 2012. factors were 2.1 percent and 2.3 percent ESRD beneficiaries among the years iii. Pricing of ESRD-Related Drugs and for CY 2012 and CY 2013, respectively. 2007, 2008, and 2009. Therefore, Biologicals The proposed CY 2014 update is 2.5 utilization data for ESAs and other percent. The wage index budget As we stated above, we are proposing drugs and biologicals including the oral- neutrality adjustment factors for the equivalent forms of those drugs and to price ESRD-related drugs and same years are 1.001520, 1.000613, and biologicals furnished for the treatment biologicals to CY 2014 to allow for an a proposed factor of 1.000411. of ESRD was readily available for accurate comparison between utilization purposes of analyzing 2007 utilization. of those drugs and biologicals furnished Therefore, we propose to use a total For the CY 2012 utilization data for in CY 2007 with utilization in CY 2012. growth update factor of 7.3 percent ESRD-related drugs and biologicals, we In order to price ESRD-related drugs and (1.021*1.023*1.025*1.001520* propose to use the latest available biologicals based on CY 2014 prices, we 1.000613*1.000411 = 1.073) to inflate claims data based on the CY 2012 ESRD started with CY 2011 prices as prices for ESRD-related drugs and facility claims updated through established and published in the CY biologicals from CY 2011 levels to CY December 31, 2012 (that is, claims with 2011 ESRD PPS final rule. 2014 levels. We solicit comments on the dates of service from January 1 through During the development of the ESRD use of the ESRDB market basket December 31, 2012, that were received, PPS base rate, we included the MAP percentage increase factor to inflate processed, paid, and passed to the amounts for ESRD-related drugs and prices for drugs and biologicals to CY National Claims History File as of biologicals that were, prior to January 1, 2014 levels.

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iv. Calculation of the Amount of the per Therefore, we are soliciting comments time in the prices of an appropriate mix Treatment Reduction on a potential transition or phase-in of goods and services used to furnish We applied the 2014 prices to the CY period of the 12 percent reduction and renal dialysis services. the number of years for such transition 2007 and CY 2012 drug and biological b. Proposed Market Basket Update utilization data to calculate aggregate or phase-in period. Increase Factor and Labor-Related Share amounts for each year. For drugs and v. Comparison of ASP Versus PPI for ESRD Facilities for CY 2014 biologicals for which we have As required under section utilization data for CY 2012, but that Section 1881(b)(14)(I) requires the 1881(b)(14)(F)(i) of the Act, CMS were not present on CY 2007 claims, we Secretary to ‘‘take into account the most recently available data on average sales developed an all-inclusive ESRDB input priced these drugs using the ASP+6 price index (75 FR 49151 through percent price for 2012, which is an prices and changes in prices for drugs and biologicals reflected in the ESRDB 49162). Although ‘‘market basket’’ average of the four quarter prices, and technically describes the mix of goods inflated it using the CY 2013 and the CY market basket percentage increase factor’’ in making the reduction to the and services used for ESRD treatment, 2014 proposed ESRDB market basket, this term is also commonly used to productivity, and wage index budget ESRD PPS base rate to reflect the change in utilization of ESRD-related drugs and denote the input price index (that is, neutrality adjustment factors. While cost categories, their respective weights, most of these drugs had minimal biologicals from CY 2007 to CY 2012. While we could have chosen to inflate and price proxies combined) derived utilization, we note that Feraheme was from a market basket. Accordingly, the the only significant exception. prices for drugs and biologicals to 2014 levels with more recently available ASP term ‘‘ESRDB market basket,’’ as used in Specifically, Feraheme was not this document, refers to the ESRDB available until January 2010 and once data, we believe using a growth based on the ESRDB market basket is more input price index. the drug was available, the use of the For this proposed rule, we propose to drug rose to the top 12th drug furnished appropriate because it reflects what Medicare is required to pay for the use the same methodology and the CY to ESRD beneficiaries. Next, we divided 2008-based ESRDB market basket each year’s estimated aggregate amount drugs and biologicals through the ESRD PPS base rate. We performed an described in the CY 2011 ESRD PPS for drugs and biologicals by that year’s final rule (75 FR 49151 through 49162) count of treatments furnished to alternative analysis using prices based on the first quarter 2013 ASP+6 percent to compute the CY 2014 ESRDB market Medicare beneficiaries to get an average basket increase factor and labor-related payment per treatment for the year. This prices and the National Drug Code (NDC) prices published on the CMS share based on the best available data. resulted in a per treatment amount for Consistent with historical practice, we drugs and biologicals of $83.76 in 2007 Web site located at http://www.cms.gov/ Medicare/Medicare-Fee-for-Service- estimate the ESRDB market basket and a per treatment amount for drugs update based on IHS Global Insight and biologicals of $51.42 in 2012. We Payment/ESRDpayment/ Outlier_Services.html that are used for (IGI), Inc.’s forecast using the most then subtracted the average payment per recently available data. IGI is a treatment for CY 2012 from the average outlier calculations, and the PPI to project to CY 2014. The results are nationally recognized economic and amount per treatment for CY 2007 to get financial forecasting firm that contracts ¥ minimally different (a difference of a total of $32.34 ($83.76 $51.42 = with CMS to forecast the components of $32.34). We then reduced this amount $29.40 versus $29.52), and we believe that the ESRDB market basket approach the market baskets. by the standardization, the outlier, and Using this methodology and the IGI the 98 percent budget neutrality is a more appropriate measure of how Medicare pays for these drugs under the forecast for the first quarter of 2013 of adjustments to get a total of $29.52 the CY 2008-based ESRDB market ($32.34 × .9407 × .99 × .98 = $29.52). We ESRD PPS. We are soliciting comments on the basket (with historical data through the would apply these adjustments before fourth quarter of 2012), and consistent reducing the base rate because the base potential use of ASP instead of the ESRDB market basket to inflate drug with our historical practice of rate was reduced by these adjustments estimating market basket increases when it was first established, and the prices to 2014 levels for purposes of the drug utilization adjustment. based on the best available data, the reduction should be adjusted in the proposed CY 2014 ESRDB market basket same way to make the two figures 3. ESRD Bundled Market Basket increase factor is 2.9 percent. comparable. We would then reduce the a. Overview and Background For the CY 2014 ESRD payment CY 2014 proposed base rate of $246.47 update, we propose to continue using a by $29.52, resulting in the CY 2014 In accordance with section labor-related share of 41.737 percent for proposed base rate of $216.95. A 1881(b)(14)(F)(i) of the Act, as added by the ESRD PPS payment, which was reduction of $29.52 from the proposed section 153(b) of MIPPA and amended finalized in the CY 2011 ESRD final rule CY 2014 ESRD PPS base rate results in by section 3401(h) of the Affordable (75 FR 49161). a 12 percent reduction in Medicare Care Act, beginning in 2012, the ESRD payments. We solicit comments on the payment amounts are required to be c. Proposed Productivity Adjustment proposed methodology for the reduction annually increased by an ESRD market Under section 1881(b)(14)(F)(i) of the to the ESRD PPS base rate to reflect the basket increase factor that is reduced by Act, as amended by section 3401(h) of change in the utilization of ESRD- the productivity adjustment described the Affordable Care Act, for CY 2012 related drugs and biologicals from CY in section 1886(b)(3)(B)(xi)(II) of the and each subsequent year, the ESRD 2007 to CY 2012. Act. The application of the productivity market basket percentage increase factor While we propose to implement the adjustment described may result in the shall be reduced by the productivity full reduction in CY 2014, we note that increase factor being less than 0.0 for a adjustment described in section we are also concerned that this one-time year and may result in payment rates for 1886(b)(3)(B)(xi)(II) of the Act. The reduction to the ESRD PPS base rate a year being less than the payment rates statute defines the productivity could be a significant reduction to ESRD for the preceding year. The statute also adjustment as equal to the 10-year facilities for the year and potentially provides that the market basket increase moving average of changes in annual impact beneficiary access to care. factor should reflect the changes over economy-wide private nonfarm business

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multifactor productivity (MFP) (as 4. The Proposed CY 2014 Wage Index Because we base the ESRD PPS wage projected by the Secretary for the 10- Section 1881(b)(14)(D)(iv)(II) of the index on the hospital wage index from year period ending with the applicable Act provides that the ESRD PPS may the prior year, we anticipate that the fiscal year, year, cost reporting period, include a geographic wage index OMB Bulletin changes would be or other annual period) (the ‘‘MFP payment adjustment, such as the index reflected in the CY 2015 ESRD PPS adjustment’’). The Bureau of Labor referred to in section 1881(b)(12)(D) of wage index. Statistics (BLS) is the agency that the Act. In the CY 2011 ESRD PPS final For CY 2014, we will continue to use publishes the official measure of private rule (75 FR 49117), we finalized the use the same methodology as finalized in nonfarm business MFP. Please see of the Office of Management and http://www.bls.gov/mfp to obtain the the CY 2011 ESRD PPS final rule (75 FR Budget’s (OMB) Core-Based Statistical 49117), for determining the wage BLS historical published MFP data. Areas (CBSAs)-based geographic area CMS notes that the proposed and final indices for ESRD facilities in CY 2014. designations to define urban and rural Specifically, we propose to adjust wage methodology for calculating and areas and their corresponding wage indices for CY 2014 to account for applying the MFP adjustment to the index values. In the CY 2012 ESRD PPS annually updated wage levels in areas ESRD payment update is similar to the final rule (76 FR 70239) we finalized methodology used in other payment that, under the ESRD PPS, we will in which ESRD facilities are located. We systems, as required by section 3401 of continue to utilize the ESRD PPS wage propose to use the most recent, FY 2014 the Affordable Care Act. index methodology, first established inpatient prospective payment system The projection of MFP is currently under the basic case-mix adjusted (IPPS) pre-floor, pre-reclassified produced by IGI. The details regarding composite rate payment system, for hospital wage index. The ESRD PPS the methodology for forecasting MFP updating the wage index values using wage index values are calculated and how it is applied to the market the OMB’s CBSA-based geographic area without regard to geographic basket were finalized in the CY 2012 designations to define urban and rural reclassifications authorized under ESRD PPS final rule (76 FR 70232 areas and corresponding wage index section 1886(d)(8) and (d)(10) of the Act through 70234). Using this method and values; the gradual reduction of the and utilize pre-floor hospital data that the IGI forecast for the first quarter of wage index floor during the transition; are unadjusted for occupational mix. 2013 of the 10-year moving average of and the policies for areas with no The proposed CY 2014 wage index MFP, the proposed CY 2014 MFP factor hospital data. The CBSA-based values for urban areas are listed in is 0.4 percent. geographic area designations were Addendum A (Wage Indices for Urban d. Calculation of the ESRDB Market originally described in OMB bulletin Areas) and the proposed CY 2014 wage Basket Update, Adjusted for Multifactor 03–04, issued June 6, 2003. This index values for rural areas are listed in Productivity for CY 2014 bulletin, as well as subsequent bulletins, Addendum B (Wage Indices for Rural is available online at http:// Areas). Addenda A and B are located on Under section 1881(b)(14)(F) of the www.whitehouse,gov/omb/bulletins. the CMS Web site at http:// Act, beginning in CY 2012, ESRD PPS OMB publishes bulletins regarding www.cms.gov/Medicare/Medicare-Fee- payment amounts shall be annually CBSA changes, including changes to for-Service-Payment/ESRDpayment/ increased by an ESRD market basket CBSA numbers and titles. In accordance End-Stage-Renal-Disease-ESRD- percentage increase factor reduced by with our established methodology, we Payment-Regulations-and-Notices.html. the productivity adjustment. We are have historically adopted any CBSA proposing to use the same methodology changes that are published in the OMB In the CY 2011 ESRD PPS final rule for calculating the ESRDB market basket bulletin that corresponds with the IPPS (75 FR 49117), we finalized a policy to updates adjusted for MFP that was hospital wage index. For FY 2014, we use the labor-related share of 41.737 for finalized in the CY 2012 ESRD PPS final use the FY 2013 pre-floor, pre- the ESRD PPS portion of the payment. rule (76 FR 70234). reclassified hospital wage index to For the CY 2014 ESRD PPS we are not Thus, in accordance with section adjust the ESRD PPS payments. On proposing any changes to the labor- 1881(b)(14)(F)(i) of the Act, the February 28, 2013, OMB issued OMB related share of 41.737. Because all proposed ESRDB market basket Bulletin No. 13–01, which establishes providers that elected to participate in percentage increase factor for CY 2014 revised delineations of statistical areas the transition are entering their fourth is based on the 1st quarter 2013 forecast based on OMB standards published in year of the transition and will begin of the CY 2008-based ESRDB market the Federal Register on June 28, 2010 being paid 100 percent under the ESRD basket, which is estimated to be 2.9 and 2010 Census Bureau data. Because PPS, the 53.711 labor-related share that percent. This market basket percentage the FY 2013 pre-floor, pre-reclassified was applied to the composite rate is then reduced by the MFP adjustment hospital wage index was finalized prior portion of the blended payment is no (the 10-year moving average of MFP for to the issuance of this Bulletin, the FY longer applicable. We discuss the the period ending CY 2014) of 0.4 2013 pre-floor, pre-reclassified hospital methodology for the ESRD PPS labor- percent, which is based on IGI’s 1st wage index does not reflect OMB’s new related share in our CY 2011 ESRD PPS quarter 2013 forecast. The resulting area delineations based on the 2010 final rule (75 FR 49161), where we note proposed MFP-adjusted ESRDB market Census and, thus, the FY 2014 ESRD basket update for CY 2014 is equal to PPS wage index will not reflect the that the labor-related share is typically 2.5 percent, or 2.9 percent less 0.4 OMB changes. As stated in the FY 2014 the sum of Wages and Salaries, Benefits, percentage point. If more recent data is IPPS/LTCH PPS proposed rule, CMS Housekeeping and Operations, subsequently available (for example, a intends to propose changes to the Professional Fees, Labor-related more recent estimate of the market hospital wage index based on this OMB Services, and a portion of the Capital- basket or MFP adjustment), we will use Bulletin in the FY 2015 IPPS/LTCH PPS related Building and Equipment such data, if appropriate, to determine proposed rule (78 FR 27486 (May 10, expenses. For additional discussions on the CY 2014 market basket update and 2013)). Therefore, we anticipate that the the labor-related share please refer to MFP adjustment in the CY 2014 ESRD OMB Bulletin changes will be reflected section II.B.3.b. of this proposed rule. PPS final rule. in the FY 2015 hospital wage index.

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a. Payment under the ESRD PPS for to represent a reasonable proxy for that year transition to 100 percent Facilities Located in Guam, American rural area. implementation of the ERSD PPS (75 FR Samoa, and the Northern Mariana In the case of American Samoa and 49116 through 49117; 76 FR 70240 Islands and Proposed Wage Index Value the Northern Mariana Islands, we through 70241). Most recently, in the for Guam believe that Guam represents a CY 2013 ESRD PPS final rule (77 FR reasonable proxy because the islands are 67459 through 67461), we discussed the It came to our attention after the ESRD located within the Pacific Rim and share elimination of the wage index floor PPS was implemented that ESRD a common status as United States beginning in CY 2014, noting that we facilities located in the United States Territories. In addition, the Northern would propose a new methodology in Territories of Guam, American Samoa Mariana Islands and American Samoa CY 2014 to address wages in rural and the Northern Mariana Islands (the are rural areas with no hospital data. Puerto Rico because we would no longer Pacific Rim) have been paid on the basis Therefore, we will use our established be applying a wage index floor. The CY of reasonable costs and charges, rather methodology to compute an appropriate 2014 wage index values for both urban than under the ESRD PPS. Because wage index using the average wage and rural Puerto Rico remain below the section 1881(b)(14)(A)(i) of the Act index values from contiguous CBSAs, to finalized CY 2013 ESRD PPS wage requires the Secretary to implement a represent a reasonable proxy. While we index floor of 0.500 (77 FR 67459), payment system under which a single appreciate that the islands of the Pacific however, and we believe that both rural payment is made to a renal dialysis Rim are not actually contiguous, we and urban facilities in Puerto Rico facility for renal dialysis services in lieu believe that same principle applies here, would benefit from continuing the of any other payment for services and that Guam is a reasonable proxy for gradual reduction of the floor. We furnished on or after January 1, 2011, American Samoa and the Northern believe that continuing the wage index ESRD facilities located in the Pacific Marianas. We note that if hospital data floor for CY 2014 and CY 2015 will Rim must be paid under the ESRD PPS becomes available for any of the islands allow renal dialysis facilities located in and will be paid under this system of the Pacific Rim we will use that data Puerto Rico the benefit afforded to other beginning for services furnished on or for the appropriate CBSA’s instead of geographical areas in the fifty states of after January 1, 2014. In order to pay the proxy. As discussed previously, the a gradual and systematic elimination of these facilities under the ESRD PPS, we current wage index value using the the wage index floor. Therefore, for CY must identify an appropriate wage index existing methodology for Guam is 2014 and for CY 2015, we propose to value for these areas as required under 0.9611. Therefore, for CY 2014, we continue to apply the wage index floor § 413.231 of the regulations. We propose propose to apply this wage index value to areas with wage indexes below the to use the current value calculated of 0.9611 to ESRD facilities located in floor. For CY 2014, Puerto Rico is the under the existing methodology, that is, America Samoa and the Northern only area with a wage index value the pre-floor, pre-reclassification, Mariana Islands, which we are below the proposed floor; however, to hospital wage data that is unadjusted for including in Addendum B. the extent that other geographical areas occupational mix for the island of Guam For CY 2014, the only urban area fall below the floor in CY 2015 or of 0.9611, which is displayed in without wage index data is Hinesville- beyond we believe they should have the Addendum B (Wage Indices for Rural Fort Stewart, GA. As we discussed in benefit of a gradual reduction in the Areas). In addition, the most recent our CY 2013 ESRD PPS (77 FR 67459), floor as well. We will continue to proposed FY 2014 IPPS pre-floor, pre- we will continue to use the statewide review wage index values and the reclassified hospital wage data does not urban average based on the average of appropriateness of a wage index floor in include wage data for American Samoa all urban areas within the state for urban the future. and the Northern Mariana Islands. areas without hospital data. For CY For CY 2014 and CY 2015, we also Accordingly, we propose below to apply 2014 the wage index value for CBSA propose to continue our policy of the wage index value for Guam to #11 (Georgia) is 0.7482 and this is gradually reducing the wage index floor facilities located in American Samoa included in Addendum A. Accordingly, by 0.05 per year. Specifically, we and the Northern Mariana Islands. we propose to apply the statewide urban propose a wage index floor value of 0.45 average wage index value of 0.7582 to for CY 2014 and a wage index floor b. Proposed Policies for Areas with No Hinesville-Fort Stewart, GA. value of 0.40 for CY 2015. We believe Wage Data that continuing our policy of applying a c. Proposed Reduction to the ESRD wage index floor for an additional two Wage Index Floor In the CY 2011 ESRD PPS final rule years would allow Puerto Rico to benefit (75 FR 49117), we finalized the use of A wage index floor value has been from the anticipated and predictable the CBSA-based geographic area used in lieu of the calculated wage phase out of the wage index floor. While designations to define urban/rural areas index values below the floor in making we would not expect to continue this and corresponding wage index values payment for renal dialysis services policy past CY 2015, we will review the for the ESRD PPS. In that final rule (75 under the ESRD PPS. In the CY 2011 appropriateness of a wage index floor FR 49116 through 49117), we also ESRD PPS final rule (75 FR 49116 for CY 2016 at that time. discussed and finalized the through 49117), we finalized that we methodologies we use to calculate wage would continue to reduce the wage d. Proposed Wage Index Budget- index values for ESRD facilities that are index floor by 0.05 for each of the Neutrality Adjustment located in urban and rural areas where remaining years of the transition. We Section 1881(b)(14)(D)(iv)(II) of the there is no hospital data. For urban further specified in the CY 2012 ESRD Act gives us broad discretion to areas with no hospital data, we compute PPS (76 FR 70241) that we finalized the implement payment adjustments to the the average wage index value of all 0.05 reduction to the wage index floor ESRD PPS, including an adjustment of urban areas within the State and use for CYs 2012 and 2013, resulting in a the ESRD PPS by a geographic index. that value as the wage index. For rural wage index floor of 0.550 and 0.500, Section 1881(b)(14)(D)(iv)(II) areas with no hospital data, we compute respectively. specifically refers to section the wage index using the average wage Our intention has been to provide a 1881(b)(12)(D) as an example of such a index values from all contiguous CBSAs wage index floor only through the 4- geographic index, and in the CY 2011

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ESRD PPS final rule, we finalized the to estimate the total dollar amount that 2011 ESRD PPS final rule (75 FR 49094 use of the same wage index each ESRD facility would have received through 49108). We analyzed the methodology that we utilized under the in CY 2013. The total of these payments comorbidity categories and excluded basic case-mix adjusted composite rate became the target amount of those categories from the comorbidity payment system (75 FR 49116). We had expenditures for all ESRD facilities for payment adjustment that met any of applied a wage index budget-neutrality CY 2014. Next, we computed the three exclusion criteria (75 FR 49095 adjustment factor under the basic case- estimated dollar amount that would through 49100): (1) Inability to create mix adjusted composite payment have been paid for the same ESRD accurate clinical definitions; (2) system, and accordingly, in the CY 2012 facilities using the proposed ESRD wage potential for adverse incentives ESRD PPS final rule, we finalized a index for CY 2014. The total of these regarding care; and (3) potential for policy for CY 2012 and future years to payments becomes the new CY 2014 ESRD facilities to directly influence the apply wage index budget-neutrality amount of wage-adjusted expenditures prevalence of the co-morbidity either by adjustment factors to the composite rate for all ESRD facilities. The wage index altering dialysis care, changing portion of the ESRD PPS blended budget-neutrality factor is calculated as diagnostic testing patterns, or payments for facilities participating in the target amount divided by the new liberalizing the diagnostic criteria. the transition as well as to the base rate CY 2014 amount. When we multiplied We finalized six comorbidity for the ESRD PPS portion of the blended the wage index budget-neutrality factor categories eligible for the comorbidity payment and the full ESRD PPS for by the applicable CY 2014 estimated payment adjustment, each with those facilities that elected to receive payments, aggregate payments to ESRD associated International Classification of 100 percent of their payment under that facilities would remain budget-neutral Disease, 9th Revision, Clinical system (76 FR 70241 and 70242). We when compared to the target amount of Modification (ICD–9–CM) diagnosis also finalized the methodology for expenditures. That is, the wage index codes (75 FR 49100). Among these computing the wage index budget- budget-neutrality adjustment factor categories are three acute, short-term neutrality adjustment factors for CY ensures that wage index adjustments do diagnostic categories (pericarditis, 2012 and subsequent years (76 FR not increase or decrease aggregate bacterial pneumonia, and 70242). Medicare payments with respect to gastrointestinal tract bleeding with For CY 2014, we are not proposing changes in wage index updates. hemorrhage) and three chronic any changes to the methodology, but we Therefore, we are proposing a wage diagnostic categories (hereditary note that we will no longer compute a index budget-neutrality adjustment hemolytic anemia with sickle cell budget neutrality adjustment factor for factor of 1.000411, which would be anemia, myelodysplastic syndrome, and the composite rate portion of the ESRD computed in ESRD PPS base rate monoclonal gammopathy). The PPS blended payment because all payment methodology when making comorbidity categories eligible for the facilities will be paid 100 percent under payment for renal dialysis services in adjustment and their associated ICD–9– the ESRD PPS in CY 2014. For ease of CY 2014. CM codes were published in the reference, we explain the methodology Appendix of the CY 2011 ESRD PPS for computing the budget-neutrality 5. Application of the International final rule as Table E: ICD–9–CM Codes adjustment factor here. For the CY 2014 Classification of Diseases (ICD), Tenth Recognized for a Comorbidity Payment wage index budget-neutrality Revision, to the Comorbidity Payment Adjustment (75 FR 49211). adjustment factor, we use the fiscal year Adjustment Codes In the CY 2012 ESRD PPS final rule (FY) 2014 pre-floor, pre-reclassified, In the CY 2011 ESRD PPS final rule (76 FR 70252), we clarified that the non-occupational mix-adjusted hospital (75 FR 49094), we explained that ICD–9–CM codes eligible for the data to compute the wage index values, section 1881(b)(14)(D)(i) of the Act, as comorbidity payment adjustment are 2012 outpatient claims (paid and added by section 153(b) of MIPPA, subject to the annual ICD–9–CM coding processed as of December 31, 2012), and requires that the ESRD PPS include a updates that occur in the hospital geographic location information for each payment adjustment based on case-mix inpatient PPS final rule and are effective facility, which may be found through that may take into account, among other October 1st of every year. We explained Dialysis Facility Compare. Dialysis things, patient comorbidities. that any updates to the ICD–9–CM codes Facility Compare (DFC) can be found at Comorbidities are specific patient that affect the categories of the DFC Web page on the CMS Web site conditions that coexist with the comorbidities and the diagnoses within at http://www.medicare.gov/ patient’s principal diagnosis that the comorbidity categories that are dialysisfacilitycompare/. The FY 2014 necessitates dialysis. The comorbidity eligible for the comorbidity payment hospital wage index data for each urban payment adjustment recognizes the adjustment would be communicated to and rural locale by CBSA may also be increased costs associated with ESRD facilities through sub-regulatory accessed on the CMS Web site at http:// comorbidities and provides additional guidance. Accordingly, Change Request www.cms.gov/Medicare/Medicare-Fee- payment for certain conditions that (CR) 7476, Transmittal 2255, entitled, for-Service-Payment/ occur concurrently with the need for ‘‘Quarterly Update to the End-Stage AcuteInpatientPPS/ dialysis. Renal Disease Prospective Payment index.html?redirect=/ To develop the comorbidity payment System, was issued on July 15, 2011 to AcuteInpatientPPS/WIFN/list.asp. The adjustment, we used a stepwise update the ICD–9–CM codes eligible for wage index data are located in the regression model to analyze comorbidity the comorbidity payment adjustment in section entitled, ‘‘FY 2014 Proposed data and found that certain accordance with the annual ICD–9–CM Rule Occupational Mix Adjusted and comorbidities are predictors of variation update effective October 1, 2011. This Unadjusted Average Hourly Wage and in payments for ESRD patients. Details CR can be found on the CMS Web site Pre-Reclassified Wage Index by CBSA’’. on the development of the comorbidity at the following link: http:// We computed the proposed CY 2014 categories eligible for the comorbidity www.cms.gov/Regulations-and- wage index budget-neutrality payment adjustment, including an Guidance/Guidance/Transmittals/ adjustment factor using treatment explanation of the stepwise regression Downloads/R2255CP.pdf. There have counts from the 2012 claims and model that we used to analyze not been updates to the ICD–9–CM facility-specific CY 2013 payment rates comorbidity data, is discussed in the CY codes eligible for the comorbidity

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payment adjustment since October 1, that codes for the same diagnosis, has 9–CM code crosswalks, does not include 2011. the same code descriptor, and does not the word ‘‘hemorrhage.’’ In the CY 2011 Effective October 1, 2014, CMS will meet any of our exclusion criteria. ESRD PPS final rule (75 FR 49097), we implement the 10th revision of the ICD Accordingly, with the exceptions noted specifically limited the GI bleeding coding scheme—ICD–10–CM. Because below, we propose that ICD–10–CM category for the comorbidity payment the transition to ICD–10–CM coding will codes will be eligible for the adjustment to GI bleed with hemorrhage occur during CY 2014, we discuss here comorbidity payment adjustment where because we believed that the the crosswalk from ICD–9–CM to ICD– they crosswalk from ICD–9–CM codes gastrointestinal tract bleeding category 10–CM codes for the purpose of that are eligible for the comorbidity met our first exclusion criterion— determining eligibility for the payment adjustment. There are, inability to create accurate clinical comorbidity payment adjustment. however, two instances where ICD–9– definitions—because it was overly We crosswalked the ICD–9–CM codes CM codes crosswalk to ICD–10–CM broad. We also believed that use of this that are eligible for the comorbidity codes that we believe meet one or more diagnosis category could lead to gaming payment adjustment to ICD–10–CM of the exclusion criteria described consistent with the second and third codes using the General Equivalence above, and we propose to exclude these exclusion criteria listed above. For these Mappings (GEM) tool, which is the codes from eligibility for the reasons, we limited the gastrointestinal authoritative source for crosswalking comorbidity payment adjustment. developed by the National Center for tract bleeding diagnosis category to Health Statistics and CMS. The a. One ICD–9–CM Code Crosswalks to gastrointestinal tract bleeding with crosswalk from ICD–9–CM to ICD–10– One ICD–10–CM Code hemorrhage, which we believe creates CM diagnosis codes resulted in three Table 1 lists all the instances in which accurate clinical definitions and scenarios: One ICD–9–CM code could one ICD–9–CM code crosswalks to one mitigates the potential for adverse crosswalk to one ICD–10–CM code; one ICD–10–CM code. We propose that all of incentives in ESRD care. Accordingly, ICD–9–CM code crosswalked to those ICD–10–CM codes will be subject we propose to exclude ICD–10–CM code multiple ICD–10–CM codes; or multiple to the comorbidity payment adjustment K52.81 Eosinophilic gastritis or ICD–9–CM crosswalked to one ICD–10– with the exception of K52.81 gastroenteritis from eligibility for the CM code. We applied the three Eosinophilic gastritis or gastroenteritis. comorbidity payment adjustment exclusion criteria listed above to each of Currently, 535.71 Eosinophilic gastritis because the code descriptor does not the ICD–10–CM codes to which the with hemorrhage is one of 40 ICD–9–CM indicate the diagnosis of a hemorrhage. ICD–9–CM codes crosswalked. diagnosis codes under the acute We propose that all of the other ICD– In our clinical evaluation, we found comorbidity category of Gastrointestinal 10–CM codes listed in the Table 1 below the ICD–9–CM codes generally (GI) Bleeding. The descriptor of K52.81, will be eligible for the comorbidity crosswalked to one ICD–10–CM code the ICD–10–CM code to which this ICD– payment adjustment.

TABLE 1—ONE ICD–9–CM CODE CROSSWALKS TO ONE ICD–10–CM CODE

ICD–9 Descriptor ICD–10 Descriptor

Gastrointestinal Bleeding

530.21 ...... Ulcer of esophagus with bleeding ...... K22.11 ...... Ulcer of esophagus with bleeding 535.71 ...... Eosinophilic gastritis, with hemorrhage ...... K52.81 ...... Eosinophilic gastritis or gastroenteritis 537.83 ...... Angiodysplasia of stomach and duodenum with K31.811 ...... Angiodysplasia of stomach and duodenum with hemorrhage. bleeding 569.85 ...... Angiodysplasia of intestine with hemorrhage ...... K55.21 ...... Angiodysplasia of colon with hemorrhage

Bacterial Pneumonia

003.22 ...... Salmonella pneumonia ...... A02.22 ...... Salmonella pneumonia 482.0 ...... Pneumonia due to Klebsiella pneumonia ...... J15.0 ...... Pneumonia due to Klebsiella pneumoniae 482.1 ...... Pneumonia due to Pseudomonas ...... J15.1 ...... Pneumonia due to Pseudomonas 482.2 ...... Pneumonia due to Hemophilus influenzae [H. J14 ...... Pneumonia due to Hemophilus influenzae influenzae]. 482.32 ...... Pneumonia due to Streptococcus, group B ...... J15.3 ...... Pneumonia due to streptococcus, group B 482.40 ...... Pneumonia due to Staphylococcus, unspecified ...... J15.20 ...... Pneumonia due to staphylococcus, unspecified 482.41 ...... Methicillin susceptible pneumonia due to Staphy- J15.211 ...... Pneumonia due to Methicillin susceptible Staphy- lococcus aureus. lococcus aureus 482.42 ...... Methicillin resistant pneumonia due to Staphy- J15.212 ...... Pneumonia due to Methicillin resistant Staphy- lococcus aureus. lococcus aureus 482.49 ...... Other Staphylococcus pneumonia ...... J15.29 ...... Pneumonia due to other staphylococcus 482.82 ...... Pneumonia due to escherichia coli [E. coli] ...... J15.5 ...... Pneumonia due to Escherichia coli 482.83 ...... Pneumonia due to other gram-negative bacteria ..... J15.6 ...... Pneumonia due to other aerobic Gram-negative bacteria 482.84 ...... Pneumonia due to Legionnaires’ disease ...... A48.1 ...... Legionnaires’ disease 507.0 ...... Pneumonitis due to inhalation of food or vomitus .... J69.0 ...... Pneumonitis due to inhalation of food and vomit 507.8 ...... Pneumonitis due to other solids and liquids ...... J69.8 ...... Pneumonitis due to inhalation of other solids and liquids 510.0 ...... Empyema with fistula ...... J86.0 ...... Pyothorax with fistula 510.9 ...... Empyema without mention of fistula ...... J86.9 ...... Pyothorax without fistula

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TABLE 1—ONE ICD–9–CM CODE CROSSWALKS TO ONE ICD–10–CM CODE—Continued

ICD–9 Descriptor ICD–10 Descriptor

Pericarditis

420.91 ...... Acute idiopathic pericarditis ...... I30.0 ...... Acute nonspecific idiopathic pericarditis

Hereditary Hemolytic and Sickle Cell Anemia

282.0 ...... Hereditary spherocytosis ...... D58.0 ...... Hereditary spherocytosis 282.1 ...... Hereditary elliptocytosis ...... D58.1 ...... Hereditary elliptocytosis 282.41 ...... Sickle-cell thalassemia without crisis ...... D57.40 ...... Sickle-cell thalassemia without crisis 282.43 ...... Alpha thalassemia ...... D56.0 ...... Alpha thalassemia 282.44 ...... Beta thalassemia ...... D56.1 ...... Beta thalassemia 282.45 ...... Delta-beta thalassemia ...... D56.2 ...... Delta-beta thalassemia 282.46 ...... Thalassemia minor ...... D56.3 ...... Thalassemia minor 282.47 ...... Hemoglobin E-beta thalassemia ...... D56.5 ...... Hemoglobin E-beta thalassemia 282.49 ...... Other thalassemia ...... D56.8 ...... Other thalassemias 282.61 ...... Hb-SS disease without crisis ...... D57.1 ...... Sickle-cell disease without crisis 282.63 ...... Sickle-cell/Hb-C disease without crisis ...... D57.20 ...... Sickle-cell/Hb-C disease without crisis 282.68 ...... Other sickle-cell disease without crisis ...... D57.80 ...... Other sickle-cell disorders without crisis

Myelodysplastic Syndrome

238.7 ...... Essential thrombocythemia ...... D47.3 ...... Essential (hemorrhagic) thrombocythemia 238.73 ...... High grade myelodysplastic syndrome lesions ...... D46.22 ...... Refractory anemia with excess of blasts 2 238.74 ...... Myelodysplastic syndrome with 5q deletion ...... D46.C ...... Myelodysplastic syndrome with isolated del(5q) chromosomal abnormality 238.76 ...... Myelofibrosis with myeloid metaplasia ...... D47.1 ...... Chronic myeloproliferative disease

b. One ICD–9–CM Code Crosswalks to Hypergammaglobulinemia, unspecified. 10–CM code should not be eligible for Multiple ICD–10–CM Codes We analyzed both of these ICD–10–CM the comorbidity payment adjustment codes and determined that D47.2 because D89.2 Table 2 lists all of the instances in Monoclonal gammopathy should be Hypergammaglobulinemia, unspecified which one ICD–9–CM code crosswalks eligible for the comorbidity payment indicates only that 1 or more to multiple ICD–10–CM codes. In those adjustment because, like ICD–9–CM immunoglobulins are elevated, but does instances, we propose that all the code 273.1 Monoclonal not identify which immunoglobulin(s) crosswalked ICD–10–CM codes will be paraproteinemia, it indicates that there are elevated. We believe that the lack of subject to the comorbidity payment is an excessive amount of a single specificity of this particular code results adjustment, with the exception of D89.2 monoclonal gammaglobulin. When we in an inability to create an accurate Hypergammaglobulinemia, unspecified. analyzed the comorbidity category for clinical definition, which is the first of ICD–9–CM code 273.1 Monoclonal the CY 2011 ESRD PPS final rule, single the three exclusion criteria. paraproteinemia is the only ICD–9–CM monoclonal gammaglobulin was shown code eligible for the comorbidity to have an association with higher Accordingly, we propose that D89.2 payment adjustment under the chronic erythropoiesis stimulating agent (ESA) Hypergammaglobulinemia, unspecified comorbidity category of Monoclonal usage, thereby resulting in higher costs will not be eligible for the comorbidity gammopathy. ICD–9–CM code 273.1 to dialysis facilities. After clinical payment adjustment. We propose that Monoclonal paraproteinemia crosswalks evaluation of D89.2 all of the other ICD–10–CM codes listed to two ICD–10–CM codes: D47.2 Hypergammaglobulinemia, unspecified, in Table 2 below will be eligible for the Monoclonal gammopathy and D89.2 however, we determined that this ICD– comorbidity payment adjustment.

TABLE 2—ONE ICD–9–CM CODE CROSSWALKS TO MULTIPLE ICD–10–CM CODES

ICD–9 Descriptor ICD–10 Descriptor

Gastrointestinal Bleeding

562 ...... Diverticulosis of small intestine with hemorrhage ..... K57.11 ...... Diverticulosis of small intestine without perforation or abscess with bleeding. K57.51 ...... Diverticulosis of both small and large intestine with- out perforation or abscess with bleeding. 562.03 ...... Diverticulitis of small intestine with hemorrhage ...... K57.01 ...... Diverticulitis of small intestine with perforation and abscess with bleeding. K57.13 ...... Diverticulitis of small intestine without perforation or abscess with bleeding. K57.41 ...... Diverticulitis of both small and large intestine with perforation and abscess with bleeding. K57.53 ...... Diverticulitis of both small and large intestine with- out perforation or abscess with bleeding. 562.12 ...... Diverticulosis of colon with hemorrhage ...... K57.31 ...... Diverticulosis of large intestine without perforation or abscess with bleeding.

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TABLE 2—ONE ICD–9–CM CODE CROSSWALKS TO MULTIPLE ICD–10–CM CODES—Continued

ICD–9 Descriptor ICD–10 Descriptor

K57.91 ...... Diverticulosis of intestine, part unspecified, without perforation or abscess with bleeding. K57.51 ...... Diverticulosis of both small and large intestine with- out perforation or abscess with bleeding. 562.13 ...... Diverticulitis of colon with hemorrhage ...... K57.21 ...... Diverticulitis of large intestine with perforation and abscess with bleeding. K57.33 ...... Diverticulitis of large intestine without perforation or abscess with bleeding. K57.41 ...... Diverticulitis of both small and large intestine with perforation and abscess with bleeding. K57.53 ...... Diverticulitis of both small and large intestine with- out perforation or abscess with bleeding.

Bacterial Pneumonia

513.0 ...... Abscess of lung ...... J85.0 ...... Gangrene and necrosis of lung. J85.1 ...... Abscess of lung with pneumonia. J85.2 ...... Abscess of lung without pneumonia.

Pericarditis

420.0 ...... Acute pericarditis in diseases classified elsewhere .. A18.84 ...... Tuberculosis of heart. I32 ...... Pericarditis in diseases classified elsewhere. M32.12 ...... Pericarditis in systemic lupus erythematosus. 420.90 ...... Acute pericarditis, unspecified ...... I30.1 ...... Infective pericarditis. I30.9 ...... Acute pericarditis, unspecified. 420.99 ...... Other acute pericarditis ...... I30.8 ...... Other forms of acute pericarditis. I30.9 ...... Acute pericarditis, unspecified.

Hereditary Hemolytic and sickle cell anemia

282.2 ...... Anemias due to disorders of glutathione metabolism D55.0 ...... Anemia due to glucose-6-phosphate dehydro- genase [G6PD] deficiency. D55.1 ...... Anemia due to other disorders of glutathione me- tabolism. 282.3 ...... Other hemolytic anemias due to enzyme deficiency D55.2 ...... Anemia due to disorders of glycolytic enzymes. D55.3 ...... Anemia due to disorders of nucleotide metabolism. D55.8 ...... Other anemias due to enzyme disorders. D55.9 ...... Anemia due to enzyme disorder, unspecified. 282.42 ...... Sickle-cell thalassemia with crisis ...... D57.411 ...... Sickle-cell thalassemia with acute chest syndrome. D57.412 ...... Sickle-cell thalassemia with splenic sequestration. D57.419 ...... Sickle-cell thalassemia with crisis, unspecified. 282.62 ...... Hb-SS disease with crisis ...... D57.00 ...... Hb-SS disease with crisis, unspecified. D57.01 ...... Hb-SS disease with acute chest syndrome. D57.02 ...... Hb-SS disease with splenic sequestration. 282.64 ...... Sickle-cell/Hb-C disease with crisis ...... D57.211 ...... Sickle-cell/Hb-C disease with acute chest syn- drome. D57.212 ...... Sickle-cell/Hb-C disease with splenic sequestration. D57.219 ...... Sickle-cell/Hb-C disease with crisis, unspecified. 282.69 ...... Other sickle-cell disease with crisis ...... D57.811 ...... Other sickle-cell disorders with acute chest syn- drome. D57.812 ...... Other sickle-cell disorders with splenic sequestra- tion. D57.819 ...... Other sickle-cell disorders with crisis, unspecified.

Monoclonal Gammopathy

273.1 ...... Monoclonal paraproteinemia ...... D47.2 ...... Monoclonal gammopathy. D89.2 ...... Hypergammaglobulinemia, unspecified.

Myelodysplastic Syndrome

238.72 ...... Low grade myelodysplastic syndrome lesions ...... D46.0 ...... Refractory anemia without ring sideroblasts, so stat- ed. D46.1 ...... Refractory anemia with ring sideroblasts. D46.20 ...... Refractory anemia with excess of blasts, unspec- ified. D46.21 ...... Refractory anemia with excess of blasts 1. D46.4 ...... Refractory anemia, unspecified. D46.A ...... Refractory cytopenia with multilineage dysplasia. D46.B ...... Refractory cytopenia with multilineage dysplasia and ring sideroblasts. 238.75 ...... Myelodysplastic syndrome, unspecified ...... D46.9 ...... Myelodysplastic syndrome, unspecified.

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TABLE 2—ONE ICD–9–CM CODE CROSSWALKS TO MULTIPLE ICD–10–CM CODES—Continued

ICD–9 Descriptor ICD–10 Descriptor

D46.Z ...... Other myelodysplastic syndromes.

c. Multiple ICD–9–CM Codes Crosswalk one ICD–10–CM code. For the reasons listed below will be eligible for the to One ICD–10–CM Code explained above, we propose that all of comorbidity payment adjustment. Table 3 displays the crosswalk where the crosswalked ICD–10–CM codes multiple ICD–9–CM codes crosswalk to

TABLE 3—MULTIPLE ICD–9–CM CODES CROSSWALK TO ONE ICD–10–CM CODE

ICD–9 Descriptor ICD–10 Descriptor

Gastrointestinal Bleeding

533.20 ...... Acute peptic ulcer of unspecified site with hemor- K27.2 ...... Acute peptic ulcer, site unspecified, with both hem- rhage and perforation, without mention of ob- orrhage and perforation. struction. 533.21 ...... Acute peptic ulcer of unspecified site with hemor- rhage and perforation, with obstruction. 533.40 ...... Chronic or unspecified peptic ulcer of unspecified K27.4 ...... Chronic or unspecified peptic ulcer, site unspecified, site with hemorrhage, without mention of obstruc- with hemorrhage. tion. 533.41 ...... Chronic or unspecified peptic ulcer of unspecified site with hemorrhage, with obstruction. 533.60 ...... Chronic or unspecified peptic ulcer of unspecified K27.6 ...... Chronic or unspecified peptic ulcer, site unspecified, site with hemorrhage and perforation, without with both hemorrhage and perforation. mention of obstruction. 533.61 ...... Chronic or unspecified peptic ulcer of unspecified site with hemorrhage and perforation, with ob- struction. 534.00 ...... Acute gastrojejunal ulcer with hemorrhage, without K28.0 ...... Acute gastrojejunal ulcer with hemorrhage. mention of obstruction. 534.01 ...... Acute gastrojejunal ulcer, with hemorrhage, with ob- struction. 534.20 ...... Acute gastrojejunal ulcer with hemorrhage and per- K28.2 ...... Acute gastrojejunal ulcer with both hemorrhage and foration, without mention of obstruction. perforation. 534.21 ...... Acute gastrojejunal ulcer with hemorrhage and per- foration, with obstruction. 534.40 ...... Chronic or unspecified gastrojejunal ulcer with hem- K28.4 ...... Chronic or unspecified gastrojejunal ulcer with hem- orrhage, without mention of obstruction. orrhage. 534.41 ...... Chronic or unspecified gastrojejunal ulcer, with hemorrhage, with obstruction. 534.60 ...... Chronic or unspecified gastrojejunal ulcer with hem- K28.6 ...... Chronic or unspecified gastrojejunal ulcer with both orrhage and perforation, without mention of ob- hemorrhage and perforation. struction. 534.61 ...... Chronic or unspecified gastrojejunal ulcer with hem- orrhage and perforation, with obstruction.

Bacterial Pneumonia

482.30 ...... Pneumonia due to Streptococcus, unspecified ...... J15.4 ...... Pneumonia due to other streptococci. 482.31 ...... Pneumonia due to Streptococcus, group A. 482.39 ...... Pneumonia due to other Streptococcus. 482.81 ...... Pneumonia due to anaerobes ...... J15.8 ...... Pneumonia due to other specified bacteria. 482.89 ...... Pneumonia due to other specified bacteria.

In summary, based on our clinical Tables above will be eligible for the 6. Proposed Revisions to the Outlier evaluation of the ICD–10–CM codes to comorbidity payment adjustment Policy which the eligible ICD–9–CM codes effective October 1, 2014. We are Section 1881(b)(14)(D)(ii) of the Act crosswalk, we propose that both D89.2 soliciting comments on the ICD–10–CM requires that the ESRD PPS include a Hypergammaglobulinemia, unspecified codes that we propose to exclude and payment adjustment for high cost and K52.81 Eosinophilic gastritis or those we propose will be eligible for the outliers due to unusual variations in the gastroenteritis would not be eligible for comorbidity payment adjustment. type or amount of medically necessary the comorbidity payment adjustment. care, including variability in the amount We propose that all other ICD–10–CM of erythropoiesis stimulating agents codes to which eligible ICD–9–CM (ESAs) necessary for anemia codes crosswalk that are listed in the management. Our regulations at 42 CFR

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§ 413.237(a)(1) provide that ESRD to provide unit prices for calculating applicable using the outlier services outlier services are the following items imputed outlier services. We also can payment multipliers developed from the and services that are included in the identify, through our monitoring efforts, regression analysis to compute the ESRD PPS bundle: (i) ESRD-related items and services that are incorrectly payment adjustments. The average drugs and biologicals that were or being identified as eligible outlier outlier services MAP amount per would have been, prior to January 1, services in the claims data. Any updates treatment for CY 2011 was based on 2011, separately billable under to the list of renal dialysis items and payment amounts reported on 2007 Medicare Part B; (ii) ESRD-related services that qualify as outlier services claims and adjusted to reflect projected laboratory tests that were or would have are made through administrative prices for 2011. For CY 2012, the outlier been, prior to January 1, 2011, issuances, if necessary. services MAP amounts and fixed dollar separately billable under Medicare Part Our regulations at 42 CFR loss amounts were based on 2010 data B; (iii) medical/surgical supplies, § 413.237(a)(2) through (a)(6), (b), and (76 FR 70250). Thus, for CYs 2011 and including syringes, used to administer (c) specify the methodology used to 2012, the MAP and fixed dollar loss calculate outlier payments. An ESRD ESRD-related drugs, that were or would amounts were computed based on pre- facility is eligible for an outlier payment have been, prior to January 1, 2011, ESRD PPS claims data and utilization. if its actual or imputed Medicare separately billable under Medicare Part For CY 2013, the outlier services MAP B; and (iv) renal dialysis service drugs Allowable Payment (MAP) amount per amounts and fixed dollar loss amounts that were or would have been, prior to treatment for ESRD outlier services were based on 2011 data (77 FR 67464). January 1, 2011, covered under exceeds a threshold. The MAP amount Therefore, the outlier thresholds for CY Medicare Part D, excluding ESRD- represents the average incurred amount related oral-only drugs. per treatment for services that were or 2013 were based on utilization of ESRD- In the CY 2011 ESRD PPS final rule would have been considered separately related items and services furnished (75 FR 49142), we stated that for billable services prior to January 1, under the ESRD PPS. Because of the purposes of determining whether an 2011. The threshold is equal to the lower utilization of epoetin and other ESRD facility would be eligible for an ESRD facility’s predicted ESRD outlier outlier services in CY 2011, we lowered outlier payment, it would be necessary services MAP amount per treatment the MAP amounts and fixed dollar loss for the facility to identify the actual (which is case-mix adjusted) plus the amounts for both adult and pediatric ESRD outlier services furnished to the fixed dollar loss amount. In accordance patients for CY 2013 to allow for an patient by line item on the monthly with § 413.237(c) of the regulations, increase in payments for ESRD claim. The ESRD-related drugs, facilities are paid 80 percent of the per beneficiaries requiring higher resources. laboratory tests, and medical/surgical treatment amount by which the imputed a. Impact of Proposed Changes to the supplies that we would recognize as MAP amount for outlier services (that is, Outlier Policy outlier services were specified in the actual incurred amount) exceeds Attachment 3 of Change Request 7064, this threshold. ESRD facilities are For CY 2014, we are not proposing Transmittal 2033 issued August 20, eligible to receive outlier payments for any changes to the methodology used to 2010, rescinded and replaced by treating both adult and pediatric compute the MAP or fixed dollar loss Transmittal 2094, dated November 17, dialysis patients. amounts. Rather, in this proposed rule, In the CY 2011 ESRD PPS final rule, 2010. With respect to the outlier policy, we are updating the outlier services using 2007 data, we established the Transmittal 2094 identified additional MAP amounts and fixed dollar loss outlier percentage at 1.0 percent of total drugs and laboratory tests that may be amounts to reflect the utilization of eligible for ESRD outlier payment. payments (75 FR 49142 through 49143). outlier services reported on the 2012 Transmittal 2094 was rescinded and We also established the fixed dollar loss claims using the December 2012 claims replaced by Transmittal 2134, dated amounts that are added to the predicted file. Accordingly, for CY 2014, the MAP January 14, 2011, which was issued to outlier services MAP amounts. The correct the subject on the Transmittal outlier services MAP amounts and fixed and fixed dollar loss amounts are based page and made no other changes. dollar loss amounts are different for on the ESRD PPS claims and utilization. In the CY 2012 ESRD PPS final rule adult and pediatric patients due to The impact of this update is shown in (76 FR 70246), we eliminated the differences in the utilization of Table 4, which compares the outlier issuance of a specific list of eligible separately billable services among adult services MAP amounts and fixed dollar outlier service drugs which were or and pediatric patients (75 FR 49140). loss amounts used for the outlier policy would have been separately billable As we explained in the CY 2011 ESRD in CY 2013 with the updated estimates under Medicare Part B prior to January PPS final rule (75 FR 49138 and 49139), for this proposed rule. The estimates for 1, 2011. However, we use separate the predicted outlier services MAP the proposed outlier CY 2014 outlier guidance to continue to identify renal amounts for a patient are determined by policy, which are included in Column II dialysis service drugs which were or multiplying the adjusted average outlier of Table 4, were inflation-adjusted to would have been covered under Part D services MAP amount by the product of reflect projected 2014 prices for outlier for outlier eligibility purposes in order the patient-specific case-mix adjusters services.

TABLE 4—OUTLIER POLICY: IMPACT OF USING UPDATED DATA TO DEFINE THE OUTLIER POLICY

Column I Column II Final outlier policy for CY2013 Proposed outlier policy for (based on 2011 data price CY2014 (based on 2012 data inflated to 2013) * price inflated to 2014) * Age Age Age Age <18 >= 18 <18 >= 18

Average outlier services MAP amount per treatment 1 ...... $38.65 $61.38 $38.65 $52.45 Adjustments

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TABLE 4—OUTLIER POLICY: IMPACT OF USING UPDATED DATA TO DEFINE THE OUTLIER POLICY—Continued

Column I Column II Final outlier policy for CY2013 Proposed outlier policy for (based on 2011 data price CY2014 (based on 2012 data inflated to 2013) * price inflated to 2014) * Age Age Age Age <18 >= 18 <18 >= 18

Standardization for outlier services 2 ...... 1.0927 0.9878 1.0960 0.9893 MIPPA reduction ...... 0.98 0.98 0.98 0.98 Adjusted average outlier services MAP amount 3 ...... $41.39 $59.42 $41.51 $50.85 Fixed dollar loss amount that is added to the predicted MAP to determine the outlier threshold 4 ...... $47.32 $110.22 $54.23 $94.26 Patient months qualifying for outlier payment ...... 7.6% 5.1% 6.2% 5.1% * The outlier services MAP amounts and fixed dollar loss amounts were inflation adjusted to reflect updated prices for outlier services (that is, 2013 prices in Column I and projected 2014 prices in Column II). 1 Excludes patients for whom not all data were available to calculate projected payments under an expanded bundle. The outlier services MAP amounts are based on 2012 data. The medically unbelievable edits of 400,000 units for EPO and 1,200 mcg for Aranesp that are in place under the ESA claims monitoring policy were applied. 2 Applied to the average outlier MAP per treatment. Standardization for outlier services is based on existing case mix adjusters for adult and pediatric patient groups. 3 This is the amount to which the separately billable (SB) payment multipliers are applied to calculate the predicted outlier services MAP for each patient. 4 The fixed dollar loss amounts were calculated using 2012 data to yield total outlier payments that represent 1% of total projected payments for the ESRD PPS.

As seen in Table 4, the estimated Generally, there is a relatively higher to the continuing decline in use of fixed dollar loss amount that determines likelihood for pediatric patients that the outlier services. Use of 2012 data to the 2014 outlier threshold amount for outlier threshold may be adjusted to recalibrate the thresholds, which reflect adults (Column II) is lower than that reflect changes in the distribution of lower utilization of EPO and other used for the 2013 outlier policy outlier service MAP amounts. This is outlier services, is expected to result in (Column I). The estimated fixed dollar due to the much smaller overall number aggregate outlier payments close to the loss amount that determines the 2014 of pediatric patients compared to adult 1 percent target in CY 2014. We believe outlier threshold amount for pediatric patients, and therefore to the fact that the proposed update to the outlier MAP patients (Column II) is higher than that the outlier threshold for pediatric and fixed dollar loss amounts for CY used for the 2013 outlier policy patients is calculated based on data for 2014 will increase payments for ESRD (Column I). The main reason for the a much smaller number of pediatric beneficiaries requiring higher resource reduction for adult patients is that the patients compared to adult patients. utilization and come closer to meeting lower utilization of epoetin and other We propose to update the fixed dollar our 1 percent outlier policy. outlier services continued to decline loss amounts that are added to the We note that recalibration of the fixed during the second year of the PPS. This predicted MAP amounts per treatment dollar loss amounts in this proposed can be seen by comparing the outlier to determine the outlier thresholds for rule for CY 2014 outlier payments service MAP amount per treatment for CY 2014 from $110.22 to $94.26 for results in no change in payments to adult patients in Column I ($61.38, adult patients and from $47.32 to $54.23 ESRD facilities for beneficiaries with which is based on 2011 data) with that for pediatric patients compared with CY renal dialysis items and services that are amount in Column II ($52.45, which is 2013 amounts. We estimate that the not eligible for outlier payments, but based on 2012 data). percentage of patient months qualifying increases payments to providers for For pediatric patients, there was no for outlier payments under the current beneficiaries with renal dialysis items change in the overall average outlier policy will be 5.1 percent and 6.2 and services that are eligible for outlier service MAP amount between 2011 and percent for adult and pediatric patients, payments. Therefore, beneficiary co- 2012 ($38.65 per treatment in both respectively, based on the 2012 data. insurance obligations would also Columns I and II). In addition, there was The pediatric outlier MAP and fixed increase for renal dialysis services a greater tendency in 2012 for a dollar loss amounts continue to be eligible for outlier payments. relatively small percentage of pediatric lower for pediatric patients than adults C. Discussion of Self-Dialysis and Home patients to account for a due to the continued lower use of Dialysis Training Add-on Adjustment disproportionate share of the total outlier services (primarily reflecting and Request for Public Comments outlier service MAP amounts. The one lower use of epoetin and other percent target for outlier payments is injectable drugs). a. Medicare Policy for Self-Dialysis therefore expected to be achieved based Training, Home Dialysis Training, and on a smaller percentage of pediatric b. Outlier Policy Percentage Retraining outlier cases using 2012 data compared 42 CFR 413.220(b)(4) stipulates that The existing Medicare policy for to 2011 data (6.2 percent of pediatric the per treatment base rate is reduced by furnishing self-dialysis training, home patient months are expected to qualify 1 percent to account for the proportion dialysis training, and retraining was for outlier payments rather than 7.6 of the estimated total payments under finalized in our CY 2011 ESRD PPS final percent). These patterns led to the the ESRD PPS that are outlier payments. rule (75 FR 49062 through 49064) and estimated fixed dollar loss amount for Based on the 2012 claims, outlier further discussed in the Medicare pediatric patients being higher for the payments represented approximately Benefits Policy Manual, (Publication outlier policy for CY 2014 compared to 0.2 percent of total payments, again 100–02, Chapter 11). Self-dialysis or the outlier policy for CY 2013. falling short of the 1 percent target due home dialysis can only be performed

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after an ESRD patient has completed an rights. Our regulation at 42 CFR Home Training by Modality) for the appropriate course of training. The § 494.70(7) requires a facility to inform following dialysis modalities: scope of training services that a certified patients about all treatment modalities’ • Home Hemodialysis Training ESRD facility must furnish to ESRD and settings, including but not limited • patients as a condition of coverage is to transplantation, home dialysis Intermittent Peritoneal Dialysis described at 42 CFR 494.100(a). For modalities, and in-facility hemodialysis. Training instance, 42 CFR 494.100(a)(2) states This includes the patient’s right to • Continuous Ambulatory Peritoneal that the training must be conducted by receive resource materials for dialysis Dialysis Training a registered nurse. For additional modalities not offered by the facility. • Continuous Cycling Peritoneal information on the requirements for We expect that all ESRD facilities Dialysis Training ESRD facilities in furnishing dialysis comply with this regulation and furnish training, see 42 CFR Part 494, and resource information on home We would expect that patients who additional information regarding home hemodialysis, even if this modality is elect self-dialysis or home dialysis dialysis training certification, see the not offered by the facility. When ESRD training will be good candidates for State Operations Manual, which may be facilities are certified for home dialysis these modalities and that they will be viewed on the Medicare Web site at the training we expect the facility to successful in completing the method of following link: http://www.cms.gov/ provide training throughout the self- training. This includes compliance with Medicare/Provider-Enrollment-and- dialysis or home dialysis experience (42 patient assessments as described in 42 Certification/ CFR 494.100). Self-dialysis or home CFR 494.80(a)(9) ‘‘Evaluation of the GuidanceforLawsAndRegulations/ dialysis training services and supplies patient’s abilities, interests, preferences, Dialysis.html. may include but are not limited to and goals, including the desired level of 42 CFR 494.70 (Condition: Patients’ personnel services; dialysis supplies, participation in the dialysis care rights) requires that facilities inform parenteral items used in dialysis, process; the preferred modality patients (or their representatives) of written training manuals and materials, (hemodialysis or peritoneal dialysis), their rights and responsibilities when and ESRD-related items and services. and setting (for example, home dialysis), they begin their treatment and protect We discuss Medicare’s training and the patients expectations of care and provide for the exercise of those policies in Table 5 (Medicare’s Self or outcomes.’’

TABLE 5—MEDICARE’S SELF OR HOME TRAINING BY MODALITY

Home Hemodialysis (HHD) Training ...... HHD training is generally furnished in 4 weeks. Medicare will pay the ESRD facility for up to 25 HHD training sessions. In some HHD programs, the dialysis caregiver is trained to per- form the dialysis treatment in its entirety and the patient plays a secondary role. In other programs, the patient performs most of the treatment and is only aided by a helper. Intermittent Peritoneal Dialysis (IPD) Training ... IPD training is generally furnished in 4 weeks. Medicare will pay the ESRD facility for up to 15 PD training sessions. In the IPD program, the patient’s caregiver is usually trained to carry out the dialysis care. The patient plays a minimal role, as most are unable to perform self- care dialysis because of other debilitating conditions. Continuous Ambulatory Peritoneal Dialysis CAPD training is generally furnished in 2 weeks. Medicare will pay the ESRD facility for up to (CAPD) Training. 15 PD training sessions. In CAPD programs both the patient and the caregiver are trained. Continuous Cycling Peritoneal Dialysis (CCPD) CCPD training is generally furnished in 2 weeks. Medicare will pay the ESRD facility for up to Training. 15 PD training sessions. In CCPD programs both the patient and the caregiver are trained.

b. Payment Methodology The add-on payment adjustment is the elements of home dialysis, and if additional training is being done for a In our CY 2011 ESRD PPS final rule also for retraining sessions after a change of equipment or a change in (75 FR 49062 through 49064), we stated patient or caregiver has completed the that the ESRD PPS base rate alone does initial training program and if the modality, fewer sessions would be not account for the staffing costs patient continues to be an appropriate necessary because of the transferability associated with training treatments candidate for self or home dialysis of certain basic skills for home dialysis. furnished by a registered nurse. Thus, modalities. We would expect that most We discuss our policy for retraining we finalized the training add-on Medicare beneficiaries receive sessions in the Medicare Benefit Policy payment adjustment, to be added on to retraining sessions when they receive Manual, Publication 100–02, Chapter the ESRD PPS base rate, when one-on- new equipment, have a change in 11. If a Medicare beneficiary exceeds the one self or home dialysis training is caregiver, or modality change. The maximum amount of training sessions furnished by a nurse, working for a ESRD facility may not bill Medicare for based upon their modality, and, if they Medicare-certified training facility, to a retraining services when they install continue to be a good candidate for Medicare beneficiary for either home dialysis equipment or furnish home modalities, additional training hemodialysis or the peritoneal dialysis monitoring services. For example, an sessions or retraining sessions may be training modalities listed above. ESRD facility nurse may not bill for paid by Medicare with medical Likewise, we noted in our CY 2012 retraining sessions when they update a justification. In such cases, the ESRD ESRD PPS final rule (76 FR 70252), that home dialysis patient’s treatment facility must indicate the medical ‘‘ESRD facilities receive a per-treatment record, order monthly supplies, or justification on the claim for the training payment that accounts for case-mix, instruct the patient on the use of a new or retraining session submitted for geographic location, low-volume, and medication for the treatment of payment. Because the requirement of outlier payment regardless [of whether] infection. When retraining sessions are medical justification is specific to the the patient receives dialysis at home or furnished to a patient or caregiver, there patient’s training needs, circumstances in the facility, plus the training add- is an expectation that the patient or (such as a change in caregiver), or on[,]’’ if applicable. caregiver is already knowledgeable of condition (change in modality), we

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would not expect that an ESRD facility necessary for a successful transition to On January 3, 2013, Congress enacted would routinely bill Medicare for a home dialysis modality and the the American Taxpayer Relief Act of training or retraining sessions on any percentage of the payment that should 2012 (ATRA). Section 632(b) of ATRA patient. be held back. states that the Secretary ‘‘may not For CY 2011, we finalized the amount implement the policy under section for the training add-on adjustment at D. Delay of Payment for Oral-Only Drugs Under the ESRD PPS 413.176(f)(6) of title 42, Code of Federal $33.44 per treatment, and noted that Regulations (relating to oral-only ESRD- this amount would be added to the Section 1881(b)(14)(A)(i) of the Act, as related drugs in the ESRD prospective ESRD PPS base rate payment when a added by section 153(b) of the Medicare payment system), prior to January 1, training treatment is furnished by the Improvements for Patients and 2016.’’ Accordingly, payment for oral- ESRD facility. In addition, we noted that Providers Act of 2008 (MIPPA), requires only drugs will not be made under the because the training add-on adjustment the Secretary to implement a payment ESRD PPS before January 1, 2016, is directly related to nursing salaries system under which a single payment is instead of on January 1, 2014, which is and that nursing salaries differ greatly made to a provider of services or a renal the date originally finalized for payment based on geographic location, we would dialysis facility for ‘‘renal dialysis of ESRD-related oral-only drugs under adjust the training add-on payment by services’’ in lieu of any other payment. the ESRD PPS (75 FR 49044). We the geographic area wage index Section 1881(b)(14)(B) defines renal propose to pay for oral-only drugs applicable to the ESRD facility. (For dialysis services, and subclause (iii) of consistent with section 632(b) of ATRA further discussions on wage indexes, that section states that these services and implement this delay by revising please see section II.B.4. of this include ‘‘other drugs and biologicals the effective date for providing payment proposed rule.) When home dialysis that are furnished to individuals for the for oral-only ESRD-related drugs under training sessions are furnished to a treatment of ESRD and for which the ESRD PPS at section 42 CFR Medicare beneficiary by a Medicare- payment was (before the application of 413.174(f)(6) from January 1, 2014 to certified training facility, Medicare will this paragraph) made separately under January 1, 2016. make the ESRD PPS computed base rate this title, and any oral equivalent form Because we propose that oral-only payment with all applicable of such drug or biological[.]’’ We drugs will be included in the ESRD PPS adjustments, and then the separate add- interpreted this provision as including starting in CY 2016, we also propose to on payment for self or home dialysis not only injectable drugs and biologicals change the reference to January 1, 2014 training. (other than ESAs, which are included in section 42 CFR 413.237(a)(1)(iv) to In our CY 2013 ESRD final rule (77 FR under clause (ii)) used for the treatment January 1, 2016. In the CY 2011 ESRD 67468 through 67469), we addressed of ESRD, but also all non-injectable PPS final rule (75 FR 49138), we defined comments on Medicare’s self and home drugs furnished under Title XVIII. We outlier services as including oral-only dialysis training policies under the also concluded that, to the extent ESRD- drugs effective January 1, 2014. In ESRD PPS. In that final rule, we stated related oral-only drugs do not fall addition to modifying the date on which that commenters were concerned that within clause (iii) of the statutory oral-only drugs will be eligible for the payment for home dialysis training definition of renal dialysis services, outlier payments, we also propose to is insufficient and does not reflect the such drugs would fall under clause (iv), clarify our regulation at 413.237(a)(1)(iv) and constitute other items and services true costs of training and that they by changing the word ‘‘excluding’’ to used for the treatment of ESRD that are indicated various ranges of time ‘‘including’’ to make clear that oral-only not described in clause (i). Accordingly, required for home training in terms of drugs are ESRD outlier services for time per day and number of training we defined ‘‘renal dialysis services’’ at purposes of the outlier policy effective sessions. At that time, we responded to 42 CFR 413.174 as including, among January 1, 2016, consistent with the those comments by confirming that other things, ‘‘[o]ther items and services policy we established in the CY 2011 CMS will continue to monitor and that are furnished to individuals for the final rule (75 FR 49138). analyze trends in home dialysis treatment of ESRD and for which training, but that we believe our payment was (prior to January 1, 2011) III. End-Stage Renal Disease (ESRD) payment methodology is adequate for made separately under title XVIII of the Quality Incentive Program (QIP) ESRD facilities furnishing training Act (including drugs and biologicals A. Background services. with only an oral form).’’ Although oral- In this proposed rule we are seeking only drugs are included in the For more than 30 years, monitoring comments on the costs associated with definition of renal dialysis services, in the quality of care provided to patients furnishing self or home dialysis the CY 2011 ESRD PPS final rule, we with end-stage renal disease (ESRD) by training. We request comments on the also finalized a policy to delay payment dialysis facilities has been an important elements of PD vs. HHD training for these drugs under the PPS until component of the Medicare ESRD sessions, specifically the costs of January 1, 2014 (75 FR 49044). We payment system. The ESRD quality furnishing such training, the stated that there were certain advantages incentive program (QIP) is the most appropriate number of training sessions, to delaying the implementation of recent step in fostering improved and the duration of the training payment for oral-only drugs, including patient outcomes by establishing sessions. Lastly, we are also seeking allowing ESRD facilities additional time incentives for dialysis facilities to meet comments on a ‘‘holdback’’ payment to make operational changes and or exceed performance standards methodology, which we discussed in logistical arrangements in order to established by CMS. The ESRD QIP is the CY 2011 ESRD PPS final rule (75 FR furnish oral-only ESRD-related drugs authorized by section 1881(h) of the 49063). Under this methodology, a and biologicals to their patients. Social Security Act (the Act), which was portion of the training payments would Accordingly, 42 CFR 413.174(f)(6) added by section 153(c) of Medicare be withheld from the ESRD facility until provides that payment to an ESRD Improvements for Patients and the ESRD patient demonstrates that they facility for renal dialysis service drugs Providers Act (MIPPA). CMS have successfully transitioned to a home and biologicals with only an oral form established the ESRD QIP for payment modality. Specifically, we are seeking is incorporated into the PPS payment year (PY) 2012, the initial year of the comments on the length of time rates effective January 1, 2014. program in which payment reductions

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were applied, in two rules published in quality for our VBP programs, and to The following measures seek to evaluate the Federal Register on August 12, link the aims of the National Quality facilities on the clinical quality of care: 2010, and January 5, 2011 (75 FR 49030 Strategy with our payment policies on a • To evaluate anemia management: and 76 FR 628, respectively). national scale. We are working in Æ Hemoglobin Greater Than 12 g/dL, Subsequently, on November 10, 2011, partnership with beneficiaries, a clinical measure CMS published a rule in the Federal providers, advocacy groups, the Æ Patient Informed Consent for Register outlining the PY 2013 and PY National Quality Forum (NQF), the Anemia Treatment, a clinical 2014 ESRD QIP requirements (76 FR Measures Application Partnership, measure* 70228). On November 9, 2012, CMS operating divisions within the Æ Pediatric Iron Therapy, a reporting published a rule in the Federal Register Department of Health and Human measure* outlining the ESRD QIP requirements Services (HHS), and other stakeholders Æ Anemia Management, a reporting for PY 2015 and future payment years to develop new measures where gaps measure (revised) (77 FR 67450). exist, refine measures requiring • To evaluate dialysis adequacy: Section 1881(h) of the Act requires adjustment, and remove measures when Æ A Kt/V measure for adult the Secretary to establish an ESRD QIP appropriate. We are also collaborating hemodialysis patients, a clinical by (i) selecting measures; (ii) with stakeholders to ensure that the measure establishing the performance standards ESRD QIP serves the needs of our Æ A Kt/V measure for adult peritoneal that apply to the individual measures; beneficiaries and also advances the dialysis patients, a clinical measure (iii) specifying a performance period goals of the National Quality Strategy to Æ A Kt/V measure for pediatric with respect to a year; (iv) developing a coordinate healthcare delivery, reduce hemodialysis patients, a clinical methodology for assessing the total healthcare costs, enhance patient measure performance of each facility based on satisfaction, promote healthy • To determine whether patients are the performance standards with respect communities, and increase patient treated using the most beneficial type to the measures for a performance safety.1 of vascular access: period; and (v) applying an appropriate We believe that the development of an Æ An arterial venous (AV) fistula payment reduction to facilities that do ESRD QIP that is successful in measure, a clinical measure not meet or exceed the established Total supporting the delivery of high-quality Æ A catheter measure, a clinical Performance Score (TPS). This proposed healthcare services in dialysis facilities measure rule discusses each of these elements is paramount. We seek to adopt • To address effective bone mineral and our proposals for their application measures for the ESRD QIP that promote metabolism management: to PY 2016 and future payment years of better, safer, and more efficient care. Æ Hypercalcemia, a clinical measure* the ESRD QIP. As of January 1, 2014, Our measure development and selection Æ Mineral Metabolism, a reporting ESRD facilities located in Guam, activities for the ESRD QIP take into American Samoa, and the Northern measure (revised) account national priorities such as those • Mariana Islands will be paid under the established by the National Priorities To address patient safety: Æ ESRD PPS. Under section 1881(h)(1)(A) Partnership (http:// National Healthcare Safety Network of the Act, these facilities will receive a www.nationalprioritiespartnership.org/), (NHSN) Bloodstream Infection in reduction to their ESRD PPS payments, HHS Strategic Plan (http:// Hemodialysis Outpatients, a beginning with January 1, 2014 dates of www.hhs.gov/secretary/about/priorities/ clinical measure* service, if they do not meet the priorities.html), the National Strategy • To address patient-centered requirements of the ESRD QIP. for Quality Improvement in Healthcare experience: Æ B. Considerations in Updating and (http://www.healthcare.gov/center/ In-Center Hemodialysis Consumer Expanding Quality Measures Under the reports/quality03212011a.html), and the Assessment of Healthcare Providers ESRD QIP for PY 2016 and Subsequent HHS National Action Plan to Prevent and Systems (ICH CAHPS), a PYs Healthcare Associated Infections (HAIs) reporting measure** (http://www.hhs.gov/ash/initiatives/hai/ • To gather data regarding 1. Value-Based Purchasing (VBP) esrd.html). To the extent feasible and comorbidities: Overview practicable, we have sought to adopt Æ Comorbidity, a reporting measure* Throughout the past decade, Medicare measures that have been endorsed by a ** Indicates that the measure is new to the has been transitioning from a program national consensus organization, ESRD QIP. that pays for healthcare based on recommended by multi-stakeholder *** Indicates that the measure is newly particular services furnished to a organizations, and developed with the expanded or converted to a clinical measure beneficiary to a program that ties input of providers, beneficiaries, and in the ESRD QIP. payments to providers and suppliers other stakeholders. At this time, we are not proposing to based on the quality of services they 2. Brief Overview of Proposed PY 2016 adopt measures that address care deliver. By paying for the quality of care Measures coordination, efficiency, population and rather than quantity of care, we believe community health, or cost of care. For the PY 2016 ESRD QIP and future we are strengthening the healthcare However, we are soliciting comments in payment years, we are proposing a total system by focusing on better care and this proposed rule on potential of 14 measures. We believe that the PY lower costs through improvement, measures that would cover these areas. 2016 ESRD QIP proposed measures prevention and population health, We welcome further comments on these promote high-quality care for patients expanded healthcare coverage, and and other potential measures for future with ESRD, and also strengthen the enterprise excellence—while also program years. advancing the National Strategy for goals of the National Quality Strategy. Quality Improvement in Health Care 3. Measures Application Partnership 1 2012 Annual Progress Report to Congress: Review (National Quality Strategy). CMS is National Strategy for Quality Improvement in currently working to update a set of Health Care, http://www.ahrq.gov/ Section 1890A(a)(1) of the Act, as domains and specific measures of workingforquality/nqs/nqs2012annlrpt.pdf. added by section 3014(b) of the

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Affordable Care Act, requires the entity measures were reviewed by the basis for the Patient Informed Consent with a contract under section 1890(a) of Measures Application Partnership. Of for Anemia Treatment clinical the Act (currently the NQF) to convene these measures, a subset is related to a measure) multi-stakeholder groups to provide number of proposed new measures for We have taken comments from the input to the Secretary on the selection the PY 2016 ESRD QIP (one each for Measures Application Partnership and of quality and efficiency measures for anemia management, hypercalcemia, the NQF into consideration for the PY use in certain programs. Section infection monitoring, comorbidity 2016 ESRD QIP. In the measures section 1890A(a)(2) of the Act requires the reporting, and ESA usage). The below, we further discuss these Secretary to make available to the public Measures Application Partnership considerations, describe our proposals (not later than December 1 of each year) supported the following: for the PY 2016 ESRD QIP, and provide • a list of quality and efficiency measures NQF-endorsed measure NQF #1454: rationale for why we believe it is that are under consideration for use in Proportion of patients with appropriate to propose the measures at certain programs. Section 1890A(a)(3) of hypercalcemia this time. the Act requires the entity with a • NQF-endorsed measure NQF #1433: contract under section 1890(a) of the Use of Iron Therapy for Pediatric C. Proposed Measures for the PY 2016 Act to transmit the input of the multi- Patients (which forms the basis for the ESRD QIP and Subsequent PYs of the stakeholder groups to the Secretary not proposed Pediatric Iron Therapy ESRD QIP later than February 1 of each year, reporting measure) We previously finalized ten measures • beginning in 2012. Section 1890A(a)(4) NQF-endorsed measure NQF #1460: in the CY 2013 ESRD PPS final rule for of the Act requires the Secretary to take National Healthcare Safety Network the PY 2015 ESRD QIP and future PYs into consideration the input of the (NHSN) Bloodstream Infection (77 FR 67471), and these measures are multi-stakeholder groups in selecting Measure (which forms the basis for summarized in Table 6 below. We are quality and efficiency measures. The the proposed Bloodstream Infection in proposing to continue to use nine of the Measures Application Partnership is the Hemodialysis Outpatients clinical ten measures for the PY 2016 ESRD QIP public/private partnership comprised of measure) and future payment years, modifying • multi-stakeholder groups convened by NQF-endorsed measure NQF #0369: three of the measures as follows: NQF for the primary purpose of Dialysis Facility Risk-adjusted • ICH CAHPS (reporting measure): providing input on measures as required Standardized Mortality Ratio (the Expand by sections 1890A(a)(1) and (3) of the proposed Comorbidity reporting • Mineral Metabolism (reporting Act. The Measures Application measure may assist in calculating measure): Revise Partnership’s input on the quality and performance on this measure, should • Anemia Management (reporting efficiency measures under consideration we propose to adopt it in the future) measure): Revise for adoption in CY 2013 was transmitted The Measures Application Partnership For the PY 2016 ESRD QIP and future to the Secretary on February 1, 2013, supported the direction of the following payment years, we are also proposing to and is available at (http:// measures: add three new clinical measures (Patient www.qualityforum.org/ • Informed Consent for Anemia _ NQF-endorsed measure NQF #1463: Setting Priorities/Partnership/ Treatment, Hypercalcemia, and NHSN _ _ Standardized Hospitalization Ratio for MAP Final Reports.aspx). As required Admissions (the proposed Bloodstream Infection in Hemodialysis by section 1890A(a)(4) of the Act, we Comorbidity reporting measure may Outpatients), and two new reporting considered these recommendations in assist in calculating performance on measures (Pediatric Iron Therapy, and selecting quality and efficiency this measure, should we propose to Comorbidity). (See Table 7) We believe measures for the ESRD QIP. adopt it in the future) that, collectively, these measures will We publicly made available a number • Measures Application Partnership continue to promote improvement in of measures in accordance with section #2774: Blood Transfusion dialysis care in the PY 2016 ESRD QIP 1890A(a)(2) of the Act, and these Appropriateness (which forms the and in future payment years.

TABLE 6—MEASURES ADOPTED FOR THE PY 2015 ESRD QIP AND FUTURE PAYMENT YEARS

NQF No. Measure title and description

N/A ...... Anemia Management: Hgb >12. Percentage of Medicare patients with a mean hemoglobin value greater than 12 g/dL. 0249 ...... Hemodialysis Adequacy: Minimum delivered hemodialysis dose. Percent of hemodialysis patient-months with spKt/V greater than or equal to 1.2. 0318 ...... Peritoneal Dialysis Adequacy: Delivered dose above minimum. Percent of peritoneal dialysis patient-months with spKt/V greater than or equal to 1.7 (dialytic + residual) during the four month study period. 1423 ...... Pediatric Hemodialysis Adequacy: Minimum spKt/V. Percent of pediatric in-center hemodialysis patient-months with spKt/V greater than or equal to 1.2. 0257 ...... Vascular Access Type: Arterial Venous (AV) Fistula. Percentage of patient-months on hemodialysis during the last hemodialysis treatment of the month using an autogenous AV fistula with two needles. 0256 ...... Vascular Access Type: Catheter >= 90 days. Percentage of patient-months for patients on hemodialysis during the last hemodialysis treatment of month with a catheter continuously for 90 days or longer prior to the last hemodialysis session. N/A 1 ...... National Healthcare Safety Network (NHSN) Dialysis Event Reporting. Number of months for which facility reports NHSN Dialysis Event data to the Centers for Disease Control and Prevention (CDC). N/A 2 ...... In-Center Hemodialysis Consumer Assessment of Healthcare Providers and Systems (ICH CAHPS) Survey Administration +. Attestation that facility administered survey in accordance with specifications.

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TABLE 6—MEASURES ADOPTED FOR THE PY 2015 ESRD QIP AND FUTURE PAYMENT YEARS—Continued

NQF No. Measure title and description

N/A 3 ...... Mineral Metabolism Reporting +. Number of months for which facility reports uncorrected serum calcium and phosphorus for each Medicare patient. N/A ...... Anemia Management Reporting +. Number of months for which facility reports ESA dosage (as applicable) and hemoglobin/hematocrit for each Medicare pa- tient. 1 We note that an NQF-endorsed bloodstream infection measure (NQF#1460) exists. 2 We note that a related measure utilizing the results of this survey has been NQF-endorsed (#0258). It is our intention to use this measure in future years of the ESRD QIP. We believe that a reporting measure is a necessary step in reaching our goal to implement NQF#0258. 3 We note that this measure is based upon a current NQF-endorsed serum phosphorous measure (#0255), and a calcium monitoring measure that NQF had previously endorsed (#0261). + Indicates a measure we are proposing to revise for PY 2016 and future years of the ESRD QIP.

TABLE 7—NEW MEASURES PROPOSED FOR THE PY 2016 ESRD QIP AND FUTURE PAYMENT YEARS

NQF No. Measure title

N/A ...... Anemia of chronic kidney disease: Patient Informed Consent for Anemia Treatment. N/A 1 ...... Use of Iron Therapy for Pediatric Patients Reporting. 1454 ...... Proportion of Patients with Hypercalcemia. N/A 2 ...... NHSN Bloodstream Infection in Hemodialysis Outpatients. N/A 3 ...... Comorbidity Reporting. 1 We note that the NQF has previously endorsed a pediatric iron therapy measure (#1433) upon which this measure is based. 2 We note that the NQF has previously endorsed a National Healthcare Safety Network (NHSN) bloodstream infection measure (#1460) upon which this measure is based. 3 We note that the NQF has previously endorsed risk-adjusted hospitalization and mortality measures (#1463 and #0369). The proposed Co- morbidity reporting measure may assist in calculating performance on these measures, should we propose to adopt them in the future.

1. PY 2015 Measures Continuing in PY The technical specifications for these based on how facilities perform on the 2016 and Future Payment Years measures can be found at: http:// CAHPS survey. In PY 2015, we www.dialysisreports.org/ continued to use a reporting measure We are continuing using six measures ESRDMeasures.aspx. related to the ICH CAHPS survey, adopted in the CY 2013 ESRD PPS final requiring that facilities attest they had rule for the PY 2016 ESRD QIP and 2. Proposal To Expand One PY 2015 administered the survey according to future payment years of the program. Measure and Revise Two PY 2015 the specifications set by the Agency for We are also continuing to use two Measures for PY 2016 and Subsequent Healthcare Research and Quality measure topics adopted. Proposals for Payment Years (AHRQ), but not requiring the scoring these measures are discussed in As stated earlier, we believe it is submission of survey data. We required sections III.C.5 through III.C.11 and important to continue using measures that facilities attest by January 31, 2014 III.C.13. For the reasons stated in the CY from one payment year to the next to administering the ICH CAHPS survey 2012 ESRD PPS final rule (76 FR 70262, payment year of the program to during the performance period (77 FR 70264 through 70265, 70269) and in the encourage continued improvements in 67480 through 67481). CY 2013 ESRD PPS final rule (77 FR patient care. Therefore, we are We are taking several steps to develop 67478 through 67480, 67487 through proposing to expand and revise the the baseline data necessary to propose 67490), we will continue using: measures discussed below that we and implement NQF #0258 as a clinical 1. (i) The Hemoglobin Greater than 12 finalized in the CY 2013 ESRD PPS final measure in the PY 2018 ESRD QIP. We g/dL measure. rule. For all measures except for ICH expect to be able to certify ICH CAHPS The Dialysis Adequacy measure topic, CAHPS reporting measure, these survey vendors beginning in early CY which is comprised of proposed and revised requirements 2014. We are also building the capacity 2. (a) Hemodialysis Adequacy Clinical would apply to the measures for PY to accept survey data, developing Performance Measure III: Hemodialysis 2016 and future payment years. For the detailed specifications for administering Adequacy—HD Adequacy—Minimum ICH CAHPS measure, certain proposed the ICH–CAHPS survey in light of Delivered Hemodialysis Dose (NQF expanded requirements would apply to questions vendors asked about previous #0249), PY 2016, and some additional proposed procedures, and developing 3. (b) Peritoneal Dialysis Adequacy requirements would apply to PY 2017 specifications for submitting data to Clinical Performance Measure III— and future payment years. CMS, such as file specifications, Delivered Dose of Peritoneal Dialysis structure and instructions that the a. Proposed Expanded ICH CAHPS survey vendors will use. We have taken Above Minimum (NQF #0318); and Reporting Measure 4. (c) Minimum spKt/V for Pediatric these steps in order to make it possible Hemodialysis Patients (NQF #1423); and Patient-centered experience is an for facilities to contract with third party important measure of the quality of vendors to transfer survey data results to The Vascular Access Type measure patient care. It is a component of the CMS, so that we might collect the topic, which is comprised of National Quality Strategy. The NQF baseline data necessary to propose and 5. (a) Vascular Access Type: Arterial endorses and the Measures Application implement NQF #0258. Venous (AV) Fistula (NQF #0257); and Partnership supports a clinical measure For PY 2016, we are proposing that 6. (b) Vascular Access Type: Catheter on this topic, NQF #0285: CAHPS In- each facility arrange by July 2014 for a >= 90 days (NQF #0256). Center Hemodialysis Survey, which is CMS-approved vendor to conduct the

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ICH CAHPS survey according to CMS and future payment years, we are now mitigate cherry-picking by ensuring that (rather than AHRQ) specifications, proposing to include home peritoneal one patient does not skew a facility’s available at the ICH CAHPS Web site patients in the Mineral Metabolism score (77 FR 67474). (https://ichcahps.org). Facilities will reporting measure. Therefore, we are We welcome comments on this need to register on the https:// proposing that a qualifying case for this proposal. Technical specifications for ichcahps.org Web site in order to measure will be defined as (i) an in- this proposed measure can be found at: authorize the CMS-approved vendor to center Medicare patient who had been http://www.dialysisreports.org/pdf/esrd/ administer the survey and submit data treated at least seven times by the public-measures/MineralMetabolism- on their behalf. Each facility must then facility; and (ii) a home dialysis Hypercalcemia-2016NPRM.pdf. administer (via its vendor) the survey Medicare patient for whom the facility c. Proposed Revised Anemia once during the proposed performance submitted a claim at least once per Management Reporting Measure period and, by 11:59 ET on January 28, month. 2015, report the survey data to CMS Second, if the proposed Section 1881(h)(2)(A)(i) requires using the specifications on the ICH Hypercalcemia clinical measure ‘‘measures on anemia management that CAHPS Web site. (described below) is finalized based on reflect the labeling approved by the For PY 2017 and subsequent payment public comment, then we believe it Food and Drug Administration (FDA) years, we are proposing similar would be redundant, and unduly for such management.’’ In the CY 2013 requirements except that each facility burdensome, for facilities to also ESRD PPS final rule, we finalized an must arrange to have the survey continue reporting serum calcium levels Anemia Management reporting measure administered twice during each as part of the mineral metabolism for the reasons stated in that final rule performance period and must report the reporting measure. Accordingly, in light (77 FR 67491 through 67495). However, data (via its CMS-approved vendor) to of our proposal to adopt the we inadvertently excluded home CMS by the date specified on the ICH hypercalcemia measure, we are peritoneal patients from the measure CAHPS Web site. proposing to change the specifications specifications. For PY 2016 and future Although we have required that other for the mineral metabolism measure payment years, we are now proposing to types of providers, including home such that it no longer requires facilities include home peritoneal patients in the health agencies and acute care hospitals, to report serum calcium levels. We Anemia Management reporting measure. administer and submit CAHPS survey welcome comments on this proposal, Therefore, we are proposing that a data on a monthly, continuous basis, we and in particular on whether we should qualifying case for this measure will be recognize that there are generally low retain the reporting of serum calcium defined as (i) an in-center Medicare rates of turnover in dialysis facility levels as part of the mineral metabolism patient who had been treated at least patient populations. For this reason, we reporting measure if we do not finalize seven times by the facility; and (ii) a do not see the same need to require the proposed hypercalcemia measure. home dialysis Medicare patient for facilities to administer the survey as As described in more detail below whom the facility submitted a claim at frequently and, as proposed above, (Proposed Minimum Data for Scoring least once per month. would require facilities to administer Measures), we are also proposing to We believe that there are the survey once during the performance eliminate the 11-case minimum for this circumstances that might make it period for PY 2016 (in order to allow measure, which was finalized in the CY challenging to draw a sample from facilities enough time to select a vendor) 2013 ESRD PPS final rule at 77 FR certain patients, and therefore, we are and twice for subsequent payment 67486. Because of the proposed revised proposing that, in order to receive full years. We believe that this frequency of case minimum, and because there are points on this measure, facilities that survey administration will enable us to circumstances that might make it treat 11 or more qualifying cases over gather sufficient data to adopt in future challenging for a facility to draw a the entire performance period must rulemaking, a clinical version of this sample from certain patients, such as report at the lesser of the 50th percentile measure without unduly burdening those who are admitted to hospital of facilities in CY 2013 or 99 percent per facilities. We request comment on this during the month, we are proposing month, on a monthly basis for each proposal. The technical specifications that, in order to receive full points on month of the performance period. In for this measure are located at http:// this measure, facilities that treat 11 or addition, we are proposing that, in order www.dialysisreports.org/pdf/esrd/ more qualifying cases over the entire to receive full points on this measure, public-measures/ICHCAHPS- performance period will have to report facilities that treat fewer than 11 2016NPRM.pdf. at the lesser of the 50th percentile of qualifying cases during the performance facilities in CY 2013 or 97 percent per period must report on a monthly basis b. Proposed Revised Mineral month, on a monthly basis, for each the specified levels for all but one Metabolism Reporting Measure month of the performance period. We qualifying case. If a facility only has one Adequate management of bone are further proposing that facilities that qualifying case during the entire mineral metabolism and disease in treat fewer than 11 qualifying cases performance period, a facility will have ESRD patients continues to be a high during the performance period will have to attest to that fact in CROWNWeb by priority because it can cause severe to report on a monthly basis the January 31 of the year following the consequences such as osteoporosis, specified levels for all but one performance period in order to avoid osteomalacia, and hyperparathyroidism. qualifying case. If a facility only has one being scored on the measure. We make The PY 2015 ESRD QIP has a reporting qualifying case during the entire this proposal because we seek to ensure measure focused on mineral metabolism performance period, a facility will have the highest quality of care regardless of (77 FR 67484 through 67487). We are to attest to that fact in CROWNWeb by facility size, and because we seek to proposing two changes for PY 2016 and January 31 of the year following the mitigate cherry-picking by ensuring that future payment years. First, when we performance period in order to avoid one patient does not skew a facility’s finalized the measure in the CY 2013 being scored on the measure. We make score (77 FR 67474). ESRD PPS final rule, we inadvertently this proposal because we seek to ensure Technical specifications for this excluded home peritoneal patients from the highest quality of care regardless of proposed measure can be found at: the measure specifications. For PY 2016 facility size, and because we seek to http://www.dialysisreports.org/pdf/esrd/

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public-measures/AnemiaManagement- FDA-approved labeling 2 for ESAs and bone mineral metabolism and disease in Reporting-2016NPRM.pdf. We request Kidney Disease: Improving Global ESRD patients. comment on this proposal to revise the Outcomes (KDIGO) Anemia Elevated serum calcium level (or Anemia Management reporting measure. Management Guidelines 3 that highlight hypercalcemia) has been shown to be the evolving understanding of risks significantly associated with increased 3. New Measures Proposed for PY 2016 associated with ESA therapy, as all-cause mortality in patients with and Subsequent Payment Years of the required in section 1881(h)(2)(A)(i) of advanced Chronic Kidney Disease ESRD QIP the Act. We believe it is appropriate for (CKD). Both KDIGO Clinical Practice As the program evolves, we believe it facilities and physicians to ensure that Guideline for the Diagnosis, Evaluation, is important to continue to evaluate and steps are taken to make patients aware Prevention, and Treatment of Chronic expand the measures selected for the of those potential risks within the Kidney Disease—Mineral and Bone ESRD QIP. Therefore, for the PY 2016 context of treatment for anemia. For Disorder (CKD—MBD) and the National ESRD QIP and future payment years, we these reasons, we are proposing to adopt Kidney Foundation’s Kidney Disease are proposing to adopt five new this measure (Anemia of Chronic Outcomes Quality Initiative (KDOQI) measures. The proposed new measures Kidney Disease: Patient Informed support maintaining serum calcium include two measures on anemia Consent for Anemia Treatment) for the levels within reference ranges. management, one measure on mineral ESRD QIP in PY 2016 and future Hypercalcemia is also a proxy for metabolism, one measure on payment years of the program. In order vascular and/or valvular calcification 45 bloodstream infection monitoring, and to meet the requirements of this and subsequent risk for cardiovascular one measure on comorbidities. proposed measure, facilities must attest deaths. We previously proposed a in CROWNWeb for each qualifying a. Proposed Anemia Management hypercalcemia clinical measure for the patient, on an annual basis, that Clinical Measure Topic and Measures PY 2015 ESRD QIP (77 FR 40973 informed consent was obtained from through 40974), but decided not to Section 1881(h)(2)(A)(i) of the Act that patient, or that patient’s legally finalize the measure because we lacked states that the measures specified for the authorized representative, during the baseline data that could be used to ESRD QIP are required to include performance period. We propose that calculate performance standards, measures on ‘‘anemia management that qualifying cases for this measure would achievement thresholds, and reflect the labeling approved by the be defined as patients who received benchmarks (77 FR 67490 through Food and Drug Administration for such dialysis in the facility for 30 days or 67491). We now possess enough management.’’ For PY 2016 and future more. The proposed deadline for baseline data to calculate these values. payment years, we are proposing to reporting these attestations for the PY Therefore, we are proposing to adopt the create a new anemia management 2016 ESRD QIP will be January 31, 2015 NQF-endorsed measure NQF #1454: clinical measure topic, which consists or, if that is not a regular business day, Proportion of Patients with of one measure initially finalized in the the first business day thereafter. Missing Hypercalcemia, for PY 2016 and future PY 2012 ESRD QIP final rule and most attestation data for a patient will be payment years of the ESRD QIP. recently finalized for PY 2015 and interpreted as failure to obtain informed The proposed Hypercalcemia measure future PYs in the CY 2013 ESRD PPS consent from that patient. assesses the number of patients with final rule, and one new proposed We welcome comments on this uncorrected serum calcium greater than measure, described below. We note that, proposed measure. Technical 10.2 mg/dL for a 3-month rolling specifications for this proposed measure like other measure topics, we are average. (‘‘Uncorrected’’ means not can be found at: http:// proposing that the Anemia Management corrected for serum albumin www.dialysisreports.org/pdf/esrd/ clinical measure topic consist only of concentration.) In order to enable us to public-measures/AnemiaManagement- clinical and not reporting measures. calculate this measure, each facility will InformedConsent-2016NPRM.pdf. i. Anemia Management: Hgb>12 be required to enter in CROWNWeb, on For the PY 2016 ESRD QIP and future b. Hypercalcemia a monthly basis, an uncorrected calcium payment years of the program, we are Section 1881(h)(2)(A)(iii)(II) of the Act level for each in-center and home proposing to include the current states that the measures specified for the dialysis patient over the age of eighteen. Hgb>12 measure in a new Anemia ESRD QIP shall include other measures Performance on this measure is Management Clinical Measure Topic. In as the Secretary specifies, including, to expressed as a proportion of patient- the event that the Patient Informed the extent feasible, measures of bone months for which the 3-month rolling Consent for Anemia Treatment measure mineral metabolism. Abnormalities of average exceeds 10.2 mg/dL. The described below is not finalized, we bone mineral metabolism are numerator is the total number of eligible would retain the Hgb>12 measure as an exceedingly common, and contribute patient-months where the 3-month independent measure. We welcome significantly to morbidity and mortality rolling average is greater than 10.2 mg/ comments on this proposal. in patients with advanced Chronic dL and the demoninator is the total Kidney Disease (CKD). Many studies number of eligible patient-months. We ii. Anemia of Chronic Kidney Disease: have associated disorders of mineral are proposing that facilities would begin Patient Informed Consent for Anemia metabolism with mortality, fractures, to submit data on this measure based on Treatment cardiovascular disease, and other January 2014 uncorrected serum This is a measure of the proportion of morbidities. Therefore, we believe it is dialysis patients for whom a facility critical to adopt a clinical measure that 4 Wang A, Woo J, Law C, et al. Cardiac Valve Calcification as an Important Predictor for All- attests that risks, potential benefits, and encourages adequate management of Cause Mortality and Cardiovascular Mortality in alternative treatment options for anemia Long-Term Peritoneal Dialysis Patients: A were evaluated, and that the patient 2 http://www.fda.gov/Drugs/DrugSafety/ Prospective Study. J Am. S. Nephrology 2011 participated in the decision-making ucm259639.htm. (14/1): 159–168. 3 Kidney Disease: Improving Global Outcomes 5 Wang A, Ho S, Wang M, et al. Cardiac Valvular regarding an anemia treatment strategy. (KDIGO) Anemia Work Group. KDIGO Clinical Calcification as a Marker of Atherosclerosis and We believe that this measure is Practice Guideline for Anemia in Chronic Kidney Arterial Calcification in End-stage Renal Disease. consistent with recent changes to the Disease. Kidney inter., Suppl. 2012 (2): 279–335. JAMA 2005 (165/3): 327–332.

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calcium levels but that we would patients have previously been excluded measure would be defined as in-center calculate the first 3-month rolling from all anemia management measures, and home dialysis patients under the average for each eligible patient in limiting the participation of dialysis age of eighteen. March 2014 using January, February, facilities with substantial numbers of As described in more detail below, we and March 2014 data. We would then pediatric patients in the ESRD QIP. In are proposing that each facility must calculate a new 3-month rolling average an effort to address this issue, and report data on the Use of Iron Therapy each successive eligible patient-month account for the quality of care dialysis for Pediatric Patients measure if it treats (April through December measure facilities provide to pediatric patients, one or more qualifying cases during the calculations) by dropping the oldest we are proposing to adopt a pediatric performance period. Because this month’s data and using instead the iron therapy measure for the ESRD QIP reporting measure requires that a facility newest month’s data in the 3-month in PY 2016 and future payment years of enter data in CROWNWeb only once per period. The facility’s performance will the program. quarter for each patient, we believe that be determined by calculating the We considered proposing an NQF- the burden is appropriate and will not proportion of the 3-month averages endorsed clinical measure on the use of unduly impact small facilities, since it calculated monthly (March through iron therapy for pediatric patients as is proportionate to the number of December, each time using the latest part of the proposed Anemia patients that facilities treat. However, three months of data) for all eligible Management clinical measure topic for the same reasons stated in the final patients that was greater than 10.2 mg/ (NQF #1433: Use of Iron Therapy for description of the PY 2014 ESRD QIP dL. Pediatric Patients). This measure is an Mineral Metabolism measure (which Because we are proposing to adopt assessment of the percentage of all had a one patient minimum) (77 FR this measure not only for PY 2016, but pediatric hemodialysis and peritoneal 67472 through 67474), we are proposing also subsequent payment years, we also dialysis patients who received IV iron or that, in order to receive full points on propose that, beginning with the PY were prescribed oral iron within three this measure, facilities that treat 11 or 2017 program, we would measure months of attaining the following more qualifying cases over the hypercalcemia beginning in January of conditions: (i) Patient had hemoglobin performance period will have to report the applicable performance period. This less than 11.0 g/dL; (ii) patient had at the lesser of the 50th percentile of will allow us to have a 3-month rolling simultaneous values of serum ferritin facilities in CY 2013 or 97 percent per average for all months in the concentration less than 11.0; and (iii) quarter, for each quarter of the performance period. We propose that patient’s transferrin saturation (TSAT) performance period. We are proposing the 3-month rolling average rate for was less than 20 percent. Upon that facilities that treat fewer than 11 January would be calculated using the investigation, we discovered that there qualifying cases during the performance rates from November and December of were not enough patients who would period will have to report on a quarterly the previous year as well as January of qualify for this measure to establish basis the specified data elements for all that year. Likewise, we propose that the reliable baseline data that would allow but one qualifying case. If a facility only rate for February would be calculated us to propose to adopt this measure as has one qualifying case during the entire using the rates from December, January a clinical measure for PY 2016. We also performance period, a facility will have and February to calculate the 3-month note that the clinical measure currently to attest to that fact in CROWNWeb by rolling average, and so on. presents other issues related to the January 31 of the year following the Technical specifications for this minimum number of cases that would performance period in order to avoid measure can be found at http:// need to be reported for scoring, and we being scored on the measure. www.dialysisreports.org/pdf/esrd/ are considering the use of an adjuster The technical specifications for this public-measures/MineralMetabolism- that could be applied where the sample measure can be found at: http:// Hypercalcemia-2016NPRM.pdf. We size is small. While we continue to www.dialysisreports.org/pdf/esrd/ welcome comments on this proposal. consider these and other issues related public-measures/AnemiaManagement- PediatricIronTherapyReporting- c. Use of Iron Therapy for Pediatric to the adoption of a pediatric iron 2016NPRM.pdf. We welcome comment Patients Reporting Measure therapy clinical measure, we are proposing a related reporting measure on this proposal. Section 1881(h)(2)(A)(i) states that the for PY 2016 and future payment years d. NHSN Bloodstream Infection in ESRD QIP must include measures on in order to acquire a sufficient amount ‘‘anemia management that reflect the Hemodialysis Outpatients Clinical of baseline data for the development of Measure labeling approved by the Food and Drug a clinical measure in the future. Administration for such management.’’ For PY 2016 and future payment Healthcare-acquired infections (HAI) Appropriate anemia management years, we are proposing that facilities are a leading cause of preventable requires the presence of sufficient stores must enter in CROWNWeb on a mortality and morbidity across different 6 of iron. Iron deficiency is a leading quarterly basis, for each qualifying case settings in the healthcare sector, cause of non-response to ESA therapy, (defined in the next sentence): (i) including dialysis facilities. and several studies suggest that Patient admit/discharge date; (ii) Bloodstream infections are a pressing providing oral or IV iron is effective in hemoglobin levels; (iii) serum ferritin concern in a population where correcting iron deficiency in the levels; (iv) TSAT percentages; (v) the individuals are frequently immuno- 78 pediatric population. Pediatric dates that the lab measurements were compromised and depend on regular taken for items (ii)–(iv); (vi) intravenous vascular access to facilitate dialysis 6 Seeherunvong W, Rubio L, Abitbol CL, et al. therapy. In a national effort to reduce Identification of poor responders to erythropoietin IV iron received or oral iron prescribed among children undergoing hemodialysis. J Pediatr (if applicable); and (vii) the date that the infection rates, CMS has partnered with 2001 (138/5):710–714. IV iron was received or oral iron was the CDC to encourage facilities to report 7 Warady BA, Zobrist RH, Wu J, Finan E. Sodium prescribed (if applicable). We are to the NHSN as a way to track and ferric gluconate complex therapy in anemic facilitate action intended to reduce children on hemodialysis. Pediatr Nephrol 20: proposing that qualifying cases for this 1320–7, 2005. HAIs. The NHSN is a secure, internet- 8 Frankenfield DL, Neu AM, Warady BA, et al. from the 2001 Clinical Performance Measures based surveillance system that is Anemia in pediatric hemodialysis patients: Results Project. Kidney International 64:1120–4, 2003. managed by the Division of Healthcare

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Quality Promotion at the CDC. NHSN NHSN Dialysis Event reporting measure, Standardized Mortality Ratio (#0369) in has been operational since 2006 and includes information about IV 2008, and a clinical measure for tracks data from acute care hospitals, antimicrobial starts and evidence of Standardized Hospitalization Ratio for long-term care hospitals, psychiatric vascular access site infection, as well as Admissions (#1463) in 2011. We have hospitals, rehabilitation hospitals, information about the presence of a long been interested in adding a outpatient dialysis centers, ambulatory bloodstream infection.) Standardized Mortality Ratio (SMR) surgery centers, and long-term care Additionally, we are proposing that measure and a Standardized facilities. We continue to believe that each quarter’s data would be due 3 Hospitalization Ratio (SHR) measure to accurately reporting dialysis events to months after the end of that quarter. For the ESRD QIP. As articulated in the CY the NHSN by these facilities supports example, data from January 1 through 2013 ESRD PPS final rule, ‘‘We believe national goals for patient safety, March 31, 2014 would need to be that dialysis facilities own partial particularly goals for the reduction of entered by June 30, 2014; data from responsibility for the rate at which their HAIs. In addition, we believe that April 1 through June 30, 2014 would patients are hospitalized, in particular undertaking other activities designed to need to be submitted by September 30, when that rate is substantially higher reduce the number of HAIs supports 2014; data from July 1 through than at other peer facilities and may not national goals for patient safety. For September 30, 2014 would need to be be explained by variation in the illness further information regarding the submitted by December 31, 2014; data of patients’’ (77 FR 67496). Similarly, NHSN’s dialysis event reporting from October 1 through December 31, we continue to believe that the ‘‘SMR protocols, please see http:// 2014 would need to be submitted by may help distinguish the quality of care www.cdc.gov/nhsn/dialysis/index.html. March 31, 2015. If facilities do not offered by dialysis facilities as We have worked over the past two report 12 months of these data determined by mortality, a key health years to help dialysis facilities become according to the requirements and the care outcome used to assess quality of familiar with the NHSN system through deadlines specified above, we propose care in other settings, such as hospitals’’ the adoption of an NHSN Dialysis Event that they would receive a score of zero (77 FR 67497). reporting measure. We now believe that on the measure. We also propose that Although we believe that SHR and facilities are sufficiently versed in facilities with a CCN open date after SMR capture important indicators of reporting this measure to the NHSN. In January 1, 2014 will be excluded from morbidity and mortality, we are light of the importance of monitoring the measure. We note that in previous considering whether, and how, we and preventing infections in the ESRD payment years we have awarded partial might be able to adopt them through population, and because a clinical credit to facilities that submitted less future rulemaking in a way that measure would have a greater impact on than twelve months of data to encourage properly takes into account the effect clinical practice by holding facilities them to enroll in and report data in the that comorbidities have on accountable for their actual NHSN system. However, we are hospitalization and mortality rates for performance, we are proposing to proposing to require 12 months of data the ESRD population. We also replace the NHSN Dialysis Event on this clinical measure because acknowledge concerns raised by reporting measure that we adopted in infection rates vary through different commenters in the past that the NQF- the CY 2013 ESRD PPS final rule (77 FR seasons of the year. endorsed SMR and SHR measures are 67481 through 67484) with a new We note that this proposed measure not adequately risk adjusted (77 FR clinical measure for PY 2016 and future only applies to facilities treating in- 67496). Currently, information about payment years. This proposed measure, center hemodialysis patients (both adult patient comorbidities is collected by NHSN Bloodstream Infection in and pediatric). We will determine CMS via the Medical Evidence Hemodialysis Outpatients, is based whether a facility treats in-center Reporting Form 2728, which is typically closely NQF #1460, in that it evaluates patients by referencing the facility’s only submitted by facilities to CMS the number of hemodialysis outpatients information in the Standard Information when a new patient first begins to with positive blood cultures per 100 Management System and CROWNWeb. receive dialysis treatment. We also use hemodialysis patient-months. We recognize that the CDC has Form 2728 to capture the date of first We are proposing that facilities must published Core Interventions for BSI dialysis in order to help determine submit 12 months of accurately reported Prevention in Dialysis, which are listed patient exclusions for all of the clinical dialysis event data (defined in the next at http://www.cdc.gov/dialysis/ measures finalized in the PY 2013 ESRD sentence) to NHSN on a quarterly basis. prevention-tools/core- PPS final rule. However, facilities are In order to ensure that a facility submits interventions.html. We encourage not required to update this form, which data that can be used to identify the facilities to adopt the nine listed makes it difficult to capture information source of bloodstream infections, to interventions in order to help prevent about comorbidities that develop after preserve the internal validity of infections, but are not proposing to the initiation of dialysis treatment. We bloodstream infection data, and to help require facilities to adopt any of these acknowledge the concerns of prevent future bloodstream infections, interventions at this time. commenters who stated that ‘‘there is we propose to define accurately We request comment on this proposal, currently no mechanism either for reported dialysis event data as data and in particular on the issue of correcting or updating patient reported by facilities that follow the whether it is appropriate at this time to comorbidity data on CMS’ Medical NHSN enrollment and training convert the current NHSN Dialysis Evidence Reporting Form 2728, and guidelines specified by the CDC Event Reporting measure into a clinical these comorbidities affect the (available at: http://www.cdc.gov/nhsn/ measure. The technical specifications calculation of the measure’’ (76 FR dialysis/enroll.html and http:// for this measure are located at http:// 70267). www.cdc.gov/nhsn/Training/dialysis/ www.dialysisreports.org/ We are proposing to adopt a index.html), according to the reporting ESRDMeasures.aspx. Comorbidity reporting measure for the requirements specified within the PY 2016 ESRD QIP and future payment NHSN Dialysis Event Protocol. (This e. Comorbidity Reporting Measure years of the ESRD QIP. The purpose of protocol, which facilities are already The NQF endorsed a clinical measure this measure is two-fold. First, the using to meet the requirements of the for Dialysis Facility Risk-Adjusted proposed reporting measure offers a

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mechanism for collecting annual facility care, as opposed to factors measure under the authority of information about patient comorbidities, outside of a facility’s control. 1881(h)(2)(B)(ii) of the Act. We believe thereby providing a reliable source of Section 1881(h)(2)(B)(i) of the Act that the proposed measure’s potential to data that we can use to develop a risk- requires that, unless the exception set improve clinical understanding and adjustment methodology for the SHR forth in section 1881(h)(2)(B)(ii) of the practice outweighs the minimal burden and SMR clinical measures, should we Act applies, the measures specified for it would impose upon facilities. propose to adopt such measures in the the ESRD QIP under section Additionally, we believe that this future. Second, the reporting measure 1881(h)(2)(A)(iii) of the Act must have measure will provide data that is been endorsed by the entity with a will make it possible to improve our currently unavailable through Form contract under section 1890(a) of the understanding of the risk factors that 2728 because the measure accounts for Act (which is currently NQF). Under the contribute to morbidity and mortality in the most recent information about exception set forth in section patient risk factors, which may change the ESRD patient population. The data 1881(h)(2)(B)(ii) of the Act, in the case we gather will enable us to develop risk- over time as a patient continues of a specified area or medical topic receiving dialysis. adjustment methodologies for possible determined appropriate by the Secretary use in calculating the SHR and SMR for which a feasible and practical For this proposed reporting measure, measures, should we propose to adopt measure has not been endorsed by the we are proposing each facility will those measures in the future, and entity with a contract under section annually update in CROWNWeb up to therefore more reliably calculate 1890(a) of the Act, the Secretary may 24 comorbidities, or indicate ‘‘none of expected hospitalization and mortality specify a measure that is not so the above,’’ for each qualifying case. For rates in future payment years of the endorsed, so long as due consideration the purposes of this measure, we are ESRD QIP. When we examine updated is given to measures that have been proposing to define a ‘‘qualifying case’’ data on comorbidities, we will endorsed or adopted by a consensus as a hemodialysis or peritoneal dialysis determine the appropriateness of organization identified by the Secretary. patient being treated at the facility as of including that data as additional risk- NQF has not endorsed a measure for December 31 of the performance period, adjustment factors for the SMR and SHR updating comorbidity information for according to admit and discharge dates measures by considering the extent to patients with ESRD. We have given due entered into CROWNWeb. In fulfilling which each comorbidity may be consideration to endorsed measures, as this reporting requirement, facilities well as those adopted by a consensus would select one or more of the influenced by the quality of dialysis organization, and we are proposing this following for each qualifying case:

• Congestive heart failure. • Diabetes, on oral medications. • Drug dependence. • Atherosclerotic heart disease (ASHD). • Diabetes, without medications. • Inability to ambulate. • Other cardiac disease. • Diabetic retinopathy. • Inability to transfer. • Cerebrovascular disease (CVA, TIA). • Chronic obstructive pulmonary disease. • Needs assistance with daily activities. • Peripheral vascular disease. • Tobacco use (current smoker). • Institutionalization—Assisted Living. • History of hypertension. • Malignant neoplasm, Cancer. • Institutionalization—Nursing Home. • Amputation. • Toxic nephropathy. • Institutionalization—Other Institution. • Diabetes, currently on insulin. • Alcohol dependence. • Non-renal congenital abnormality. • None of the above.

Therefore, to receive full points on facilities to patients with ESRD. We are with respect to the measures selected for this measure, we are proposing that considering the feasibility of developing the performance period. We believe that facilities would be required to provide quality measures in other topic areas the methodology set forth in the CY the updates in CROWNWeb by January (for example, blood transfusions, kidney 2013 ESRD PPS final rule incentivizes 31, 2015 or, if that is not a regular transplantation, quality of life, and facilities to meet the goals of the ESRD business day, the first business day health information technology) for QIP; therefore, with the exception of the thereafter. While we are proposing to quality improvement at the point of care proposed changes further discussed in require facilities to report a single as well as for the electronic exchange of the applicable section below, we are annual update per patient, we information in support of care proposing to adopt a scoring encourage facilities to update this coordination across providers and methodology for the PY 2016 ESRD QIP information more frequently, in order to settings. Additional areas of potential and future payment years that is nearly more closely monitor their patients’ risk interest include residual renal function, identical to the one finalized in the CY factors, and to improve the quality of complications associated with ESRD, 2013 ESRD PPS final rule. To the extent the data. and frequently comorbid conditions (for that the scoring methodology differs, Technical specifications for this example, diabetes and heart disease). those differences are proposed below. We request comment on these potential proposed measure can be found at 6. Proposed Performance Period for the areas of future measurement, and http://www.dialysisreports.org/pdf/esrd/ PY 2016 ESRD QIP public-measures/ComorbidityReporting- welcome suggestions on other topics for 2016NPRM.pdf. We welcome comments measure development. Section 1881(h)(4)(D) of the Act on these proposals. 5. Proposed Scoring for the PY 2016 requires the Secretary to establish the performance period with respect to a 4. Other Measures Under Development ESRD QIP and Future Payment Years year, and that the performance period As part of our effort to continuously Section 1881(h)(3)(A)(i) of the Act occur prior to the beginning of such improve the ESRD QIP, we continue to requires the Secretary to develop a year. In the CY 2013 ESRD PPS final work on developing additional robust methodology for assessing the total rule, we finalized a performance period measures that provide valid assessments performance of each facility based on of CY 2013. We stated our belief that, for of the quality of care furnished by the performance standards established most measures, a 12-month performance

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period is the most appropriate for the rate on the measure during CY 2014. standards. As described in Section program because this period accounts Because we lack the baseline data III.C.10, we are proposing that a small for any potential seasonal variations that needed to calculate an improvement facility adjuster will be applied to might affect a facility’s score on some of score, we are also proposing that, for PY facilities with between 11 and 25 the measures, and also provides 2016, facilities be scored only on qualifying patients. Since facilities with adequate incentive and feedback for achievement for this measure, and not between 11 and 25 patients would be facilities and Medicare beneficiaries. on the basis of improvement. Although subject to the favorable scoring For the reasons outlined in the CY 2013 we recognize that with other measures modifications applied by the small ESRD PPS final rule (77 FR 67500), we that lacked baseline data we instituted facility adjuster, these facilities would have determined for PY 2016 that CY a reporting measure to ensure that both have an easier time achieving the 2014 is the latest period of time during an achievement and improvement score proposed achievement standards. which we can collect a full 12 months could be assessed, we believe that it is Therefore, the minimum number of of data and still implement the payment appropriate, in this case, to adopt a cases a facility may have and not benefit reductions beginning with renal dialysis clinical measure without the baseline from a small facility adjuster is 26. We services furnished on January 1, 2016. data necessary for an improvement calculated that if a facility with 26 cases Therefore, for the PY 2016 ESRD QIP, score. Hospital Acquired Infections failed to obtain consent for two we are proposing to establish CY 2014 (HAIs) are a leading cause of qualifying cases, it would have obtained as the performance period for all of the preventable mortality and morbidity consent 92 percent of the time measures. We welcome comments on across different settings in the (rounded). If the facility failed to obtain this proposal. healthcare sector, including dialysis consent for one case, it would have 7. Proposed Performance Standards for facilities, costing patient lives and obtained consent 96 percent of the time the PY 2016 ESRD QIP and Future billions of dollars. CMS has recognized (rounded). We believe that these values Payment Years that reducing HAIs is critically (92 and 96 percent) encourage a high important to the Agency’s three main consistency of care for patients with We are proposing to adopt goals of improving healthcare, ESRD that is reasonably attainable by all performance standards for the PY 2016 improving health, and reducing facilities, while accounting for the ESRD QIP measures that are similar to healthcare costs. Because of the possibility that facilities would be what we finalized in the CY 2013 ESRD abnormally great impact HAIs have unable to obtain informed consent for PPS final rule. Section 1881(h)(4)(A) upon patients and the healthcare reasons beyond their control. Therefore, provides that ‘‘the Secretary shall industry, we believe it is important to we are proposing that the achievement establish performance standards with begin assessing facilities on the number threshold be defined as obtaining respect to measures selected . . . for a of these events as soon as possible, informed consent for 92 percent of performance period with respect to a rather than on merely whether they qualifying cases during the performance year.’’ Section 1881(h)(4)(B) of the Act report these events. Additionally, the period, and that the benchmark be further provides that the ‘‘performance NHSN measure has been a reporting defined as obtaining informed consent standards . . . shall include levels of measure since PY 2014, which will give for 96 percent of such cases. achievement and improvement, as facilities two years to report data before Furthermore, we propose to calculate determined appropriate by the they are scored on the data results. the proposed performance standard Secretary.’’ We use the performance Thus, although we do not yet have using the average of the benchmark and standards to establish the minimum complete baseline data to give achievement threshold, which is 94 score a facility must achieve to avoid a improvement scores in PY 2016, we percent. We seek comments on this Medicare payment reduction. believe it is appropriate to implement performance standard. a. Proposed Clinical Measure this measure using only achievement Because we lack the baseline data Performance Standards scores because of the urgency in needed to calculate improvement scores For the same reasons stated in the CY reducing these events and the time for the Patient Informed Consent for 2013 ESRD PPS final rule (77 FR 67500 facilities have had to prepare Anemia Treatment measure, we are also through 76502), we are proposing for PY themselves for such a measure. Finally, proposing that for PY 2016, facilities be 2016 to set the performance standards we are proposing that facilities would scored only on achievement for this (both achievement and improvement) receive a score of zero on the NHSN measure, and not on the basis of based on the national performance rate clinical measure if they do not submit improvement. We recognize that with (that is, the 50th percentile) of facility 12 months of data, as defined in Section other measures that lacked baseline data performance in CY 2012, except as III.C.3.d above, and by the deadlines we adopted a reporting measure to specified below. specified in Section III.C.3.d above. ensure that both an achievement and With respect to the proposed NHSN For the proposed Patient Informed improvement score could be assessed. Bloodstream Infection in Hemodialysis Consent for Anemia Treatment, we However, we believe that it is Outpatients clinical measure, we are believe that facilities should meet the appropriate, in this case, to adopt a proposing to begin data collection standard 100 percent of the time. clinical measure without the baseline beginning with CY 2014 events. We do However, we recognize that unexpected data necessary for an improvement not have data prior to CY 2014 for events might make a 100 percent score. Anemia management is a topic purposes of setting a performance standard difficult to meet, so we are highlighted in the ESRD QIP authorizing standard based on the national proposing that facilities should be statute, requiring measures that reflect performance rate of facility performance allowed to meet the standard for less labeling approved by the Food and Drug in CY 2012. For that reason, we are than 100 percent of their patients. Administration. (See section proposing that the performance Because prior data are unavailable for 1881(h)(2)(A) of the Act.) The inclusion standard for the NHSN Bloodstream the establishment of a performance of the topic in statue highlights its Infection in Hemodialysis Outpatients standard, benchmark, and achievement importance to CMS and to dialysis clinical measure for PY 2016 be the 50th threshold, we developed a methodology patients. ESA labeling has changed over percentile of the national performance to determine appropriate achievement time as additional safety information

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has become available, and the informed TABLE 8—ESTIMATED NUMERICAL VAL- successfully reporting the measure for consent process is designed to ensure UES FOR THE PERFORMANCE STAND- the number of qualifying cases specified that the most current safety information ARDS FOR THE PY 2016 ESRD QIP in Section III.C.2.b for each month of the is communicated to patients before CLINICAL MEASURES USING THE 12-month duration of the performance period. ESAs are administered. In addition, MOST RECENTLY AVAILABLE DATA obtaining informed consent for anemia For the proposed Anemia treatment is a standard of practice that Management reporting measure, we are Measure Performance should aready be in place at dialysis standard proposing to set the performance standard as successfully reporting the facilities, so facilities should already Vascular Access measure for the number of qualifying have procedures in place to support the Type: cases specified in Section III.C.2.c for measure. Thus, although we do not yet %Fistula ...... 62.4%. each month of the 12-month duration of have complete baseline data to give %Catheter ...... 10.5%. the performance period. improvement scores in PY 2016, we Kt/V: For the proposed Anemia believe it is appropriate to implement Adult Hemodialysis 93.6%. Management: Pediatric Iron Therapy this measure using only achievement Adult, Peritoneal 85.4%. Dialysis. reporting measure, we are proposing to scores because of the importance of Pediatric Hemo- 92.5%. set the performance standard as providing patients with current dialysis. successfully reporting for each information about the risks and benefits Anemia Management: qualifying case each quarter the of anemia therapy, and because this is Hemoglobin > 12 g/ 0%. following: (i) Patient admit/discharge already a standard clinical practice. dL. date; (ii) hemoglobin levels; (iii) serum Patient Informed 94%. For the proposed Hypercalcemia ferritin levels; (iv) TSAT percentages; Consent for Ane- (v) the dates that the lab measurements measure, the first month that we can use 1 mia Treatment . were taken for items (ii)–(iv); (vi) to establish the baseline is May 2012. Hypercalcemia ...... 2.3%. NHSN Bloodstream 50th percentile of eli- intravenous IV iron prescribed or oral This is because the hypercalcemia iron prescribed (if applicable); and (vii) measure relies on CROWNWeb as its Infection in Hemo- gible facilities’ per- dialysis Outpatients. formance during the date that the IV iron or oral iron was data source, CROWNWeb was first the performance prescribed (if applicable). rolled out nationally in May 2012, and period. For the proposed Comorbidity data submitted to CROWNWeb before reporting measure, we are proposing to 1 As noted above, the performance standard that time is considered test or pilot data. for the Patient Informed Consent for Anemia set the performance standard as For that reason, we are proposing to set Treatment is based on clinical standards, not successfully updating in CROWNWeb at the performance standard as the 50th data collected through the ESRD QIP. least once during the performance percentile of national performance from We believe that the ESRD QIP should period for each qualifying case, the May 2012 through November 2012. We not have lower standards than in patient’s comorbidities. We are further seek comment on this proposal. previous years. In accordance with our proposing that the update be entered statements in the CY 2012 ESRD PPS into CROWNWeb by the January 31 b. Estimated Performance Standards for final rule (76 FR 70273), if the final following the conclusion of the Proposed Clinical Measures numerical values for the PY 2016 performance period or, if that is not a regular business day, the first business At this time, we do not have the performance standards are worse than day thereafter. necessary data to assign numerical PY 2015 for a measure, then we are values to the proposed performance proposing to substitute the PY 2015 8. Proposed Scoring for the PY 2016 standards for the clinical measures, performance standard for that measure. ESRD QIP Proposed Measures We request comments on this proposal. because we do not yet have all of the In order to assess whether a facility data from CY 2012 or the first portion c. Proposed Performance Standards for has met the performance standards, we of CY 2013. However, we are able to Reporting Measures finalized a methodology for the PY 2014 estimate these numerical values based For the proposed ICH CAHPS ESRD QIP under which we separately on the most recent data available. For all reporting measure, we are proposing to score each clinical and reporting of the proposed clinical measures set the performance standard for PY measure. We score facilities based on an except Hypercalcemia, this data comes 2016 as the facility’s successful achievement and improvement scoring from the period of January through submission, by January 28, 2015, of ICH methodology for purposes of assessing November 2012. For the Hypercalcemia CAHPS survey data collected during the their performance on the clinical clinical measure, the most recent data performance period in accordance with measures (76 FR 70272 through 70273). available comes from the period May the measure specifications to CMS as We are proposing to use a similar through November 2012. In Table 8, we specified at https://ichcahps.org. For PY methodology for purposes of scoring have provided the estimated 2017 and future payment years, we are facility performance on each of the performance standards for all of the proposing that the PY 2016 performance clinical measures for the PY 2016 ESRD measures except for the NHSN standard continue, except that in each QIP and future payment years, except Bloodstream Infection in Hemodialysis performance period, facilities are that we are proposing that there will required to submit data from the two only be an achievement score for the Outpatients clinical measure, which surveys conducted during the NHSN Bloodstream Infection in will be based on data from CY 2014. We performance period, rather than one, Hemodialysis Outpatients and Patient will publish updated values for all and that the survey data must be Informed Consent for Anemia Treatment measures except the NHSN Bloodstream submitted by the dates specified by clinical measures, because data are not Infection in Hemodialysis Outpatients CMS at https://ichcahps.org. available to calculate an improvement clinical measure in the CY 2014 ESRD For the proposed Mineral Metabolism score. PPS final rule. reporting measure, we are proposing to In determining a facility’s set the performance standard as achievement score for the PY 2016

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program and future payment years, we clinical measure, we are proposing that by comparing its performance on the are proposing to continue using the the achievement threshold and measure during CY 2014 (the proposed current methodology described above, benchmark be the 15th and 90th performance period) to its performance under which facilities would receive percentiles, respectively, of national rate on the measure during CY 2013. points along an achievement range performance during CY 2014. Because we lack the baseline data based on their performance during the For the proposed Patient Informed needed to calculate improvement scores proposed performance period for each Consent for Anemia Treatment clinical for the NHSN Bloodstream Infection in measure, which we define as a scale measure, and for the reasons described Hemodialysis Outpatients clinical between the achievement threshold and in Section III.C.7.a, we are proposing measure and the Patient Informed the benchmark explained below. We are that the achievement threshold be Consent for Anemia Treatment clinical proposing to define the achievement defined as obtaining informed consent measure, we are proposing that facilities threshold for each of the proposed for 92 percent of qualifying cases during will not receive improvement scores for clinical measures as the 15th percentile the performance period, and that the these measures for PY 2016. of the national performance rate during benchmark be defined as obtaining Like the performance standards, we CY 2012, except as otherwise specified informed consent for 96 percent of such do not have the necessary data at this below for the NHSN Bloodstream cases. time to assign final numerical values to Infection in Hemodialysis Outpatients For the reasons described above, the the proposed achievement thresholds clinical measure, the Patient Informed first month that we can use to establish and benchmarks for the clinical Consent for Anemia Treatment clinical the baseline for the proposed measures. However, we are able to measure, and Hypercalcemia clinical Hypercalcemia measure is May 2012. estimate them based on the most recent measure. We believe that this Therefore, we are proposing to set the data available. For all of the clinical achievement threshold will provide an achievement threshold as the 15th measures except Hypercalcemia and incentive for facilities to continuously percentile of national performance and NHSN Bloodstream Infection in improve their performance, while not the benchmark as the 90th percentile of Hemodialysis Outpatients, this data reducing incentives to facilities that national performance from May 2012 comes from the period between January score at or above the national through November 2012. We request 2012 and November 2012. For the performance rate for the clinical comment on these proposals. Hypercalcemia clinical measure, the measures (77 FR 67503). We are With the exception of the NHSN data comes from the period between proposing to define the benchmark as Bloodstream Infection in Hemodialysis May 2012 and November 2012. In Table the 90th percentile of the national Outpatients clinical measure and the 9, we have provided the estimated performance rate during CY 2012, Patient Informed Consent Anemia achievement thresholds and except as proposed below for the NHSN Treatment clinical measure, we are benchmarks for each of the measures Bloodstream Infection in Hemodialysis proposing that facilities receive points except for NHSN Bloodstream Infection Outpatients clinical measure and the along an improvement range, defined as in Hemodialysis Outpatients clinical Patient Informed Consent for Anemia a scale running between the measure (which would be based on data Treatment clinical measure, because it improvement threshold and the from January 1, 2014 through December represents a demonstrably high but benchmark. We are proposing to define 31, 2104) and Patient Informed Consent achievable standard of quality that the the improvement threshold as the for Anemia Treatment (for which the high performing facilities reached. facility’s performance on the measure achievement threshold and benchmark For the proposed NHSN Bloodstream during CY 2013. The facility’s are proposed to be 92 percent and 96 Infection in Hemodialysis Outpatients improvement score would be calculated percent, respectively).

TABLE 9—ESTIMATED PROPOSED ACHIEVEMENT THRESHOLDS AND BENCHMARKS FOR THE PROPOSED PY 2016 ESRD QIP CLINICAL MEASURES USING THE MOST RECENTLY AVAILABLE DATA

Measure Achievement threshold Benchmark

%Fistula ...... 49.8% ...... 77.1%. %Catheter ...... 19.6% ...... 3.0%. Kt/V: Adult Hemodialysis ...... 85.9% ...... 97.5%. Adult, Peritoneal Dialysis ...... 66.7% ...... 94.8%. Pediatric Hemodialysis ...... 83.3% ...... 98.8%. Anemia Management: Hemoglobin > 12 g/dL ...... 1.2% ...... 0%. Patient Informed Consent for Anemia 92% ...... 96%. Treatment 1. Hypercalcemia ...... 6.1% ...... 0.2%. NHSN Dialysis Event Reporting and Clinical 15th percentile of eligible facilities’ perform- 90th percentile of eligible facilities’ perform- Bloodstream Infection. ance during the performance period. ance during the performance period. 1 As discussed above, the proposed achievement threshold and benchmark for the Patient Informed Consent for Anemia Treatment clinical measure are based on clinical standards, not baseline data.

We believe that the ESRD QIP should 2016 numerical values for the thresholds and benchmarks for that not have lower standards than previous achievement thresholds and measure. We request comments on these years. In accordance with our benchmarks are worse than PY 2015 for proposals. statements in the CY 2012 ESRD PPS a given measure, we are proposing to final rule (76 FR 70273), if the final PY substitute the PY 2015 achievement

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a. Proposals for Scoring Facility [9 * ((Facility’s performance period rate • Less than the improvement Performance on Clinical Measures ¥ achievement threshold)/ threshold, then the facility would Based on Achievement (benchmark ¥ achievement receive 0 points for improvement; or Using the same methodology we threshold))] + .5, with all scores • Equal to or greater than the finalized in the CY 2013 ESRD PPS final rounded to the nearest integer, with improvement threshold, but below the rule, we are proposing to award between half rounded up. benchmark, then the following formula 0 and 10 points for each of the proposed Using this formula, a facility would would be used to derive the clinical measures (77 FR 67504). As receive a score of 1 to 9 points for a improvement score: noted, we are proposing that the score clinical measure based on a linear scale [10 * ((Facility performance period rate for each of these clinical measures will distributing all points proportionately ¥ Improvement threshold)/(Benchmark be based upon the higher of an ¥ Improvement threshold))] ¥ .5, with achievement or improvement score on between the achievement threshold and each of the clinical measures, except for the benchmark, so that the interval in all scores rounded to the nearest integer, NHSN Bloodstream Infection in the performance between the score for a with half rounded up. Hemodialysis Outpatients clinical given number of achievement points Note that if the facility score is equal to measure and the Patient Informed and one additional achievement point is or greater than the benchmark, then it Consent for Anemia Treatment clinical the same throughout the range of would receive 10 points on the measure measure, which we are proposing to performance from the achievement based on the achievement score score on achievement alone. For threshold to the benchmark. methodology discussed above. We purposes of calculating achievement b. Proposals for Scoring Facility request comments on this proposal. scores for the clinical measures, we are Performance on Clinical Measures proposing to base the score on where a c. Proposals for Calculating Facility Based on Improvement facility’s performance rate falls relative Performance on Reporting Measures to the achievement threshold and the Using the same methodology we have As noted above, reporting measures benchmark for that measure. previously finalized for the ESRD QIP, differ from clinical measures in that (Performance standards do not enter we are proposing that facilities would they are not scored based on clinical into the calculation of improvement or earn between 0 and 9 points for each of values; rather, they are scored based on achievement scores.) Identical to what the clinical measures that will have an whether facilities are successful in we finalized in the CY 2013 ESRD PPS improvement score (that is, all clinical achieving the reporting requirements final rule, we are proposing that if a measures except NHSN Bloodstream associated with each of these proposed facility’s performance rate during the Infection in Hemodialysis Outpatients measures. The proposed criteria that performance period is: would apply to each reporting measure • Equal to or greater than the clinical measure and Patient Informed are discussed below. benchmark, then the facility would Consent for Anemia Treatment), based receive 10 points for achievement; on how much their performance on the With respect to the proposed Anemia • Less than the achievement measure during CY 2014 improved from Management reporting measure and the threshold, then the facility would their performance on the measure proposed Mineral Metabolism reporting receive 0 points for achievement; or during CY 2013 (77 FR 67504). A measure, we are proposing to award • Equal to or greater than the specific improvement range for each points to facilities using the same achievement threshold, but below the measure would be established for each formula that we finalized in the CY benchmark, then the following formula facility. We are proposing that if a 2013 ESRD PPS final rule for Mineral would be used to derive the facility’s performance rate on a measure Metabolism and Anemia Management achievement score: during the performance period is: (77 FR 67506):

With respect to the proposed Use of reporting measure, using the following Iron Therapy for Pediatric Patients formula:

We are proposing to score the Pediatric Comorbidity reporting measure, we are or quarterly reporting rates is not Iron Therapy measure differently than proposing that a facility receive a score feasible. the proposed Anemia Management of 10 points if it satisfies the We request comment on the proposed reporting measure and the proposed performance standard for the measure, methodology for scoring the PY 2016 Mineral Metabolism reporting measure and 0 points if it does not. We are ESRD QIP reporting measures. because it requires quarterly rather than proposing to score these reporting monthly reporting, and therefore scoring measures differently than the other based on monthly reporting rates is not reporting measures because these feasible. require annual or biannual reporting, With respect to the proposed ICH and therefore scoring based on monthly CAHPS reporting measure and

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9. Proposals for Weighting the PY 2016 score on the measure; (iii) summing the number of cases with respect to one or ESRD QIP Measures and Calculating the results achieved for each measure; and more of the measures or measure topics. PY 2016 ESRD QIP Total Performance (iv) rounding this sum (with half For the reasons stated in the CY 2013 Score rounded up). We are proposing that if a ESRD PPS final rule, for PY 2016 and Section 1881(h)(3)(A)(iii) of the Act facility does not have enough patients to future payment years, we are proposing provides that the methodology for receive a score on one of the measures to continue to require a facility to have calculating the facility TPS shall in the measure topic (as discussed at least one clinical and one reporting include a process to weight the below), then that measure would not be measure score to receive a TPS (77 FR performance scores with respect to included in the measure topic score for 67508). We request comment on our individual measures to reflect priorities that facility. Only one measure within proposals to require a facility to be for quality improvement, such as the measure topic needs to have enough eligible for a score on at least one weighting scores to ensure that facilities cases to be scored in order for the reporting and one clinical measure in have strong incentives to meet or exceed measure topic to be scored and included order to receive a TPS. anemia management and dialysis in the calculation of the TPS. We are Finally, we are proposing that the adequacy performance standards, as also proposing that the measure topic TPSs be rounded to the nearest integer, determined appropriate by the score would be equal to one clinical with half of an integer being rounded Secretary. In determining how to measure in the calculation of the TPS. up. We request comment on this appropriately weight the PY 2016 ESRD For an additional explanation, see the proposal. For further examples QIP measures for purposes of examples provided at 77 FR 67507. regarding measure and TPS calculating the TPS, we considered two We request comment on the proposed calculations, we refer readers to the criteria: (1) The number of measures we method of weighting individual figures below. measure scores to derive a measure are proposing to include in the PY 2016 c. Examples of the Proposed PY 2016 topic score. ESRD QIP; and (2) the National Quality ESRD QIP Scoring Methodology Strategy priorities. b. Proposal for Weighting the Total In this section, we provide examples Performance Score a. Weighting Individual Measures To to illustrate the proposed scoring Compute Measure Topic Scores for the We continue to believe that weighting methodology for PY 2016. Figures 1–3 Kt/V Dialysis Adequacy Measure Topic, the clinical measures/measure topics illustrate the scoring for a clinical the Vascular Access Type Measure equally will incentivize facilities to measure. Figure 1 shows Facility A’s Topic, and the Anemia Management improve and achieve high levels of performance on an example clinical Clinical Measure Topic performance across all of these measure. Note that for this example In the CY 2013 ESRD PPS final rule, measures, resulting in overall clinical measure, the facility has we established a methodology for improvement in the quality of care performed very well. The example deriving the overall scores for measure provided to patients with ESRD. We benchmark (the 90th percentile of topics (77 FR 67507). For the reasons also continue to believe that, while the performance nationally in CY 2012) described in the CY 2013 ESRD PPS reporting measures are valuable, the calculated for this clinical measure is 77 final rule, we are proposing to use the clinical measures evaluate actual patient percent, and the example achievement same methodology in PY 2016 and outcomes and therefore justify a higher threshold (which is the 15th percentile future payment years to calculate the combined weight (77 FR 67506 through of performance nationally in CY 2012) scores for the three measure topics. 67508). For the reasons outlined in the is 46 percent. Therefore, facility A’s After calculating the individual measure CY 2013 ESRD PPS final rule, we are performance of 86 percent on the scores within a measure topic, we are proposing to continue weighting clinical clinical measure during the performance proposing to calculate a measure topic measures as 75 percent and reporting period exceeds the benchmark of 77 score using the following steps: (i) measures as 25 percent of the TPS. We percent, so Facility A would earn 10 Dividing the number of patients in the request comment on this proposed points (the maximum) for achievement denominator of each measure by the methodology for weighting the clinical for this measure. (Because, in this sum of the number of patients in each and reporting measures. example, Facility A has earned the denominator for all of the applicable We have also considered the issue of maximum number of points possible for measures in the measure topic; (ii) awarding a TPS to facilities that do not this measure, its improvement score is multiplying that figure by the facility’s report data on the proposed minimum irrelevant.)

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Figure 2 shows an example of scoring improvement range, we must calculate The result of this formula for this is for another facility, Facility B. As the improvement and achievement example is [10 * ((54¥26)/ illustrated below, the facility’s scores to determine the example clinical (77¥26))]¥.5, which equals 4.99 and performance on the example clinical measure score. we round to the nearest integer, which measure improved from 26 percent in To calculate the achievement score, is 5. we would apply the formula discussed CY 2013 to 54 percent during the Therefore, for this example clinical performance period. The achievement above. The result of this formula for this example is [9 * ((54¥50)/(77¥50))] + .5, measure, Facility B’s achievement score threshold is 50 percent and the is 3, and its improvement score is 5. We achievement benchmark is 77 percent. which equals 1.83, and we round to the nearest integer, which is 2. award Facility B the higher of the two Because the facility’s performance Likewise, to calculate the scores for this clinical measure. Thus, during the performance period is within improvement score, we apply the Facility B’s score on this example the achievement range and the improvement formula discussed above. measure is 5.

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Figure 2

Benchmark Ii '1 II II 1 a

, ¥" 54- , 9 X +0.5 =1.83, rounded to 2 11-50

= Achievement Threshold (15th percentile) =Benchmark (10th percentile)

7 II

=4.99, rounded to

r~--·-·-.. :--"-. ~~-"~""'---~""-''''"~-~'.-'''''''''-""",.,..,..",-,,,"--'.~"'''-- !. 11l1s facIlity will earn a VAT - Fi.stula measure Improvement Thl1l8hold scor~~of1 = t based on as the higher score derived (2013 performance rate) I~m the two scoring methods. =Benchmark (10th percentile) ----_. .~

BILLING CODE 4120–01–P C’s performance during the performance performance period was lower than its In Figure 3, Facility C’s performance period falls below the achievement performance during CY 2013. Therefore, on the example clinical measure drops threshold of 26 percent, it receives 0 in this example, Facility C would from 26 percent in CY 2013 to 23 points for achievement. Facility C also receive 0 points for the example clinical percent during the performance period, receives 0 points for improvement measure. a decline of 3 percent. Because Facility because its performance during the

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The method illustrated above would However, if, for example, a facility Measure Topic) + (.150 * be applied to each clinical measure in did not receive a score (that is, did not Hypercalcemia Measure) + (.150 * order to obtain a score for each measure. have enough qualifying cases) on the NHSN Bloodstream Infection in Scores for reporting measures are proposed Hypercalcemia measure, then Hemodialysis Outpatients) + (.125 * calculated based upon their individual the facility’s TPS would be calculated as Anemia Management Reporting criteria, as discussed earlier. follows: Measure) + (.125 * Comorbidity After calculating the scores for each Total Performance Score = [(.188 * Reporting Measure)] * 10. measure, we would calculate the TPS. Vascular Access Type Measure Again, the TPS would be rounded to the As an example, by applying the Topic) + (.188 * Kt/V Dialysis nearest integer (and any individual weighting criteria to a facility that Adequacy Measure Topic) + (.188 * measure values ending in .5 would be receives a score on all finalized Anemia Management Clinical rounded to the next higher integer). measures, we would calculate the Measure Topic) + (.188 * NHSN facility’s TPS using the following Bloodstream Infection in 10. Proposed Minimum Data for Scoring formula: Hemodialysis Outpatients) + (.05 * Measures for the PY 2016 ESRD QIP and Total Performance Score = [(.150 * ICH CAHPS Survey Reporting Future Payment Years Vascular Access Type Measure Measure) + (.05 * Mineral For the same reasons described in the Topic) + (.150 * Kt/V Dialysis Metabolism Reporting Measure) + CY 2013 ESRD PPS final rule (77 FR Adequacy Measure Topic) + (.150 * (.05 * Anemia Management 67510 through 67512), for PY 2016 and Anemia Management Clinical Reporting Measure) + (.05 * future payment years, we are proposing Measure Topic) + (.150 * Pediatric Iron Therapy Reporting to only score facilities on clinical and Hypercalcemia Measure) + (.150 * Measure) + (.05 * Comorbidity reporting measures for which they have NHSN Bloodstream Infection in Reporting Measure) ] * 10. a minimum number of qualifying cases Hemodialysis Outpatients) + (.05 * Again, the TPS would be rounded to the during the performance period. For PY ICH CAHPS Survey Reporting nearest integer (and any individual 2016 and future payment years, we are Measure) + (.05 * Mineral measure values ending in .5 would be proposing that a facility must have a Metabolism Reporting Measure) + rounded to the next higher integer). threshold of at least 11 qualifying cases (.05 * Anemia Management Finally, for example, if a facility is for the entire performance period in Reporting Measure) + (.05 * eligible for only two of the reporting order to be scored on a clinical measure. Pediatric Iron Therapy Reporting measures, then the facility’s TPS would We are proposing that reporting Measure) + (.05 * Comorbidity be calculated as follows: measures other than ICH CAHPS will Reporting Measure) ] * 10. Total Performance Score = [(.150 * have a threshold of one qualifying case The TPS would be rounded to the Vascular Access Type Measure during the performance period. The 11- nearest integer (and any individual Topic) + (.150 * Kt/V Dialysis qualifying case minimum was intended measure values ending in .5 would be Adequacy Measure Topic) + (.150 * to reduce burden on facilities with rounded to the next higher integer). Anemia Management Cinical limited qualifying cases for earlier

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reporting measures (77 FR 67480, 67510 through 67512), for PY 2016 and achieves a minimum TPS that is equal 67483, 67486 and 67493). We are future payment years, we are proposing to or greater than the total of the points proposing to set the reporting measure to apply to each clinical measure score it would have received if: (i) It case minimums at one because we plan for which a facility has between 11 and performed at the performance standard to use data to permit future 25 qualifying cases the same adjustment for each clinical measure; (ii) it received implementation of clinical measures. If factor we finalized in the CY 2013 ESRD zero points for each clinical measure patients in small facilities are PPS final rule (77 FR 67511). We seek that did not have a numerical value for systematically excluded, then we will public comment on these proposals. the performance standard published not be able to gather the robust data we For the PY 2016 ESRD QIP and future with the PY 2016 final rule; and (iii) it need to support the performance payment years, we are also proposing to received five points for each reporting continue to begin counting the number standard, benchmark, and achievement measure. We request comments on these of months or quarters, as applicable, for threshold calculations in future proposals. payment years. For example, if we which a facility is open on the first day excluded facilities with 10 or fewer of the month after the facility’s CCN Section 1881(h)(3)(A)(ii) of the Act patients from the Pediatric Iron Therapy open date. With the exception of the requires that facilities achieving the reporting measure, then very few, if any, ICH CAHPS expanded reporting lowest TPSs receive the largest payment facilities would be able to report the measure, we are proposing that only reductions. For PY 2016 and future measure, and we would be unable to facilities with a CCN open date before payment years, we are proposing that collect meaningful data for future July 1, 2014, be scored on the proposed the payment reduction scale be the same measure development. Similarly, if we reporting measures. Under the as the PY 2015 ESRD QIP (77 FR 67514 excluded facilities with 10 or fewer specifications for the proposed ICH through 67516). We are proposing that, patients from the comorbidity reporting CAHPS reporting measure, facilities for each 10 points a facility falls below measure, then we would be unable to would need to administer the survey the minimum TPS, the facility would use updated comorbidities for patients (via a CMS-approved, third-party receive an additional 0.5 percent in these facilities in a risk-adjusment vendor) during the performance period. reduction on its ESRD PPS payments for calculation should we propose to adopt Because arranging such an agreement PY 2016 and future payment years, with an SHR and/or SMR clinical measure in takes time, we are proposing that only a maximum reduction of 2.0 percent. As the future. For those reasons, we are facilities with a CCN open date before we stated in the CY 2012 ESRD PPS proposing that the case minimum for all January 1 of the performance period to final rule, we believe that such a sliding be scored on this measure. Additionally, reporting measures except for ICH scale will incentivize facilities to meet we are proposing that facilities with CAHPS be one. the performance standards established For the proposed expanded ICH CCN open dates after January 1, 2014 CAHPS reporting measure, we are will not be scored on the NHSN. We and continue to improve their proposing that facilities with fewer than note that in previous payment years we performance; even if a facility fails to 30 qualifying cases during the have awarded partial credit to facilities achieve the minimum TPS, such a performance period not be scored on the that submitted less than 12 months of facility will still be incentivized to measure. In the CY 2013 ESRD PPS final data to encourage them to enroll in and strive for and attain better performance rule, we excluded facilities with 10 or report data in the NHSN system. rates in order to reduce the percentage fewer adult in-center hemodialysis However, we are proposing to collect 12 of its payment reduction (76 FR 70281). patients from the ICH CAHPS measure months of data on this clinical measure We request comments on the proposed because we recognized that, for many because infection rates vary through payment reduction scale. small dialysis facilities, hiring a third- different seasons of the year. Because we are not yet able to party administrator to fulfill the ICH As discussed above, we are proposing calculate the performance standards for CAHPS survey requirements would that a facility will not receive a TPS each of the clinical measures, we are have been impractical or prohibitively unless it receives a score on at least one also not able to calculate the minimum costly (77 FR 67480). As we move clinical and one reporting measure. We TPS at this time. Based on the estimated toward developing a clinical measure, note that finalizing this proposal would performance standards listed above we have determined that the survey result in facilities not being eligible for using the most recent data available, we results are more reliable if there are at a payment reduction for the PY 2016 estimate for PY 2016 that a facility must least 30 surveys submitted per facility. ESRD QIP and future payment years if meet or exceed a minimum TPS of 46. Therefore, we are proposing that for PY they have a CCN open date on or after For all of the clinical measures except July 1 of the performance period (CY 2016 and future payment years, Hypercalcemia, this data comes from facilities that treat fewer than 30 2014 for the PY 2016 ESRD QIP). We the period between January 2012 and qualifying cases (defined as adult in- request comment regarding these November 2012. For the Hypercalcemia center hemodialysis patients) during the proposals. clinical measure, the data comes from performance period will be excluded 11. Proposed Payment Reductions for from this measure. We further are the period between May 2012 and the PY 2016 ESRD QIP and Future proposing that we will consider a November 2012. We are proposing that Payment Years facility to have met the 30-patient facilities failing to meet the minimum threshold unless it affirmatively attests Section 1881(h)(3)(A)(ii) of the Act TPS (as will be published in the in CROWNWeb by January 31 of the requires the Secretary to ensure that the Medicare Program; End-Stage Renal year prior to the year in which payment application of the scoring methodology Disease Prospective Payment System, reductions will be made (for example, results in an appropriate distribution of Quality Incentive Program, and Durable January 31, 2015, for the PY 2016 ESRD payment reductions across facilities, Medical Equipment, Prosthetics, QIP) that it treated 29 or fewer adult in- such that facilities achieving the lowest Orthotics, and Supplies final rule in center hemodialysis patients during the TPSs receive the largest payment November) will receive payment performance period. reductions. For PY 2016, we are reductions based on the estimated total For the same reasons described in the proposing that a facility would not performance score ranges indicated in CY 2013 ESRD PPS final rule (77 FR receive a payment reduction if it Table 10 below.

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TABLE 10—ESTIMATED PAYMENT RE- inaccurate data. We solicit comments on these rules during the PY 2016 ESRD DUCTION SCALE FOR PY 2016 these proposals. QIP and future years of the program, BASED ON THE MOST RECENTLY We are also considering a feasibility and we request public comment on this study for validating data reported to AVAILABLE DATA proposal. CDC’s NHSN Dialysis Event Module, which may mirror the process used by 14. Proposals for Public Reporting Reduction Requirements Total performance score (Percent) the Hospital Inpatient Quality Reporting Program (77 FR 53539 through 53553). Section 1881(h)(6)(A) of the Act 100–46 * ...... 0 Although this is still in the early stages requires the Secretary to establish 45–36 ...... 0.5 of development, we anticipate that this procedures for making information 35–26 ...... 1.0 study may mirror the validation sample available to the public about facility 25–16 ...... 1.5 by targeting ‘‘candidate HAI events,’’ performance under the ESRD QIP, 15–0 ...... 2.0 much like the methodology used by including information on the TPS (as CMS’s Hospital Inpatient Quality along with appropriate comparisons of 12. Data Validation Reporting Program. The feasibility study facilities to the national average with One of the critical elements of the will likely: (i) Estimate the burden and respect to such scores) and scores for ESRD QIP’s success is ensuring that the associated costs to ESRD QIP-eligible individual measures achieved by each data submitted to calculate measure facilities for participating in an NHSN facility. Section 1881(h)(6)(B) of the Act scores and TPSs are accurate. We began validation program; (ii) assess the costs further requires that a facility have an a pilot data-validation program in CY to CMS to implement an NHSN opportunity to review the information to 2013 for the ESRD QIP, and we are now validation program on a statistically be made public with respect to that in the process of procuring the services relevant scale; and (iii) develop and test facility prior to publication. In addition, of a data-validation contractor, who will a protocol to validate NHSN data in section 1881(h)(6)(C) of the Act requires be tasked with validating a national nine ESRD QIP-eligible facilities. the Secretary to provide each facility sample of facilities’ records as they Facilities would be selected on a with a certificate containing its TPS to report CY 2013 data to CROWNWeb. voluntary basis. Based on the results of post in patient areas within the facility. The first priority will be to develop a this study, we intend to propose more Finally, section 1881(h)(6)(D) of the Act methodology for validating data detailed requirements for validating requires the Secretary to post a list of submitted to CROWNWeb under the NHSN data used in the ESRD QIP in the facilities and performance-score data on pilot data-validation program; once this future. a CMS Web site. methodology has been developed, CMS In the PY 2012 ESRD QIP final rule, will publicize it through a CROWN 13. Proposals for Scoring Facilities we adopted uniform requirements based Memo and solicit public comment. As Whose Ownership Has Changed on sections 1881(h)(6)(A) through part of the CY 2013 ESRD QIP PPS final During PY 2012 (our first 1881(h)(6)(D) of the Act, thereby rule (77 FR 67522 through 67523), we implementation year for the ESRD QIP), establishing procedures for facilities to finalized a requirement to sample facilities requested guidance regarding review the information to be made approximately 10 records from 750 how a change in ownership affects any public and for informing the public randomly selected facilities; these applicable ESRD QIP payment through facility-posted certificates. We facilities will have 60 days to comply reductions. Starting with the are proposing to maintain the public once they receive requests for records. implementation of the PY 2015 ESRD reporting requirements as finalized in We are proposing to extend this pilot QIP (which is CY 2013), the application the CY 2013 ESRD PPS final rule, except data-validation program to include of an ESRD QIP payment reduction regarding the timing of when facilities analysis of data submitted to depended on whether the facility must post their certificates. CROWNWeb during CY 2014. For the retained its CCN after the ownership For PYs prior to PY 2014, we required PY 2016 ESRD QIP, sampled facilities transfer. If the facility’s CCN remained facilities to post certificates within 5 will be reimbursed by our validation the same after the facility was business days of us making these contractor for the costs associated with transferred, then we considered the certificates available for download from copying and mailing the requested facility to be the same facility (despite dialysisreports.org in accordance with records. Additionally, we are proposing the change in ownership) for the section 1881(h)(6)(C) of the Act. (77 FR to reduce the annual random sample purposes of the ESRD QIP, and we 67516 and 76 FR 637) In the CY 2013 size from 750 to 300. We believe that applied any ESRD QIP payment ESRD PPS final rule, we noted that this smaller sample size will still yield reductions that would have applied to many individuals responsible for a sufficiently precise estimate of QIP the transferor to the transferee. posting the certificates were away on reliability while imposing a smaller Likewise, as long as the facility retained holiday during the December time burden on ESRD QIP-eligible facilities the same CCN, we calculated the period when certificates typically and CMS alike. We are also proposing measure scores using the data submitted become available, and finalized that, to extend our policy that no facility will during the applicable period, regardless beginning in PY 2014, a facility must receive a payment reduction resulting of whether the ownership changed post copies of its certificates by the first from the validation process for CY 2014 during one of these periods. If, however, business day after January 1 of the during PY 2016. Once we have gathered a facility received a new CCN as a result payment year. (77 FR 67517) We also additional information based on these of a change in ownership, then we noted that certificates are typically initial validation efforts, we will treated the facility as a new facility for available for download on or around propose further procedures for purposes of the ESRD QIP based on the December 15 of each year, and stated validating data submitted in future years new facility’s CCN open date. We that we believe that this two week time of the ESRD QIP. These procedures may believe that these proposals are the most is enough to allow facilites to post them. include a method for scoring facilities operationally efficient and will allow Since the CY 2013 ESRD PPS final based on the accuracy of the data they facilities the greatest amount of rule was finalized, we have noted that submit to CROWNWeb, and a method to certainty when they change ownership. a posting deadline of the first business assign penalties for submitting We are proposing to continue applying day after January 1 could create

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difficulties for facilities if it were ever payment rules for each class. The six routinely purchased DME category. The the case that certificates were not classes of items are: inexpensive and initial classifications were implemented available for download in the typical other routinely purchased DME; items on January 1, 1989, in accordance with timeframe. We want to ensure that requiring frequent and substantial the program instructions, and included facilities have adequate time to post servicing; customized items; oxygen and a listing of HCPCS codes for base certificates as required in this oxygen equipment; other covered items equipment such as canes and walkers, circumstance, and that the required (other than DME); and other items of as well as HCPCS codes for replacement timing accommodates the December DME, also referred to as capped rental accessories such as cane tips, walker leg holidays. Therefore, we propose that, items. The class for inexpensive and extensions, and power wheelchair beginning in PY 2014, facilities must other routinely purchased DME also batteries for use with medically post certificates within fifteen business includes accessories used in necessary, patient-owned base days of us making these certificates conjunction with nebulizers, aspirators, equipment (canes, walkers, and power available for download from continuous positive airway pressure wheelchairs). In the case of expensive dialysisreports.org in accordance with devices and respiratory assist devices. accessories that were not routinely section 1881(h)(6)(C) of the Act. We Items of DME fall under the class for purchased during July 1986 through request comments on this proposal. other items of DME (capped rental June 1987, such as a wheelchair items) if they do not meet the attachment to convert any wheelchair to IV. Clarification of the Definition of definitions established in the statute one arm drive, these items fell under the Routinely Purchased Durable Medical and regulations for the other classes of listing of HCPCS codes for capped rental Equipment (DME) DME. items. Medicare payment for DME A. Background extends to payment for replacement of 2. Medicare Guidance and Rulemaking essential accessories used with patient- 1. Background for DME Regarding Definition of Routinely owned equipment or accessories, Purchased DME Title XVIII of the Social Security Act attachments, or options that modify base (the Act) governs the administration of On July 14, 1988, CMS central office equipment, such as the addition of the Medicare program. The statute issued a program memorandum to the elevating leg rests to a manual provides coverage for broad categories CMS regional offices containing wheelchair. of benefits, including, but not limited to, guidance for carriers to follow in The Medicare definition of routinely inpatient and outpatient hospital care, developing a data base that would be purchased equipment is under 42 CFR skilled nursing facility care, home used in identifying other routinely § 414.220(a)(2) and specifies that health care, physician services, and purchased DME for the purpose of routinely purchased equipment means DME. ‘‘Medical and other health implementing section 1834(a)(2)(a)(ii) of equipment that was acquired by services,’’ which is defined under the Act. For the purpose of identifying purchase on a national basis at least 75 section 1861(s)(6) of the Act to include routinely purchased items, the carriers percent of the time during the period DME, is a separate Medicare Part B were instructed via the program July 1986 through June 1987.’’ This benefit for which payment is authorized memorandum to ‘‘compute the definition was promulgated via an by section 1832 of the Act. In unduplicated count of beneficiaries who interim final rule (IFC) on December 7, accordance with section 1861(n) of the purchased the item, by HCPCS code, 1992 (57 FR 57698), remaining Act, the term ‘‘durable medical and a count of those who only rented consistent with Medicare program equipment’’ includes iron lungs, oxygen the item during the 7/1/86–6/30/87 guidance in effect beginning in 1988 tents, hospital beds, and wheelchairs period.’’ The carriers were instructed to and discussed above, and finalized on used in the beneficiary’s home, include purchase of new and used items July 10, 1995 (60 FR 35492). In the including an institution used as his or and beneficiaries who purchased an preamble of the 1992 IFC (57 FR 57679), her home other than an institution that item that was initially rented in the we discussed how items were classified meets the requirements of section count of beneficiaries who purchased as routinely purchased DME based on 1861(e)(1) or section 1819(a)(1) of the the item. The carriers made data from July 1986 through June 1987, Act. determinations regarding whether DME ‘‘in the absence of a statutory directive Section 1834(a) of the Act, as added furnished during this period would be that defines the period for determining by section 4062 of the Omnibus Budget rented (non-capped) or purchased based which items are routinely purchased.’’ Reconciliation Act of 1987 (OBRA 87), on which payment method was more CMS indicated that it ‘‘selected the Public Law 100–203, sets forth the economical. period July 1, 1986 through June 30, payment rules for DME furnished on or In November 1988, CMS revised Part 1987, because it is the same 12-month after January 1, 1989. The Medicare 3 (Claims Process) of the Medicare period required by section payment amount for a DME item is Carriers Manual (HCFA Pub. 14–3) via 1834(a)(2)(B)(i) of the Act for calculating generally equal to 80 percent of the transmittal number 1279, by adding the base fee schedule amount for lesser of the actual charge or the fee section 5102 and detailed instructions routinely purchased equipment.’’ This schedule amount for the item, less any for implementation of the fee schedules period was therefore established as the unmet Part B deductible. The and payment classes for DME mandated period from which data was used for beneficiary’s coinsurance for such items by section 4062 of OBRA 87. The new identifying the items that had been is generally equal to 20 percent of the implementing instructions were acquired on a purchase basis 75 percent lesser of the actual charge or the fee effective for services furnished on or of the time or more under the Medicare schedule amount for the item once the after January 1, 1989. Section 5102.1 rent/purchase program. deductible is met. The fee schedule indicated that carriers would be amounts are generally calculated using provided with a listing of the HCPCS 3. Payment for Inexpensive or Routinely average allowed charges from a base (Health Care Financing Administration Purchased Items and Capped Rental period and then increased by annual Common Procedure Coding System Items update factors. Sections 1834(a)(2) prior to 2003 and Healthcare Common Pursuant to 42 CFR § 414.220(b) through (a)(7) of the Act set forth Procedure Coding System beginning in payment for inexpensive or routinely separate classes of DME and separate 2003) codes for the equipment in the purchased DME is made on a purchase

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or rental basis, with total payments with the rules at section 1834(a) of the 1834(a) of the Act. We are clarifying the being limited to the purchase fee Act and are classified under sections existing definition of routinely schedule amount for the item. If an item 1834(a)(3) thru (7) of the Act as purchased equipment at § 414.220(a)(2) is initially rented and then purchased, inexpensive and other routinely and providing notice that certain the allowed purchase charge is based on purchased DME, items requiring HCPCS codes for DME and DME the lower of the actual charge or fee frequent and substantial servicing, accessories added to the HCPCS after schedule amount for purchase of the certain customized items, oxygen and 1989 that are currently classified as item minus the cumulative allowed oxygen equipment, other covered items routinely purchased equipment should charge for previously paid rental claims. other than DME, or other covered items be reclassified as capped rental items Pursuant to 42 CFR § 414.229(f), of DME. (see Table 11 below). This applies to all payment for capped rental items is Additionally, we found that in some expensive items for which Medicare made on a monthly rental basis for up cases, expensive items of DME were claims data July 1986 through June 1987 to 13 months of continuous use. The classified as routinely purchased based does not exist or does not indicate that supplier must transfer title to the on information suggesting that payers the item was acquired by purchase on equipment to the beneficiary on the first other than Medicare were routinely a national basis at least 75 percent of the day following the 13th month of making payment for the items on a time. In the case of expensive continuous use. purchase basis. We believe that accessories that are furnished for use classifying an item as routinely B. Current Issues with complex rehabilitative power purchased equipment based on data and wheelchairs, the purchase option for Concerns have been raised about the information from other payers for the complex rehabilitative power application of the definition of and purposes of implementing § 414.220(b) wheelchairs at section 1834(a)(7)(A)(iii) payment for routinely purchased DME, is inappropriate because other payers do of the Act would also apply to these as it applies to expensive DME not operate under the same payment accessories. For any wheelchair accessories. For example, recently one rules as Medicare. Other payers may accessory classified as a capped rental manufacturer of a new, expensive decide to purchase expensive items for item and furnished for use with a wheelchair accessory, included under a reasons other than a achieving a more complex rehabilitiave power wheelchair HCPCS code that would result in a economical alternative to rental, the (that is, furnished to be used as part of corresponding Medicare fee schedule basis Medicare contractors used in the complex rehabilitative power amount of approximately $3,000, if deciding whether to purchase items wheelchair), the supplier must give the purchased, questioned why the HCPCS during July 1986 through June 1987. In beneficiary the option of purchasing code describing their product was other cases, expensive items of DME these accessories at the time they are classified as capped rental DME. They were classified as routinely purchased furnished. These items would be pointed out that codes added to the equipment based on requests from considered as part of the complex HCPCS in recent years for other similar manufacturers of equipment primarily rehabilitative power wheelchair and and more expensive wheelchair used by Medicaid beneficiaries. We do associated purchase option set forth at accessories costing $4,000 to $10,000 not believe we should classify an item § 414.229(a)(5). were classified as routinely purchased as routinely purchased equipment for DME even though the items were not the purposes of implementing We are soliciting comments on the purchased under Medicare during the § 414.220(b) of the Medicare regulations effective date(s) for reclassifying items period specified in § 414.220(b). As a based on how this might affect other previously classified as routinely result, we began a review of expensive payers such as Medicaid state agencies purchased equipment to the capped items that have been classified as because such classifications are not rental payment class in order to be in routinely purchased equipment since consistent with the regulations, which compliance with current regulations. 1989, that is, new codes added to the for Medicare purposes generally require Given that some items (HCPCS codes) HCPCS after 1989 for items costing more payment on a capped rental basis for may be included in the Round 2 and/ than $150, to address this apparent any item with a purchase cost of greater or Round 1 Recompete phases of the inconsistency. than 150 dollars. After reviewing this competitive bidding program, we do not As a result of this review, we found issue, we do not think the regulation believe we can change the classification some codes that are not classified supports the classification of expensive for items furnished under these consistent with the regulatory definition DME as routinely purchased equipment programs until the contracts awarded of routinely purchased equipment at based solely on whether other payers based on these competitions expire on section § 414.220(a)(2). We found that routinely pay for the item on a purchase July 1, 2016, and January 1, 2017, HCPCS codes added after 1989 for basis or how manufacturers would respectively, regardless of whether the expensive, durable accessories used prefer that other payers pay for the item. item is provided in an area subject to with base equipment, such as The classification of HCPCS codes for competitive bidding or not. We propose wheelchairs, have been classified as expensive equipment added after 1989 that the reclassification of items routinely purchased equipment. While as routinely purchased equipment based previously classified as routinely section 1834(a)(2)(A)(iii) of the Act and on this kind of information does not purchased equipment to the capped 42 CFR § 414.220(a)(3) of the regulations comply with the Medicare definition of rental payment class be effective allow payment for the purchase of routinely purchased equipment and January 1, 2014, for all items that are not accessories used in conjunction with defeats a fundamental purpose of the included in either a Round 2 or Round nebulizers, aspirators, continuous capped rental payment methodology to 1 Recompete competitive bidding positive airway pressure devices avoid paying the full purchase price of program (CBP) established in (CPAP), other items covered under the costly equipment used only a short accordance with § 414.400. For any item DME benefit including DME other than time. currently under a Round 2 CBP, instead nebulizers, aspirators, CPAP devices, DME and accessories used in of a January 1, 2014, effective date we respiratory assist devices and conjunction with DME are paid for propose July 1, 2016, for these accessories used in conjunction with under the DME benefit and in reclassifications, which would apply to those items, are paid for in accordance accordance with the rules at section all items furnished in all areas of the

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country, with the exception of items in nine areas of the country for the six- capped rental DME payment class. The furnished in a Round 1 Recompete CBP. month period from July 1, 2016, thru codes are shown in Table 11 below. The For items furnished in a Round 1 December 31, 2016, Medicare payment impacts of our changes are included in Recompete CBP, we propose an effective would be on a capped rental basis in all the discussion of impacts in section X date of January 1, 2017, which would parts of the country other than these of this rule. only apply to items furnished in the nine areas. As shown in Table 11, Column A of nine Round 1 Recompete areas. Alternatively, the effective date for the table shows the type of DME. Therefore, we propose to generally base the reclassifications could be January 1, Columns B and C indicate the HCPCS the effect dates on when the competitive 2014, for all items paid under the fee level II codes and the short descriptor. bidding programs end. To summarize, schedule. In other words, the The long descriptor for each code is the proposed effective dates for the reclassification would not affect available at http://www.cms.gov/ reclassifications of these items from the payments for items furnished under the Medicare/Coding/ routinely purchased DME class to the Round 2 or Round 1 Recompete CBPs in HCPCSReleaseCodeSets/Alpha- capped rental DME class would be: the respective CBAs until the contract Numeric-HCPCS.html. • January 1, 2014, for items furnished entered into under these programs As shown in Column A, the majority in all areas of the country if the item is expire on July 1, 2016, and January 1, not included in Round 2 or Round 1 of codes relate to manual wheelchairs 2017, respectively. However, this and wheelchair accessories. In the case Recompete CBP; alternative would result in an extensive • July 1, 2016, for items furnished in of accessories that are only used with two and a half year period from Janary all areas of the country if the item is complex rehabilitative power 2014 through June 2016, where included in a Round 2 CBP and not a wheelchairs classified as capped rental Medicare payment would be on a Round 1 Recompete CBP and for items items, the purchase option for complex capped rental basis for the items in half included in a Round 1 Recompete CBP rehabilitative power wheelchairs of the country (non-competitive bidding but furnished in an area other than one applies to these accessories because of the 9 Round 1 Recompete areas; and areas) and on a purchase basis in the they are part of the capped rental • January 1, 2017, for items included other half of the country (109 Round 2 wheelchair that the supplier is required in a Round 1 Recompete CBP and and/or Round 1 Recompete competitive to offer to the beneficiary on a lump furnished in one of the nine Round 1 bidding areas). We believe that this sum purchase basis. We have displayed Recompete areas. bifurcation in payment classifications in Column B the items that would be With the exception of the items would create confusion and would be associated with the purchase option set described in the fourth bullet, this difficult to implement, and we are forth at section § 414.229(a)(5). implementation strategy would allow soliciting comments on this alternative Wheelchair accessories that are also the item to be moved to the payment implementation strategy. used with manual wheelchairs or class for capped rental items at the same We have identified approximately 80 standard power wheelchairs would also time in all areas of the country without HCPCS codes requiring reclassification be subject to the purchase option if they disrupting CBPs currently underway. from the inexpensive or routinely are furnished for use with a complex For Round 1 Recompete items furnished purchased DME payment class to the rehabilitative power wheelchair.

TABLE 11—ROUTINELY PURCHASED ITEMS RECLASSIFIED TO CAPPED RENTAL

Group category HCPCS Descriptor

Automatic External Defibrillator ...... K0607 ...... Repl battery for AED. Canes/Crutches ...... E0117 ...... Underarm spring assist crutch. Glucose Monitor ...... E0620 ...... Capillary blood skin piercing device laser. High Frequency Chest Wall Oscillation Device (HFCWO) ...... A7025 ...... Replace chest compress vest. Hospital Beds/Accessories ...... E0300 ...... Enclosed ped crib hosp grade. Misc. DMEPOS ...... A4639 ...... Infrared ht sys replacement pad. E0762 ...... Trans elec jt stim dev sys. E1700 ...... Jaw motion rehab system. Nebulizers & Related Drugs ...... K0730 ...... Ctrl dose inh drug deliv system. Osteogenesis Stimulator ...... E0760 ...... Osteogenesis ultrasound stimulator. Other Neuromuscular Stimulators ...... E0740 ...... Incontinence treatment system. E0764 ...... Functional neuromuscular stimulation. Pneumatic Compression Device ...... E0656 ...... Segmental pneumatic trunk. E0657 ...... Segmental pneumatic chest. Power Operated Vehicles (POV) ...... E0984 ...... Add pwr tiller. Respiratory Equipment ...... E0457 ...... Chest shell. Speech Generating Devices ...... E2500 ...... SGD digitized pre-rec <=8min. E2502 ...... SGD prerec msg >8min <=20min. E2504 ...... SGD prerec msg >20min <=40min. E2506 ...... SGD prerec msg > 40 min. E2508 ...... SGD spelling phys contact. E2510 ...... SGD w multi methods messg/access. Support Surfaces ...... E0197 * ...... Air pressure pad for mattress. E0198 ...... Water pressure pad for mattress. Traction Equipment ...... E0849 ...... Cervical pneum traction equip. E0855 ...... Cervical traction equipment. E0856 ...... Cervical collar w air bladder. Walkers ...... E0140 * ...... Walker w trunk support. E0144 ...... Enclosed walker w rear seat. E0149 * ...... Heavy duty wheeled walker. Wheelchairs Manual ...... E1161 ...... Manual adult wc w tiltinspac.

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TABLE 11—ROUTINELY PURCHASED ITEMS RECLASSIFIED TO CAPPED RENTAL—Continued

Group category HCPCS Descriptor

E1232 ...... Folding ped wc tilt-in-space. E1233 ...... Rig ped wc tltnspc w/o seat. E1234 ...... Fld ped wc tltnspc w/o seat. E1235 ...... Rigid ped wc adjustable. E1236 ...... Folding ped wc adjustable. E1237 ...... Rgd ped wc adjstabl w/o seat. E1238 ...... Fld ped wc adjstabl w/o seat. Wheelchairs Options/Accessories ...... E0985 * ...... W/c seat lift mechanism. E0986 ...... Man w/c push-rim pow assist. E1002 ∧ ...... Pwr seat tilt. E1003 ∧ ...... Pwr seat recline. E1004 ∧ ...... Pwr seat recline mech. E1005 ∧ ...... Pwr seat recline pwr. E1006 ∧ ...... Pwr seat combo w/o shear. E1007 ∧ ...... Pwr seat combo w/shear. E1008 ∧ ...... Pwr seat combo pwr shear. E1010 ∧ ...... Add pwr leg elevation. E1014 ...... Reclining back add ped w/c. E1020 * ...... Residual limb support system. E1028 * ...... W/c manual swingaway. E1029 ...... W/c vent tray fixed. E1030 ∧ ...... W/c vent tray gimbaled. E2227 ...... Gear reduction drive wheel. E2228 * ...... Mwc acc, wheelchair brake. E2310 ∧ ...... Electro connect btw control. E2311 ∧ ...... Electro connect btw 2 sys. E2312 ∧ ...... Mini-prop remote joystick. E2313 ∧ ...... PWC harness, expand control. E2321 ∧ ...... Hand interface joystick. E2322 ∧ ...... Mult mech switches. E2325 ∧ ...... Sip and puff interface. E2326 ∧ ...... Breath tube kit. E2327 ∧ ...... Head control interface mech. E2328 ∧ ...... Head/extremity control interface. E2329 ∧ ...... Head control interface nonproportional. E2330 ∧ ...... Head control proximity switch. E2351 ∧ ...... Electronic SGD interface. E2368 * ...... Pwr wc drivewheel motor replace. E2369 * ...... Pwr wc drivewheel gear box replace. E2370 * ...... Pwr wc dr wh motor/gear comb. E2373 ...... Hand/chin ctrl spec joystick. E2374 ∧ ...... Hand/chin ctrl std joystick. E2375 * ...... Non-expandable controller. E2376 ∧ ...... Expandable controller, replace. E2377 ∧ ...... Expandable controller, initial. E2378 ...... Pw actuator replacement. K0015 * ...... Detach non-adjus hght armrst. K0070 * ...... Rear whl complete pneum tire. Wheelchairs Seating ...... E0955 * ...... Cushioned headrest. * Effective July 1, 2016. If the item is furnished in CBAs in accordance with contracts entered into as part of the Round 1 Recompete of DMEPOS CBP, then effective January 1, 2017. ∧ Item billable with Complex Rehabilitative Power Wheelchair codes K0835–K0864.

In summary, we are providing notice undersection 1861(s)(6) of the Act to section 1819(a)(1) of the Act. Besides of certain HCPCS codes that would be include DME. In addition, section being subject to this provision, the reclassified as capped rental items (see 1861(m)(5) of the Act specifically coverage of DME must meet the Table 11 of codes). We invite comments includes DME in the definition of the requirements of section 1862(a)(1)(A) of on this section. term ‘‘home health services.’’ In the Act, which in general excludes from accordance with section 1861(n) of the payment any items or services that are V. Clarification of the 3-Year Minimum Act, the term ‘‘durable medical not reasonable and necessary for the Lifetime Requirement (MLR) for DME equipment’’ includes iron lungs, oxygen diagnosis or treatment of illness or DME is covered by Medicare based, in tents, hospital beds, and wheelchairs injury or to improve the functioning of part, upon section 1832(a) of the Act, used in the patient’s home whether a malformed body member, and section which describes the scope of benefits furnished on a rental basis or 1862(a)(6) of the Act, which (except for under the supplementary medical purchased. The patient’s home includes certain specified exceptions) precludes insurance program (Medicare Part B), to an institution used as his or her home payment for personal comfort items. include ‘‘medical and other health other than an institution that meets the Section 414.202 defines DME as services,’’ which is further defined requirements of section 1861(e)(1) or equipment furnished by a supplier or a

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home health agency that meets the determinations and national coverage considered durable unless it has an following conditions: (1) Can withstand determinations for DME. expected life of at least 3 years. repeated use; (2) effective with respect The 3-year MLR is designed to Therefore, the 3-year MLR applies to to items classified as DME after January represent a minimum threshold for a new items after January 1, 2012, and 1, 2012, has an expected life of at least determination of durability for a piece does not apply to items covered under 3 years; (3) is primarily and customarily of equipment. The 3-year MLR is not an the DME benefit on or prior to January used to serve a medical purpose; (4) indication of the typical or average 1, 2012. Items classified as DME on or generally is not useful to an individual lifespan of DME, which in many cases before January 1, 2012, are considered in the absence of an illness or injury; is far longer than 3 years. The 3-year ‘‘grandfathered items’’ for the purpose and is appropriate for use in the home. MLR does not apply to disposable of this requirement, regardless of Prior to 2012, the definition for DME supplies or accessories covered for use whether they meet the 3-year rule. did not contain a 3-year minimum with DME such as masks, tubing, and For the purpose of providing further lifetime requirement (MLR) although blood glucose test strips. The 3-year guidance on the scope of the 3-year Section 110.1 of chapter 15 of the MLR is prospective only and does not MLR, we are providing clarification Medicare Benefit Policy Manual (CMS- apply to equipment classified as DME about how we would regard Pub. 100–02) provided further guidance before the regulation was effective, that grandfathered items covered as DME with regard to the definition of DME is, January 1, 2012. prior to the effective date and we and durability of an item that is when We also determined that the 3-year request comments on that clarification. an item is considered durable. MLR should not apply to equipment If the product is modified (upgraded, classified as DME before the effective refined, reengineered, etc.) after January B. Current Issues date to allow for continued coverage of 1, 2012, the item would still be On November 10, 2011, CMS issued a such equipment that healthcare industry classified as DME as a grandfathered final rule in which it revised the and beneficiaries have come to rely on, item unless the modified product now definition of DME at § 414.200 by regardless of whether those items met has an expected life that is shorter than adding a 3-year MLR effective January 1, the 3-year MLR set forth at 42 CFR the expected lifetime for the item 2012, that must be met by an item or 414.202 (76 FR 70288). Given that covered as DME prior to January 1, device in order to be considered durable reliance, we did not intend to reopen 2012, In this case, we consider the item, for the purpose of classifying the item those prior decisions and reclassify the as modified, to be a new item that is under the Medicare benefit category for equipment in light of the 3-year subject to the 3-year MLR. For example, DME (76 FR 70228 (November 10, standard. We believe that continuing equipment covered prior to January 1, 2011)). Specifically, an additional Medicare coverage for items that 2012, and described by code X has a life condition under § 414.200 is that DME qualified as DME prior to the effective of at least 2 years. If, after January 1, must be equipment furnished by a date, helps avoid disrupting the 2012, that item is modified such that it supplier or a home health agency that, continuity of care for the beneficiaries no longer lasts 2 years, such effective with respect to items classified that received these items for medical modification would render the item as DME after January 1, 2012, has an treatment prior to January 1, 2012. ‘‘new’’ and it would be subject to the 3- expected life of at least 3 years. The Beneficiaries have been relying on year MLR. Therefore, since the new change to the regulation was designed to these items for their treatment to the (modified) product does not last 3 years, further clarify the meaning of the term extent that the items have been covered it would not meet the definition of DME ‘‘durable’’ and provide an interpretation as DME under Medicare and applying under the regulation and could not be of the statute generally consistent with the 3-year MLR to these items could covered or be billed using the code that the DME payment and coverage impact the continuity of care for these described the item before it was provisions, including, Medicare beneficiaries. Furthermore, we believed modified. program guidance at section 280.1 of that a vast majority of the categories of We seek comments on this proposed chapter 1, part 4 of the Medicare items that were classified as DME before clarification. National Coverage Determinations January 1, 2012, did function for 3 or VI. Implementation of Budget-Neutral Manual (Pub. 100–03) which specifies more years. We also noted that the 3- Fee Schedules for Splints, Casts and that an item can withstand repeated use year durability rule would only apply to Intraocular Lenses (IOLs) means that the item could normally be new products, and, to the extent that a rented and used by successive patients. modified product is not a new product, A. Background The 3-year MLR is intended to specify the 3-year MLR would not be 1. Payment Under Reasonable Charges that durable equipment is equipment applicable. that can withstand repeated use over an In response to the public comments Payment for most items and services extended period of time. Since the vast that requested further clarification on furnished under Part B of the Medicare majority of items covered under the the application of the grandfathering program is made through contractors DME benefit over the years last for 3 or provision for the 3-year MLR, we noted known as Medicare Administrative more years, the MLR is intended to that we would consider issuing Contractors (MACs). These contractors clarify the scope of the DME benefit additional guidance to provide further were previously referred to as carriers. primarily for new items coming on the clarification, if necessary (76 FR 70290). Prior to 1988, in accordance with market or in the process of being For purposes of providing additional section 1842(b) of the Act, payment for developed. The standard set forth in guidance on the scope of the most of these items and services was regulations gives manufacturers and the grandfathered items under the made on a reasonable charge basis by public a clear understanding of how provision, we invite public comments these contractors, with the criteria for long an item would need to withstand on this issue. determining reasonable charges set forth repeated use in order the meet the at 42 CFR part 405, subpart E of our durability requirement for DME. The C. Scope of the 3-Year MLR for DME regulations. rule also provides clear guidance to Under § 414.202, effective with Under this general methodology, CMS and other stakeholders for making respect to items classified as DME after several factors or ‘‘charge screens’’ were consistent informal benefit category January 1, 2012, an item is not developed for determining the

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reasonable charge for an item or service. payment purposes began with the fee devices (that is, these terms are In accordance with § 405.503, each schedule for clinical diagnostic excluded from such definition), and not supplier’s ‘‘customary charge’’ for an laboratory tests in 1988. As of 1997, intended to suggest these are mutually item or service, or the 50th percentile of very few items and services were still exclusive things. Accordingly, we do charges for an item or service over a 12- paid on a reasonable charge basis, not believe we are precluded from month period, was one factor used in which is a very time consuming and establishing fee schedules for IOLs determining the reasonable charge. In laborious process. Contractors must under the category of medical supplies accordance with § 405.504, the collect new charge data each year, under section 1842(s) of the Act. ‘‘prevailing charge’’ in a local area, or perform the various calculations, and Nevertheless, we are specifically the 75th percentile of suppliers’ maintain pricing files and claims requesting comments on this issue. customary charges for the item in the processing edits for the various charge Section 1842(s)(1) of the Act provides locality, was also used in determining screens. For each item that is paid on a that the fee schedules for the services the reasonable charge. For the purpose reasonable charge basis, administrative listed above are to be updated on an of calculating prevailing charges, a funding must be provided to contractors annual basis by the percentage increase ‘‘locality’’ is defined at § 405.505 of our for the purpose of performing these in the CPI–U (United States city regulations and ‘‘may be a State calculations and maintaining these average) for the 12-month period ending (including the District of Columbia, a pricing files. Therefore, replacing with June of the preceding year, reduced territory, or a Commonwealth), a reasonable charge payments with fee by the productivity adjustment political or economic subdivision of a schedules eliminates the need to fund described in section 1886(b)(3)(B)(xi)(II) State, or a group of States.’’ The these efforts and saves money that can of the Act. Total payments for the initial regulation further specifies that the be used to implement other parts of the year of the fee schedules must be locality ‘‘should include a cross section program. Section 4315 of the Balanced budget-neutral, or approximately equal of the population with respect to Budget Act of 1997 (BBA) amended the to the estimated total payments that economic and other characteristics.’’ In Act at section 1842 by adding a new would have been made under the accordance with § 405.506, for certain subsection (s). Section 1842(s) of the Act reasonable charge payment items, such as parenteral and enteral provides authority for implementing methodology. As explained below, we nutrients, supplies, and equipment, an statewide or other area wide fee used this authority to establish fee additional factor referred to as the schedules to be used for payment of the schedules for parental and enteral ‘‘lowest charge level’’ was used in following services that were previously nutrition (PEN) items and services for determining the reasonable charge for on a reasonable charge basis: use in paying claims with dates of an item or service. In accordance with • Medical supplies. service on or after January 1, 2002. section 5025 of the Medicare Carriers • Home dialysis supplies and On July 27, 1999, we published a Manual (HCFA Pub. 14–3) and equipment (as defined in section notice of proposed rulemaking (64 FR § 405.509 of our regulations, effective 1881(b)(8) of the Act). 40534) to establish fee schedules for for items furnished on or after October • Therapeutic shoes. PEN items and services, splints and 1, 1985, an additional factor, the • Parenteral and enteral nutrients, casts, intraocular lenses (IOLs) inserted ‘‘inflation-indexed charge (IIC),’’ was equipment, and supplies (PEN). in a physician’s office, and various other added to the factors taken into • Electromyogram devices. items and services for which section consideration in determining the • Salivation devices. 1842(s) of the Act provided authority for • Blood products. replacing the reasonable charge reasonable charge for certain items and • services. The IIC is defined in Transfusion medicine. payment methodology with fee § 405.509(a) as the lowest of the fee For Medicare payment purposes, we schedules. After reviewing public screens used to determine reasonable interpret the category ‘‘medical comments on the proposed rule, we charges for items and services, supplies’’ under section 1842(s) of the decided to move ahead with a final rule including supplies, and equipment Act to include all other items paid on establishing fee schedules for the reimbursed on a reasonable charge basis a reasonable charge basis as of 1997 that Parenteral and Enteral Nutrition (PEN) (excluding physicians’ services) that is do not fall under any of the other items and services, but not the other in effect on December 31 of the previous categories listed in section 1842(s) of the items and services, primarily related to fee screen year, updated by the inflation Act. We believe that section 1842(s) of concerns regarding data used for adjustment factor. The inflation the Act is intended to provide authority calculating fee schedule amounts for adjustment factor is based on the for establishing fee schedules for all of items and service that are no longer paid current percentage change in the the remaining, and relatively small on a reasonable charge basis. The final consumer price index for all urban number of items and services still paid rule for implementing the fee schedules consumers (United States city average) for on a reasonable charge basis at the for PEN items and services was (CPI–U) for the 12-month period ending time of enactment in 1997. In light of published on August 28, 2001 (66 FR June 30. The reasonable charge is this provision, we generally consider 45173). For splints and casts, national generally set based on the lowest of the ‘‘intraocular lenses’’ to be paid as reasonable charge amounts, updated on actual charge for the item or service or ‘‘medical supplies.’’ Therefore, in an annual basis by the IIC, have been the factors described above. addition to including splints and casts used to pay for the splint and cast under this category, we also propose to materials. Converting these amounts to 2. Payment Under Fee Schedules include intraocular lenses inserted in a national fee schedule amounts that are Specific provisions have been added physician’s office for the purpose of updated by the same index factor used to the Act mandating replacement of the implementing this specific section. in updating the reasonable charge reasonable charge payment Although we recognize the terms amounts would result in no change in methodology with fee schedules for ‘‘intraocular lenses’’ and ‘‘medical payment, or 100 percent budget- most items and services furnished under supplies’’ are separately identified neutrality. Currently, very few IOLs are Part B of the Medicare program. The under § 414.202, we note that such inserted in a physician’s office phase in of fee schedules to replace terms are listed for purposes of defining nationally. In 2011, total allowed reasonable charges for Medicare what constitutes orthotic and prosthetic charges for 437 IOLs furnished to 287

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beneficiaries equaled $75,914. Since final fee schedule amount will be of the Act and 42 CFR Part 414, Subpart IOLs are considerably low volume items specified in the final rule. We currently D. We propose to make three minor, furnished by very few suppliers do not have the percentage change in conforming technical amendments to nationally, there are some states where the CPI–U for the 12-month period the existing DMEPOS payment none of these items are furnished; ending with June of 2013 to update the regulations (the title of Subpart D and therefore, charge data for use in fee-schedule amounts for splints and 42 CFR § 414.200 and § 414.226). calculating prevailing charges, even at casts. Specifically, we are proposing to B. Proposed Technical Amendments the state level, are not available and amend 42 CFR § 414.106 and § 414.100 and Corrections budget-neutrality is not an issue. If the to include the general rule for updating national average allowed amount for the fee schedules for splints, casts and Below are the proposed technical these items is used as the fee schedule amendments. IOLs inserted in a physician’s office. We • amount for the few IOLs that are still are also proposing to add § 414.106 and We propose to modify the title of inserted in a physician’s office, we do § 414.108 to set forth the fee schedule ‘‘Subpart D—Payment for Durable not believe that total allowed charges in methodology and updates as explained Medical Equipment, Prosthetic and the first year of the fee schedule would above for splints, casts, and IOLs Orthotic Devices’’ to read ‘‘Subpart D— be significantly different than what inserted in a physician’s office. Subject Payment for Durable Medical would otherwise be paid nationally to coinsurance and deductible rules, Equipment, Prosthetic and Orthotic under the current reasonable charge Medicare payment for these services is Devices, and Surgical Dressings’’ to payment methodology. For 2011, the to be equal to the lower of the actual reflect that payment for surgical national average allowed charge for charge for the item or the amount dressings is addressed under this covered claims for the 287 beneficiaries determined under the applicable fee subpart at § 414.220(g). • In subpart § 414.200, we propose to receiving IOLs inserted in a physician’s schedule payment methodology. modify the phrase ‘‘This subpart office was $174 ($75,914 ÷ 437). In some For splints and casts, we propose implements sections 1834 (a) and (h) of cases, the allowed charge for specific national fee schedule amounts for items the Act by specifying how payments are claims in 2011 was less than $174 and furnished from January 1, 2014, thru made for the purchase or rental of new in other cases the allowed charge was December 31, 2014, based on 2013 and used durable medical equipment more than $174. However, given the low reasonable charges updated by the and prosthetic and orthotic devices for volume of items furnished nationally, percentage increase in the consumer Medicare beneficiaries.’’ as follows: the budget impact of paying all of the price index for all urban consumers ‘‘This subpart implements sections 1834 approximately 437 claims based on the (United States city average) for the 12- national average allowed amount would (a),(h), and (i) of the Act by specifying month period ending with June 2013. how payments are made for the be negligible. We believe establishing For subsequent years, the fee schedule budget-neutral fee schedule amounts for purchase or rental of new and used amounts would be updated by the durable medical equipment, prosthetic splints and casts, and IOLs inserted in percentage increase in the consumer a physician’s office will save and orthotic devices, and surgical price index for all urban consumers dressings for Medicare beneficiaries.’’ government resources in calculating the (United States city average) for the 12- reasonable charge payment for the low The Omnibus Budget Reconciliation Act month period ending with June of the of 1993 amended section 1834 of the volume items. We are proposing to preceding year, reduced by the establish fee schedules for these items Act by adding subsection (i), mandating productivity adjustment as described in payment on a fee schedule basis for effective for paying claims with dates of section 1886(b)(3)(B)(xi)(II) of the Act. service on or after January 1, 2014. surgical dressings. Although For IOLs inserted in a physician’s § 414.220(g) addresses this requirement, B. Provisions of the Proposed office, we propose national fee schedule the regulation at § 414.200 was not Regulations amounts for items furnished from updated to indicate that this subpart January 1, 2014, thru December 31, For the reasons we articulated above, implements section 1834(i) in addition 2014, based on the national average we propose, under section 1842(s) of the to sections 1834(a) and (h) of the Act. allowed charge for the item from Act, to implement fee schedules for • Section 1834(a)(9)(D) of the Act January 1, 2012 through December 31, splints and casts, and IOLs inserted in provides authority for creating separate 2012, updated by the percentage a physician’s office falling under the classes of oxygen and oxygen increase in the consumer price index for category of medical supplies. In equipment. Section 1834(a)(9)(D)(ii) of all urban consumers (United States city addendum C of this proposed rule, we the Act prohibits CMS from creating average) for the 24-month period ending have inserted the current 2013 separate classes of oxygen and oxygen with June 2013. For subsequent years, reasonable charge amounts for splints, equipment that result in expenditures casts and IOLs inserted in a physician’s the fee schedule amounts would be for any year that are more or less than office. The splints and casts are updated by the percentage increase in expenditures which would have been payment amount limits updated by the the consumer price index for all urban made if the separate classes had not CPI–U factor ending with June of the consumers (United States city average) been created. In other words, the new preceding year, in this case June 2012. for the 12-month period ending with classes and payment amounts for The IOLs inserted in physician’s office June of the preceding year, reduced by oxygen and oxygen equipment must be estimates the 2012 average allowed the productivity adjustment as established so that creating the new charge. We would not have the entire described in section 1886(b)(3)(B)(xi)(II) classes is annually budget-neutral. In calendar year estimates for 2013 average of the Act. November 2006, we published a final allowed charge for IOLs inserted in a VII. DMEPOS Technical Amendments rule establishing separate classes for physician’s office in order to implement and Corrections oxygen and oxygen equipment and the fee schedule amounts for these items included a methodology for meeting the effective for paying claims with dates of A. Background requirements of section 1834(a)(9)(D)(ii) service on or after January 1, 2014; Medicare pays for various DMEPOS of the Act by applying annual therefore, we are using the estimate of items and services based on payment reductions to the monthly fee schedule the 2012 average allowed charge. The rules that are set forth in section 1834 amounts for the stationary oxygen

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equipment class at § 414.226(c)(1)(i) in VIII. Collection of Information and, for PY 2017 and beyond, to order to establish budget neutrality for Requirements administer (via a CMS-approved vendor) a second ICH CAHPS survey total oxygen and oxygen expenditures A. Legislative Requirement for and report the second set of survey data for all oxygen classes. Increases in Solicitation of Comments expenditures for oxygen and oxygen to CMS. Therefore, for PY 2016, we equipment that are attributed to higher Under the Paperwork Reduction Act estimate the burden associated with this payment amounts established for new of 1995, we are required to provide 60- requirement to be the time and effort day notice in the Federal Register and classes of oxygen and oxygen equipment necessary for facilities to submit (via a solicit public comment before a CMS-approved vendor) survey results to are off set by reducing the monthly collection of information requirement is payment amount for stationary oxygen CMS. For PY 2017 and future payment submitted to the Office of Management years, we estimate the burden associated equipment. Due to a drafting error in the and Budget (OMB) for review and with this requirement is the time and regulation text portion of the November approval. In order to fairly evaluate effort necessary for facilities to 2006 final rule, CMS–1304–F (71 FR whether an information collection administer (via a CMS-approved 65933), 42 CFR § 414.226(c)(6) needs to requirement should be approved by vendor) a second ICH CAHPS survey be corrected. The regulation text at OMB, section 3506(c)(2)(A) of the and submit (via a CMS-approved § 414.226(c)(6) mistakenly states that Paperwork Reduction Act of 1995 vendor) the survey results to CMS. budget neutrality should be achieved by requires that we solicit comment on the We estimate that approximately 5,506 adjusting all oxygen class rates. Section following issues: facilities will treat adult, in-center 414.226(c)(6) should read that only the • The need for the information hemodialysis patients in PY 2016 and, stationary oxygen equipment rate collection and its usefulness in carrying therefore, will be eligible to receive a should be adjusted to achieve budget out the proper functions of our agency. score on this measure. We further • neutrality. Therefore, we propose that The accuracy of our estimate of the estimate that all 5,506 facilities will information collection burden. report (via a CMS-approved vendor) § 414.226(c)(6) be revised to read as • follows: ‘‘Beginning in 2008, CMS The quality, utility, and clarity of survey results to CMS, and that it will makes an annual adjustment to the the information to be collected. take each vendor approximately 5 • Recommendations to minimize the national limited monthly payment rate minutes to do so. Therefore, the information collection burden on the estimated total annual burden for items described in paragraph (c)(1)(i) affected public, including automated of this section to ensure that such associated with meeting the measure collection techniques. requirements in PY 2016 is 459 hours payment rates do not result in × expenditures for any year that are more B. Requirements in Regulation Text [(5/60) hours 5,506 facilities). According to the Bureau of Labor or less than the expenditures that would In section II.D. of this proposed rule, Statistics, the mean hourly wage of a have been made if such classes had not we are proposing changes to regulatory registered nurse is $32.66/hour. Since been established.’’ text for the ESRD PPS in CY 2014. we anticipate nurses (or administrative However, the changes that are being • We are also making a technical staff who would be paid at a lower proposed do not impose any new correction to existing 42 CFR hourly wage) will submit this data to information collection requirements. § 414.102(c) to conform the regulation CMS, we estimate that the aggregate cost governing parenteral and enteral (PEN) C. Additional Information Collection of this requirement for PY 2016 will be nutrients, equipment and supplies Requirements $14,991 (459 hours × $32.66/hour). covered item fee schedule update with This proposed rule does not impose We estimate that approximately 5,693 the statute. Although section any new information collection facilities will treat adult, in-center 1842(s)(1)(B)(ii) of the Act is self- requirements in the regulation text, as hemodialysis patients in PY 2017 and, implementing, the PEN nutrients, specified above. However, this proposed therefore, will be eligible to receive a equipment and supplies payment rule does make reference to several score on this measure. We estimate that regulations at 42 CFR 414 Subpart C associated information collections that all 5,693 facilities will administer the were not updated to reflect the are not discussed in the regulation text ICH CAHPS survey through a third- application of the multifactor contained in this document. The party vendor and arrange for the vendor to submit the data to CMS. We estimate productivity adjustment to the CPI–U following is a discussion of these that it would take each patient 30 update factor for 2011 and subsequent information collections. minutes to complete the survey (to calendar years. Therefore, we are 1. ESRD QIP account for variability in education revising § 414.102(c) of our regulations a. Proposed Expanded ICH CAHPS levels) and that approximately 103 to specify that for years 2003 through surveys per year would be taken per 2010, the PEN items and services fee Reporting Measure for PY 2016 and Future Payment Years of the ESRD QIP facility. Interviewers from each vendor schedule amounts of the preceding year would therefore spend a total of are updated by the percentage increase As stated above in section III.C.2.a of approximately 52 hours per year with in the CPI–U for the 12-month period this proposed rule, we proposed to patients completing these surveys (0.5 ending with June of the preceding year. include in the PY 2016 ESRD QIP an hours * 103 surveys) or $1,698 (52 hours For each year subsequent to 2010, the expanded ICH CAHPS reporting × $32.66) for an estimated annual PEN items and services fee schedule measure, which assesses facility usage burden of $9,666,714 ($1,698 per facility amounts of the preceding year are of the ICH CAHPS survey. Unlike the × 5,693 facilities).9 We previously updated by the percentage increase in ICH CAHPS reporting measure finalized estimated that the aggregate cost of in the CY 2013 ESRD PPS final rule (77 the CPI–U for the 12-month period submitting survey data to CMS is FR 67480 through 67481), the proposed ending with June of the preceding year, $14,991. Therefore, we estimate that the expanded ICH CAHPS reporting reduced by the productivity adjustment measure would require facilities to described in section 1886(b)(3)(B)(xi)(II) 9 We note that this total represents an report (via a CMS-approved vendor) underestimate of the overall burden because it does of the Act. survey data to CMS once for PY 2016, not include time costs for patients.

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total annual burden for ESRD facilities [CMS–1526–P], Fax: (202) 395–6974; or estimate of the change in the utilization to comply with the collection of Email: [email protected]. of ESRD-related drugs and biologicals. information requirements associated IX. Response to Comments Failure to publish this proposed rule with the proposed expanded ICH would result in ESRD facilities not CAHPS measure for PY 2017 and future Because of the large number of public receiving appropriate payments in CY payment years would be approximately comments we normally receive on 2014. $9,681,705 ($9,666,714 + $14,991) Federal Register documents, we are not This rule proposes to implement the across all ESRD facilities. able to acknowledge or respond to them individually. We will consider all ESRD QIP for PY 2016 and beyond by b. Proposed Data Validation comments we receive by the date and proposing to adopt measures, scoring, Requirements for the PY 2016 ESRD QIP time specified in the DATES section of and payment reductions to incentivize Section III.C.13 of the proposed rule this preamble, and, when we proceed improvements in dialysis care as outlines our data validation proposals. with a subsequent document, we will directed by section 1881(h) of the Act. We proposed to randomly sample respond to the comments in the Failure to propose requirements for the records from 300 facilities; each preamble to that document. PY 2016 ESRD QIP would prevent sampled facility would be required to X. Economic Analyses continuation of the ESRD QIP beyond produce up to 10 records; and the PY 2015. sampled facilities will be reimbursed by A. Regulatory Impact Analysis 3. Overall Impact our validation contractor for the costs 1. Introduction associated with copying and mailing the We examined the impacts of this We estimate that the proposed requested records. The burden proposed rule as required by Executive revisions to the ESRD PPS will result in associated with this validation Order 12866 (September 30, 1993, a decrease of approximately $970 requirement is the time and effort Regulatory Planning and Review) and million in payments to ESRD facilities necessary to submit validation data to a Executive Order 13563 on Improving in CY 2014, which includes the amount CMS contractor. We estimate that it will Regulation and Regulatory Review associated with the increase in the take each facility approximately 2.5 (January 18, 2011). Executive Orders ESRDB market basket reduced by the hours to comply with these 12866 and 13563 direct agencies to productivity adjustment, updates to requirements. If 300 facilities are tasked assess all costs and benefits of available with providing the required outlier threshold amounts, the inclusion regulatory alternatives and, if regulation documentation, the estimated annual of the Pacific Rim ESRD facilities, is necessary, to select regulatory burden for these facilities across all updates to the wage index, and the drug approaches that maximize net benefits facilities would be 750 hours (300 utilization adjustment required by (including potential economic, facilities × 2.5 hours) at a total of section 1881(b)(14)(I), as added by environmental, public health and safety $24,495 (750 hours × $32.66/hour) or section 632(a) of ATRA. effects, distributive impacts, and $81.65 ($24,495/300 facilities) per equity). Executive Order 13563 For PY 2016, we estimate that the facility in the sample. emphasizes the importance of proposed requirements related to the 2. The discussion on clarifying the quantifying both costs and benefits, of ESRD QIP will cost approximately $39.5 definition of routinely purchased DME reducing costs, of harmonizing rules, thousand and the predicted payment does not contain any new information and of promoting flexibility. This rule reductions will equal about $26.4 collection requirements. has been designated economically million to result in a total impact from 3. The clarification of the the 3-year significant under section 3(f)(1) of the proposed ESRD QIP requirements of Minimum Lifetime Requirement for Executive Order 12866. Accordingly, $26.4 million. For PY 2017 and future DME does not contain any new the rule has been reviewed by the Office payment years, we expect the costs information collection requirements. of Management and Budget. We have associated with the collection of 4. The proposed implementation of prepared a Regulatory Impact Analysis information requirements for the Budget-Neutral Fee Schedules for that to the best of our ability presents expanded ICH CAHPS measure in the Splints, Casts and Intraocular Lenses the costs and benefits of the proposed proposed ESRD QIP to be approximately does not contain any new information rule. We solicit comments on the $9.7 million. collection requirements. regulatory impact analysis provided. To obtain copies of the supporting We estimate that the proposed statement and any related forms for the 2. Statement of Need changes for implementing the fee proposed paperwork collections This rule proposes a number of schedule amounts from reasonable referenced above, access CMS’ Web site routine updates for renal dialysis charge payments will be budget neutral at http://www.cms.gov/ services in CY 2014, proposes to and will have no impact to DMEPOS PaperworkReductionActof1995/PRAL/ implement the fourth year of the ESRD providers of splints, casts and list.asp#TopOfPage. PPS transition, and proposes to make intraocular lenses inserted in a If you comment on these information several policy changes to the ESRD PPS. physician’s office. collection and recordkeeping These include proposed updates and We estimate that our proposed requirements, please do either of the changes to the ESRD PPS base rate, clarification of the definition of following: wage index values, the wage index routinely purchased DME and re- 1. Submit your comments budget-neutrality adjustment factor, and classification of certain items as cap electronically as specified in the the outlier payment policy. This rule rental items would impact certain ADDRESSES section of this proposed rule; will also implement section DMEPOS providers. We estimate that or 1881(b)(14)(I), which requires the the clarification of the 3-year minimum 2. Submit your comments to the Secretary, by comparing per patient Office of Information and Regulatory utilization from 2007 with such data lifetime requirement for DME would Affairs, Office of Management and from 2012, to reduce the single payment have no impact on DMEPOS suppliers. Budget, Attention: CMS Desk Officer, amount to reflect the Secretary’s

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B. Detailed Economic Analysis payments in CY 2014. To estimate the National Claims History file as a basis impact among various types of ESRD for Medicare dialysis treatments and 1. CY 2014 End-Stage Renal Disease facilities, it is imperative that the payments under the ESRD PPS. We Prospective Payment System estimates of payments in CY 2013 and updated the 2012 claims to 2013 and a. Effects on ESRD Facilities CY 2014 contain similar inputs. 2014 using various updates. The Therefore, we simulated payments only updates to the ESRD PPS base rate are To understand the impact of the for those ESRD facilities for which we described in section II.B of this changes affecting payments to different are able to calculate both current proposed rule. Table 12 shows the categories of ESRD facilities, it is payments and new payments. impact of the estimated CY 2014 ESRD necessary to compare estimated For this proposed rule, we used the payments compared to estimated payments in CY 2013 to estimated December 2012 update of CY 2012 payments to ESRD facilities in CY 2013.

TABLE 12—IMPACT OF PROPOSED CHANGES IN PAYMENTS TO ESRD FACILITIES FOR CY 2014 PROPOSED RULE

Effect of 2014 changes in Effect of 2014 Effect of 2014 Effect of 2014 market changes in Effect of Number of changes in basket base rate due total 2014 Facility type Number of treatments changes in facilities outlier policy 4 wage indexes minus to drug changes 5 (in millions) (percent) (percent) productivity utilization (percent) update (percent) (percent)

A B C D E F G

All Facilities ...... 5,771 38.1 0.4 0.0 2.5 ¥12.0 ¥9.4 Type: Freestanding ...... 5,270 35.4 0.4 0.0 2.5 ¥12.0 ¥9.4 Hospital based ...... 501 2.7 0.3 0.1 2.5 ¥11.9 ¥9.3 Ownership Type: Large dialysis organization 3,769 25.9 0.4 0.0 2.5 ¥12.0 ¥9.4 Regional chain ...... 885 6.1 0.4 0.0 2.5 ¥12.0 ¥9.4 Independent ...... 614 3.9 0.2 0.1 2.5 ¥12.0 ¥9.5 Hospital based 1 ...... 400 2.1 0.2 0.1 2.5 ¥11.9 ¥9.4 Unknown ...... 103 0.2 0.3 ¥0.2 2.5 ¥12.0 ¥9.6 Geographic Location: Rural ...... 1,257 6.3 0.4 ¥0.1 2.5 ¥12.0 ¥9.5 Urban ...... 4,514 31.8 0.4 0.0 2.5 ¥12.0 ¥9.4 Census Region: East North Central ...... 946 5.7 0.4 ¥0.2 2.5 ¥11.9 ¥9.5 East South Central ...... 477 2.9 0.5 ¥0.2 2.5 ¥11.9 ¥9.5 Middle Atlantic ...... 634 4.6 0.4 0.5 2.5 ¥12.0 ¥9.0 Mountain ...... 340 1.8 0.3 0.1 2.5 ¥12.0 ¥9.4 New England ...... 170 1.3 0.4 0.2 2.5 ¥12.0 ¥9.2 Pacific 2 ...... 684 5.3 0.1 0.4 2.5 ¥12.0 ¥9.3 Puerto Rico and Virgin Is- lands ...... 41 0.3 0.4 ¥2.3 2.5 ¥11.9 ¥11.5 South Atlantic ...... 1,288 8.8 0.5 ¥0.3 2.5 ¥12.0 ¥9.6 West North Central ...... 416 2.0 0.4 ¥0.1 2.5 ¥12.0 ¥9.5 West South Central ...... 775 5.5 0.5 ¥0.1 2.5 ¥11.9 ¥9.5 Facility Size: Less than 4,000 treat- ments 3 ...... 1,044 2.6 0.4 0.0 2.5 ¥12.0 ¥9.4 4,000 to 9,999 treatments 2,157 10.4 0.4 ¥0.1 2.5 ¥12.0 ¥9.5 10,000 or more treatments 2,400 24.7 0.4 0.0 2.5 ¥12.0 ¥9.4 Unknown ...... 170 0.4 0.4 ¥0.1 2.5 ¥12.0 ¥9.5 Percentage of Pediatric Pa- tients: Less than 2% ...... 5,662 37.7 0.4 0.0 2.5 ¥12.0 ¥9.4 Between 2% and 19% ...... 44 0.3 0.3 0.0 2.5 ¥11.9 ¥9.5 Between 20% and 49% .... 6 0.0 0.1 ¥0.3 2.5 ¥12.0 ¥9.9 More than 50% ...... 59 0.1 0.0 0.1 2.5 ¥12.0 ¥9.7 1 Includes hospital-based ESRD facilities not reported to have large dialysis organization or regional chain ownership. 2 Includes ESRD facilities located in Guam, American Samoa, and the Northern Mariana Islands. 3 Of the 1,044 ESRD facilities with less than 4,000 treatments, only 375 qualify for the low-volume adjustment. The low-volume adjustment is mandated by Congress, and is not applied to pediatric patients. The impact to these low-volume facilities is a 9.5 percent decrease in payments. 4 Includes the effect of including the Pacific Rim ESRD facilities of Guam, American Samoa, and the Northern Mariana Islands into the PPS. 5 Includes the effect of Market Basket minus productivity increase of 2.5 percent to the ESRD PPS base rate and the effect of the $29.52 de- crease in the base rate due to the drop in drug utilization. Note:Totals do not necessarily equal the sum of rounded parts, as percentages are multiplicative, not additive.

Column A of the impact table indicates the number of dialysis outlier payment policy described in indicates the number of ESRD facilities treatments (in millions). The overall section II.B.6. of this proposed rule is for each impact category and column B effect of the proposed changes to the shown in column C. For CY 2014, the

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impact on all facilities as a result of the b. Effects on Other Providers 2. End-Stage Renal Disease Quality changes to the outlier payment policy Incentive Program Under the ESRD PPS, ESRD facilities would be a 0.4 percent increase in a. Effects of the PY 2016 ESRD QIP estimated payments. The estimated are paid directly for the renal dialysis impact of the changes to outlier bundle and other provider types such as The ESRD QIP provisions are payment policy ranges from a 0.0 laboratories, DME suppliers, and intended to prevent possible reductions percent to a 0.5 percent increase. Nearly pharmacies, may no longer bill in the quality of ESRD dialysis facility all ESRD facilities are anticipated to Medicare directly for renal dialysis services provided to beneficiaries as a experience a positive effect in their services. Rather, effective January 1, result of payment changes under the estimated CY 2014 payments as a result 2011, such other providers can only ESRD PPS by implementing a ESRD QIP of the proposed outlier policy changes. furnish renal dialysis services under that reduces ESRD PPS payments by up Column D shows the effect of the arrangements with ESRD facilities and to 2 percent for dialysis facilities that wage index on ESRD facilities and must seek payment from ESRD facilities fail to meet or exceed a TPS with reflects the CY 2014 wage index values rather than Medicare. Under the ESRD respect to performance standards for the ESRD PPS payments. Facilities PPS, Medicare pays ESRD facilities one established by the Secretary with located in the census region of Puerto payment for renal dialysis services, respect to certain specified measures. The methodology that we are proposing Rico and the Virgin Islands would which may have been separately paid to to determine a facility’s TPS is receive a 2.3 percent decrease in suppliers by Medicare prior to the described in section III.C.11 of this estimated payments in CY 2014. Since implementation of the ESRD PPS. proposed rule. Any reductions in ESRD most of the facilities in this category are Therefore, in CY 2014, the fourth year located in Puerto Rico, the decrease is PPS payments as a result of a facility’s of the ESRD PPS, we estimate that the performance under the PY 2016 ESRD primarily due to the reduction in the proposed ESRD PPS will have zero wage index floor, (which only affects QIP would begin with services impact on these other providers. facilities in Puerto Rico in CY 2014). furnished on January 1, 2016. The other categories of types of facilities c. Effects on the Medicare Program As a result, based on the ESRD QIP in the impact table show changes in outlined in this proposed rule, we estimated payments ranging from a 0.3 We estimate that Medicare spending estimate that, of the total number of percent decrease to a 0.5 percent (total Medicare program payments) for dialysis facilities (including those not increase due to the update of the wage ESRD facilities in CY 2014 will be receiving an ESRD QIP TPS), index. approximately $8 billion. This estimate approximately 36 percent or 2,069 of the Column E shows the effect of the takes into account a projected increase facilities would likely receive a payment ESRDB market basket increase minus in fee-for-service Medicare dialysis reduction in PY 2016. Facilities that do productivity adjustment. The impact on beneficiary enrollment of 3.8 percent in not receive a TPS are not eligible for a all facilities would be a 2.5 percent CY 2014. payment reduction. increase. The ESRD QIP impact assessment Column F shows the effect of the drug d. Effects on Medicare Beneficiaries assumes an initial count of 5,771 utilization adjustment required by dialysis facilities paid through the PPS. Under the ESRD PPS, beneficiaries are Table 13 shows the overall estimated section 1881(b)(14)(I). For CY 2014, the responsible for paying 20 percent of the impact on all facilities as a result of the distribution of payment reductions ESRD PPS payment amount. As a result resulting from the PY 2016 ESRD QIP. $29.52 decrease to the base rate, as of the projected 9.4 percent overall described in section II.B.2.a., would be decrease in the proposed ESRD PPS a 12 percent decrease in estimated TABLE 13—ESTIMATED DISTRIBUTION payment amounts in CY 2014, we payments. The estimated impact ranges OF PY 2016 ESRD QIP PAYMENT estimate that there will be a decrease in from 11.9 percent to 12 percent REDUCTIONS decrease. beneficiary co-insurance payments of 9.4 percent in CY 2014, which translates Column G reflects the overall impact Payment Number of Percent of to approximately $190 million. reduction (that is, the effects of the proposed percent facilities facilities outlier policy changes, the proposed e. Alternatives Considered wage index, the effect of the ESRDB 0.0 ...... 3,417 62.3 market basket increase minus For this proposed rule, we proposed 0.5 ...... 994 18.1 productivity adjustment, and the effect to implement the full reduction required 1.0 ...... 583 10.6 of the drug utilization adjustment by section 1881(b)(14)(I) in CY 2014. In 1.5 ...... 280 5.1 required by section 1881(b)(14)(I). We particular, we proposed a one-time 2.0 ...... 212 3.9 expect that overall, ESRD facilities will reduction of $29.52 to the ESRD PPS Note:This table excludes 285 facilities that experience a 9.4 percent decrease in base rate. We considered proposing to did not receive a score because they did not estimated payments in 2014. ESRD have enough data to receive a Total Perform- implement the reduction using a ance Score. facilities in Puerto Rico and the Virgin transition. For example, we considered Islands are expected to receive an 11.5 transitioning the reduction over a 2 or To estimate whether or not a facility percent decrease in their estimated 3-year period. We chose to implement would receive a payment reduction payments in CY 2014. This larger the full reduction by reducing the ESRD under the proposed approach, we decrease is primarily due to the negative PPS base rate by an adjustment to reflect scored each facility on achievement and improvement on several measures we impact of the wage index. The other change in the utilization of ESRD- categories of types of facilities in the have previously finalized and for which related drugs and biologicals by impact table show negative impacts there were available data from comparing utilization data from 2007 ranging from a decrease of 9.9 percent CROWNWeb and Medicare claims. with such data from 2012. to 9.0 percent in their 2014 estimated Measures used for the simulation are payments. shown in Table 14.

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TABLE 14—DATA USED TO ESTIMATE PY 2016 ESRD QIP PAYMENT REDUCTIONS

Period of time used to calculate achievement thresholds, Measure performance standards, benchmarks, and improvement Performance period thresholds

Hemoglobin Greater Than 12 g/dL ...... Jan 2012–Jun 2012 ...... July 2012–Dec 2012. Vascular Access Type: % Fistula ...... Jan 2011–Dec 2011 ...... Jan 2012–Dec 2012. % Catheter ...... Jan 2011–Dec 2011 ...... Jan 2012–Dec 2012. Kt/V: Adult HD ...... Jan 2011–Dec 2011 ...... Jan 2012–Dec 2012. Adult PD ...... Jan 2011–Dec 2011 ...... Jan 2012–Dec 2012. Pediatric HD ...... Jan 2011–Dec 2011 ...... Jan 2012–Dec 2012. Hypercalcemia ...... Jan 2011–Dec 2011 ...... May 2012–Dec 2012.

Clinical measures with less than 11 resulting from this proposed rule, we that ESRD facilities will experience an cases for a facility were not included in multiplied the total Medicare payments aggregate impact of $26.4 million that facility’s Total Performance Score. to the facility during the one year period ($39,486 + $26,355,878= $26,395,364) in Each facility’s Total Performance Score between January 2012 and December PY 2016, as a result of the PY 2016 was compared to the estimated 2012 by the facility’s estimated payment ESRD QIP. minimum Total Performance Score and reduction percentage expected under Table 15 below shows the estimated the payment reduction table found in the ESRD QIP, yielding a total payment impact of the finalized ESRD QIP section III.C.11 of this proposed rule. reduction amount for each facility: payment reductions to all ESRD Facilities were required to have a score (Total ESRD payment in January 2012 on at least one clinical measure to facilities for PY 2016. The table details through December 2012 times the receive a Total Performance Score. For the distribution of ESRD facilities by estimated payment reduction these simulations, the NHSN facility size (both among facilities Bloodstream Infection in Hemodialysis percentage). For PY 2016 the total considered to be small entities and by Outpatients and Patient Informed payment reduction for all of the 2,069 number of treatments per facility), Consent for Anemia Treatment clinical facilities expected to receive a reduction geography (both urban/rural and by measures, as well as the reporting is approximately $26.4 million region), and by facility type (hospital measures were not included due to lack ($26,355,878). Further, we estimate that based/freestanding facilities). Given that of data availability. Therefore, the the total costs associated with the the time periods used for these simulated facility Total Performance collection of information requirements calculations will differ from those we Scores were calculated using only some for PY 2016 described in section VII.B.2 propose to use for the PY 2016 ESRD of the clinical measure scores. of this proposed rule would be QIP, the actual impact of the PY 2016 To estimate the total payment approximately $15 thousand for all ESRD QIP may vary significantly from reductions in PY 2016 for each facility ESRD facilities. As a result, we estimate the values provided here.

TABLE 15—IMPACT OF PROPOSED QIP PAYMENT REDUCTIONS TO ESRD FACILITIES FOR PY 2016Q

Number of Number of Payment facilities reduction Number of Medicare Number of treatments facilities with expected to (percent facilities 2012 receive a change QIP score payment in total ESRD (in millions) 3 reduction payments)

All Facilities ...... 5,771 38.1 5,486 2,069 ¥0.35 Facility Type: Freestanding ...... 5,270 35.4 5,116 1,854 ¥0.32 Hospital-based ...... 501 2.7 370 215 ¥0.67 Ownership Type: Large Dialysis ...... 3,769 25.9 3,710 1,228 ¥0.29 Regional Chain ...... 885 6.1 849 355 ¥0.36 Independent ...... 614 3.9 572 292 ¥0.52 Hospital-based (non-chain) ...... 400 2.1 289 169 ¥0.66 Unknown ...... 103 0.2 66 25 ¥0.47 Facility Size: Large Entities ...... 4,654 32.0 4,559 1,583 ¥0.30 Small Entities 1 ...... 1,014 5.9 861 461 ¥0.57 Unknown ...... 103 0.2 66 25 ¥0.47 Urban/Rural Status: Rural ...... 1,257 6.3 1,191 416 ¥0.31 Urban ...... 4,514 31.8 4,295 1,653 ¥0.35 Census Region: Northeast ...... 786 5.8 741 309 ¥0.40 Midwest ...... 1,325 7.7 1,233 478 ¥0.37 South ...... 2,501 17.1 2,440 923 ¥0.34 West ...... 998 7.0 966 302 ¥0.27

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TABLE 15—IMPACT OF PROPOSED QIP PAYMENT REDUCTIONS TO ESRD FACILITIES FOR PY 2016Q—Continued

Number of Payment Number of Number of facilities reduction Number of Medicare expected to (percent treatments facilities with receive a change facilities 2012 QIP score 3 payment in total ESRD (in millions) reduction payments)

US Territories 2 ...... 161 0.5 106 57 ¥0.66 Census Division: Pacific Rim ...... 7 0.1 7 5 ¥0.92 East North Central ...... 946 5.7 868 354 ¥0.38 East South Central ...... 477 2.9 465 147 ¥0.27 Middle Atlantic ...... 634 4.6 595 254 ¥0.42 Mountain ...... 340 1.8 325 82 ¥0.21 New England ...... 170 1.3 154 58 ¥0.28 Pacific ...... 677 5.2 652 224 ¥0.30 South Atlantic ...... 1,288 8.8 1,245 490 ¥0.37 West North Central ...... 416 2.0 383 129 ¥0.34 West South Central ...... 775 5.5 754 298 ¥0.34 US Territories 2 ...... 41 0.3 38 28 ¥0.86 Facility Size (# of total treatments): Less than 4,000 treatments ...... 1,044 2.6 853 273 ¥0.36 4,000–9,999 treatments ...... 2,157 10.4 2,136 730 ¥0.30 Over 10,000 treatments ...... 2,400 24.7 2,384 1,027 ¥0.38 Unknown ...... 170 0.4 113 39 ¥0.41 1 Small Entities include hospital-based and satellite facilities and non-chain facilities based on DFC self-reported status. 2 Includes Puerto Rico and Virgin Islands. 3 Based on claims data through December 2012.

b. Alternatives Considered for the PY Similarly, in the case of the Patient Total Performance Score. We ultimately 2016 ESRD QIP Informed Consent for Anemia Treatment decided to propose the weighting In the proposed PY 2016 ESRD QIP, measure, we considered proposing a methodology used in the PY 2015 ESRD we selected measures that we believe reporting measure instead of a clinical QIP because the ratio of clinical to are important indicators of patient measure, because we lacked the reporting measures did not change outcomes and quality of care as necessary baseline data to establish significantly, and also because we discussed in section III.C of this achievement thresholds, performance wanted to retain a strong incentive for proposed rule. Poor management of standards, and benchmarks. We decided facilities to meet the requirements for anemia, for example, can lead to not to do because we believe that the reporting measures. We also avoidable hospitalizations, decreased providing counseling on the risks and considered a number of ways to quality of life, and death. In order to benefits of anemia treatment, and establish achievement thresholds and provide strong incentives to improve seeking informed consent for such benchmarks for the NHSN clinical patient outcomes in this clinically treatment, is already a standard of measure. For example, we considered important area, we considered clinical care in the ESRD provider using baseline data from CYs 2012 proposing a clinical measure for community. We also considered through 2013 to set achievement Pediatric Iron Therapy. However, upon proposing the Standardized thresholds and benchmarks. However, further review we recognized that we Hospitalization Ratio Admissions (SHR) we ultimately decided to propose to use lacked the necessary baseline data to measure and the Standardized Mortality data from CY 2014 when establishing establish achievement thresholds, Ratio (SMR) measure as reporting baseline data for scoring purposes, performance standards, and measures for the PY 2016 ESRD QIP. We because facilities were not required to benchmarks. We, therefore, proposed a decided not to do so due to outstanding submit twelve full months of NHSN reporting measure in order to gather the concerns about the measures’ validity data during CY 2012–2013, and rates of data we will need to introduce a clinical and reliability. As an alternative, we healthcare-acquired infections are measure in the future. In the case of the proposed the Comorbidity reporting susceptible to seasonal variability. In NHSN Bloodstream Event in measure to provide a reliable source of light of the importance of monitoring Hemodialysis Outpatient measure, we data that we can use to properly risk- and preventing infections in the ESRD considered proposing a reporting adjust SHR and SMR clinical measures population, we decided that it would be measure instead of a clinical measure, (should we propose to adopt such preferable to propose a clinical measure because we lacked the necessary measures in the future), and to improve with equivalent baseline and baseline data to establish achievement our understanding of the risk factors performance periods, rather than a thresholds, performance standards, and that contribute to morbidity and reporting measure that would have less benchmarks. However, we decided not mortality in the ESRD patient of a direct impact on clinical practice. to do so. Due to the great impact population. We also considered a number of ways to hospital acquired infections have upon In developing the proposed scoring score the Patient Informed Consent for patients and the industry, we believe it methodology for the PY 2016 ESRD QIP, Anemia Treatment clinical measure. In is important to begin assessing facilities we considered several alternatives. For this case, we lacked baseline data that on the number of these events rather example, we considered weighting the could be used to establish achievement than on merely whether they report clinical measures at 80 percent and the thresholds and benchmarks, so we these events as soon as possible. reporting measures at 20 percent of the considered proposing a reporting

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measure in place of the clinical determination of durability for c. Definition of Routinely Purchased measure. In light of the importance of equipment that is consistent with the DME the measure, however, we ultimately statutory DME payment provisions and decided to propose a clinical measure in applies on a prospective basis, effective As discussed in section IV of this rule, order to provide a stronger incentive for January 1, 2012. CMS recognizes that this rule would clarify the definition of facilities to obtain informed consent the healthcare industry and routinely purchased equipment set forth from patients receiving anemia beneficiaries have come to rely on items at section § 414.220(a) and would treatment. In considering possible that have qualified as DME prior to classify an expensive item of DME or scoring methodologies for the measure, January 1, 2012, regardless of whether accessory (over $150) as a capped rental we specifically considered setting the those items met the 3-year MLR set forth item if it was not acquired by purchase achievement threshold at 100 percent at § 414.202. We note that given that on a national basis at least 75 percent of because we believe that facilities should reliance and consistent with the the time during the period July 1986 always obtain informed consent from regulation at § 414.202, CMS will not through June 1987. Because concerns patients receiving ESA. However, we reopen those prior decisions and were brought to our attention on the recognized that unexpected events in reclassify the equipment in light of the application of the definition of routinely the clinical setting might preclude the new 3-year standard. We believe that purchased DME, we performed a review possibility of obtaining informed continuing the Medicare coverage for all of the approximately 250 HCPCS codes consent in every instance, so we the items that qualified as DME on or assigned to the routinely purchased ultimately decided to propose to set the prior to January 1, 2012, would avoid category of DME in excess of $150. achievement threshold for the measure disrupting the continuity of care for the Based on our review, and given the at 92 percent. We selected 92 percent beneficiaries that received these items definition of routinely purchased because this would allow facilities with for medical treatment prior to January 1, equipment set forth at section § 414.220, 26 patients to meet the achievement 2012. As noted in the final rule (76 FR we would classify such items in the threshold if they failed to obtain 70301, 70311) it is difficult to predict capped rental category if the items were informed consent from 2 patients (see how many different types of new not acquired by purchase on a national section III.C.8 for more details). devices will be introduced in the market basis at least 75 percent of the time in the future that may or may not meet 3. DMEPOS Provisions during the period July 1986 through the 3-year MLR. However, even absent June 1987. a. Effects of the Implementation of Fee the 3-year MLR, it is likely that new Schedules for Splints, Casts and IOLs products which do not meet the 3-year As shown in Table 11 of section IV of the preamble, our review identified 80 The implementation of fee schedules MLR will not qualify as DME based current HCPCS codes requiring for use in paying claims for splints, upon our current interpretation of the reclassification from routinely casts, and IOLs inserted in a physician’s criteria for DME. It is possible that with office would result in administrative the clarification of the 3-year MLR, we purchased DME to capped rental DME. savings associated with determining and will limit what can be covered as DME The majority of codes relate to manual implementing the Medicare allowed compared to what we would have wheelchairs and wheelchair accessories. payment amounts for these items. As a covered as DME absent this regulatory We have displayed in Column B result, the agency would save clarification. Additionally, to the extent accessories of complex rehabilitative approximately $94,000 in annual the regulatory change is binding to some power wheelchairs that would be administrative expenses for calculating new products, there may be reduced classified as capped rental items and for reasonable charge payment amounts and program cost. The final rule does apply which suppliers must also offer to the maintaining multiple pricing files to items that were classified as DME on beneficiary on a lump sum purchase necessary for making payment on a or before January 1, 2012 which tends basis in accordance with § 414.229(h)(3) reasonable charge basis. to lessen the overall impact to the of the regulations. In addition, we have program. In general, we expect that the displayed in Table 16 below and b. Clarification of the 3-Year MLR for final rule (76 FR 70311) and Column B of Table 11 of section IV of DME clarification we are now proposing of the preamble approximately 14 codes We expect no significant impact the 3-year MLR would have a minimal, which would be reclassified in two regarding application of the 3-year MLR if any, savings impact on the stages effective July 1, 2016, rather than for DME. As we noted in the final expenditures under program. This is January 1, 2014, for all items included regulation for the 3-year MLR, we because the vast majority if items in competitive bidding programs other believe that a vast majority of the classified as DME in the past have had than those furnished in the Round 1 categories of items that were classified lifetimes of 3 years or more and so there Recompete programs and areas; and on as DME before January 1, 2012, did would be very few instances, if any, January 1, 2017, for those items function for 3 or more years (76 FR where this clarification will have any furnished as part of the Round I 70289). The 3-year MLR is designed to impact on classification of items as Recompete competitive bidding represent a minimum threshold for DME. programs.

TABLE 16—ITEMS RECLASSIFIED TO CAPPED RENTAL DME CATEGORY EFFECTIVE JULY 1, 2016 *

HCPCS category HCPCS

Support Surfaces ...... E0197 Walkers ...... E0140 E0149 Wheelchairs Options/Accessories ...... E0985 E1020 E1028 E2228 E2368 E2369 E2370 E2375 K0015 K0070 Wheelchair Seating ...... E0955 * Items furnished in accordance with Round 1 Recompete contracts would be reclassified effective January 1, 2017.

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In Table 17 below, we show estimated eliminate the lump sum purchase include the price growth for the covered savings associated with making method for the certain items, and item fee schedule update factors for payment on a capped rental basis rather instead payment would be made under DME mandated by section 1834(a)(14) of than a lump sum purchase basis for the monthly rental method resulting in the Act. In addition, our estimate takes items that would be reclassified. lower aggregate payments because many into account projected changes in DME beneficiaries do not rent items for as beneficiary enrollment. Furthermore, we TABLE 17—IMPACT OF ITEMS RECLAS- long as 13 months. In order to prepare reflected the savings for these items that SIFIED TO CAPPED RENTAL DME our impact on the Medicare program, are currently included under any CATEGORY we reviewed claims data and utilization existing competitive bidding program for all items currently classified as and which will be reclassified from capped rental items from 2009 through Impact to the federal routinely purchased to capped rental FY government 2011 and determined that the weighted (in $ millions) average number of allowed monthly effective July 1, 2016. rental services for beneficiaries From table 11 of section IV of the 2014 ...... ¥20 2015 ...... ¥20 receiving capped rental items during preamble above, entitled Routinely 2016 ...... ¥20 that period was 8 months. We therefore Purchased Items Reclassified to Capped 2017 ...... ¥30 used 8 months as the estimated number Rental, for items that would be paid on 2018 ...... ¥40 of months beneficiaries would rent a capped rental basis with no purchase items in Table 11 of section IV of the option, the highest volume items in The decrease in expenditures is preamble that would not have a terms of 2012 allowed charges are: expected because the changes would purchase option. All anticipated savings

TABLE 18—THREE HIGHEST VOLUME ROUTINELY PURCHASED ITEMS RECLASSIFIED TO CAPPED RENTAL

Allowed HCPCS Item Purchase fee charges Code added

E0760 ...... Ultrasonic Bone Growth Stimulator ...... $3,514 $21,370,310 1997 E2510 ...... Speech Generating Device ...... 7,356 20,170,162 2001 E1161 ...... Tilt In Space Manual Wheelchair ...... 2,571 18,666,674 2003

The allowed charges in 2012 for these rented for up to 13-continuous months, www.whitehouse.gov/omb/ three items combined were following which title to the equipment circulars_a004_a-4), in Table 19 below, approximately $60 million, which would transfer from the supplier to the we have prepared an accounting makes up almost half of approximately beneficiary. statement showing the classification of $130 million in allowed charges for C. Accounting Statement the transfers and costs associated with items that would no longer be eligible the various provisions of this proposed for purchase. Under the capped rental As required by OMB Circular A–4 rule. payment rules, these items would be (available at http://

TABLE 19—ACCOUNTING STATEMENT: CLASSIFICATION OF ESTIMATED TRANSFERS AND COSTS/SAVINGS

Category Transfers

ESRD PPS for CY 2014

Annualized Monetized Transfers...... $¥780 million. From Whom to Whom ...... Federal government to ESRD providers. Increased Beneficiary Co-insurance Payments ...... $¥190 million. From Whom to Whom ...... Beneficiaries to ESRD providers.

ESRD QIP for PY 2016

Annualized Monetized Transfers ...... ¥$26.4 million * From Whom to Whom ...... Federal government to ESRD providers.

Category Costs

Annualized Monetized ESRD Provider Costs ...... $39.5 thousand **

DME Definition of Routinely Purchased DME

Category Transfers

Annualized Monetized Transfer Payments ...... ¥$25.3 million ...... 2013 7% 2014–2018 ¥$25.7 million ...... 2013 3% 2014–2018

From Whom to Whom ...... Federal government to Medicare providers. * It is the reduced payment to the ESRD facilities, which fall below the quality standards as stated in section III.C.11 of this proposed rule. ** It is the cost associated with the collection of information requirements for all ESRD facilities.

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XI. Regulatory Flexibility Act Analysis PY 2016, we estimate that of the 2,069 schedule will be, on average, the same The Regulatory Flexibility Act ESRD facilities expected to receive a amounts they are currently paid for (September 19, 1980, Pub. L. 96–354) payment reduction, 461 ESRD small these items when considering the small (RFA) requires agencies to analyze entity facilities would experience a national volume of claims as a whole. options for regulatory relief of small payment reduction (ranging from 0.5 For example, in 2011, the average entities, if a rule has a significant impact percent up to 2.0 of total payments), as allowed charge for an IOL inserted in a on a substantial number of small presented in Table 13 (‘‘Estimated physician’s office was $174 for just 287 entities. For purposes of the RFA, small Distribution of PY 2016 ESRD QIP cases nationwide. If a particular physician office is a small business that entities include small businesses, Payment Reductions’’) and Table 15 charges less than $174 per IOL, a nonprofit organizations, and small (‘‘Impact of Proposed QIP Payment national fee schedule amount of $174 governmental jurisdictions. Reductions to ESRD Facilities for PY could increase payment for this small Approximately 18 percent of ESRD 2016’’) above. We anticipate the business for this item. Alternatively, if dialysis facilities are considered small payment reductions to average a particular physician office is a small entities according to the Small Business approximately $12,738 per facility business that charges more than $174 Administration’s (SBA) size standards, among the 2,069 facilities receiving a per IOL, a national fee schedule amount which classifies small businesses as payment reduction, with an average of of $174 could decrease payment for this those dialysis facilities having total $13,810 per small entity facilities small business for this item. However, revenues of less than $35.5 million in receiving a payment reduction. Using our projections of facility performance, with only 287 cases nationwide, any 1 year. Individuals and States are implementing a national fee of $174 not included in the definitions of a we then estimated the impact of anticipated payment reductions on would not have a significant impact on small entity. For more information on any physician office that is a small SBA’s size standards, see the Small ESRD small entities, by comparing the total payment reductions for the 461 business because the volume of claims Business Administration’s Web site at indicates that the small businesses are http://www.sba.gov/content/small- small entities expected to receive a payment reduction, with the aggregate not relying on payment for these items business-size-standards (Kidney to fund their businesses (physician Dialysis Centers are listed as 621492 ESRD payments to all small entities. We estimate that there are a total of 1,014 practices) as a whole. Therefore, we with a size standard of $35.5 million). expect that the overall impact of this We do not believe ESRD facilities are small entity facilities. For this entire group of 1,014 ESRD small entity rule on small businesses that are operated by small government entities physician offices that insert IOLs such as counties or towns with facilities, a decrease of 0.57 percent in aggregate ESRD payments is observed. covered by Medicare would be minimal. populations of 50,000 or less, and Approximately 85 percent of suppliers Splints, casts and intraocular lenses therefore, they are not enumerated or of DMEPOS in general are considered to (IOLs) affected by this rule are generally included in this estimated RFA analysis. be small entities for the purposes of the furnished by physicians. Approximately Individuals and States are not included RFA. We expect that the impact of in the definition of a small entity. 95 percent of physicians are considered moving certain expensive DME items For purposes of the RFA, we estimate to be small entities for the purposes of from the routinely purchased payment that approximately 18 percent of ESRD the RFA. Individuals and states are not class to the capped rental payment class facilities are small entities as that term included in the definition of a small on small business will be minimal since is used in the RFA (which includes entity. The reasonable charge payment the suppliers would still receive 105 small businesses, nonprofit amounts for splints and casts are based percent of the purchase fee for items organizations, and small governmental on national reasonable charge amounts that are rented for the full 13-month jurisdictions). This amount is based on increased each year by the 12-month capped rental period. In addition, the the number of ESRD facilities shown in percentage change in the CPI–U ending supplier would retain ownership of the ownership category in Table 12. June of the previous year. These equipment that is not used for 13 Using the definitions in this ownership national inflation-indexed charges can months and can furnish the equipment category, we consider the 614 facilities easily be converted to fee schedule to another beneficiary, beginning a new, that are independent and the 400 amounts with no impact on the national separate 13-month capped rental period facilities that are shown as hospital- Medicare payment amounts for these for the same item. based to be small entities. The ESRD items. Therefore, the fee schedule Therefore, the Secretary has facilities that are owned and operated amounts that would take effect on determined that this proposed rule will by LDOs and regional chains would January 1, 2014, for splints and casts have a significant economic impact on have total revenues of more than $35.5 would be the same as the reasonable a substantial number of small entities. million in any year when the total charge amounts that would take effect We solicit comment on the RFA analysis revenues for all locations are combined on January 1, 2014, for these items. This provided. for each business (individual LDO or rule would have no impact on small In addition, section 1102(b) of the Act regional chain), and are not, therefore, businesses that furnish these items. requires us to prepare a regulatory included as small entities. Given that Medicare pays for very few impact analysis if a rule may have a For the ESRD PPS updates proposed intraocular lenses inserted in a significant impact on the operations of in this rule, a hospital-based ESRD physician’s office, these entities do not a substantial number of small rural facility (as defined by ownership type) rely on Medicare payment for these hospitals. Any such regulatory impact is estimated to receive a 9.4 percent items to support their businesses. analysis must conform to the provisions decrease in payments for CY 2014. An Because the fee schedule amounts that of section 603 of the RFA. For purposes independent facility (as defined by would take effect on January 1, 2014, for of section 1102(b) of the Act, we define ownership type) is estimated to receive intraocular lenses inserted in a a small rural hospital as a hospital that a 9.5 percent decrease in payments for physician’s office would be based on the is located outside of a metropolitan CY 2014. national average allowed charge for the statistical area and has fewer than 100 Based on the proposed QIP payment item, the payment amounts these beds. We do not believe this proposed reduction impacts to ESRD facilities for entities would receive under the fee rule will have a significant impact on

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operations of a substantial number of XV. Files Available to the Public via the PART 414—PAYMENT FOR PART B small rural hospitals because most Internet MEDICAL AND OTHER HEALTH dialysis facilities are freestanding. This section lists the Addenda SERVICES While there are 159 rural hospital-based referred to in the preamble of this ■ 4. The authority citation for part 414 dialysis facilities, we do not know how proposed rule. Beginning in CY 2012, continues to read as follows: many of them are based at hospitals the Addenda for the annual ESRD PPS with fewer than 100 beds. However, proposed and final rulemakings will no Authority: Secs. 1102, 1871, and 1881(b)(1) overall, the 159 rural hospital-based of the Social Security Act (42 U.S.C. 1302, longer appear in the Federal Register. 1395hh, and 1395rr(b)(1)). dialysis facilities will experience an Instead, the Addenda will be available estimated 10.1 percent decrease in only through the Internet. We will ■ 5. The heading for subpart C is revised payments. As a result, this proposed continue to post the Addenda through to read as follows: the Internet. rule is estimated to have a significant Subpart C—Fee Schedules for impact on small rural hospitals. Readers who experience any problems accessing the Addenda that are posted Parenteral and Enteral Nutrition (PEN) Therefore, the Secretary has determined Nutrients, Equipment and Supplies, that this proposed rule will have a on the CMS Web site at http:// www.cms.gov/ESRDPayment/PAY/ Splints, Casts, and Certain Intraocular significant impact on the operations of Lenses (IOLs) a substantial number of small rural list.asp, should contact Michelle Cruse hospitals. at (410) 786–7540. ■ 6. Section 414.100 is revised to read as follows: XII. Unfunded Mandates Reform Act List of Subjects Analysis 42 CFR Part 413 § 414.100 Purpose. Health facilities, Kidney diseases, This subpart implements fee Section 202 of the Unfunded schedules for PEN items and services, Mandates Reform Act of 1995 (UMRA) Medicare, Reporting and recordkeeping requirements. splints and casts, and IOLs inserted in (Pub. L. 104–4) also requires that a physician’s office as authorized by agencies assess anticipated costs and 42 CFR Part 414 section 1842(s) of the Act. ■ benefits before issuing any rule whose Administrative practice and 7. Section 414.102 is amended by mandates require spending in any 1 year procedure, Health facilities, Health revising paragraphs (a) introductory $100 million in 1995 dollars, updated professions, Kidney diseases, Medicare, text, (a)(2), (b)(1), and (c) to read as annually for inflation. In 2013, that and Reporting and recordkeeping follows: threshold is approximately $141 requirements. § 414.102 General payment rules. million. This proposed rule does not For the reasons set forth in the (a) General rule. For PEN items and include any mandates that would preamble, the Centers for Medicare & services furnished on or after January 1, impose spending costs on State, local, or Medicaid Services proposes to amend 2002, and for splints and casts and IOLs Tribal governments in the aggregate, or 42 CFR chapter IV as follows: inserted in a physician’s office on or by the private sector, of $141 million. after January 1, 2014, Medicare pays for PART 413—PRINCIPLES OF the items and services as described in XIII. Federalism Analysis REASONABLE COST paragraph (b) of this section on the basis REIMBURSEMENT; PAYMENT FOR Executive Order 13132 on Federalism of 80 percent of the lesser of— (August 4, 1999) establishes certain END-STAGE RENAL DISEASE SERVICES; OPTIONAL * * * * * requirements that an agency must meet PROSPECTIVELY DETERMINED (2) The fee schedule amount for the when it promulgates a proposed rule PAYMENT RATES FOR SKILLED item or service, as determined in (and subsequent final rule) that imposes NURSING FACILITIES accordance with §§ 414.104 thru substantial direct requirement costs on 414.108. State and local governments, preempts ■ 1. The authority citation for part 413 (b) * * * State law, or otherwise has Federalism is revised to read as follows: (1) CMS or the carrier determines fee schedules for parenteral and enteral implications. We have reviewed this Authority: Secs. 1102, 1812(d), 1814(b), proposed rule under the threshold 1815, 1833(a), (i), and (n), 1861(v), 1871, nutrition (PEN) nutrients, equipment, criteria of Executive Order 13132, 1881, 1883 and 1886 of the Social Security and supplies, splints and casts, and Federalism, and have determined that it Act (42 U.S.C. 1302, 1395d(d), 1395f(b), IOLs inserted in a physician’s office, as will not have substantial direct effects 1395g, 1395l(a), (i), and (n), 1395x(v), specified in §§ 414.104 thru 414.108. on the rights, roles, and responsibilities 1395hh, 1395rr, 1395tt, and 1395ww); and * * * * * of States, local or Tribal governments. sec. 124 of Pub. L. 106–113 (113 Stat. 1501A– (c) Updating the fee schedule 332), sec. 3201 of Pub. L. 112–96 (126 Stat. amounts. For the years 2003 through XIV. Congressional Review Act 156), and sec. 632 of Pub. L. 112–240 (126 2010 for PEN items and services, the fee Stat. 2354). This proposed rule is subject to the schedule amounts of the preceding year are updated by the percentage increase Congressional Review Act provisions of § 413.174 [Amended] in the CPI–U for the 12-month period the Small Business Regulatory ■ 2. Section 413.174 (f)(6) is amended ending with June of the preceding year. Enforcement Fairness Act of 1996 (5 by removing ‘‘January 1, 2014’’ and by For each year subsequent to 2010 for U.S.C. 801 et seq.) and has been adding in its place ‘‘January 1, 2016. PEN items and services and for each transmitted to the Congress and the § 413.237 [Amended] year subsequent to 2014 for splints and Comptroller General for review. ■ 3. Section 413.237(a)(1)(iv) is casts, and IOLs inserted in a physician’s In accordance with the provisions of amended by removing ‘‘excluding’’ and office, the fee schedule amounts of the Executive Order 12866, this proposed by adding in its place ‘‘including’’; and preceding year are updated by the rule was reviewed by the Office of by removing ‘‘January 1, 2014’’ and percentage increase in the CPI–U for the Management and Budget. adding in its place ‘‘January 1, 2016’’. 12-month period ending with June of

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the preceding year, reduced by the updated by the percentage increase in (c) * * * productivity adjustment described in the CPI–U for the 24-month period (6) Beginning in 2008, CMS makes an section 1886(b)(3)(B)(xi)(II) of the Act. ending with June of 2013. annual adjustment to the national ■ 8. Section 414.106 is added to read as ■ 10. Revise the heading to Subpart D to limited monthly payment rate for items follows: read as follows: described in paragraph (c)(1)(i) of this § 414.106 Splints and casts. Subpart D—Payment for Durable section to ensure that such payment (a) Payment rules. Payment is made in Medical Equipment, Prosthetic and rates do not result in expenditures for a lump sum for splints and casts. Orthotic Devices, and Surgical any year that are more or less than the (b) Fee schedule amount. The fee Dressings expenditures that would have been schedule amount for payment for an made if such classes had not been item or service furnished in 2014 is the * * * * * established. reasonable charge amount for 2013, ■ 11. Section § 414.200 is revised to * * * * * updated by the percentage increase in read as follows: (Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital the CPI–U for the 12-month period § 414.200 Purpose. ending with June of 2013. Insurance; and Program No. 93.774, ■ 9. Section 414.108 is added to read as This subpart implements sections Medicare—Supplementary Medical follows: 1834(a), (h) and (i) of the Act by Insurance Program) specifying how payments are made for Dated: June 19, 2013. § 414.108 IOLs inserted in a physician’s the purchase or rental of new and used Marilyn Tavenner, office. durable medical equipment, prosthetic (a) Payment rules. Payment is made in Administrator, Centers for Medicare & and orthotic devices, and surgical Medicaid Services. a lump sum for IOLs inserted in a dressings for Medicare beneficiaries. Approved: June 26, 2013. physician’s office. ■ 12. Section 414.226 is amended by (b) Fee schedule amount. The fee revising paragraph (c)(6) to read as Kathleen Sebelius, schedule amount for payment for an IOL follows: Secretary, Department of Health and Human furnished in 2014 is the national Services. average allowed charge for the IOL § 414.226 Oxygen and oxygen equipment. [FR Doc. 2013–16107 Filed 7–1–13; 4:15 pm] furnished from in calendar year 2012, * * * * * BILLING CODE 4120–01–P

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Part III

Department of Commerce

Bureau of Industry and Security 15 CFR Parts 740, 742, 770, et al. Revisions to the Export Administration Regulations: Military Vehicles; Vessels of War; Submersible Vessels, Oceanographic Equipment; Related Items; and Auxiliary and Miscellaneous Items That the President Determines No Longer Warrant Control Under the United States Munitions List; Final Rule

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DEPARTMENT OF COMMERCE Office of National Security and 41958) that set forth a framework for Technology Transfer Controls, at 202– how articles the President determines, Bureau of Industry and Security 482–2984 or in accordance with section 38(f) of the [email protected]. Arms Export Control Act (AECA), 15 CFR Parts 740, 742, 770, 772 and For questions regarding surface would no longer warrant control on the 774 vessels and related items controlled USML would be controlled on the [Docket No. 110928603–3298–01] under ECCNs 8Y609 or submersible EAR’s Commerce Control List (CCL) vessels and related items controlled (herein ‘‘the July 15 (framework) rule’’). RIN 0694–AF39 under ECCNs 8Y620, contact Alexander On April 16, 2013, BIS published a Lopes, Office of Nonproliferation and final rule setting forth the framework for Revisions to the Export Administration Treaty Compliance, at 202–482–4875 or adding to the CCL items that the Regulations: Military Vehicles; Vessels [email protected]. President has determined no longer of War; Submersible Vessels, For questions regarding miscellaneous warrant control on the USML through Oceanographic Equipment; Related equipment, materials, and related items the creation of ‘‘600 series’’ Export Items; and Auxiliary and Miscellaneous controlled under ECCNs 0Y617, contact Control Classification Numbers (ECCNs) Items That the President Determines Michael Rithmire, Office of National (78 FR 22660, April, 16, 2013 (herein No Longer Warrant Control Under the Security and Technology Transfer the ‘‘April 16 (initial implementation) United States Munitions List Controls, at 202–482–6105 or rule’’). That structure is described at 78 AGENCY: Bureau of Industry and [email protected]. FR 22662 and is not repeated here. This Security, Department of Commerce. rule generally follows that structure in SUPPLEMENTARY INFORMATION: creating new ‘‘600 series’’ ECCNs to ACTION: Final rule. Background control certain military vehicles and related items; vessels of war and related SUMMARY: This rule adds to the Export This final rule is published by the items; submersible vessels, Administration Regulations (EAR) Bureau of Industry and Security (BIS) as oceanographic equipment and related controls on military vehicles and related part of the Administration’s Export items; and auxiliary and miscellaneous items; vessels of war and related items; Control Reform (ECR) Initiative. submersible vessels, oceanographic items on the CCL. Pursuant to a rule President Obama directed the published concurrently with this rule by equipment and related items; and Administration in August 2009 to auxiliary and miscellaneous items that the Department of State, the items are conduct a broad-based review of the being removed from the USML because the President has determined no longer U.S. export control system to identify warrant control on the United States the President has determined they no additional ways to enhance national longer warrant control on the USML. Munitions List (USML). This rule also security. In April 2010, then-Secretary adds to the EAR controls on items The changes described in this rule of Defense Robert M. Gates, describing and the State Department’s rule within the scope of the Munitions List the initial results of that effort, (WAML) of the Wassenaar Arrangement amending Categories VI, VII, XIII, and explained that fundamental reform of XX of the USML are based on a review on Export Controls for Conventional the U.S. export control system is Arms and Dual-Use Goods and of those categories by the Defense necessary to enhance our national Department, which worked with the Technologies (Wassenaar Arrangement) security. The implementation of ECR that are not specifically identified on Departments of State and Commerce in includes amendment of the preparing the amendments. The review the USML or the Commerce Control List International Traffic in Arms (CCL) but that were subject to USML was focused on identifying the types of Regulations (ITAR) and its U.S. articles that are now controlled by the jurisdiction. Finally, this rule moves Munitions List (USML), so that they certain items that were already subject USML that either (i) are inherently control only those items that provide military and otherwise warrant control to the EAR to the new Export Control the United States with a critical military Classification Numbers (ECCNs) created on the USML, or (ii) if of a type common or intelligence advantage or otherwise to civil applications, possess parameters by this rule. This rule is being published warrant such controls, and amendment in conjunction with the publication of a or characteristics that provide a critical of the Export Administration military or intelligence advantage to the Department of State, Directorate of Regulations (EAR) to control military United States and that are almost Defense Trade Controls rule revising items that do not warrant USML exclusively available from the United USML Categories VII, VI, XX, and XIII controls. This series of amendments to States. If an article was found to satisfy to control those articles the President the ITAR and the EAR will reform the either or both of those criteria, the has determined warrant control in those U.S. export control system to enhance article remains on the USML. If an Categories of the USML. Both rules are our national security by: (i) Improving article was found not to satisfy either part of the President’s Export Control the interoperability of U.S. military criterion, but is nonetheless a type of Reform Initiative. The revisions in this forces with allied countries; (ii) article that is, as a result of differences final rule are also part of Commerce’s strengthening the U.S. industrial base in form and fit, ‘‘specially designed’’ for retrospective regulatory review plan by, among other things, reducing military applications, then it is under Executive Order (EO) 13563. incentives for foreign manufacturers to identified in one of the new ‘‘600 DATES: This rule is effective January 6, design out and avoid U.S.-origin content series’’ ECCNs created by this rule. 2014. and services; and (iii) allowing export Section 38(f) of the AECA (22 U.S.C. ADDRESSES: Commerce’s full plan can be control officials to focus government 2778(f)) obligates the President to accessed at: http://open.commerce.gov/ resources on transactions that pose review the USML ‘‘to determine what news/2011/08/23/commerce-plan- greater national security, foreign policy, items, if any, no longer warrant export retrospective-analysis-existing-rules. or proliferation concerns than those controls under’’ the AECA. The FOR FURTHER INFORMATION CONTACT: For involving our NATO allies and other President must report the results of the questions regarding ground vehicles and multi-regime partners. review to Congress and wait 30 days related items controlled under ECCNs On July 15, 2011, as part of the ECR, before removing any such items from 0Y606, contact Gene Christiansen, BIS published a proposed rule (76 FR the USML. The report must ‘‘describe

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the nature of any controls to be imposed Proposed Rules § 740.20(b)(3)(iii) and (g)(1) of the EAR on that item under any other provision This rule implements amendments to to indicate that the restrictions of law.’’ 22 U.S.C. 2778(f)(1). The the EAR proposed in the following four applicable to certain ‘‘600 series’’ ECCN Department of State made the rules: ‘‘end items’’ also apply to ‘‘end items’’ congressional notification required by • Revisions to the Export controlled under ECCNs 0A606.a, Section 38(f) of the AECA for removal Administration Regulations (EAR): 8A609.a, and 8A620.a or .b. These ‘‘600 of these items from the USML. Control of Military Vehicles and Related series’’ ECCNs are being added to the All references to the USML in this Items That the President Determines No CCL as part of this final rule. The April rule are to the list of defense articles Longer Warrant Control on the United 16 (initial implementation) rule that are controlled for purposes of States Munitions List, (76 FR 76085, identified only those end items export, temporary import, or brokering December 6, 2011) (herein ‘‘the controlled by ECCN 9A610.a, because pursuant to the ITAR, and not to the list December 6 (vehicles) rule’’); ECCNs 0A606, 8A609 and 8A620 would of defense articles on the United States • Revisions to the Export not be added to the CCL until Munitions Import List (USMIL) that are Administration Regulations (EAR): publication of this rule. controlled by the Bureau of Alcohol, Control of Vessels of War and Related Cross References to ECCN 0A919 Tobacco, Firearms and Explosives (ATF) Articles the President Determines No This final rule adds to the ‘‘related for purposes of permanent import under Longer Warrant Control Under the controls’’ paragraph of Product Groups its regulations at 27 CFR part 447. United States Munitions List (USML), A, B, C, and D of the ‘‘600 series’’ Pursuant to section 38(a)(1) of the (76 FR 80282, December 23, 2011) ECCNs the following sentence: ‘‘(2) See AECA, all defense articles controlled for (herein ‘‘the December 23 (vessels) ECCN 0A919 for foreign-made ‘‘military export or import, or that are subject to rule’’); brokering controls, are part of the • Revisions to the Export commodities’’ that incorporate more ‘‘USML’’ under the AECA. For the sake Administration Regulations (EAR): than a de minimis amount of U.S.-origin of clarity, references to the USMIL are Control of Submersible Vessels, ‘‘600 series’’ controlled content.’’ This is to the list of defense articles controlled Oceanographic Equipment and Related a non-substantive change from what was by ATF for purposes of permanent Articles That the President Determines proposed. import. All defense articles described in No Longer Warrant Control Under the Forgings and Castings the USMIL or the USML are subject to United States Munitions List (USML) (76 The December 6 (vehicles) rule the brokering controls administered by FR 80291, December 23, 2011) (herein included a note to ECCN 0A606.x, the U.S. Department of State in part 129 ‘‘the December 23 (submersible vessels) which stated that: ‘‘Forgings, castings, of the ITAR. The transfer of defense rule’’); and and other unfinished products, such as • Revisions to the Export articles from the ITAR’s USML to the extrusions and machined bodies, that Administration Regulations: Auxiliary EAR’s CCL, for purposes of export have reached a stage in manufacture and Miscellaneous Items That No controls, does not affect the list of where they are clearly identifiable by Longer Warrant Control Under the defense articles controlled on the material composition, geometry, or United States Munitions List and Items USMIL under the AECA for purposes of function as commodities controlled by on the Wassenaar Arrangement permanent import or brokering controls. ECCN 0A606.x are controlled by ECCN Munitions List (77 FR 29564, May 18, On January 18, 2011, President Barack 0A606.x.’’ The December 23 (vessels) 2012) (herein ‘‘the May 18 (auxiliary Obama issued Executive Order (EO) rule proposed such a note to ECCN 13563, affirming general principles of equipment) rule’’). This rule creates new ‘‘600 series’’ 8A609.x, and the December 23 regulation and directing government (submersible vessels) rule proposed agencies to conduct retrospective ECCNs to control certain military vehicles and related items; vessels of such a note to ECCN 8A620.x. reviews of existing regulations. The This final rule adds the phrase war and related items; submersible revisions in this final rule are part of ‘‘mechanical properties’’ to those notes vessels, oceanographic equipment and Commerce’s retrospective regulatory because there may be circumstances related items; and auxiliary and review plan under EO 13563. when the mechanical properties, as well miscellaneous items on the CCL. Commerce’s full plan, completed in as the material composition, geometry Descriptions of these ECCNs, issues August 2011, can be accessed at: or function, of a forging, casting, or raised in public comments on the rules http://open.commerce.gov/news/2011/ unfinished product, may have been proposing them, and BIS responses to 08/23/commerce-plan-retrospective- altered specifically for a 0A606.x, those comments are addressed in analysis-existing-rules. 8A609.x, or 8A620.x part or component. discrete sections below. However, Although the Export Administration The omission of ‘‘mechanical certain changes made by this rule apply Act expired on August 20, 2001, the properties’’ from the lists in the more broadly: License Exception STA President, through Executive Order proposed rules was an error that is being eligibility; notes on forgings and 13222 of August 17, 2001, 3 CFR, 2001 corrected in this rule. Comp., p. 783 (2002), as amended by castings; the United Nations reason for Executive Order 13637 of March 8, control; removal of the .y.99 paragraph; United Nations (UN) Reason for Control 2013, 78 FR 16129 (March 13, 2013), separate definitions for ‘‘accessories’’ The July 15 (framework) rule and as extended by the Notice of August and ‘‘attachments;’’ and the composition proposed applying a United Nations 15, 2012, 77 FR 49699 (August 16, of the entries for software and (UN) reason for control to military 2012), has continued the Export technology. vehicles and related items. The Administration Regulations in effect Broadly Applicable Changes Made by December 6 (vehicles) rule proposed under the International Emergency This Rule removing the UN reason for control that Economic Powers Act. BIS continues to had been proposed by the July 15 carry out the provisions of the Act, as Amendments to Section 740.20 (License (framework) rule. None of the other appropriate and to the extent permitted Exception STA) ‘‘600 series’’ ECCNs created by this rule by law, pursuant to Executive Order This final rule amends the License contained items that would have been 13222. Exception STA provisions in subject to a UN reason for control when

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they were proposed. Consistent with the which proposed a single definition for ECCN in this final rule will control April 16 (initial implementation) rule, that phrase. Subsequently, BIS software for development, production, this final rule includes the UN controls published a proposed rule entitled operation, or maintenance of the described in § 746.1(b) of the EAR in the ‘‘‘Specially Designed’ Definition’’ (77 FR relevant items. Each new ‘‘600 series’’ ECCNs that it creates. These controls are 36409, June 19, 2012), which proposed, technology ECCN in this final rule will consistent with the amendments inter alia, creating separate, but control technology for development, contained in a final rule that BIS identical definitions for ‘‘accessories’’ production, operation, installation, published on July 23, 2012 (77 FR and for ‘‘attachments’’ to allow for maintenance, repair, overhaul, or 42973), titled ‘‘Export and Reexport instances when only one of the terms refurbishing of those items. To the Controls to Rwanda and United Nations would be used. The April 16 (initial extent that a particular function does Sanctions under the Export implementation) rule adopted that not apply to a particular item because Administration Regulations.’’ That rule change as a final rule. Accordingly, this no software or technology to perform amended § 746.1 of the EAR to describe final rule identifies ‘‘accessories’’ and the function with respect to that item the licensing policy that applies to ‘‘attachments’’ as separate terms exists, no burden is imposed. countries subject to a United Nations wherever they appear in the regulatory Controlling a larger number of functions Security Council (UNSC) arms embargo text. in technology ECCNs is not an increase and to limit the use of license Conforming Change Regarding Gas in burden because all six functions are exceptions to such countries. Applying Turbine Engines now controlled for technology on the that licensing policy and related license USML. exception restrictions to the new ‘‘600 In the April 16 (initial Similarly, all production equipment series’’ ECCNs that are created by this implementation) rule, BIS created, inter ECCNs will control test, inspection, and final rule is appropriate because of the alia, ECCN 9A619 military gas turbine production equipment for the military nature of the items controlled engines and related commodities (See development, production, repair, under these new ECCNs. 78 FR 22731, April 16, 2013). ECCN overhaul, or refurbishing of the relevant 9A619, as it appeared in that rule, items. Paragraph .y.99 applied to gas turbine engines that are The proposed rules would have not enumerated on the USML, but are Military Vehicles and Related Items created a paragraph .y.99 in each of the ‘‘specially designed’’ for ‘‘end-items’’ in Background new ‘‘600 series’’ ECCNs. Those USML Category VIII or ECCN 9A610, paragraphs would have imposed the both of which apply to aircraft. The controls on military vehicles and antiterrorism (AT Column 1) reason for Consistent with the proposed changes in related items in this final rule are based control to items that would otherwise be the December 6 (gas turbine engine) on the proposals for controlling those controlled in that ECCN but that had rule, this rule expands the scope of items set forth in the July 15 been determined to be subject to the ECCN 9A619 to apply to gas turbine (framework) rule and refined in the EAR in a commodity jurisdiction engines that are not on the USML, but December 6 (vehicles) rule and on a determination issued by the Department are for military vehicles (USML review of the public comments thereon of State and that are not elsewhere Category VII and ECCN 0A606) and by the Departments of Defense, State identified on the CCL (i.e., were surface vessels (USML Category VI and and Commerce. designated as EAR99). Applying the AT ECCN 8A609). The President has This rule generally follows the Column 1 reason for control would determined these items no longer structure established in the April 16 increase the number of circumstances warrant control on the USML. (initial implementation) rule in creating under which these items would require five new ‘‘600 series’’ ECCNs to control Consistency of Controls a license. As stated in the preamble to military ground vehicles and related the April 16 (initial implementation) This final rule diverges in certain items. However, this rule departs from rule (See 78 FR 2266, April 16, 2013), instances from the four proposed rules that structure in ECCN 0A606.b. That BIS agreed with a commenter that the on which it was based with respect to paragraph retains national security (NS burden of tracking down and analyzing the composition of the ECCNs. Software Column 2) and regional stability (RS whether items formally determined not and technology ECCNs related to end Column 2) controls on the unarmed to be subject to the ITAR that were also items, production or other equipment, armored vehicles that upon the effective EAR99 items because they were not or materials generally control software date of this rule will be controlled under identified on the CCL outweighs the and technology for the development and ECCN 0A606.b instead of ECCN once-contemplated organizational production of those items, and for some 9A018.b. Otherwise, this rule applies benefits of creating the .y.99 control. combination of the following six the national security (NS Column 1) and Such items have already gone through elements: operation, installation, regional stability (RS Column 1) reasons an interagency review process that maintenance, repair, overhaul, or for control that apply generally to ‘‘600 concluded whether the items were refurbishing of those items. Separate series’’ items that are subject to the subject to the ITAR. Thus, BIS has technical teams determined the scope of national security and regional stability determined that any such items should control for different groups of ECCNs. reasons for control. The December 6 retain EAR99 status if not otherwise As a result, different software and (vehicles) rule proposed these reasons identified on the CCL. Accordingly, this technology entries varied in the number for control, and BIS received no final rule does not contain any .y.99 and type of functions controlled. comments on that aspect of the paragraphs. Although this variation was not December 6 (vehicles) proposed rule. As inappropriate technically and did not a conforming change, this rule revises Accessories and Attachments receive public comments when the RS column 2 license requirement The proposed rules would have proposed in four separate rules, BIS is paragraph in § 742.6(a)(4)(i) to reference enclosed the phrase ‘‘accessories and concerned that retaining this variation the column rather than to list specific attachments’’ in quotation marks would complicate compliance. Standard ECCNs, as was done for the RS column through its regulatory text, in keeping text across ECCNs is a simpler 1 license requirement paragraph in the with the July 15 (framework) rule, approach. Therefore, each software April 16 (initial implementation) rule.

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The change to § 742.6(a)(4)(i) is in coverage of paragraph .b to apply to First, the April 16 (initial format only; it does not alter the license vehicles with transmissions that supply implementation) rule adopted a requirements for any item that is subject drive to the front and rear wheels definition of specially designed that to the RS Column 2 reason for control. simultaneously even if the vehicle has expressly excludes ‘‘springs’’ from that other wheels that may or may not term, effectively treating all springs as Changes to Controls on Military provide driving force. The proposed Vehicles and Related Items Made by not being specially designed parts, wording was ‘‘all-wheel drive.’’ The This Rule components, accessories or attachments second change limits the scope of the for purposes of 0A606.x and .y. That This rule implements the proposals of paragraph to vehicles with a gross rule also adopted separate definitions of the July 15 (framework) rule and the vehicle weight rating greater than 4,500 the terms ‘‘parts’’ and ‘‘components.’’ December 6 (vehicles) rule by creating kilograms. The third change replaces the Some of the examples in the illustrative five new ECCNs. New ECCN 0A606 term ‘‘capable of off road use’’ with the list, such as discs and drums, would be applies to military ground vehicles, term ‘‘designed or modified for off road defined as parts rather than parts, components, accessories and use.’’ In this final rule, ECCN 0A606.b components. Finally, upon review of the attachments. New ECCN 0B606 applies also adopts the WAML category ML6 public comment that proposed adding to related test, inspection and format in describing these vehicles, a electronic braking systems to paragraph production equipment and parts and non-substantive change from the .y.1 (discussed below), BIS concluded components. New ECCN 0C606 applies December 6 (vehicles) rule. that paragraph .y.1 needed additional to related materials. New ECCN 0D606 This final rule also includes an precision. Therefore, this final rule applies to related software. New ECCN illustrative list of characteristics that makes paragraph .y.1 an exclusive list 0E606 applies to related technology. make a vehicle designed for military use that reads: ‘‘Brake discs, rotors, drums, This rule revises ECCN 9A018 only to in Note 2 to paragraph .a in ECCN calipers, cylinders, pads, shoes, lines, cross reference ECCNs 9A610 (aircraft), 0A606. This note is based on note 2 to hoses, vacuum boosters, and parts 9A619 (gas turbine engines) and 0A606 the WAML category ML6. Prior to the therefor.’’ The term ‘‘parts therefor’’ (vehicles) because upon the effective effective date of this rule the contents of means parts of any of the ten individual date of this rule, all the commodities the note were in an interpretation found articles enumerated in paragraph .y.1. previously in ECCN 9A018 will have in § 770.2(h) of the EAR. Because this ECCN 0C606 applies to materials been moved to one of those other three rule removes § 770.2(h) from the EAR, ‘‘specially designed’’ for military ECCNs. This rule also revises ECCN inclusion of the note in ECCN 0A606 is 9D018 to contain only cross references appropriate. vehicles, ‘‘parts,’’ ‘‘components,’’ to ECCNs 9D610 and 9D619 and to Following the pattern of many of the ‘‘accessories’’ or ‘‘attachments’’ EAR99 and revises ECCN 9E610 to ECCNs that control commodities, ECCN controlled by ECCN 0A606. The contain only cross references to 9E610, 0A606 contains a paragraph .x, which December 6 (vehicles) rule included 9E619 and EAR99 because upon the applies to unspecified parts, wording in the header and in ‘‘Note 1’’ effective date of this rule, all of the components, accessories and in ECCN 0C606 that would have limited software and technology will have been attachments that are specially designed the scope of materials controlled by moved to one of those ECCNs or will be for a specified set of end items, and a ECCN 0C606 to materials not controlled EAR99. paragraph .y, which applies to specified by other ECCNs. The effect of that This rule also removes ‘‘Interpretation parts, components, accessories and wording would have been to make 8’’ from § 770.2 of the EAR (15 CFR attachments that are ‘‘specially materials that are specifically 770.2(h)). That interpretation, which designed’’ for items described in that mentioned in a non-‘‘600 series’’ ECCN explains the relationship between EAR ECCN or the corresponding USML controlled by that non-‘‘600 series’’ and the ITAR with respect to ground Category. To lessen the chances that ECCN even if they are ‘‘specially vehicles, is no longer necessary because readers will mistakenly classify items designed’’ for a military vehicle, ‘‘part,’’ that relationship is expressly delineated specified in paragraph .y under ‘‘component,’’ ‘‘accessory’’ or in ECCN 0A606 (as published by this paragraph .x, which requires a license to ‘‘attachment’’ that is controlled by rule) and in USML Category VII in a more destinations than does paragraph ECCN 0A606. In a rule published June Department of State rule that is being .y, this final rule adds wording to 19, 2012 (77 FR 36409) (‘‘the June 19 published simultaneously with the rule. paragraph .x specifically excluding (specially designed) rule’’), BIS items specified under paragraph .y. This proposed guidance for reviewing the Changes Compared to the Proposed is not a substantive change to what was CCL to determine an item’s December 6 (Vehicles) Rule proposed. classification. The April 16 (initial The December 6 (vehicles) rule ECCN 0A606.y identifies specific implementation) final rule adopted an proposed including in ECCN 0A606.b ‘‘parts,’’ ‘‘components,’’ ‘‘accessories’’ order of review for the CCL that gives certain all-wheel drive vehicles with and ‘‘attachments’’ that are ‘‘specially ‘‘600 series’’ ECCNs precedence over armor that meet National Institute of designed’’ for commodities enumerated non-‘‘600 series’’ ECCNs (See 78 FR Justice Level III standards. Such in 0A606 (other than paragraph .b) or for 22735, April 16, 2013). The header and vehicles currently are controlled in defense articles enumerated in USML note proposed for 0C606 in the ECCN 9A018.b and listed in the Category VII and are not elsewhere December 6 (vehicles) rule would Wassenaar Arrangement Munitions List specified on the USML or CCL. Among contravene that order of precedence. (WAML) category ML6. To reflect the parts so identified in the December Accordingly, this final rule revises the changes agreed to at the Wassenaar 2012 6 (vehicles) rule (0A606.y.1), were header of ECCN 0C606 to remove the plenary meeting and subsequently ‘‘brake system components,’’ which reference to ‘‘not elsewhere specified implemented in ECCN 9A018.b, this were then further described by an . . . on the CCL,’’ removes proposed rule makes three substantive changes to illustrative list reading ‘‘e.g., discs, ‘‘Note 1’’ and redesignates ‘‘Note 2’’ as the descriptions of those vehicles in rotors, shoes, drums, springs, cylinders, ‘‘Note.’’ This rule replaces the phrase ECCN 0A606.b compared to the text of lines, and hoses.’’ Subsequent events ‘‘N/A’’ that appeared in the ‘‘Units’’ ECCN 0A606.b in the December 6 have made it necessary for BIS to revise paragraph in the December 6 (vehicles) (vehicles) rule. One change broadens the paragraph .y.1 from what was proposed. rule with the phrase ‘‘$ value,’’ which

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more accurately describes the unit in made under each of those topics lights and 0A606.y. One such comment which materials would be licensed. separately and also addresses comments stated that exhaust pipes consist mainly The December 6 (vehicles) rule related to military vehicles that BIS of metal tubing that is bent to fit a included notes in the ‘‘related controls’’ received in response to the July 15 particular model of vehicle. As such, sections of ECCNs 0A606, 0B606, (framework) rule and that it stated in the they appear to be classified under 0C606, 0D606 and 0E606 referring December 6 (vehicles) rule it would 0A606.x. The commenter stated that readers to ECCN 0A919 for controls on further consider. This discussion exhaust pipes serve the function of ‘‘military commodities’’ containing provides a single response to topics 1, keeping poisonous gases away from the more than 10 percent U.S.-origin ‘‘600 2 and 3. passenger compartment on both civilian series’’ items. That text was consistent and military vehicles. A second with the de minimis thresholds for ‘‘600 Comments Related to Exclusion of comment recommended that wheels be series’’ items proposed in the July 15 Certain Items From the 600 Series or to added to 0A606.y, stating that wheels (framework) rule. Since publication of Limiting Them to the .y Paragraphs have no more military significance than the December 6 (vehicles) rule, the June Topic 1. List of Parts and Components bearings, axles and blackout lights, all of 21 (transition) rule proposed having no with Little or No Military Significance which were in 0A606.y of the proposed de minimis level for 600 series items This commenter proposed that gauges rule. A third comment questioned why destined for a U.S. arms embargoed such as speedometers; instrument blackout lights were included in country (See 77 FR 37532, June 21, proposed ECCN 0A606.y (in the July 15 panels/clusters; vehicle/engine sensors; 2012). The April 16 (initial (framework) rule). The commenter vehicle engine monitoring sensors and implementation) rule adopted this noted that the .y paragraph was displays such as check engine lights and standard as a final rule (See 78 FR intended to apply to items of little or no their associated sensors; electronic 22667 and 22707, April 16, 2013). In military significance. However, the braking systems; multiplexing systems addition, that rule created a new commenter noted that blackout lights to limit vehicle wiring; tire pressure Country Group D:5 in Supplement No. also were included in proposed monitoring systems and data relating to 1 to part 740 to list the U.S. arms interpretation h, which, among other tires (not including run-flats) be added embargoed countries (See 78 FR 22675 things, identifies features that give a to the list of .y items. The commenter and 22721, April 16, 2013). Thus, the de military vehicle its military minimis level for U.S.-origin ‘‘600 reiterated its opinion expressed in its characteristics. series’’ items could be either 0% or 25% comments to the July 15 (framework) depending on the destination. rule that these items have little or no Topic 2. Criteria for Determining Accordingly, in this final rule, the military significance. The commenter Military Significance ‘‘related controls’’ sections in each of also attributed to BIS the statement that This commenter noted that the those ECCNs, except 0E606, referring these might have to be modified for a December 6 (vehicles) rule solicited readers to ECCN 0A919 use the phrase particular military vehicle; such additional comment on appropriate ‘‘more than a de minimis amount of modifications typically relate to fit and criteria for determining which items U.S.-origin 600 series controlled are similar to the types of modifications classified under ‘‘600 series’’ ECCNs content.’’ The reference is not included that are made for civilian vehicles. BIS’s should be limited to the AT reason for in 0E606 because the EAR do not statement to this effect was part of its control. The organization stated that the provide for the incorporation of summary of a comment received in December 6 (vehicles) rule listed five technology into a commodity under the response to the July 15 (framework) criteria. Actually, those five criteria de minimis rule. rule. The commenter noted that BIS were suggested in a comment to the July appeared to have adopted two 15 (framework) rule. BIS noted them in Comments on the December 6 (Vehicles) ‘‘additional factors’’ for determining the preamble to the December 6 Rule Addressed by This Rule whether a part was militarily (vehicles) rule and neither adopted nor BIS received comments on the significant. Those factors were (1) rejected them, but encouraged further December 6 (vehicles) rule from one concealment and (2) water proof/ comment on appropriate criteria for organization and one individual. resistant status and stated that those two determining which items classified Additionally, in the preamble to the factors were not a reason to treat the under ‘‘600 series’’ ECCNs should be December 6 (vehicles) rule, BIS stated above items as militarily significant. limited to the AT reason for control. that it would continue to consider This conclusion on the part of the certain comments made in response to commenter appears to be based on a Topic 3. Process to Add to List of Items the July 15 (framework) rule with statement in the preamble to the Lacking Military Significance respect to military vehicles. December 6 (vehicles) rule that BIS This commenter stated that the EAR, The organization that commented made in response to a comment to the both currently and as proposed, lacks a noted that in the preamble to the effect that exhaust systems should not process, short of amending the December 6 (vehicles) rule, BIS be treated as militarily significant regulations, to designate an item as addressed comments made by that because they perform the same function subject only to the .y paragraph controls commenter and others concerning on both civil and military vehicles. because it lacks military significance. In which vehicle parts should be subject to BIS’s response noted that the exhaust addition, the commenter stated, self- no more than the antiterrorism reason systems on some military vehicles have classification will be impossible because for control. In that preamble, BIS noted features that reduce infrared signature to of the ‘‘catch-all’’ character of the that it was continuing to review this make the vehicle less detectable and proposed .x paragraphs. Without a issue and welcomed further comments. features to enable deep water fording specific process to add more products to The organization addressed five general and therefore, could not be considered the .y paragraphs, the commenter topics, all of which relate to whether as per se lacking military significance. suggested that export reform might certain parts and components should be In response to comments on the July cause more problems than it is intended included in ‘‘600 series’’ ECCNs 15 (framework) rule, BIS stated that it to resolve. Although implementing such generally and 0A606 in particular. The was still considering comments related a process would likely require agency discussion below summarizes the points to exhaust systems, wheels and blackout resources, the commenter suggested that

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reduced license application volume the CCL is common to a military vehicle manufacturer of EAR99 items might not would result in a countervailing and an EAR99 civil vehicle in wish to modify the design of its reduction in the need for agency production, then it is not controlled by products to adapt them to military resources. Exports of parts without 0A606.x or 0A606.y. If, as described in vehicles, nonetheless, the movement of military significance would be detail in paragraphs (b)(4), (b)(5) and these items to a ‘‘600 series’’ ECCN expedited by fewer license (b)(6), a part or component is not represents a substantial reduction in the requirements. elsewhere enumerated on the USML or licensing burden for manufacturers This commenter also proposed that a the CCL and there is sufficient whose products currently are subject to more efficient alternative to adopting a contemporaneous evidence that it was the ITAR. process for adding items to the .y developed for vehicles not on the USML BIS does not agree with the paragraphs would be to adopt a or CCL (or on the CCL for only AT commenter’s statement that the catch-all definition for ‘‘specially designed’’ that reasons) for such vehicles and for nature of the .x paragraphs would make would eliminate the need to list vehicles that are on the USML or other self-classifications ‘‘impossible.’’ If a militarily insignificant parts at all. This entries on the CCL, or was developed as part or component is listed on the commenter suggested that as an a general purpose commodity or USML, then it is ITAR controlled. If not, alternative, the government could create software, i.e., with no knowledge that and it is enumerated in an ECCN 0A606 a positive list of parts that are militarily for use in or with a particular paragraph, then it is subject to the EAR significant and substantially deregulate commodity, then it will not be within and controlled in that paragraph. If not, all other parts. In the commenter’s view, the scope of 0A606.x or 0A606.y. and it was ‘‘specially designed’’ for a either alternative would give the U.S. After review of the comments, BIS has USML VII article or a 0A606 (other than military better access at lower prices to concluded that technological 0A606.b) item, then it is controlled commercial technologies that could significance to the military character of under 0A606.x, unless specifically update its fleet and better equip U.S. the vehicle should not determine identified in 0A606.y. Such items, when military personnel. whether a particular part, component, they were ITAR controlled under USML Response to topics 1, 2 and 3: Upon accessory or attachment is included in Category VII(g), required a license from further review and reflection, BIS has paragraph .x (requiring a license to all State to export worldwide (except concluded that it should not change the destinations other than Canada), .y Canada if eligible under the Canadian list of parts, components, accessories (requiring a license to a limited range of exemption) and had a zero percent de and attachments that were proposed for destinations), or even EAR99 (not listed minimis threshold when incorporated ECCN 0A606.y in the December 6 on the CCL at all). BIS has reached this into civilian or military items. The U.S. (vehicles) rule (except for the changes to conclusion in recognition of national Government has considerably adjusted 0A606.y discussed above). BIS has also security and foreign policy justifications the controls on such items by concluded that it would not be possible for the U.S. Government’s having controlling them in the new 0A606.x, to publish objective criteria by which control over the export and reexport of which has available to it several license additional parts, components, parts, components, accessories and exceptions and, for most of the world, accessories and attachments would be attachments that, even if they perform a 25% de minimis threshold. In designated as having such limited functions that are common to both civil addition, BIS disagrees with the military significance that they should be and military vehicles, are nonetheless in commenter’s request that the catch-all controlled in the .y paragraph of ECCN some way unique to or specially provisions be amended so that they only 0A606 and establish a routine process designed for military vehicles. Imposing control ‘‘significant’’ parts and for seeking such designation. export license requirements on such components. The commenter would Subsequent to the closing of the parts, accessories and attachments gives leave solely up to the exporter the comment period on the December 6 the U.S. Government visibility into subjective determination whether (vehicles) rule, BIS published the April whether persons in certain countries something is ‘‘significant.’’ It is certain 16 (initial implementation) rule, which have such military vehicles or need that not all exporters and government adopted a new definition of ‘‘specially such vehicles repaired. As officials would come to the same designed.’’ As described in more detail circumstances change, these controls conclusion regarding the significance of in that rule (see 78 FR 22728), parts and give the U.S. Government the ability to any particular item. Granting the components that are used in or with control the flow of such parts and requested edit would thus not create the USML Category VII or 0A610 vehicles components as national security and reliability and predictability BIS is and other commodities are not caught as foreign policy concerns warrant. The trying to accomplish with the proposed specially designed items in 0A606.x or U.S. Government has, however, decided revisions and the new definition of 0A606.y if any of the exclusions in the that controlling such items on the ITAR ‘‘specially designed.’’ It is the definition’s paragraph (b) apply. Thus, is too restrictive and has, thus, created government that decides whether a part for example, as described in paragraph the more flexible controls in the ‘‘600 or component is so significant, from (b)(1), if the Commerce Department series’’ for such items. either a national security or a foreign issues a classification determination BIS notes that there are no items policy perspective, as to warrant control that the Departments of Commerce, within the scope of 0A606.x or 0A606.y on the USML or the more flexible State, and Defense have agreed that a that were not, prior to the effective date controls of the ‘‘600 series’’ ECCNs, not part or component used in or with a of this rule, subject to the ITAR and the exporter. military vehicle does not warrant being controlled under USML Category VII(g), BIS also notes that although the July considered ‘‘specially designed,’’ then it which controlled parts, components, 15 (framework) rule included blackout will not be controlled by 0A606.x or accessories, and attachments lights in ECCN 0A606.y, the December 0A606.y. If the part is one of the basic specifically designed or modified for the 6 (vehicles) rule did not do so. In the parts listed in paragraph (b)(2), then it military vehicle and other items preamble to the December 6 (vehicles) is not controlled by 0A606.x or 0A606.y. described in USML Category VII. rule, BIS stated that it did not include If, as described in detail in paragraph Although classification under a ‘‘600 blackout lights because blackout lights (b)(3), a part or component not series’’ ECCN might impose sufficient were then the subject of discussions at elsewhere enumerated on the USML or additional regulatory burden that a the Wassenaar Arrangement and that

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changing controls on them at that time There are significantly fewer licensing and that the definition of ‘‘required’’ would be premature. Since the and compliance burdens for an AT-only currently in the EAR be expanded to publication of the December 6 (vehicles) EAR item than for an ITAR-controlled apply to commodities as well as rule, two plenary meetings of the item. software and technology. This definition Wassenaar Arrangement have taken focuses on the portion of the technology Topic 5. Analog v. Digital Parts and place. At neither plenary meeting did that is peculiarly responsible for Components the Wassenaar Arrangement decide to achieving or exceeding the controlled remove blackout lights from the list of One commenter noted that the performance levels. This commenter modifications that make a vehicle one proposed December 23 (vessels) and opined that ‘‘required’’ would be more for military use as found in Note 2 to December 23 (submersible vessels) rules precise than ‘‘specially designed.’’ He WAML category ML6. For this reason, distinguished between digital and also stated that the term ‘‘specially in addition to those in the immediately analog parts in compiling lists of parts designed’’ is generally associated with preceding paragraph, this final rule does of little military significance. However, designer intent. not include blackout lights in 0A606.y. the commenter addressed its comment This commenter recommended that Thus, blackout lights that are ‘‘specially on this issue to those two rules and to only components that meet the designed’’ parts for vehicles in USML the December 6 (vehicles) rule. This definition of ‘‘required’’ be controlled Category VII or in ECCN 0A606.a are commenter described that distinction as under ‘‘600 series’’ ECCNs. To address included in ECCN 0A606.x. arbitrary and unwarranted. This situations in which an end item that is commenter noted that digital on the USML could be manufactured Topic 4. Information Needed To Adapt automobile parts have been in use for from parts, none of which meets the Militarily Insignificant Parts and dozens of years and are in almost all definition of ‘‘required,’’ this Components for Military Vehicles modern civil vehicles and vessels. The commenter recommended adding a new One commenter noted that the commenter noted that the main reasons end-use control to part 744 of the EAR December 6 (vehicles) rule stated that for using digital components are: that would control technology required BIS is considering recommendations to Reduced signal degradation, for assembly of components into USML ‘‘limit the controls on form, fit and interoperability with other vehicle parts end items even if the components are function data needed to provide and ability to track and display not specified on the CCL. militarily insignificant items for military diagnostic, service and repair codes. As a specific instance of this vehicles to the antiterrorism reason [for This commenter asserted that there is recommendation, this commenter control]’’ and reiterated with some nothing inherently military about these recommended changing ‘‘specially elaboration the comments it made on functions. This commenter also noted designed’’ to ‘‘required’’ in 0A606.x, this issue in response to the July 15 that some parts designed for a specific 0B606 heading, .a, and .b; 0D606 and (framework) rule. The commenter stated military function are analog. 0E606 headings. that such a limit is critical to effective Response: With respect to military Response: BIS did not adopt these export control reform. Parts suppliers vehicles, the July 15 (framework) rule, recommendations. The term ‘‘required’’ need to know basic information about the December 6 (vehicles) rule and this is defined in the EAR and is not size, shape, available electrical current final rule do not draw a distinction coextensive with the term ‘‘specially and voltage, and other basic parameters between analog and digital components designed.’’ Limiting controls on parts in order to adapt a part to a particular in designating items for the .y paragraph and components to only those that vehicle. They need to communicate this of ECCN 0A606. would be ‘‘peculiarly responsible’’ for information to their employees and the military functionality of a particular suppliers. Requiring parts Comments Related Primarily to item would be a significant decontrol manufacturers to obtain licenses in Definitions or Terminology contrary to the national security and order to do so would increase the cost Comment: One commenter foreign policy bases for the controls and and complexity of compliance recommended that the term ‘‘military the reform initiative. Most parts and programs, negating much of the use’’ and similar terms such as ‘‘military components that are specially designed advantage of creating 0A606.y items. application,’’ ‘‘military mission’’ or for military vehicles do not provide any Response: BIS did not adopt this ‘‘defense articles’’ be avoided because military functionality to the item other recommendation. Although BIS desires they are ambiguous and that more than to enable it to operate. to avoid imposing excessive compliance specific terms be substituted instead. In the April 16 (initial costs on parties engaged in transactions Response: BIS certainly desires to implementation) rule, BIS adopted a that are subject to the EAR, some such make the EAR as explicit and precise as definition of ‘‘specially designed’’ that costs cannot be avoided. In many cases, it can. However, in some instances, is the product of two rounds of BIS maintains export license terms such as the commenter proposes proposed rules and review of extensive requirements on development and avoiding cannot be avoided. For some public comments. This definition production technology for those parts things, a military application is an applies two tests for inclusion within and components that are comparable to important distinguishing factor. In some the definition of ‘‘specially designed’’ the license requirements imposed on the instances, such terms are needed to and then provides six exclusions parts and components themselves fully describe the items to which the whereby a part, component, accessory, because doing so provides a source of EAR applies. Sometimes, such terms are attachment or software may be released information about the disposition and needed to conform with multilateral from the definition. (See 78 FR 22728, status of military vehicles. BIS also control lists which continue to use April 16, 2013) The first test, which is disagrees with the commenter that phrases such as ‘‘military application.’’ similar to the definition of ‘‘required,’’ adding parts and components to the .y The CCL will be amended over time to addresses items that have, as a result of controls increases compliance burdens. reflect changes in the multilateral ‘‘development,’’ ‘‘properties peculiarly All parts and components that are now control lists. responsible for achieving or exceeding controlled in 0A606.y were, prior to the Comment: One commenter the performance levels, characteristics, effective date of this rule, subject to the recommended that the term ‘‘specially or functions in the relevant ECCN or ITAR under USML Category VII(g). designed’’ be replaced with ‘‘required’’ U.S. Munitions List (USML) paragraph

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. . . ’’ The second test in the definition repair, overhaul or refurbishing of EAR and the ITAR more explicit with covers parts, components, accessories, military vehicles and related items on respect to military vehicles. Accordingly attachments or software that are for use the CCL. this rule adds, in response to the in or with defense articles on the USML Response: BIS did not adopt this commenter’s recommendation, at the or items on the CCL. When paired with recommendation. The commenter is end of Note 1 to paragraph .a of ECCN the exclusions, this second test provides correct in noting that ECCN 0D606 in 0A606, the sentence ‘‘For purposes of a basis for including within ECCNs the December 6 (vehicles) rule and in this note, the term ‘‘modified’’ does not 0A606, 0B606, and 0D606 parts, this final rule applies inter alia to include incorporation of safety features components, accessories, attachments software for the production of required by law, cosmetic changes (e.g., and software that are sufficiently commodities in ECCN 0A606 and that different paint or repositioning of bolt military in their character to merit the term ‘‘production’’ is defined in the holes) or addition of ‘‘parts’’ or inclusion in a ‘‘600 series’’ ECCN while EAR to include inspection and testing. ‘‘components’’ available prior to 1956.’’ excluding those that are common to However, the equipment that is used to BIS did not adopt the proposal to both military and unlisted civil items in produce those commodities and articles incorporate the text of the note into the production. Inclusion of military parts, is not necessarily of the same sensitivity body of paragraph .a because BIS does components, accessories, attachments as the software and technology that is not believe that doing so would add and software in these ECCNs provides specific to the production of the clarity to the rule. BIS did not replace the U.S. Government with useful commodities and articles. Some the word ‘‘military’’ with the word information about the disposition and equipment may be used to produce ‘‘armored’’ because currently, USML operating status of vehicles that multiple types of items of varying Category VII(a) applies to, inter alia, previously have been licensed for sensitivity. The decision to place a ‘‘military railway trains’’ and does not export. particular software or technology on the require that such trains be armored. The comment also implicitly assumes USML or on the CCL should be based BIS’s intent is to include in ECCN that the only parts and components that on the capabilities of that software or 0A606 the trains currently covered by warrant controls are those that provide technology. Category VII(a) unless those trains are BIS does not agree with the peculiar military functionality to a armed or are specially designed for commenter’s assertion that the controlled item. The basis for the launching missiles. BIS did not remove definitions of ‘‘development’’ and government’s controls on unspecified references to trailers because trailers are ‘‘production’’ overlap. Those parts and components is that those included in WAML category ML6. definitions, which are the definitions items that are deliberately designed or Failure to include them would be used by the Wassenaar Arrangement, modified and are not otherwise in inconsistent with the U.S. Government’s have been in the EAR for years, and BIS normal commercial use—i.e., that are commitments to the Wassenaar ‘‘specially designed’’ for a military end is unaware of any confusion caused by Arrangement. item—warrant control for that reason. alleged overlap of the terms. Comment: This commenter also The U.S. government has national Comment: One commenter security and foreign policy interests in recommended that proposed ECCN recommended deleting the term being able to monitor, control, and 0A606, paragraph a., be modified to ‘‘specially designed’’ from 0A606.b.1, otherwise have visibility into the supply incorporate, into the body of that Note 2 because in the commenter’s chain of the parts and components that paragraph, proposed text in a note opinion, ‘‘none of the definitions under are necessary to keep military items immediately following that paragraph consideration for specially designed functioning. The U.S. Government has and by revising that text to make the make sense when applied to a made a determination that such parts following three changes: decontrol.’’ and components, which are now ITAR 1. Add language to the description of Response: BIS is not deleting the term controlled, do not warrant all the the tanks subject to that paragraph to ‘‘specially designed’’ from this note, controls of the ITAR. The Government allow certain modifications of tanks which is taken from the WAML category has not made, and does not intend to built prior to 1956. Those modifications ML6 and reads: ‘‘ECCN 0A606.b.1 does make, a determination that such items are safety features required by law, not control civilian vehicles ‘specially do not warrant control at all. cosmetic modifications and addition of designed’ for transporting money or Comment: One commenter parts and components available prior to valuables.’’ Although the commenter’s recommended that ECCNs 0D606 and 1956; position is arguably correct when 0E606 (along with related provisions of 2. Replace with word ‘‘military’’ with applied to the proposed definition of the ITAR) as proposed in the December the word ‘‘armored’’ in describing the ‘‘specially designed’’ in the July 15 6 (vehicles) rule and the State trains subject to paragraph .a; and (framework) rule, the definition of Department’s corresponding rule be 3. Remove all references to trailers. ‘‘specially designed’’ adopted in the revised to place control over production Response: This final rule adopts the April 16 (initial implementation) rule software and technology with portions of this commenter’s does make sense in provisions such as Commerce because production recommendation relating to this note. That definition of ‘‘specially equipment is controlled by Commerce. modifications of certain tanks built prior designed’’ applies to an item that ‘‘(1) This commenter also stated that the to 1956 that do not change the tank’s As a result of ‘‘development’’ has definitions of ‘‘development’’ and status as a tank built in 1955 or earlier. properties peculiarly responsible for ‘‘production’’ overlap. The commenter The wording concerning such achieving or exceeding the performance proposed remedying these situations by modifications appeared in the levels, characteristics, or functions in revising 0D606 and 0E606 to apply to Department of State proposed rule on the relevant ECCN or U.S. Munitions software and technology required for the Category VII in proposed language in 22 List (USML) paragraph; or (2) Is a development or production of military CFR 121.4(b) describing ground vehicles ‘‘part,’’ ‘‘component,’’ ‘‘accessory,’’ vehicles and related items on the ITAR that are subject to the EAR (See 76 FR ‘‘attachment,’’ or ‘‘software’’ for use in and to apply to software and technology 76100, 76102, December 6, 2011). or with a commodity or defense article for the development, production, Including matching language in the EAR ‘enumerated’ or otherwise described on operation, installation, maintenance, will make the boundary between the the CCL or the USML.’’

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When the first definition criterion is combat vehicles), .e (deep water fording Summary of Public Comments substituted for the defined term, ECCN kits for vehicles in USML Category VII Submitted in Response to the Proposals 0A606.b.1, Note 2 reads: ‘‘ECCN or ECCN 0A606), and .f (self-launching Contained in the December 23 (Vessels) 0A606.b.1 does not control civilian bridge components not enumerated in Rule Published by BIS vehicles ‘[that][ a]s a result of USML Category VII(g) for deployment The public comment period for the ‘‘development’’ . . . [have] properties by vehicles in USML Category VII or December 23 (vessels) rule, which peculiarly responsible for achieving or 0A606). This commenter also asserted addressed controls on surface vessels of exceeding the performance levels, that imposing a license requirement on war and related articles, ended on characteristics, or functions in the components of components was February 6, 2012. BIS received relevant ECCN or U.S. Munitions List problematic but did not provide reason comments from four respondents. (USML) paragraph for transporting for the assertion. Following is a summary of those money or valuables.’’ Furthermore, the comments, along with BIS’s responses. second criterion does not apply because Response: BIS did not adopt this The comments are organized by topic, vehicles for transporting money or recommendation, which would have the with similar comments grouped together valuables are not parts, components, effect of eliminating the license accessories, attachments or software. requirement for ‘‘specially designed’’ under the same heading. The phrase transporting money or parts, components, accessories and ECCN 8A609.x (‘‘Parts, ‘‘Components,’’ valuables is a parameter that appears on attachments for items listed in this ‘‘Accessories’’ and ‘‘Attachments’’ That the decontrol note and not in the ECCN comment. Each of the commodities are ‘‘Specially Designed’’ for a 0A606.b.1 control text. Thus, Note 2 listed in ECCN 0A606, paragraphs .c Commodity Enumerated in ECCN limits the scope of ECCN 0A606.b.1. BIS through .f, is a piece of military 8A609 (Except for 8A609.y) or a believes use of the term ‘‘specially equipment or a part or component Defense Article Enumerated in USML designed’’ here will not cause thereof. Applying a license requirement Category VI and Not Specified confusion. to ‘‘specially designed’’ parts and Elsewhere in the USML or in 8A609.y) Comment: One commenter also components for such equipment serves recommended deleting the word Comment: Two respondents ‘‘special’’ from the phrase ‘‘special to provide the U.S. Government with commented that Note 2 to proposed reinforcements for mounts for weapons’’ information about the equipment’s ECCN 8A609.x incorrectly referenced in 0A606.b.1 Note 3. disposition and use. BIS does not agree USML Category VI(g), instead of USML Response: BIS did not accept this with the commenter that imposing a Category VI(f). recommendation. ECCN 0A606.b.1 license requirement on components of Response: This final rule corrects applies to, inter alia, certain unarmed components is problematic. Note 2 to ECCN 8A609.x to refer to vehicles with armor. Note 3 defines an USML Category VI(f), which controls Vessels of War and Related Items; unarmed vehicle for purposes of specified components, parts, Submersible Vessels, Oceanographic paragraph .b.1. The adjective ‘‘special’’ accessories, attachments, and associated in this instance makes clear that Equipment and Related Items equipment for surface vessels of war ordinary bracing or reinforcing used in Background and special naval equipment the bodies of civil vehicles does not enumerated in USML Category VI. Note make a make a civil vehicle armed. This rule makes final the provisions 2 indicates that the latter are excluded Additionally, BIS notes the similarity contained in the December 23 (vessels) from control under ECCN 8A609.x. between the language in Note 3— and the December 23 (submersible ECCN 8A609.y (Specific ‘‘parts,’’ ‘‘special reinforcements for mounts for vessels) rules. These two proposed rules ‘‘Components,’’ ‘‘Accessories’’ and weapons’’ and the example, set forth in from BIS were published in conjunction ‘‘Attachments’’ ‘‘Specially Designed’’ WAML category ML6, of a modification with two rules from the Department of for a Commodity Controlled by ECCN that makes a vehicle ‘‘specially State, Directorate of Defense Trade 8A609 or for a Defense Article in USML designed’’ for military use—‘‘Special Controls that proposed to amend the list Category VI and Not Specified reinforcements or mountings for of articles controlled by USML Elsewhere in the USML) weapons. . . .’’ Categories VI and XX (see 76 FR 80282, Comment: One respondent questioned Comment: One commenter also 80302 and 76 FR 80291, 80305, recommended deleting the term why proposed ECCN 8A609.y.12 respectively). ‘‘specially designed’’ in the phrase that referred to analog gauges and indicators appears in 0A606.e and reads ‘‘deep Specifically, this final rule describes only, and not also to ‘‘digital’’ gauges water fording kits specially designed for how surface vessels of war and related and indicators, because there is nothing ground vehicles controlled by 0A606.a articles that the President determines no inherently military about all ‘‘digital’’ or USML Category VII.’’ longer warrant control under Category parts and components. Response: BIS did not adopt this VI (surface vessels of war and special Response: Since BIS does not intend recommendation. BIS believes that the naval equipment) of the USML will now that ECCN 8A609.y distinguish between term ‘‘specially designed’’ is necessary be controlled on the CCL under new the relative merits of ‘‘analog’’ and to provide precision to the scope of ‘‘600 series’’ ECCNs 8A609, 8B609, ‘‘digital’’ technologies, this final rule paragraph .e. 8C609, 8D609, and 8E609. The rule also changes ECCN 8A609.y to refer to all Comment: One commenter describes how submersible vessels, gauges and indicators, regardless of recommended making 0A606.x, which oceanographic and associated whether they are ‘‘analog’’ or ‘‘digital.’’ applies to ‘‘specially designed’’ parts, equipment that the President has As published in this final rule, these components, accessories and determined no longer warrant control gauges and indicators are now attachments, inapplicable to 0A606.c controlled under ECCN 8A609.y.10. on the USML Category VI or XX will (air-cooled diesel engines and engine Comment: Two respondents now be controlled on the CCL under blocks for armored vehicles of 40 tons recommended that additional items be or more), .d (continuously variable new ‘‘600 series’’ ECCNs 8A620, 8B620, included in the list of specific ‘‘parts,’’ automatic transmission for tracked 8D620, and 8E620. ‘‘components,’’ and ‘‘accessories and

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attachments’’ controlled by ECCN determining factor as to whether a published in the April 16 (initial 8A609.y. particular ‘‘part,’’ ‘‘component,’’ implementation) rule. Accordingly, an One respondent recommended that ‘‘accessory’’ or ‘‘attachment’’ is included item is considered to be ‘‘specially the following items be added to ECCN in paragraph .x (requiring a license to all designed,’’ per paragraph (a) of the 8A609.y: destinations other than Canada) or ‘‘specially designed’’ definition, if the • Atmosphere control and monitoring paragraph .y (requiring a license to a item: (i) As a result of ‘‘development’’ equipment limited range of destinations) or has properties peculiarly responsible for • Environmental control and classified under the designation achieving or exceeding the performance monitoring equipment ‘‘EAR99’’ (not listed on the CCL but levels, characteristics, or functions in • Thermal insulation subject to the EAR). BIS reached this the relevant ECCN or USML paragraph; • Trash handling systems conclusion in recognition of the or (ii) is a ‘‘part,’’ ‘‘component,’’ • Mooring, towing and dry dock national security and foreign policy ‘‘accessory,’’ ‘‘attachment,’’ or equipment justifications in support of the U.S. ‘‘software’’ for use in or with a • Anchoring systems Government exercising control over the commodity or defense article • Material corrosion and fouling control export and reexport of ‘‘parts,’’ ‘enumerated’ or otherwise described on systems ‘‘components,’’ ‘‘accessories’’ and the CCL or the USML. Nevertheless, a • Damage-control equipment ‘‘attachments’’ that, although they ‘‘part,’’ ‘‘component,’’ ‘‘accessory,’’ • Firefighting equipment, fire perform functions common to both civil ‘‘attachment,’’ or ‘‘software’’ that suppression systems, extinguishers, and military vessels, are nonetheless in otherwise would be controlled by water hoses some way unique to, or ‘‘specially paragraph (a) of the ‘‘specially • Emergency water rescue equipment designed’’ for, vessels of war. Imposing designed’’ definition is released from • On-board cranes export license requirements on such being treated as ‘‘specially designed,’’ if • Non-structural bulkheads and flexible ‘‘parts,’’ ‘‘components,’’ ‘‘accessories’’ one or more of the exceptions contained space arrangements and ‘‘attachments’’ provides the U.S. in paragraph (b) of the ‘‘specially • Cargo doors Government with insight into whether designed’’ definition applies. The • Bunks, lockers, and living/ persons in certain countries have ‘‘catch and release’’ construct employed recreational quarter equipment or military vessels or need to have such in paragraphs (a) and (b), respectively, fixtures vessels repaired. These controls give the of the ‘‘specially designed’’ definition is • Meeting and classroom equipment or U.S. Government the ability to control intended to work in combination to fixtures the flow of such parts, components, catch all items that may warrant being • Bridge screens, panels, and monitors accessories, and attachments consistent controlled as ‘‘specially designed.’’ • Electrical cable, cableways, wire, with our national security and foreign Paragraph (b) of the definition tries, to tapes, distribution panels, circuit policy objectives. Nevertheless, the U.S. the extent possible, to release those breakers, supply outlets, connectors, Government has decided that ‘‘parts,’’ ‘‘components,’’ ‘‘accessories,’’ switches, and fixtures controlling such items on the ITAR is ‘‘attachments,’’ or ‘‘software’’ that the • Fiber optic cable, cableways, fixtures, too restrictive and, accordingly, has U.S. Government has determined, in all switches, and supply outlets created more flexible controls for such cases, do not warrant being controlled • Equipment foundations and shock items in the new ‘‘600 series’’ ECCNs on as ‘‘specially designed.’’ the CCL. mounts ECCN 8E609.a (‘‘Technology’’ • Comment: One respondent Fasteners, washers, O-rings, bushings, ‘‘Required’’ for the ‘‘Development,’’ adapters, couplings, bolts and similar recommended that ECCN 8A609.y.5 be rewritten to clarify that it controls ‘‘Production,’’ Operation, Installation, ancillary hardware Maintenance, Repair, Overhaul or • ‘‘metal hydraulic, fuel, oil and air lines Mountings and clamps (meant to keep Refurbishing of Commodities computers, office furniture in place). that are straight, bent, flexible, braided or varying internal cross sectional area.’’ Controlled by ECCN 8A609, 8B609, or The other respondent recommended Response: This final rule clarifies 8C609, or ‘‘Software’’ Controlled by that the following items be added to which items of this type are controlled ECCN 8D609, Except for ECCN 8A609.y, ECCN 8A609.y: under 8A609.y by including the 8B609.y, 8C609.y, or 8D609.y) • Air vents and outlets following control language in ECCN Comment: One respondent • Cabin doors and door seals 8A609.y.2: ‘‘Filters and filter recommended that the phrase • Crew and cabin seats and bunks assemblies, hoses, lines, fittings, ‘‘operation, installation, maintenance, • Fire or smoke detection, prevention couplings, and brackets for pneumatic, repair, or overhaul,’’ in ECCN 8E609.a, and suppression systems hydraulic, oil and fuel systems.’’ be removed and replaced with the term • Gas detection and generation systems Comment: One respondent ‘‘use,’’ as defined in the EAR. • Heating, air-conditioning and air commented that the .y paragraphs in Response: This final rule uses the management equipment ECCNs 8A609, 8B609, 8C609, 8D609, phrase ‘‘operation, installation, • Junction boxes and 8E609 should be removed and that maintenance, repair, overhaul, or • Lithium-ion batteries and battery cells ‘‘parts’’ and ‘‘accessories and refurbishing’’ in ECCN 8E609.a, because • Port hole and port hole seals. attachments’’ should not be controlled this phrase is intended to include each Response: This final rule retains the elsewhere in the 8Y609 ECCNs or in of the specific sub-elements of ‘‘use,’’ as scope of controls set forth in the USML Category VI. Instead, only defined in the EAR. December 23 (vessels) rule and does not individually identified ‘‘required’’ add the additional items recommended ‘‘components’’ should be controlled. Production ‘‘Software’’ and by the commenters. In this regard, note Response: This final rule controls ‘‘Technology’’ Controlled Under ECCNs that BIS has concluded that the ‘‘parts,’’ ‘‘components,’’ ‘‘accessories’’ 8D609 and 8E609, Respectively technological significance of a ‘‘part,’’ and ‘‘attachments’’ for commodities Comment: One respondent stated that ‘‘component,’’ ‘‘accessory’’ or enumerated in the new 8Y609 ECCNs, ‘‘software’’ and ‘‘technology’’ should be ‘‘attachment’’ to the military character consistent with the scope of the controlled by the same agency that of a vessel should not be the sole definition of ‘‘specially designed,’’ as controls production equipment (i.e.,

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Commerce). In that event, the entries on the CCL (i.e., ECCNs 8D609 responsible standard, including respondent recommended that ECCN and 8E609, respectively). providing two examples for applying 8D609 be expanded to control the peculiarly responsible standard for Use of the Term ‘‘Specially Designed’’ ‘‘software’’ ‘‘required’’ for the purposes of paragraph (a)(1). This rule in the 8Y609 ECCNs ‘‘development’’ or ‘‘production’’ of controls ‘‘parts,’’ ‘‘components,’’ defense articles in USML Category VI(a) Comment: One respondent ‘‘accessories’’ and ‘‘attachments’’ for through (f) and the ‘‘software’’ portion recommended that the proposed commodities enumerated in the new of USML Category VI(g). In addition, the definition of ‘‘specially designed’’ (and, 8Y609 ECCNs, consistent with the scope respondent recommended that ECCN in particular, the ‘‘parts’’ and of the definition of ‘‘specially 8E609 be expanded to control ‘‘components’’ exclusions therein) be designed,’’ as published in the April 16 ‘‘technology’’ ‘‘required’’ for the changed to avoid the overly broad (initial implementation) rule. ‘‘development’’ or ‘‘production’’ of control of a large and diverse array of With respect to the phrase ‘‘peculiarly defense articles in USML Category VI(a) militarily insignificant items used on responsible,’’ as applied in through (f) and the ‘‘software’’ portion military surface vessels and related subparagraph (a)(1) of the proposed of USML Category VI(g); and the design articles. In the respondent’s view, the ‘‘specially designed’’ definition, most of, the assembly of components into, provisions of the proposed definition respondents who commented on the and the operation, maintenance and applicable to ‘‘parts’’ and proposed ‘‘specially designed’’ repair of, complete production ‘‘components,’’ if read literally, would definition in the July 15 (framework) installations for defense articles in capture ‘‘parts’’ and ‘‘components’’ for rule found this part of the definition to USML Category VI(a) through (f) and the practically every military item be clear—perhaps, this is because this ‘‘software’’ portion of USML Category enumerated on the CCL or the USML, part of the definition was taken from the VI(g), and items in ECCN 8A609, 8B609 unless the ‘‘parts’’ and ‘‘components’’ definition of ‘‘required’’ in § 772.1 of the or 8D609, even if the ‘‘components’’ of are separately enumerated (i.e., either in EAR. Although the ‘‘required’’ such production installations are not a USML subcategory or in an ECCN that definition applies only to ‘‘software’’ specified on either the CCL or the does not have ‘‘specially designed’’ as a and ‘‘technology,’’ BIS applied the USML. control criterion) or fall within one of defining principle of that definition in the four limited exclusions in paragraph (a)(1) of the ‘‘specially Response: BIS did not adopt this subparagraph (d) of the proposed designed’’ definition, as published in recommendation. As discussed definition (as published in the July 15 the April 16 (initial implementation) previously in the preamble, the changes (framework) rule. To clarify the scope of rule. Therefore, within the context of described in this rule and in the State the definition, with respect to ‘‘parts’’ paragraph (a)(1) of the ‘‘specially Department’s rule amending Categories and ‘‘components,’’ the respondent designed’’ definition, the phrase VI, VII, XIII, and XX of the USML are recommended that ECCN 8A609.y be ‘‘peculiarly responsible’’ means not based on a review of those categories by revised to add the following types of merely that an item captured by this the Defense Department, which worked minor ‘‘parts:’’ threaded fasteners (e.g., paragraph is somehow capable of use with the Departments of State and screws, bolts, nuts, nut plates, studs, with a controlled item, but that Commerce in preparing the inserts), other fasteners (e.g., clips, something was done during the item’s amendments. The review was focused rivets, pins), common type hardware development to enable it to achieve or on identifying the types of articles that (e.g., washers, spacers, insulators, exceed the performance levels, are now controlled by the USML that connectors, diodes, resistors, grommets, characteristics, or functions described in either: (i) Are inherently military and bushings), springs, wire, seals, packings, a referenced ECCN or USML paragraph. otherwise warrant control on the USML; blankets, insulation, decals, and name/ If, for example, the control characteristic or (ii) if of a type common to civil information plates. of a vehicle indicates that the vehicle be applications, possess parameters or In addition, the respondent noted that ‘‘specially designed’’ for military use, characteristics that provide a critical the application of the proposed then, at a minimum, any ‘‘part’’ or military or intelligence advantage to the ‘‘specially designed’’ definition to items ‘‘component’’ that was, as a result of United States and that are almost other than ‘‘parts’’ and ‘‘components’’ development, deliberately made for and exclusively available from the United was ambiguous with respect to the unique to such a military vehicle would States. If an article was found to satisfy phrase ‘‘peculiarly responsible’’ (i.e., the be considered peculiarly responsible for either or both of those criteria, the significance of an item’s properties to meeting the control characteristic of the article remains on the USML. Based on the stated performance characteristics or vehicle, regardless of the part or the review of USML Category VI, ECCN functions), which could be interpreted component’s capabilities or functions. 8D609 controls ‘‘software’’ for items as meaning that the properties are both The only control characteristic for such controlled under ECCN 8A609, 8B609, ‘‘necessary’’ and ‘‘sufficient’’ to achieve vehicles is that the vehicle itself was or 8C609 only (and not ‘‘software’’ for or exceed the stated performance ‘‘specially designed’’ for military use, any of the defense articles enumerated parameters. To address this ambiguity, not that it performed at any particular in USML Category VI), while ECCN the respondent recommended that BIS level. Whether the part or component is 8E609 controls ‘‘technology’’ for items provide examples of how the phrase ultimately considered to be ‘‘specially controlled under ECCN 8A609, 8B609, ‘‘peculiarly responsible’’ would be designed’’ depends upon whether any of 8C609, or 8D609 only (and not applied in determining whether or not the releases in paragraph (b) apply. ‘‘technology’’ for any of the defense an item was ‘‘specially designed.’’ For purposes of paragraph (a)(1) in the articles enumerated in USML Category Response: This final rule does not definition of ‘‘specially designed,’’ this VI). In short, as a result of the review, adopt the respondent’s principle applies equally to ‘‘parts,’’ ‘‘software’’ and ‘‘technology’’ for surface recommendation, although the ‘‘components,’’ ‘‘accessories’’ and vessels of war, special naval equipment, definition of ‘‘specially designed’’ ‘‘attachments’’ for commodities. In and related defense articles enumerated published in the April 16 (initial addition, note that an item is considered in USML Category VI will be controlled implementation rule) did include a Note to be ‘‘specially designed,’’ per under Category VI and not under the to paragraph (a)(1) to provide more paragraph (a)(2) of the ‘‘specially related ‘‘software’’ and ‘‘technology’’ detail on applying the peculiarly designed’’ definition, as published in

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the April 16 (initial implementation) fuel, lubrication and other supply lines. easier to distinguish vessels on the rule, if the item is a ‘‘part,’’ These diesel engines were listed under USML from those on the CCL. ‘‘component,’’ ‘‘accessory,’’ ECCN 8A620 in BIS’s December 23 New ECCN 8B609 (Test, Inspection, and ‘‘attachment,’’ or ‘‘software’’ for use in (submersible vessels) rule that proposed Production ‘‘Equipment’’ and Related or with a commodity or defense article to control on the CCL submersible Commodities ‘‘Specially Designed’’ for ‘enumerated’ or otherwise described on vessels, oceanographic and associated the CCL or the USML. Even so, a ‘‘part,’’ equipment determined by the President the ‘‘Development,’’ ‘‘Production,’’ ‘‘component,’’ ‘‘accessory,’’ to no longer warrant control under Repair, Overhaul, or Refurbishing of ‘‘attachment,’’ or ‘‘software’’ that USML Category VI or Category XX. Commodities in ECCN 8A609 or USML otherwise would be controlled by However, this final rule controls these Category VI (Except for Cat VI(f)(7))) paragraph (a) of the ‘‘specially engines under new ECCN 8A609, ECCN 8B609.a controls test, designed’’ definition would be released instead of new ECCN 8A620 inspection, and production from being treated as ‘‘specially (Submersible vessels oceanographic and ‘‘equipment’’ ‘‘specially designed’’ for designed,’’ if one or more of the associated equipment), because they are the ‘‘development,’’ ‘‘production,’’ exceptions contained in paragraph (b) of generally designed for use in surface repair, overhaul, or refurbishing of the ‘‘specially designed’’ definition vessels, rather than submersible vessels. surface vessels of war and related applies. The ‘‘catch and release’’ Paragraphs .c through .w of ECCN commodities enumerated in ECCN construct employed in paragraphs (a) 8A609 are reserved. Paragraph .x 8A609 (except for items in 8A609.y) or and (b), respectively, of the ‘‘specially controls ‘‘parts,’’ ‘‘components,’’ in USML Category VI (except for articles designed’’ definition is intended to ‘‘accessories’’ and ‘‘attachments’’ enumerated in USML Cat VI(f)(7)). This work in combination to catch all items (including certain unfinished products final rule adds an exclusion to 8B609.a that may warrant being controlled as that have reached a stage in that applies to test, inspection, and ‘‘specially designed.’’ Therefore, the manufacturing where they are clearly production ‘‘equipment’’ ‘‘specially paragraph (a) ‘‘catch’’ must be broad in identifiable as commodities controlled designed’’ for the ‘‘development’’ or scope. To compensate for those by paragraph .x) that are ‘‘specially ‘‘production’’ of articles in USML Cat instances in which paragraph (a) of the designed’’ for a commodity in paragraph VI(f)(7). Paragraph .b is reserved. definition may overreach, paragraph (b) .a or .b or for a defense article in USML of the definition seeks, to the extent Category VI. This final rule specifically New ECCN 8C609 (Materials ‘‘Specially possible, to release those ‘‘parts,’’ excludes from 8A609.x any ‘‘parts,’’ Designed’’ for the ‘‘Development’’ or ‘‘components,’’ ‘‘accessories,’’ ‘‘components,’’ ‘‘accessories’’ and ‘‘Production’’ of Commodities ‘‘attachments,’’ or ‘‘software’’ that the ‘‘attachments’’ for commodities Controlled by 8A609 Not Elsewhere U.S. Government has determined, in all controlled under 8A609.y. Paragraph .y Specified in the USML) cases, do not warrant being controlled consists of specific types of ECCN 8C609.a controls materials as ‘‘specially designed.’’ For example, commodities that, if ‘‘specially ‘‘specially designed’’ for the paragraph (b)(2) in the definition of designed’’ for a commodity subject to ‘‘development’’ or ‘‘production’’ of ‘‘specially designed’’ exempts specified control in ECCN 8A609 or a defense ‘‘parts,’’ and ‘‘components’’ from the article in USML Category VI, warrant surface vessels of war and related definition, if the item is, regardless of less strict controls because they have commodities enumerated in ECCN ‘‘form’’ or ‘‘fit,’’ a fastener (e.g., screw, little or no military significance. 8A609 (except for items in 8A609.y) that bolt, nut, nut plate, stud, insert, clip, Commodities listed in paragraph .y are are not specified elsewhere on the rivet, pin), washer, spacer, insulator, subject to antiterrorism (AT Column 1) USML. The December 23 (vessels) rule grommet, bushing, spring, wire, or controls only. proposed language in the ECCN solder. This final rule does not add gas heading, in 8C609.a, and in the Note turbine engines for military vessels of thereto, that would have limited the Changes to Controls on Vessels Made by war to new ECCN 8A609. Instead, the scope of the materials controlled by This Rule April 16 (initial implementation) rule ECCN 8C609 to those materials not This final rule creates five new 600 created a new ECCN 9A619 and controlled by other ECCNs on the CCL. series ECCNs in CCL Category 8 (ECCNs included gas turbine engines and related The effect of that language would have 8A609, 8B609, 8C609, 8D609, and items for military aircraft in that ECCN. been to make materials specifically 8E609) that control articles the This rule adds gas turbine for surface mentioned in a non-‘‘600 series’’ ECCN President has determined no longer vessels of war and military vehicles to controlled by that non-‘‘600 series’’ warrant control under USML Category that ECCN . ECCN, even if they were ‘‘specially VI. These amendments are discussed in This final rule adds a note to ECCN designed’’ for a military vessel, ‘‘part,’’ more detail below. 8A609 specifying the changes that may ‘‘component,’’ ‘‘accessory,’’ or be made to certain vessels built prior to ‘‘attachment’’ that is controlled by New ECCN 8A609 (Surface Vessels of 1950 without changing the vessel’s ECCN 8A609. Conversely, the April 16 War and Related) status as a vessel built prior to 1950 and (initial implementation) rule adopted a Paragraph .a of ECCN 8A609 controls unmodified since 1949. Similar CCL order of review (see 78 FR 22735, surface vessels of war that are ‘‘specially language concerning such modifications April 16, 2013) in Supplement No. 4 to designed’’ for military use, but not is in the Department of State rule that part 774) that gives ‘‘600 series’’ ECCNs enumerated in the USML. Paragraph .b is being published simultaneously with precedence over non-‘‘600 series’’ of ECCN 8A609 controls non-magnetic this rule. For purposes of this note, the ECCNs when classifying an item. diesel engines that have a power output term modified does not include Accordingly, this final rule does not of 50 hp or more and either of the installation of safety features required include the proposed language from the following: (1) A non-magnetic content by law, cosmetic changes (e.g., different December 23 (vessels) rule that would exceeding 25 percent of total weight or paint), or the addition of ‘‘parts’’ or have limited the scope of the materials (2) non-magnetic parts other than ‘‘components’’ otherwise available prior controlled by ECCN 8C609 to those crankcase, block, head, pistons, covers, to 1950. Including this clarifying materials that are not controlled under end plates, valve facings, gaskets, and language in both rules will make it other ECCNs on the CCL.

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New ECCN 8D609 (‘‘Software’’ Changes To Make New ECCN 8C609 8A609 (surface vessels of war and ‘‘Specially Designed’’ for the Consistent With the CCL Order of related commodities), instead of new ‘‘Development,’’ ‘‘Production,’’ Review ECCN 8A620, because these engines are Operation or Maintenance of The April 16 (initial implementation) generally designed for use in surface Commodities Controlled by 8A609, rule adopted a CCL order of review (see vessels, rather than submersible vessels. 8B609, or 8C609) Supplement No. 4 to part 774) that gives ECCN 8A620.x (‘‘Parts,’’ ‘‘Components,’’ ECCN 8D609.a controls ‘‘software’’ ‘‘600 series’’ ECCNs precedence over ‘‘Accessories’’ and ‘‘Attachments’’ That ‘‘specially designed’’ for the non-‘‘600 series’’ ECCNs when Are ‘‘Specially Designed’’ for a ‘‘development,’’ ‘‘production,’’ classifying an item. Accordingly, the Commodity Enumerated in ECCN 8A620 operation, or maintenance of control language for ECCN 8C609 in this (Except for 8A620.b or .y) and Not commodities controlled by ECCN final rule differs from the control Specified Elsewhere on the USML or in 8A609, ECCN 8B609, or ECCN 8C609 language proposed in the December 23 8A620.y) (vessels) rule in that it does not limit the (except for commodities controlled by Comment: One respondent noted that scope of the materials controlled by ECCN 8A609.y). Paragraph .b is proposed ECCN 8A620.x and .y deviate ECCN 8C609 to materials that are not reserved. ECCN 8D609.y applies to from similar proposed changes in other controlled elsewhere on the CCL. specific ‘‘software’’ that is ‘‘specially ECR rules in that neither paragraph Practically speaking, this means that, if designed’’ for the ‘‘development,’’ controls specific ‘‘parts,’’ an item subject to the EAR is described ‘‘production,’’ operation, or ‘‘components,’’ ‘‘accessories’’ and by a ‘‘600 series’’ ECCN (e.g., ECCN maintenance of commodities ‘‘attachments’’ for defense articles in 8C609), then the item would be enumerated in ECCN 8A609.y. USML Category XX. The respondent controlled under the ‘‘600 series’’ ECCN recommended that BIS include language even if it were also described elsewhere New ECCN 8E609 (‘‘Technology’’ in Note 2 to ECCN 8A620.x to clarify on the CCL under a non-‘‘600 series’’ ‘‘Required’’ for the ‘‘Development,’’ that 8A620.x and .y do not control ECCN. ‘‘Production,’’ Operation, Installation, ‘‘parts,’’ ‘‘components,’’ ‘‘accessories’’ Maintenance, Repair, Overhaul, or Summary of Public Comments and ‘‘attachments’’ for any defense Refurbishing of Commodities Submitted in Response to the Proposals articles enumerated in USML Category Controlled by 8A609, 8B609, or 8C609, Contained in the December 23 XX. or ‘‘Software’’ Controlled by 8D609) (Submersible Vessels) Rule Published Response: The exclusion of ‘‘parts,’’ ECCN 8E609.a controls ‘‘technology’’ by BIS ‘‘components,’’ ‘‘accessories’’ and ‘‘required’’ for the ‘‘development,’’ The public comment period for the ‘‘attachments’’ for any defense articles ‘‘production,’’ operation, installation, December 23 (submersible vessels) rule, in USML Category XX is clearly maintenance, repair, overhaul, or which addressed controls on indicated in ECCN 8A620.x and .y, both refurbishing of items enumerated in submersible vessels, oceanographic of which refer only to items controlled ECCN 8A609, 8B609, 8C609, or 8D609 equipment and related articles, ended under new ‘‘600 series’’ ECCN 8A620 (except for commodities enumerated in on February 6, 2012. BIS received and not to any defense articles in USML ECCN 8A609.y). Paragraph .b is comments from four respondents. Category XX. For this reason, BIS did reserved. ECCN 8E609.y applies to Following is a summary of those not make the recommended change in specific ‘‘technology’’ that is ‘‘required’’ comments, along with BIS’s responses. this final rule. for the ‘‘development,’’ ‘‘production,’’ The comments are organized by topic, ECCN 8A620.y (Specific ‘‘Parts,’’ operation, installation, maintenance, with similar comments grouped together ‘‘Components,’’ ‘‘Accessories’’ and repair, overhaul, or refurbishing of items under the same heading. ‘‘Attachments’’ ‘‘Specially Designed’’ for enumerated in ECCN 8A609.y. ECCN 8A620.d (Engines and Propulsion a Commodity Subject to Control in This Changes to the EAR Amendments Systems) ECCN) Proposed in the December 23 (Vessels) Comment: One respondent Comment: Two respondents Rule recommended that the word recommended that additional items be ‘‘crankcase’’ be replaced with the word included in the list of specific ‘‘parts,’’ Non-Magnetic Diesel Engines Controlled ‘‘components,’’ and ‘‘accessories’’ and Under New ECCN 8A609.b ‘‘crankshaft’’ in ECCN 8A620.d.3 (Non- magnetic diesel engines with a power ‘‘attachments’’ controlled by ECCN As previously discussed, the output of 50 hp or more), as proposed 8A620.y. December 23 (submersible vessels) rule in the December 23 (submersible One respondent recommended that published by BIS proposed that new vessels) rule. the following items be added to ECCN ECCN 8A620.d.3 control non-magnetic Response: This final rule retains the 8A620.y: diesel engines having a power output of word ‘‘crankcase’’ in the control • Thermal insulation 50 hp or more, and either of the language, because ‘‘crankcase’’ more • Firefighting equipment, fire following characteristics: (i) A non- fully describes the types of items that suppression systems, extinguishers, magnetic content exceeding 25 percent are subject to control than the word water hoses of total weight or (ii) non-magnetic parts ‘‘crankshaft.’’ Specifically, the • Emergency water rescue equipment other than crankcase, block, head, ‘‘crankcase’’ is often integrated with the • Non-structural bulkheads and pistons, covers, end plates, valve cylinder bank(s), forming the engine flexible space arrangements facings, gaskets, and fuel, lubrication block, and serves as the housing for the • Bunks, lockers, and living/ and other supply lines. However, ‘‘crankshaft.’’ In addition, note that the recreational quarter facilities because these non-magnetic diesel non-magnetic diesel engines that were • Meeting and classroom facilities engines are generally designed for use in proposed for control under new ‘‘600 • Electrical cable, cableways, wire, surface vessels, rather than submersible series’’ ECCN 8A620.d.3 of the tapes, distribution panels, circuit vessels, this final rule controls these December 23 (submersible vessels) rule breakers, supply outlets, connectors, engines under new ECCN 8A609.b. will now be controlled under new ECCN switches, and fixtures

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• Fiber optic cable, cableways, items in the new ‘‘600 series’’ ECCNs on ‘‘software’’ portion of proposed USML fixtures, switches, and supply outlets the CCL. Category XX(d), and items in ECCN • Equipment foundations and shock Comment: One respondent 8A620, 8B620 or 8D620, even if the mounts recommended that ECCN 8A620.y.5 be ‘‘components’’ of such production • Fasteners, washers, O-rings, rewritten to clarify that it controls installations are not specified on either bushings, adapters, couplings, bolts and ‘‘metal hydraulic, fuel, oil and air lines the CCL or the USML. similar ancillary hardware that are straight, bent, flexible, braided Response: BIS did not adopt this • Mountings and clamps (meant to or varying internal cross sectional area.’’ recommendation. As discussed keep computers, office furniture in Response: This final rule clarifies previously in the preamble, the changes place). which items of this type are controlled described in this rule and in the State The other respondent recommended under 8A620.y by including the Department’s rule amending Categories that the following items be added to following control language under ECCN VI, VII, XIII, and XX of the USML are ECCN 8A620.y: 8A620.y.2: ‘‘Filters and filter based on a review of those categories by • Floats for 8A620.e commodities assemblies, hoses, lines, fittings, the Defense Department, which worked • Cabin doors and door seals couplings, and brackets for pneumatic, with the Departments of State and • Crew and cabin seats and bunks hydraulic, oil and fuel systems.’’ Commerce in preparing the • Fire or smoke detection, prevention ECCN 8B620 (Test, Inspection, and amendments. The review was focused and suppression systems on identifying the types of articles that • Junction boxes Production ‘‘Equipment’’ and Related • Commodities ‘‘Specially Designed’’ for are now controlled by the USML that Lithium-ion batteries and battery either: (i) Are inherently military and cells the ‘‘Development,’’ ‘‘Production,’’ • Repair, Overhaul, or Refurbishing of otherwise warrant control on the USML; Port hole and port hole seals. or (ii) if of a type common to civil Response: This final rule retains the Commodities Enumerated in ECCN applications, possess parameters or scope of controls set forth in the 8A620) characteristics that provide a critical December 23 (submersible vessels) rule. Comment: One respondent stated that military or intelligence advantage to the In this regard, note that BIS has neither proposed ECCN 8B620 nor United States and that are almost concluded that the technological proposed USML Category XX addressed exclusively available from the United significance of a ‘‘part,’’ ‘‘component,’’ equipment ‘‘specially designed’’ to States. If an article was found to satisfy ‘‘accessory’’ or ‘‘attachment’’ to the produce defense articles enumerated in either or both of those criteria, the military character of a submersible USML Category XX. The respondent article remains on the USML. Based on vessel should not be the sole recommended that such equipment be the review of USML Categories VI and determining factor as to whether a controlled on the CCL under new ECCN XX, ECCN 8D620 controls ‘‘software’’ particular ‘‘part,’’ ‘‘component,’’ 8B620. for items controlled under ECCN 8A620 ‘‘accessory’’ or ‘‘attachment’’ is included Response: USML Category XX has or 8B620 only (and not ‘‘software’’ for in paragraph .x (requiring a license to all been re-written to specifically capture any of the defense articles enumerated destinations other than Canada) or equipment ‘‘specially designed’’ to in USML Category XX), while ECCN paragraph .y (requiring a license to a produce defense articles in USML 8E620 controls ‘‘technology’’ for items limited range of destinations) or Category XX. Therefore, new ECCN controlled under ECCN 8A620, 8B620, classified under the designation 8B620 does not control this equipment. or 8D620 only (and not ‘‘technology’’ for ‘‘EAR99’’ (not listed on the CCL at all). Production ‘‘Software’’ and any of the defense articles enumerated BIS reached this conclusion in in USML Category XX). In short, as a recognition of the national security and ‘‘Technology’’ Controlled Under ECCNs 8D620 and 8E620, Respectively result of the review, ‘‘software’’ and foreign policy justifications in support ‘‘technology’’ for submersible vessels of the U.S. Government exercising Comment: One respondent stated that and related defense articles enumerated control over the export and reexport of ‘‘software’’ and ‘‘technology’’ should be in USML Category XX will be controlled ‘‘parts,’’ ‘‘components,’’ ‘‘accessories’’ controlled by the same agency that under Category XX and not under the and ‘‘attachments’’ that, although they controls production equipment (i.e., related ‘‘software’’ and ‘‘technology’’ perform functions common to both civil Commerce). In that event, the entries on the CCL (i.e., ECCNs 8D620 and military submersible vessels, are respondent recommended that ECCN and 8E620, respectively. nonetheless in some way unique to, or 8D620 be expanded to control ‘‘specially designed’’ for, submersible ‘‘software’’ ‘‘required’’ for the Use of the Term ‘‘Specially Designed’’ vessels of war. Imposing export license ‘‘development’’ or ‘‘production’’ of in the 8Y620 ECCNs requirements on such ‘‘parts,’’ defense articles in proposed USML Comment: One respondent ‘‘components,’’ ‘‘accessories’’ and Category XX(a) through (c) and the recommended that the proposed ‘‘attachments’’ provides the U.S. ‘‘software’’ portion of proposed USML definition of ‘‘specially designed’’ (and, Government with insight into whether Category XX(d). In addition, the in particular, the ‘‘parts’’ and persons in certain countries have respondent recommended that ECCN ‘‘components’’ exclusions therein) be military submersible vessels or need to 8E620 be expanded to control changed to avoid the overly broad have such vessels repaired. These ‘‘technology’’ ‘‘required’’ for the control of a large and diverse array of controls give the U.S. Government the ‘‘development’’ or ‘‘production’’ of militarily insignificant items used on ability to control the flow of such parts, defense articles in proposed USML military surface vessels and related components, accessories, and Category XX(a) through (c) and the articles. In the respondent’s view, the attachments consistent with our ‘‘software’’ portion of proposed USML provisions of the proposed definition national security and foreign policy Category XX(d); and the design of, the applicable to ‘‘parts’’ and objectives. Nevertheless, the U.S. assembly of components into, and the ‘‘components,’’ if read literally, would Government has decided that operation, maintenance and repair of, capture ‘‘parts’’ and ‘‘components’’ for controlling such items on the ITAR is complete production installations for practically every military item too restrictive and, accordingly, has defense articles in proposed USML enumerated on the CCL or the USML, created more flexible controls for such Category XX(a) through (c) and the unless the ‘‘parts’’ and ‘‘components’’

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are separately enumerated (i.e., either in EAR. Although the ‘‘required’’ rivet, pin), washer, spacer, insulator, a USML subcategory or in an ECCN that definition applies only to ‘‘software’’ grommet, bushing, spring, wire, or does not have ‘‘specially designed’’ as a and ‘‘technology,’’ BIS applied the solder. control criterion) or fall within one of defining principle of that definition in Changes to Controls on Submersible the four limited exclusions in paragraph (a)(1) of the ‘‘specially Vessels Made by This Rule subparagraph (d) of the proposed designed’’ definition, as published in definition (as published in the July 15 the April 16 (initial implementation) This final rule creates four new ‘‘600 (framework) rule. To clarify the scope of rule. Therefore, within the context of series’’ ECCNs in CCL Category 8 the definition, with respect to ‘‘parts’’ paragraph (a)(1) of the ‘‘specially (ECCNs 8A620, 8B620, 8D620, and and ‘‘components,’’ the respondent designed’’ definition, the phrase 8E620) that control articles the recommended that ECCN 8A620.y be ‘‘peculiarly responsible’’ means that an President has determined no longer revised to add the following types of item captured by this paragraph is not warrant control under USML Category minor ‘‘parts’’: Threaded fasteners (e.g., merely somehow capable of use with a VI or Category XX. These amendments screws, bolts, nuts, nut plates, studs, controlled item, but that something was are discussed in more detail below. inserts), other fasteners (e.g., clips, done during the item’s development to New ECCN 8A620 (Submersible rivets, pins), common type hardware enable it to achieve or exceed the Vessels, Oceanographic and Associated (e.g., washers, spacers, insulators, performance levels, characteristics, or Equipment) connectors, diodes, resistors, grommets, functions described in a referenced Paragraph .a of ECCN 8A620 controls bushings), springs, wire, seals, packings, ECCN or USML paragraph. For purposes blankets, insulation, decals, and name/ submersible and semi-submersible of paragraph (a)(1) in the definition of vessels ‘‘specially designed’’ for a information plates. ‘‘specially designed,’’ this principle In addition, the respondent noted that military use, but not enumerated on the applies equally to ‘‘parts,’’ the application of the proposed USML (e.g., submarine rescue vehicles ‘‘components,’’ ‘‘accessories’’ and ‘‘specially designed’’ definition to items and Deep Submergence Vehicles ‘‘attachments’’ for commodities. In other than ‘‘parts’’ and ‘‘components’’ (DSVs)). Paragraph .b of ECCN 8A620 addition, note that an item is considered was ambiguous with respect to the controls submersible and semi- to be ‘‘specially designed,’’ per phrase ‘‘peculiarly responsible’’ (i.e., the submersible vessels ‘‘specially paragraph (a)(2) of the ‘‘specially significance of an item’s properties to designed’’ for cargo transport designed’’ definition, as published in the stated performance characteristics or (submersible and semi-submersible functions), which could be interpreted the April 16 (initial implementation) vessels of a type known to have been as meaning that the properties are both rule, if the item is a ‘‘part,’’ used in illegal drug trafficking activities) ‘‘necessary’’ and ‘‘sufficient’’ to achieve ‘‘component,’’ ‘‘accessory,’’ and ‘‘parts,’’ ‘‘components,’’ or exceed the stated performance ‘‘attachment,’’ or ‘‘software’’ for use in ‘‘accessories’’ and ‘‘attachments’’ parameters. To address this ambiguity, or with a commodity or defense article ‘‘specially designed’’ therefor. Paragraph the respondent recommended that BIS ‘enumerated’ or otherwise described on .c of ECCN 8A620 controls harbor provide examples of how the phrase the CCL or the USML. Even so, a ‘‘part,’’ entrance detection devices (magnetic, ‘‘peculiarly responsible’’ would be ‘‘component,’’ ‘‘accessory,’’ pressure, and acoustic) and controls applied in determining whether or not ‘‘attachment,’’ or ‘‘software’’ that therefor, not elsewhere specified on the an item was ‘‘specially designed.’’ otherwise would be controlled by USML or the CCL. Paragraph .d of ECCN Response: This final rule does not paragraph (a) of the ‘‘specially 8A620 controls certain engines and adopt the respondent’s designed’’ definition would be released propulsion devices for submersible or recommendation, although the from being treated as ‘‘specially semi-submersible vessels (i.e., diesel definition of ‘‘specially designed’’ designed,’’ if one or more of the engines of 1,500 hp and over with rotary published in the April 16 (initial exceptions contained in paragraph (b) of speed of 700 rpm or over ‘‘specially implementation rule) did include a Note the ‘‘specially designed’’ definition designed’’ for submarines). In a change to paragraph (a)(1) to provide more applies. The ‘‘catch and release’’ from BIS’s December 23 (submersible detail on applying the peculiarly construct employed in paragraphs (a) vessels) rule, paragraph .d does not responsible standard, including and (b), respectively, of the ‘‘specially control non-magnetic diesel engines that providing two examples for applying designed’’ definition is intended to have a power output of 50 hp or more the peculiarly responsible standard for work in combination to catch all items and either of the following: (1) A non- purposes of paragraph (a)(1). This rule that may warrant being controlled as magnetic content exceeding 25 percent controls ‘‘parts,’’ ‘‘components,’’ and ‘‘specially designed.’’ Therefore, the of total weight or (2) non-magnetic parts ‘‘accessories’’ and ‘‘attachments’’ for paragraph (a) ‘‘catch’’ must be broad in other than crankcase, block, head, commodities enumerated in the new scope. To compensate for those pistons, covers, end plates, valve 8Y620 ECCNs, consistent with the scope instances in which paragraph (a) of the facings, gaskets, and fuel, lubrication of the definition of ‘‘specially definition may overreach, paragraph (b) and other supply lines. These engines designed,’’ as published in the April 16 of the definition tries, to the extent are controlled under new ECCN 8A609 (initial implementation) rule. possible, to release those ‘‘parts,’’ (surface vessels of war and related With respect to the phrase ‘‘peculiarly ‘‘components,’’ ‘‘accessories,’’ commodities), instead of new ECCN responsible,’’ as applied in ‘‘attachments,’’ or ‘‘software’’ that the 8A620, because they are generally subparagraph (a)(1) of the proposed U.S. Government has determined, in all designed for use in surface vessels, ‘‘specially designed’’ definition, most cases, do not warrant being controlled rather than submersible vessels. In respondents who commented on the as ‘‘specially designed.’’ For example, another change from BIS’s December 23 proposed ‘‘specially designed’’ paragraph (b)(2) in the definition of (submersible vessels) rule, paragraph .d definition in the July 15 (framework) ‘‘specially designed’’ exempts specified does not control electric motors rule found this part of the definition to ‘‘parts’’ and‘‘components’’ from the ‘‘specially designed’’ for submarines be clear—perhaps, this is because this definition, if the item is, regardless of and having all of the following: (i) A part of the definition was taken from the ‘‘form’’ or ‘‘fit,’’ a fastener (e.g., screw, power output of more than 1,000 hp; (ii) definition of ‘‘required’’ in § 772.1 of the bolt, nut, nut plate, stud, insert, clip, quick reversing; (iii) liquid cooled; and

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(iv) totally enclosed. These electric designed’’ for the ‘‘development’’ or addition, anti-submarine and anti- motors are controlled under USML ‘‘production’’ of commodities torpedo nets described in ECCN Category XX, instead of ECCN 8A620. enumerated in ECCN 8A620.y. 8A018.b.4 will be moved to new ECCN The Note to paragraph .d states that New ECCN 8D620 (‘‘Software’’ 8A620.e and closed and semi-closed propulsion systems not controlled ‘‘Specially Designed’’ for the circuit (rebreathing) apparatus described under ECCN 8A620 that are ‘‘specially ‘‘Development,’’ ‘‘Production,’’ in ECCN 8A018.a will be moved to new designed’’ for an article controlled by Operation or Maintenance of ECCN 8A620.f, as of the effective date USML Category XX are controlled by Commodities Controlled by 8A620 or of this final rule. However, new ECCN USML XX(b) or (c). Paragraphs .e and .f 8B620) 8A620.d will not control either electric control submarine and torpedo nets and motors described in ECCN 8A018.b.2 or ECCN 8D620.a controls ‘‘software’’ certain closed and semi-closed circuit non-magnetic diesel engines described ‘‘specially designed’’ for the (rebreathing) apparatus, respectively. in 8A018.b.3, as proposed in the ‘‘development,’’ ‘‘production,’’ Paragraphs .g through .w are reserved. December 23 (submersible vessels) rule. operation, or maintenance of Paragraph .x controls ‘‘parts,’’ Instead, the former will be controlled ‘‘components,’’ ‘‘accessories’’ and commodities controlled by 8A620 or 8B620 (except for commodities under USML Category XX, while the ‘‘attachments’’ (including certain latter will be controlled under new unfinished products that have reached a controlled by 8A620.b or .y or ECCN ECCN 8A609.b (since these engines are stage in manufacturing where they are 8B620.b). Paragraph .b of ECCN 8D620 generally designed for use in surface clearly identifiable as commodities controls ‘‘software’’ ‘‘specially vessels, rather than submersible controlled by paragraph .x) that are designed’’ for the ‘‘development,’’ ‘‘specially designed’’ for a commodity in ‘‘production,’’ operation, or vessels). paragraphs .a and .c through .f; maintenance of commodities Consistent with the April 16 (initial however, paragraph .x does not include enumerated in 8A620.b or 8B620.b. implementation) rule and with the items ‘‘specially designed’’ for a defense ECCN 8D620.y applies to specific statement in the July 15 (framework) article in USML Category VI or XX. ‘‘software’’ that is ‘‘specially designed’’ rule that 018 entries would remain in Paragraph .y contains specific types of for the ‘‘development,’’ ‘‘production,’’ the CCL for a time, but only for cross- commodities that, if ‘‘specially operation, or maintenance of reference purposes, this rule amends designed’’ for a commodity subject to commodities enumerated in ECCN ECCN 8A018 to remove all language control in ECCN 8A620, warrant less 8A620.y. except cross references to the controls strict controls because they have little or New ECCN 8E620 (‘‘Technology’’ for these items in new ‘‘600 series’’ no military significance. Commodities ‘‘Required’’ for the ‘‘Development,’’ ECCNs 8A609.b and 8A620.d, .e, and .f listed in paragraph .y are subject to ‘‘Production,’’ Operation, Installation, and in revised USML Category XX. antiterrorism (AT Column 1) controls Maintenance, Repair, Overhaul or only. The systems and equipment Changes to the EAR Amendments Refurbishing of Commodities Controlled described in ECCN 8A620.y.14 through Proposed in the December 23 by 8A620 or 8B620, or ‘‘software’’ .y.20, as proposed in the December 23 (Submersible Vessels) Rule Controlled by 8D620) (submersible vessels) rule, are not Engines Controlled Under New ECCN included in ECCN 8A620.y in this final ECCN 8E620.a controls ‘‘technology’’ rule. Any such systems and equipment ‘‘required’’ for the ‘‘development,’’ 8A620.d that are subject to the EAR and not ‘‘production,’’ operation, installation, As previously discussed, the elsewhere specified on the CCL are maintenance, repair, overhaul, or December 23 (submersible vessels) rule refurbishing of commodities controlled classified under the designation published by BIS proposed that new by ECCN 8A620 or 8B620 or ‘‘software’’ ‘‘EAR99.’’ ECCN 8A620.d.3 control non-magnetic controlled by ECCN 8D620 (except for diesel engines having a power output of New ECCN 8B620 (Test, Inspection, and commodities controlled by ECCN 50 hp or more, and either of the Production ‘‘Equipment’’ and Related 8A620.b or .y or ECCN 8B620.b, or following characteristics: (i) A non- Commodities ‘‘Specially Designed’’ for ‘‘software’’ controlled by ECCN 8D620.b the ‘‘Development,’’ ‘‘Production,’’ or .y). Paragraph .b of 8E620 controls magnetic content exceeding 25 percent Repair, Overhaul, or Refurbishing of ‘‘technology’’ ‘‘required’’ for the of total weight or (ii) non-magnetic parts Commodities Enumerated in ECCN ‘‘development,’’ ‘‘production,’’ other than crankcase, block, head, 8A620) operation, installation, maintenance, pistons, covers, end plates, valve ECCN 8B620.a controls test, repair, overhaul, or refurbishing of facings, gaskets, and fuel, lubrication inspection, and production commodities controlled by ECCN and other supply lines. However, ‘‘equipment’’ and related commodities 8A620.b or 8B620.b or ‘‘software’’ because these non-magnetic diesel ‘‘specially designed’’ for the controlled by 8D620.b. ECCN 8E620.y engines are generally designed for use in ‘‘development,’’ ‘‘production,’’ repair, applies to specific ‘‘technology’’ that is surface vessels, rather than submersible overhaul, or refurbishing of ‘‘required’’ for the ‘‘development,’’ vessels, these engines are now commodities enumerated in ECCN ‘‘production,’’ operation, installation, controlled under new ECCN 8A609.b, 8A620 (except for items in 8A620.b and maintenance, repair, overhaul, or instead. In addition, new ECCN 8A620.d .y). Paragraph .b of ECCN 8B620 refurbishing of items enumerated in does not control electric motors, as controls test, inspection, and production ECCN 8A620.y. proposed in the December 23 ‘‘equipment’’ and related commodities (submersible vessels) rule, that are ‘‘specially designed’’ for the Amendments to ECCN 8A018 ‘‘specially designed’’ for submarines ‘‘development’’ or ‘‘production’’ of This final rule also affects items and have all of the following: (i) A commodities enumerated in ECCN controlled under ECCN 8A018. power output of more than 1,000 hp; (ii) 8A620.b. Currently, ECCN 8B620 does Specifically, engines and propulsion quick reversing; (iii) liquid cooled; and not identify specific test, inspection, systems described in ECCN 8A018.b.1 (iv) totally enclosed. These electric and production ‘‘equipment’’ and will be moved to new ECCN 8A620.d as motors are controlled under USML related commodities ‘‘specially of the effective date of this final rule. In Category XX, instead.

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Auxiliary and Miscellaneous Military protection equipment, ‘‘fuel cells’’ in standard computer test models/ Equipment ECCN 0A617. programs. Exporters would be required Response: The control in the EAR of to apply for a license for computer test Background the WAML category ML17 items the models that simply validate form, fit The May 18 (auxiliary equipment) commenter identified are described in and function or dynamic physical rule described BIS’s proposal for how it BIS’s May 18 (auxiliary equipment) rule properties of an end item. The would control auxiliary and and are further described in the ‘‘related commenter recommended that this item miscellaneous military equipment, items’’ to 0A617 and in 0A617.y. be deleted. Existing USML and EAR related articles, software and technology Comment: One commenter stated that controls are adequate to control under USML Category XIII that no proposed changes to companion USML sensitive test models. longer that no longer warrant control on Category XIII as proposed would result Response: BIS does not accept the the USML. That rule proposed in only a small number of items recommendation that test models under controlling those items under five new proposed to be moved to the ‘‘600 ECCN 0A617 be deleted. Instead, this ECCNs. That rule also proposed to series’’ on the CCL. The commenter rule clarifies in ECCN 0A617.d what is include in those five new ECCNs items further stated that jurisdictional clarity meant by test models for purposes of listed in WAML category ML17 that would provide few benefits for U.S. that entry, which does not control would be removed from the USML, or exporters if items that no longer warrant software. To the extent software is that are not specifically identified on control as munitions items continue to controlled, it is described in a D group the USML or CCL but were subject to be identified on the USML. ECCN. In the proposed rule, BIS stated USML jurisdiction. This final rule is Response: BIS notes that the purpose that such items are identified in WAML based on the May 18 (auxiliary of ECR and the resulting movement and category ML17.n and controlled in equipment) rule and on a review of the revision of the list of items from USML relation to the defense article they categories was not intended to be an public comments thereon by the model, such as items in USML exercise to decontrol items per se but Departments of Defense, State and Categories VII(g) and VIII(h). However, rather is an effort to identify items that Commerce. The period for submitting to address the commenter’s request for need to be controlled on the USML comments on that rule closed July 2, further guidance on what is meant by consistent with the national security 2012. the term test model for purposes of and foreign policy objectives of the complying with the EAR, and to track Changes Made to Controls on Auxiliary effort. more closely with the WAML, this rule and Miscellaneous Military Equipment ECCN 0A617: Miscellaneous narrows ECCN 0A617.d to control test by This Rule Equipment, Materials, and Related models for defense articles in USML This rule implements the proposals of Commodities Categories IV, VI, VII and VIII. Comment: A commenter the May 18 (auxiliary equipment) rule Comment: With regard to paragraph .a recommended that the description of by creating five new ECCNs to control of ECCN 0A617 (construction items as proposed in the May 18 auxiliary and miscellaneous military equipment), a commenter expressed an (auxiliary equipment) rule to be covered equipment and related articles the expectation that this paragraph would by then paragraph .y.1 of ECCN 0A617 President determined no longer warrant control a substantial amount of (containers ‘‘specially designed for control under USML Category XIII construction material not currently defense articles or items controlled by a (Auxiliary Military Equipment) and the controlled on the USML, subjecting the ‘‘600 series’’) be modified if the integration of certain WAML category items to a worldwide licensing proposed definition of ‘‘specially ML17 items on the CCL as part of the requirement, except Canada. A simple designed’’ in the June 19 (specially new ‘‘600 series.’’ mobile crane designed to fit within a designed) rule changed or was not This rule controls some items that USML-controlled cargo aircraft would adopted. Positive criteria are needed for were classified under ECCNs 0A018, be caught simply on the basis of size. ‘‘parts,’’ ‘‘components,’’ ‘‘accessories,’’ 0A918, and 0E018 now under new The commenter went on to say that this and ‘‘attachments’’ cited in the Federal ECCNs 0A617 and 0E617. would result in precisely the type of Register notice. As proposed, the Comments and Responses to the May 18 militarily insignificant equipment that wording of 0A617.y.1 would be (Auxiliary Equipment) Rule does not warrant such a stringent sufficient only to control containers that control. are part or component of a defense Three companies submitted Response: Upon further review, BIS article or ‘‘600 series’’ item, or an comments to BIS regarding the May 18 has determined that such items do not accessory or attachment of such articles (auxiliary equipment) rule. Their warrant controls more than those if it also enhances the article’s comments and BIS’s responses are as applicable to 0A617.y and has revised usefulness or effectiveness. follows. the rule by placing construction Response: The intended scope of General Observations equipment under paragraph .y of ECCN paragraph y.1 was to control containers 0A617. as ‘‘end items.’’ Containers ‘‘specially Comment: One commenter asserted Comment: One commenter asked that designed’’ for use in or with controlled that BIS omitted several items from BIS clarify what is covered or is meant items may be controlled without being WAML category ML17 in the proposed by the term ‘‘test models,’’ as proposed a ‘‘part,’’ ‘‘component,’’ ‘‘accessory,’’ or rule’s list of equipment for ECCN in the May 18 (auxiliary equipment) ‘‘attachment.’’ To refine the scope of 0A617. Specifically, the commenter said rule to be covered by paragraph .d of coverage, in this final rule, BIS revised that BIS failed to include items in ECCN 0A617. The commenter went on the description of containers to be paragraph 17.a self-contained diving to say that without the clarification the covered by ECCN 0A617.y.3 by limiting and underwater apparatus; 17.c–.e control could have significant licensing the containers to those that are not fittings, field engineer equipment, impact on all USML-controlled elsewhere specified on the CCL and that ‘‘robots’’; 17.g–.i. nuclear power programs, as well as some systems in are ‘‘specially designed’’ for shipping or generating equipment, equipment and the EAR. As proposed, test models packing defense articles or ‘‘600 series’’ material, simulators; and 17.o & .p laser could include both physical and items.

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Comment: A commenter equipment ‘‘specially designed’’ for ECCN rules previously published as a recommended deleting field generators military use, including such equipment part of ECR, ECCN 0A617, and the other ‘‘specially designed’’ for military use ‘‘specially designed’’ for transport in ECCNs in the 0Y617 series, still do not covered by proposed paragraph .y.2 in aircraft controlled by USML Category contain a catch-all control in the ‘‘.x’’ ECCN 0A617. The commenter noted VIII(a) or ECCN 9A610.a; and ‘‘parts,’’ subparagraph for all parts and that the Department of State, Directorate ‘‘components,’’ ‘‘accessories,’’ and components ‘‘specially designed’’ for of Defense Trade Controls determined in ‘‘attachments’’ ‘‘specially designed’’ items in that category because neither in a commodity jurisdiction therefor, including crew protection kits USML Category XIII nor WAML determination that these items were used as protective cabs. Such items category ML17 contain such a catch-all classified under ECCN 2A994. The were controlled under ECCN 0A018.a as for auxiliary or miscellaneous military ‘‘construction equipment built to commenter added that this existing equipment. To the extent a part or military specifications, including ECCN for portable electric generators component is controlled in this ECCN, and specially designed parts seems to be equipment specially designed for it is described in the applicable more suitable to control these airborne transport; and specially subparagraphs. generators/items. designed parts and accessories for such Response: BIS does not adopt this construction equipment, including crew Paragraph .y controls other recommendation. Items ‘‘specially protection kits used as protective cabs,’’ commodities, as listed in the .y designed’’ for military use are to be and are identified in WAML category subparagraphs. However, in the May 18 controlled in ‘‘600 series’’ items, ML 17.b. In response to comment and (auxiliary equipment) rule, BIS particularly when listed on the WAML. upon further review, BIS determined proposed that ECCN 0A617.y.1 would Thus, BIS will control field generators that construction equipment and control containers ‘‘specially designed’’ specially designed for military use in ‘‘parts,’’ ‘‘components,’’ ‘‘accessories,’’ for military use, which are currently 0A617.y. Items controlled by 2A994 and ‘‘attachments’’ for such equipment, identified in WAML category ML 17.i. continue to be controlled by 2A994. if ‘‘specially designed’’ for a defense ECCN 0A617.y.2 would control military article or ‘‘600 series’’ end item field generators, which are currently ECCN 0C617 Miscellaneous Materials appropriately will be controlled for anti- identified in WAML category ML 17.k. ‘‘Specially Designed’’ for Military Use terrorism (AT) reasons only by ECCN 0A617.y.3 would control military Comment: A commenter paragraph .y.1 of ECCN 0A617. power-controlled searchlights and recommended that specific positive Paragraph .a is reserved. related items. Such items were criteria be provided in the entry for As was proposed, ECCN 0A617.b proposed paragraph .a of ECCN 0C617— controls concealment and deception classified under ECCN 0A918.a as materials, coatings, and treatments for equipment ‘‘specially designed’’ for ‘‘miscellaneous military equipment.’’ signature suppression, ‘‘specially military application that are not In this final rule, ECCN 0A617.y.1 designed’’ for military use that are not controlled in USML Category XIII(g), as controls construction equipment controlled by the USML Category XIII or well as ‘‘parts,’’ ‘‘components,’’ ‘‘specially designed’’ for military use, ECCNs 1C001 or 1C101. The commenter ‘‘accessories,’’ and ‘‘attachments’’ including such equipment ‘‘specially stated that such criteria are needed to ‘‘specially designed’’ therefor. designed’’ for transport in aircraft prevent misinterpretation of what is ECCN 0A617.c controls ferries, controlled by USML Category VIII(a) or bridges (other than those described in caught by the ECCN because the term ECCN 9A610.a. ‘‘Parts,’’ ‘‘components,’’ ECCN 0A606 or USML Category VII), significant suppression is not defined ‘‘accessories,’’ and ‘‘attachments’’ and pontoons if the ferries, bridges or and lacks positive criteria as to what ‘‘specially designed’’ therefor, including level of suppression would be caught by pontoons are ‘‘specially designed’’ for military use. Although not explicitly crew protection kits used as protective the ECCN. As proposed, use of thicker cabs, are controlled in 0A617.y.2. sheet metal or insulation (both are named or described on the USML, these material) to reduce noise level (acoustic items were controlled by USML Containers ‘‘specially designed’’ for signature) could be construed as Category VII(g) and identified in WAML military use, which are currently controlled by 0C617.a. category ML 17.m. identified in WAML category ML17.l, Response: To clarify the scope of the In this final rule, ECCN 0A617.d are controlled by ECCN 0A617.y.3. items covered by paragraph .a of ECCN controls test models ‘‘specially Military field generators, which are 0C617, BIS revised the description of designed’’ for the ‘‘development’’ of currently identified in WAML category that paragraph. That paragraph now defense articles controlled by the USML ML17.k, are controlled by ECCN reads ‘‘[m]aterials, coatings and in Categories IV, VI, VII and VIII. 0A617.y.4. Military power-controlled ECCN 0A617.e is reserved. The treatments for signature suppression, searchlights and related items are photointerpretation, stereoscopic ‘‘specially designed’’ for military use to controlled by ECCN 0A617.y.5. Such plotting, and photogrammetry reduce detectability or observability and items were classified under ECCN equipment originally proposed to be that are not controlled by USML controlled in paragraph .e are retained 0A918.a as ‘‘miscellaneous military Category XIII or ECCNs 1C001 or on the USML. equipment.’’ 1C101.’’ ECCN 0A617.f controls ‘‘metal Finally, as noted in the May 18 Detailed Description of 0Y617 ECCNs embrittlement agents,’’ currently (auxiliary equipment) rule, to the extent Final Provisions Compared to the controlled by USML Category XIII(i) but an item referred to in WAML category Proposed Rule not within the scope of the revised ML17 is already clearly controlled in Category XIII the State Department has New ECCN 0A617: Miscellaneous another existing USML Category or proposed. The term ‘‘metal Equipment, Materials, and Related ECCN, then the ‘‘related controls’’ note embrittlement agents’’ is defined in the Commodities at the beginning of proposed ECCN EAR the same way it is defined in the 0A617 identifies where in the CCL or The May 18 (auxiliary equipment) ITAR. the USML it is controlled. rule proposed to include in ECCN Paragraphs .g through .x are reserved. 0A617.a the control of construction Unlike other proposed ‘‘600 series’’

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New ECCN 0B617: ‘‘Equipment’’ ‘‘specially designed’’ for the requirements of the Paperwork ‘‘specially designed’’ for commodities ‘‘production,’’ ‘‘development,’’ Reduction Act of 1995 (44 U.S.C. 3501 controlled by ECCN 0A617 or USML operation or maintenance of et seq.) (PRA), unless that collection of Category XIII commodities controlled by ECCN information displays a currently valid Consistent with the April 16 (initial 0A617.y. OMB control number. This final rule implementation) rule, ECCN 0B617.a New ECCN 0E617: ‘‘Technology’’ would affect the following approved controls test, inspection, and production ‘‘Required’’ for Items Controlled by collections: Simplified Network ‘‘equipment’’ not controlled by USML ECCN 0A617, 0B617, 0C617 or 0D617 Application Processing System (control number 0694–0088), which includes, Category XIII(k) ‘‘specially designed’’ for As provided in the May 18 (auxiliary the ‘‘production,’’ ‘‘development,’’ among other things, license equipment) rule, ECCN 0E617.a controls applications; license exceptions (0694– repair, overhaul, or refurbishing of ‘‘technology’’ ‘‘required’’ for the commodities enumerated in ECCN 0137); voluntary self-disclosure of ‘‘development,’’ ‘‘production,’’ violations (0694–0058); recordkeeping 0A617 (except for 0A617.y) or USML operation, installation, maintenance, Category XIII, and ‘‘parts,’’ (0694–0096); export clearance (0694– repair, overhaul or refurbishing of 0122); and the Automated Export ‘‘components,’’ ‘‘accessories,’’ and commodities controlled by ECCN ‘‘attachments’’ ‘‘specially designed’’ System (0607–0152). 0A617, ‘‘equipment’’ controlled by As stated in the July 15 (framework) therefor. Paragraph .b is reserved. ECCN 0B617, materials controlled by A note to 0B617 explains that field rule, BIS believed that the combined ECCN 0C617, or ‘‘software’’ controlled effect of all rules to be published adding engineer equipment ‘‘specially by ECCN 0D617. Items controlled by items to the EAR that would be removed designed’’ for use in a combat zone and ECCN 0E617 include ‘‘technology’’ from the ITAR as part of the mobile repair shops ‘‘specially designed previously in ECCN 0E018 for the administration’s Export Control Reform or modified to service military ‘‘production’’ of crew protection kits Initiative would increase the number of equipment, which are identified in used as protective cabs (previously in license applications to be submitted to WAML category ML17.d and 17.j,’’ ECCN 0A018.a and proposed for ECCN BIS by approximately 16,000 annually. respectively, are classified under ECCN 0A617). Paragraphs .b through .x are As the review of the USML progressed, 0B617 to the extent that the items are reserved. not included in USML XIII(k). Subparagraph .y. of ECCN 0E617 the interagency group gained more specific information about the number New ECCN 0C617: Miscellaneous controls specific ‘‘technology’’ ‘‘required’’ for the ‘‘production,’’ of items that would come under BIS Materials ‘‘Specially Designed’’ for jurisdiction. As of the June 21 Military Use ‘‘development,’’ operation, installation, maintenance, repair, overhaul or (transition) rule, BIS estimated the ECCN 0C617.a controls materials, refurbishing of items controlled by increase in license applications to be coatings and treatments for signature ECCNs 0A617.y or 0D617.y. ECCN 30,000 annually, resulting in an increase suppression, ‘‘specially designed’’ for 0E617.y.1 controls ‘‘technology’’ for in burden hours of 8,500 (30,000 military use to reduce detectability or military power-controlled searchlights transactions at 17 minutes each) under observability and that are not controlled and related items, which would be control number 0694–0088. BIS by the USML or ECCNs 1C001 or 1C101. classified under ECCN 0A617.y.5, continues to review its estimate of this The May 18 (auxiliary equipment) rule instead of .y.3 as originally proposed, level of increase as more information listed the units in which commodities (moving from ECCN 0A918.a). The becomes available. As described below, controlled by this ECCN would be ‘‘technology’’ for such items is classified the net burden U.S. export controls licensed as ‘‘End items in number; parts, under ECCN 0E617.y. impose on U.S. exporters will go down components, accessories and as a result of the transfer of less attachments in $ value.’’ This final rule Regulatory Requirements sensitive military items to the replaces that sentence with ‘‘$ value,’’ 1. Executive Orders 13563 and 12866 jurisdiction of the CCL and the which is the unit used for licensing direct agencies to assess all costs and application of the license exceptions materials in other ECCNs. Unchanged benefits of available regulatory and other provisions set forth in this from the May 18 (auxiliary equipment) alternatives and, if regulation is rule. rule, paragraph .b is reserved. necessary, to select regulatory Some items formerly on the USML approaches that maximize net benefits will become eligible for License New ECCN 0D617: ‘‘Software’’ (including potential economic, Exception STA under this rule. Other ‘‘Specially Designed’’ for Items environmental, public health and safety such items may become eligible for Controlled by ECCN 0A617, 0B617 or effects, distribute impacts, and equity). License Exception STA upon approval 0C617 Executive Order 13563 emphasizes the of an eligibility request. BIS believes Consistent with the April 16 (initial importance of quantifying both costs that the increased use of License implementation) rule, ECCN 0D617.a and benefits, of reducing costs, of Exception STA resulting from the controls ‘‘software’’ ‘‘specially harmonizing rules, and of promoting combined effect of all rules to be designed’’ for the ‘‘development,’’ flexibility. This rule has been published adding items to the EAR that ‘‘production,’’ operation or maintenance designated a ‘‘significant regulatory would be removed from the ITAR as of commodities controlled by ECCN action,’’ although not economically part of the administration’s Export 0A617, ‘‘equipment’’ controlled by significant, under section 3(f) of Control Reform Initiative would ECCN 0B617, or materials controlled by Executive Order 12866. Accordingly, increase the burden associated with ECCN 0C617 as described in the the rule has been reviewed by the Office control number 0694–0137 by about proposed rule. Paragraphs .b through .x of Management and Budget (OMB). 14,758 hours (12,650 transactions at 1 are reserved. 2. Notwithstanding any other hour and 10 minutes each). BIS expects Consistent with the other provision of law, no person is required that this increase in burden would be implemented ‘‘600 series’’ software to respond to, nor is subject to a penalty more than offset by a reduction in controls, the .y paragraphs for ECCN for failure to comply with, a collection burden hours associated with approved 0D617 controls specific ‘‘software’’ of information, subject to the collections related to the ITAR.

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3. This rule does not contain policies Comp., p. 783; Notice of August 15, 2012, 77 Country Chart column of the ‘‘License with Federalism implications as that FR 49699 (August 16, 2012). Requirements’’ section. term is defined under E.O. 13132. ■ 2. Section 740.20 is amended by * * * * * 4. The Regulatory Flexibility Act revising paragraphs (b)(3)(iii) and (g)(1), (RFA), as amended by the Small as added April 16, 2013, at 78 FR 22718, PART 770—[AMENDED] Business Regulatory Enforcement effective October 15, 2013, to read as ■ 5. The authority citation paragraph for Fairness Act of 1996 (SBREFA), 5 U.S.C. follows: 601 et seq., generally requires an agency part 770 continues to read as follows: to prepare a regulatory flexibility § 740.20 License Exception Strategic Authority: 50 U.S.C. app. 2401 et seq.; 50 analysis of any rule subject to the notice Trade Authorization (STA). U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, and comment rulemaking requirements * * * * * 3 CFR, 2001 Comp., p. 783; Notice of August under the Administrative Procedure Act (b) * * * 15, 2012, 77 FR 49699 (August 16, 2012). (5 U.S.C. 553) or any other statute, (3) * * * § 770.2 [Amended] unless the agency certifies that the rule (iii) License Exception STA may not ■ will not have a significant economic 6. Section 770.2 is amended by be used to export, reexport, or transfer removing and reserving paragraph (h). impact on a substantial number of small (in-country) end items described in entities. Under section 605(b) of the ECCN 0A606.a, ECCN 8A609.a, ECCN PART 772—[AMENDED] RFA, however, if the head of an agency 8A620.a or .b, or ECCN 9A610.a until certifies that a rule will not have a after BIS has approved their export ■ 7. The authority citation for part 772 significant impact on a substantial under STA under the procedures set out continues to read as follows: number of small entities, the statute in § 740.20(g). Authority: 50 U.S.C. app. 2401 et seq.; 50 does not require the agency to prepare * * * * * U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, a regulatory flexibility analysis. (g) * * * 3 CFR, 2001 Comp., p. 783; Notice of August Pursuant to section 605(b), the Chief 15, 2012, 77 FR 49699 (August 16, 2012). (1) Applicability. Any person may Counsel for Regulations, Department of ■ 8. Section 772.1 is amended by adding request License Exception STA Commerce, certified to the Chief a definition for ‘‘metal embrittlement eligibility for end items described in Counsel for Advocacy that this rule agents’’ in alphabetical order to read as ECCN 0A606.a, ECCN 8A609.a, ECCN would not have a significant impact on follows: a substantial number of small entities. 8A620.a or .b, or ECCN 9A610.a. The rationale for that certification was * * * * * § 772.1 Definitions of terms as used in the stated in the preambles to proposed Export Administration Regulations (EAR). rules at 76 FR 76085, 76091, December PART 742—[AMENDED] * * * * * 6, 2011; 76 FR 80282, 80287, December Metal embrittlement agents. (Cat. 0)— 23, 2011; 76 FR 80291, 80298, December ■ 3. The authority citation paragraph for Non-lethal weapon substances that alter 23, 2011; and 77 FR 29564, 29570, May part 742 continues to read as follows: the crystal structure of metals within a 18, 2012. BIS received no comments on Authority: 50 U.S.C. app. 2401 et seq.; 50 short time span. Metal embrittlement that rationale and is making no changes U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; agents severely weaken metals by to it for this final rule. Therefore, it is 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 chemically changing their molecular not repeated here. U.S.C. 7210; Sec 1503, Pub. L. 108–11, 117 structure. These agents are compounded Stat. 559; E.O. 12058, 43 FR 20947, 3 CFR, in various substances to include List of Subjects 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, adhesives, liquids, aerosols, foams, and 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 lubricants. 15 CFR Part 740 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. Administrative practice and 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. * * * * * 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 procedure, Exports, Reporting and PART 774—[AMENDED] recordkeeping requirements. Comp., p. 783; Presidential Determination 2003–23 of May 7, 2003, 68 FR 26459, May ■ 15 CFR Part 742 16, 2003; Notice of Notice of August 15, 9. The authority citation for part 774 2012, 77 FR 49699 (August 16, 2012); Notice continues to read as follows: Exports, Terrorism. of November 1, 2012, 77 FR 66513 Authority: 50 U.S.C. app. 2401 et seq.; 50 15 CFR Parts 770 and 772 (November 5, 2012). U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et Exports. ■ 4. Section 742.6 is amended by revising paragraph (a)(4)(i) to read as seq., 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 15 CFR Part 774 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. follows: 1354; 15 U.S.C. 1824a; 50 U.S.C. app. 5; 22 Exports, Reporting and recordkeeping § 742.6 Regional stability. U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. requirements. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. (a) * * * For the reasons stated in the 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 (4) * * * Comp., p. 783; Notice of August 15, 2012, 77 preamble, the Export Administration FR 49699 (August 16, 2012). Regulations (15 CFR parts 730–774) are (i) License Requirements Applicable amended as follows: to Most RS Column 2 Items. As ■ 10. In Supplement No. 1 to part 774 indicated in the CCL and in RS Column (the Commerce Control List), Category PART 740—[AMENDED] 2 of the Commerce Country Chart (see 0—Nuclear Materials, Facilities, and Supplement No. 1 to part 738 of the Equipment [and Miscellaneous Items]— ■ 1. The authority citation for part 740 EAR), a license is required to any Export Control Classification Number continues to read as follows: destination except Australia, Japan, (ECCN) 0A018 is amended by: ■ Authority: 50 U.S.C. app. 2401 et seq.; 50 New Zealand, and countries in the a. Adding a sentence to the end of the U.S.C. 1701 et seq.; 22 U.S.C. 7201 et seq.; North Atlantic Treaty Organization Related Controls paragraph in the List of E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., (NATO) for all items in ECCNs on the Items Controlled section as set forth p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 CCL that include RS Column 2 in the below; and

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■ b. Removing and reserving paragraph part 121, Category VII are subject to the b.2.b. Providing ballistic protection to level .a in the Items paragraph of the List of jurisdiction of the International Traffic in III (National Institute of Justice standard Items Controlled section: Arms Regulations. (2) See ECCN 0A919 for 0108.01, September 1985) or better. foreign-made ‘‘military commodities’’ that Note 1 to paragraph b: Ground vehicles 0A018 Items on the Wassenaar Munitions incorporate more than a de minimis otherwise controlled by 0A606.b.1 that List amount of U.S.-origin ‘‘600 series’’ contain reactive or electromagnetic armor are * * * * * controlled content. subject to the controls of USML Category VII. Related Definitions: N/A List of Items Controlled Note 2 to paragraph b: ECCN 0A606.b.1 Items: does not control civilian vehicles ‘‘specially Unit: *** a. Ground vehicles, whether manned or designed’’ for transporting money or Related Controls: * * * (1) See 0A979, unmanned, ‘‘specially designed’’ for a valuables. military use and not enumerated in USML 0A988, and 22 CFR 121.1 Categories Category VII. Note 3 to paragraph b: ‘‘Unarmed’’ means I(a), III(b-d), and X(a). (2) See ECCN not having installed weapons, installed Note 1 to paragraph .a: For purposes of 0A617.y.1 and .y.2 for items formerly mountings for weapons, or special paragraph .a, ‘‘ground vehicles’’ include (i) reinforcements for mounts for weapons. controlled by ECCN 0A018.a. tanks and armored vehicles manufactured Related Definitions: * * * prior to 1956 that have not been modified c. Air-cooled diesel engines and engine Items: since 1955 and that do not contain a blocks for armored vehicles that weigh more a. [RESERVED]. functional weapon or a weapon capable of than 40 tons. d. Fully automatic continuously variable * * * * * becoming functional through repair; (ii) military railway trains except those that are transmissions for tracked combat vehicles. ■ e. Deep water fording kits ‘‘specially 11. In Supplement No. 1 to part 774 armed or are ‘‘specially designed’’ to launch designed’’ for ground vehicles controlled by (the Commerce Control List), Category missiles; (iii) unarmored military recovery ECCN 0A606.a or USML Category VII. 0—Nuclear Materials, Facilities, and and other support vehicles; (iv) unarmored, f. Self-launching bridge components not unarmed vehicles with mounts or hard points Equipment [and Miscellaneous Items] enumerated in USML Category VII(g) for firearms of .50 caliber or less; and (iv) add new ECCNs 0A606 and 0A617 ‘‘specially designed’’ for deployment by between ECCNs 0A521 and 0A918 to trailers ‘‘specially designed’’ for use with ground vehicles enumerated in USML read as follows: other ground vehicles enumerated in USML Category VII or this ECCN. Category VII or ECCN 0A606.a, and not g. through w. [RESERVED] 0A606 Ground vehicles and related separately enumerated in USML Category commodities, as follows (see List of x. ‘‘Parts’’, ‘‘components’’, ‘‘accessories’’ VII. For purposes of this note, the term Items Controlled): License Requirements and ‘‘attachments’’ that are ‘‘specially ‘‘modified’’ does not include incorporation of designed’’ for a commodity enumerated in License Requirements safety features required by law, cosmetic ECCN 0A606 (other than 0A606.b or Reason for Control: NS, RS, AT, UN changes (e.g., different paint or repositioning 0A606.y) or a defense article enumerated in of bolt holes)or addition of ‘‘parts’’ or USML Category VII and not elsewhere Control(s) Country chart ‘‘components’’ available prior to 1956. specified on the USML or in 0A606.y. Note 2 to paragraph .a: A ground vehicle’s Note 1: Forgings, castings, and other NS applies to entire NS Column 1 being ‘‘specially designed’’ for military use unfinished products, such as extrusions and entry, except for purposes of determining controls under machined bodies, that have reached a stage 0A606.b and .y. paragraph .a. entails a structural, electrical in manufacture where they are clearly NS applies to NS Column 2 or mechanical feature involving one or more identifiable by mechanical properties, 0A606.b. components that are ‘‘specially designed’’ for material composition, geometry, or function RS applies to entire RS Column 1 military use. Such components include: as commodities controlled by ECCN 0A606.x entry, except a. Pneumatic tire casings of a kind are controlled by ECCN 0A606.x. 0A606.b and .y. specially designed to be bullet-proof; Note 2: ‘‘Parts,’’ ‘‘components,’’ RS applies to RS Column 2 b. Armored protection of vital parts, (e.g., ‘‘accessories’’ and ‘‘attachments’’ 0A606.b. fuel tanks or vehicle cabs); enumerated in USML paragraph VII(g) are AT applies to entire AT Column 1 c. Special reinforcements or mountings for subject to the controls of that paragraph. entry. weapons; ‘‘Parts,’’ ‘‘components,’’ ‘‘accessories’’ and UN applies to entire See § 746.1(b) for UN d. Black-out lighting. ‘‘attachments’’ enumerated in ECCN 0A606.y entry, except controls b. Other ground vehicles, ‘‘parts’’ and are subject to the controls of that paragraph. 0A606.y. ‘‘components,’’ as follows: y. Specific ‘‘parts’’, ‘‘components’’, License Exceptions b.1. Unarmed vehicles that are derived ‘‘accessories’’ and ‘‘attachments’’ ‘‘specially LVS: $1500 from civilian vehicles and that have all of the designed’’ for a commodity enumerated in GBS: N/A following: this ECCN (other than ECCN 0A606.b) or for CIV: N/A b.1.a. Manufactured or fitted with materials a defense article in USML Category VII and STA: (1) Paragraph (c)(1) of License or components other than reactive or not elsewhere specified on the USML or the Exception STA (§ 740.20(c)(1) of the EAR) electromagnetic armor to provide ballistic CCL, as follows: may not be used for any item in 0A606.a, protection to level III (National Institute of y.1. Brake discs, rotors, drums, calipers, unless determined by BIS to be eligible for Justice standard 0108.01, September 1985) or cylinders, pads, shoes, lines, hoses, vacuum License Exception STA in accordance with better; boosters, and parts therefor; § 740.20(g) (License Exception STA b.1.b. A transmission to provide drive to y.2. Alternators and generators; eligibility requests for ‘‘600 series’’ end both front and rear wheels simultaneously, y.3. Axles; items). (2) Paragraph (c)(2) of License including those vehicles having additional y.4. Batteries; Exception STA (§ 740.20(c)(2) of the EAR) wheels for load bearing purposes whether y.5. Bearings (e.g., ball, roller, wheel); may not be used for any item in 0A606. driven or not; y.6. Cables, cable assembles, and b.1.c. Gross vehicle weight rating (GVWR) connectors; List of Items Controlled greater than 4,500 kg; and y.7. Cooling system hoses; Unit: Equipment in number; ‘‘parts’’, b.1.d. Designed or modified for off-road y.8. Hydraulic, fuel, oil, and air filters, ‘‘components’’, ‘‘accessories’’ and use. other than those controlled by ECCN 1A004; ‘‘attachments’’ in $ value b.2. ‘‘Parts’’ and ‘‘components’’ having all y.9. Gaskets and o-rings; Related Controls: (1) The ground vehicles, of the following: y.10. Hydraulic system hoses, fittings, other articles, technical data (including b.2.a. ‘‘Specially designed’’ for vehicles couplings, adapters, and valves; software) and services described in 22 CFR specified in paragraph .b.1 of this entry; and y.11. Latches and hinges;

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y.12. Lighting systems, fuses, and not on the USML or a commodity 0—Nuclear Materials, Facilities, and components; controlled by a ‘‘600 series’’ ECCN are Equipment [and Miscellaneous Items], y.13. Pneumatic hoses, fittings, adapters, controlled according to the corresponding add new ECCNs 0B606 and 0B617 couplings, and valves; ‘‘600 series’’ ECCN for such end items. (10) y.14. Seats, seat assemblies, seat supports, See USML Category XV for controls on fuel between ECCNs 0B521 and 0B986 to and harnesses; cells specially designed for satellite or read as follows: y.15 Tires, except run flat; and spacecraft. 0B606 Test, inspection, and production y.16 Windows, except those for armored Items: ‘‘equipment’’ and related commodities, not vehicles. a. [RESERVED] enumerated on the USML, ‘‘specially 0A617 Miscellaneous ‘‘equipment,’’ b. Concealment and deception equipment designed’’ for the ‘‘development,’’ materials, and related commodities (see ‘‘specially designed’’ for military application, ‘‘production’’ repair, overhaul, or List of Items Controlled). including special paints, decoys, smoke or refurbishing of commodities enumerated obscuration equipment and simulators, and in ECCN 0A606 or USML Category VII (see License Requirements ‘‘parts,’’ ‘‘components,’’ ‘‘accessories,’’ and List of Items Controlled). Reason for Control: NS, RS, AT, UN ‘‘attachments’’ ‘‘specially designed’’ therefor, not controlled by USML Category XIII. License Requirements Control(s) Country chart c. Ferries, bridges (other than those Reason for Control: NS, RS, AT, UN described in ECCN 0A606 or USML Category NS applies to entire NS Column 1 VII), and pontoons, ‘‘specially designed’’ for entry, except military use. Control(s) Country chart 0A617.y. d. Test models ‘‘specially designed’’ for the RS applies to entire RS Column 1 ‘‘development’’ of defense articles controlled NS applies to entire NS Column 1 entry, except by USML Categories IV, VI, VII and VIII. entry. 0A617.y. e. [RESERVED] RS applies to entire RS Column 1 AT applies to entire AT Column 1 f. ‘‘Metal embrittlement agents.’’ entry. entry. g. through x. [RESERVED] AT applies to entire AT Column 1 UN applies to entire See § 764.1(b) for UN y. Other commodities as follows: entry. entry, except controls y.1. Construction equipment ‘‘specially UN applies to entire See § 746.1(b) for UN 0A617.y. designed’’ for military use, including such entry. controls equipment ‘‘specially designed’’ for transport License Exceptions in aircraft controlled by USML VIII(a) or License Exceptions LVS: $1500 ECCN 9A610.a. LVS: $1500 GBS: N/A y.2. ‘‘Parts,’’ ‘‘components,’’ ‘‘accessories,’’ GBS: N/A CIV: N/A and ‘‘attachments’’ ‘‘specially designed’’ for CIV: N/A STA: Paragraph (c)(2) of License Exception commodities in paragraph .y.1 of this entry, STA: Paragraph (c)(2) of License Exception STA (§ 740.20(c)(2) of the EAR) may not be including crew protection kits used as STA (§ 740.20(c)(2) of the EAR) may not be used for any item in 0A617. protective cabs. used for any item in 0B606. y.3. Containers, n.e.s., ‘‘specially designed’’ List of Items Controlled for shipping or packing defense articles or List of Items Controlled items controlled by a ‘‘600 series’’ ECCN. Unit: ‘‘End items’’ in number; ‘‘parts,’’ Unit: Equipment in units. ‘‘Parts,’’ ‘‘components,’’ ‘‘accessories,’’ and y.4. Field generators ‘‘specially designed’’ ‘‘components,’’ ‘‘accessories,’’ and ‘‘attachments’’ in $ value. for military use. Related Controls: (1) Defense articles, such as y.5. Power controlled searchlights and ‘‘attachments’’ in $ value. materials made from classified control units therefor, ‘‘specially designed’’ Related Controls: (1) Ground vehicles, other information, that are controlled by USML for military use, and ‘‘equipment’’ mounting articles, technical data (including software) Category XIII, and technical data such units. and services described in 22 CFR part 121, Category VII are subject to the jurisdiction (including software) directly related ■ 12. In Supplement No. 1 to part 774 thereto, are subject to the ITAR. (2) See of the International Traffic in Arms ECCN 0A919 for foreign-made ‘‘military (the Commerce Control List), Category Regulations. (2) See ECCN 0A919 for commodities’’ that incorporate more than a 0—Nuclear Materials, Facilities, and foreign-made ‘‘military commodities’’ that de minimis amount of U.S.-origin ‘‘600 Equipment [and Miscellaneous Items], incorporate more than a de minimis series’’ controlled content. (3) For controls Export Control Classification Number amount of U.S.-origin ‘‘600 series’’ on self-contained diving and underwater (ECCN) 0A918 is amended by: controlled content. swimming apparatus and related ■ a. revising the License Exceptions Related Definitions: N/A commodities, see ECCN 8A620.f. (4) For section; and Items: controls on robots, robot controllers, and ■ b. revising the List of Items Controlled a. Test, inspection, and production robot end-effectors, see USML Category VII section, to read as follows: and ECCNs 0A606 and 2B007. (5) ‘‘equipment’’ ‘‘specially designed’’ for the ‘‘Libraries,’’ i.e., parametric technical 0A918 Miscellaneous Military Equipment ‘‘development,’’ ‘‘production,’’ repair, databases, ‘‘specially designed’’ for Not on the Wassenaar Munitions List overhaul, or refurbishing of commodities military use with equipment controlled by (see List of Items Controlled). enumerated in ECCN 0A606 (except for the USML or a ‘‘600 series’’ ECCN are * * * * * 0A606.b or 0A606.y) or in USML Category controlled by the technical data and VII, and ‘‘parts,’’ ‘‘components,’’ technology controls pertaining to such License Exceptions ‘‘accessories’’ and ‘‘attachments’’ ‘‘specially items. (6) For controls on nuclear power LVS: $1500 designed’’ therefor. generating equipment or propulsion GBS: N/A Note 1: ECCN 0B606 includes (i) armor equipment, including ‘‘nuclear reactors,’’ CIV: N/A plate drilling machines, other than radial ‘‘specially designed’’ for military use, and List of Items Controlled drilling machines, (ii) armor plate planing parts and components ‘‘specially machines, (iii) armor plate quenching designed’’ therefor, see USML Categories Unit: In Number. presses; and (iv) tank turret bearing grinding VI, XIII, XV, and XX. (7) Simulators Related Controls: See ECCN 0A617.y.5 for machines. ‘‘specially designed’’ for military ‘‘nuclear items formerly controlled by ECCN reactors’’ are controlled by USML Category 0A918.a. b. Environmental test facilities ‘‘specially IX(b). (8) See USML Categories X, XI and Related Definitions: N/A designed’’ for the certification, qualification, XII for laser protection equipment (e.g., eye Items: Bayonets. or testing of commodities enumerated in and sensor protection) ‘‘specially ECCN 0A606 (except for 0A606.b or 0A606.y) designed’’ for military use. (9) ‘‘Fuel cells’’ ■ 13. In Supplement No. 1 to part 774 or in USML Category VII, and ‘‘equipment’’ ‘‘specially designed’’ for a defense article (the Commerce Control List), Category ‘‘specially designed’’ therefor.

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0B617 Test, inspection, and production License Requirements made ‘‘military commodities’’ that ‘‘equipment’’ and related commodities Reason for Control: NS, RS, AT, UN incorporate more than a de minimis ‘‘specially designed’’ for the amount of U.S.-origin ‘‘600 series’’ ‘‘development,’’ ‘‘production,’’ repair, Control(s) Country chart controlled content. overhaul, or refurbishing of Related Definitions: N/A commodities enumerated in ECCN NS applies to entire NS Column 1 Items: 0A617 or USML Category XIII, and entry. a. Materials, coatings and treatments for ‘‘parts,’’ ‘‘components,’’ ‘‘accessories,’’ RS applies to entire RS Column 1 signature suppression, ‘‘specially designed’’ and ‘‘attachments’’ ‘‘specially designed’’ entry. for military use to reduce detectability or therefor (see List of Items Controlled). AT applies to entire AT Column 1 observability and that are not controlled by USML Category XIII or ECCNs 1C001 or License Requirements entry. UN applies to entire See § 746.1(b) for UN 1C101. Reason for Control: NS, RS, AT, UN entry. controls b. [RESERVED]. ■ Control(s) Country chart License Exceptions 15. In Supplement No. 1 to part 774 LVS: $1500 (the Commerce Control List), Category NS applies to entire NS Column 1 GBS: N/A 0—Nuclear Materials, Facilities, and entry. CIV: N/A Equipment [and Miscellaneous Items], RS applies to entire RS Column 1 STA: Paragraph (c)(2) of License Exception add new ECCNs 0D606 and 0D617 after entry. STA (§ 740.20(c)(2) of the EAR) may not be 0D521 to read as follows: AT applies to entire AT Column 1 used for any item in 0C606. entry. 0D606 ‘‘Software’’ ‘‘specially designed’’ for UN applies to entire See § 746.1(b) for UN List of Items Controlled the ‘‘development,’’ ‘‘production,’’ entry. controls Unit: $ value operation, or maintenance of ground Related Controls: (1) Materials that are vehicles and related commodities License Exceptions subject to the jurisdiction of the ITAR are controlled by 0A606, 0B606, or 0C606 LVS: $1500 described in USML Category XIII. (2) See (see List of Items Controlled). GBS: N/A ECCN 0A919 for foreign-made ‘‘military CIV: N/A commodities’’ that incorporate more than a License Requirements STA: Paragraph (c)(2) of License Exception de minimis amount of U.S.-origin ‘‘600 Reason for Control: NS, RS, AT, UN STA (§ 740.20(c)(2) of the EAR) may not be series’’ controlled content. used for any item in 0B617. Related Definitions: N/A Control(s) Country chart Items: Materials ‘‘specially designed’’ for List of Items Controlled commodities enumerated in ECCN 0A606 NS applies to entire NS Column 1 Unit: ‘‘Equipment’’ in number; ‘‘parts,’’ (other than 0A606.b or 0A606.y) or USML entry, except ‘‘component,’’ ‘‘accessories’’ and Category VII, not elsewhere specified in the 0D606.y. ‘‘attachments’’ in $ value. USML or the CCL. RS applies to entire RS Column 1 Related Controls: See ECCN 0A919 for Note: Materials ‘‘specially designed’’ for entry, except foreign-made ‘‘military commodities’’ that both ground vehicles enumerated in USML 0D606.y. incorporate more than a de minimis Category VII and ground vehicles AT applies to entire AT Column 1 amount of U.S.-origin ‘‘600 series’’ enumerated in ECCN 0A606 are subject to entry. controlled content. the controls of this ECCN unless identified in UN applies to entire See § 746.1(b) for UN Related Definitions: N/A USML Category VII(g) as being subject to the entry, except controls Items: controls of that paragraph. 0D606.y. a . Test, inspection, and production ‘‘equipment’’ not controlled by USML 0C617 Miscellaneous Materials ‘‘Specially License Exceptions Category XIII(k) ‘‘specially designed’’ for the Designed’’ for Military Use (see List of CIV: N/A ‘‘production,’’ ‘‘development,’’ repair, Items Controlled). TSR: N/A overhaul, or refurbishing of commodities License Requirements STA: Paragraph (c)(2) of License Exception enumerated in ECCN 0A617, (except for STA (§ 740.20(c)(2) of the EAR) may not be Reason for Control: NS, RS, AT, UN 0A617.y) or USML Category XIII, and used for any software in 0D606. ‘‘parts,’’ ‘‘components,’’ ‘‘accessories,’’ and Control(s) Country chart List of Items Controlled ‘‘attachments’’ ‘‘specially designed’’ therefor. b. [RESERVED]. Unit: $ value. NS applies to entire NS Column 1 Related Controls: (1) Software directly related Note: Field engineer equipment ‘‘specially entry. to articles enumerated in USML Category designed’’ for use in a combat zone, RS applies to entire RS Column 1 VII are subject to the controls of USML identified in the Wassenaar Arrangement entry. paragraph VII(h). (2) See ECCN 0A919 for Munitions List 17.d, and mobile repair shops AT applies to entire AT Column 1 foreign made ‘‘military commodities’’ that ‘‘specially designed’’ or modified to service entry. incorporate more than a de minimis military equipment, identified in Wassenaar UN applies to entire See § 746.1(b) for UN amount of U.S.-origin ‘‘600 series’’ Arrangement Munitions List 17.j, are entry. controls controlled content. controlled by 0B617 to the extent that the Related Definitions: N/A items are not included in USML Category License Exceptions Items: XIII(k). LVS: $1500 a. ‘‘Software’’ ‘‘specially designed’’ for the GBS: N/A ‘‘development,’’ ‘‘production,’’ operation, or ■ 14. In Supplement No. 1 to part 774 CIV: N/A maintenance of commodities controlled by STA: Paragraph (c)(2) of License Exception (the Commerce Control List), Category ECCN 0A606 (except for ECCNs 0A606.b or STA (§ 740.20(c)(2) of the EAR) may not be 0—Nuclear Materials, Facilities, and 0A606.y). used for any item in 0C617. Equipment [and Miscellaneous Items], b. through x. [RESERVED] add new ECCNs 0C606 and 0C617 after List of Items Controlled y. Specific ‘‘software’’ ‘‘specially designed’’ ECCN 0C521 to read as follows: Unit: $ value. for the ‘‘production,’’ ‘‘development,’’ operation, or maintenance of commodities 0C606 Materials ‘‘specially designed’’ for Related Controls: (1) For controls on other enumerated in ECCN 0A606.y. commodities controlled by ECCN 0A606 signature suppression materials, see USML not elsewhere specified in the USML Category XIII and ECCNs 1C001 and 0D617 ‘‘Software’’ ‘‘specially designed’’ for (see List of Items Controlled). 1C101. (2) See ECCN 0A919 for foreign- the ‘‘development,’’ ‘‘production,’’

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operation, or maintenance of Equipment [and Miscellaneous Items] Control(s) Country chart commodities controlled by 0A617, add new ECCNs 0E606 and 0E617 ‘‘equipment’’ controlled by 0B617, or between ECCNs 0E521 and 0E918 to RS applies to entire RS Column 1 materials controlled by 0C617 (see List read as follows: entry, except of Items Controlled). 0E617.y. 0E606 ‘‘Technology’’ ‘‘required’’ for the License Requirements AT applies to entire AT Column 1 ‘‘development,’’ ‘‘production,’’ entry. Reason for Control: NS, RS, AT, UN operation, installation, maintenance, UN applies to entire See § 746.1(b) for UN repair, overhaul, or refurbishing of entry, except controls Control(s) Country chart ground vehicles and related 0E617.y. commodities in 0A606, 0B606, 0C606, or NS applies to entire NS Column 1 software in 0D606 (see List of Items License Exceptions entry, except Controlled). CIV: N/A 0D617.y. License Requirements TSR: N/A RS applies to entire RS Column 1 STA: Paragraph (c)(2) of License Exception entry, except Reason for Control: NS, RS, AT, UN STA (§ 740.20(c)(2) of the EAR) may not be 0D617.y. used for any technology in 0E617. AT applies to entire AT Column 1 Control(s) Country chart entry. List of Items Controlled UN applies to entire See § 746.1(b) for UN NS applies to entire NS Column 1 Unit: $ value. entry, except controls entry, except Related Controls: Technical data directly 0D617.y. 0E606.y. related to articles controlled by USML RS applies to entire RS Column 1 License Exceptions Category XIII are subject to the control of entry, except USML paragraph XIII(l). CIV: N/A 0E606.y. Related Definitions: N/A TSR: N/A AT applies to entire AT Column 1 Items: STA: Paragraph (c)(2) of License Exception entry. a. ‘‘Technology’’ (other than ‘‘technology’’ STA (§ 740.20(c)(2) of the EAR) may not be UN applies to entire See § 746.1(b) for UN controlled by paragraph .y of this entry) used for any ‘‘software’’ in 0D617. entry, except controls ‘‘required’’ for the ‘‘development,’’ List of Items Controlled 0E606.y. ‘‘production,’’ operation, installation, maintenance, repair, overhaul, or Unit: $ value. License Exceptions refurbishing of commodities or ‘‘software’’ Related Controls: (1) ‘‘Software’’ directly CIV: N/A related to articles controlled by USML controlled by ECCN 0A617 (except 0A617.y), TSR: N/A 0B617, 0C617, or 0D617 (except 0D617.y). Category XIII is subject to the control of STA: Paragraph (c)(2) of License Exception USML paragraph XIII(l). (2) See ECCN b. through x. [RESERVED]. STA (§ 740.20(c)(2) of the EAR) may not be y. Specific ‘‘technology’’ ‘‘required’’ for the 0A919 for foreign-made ‘‘military used for any technology in 0D606. commodities’’ that incorporate more than a ‘‘production,’’ ‘‘development,’’ operation, de minimis amount of U.S.-origin ‘‘600 List of Items Controlled installation, maintenance, repair, overhaul, or refurbishing of commodities controlled by series’’ controlled content. Unit: N/A Related Definitions: N/A ECCN 0A617.y or ‘‘software’’ controlled by Related Controls: Technical data directly 0D617.y. Items: related to articles enumerated in USML a. ‘‘Software’’ (other than ‘‘software’’ Category VII are subject to the controls of ■ 18. In Supplement No. 1 to part 774 controlled in paragraph .y of this entry) USML paragraph VII(h). ‘‘specially designed’’ for the ‘‘development,’’ (the Commerce Control List), Category Related Definitions: N/A 8—Marine, ECCN 8A018 is revised to ‘‘production,’’ operation or maintenance of Items: commodities controlled by ECCNs 0A617 a. ‘‘Technology’’ ‘‘required’’ for the read as follows: (except 0A617.y), 0B617, or 0C617. ‘‘development,’’ ‘‘production,’’ operation, 8A018 Items on the Wassenaar b. to x. [RESERVED]. installation, maintenance, repair, overhaul, Arrangement Munitions List. y. Specific ‘‘software’’ ‘‘specially designed’’ or refurbishing of commodities enumerated for the ‘‘production,’’ ‘‘development,’’ in ECCN 0A606 (except for ECCNs 0A606.b No items currently are in this ECCN. operation or maintenance of commodities or 0A606.y). See ECCN 8A609 for engines and controlled by ECCN 0A617.y. b. through x. [RESERVED] propulsion systems and specially ■ 16. In Supplement No. 1 to part 774 y. Specific ‘‘technology’’ ‘‘required’’ for the designed components therefor that, ‘‘development,’’ ‘‘production,’’ operation, immediately prior to January 6, 2014, (the Commerce Control List), Category installation, maintenance, repair, overhaul or 0—Nuclear Materials, Facilities, and were classified under ECCN 8A018.b.3. refurbishing of commodities or software in See ECCN 8A620 for closed and semi- Equipment [and Miscellaneous Items]— ECCN 0A606.y or 0D606.y. ECCN 0E018 is amended by adding a closed circuit (rebreathing) apparatus, 0E617 ‘‘Technology’’ ‘‘required’’ for the engines and propulsion systems for note at the end of the entry to read as ‘‘development,’’ ‘‘production,’’ follows: submersible vessels (diesel engines of operation, installation, maintenance, 1,500 hp and over with rotary speed of 0E018 ‘‘Technology’’ for the repair, overhaul, or refurbishing of 700 rpm or over ‘‘specially designed’’ commodities controlled by ECCN 0A617, ‘‘development,’’ ‘‘production,’’ or ‘‘use’’ for submarines), submarine and torpedo of items controlled by 0A018. ‘‘equipment controlled by 0B617, or nets, and specially designed * * * * * materials controlled by 0C617, or ‘‘software’’ controlled by ECCN 0D617 components therefor that, immediately Note: This ECCN no longer controls (see List of Items Controlled). prior to January 6, 2014, were classified ‘‘technology’’ for items formerly controlled by under ECCN 8A018.a, .b.1, or .b.4, License Requirements 0A018.a See ECCN 0A617.y.1 and.y.1.a for respectively. See ECCNs 8A001, 8A002 items formerly controlled by 0A018.a and see Reason for Control: NS, RS, AT, UN the ‘‘technology’’ controls for those items in and 8A992 for controls on non-military submersible vehicles, oceanographic ECCN 0E617.y. Control(s) Country chart and associated equipment. See USML ■ 17. In Supplement No. 1 to part 774 NS applies to entire NS Column 1 Category XX (22 CFR part 121) for (the Commerce Control List), Category entry, except electric motors specially designed for 0—Nuclear Materials, Facilities, and 0E617.y. submarines that, immediately prior to

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January 6, 2014, were classified under support naval nuclear propulsion plants; (iii) filtered for use with night vision imaging ECCN 8A018.b.2. non-submersible submarine rescue ships; (iv) systems;; other auxiliaries (e.g., AGDS, AGF, AGM, y.9. Emergency lighting; ■ 19. In Supplement No. 1 to part 774 AGOR, AGOS, AH, AP, ARL, AVB, AVM, and y.10. Gauges and indicators; (the Commerce Control List), Category AVT); (v) amphibious warfare craft, except y.11. Audio selector panels. 8—Marine, add new ECCNs 8A609 and those that are armed; and (vi) unarmored 8A620 Submersible vessels, oceanographic 8A620 between ECCNs 8A018 and and unarmed coastal, patrol, roadstead, and and associated commodities (see List of 8A918 to read as follows: Coast Guard and other patrol craft with Items Controlled). mounts or hard points for firearms of .50 8A609 Surface vessels of war and related caliber or less. License Requirements commodities (see List of Items Reason for Control: NS, RS, AT, UN Controlled). Note 2: For purposes of paragraph .a, surface vessels of war includes vessels License Requirements ‘‘specially designed’’ for military use that are Control(s) Country chart Reason for Control: NS, RS, AT, UN not identified in paragraph (a) of ITAR NS applies to entire NS Column 1 § 121.15, including any demilitarized vessels, entry, except Control(s) Country chart regardless of origin or designation, 8A620. b and .y. manufactured prior to 1950 and that have RS applies to entire RS Column 1 NS applies to entire NS Column 1 not been modified since 1949. For purposes entry, except entry, except of this note, the term modified does not 8A609.y. 8A620.y. include incorporation of safety features AT applies to entire AT Column 1 RS applies to entire RS Column 1 required by law, cosmetic changes (e.g., entry. entry, except different paint), or the addition of ‘‘parts’’ or UN applies to entire See § 746.1(b) for UN 8A609.y. ‘‘components’’ available prior to 1950. entry, except controls AT applies to entire AT Column 1 b. Non-magnetic diesel engines with a 8A620.y. entry. power output of 50 hp or more and either of UN applies to entire See § 746.1(b) for UN the following: License Exceptions entry, except controls b.1. Non-magnetic content exceeding 25% LVS: $1500 8A609.y. of total weight; or GBS: N/A License Exceptions b.2. Non-magnetic parts other than CIV: N/A crankcase, block, head, pistons, covers, end STA: (1) Paragraph (c)(1) of License LVS: $1500 plates, valve facings, gaskets, and fuel, Exception STA (§ 740.20(c)(1) of the EAR) GBS: N/A lubrication and other supply lines. may not be used for any item in 8A620.a CIV: N/A c. through w. [RESERVED] or .b, unless determined by BIS to be STA: (1) Paragraph (c)(1) of License x. ‘‘Parts,’’ ‘‘components,’’ ‘‘accessories’’ eligible for License Exception STA in Exception STA (§ 740.20(c)(1) of the EAR) and ‘‘attachments’’ that are ‘‘specially accordance with § 740.20(g) (License may not be used for any item in 8A609.a, designed’’ for a commodity enumerated in Exception STA eligibility requests for ‘‘600 unless determined by BIS to be eligible for ECCN 8A609 (except for 8A609.y) or a series’’ end items). (2) Paragraph (c)(2) of License Exception STA in accordance with defense article enumerated in USML License Exception STA (§ 740.20(c)(2) of § 740.20(g) (License Exception STA Category VI and not specified elsewhere on the EAR) may not be used for any item in eligibility requests for ‘‘600 series’’ end the USML or in 8A609.y. 8A620. items). (2) Paragraph (c)(2) of License Exception STA (§ 740.20(c)(2) of the EAR) Note 1: Forgings, castings, and other List of Items Controlled may not be used for any item in 8A609. unfinished products, such as extrusions and machined bodies, that have reached a stage Unit: Equipment in number; ‘‘parts,’’ List of Items Controlled in manufacturing where they are clearly ‘‘components,’’ ‘‘accessories’’ and ‘‘attachments’’ in $ value. Unit: Equipment or ‘‘end items’’ in number; identifiable by mechanical properties, material composition, geometry, or function Related Controls: (1) Submersible vessels, ‘‘parts,’’ ‘‘components,’’ ‘‘accessories’’ and oceanographic and associated equipment, ‘‘attachments’’ in $ value. as commodities controlled by ECCN 8A609.x are controlled by ECCN 8A609.x. and technical data (including software), Related Controls: (1) Surface vessels of war and services directly related thereto, and special naval equipment, and technical Note 2: ‘‘Parts,’’ ‘‘components,’’ described in 22 CFR part 121, Category XX, data (including software), and services ‘‘accessories’’ and ‘‘attachments’’ specified in Submersible Vessels, Oceanographic and directly related thereto, described in 22 USML subcategory VI(f) are subject to the Associated Equipment, are subject to the CFR part 121, Category VI, Surface Vessels controls of that paragraph. ‘‘Parts,’’ jurisdiction of the International Traffic in of War and Special Naval Equipment, are ‘‘components,’’ ‘‘accessories,’’ and Arms Regulations (ITAR). ‘‘Parts,’’ subject to the jurisdiction of the ‘‘attachments’’ specified in ECCN 8A609.y ‘‘components,’’ ‘‘accessories,’’ and International Traffic in Arms Regulations. are subject to the controls of that paragraph. ‘‘attachments’’ ‘‘specially designed’’ for (2) See ECCN 0A919 for foreign-made y. Specific ‘‘parts,’’ ‘‘components,’’ defense articles in USML Category XX are ‘‘military commodities’’ that incorporate ‘‘accessories’’ and ‘‘attachments’’ ‘‘specially controlled under USML sub-category more than a de minimis amount of U.S.- designed’’ for a commodity subject to control XX(c). (2) See ECCN 0A919 for foreign- origin ‘‘600 series’’ controlled content. (3) in this ECCN or for a defense article in USML made ‘‘military commodities’’ that For controls on diesel engines and electric Category VI and not elsewhere specified in incorporate more than a de minimis motors for surface vessels of war subject to the USML, as follows: amount of U.S.-origin ‘‘600 series’’ the EAR, see ECCN 8A992.g. (4) For y.1. Public address (PA) systems; controlled content. (3) For controls on non- controls on military gas turbine engines y.2. Filters and filter assemblies, hoses, military submersible vehicles, and related items for vessels of war, see lines, fittings, couplings, and brackets for oceanographic and associated equipment, ECCN 9A619. pneumatic, hydraulic, oil and fuel systems; see ECCNs 8A001, 8A002, and 8A992. (4) Related Definitions: N/A y.3. Galleys; See ECCN 8A609 for controls on non- Items: y.4. Lavatories; magnetic diesel engines with a power a. Surface vessels of war ‘‘specially y.5. Magnetic compass, magnetic azimuth output of 50 hp or more and either: (i) non- designed’’ for a military use and not detector; magnetic content exceeding 25% of total enumerated in the USML. y.6. Medical facilities; weight; or (ii) non-magnetic parts other Note 1: 8A609.a includes: (i) Underway y.7. Potable water tanks, filters, valves, than crankcase, block, head, pistons, replenishment ships; (ii) surface vessel and hoses, lines, fittings, couplings, and brackets; covers, end plates, valve facings, gaskets, submarine tender and repair ships, except y.8. Panel knobs, indicators, switches, and fuel, lubrication and other supply vessels that are ‘‘specially designed’’ to buttons, and dials whether unfiltered or lines.

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Related Definitions: N/A ■ 20. In Supplement No. 1 to part 774 Control(s) Country chart Items: (the Commerce Control List), Category a. Submersible and semi-submersible 8—Marine, add new ECCNs 8B609 and UN applies to entire See § 746.1(b) for UN vessels ‘‘specially designed’’ for a military 8B620 immediately following ECCN entry. controls use and not enumerated in the USML. 8B001 to read as follows: License Exceptions Note: 8A620.a includes submarine rescue 8B609 Test, inspection, and production LVS: $1500 vehicles and Deep Submergence Vehicles ‘‘equipment’’ and related commodities GBS: N/A (DSV). ‘‘specially designed’’ for the CIV: N/A b. Submersible and semi-submersible ‘‘development,’’ ‘‘production,’’ repair, STA: Paragraph (c)(2) of License Exception vessels ‘‘specially designed’’ for cargo overhaul, or refurbishing of STA (§ 740.20(c)(2) of the EAR) may not be transport and ‘‘parts,’’ ‘‘components,’’ commodities enumerated in ECCN used for any item in 8B620. ‘‘accessories,’’ and ‘‘attachments’’ ‘‘specially 8A609 or USML Category VI (except for designed’’ therefor. Cat VI(f)(7)), as follows. List of Items Controlled c. Harbor entrance detection devices Unit: N/A (magnetic, pressure, and acoustic) and License Requirements Related Controls: See ECCN 0A919 for controls therefor, not elsewhere specified on Reason for Control: NS, RS, AT, UN foreign-made ‘‘military commodities’’ that the USML or the CCL. incorporate more than a de minimis d. Diesel engines of 1,500 hp and over with Control(s) Country chart amount of U.S.-origin ‘‘600 series’’ rotary speed of 700 rpm or over ‘‘specially controlled content. designed’’ for submarines. NS applies to entire NS Column 1 Related Definitions: N/A Note: Propulsion systems not specified in entry. Items: ECCN 8A620.d that are ‘‘specially designed’’ RS applies to entire RS Column 1 a. Test, inspection, and production for an article controlled by USML Category entry. ‘‘equipment’’ ‘‘specially designed’’ for the XX are controlled by USML XX(b) or (c). AT applies to entire AT Column 1 ‘‘development,’’ ‘‘production,’’ repair, entry. overhaul, or refurbishing of commodities e. Submarine nets and torpedo nets. UN applies to entire See § 746.1(b) for UN enumerated in ECCN 8A620 (except for f. Closed and semi-closed circuit entry. controls 8A620.b and .y) and ‘‘parts,’’ ‘‘components,’’ (rebreathing) apparatus specially designed for ‘‘accessories’’ and ‘‘attachments’’ ‘‘specially military use and not enumerated elsewhere License Exceptions designed’’ therefor. in the CCL or in the USML, and specially LVS: $1500 b. Test, inspection, and production designed components for use in the GBS: N/A ‘‘equipment’’ ‘‘specially designed’’ for the conversion of open-circuit apparatus to CIV: N/A ‘‘development,’’ ‘‘production,’’ repair, military use. STA: Paragraph (c)(2) of License Exception overhaul, or refurbishing of commodities g. through w. [RESERVED] STA (§ 740.20(c)(2) of the EAR) may not be enumerated in ECCN 8A620.b and ‘‘parts,’’ x. ‘‘Parts,’’ ‘‘components,’’ ‘‘accessories’’ used for any item in 8B609. ‘‘components,’’ ‘‘accessories’’ and and ‘‘attachments’’ that are ‘‘specially ‘‘attachments’’ ‘‘specially designed’’ therefor. designed’’ for a commodity enumerated in List of Items Controlled ECCN 8A620 (except for 8A620.b or .y) and Unit: N/A ■ 21. In Supplement No. 1 to part 774 not specified elsewhere on the USML or in Related Controls: See ECCN 0A919 for (the Commerce Control List), Category 8A620.y. foreign-made ‘‘military commodities’’ that 8—Marine, add a new ECCN 8C609 Note 1: Forgings, castings, and other incorporate more than a de minimis immediately following ECCN 8C001 to unfinished products, such as extrusions and amount of U.S.-origin ‘‘600 series’’ read as follows: controlled content. machined bodies, that have reached a stage 8C609 Materials ‘‘specially designed’’ for in manufacturing where they are clearly Related Definitions: N/A Items: the ‘‘development’’ or ‘‘production’’ of identifiable by mechanical properties, commodities controlled by 8A609 not a. Test, inspection, and production material composition, geometry, or function elsewhere specified in the USML. as commodities controlled by ECCN 8A620.x ‘‘equipment’’ ‘‘specially designed’’ for the are controlled by ECCN 8A620.x. ‘‘development,’’ ‘‘production,’’ repair, License Requirements overhaul, or refurbishing of commodities Note 2: ‘‘Parts,’’ ‘‘components,’’ Reason for Control: NS, RS, AT, UN enumerated in ECCN 8A609 (except for ‘‘accessories’’ and ‘‘attachments’’ specified in 8A609.y) or in USML Category VI (except for Control(s) Country chart ECCN 8A620.y are subject to the controls of USML Cat VI(f)(7)), and ‘‘parts,’’ that paragraph. ‘‘components,’’ ‘‘accessories’’ and NS applies to entire NS Column 1 y. Specific ‘‘parts,’’ ‘‘components,’’ ‘‘attachments’’ ‘‘specially designed’’ therefor. entry. ‘‘accessories’’ and ‘‘attachments’’ ‘‘specially b. [RESERVED] RS applies to entire RS Column 1 designed’’ for a commodity subject to control 8B620 Test, inspection, and production entry. in this ECCN, as follows: ‘‘equipment’’ and related commodities AT applies to entire AT Column 1 y.1. Public address (PA) systems; ‘‘specially designed’’ for the entry. y.2. Filters and filter assemblies, hoses, ‘‘development,’’ ‘‘production,’’ repair, UN applies to entire See § 746.1(b) for UN lines, fittings, couplings, and brackets for overhaul, or refurbishing of entry. controls pneumatic, hydraulic, oil and fuel systems; commodities enumerated in ECCN y.3. Galleys; 8A620 (see List of Items Controlled). License Exceptions y.4. Lavatories; LVS: $1500 y.5. Magnetic compass, magnetic azimuth License Requirements GBS: N/A detector; Reason for Control: NS, RS, AT, UN CIV: N/A y.6. Medical facilities; STA: Paragraph (c)(2) of License Exception y.7. Potable water tanks, filters, valves, Control(s) Country chart STA (§ 740.20(c)(2) of the EAR) may not be hoses, lines, fittings, couplings, and brackets; used for any item in 8C609. y.8. Panel knobs, indicators, switches, NS applies to entire NS Column 1 buttons, and dials whether unfiltered or entry, except List of Items Controlled filtered for use with night vision imaging 8B620.b. Unit: N/A systems; RS applies to entire RS Column 1 Related Controls: (1) See USML Categories VI y.9. Emergency lighting; entry. and XIII(f) for controls on materials y.10. Gauges and indicators; AT applies to entire AT Column 1 specially designed for vessels of war y.11. Audio selector panels. entry. enumerated in USML Category VI. (2) See

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ECCN 0A919 for foreign made ‘‘military License Requirements Control(s) Country chart commodities’’ that incorporate more than a Reason for Control: NS, RS, AT, UN de minimis amount of U.S.-origin ‘‘600 RS applies to entire RS Column 1 series’’ controlled content. Control(s) Country chart entry, except Related Definitions: N/A 8E609.y. Items: NS applies to entire NS Column 1 AT applies to entire AT Column 1 a. Materials, not enumerated on the USML, entry, except entry. that are ‘‘specially designed’’ for 8D620.b and .y. UN applies to entire See § 746.1(b) for UN commodities enumerated in ECCN 8A609 RS applies to entire RS Column 1 entry, except controls (except for 8A609.y). entry, except 8E609.y. b. [RESERVED] 8D620.y. License Exceptions ■ 22. In Supplement No. 1 to part 774 AT applies to entire AT Column 1 entry. CIV: N/A (the Commerce Control List), Category TSR: N/A 8—Marine, add new ECCNs 8D609 and UN applies to entire See § 746.1(b) for UN entry, except controls STA: Paragraph (c)(2) of License Exception 8D620 between ECCN 8D002 and 8D992 STA (§ 740.20(c)(2) of the EAR) may not be 8D620.y. to read as follows: used for any ‘‘technology’’ in 8E609. 8D609 ‘‘Software’’ ‘‘specially designed’’ for License Exceptions List of Items Controlled the ‘‘development,’’ ‘‘production,’’ CIV: N/A Unit: N/A operation or maintenance of TSR: N/A Related Controls: Technical data directly commodities controlled by 8A609, STA: Paragraph (c)(2) of License Exception related to articles enumerated in USML 8B609, or 8C609 (see List of Items STA (§ 740.20(c)(2) of the EAR) may not be Category VI are controlled under USML Controlled). used for any ‘‘software’’ in 8D620. Category VI(g). License Requirements List of Items Controlled Related Definitions: N/A Items: Reason for Control: NS, RS, AT, UN Unit: $ value a. ‘‘Technology’’ ‘‘required’’ for the Related Controls: (1) ‘‘Software’’ directly ‘‘development,’’ ‘‘production,’’ operation, Control(s) Country chart related to articles enumerated in USML installation, maintenance, repair, overhaul, Category XX is controlled under USML NS applies to entire NS Column 1 or refurbishing of commodities controlled by Category XX(d). (2) See ECCN 0A919 for ECCN 8A609, 8B609, or 8C609 (except for entry, except foreign made ‘‘military commodities’’ that commodities controlled by ECCN 8A609.y), 8D609.y. or ‘‘software’’ controlled by ECCN 8D609. RS applies to entire RS Column 1 incorporate more than a de minimis b. through .x [RESERVED] entry, except amount of U.S.-origin ‘‘600 series’’ y. Specific ‘‘technology’’ ‘‘required’’ for the 8D609.y. controlled content. ‘‘development,’’ ‘‘production,’’ operation, AT applies to entire AT Column 1 Related Definitions: N/A installation, maintenance, repair, overhaul, entry. Items: a. ‘‘Software’’ ‘‘specially designed’’ for the or refurbishing of commodities or software in UN applies to entire See § 746.1(b) for UN ECCN 8A609.y or 8D609.y. entry, except controls ‘‘development,’’ ‘‘production,’’ operation, or 8D609.y. maintenance of commodities controlled by 8E620 ‘‘Technology’’ ‘‘required’’ for the ECCN 8A620 or ECCN 8B620 (except for ‘‘development,’’ ‘‘production,’’ License Exceptions commodities controlled by ECCN 8A620.b or operation, installation, maintenance, CIV: N/A .y or ECCN 8B620.b). repair, overhaul, or refurbishing of TSR: N/A b. ‘‘Software’’ ‘‘specially designed’’ for the commodities controlled by 8A620 or STA: Paragraph (c)(2) of License Exception ‘‘development,’’ ‘‘production,’’ operation, or 8B620, or ‘‘software’’ controlled by STA (§ 740.20(c)(2) of the EAR) may not be maintenance of commodities controlled by 8D620 (see List of Items Controlled). used for any ‘‘software’’ in 8D609. ECCN 8A620.b or ECCN 8B620.b. License Requirements List of Items Controlled c. through .x [RESERVED] y. Specific ‘‘software’’ ‘‘specially designed’’ Reason for Control: NS, RS, AT, UN Unit: $ value. for the ‘‘development,’’ ‘‘production,’’ Control(s) Country chart Related Controls: (1) ‘‘Software’’ directly operation, or maintenance of commodities in related to articles enumerated in USML ECCN 8A620.y. Category VI is controlled under USML NS applies to entire NS Column 1 entry, except Category VI(g). (2) See ECCN 0A919 for ■ 23. In Supplement No. 1 to part 774 foreign made ‘‘military commodities’’ that 8E620.b and .y. incorporate more than a de minimis (the Commerce Control List), Category RS applies to entire RS Column 1 amount of U.S.-origin ‘‘600 series’’ 8—Marine, add new ECCNs 8E609 and entry, except controlled content. 8E620 between ECCN 8E002 and 8E992 8E620.y. Related Definitions: N/A to read as follows: AT applies to entire AT Column 1 Items: entry. 8E609 ‘‘Technology’’ ‘‘required’’ for the UN applies to entire See § 746.1(b) for UN a. ‘‘Software’’ ‘‘specially designed’’ for the ‘‘development,’’ ‘‘production,’’ ‘‘development,’’ ‘‘production,’’ operation, or entry, except controls operation, installation, maintenance, 8E620.y. maintenance of commodities controlled by repair, overhaul, or refurbishing of ECCN 8A609, ECCN 8B609, or ECCN 8C609 commodities controlled by 8A609, License Exceptions (except for commodities controlled by ECCN 8B609, or 8C609, or ‘‘software’’ CIV: N/A 8A609.y). controlled by 8D609 (see List of Items b. through .x [RESERVED] TSR: N/A Controlled). y. Specific ‘‘software’’ ‘‘specially designed’’ STA: Paragraph (c)(2) of License Exception for the ‘‘development,’’ ‘‘production,’’ License Requirements STA (§ 740.20(c)(2) of the EAR) may not be used for any ‘‘technology’’ in 8E620. operation, or maintenance of commodities in Reason for Control: NS, RS, AT, UN ECCN 8A609.y. List of Items Controlled 8D620 ‘‘Software’’ ‘‘specially designed’’ for Control(s) Country chart Unit: N/A the ‘‘development,’’ ‘‘production,’’ Related Controls: Technical data directly operation, or maintenance of NS applies to entire NS Column 1 related to articles enumerated in USML commodities controlled by 8A620 or entry, except Category XX are controlled under USML 8B620 (see List of Items Controlled). 8E609.y. Category XX(d).

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Related Definitions: N/A (c) See ECCN 0A606.b for certain armored (b) See ECCN 9D619 for ‘‘software’’ related Items: ground transport vehicles that prior to to military trainer aircraft turbo prop engines a. ‘‘Technology’’ ‘‘required’’ for the January 6, 2014 were classified under ECCN and ‘‘parts’’ and ‘‘components’’ therefor that, ‘‘development,’’ ‘‘production,’’ operation, 9A018.b. immediately prior to October 15, 2013, were installation, maintenance, repair, overhaul, ■ classified under ECCN 9A018.a.2 or .a.3. or refurbishing of commodities controlled by 25. In Supplement No. 1 to part 774 (the Commerce Control List), Category (c) Software related to certain armored ECCN 8A620 or 8B620 or ‘‘software’’ ground transport vehicles that prior to 9—Aerospace and Propulsion, ECCN controlled by ECCN 8D620 (except for January 6, 2014 were classified under ECCN commodities controlled by ECCN 8A620.b or 9A619, the Note at the end of paragraph 9A018.b is EAR99 (See 0D606). .y or ECCN 8B620.b or ‘‘software’’ controlled .a in the Items paragraph of the List of by 8D620.b or .y). Items Controlled section is revised to ■ 27. In Supplement No. 1 to part 774 b. ‘‘Technology’’ ‘‘required’’ for the read as follows: ‘‘development,’’ ‘‘production,’’ operation, (the Commerce Control List), Category 9, installation, maintenance, repair, overhaul, 9A619 Military gas turbine engines and ECCN 9E018 is revised to read as or refurbishing of commodities controlled by related commodities. follows: ECCN 8A620.b or 8B620.b or ‘‘software’’ * * * * * 9E018 ‘‘Technology’’ for the controlled by ECCN 8D620.b. List of Items Controlled ‘‘development,’’ ‘‘production,’’ or ‘‘use’’ c. through .x [RESERVED] of equipment controlled by 9A018. y. Specific ‘‘technology’’ ‘‘required’’ for the * * * * * ‘‘development,’’ ‘‘production,’’ operation, Items: (a) See ECCN 9E610 for ‘‘technology’’ installation, maintenance, repair, overhaul or a. * * * related to aircraft, refuelers, ground refurbishing of commodities or software in Note: For purposes of ECCN 9A619.a, the equipment, parachutes, harnesses, ECCN 8A620.y or 8D620.y. term ‘‘military gas turbine engines’’ means instrument flight trainers and ‘‘parts’’, gas turbine engines ‘‘specially designed’’ for ‘‘accessories’’ and ‘‘attachments’’ for the ■ 24. In Supplement No. 1 to part 774 ‘‘end items’’ enumerated in USML Categories forgoing that, immediately prior to October (the Commerce Control List), Category 9, VI, VII or VIII or on the CCL under ECCNs 15, 2013, were classified under 9A018.a.1, ECCN 9A018 is revised to read as 0A606, 8A609 or 9A610. .a.3, .c, .d, .e, or .f. follows: * * * * * (b) See ECCN 9E619 for ‘‘technology’’ related to military trainer aircraft turbo prop 9A018 Equipment on the Wassenaar ■ 26. In Supplement No. 1 to part 774 engines and ‘‘parts’’ and ‘‘components’’ Arrangement Munitions List. (the Commerce Control List), Category therefor that, immediately prior to October (a) See ECCN 9A610 for the aircraft, 9—Aerospace and Propulsion, ECCN 15, 2013, were classified under ECCN refuelers, ground equipment, parachutes, 9D018 is revised to read as follows: 9A018.a.2 or .a.3. harnesses, and instrument flight trainers, as (c) Technology related to certain armored well as ‘‘parts’’, ‘‘accessories,’’ and 9D018 ‘‘Software’’ for the ‘‘use’’ of ground transport vehicles that prior to ‘‘attachments’’ for the forgoing that, equipment controlled by 9A018. January 6, 2014 were classified under ECCN immediately prior to October 15, 2013, were (a) See ECCN 9D610 for ‘‘software’’ related 9A018.b is EAR99 (See 0E606). classified under 9A018.a.1, .a.3, .c, .d, .e, or to aircraft, refuelers, ground equipment, .f. parachutes, harnesses, instrument flight Kevin J. Wolf, (b) See ECCN 9A619 for military trainer trainers and ‘‘parts’’, ‘‘accessories,’’ and Assistant Secretary for Export aircraft turbo prop engines and ‘‘parts’’ and ‘‘attachments’’ for the forgoing that, Administration. ‘‘components’’ therefor that, immediately immediately prior to October 15, 2013, were prior to October 15, 2013, were classified classified under 9A018.a.1, .a.3, .c, .d, .e, or [FR Doc. 2013–16238 Filed 7–5–13; 8:45 am] under ECCN 9A018.a.2 or .a.3. .f. BILLING CODE 3510–33–P

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Part IV

Department of State

22 CFR 120, 121, 123, et al. Amendment to the International Traffic in Arms Regulations: Continued Implementation of Export Control Reform; Final Rule

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DEPARTMENT OF STATE of Alcohol, Tobacco, Firearms and Export Administration Regulations: Explosives (ATF) for the purpose of Military Vehicles; Vessels of War; 22 CFR 120, 121, 123, 124, and 125 permanent import under its regulations. Submersible Vessels, Oceanographic [Public Notice 8370] See 27 CFR part 447. Pursuant to section Equipment; Related Items; and 38(a)(1) of the Arms Export Control Act Auxiliary and Miscellaneous Items that RIN 1400–AD40 (AECA), all defense articles controlled the President Determines No Longer for export or import are part of the Warrant Control under the United States Amendment to the International Traffic USML under the AECA. For the sake of Munitions List,’’ elsewhere in this in Arms Regulations: Continued clarity, the list of defense articles edition of the Federal Register. Implementation of Export Control controlled by ATF for the purpose of Changes in This Rule Reform permanent import is the U.S. Munitions AGENCY: Department of State. Import List (USMIL). The transfer of The following changes are made to the ITAR with this final rule: (i) ACTION: Final rule. defense articles from the ITAR’s USML to the EAR’s CCL for the purpose of Revision of U.S. Munitions List (USML) SUMMARY: As part of the President’s export control does not affect the list of Categories VI (Surface Vessels of War Export Control Reform (ECR) effort, the defense articles controlled on the and Special Naval Equipment), VII Department of State is amending the USMIL under the AECA for the purpose (Ground Vehicles), XIII (Materials and International Traffic in Arms of permanent import. Miscellaneous Articles), and XX (Submersible Vessels and Related Regulations (ITAR) to revise four more Export Control Reform Update U.S Munitions List (USML) categories Articles); (ii) addition of ITAR § 121.4 to and provide new definitions and other Pursuant to the President’s Export provide a definition for ‘‘ground changes. The revisions contained in this Control Reform (ECR) initiative, the vehicles,’’ ITAR § 121.14 to provide a rule are part of the Department of State’s Department has published proposed definition for ‘‘submersible vessels,’’ retrospective plan under E.O. 13563. revisions to twelve USML categories and ITAR § 120.38 to provide and has revised four USML categories to definitions of ‘‘organizational-level DATES: This rule is effective January 6, 2014. create a more positive control list and maintenance,’’ ‘‘intermediate-level eliminate where possible ‘‘catch all’’ maintenance,’’ and ‘‘depot-level FOR FURTHER INFORMATION CONTACT: Ms. controls. The Department, along with maintenance’’; (iii) revision of the Sarah J. Heidema, Acting Director, the Departments of Commerce and definition of ‘‘surface vessels of war’’ at Office of Defense Trade Controls Policy, Defense, reviewed the public comments ITAR § 121.15; (iv) continued Department of State, telephone (202) the Department received on the implementation of a new licensing 663–2809; email proposed rules and has, where procedure for the export of items subject [email protected]. ATTN: appropriate, revised the rules. A to the EAR that are to be exported with Regulatory Change, Second ECR Final discussion of the comments relevant to defense articles; and (v) related changes Rule. The Department of State’s full the USML categories that are part of this to other ITAR sections. retrospective plan can be accessed at rule is included later on in this notice. http://www.state.gov/documents/ The Department continues to review the Revision of USML Category VI organization/181028.pdf. remaining USML categories and will This final rule revises USML Category SUPPLEMENTARY INFORMATION: The publish them as proposed rules in the VI, covering surface vessels of war and Directorate of Defense Trade Controls coming months. special naval equipment, to establish a (DDTC), U.S. Department of State, For discussion of public comments clearer line between the USML and the administers the International Traffic in relevant to the two USML categories CCL regarding controls for these articles. Arms Regulations (ITAR) (22 CFR parts that have been published as final rules, The revision narrows the types of 120–130). The items subject to the please see, ‘‘Amendment to the surface vessels of war and special naval jurisdiction of the ITAR, i.e., ‘‘defense International Traffic in Arms equipment controlled on the USML to articles’’ and ‘‘defense services,’’ are Regulations: Initial Implementation of only those that warrant control under identified on the ITAR’s U.S. Munitions Export Control Reform,’’ published the requirements of the AECA. It List (USML) (22 CFR 121.1). With few April 16, 2013 (78 FR 22740). The removes from USML control harbor exceptions, items not subject to the aforementioned notice also contains entrance detection devices formerly export control jurisdiction of the ITAR policies and procedures regarding the controlled under USML Category VI(d) are subject to the jurisdiction of the licensing of items moving from the and no longer includes submarines, Export Administration Regulations export jurisdiction of the Department of which are now controlled in USML (‘‘EAR,’’ 15 CFR parts 730–774, which State to the Department of Commerce, a Category XX. In addition, articles includes the Commerce Control List definition for specially designed, and common to the Missile Technology (CCL) in Supplement No. 1 to part 774), responses to public comments and Control Regime (MTCR) Annex and administered by the Bureau of Industry changes to other sections of the ITAR articles in this category are identified and Security (BIS), U.S. Department of that affect the categories discussed in with the parenthetical ‘‘(MT)’’ at the end Commerce. Both the ITAR and the EAR this rule. of each section containing such articles. impose license requirements on exports, Pursuant to ECR, the Department of The revised USML Category VI does reexports, and retransfers. Items not Commerce has been publishing not contain controls on all generic parts, subject to the ITAR or to the exclusive revisions to the EAR, including various components, accessories, and licensing jurisdiction of any other set of revisions to the CCL. Revision of the attachments specifically designed or regulations are subject to the EAR. USML and CCL are coordinated so there modified for a defense article, regardless All references to the USML in this is uninterrupted regulatory coverage for of their significance to maintaining a rule are to the list of defense articles items moving from the jurisdiction of military advantage for the United States. controlled for the purpose of export or the Department of State to that of the Rather, it contains a positive list of temporary import pursuant to the ITAR, Department of Commerce. For the specific types of parts, components, and not to the defense articles on the Department of Commerce’s companion accessories, and attachments that USML that are controlled by the Bureau to this rule, please see, ‘‘Revisions to the continue to warrant control on the

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USML. All other parts, components, standard contract or funding is a measurement based on length accessories, and attachments are subject authorization terms and conditions. The between perpendiculars (LBP). The LBP to the new 600 series controls in Department did not accept the is a standard naval architecture term of Category 8 of the CCL, published recommendation of another party to reference that refers to the length of a separately by the Department of limit the coverage of parts, components, vessel along the waterline from the Commerce (see elsewhere in this issue accessories, and attachments in forward surface of the stem, or main of the Federal Register). paragraph (c) to those listed in bow perpendicular member, to the after A new ‘‘(x) paragraph’’ has been paragraph (f), as this would narrow the surface of the sternpost, or main stern added to USML Category VI, allowing coverage in a manner unintended by the perpendicular member. The regulation ITAR licensing for commodities, Department. The Department notes that covers vessels that are specially software, and technical data subject to this response also applies to comments designed to survive damage defined by the EAR provided those commodities, received on this matter in the context of a shell opening centered at any point software, and technical data are to be other USML categories and provisions along the hull where the longitudinal used in or with defense articles of the ITAR (e.g., USML Category XX extent of the shell opening is equivalent controlled in USML Category VI and are and ITAR § 121.14, elsewhere in this to 12.5% of LBP or greater. described in the purchase rule). documentation submitted with the Three commenting parties Revision of USML Category VII application. recommended the Department address This final rule revises USML Category This rule also revises ITAR § 121.15 to and correct for any unintended VII, covering ground vehicles, to more more clearly define ‘‘surface vessels of consequences in revised ITAR accurately describe the articles within war’’ for purposes of the revised USML § 121.15(a)(6) providing for the control the category and to establish a clearer Category VI. of surface vessels of war that line between the USML and the CCL This revision of USML Category VI incorporate USML-controlled mission regarding controls over these articles. was first published as a proposed rule systems, a provision that may control The revision narrows the types of (RIN 1400–AC99) on December 23, vessels the Department intends for the ground vehicles controlled on the 2011, for public comment (see 76 FR transfer of export jurisdiction to the USML to only those that warrant control 80302). The comment period ended Department of Commerce. While the under the requirements of the AECA. February 6, 2012. Nine parties filed issue of the control of USML items in Changes include the removal of most comments recommending changes, 600 series end-items will be addressed unarmored and unarmed military which were reviewed and considered by in a future policy statement, the vehicles, trucks, trailers, and trains the Department and other agencies. The Department has revised the definition of (unless specially designed as firing Department’s evaluation of the written ‘‘mission systems’’ to include only those platforms for weapons above .50 comments and recommendations ‘‘systems’’ that are defense articles. The caliber), and armored vehicles (either follows. Department notes that this response also unarmed or with inoperable weapons) The Department received proposals applies to comments received on this manufactured before 1956. Engines for alternative phrasing of the regulatory matter in the context of other USML formerly controlled in paragraph (f) are text in USML Category VI and ITAR categories and provisions of the ITAR now covered in revised USML Category § 121.15. When the recommended (e.g., USML Category XX and ITAR XIX, published April 16, 2013 (see 78 changes added to the clarity of the § 121.14, elsewhere in this rule). FR 22740) or subject to the EAR in regulation and were congruent with ECR One commenting party recommended ECCN 0A606 (see 78 FR 22660). In objectives, the Department accepted clarifying the regulation to not control addition, articles common to the MTCR them. decommissioned and demilitarized Annex and articles in this category are Two commenting parties surface vessels of war manufactured identified with the parenthetical ‘‘(MT)’’ recommended changing the criteria for prior to a certain date to avoid at the end of each section containing USML control for articles developed as controlling ‘‘historic’’ vessels, such as such articles. a result of funding from the Department the U.S.S. Constitution. The Department A significant aspect of the revised of Defense. While the Department agrees has accepted this recommendation in USML Category VII is that it does not that ‘‘mere’’ funding by the Department part, and has noted in ITAR § 121.15 contain controls on all generic parts, of Defense should not automatically that demilitarized surface vessels of war components, accessories, and designate a resulting article as a defense manufactured prior to 1950 are not attachments that are specifically article, the Department also notes that, subject to the USML. Decommissioned designed or modified for a defense generally, the Department of Defense’s vessels may retain their military article, regardless of their significance to interest is in developing defense capabilities, and therefore are not maintaining a military advantage for the articles. However, the Department has excluded from USML control on that United States. Rather, it contains a revised paragraph (c) to clarify that the basis. positive list of specific types of parts, control does not apply to developmental In response to one commenting components, accessories, and vessels identified in the relevant party’s recommendation, the attachments that continue to warrant Department of Defense contract as being Department has clarified that ‘‘hulls’’ control on the USML. All other parts, developed for both civil and military and ‘‘superstructures’’ include ‘‘support components, accessories, and applications. Additionally, in response structures.’’ The Department notes that attachments are subject to the new 600 to public comments, the Department has unformed steel plating would be series controls in Category 0 of the CCL inserted a delayed effective date for this controlled based on the control of the (see the Department of Commerce rule and other developmental article controls material itself (see USML Category XIII, elsewhere in this issue of the Federal so that it would not affect contracts or Materials and Miscellaneous Articles, Register). other funding authorizations now in elsewhere in this rule). A new ‘‘(x) paragraph’’ has been effect. The controls would thus apply One commenting party recommended added to USML Category VII, allowing prospectively and only after the affected clarification of the 12.5% or greater ITAR licensing for commodities, community has a sufficient opportunity damage threshold for hulls or software, and technical data subject to to review and, as necessary, modify superstructures. The damage threshold the EAR provided those commodities,

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software, and technical data are to be miscellaneous articles, to more clarity of the regulation and were used in or with defense articles accurately describe the articles within congruent with ECR objectives, the controlled in USML Category VII and the category and to establish a clearer Department accepted them. are described in the purchase line between the USML and the CCL One commenting party recommended documentation submitted with the regarding controls over these articles. removal of the phrase, ‘‘specially application. Paragraph (c) is removed and placed designed for military applications,’’ This rule also establishes a definition in reserve; the articles formerly from the introduction to paragraph (b) for ground vehicles in ITAR § 121.4. controlled there (i.e., self-contained because an item should not be This revision of USML Category VII diving and underwater breathing controlled on the USML merely because was published as a proposed rule (RIN apparatus) are controlled in ECCN the military may be the first entity to 1400–AC77) on December 6, 2011, for 8A620.f. Paragraphs (d), (e), (g), and (h) purchase or use the item. The public comment (see 76 FR 7611). The are reorganized and expanded to better Department agrees that an item should comment period ended January 20, describe the articles controlled therein. not be considered a defense article 2012. Five parties filed comments Paragraph (f) is re-designated to cover based on first use by the military, and recommending changes, which were articles that are classified. The articles believes that appropriate application of thoroughly reviewed and considered by in the former paragraph (f) (i.e., the specially designed definition will the Department and other agencies. The structural materials) are controlled in work toward the preclusion of this Department’s evaluation of the written ECCN 0C617, revised USML Categories occurrence. But the Department also comments and recommendations VI, VII, and VIII, and in paragraphs (d), notes that whether an item is specially follows. (e), and new paragraph (f) of USML designed for a military application and The Department received proposals Category XIII. Paragraph (i) is re- which sector (military or commercial) for alternative phrasing of the regulatory designated to control signature has established first purchases are two text in USML Category VII and ITAR reduction software, with embrittling separate matters. Separately, the § 121.4. When the recommended agents (formerly controlled in paragraph Department has accepted the changes added to the clarity of the (i)) moving to the CCL under ECCN recommendation to remove the phrase regulation and were congruent with ECR 0A617.f. Paragraph (m) is amended to ‘‘specially designed for a military objectives, the Department accepted reflect the revisions made throughout application’’ because it is superfluous. them. this category. In addition, articles One commenting party suggested that One commenting party recommended common to the MTCR Annex and the parenthetical, ‘‘e.g., command, providing an explanation of or reference articles in this category are identified control, and communications (C3), and for the phrase ‘‘rated class 60 or above’’ with the parenthetical ‘‘(MT)’’ at the end government intelligence applications,’’ in paragraph (g)(9), to assist the exporter of each section containing such articles. in the introduction to paragraph (b) is with interpretation. The Department A new ‘‘(x) paragraph’’ has been unnecessary, as the regulation lists, or notes there are numerous instances in added to USML Category XIII, allowing should list, all articles to be controlled. the regulation where technical ITAR licensing for commodities, The Department has removed the terminology is used. Such terminology software, and technical data subject to example, but has added ‘‘intelligence’’ is indispensible in the effort to provide the EAR provided those commodities, as a description of the articles a more descriptive and ‘‘positive’’ U.S. software, and technical data are to be controlled in the paragraph. Munitions List. While the Department used in or with defense articles Three commenting parties strives for simplicity and clarity in the controlled in USML Category XIII and recommended the provision of specific regulation, and acknowledges that some are described in the purchase criteria for discerning the threshold of the terminology may be inscrutable to documentation submitted with the between military and non-military those without the proper knowledge application. articles in paragraph (b). The base, the provision of layman’s Although the articles controlled in Department acknowledges that the explanation of all technical parameters paragraph (a) (i.e., cameras and control of these items requires review, would make for a voluminous and specialized processing equipment) are and that this aspect of the regulation unwieldy regulation. to controlled elsewhere on the USML requires further development, but at this One commenting party recommended and on the CCL, they will remain point publishes the regulation largely as revising paragraph (g)(11) to more controlled in paragraph (a) until the provided in the proposed rule. specifically identify which kits should Department publishes a final rule for The Department has revised be controlled on the USML. The USML Category XII and the Department paragraph (b)(4) by providing criteria to Department believes it has sufficiently of Commerce publishes its companion clarify the scope of the regulation, as described the articles meant to be rule. recommended by two commenting controlled in that paragraph. For those This revision of USML Category XIII parties. in the public who disagree on the was published as a proposed rule (RIN In response to the recommendation of wording of a particular regulation 1400–AD13) on May 18, 2012, for public one commenting party for clarity of because they believe it does not comment (see 77 FR 29575). The purpose in paragraph (d), the sufficiently describe the article to be comment period ended July 2, 2012. Department has removed the word controlled, the Department urges the Ten parties filed comments ‘‘ablative’’ from the introduction. submission of alternative text or criteria recommending changes, which were Three commenting parties using the contact information in the reviewed and considered by the recommended that developmental ‘‘For Further Information’’ section. Any Department and other agencies. The armor funded by a Department of such comments will be evaluated for Department’s evaluation of the written Defense contract should not be possible addition in a future comments and recommendations automatically controlled under the rulemaking. follows. ITAR. The Department has qualified the The Department received proposals regulation by stipulating that the USML Revision of USML Category XIII for alternative phrasing of the regulatory does not control developmental armor This final rule revises USML Category text in USML Category XIII. When the determined to be subject to the EAR via XIII, covering materials and recommended changes added to the a commodity jurisdiction determination

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or identified in the relevant Department vessels in a single category. In addition, controlled in USML Category XX, the of Defense contract as being developed naval nuclear propulsion power plants Department did not enumerate the parts, for both civil and military applications. for submersible vessels controlled under components, accessories, attachments, The Department accepted the USML Category XX, formerly controlled and associated equipment for these recommendation of three commenting under USML Category VI(e), are now articles. parties for identification of a lower-limit controlled under USML Category XX(b). Definition for Maintenance Levels criterion for the provided parameter in In addition, articles common to the paragraph (g)(1), and has revised the MTCR Annex and articles in this This final rule provides definitions for regulation accordingly. category are identified with the ‘‘organizational-level maintenance,’’ Four commenting parties parenthetical ‘‘(MT)’’ at the end of each ‘‘intermediate-level maintenance,’’ and recommended control on the CCL as section containing such articles. ‘‘depot-level maintenance.’’ more appropriate for energy conversion Revised USML Category XX controls These definitions were published for devices controlled in paragraph (h). The only those parts, components, public comment on April 13, 2011, Department has not accepted this accessories, and attachments that are along with a proposed revision of the recommendation, but has narrowed the specially designed for a defense article definition for ‘‘defense service’’ (RIN control on thermionic generators controlled therein. All other parts, 1400–AC80, see 76 FR 20590. Revision covered in that paragraph. components, accessories, and of the defense service definition was the The Department accepted the attachments become subject to the new subject of another proposed rule. Please recommendation of five commenting 600 series controls in Category 8 of the see 78 FR 31444). The comment period parties to specifically indicate that the CCL published separately by the ended June 13, 2011. Thirty-nine parties signature reduction software controlled Department of Commerce (see elsewhere filed comments recommending changes in paragraph (i) be directly related to in this issue of the Federal Register). to the rule, which were reviewed and reducing the ability to detect a defense A new ‘‘(x) paragraph’’ has been considered by the Department and other article, and has revised the regulation added to USML Category XX, allowing agencies. The Department’s evaluation accordingly. ITAR licensing for commodities, of the written comments and In response to the recommendation of software, and technical data subject to recommendations follows (the one commenting party, laser eye-safe the EAR provided those commodities, Department notes that comments media will be controlled in revised software, and technical data are to be bearing more on the definitions of USML Category X rather than in used in or with defense articles defense service and public domain will paragraph (j), and comments regarding controlled in USML Category XX and be addressed in those respective rules). the appropriate control criteria for those are described in the purchase Three commenting parties articles will be discussed in that rule. documentation submitted with the recommended that the definitions of Two commenting parties application. maintenance levels proposed in ITAR recommended deletion of paragraph (k), This rule also creates ITAR § 121.14 to § 120.38 should be replaced with the which controls certain tooling and more clearly define ‘‘submersible definitions already established by the equipment, saying it is unnecessary vessels and related articles,’’ and makes Department of Defense in DoD Directive (because technical data controls conforming edits to ITAR §§ 123.20, 4151.18, ‘‘Maintenance of Military elsewhere in the ITAR would cover the 124.2, and 125.1 (nuclear related Materiel,’’ to avoid confusion and items) or too broad in scope controls). maintain consistency. While the (commercial items would be captured). This revision of USML Category XX Department did not accept this The Department believes the regulation was first published as a proposed rule recommendation, it notes that the is appropriately phrased to control only (RIN 1400–AD01) on December 23, definitions are very similar. Certain the articles intended to be captured. In 2011, for public comment (see 76 FR differences among the two sets of addition, the reason for the control goes 80305). The comment period ended definitions include a description of the beyond related technical data; the February 6, 2012. Six parties filed types of maintenance services in the Department wants to control these items comments recommending changes, Department’s definition for depot-level for their intended function. For these which were reviewed and considered by maintenance, and not providing for the reasons, the Department did not accept the Department and other agencies. The manufacturing of unavailable parts in its the recommendation of another Department’s evaluation of the written definition for intermediate-level commenting party to transfer comments and recommendations maintenance. jurisdiction over these articles to the follows. Nine commenting parties Department of Commerce. The Department received proposals recommended revising the definitions to One commenting party recommended for alternative phrasing of the regulatory focus on the nature or complexity of the the removal from paragraph (m) text in USML Category XX and ITAR service performed or the specialized description of the term ‘‘electromagnetic § 121.14. When the recommended skills and knowledge required in the armor,’’ as it is not included in this changes added to the clarity of the performance of the maintenance rather category. The Department accepted this regulation and were congruent with ECR than specifying where and by whom the recommendation in part, and has objectives, the Department accepted service is performed. The Department included a note to USML Category them. accepted this recommendation in part. VII(g)(6) to point to the definitions in One commenting party recommended While the Department believes the USML Category XIII(m). revising paragraph (c) to list the parts, nature and complexity of the services components, accessories, attachments, are distinguished by the three levels, it Revision of USML Category XX and associated equipment controlled was not the intent to limit who may This final rule revises USML Category therein, rather than provide for the provide the services or where they may XX, covering submersible vessels and control of these articles that are be provided. The Department revised related articles. The revision accounts specially designed for the articles in the definitions accordingly. for the movement of submarines from paragraphs (a) and (b) of USML Category One commenting party recommended USML Category VI and consolidates the XX. Because of the specialized and inclusion of the phrase, ‘‘enhancements controls that apply to all submersible sensitive application of the articles that do not improve military capability

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other than to enhance part life-cycle, Regulatory Flexibility Act Executive Orders 12372 and 13132 reliability, or increase time between Since the Department is of the This rulemaking will not have maintenance cycle checks,’’ in all three opinion that this rule is exempt from the substantial direct effects on the States, defined maintenance levels, to reflect provisions of 5 U.S.C. 553, there is no on the relationship between the national the fact that component improvement requirement for an analysis under the government and the States, or on the programs are common for hardware Regulatory Flexibility Act. distribution of power and with long lifecycles. The Department responsibilities among the various Unfunded Mandates Reform Act of 1995 accepted this comment and revised the levels of government. Therefore, in definitions accordingly. This rulemaking does not involve a accordance with Executive Order 13132, One commenting party recommended mandate that will result in the it is determined that this rulemaking defining the terms ‘‘extensive expenditure by State, local, and tribal does not have sufficient federalism equipment’’ and ‘‘higher technical governments, in the aggregate, or by the implications to require consultations or skill,’’ included in the definition for private sector, of $100 million or more warrant the preparation of a federalism depot-level maintenance, as they are in any year and it will not significantly summary impact statement. The subjective. The Department accepted or uniquely affect small governments. regulations implementing Executive this recommendation in part. To Therefore, no actions were deemed Order 12372 regarding minimize subjectivity, the Department necessary under the provisions of the intergovernmental consultation on replaced ‘‘extensive’’ with ‘‘necessary’’ Unfunded Mandates Reform Act of Federal programs and activities do not and ‘‘higher technical’’ with ‘‘requisite.’’ 1995. apply to this rulemaking. One commenting party recommended Small Business Regulatory Enforcement Executive Orders 12866 and 13563 removal of the phrase ‘‘assigned to the Fairness Act of 1996 Executive Orders 12866 and 13563 inventory of the end-user unit’’ in the For purposes of the Small Business direct agencies to assess costs and definition of organizational-level Regulatory Enforcement Fairness Act of benefits of available regulatory maintenance because this would require 1996 (the ‘‘Act’’), a ‘‘major’’ rule is a alternatives and, if regulation is the applicant to verify that equipment is rule that the Administrator of the OMB necessary, to select regulatory in a foreign military inventory before Office of Information and Regulatory approaches that maximize net benefits performing the maintenance. The Affairs finds has resulted or is likely to (including potential economic, Department accepted this comment and result in (1) an annual effect on the environmental, public health and safety has revised the definition accordingly. economy of $100,000,000 or more; (2) a effects, distributed impacts, and equity). Adoption of Proposed Rules and Other major increase in costs or prices for These executive orders stress the Changes consumers, individual industries, importance of quantifying both costs federal, state, or local government and benefits, of reducing costs, of Having reviewed and evaluated the agencies, or geographic regions; or (3) harmonizing rules, and of promoting comments and recommended changes significant adverse effects on flexibility. This rulemaking has been for the USML Category VI, USML competition, employment, investment, designated a ‘‘significant regulatory Category VII, USML Category XIII, and productivity, innovation, or on the action,’’ although not economically USML Category XX proposed rules, and ability of United States-based significant, under section 3(f) of for the definition for maintenance enterprises to compete with foreign- Executive Order 12866. Accordingly, levels, the Department has determined based enterprises in domestic and this rule has been reviewed by the that it will, and hereby does, adopt foreign markets. Office of Management and Budget them, with changes noted and other The Department does not believe this (OMB). edits, and promulgates them in final rulemaking will have an annual effect form under this rule. on the economy of $100,000,000 or Executive Order 12988 more. Articles that are being removed The Department of State has reviewed Regulatory Analysis and Notices from coverage in the U.S. Munitions List this rulemaking in light of sections 3(a) Administrative Procedure Act categories contained in this rule will and 3(b)(2) of Executive Order 12988 to still require licensing for export, but eliminate ambiguity, minimize The Department of State is of the from the Department of Commerce. litigation, establish clear legal opinion that controlling the import and While the licensing regime of the standards, and reduce burden. export of defense articles and services is Department of Commerce is more a foreign affairs function of the United flexible than that of the Department of Executive Order 13175 States Government and that rules State, it is not expected that the change The Department of State has implementing this function are exempt in jurisdiction of these articles will determined that this rulemaking will from sections 553 (rulemaking) and 554 result in an export difference of not have tribal implications, will not (adjudications) of the Administrative $100,000,000 or more. impose substantial direct compliance Procedure Act (APA). Although the The Department also does not believe costs on Indian tribal governments, and Department is of the opinion that this that this rulemaking will result in a will not pre-empt tribal law. rule is exempt from the rulemaking major increase in costs or prices for Accordingly, the requirement of provisions of the APA, the Department consumers, individual industries, Executive Order 13175 does not apply has published this rule as separate federal, state, or local government to this rulemaking. proposed rules identified as 1400– agencies, or geographic regions, or have AC77, 1400–AC80, 1400–AC99, 1400– significant adverse effects on Paperwork Reduction Act AD01, and 1400–AD13, each with a 45- competition, employment, investment, Following is a listing of approved or 60-day provision for public comment productivity, innovation, or on the collections that will be affected by and without prejudice to its ability of United States-based revision, pursuant to the President’s determination that controlling the enterprises to compete with foreign- Export Control Reform (ECR) initiative, import and export of defense services is based enterprises in domestic and of the U.S. Munitions List (USML) and a foreign affairs function. foreign markets. the Commerce Control List. This final

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rule continues the implementation of USML Category XIX, a newly- M, parts 120, 121, 123, 124, and 125 are ECR. Other final rules will follow. The established category, as a description of amended as follows: list of collections and the description of the articles that are the subject of the the manner in which they will be amendment request. PART 120—PURPOSE AND affected pertains to revision of the (6) Request for Approval of DEFINITIONS USML in its entirety, not only to the Manufacturing License Agreements, ■ categories published in this rule: 1. The authority citation for part 120 Technical Assistance Agreements, and continues to read as follows: (1) Statement of Registration, DS– Other Agreements, DSP–5, OMB No. 2032, OMB No. 1405–0002. The 1405–0093. The Department estimates Authority: Sections 2, 38, and 71, Pub. L. Department estimates that between that there will be 1,000 fewer agreement 90–629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 3,000 and 5,000 of the currently- 2797); 22 U.S.C. 2794; 22 U.S.C. 2651a; Pub. submissions annually following full L. 105–261, 112 Stat. 1920; Pub. L. 111–266; registered persons will not need to revision of the USML. This would result maintain registration following full Section 1261, Pub. L. 112–239; E.O. 13637, in a burden reduction of 2,000 hours 78 FR 16129. revision of the USML. This would result annually. In addition, the DSP–5, the ■ 2. Section 120.38 is added to read as in a burden reduction of between 6,000 form used for the purposes of follows: and 10,000 hours annually, based on a electronically submitting agreements, revised time burden of two hours to will allow respondents to select USML § 120.38 Maintenance levels. complete a Statement of Registration. Category XIX, a newly-established (2) Application/License for Permanent (a) Organizational-level maintenance category, as a description of articles to (or basic-level maintenance) is the first Export of Unclassified Defense Articles be exported. and Related Unclassified Technical level of maintenance that can be Data, DSP–5, OMB No. 1405–0003. The (7) Maintenance of Records by performed ‘‘on-equipment’’ (directly on Department estimates that there will be Registrants, OMB No. 1405–0111. The the defense article or support 35,000 fewer DSP–5 submissions requirement to actively maintain equipment) without specialized annually following full revision of the records pursuant to provisions of the training. It consists of repairing, USML. This would result in a burden International Traffic in Arms inspecting, servicing, calibrating, reduction of 35,000 hours annually. In Regulations (ITAR) will decline lubricating, or adjusting equipment, as addition, the DSP–5 will allow commensurate with the drop in the well as replacing minor parts, respondents to select USML Category number of persons who will be required components, assemblies, and line- XIX, a newly-established category, as a to register with the Department replaceable spares or units. This description of articles to be exported. pursuant to the ITAR. As stated above, includes modifications, enhancements, (3) Application/License for the Department estimates that between or upgrades that would result in Temporary Import of Unclassified 3,000 and 5,000 of the currently- improving only the reliability or Defense Articles, DSP–61, OMB No. registered persons will not need to maintainability of the commodity (e.g., 1405–0013. The Department estimates maintain registration following full an increased mean time between failure that there will be 200 fewer DSP–61 revision of the USML. This would result (MTBF)) and does not enhance the basic submissions annually following full in a burden reduction of between 60,000 performance or capability of the defense revision of the USML. This would result and 100,000 hours annually. However, article. in a burden reduction of 100 hours the ITAR does provide for the (b) Intermediate-level maintenance is annually. In addition, the DSP–61 will maintenance of records for a period of second-level maintenance performed allow respondents to select USML five years. Therefore, persons newly ‘‘off-equipment’’ (on removed parts, Category XIX, a newly-established relieved of the requirement to register components, or equipment) at or by category, as a description of articles to with the Department may still be designated maintenance shops or be temporarily imported. required to maintain records. centers, tenders, or field teams. It may (4) Application/License for (8) Export Declaration of Defense consist of calibrating, repairing, testing, Temporary Export of Unclassified Technical Data or Services, DS–4071, or replacing damaged or unserviceable Defense Articles, DSP–73, OMB No. OMB No. 1405–0157. The Department parts, components, or assemblies. This 1405–0023. The Department estimates estimates that there will be 2,000 fewer includes modifications, enhancements, that there will be 800 fewer DSP–73 declaration submissions annually or upgrades that would result in submissions annually following full following full revision of the USML. improving only the reliability or revision of the USML. This would result This would result in a burden reduction maintainability of the commodity (e.g., in a burden reduction of 800 hours of 1,000 hours annually. an increased mean time between failure annually. In addition, the DSP–73 will (MTBF)) and does not enhance the basic allow respondents to select USML List of Subjects performance or capability of the defense Category XIX, a newly-established 22 CFR Parts 120, 121, and 125 article. category, as a description of articles to (c) Depot-level maintenance is third- be temporarily exported. Arms and munitions, Classified level maintenance performed on- or off- (5) Application for Amendment to information, Exports. equipment at or by a major repair License for Export or Import of 22 CFR Part 123 facility, shipyard, or field team, each Classified or Unclassified Defense with necessary equipment and Articles and Related Technical Data, Arms and munitions, Exports, personnel of requisite technical skill. It DSP–6, –62, –74, –119, OMB No. 1405– Reporting and recordkeeping consists of providing evaluation or 0092. The Department estimates that requirements. repair beyond unit or organization there will be 2,000 fewer amendment 22 CFR Part 124 capability. This maintenance consists of submissions annually following full inspecting, testing, calibrating, revision of the USML. This would result Arms and munitions, Exports, repairing, overhauling, refurbishing, in a burden reduction of 1,000 hours Technical assistance. reconditioning, and one-to-one annually. In addition, the amendment Accordingly, for the reasons set forth replacing of any defective parts, forms will allow respondents to select above, Title 22, Chapter I, Subchapter components or assemblies. This

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includes modifications, enhancements, (f) Vessel and naval equipment, parts, will be determined using the trajectory that or upgrades that would result in components, accessories, attachments, maximizes range, assuming International improving only the reliability or associated equipment, and systems, as Civil Aviation Organization (ICAO) standard maintainability of the commodity (e.g., follows: atmosphere with zero wind. an increased mean time between failure (1) Hulls or superstructures, including (7) Shipborne active protection (MTBF)) and does not enhance the basic support structures therefor, that: systems (i.e., defensive systems that performance or capability of the defense (i) Are specially designed for any actively detect and track incoming article. vessels controlled in paragraph (a) of threats and launch a ballistic, explosive, this category; energy, or electromagnetic PART 121—THE UNITED STATES (ii) Have armor, active protection countermeasure(s) to neutralize the MUNITIONS LIST systems, or developmental armor threat prior to contact with a vessel) and systems; or specially designed parts and ■ 3. The authority citation for part 121 (iii) Are specially designed to survive components therefor; continues to read as follows: 12.5% or greater damage across the (8) Minesweeping and mine hunting Authority: Secs. 2, 38, and 71, Pub. L. 90– length as measured between equipment (including mine 629, 90 Stat. 744 (22 U.S.C. 2752, 2778, perpendiculars; countermeasures equipment deployed 2797); 22 U.S.C. 2651a; Pub. L. 105–261, 112 (2) Systems that manage, store, create, by aircraft) and specially designed parts Stat. 1920; Section 1261, Pub. L. 112–239; distribute, conserve, and transfer and components therefor; or E.O. 13637, 78 FR 16129. energy, and specially designed parts and * (9) Any part, component, accessory, ■ 4. Section 121.1 is amended by components therefor, that have: attachment, equipment, or system that: revising U.S. Munitions List Categories (i) Storage exceeding 30MJ; (i) Is classified; VI, VII, XIII, and XX to read as follows: (ii) A discharge rate less than 3 (ii) Contains classified software seconds; and directly related to defense articles in § 121.1 General. The United States (iii) A cycle time under 45 seconds; Munitions List. (3) Shipborne auxiliary systems for this subchapter or 600 series items * * * * * chemical, biological, radiological, and subject to the EAR; or nuclear (CBRN) compartmentalization, (iii) Is being developed using Category VI—Surface Vessels of War over-pressurization and filtration classified information. ‘‘Classified’’ and Special Naval Equipment systems, and specially designed parts means classified pursuant to Executive * (a) Warships and other combatant and components therefor; Order 13526, or predecessor order, and vessels (see § 121.15 of this subchapter). *(4) Control and monitoring systems a security classification guide developed (b) Other vessels not controlled in for autonomous unmanned vessels pursuant thereto or equivalent, or to the paragraph (a) of this category (see capable of on-board, autonomous corresponding classification rules of § 121.15 of this subchapter). perception and decision-making another government or international (c) Developmental vessels and necessary for the vessel to navigate organization. specially designed parts, components, while avoiding fixed and moving Note 1 to paragraph (f): Parts, components, accessories, and attachments therefor hazards, and obeying rules-of-the road accessories, attachments, associated funded by the Department of Defense without human intervention; equipment, and systems specially designed via contract or other funding * (5) Any machinery, device, for vessels enumerated in this category but authorization. component, or equipment, including not listed in paragraph (f) are subject to the EAR under ECCN 8A609. Note 1 to paragraph (c): This paragraph production, testing and inspection does not control developmental vessels and equipment, and tooling, specially Note 2 to paragraph (f): For controls specially designed parts, components, designed for plants or facilities related to ship signature management, see accessories, and attachments therefor (a) in controlled in paragraph (e) of this also USML Category XIII. production, (b) determined to be subject to section (see § 123.20 of this subchapter); (g) Technical data (see § 120.10 of this the EAR via a commodity jurisdiction (6) Parts, components, accessories, subchapter) and defense services (see § 120.9 determination (see § 120.4 of this attachments, and equipment specially of this subchapter) directly related to the subchapter), or (c) identified in the relevant designed for integration of articles defense articles enumerated in paragraphs (a) Department of Defense contract or other controlled by USML Categories II, IV, or through (f) of this category and classified funding authorization as being developed for technical data directly related to items both civil and military applications. XVIII or catapults for launching aircraft controlled in ECCNs 8A609, 8B609, 8C609, or arresting gear for recovering aircraft and 8D609 and defense services using the Note 2 to paragraph (c): Note 1 does not (MT for launcher mechanisms specially classified technical data. (MT for technical apply to defense articles enumerated on the designed for rockets, space launch data and defense services related to articles U.S. Munitions List, whether in production vehicles, or missiles capable of designated as such.) or development. achieving a range greater than or equal (See § 125.4 of this subchapter for Note 3 to paragraph (c): This provision is to 300 km); exemptions.) applicable to those contracts and funding Note to paragraph (f)(6): ‘‘Range’’ is the (h)–(w) [Reserved] authorizations that are dated one year or later maximum distance that the specified rocket (x) Commodities, software, and following the publication of the rule, system is capable of traveling in the mode of technical data subject to the EAR (see ‘‘Amendment to the International Traffic in stable flight as measured by the projection of § 120.42 of this subchapter) used in or Arms Regulations: Continued its trajectory over the surface of the Earth. with defense articles controlled in this Implementation of Export Control Reform,’’ The maximum capability based on the design RIN 140–AD40. characteristics of the system, when fully category. (d) [Reserved] loaded with fuel or propellant, will be taken Note to paragraph (x): Use of this into consideration in determining range. The paragraph is limited to license applications * (e) Naval nuclear propulsion plants range for rocket systems will be determined for defense articles controlled in this category and prototypes, and special facilities for independently of any external factors such as where the purchase documentation includes construction, support, and maintenance operational restrictions, limitations imposed commodities, software, or technical data therefor (see § 123.20 of this by telemetry, data links, or other external subject to the EAR (see § 123.1(b) of this subchapter). constraints. For rocket systems, the range subchapter).

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Category VII—Ground Vehicles (7) Built in test equipment (BITE) to § 120.9 of this subchapter) directly * (a) Armored combat ground vehicles evaluate the condition of weapons or related to the defense articles (see § 121.4 of this subchapter) as other mission systems for vehicles enumerated in paragraphs (a) through follows: identified in this category, excluding (g) of this category and classified (1) Tanks; or equipment that provides diagnostics technical data directly related to items (2) Infantry fighting vehicles. solely for a subsystem or component controlled in ECCNs 0A606, 0B606, * (b) Ground vehicles (not enumerated involved in the basic operation of the 0C606, and 0D606 and defense services in paragraph (a) of this category) and vehicle; using the classified technical data. (See trailers that are armed or are specially (8) Gun mount, stabilization, turret § 125.4 of this subchapter for designed to serve as a firing or launch drive, and automatic elevating systems, exemptions.) (MT for technical data and platform (see § 121.4 of this subchapter) and specially designed parts and defense services related to articles (MT if specially designed for rockets, components therefor; designated as such.) space launch vehicles, missiles, drones, (9) Self-launching bridge components (i)–(w) [Reserved] or unmanned aerial vehicles capable of rated class 60 or above for deployment (x) Commodities, software, and delivering a payload of at least 500 kg by vehicles in this category; technical data subject to the EAR (see to a range of at least 300 km). (10) Suspension components as § 120.42 of this subchapter) used in or (c) Ground vehicles and trailers follows: with defense articles controlled in this equipped with any mission systems (i) Rotary shock absorbers specially category. controlled under this subchapter (MT if designed for the vehicles weighing more than 30 tons in this category; or Note to paragraph (x): Use of this specially designed for rockets, space paragraph is limited to license applications launch vehicles, missiles, drones, or (ii) Torsion bars specially designed for for defense articles controlled in this category unmanned aerial vehicles capable of the vehicles weighing more than 50 tons where the purchase documentation includes delivering a payload of at least 500 kg in this category; commodities, software, or technical data to a range of at least 300 km) (see § 121.4 (11) Kits specially designed to convert subject to the EAR (see § 123.1(b) of this of this subchapter). a vehicle in this category into either an subchapter). unmanned or a driver-optional vehicle. Note to paragraphs (b) and (c): ‘‘Payload’’ For a kit to be controlled by this * * * * * is the total mass that can be carried or paragraph, it must, at a minimum, delivered by the specified rocket, space Category XIII— Materials and launch vehicle, missile, drone, or unmanned include equipment for: Miscellaneous Articles (i) Remote or autonomous steering; aerial vehicle that is not used to maintain (a) Cameras and specialized flight. For definition of ‘‘range’’ as it pertains (ii) Acceleration and braking; and (iii) A control system; processing equipment therefor, to aircraft systems, see note to paragraph (a) photointerpretation, stereoscopic USML Category VIII. For definition of (12) Fire control computers, mission ‘‘range’’ as it pertains to rocket systems, see computers, vehicle management plotting, and photogrammetry note to paragraph (f)(6) of USML Category VI. computers, integrated core processers, equipment which are specifically stores management systems, armaments designed, developed, modified, adapted, (d) [Reserved] or configured for military purposes, and * (e) Armored support ground control processors, vehicle-weapon components specifically designed or vehicles (see § 121.4 of this subchapter). interface units and computers; (f) [Reserved] (13) Test or calibration equipment for modified therefor. (g) Ground vehicle parts, components, the mission systems of the vehicles in (b) Information security or accessories, attachments, associated this category, except those enumerated information assurance systems and equipment, and systems as follows: elsewhere; or equipment, cryptographic devices, (1) Armored hulls, armored turrets, *(14) Any part, component, accessory, software, and components, as follows: and turret rings; attachment, equipment, or system that (1) Military or intelligence (2) Active protection systems (i.e., (MT for those articles designated as cryptographic (including key defensive systems that actively detect such): management) systems, equipment, and track incoming threats and launch (i) Is classified; assemblies, modules, integrated circuits, a ballistic, explosive, energy, or (ii) Contains classified software components, and software (including electromagnetic countermeasure(s) to directly related to defense articles in their cryptographic interfaces) capable neutralize the threat prior to contact this subchapter or 600 series items of maintaining secrecy or confidentiality with a vehicle) and specially designed subject to the EAR; or of information or information systems, parts and components therefor; (iii) Is being developed using including equipment or software for (3) Composite armor parts and classified information. tracking, telemetry, and control (TT&C) components specially designed for the ‘‘Classified’’ means classified encryption and decryption; vehicles in this category; pursuant to Executive Order 13526, or (2) Military or intelligence (4) Spaced armor components and predecessor order, and a security cryptographic (including key parts, including slat armor parts and classification guide developed pursuant management) systems, equipment, components specially designed for the thereto or equivalent, or to the assemblies, modules, integrated circuits, vehicles in this category; corresponding classification rules of components, and software (including (5) Reactive armor parts and another government or international their cryptographic interfaces) capable components; organization. of generating spreading or hopping (6) Electromagnetic armor parts and Note to paragraph (g): Parts, components, codes for spread spectrum systems or components, including pulsed power accessories, attachments, associated equipment; specially designed parts and equipment, and systems specially designed (3) Military or intelligence components therefor; for vehicles in this category but not listed in cryptanalytic systems, equipment, paragraph (g) are subject to the EAR under assemblies, modules, integrated circuits, Note to paragraphs (g)(3)–(6): See USML ECCN 0A606. Category XIII(m)(1)–(4) for interpretations components and software; which explain and amplify terms used in (h) Technical data (see § 120.10 of this (4) Military or intelligence systems, these paragraphs. subchapter) and defense services (see equipment, assemblies, modules,

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integrated circuits, components, or (4) Non-transparent ceramic plate or (2) Multi-layer camouflage systems software (including all previous or blanks, greater than 1⁄4 inches thick and specially designed to reduce detection derived versions) authorized to control larger than 8 inches x 8 inches for of platforms or equipment in the access to or transfer data between transparent armor. This includes spinel infrared or ultraviolet frequency different security domains as listed on and aluminum oxynitride (ALON); spectrums; the Unified Cross Domain Management (5) Composite armor with Em greater (3) High temperature (greater than Office (UCDMO) Control List (UCL); or than 1.4 and meeting or exceeding NIJ 300 °F operation) ceramic or magnetic (5) Ancillary equipment specially Level III; radar absorbing material (RAM) designed for the articles in paragraphs (6) Metal laminate armor with Em specially designed for use on defense (b)(1)–(b)(4) of this category. greater than 1.4 and meeting or articles or military items subject to the (c) [Reserved] exceeding NIJ Level III; or EAR; or (d) Materials, as follows: (7) Developmental armor funded by (4) Broadband (greater than 30% *(1) Ablative materials fabricated or the Department of Defense via contract bandwidth) lightweight (less than 2 lbs/ semi-fabricated from advanced or other funding authorization. sq ft) magnetic radar absorbing material composites (e.g., silica, graphite, carbon, (RAM) specially designed for use on carbon/carbon, and boron filaments) Note 1 to paragraph (e)(7): This paragraph does not control developmental armor (a) in defense articles or military items subject specially designed for the articles in production, (b) determined to be subject to to the EAR. USML Category IV (MT if usable for the EAR via a commodity jurisdiction (h) Energy conversion devices not nozzles, re-entry vehicles, nose tips, or determination (see § 120.4 of this otherwise enumerated in this nozzle flaps usable in rockets, space subchapter), or (c) identified in the relevant subchapter, as follows: launch vehicles (SLVs), or missiles Department of Defense contract or other (1) Fuel cells specially designed for capable of achieving a range greater than funding authorization as being developed for platforms or soldier systems specified in or equal to 300 km); or both civil and military applications. this subchapter; (2) Carbon/carbon billets and (2) Thermal engines specially preforms that are reinforced with Note 2 to paragraph (e)(7): Note 1 does not designed for platforms or soldier apply to defense articles enumerated on the continuous unidirectional fibers, tows, USML, whether in production or systems specified in this subchapter; tapes, or woven cloths in three or more development. (3) Thermal batteries (MT if designed dimensional planes (MT if designed for or modified for rockets, SLVs, missiles, rocket, SLV, or missile systems and Note 3 to paragraph (e)(7): This provision drones, or UAVs capable of achieving a usable in rockets, SLVs, or missiles is applicable to those contracts and funding range equal to or greater than 300 km. capable of achieving a range greater than authorizations that are dated one year or later See note to paragraph (d) of this or equal to 300 km). following the publication of the rule, category); or ‘‘Amendment to the International Traffic in Note to paragraph (d): ‘‘Range’’ is the Arms Regulations: Continued Note to paragraph (h)(3): Thermal batteries maximum distance that the specified rocket Implementation of Export Control Reform,’’ are single use batteries that contain a solid system is capable of traveling in the mode of RIN 140–AD40. non-conducting inorganic salt as the stable flight as measured by the projection of electrolyte. These batteries incorporate a its trajectory over the surface of the Earth. *(f) Any article enumerated in this pyrolitic material that, when ignited, melts The maximum capability based on the design category that (MT for those articles the electrolyte and activates the battery. characteristics of the system, when fully designated as such): (4) Thermionic generators specially loaded with fuel or propellant, will be taken (i) Is classified; into consideration in determining range. The designed for platforms or soldier (ii) Contains classified software systems enumerated in this subchapter. range for rocket systems will be determined directly related to defense articles in independently of any external factors such as *(i) Signature reduction software, and operational restrictions, limitations imposed this subchapter or 600 series items technical data as follows (MT for by telemetry, data links, or other external subject to the EAR; or software specially designed for reduced constraints. For rocket systems, the range (iii) Is being developed using observables, for applications usable for will be determined using the trajectory that classified information. rockets, SLVs, missiles, drones, or UAVs maximizes range, assuming International ‘‘Classified’’ means classified capable of achieving a range (see note to Civil Aviation Organization (ICAO) standard pursuant to Executive Order 13526, or atmosphere with zero wind. paragraph (d) of this category) greater predecessor order, and a security than or equal to 300 km, and their Note to paragraph (d)(2): This paragraph classification guide developed pursuant subsystems, including software does not control carbon/carbon billets and thereto or equivalent, or to the specially designed for analysis of preforms where reinforcement in the third corresponding classification rules of signature reduction; MT for technical dimension is limited to interlocking of another government or international data for the development, production, or adjacent layers only. organization. use of equipment, materials, or software (e) Armor (e.g., organic, ceramic, *(g) Concealment and deception designated as such, including databases metallic) and armor materials, as equipment, as follows (MT for specially designed for analysis of follows: applications usable for rockets, SLVs, signature reduction): (1) Spaced armor with Em greater than missiles, drones, or unmanned aerial (1) Software associated with the 1.4 and meeting NIJ Level III or better; vehicles (UAVs) capable of achieving a measurement or modification of system (2) Transparent armor having Em range greater than or equal to 300 km signatures for defense articles to reduce greater than or equal to 1.3 or having Em and their subsystems. See note to detectability or observability; less than 1.3 and meeting and exceeding paragraph (d) of this category): (2) Software for design of low- NIJ Level III standards with areal (1) Polymers loaded with carbonyl observable platforms; density less than or equal to 40 pounds iron powder, ferrites, iron whiskers, (3) Software for design, analysis, per square foot; fibers, flakes, or other magnetic prediction, or optimization of signature (3) Transparent ceramic plate greater additives having a surface resistivity of management solutions for defense than 1⁄4 inch-thick and larger than 8 less than 5000 ohms/square and greater articles; inches x 8 inches, excluding glass, for than 10 ohms/square with electrical (4) Infrared signature measurement or transparent armor; isotropy of less than 5%; prediction software for defense articles

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or radar cross section measurement or portable optical interrogator that Where: 3 prediction software; validates integrity of a repair to a rRHA = density of RHA, (7.85 g/cm ) (5) Signature management technical signature reduction structure). Po = Baseline Penetration of RHA, (mm) data, including codes and algorithms for (l) Technical data (see § 120.10 of this Pr = Residual Line of Sight Penetration, defense articles to reduce detectability subchapter) directly related to the either positive or negative (mm RHA or observability; defense articles enumerated in equivalent) ADTARGET = Line-of-Sight Areal Density of (6) Signature control design paragraphs (a) through (h), (j), and (k) of 2 methodology (see § 125.4(c)(4) of this this category and defense services (see Target (kg/m ) subchapter) for defense articles to § 120.9 of this subchapter) directly (10) NIJ is the National Institute of reduce detectability or observability; related to the defense articles Justice and Level III refers to the (7) Technical data for use of micro- enumerated in this category. (See also requirements specified in NIJ standard encapsulation or micro-spheres to § 123.20 of this subchapter.) (MT for 0108.01 Ballistic Resistant Protective reduce infrared, radar, or visual technical data and defense services Materials. detection of platforms or equipment; related to articles designated as such.) (n)–(w) [Reserved] (8) Multi-layer camouflage system (m) The following interpretations (x) Commodities, software, and technical data for reducing detection of explain and amplify terms used in this technical data subject to the EAR (see platforms or equipment; category and elsewhere in this § 120.42 of this subchapter) used in or (9) Multi-spectral surface treatment subchapter: with defense articles controlled in this technical data for modifying infrared, (1) Composite armor is defined as category. visual or radio frequency signatures of having more than one layer of different Note to paragraph (x): Use of this platforms or equipment; materials or a matrix. paragraph is limited to license applications (10) Technical data for modifying (2) Spaced armors are metallic or non- for defense articles controlled in this category visual, electro-optical, radiofrequency, metallic armors that incorporate an air where the purchase documentation includes electric, magnetic, electromagnetic, or space or obliquity or discontinuous commodities, software, or technical data wake signatures (e.g., low probability of material path effects as part of the defeat subject to the EAR (see § 123.1(b) of this intercept (LPI) techniques, methods or mechanism. subchapter). (3) Reactive armor employs applications) of defense platforms or * * * * * equipment through shaping, active, or explosives, propellants, or other passive techniques; or materials between plates for the purpose Category XX—Submersible Vessels and (11) Technical data for modifying of enhancing plate motion during a Related Articles acoustic signatures of defense platforms ballistic event or otherwise defeating the (a) Submersible and semi-submersible or equipment through shaping, active, penetrator. vessels (see § 121.14 of this subchapter) or passive techniques. (4) Electromagnetic armor (EMA) that are: (j) Equipment, materials, coatings, and employs electricity to defeat threats *(1) Submarines; treatments not elsewhere specified, as such as shaped charges. (2) Mine countermeasure vehicles; follows: (5) Materials used in composite armor (3) Anti-submarine warfare vehicles; (1) Specially treated or formulated could include layers of metals, plastics, (4) Armed; dyes, coatings, and fabrics used in the elastomers, fibers, glass, ceramics, (5) Swimmer delivery vehicles design, manufacture, or production of ceramic-glass reinforced plastic specially designed for the deployment, personnel protective clothing, laminates, encapsulated ceramics in a recovery, or support of swimmers or equipment, or face paints designed to metallic or non-metallic matrix, divers from submarines; protect against or reduce detection by functionally gradient ceramic-metal (6) Vessels equipped with any radar, infrared, or other sensors at materials, or ceramic balls in a cast mission systems controlled under this wavelengths greater than 900 metal matrix. subchapter; or nanometers (see USML Category (6) For this category, a material is (7) Developmental vessels funded by X(a)(2)); or considered transparent if it allows 75% the Department of Defense via contract *(2) Equipment, materials, coatings, or greater transmission of light, or other funding authorization. corrected for index of refraction, in the and treatments that are specially Note 1 to paragraph (a)(7): This paragraph designed to modify the electro-optical, visible spectrum through a 1 mm thick does not control developmental vessels, and radiofrequency, infrared, electric, laser, nominal sample. specially designed parts, components, magnetic, electromagnetic, acoustic, (7) The material controlled in accessories, attachments, and associated electro-static, or wake signatures of paragraph (e)(4) of this category has not equipment therefor, (a) in production, (b) defense articles or 600 series items been treated to reach the 75% determined to be subject to the EAR via a subject to the EAR through control of transmission level referenced in (m)(6) commodity jurisdiction determination (see absorption, reflection, or emission to of this category. § 120.4 of this subchapter) or (c) identified in reduce detectability or observability (8) Metal laminate armors are two or the relevant Department of Defense contract or other funding authorization as being (MT for applications usable for rockets, more layers of metallic materials which are mechanically or adhesively bonded developed for both civil and military SLVs, missiles, drones, or UAVs capable applications. of achieving a range greater than or together to form an armor system. equal to 300 km, and their subsystems. (9) Em is the line-of-sight target mass Note 2 to paragraph (a)(7): Note 1 does not See note to paragraph (d) of this effectiveness ratio and provides a apply to defense articles enumerated on the category). measure of the tested armor’s U.S. Munitions List, whether in production *(k) Tooling and equipment, as performance to that of rolled or development. follows: homogenous armor, where Em is defined as follows: Note 3 to paragraph (a)(7): This provision (1) Tooling and equipment specially is applicable to those contracts and funding designed for production of low authorizations that are dated one year or later observable (LO) components; or following the publication of the rule, (2) Portable platform signature field ‘‘Amendment to the International Traffic in repair validation equipment (e.g., Arms Regulations: Continued

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Implementation of Export Control Reform,’’ § 121.4 Ground vehicles. with materials to provide ballistic RIN 140–AD40. (a) In USML Category VII, ‘‘ground protection, including protection to level *(b) Engines, electric motors, and vehicles’’ are those, whether manned or III (National Institute of Justice Standard propulsion plants as follows: unmanned, that: 0108.01, September 1985) or better and (1) Naval nuclear propulsion plants (1) Are armed or are specially that do not have reactive or and prototypes, and special facilities for designed to be used as a platform to electromagnetic armor. construction, support, and maintenance deliver munitions or otherwise destroy ■ 6. Section 121.14 is added to read as therefor (see § 123.20 of this or incapacitate targets (e.g., firing lasers, follows: subchapter); launching rockets, firing missiles, firing (2) Electric motors specially designed mortars, firing artillery rounds, or firing § 121.14 Submersible vessels. for submarines that have the following: other ammunition greater than .50 (a) In USML Category XX, (i) Power output of more than 0.75 caliber); submersible and semi-submersible MW (1,000 hp); (2) Are armored support vehicles vessels are those, manned or unmanned, (ii) Quick reversing; capable of off-road or amphibious use tethered or untethered, that: (iii) Liquid cooled; and specially designed to transport or (1) Are submarines specially designed (iv) Totally enclosed. for military use; (c) Parts, components, accessories, deploy personnel or materiel, or to move with other vehicles over land in (2) Are armed or are specially attachments, and associated equipment, designed to be used as a platform to including production, testing, and close support of combat vehicles or troops (e.g., personnel carriers, resupply deliver munitions or otherwise destroy inspection equipment and tooling, or incapacitate targets (e.g., firing specially designed for any of the articles vehicles, combat engineer vehicles, recovery vehicles, reconnaissance torpedoes, launching rockets, firing in paragraphs (a) and (b) of this category missiles, deploying mines, deploying (MT for launcher mechanisms specially vehicles, bridge launching vehicles, ambulances, and command and control countermeasures) or deploy military designed for rockets, space launch payloads; vehicles, or missiles capable of vehicles); or (3) Incorporate any ‘‘mission systems’’ (3) Are specially designed for the achieving a range greater than or equal deployment, recovery, or support of to 300 km). controlled under this subchapter. ‘‘Mission systems’’ are defined as swimmers or divers from submarines; (4) Are integrated with nuclear Note to paragraph (c): ‘‘Range’’ is the ‘‘systems’’ (see § 121.8(g) of this propulsion systems; maximum distance that the specified rocket subchapter) that are defense articles that system is capable of traveling in the mode of (5) Incorporate any ‘‘mission systems’’ perform specific military functions, stable flight as measured by the projection of controlled under this subchapter. such as by providing military its trajectory over the surface of the Earth. ‘‘Mission systems’’ are defined as communication, target designation, The maximum capability based on the design ‘‘systems’’ (see § 121.8(g) of this characteristics of the system, when fully surveillance, target detection, or sensor subchapter) that are defense articles that loaded with fuel or propellant, will be taken capabilities. into consideration in determining range. The perform specific military functions such range for rocket systems will be determined Note 1 to paragraph (a): Armored ground as by providing military independently of any external factors such as vehicles are (i) ground vehicles that have communication, electronic warfare, operational restrictions, limitations imposed integrated, fully armored hulls or cabs, or (ii) target designation, surveillance, target ground vehicles on which add-on armor has by telemetry, data links, or other external detection, or sensor capabilities; or constraints. For rocket systems, the range been installed to provide ballistic protection to level III (National Institute of Justice (6) Are developmental vessels funded will be determined using the trajectory that or contracted by the Department of maximizes range, assuming International Standard 0108.01, September 1985) or better. Civil Aviation Organization (ICAO) standard Armored vehicles do not include those that Defense. atmosphere with zero wind. are merely capable of being equipped with (b) Submersible and semi-submersible add-on armor. vessels that are not identified in (d) Technical data (see § 120.10 of this paragraph (a) of this section are subject subchapter) and defense services (see Note 2 to paragraph (a): Ground vehicles to the EAR under Category 8. § 120.9 of this subchapter) directly include any vehicle meeting the definitions ■ 7. Section 121.15 is revised to read as related to the defense articles or control parameters regardless of the follows: enumerated in paragraphs (a) through surface (e.g., highway, off-road, rail) upon (c) of this category. (MT for technical which the vehicle is designed to operate. § 121.15 Surface vessels of war. data and defense services related to (b) Ground vehicles specially (a) In USML Category VI, ‘‘surface articles designated as such.) (See § 125.4 designed for military applications that vessels of war’’ are those, manned or of this subchapter for exemptions.) are not identified in paragraph (a) of this unmanned, that: (e)–(w) [Reserved] section are subject to the EAR under (1) Are warships or other combatant (x) Commodities, software, and ECCN 0A606, including any unarmed vessels (battleships, aircraft carriers, technical data subject to the EAR (see ground vehicles, regardless of origin or destroyers, frigates, cruisers, corvettes, § 120.42 of this subchapter) used in or designation, manufactured prior to 1956 littoral combat ships, mine sweepers, with defense articles controlled in this and unmodified since 1955. mine hunters, mine countermeasure category. Modifications made to incorporate ships, dock landing ships, amphibious Note to paragraph (x): Use of this safety features required by law, are assault ships), or Coast Guard Cutters paragraph is limited to license applications cosmetic (e.g., different paint, (with or equivalent to those with U.S. for defense articles controlled in this category repositioning of bolt holes), or that add designations WHEC, WMEC, WMSL, or where the purchase documentation includes parts or components otherwise available WPB for the purpose of this subchapter); commodities, software, or technical data subject to the EAR (see § 123.1(b) of this prior to 1956 are considered (2) Are foreign-origin vessels specially subchapter). ‘‘unmodified’’ for the purposes of this designed to provide functions paragraph. ECCN 0A606 also includes equivalent to those of the vessels listed * * * * * unarmed vehicles derived from in paragraph (a)(1) of this section; ■ 5. Section 121.4 is added to read as otherwise EAR99 civilian vehicles that (3) Are high-speed air cushion vessels follows: have been modified or otherwise fitted for transporting cargo and personnel,

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ship-to-shore and across a beach, with a ■ 9. Section 123.20 is amended by ■ 12. Section 124.2 is amended by payload over 25 tons; revising paragraphs (a) and (c) revising paragraphs (c)(5)(iv) and (xii) to (4) Are surface vessels integrated with introductory text to read as follows: read as follows: nuclear propulsion plants or specially designed to support naval nuclear § 123.20 Nuclear related controls. § 124.2 Exemptions for training and propulsion plants; (a) The provisions of this subchapter military service. (5) Are armed or are specially do not apply to equipment, technical * * * * * designed to be used as a platform to data, or services in Category VI, (c) * * * deliver munitions or otherwise destroy Category XVI, and Category XX of (5) * * * or incapacitate targets (e.g., firing lasers, § 121.1 of this subchapter to the extent launching torpedoes, rockets, or such equipment, technical data, or (iv) Naval nuclear propulsion missiles, or firing munitions greater services are under the export control of equipment listed in USML Category VI than .50 caliber); or the Department of Energy or the Nuclear and USML Category XX; (6) Incorporate any mission systems Regulatory Commission pursuant to the * * * * * controlled under this subchapter. Atomic Energy Act of 1954, as amended, (xii) Submersible and semi- ‘‘Mission systems’’ are defined as and the Nuclear Non-Proliferation Act submersible vessels and related articles ‘‘systems’’ (see § 121.8(g) of this of 1978, as amended, or is a government covered in USML Category XX; or subchapter) that are defense articles that transfer authorized pursuant to these * * * * * perform specific military functions such Acts. as by providing military * * * * * PART 125—LICENSES FOR THE communication, electronic warfare, (c) A license for the export of any EXPORT OF TECHNICAL DATA AND target designation, surveillance, target machinery, device, component, CLASSIFIED DEFENSE ARTICLES detection, or sensor capabilities. equipment, or technical data relating to (b) Vessels specially designed for equipment referred to in Category VI(e) ■ military use that are not identified in 13. The authority citation for part 125 or Category XX(b) of § 121.1 of this is revised to read as follows: paragraph (a) of this section are subject subchapter will not be granted unless to the EAR under ECCN 8A609, the proposed equipment comes within Authority: Secs. 2 and 38, Pub. L. 90–629, including any demilitarized vessels, 90 Stat. 744 (22 U.S.C. 2752, 2778); 22 U.S.C. the scope of an existing Agreement for 2651a; E.O. 13637, 78 FR 16129. regardless of origin or designation, Cooperation for Mutual Defense manufactured prior to 1950 and Purposes concluded pursuant to the ■ 14. Section 125.1 is amended by unmodified since 1949. Modifications Atomic Energy Act of 1954, as amended, revising paragraph (e) to read as follows: made to incorporate safety features with the government of the country to § 125.1 Exports subject to this part. required by law, are cosmetic (e.g., which the Article is to be exported. different paint), or that add parts or Licenses may be granted in the absence * * * * * components otherwise available prior to of such an agreement only: (e) The provisions of this subchapter 1950 are considered ‘‘unmodified’’ for * * * * * do not apply to technical data related to the purposes of this paragraph. articles in Category VI(e), Category XVI, PART 123—LICENSES FOR THE PART 124—AGREEMENTS, OFF- and Category XX(b) of § 121.1 of this EXPORT AND TEMPORARY IMPORT SHORE PROCUREMENT, AND OTHER subchapter. The export of such data is OF DEFENSE ARTICLES DEFENSE SERVICES controlled by the Department of Energy or the Nuclear Regulatory Commission ■ ■ 8. The authority citation for part 123 10. The authority citation for part 124 pursuant to the Atomic Energy Act of continues to read as follows: is revised to read as follows: 1954, as amended, and the Nuclear Non- Authority: Secs. 2, 38, and 71, Pub. L. 90– Authority: Sec. 2, 38, and 71, Pub. L. 90– Proliferation Act of 1978, as amended. 629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 629, 90 Stat. 744 (22 U.S.C. 2752, 2778, Rose E. Gottemoeller, 2797); 22 U.S.C. 2753; 22 U.S.C. 2651a; 22 2797); 22 U.S.C. 2651a; 22 U.S.C. 2776; Pub. Acting Under Secretary, Arms Control and U.S.C. 2776; Pub. L. 105–261, 112 Stat. 1920; L. 105–261; Section 1261, Pub. L. 112–239; International Security, Department of State. Sec 1205(a), Pub. L. 107–228; Sec. 520, Pub. E.O. 13637, 78 FR 16129. L. 112–55; Section 1261, Pub. L. 112–239; ■ 11. The heading for part 124 is revised [FR Doc. 2013–16145 Filed 7–5–13; 8:45 am] E.O. 13637, 78 FR 16129. to read as set forth above. BILLING CODE 4710–25–P

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Reader Aids Federal Register Vol. 78, No. 130 Monday, July 8, 2013

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JULY

Federal Register/Code of Federal Regulations At the end of each month the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 40640, 40642 Presidential Documents 3 CFR 71...... 40076, 40078 Executive orders and proclamations 741–6000 Proclamations: The United States Government Manual 741–6000 8997...... 39949 15 CFR 740...... 40892 Other Services Executive Orders: 13646...... 39539 742...... 40892 Electronic and on-line services (voice) 741–6020 13648...... 40621 770...... 40892 Privacy Act Compilation 741–6064 Administrative Orders: 772...... 40892 Public Laws Update Service (numbers, dates, etc.) 741–6043 Memorandums: 774...... 39971, 40892 TTY for the deaf-and-hard-of-hearing 741–6086 Memorandum of June 902...... 39583 25, 2013 ...... 39535 Proposed Rules: 997...... 39638 ELECTRONIC RESEARCH 5 CFR 19 CFR World Wide Web 1201...... 39543 1209...... 39543 12...... 40388, 40627 Full text of the daily Federal Register, CFR and other publications 163...... 40627 is located at: www.fdsys.gov. 7 CFR 178...... 40627 Federal Register information and research tools, including Public 210...... 39163, 40625 21 CFR Inspection List, indexes, and links to GPO Access are located at: 220...... 40625 www.ofr.gov. 245...... 40625 21...... 39184 253...... 39548 Proposed Rules: E-mail 272...... 40625 890...... 39649 925...... 39548 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 22 CFR an open e-mail service that provides subscribers with a digital 1205...... 39551 120...... 40922 form of the Federal Register Table of Contents. The digital form 1206...... 39564 121...... 40922 of the Federal Register Table of Contents includes HTML and Proposed Rules: 123...... 40630, 40922 PDF links to the full text of each document. 1205...... 39632 124...... 40922 To join or leave, go to http://listserv.access.gpo.gov and select 10 CFR 125...... 40922 Online mailing list archives, FEDREGTOC-L, Join or leave the list 170...... 39162 502...... 39584 (or change settings); then follow the instructions. 171...... 39162 23 CFR PENS (Public Law Electronic Notification Service) is an e-mail Proposed Rules: 1200...... 39587 service that notifies subscribers of recently enacted laws. 26...... 39190 1205...... 39587 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 430...... 40403 1206...... 39587 and select Join or leave the list (or change settings); then follow 1250...... 39587 the instructions. 11 CFR 1251...... 39587 FEDREGTOC-L and PENS are mailing lists only. We cannot 104...... 40625 1252...... 39587 respond to specific inquiries. 12 CFR 1313...... 39587 1335...... 39587 Reference questions. Send questions and comments about the 911...... 39957 Federal Register system to: [email protected] 1345...... 39587 1091...... 40352 1350...... 39587 The Federal Register staff cannot interpret specific documents or 1214...... 39957 regulations. 1215...... 39959 26 CFR Reminders. Effective January 1, 2009, the Reminders, including 1703...... 39959 1...... 39973, 39984 Rules Going Into Effect and Comments Due Next Week, no longer Proposed Rules: 54...... 39870 appear in the Reader Aids section of the Federal Register. This 1002...... 39902 602...... 39973, 39984 information can be found online at http://www.regulations.gov. 1024...... 39902 Proposed Rules: 1026...... 39902 CFR Checklist. Effective January 1, 2009, the CFR Checklist no 1...... 39644 longer appears in the Federal Register. This information can be 14 CFR 27 CFR found online at http://bookstore.gpo.gov/. 39 ...... 39567, 39571, 39574 Proposed Rules: 71...... 40381, 40382 9...... 40644 FEDERAL REGISTER PAGES AND DATE, JULY 73...... 39964 91...... 39576, 39968 29 CFR 39163–39542...... 1 97...... 40383, 40385 2510...... 39870 39543–39956...... 2 121...... 39968 2590...... 39870 39957–40380...... 3 125...... 39968 40381–40624...... 5 Proposed Rules: 30 CFR 40625–40934...... 8 39 ...... 39190, 39193, 39633, 49...... 39532 40045, 40047, 40050, 40053, 40055, 40057, 40060, 40063, 33 CFR 40065, 40069, 40072, 40074, 1...... 39163

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3...... 39163 39998, 40000, 40394, 40396, 60...... 40663 79...... 39619 6...... 39163 40399, 40632, 40635 61...... 40663 Proposed Rules: 13...... 39163 Proposed Rules: 62...... 40087 2...... 39200, 39232 72...... 39163 100...... 40079 63...... 40663 5...... 39232 80...... 39163 165...... 40081, 40651 81...... 39654, 40655 43...... 39232 83...... 39163 334...... 39198 51...... 39233 100...... 39588, 40391 41 CFR 53...... 39233 101...... 39163 34 CFR Proposed Rules: 64...... 39233, 40407 103...... 39163 690...... 39613 413...... 40836 79...... 39691, 40421 104...... 39163 Proposed Rules: 414...... 40836 105...... 39163 Ch. II ...... 40084 106...... 39163 42 CFR 48 CFR 110...... 39163 36 CFR 121...... 40033 204...... 40043 114...... 39163 209...... 40043 115...... 39163 Proposed Rules: Proposed Rules: 216...... 40043 1196...... 39649 88...... 39670 116...... 39163 225...... 40043 431...... 40272 117 ...... 39163, 39591, 40393, 37 CFR 229...... 40043 40632 247...... 40043 Proposed Rules: 45 CFR 118...... 39163 Proposed Rules: 201...... 39200 5b...... 39184, 39186 133...... 39163 9904...... 40665 136...... 39163 147...... 39870 40 CFR 138...... 39163 155...... 39494 50 CFR 148...... 39163 50...... 40000 156...... 39494, 39870 149...... 39163 52...... 40011, 40013 Proposed Rules: 17...... 39628, 39836 150...... 39163 60...... 40635 1100...... 40664 622...... 39188, 40043 151...... 39163 61...... 40635 635...... 40318 161...... 39163 62...... 40015 47 CFR 679...... 39631, 40638 164...... 39163 63...... 40635 51...... 39617 Proposed Rules: 165 ...... 39163, 39592, 39594, 180 ...... 40017, 40020, 40027 53...... 39617 17 ...... 39698, 40669, 40673 39595, 39597, 39598, 39599, Proposed Rules: 63...... 39617 50...... 39273 39601, 39604, 39606, 39608, 52 ...... 39650, 39651, 39654, 64...... 38617, 40582 600...... 40687 39610, 39992, 39995, 39997, 40086, 40087, 40654, 40655 73...... 40402 622...... 39700

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