Vol. 77 Monday, No. 227 November 26, 2012

Pages 70355–70676

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 77, No. 227

Monday, November 26, 2012

Agriculture Department See National Oceanic and Atmospheric Administration See Forest Service See Patent and Trademark Office See National Institute of Food and Agriculture NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals, 70416–70417 Submissions, and Approvals, 70412–70413 Commodity Futures Trading Commission Air Force Department NOTICES NOTICES Meetings; Sunshine Act, 70420–70421 Meetings: GPS Satellite Simulator Control Working Group, 70421 Comptroller of the Currency NOTICES Alcohol, Tobacco, Firearms, and Explosives Bureau Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Agency Information Collection Activities; Proposals, Bank Secrecy Act/Money Laundering Risk Assessment, Submissions, and Approvals: 70544–70545 Application and Permit for Permanent Exportation of Firearms, 70470 Copyright Royalty Board Application To Transport Interstate or Temporarily RULES Export Certain National Firearms Act Firearms, Cost of Living Adjustment to Satellite Carrier Compulsory 70468–70469 License Royalty Rates, 70373–70374 ATF Distribution Center Contractor Survey, 70467–70468 Defense Department Employee Possessor Questionnaire, 70469–70470 See Air Force Department Furnishing of Samples, 70471 Manufacturers of Ammunition, Records and Supporting Department of Transportation Data of Ammunition Manufactured and Disposed of, See Pipeline and Hazardous Materials Safety 70469 Administration Centers for Medicare & Medicaid Services Drug Enforcement Administration NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals, 70444–70445 Submissions, and Approvals: Medicare and Medicaid Programs: Annual Reporting Requirement for Manufacturers of Approval of American Association for Accreditation of Listed Chemicals, 70472–70473 Ambulatory Surgery Facilities for Continuing CMS Application for Registration under Domestic Chemical Approval of Its Ambulatory Surgical Center Diversion Control Act of 1993, 70471–70472 Accreditation Program, 70446–70447 Meetings: Education Department Medicare Program; Advisory Panel on Hospital NOTICES Outpatient Payment, 70447–70449 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Coast Guard Mathematics and Science Partnerships Program; Annual RULES Performance Report, 70422 Drawbridge Operations: William D. Ford Federal Direct Loan Program Shark River, South Channel, Avon Township, NJ, 70372– Regulations—Servicemembers Civil Relief Act, 70373 70422–70423 PROPOSED RULES Lifesaving Equipment: Employee Benefits Security Administration Production Testing and Harmonization with International PROPOSED RULES Standards, 70390–70400 Incentives for Nondiscriminatory Wellness Programs in NOTICES Group Health Plans, 70620–70642 Mechanisms of Compliance With United States Citizenship Requirements for the Ownership of Vessels Eligible To Employment and Training Administration Engage in Restricted Trades by Publicly Traded NOTICES Companies, 70452–70453 Agency Information Collection Activities; Proposals, Meetings: Submissions, and Approvals, 70475–70477 Chemical Transportation Advisory Committee, 70453– Amended Certifications Regarding Eligibility To Apply for 70454 Worker Adjustment Assistance: RG Steel Wheeling, LLC, Wheeling, WV and Mountain Commerce Department State Carbon LLC, Follansbee, WV, 70478 See Foreign-Trade Zones Board Verso Paper Corp., Sartell Mill Division, et al., Sartell, See International Trade Administration MN, 70477–70478

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Determinations Regarding Eligibility To Apply for Worker Federal Energy Regulatory Commission Adjustment Assistance, 70478–70480 NOTICES Investigations Regarding Certifications of Eligibility To Applications for Partial Transfer of Licenses: Apply for Worker Adjustment Assistance, 70480–70481 Black Bear Hydro Partners, LLC, et al., 70423–70424 Revised Determinations on Reconsideration: Applications: Fasco, Eldon, MO, 70481–70482 Dominion Transmission, Inc., 70424–70425 Pacific Gas and Electric Co., 70424 Energy Department Public Utility District No. 1, 70426 See Energy Efficiency and Renewable Energy Office Tarrant Regional Water District, 70425–70426 See Federal Energy Regulatory Commission Combined Filings, 70426–70428 Declarations of Intentions: Energy Efficiency and Renewable Energy Office Bar None Ranch LLC, 70428–70429 NOTICES Environmental Assessments; Availability, etc.: Meetings: Gulf South Pipeline Company, LP, 70429–70431 State Energy Advisory Board, 70423 Establishment of Answer Period to Limited Emergency Protest: Environmental Protection Agency California Independent System, 70431 RULES Filings: Withdrawal of Approval of Air Quality Implementation Magic Valley Pipeline, LP, 70432 Plans and Findings of Failure To Submit Required Moss Bluff Hub, LLC, 70431–70432 Plans: Petitions of Rate Approvals: California; San Joaquin Valley; 1-Hour and 8-Hour Ozone Washington Gas Light Co., 70432 Extreme Area Plan Elements, 70376–70380 Petitions for Declaratory Orders: Enterprise Liquids Pipeline LLC, 70432–70433 Executive Office of the President Preliminary Permit Applications: See Trade Representative, Office of United States Resolute Marine Energy, Inc., 70433 Records Governing Off-the-Record Communications, 70433– Federal Aviation Administration 70434 RULES Settlement Offers: Airworthiness Directives: Petal Gas Storage, LLLC, Hattiesburg Industrial Gas Sales, Airbus Airplanes, 70366–70372 LLC, 70434 Eurocopter France Helicopters, 70360–70362 Federal Highway Administration The Boeing Company Airplanes, 70355–70360, 70362– 70365 NOTICES PROPOSED RULES Agency Information Collection Activities; Proposals, Airworthiness Directives: Submissions, and Approvals, 70528–70529 Eurocopter France Helicopters, 70382–70384 Federal Motor Carrier Safety Administration Special Conditions: Embraer S.A., Model EMB–550 Airplane; Design Roll NOTICES Maneuver for Electronic Flight Controls, 70384– Meetings; Sunshine Act, 70529 70385 Qualification of Drivers; Exemption Applications; Diabetes Mellitus, 70529–70534 Federal Communications Commission Qualification of Drivers; Exemption Applications; Vision, 70534–70538 PROPOSED RULES Foreign Carrier Entry Into U.S. Telecommunications Federal Railroad Administration Market, 70400–70407 PROPOSED RULES Review of Hearing Aid Compatibility Regulations, 70407– System Safety Program, 70409–70410 70409 NOTICES Federal Reserve System Meetings: NOTICES Technological Advisory Council, 70434–70435 Federal Open Market Committee Domestic Policy Directive, 70439 Federal Deposit Insurance Corporation Formations of, Acquisitions by, and Mergers of Bank NOTICES Holding Companies, 70439–70440 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 70435–70438 Federal Trade Commission Updated Listing of Financial Institutions in Liquidation, NOTICES 70438–70439 Proposed Consent Agreements: Hertz Global Holdings, Inc., 70440–70443 Federal Election Commission NOTICES Financial Crimes Enforcement Network Meetings; Sunshine Act, 70439 NOTICES Agency Information Collection Activities; Proposals, Federal Emergency Management Agency Submissions, and Approvals: NOTICES Change to FinCEN Form, 70545 Proposed Flood Hazard Determinations; Correction, 70454– Currency Transaction Reports Currently Approved 70456 Electronic Data Fields, 70547–70548

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Suspicious Activity Reports Currently Approved Indian Affairs Bureau Electronic Data Fields, 70545–70546 NOTICES Environmental Impact Statements; Availability, etc.: Fish and Wildlife Service Ho-Chunk Nation Beloit Casino Project, Beloit, Rock PROPOSED RULES County, WI, 70460–70461 Endangered and Threatened Wildlife and Plants: Sale, Consumption and Possession of Alcoholic Beverages Initiation of Status Review and 5-Year Review of Preble’s at the Jackson Rancheria, 70461–70462 Meadow Jumping Mouse, 70410–70411 NOTICES Interior Department Applications for Endangered Species Permits, 70456–70457 See Fish and Wildlife Service Endangered and Threatened Wildlife and Plants Recovery See Indian Affairs Bureau Permit Applications, 70457 See Land Management Bureau Permit Applications: Endangered Species; Marine Mammals, 70457–70460 Internal Revenue Service PROPOSED RULES Food and Drug Administration Incentives for Nondiscriminatory Wellness Programs in NOTICES Group Health Plans, 70620–70642 Medical Device User Fee and Modernization Act: Web Site Location of Fiscal Year 2013 Proposed International Trade Administration Guidance Development, 70449–70450 NOTICES Meetings: Antidumping Duty Administrative Reviews; Results, Risk Communication Advisory Committee, 70450–70451 Extensions, Amendments, etc.: Honey from the People’s Republic of China, 70417–70419 Foreign Assets Control Office NOTICES International Trade Commission Blocked Persons and Property: NOTICES Designation of One Individual Who Commits, Threatens Investigations: To Commit, or Supports Terrorism, 70548 Certain Electronic Devices, Including Wireless Foreign-Trade Zones Board Communication Devices, etc., 70464–70466 NOTICES Proposed Production Activity: Judicial Conference of the United States Foreign-Trade Zone 7, Mayaguez, PR, Pepsi Cola Puerto NOTICES Rico Distributing, LLC, 70417 Meetings: Judicial Conference Committee on Rules of Practice and Forest Service Procedure, 70466 NOTICES Agency Information Collection Activities; Proposals, Justice Department Submissions, and Approvals: See Alcohol, Tobacco, Firearms, and Explosives Bureau Flathead and McKenzie Rivers and McKenzie National See Drug Enforcement Administration Recreational Trail Visitor Surveys, 70413–70414 See Juvenile Justice and Delinquency Prevention Office Environmental Impact Statements; Availability, etc.: NOTICES Vail Mountain Recreation Enhancements Projects, White Agency Information Collection Activities; Proposals, River National Forest, Eagle County, CO, 70414– Submissions, and Approvals: 70415 Office for Victims of Crime Training and Technical Assistance Center Feedback Form Package, 70467 Health and Human Services Department Threats of Explosive Device Violence at Institutions of See Centers for Medicare & Medicaid Services Higher Education, 70466–70467 See Food and Drug Administration See National Institutes of Health Juvenile Justice and Delinquency Prevention Office PROPOSED RULES NOTICES Incentives for Nondiscriminatory Wellness Programs in Agency Information Collection Activities; Proposals, Group Health Plans, 70620–70642 Submissions, and Approvals: Patient Protection and Affordable Care Act: Census of Juveniles in Residential Placement, 70473 Health Insurance Market Rules; Rate Review, 70584– 70617 Labor Department Standards Related to Essential Health Benefits, Actuarial See Employee Benefits Security Administration Value, and Accreditation, 70644–70676 See Employment and Training Administration NOTICES NOTICES Agency Information Collection Activities; Proposals, Child Labor, Forced Labor, and Forced or Indentured Child Submissions, and Approvals, 70443 Labor in the Production of Goods, etc., 70473–70474 Health Information Technology Policy Committee: Stage 3 Definition of Meaningful Use of Electronic Health Land Management Bureau Records, Request for Comment, 70444 NOTICES Public Land Orders: Homeland Security Department Alaska, 70462–70463 See Coast Guard Withdrawal of Public Lands for Protection of Proposed See Federal Emergency Management Agency Expansion of Twentynine Palms, 70463–70464

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Library of Congress Overseas Private Investment Corporation See Copyright Royalty Board NOTICES Meetings; Sunshine Act, 70488 National Aeronautics and Space Administration NOTICES Patent and Trademark Office Establishment of Applied Sciences Advisory Committee, PROPOSED RULES 70482 Requirements for Recordation of Real-Party-in-Interest Intent To Grant Exclusive Licenses, 70482–70483 Information Throughout Application Pendency and Patent Term: National Highway Traffic Safety Administration Meetings; Request for Comments, 70385–70389 NOTICES Personnel Management Office Final Decision That Certain Canadian-Certified Vehicles PROPOSED RULES Are Eligible for Importation, 70538–70541 General Schedule Locality Pay Areas, 70381–70382 Petitions for Decision of Importation Eligibility: Nonconforming 2009 Porsche 911 (997) Passenger Cars, Pipeline and Hazardous Materials Safety Administration 70541–70542 NOTICES Meetings: National Institute of Food and Agriculture Gas Pipeline Advisory Committee and the Liquid NOTICES Pipeline Advisory Committee, 70543 Meetings: Youth Farm Safety Education and Certification Postal Regulatory Commission Competitive Grants Program, 70416 NOTICES New Postal Products, 70488–70492 National Institutes of Health NOTICES Securities and Exchange Commission Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Agency Information Collection Activities; Proposals, Methodological Studies for Population Assessment of Submissions, and Approvals, 70492–70496 Tobacco and Health Study, 70451 Meetings; Sunshine Act, 70496 Report of Evidence-Based Methodology Workshop on Self-Regulatory Organizations; Proposed Rule Changes: Polycystic Ovary Syndrome, 70451–70452 BATS Exchange, Inc., 70500–70511 C2 Options Exchange, Inc., 70496–70500 National Oceanic and Atmospheric Administration Chicago Board Options Exchange, Inc., 70511–70515, PROPOSED RULES 70517–70522 Highly Migratory Species: Financial Industry Regulatory Authority, Inc., 70515– Atlantic Shark Management Measures, 70552–70582 70517 NOTICES NYSE MKT LLC, 70522–70525 Meetings: Caribbean Fishery Management Council, 70419–70420 Small Business Administration Pacific Fishery Management Council, 70420 NOTICES Agency Information Collection Activities; Proposals, National Science Foundation Submissions, and Approvals, 70525 NOTICES State Department Meetings: NOTICES President’s Committee on the National Medal of Science, Meetings: 70483 Shipping Coordinating Committee, 70525–70526 Proposal Review Panel for Computing Communication Foundations, 70483 Trade Representative, Office of United States Requests for Comments: NOTICES Federal Cybersecurity Research and Development Meetings: Strategic Plan, 70483–70484 Industry Trade Advisory Committee on Small and Minority Business, 70526–70527 Nuclear Regulatory Commission Requests for Comments: NOTICES Compliance With Telecommunications Trade Draft Regulatory Guides: Agreements, 70527–70528 Preoperational Testing of Onsite Electric Power Systems To Verify Proper Load Group Assignments, Electrical Transportation Department Separation, and Redundancy, 70484–70486 See Federal Aviation Administration Environmental Impact Statements; Availability, etc.: See Federal Highway Administration Dewey-Burdock In-Situ Uranium Recovery Project in See Federal Motor Carrier Safety Administration Custer and Fall River Counties, SD, 70486–70487 See Federal Railroad Administration Establishment of Atomic Safety and Licensing Boards: See National Highway Traffic Safety Administration Southern California Edison Co., 70487–70488 See Pipeline and Hazardous Materials Safety Meetings; Sunshine Act, 70488 Administration NOTICES Office of United States Trade Representative Agency Information Collection Activities; Proposals, See Trade Representative, Office of United States Submissions, and Approvals, 70528

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Treasury Department Part III See Comptroller of the Currency Health and Human Services Department, 70584–70617 See Financial Crimes Enforcement Network See Foreign Assets Control Office See Internal Revenue Service Part IV Health and Human Services Department, 70620–70642 Veterans Affairs Department Labor Department, Employee Benefits Security RULES Administration, 70620–70642 Servicemembers’ Group Life Insurance: Treasury Department, Internal Revenue Service, 70620– Stillborn Child Coverage, 70374–70376 70642 PROPOSED RULES Eligibility for Financial Assistance in Purchase of Automobile or Other Conveyance and Adaptive Part V Equipment: Health and Human Services Department, 70644–70676 Disabled Veterans and Members of the Armed Forces With Severe Burn Injuries; Correction, 70389–70390 NOTICES Meetings: Reader Aids Advisory Committee on Disability Compensation, 70549 Consult the Reader Aids section at the end of this page for National Research Advisory Council, 70548–70549 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 Commerce Department, National Oceanic and Atmospheric archives, FEDREGTOC-L, Join or leave the list (or change Administration, 70552–70582 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.

5 CFR Proposed Rules: 531...... 70381 14 CFR 39 (6 documents) ...... 70355, 70357, 70360, 70362, 70366, 70369 Proposed Rules: 25...... 70384 39...... 70382 26 CFR Proposed Rules: 54...... 70620 29 CFR Proposed Rules: 2590...... 70620 33 CFR 117...... 70372 37 CFR 386...... 70373 Proposed Rules: 3...... 70385 38 CFR 9...... 70374 Proposed Rules: 3...... 70389 40 CFR 52...... 70376 45 CFR Proposed Rules: 144...... 70584 146...... 70620 147 (3 documents) ...... 70584, 70620, 70644 150...... 70584 154...... 70584 155...... 70644 156 (2 documents) ...... 70584, 70644 46 CFR Proposed Rules: 160...... 70390 164...... 70390 47 CFR Proposed Rules: 1...... 70400 20...... 70407 63...... 70400 49 CFR Proposed Rules: 270...... 70409 50 CFR Proposed Rules: 17...... 70410 635...... 70552

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Rules and Regulations Federal Register Vol. 77, No. 227

Monday, November 26, 2012

This section of the FEDERAL REGISTER https://www.myboeingfleet.com. You Request To Remove Paragraph (h) of contains regulatory documents having general may review copies of the referenced the NPRM (77 FR 34876, June 12, 2012) applicability and legal effect, most of which service information at the FAA, Boeing requested that paragraph (h) of are keyed to and codified in the Code of Transport Airplane Directorate, 1601 Federal Regulations, which is published under the NPRM (77 FR 34876, June 12, 2012), 50 titles pursuant to 44 U.S.C. 1510. Lind Avenue SW., Renton, Washington. ‘‘Exception to the Service Bulletin,’’ be For information on the availability of removed from the NPRM. Boeing stated The Code of Federal Regulations is sold by this material at the FAA, call 425–227– that paragraph (h) of the NPRM requires the Superintendent of Documents. Prices of 1221. repair of the APU power feeder, new books are listed in the first FEDERAL Examining the AD Docket insulation blankets, and clamps, if no REGISTER issue of each week. primer discoloration or structural You may examine the AD docket on damage is found. Boeing stated that paragraph (h) of the NPRM is redundant DEPARTMENT OF TRANSPORTATION the Internet at http:// www.regulations.gov; or in person at the to steps 3.B.6.f.(2) of the Federal Aviation Administration Docket Management Facility between 9 Accomplishment Instructions of Boeing a.m. and 5 p.m., Monday through Alert Service Bulletin 777–24A0119, 14 CFR Part 39 Friday, except Federal holidays. The AD dated November 11, 2011, which docket contains this AD, the regulatory accomplishes the replacement and [Docket No. FAA–2012–0595; Directorate evaluation, any comments received, and repair of all damaged components found Identifier 2012–NM–055–AD; Amendment during the progressive detailed 39–17262; AD 2012–23–06] other information. The address for the Docket Office (phone: 800–647–5527) is inspection outlined in that service RIN 2120–AA64 Document Management Facility, U.S. bulletin. We disagree with Boeing’s request to Department of Transportation, Docket Airworthiness Directives; The Boeing remove paragraph (h) of this AD. Step Operations, M–30, West Building Company Airplanes 3.B.6.f.(2) of the Accomplishment Ground Floor, Room W12–140, 1200 Instructions of Boeing Alert Service AGENCY: Federal Aviation New Jersey Avenue SE., Washington, Bulletin 777–24A0119, dated November Administration (FAA), DOT. DC 20590. 11, 2011, is part of the requirements of ACTION: Final rule. FOR FURTHER INFORMATION CONTACT: step 3.B.6.b. of that service bulletin, SUMMARY: We are adopting a new Georgios Roussos, Aerospace Engineer, which states, ‘‘If visual indications of airworthiness directive (AD) for certain Systems and Equipment Branch, ANM– heat damage are found, do steps 6.c The Boeing Company Model 777 130S, FAA, Seattle Aircraft Certification through 6.f.’’ However, if no primer airplanes. This AD was prompted by Office, 1601 Lind Avenue SW., Renton, discoloration or structural deterioration reports of failure of wire support clamps WA 98057–3356; phone: (425) 917– is detected after doing the inspection in the forward section of the aft pressure 6482; fax: (425) 917–6590; email: specified in 3.B.6.a. of that service bulkhead. This AD requires a detailed [email protected]. bulletin, the service information does inspection of the clamps on the power not specify which step to accomplish feeder cable of the auxiliary power unit SUPPLEMENTARY INFORMATION: next, which is repairing the APU power feeder cable and insulation blanket, and (APU) to determine if certain clamps are Discussion installed, and related investigative and replacing the existing clamps. We have corrective actions if necessary. We are We issued a notice of proposed not changed this final rule in this issuing this AD to prevent failure of the rulemaking (NPRM) to amend 14 CFR regard. clamp, which could result in wire part 39 to include an AD that would Request To Clarify the ‘‘Differences chafing and potential arcing and apply to the specified products. That Between the Proposed AD and the consequent fire in section 48 (a NPRM published in the Federal Service Information’’ Section of the flammable fluid leakage zone) or heat Register on June 12, 2012 (77 FR 34876). NPRM (77 FR 34876, June 12, 2012) damage to the APU power feeder cable, That NPRM proposed to require a FedEx requested clarification insulation blankets, or pressure detailed inspection of the clamps on the regarding the statement in the bulkhead. power feeder cable of the APU to ‘‘Differences Between the Proposed AD DATES: This AD is effective December determine if certain clamps are and the Service Information’’ section of 31, 2012. installed, and related investigative and the NPRM (77 FR 34876, June 12, 2012), The Director of the Federal Register corrective actions if necessary. and the statement in Boeing Alert approved the incorporation by reference Comments Service Bulletin 777–24A0119, dated of a certain publication listed in the AD November 11, 2011, to contact Boeing as of December 31, 2012. We gave the public the opportunity to for repair instructions. FedEx stated ADDRESSES: For service information participate in developing this AD. The that, in the ‘‘Differences Between the identified in this AD, contact Boeing following presents the comments Proposed AD and the Service Commercial Airplanes, Attention: Data received on the proposal and the FAA’s Information’’ section, the repairs will be & Services Management, P.O. Box 3707, response to each comment. American addressed in one of the following ways: MC 2H–65, Seattle, Washington 98124– Airlines and United Airlines stated they In accordance with a method approved 2207; telephone 206–544–5000, will incorporate the requirements of the by the FAA, or using data that meets the extension 1; fax 206–766–5680; Internet NPRM (77 FR 34876, June 12, 2012). certification basis of the airplane, and

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has been approved by Boeing Accomplishment Instructions of Boeing standard structural repair methods in Commercial Airplanes Organization Alert Service Bulletin 777–24A0119, Boeing Alert Service Bulletin 777– Designation Authorization (ODA). dated November 11, 2011, requires an 24A0119, dated November 11, 2011; FedEx stated that it would like to know AMOC approval. Also, as stated in however, we have not received any if any repair design by the airline will paragraph (i) of this AD, where that information from the manufacturer on require an alternative method of service bulletin specifies to contact whether that service bulletin will be compliance (AMOC), and whether Boeing for the repair, the repair must be revised. We have not changed this final Boeing will provide repair methods in a done in accordance with the procedures rule in this regard. revised service bulletin, or if the airline specified in paragraph (j) of this AD, will have to provide Boeing with which is the ‘‘Alternative Methods of Conclusion information on the damage and request Compliance (AMOCs)’’ paragraph of this We reviewed the relevant data, a repair. FedEx stated that standard AD. The AMOC requests, whether the considered the comments received, and repair methods, if listed in the service structural repair design is developed by determined that air safety and the information, would expedite the repair, the airline or by Boeing engineering, public interest require adopting the AD especially if the repair would need to be could either be approved by the as proposed. ‘‘bought off’’ by an airline certified Manager of the Seattle Aircraft structures inspector. Certification Office, or by the Boeing Costs of Compliance We agree to clarify the intent of the ODA that has been authorized by the ‘‘Differences Between the Proposed AD Manager, Seattle ACO, to approve We estimate that this AD affects 164 and the Service Information’’ section in AMOC requests specifically for this AD. airplanes of U.S. registry. the NPRM (77 FR 34876, June 12, 2012). We understand FedEx’s concern on the We estimate the following costs to Any deviation from the potential delays due to the absence of comply with this AD:

ESTIMATED COSTS

Cost per Cost on U.S. Action Labor cost Parts cost product operators

Inspection and Clamp Replacement ...... 8 work-hours × $85 per hour = $680 ...... $500 $1,180 $193,520

We estimate the following costs to do required based on the results of the determining the number of aircraft that any necessary repairs that would be inspection. We have no way of might need this repair:

ON-CONDITION COSTS

Cost per Action Labor cost Parts cost product

Inspection and Repair of the Pressure Bulkhead ...... 48 work-hours × $85 per hour = $4,080 ...... $0 $4,080

Authority for This Rulemaking Regulatory Findings List of Subjects in 14 CFR Part 39 Title 49 of the United States Code This AD will not have federalism Air transportation, Aircraft, Aviation specifies the FAA’s authority to issue implications under Executive Order safety, Incorporation by reference, rules on aviation safety. Subtitle I, 13132. This AD will not have a Safety. section 106, describes the authority of substantial direct effect on the States, on Adoption of the Amendment the FAA Administrator. Subtitle VII: the relationship between the national Aviation Programs, describes in more government and the States, or on the Accordingly, under the authority detail the scope of the Agency’s distribution of power and delegated to me by the Administrator, authority. responsibilities among the various the FAA amends 14 CFR part 39 as We are issuing this rulemaking under levels of government. follows: the authority described in Subtitle VII, For the reasons discussed above, I PART 39—AIRWORTHINESS Part A, Subpart III, Section 44701: certify that this AD: DIRECTIVES ‘‘General requirements.’’ Under that (1) Is not a ‘‘significant regulatory section, Congress charges the FAA with action’’ under Executive Order 12866, ■ 1. The authority citation for part 39 promoting safe flight of civil aircraft in (2) Is not a ‘‘significant rule’’ under continues to read as follows: air commerce by prescribing regulations DOT Regulatory Policies and Procedures Authority: 49 U.S.C. 106(g), 40113, 44701. for practices, methods, and procedures (44 FR 11034, February 26, 1979), the Administrator finds necessary for § 39.13 [Amended] safety in air commerce. This regulation (3) Will not affect intrastate aviation ■ is within the scope of that authority in Alaska, and 2. The FAA amends § 39.13 by adding the following new airworthiness because it addresses an unsafe condition (4) Will not have a significant directive (AD): that is likely to exist or develop on economic impact, positive or negative, products identified in this rulemaking on a substantial number of small entities 2012–23–06 The Boeing Company: action. Amendment 39–17262; Docket No. under the criteria of the Regulatory FAA–2012–0595; Directorate Identifier Flexibility Act. 2012–NM–055–AD.

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(a) Effective Date CFR 39.19. In accordance with 14 CFR 39.19, DEPARTMENT OF TRANSPORTATION This AD is effective December 31, 2012. send your request to your principal inspector or local Flight Standards District Office, as Federal Aviation Administration (b) Affected ADs appropriate. If sending information directly None. to the manager of the ACO, send it to the attention of the person identified in the 14 CFR Part 39 (c) Applicability Related Information section of this AD. [Docket No. FAA–2012–0591; Directorate This AD applies to The Boeing Company Information may be emailed to: 9-ANM- Identifier 2012–NM–015–AD; Amendment Model 777–200, –200LR, –300, –300ER, and [email protected]. 39–17264; AD 2012–23–08] 777F series airplanes, certificated in any (2) Before using any approved AMOC, category, as identified in Boeing Alert notify your appropriate principal inspector, RIN 2120–AA64 Service Bulletin 777–24A0119, dated or lacking a principal inspector, the manager November 11, 2011. of the local flight standards district office/ Airworthiness Directives; The Boeing certificate holding district office. Company Airplanes (d) Subject (3) An AMOC that provides an acceptable Joint Aircraft System Component (JASC)/ level of safety may be used for any structural AGENCY: Federal Aviation Air Transport Association (ATA) of America repair required by this AD if it is approved Administration (FAA), DOT. Code 2421; AC Generator-Alternator. by the Boeing Commercial Airplanes ACTION: Final rule. Organization Designation Authorization (e) Unsafe Condition (ODA) that has been authorized by the SUMMARY: We are superseding an This AD was prompted by reports of failure Manager, Seattle ACO, to make those existing airworthiness directive (AD) for of wire support clamps in the forward section findings. For a structural repair method to be certain The Boeing Company Model of the aft pressure bulkhead. We are issuing approved, the repair must meet the certification basis of the airplane, and the 737–600, –700, –700C, –800, and –900 this AD to prevent failure of the clamp, series airplanes. That AD currently which could result in wire chafing and approval must specifically refer to this AD. requires replacing the drain tube potential arcing and consequent fire in (k) Related Information section 48 (a flammable fluid leakage zone) assemblies and support clamps on the or heat damage to the auxiliary power unit For more information about this AD, aft fairing of the engine struts. This new (APU) power feeder cable, insulation contact Georgios Roussos, Aerospace AD requires replacing the drain tube blankets, or pressure bulkhead. Engineer, Systems and Equipment Branch, assembly of the left and right engine ANM–130S, FAA, Seattle Aircraft (f) Compliance Certification Office, 1601 Lind Avenue SW., strut aft fairings with a new one, which includes an integral support clamp Comply with this AD within the Renton, WA 98057–3356; phone: (425) 917– compliance times specified, unless already 6482; fax: (425) 917–6590; email: made of nickel alloy 625. This AD also done. [email protected]. adds airplanes to the applicability. This (l) Material Incorporated by Reference AD was prompted by a report of a (g) Detailed Inspection of the Clamps broken drain tube assembly on the left Within 48 months after the effective date (1) The Director of the Federal Register engine strut at the clamp support of this AD: Do a detailed inspection of the approved the incorporation by reference (IBR) of the service information listed in this location under the aft fairing clamps on the APU power feeder cable to compartment, inside the heat shield determine if TA027063 clamps are installed, paragraph under 5 U.S.C. 552(a) and 1 CFR and all applicable related investigative and part 51. cavity of the aft fairing. There have also corrective actions, in accordance with the (2) You must use this service information been reports of tube wear at this clamp Accomplishment Instructions of Boeing Alert as applicable to do the actions required by location on additional airplanes. We are Service Bulletin 777–24A0119, dated this AD, unless the AD specifies otherwise. issuing this AD to prevent failure of the November 11, 2011, except as required by (i) Boeing Alert Service Bulletin 777– drain tube assemblies and clamps on the 24A0119, dated November 11, 2011. paragraphs (h) and (i) of this AD. Do all aft fairings of the engine struts. Such related investigative and corrective actions (ii) Reserved. (3) For Boeing service information failure could allow leaked flammable before further flight. identified in this AD, contact Boeing fluids in the drain systems to discharge (h) Exception to the Service Information Commercial Airplanes, Attention: Data & onto the heat shields of the aft fairings If during any inspection of the fuselage Services Management, P.O. Box 3707, MC of the engine struts, which could result structure required by paragraph (g) of this 2H–65, Seattle, Washington 98124–2207; in an undetected and uncontrollable AD, no primer discoloration or structural telephone 206–544–5000, extension 1; fax fire. deterioration is found, before further flight, 206–766–5680; Internet https:// DATES: repair the APU power feeder cable and www.myboeingfleet.com. This AD is effective December insulation blanket and replace the existing (4) You may view this service information 31, 2012. clamps, in accordance with steps 3.B.7, 3.B.8, at the FAA, Transport Airplane Directorate, The Director of the Federal Register and 3.B.9 of the Accomplishment 1601 Lind Avenue SW., Renton, Washington. approved the incorporation by reference Instructions of Boeing Alert Service Bulletin For information on the availability of this of a certain publication listed in the AD 777–24A0119, dated November 11, 2011. material at the FAA, call 425–227–1221. as of December 31, 2012. (5) You may view this service information (i) Repair Approval that is incorporated by reference at the ADDRESSES: For service information Where Boeing Alert Service Bulletin 777– National Archives and Records identified in this AD, contact Boeing 24A0119, dated November 11, 2011, specifies Administration (NARA). For information on Commercial Airplanes, Attention: Data to do the repair in accordance with the the availability of this material at NARA, call & Services Management, P. O. Box 3707, instruction from Boeing, before further flight, 202–741–6030, or go to: http:// MC 2H–65, Seattle, WA 98124–2207; repair using a method approved in www.archives.gov/federal-register/cfr/ibr- telephone 206–544–5000, extension 1; locations.html. accordance with the procedures specified in fax 206–766–5680; Internet https:// paragraph (j) of this AD. Issued in Renton, Washington, on www.myboeingfleet.com. You may November 8, 2012. (j) Alternative Methods of Compliance review copies of the referenced service (AMOCs) Ali Bahrami, information at the FAA, Transport (1) The Manager, Seattle Aircraft Manager, Transport Airplane Directorate, Airplane Directorate, 1601 Lind Avenue Certification Office (ACO), FAA, has the Aircraft Certification Service. SW., Renton, WA. For information on authority to approve AMOCs for this AD, if [FR Doc. 2012–27908 Filed 11–23–12; 8:45 am] the availability of this material at the requested using the procedures found in 14 BILLING CODE 4910–13–P FAA, call 425–227–1221.

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Examining the AD Docket Regulatory_and_Guidance_Library/ Instructions of Boeing Special Attention You may examine the AD docket on rgstc.nsf/0/408E012E008616A78 Service Bulletin 737–54–1043, Revision the Internet at http:// 62578880060456C?OpenDocument& 2, dated November 4, 2011, is the only www.regulations.gov; or in person at the Highlight=st00830se) does not affect the action required by this AD. If operators Docket Management Facility between 9 ability to accomplish the actions have previously accomplished the a.m. and 5 p.m., Monday through required by this AD. Therefore, for actions specified in Boeing Special Friday, except Federal holidays. The AD airplanes on which STC ST00830SE is Attention Service Bulletin 737–54– docket contains this AD, the regulatory installed, a ‘‘change in product’’ 1043, Revision 2, dated November 4, evaluation, any comments received, and alternative method of compliance 2011, they are in compliance with the other information. The address for the (AMOC) approval request is not AD, as specified in paragraph (f) of this necessary to comply with the AD. No change has been made to this Docket Office (phone: 800–647–5527) is requirements of 14 CFR 39.17 section AD in this regard. Document Management Facility, U.S. 39.17 of the Federal Aviation Department of Transportation, Docket Request To Clarify Conflicting AMOC Regulations. For all other AMOC Operations, M–30, West Building Statements requests, the operator must request Ground Floor, Room W12–140, 1200 approval for an AMOC in accordance Alaska Airlines (ASA) requested New Jersey Avenue SE., Washington, with the procedures specified in clarification regarding conflicting DC 20590. paragraph (h) of this AD. AMOC statements. ASA stated that FOR FURTHER INFORMATION CONTACT: paragraph (h)(3) of the NPRM (77 FR Ansel James, Aerospace Engineer, Request To Extend Compliance Time 34879, June 12, 2012) does not allow Propulsion Branch, ANM–140S, FAA, American Airlines (AAL) requested AMOCs approved for AD 2008–08–24, Seattle Aircraft Certification Office, that the compliance time specified in Amendment 39–15478 (73 FR 21242, 1601 Lind Avenue SW., Renton, WA paragraph (g) of the NPRM (77 FR April 21, 2008), to be used for the 98057–3356; phone: 425–917–6497; fax: 34879, June 12, 2012) be extended from actions proposed in the NPRM. 425–917–6590; email: 60 to 72 months. AAL stated that the However, ASA pointed out that Boeing [email protected]. routine maintenance schedule does not Special Attention Service Bulletin 737– SUPPLEMENTARY INFORMATION: allow for accomplishment of the 54–1043, Revision 2, dated November 4, replacements during the proposed 2011, states that it is an approved Discussion compliance time. AAL stated that the AMOC for paragraphs (f) and (h) of AD We issued a notice of proposed compliance time could be extended for 2008–08–24. ASA also requested credit rulemaking (NPRM) to amend 14 CFR all airplanes without jeopardizing for actions done previously using part 39 to supersede AD 2008–08–24, aviation safety. Boeing Special Attention Service Amendment 39–15478 (73 FR 21242, We disagree with the request to Bulletin 737–54–1043, Revision 2, dated April 21, 2008). That AD applies to the change the compliance time. In November 4, 2011. specified products. The NPRM developing an appropriate compliance We agree to clarify. Paragraph 1.F., published in the Federal Register on time for this AD, we considered not ‘‘Approval,’’ of Boeing Special Attention June 12, 2012 (77 FR 34879). That only the safety implications, but the Service Bulletin 737–54–1043, Revision NPRM proposed to require replacing the manufacturer’s recommendations, the 2, dated November 4, 2011, states that drain tube assembly of the left and right availability of required parts, and the the actions specified in that service engine strut aft fairings with a new one practical aspect of accomplishing the bulletin are approved as an AMOC for which includes an integral support actions within an interval of time that paragraphs (f) and (h) of AD 2008–08– clamp made of nickel alloy 625. That corresponds to typical scheduled 24, Amendment 39–15478 (73 FR NPRM also proposed to add airplanes to maintenance for affected operators. 21242, April 21, 2008). That AMOC the applicability. Under the provisions of paragraph (h) of approval allows operators to use Boeing the final rule, however, we may Special Attention Service Bulletin 737– Comments consider requests for adjustments to the 54–1043, Revision 2, dated November 4, We gave the public the opportunity to compliance time if data are submitted to 2011, to comply with AD 2008–08–24. participate in developing this AD. The substantiate that such adjustments However, on the effective date of this following presents the comments would provide an acceptable level of AD, AD 2008–08–24 will be superseded received on the proposal (77 FR 34879, safety. No change has been made to this (i.e., will no longer exist), and the fact June 12, 2012) and the FAA’s response AD in this regard. that Boeing Special Attention Service to each comment. Bulletin 737–54–1043, Revision 2, dated Request To Revise Paragraph (f) of the November 4, 2011, refers to AD 2008– Support for the NPRM (77 FR 34879, NPRM (77 FR 34879, June 12, 2012) To 08–24 will be moot. This AD requires June 12, 2012) Include Terminating Action the accomplishment of the actions of United Airlines supports the 60- AAL requested that we revise that service bulletin as the primary month compliance time specified in the paragraph (f) of the NPRM (77 FR 34879, means of compliance with this AD, and NPRM (77 FR 34879, June 12, 2012). June 12, 2012) to state that not as an AMOC. accomplishment of Boeing Special The intent of paragraph (h)(3) of this Clarification of Effect of Winglet Attention Service Bulletin 737–54– AD is to prevent the use of any AMOC Installation 1043, Revision 2, dated November 4, for AD 2008–08–24, Amendment 39– Aviation Partners Boeing stated that 2011, constitutes a terminating action 15478 (73 FR 21242, April 21, 2008), as accomplishing the supplemental type for the specified unsafe condition and an AMOC for this new AD. This new certificate (STC) ST00830SE does not that no further action is required. AD requires accomplishment of Boeing affect the actions specified in the NPRM We disagree with the request to revise Special Attention Service Bulletin 737– (77 FR 34879, June 12, 2012). paragraph (f) of the NPRM (77 FR 34879, 54–1043, Revision 2, dated November 4, We concur. We have added new June 12, 2012). The action required by 2011. No credit is given for Boeing paragraph (c)(2) to this AD, which states paragraph (g) of this AD, which is Special Attention Service Bulletin 737– that STC ST00830SE (http://rgl.faa.gov/ specified in the Accomplishment 54–1043, Revision 1, dated October 19,

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2009; or Boeing Special Attention Conclusion 34879, June 12, 2012) for correcting the Service Bulletin 737–54–1043, dated unsafe condition; and May 2, 2007; because additional work is We reviewed the relevant data, • Do not add any additional burden necessary for airplanes on which Boeing considered the comments received, and upon the public than was already Special Attention Service Bulletin 737– determined that air safety and the proposed in the NPRM (77 FR 34879, 54–1043, Revision 1, dated October 19, public interest require adopting the AD June 12, 2012). with the changes described previously 2009; or Boeing Special Attention Costs of Compliance Service Bulletin 737–54–1043, dated and minor editorial changes. We have May 2, 2007; was accomplished. No determined that these minor changes: We estimate that this AD affects 1,098 airplanes of U.S. registry. change has been made to this AD in this • Are consistent with the intent that We estimate the following costs to regard. was proposed in the NPRM (77 FR comply with this AD:

ESTIMATED COSTS

Cost per prod- Cost on U.S. Action Labor cost Parts cost uct operators

Replacement ...... 14 work-hours × $85 per hour = $1,190 ...... $12,326 $13,516 $14,840,568

Authority for This Rulemaking under the criteria of the Regulatory (2) Supplemental Type Certificate (STC) Flexibility Act. ST00830SE (http://rgl.faa.gov/Regulatory_ Title 49 of the United States Code and_Guidance_Library/rgstc.nsf/0/408E0 specifies the FAA’s authority to issue List of Subjects in 14 CFR Part 39 12E008616A7862578880060456C?Open rules on aviation safety. Subtitle I, Document&Highlight=st00830se) does not Air transportation, Aircraft, Aviation Section 106, describes the authority of affect the ability to accomplish the actions the FAA Administrator. Subtitle VII, safety, Incorporation by reference, required by this AD. Therefore, for airplanes Aviation Programs, describes in more Safety. on which STC ST00830SE is installed, a detail the scope of the Agency’s Adoption of the Amendment ‘‘change in product’’ alternative method of authority. compliance (AMOC) approval request is not We are issuing this rulemaking under Accordingly, under the authority necessary to comply with the requirements of the authority described in Subtitle VII, delegated to me by the Administrator, 14 CFR 39.17. For all other AMOC requests, Part A, Subpart III, Section 44701, the FAA amends 14 CFR part 39 as the operator must request approval for an follows: AMOC in accordance with the procedures ‘‘General requirements.’’ Under that specified in paragraph (h) of this AD. section, Congress charges the FAA with PART 39—AIRWORTHINESS (d) Subject promoting safe flight of civil aircraft in DIRECTIVES air commerce by prescribing regulations Joint Aircraft System Component (JASC)/ for practices, methods, and procedures Air Transport Association (ATA) of America ■ 1. The authority citation for part 39 the Administrator finds necessary for Code 54, Nacelles/pylons. continues to read as follows: safety in air commerce. This regulation (e) Unsafe Condition is within the scope of that authority Authority: 49 U.S.C. 106(g), 40113, 44701. because it addresses an unsafe condition This AD was prompted by a report of a broken drain tube assembly on the aft fairing that is likely to exist or develop on § 39.13 [Amended] of the left engine strut at the clamp support products identified in this rulemaking ■ 2. The FAA amends § 39.13 by location under the aft fairing compartment, action. removing airworthiness directive (AD) inside the heat shield cavity of the aft fairing. Regulatory Findings 2008–08–24, Amendment 39–15478 (73 There have also been reports of tube wear at FR 21242, April 21, 2008), and adding the clamp location on additional airplanes. We have determined that this AD will the following new AD: We are issuing this AD to prevent failure of not have federalism implications under the drain tube assemblies and clamps on the Executive Order 13132. This AD will 2012–23–08 The Boeing Company: aft fairings of the engine struts. Such failure not have a substantial direct effect on Amendment 39–17264; Docket No. could allow leaked flammable fluids in the FAA–2012–0591; Directorate Identifier drain systems to discharge onto the heat the States, on the relationship between 2012–NM–015–AD. the national government and the States, shields of the aft fairings of the engine struts, or on the distribution of power and (a) Effective Date which could result in an undetected and responsibilities among the various This airworthiness directive (AD) is uncontrollable fire. levels of government. effective December 31, 2012. (f) Compliance For the reasons discussed above, I (b) Affected ADs Comply with this AD within the certify that this AD: This AD supersedes AD 2008–08–24, compliance times specified, unless already (1) Is not a ‘‘significant regulatory Amendment 39–15478 (73 FR 21242, April done. action’’ under Executive Order 12866, 21, 2008). (g) Replacement (2) Is not a ‘‘significant rule’’ under (c) Applicability DOT Regulatory Policies and Procedures Within 60 months after the effective date (44 FR 11034, February 26, 1979), (1) This AD applies to The Boeing of this AD, replace the drain tube assemblies and support clamps on the aft fairing of the (3) Will not affect intrastate aviation Company Model 737–600, –700, –700C, –800, –900, and –900ER series airplanes, struts of engines 1 and 2 with new drain tube in Alaska, and certificated in any category, as identified in assemblies and clamps, in accordance with (4) Will not have a significant Boeing Special Attention Service Bulletin the Accomplishment Instructions of Boeing economic impact, positive or negative, 737–54–1043, Revision 2, dated November 4, Special Attention Service Bulletin 737–54– on a substantial number of small entities 2011. 1043, Revision 2, dated November 4, 2011.

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(h) Alternative Methods of Compliance Issued in Renton, Washington, on 2601 Meacham Blvd., Room 663, Fort (AMOCs) November 9, 2012. Worth, Texas 76137. (1) The Manager, Seattle Aircraft Ali Bahrami, Examining the AD Docket: You may Certification Office (ACO), FAA, has the Manager, Transport Airplane Directorate, examine the AD docket on the Internet authority to approve AMOCs for this AD, if Aircraft Certification Service. at http://www.regulations.gov or in requested using the procedures found in 14 [FR Doc. 2012–28029 Filed 11–23–12; 8:45 am] person at the Docket Operations Office CFR 39.19. In accordance with 14 CFR 39.19, BILLING CODE 4910–13–P between 9 a.m. and 5 p.m., Monday send your request to your principal inspector through Friday, except Federal holidays. or local Flight Standards District Office, as The AD docket contains this AD, any appropriate. If sending information directly DEPARTMENT OF TRANSPORTATION incorporated-by-reference service to the manager of the ACO, send it to the information, the economic evaluation, attention of the person identified in the Federal Aviation Administration any comments received, and other Related Information section of this AD. information. The street address for the Information may be emailed to: 9–ANM– 14 CFR Part 39 Docket Operations Office (phone: 800– Seattle–ACO–AMOC–[email protected]. 647–5527) is U.S. Department of (2) Before using any approved AMOC, [Docket No. FAA–2012–0339; Directorate Transportation, Docket Operations notify your appropriate principal inspector, Identifier 2011–SW–051–AD; Amendment Office, M–30, West Building Ground 39–17259; AD 2012–23–03] or lacking a principal inspector, the manager Floor, Room W12–140, 1200 New Jersey of the local flight standards district office/ RIN 2120–AA64 Avenue SE., Washington, DC 20590. certificate holding district office. FOR FURTHER INFORMATION CONTACT: Rao (3) AMOCs approved previously in Airworthiness Directives; Eurocopter Edupuganti, Aerospace Engineer, FAA, accordance with AD 2008–08–24, France Helicopters Rotorcraft Directorate, Regulations and Amendment 39–15478 (73 FR 21242, April Policy Group, 2601 Meacham Blvd., AGENCY: 21, 2008), are not approved as AMOCs with Federal Aviation Fort Worth, Texas 76137, telephone this AD. Administration (FAA), DOT. (817) 222–5110, email (i) Related Information ACTION: Final rule. [email protected]. For more information about this AD, SUMMARY: We are adopting a new SUPPLEMENTARY INFORMATION: contact Ansel James, Aerospace Engineer, airworthiness directive (AD) for all Discussion Propulsion Branch, ANM–140S, FAA, Seattle Eurocopter France (Eurocopter) Model Aircraft Certification Office, 1601 Lind SA.315B Alouette III, SE.3160 Alouette On March 29, 2012, at 77 FR 18967, Avenue SW., Renton, WA 98057–3356; III, SA.316B Alouette III, SA.316C the Federal Register published our phone: 425–917–6497; fax: 425–917–6590; Alouette III, SA.319B Alouette III, SA notice of proposed rulemaking (NPRM), email: [email protected]. 3180–ALOUETTE ASTAZOU, SA which proposed to amend 14 CFR part 39 to include an AD that would apply (j) Material Incorporated by Reference 318B–ALOUETTE ASTAZOU, and SA 318 C–ALOUETTE ASTAZOU to Eurocopter Model SA.315B Alouette (1) The Director of the Federal Register helicopters. This AD requires inspecting III, SE.3160 Alouette III, SA.316B approved the incorporation by reference the cage of the free-wheel assembly for Alouette III, SA.316C Alouette III, (IBR) of the service information listed in this SA.319B Alouette III, SA 3180– paragraph under 5 U.S.C. 552(a) and 1 CFR the correct alignment of the roller drive pocket recesses and replacing the free- ALOUETTE ASTAZOU, SA 318B– part 51. ALOUETTE ASTAZOU, and SA 318C– (2) You must use this service information wheel cage with an airworthy free- wheel cage if a defect exists. This AD ALOUETTE ASTAZOU helicopters. as applicable to do the actions required by That NPRM proposed to require this AD, unless the AD specifies otherwise. was prompted by incorrect positioning of the roller drive pocket recesses on the inspecting the cage of the free-wheel (i) Boeing Special Attention Service assembly for the correct alignment of Bulletin 737–54–1043, Revision 2, dated tail rotor drive shaft free-wheel cage, which caused a pilot to experience a the roller drive pocket recesses and November 4, 2011. replacing the free-wheel cage with an (ii) Reserved. heavy jerk in the yaw control during in- flight autorotation training. The airworthy free-wheel cage if a defect (3) For service information identified in exists. The proposed requirements were this AD, contact Boeing Commercial requirements of this AD are intended to prevent a loss of tail rotor drive and intended to prevent a loss of tail rotor Airplanes, Attention: Data & Services drive and subsequent loss of control of Management, P. O. Box 3707, MC 2H–65, subsequent loss of control of the helicopter. the helicopter. Seattle, WA 98124–2207; telephone 206– The European Aviation Safety Agency 544–5000, extension 1; fax 206–766–5680; DATES: This AD is effective December (EASA), which is the Technical Agent Internet https://www.myboeingfleet.com. 31, 2012. for the Member States of the European (4) You may view this service information The Director of the Federal Register Union, has issued EASA AD No. 2011– at FAA, Transport Airplane approved the incorporation by reference 0143, dated July 26, 2011 (AD 2011– Directorate, 1601 Lind Avenue SW., of certain documents listed in this AD 0143), to correct an unsafe condition for Renton, WA. For information on the as of December 31, 2012. availability of this material at the FAA, call Eurocopter helicopters. EASA advises ADDRESSES: 425–227–1221. For service information that during in-flight autorotation (5) You may view this service information identified in this AD, contact American training, a pilot experienced a heavy that is incorporated by reference at the Eurocopter Corporation, 2701 N. Forum jerk in the yaw control at the time of National Archives and Records Drive, Grand Prairie, TX 75052, resynchronization. The free-wheel Administration (NARA). For information on telephone (972) 641–0000 or (800) 232– assembly of the helicopter had been the availability of this material at NARA, call 0323, fax (972) 641–3775, or at http:// replaced shortly before this flight. 202–741–6030, or go to: http:// www.eurocopter.com/techpub. You may Internal inspection of the free-wheel www.archives.gov/federal-register/cfr/ibr- review the referenced service assembly revealed incorrect positioning locations.html. information at the FAA, Office of the of the roller drive pocket recesses on the Regional Counsel, Southwest Region, free-wheel cage. The subsequent off-

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setting restricts the travel of the roller • Modifying any affected free-wheel PART 39—AIRWORTHINESS on its ramp and can cause, under high cage assembly will require 8 work hours DIRECTIVES torque conditions, free-wheel slippage. and required parts will cost $1,986, for This condition, if not corrected, could a total cost per helicopter of $2,666. ■ 1. The authority citation for part 39 continues to read as follows: result in a temporary loss of rotor drive, Authority for this Rulemaking jeopardizing flight safety, especially in Authority: 49 U.S.C. 106(g), 40113, 44701. phases of flight close to the ground. Title 49 of the United States Code specifies the FAA’s authority to issue § 39.13 [Amended] Comments rules on aviation safety. Subtitle I, ■ 2. The FAA amends § 39.13 by adding We gave the public the opportunity to section 106, describes the authority of the following new airworthiness participate in developing this AD, but the FAA Administrator. Subtitle VII: directive (AD): we did not receive any comments on the Aviation Programs, describes in more 2012–23–03 Eurocopter France Helicopters: NPRM (77 FR 18967, March 29, 2012). detail the scope of the Agency’s Amendment 39–17259; Docket No. authority. FAA–2012–0339; Directorate Identifier FAA’s Determination We are issuing this rulemaking under 2011–SW–051–AD. These helicopters have been approved the authority described in Subtitle VII, (a) Applicability by the aviation authority of France and Part A, Subpart III, Section 44701: ‘‘General requirements.’’ Under that This AD applies to Model SA.315B are approved for operation in the United Alouette III, SE.3160 Alouette III, SA.316B States. Pursuant to our bilateral section, Congress charges the FAA with Alouette III, SA.316C Alouette III, SA.319B agreement with France, EASA, its promoting safe flight of civil aircraft in Alouette III, SA 3180–ALOUETTE technical representative, has notified us air commerce by prescribing regulations ASTAZOU, SA 318B–ALOUETTE of the unsafe condition described in the for practices, methods, and procedures ASTAZOU, and SA 318 C–ALOUETTE EASA AD. We are issuing this AD the Administrator finds necessary for ASTAZOU helicopters with a free-wheel because we evaluated all information safety in air commerce. This regulation cage, part number (P/N) 3130S60–10–003 installed, certificated in any category. provided by the EASA and determined is within the scope of that authority the unsafe condition exists and is likely because it addresses an unsafe condition (b) Unsafe Condition to exist or develop on other helicopters that is likely to exist or develop on This AD defines the unsafe condition as of these same type designs and that air helicopters identified in this rulemaking incorrect positioning of the roller drive safety and the public interest require action. pocket recesses on the cage of the tail-rotor adopting the AD requirements as Regulatory Findings driveshaft free-wheel assembly. This proposed. condition could result in loss of tail rotor This AD will not have federalism drive and subsequent loss of control of the Differences Between This AD and the implications under Executive Order helicopter. EASA AD 13132. This AD will not have a (c) Effective Date substantial direct effect on the States, on The EASA AD requires compliance This AD becomes effective December 31, the relationship between the national within 110 flight hours or 5 months, 2012. government and the States, or on the whichever occurs first. This AD does (d) Compliance not impose a calendar time requirement. distribution of power and responsibilities among the various You are responsible for performing each Related Service Information levels of government. action required by this AD within the For the reasons discussed above, I specified compliance time unless it has Eurocopter has issued Alert Service certify that this AD: already been accomplished prior to that time. Bulletin (ASB) No. Alouette-65.149, (1) Is not a ‘‘significant regulatory Revision 0, dated March 23, 2011, for (e) Required Actions action’’ under Executive Order 12866; model 3130, 313B, 3180, 318B, 318C, Within 110 hours time-in-service: (2) Is not a ‘‘significant rule’’ under 3160, 316B, 316C, 319C and 319B (1) Remove the free-wheel assembly and DOT Regulatory Policies and Procedures helicopters; and ASB No. SA315–65.48, pull out the free-wheel driven head. (44 FR 11034, February 26, 1979); Revision 0, dated March 23, 2011, for (2) Inspect the free-wheel cage for correct (3) Will not affect intrastate aviation alignment of the roller drive pocket recesses model 315B helicopters, which specify in Alaska to the extent that it justifies in accordance with Figure 2 of Eurocopter removing and disassembling the free- making a regulatory distinction; and Alert Service Bulletin (ASB) No. SA315– wheel assembly to check the free-wheel (4) Will not have a significant 65.48, Revision 0, or Eurocopter ASB No. cage for correct positioning. EASA economic impact, positive or negative, ALOUETTE–65.149, Revision 0, both dated classified these ASBs as mandatory and on a substantial number of small entities March 23, 2011, as appropriate for your issued AD 2011–0143 to ensure the model helicopter. under the criteria of the Regulatory (3) If the right edge of the tab is in line with continued airworthiness of these Flexibility Act. helicopters. the right edge of the pocket recess, before We prepared an economic evaluation further flight, replace the free-wheel cage Costs of Compliance of the estimated costs to comply with with an airworthy free-wheel cage. this AD and placed it in the AD docket. (4) Do not install an affected free-wheel We estimate that this AD will affect assembly on any helicopter, unless the cage 63 helicopters of U.S. Registry and that List of Subjects in 14 CFR Part 39 has passed inspection in accordance with operators may incur the following costs Air transportation, Aircraft, Aviation paragraph (e)(2) through (e)(3) of this AD. to comply with this AD. safety, Incorporation by reference, • (f) Alternative Methods of Compliance Inspecting the free-wheel cage Safety. (AMOCs) assembly will require 8 work-hours at Adoption of the Amendment (1) The Manager, Safety Management an average labor rate of $85 per hour, Group, FAA, may approve AMOCs for this and required parts will cost $13, for a Accordingly, under the authority AD. Send your proposal to: Rao Edupuganti, total cost per helicopter of $693, and a delegated to me by the Administrator, Aerospace Engineer, FAA, Rotorcraft total cost to the U.S. operator fleet of the FAA amends 14 CFR part 39 as Directorate, Regulations and Policy Group, $43,659. follows: 2601 Meacham Blvd., Fort Worth, Texas

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76137, telephone (817) 222–5110, email DEPARTMENT OF TRANSPORTATION Examining the AD Docket [email protected]. You may examine the AD docket on (2) For operations conducted under a 14 Federal Aviation Administration the Internet at http://www.regulations. CFR part 119 operating certificate or under gov; or in person at the Docket 14 CFR part 91, subpart K, we suggest that 14 CFR Part 39 Management Facility between 9 a.m. you notify your principal inspector, or [Docket No. FAA–2009–0794; Directorate and 5 p.m., Monday through Friday, lacking a principal inspector, the manager of Identifier 2009–NM–035–AD; Amendment except Federal holidays. The AD docket the local flight standards district office or 39–17239; AD 2012–22–03] certificate holding district office, before contains this AD, the regulatory operating any aircraft complying with this RIN 2120–AA64 evaluation, any comments received, and AD through an AMOC. other information. The address for the Airworthiness Directives; The Boeing Docket Office (phone: 800–647–5527) is (g) Additional Information Company Airplanes Document Management Facility, U.S. The subject of this AD is addressed in Department of Transportation, Docket AGENCY: Federal Aviation European Aviation Safety Agency (EASA) AD Operations, M–30, West Building Administration (FAA), DOT. No. 2011–0143, dated July 26, 2011. Ground Floor, Room W12–140, 1200 ACTION: Final rule. New Jersey Avenue SE., Washington, (h) Subject DC 20590. SUMMARY: We are adopting a new Joint Aircraft Service Component (JASC) FOR FURTHER INFORMATION CONTACT: Ivan Code: 6700: Tail Rotor Drive System. airworthiness directive (AD) for all The Boeing Company Model 747–100, 747– Li, Aerospace Engineer, Airframe (i) Material Incorporated by Reference 100B, 747–100B SUD, 747–200B, 747– Branch, ANM–120S, FAA, Seattle (1) The Director of the Federal Register 200C, 747–200F, 747–300, 747–400, Aircraft Certification Office, 1601 Lind approved the incorporation by reference 747–400D, 747–400F, 747SR, and 747SP Avenue SW., Renton, Washington (IBR) of the following service information series airplanes. This AD was prompted 98057–3356; phone: (425) 917–6437; under 5 U.S.C. 552(a) and 1 CFR part 51. by reports of cracks in the main entry fax: (425) 917–6590; email: ivan.li@faa. (2) You must use this service information door number 1 upper main sill outer gov. as applicable to do the actions required by chord, along the bend radius of the SUPPLEMENTARY INFORMATION: this AD, unless the AD specifies otherwise. chord on several airplanes. This AD Discussion (i) Eurocopter Alert Service Bulletin (ASB) requires a general visual inspection to No. SA315–65.48, Revision 0, dated March identify any existing structural repair We issued a supplemental notice of 23, 2011. manual (SRM) repairs of the upper main proposed rulemaking (SNPRM) to (ii) Eurocopter ASB No. ALOUETTE–65– sill outer chord of the left and right side amend 14 CFR part 39 to include an 149, Revision 0, dated March 23, 2011. main entry door number 1, repetitive airworthiness directive (AD) that would (3) For Eurocopter service information detailed inspections for cracks in the apply to the specified products. That identified in this AD, contact American upper main sill of the door(s); and supplemental NPRM published in the Eurocopter Corporation, 2701 N. Forum related investigative and corrective Federal Register on December 29, 2011 Drive, Grand Prairie, TX 75052, telephone actions, if necessary. This AD also (76 FR 81879). The original NPRM (74 (972) 641–0000 or (800) 232–0323, fax (972) requires repetitive inspections for FR 49351, September 28, 2009) 641–3775, or at http://www.eurocopter.com/ airplanes on which a certain repair is proposed to require a general visual techpub. done, and corrective actions if inspection to identify any existing SRM (4) You may view this service information necessary, and reduces certain repairs of the upper main sill outer at the FAA, Office of the Regional Counsel, compliance times. We are issuing this chord of the left and right side main Southwest Region, 2601 Meacham Blvd., AD to detect and correct cracks in the entry door number 1, as applicable; Room 663, Fort Worth, Texas 76137. main entry door number 1 upper main repetitive detailed inspections for cracks (5) You may also view this service sill outer chord, along the bend radius in the upper main sill of the door(s); and information at the National Archives and of the chord, which could result in loss related investigative and corrective Records Administration (NARA). For of structural integrity of the airplane. actions, if necessary. The original NPRM information on the availability of this also proposed to require repetitive DATES: This AD is effective December material at NARA, call 202–741–6030, or go inspections for airplanes on which a 31, 2012. to: http://www.archives.gov/federal-register/ certain repair is done, and corrective The Director of the Federal Register cfr/ibr-locations.html. actions if necessary The supplemental approved the incorporation by reference NPRM proposed to revise the original Issued in Fort Worth, Texas, on November of certain publications listed in the AD NPRM by reducing certain compliance 5, 2012. as of December 31, 2012. times. Kim Smith, ADDRESSES: For service information Directorate Manager, Rotorcraft Directorate, identified in this AD, contact Boeing Comments Aircraft Certification Service. Commercial Airplanes, Attention: Data We gave the public the opportunity to [FR Doc. 2012–28033 Filed 11–23–12; 8:45 am] & Services Management, P.O. Box 3707, participate in developing this AD. The BILLING CODE 4910–13–P MC 2H–65, Seattle, Washington 98124– following presents the comments 2207; telephone 206–544–5000, received on the proposal (76 FR 81879, extension 1; fax 206–766–5680; Internet December 29, 2011) and the FAA’s https://www.myboeingfleet.com. You response to each comment. may review copies of the referenced service information at the FAA, Request To Repair Crack by Using SRM Transport Airplane Directorate, 1601 Boeing requested that we revise Lind Avenue SW., Renton, Washington. paragraph (k) of the supplemental For information on the availability of NPRM (76 FR 81879, December 29, this material at the FAA, call 425–227– 2011) to allow, for repair of any crack 1221. found during any inspection specified

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in paragraph (g) or (h) of the We have revised paragraph (l) of this provide appropriate credit for previous supplemental NPRM, using ‘‘the FAA final rule accordingly. accomplishment of certain actions. This approved Boeing 747–400 SRM 53–10– Request To Include Certain Paragraphs change does not affect the intent of that 15, Fig 201 Repair 1-‘‘MED #1 Upper as Acceptable for Repair Requirements paragraph. Main Sill web’’ or a method approved of AD 2010–01–01, Amendment 39– We have re-identified Note 1 to in accordance with the procedures 16157 (75 FR 1533, January 12, 2010) paragraph (o) of the supplemental specified in paragraph (s) of this AD.’’ NPRM (76 FR 81879, December 29, Boeing explained that the Boeing 747– All Nippon Airways (ANA) requested 2011) as paragraph (o)(2) in this final 400 SRM provides an FAA-approved that we revise paragraph (o) of the rule. repair, and that allowing its use for supplemental NPRM (76 FR 81879, repairs would reduce the resource December 29, 2011) to reference Conclusion requirements of providing alternative paragraphs (j) and (k) of the method of compliance (AMOC) supplemental NPRM as acceptable for We reviewed the relevant data, approvals. compliance with AD 2010–01–01, considered the comments received, and Amendment 39–16157 (75 FR 1533, determined that air safety and the We agree to include the SRM January 12, 2010). ANA explained that, public interest require adopting the AD reference requested by Boeing for Model otherwise, operators would have to 747–400 series airplanes. We have with the changes described previously— obtain an AMOC for the requirements of and minor editorial changes. We have revised paragraph (k) of this final rule AD 2010–01–01 when they repair the determined that these minor changes: accordingly. subject area per paragraph (j) or (k) of • Are consistent with the intent that Request To Revise Inspection the supplemental NPRM. We agree that accomplishment of the was proposed in the supplemental Compliance repairs required by paragraphs (j) and NPRM (76 FR 81879, December 29, Boeing requested that we revise (k) of this AD are acceptable for 2011) for correcting the unsafe paragraph (l) of the supplemental NPRM compliance with the repair condition; and (76 FR 81879, December 29, 2011) to requirements of paragraph (h) of AD • Do not add any additional burden 2010–01–01, Amendment 39–16157 (75 explain that the specified inspection is upon the public than was already FR 1533, January 12, 2010). In addition, repeated only until the outer chord proposed in the supplemental NPRM we have determined that repair is installed (as specified in Part (76 FR 81879, December 29, 2011). 3 of the Accomplishment Instructions of accomplishment of the repairs required We also determined that these Boeing Alert Service Bulletin 747– by paragraphs (j) and (k) of this AD are changes will not increase the economic 53A2785, Revision 1, dated July 15, acceptable for compliance with paragraph (l) of AD 2009–18–07, 2010). Boeing explained that paragraphs burden on any operator or increase the Amendment 39–16003 (74 FR 43629, (g) and (h) of the supplemental NPRM scope of the AD. August 27, 2009). We have revised allow termination of repetitive paragraph (o) of this final rule Costs of Compliance inspections if that repair has been accordingly. accomplished. Boeing reasoned that We estimate that this AD affects 165 paragraph (l) of the supplemental NPRM Explanation of Additional Changes airplanes of U.S. registry. implies that inspections are ongoing. Made to This AD We estimate the following costs to We agree with the commenter’s We have revised the heading and comply with this AD: request for the reasons stated by Boeing. wording for paragraph (r) of this AD to

ESTIMATED COSTS

Number of Action Work hours Parts cost Cost per product U.S.-registered Cost on U.S. operators airplanes

Inspection (Groups 1, 3, 6 work-hours × $85 per $0 $510 per inspection cycle 86 $43,860 per inspection 5–6 airplanes). hour = $510. cycle. Inspection (Groups 2, 4, 3 work-hours × $85 per $0 $255 per inspection cycle 79 $20,145 per inspection 7 airplanes). hour = $255. cycle.

We have received no definitive data We are issuing this rulemaking under Regulatory Findings that would enable us to provide cost the authority described in Subtitle VII, This AD will not have federalism estimates for the on-condition actions Part A, Subpart III, Section 44701: implications under Executive Order specified in this AD. ‘‘General requirements.’’ Under that section, Congress charges the FAA with 13132. This AD will not have a Authority for This Rulemaking promoting safe flight of civil aircraft in substantial direct effect on the States, on air commerce by prescribing regulations the relationship between the national Title 49 of the United States Code for practices, methods, and procedures government and the States, or on the specifies the FAA’s authority to issue the Administrator finds necessary for distribution of power and rules on aviation safety. Subtitle I, safety in air commerce. This regulation responsibilities among the various section 106, describes the authority of is within the scope of that authority levels of government. the FAA Administrator. Subtitle VII: because it addresses an unsafe condition For the reasons discussed above, I Aviation Programs, describes in more that is likely to exist or develop on certify that this AD: detail the scope of the Agency’s products identified in this rulemaking (1) Is not a ‘‘significant regulatory authority. action. action’’ under Executive Order 12866,

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(2) Is not a ‘‘significant rule’’ under (g) Inspection for Groups 1 Through 4 Bulletin 747–53A2785, Revision 1, dated July DOT Regulatory Policies and Procedures Airplanes 15, 2010, until the outer chord repair (44 FR 11034, February 26, 1979), For Groups 1 through 4 airplanes, as specified in Part 3 of the Accomplishment (3) Will not affect intrastate aviation identified in Boeing Alert Service Bulletin Instructions of Boeing Alert Service Bulletin 747–53A2785, Revision 1, dated July 15, 747–53A2785, Revision 1, dated July 15, in Alaska, and 2010, is installed. (4) Will not have a significant 2010: At the applicable time specified in economic impact, positive or negative, paragraph 1.E., ‘‘Compliance,’’ of Boeing (i) Repair for Groups 1 Through 4 Airplanes Alert Service Bulletin 747–53A2785, on a substantial number of small entities For Groups 1 through 4 airplanes, as Revision 1, dated July 15, 2010, except as identified in Boeing Alert Service Bulletin under the criteria of the Regulatory provided by paragraphs (p) and (q) of this 747–53A2785, Revision 1, dated July 15, Flexibility Act. AD, do a one-time general visual inspection 2010: If an existing SRM outer chord repair to identify any existing structural repair List of Subjects in 14 CFR Part 39 is found and removed during the inspection manual (SRM) repairs of the upper main sill required by paragraph (g) of this AD, before Air transportation, Aircraft, Aviation outer chord of the left and right main entry further flight, install a new outer chord repair safety, Incorporation by reference, door 1, as applicable. Remove any existing in accordance with Part 3 of the SRM outer chord repair that is found, before Safety. Accomplishment Instructions of Boeing Alert further flight, in accordance with the Service Bulletin 747–53A2785, Revision 1, Adoption of the Amendment Accomplishment Instructions of Boeing Alert dated July 15, 2010. Accordingly, under the authority Service Bulletin 747–53A2785, Revision 1, delegated to me by the Administrator, dated July 15, 2010. In addition, after doing (j) Repair of Outer Chord Crack or Cracked the FAA amends 14 CFR part 39 as the one-time general visual inspection to Frame Attachment Angles (or Clips) identify any existing SRM repairs of the follows: If any outer chord crack or cracked frame upper main sill outer chord of the left and attachment angles (or clips) are found during right main entry door 1, before further flight, any inspection required by paragraph (g) or PART 39—AIRWORTHINESS do a detailed inspection for cracks of the DIRECTIVES (h) of this AD, before further flight, repair, in main upper sill outer chord, web, and frame accordance with Part 3 of the attachment angles (or clips) of the left and ■ Accomplishment Instructions of Boeing Alert 1. The authority citation for part 39 right main entry door 1, as applicable. Do all continues to read as follows: Service Bulletin 747–53A2785, Revision 1, actions in accordance with Part 2 of the dated July 15, 2010. Authority: 49 U.S.C. 106(g), 40113, 44701. Accomplishment Instructions of Boeing Alert Service Bulletin 747–53A2785, Revision 1, (k) Repair of Upper Main Sill Web Crack dated July 15, 2010. If no crack and no § 39.13 [Amended] If any upper main sill web crack is found existing SRM outer chord repair is found during any inspection required by paragraph ■ 2. The FAA amends § 39.13 by adding during any inspection required by this (g) or (h) of this AD, before further flight, the following new airworthiness paragraph, at the applicable time specified in repair the crack using a method approved in directive (AD): paragraph 1.E., ‘‘Compliance,’’ of Boeing accordance with the procedures specified in Alert Service Bulletin 747–53A2785, paragraph (s) of this AD. For Boeing Model 2012–22–03 The Boeing Company: Revision 1, dated July 15, 2010, except as Amendment 39–17239; Docket No. 747–400 series airplanes only, the repair may provided by paragraphs (p) and (q) of this also be done in accordance with Figure 201, FAA–2009–0794; Directorate Identifier AD, repeat thereafter the detailed inspection 2009–NM–035–AD. of Repair 1, ‘‘Main Entry Door Number 1 for cracks, at intervals specified in paragraph Upper Main Sill Web Crack Repair from STA (a) Effective Date 1.E., ‘‘Compliance,’’ of Boeing Alert Service 440 to STA 480,’’ of Subject 53–10–15, Bulletin 747–53A2785, Revision 1, dated July This AD is effective December 31, 2012. ‘‘Fuselage Door Surround Structure-Section 15, 2010, until the outer chord repair 41,’’ of Chapter 53, ‘‘Fuselage,’’ of Boeing (b) Affected ADs specified in Part 3 of the Accomplishment 747–400 Structural Repair Manual, Revision Instructions of Boeing Alert Service Bulletin AD 2009–18–07, Amendment 39–16003 83, dated June 20, 2012. 747–53A2785, Revision 1, dated July 15, (74 FR 43629, August 27, 2009); and AD (l) Inspection 2010–01–01, Amendment 39–16157 (75 FR 2010, is installed. 1533, January 12, 2010); affect this AD. (h) Inspection for Groups 5 Through 7 If any upper main sill web or frame Airplanes attachment angles (or clips) have been (c) Applicability repaired as specified in PART 3—REPAIR of This AD applies to all The Boeing For Groups 5 through 7 airplanes, as the Accomplishment Instructions of Boeing Company Model 747–100, 747–100B, 747– identified in Boeing Alert Service Bulletin Alert Service Bulletin 747–53A2785, 100B SUD, 747–200B, 747–200C, 747–200F, 747–53A2785, Revision 1, dated July 15, Revision 1, dated July 15, 2010, and the outer 747–300, 747–400, 747–400D, 747–400F, 2010: At the applicable time specified in chord repair specified in PART 3—REPAIR of 747SR, and 747SP series airplanes, paragraph 1.E., ‘‘Compliance,’’ of Boeing the Accomplishment Instructions of Boeing certificated in any category. Alert Service Bulletin 747–53A2785, Alert Service Bulletin 747–53A2785, Revision 1, dated July 15, 2010, except as Revision 1, dated July 15, 2010, has not been (d) Subject provided by paragraphs (p) and (q) of this installed, at the applicable time specified in Air Transport Association (ATA) of AD, do a detailed inspection for cracks of the paragraph 1.E., ‘‘Compliance,’’ of Boeing America Code 53: Fuselage. main upper sill outer chord, web, and frame Alert Service Bulletin 747–53A2785, attachment angles (or clips) of the left and Revision 1, dated July 15, 2010, except as (e) Unsafe Condition right main entry door 1, as applicable, in provided by paragraphs (p) and (q) of this This AD was prompted by reports of cracks accordance with Part 2 of the AD, do a detailed inspection for cracks as in the main entry door number 1 upper main Accomplishment Instructions of Boeing Alert specified in paragraph (g) or (h) of this AD, sill outer chord, along the bend radius of the Service Bulletin 747–53A2785, Revision 1, as applicable, in accordance with the chord on several airplanes. We are issuing dated July 15, 2010. If no crack is found Accomplishment Instructions of Boeing Alert this AD to detect and correct such cracks, during any inspection required by this Service Bulletin 747–53A2785, Revision 1, which could result in loss of structural paragraph, at the applicable time specified in dated July 15, 2010. Repeat the inspections integrity of the airplane. paragraph 1.E., ‘‘Compliance,’’ of Boeing in paragraph (g) or (h) of this AD, as Alert Service Bulletin 747–53A2785, applicable, thereafter at intervals specified in (f) Compliance Revision 1, dated July 15, 2010, except as paragraph 1.E., ‘‘Compliance,’’ of Boeing You are responsible for having the actions provided by paragraphs (p) and (q) of this Alert Service Bulletin 747–53A2785, required by this AD performed within the AD, repeat thereafter the detailed inspection Revision 1, dated July 15, 2010, until the compliance times specified, unless the for cracks, at intervals specified in paragraph outer chord repair specified in Part 3 of the actions have already been done. 1.E., ‘‘Compliance,’’ of Boeing Alert Service Accomplishment Instructions of Boeing Alert

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Service Bulletin 747–53A2785, Revision 1, accomplishing the main entry door 1 cutout (t) Related Information dated July 15, 2010, is installed. detailed inspection in accordance with (1) For more information about this AD, Boeing Alert Service Bulletin 747–53A2500, contact Ivan Li, Aerospace Engineer, (m) Post-Repair Inspection Revision 1, dated September 25, 2008 (which For airplanes having the outer chord repair is incorporated by reference in AD 2010–01– Airframe Branch, ANM–120S, FAA, Seattle installed as specified in PART 3—REPAIR of 01). For Model 747–400 series airplanes Aircraft Certification Office, 1601 Lind the Accomplishment Instructions of Boeing modified to the Model 747–400 LCF Avenue SW., Renton, Washington 98057– Alert Service Bulletin 747–53A2785, configuration and having accumulated 3356; telephone (425) 917–6437; fax (425) Revision 1, dated July 15, 2010: At the 15,000 total flight cycles or more as of 917–6590; email: [email protected]. applicable time specified in paragraph 1.E., February 16, 2010 (the effective date of AD (2) For service information identified in ‘‘Compliance,’’ of Boeing Alert Service 2010–01–01), AD 2010–01–01 requires this AD, contact Boeing Commercial Bulletin 747–53A2785, Revision 1, dated July accomplishing the inspections in accordance Airplanes, Attention: Data & Services 15, 2010, except as provided by paragraphs with Boeing Alert Service Bulletin 747– Management, P.O. Box 3707, MC 2H–65, (p) and (q) of this AD, do a detailed 53A2500, Revision 1, dated September 25, Seattle, Washington 98124–2207; telephone inspection for cracks of the left and right 2008 (which is incorporated by reference in main entry door 1 upper sill, as applicable, AD 2010–01–01). 206–544–5000, extension 1; fax 206–766– with the outer chord repair installed, in 5680; Internet https:// accordance with PART 5—AFTER-REPAIR (p) Exception to the Service Information www.myboeingfleet.com INSPECTION of the Accomplishment Where paragraph 1.E., ‘‘Compliance,’’ of Instructions of Boeing Alert Service Bulletin Boeing Alert Service Bulletin 747–53A2785, (u) Material Incorporated by Reference 747–53A2785, Revision 1, dated July 15, Revision 1, dated July 15, 2010, specifies a (1) The Director of the Federal Register 2010. Repeat the inspection for cracks compliance time ‘‘after the original issue date approved the incorporation by reference thereafter at the applicable intervals specified of this service bulletin,’’ or ‘‘after the date on (IBR) of the following service information in paragraph 1.E., ‘‘Compliance,’’ of Boeing Revision 1 of this service bulletin,’’ this AD under 5 U.S.C. 552(a) and 1 CFR part 51. Alert Service Bulletin 747–53A2785, requires compliance within the specified (2) You must use the following service Revision 1, dated July 15, 2010. compliance time after the effective date of information to do the actions required by this this AD. (n) Repair of Any Crack Found From Post- AD, unless the AD specifies otherwise. Repair Inspection (q) Exception to Compliance Time (i) Boeing Alert Service Bulletin 747– Repair any crack found during any Where paragraph 1.E., ‘‘Compliance,’’ of 53A2785, Revision 1, dated July 15, 2010. inspection required by paragraph (m) of this Boeing Alert Service Bulletin 747–53A2785, (ii) Figure 201, of Repair 1, ‘‘Main Entry AD, before further flight, using a method Revision 1, dated July 15, 2010, specifies a Door Number 1 Upper Main Sill Web Crack approved in accordance with the procedures compliance time of ‘‘within’’ a specified Repair from STA 440 to STA 480,’’ of Subject specified in paragraph (s) of this AD. ‘‘total flight-cycles,’’ this AD requires 53–10–15, ‘‘Fuselage Door Surround compliance ‘‘before the accumulation’’ of the (o) Credit for Inspections Required by AD Structure-Section 41,’’ of Chapter 53, specified total flight cycles. 2009–18–07, Amendment 39–16003 (74 FR ‘‘Fuselage,’’ of Boeing 747–400 Structural 43629, August 27, 2009), or AD 2010–01–01, (r) Credit for Previous Actions Repair Manual, Revision 83, dated June 20, Amendment 39–16157 (75 FR 1533, January This paragraph provides credit for the 2012. 12, 2010), and AMOC for the Repairs actions required by paragraphs (g), (h), (i), (j), (3) For service information identified in Required by Those ADs (k), (l), (m), and (n) of this AD, if those this AD, contact Boeing Commercial (1) Accomplishing the main entry door 1 actions were performed before the effective Airplanes, Attention: Data & Services cutout detailed inspection required by AD date of this AD using Boeing Alert Service Management, P.O. Box 3707, MC 2H–65, 2009–18–07, Amendment 39–16003 (74 FR Bulletin 747–53A2785, dated February 12, Seattle, Washington 98124–2207; telephone 43629, August 27, 2009); or AD 2010–01–01, 2009, which is not incorporated by reference 206–544–5000, extension 1; fax 206–766– Amendment 39–16157 (75 FR 1533, January in this AD. 12, 2010); as applicable; before the effective 5680; Internet https:// date of this AD is acceptable for compliance (s) Alternative Methods of Compliance www.myboeingfleet.com with the detailed inspection requirements of (AMOCs) (4) You may review copies of the service paragraphs (g), (h), (l), and (m) of this AD (1) The Manager, Seattle Aircraft information at the FAA, Transport Airplane only. The one-time general visual inspection Certification Office (ACO), FAA, has the Directorate, 1601 Lind Avenue SW., Renton, of paragraph (g) of this AD is still required. authority to approve AMOCs for this AD, if Washington. For information on the For the repaired area only, accomplishment requested using the procedures found in 14 availability of this material at the FAA, call of the applicable repair required by CFR 39.19. In accordance with 14 CFR 39.19, 425–227–1221. send your request to your principal inspector paragraphs (j) and (k) of this AD is acceptable (5) You may also review copies of the for compliance with paragraph (l) of AD or local Flight Standards District Office, as service information that is incorporated by 2009–18–07, and paragraph (h) of AD 2010– appropriate. If sending information directly 01–01. to the manager of the ACO, send it to the reference at the National Archives and (2) For all applicable airplanes that have attention of the person identified in the Records Administration (NARA). For accumulated 22,000 total flight cycles or Related Information section of this AD. information on the availability of this more as of October 1, 2009 (the effective date Information may be emailed to: 9-ANM- material at NARA, call 202–741–6030, or go of AD 2009–18–07, Amendment 39–16003 [email protected]. to: http://www.archives.gov/federal-register/ (74 FR 43629, August 27, 2009)), AD 2009– (2) Before using any approved AMOC, cfr/ibr-locations.html. 18–07 requires accomplishing the main entry notify your appropriate principal inspector, door 1 cutout detailed inspection in or lacking a principal inspector, the manager Issued in Renton, Washington, on October accordance with Boeing Alert Service of the local flight standards district office/ 19, 2012. Bulletin 747–53A2349, Revision 3, dated certificate holding district office. Kalene C. Yanamura, (3) An AMOC that provides an acceptable October 2, 2008 (which is incorporated by Acting Manager, Transport Airplane reference in AD 2009–18–07). For all level of safety may be used for any repair Directorate, Aircraft Certification Service. applicable airplanes (except Model 747–400 required by this AD if it is approved by the series airplanes modified to the Model 747– Boeing Commercial Airplanes Organization [FR Doc. 2012–26666 Filed 11–23–12; 8:45 am] 400 large cargo freighter (LCF) configuration) Designation Authorization (ODA) that has BILLING CODE 4910–13–P that have accumulated 22,000 total flight been authorized by the Manager, Seattle cycles or more as of February 16, 2010 (the ACO, to make those findings. For a repair effective date of AD 2010–01–01, method to be approved, the repair must meet Amendment 39–16157 (75 FR 1533, January the certification basis of the airplane and the 12, 2010)), AD 2010–01–01 requires approval must specifically refer to this AD.

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DEPARTMENT OF TRANSPORTATION unsafe condition for the specified burdensome and does not improve the products. The MCAI states: safety aspects of the inlet cowl Federal Aviation Administration Two operators of A330 aeroplanes fitted inspection. US Airways stated that with Rolls-Royce Trent 700 engines reported Appendix 02 of Airbus Mandatory 14 CFR Part 39 finding extensive damage to engine air intake Service Bulletin A330–71–3024, [Docket No. FAA–2012–0640; Directorate cowls as a result of acoustic panel collapse, Revision 01, dated September 27, 2011, Identifier 2011–NM–203–AD; Amendment most probably caused by panel disbonding. is simply a Gantt chart outlining 39–17256; AD 2012–22–18] This condition, if not detected and potential man hours and aircraft corrected, could lead to the detachment of downtime needed to complete the RIN 2120–AA64 the engine air intake cowl from the engine, inspection. possibly resulting in ingestion of parts by, We agree to clarify the AD. There are Airworthiness Directives; Airbus and consequence damage to, the engine, or no references to Appendix 01 and/or Airplanes injury to persons on the ground. For the reasons described above, this Appendix 02 of Airbus Mandatory AGENCY: Federal Aviation [European Aviation Safety Agency (EASA)] Service Bulletin A330–71–3024, Administration (FAA), Department of AD requires repetitive special detailed Revision 01, dated September 27, 2011, Transportation (DOT). inspections (tap tests) of the 3 inner acoustic in paragraph (h) or any other regulatory ACTION: Final rule. panels of both engine air intake cowls to section of the AD. However, we have detect any disbonding and, depending on revised the references to this service SUMMARY: We are adopting a new findings, applicable corrective actions. information in paragraphs (g), (h), (l), airworthiness directive (AD) for certain The unsafe condition is detachment of and (m) of this AD to exclude Airbus Model A330–243, –243F, –341, the engine air intake cowl from the Appendices 01 through 03, because the –342, and –343 airplanes equipped with engine, which could result in ingestion information provided in those Rolls-Royce Trent 700 engines. This AD of parts causing failure of the engine, appendices is not necessary to was prompted by reports of extensive and possible injury to persons on the accomplish the requirements of this AD. damage to engine air intake cowls as a ground. Corrective actions include We consider Appendix 03 of Airbus result of acoustic panel collapse. This repair or replacement of the affected Mandatory Service Bulletin A330–71– AD requires repetitive inspections of the engine air intake cowl. You may obtain 3024, Revision 01, dated September 27, three inner acoustic panels of both further information by examining the 2011, unnecessary to accomplish the engine air intake cowls to detect MCAI in the AD docket. requirements of this AD, because it is a disbonding, and corrective actions if Gantt chart outlining elapsed time necessary. We are issuing this AD to Comments assumptions for the actions described in detect and correct disbonding, which We gave the public the opportunity to that service information. participate in developing this AD. We could result in detachment of the engine Request To Delete References to Rolls- air intake cowl from the engine leading considered the comments received. Royce Service Information Appendix to ingestion of parts, which could cause Request To Change Unsafe Condition US Airways requested that we state in failure of the engine, and possible injury Statement to persons on the ground. the NPRM (77 FR 37344, June 21, 2012) Airbus stated that the MCAI does not that Appendix 1 of Rolls-Royce Non- DATES: This AD becomes effective refer to reduced controllability of the Modification Service Bulletin RB.211– December 31, 2012. 71–AG419, Revision 1, dated May 10, The Director of the Federal Register airplane as a potential consequence, but 2011, does not need to be accomplished. approved the incorporation by reference to injury to persons on the ground. We infer that the commenter requests US Airways stated that Appendix 1 of of certain publications listed in this AD that we modify the unsafe condition Rolls-Royce Non-Modification Service as of December 31, 2012. statement specified in the NPRM (77 FR Bulletin RB.211–71–AG419, Revision 1, ADDRESSES: You may examine the AD 37344, June 21, 2012). We agree to dated May 10, 2011, noted that docket on the Internet at http:// change the unsafe condition statement accomplishing of this service www.regulations.gov or in person at the in the AD to remove the reference to information should be marked on the U.S. Department of Transportation, reduced airplane controllability. We engine air inlet cowl label plate and that Docket Operations, M–30, West have changed the AD accordingly. Rolls-Royce and/or Bombardier should Building Ground Floor, Room W12–140, be notified of the inspection results. US 1200 New Jersey Avenue SE., Request To Delete References to Airbus Airways stated that it, and most other Washington, DC. Service Information Appendices operators/carriers in the world, use an FOR FURTHER INFORMATION CONTACT: US Airways requested that we delete electronic database to issue, track, and Vladimir Ulyanov, Aerospace Engineer, references to Appendices 01 and 02 of record mandatory inspections on their International Branch, ANM–116, Airbus Mandatory Service Bulletin airplanes, and, consequently, there is no Transport Airplane Directorate, FAA, A330–71–3024, Revision 01, dated need to mandate marking the inspection 1601 Lind Avenue SW., Renton, WA September 27, 2011, in paragraph (h) service information reference on the 98057–3356; telephone (425) 227–1138; and in other locations of the NPRM (77 inlet cowl label plate. US Airways also fax (425) 227–1149. FR 37344, June 21, 2012). US Airways stated that notification of a Rolls-Royce SUPPLEMENTARY INFORMATION: stated that Appendix 01 of Airbus or Bombardier representative is Mandatory Service Bulletin A330–71– burdensome and does not improve the Discussion 3024, Revision 01, dated September 27, safety aspects of the inlet cowl We issued a notice of proposed 2011, is simply a form that reports inspection. rulemaking (NPRM) to amend 14 CFR inspection results to Airbus, and it does We partially agree. We do not agree to part 39 to include an AD that would not recommend mandating an remove the reference to Appendix 1 of apply to the specified products. That administrative action that is related to Rolls-Royce Non-Modification Service NPRM was published in the Federal the safety aspect of inspecting the inlet Bulletin RB.211–71–AG419, Revision 1, Register on June 21, 2012 (77 FR 37344). cowl. US Airways stated that dated May 10, 2011, because Item 1 of That NPRM proposed to correct an accomplishing this reporting task is Appendix 1 specifies that

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accomplishment of this service Costs of Compliance under the criteria of the Regulatory information should be marked on the We estimate that this AD will affect Flexibility Act. We prepared a regulatory evaluation engine air inlet cowl label plate using 22 products of U.S. registry. We also of the estimated costs to comply with metal stamp, vibro etch, or electro etch estimate that it will take about 20 work- this AD and placed it in the AD docket. on the engine air intake cowl hours per product to comply with the modification plate. Not all operators use basic requirements of this AD. The Examining the AD Docket an electronic data base to track average labor rate is $85 per work-hour. You may examine the AD docket on inspections. In case of the airplane Based on these figures, we estimate the transfer to another operator, this the Internet at http:// cost of this AD to the U.S. operators to www.regulations.gov; or in person at the marking will ensure the evidence of the be $37,400, or $1,700 per product. accomplishment of required actions. We Docket Operations office between 9 a.m. In addition, we estimate that any and 5 p.m., Monday through Friday, agree that Items 2 and 3 of Appendix 1 necessary follow-on actions would take of Rolls-Royce Non-Modification except Federal holidays. The AD docket up to 34 work-hours, for a cost of $2,890 contains the NPRM (77 FR 37344, June Service Bulletin RB.211–71–AG419, per product. We have received no Revision 1, dated May 10, 2011, which 21, 2012), the regulatory evaluation, any definitive data that would enable us to comments received, and other specify reporting, are not necessary. We provide parts cost estimates for the on- have added new paragraph (j) to this AD information. The street address for the condition actions specified in this AD. Docket Operations office (telephone to specify that the reporting specified in We have no way of determining the Rolls-Royce Non-Modification Service (800) 647–5527) is in the ADDRESSES number of products that may need these section. Comments will be available in Bulletin RB.211–71–AG419, Revision 1, actions. including Appendix 1, dated May 10, the AD docket shortly after receipt. 2011, is not required by this AD, and Authority for This Rulemaking List of Subjects in 14 CFR Part 39 have re-identified subsequent Title 49 of the United States Code Air transportation, Aircraft, Aviation paragraphs accordingly. We have also specifies the FAA’s authority to issue safety, Incorporation by reference, revised paragraph (i) of this AD to rules on aviation safety. Subtitle I, Safety. include the paragraph (j) exclusion. section 106, describes the authority of Adoption of the Amendment Request To Specify Revised Service the FAA Administrator. ‘‘Subtitle VII: Information Aviation Programs,’’ describes in more Accordingly, under the authority detail the scope of the Agency’s delegated to me by the Administrator, US Airways requested that we revise authority. the FAA amends 14 CFR part 39 as paragraph (i) of the NPRM (77 FR 37344, We are issuing this rulemaking under follows: June 21, 2012) to specify Rolls-Royce the authority described in ‘‘Subtitle VII, Non-Modification Service Bulletin Part A, Subpart III, Section 44701: PART 39—AIRWORTHINESS RB.211–71–AG419, Revision 1, General requirements.’’ Under that DIRECTIVES including Appendix 1, dated May 10, section, Congress charges the FAA with ■ 1. The authority citation for part 39 2011, as the correct service information. promoting safe flight of civil aircraft in continues to read as follows: We agree to revise the reference to air commerce by prescribing regulations Rolls-Royce Non-Modification Service for practices, methods, and procedures Authority: 49 U.S.C. 106(g), 40113, 44701. Bulletin RB.211–71–AG419, Revision 1, the Administrator finds necessary for including Appendix 1, dated May 10, safety in air commerce. This regulation § 39.13 [Amended] 2011, to correctly identify that is within the scope of that authority ■ 2. The FAA amends § 39.13 by adding document as Revision 1. We have because it addresses an unsafe condition the following new AD: that is likely to exist or develop on changed paragraphs (i)(1), (i)(1)(i), 2012–22–18 Airbus: Amendment 39–17256. (i)(1)(ii), (i)(1)(iii), (i)(2), and (l)(1)(ii) products identified in this rulemaking Docket No. FAA–2012–0640; Directorate (paragraph (k)(1)(ii) of the NPRM (77 FR action. Identifier 2011–NM–203–AD. 37344, June 21, 2012)), of the AD to Regulatory Findings (a) Effective Date correctly reference Rolls-Royce Non- Modification Service Bulletin RB.211– We determined that this AD will not This airworthiness directive (AD) becomes effective December 31, 2012. 71–AG419, Revision 1, including have federalism implications under Appendix 1, dated May 10, 2011. Executive Order 13132. This AD will (b) Affected ADs not have a substantial direct effect on None. Conclusion the States, on the relationship between (c) Applicability We reviewed the available data, the national government and the States, This AD applies to Airbus Model A330– including the comments received, and or on the distribution of power and responsibilities among the various 243, -243F, -341, -342, and -343 airplanes; determined that air safety and the certificated in any category; all manufacturer public interest require adopting the AD levels of government. For the reasons discussed above, I serial numbers; equipped with Rolls-Royce with the changes described previously Trent 700 engines. and minor editorial changes. We have certify that this AD: (d) Subject determined that these changes: 1. Is not a ‘‘significant regulatory action’’ under Executive Order 12866; • Air Transport Association (ATA) of Are consistent with the intent that 2. Is not a ‘‘significant rule’’ under the America Code 71, Powerplant. was proposed in the NPRM (77 FR DOT Regulatory Policies and Procedures (e) Reason 37344, June 21, 2012) for correcting the (44 FR 11034, February 26, 1979); unsafe condition; and 3. Will not affect intrastate aviation in This AD was prompted by reports of • extensive damage to engine air intake cowls Do not add any additional burden Alaska; and as a result of acoustic panel collapse. We are upon the public than was already 4. Will not have a significant issuing this AD to detect and correct proposed in the NPRM (77 FR 37344, economic impact, positive or negative, disbonding, which could result in June 21, 2012). on a substantial number of small entities detachment of the engine air intake cowl

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from the engine leading to ingestion of parts, (i) Corrective Actions approve AMOCs for this AD, if requested which could cause failure of the engine, and (1) If any disbonding is found during any using the procedures found in 14 CFR 39.19. possible injury to persons on the ground. inspection required by this AD, and the In accordance with 14 CFR 39.19, send your request to your principal inspector or local (f) Compliance findings are within the permitted allowable damage limits (ADLs) specified in Rolls- Flight Standards District Office, as You are responsible for having the actions Royce Non-Modification Service Bulletin appropriate. If sending information directly required by this AD performed within the RB.211–71–AG419, Revision 1, including to the International Branch, send it to ATTN: compliance times specified, unless the Appendix 1, dated May 10, 2011, except as Vladimir Ulyanov, Aerospace Engineer, actions have already been done. specified in paragraph (j) of this AD: Do the International Branch, ANM–116, Transport actions specified in paragraph (i)(1)(i), Airplane Directorate, FAA, 1601 Lind (g) Repetitive Detailed Inspection (i)(1)(ii), or (i)(1)(iii) of this AD. Avenue SW., Renton, WA 98057–3356; At the applicable compliance time (i) Repeat the tap test inspection required telephone (425) 227–1138; fax (425) 227– specified in paragraph (g)(1) or (g)(2) of this by paragraph (g) of this AD at the applicable 1149. Information may be emailed to: 9- AD: Do a tap test inspection of the three inspection interval specified in Rolls-Royce [email protected]. inner acoustic panels of each engine air Non-Modification Service Bulletin RB.211– Before using any approved AMOC, notify intake cowl for disbonding, in accordance 71–AG419, Revision 1, including Appendix your appropriate principal inspector, or with the Accomplishment Instructions of 1, dated May 10, 2011, except as specified in lacking a principal inspector, the manager of Airbus Mandatory Service Bulletin A330–71– paragraph (j) of this AD, until the actions the local flight standards district office/ 3024, Revision 01, excluding Appendices 01 required by paragraph (i)(1)(ii) or (i)(1)(iii) of certificate holding district office. The AMOC through 03, dated September 27, 2011. this AD are accomplished. approval letter must specifically reference Repeat the inspection thereafter at intervals (ii) Repair the affected engine air intake this AD. not to exceed 24 months, except as required cowl before further flight, in accordance with (2) Airworthy Product: For any requirement by paragraphs (h) and (i) of this AD. the Accomplishment Instructions of Rolls- in this AD to obtain corrective actions from a manufacturer or other source, use these (1) For an engine air intake cowl that has Royce Non-Modification Service Bulletin actions if they are FAA-approved. Corrective accumulated less than 5,000 total flight RB.211–71–AG419, Revision 1, including Appendix 1, dated May 10, 2011, except as actions are considered FAA-approved if they cycles or less than 20,000 total flight hours, specified in paragraph (j) of this AD. Repeat are approved by the State of Design Authority whichever occurs first, since its first the inspection specified in paragraph (g) of (or their delegated agent). You are required installation on an airplane as of the effective this AD thereafter at the applicable to assure the product is airworthy before it date of this AD: Within 24 months after the compliance time specified in paragraph (g) of is returned to service. engine air intake cowl has accumulated 5,000 this AD. total flight cycles or 20,000 total flight hours, (iii) Replace the affected engine air intake (l) Related Information whichever occurs first, since its first cowl before further flight, in accordance with (1) Refer to MCAI European Aviation installation on an airplane. the Accomplishment Instructions of Rolls- Safety Agency Airworthiness (2) For an engine air intake cowl that has Royce Non-Modification Service Bulletin Directive 2011–0173, dated September 13, accumulated 5,000 or more total flight cycles RB.211–71–AG419, Revision 1, including 2011, and the service information specified or 20,000 or more total flight hours, Appendix 1, dated May 10, 2011, except as in paragraphs (l)(1)(i) and (l)(1)(ii) of this AD, whichever occurs first, since its first specified in paragraph (j) of this AD. Repeat for related information. installation on an airplane as of the effective the inspection specified in paragraph (g) of (i) Airbus Mandatory Service Bulletin date of this AD: Within 24 months after the this AD thereafter at the applicable A330–71–3024, Revision 01, excluding effective date of this AD. compliance time specified in paragraph (g) of Appendices 01 through 03, dated September this AD. 27, 2011. (h) Inspection of Replaced Engine Air Intake (2) If any disbonding is found during any (ii) Rolls-Royce Non-Modification Service Cowl inspection required by this AD, and the Bulletin RB.211–71–AG419, Revision 1, For airplanes on which an engine air intake findings are not within the permitted ADLs including Appendix 1, dated May 10, 2011. cowl is replaced after the effective date of specified in Rolls-Royce Non-Modification (2) For Airbus service information this AD, at the applicable compliance time Service Bulletin RB.211–71–AG419, Revision identified in this AD, contact Airbus specified in paragraph (h)(1) or (h)(2) of this 1, including Appendix 1, dated May 10, SAS—Airworthiness Office—EAL, 1 AD: Do a tap test inspection for disbonding 2011, except as specified in paragraph (j) of Rond Point Maurice Bellonte, 31707 of the three inner acoustic panels of the this AD: Before further flight, replace the Blagnac Cedex, France; telephone +33 5 affected engine air intake cowl for affected engine air intake cowl, in accordance 61 93 36 96; fax +33 5 61 93 45 80; email disbonding, in accordance with the with the Accomplishment Instructions of Rolls-Royce Non-Modification Service [email protected]; Accomplishment Instructions of Airbus Internet http://www.airbus.com. For Mandatory Service Bulletin A330–71–3024, Bulletin RB.211–71–AG419, Revision 1, Rolls-Royce service information Revision 01, excluding Appendices 01 including Appendix 1, dated May 10, 2011, through 03, dated September 27, 2011. except as specified in paragraph (j) of this identified in this AD, contact Rolls- Repeat the inspection thereafter at intervals AD. Repeat the inspection specified in Royce plc, P.O. Box 31, Derby, DE24 not to exceed 24 months. paragraph (g) of this AD thereafter at the 8BJ, England; telephone 011 44 1332 (1) Within 24 months after the engine air applicable compliance time specified in 242424; fax 011 44 1332 249936; paragraph (g) of this AD. intake cowl accumulates 5,000 total flight Internet https://www.aeromanager.com. cycles or 20,000 total flight hours, whichever (j) No Reporting Requirement You may review copies of the occurs first, since its first installation on any Although Rolls-Royce Non-Modification referenced service information at the airplane, except as required by paragraph Service Bulletin RB.211–71–AG419, Revision FAA, Transport Airplane Directorate, (h)(2) of this AD. 1, including Appendix 1, dated May 10, 1601 Lind Avenue SW., Renton, WA. (2) Before installation, if an engine air 2011, specifies to submit certain information For information on the availability of intake cowl has accumulated 5,000 or more to the manufacturer, this AD does not this material at the FAA, call 425–227– total flight cycles or 20,000 or more total include that requirement. 1221. flight hours, whichever occurs first, since its first installation on any airplane, and which (k) Other FAA AD Provisions (m) Material Incorporated by Reference has not been inspected in accordance with The following provisions also apply to this the Accomplishment Instructions of Airbus AD: (1) The Director of the Federal Mandatory Service Bulletin A330–71–3024, (1) Alternative Methods of Compliance Register approved the incorporation by Revision 01, excluding Appendices 01 (AMOCs): The Manager, International reference (IBR) of the service through 03, dated September 27, 2011, Branch, ANM–116, Transport Airplane information listed in this paragraph within the preceding 24 months. Directorate, FAA, has the authority to under 5 U.S.C. 552(a) and 1 CFR part 51.

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(2) You must use this service Airbus Model A318, A319, A320, and case of emergency, possibly resulting in information as applicable to do the A321 series airplanes. This AD was injury to the occupants. actions required by this AD, unless the prompted by reports of the escape slide For the reasons described above, this AD specifies otherwise. of the raft inflation system not [European Aviation Safety Agency (EASA)] (i) Airbus Mandatory Service Bulletin AD requires modification of the affected slide deploying when activated due to the rafts or [optional] replacement thereof with A330–71–3024, Revision 01, excluding rotation of the cable guide in a direction modified units. Appendices 01 through 03, dated which resulted in jamming of the September 27, 2011. inflation control cable. This AD requires * * * * * (ii) Rolls-Royce Non-Modification modifying the affected slide rafts. We The modification includes installing a Service Bulletin RB.211–71–AG419, are issuing this AD to prevent non- cable guide adaptor, an anti-rotation Revision 1, including Appendix 1, dated deployment of the inflation system of bracket, and a new hose assembly. You May 10, 2011. the escape slide raft, which could result may obtain further information by (3) For Airbus service information in delayed evacuation from the airplane examining the MCAI in the AD. identified in this AD, contact Airbus during an emergency, and consequent Comments SAS—Airworthiness Office—EAL, 1 injury to the passengers. Rond Point Maurice Bellonte, 31707 We gave the public the opportunity to DATES: This AD becomes effective Blagnac Cedex, France; telephone +33 5 participate in developing this AD. We December 31, 2012. 61 93 36 96; fax +33 5 61 93 45 80; email considered the comments received. The Director of the Federal Register [email protected]; United Airlines (UAL) supports the approved the incorporation by reference Internet http://www.airbus.com. For compliance time of 36 months after the of certain publications listed in this AD Rolls-Royce service information effective date of this AD. as of December 31, 2012. identified in this AD, contact Rolls- ADDRESSES: You may examine the AD Request To Clarify Concurrent Royce plc, P.O. Box 31, Derby, DE24 Requirements 8BJ, England; telephone 011 44 1332 docket on the Internet at http:// 242424; fax 011 44 1332 249936; www.regulations.gov or in person at the UAL requested we highlight that Air Internet https://www.aeromanager.com. U.S. Department of Transportation, Cruisers Service Bulletin S.B.A320 004– (4) You may review copies of the Docket Operations, M–30, West 25–85 has a concurrent requirement to service information at the FAA, Building Ground Floor, Room W12–140, accomplish Air Cruisers Service Transport Airplane Directorate, 1601 1200 New Jersey Avenue SE., Bulletin S.B.A320 004–25–56. UAL Lind Avenue SW., Renton, WA. For Washington, DC. stated that it would like to receive a information on the availability of this FOR FURTHER INFORMATION CONTACT: confirmation that Air Cruisers Service material at the FAA, call 425–227–1221. Sanjay Ralhan, Aerospace Engineer, Bulletin S.B.A320 004–25–56 must also (5) You may view this service International Branch, ANM–116, be accomplished to comply with the information that is incorporated by Transport Airplane Directorate, FAA, proposed AD (77 FR 39186, July 2, reference at the National Archives and 1601 Lind Avenue SW., Renton, 2012). Records Administration (NARA). For Washington 98057–3356; telephone We agree with UAL’s comment. For information on the availability of this (425) 227–1405; fax (425) 227–1149. the optional replacement in paragraph material at NARA, call 202–741–6030, SUPPLEMENTARY INFORMATION: (h) of this final rule, we have clarified or go to: http://www.archives.gov/ that the concurrent requirement federal-register/cfr/ibr-locations.html. Discussion specified in paragraph 1.B. of Air Cruisers Service Bulletin S.B. A320 Issued in Renton, Washington, on October We issued a notice of proposed 31, 2012. rulemaking (NPRM) to amend 14 CFR 004–25–85, Revision 2, dated January 3, Ali Bahrami, part 39 to include an AD that would 2012, is necessary. We have revised paragraphs (h), (j)(1), and (j)(2) in this Manager, Transport Airplane Directorate, apply to the specified products. That Aircraft Certification Service. NPRM was published in the Federal final rule accordingly. [FR Doc. 2012–28422 Filed 11–23–12; 8:45 am] Register on July 2, 2012 (77 FR 39186). Request To Remove the Parts BILLING CODE 4910–13–P That NPRM proposed to correct an Installation Limitation in Paragraph unsafe condition for the specified (j)(1) of the Proposed AD (77 FR 39186, products. The Mandatory Continuing July 2, 2012) DEPARTMENT OF TRANSPORTATION Airworthiness Information (MCAI) UAL requested that the parts states: Federal Aviation Administration installation limitation in paragraph (j)(1) Two occurrences on Airbus A320 of the proposed AD (77 FR 39186, July aeroplanes have been reported where the 14 CFR Part 39 2, 2012) be removed. UAL stated that escape slide raft inflation system did not the proposed requirement will remove [Docket No. FAA–2012–0676; Directorate deploy when activated, due to the rotation of the cable guide in a direction which resulted the operator’s flexibility to replace a Identifier 2011–NM–182–AD; Amendment post-AD part number with a pre-AD part 39–17266; AD 2012–23–10] in jamming of the inflation control cable. Additionally, there has been one reported number prior to the AD limit. UAL RIN 2120–AA64 case where the system did not deploy stated that, after the proposed AD properly due to a cracked inflation hose effective date, it agrees that any new Airworthiness Directives; Airbus fitting. slide-rafts released by the home shop Airplanes Investigation conducted by the slide raft should have the AD requirements manufacturer showed that the hose fitting AGENCY: Federal Aviation incorporated to prevent unit on-wing could be subject to a bending moment if installation beyond the AD limit, but Administration (FAA), Department of improperly packed. Subsequently, the hose Transportation (DOT). fitting could separate from the reservoir and not on the ones currently installed on- ACTION: Final rule. the inflation of the slide raft may be wing. UAL stated that it believes the impaired. intent of the proposed AD is to SUMMARY: We are adopting a new This condition, if not corrected, could eliminate pre-AD part numbers after 36 airworthiness directive (AD) for all delay the evacuation from the aeroplane in months of the effective date.

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We disagree with UAL’s request to Costs of Compliance We prepared a regulatory evaluation remove paragraph (j)(1) of this final rule. We estimate that this AD will affect of the estimated costs to comply with Paragraph (j)(1) of this final rule only 745 products of U.S. registry. We also this AD and placed it in the AD docket. applies to those airplanes that have estimate that it will take about 19 work- Examining the AD Docket accomplished the modification or hours per product to comply with the You may examine the AD docket on replacement. The intent of this AD is to basic requirements of this AD. The the Internet at http:// prevent installation of the unsafe escape average labor rate is $85 per work-hour. www.regulations.gov; or in person at the slide rafts after accomplishing the Required parts will cost about $341 per required modification or replacement. product. Where the service information Docket Operations office between 9 a.m. Operators have a compliance time of lists required parts costs that are and 5 p.m., Monday through Friday, within 36 months after the effective date covered under warranty, we have except Federal holidays. The AD docket of this AD to do the modification assumed that there will be no charge for contains the NPRM (77 FR 39186, July required by paragraph (g) of this AD, or these parts. As we do not control 2, 2012), the regulatory evaluation, any the alternative action specified in warranty coverage for affected parties, comments received, and other paragraph (h) of this AD. We have not some parties may incur costs higher information. The street address for the changed the AD in this regard. than estimated here. Based on these Docket Operations office (telephone (800) 647–5527) is in the ADDRESSES Request To Incorporate New Service figures, we estimate the cost of this AD section. Comments will be available in Information to the U.S. operators to be $1,457,220, or $1,956 per product. the AD docket shortly after receipt. Airbus requested that we revise the proposed AD (77 FR 39186, July 2, Authority for This Rulemaking List of Subjects in 14 CFR Part 39 2012) to incorporate Air Cruisers Title 49 of the United States Code Air transportation, Aircraft, Aviation Service Bulletin S.B.A320 004–25–85, specifies the FAA’s authority to issue safety, Incorporation by reference, Revision 1, dated September 30, 2011, rules on aviation safety. Subtitle I, Safety. and Revision 2, dated January 3, 2012; section 106, describes the authority of Adoption of the Amendment and to refer to EASA AD 2011–0160R1, the FAA Administrator. ‘‘Subtitle VII: Accordingly, under the authority dated March 15, 2012; into the proposed Aviation Programs,’’ describes in more delegated to me by the Administrator, AD. detail the scope of the Agency’s We agree with Airbus’ request to authority. the FAA amends 14 CFR part 39 as reference the latest service information. We are issuing this rulemaking under follows: We have revised this AD to reference the authority described in ‘‘Subtitle VII, Air Cruisers Service Bulletin S.B.A320 PART 39—AIRWORTHINESS Part A, Subpart III, Section 44701: DIRECTIVES 004–25–85, Revision 2, dated January 3, General requirements.’’ Under that 2012, for the actions specified in section, Congress charges the FAA with ■ 1. The authority citation for part 39 paragraphs (h) and (j) of this AD. Air promoting safe flight of civil aircraft in continues to read as follows: Cruisers Service Bulletin S.B.A320 004– air commerce by prescribing regulations Authority: 49 U.S.C. 106(g), 40113, 44701. 25–85, Revision 2, dated January 3, for practices, methods, and procedures 2012, clarifies certain actions and the Administrator finds necessary for § 39.13 [Amended] figures. We have also added new safety in air commerce. This regulation paragraph (k) of this AD to provide is within the scope of that authority ■ 2. The FAA amends § 39.13 by adding credit for actions done using Air because it addresses an unsafe condition the following new AD: Cruisers Service Bulletin S.B.A320 004– that is likely to exist or develop on 2012–23–10 Airbus: Amendment 39–17266. 25–85, dated November 30, 2010; or Air products identified in this rulemaking Docket No. FAA–2012–0676; Directorate Cruisers Service Bulletin S.B.A320 004– action. Identifier 2011–NM–182–AD. 25–85, Revision 1, dated September 30, (a) Effective Date 2011; before the effective date of this Regulatory Findings AD. In addition, we have revised We determined that this AD will not This airworthiness directive (AD) becomes effective December 31, 2012. paragraph (m) of this AD to reference have federalism implications under EASA AD 2011–0160R1, dated March Executive Order 13132. This AD will (b) Affected ADs 15, 2012, which clarifies the parts not have a substantial direct effect on None. installation limitations specified in that the States, on the relationship between (c) Applicability EASA AD. the national government and the States, or on the distribution of power and This AD applies to all Airbus Model A318– Conclusion 111, –112, –121, and –122 airplanes; Model responsibilities among the various A319–111, –112, –113, –114, –115, –131, We reviewed the available data, levels of government. including the comments received, and –132, and –133 airplanes; Model A320–111, For the reasons discussed above, I –211, –212, –214, –231, –232, and –233 determined that air safety and the certify that this AD: airplanes; and Model A321–111, –112, –131, public interest require adopting the AD 1. Is not a ‘‘significant regulatory –211, –212, –213, –231, and –232 airplanes; with the changes described previously— action’’ under Executive Order 12866; certificated in any category; all manufacturer except for minor editorial changes. We 2. Is not a ‘‘significant rule’’ under the serial numbers. have determined that these changes: DOT Regulatory Policies and Procedures (d) Subject • Are consistent with the intent that (44 FR 11034, February 26, 1979); was proposed in NPRM (77 FR 39186, 3. Will not affect intrastate aviation in Air Transport Association (ATA) of July 2, 2012) for correcting the unsafe Alaska; and America Code 25: Equipment/Furnishings. condition; and 4. Will not have a significant (e) Reason • Do not add any additional burden economic impact, positive or negative, This AD was prompted by reports of the upon the public than was already on a substantial number of small entities escape slide of the raft inflation system not proposed in the NPRM (77 FR 39186, under the criteria of the Regulatory deploying when activated due to the rotation July 2, 2012). Flexibility Act. of the cable guide in a direction which

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resulted in jamming of the inflation control requirement specified in paragraph (g) of this 3356; telephone (425) 227–1405; fax (425) table. We are issuing this AD to prevent non- AD. 227–1149. Information may be emailed to: 9- deployment of the inflation system of the [email protected]. (j) Parts Installation Limitations escape slide raft, which could result in Before using any approved AMOC, notify delayed evacuation from the airplane during (1) For airplanes other than those your appropriate principal inspector, or an emergency, and consequent injury to the identified in paragraph (i) of this AD: After lacking a principal inspector, the manager of passengers. accomplishment of the modification required the local flight standards district office/ by paragraph (g) of this AD or after certificate holding district office. The AMOC (f) Compliance accomplishment of the alternative approval letter must specifically reference You are responsible for having the actions modification specified in paragraph (h) of this AD. required by this AD performed within the this AD, no person may install, on any (2) Airworthy Product: For any requirement compliance times specified, unless the airplane, an escape slide raft specified in in this AD to obtain corrective actions from actions have already been done. table 1 to paragraph (g) of this AD, unless it a manufacturer or other source, use these has been modified in accordance with the (g) Modification actions if they are FAA-approved. Corrective Accomplishment Instructions of Airbus actions are considered FAA-approved if they Except as provided by paragraph (i) of this Service Bulletin A320–25–1723, dated are approved by the State of Design Authority AD, within 36 months after the effective date December 17, 2010 (for Model A319, A320, (or their delegated agent). You are required of this AD: Modify the escape slide rafts that and A321 series airplanes); Airbus Service to assure the product is airworthy before it have a part number (P/N) specified in table Bulletin A320–25–1724, dated December 17, is returned to service. 1 to paragraph (g) of this AD, in accordance 2010 (for Model A318 series airplanes); or with the Accomplishment Instructions of Air Cruisers Service Bulletin S.B.A320 004– (m) Related Information Airbus Service Bulletin A320–25–1723, 25–85, Revision 2, dated January 3, 2012 (for (1) Refer to MCAI European Aviation dated December 17, 2010 (for Model A319, Model A318, A319, A320, and A321 series Safety Agency Airworthiness Directive 2011– A320, and A321 series airplanes); or Airbus airplanes), including the installation of the 0160R1, dated March 15, 2012, and the Service Bulletin A320–25–1724, dated cable guide assembly in accordance with the service information specified in paragraphs December 17, 2010 (for Model A318 series Accomplishment Instructions of Air Cruisers (m)(1)(i) through (m)(1)(iv) of this AD, for airplanes). Service Bulletin S.B.A320 004–25–56, dated, related information. November 12, 1999. (i) Airbus Service Bulletin A320–25–1723, TABLE 1 TO PARAGRAPH (g) OF THIS (2) For airplanes identified in paragraph (i) dated December 17, 2010. AD—ESCAPE SLIDE RAFT of this AD: As the effective date of this AD, (ii) Airbus Service Bulletin A320–25–1724, no person may install, on any airplane, an dated December 17, 2010. escape slide raft specified in table 1 to Air Cruisers and Aerazur escape slide rafts (iii) Air Cruisers Service Bulletin S.B.A320 part number if fitted with a reservoir and valve paragraph (g) of this AD, unless it has been 004–25–85, Revision 2, dated January 3, assembly P/N D18309–105 or P/N D18309– modified in accordance with the 2012. 205 Accomplishment Instructions of Airbus (iv) Air Cruisers Service Bulletin S.B.A320 Service Bulletin A320–25–1723, dated 004–25–56, dated, November 12, 1999. December 17, 2010 (for Model A319, A320, D30664–105 (2) For Air Cruisers service information and A321 series airplanes); Airbus Service D30664–107 identified in this AD, contact Zodiac Services Bulletin A320–25–1724, dated December 17, D30664–109 Americas, Cage Code 567V9, 4900 St. Joe 2010 (for Model A318 series airplanes); or D30664–305 Boulevard, Building 200, Suite 400, College Air Cruisers Service Bulletin S.B.A320 004– D30664–307 Park, Georgia 30337; telephone 678–228– 25–85, Revision 2, dated January 3, 2012 (for D30664–309 8153; fax 404–599–0041; email Model A318, A319, A320, and A321 series D30664–311 [email protected]; Internet http://www. airplanes), including the installation of the D30665–105 zodiacaerospace.com. D30665–107 cable guide assembly in accordance with the D30665–109 Accomplishment Instructions of Air Cruisers (n) Material Incorporated by Reference Service Bulletin S.B.A320 004–25–56, dated, D30665–305 (1) The Director of the Federal Register November 12, 1999. D30665–307 approved the incorporation by reference D30665–309 (k) Credit for Previous Actions (IBR) of the service information listed in this D30665–311 This paragraph provides credit for the paragraph under 5 U.S.C. 552(a) and 1 CFR actions required by paragraphs (h) and (j) of part 51. (h) Replacement in Accordance With Air this AD, if those actions were performed (2) You must use this service information Cruisers Service Bulletin before the effective date of this AD using Air as applicable to do the actions required by Replacement of all affected escape slide Cruisers Service Bulletin S.B.A320 004–25– this AD, unless the AD specifies otherwise. rafts on any affected airplane with slide rafts 85, dated November 30, 2010; or Air Cruisers (i) Airbus Service Bulletin A320–25–1723, that have been modified in accordance with Service Bulletin S.B.A320 004–25–85, dated December 17, 2010. the Accomplishment Instructions of Air Revision 1, dated September 30, 2011; which (ii) Airbus Service Bulletin A320–25–1724, Cruisers Service Bulletin S.B.A320 004–25– are not incorporated by reference in this AD. dated December 17, 2010. 85, Revision 2, dated January 3, 2012, is (iii) Air Cruisers Service Bulletin S.B.A320 acceptable for compliance with the (l) Other FAA AD Provisions 004–25–85, Revision 2, dated January 3, requirements of paragraph (g) of this AD, The following provisions also apply to this 2012. provided that prior to or concurrently with AD: (iv) Air Cruisers Service Bulletin S.B.A320 accomplishing the modification, the (1) Alternative Methods of Compliance 004–25–56, dated, November 12, 1999. installation of the cable guide assembly is (AMOCs): The Manager, International (3) For Airbus service information done in accordance with the Branch, ANM–116, FAA, has the authority to identified in this AD, contact Airbus, Accomplishment Instructions of Air Cruisers approve AMOCs for this AD, if requested Airworthiness Office—EAS, 1 Rond Point Service Bulletin S.B.A320 004–25–56, dated using the procedures found in 14 CFR 39.19. Maurice Bellonte, 31707 Blagnac Cedex, November 12, 1999. In accordance with 14 CFR 39.19, send your France; telephone +33 5 61 93 36 96; fax +33 request to your principal inspector or local 5 61 93 44 51; email account.airworth-eas@ (i) Airplanes Not Affected by Paragraph (g) Flight Standards District Office, as airbus.com; Internet http://www.airbus.com. of This AD appropriate. If sending information directly For Air Cruisers service information Airplanes on which Airbus modification to the International Branch, send it to ATTN: identified in this AD, contact Zodiac Services 151459 or modification 151502 has been Sanjay Ralhan, Aerospace Engineer, Americas, Cage Code 567V9, 4900 St. Joe embodied in production, and on which no International Branch, ANM–116, Transport Boulevard, Building 200, Suite 400, College escape slide raft replacements have been Airplane Directorate, FAA, 1601 Lind Park, Georgia 30337; telephone 678–228– made since first flight, are not affected by the Avenue SW., Renton, Washington 98057– 8153; fax 404–599–0041; email

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[email protected]; Internet http:// between 9 a.m. and 5 p.m., Monday Federal Register, in order to omit a www.zodiacaerospace.com. through Friday, except Federal holidays. regulatory requirement that is no longer (4) You may review copies of the service FOR FURTHER INFORMATION CONTACT: If applicable or necessary. The information at the FAA, Transport Airplane modification has already taken place Directorate, 1601 Lind Avenue SW., Renton, you have questions on this rule, call or WA. For information on the availability of email Jim Rousseau, Bridge and the removal of the regulation will this material at the FAA, call 425–227–1221. Management Specialist, Fifth Coast not affect mariners currently operating (5) You may view this service information Guard District; telephone 757–398– on this waterway. that is incorporated by reference at the 6557, email James.L.Rousseau2@uscg. B. Basis and Purpose National Archives and Records mil. If you have questions on viewing or Administration (NARA). For information on submitting material to the docket, call On June 25, 1999, a Coast Guard the availability of this material at NARA, call Renee V. Wright, Program Manager, Bridge Permit (1–99–5) was issued to 202–741–6030, or go to: http://www.archives. Docket Operations, telephone 202–366– the New Jersey Department of gov/federal-register/cfr/ibr-locations.html. 9826. Transportation (NJDOT) to replace the Issued in Renton, Washington, on SUPPLEMENTARY INFORMATION: existing bascule bridge, which carries November 13, 2012. S35 over Shark River (South Channel) at John P. Piccola, Table of Acronyms Avon Township NJ, with a new fixed Acting Manager, Transport Airplane CFR Code of Federal Regulations bridge. NJDOT completed construction Directorate, Aircraft Certification Service. DHS Department of Homeland Security for a new fixed bridge in June 2006. The [FR Doc. 2012–28181 Filed 11–23–12; 8:45 am] FR Federal Register elimination of this drawbridge NPRM Notice of Proposed Rulemaking BILLING CODE 4910–13–P necessitates the removal of the § Section Symbol drawbridge operation regulation, in 33 U.S.C. United States Code CFR 117.751 that contains an operating schedule pertaining to the former DEPARTMENT OF HOMELAND A. Regulatory History and Information drawbridge. SECURITY The Coast Guard is issuing this final rule without prior notice and C. Discussion of the Final Rule Coast Guard opportunity to comment pursuant to The Coast Guard is changing the authority under section 4(a) of the regulation in 33 CFR part 117 without 33 CFR Part 117 Administrative Procedure Act (APA) (5 publishing an NPRM. The change U.S.C. 553(b)). This provision [Docket No. USCG–2012–0930] removes the regulation governing a authorizes an agency to issue a rule movable bridge that was modified to a RIN 1625–AA09 without prior notice and opportunity to fixed bridge. Specifically, this rule will comment when the agency for good remove the section of 33 CFR 117.751 Drawbridge Operation Regulation; cause finds that those procedures are that refers to the S35 Bridge at mile 0.9, Shark River (South Channel), Avon ‘‘impracticable, unnecessary, or contrary from the Code of Federal Regulations Township, NJ to the public interest.’’ Under 5 U.S.C. since it governs a bridge that is no 553(b)(B), the Coast Guard finds that longer able to be opened. AGENCY: Coast Guard, DHS. good cause exists for not publishing a ACTION: Final rule. notice of proposed rulemaking (NPRM) D. Regulatory Planning and Review with respect to this rule because the S35 SUMMARY: The Coast Guard is removing We developed this rule after bridge that once required draw the existing drawbridge operation considering numerous statutes and operations as outlined in 33 CFR regulation that governs the opening of executive orders related to rulemaking. 117.751 was modified from a movable the S35 Bridge, mile 0.9, across Shark Below we summarize our analyses bridge to a fixed bridge. As such, the River (South Channel) at Avon based on a number of these statutes or bridge no longer opens for the passage Township, NJ. The existing regulation executive orders. of vessels. Therefore, the regulation is contains a drawbridge operation no longer applicable and should be 1. Regulatory Analysis schedule for the S35 Bridge. However, removed from publication. It is the existing bridge was modified in This rule is not a ‘‘significant unnecessary to publish an NPRM 2006 from a movable bridge to a fixed regulatory action’’ under section 3(f) of because this regulatory action does not bridge. Since the bridge is no longer a Executive Order 12866, Regulatory purport to place any restrictions on movable bridge, the regulation Planning and Review, as supplemented mariners but rather removes a controlling the opening and closing of by Executive Order 13653, and does not restriction that has no further use or the bridge is no longer necessary. require an assessment of potential costs value. and benefits under section 6(a)(3) of DATES: This rule is effective November Under 5 U.S.C. 553(d)(1), a rule that Order 12866 or under section 1 of 26, 2012. relieves a restriction is not required to Executive Order 13563. The Office of ADDRESSES: Documents indicated in this provide the 30 day notice period before Management and Budget has not preamble as being available in the its effective date. Since the purpose of reviewed it under those Orders. We docket, are part of docket USCG–2012– this rule is to remove the S35 Bridge reached this conclusion based on the 0930 and are available by going to operation requirements under 33 CFR fact that a special operating regulation http://www.regulations.gov, inserting 117.751, the Coast Guard is removing a exists for movable bridges and as this USCG–2012–0930 in the ‘‘Keyword’’ regulatory restriction currently imposed bridge has been modified to a fixed box, and then clicking ‘‘Search.’’ This on the public. As such, the Coast Guard bridge, the regulation is unnecessary. material is also available for inspection finds that good cause exists for making or copying at the Docket Management this rule effective in less than 30 days 2. Impact on Small Entities Facility (M–30), U.S. Department of after publication in the Federal The Regulatory Flexibility Act of 1980 Transportation, West Building Ground Register. The bridge has been a fixed (RFA), 5 U.S.C. 601–612, as amended, Floor, Room W12–140, 1200 New Jersey bridge for 6 years and this rule merely requires federal agencies to consider the Avenue SE., Washington, DC 20590, requires an administrative change to the potential impact of regulations on small

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entities during rulemaking. The term taking implications under Executive have concluded that this action is one ‘‘small entities’’ comprises small Order 12630, Governmental Actions and of a category of actions which do not businesses, not-for-profit organizations Interference with Constitutionally individually or cumulatively have a that are independently owned and Protected Property Rights. significant effect on the human operated and are not dominant in their environment. This rule is categorically 8. Civil Justice Reform fields, and governmental jurisdictions excluded, under figure 2–1, paragraph with populations of less than 50,000. This rule meets applicable standards (32)(e), of the Instruction. The Coast Guard certifies under 5 U.S.C. in sections 3(a) and 3(b)(2) of Executive Under figure 2–1, paragraph (32)(e), of 605(b) that this rule will not have a Order 12988, Civil Justice Reform, to the Instruction, an environmental significant economic impact on a minimize litigation, eliminate analysis checklist and a categorical substantial number of small entities. ambiguity, and reduce burden. exclusion determination are not This final rule would affect the 9. Protection of Children required for this rule. following entities, some of which might List of Subjects in 33 CFR Part 117 be small entities: None. Due to the fact We have analyzed this rule under that the bridge has been a fixed bridge Executive Order 13045, Protection of Bridges. for 6 years, this final rule will not have Children from Environmental Health For the reasons discussed in the a significant economic impact on a Risks and Safety Risks. This rule is not preamble, the Coast Guard amends 33 substantial number of small entities. an economically significant rule and CFR part 117 as follows: does not create an environmental risk to 3. Collection of Information health or risk to safety that might PART 117—DRAWBRIDGE This rule calls for no new collection disproportionately affect children. OPERATION REGULATIONS of information under the Paperwork 10. Indian Tribal Governments Reduction Act of 1995 (44 U.S.C. 3501– ■ 1. The authority citation for part 117 3520.). This rule does not have tribal continues to read as follows: implications under Executive Order Authority: 33 U.S.C. 499; 33 CFR 1.05–1; 4. Federalism 13175, Consultation and Coordination Department of Homeland Security Delegation A rule has implications for federalism with Indian Tribal Governments, No. 0170.1. under Executive Order 13132, because it would not have a substantial ■ 2. Revise the introductory text and Federalism, if it has a substantial direct direct effect on one or more Indian paragraph (a) of § 117.751 to read as effect on State or local governments and tribes, on the relationship between the follows: would either preempt States, on the Federal Government and Indian tribes, relationship between the national or on the distribution of power and § 117.751 Shark River (South Channel). government and the States, or on the responsibilities between the Federal The draws of the S71 Bridge, mile 0.8, distribution of power and Government and Indian tribes. and the Railroad Bridge, mile 0.9, both responsibilities among the various 11. Energy Effects at Avon, operate as follows: levels of government. We have analyzed (a) The bridges operate as one unit. this rule under that Order and have We have analyzed this rule under The owners shall provide signal systems determined that it does not have Executive Order 13211, Actions so connected that the operator of either implications for federalism. Concerning Regulations That bridge may simultaneously notify the Significantly Affect Energy Supply, operator of the other bridge. The 5. Protest Activities Distribution, or Use. We have operator of the first bridge to be passed The Coast Guard respects the First determined that it is not a ‘‘significant shall be responsible for observing the Amendment rights of protesters. energy action’’ under that order because approach vessels, for receiving and Protesters are asked to contact the it is not a ‘‘significant regulatory action’’ acknowledging signals, and for person listed in the FOR FURTHER under Executive Order 12866 and is not coordinating the opening of the other INFORMATION CONTACT section to likely to have a significant adverse effect draw. on the supply, distribution, or use of coordinate protest activities so that your * * * * * message can be received without energy. The Administrator of the Office jeopardizing the safety or security of of Information and Regulatory Affairs Dated: October 25, 2012. people, places or vessels. has not designated it as a significant Steven H. Ratti, energy action. Therefore, it does not Rear Admiral, United States Coast Guard, 6. Unfunded Mandates Reform Act require a Statement of Energy Effects Commander, Fifth Coast Guard District. The Unfunded Mandates Reform Act under Executive Order 13211. [FR Doc. 2012–28127 Filed 11–23–12; 8:45 am] of 1995 (2 U.S.C. 1531–1538) requires BILLING CODE 9110–04–P Federal agencies to assess the effects of 12. Technical Standards their discretionary regulatory actions. In This rule does not use technical particular, the Act addresses actions standards. Therefore, we did not LIBRARY OF CONGRESS that may result in the expenditure by a consider the use of voluntary consensus State, local, or tribal government, in the standards. Copyright Royalty Board aggregate, or by the private sector of 13. Environment $100,000,000 or more in any one year. 37 CFR Part 386 Though this rule will not result in such We have analyzed this rule under [Docket No. 2012–8 CRB Satellite COLA] an expenditure, we do discuss the Department of Homeland Security effects of this rule elsewhere in this Management Directive 023–01 and Cost of Living Adjustment to Satellite preamble. Commandant Instruction M16475.lD, Carrier Compulsory License Royalty which guides the Coast Guard in Rates 7. Taking of Private Property complying with the National This rule will not affect a taking of Environmental Policy Act of 1969 AGENCY: Copyright Royalty Board, private property or otherwise have (NEPA) (42 U.S.C. 4321–4370f), and Library of Congress.

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ACTION: Final rule. and 54 cents per subscriber per month, DATES: Effective Date: This final rule is respectively. effective December 26, 2012. SUMMARY: The Copyright Royalty Judges Applicability Date: This final rule will announce a cost of living adjustment List of Subjects in 37 CFR Part 386 apply to claims for SGLI proceeds filed (‘‘COLA’’) of 2.2% in the royalty rates Copyright, Satellite, Television. on or after December 26, 2012. paid by satellite carriers under the Final Regulations FOR FURTHER INFORMATION CONTACT: satellite carrier compulsory license of Monica Keitt, Attorney-Advisor, the Copyright Act. The COLA is based For the reasons set forth in the Department of Veterans Affairs Regional on the change in the Consumer Price preamble, part 386 of title 37 of the Office and Insurance Center (310/290B), Index from October 2011 to October Code of Federal Regulations is amended P.O. Box 8079, Philadelphia, 2012. as follows: Pennsylvania 19101, (215) 842–2000, DATES: Effective Date: January 1, 2013. PART 386—ADJUSTMENT OF Ext. 2905. (This is not a toll free Applicability Dates: These rates are ROYALTY FEES FOR SECONDARY number.) applicable for the period January 1, TRANSMISSIONS BY SATELLITE SUPPLEMENTARY INFORMATION: On 2013, through December 31, 2013. CARRIERS January 31, 2012, VA published in the FOR FURTHER INFORMATION CONTACT: Federal Register (77 FR 4734) a LaKeshia Keys, Program Specialist. ■ 1. The authority citation for part 386 proposed rule to provide that, if a Telephone: (202) 707–7658. Email: continues to read as follows: stillborn child is insured by the SGLI [email protected]. Authority: 17 U.S.C. 119(c), 801(b)(1). coverage of more than one servicemember, the SGLI proceeds SUPPLEMENTARY INFORMATION: The ■ 2. Section 386.2 is amended by satellite carrier compulsory license would be paid to the child’s SGLI- revising paragraphs (b)(1)(iv) and insured mother. We provided a 60-day establishes a statutory copyright (b)(2)(iv) as follows: licensing scheme for the retransmission public-comment period, which ended of distant television programming by § 386.2 Royalty fee for secondary on April 2, 2012, and received satellite carriers. 17 U.S.C. 119. transmission by satellite carriers. comments from five individuals. Section 1967(a)(4)(B) of title 38, Congress created the license in 1988 and * * * * * United States Code, prohibits an has reauthorized the license for (b)(1) * * * insurable dependent who is a child from additional five-year periods, most (iv) 2013: 27 cents per subscriber per being insured at any time under the recently with the passage of the Satellite month; SGLI coverage of more than one Television Extension and Localism Act * * * * * member, i.e., more than one SGLI- of 2010, (‘‘STELA’’), Public Law 111– (2) * * * insured parent. If a child is otherwise 175. (iv) 2013: 54 cents per subscriber per eligible to be insured by the coverage of The Copyright Royalty Judges adopted month; more than one member, under section as final the rates for the section 119 * * * * * 1967(a)(4)(B) the child is insured by the compulsory license for the period 2010– Dated: November 19, 2012. coverage of the member whose 2014 after publication in the Federal Suzanne M. Barnett, eligibility for SGLI occurred first, Register of the rates, as proposed by ‘‘except that if that member does not Copyright Owners and Satellite Chief Copyright Royalty Judge. have legal custody of the child, the Carriers,1 yielded no objections. See 75 [FR Doc. 2012–28507 Filed 11–23–12; 8:45 am] child shall be insured by the coverage FR 53198 (August 31, 2010). Section BILLING CODE 1410–72–P of the member who has legal custody of 119(c)(2) requires the Judges annually to the child.’’ Congress, however, did not adjust these rates ‘‘to reflect any changes indicate whether this provision is occurring in the cost of living DEPARTMENT OF VETERANS applicable to a stillborn child. VA adjustment (for all consumers and for all AFFAIRS therefore proposed to fill the gap left by items) [‘‘CPI–U’’] published * * * at Congress subjecting the coverage of a least 25 days before January 1.’’ Id. 38 CFR Part 9 stillborn child to the limitation that an Today’s notice fulfills this obligation. RIN 2900–AO30 insurable dependent who is a child may The change in the cost of living as not be insured at any time by the determined by the CPI–U during the Servicemembers’ Group Life insurance coverage of more than one period from the most recent index Insurance—Stillborn Child Coverage member. We further proposed that a published before December 1, 2011, to AGENCY: Department of Veterans Affairs. stillborn child of two SGLI-covered the most recent index published before parents will always be insured under December 1, 2012, is 2.2%.2 Rounding ACTION: Final rule. the mother’s coverage because state laws to the nearest cent, the royalty rates for SUMMARY: This final rule amends the do not address legal custody of a the secondary transmission of broadcast Department of Veterans Affairs (VA) stillborn. stations by satellite carriers for private Servicemembers’ Group Life Insurance Two commenters wrote in support of home viewing and viewing in (SGLI) regulations in order to provide the proposed rule. Three of the commercial establishments are 27 cents that, if a stillborn child is otherwise commenters raised issues regarding the eligible to be insured by the SGLI proposed rule. 1 Program Suppliers and Joint Sports Claimants coverage of more than one One commenter stated that the rule comprised the Copyright Owners, while DIRECTV, Inc., DISH Network, LLC and National servicemember under SGLI dependent does not take into account a case in Programming Service, LLC, comprised the Satellite child coverage, the child would be which a stillborn child’s parents are the Carriers. insured by the coverage of the child’s same sex and urged flexibility in the 2 The most recent CPI–U figures are published in SGLI-insured biological mother. This rule so as not to prejudice homosexual November of each year and use the period 1982– 1984 to establish a reference base of 100. The index final rule will provide consistency in couples. The premise of this comment, for October 2011 was 226.421, while the figure for payment determinations involving SGLI that a stillborn child could have parents October 2012 was 231.414. stillborn child coverage. of the same sex, is mistaken. VA has

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defined the term ‘‘member’s stillborn account of the member’s insurable mother can simply give the proceeds to child’’ in 38 CFR 9.1(k)(1) to mean ‘‘a dependent’s death, the SGLI proceeds the stillborn’s father. We therefore do member’s natural child’’ who meets payable on account of the insurable not believe this rule needs to be other criteria not relevant to this dependent’s death are payable to the amended to address this situation. discussion. The term ‘‘natural child’’ person or persons entitled to the A commenter disagreed with VA’s refers to a biological child. Black’s Law proceeds payable on account of the assessment that the rule does not Dictionary 272 (9th ed. 2009); see Luke member’s death. Therefore, if an insured require a cost-benefit analysis. The v. Bowen, 868 F.2d 974, 978 (8th Cir. mother gave birth to a stillborn and died commenter stated that, as required by 1989). As a result, this rule is applicable before payment on account of the Executive Orders 12866 and 13563, only if both biological parents of the stillborn child could be made to her, the before promulgating the rule, VA should stillborn child are SGLI-insured. There SGLI proceeds payable on account of complete a cost-benefit analysis of the can be only two biological parents of a the stillborn would be payable to the rule regarding its effect on same sex child: The mother who provided the person or persons entitled to the couples who use a surrogate. The ovum that was fertilized and the father proceeds payable on account of the commenter’s premise is mistaken. In the who provided the semen that fertilized mother’s death. Only if the mother had notice of proposed rulemaking, VA did the ovum. Black’s Law Dictionary 1222 no designated beneficiary, surviving not state that a cost-benefit analysis was (defining ‘‘biological parent’’ as woman spouse, child, or parent would the not required. In fact, VA’s analysis of who provides egg or man who provides proceeds be paid to the executor or the proposed rule is publicly available sperm to form zygote that becomes administrator of the insured mother’s on the VA Web site at http://www.va. embryo). Thus, there cannot be two estate. 38 U.S.C. 1970(a). gov/ORPM/VA_Regulations_Published_ biological parents of the same sex. We One commenter also noted that the From_Fiscal_Year_FY_2004.asp. Rather make no change based on this comment. rule might eliminate the opportunity for VA stated that ‘‘VA has examined the Other commenters inquired about a notifying the stillborn child’s father economic, interagency, legal, and policy case in which a stillborn child is born about the stillbirth in some implications of this proposed rule and to a surrogate for a SGLI-insured. As circumstances. This comment is beyond has determined it not to be a significant explained above, in accordance with 38 the scope of the rulemaking, which is regulatory action under Executive Order U.S.C. 1967, this rule is only applicable intended to explain which member’s 12866.’’ 77 FR 4735. We therefore make if the stillborn’s biological parents are SGLI would insure a stillborn who is no change based on this comment. both insured under SGLI. Generally, otherwise eligible to be insured by the Based on the rationale set forth in the there are two types of surrogacy: (1) A SGLI coverage of more than one proposed rule and upon consideration surrogate is inseminated with sperm member. of the public comments submitted, we which fertilizes her own ovum, This commenter also stated that the adopt the provisions of the proposed resulting in a child who is biologically rule would impose on the mother rule as a final rule, with the changes related to her; and (2) a surrogate is additional burdens associated with noted above. impregnated with an embryo that is not insurance coverage on the birth of a We are also making one non- the product of her ovum, resulting in a stillborn child. The commenter substantive change to the regulations child who is not biologically related to referenced paperwork to be filled out to governing the birth of a stillborn child. her. If a surrogate is the biological initiate a claim and other fees, We are substituting the word mother of a stillborn and if both the deductibles, or administrative ‘‘biological’’ for the word ‘‘natural’’ in surrogate and the stillborn’s biological requirements, all of which would have the definition of ‘‘member’s stillborn father are SGLI-insureds, the SGLI to be borne by the birth mother, child’’ in § 9.1(k)(1). We are not altering proceeds would be payable to the regardless of her preferences or the the substantive content of the definition surrogate under this rule. Again, this family’s preferences regarding insurance by making this change but rather are outcome would be consistent with one coverage. As explained in the preamble substituting a more current term for an reason provided for the proposed rule, to the proposed rule, 77 FR 4734, this outdated one. i.e., the stillborn child was exclusively amendment will obviate the need to in the surrogate’s physical custody. 77 establish paternity following the birth of Unfunded Mandates FR 4734. If however a surrogate is not a stillborn child, which we believe The Unfunded Mandates Reform Act the biological mother of the stillborn would impose far more onerous burdens of 1995 requires, at 2 U.S.C. 1532, that and if both of the stillborn’s biological than completing a claim to recover the agencies prepare an assessment of parents are SGLI-insureds, the SGLI SGLI proceeds. Further, there are no anticipated costs and benefits before proceeds would be payable to the fees, deductibles, or other issuing any rule that may result in an stillborn’s biological mother under this administrative requirements necessary expenditure by State, local, and tribal rule. To ensure the clarity of the rule in to file a claim for SGLI family coverage governments, in the aggregate, or by the this regard, we are changing the that would impose a burden on the private sector, of $100 million or more reference to ‘‘the child’s insured mother of the stillborn child. We also (adjusted annually for inflation) in any mother’’ to read ‘‘the child’s insured believe that this rule will have the one year. This rule would have no such biological mother.’’ beneficial effect of providing clear, effect on State, local, and tribal One commenter stated that, generally definite guidance to members and their governments or on the private sector. with regard to life insurance, if an families as to how SGLI family coverage insured mother dies prior to the will be paid in the event of a stillbirth. Paperwork Reduction Act stillborn or seconds after giving birth to We therefore make no change based This final rule contains no provision a stillborn, the proceeds would become upon this comment. constituting a collection of information part of the mother’s estate and that, if Another commenter stated that the under the Paperwork Reduction Act (44 she dies intestate, the proceeds would rule ignores the fact that the stillborn U.S.C. 3501 et seq.). pass in accordance with intestacy laws. child’s parents may choose that the This situation is covered by 38 U.S.C. father of the child receive payment of Executive Orders 12866 and 13563 1970(i), which directs that, if a member SGLI proceeds instead of the mother. In Executive Orders 12866 and 13563 dies before payment can be made on such circumstances, the stillborn’s direct agencies to assess all costs and

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benefits of available regulatory submit the document to the Office of the SUMMARY: EPA is withdrawing its March alternatives and, when regulation is Federal Register for publication 8, 2010 final action approving State necessary, to select regulatory electronically as an official document of Implementation Plan (SIP) revisions approaches that maximize net benefits the Department of Veterans Affairs. John submitted by California to provide for (including potential economic, R. Gingrich, Chief of Staff, approved this attainment of the 1-hour ozone National environmental, public health and safety document on November 20, 2012, for Ambient Air Quality Standards effects, and other advantages; publication. (NAAQS) in the San Joaquin Valley distributive impacts; and equity). List of Subjects in 38 CFR Part 9 extreme ozone nonattainment area. In Executive Order 13563 (Improving addition, EPA is withdrawing its March Regulation and Regulatory Review) Life insurance, Military personnel, 1, 2012 determination that the emphasizes the importance of Veterans. California SIP satisfies the requirement quantifying both costs and benefits, Dated: November 20, 2012. regarding offsetting emissions growth reducing costs, harmonizing rules, and Robert C. McFetridge, caused by growth in vehicle miles promoting flexibility. Executive Order Director of Regulation Policy and traveled (VMT) under the Clean Air Act 12866 (Regulatory Planning and Management, Office of the General Counsel, (CAA) for the 1997 8-hour ozone Review) defines a ‘‘significant Department of Veterans Affairs. NAAQS in the San Joaquin Valley. regulatory action,’’ which requires For the reasons stated in the Finally, EPA is finding that California review by the Office of Management and preamble, the Department of Veterans has failed to submit required SIP Budget (OMB), as ‘‘any regulatory action Affairs is amending 38 CFR part 9 as revisions to provide for attainment of that is likely to result in a rule that may: follows: the 1-hour ozone NAAQS and to (1) Have an annual effect on the address the VMT emissions offset economy of $100 million or more or PART 9—SERVICEMEMBERS’ GROUP requirement for the 1997 8-hour ozone adversely affect in a material way the LIFE INSURANCE AND VETERANS’ NAAQS in the San Joaquin Valley. economy, a sector of the economy, GROUP LIFE INSURANCE Under the CAA, these findings of failure productivity, competition, jobs, the to submit trigger the 18-month time environment, public health or safety, or ■ 1. The authority citation for part 9 clock for mandatory imposition of State, local, or tribal governments or continues to read as follows: sanctions and the two-year time clock communities; (2) create a serious Authority: 38 U.S.C. 501, 1965–1980A, for EPA to promulgate federal inconsistency or otherwise interfere unless otherwise noted. implementation plans. with an action taken or planned by § 9.1 [Amended] DATES: The rule is effective November another agency; (3) materially alter the 26, 2012. budgetary impact of entitlements, ■ 2. Amend § 9.1(k)(1) by removing grants, user fees, or loan programs or the ‘‘natural’’ and adding, in its place, ADDRESSES: EPA has established docket rights and obligations of recipients ‘‘biological’’. number EPA–R09–OAR–2012–0734 for thereof; or (4) raise novel legal or policy ■ 3. Amend § 9.5 by adding paragraph this action. The index to the docket is issues arising out of legal mandates, the (f) and revising the authority citation at available electronically at President’s priorities, or the principles the end of the section to read as follows: www.regulations.gov and in hard copy set forth in this Executive Order.’’ at EPA Region 9, 75 Hawthorne Street, VA has examined the economic, § 9.5 Payment of proceeds. San Francisco, California. While all interagency, legal, and policy * * * * * documents in the docket are listed in implications of this final rule and has (f) If a stillborn child is otherwise the index, some may be publicly determined that it is not a significant eligible to be insured by the available only at the hard copy location regulatory action under Executive Order Servicemembers’ Group Life Insurance (e.g., copyrighted material) and some 12866. coverage of more than one member, the may not be publicly available at either child shall be insured by the coverage location (e.g., CBI). To inspect the hard Regulatory Flexibility Act of the child’s insured biological mother. copy materials, please schedule an The Secretary hereby certifies that (Authority: 38 U.S.C. 501(a), 1965(10), appointment during normal business this final rule will not have a significant 1967(a)(4)(B)) hours with the contact listed in the FOR economic impact on a substantial [FR Doc. 2012–28611 Filed 11–23–12; 8:45 am] FURTHER INFORMATION CONTACT section. number of small entities as they are BILLING CODE 8320–01–P defined in the Regulatory Flexibility FOR FURTHER INFORMATION CONTACT: Act, 5 U.S.C. 601 et seq. This final rule Frances Wicher, Air Planning Office will directly affect only individuals and (AIR–2), (415) 972–3957, ENVIRONMENTAL PROTECTION [email protected]. will not directly affect small entities. AGENCY Therefore, pursuant to 5 U.S.C. 605(b), SUPPLEMENTARY INFORMATION: this final rule is exempt from the initial 40 CFR Part 52 Throughout this document, ‘‘we’’, ‘‘us’’ and final regulatory flexibility analysis and ‘‘our’’ refer to EPA. requirements of sections 603 and 604. [EPA–R09–OAR–2012–0734; FRL–9753–4] Table of Contents Catalog of Federal Domestic Assistance Withdrawal of Approval of Air Quality The catalog of Federal Domestic Implementation Plans and Findings of I. San Joaquin Valley 2004 1-Hour Ozone Assistance Program number and the title Failure To Submit Required Plans; Plan California; San Joaquin Valley; 1-Hour A. Withdrawal of EPA’s Approval of the for this regulation is 64.103, Life 2004 1-Hour Ozone Plan Insurance for Veterans. and 8-Hour Ozone Extreme Area Plan Elements B. Finding of Failure To Submit a SIP To Signing Authority Provide for Attainment of the 1-Hour AGENCY: U.S. Environmental Protection Ozone Standards in the SJV Extreme 1- The Secretary of Veterans Affairs, or Agency (EPA). Hour Ozone Nonattainment Area designee, approved this document and ACTION: Final rule. II. VMT Emissions Offset Requirement for the authorized the undersigned to sign and 1997 8-Hour Ozone Standards

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A. Withdrawal of EPA’s Determination extreme ozone nonattainment area.1 because it would divert EPA resources That the 2007 8-Hour Ozone Plan Therefore, simultaneously with this from the critical substantive review of Satisfies the VMT Emissions Offset withdrawal of approval, EPA is finding complete SIPs. See 58 FR 51270, 51272, Requirement in CAA Section that California has failed to submit an note 7 (October 1, 1993); 59 FR 39832, 182(d)(1)(A) extreme area plan to provide for 39853 (August 4, 1994). B. Finding of Failure To Submit a SIP attainment of the 1-hour ozone NAAQS Meeting the CAA Section 182(d)(1)(A) II. VMT Emissions Offset Requirement in the SJV nonattainment area. VMT Emissions Offset Requirement for for 1997 8-Hour Ozone Standards the SJV Extreme 8-Hour Ozone As explained in our proposed rule (77 Nonattainment Area FR at 58079–80), the plan elements A. Withdrawal of EPA’s Determination III. Final Actions under subparts 1 and 2 of part D, title That the 2007 8-Hour Ozone Plan IV. Statutory and Executive Order Reviews I of the CAA that California is required Satisfies the VMT Emissions Offset to submit for the 1-hour ozone NAAQS I. San Joaquin Valley 2004 1-Hour Requirement in CAA Section for the SJV are as follows: (1) A rate of Ozone Plan 182(d)(1)(A) progress (ROP) demonstration meeting EPA is withdrawing its March 1, 2012 A. Withdrawal of EPA’s Approval of the the requirements of CAA sections determination that California’s SIP to 2004 1-Hour Ozone Plan 172(c)(2) and 182(c)(2); (2) ROP provide for attainment of the 1997 8- contingency measures meeting the hour ozone NAAQS 2 in the SJV extreme EPA is withdrawing its March 8, 2010 requirements of CAA sections 172(c)(9) final action approving SIP revisions ozone nonattainment area (2007 8-Hour and 182(c)(9); (3) an attainment Ozone Plan) satisfies the requirement submitted by California under the CAA demonstration meeting the requirements to provide for attainment of the 1-hour regarding emissions growth caused by of CAA sections 182(c)(2)(A) and growth in vehicle miles traveled in CAA ozone national ambient air quality 172(a)(2); (4) attainment contingency standards (NAAQS) in the San Joaquin section 182(d)(1)(A) for the 1997 8-hour measures meeting the requirements of ozone NAAQS. Section 182(d)(1)(A) of Valley (SJV) extreme ozone CAA sections 172(c)(9); (5) a reasonably nonattainment area (2004 1-Hour Ozone the Act requires, in relevant part, that available control measures (RACM) each state containing a ‘‘severe’’ or Plan) (75 FR 10420). The effect of this demonstration meeting the requirements action is to entirely withdraw the 2004 ‘‘extreme’’ ozone nonattainment area of CAA section 172(c)(1); (6) provisions submit a SIP revision that identifies and 1-Hour Ozone Plan from the applicable satisfying the requirements for clean California SIP. We proposed this action adopts specific enforceable fuels/clean technologies for boilers in transportation control strategies and on September 19, 2012 (77 FR 58078) CAA 182(e)(3); and (7) provisions measures to offset any growth in and provided a 30-day period for the satisfying the vehicle miles traveled emissions from growth in vehicle miles public to submit comments. We (VMT) provisions of CAA section traveled or numbers of vehicle trips in received no comments. 182(d)(1)(A). See 40 CFR 51.905(a)(1) the area (VMT emissions offset EPA is taking this action in response and 51.900(f); see also 75 FR 10420, requirement).3 We proposed this action to a decision of the U.S. Court of 10436–37. on September 19, 2012 (77 FR 58078) This finding of failure to submit is not Appeals for the Ninth Circuit in Sierra and provided a 30-day period for the subject to the notice-and-comment Club et. al v. EPA, 671 F.3d 955 (9th Cir. public to submit comments. We requirements of the Administrative 2012) (Sierra Club). For further received no comments. background on this court decision and Procedure Act (APA), 5 U.S.C. 553(b). EPA is taking this action in response EPA’s rationale for today’s action, EPA believes that because of the limited to a decision of the U.S. Court of please see our proposed rule at 77 FR time provided by the CAA to make Appeals for the Ninth Circuit in 58078. findings of failure to submit, Congress Association of Irritated Residents v. did not intend such findings to be EPA, 632 F.3d 584 (9th Cir. 2011), B. Finding of Failure To Submit a SIP subject to notice-and-comment reprinted as amended on January 27, To Provide for Attainment of the 1-Hour rulemaking. However, to the extent such 2012, 686 F.3d 668, further amended Ozone Standards in the SJV Extreme 1- findings are subject to notice-and- February 13, 2012 (AIR). For further Hour Ozone Nonattainment Area comment rulemaking, we invoke the background on this court decision and good cause exception pursuant to APA Following our proposed rule to EPA’s rationale for today’s action, section 553(b)(3)(B). Notice and please see our proposed rule at 77 FR withdraw our March 8, 2010 approval of comment are unnecessary because no 58078. the 2004 1-Hour Ozone Plan into the EPA judgment is involved in making a SIP, California submitted a letter stating This withdrawal of approval is non-substantive finding of failure to limited to our determination that the its intention to withdraw its submission submit SIPs required by the CAA. of this plan to EPA, effective 2007 8-Hour Ozone Plan satisfies the Furthermore, notice and comment VMT emissions offset requirement in immediately upon EPA’s final would be contrary to the public interest withdrawal of the March 8, 2010 CAA section 182(d)(1)(A) for the 1997 8- hour ozone NAAQS. All other approval. See letter dated October 15, 1 California was obligated to submit SIP revisions 2012, from James N. Goldstene, to address the requirement in CAA section determinations in our March 1, 2012 Executive Officer, California Air 182(d)(1)(A) regarding offsetting emissions growth final rule approving the 2007 8-Hour Resources Board, to Jared Blumenfeld, caused by growth in VMT for the 1-hour ozone Ozone Plan at 77 FR 12652 remain standard in SJV no later than May 31, 2002, and unchanged and in effect. Regional Administrator, EPA Region 9. additional SIP revisions meeting the CAA’s extreme As a consequence of EPA’s final area requirements for the 1-hour ozone standard in withdrawal of our approval of the 2004 SJV no later than November 15, 2004. See 66 FR 2 All references in this preamble to the 8-hour 56476, 56481 (November 8, 2001) (final rule finding NAAQS are to the 0.08 parts per million standards 1-Hour Ozone Plan and California’s that SJV failed to attain 1-hour ozone NAAQS by established in 1997 at 40 CFR 50.10(b). simultaneous withdrawal of the 2004 1- applicable attainment date and reclassifying SJV 3 CAA section 182(d)(1)(A) also requires states to Hour Ozone Plan from EPA, the State is from ‘‘serious’’ to ‘‘severe’’ nonattainment, effective adopt transportation control strategies and now in default of its obligation to December 10, 2001) and 69 FR 20550 (April 16, measures as necessary to demonstrate attainment 2004) (final rule reclassifying SJV from ‘‘severe’’ to and reasonable further progress. These submit a SIP to provide for attainment ‘‘extreme’’ nonattainment for 1-hour ozone NAAQS, requirements of section 182(d)(1)(A) are not at issue of the 1-hour ozone NAAQS in the SJV effective May 17, 2004). in this action.

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B. Finding of Failure To Submit a SIP See 58 FR 51270, 51272, note 7 (October accordance with 40 CFR 52.31. The Meeting the CAA Section 182(d)(1)(A) 1, 1993); 59 FR 39832, 39853 (August 4, State can end these sanction clocks or VMT Emissions Offset Requirement for 1994). lift any imposed sanctions by making the SJV 8-Hour Ozone Nonattainment complete SIP submittals addressing the III. Final Actions Area CAA’s extreme area requirements for the EPA’s determination that the 2007 8- A. Withdrawals of Approvals 1-hour ozone NAAQS and the VMT Hour Ozone Plan satisfies the VMT EPA is withdrawing its March 8, 2010 emissions offset requirement for the 1997 8-hour ozone NAAQS in the SJV emissions offset requirement for the final action approving the 2004 1-Hour area. 1997 8-hour ozone NAAQS was made in Ozone Plan, which California submitted In addition to these sanctions, CAA the absence of any specific to provide for attainment of the 1-hour demonstration submitted by the State section 110(c)(1) provides that EPA ozone NAAQS in the SJV extreme ozone must promulgate a federal for this purpose and was based on EPA’s nonattainment area (75 FR 10420, evaluation of emissions inventory data implementation plan addressing the March 8, 2010). CAA’s extreme area requirements for the submitted as part of the 2007 8-Hour In addition, EPA is withdrawing its Ozone Plan. See 76 FR 57846, 57863 1-hour ozone NAAQS and the VMT March 1, 2012 determination that the emissions offset requirement for the (September 16, 2011) and 77 FR 12652, 2007 8-Hour Ozone Plan, which 12666 and 12670 (March 1, 2012). Thus, 1997 8-hour ozone NAAQS in the SJV California submitted to provide for area, no later than two years after as a consequence of our withdrawal of attainment of the 1997 8-hour ozone our determination that the 2007 8-Hour November 26, 2012, unless the State NAAQS in the SJV, satisfies the VMT submits and EPA approves SIP revisions Ozone Plan satisfies the VMT emissions emissions offset requirement in CAA offset requirement in CAA section addressing these requirements before section 182(d)(1)(A) for the 1997 8-hour that date. 182(d)(1)(A), California is now in ozone NAAQS in the SJV extreme ozone default of its obligation to submit a SIP nonattainment area (77 FR 12652 at C. Effective Date Under the revision meeting this CAA requirement 12670, March 1, 2012). Administrative Procedure Act for the 1997 8-hour ozone NAAQS in B. Findings of Failure To Submit These actions will be effective on the SJV extreme ozone nonattainment November 26, 2012. Under APA section 4 Required SIP Revisions area. Therefore, simultaneously with 553(d)(3), an agency rulemaking may this withdrawal of approval, EPA is As a consequence of EPA’s final take effect before 30 days after the date finding that California has failed to withdrawal of our previous approval of of publication in the Federal Register if submit a required SIP revision to meet the 2004 1-Hour Ozone Plan and an agency has good cause to specify an the VMT emissions offset requirement California’s simultaneous withdrawal of earlier effective date. Today’s actions to in CAA section 182(d)(1)(A) for the 1997 its submission of the 2004 1-Hour withdraw EPA’s previous approval of 8-hour ozone NAAQS in the SJV Ozone Plan, EPA is finding that the 2004 1-Hour Ozone Plan and to extreme ozone nonattainment area. California has failed to submit a withdraw EPA’s previous determination This finding of failure to submit is not required SIP revision to provide for that the 2007 8-Hour Ozone Plan subject to the notice-and-comment attainment of the 1-hour ozone NAAQS satisfies the VMT emissions offset requirements of the APA. EPA believes in the SJV extreme ozone nonattainment requirement in CAA section that because of the limited time area. 182(d)(1)(A) for the 1997 8-hour ozone provided by the CAA to make findings In addition, as a consequence of NAAQS are being taken in response to of failure to submit, Congress did not EPA’s withdrawal of our determination the Ninth Circuit’s decisions in the intend such findings to be subject to that the 2007 8-Hour Ozone Plan Sierra Club and AIR decisions, as notice-and-comment rulemaking. satisfies the VMT emissions offset discussed above and in our proposed However, to the extent such findings are requirement in CAA section rule. The purpose of a delayed effective subject to notice-and-comment 182(d)(1)(A) for the 1997 8-hour ozone date is to ensure that regulated entities rulemaking, we invoke the good cause NAAQS, EPA is finding that California have advance notice of obligations with exception pursuant to APA section has failed to submit a required SIP which they must comply. Because 553(b)(3)(B). Notice and comment are revision that identifies and adopts today’s withdrawal actions do not place unnecessary because no EPA judgment transportation control strategies and a burden on any entity, a delayed is involved in making a non-substantive measures to offset any growth in compliance date is unnecessary. finding of failure to submit SIPs emissions from growth in VMT or the Moreover, because the court has ruled required by the CAA. Furthermore, numbers of vehicle trips as required by that these prior determinations were notice and comment would be contrary CAA section 182(d)(1)(A) for the 1997 8- inconsistent with the CAA, it is in the to the public interest because it would hour ozone NAAQS in the SJV extreme public interest for the effective date of divert EPA resources from the critical ozone nonattainment area. our actions withdrawing these substantive review of complete SIPs. Under CAA section 179(a), a finding approvals to become effective of failure to submit a plan or plan immediately. These reasons support an 4 Consistent with CAA section 182(d)(1)(A) and element required by part D of title I of effective date prior to 30 days after the EPA’s implementation regulations for the 1997 8- hour ozone NAAQS at 40 CFR part 51, subpart X, the Act triggers sanction clocks under date of publication of these withdrawals we interpret the 2-year timeframe for submission of CAA section 179(b). These clocks run of approval. the VMT emissions offset SIP for the 1997 8-hour from the effective date of EPA’s finding. In addition, EPA’s finding that ozone NAAQS to run from the effective date of The first sanction, the offset sanction in California has failed to submit an EPA’s reclassification of SJV from ‘‘serious’’ to extreme area plan to provide for ‘‘extreme’’ nonattainment for this standard. CAA section 179(b)(2), will apply in the Accordingly, California was obligated to submit a SJV extreme ozone nonattainment area attainment of the 1-hour ozone NAAQS VMT emissions offset SIP for the 1997 8-hour ozone 18 months from November 26, 2012. in the SJV is a necessary consequence of NAAQS for the SJV area no later than June 4, 2012. The second sanction, highway funding EPA’s withdrawal of approval of the See 75 FR 24409 (May 5, 2010) (final rule 2004 1-Hour Ozone Plan and reclassifying SJV from ‘‘serious’’ to ‘‘extreme’’ sanctions in CAA section 179(b)(1), will nonattainment for 1997 8-hour ozone NAAQS, apply in the area six months after the California’s simultaneous withdrawal of effective June 4, 2010). offset sanction is imposed, in this plan from EPA. Similarly, EPA’s

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finding that California has failed to vehicle trips in each of their severe and emissions offset requirement in CAA submit a VMT emissions offset SIP extreme 8-hour ozone nonattainment section 182(d)(1)(A)). This action will under CAA section 182(d)(1)(A) for the areas. Therefore, because this action not modify this relationship. Thus, 1997 8-hour ozone NAAQS for the SJV does not create any new requirements, Executive Order 13132 does not apply is a necessary consequence of EPA’s I certify that this action will not have a to this action. withdrawal of its determination that the significant economic impact on a F. Executive Order 13175, Coordination 2007 8-Hour Ozone Plan satisfies this substantial number of small entities. With Indian Tribal Governments requirement. These findings of failure to D. Unfunded Mandates Reform Act submit concern required CAA This final action does not have tribal submittals that are overdue. We Under sections 202 of the Unfunded implications, as specified in Executive previously cautioned California and the Mandates Reform Act of 1995 Order 13175. It will not have substantial public that we would make such (‘‘Unfunded Mandates Act’’), signed direct effects on tribal governments, on findings and that these findings would into law on March 22, 1995, EPA must the relationship between the Federal be effective upon publication in the prepare a budgetary impact statement to government and Indian tribes, or on the Federal Register. See 77 FR 58078 at accompany any proposed or final rule distribution of power and 58079, 58080. Finally, these findings of that includes a Federal mandate that responsibilities between the Federal failure to submit simply start clocks that may result in estimated costs to State, government and Indian tribes. Thus, will not result in sanctions against the local, or tribal governments in the Executive Order 13175 does not apply State for 18 months and that the State aggregate; or to the private sector, of to this final action. $100 million or more. Under section may turn off by making complete SIP G. Executive Order 13045, Protection of submittals. These reasons support an 205, EPA must select the most cost- effective and least burdensome Children From Environmental Health effective date prior to 30 days after the Risks and Safety Risks date of publication of these findings. alternative that achieves the objectives of the rule and is consistent with EPA interprets Executive Order 13045 IV. Statutory and Executive Order statutory requirements. Section 203 (62 FR 19885, April 23, 1997) as Reviews requires EPA to establish a plan for applying only to those regulatory A. Executive Order 12866, Regulatory informing and advising any small actions that concern health or safety Planning and Review governments that may be significantly risks, such that the analysis required or uniquely impacted by the rule. under section 5–501 of the Executive This action is not a ‘‘significant EPA has determined that this action Order has the potential to influence the regulatory action’’ under the terms of to withdraw previous EPA approvals regulation. This action is not subject to Executive Order 12866 and is therefore and determinations and to make Executive Order 13045 because it is not subject to review under it. findings of failure to submit under the withdrawing previous EPA approvals CAA does not include a Federal B. Paperwork Reduction Act and determinations and making findings mandate that may result in estimated that California has failed to submit a SIP This action does not impose an costs of $100 million or more to either that meets the requirements of CAA the information collection burden under the State, local, or tribal governments in the SJV extreme ozone nonattainment area. provisions of the Paperwork Reduction aggregate, or to the private sector. This The findings of failure to submit Act, 44 U.S.C. 3501 et seq. Burden is action relates to the existing establish a 24-month deadline for EPA defined at 5 CFR 1320.3(b). requirements in the CAA that states to promulgate a FIP to address the C. Regulatory Flexibility Act submit SIPs to provide for attainment outstanding SIP requirements unless, and to meet other applicable CAA prior to that time, California submits, The Regulatory Flexibility Act (RFA) requirements in each of their 1-hour and EPA approves, the required SIPs. generally requires an agency to conduct ozone nonattainment areas and to a regulatory flexibility analysis of any submit transportation control strategies H. Executive Order 13211, Actions That rule subject to notice and comment and measures to offset emissions growth Significantly Affect Energy Supply, rulemaking requirements unless the from growth in VMT or the numbers of Distribution, or Use agency certifies that the rule will not vehicle trips in each of their severe and This rule is not subject to Executive have a significant economic impact on extreme 8-hour ozone nonattainment Order 13211, ‘‘Actions Concerning a substantial number of small entities. areas. Accordingly, no additional costs Regulations That Significantly Affect Small entities include small businesses, to State, local, or tribal governments, or Energy Supply, Distribution, or Use’’ (66 small not-for-profit enterprises, and to the private sector, result from this FR 28355, May 22, 2001) because it is small governmental jurisdictions. action. not a significant regulatory action under This action to withdraw previous EPA Executive Order 12866. approvals and determinations and to E. Executive Order 13132, Federalism make findings of failure to submit under This action does not have federalism I. National Technology Transfer and the CAA will not have a significant implications. It will not have substantial Advancement Act impact on a substantial number of small direct effects on the States, on the Section 12 of the National Technology entities because this action does not relationship between the national Transfer and Advancement Act create any new requirements. This government and the State, or on the (NTTAA) of 1995 requires Federal action relates to the existing distribution of power and agencies to evaluate existing technical requirements in the CAA that states responsibilities among the various standards when developing a new submit SIPs to provide for attainment levels of government, as specified in regulation. To comply with NTTAA, and to meet other applicable CAA Executive Order 13132. The CAA EPA must consider and use ‘‘voluntary requirements in each of their 1-hour establishes the scheme whereby states consensus standards’’ (VCS) if available ozone nonattainment areas and to take the lead in developing SIPs and applicable when developing submit transportation control strategies including SIPs to attain the NAAQS and programs and policies unless doing so and measures to offset emissions growth to meet other applicable CAA would be inconsistent with applicable from growth in VMT or the numbers of requirements including the VMT law or otherwise impractical.

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EPA believes that VCS are Fairness Act of 1996, generally provides Authority: 42 U.S.C. 7401 et seq. inapplicable to this action. Today’s that before a rule may take effect, the Dated: November 9, 2012. action does not require the public to agency promulgating the rule must Jared Blumenfeld, perform activities conducive to the use submit a rule report, which includes a EPA Regional Administrator, Region 9. of VCS. copy of the rule, to each House of the Congress and to the Comptroller General For the reasons discussed in the J. Executive Order 12898: Federal of the United States. EPA will submit a preamble, EPA amends 40 CFR part 52 Actions To Address Environmental report containing this rule and other to read as follows: Justice in Minority Populations and required information to the U.S. Senate, Low-Income Populations PART 52—APPROVAL AND the U.S. House of Representatives, and PROMULGATION OF Executive Order 12898 (59 FR 7629 the Comptroller General of the United IMPLEMENTATION PLANS (February 16, 1994)) establishes federal States prior to publication of the rule in executive policy on environmental the Federal Register. A major rule ■ 1. The authority citation for part 52 justice. Its main provision directs cannot take effect until 60 days after it continues to read as follows: federal agencies, to the greatest extent is published in the Federal Register. practicable and permitted by law, to This action is not a ‘‘major rule’’ as Authority: 42 U.S.C. 7401 et seq. make environmental justice part of their defined by 5 U.S.C. section 804(2). This mission by identifying and addressing, rule is effective on November 26, 2012. Subpart F—California as appropriate, disproportionately high L. Petitions for Judicial Review ■ and adverse human health or 2. Section 52.220 is amended by: ■ environmental effects of their programs, Under CAA section 307(b)(1), a. Removing and reserving paragraphs policies, and activities on minority petitions for judicial review of this (c)(317)(i)(B) and (c)(339)(i)(B); ■ populations and low-income action must be filed in the United States b. Removing paragraph (c)(339)(ii)(C); populations in the United States. Court of Appeals for the appropriate and ■ EPA has determined that this final circuit by January 25, 2013. Filing a c. Removing and reserving paragraphs action will not have disproportionately petition for reconsideration by the (c)(369) and (c)(370) to read as follows: high and adverse human health or Administrator of this final action does § 52.220 Identification of plan. environmental effects on minority or not affect the finality of this rule for the * * * * * low-income populations because it does purposes of judicial review nor does it (c) * * * not directly affect the level of protection extend the time within which a petition (317) * * * provided to human health or the for judicial review may be filed, and (i) * * * environment. This notice is shall not postpone the effectiveness of (B) [Reserved] withdrawing previous EPA approvals such rule or action. This action may not and determinations and making findings be challenged later in proceedings to * * * * * that California has failed to submit SIPs enforce its requirements (see section (339) * * * that meet certain requirements of CAA 307(b)(2)). (i) * * * for the SJV extreme ozone (B) [Reserved] List of Subjects in 40 CFR Part 52 nonattainment area. * * * * * Environmental protection, Air (369) [Reserved] K. Congressional Review Act pollution control, Incorporation by (370) [Reserved] The Congressional Review Act, 5 reference, Intergovernmental relations, * * * * * U.S.C. 801 et seq., as added by the Small Nitrogen dioxide, Ozone, Volatile [FR Doc. 2012–28217 Filed 11–23–12; 8:45 am] Business Regulatory Enforcement organic compounds. BILLING CODE 6560–50–P

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Proposed Rules Federal Register Vol. 77, No. 227

Monday, November 26, 2012

This section of the FEDERAL REGISTER Pay Agent (the Secretary of Labor, the part 531 to link locality pay areas to contains notices to the public of the proposed Director of the Office of Management existing MSAs and CSAs as defined in issuance of rules and regulations. The and Budget (OMB), and the Director of OMB Bulletin 10–02 of December 1, purpose of these notices is to give interested the Office of Personnel Management 2009. Under the proposed rule, pay persons an opportunity to participate in the (OPM)) to determine locality pay areas. areas would not change to conform to rule making prior to the adoption of the final rules. The boundaries of locality pay areas new CBSA definitions unless the Pay must be based on appropriate factors, Agent decides later to adopt the new which may include local labor market definitions. The Pay Agent will make its OFFICE OF PERSONNEL patterns, commuting patterns, and the determination after receiving and MANAGEMENT practices of other employers. The Pay considering the recommendations of the Agent must give thorough consideration Federal Salary Council. 5 CFR Part 531 to the views and recommendations of The Pay Agent will publish for comment any proposed changes in RIN 3206–AM51 the Federal Salary Council, a body composed of experts in the fields of locality pay areas based on the new General Schedule Locality Pay Areas labor relations and pay policy and definitions, if they are adopted. Under representatives of Federal employee this proposed rule, locality pay areas AGENCY: U.S. Office of Personnel organizations. The President appoints will not change automatically when Management. the members of the Council, which OMB changes metropolitan area ACTION: Proposed rule with request for submits annual recommendations to the definitions in 2013. comments. Pay Agent about the locality pay Impact and Implementation program. The establishment or SUMMARY: On behalf of the President’s modification of pay area boundaries The proposed rule will have no effect Pay Agent, the Office of Personnel must conform with the notice and on existing locality pay area definitions Management is issuing proposed comment provisions of the but will prevent any changes that would regulations to tie the metropolitan area Administrative Procedure Act (5 U.S.C. otherwise occur when OMB updates portion of locality pay area boundaries 553). MSA and CSA definitions in 2013. to the geographic scope of Metropolitan Based on recommendations of the Statistical Area and Combined Executive Order 13563 and Executive Federal Salary Council, we have used Order 12866 Statistical Area definitions that are Core Based Statistical Areas (CBSA) contained in the attachments to Office designated by the Office of Management The Office of Management and Budget of Management and Budget Bulletin 10– and Budget (OMB) as the basis for has reviewed this rule in accordance 02 of December 1, 2009. locality pay areas since locality pay with E.O. 13563 and E.O. 12866. DATES: We must receive comments on or began in 1994. Under current Regulatory Flexibility Act before January 10, 2013. regulations, locality pay areas change ADDRESSES: You may submit comments, automatically the January following any I certify that these regulations would identified by ‘‘RIN 3206–AM51,’’ by any changes in applicable CBSA definitions not have a significant economic impact of the following methods: made by OMB. on a substantial number of small entities Federal eRulemaking Portal: http:// OMB typically makes substantial because they would apply only to www.regulations.gov. Follow the changes in the definitions of CBSAs Federal agencies and employees. instructions for submitting comments. after each census. When OMB redefined List of Subjects in 5 CFR Part 531 Email: [email protected]. CBSAs in 2003, we temporarily Government employees, Law Include ‘‘RIN 3206–AM51’’ in the delinked locality pay area boundaries enforcement officers, Wages. subject line of the message. from the revised definitions to allow the Fax: (202) 606–4264. Federal Salary Council and the Pay Office of Personnel Management. Mail, Hand Deliver/Courier Agent time to review the new John Berry, comments: Jerome D. Mikowicz, Deputy definitions to determine if the new Director. Associate Director for Pay and Leave, definitions were suitable for use in the Accordingly, OPM is proposing to Office of Personnel Management, Room locality pay program. Based on the amend 5 CFR part 531 as follows: 7H31, 1900 E Street NW., Washington, Council’s recommendations in 2003, the DC 20415–8200. Pay Agent later approved using the new PART 531—PAY UNDER THE FOR FURTHER INFORMATION CONTACT: CBSA—Metropolitan Statistical Areas GENERAL SCHEDULE Allan Hearne, (202) 606–2838; FAX: (MSA) and Combined Statistical Area 1. The authority citation for part 531 (202) 606–4264; email: pay-leave- (CSA)—definitions for defining locality continues to read as follows: [email protected]. pay areas. SUPPLEMENTARY INFORMATION: Section OMB plans to once again update Authority: 5 U.S.C. 5115, 5307, and 5338; 5304 of title 5, United States Code, CBSA definitions in 2013, and the sec. 4 of Pub. L. 103–89, 107 Stat. 981; and authorizes locality pay for General Federal Salary Council has E.O. 12748, 56 FR 4521, 3 CFR, 1991 Comp., p. 316; Subpart B also issued under 5 U.S.C. Schedule (GS) employees with duty recommended that we again temporarily 5303(g), 5305, 5333, 5334(a) and (b), and stations in the United States and its delink locality pay area definitions from 7701(b)(2); Subpart D also issued under 5 territories and possessions. the new MSA and CSA definitions to U.S.C. 5335 and 7701(b)(2); Subpart E also Section 5304(f) of title 5, United provide time for review. Therefore, the issued under 5 U.S.C. 5336; Subpart F also States Code, authorizes the President’s Pay Agent is proposing amending 5 CFR issued under 5 U.S.C. 5304, 5305, and

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5941(a), E.O. 12883, 58 FR 63281, 3 CFR, of a fuel leak, could result in fuel from adopting the proposals in this 1993 Comp., p. 682 and E.O. 13106, 63 FR accumulating in an area containing document. The most helpful comments 68151, 3 CFR, 1998 Comp., p. 224. electrical equipment. The proposed reference a specific portion of the actions are intended to prevent proposal, explain the reason for any Subpart F—Locality-Based accumulation of fuel in an area with recommended change, and include Comparability Payments electrical equipment or other ignition supporting data. To ensure the docket 2. In § 531.602, the definitions of CSA source, which may lead to a fire. does not contain duplicate comments, and MSA are revised to read as follows: DATES: We must receive comments on commenters should send only one copy this proposed AD by January 25, 2013. of written comments, or if comments are § 531.602 Definitions. ADDRESSES: You may send comments by filed electronically, commenters should * * * * * any of the following methods: submit only one time. CSA means the geographic scope of a • Federal eRulemaking Docket: Go to We will file in the docket all Combined Statistical Area as defined by http://www.regulations.gov. Follow the comments that we receive, as well as a the Office of Management and Budget online instructions for sending your report summarizing each substantive (OMB) in OMB Bulletin 10–02, comments electronically. public contact with FAA personnel December 1, 2009. • Fax: 202–493–2251. concerning this proposed rulemaking. * * * * * • Mail: Send comments to the U.S. Before acting on this proposal, we will MSA means the geographic scope of a Department of Transportation, Docket consider all comments we receive on or Metropolitan Statistical Area as defined Operations, M–30, West Building before the closing date for comments. by OMB in OMB Bulletin 10–02, Ground Floor, Room W12–140, 1200 We will consider comments filed after December 1, 2009. New Jersey Avenue SE., Washington, the comment period has closed if it is possible to do so without incurring * * * * * DC 20590–0001. • Hand Delivery: Deliver to the expense or delay. We may change this 3. In § 531.609, paragraph (d) is proposal in light of the comments we revised to read as follows: ‘‘Mail’’ address between 9 a.m. and 5 p.m., Monday through Friday, except receive. § 531.609 Adjusting or terminating locality Federal holidays. Discussion rates. Examining the AD Docket: You may The European Aviation Safety Agency * * * * * examine the AD docket on the Internet (EASA), which is the Technical Agent (d) In the event of a change in the at http://www.regulations.gov or in for the Member States of the European geographic coverage of a locality pay person at the Docket Operations Office Union, has issued EASA AD No. 2011– between 9 a.m. and 5 p.m., Monday area, the effective date of any change in 0190, dated September 30, 2011 (AD No. through Friday, except Federal holidays. an employee’s entitlement to a locality 2011–0190), to correct an unsafe The AD docket contains this proposed rate of pay under this subpart is the first condition for the Eurocopter France EC AD, the economic evaluation, any day of the first pay period beginning on 155, SA 366, SA 365, and AS 365 model comments received, and other or after the effective date indicated in helicopters, except those with certain information. The street address for the the applicable final rule published in modifications. EASA reports that the Docket Operations Office (telephone the Federal Register. fuel tank drains were closed with plugs 800–647–5527) is in the ADDRESSES * * * * * during production to maintain section. Comments will be available in [FR Doc. 2012–28555 Filed 11–23–12; 8:45 am] buoyancy during emergency landings in the AD docket shortly after receipt. BILLING CODE 6325–39–P water. EASA states that this closing of For service information identified in the fuel tank drains with plugs this proposed AD, contact American ‘‘disregards compliance with an Eurocopter Corporation, 2701 N. Forum DEPARTMENT OF TRANSPORTATION airworthiness certification requirement’’ Drive, Grand Prairie, TX 75052; and, in the event of a fuel leak in flight, telephone (972) 641–0000 or (800) 232– Federal Aviation Administration creates ‘‘the risk of fuel accumulation 0323; fax (972) 641–3775; or at http:// and/or migration’’ to an adjacent area www.eurocopter.com/techpub. You may 14 CFR Part 39 that may contain electrical equipment review a copy of the referenced service ‘‘susceptible of constituting a source of [Docket No. FAA–2012–1214; Directorate information at the FAA, Office of the Identifier 2011–SW–071–AD] ignition.’’ EASA states that this Regional Counsel, Southwest Region, condition, if not corrected, could result RIN 2120–AA64 2601 Meacham Blvd., Room 663, Fort in ignition of fuel vapors, ‘‘resulting in Worth, Texas 76137. a fire and consequent damage to the Airworthiness Directives; Eurocopter FOR FURTHER INFORMATION CONTACT: France Helicopters helicopter, or injury to its occupants.’’ Chinh Vuong, Aviation Safety Engineer, As a result, EASA required modification AGENCY: Federal Aviation Safety Management Group, Rotorcraft of the fuel tank compartments’ draining Administration (FAA), DOT. Directorate, FAA, 2601 Meacham Blvd., system. Fort Worth, Texas 76137; telephone ACTION: Notice of proposed rulemaking (817) 222–5110; email FAA’s Determination (NPRM). [email protected]. These helicopters have been approved SUMMARY: We propose to adopt a new SUPPLEMENTARY INFORMATION: by the aviation authority of France and airworthiness directive (AD) for are approved for operation in the United Eurocopter France Model EC 155B, Comments Invited States. Pursuant to our bilateral EC155B1, SA–366G1, SA–365N, SA– We invite you to participate in this agreement with France, EASA, its 365N1, AS–365N2, and AS 365 N3 rulemaking by submitting written technical representative, has notified us helicopters, which would require comments, data, or views. We also of the unsafe condition described in its modifying the fuel tank draining system. invite comments relating to the AD. We are proposing this AD because This proposed AD is prompted by a economic, environmental, energy, or we evaluated all known relevant closed fuel tank drain that, in the event federalism impacts that might result information and determined that an

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unsafe condition is likely to exist or require two work-hours for a total cost PART 39—AIRWORTHINESS develop on other products of these same of $170 per helicopter. DIRECTIVES type designs. Authority for This Rulemaking 1. The authority citation for part 39 Related Service Information Title 49 of the United States Code continues to read as follows: Eurocopter issued Alert Service specifies the FAA’s authority to issue Authority: 49 U.S.C. 106(g), 40113, 44701. Bulletin (ASB) No. EC155–53A031 for rules on aviation safety. Subtitle I, its B and B1 model helicopters, ASB No. section 106, describes the authority of § 39.13 [Amended] AS366–53.11 for its G1 model the FAA Administrator. ‘‘Subtitle VII: helicopters, and ASB No. AS365– Aviation Programs,’’ describes in more 2. The FAA amends § 39.13 by adding 53.00.50 for its N, N1, N2 and N3 model detail the scope of the Agency’s the following new airworthiness helicopters. The ASBs were all dated authority. directive (AD): May 3, 2011, and were all followed with We are issuing this rulemaking under Eurocopter France: Docket No. FAA–2012– Revision 1 dated September 21, 2011. the authority described in ‘‘Subtitle VII, 1214; Directorate Identifier 2011–SW– For helicopters not equipped with Part A, Subpart III, Section 44701: 071–AD. emergency buoyancy fixed parts, the General requirements.’’ Under that (a) Applicability ASBs describe procedures to modify the section, Congress charges the FAA with This AD applies to Eurocopter France fuel tank draining system by removing promoting safe flight of civil aircraft in Model EC 155B, EC155B1, and SA–366G1 drain plugs in the fuel tanks, to make air commerce by prescribing regulations helicopters, except those with modification draining possible. For helicopters for practices, methods, and procedures 365A084485.00, or modifications 0753C98 equipped with emergency buoyancy the Administrator finds necessary for and 0745C96; and Model SA–365N, SA– fixed parts, the ASBs contain additional safety in air commerce. This regulation 365N1, AS–365N2, and AS 365 N3 procedures to seal one drain plug per is within the scope of that authority helicopters, except those with modifications fuel tank compartment and to install because it addresses an unsafe condition 0753C98, 0745C96, and (if a sixth fuel tank new drain points and self-sealing drain that is likely to exist or develop on is installed) 365A081003.00, or modification valves in specified fuel tanks. EASA AD 365A081003.00 and (if a sixth fuel tank is products identified in this rulemaking installed) 365A084485.00. No. 2011–0190 classifies these ASBs as action. mandatory to ensure the airworthiness (b) Unsafe Condition Regulatory Findings of these helicopters. This AD defines the unsafe condition as a We determined that this proposed AD closed fuel tank drain that, in the event of a Proposed AD Requirements would not have federalism implications fuel leak, could result in fuel accumulating This proposed AD would require under Executive Order 13132. This in an area containing electrical equipment or compliance with certain sections within proposed AD would not have a other ignition source. This condition could paragraph 3.B.2 of the manufacturer’s substantial direct effect on the States, on result in a fire in the helicopter. service bulletins. Helicopters equipped the relationship between the national (c) Compliance with emergency buoyancy fixed parts Government and the States, or on the You are responsible for performing each would be required to comply within six distribution of power and action required by this AD within the months, and helicopters not equipped responsibilities among the various specified compliance time unless it has with emergency buoyancy fixed parts levels of government. already been accomplished prior to that time. would be required to comply within 110 For the reasons discussed, I certify (d) Required Actions hours time-in-service. this proposed regulation: 1. Is not a ‘‘significant regulatory (1) Within 110 hours time-in-service (TIS): Costs of Compliance (i) For helicopters without an emergency action’’ under Executive Order 12866; buoyancy system, remove the fuel tank drain We estimate that this proposed AD 2. Is not a ‘‘significant rule’’ under the would affect 46 helicopters of U.S. plugs listed in the Accomplishment DOT Regulatory Policies and Procedures Instructions, paragraph 3.B.2.b., of Registry and that labor costs average $85 (44 FR 11034, February 26, 1979); Eurocopter Alert Service Bulletin (ASB) No. per work-hour. Based on these 3. Will not affect intrastate aviation in EC155–53A031, Revision 1, dated September estimates, we would expect the Alaska to the extent that it justifies 21, 2011 (ASB 155); ASB No. AS365– following costs: making a regulatory distinction; and 53.00.50, Revision 1, dated September 21, Sealing drain plugs, and installing 4. Will not have a significant 2011 (ASB 365), or ASB No. AS366–53.11, new drain points and self-sealing drain economic impact, positive or negative, Revision 1, dated September 21, 2011 (ASB valves at other locations on helicopters on a substantial number of small entities 366), as appropriate for your model helicopter. equipped with emergency buoyancy under the criteria of the Regulatory fixed parts would require 16 work- (ii) For the Model SA–365N, SA–365N1, Flexibility Act. AS–365N2, and AS 365 N3 helicopters, if hours. Parts would cost $11,154 for a We prepared an economic evaluation there is an optional sixth fuel tank installed, total cost of $12,514 per helicopter. For of the estimated costs to comply with install a self-sealing drain valve in helicopters equipped with emergency this proposed AD and placed it in the accordance with paragraph 3.B.2.c. of the buoyancy fixed parts and a sixth fuel AD docket. ASB. tank, this work would instead require 17 (2) Within six months: work-hours for a total cost of $12,599 List of Subjects in 14 CFR Part 39 (i) For helicopters with an emergency per helicopter. Air transportation, Aircraft, Aviation buoyancy system, modify the fuel tank drain Removing drain plugs on helicopters safety, Incorporation by reference, system in accordance with the not equipped with emergency buoyancy Safety. Accomplishment Instructions, paragraphs fixed parts would require one work- 3.B.2.a.1. through 3.B.2.a.3, of the ASB The Proposed Amendment appropriate for your model helicopter. hour and no parts for a total cost of $85 (ii) For the Model SA–365N, SA–365N1, per helicopter. For helicopters not Accordingly, under the authority AS–365N2, AS 365 N3 helicopters, if there is equipped with emergency buoyancy delegated to me by the Administrator, an optional sixth fuel tank installed, install fixed parts but equipped with a sixth the FAA proposes to amend 14 CFR part a self-sealing drain valve in accordance with fuel tank, this work would instead 39 as follows: paragraph 3.B.2.c. of the ASB.

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(e) Alternative Methods of Compliance of safety equivalent to that established specific portion of the special (AMOC) by the existing airworthiness standards. conditions, explain the reason for any (1) The Manager, Safety Management DATES: Send your comments on or recommended change, and include Group, FAA, may approve AMOCs for this before January 10, 2013. supporting data. AD. Send your proposal to: Chinh Vuong, We will consider all comments we ADDRESSES: Send comments identified Aviation Safety Engineer, Safety Management receive on or before the closing date for Group, Rotorcraft Directorate, FAA, 2601 by docket number [FAA–2012–1241] using any of the following methods: comments. We may change these special Meacham Blvd., Fort Worth, Texas 76137; conditions based on the comments we telephone (817) 222–5110; email chinh. • Federal eRegulations Portal: Go to [email protected]. http://www.regulations.gov/ and follow receive. (2) For operations conducted under a 14 the online instructions for sending your Background CFR part 119 operating certificate or under comments electronically. 14 CFR part 91, subpart K, we suggest that • On May 14, 2009, Embraer S.A. Mail: Send comments to Docket applied for a type certificate for their you notify your principal inspector, or Operations, M–30, U.S. Department of lacking a principal inspector, the manager of new Model EMB–550 airplane. The the local flight standards district office or Transportation (DOT), 1200 New Jersey Model EMB–550 airplane is the first of certificate holding district office before Avenue SE., Room W12–140, West a new family of jet airplanes designed operating any aircraft complying with this Building Ground Floor, Washington, DC for corporate flight, fractional, charter, AD through an AMOC. 20590–0001. and private owner operations. The • Hand Delivery or Courier: Take (f) Additional Information aircraft has a conventional configuration comments to Docket Operations in with low wing and T-tail empennage. The subject of this AD is addressed in Room W12–140 of the West Building The primary structure is metal with European Aviation Safety Agency (EASA) AD Ground Floor at 1200 New Jersey No. 2011–0190, dated September 30, 2011. composite empennage and control Avenue SE., Washington, DC, between 8 surfaces. The Model EMB–550 airplane (g) Subject a.m. and 5 p.m., Monday through is designed for 8 passengers, with a Joint Aircraft Service Component (JASC) Friday, except federal holidays. maximum of 12 passengers. It is Code: 2810, fuel storage. • Fax: Fax comments to Docket equipped with two Honeywell Operations at 202–493–2251. Issued in Fort Worth, Texas, on November Privacy: The FAA will post all HTF7500–E medium bypass ratio 8, 2012. comments it receives, without change, turbofan engines mounted on aft Lance T. Gant, to http://www.regulations.gov/, fuselage pylons. Each engine produces Acting Directorate Manager, Rotorcraft including any personal information the approximately 6,540 pounds of thrust Directorate, Aircraft Certification Service. commenter provides. Using the search for normal takeoff. The primary flight [FR Doc. 2012–28435 Filed 11–23–12; 8:45 am] function of the docket Web site, anyone controls consist of hydraulically BILLING CODE 4910–13–P can find and read the electronic form of powered fly-by-wire elevators, ailerons, all comments received into any FAA and rudder, controlled by the pilot or docket, including the name of the copilot sidestick. The flight control system for the DEPARTMENT OF TRANSPORTATION individual sending the comment (or Model EMB–550 airplane does not have signing the comment for an association, a direct mechanical link or a linear gain Federal Aviation Administration business, labor union, etc.). DOT’s between the airplane flight control complete Privacy Act Statement can be surface and the pilot’s cockpit control 14 CFR Part 25 found in the Federal Register published device, which is not accounted for in on April 11, 2000 (65 FR 19477–19478), [Docket No. FAA–2012–1241; Notice No. 25– Title 14, Code of Federal Regulations 12–15–SC] as well as at http://DocketsInfo. (14 CFR) 25.349(a). Instead, a flight dot.gov/. control computer commands the Special Conditions: Embraer S.A., Docket: Background documents or airplane flight control surfaces, based on Model EMB–550 Airplane; Design Roll comments received may be read at input received from the cockpit control Maneuver for Electronic Flight http://www.regulations.gov/ at any time. device. The pilot input is modified by Controls Follow the online instructions for the flight control computer before the accessing the docket or go to the Docket AGENCY: Federal Aviation command is given to the flight control Operations in Room W12–140 of the Administration (FAA), DOT. surface. West Building Ground Floor at 1200 ACTION: Notice of proposed special New Jersey Avenue SE., Washington, Type Certification Basis conditions. DC, between 9 a.m. and 5 p.m., Monday Under the provisions of 14 CFR 21.17, SUMMARY: This action proposes special through Friday, except federal holidays. Embraer S.A. must show that the Model conditions for the Embraer S.A. Model FOR FURTHER INFORMATION CONTACT: EMB–550 airplane meets the applicable EMB–550 airplane. This airplane will Todd Martin, FAA, Airframe and Cabin provisions of part 25, as amended by have a novel or unusual design Safety Branch, ANM–115, Transport Amendments 25–1 through 25–127 feature(s) associated with the design roll Airplane Directorate, Aircraft thereto. maneuver for electronic flight controls, Certification Service, 1601 Lind Avenue If the Administrator finds that the specifically an electronic flight control SW., Renton, Washington, 98057–3356; applicable airworthiness regulations system that provides control of the telephone 425–227–1178; facsimile (i.e., 14 CFR part 25) do not contain aircraft through pilot inputs to the flight 425–227–1149. adequate or appropriate safety standards computer. The applicable airworthiness SUPPLEMENTARY INFORMATION: for the Model EMB–500 airplane regulations do not contain adequate or because of a novel or unusual design appropriate safety standards for this Comments Invited feature, special conditions are design feature. These proposed special We invite interested people to take prescribed under the provisions of conditions contain the additional safety part in this rulemaking by sending § 21.16. standards that the Administrator written comments, data, or views. The Special conditions are initially considers necessary to establish a level most helpful comments reference a applicable to the model for which they

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are issued. Should the type certificate flight control system. These proposed (b) At VA, sudden movement of the for that model be amended later to special conditions contain the cockpit roll control up to the limit is include any other model that additional safety standards that the assumed. The position of the cockpit incorporates the same or similar novel Administrator considers necessary to roll control must be maintained until a or unusual design feature, the special establish a level of safety equivalent to steady roll rate is achieved and then conditions would also apply to the other that established by the existing must be returned suddenly to the model under § 21.101. airworthiness standards. neutral position. In addition to the applicable (c) At V , the cockpit roll control Applicability C airworthiness regulations and special must be moved suddenly and conditions, the Model EMB–550 As discussed above, these special maintained so as to achieve a roll rate airplane must comply with the fuel vent conditions are applicable to the Model not less than that obtained in paragraph and exhaust emission requirements of EMB–550 airplane. Should Embraer (b). 14 CFR part 34 and the noise S.A. apply at a later date for a change (d) At VD, the cockpit roll control certification requirements of 14 CFR to the type certificate to include another must be moved suddenly and part 36 and the FAA must issue a model incorporating the same novel or maintained so as to achieve a roll rate finding of regulatory adequacy under unusual design feature, the special not less than one third of that obtained § 611 of Public Law 92–574, the ‘‘Noise conditions would apply to that model as in paragraph (b). Control Act of 1972.’’ well. The FAA issues special conditions, as Issued in Renton, Washington, on November 16, 2012. defined in 14 CFR 11.19, in accordance Conclusion Ali Bahrami, with § 11.38, and they become part of This action affects only certain novel the type-certification basis under or unusual design features on one model Manager, Transport Airplane Directorate, Aircraft Certification Service. § 21.17(a)(2). EMB–550 of airplanes. It is not a rule of general applicability. [FR Doc. 2012–28386 Filed 11–23–12; 8:45 am] Novel or Unusual Design Features BILLING CODE 4910–13–P The Model EMB–550 airplane will List of Subjects in 14 CFR Part 25 incorporate the following novel or Aircraft, Aviation safety, Reporting unusual design features: The Model and recordkeeping requirements. DEPARTMENT OF COMMERCE EMB–550 airplane is equipped with an The authority citation for these electronic flight control system that Patent and Trademark Office special conditions is as follows: provides control of the aircraft through pilot inputs to the flight computer. Authority: 49 U.S.C. 106(g), 40113, 44701, 37 CFR Part 3 44702, 44704. Current part 25 airworthiness [Docket No. PTO–P–2012–0047] regulations account for ‘‘control laws’’ The Proposed Special Conditions where aileron deflection is proportional Notice of Roundtable on Proposed Accordingly, the Federal Aviation to control stick deflection. They do not Requirements for Recordation of Real- Administration (FAA) proposes the address any nonlinearities, i.e., Party-in-Interest Information following special conditions as part of situations where output does not change Throughout Application Pendency and the type certification basis for Embraer in the same proportion as input, or other Patent Term effects on aileron actuation that may be S.A. Model EMB–550 airplanes. caused by electronic flight controls. 1. Design Roll Maneuver for AGENCY: United States Patent and Electronic Flight Controls. Trademark Office, Commerce. Discussion In lieu of compliance to 14 CFR ACTION: Notice of public meeting; These special conditions differ from 25.349(a), the Embraer S.A. Model request for comments. current regulatory requirements in that EMB–550 airplane must comply with they require that the roll maneuver the following. SUMMARY: The United States Patent and result from defined movements of the The following conditions, speeds, and Trademark Office (USPTO) is cockpit roll control as opposed to cockpit roll control motions (except as considering promulgating regulations defined aileron deflections. Also, these the motions may be limited by pilot that would require greater public special conditions require an additional effort) must be considered in transparency concerning the ownership load condition at design maneuvering combination with an airplane load of patent applications and patents by speed (VA), in which the cockpit roll factor of zero and of two-thirds of the requiring the provision of real-party-in- control is returned to neutral following positive maneuvering factor used in interest information during patent the initial roll input. design. In determining the resulting prosecution and at certain times post- These special conditions differ from control surface deflections, the torsional issuance. As part of this initiative, the similar special conditions previously flexibility of the wing must be USPTO is conducting a roundtable to issued on this topic. These special considered in accordance with 14 CFR obtain public input from organizations conditions are limited to the roll axis 25.301(b). and individuals on how the USPTO only, whereas other special conditions (a) Conditions corresponding to could change its rules of practice to also included pitch and yaw axes. steady rolling velocities must be collect and provide such ownership Special conditions are no longer needed investigated. In addition, conditions information and make it publicly for the yaw axis because 14 CFR 25.351 corresponding to maximum angular available. The USPTO plans to invite a was revised at Amendment 25–91 to acceleration must be investigated for number of roundtable participants from take into account effects of an electronic airplanes with engines or other weight among patent user groups, practitioners, flight control system. No special concentrations outboard of the fuselage. industry, independent inventor conditions are needed for the pitch axis For the angular acceleration conditions, organizations, academia, and because the method that Embraer S.A. zero rolling velocity may be assumed in government. The roundtable also is proposed for the pitch maneuver takes the absence of a rational time history open for any member of the public to into account effects of an electronic investigation of the maneuver. provide input.

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DATES: The roundtable will be held on record, including the ownership of new provisions of the America Invents Friday, January 11, 2013, beginning at patent applications and patents, plays Act, Public Law 112–29 (Sept. 16, 2011) 8:30 a.m. and ending at 12:00 p.m. EDT. an essential role in the efficient (‘‘AIA’’), that will become effective in The deadline for receipt of requests to functioning of innovation markets. March 2013. Courts have previously participate in the roundtable is Friday, Since intangible assets now make up recognized that the USPTO has the December 21, 2012. over fifty percent of the value of authority to promulgate regulations that The deadline for receipt of written business outputs of U.S. industry, ‘‘shall govern the conduct of comments is Friday, January 25, 2013. intellectual property rights are one key proceedings in the Office.’’ Star Fruits ADDRESSES: The roundtable will be held mechanism by which such intangibles S.N.C. v. U.S., 393 F.3d 1277, 1282 (Fed. at the USPTO, in the Madison can be exchanged, providing profits for Cir. 2005) (quoting 35 U.S.C. 2(b)(2)); Auditorium on the concourse level of innovators and moving technologies to see also Cooper Techs. Co. v. Dudas, the Madison Building, which is located their most efficient uses in the economy. 536 F.3d 1330, 1335 (Fed. Cir. 2008) at 600 Dulany Street, Alexandria, To avoid business and legal risk, the (‘‘To comply with section 2(b)(2)(A), a Virginia 22314. clearing of intellectual property rights is Patent Office rule must be Requests to participate at the often undertaken by manufacturers or ‘procedural’—i.e., it must ‘govern the roundtable are required and must be distributors prior to production and conduct of proceedings in the Office.’ ’’). submitted by electronic mail to marketing. In such cases, the clearance Pursuant to this authority, the Office [email protected]. of intellectual property rights is often may require the submission of Requests to participate at the roundtable made more difficult and time- information that is reasonably necessary should indicate the following consuming, legally risky, and expensive to proper examination or treatment of information: (1) The name of the person because current ownership information the matter at hand, provided that such desiring to participate and his or her on patent applications and issued requests are not arbitrary or capricious. contact information (telephone number patents is not available. An incomplete See Star Fruits, 393 F.3d at 1283–84. and electronic mail address); and (2) the ownership record thus presents a Furthermore, the USPTO seeks real- organization(s) he or she represents. significant barrier to competition and party-in-interest information in part to Written comments may be submitted market efficiency. Markets operate most ensure that a ‘‘power of attorney’’ is by either of the following methods: efficiently when buyers and sellers can current in each case. The USPTO has a • Electronic Mail: find one another. Yet in our current strong interest in ensuring that current [email protected] system, fragmented ownership in the representatives in any proceeding before patent rights covering complex products mailto:[email protected]. the USPTO are authorized by the leads to potential buyers facing • Postal Mail: Saurabh Vishnubhakat, current owner. See Lacavera v. Dudas, difficulty finding sellers, and to Expert Advisor, Office of Chief 441 F.3d 1380, 1383 (Fed. Cir. 2006) potential innovators not understanding Economist, United States Patent and (‘‘[T]he PTO has broad authority to the nature of the marketplace they are Trademark Office, Mail Stop External govern the conduct of proceedings considering entering. Affairs, P.O. Box 1450, Alexandria, VA before it and to govern the recognition 22313–1450. To address the need for accurate ownership information for pending and conduct of attorneys.’’). Although written comments may be Moreover, for patent proceedings submitted by postal mail, the USPTO patent applications and issued patents, the USPTO is interested in providing before the Office, it is important for the prefers to receive written comments via USPTO to know the real party(ies) in electronic mail. more complete patent ownership information to the public, in accordance interest in order to avoid potential The written comments and list of the conflicts of interest for judges and roundtable participants and their with the Office’s duty under 35 U.S.C. 2(a)(2) of ‘‘disseminating to the public examiners alike. For example, ‘‘in the associations will be available for public case of the Board, a conflict would inspection at the Office of Chief information with respect to patents.’’ A more complete ownership record typically arise when an official has an Economist, located in the Madison would produce a number of benefits. investment in a company with a direct Building East, Second Floor, 600 Dulany The public would have a more interest in a Board proceeding. Such Street, Alexandria, Virginia 22314, and comprehensive understanding of what conflicts can only be avoided if the will be available via the USPTO Web patent rights being issued by the United parties promptly provide information site (address: http://www.uspto.gov). States are being held and maintained by necessary to identify potential Because written comments will be made various entities. The financial markets conflicts.’’ See Rules of Practice for available for public inspection, would have more complete information Trials Before the Patent Trial and information that is not desired to be about the valuable assets being Appeal Board and Judicial Review of made public, such as an address or generated and held by companies. Patent Trial and Appeal Board phone number, should not be included Inventors and manufacturers would Decisions, 77 FR 48612, 48617 (Aug. 14, in the written comments. better understand the competitive 2012). Like administrative patent judges FOR FURTHER INFORMATION CONTACT: environment in which they are at the Board, ‘‘[p]atent examiners are Requests for additional information operating, allowing them to better quasi-judicial officials.’’ Western Elec. should be directed to Saurabh allocate their own research and Co., Inc. v. Piezo Tech., Inc., 860 F.2d Vishnubhakat by electronic mail at development resources, and more 428, 431 (Fed. Cir. 1988) (citing [email protected] or by efficiently obtain licenses and Butterworth v. United States ex rel. Hoe, telephone at (571) 272–6900. accurately value patent portfolios and 112 U.S. 50, 67 (1884)). Accordingly, a SUPPLEMENTARY INFORMATION: The patent estates that they may seek to clear identification of the real-party-in- USPTO is considering means for acquire. interest is important to ensure that collecting and disseminating Beyond providing these public officials are able to recuse themselves in information about the real-party(ies)-in- benefits, accurate and up-to-date view of any conflict-of-interest apparent interest for patent applications and ownership information is needed to from the disclosure. In addition, ‘‘[t]he issued patents. It is increasingly clear facilitate examination of patents by the identity of a real party in interest might that the completeness of the patent USPTO, particularly in light of certain also affect the credibility of evidence

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presented in a proceeding.’’ 77 FR at art might be subject to this exemption prior art under section 102(b)(2)(C) 48617. than under previous section 103(c)(1), without access to accurate ownership Additionally, changes made by the which, in turn, could render the current information for patent applications and America Invents Act to the categories of method of handling the possibility of issued patents (including a record of what constitutes prior art increase the common ownership—the examiner whether and how ownership has need to have accurate and up-to-date presenting an initial rejection, and the changed). In part for this reason, the ownership information about patent applicant rebutting the rejection with Office plans not only to collect such applications and issued patents in order proof of ownership, see MPEP section ownership information, but also to make to make determinations of novelty. See 706.02(1)(2)—inefficient in a manner it publicly available concurrently with 35 U.S.C. 102(b). In particular, section that would undermine the principles of the publication of patent applications or 102(b)(2)(C) exempts as prior art those compact prosecution. See id. at section issued patents. patent applications or issued patents 706 (‘‘The goal of examination is to In addition, for patents that enter any that name different inventors where clearly articulate any rejection early in kind of post-grant review proceedings, ‘‘the subject matter disclosed and the the prosecution process so that the the Office requiring the submission of claimed invention, not later than the applicant has the opportunity to provide updated ownership information for that effective filing date of the claimed evidence of patentability and otherwise patent (or a confirmation that the invention, were owned by the same reply completely at the earliest ownership information has not changed) person or subject to an obligation of opportunity.’’). would facilitate reexamination for the assignment to the same person’’ In addition, the availability of new reasons discussed previously in this (emphasis added). Because ownership types of third-party proceedings that notice. Furthermore, it would allow the of an earlier-filed patent application or may be filed with the USPTO has Office to verify that a bona fide third issued patent may prevent its use as created a need for the Office to collect party is making the request for inter prior art against a later-filed patent and publish timely ownership partes review or post-grant review, as application, patentability may depend information. Previously, many required by 35 U.S.C. 311(a) and 321(a), not just on the content of the prior art ‘‘proceedings in the Office’’ were respectively; to verify that the petitioner patent application or issued patent, but initiated by patent applicants or applying for review of a covered also on who owns it. applicants-turned-patentees. In the business method patent is a real-party- Further, new section 102(b)(2)(C) relatively recent past, third parties have in-interest or privy to an entity that has differs from the previous statutory become able to initiate ex parte been sued or charged with infringement provision on which it was based, 35 reexamination proceedings (1981) as of that patent, as required by 37 CFR U.S.C. 103(c)(1) (2011). While section well as inter partes reexamination 42.302(a); and to verify that a bona fide 103(c)(1) (2011) concerned an exception proceedings (1999). Such third party- patent owner is making the request for to obviousness rather than an exception initiated reexamination proceedings supplemental examination, as required to what constitutes prior art, it often arose out of disputes between the by 35 U.S.C. 257(a). otherwise recited virtually identical patentees and third-party requestors. Moreover, because the USPTO will be language to that of the current section Now, under the AIA, parties with no collecting and publishing this 102(b)(2)(C) except that section 103(c)(1) ownership interest in the patent, i.e., information, it also has an interest in stated that patentability was not third parties, are entitled to request ensuring that such public information precluded where ‘‘the subject matter initiation of certain post-grant remains as accurate and up-to-date as and the claimed invention were, at the proceedings before the Office, including possible. This is consistent with several time the claimed invention was made, inter partes review under 35 U.S.C. 311 statutory provisions directing the Office owned by the same person or subject to and post-grant review under 35 U.S.C. to disseminate information to the public an obligation of assignment to the same 321. Because of certain statutory as well as those directing the Office to person.’’ Under the earlier section deadlines imposing short time frames provide access to information through 103(c)(1), whether earlier subject matter for action (e.g., nine months after patent electronic means. See 35 U.S.C. 2(a)(2) was prior art was established at the time grant, see 35 U.S.C. 321(c)), it may often (creating a duty of ‘‘disseminating to the when the claimed invention in the later- be impractical or impossible for third public information with respect to filed application was ‘‘made,’’ by parties to discover ownership patents’’); section 10(a)(4) (providing for considering whether the earlier subject information through other means, such publication of information, including matter was owned by the same entity as through disputes arising between ‘‘annual indexes of * * * patentees’’); that owned (or had a right to own) the patentees and third parties. section 10(b) (providing that the claimed invention that was just made. Accordingly, whether to initiate such ‘‘Director may exchange * * * for In contrast, under new section proceedings is a decision that third publications desirable for the use of the 102(b)(2)(C), there may be an parties will often have to make based [Office]’’); and section 41(i) (creating a opportunity—in the period before the primarily on the USPTO record, making duty to provide access to information filing of the second application—for it important for that record to contain electronically). ownership to change in a way that ownership information that is as The USPTO published a Request for affects whether the earlier patent or accurate and complete as possible. Comments on November 23, 2011, patent application is prior art for In particular, both inter partes regarding whether regulations should be purposes of section 102(b). As a result, reexamination and post-grant review promulgated for the collection of tracking ownership information for proceedings contemplate that challenges assignment and real-party-in-interest patent applications and issued patents may be predicated on prior art under 35 information for both applications and is directly relevant to questions of U.S.C. 102(b)(2)(C). See 35 U.S.C. 311(b) patents. See Request for Comments on novelty during prosecution and to and 321(b) (allowing for use of prior art Eliciting More Complete Patent mechanisms for challenging patents under, inter alia, section 102(b)(2)(C) in Assignment Information, 76 FR 72372 post-issuance. inter partes and post-grant review (Nov. 23, 2011). Responses to this In the prosecution context, the new proceedings, respectively). But third request for comments were more section 102(b)(2)(C) presents the parties will not necessarily be able to favorable towards the proposal than possibility that a greater amount of prior ascertain what is properly considered unfavorable. See http://www.uspto.gov/

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patents/law/comments/ clear idea of the entity(ies) in possession information will be treated as patent_assignment_information.jsp. of the legal right to exclude. See 35 confidential in accordance with the The USPTO is now planning to U.S.C. 154. provisions of 35 U.S.C. 122); requiring conduct a roundtable at its Alexandria, applicants to notify the Office about any Alternative Definition 2: ‘‘Limited’’ RPI Virginia, campus to discuss with the changes in RPI information during patent and innovation community Under the second alternative prosecution; and verifying on at least whether—and, if so, how—the USPTO definition, the interested parties two occasions that the information on should require submission of real-party- needing to be disclosed would be file is correct: immediately prior to 18- in-interest information throughout the limited to the legal title holder(s) and month publication (though patent pendency of an application and the ‘‘ultimate parent entity(ies)’’ of the applications would only be published in enforceable life of a patent. To focus the patent application or issued patent. The accordance with 35 U.S.C. 122), and discussion, the USPTO provides the term ‘‘ultimate parent entity’’ would be prior to issuance. For issued patents, the following description of what based on the definition (along with the Office will likewise require the information it envisions collecting, and accompanying examples) set forth in 16 information on file to be verified or how such information will be collected CFR 801.1(a)(3), which defines it as ‘‘an updated when maintenance fees are and published: entity which is not controlled by any paid and if the patent becomes involved other entity.’’ The rationale behind Information To Be Collected in any post-issuance proceedings before defining RPI in this manner is to limit the Office. The USPTO proposes to collect ‘‘real- the entities that need to be identified The Office plans to collect RPI party-in-interest’’ (‘‘RPI’’) information based on the assumption that although information from applicants in the on patent applications and patents in not every interested entity would be application data sheet (for example, order to facilitate examination before listed, information about these other Application Data Sheet, PTO/SB/14) the Office and for the other reasons and parties (if needed) could, in most cases, instead of, or in addition to, the current benefits discussed above. The USPTO be deduced or obtained from the ‘‘Assignee’’ information. Intervening believes that these interests can be met information provided. For example, updates would be submitted to the through the collection of RPI information provided about the ultimate Office through the submission of an information where RPI is defined in at parent entity would be likely to alert the additional ‘‘change form.’’ An applicant least two different ways, described in examiner to a conflict of interest not would have a duty to update the RPI more detail below. It is important to otherwise disclosed in many cases, even information within a reasonable time note that the Office would consider if the actual conflict concerned a period of any change. See 37 CFR 1.56. whatever definition is adopted for this subsidiary entity that did not itself need The Office envisions that a reasonable purpose as not necessarily coinciding to be disclosed. Focusing information period of time would be within three with how the term real-party-in-interest collection on the ultimate parent entity months of any reportable change, may be used elsewhere in the Office, or could also facilitate searches for patent similar to the presumptive period of with the term ‘‘ownership’’ as that term applications and issued patents having time in which applicants are expected is used in Title 35 and in the Office’s common ownership, which could be of to reply to any notice or action by the implementing regulations. The Office benefit to the Office and public alike. Office in the context of patent term welcomes comments on the definitions Moreover, this narrower definition of adjustments under 37 CFR 1.704(b). The proposed here for RPI, as well as the RPI would have the benefit of pre-18-month publication verification suitability of other definitions or potentially reducing administrative would likely necessitate the submission standards. costs in collecting and updating RPI of a new form. For issuance, the Office information. Exclusive licensee Alternative Definition 1: ‘‘Broad’’ RPI envisions this process as simply information would likely not need to be including a statement that the applicant Under the first alternative definition, provided, and following section 801.1, or owner ‘‘certifies that the RPI RPI would correspond to those entities the United States or foreign states would information on file at the USPTO is having the legal right to enforce the not need to be reported as ultimate accurate and unchanged.’’ Any patent, i.e., those parties that would be parent entities (though they may still be unreported changes at this time could necessary and sufficient to bring a legal legal title holders). Although the Office be fixed by filling out the infringement action. See Vaupel considers the definition in section 801.1 aforementioned change form and, as Textilmaschinen KG v. Meccanica Euro as a model, the Office welcomes any appropriate, any fees or explanation Italia SPA, 944 F.2d 870, 875–76 (Fed. suggestions on how to modify the why such change had not been reported Cir. 1991); 35 U.S.C. 154(a)(1). As definition to be more suitable for use earlier. The USPTO welcomes feedback discussed above, this information is before the USPTO, and on whether the about how long a presumptive directly relevant to identifying conflicts direct adoption of a well-established reasonable time period would be and of interest that might arise in definition would itself be beneficial. about mechanisms for excusing late examination contexts. Moreover, it is updates in appropriate circumstances. Timing of RPI Information Collection consistent with the need to make prior See, e.g., 37 CFR 1.137 (providing for art determinations under 35 U.S.C. For purposes of facilitating revival of lapsed patents or patent 102(b)(2)(C) because it identifies all examination and the ability of third applications where delay was parties that might have a claim to parties to appropriately seek to unavoidable or unintentional). ownership of the patent application or challenge patents post-issuance, the After patent issuance, the USPTO issued patent. This definition would USPTO aims to provide RPI information intends to have RPI information verified likely require disclosure of exclusive for patent applications and issued at the time of maintenance fee payments licensees in certain cases. This RPI patents that is as up-to-date and using a procedure similar to that information would be useful both to the accurate as possible. To this end, the outlined for issuance of a patent (the Office and to the public by providing a USPTO envisions collecting such inclusion of a statement verifying that clear idea of all the entities that have an information at the time that an the USPTO information is accurate, or interest in the patent application or application is initially filed for internal the submission of a change form if not). issued patent as well as, for patents, a examination purposes (though this The Office likewise plans to collect such

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information any time that an issued under 35 U.S.C. 257, reexaminations business method patents under 37 CFR patent is involved in a proceeding under 35 U.S.C. 302, inter partes part 42, subpart D. before the Office post-issuance, reviews under 35 U.S.C. 311, post-grant In sum, the Office envisions collecting including: reissue applications under 35 reviews under 35 U.S.C. 321, and the or verifying RPI information as follows: U.S.C. 251, supplemental examinations transitional program for covered

Submission of application .... Applicant provides RPI information as part of the original application data sheet. Through pendency of pros- Applicant is responsible for ensuring that any changes in RPI information are submitted to the Office within a rea- ecution. sonable period of time. Prior to 18-month publication Applicant submits a form verifying that RPI information on file is accurate. Changes may be submitted in a sup- date. plemental form with an explanation for why the submission is timely. Note that information may be collected for all applications, though applications will only be published in accordance with 35 U.S.C. 122. Upon issuance ...... Applicant’s payment is accompanied by a form statement that RPI information on file is accurate. Changes may be submitted in a supplemental form with an explanation for why the submission is timely. Upon payment of mainte- Patentee’s payment is accompanied by a form statement that RPI information on file is accurate, or is accom- nance fees. panied by changes in a supplemental form. Involvement in any post- Patentee is required to verify that RPI information on file is accurate, or to submit changes in a supplemental grant proceedings. form.

The Office envisions this process and independent inventor DEPARTMENT OF VETERANS applying to new applications filed after organizations, as well as academia, AFFAIRS the date of any final rules coming into industry, and government to provide effect and after 35 U.S.C. 102(b)(2)(C) input. The USPTO also plans to have a 38 CFR Part 3 becomes effective on March 16, 2013. few at-large participants based upon RIN 2900–AO31 For pending applications where there requests received in response to this has already been submission of an notice to ensure that the USPTO is Eligibility of Disabled Veterans and application data sheet, applicants would receiving a balanced array of views on Members of the Armed Forces With be required to submit RPI information at possible requirements for patent Severe Burn Injuries for Financial the next event described above (prior to ownership recordation. Assistance in the Purchase of an 18-month publication or prior to Automobile or Other Conveyance and issuance, or in conjunction with any The roundtable is open to the public, Adaptive Equipment; Correction continuing applications), and would but participation in the roundtable is by then be responsible for updating any request, as the number of participants in AGENCY: Department of Veterans Affairs. changes thereafter, through patent the roundtable is limited. While ACTION: Proposed rule; correction. issuance. For issued patents, RPI members of the public who wish to information would be required in participate in the roundtable must do so SUMMARY: In a document published in conjunction with the payment of the by request, members of the public who the Federal Register on November 5, next maintenance fee, and with any wish solely to observe need not submit 2012 (77 FR 66419), the Department of subsequent maintenance fee payments a request to attend. Any member of the Veterans Affairs amended its thereafter—or instead, verification that public, however, may submit written adjudication regulations regarding a the RPI information on file is comments for consideration by the certificate of eligibility for financial assistance in the purchase of an unchanged. USPTO on issues raised at the automobile or other conveyance and roundtable or on any issue pertaining to Provision of RPI Information to the adaptive equipment. The document Public patent ownership recordation. Persons contained several grammatical errors in submitting written comments should the preamble and regulatory text. This While the USPTO would be able to note that the USPTO does not plan to use the information collected document corrects the errors and does provide a ‘‘comment and response’’ not make any substantive change to the immediately for examination purposes, analysis of such comments, as this RPI information would be made content of the proposed rule. notice is not a notice of proposed FOR FURTHER INFORMATION CONTACT: available to the public in accordance rulemaking. with 35 U.S.C. 122, with RPI Nancy Copeland, Consultant, information being published in The USPTO plans to make the Regulations Staff (211D), Compensation conjunction with the publication of a roundtable available via Web cast. Web Service, Veterans Benefits patent application or issued patent. The cast information will be available on the Administration, Department of Veterans Office anticipates providing information USPTO’s Internet Web site before the Affairs, 810 Vermont Ave. NW., about the current RPI as well as a roundtable. The written comments and Washington, DC 20420, (202) 461–9487. history of any RPI changes in an list of the roundtable participants and (This is not a toll-free number.) accessible electronic format, such as on their associations will also be posted on SUPPLEMENTARY INFORMATION: VA Public PAIR, in conjunction with a the USPTO’s Internet Web site. published a proposed rule on November patent application or issued patent. Dated: November 9, 2012. 5, 2012, implementing section 803 of Public Law 111–275, the Veterans’ Details About the Roundtable David J. Kappos, Benefits Act of 2010, that amended The number of participants in the Under Secretary of Commerce for Intellectual subsection 3901(1)(A) of title 38, United roundtable is limited to ensure that all Property and Director of the United States States Code (U.S.C.), by reformatting the who are speaking will have a Patent and Trademark Office. statute and adding ‘‘severe burn injury meaningful chance to do so. The USPTO [FR Doc. 2012–28333 Filed 11–23–12; 8:45 am] (as determined pursuant to regulations plans to invite a number of participants BILLING CODE 3510–16–P prescribed by the Secretary)’’ as one of from patent user, practitioner, industry, the disabilities that VA will consider

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when making a determination of DEPARTMENT OF HOMELAND holidays. The telephone number is 202– eligibility for financial assistance in the SECURITY 372–1385. Copies of the material are purchase of an automobile or other available as indicated in the conveyance and adaptive equipment. Coast Guard ‘‘Incorporation by Reference’’ section of Pursuant to the authority granted to the this preamble. Secretary in 38 U.S.C. 501(a) and 46 CFR Parts 160 and 164 FOR FURTHER INFORMATION CONTACT: If 3901(1)(A)(iv), VA proposes to amend [Docket No. USCG–2010–0048] you have questions on this proposed 38 CFR 3.808 to define the term ‘‘severe rule, call or email Mr. George Grills, RIN 1625–AB46 burn injury.’’ In the proposed Commercial Regulations and Standards amendment to 38 CFR 3.808, we Lifesaving Equipment: Production Directorate, Office of Design and redesignated current paragraph (b)(4) as Testing and Harmonization With Engineering Standards, Lifesaving and (b)(5) and added a new paragraph (b)(4) International Standards Fire Safety Division (CG–ENG–4), Coast to define ‘‘severe burn injury,’’ as one of Guard; telephone 202–372–1385, email the conditions that determines AGENCY: Coast Guard, DHS. [email protected]. If you have entitlement for a certificate of eligibility ACTION: Supplemental notice of questions on viewing or submitting for financial assistance in the purchase proposed rulemaking. material to the docket, call Renee V. of an automobile or other conveyance Wright, Program Manager, Docket SUMMARY: The Coast Guard proposes to and adaptive equipment. We found that Operations, telephone 202–366–9826. amend the interim rule addressing newly proposed paragraph (b)(4) SUPPLEMENTARY INFORMATION: lifesaving equipment to harmonize contained grammatical errors. This Coast Guard regulations concerning Table of Contents for Preamble document corrects those grammatical release mechanisms for lifeboats and errors. I. Public Participation and Request for rescue boats with recently adopted Comments List of Subjects in 38 CFR part 3 international standards affecting design, A. Submitting Comments performance, and testing for such B. Viewing Comments and Documents Administrative practice and lifesaving equipment, and to clarify the C. Privacy Act procedure, Claims, Disability benefits, D. Public Meeting requirements concerning grooved drums II. Abbreviations Health care, Pensions, Radioactive in launching appliance winches. The III. Regulatory History materials, Veterans, Vietnam. Coast Guard seeks comments on this IV. Background Dated: November 19, 2012. proposal. V. Discussion of Proposed Rule DATES: Comments and related material VI. Incorporation by Reference Robert C. McFetridge, VII. Regulatory Analyses Director, Office of Regulation Policy and must either be submitted to our online A. Regulatory Planning and Review Management, Office of the General Counsel, docket via http://www.regulations.gov B. Small Entities Department of Veterans Affairs. on or before January 25, 2013 or reach C. Assistance for Small Entities the Docket Management Facility by that D. Collection of Information For the reasons set out in the date. E. Federalism preamble, VA proposes to correct 38 ADDRESSES: You may submit comments F. Unfunded Mandates Reform Act CFR part 3 as follows: identified by docket number USCG– G. Taking of Private Property H. Civil Justice Reform 2010–0048 using any one of the PART 3—ADJUDICATION I. Protection of Children following methods: J. Indian Tribal Governments (1) Federal eRulemaking Portal: K. Energy Effects Subpart A—Pension, Compensation, http://www.regulations.gov. L. Technical Standards and Dependency and Indemnity (2) Fax: 202–493–2251. M. Coast Guard Authorization Act Sec. 608 Compensation (3) Mail: Docket Management Facility (46 U.S.C. 2118(a)) (M–30), U.S. Department of N. Environment 1. The authority citation for part 3, Transportation, West Building Ground subpart A continues to read as follows: Floor, Room W12–140, 1200 New Jersey I. Public Participation and Request for Authority: 38 U.S.C. 501(a), unless Avenue SE., Washington, DC 20590– Comments otherwise noted. 0001. The Coast Guard encourages you to (4) Hand delivery: Same as mail participate in this rulemaking by 2. Revise § 3.808, paragraph (b)(4) to address above, between 9 a.m. and 5 submitting comments and related read as follows: p.m., Monday through Friday, except materials. All comments received will Federal holidays. The telephone number be posted without change to http:// § 3.808 Automobiles or other conveyances is 202–366–9329. and adaptive equipment; certification. www.regulations.gov and will include To avoid duplication, please use only any personal information you have * * * * * one of these four methods. See the provided. (b) * * * ‘‘Public Participation and Request for Comments’’ portion of the A. Submitting Comments (4) Severe burn injury: Deep partial SUPPLEMENTARY INFORMATION section If you submit a comment, please thickness or full thickness burns below for instructions on submitting include the docket number for this resulting in scar formation that cause comments. rulemaking (USCG–2010–0048), contractures and limit motion of one or Viewing incorporation by reference indicate the specific section of this more extremities or the trunk and material: You may inspect the material document to which each comment preclude effective operation of an proposed for incorporation by reference applies, and provide a reason for each automobile. at U.S. Coast Guard Headquarters, 2100 suggestion or recommendation. You * * * * * Second Street SW., Washington, DC may submit your comments and [FR Doc. 2012–28437 Filed 11–23–12; 8:45 am] 20593–0001 between 9 a.m. and 3 p.m., material online or by fax, mail, or hand BILLING CODE 8320–01–P Monday through Friday, except Federal delivery, but please use only one of

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these means. The Coast Guard determines that one would aid this force on January 1, 2013. The IMO recommends that you include your rulemaking, the Coast Guard will hold amendments to the international name and a mailing address, an email one at a time and place announced by standards affect 46 CFR part 160, address, or a phone number in the body a later notice in the Federal Register. subpart 160.133. The interim rule of your document so that the Coast removed longstanding separate subparts II. Abbreviations Guard can contact you if it has for release mechanisms (46 CFR questions regarding your submission. CFR Code of Federal Regulations 160.033) and lifeboats (46 CFR 160.035) To submit your comment online, go to DHS Department of Homeland Security approved strictly for domestic service. http://www.regulations.gov and insert FR Federal Register 76 FR 62975. Therefore, this SNPRM ‘‘USCG- 2010–0048’’ in the ‘‘Search’’ IMO International Maritime Organization potentially affects any U.S.-flagged box. Click ‘‘Search.’’ Click on ‘‘Submit LSA Life-saving Appliance vessel required to carry a lifeboat after MISLE Marine Information for Safety and a Comment’’ in the ‘‘Actions’’ column. Law Enforcement database the finalization of this proposed rule. If you submit your comments by mail or MSC Maritime Safety Committee of the IV. Background hand delivery, submit them in an International Maritime Organization unbound format, no larger than 81⁄2; by NPRM Notice of Proposed Rulemaking As discussed in the ‘‘Basis and 11 inches, suitable for copying and SNPRM Supplemental Notice of Proposed Purpose’’ section of the interim rule, the electronic filing. If you submit Rulemaking Coast Guard is charged with ensuring comments by mail and would like to SOLAS International Convention for Safety that lifesaving equipment used on know that they reached the Facility, of Life at Sea, 1974, as amended vessels subject to inspection by the please enclose a stamped, self-addressed § Section symbol United States meets specific design, USCG United States Coast Guard postcard or envelope. construction, and performance The Coast Guard will consider all III. Regulatory History standards, including those found in comments and material received during SOLAS, Chapter III, ‘‘Life-saving On October 11, 2011, the Coast Guard the comment period and may change appliances and arrangements.’’ See 46 published an interim rule titled, this proposed rule based on your U.S.C. 3306; 76 FR 62963. The Coast ‘‘Lifesaving Equipment: Production comments. Guard carries out this charge through Testing and Harmonization With the approval of lifesaving equipment per B. Viewing Comments and Documents International Standards’’ (interim rule) 46 CFR part 2, subpart 2.75. The To view comments, as well as in the Federal Register. See 76 FR approval process includes pre- documents mentioned in this preamble 62962. As part of that interim rule, approving lifesaving equipment designs, as being available in the docket, go to which became effective on November overseeing prototype construction, http://www.regulations.gov and insert 10, 2011, the Coast Guard issued new witnessing prototype testing, and ‘‘USCG–2010–0048’’ in the ‘‘Search’’ subparts of 46 CFR part 160, including monitoring production of the equipment box. Click ‘‘Search.’’ Click the ‘‘Open subpart 160.115 addressing launching for use on U.S. vessels. See 46 CFR part Docket Folder’’ in the ‘‘Actions’’ appliance winches, and subpart 160.133 159. At each phase of the approval column. If you do not have access to the addressing release mechanisms for process, the Coast Guard sets specific internet, you may view the docket lifeboats and rescue boats, which are standards to which lifesaving online by visiting the Docket approved to the requirements of the equipment must be built and tested. Management Facility in Room W12–140 International Convention for Safety of The Coast Guard’s specific standards on the ground floor of the Department Life at Sea, 1974, as amended (SOLAS). for release mechanisms are found in 46 of Transportation West Building, 1200 The Coast Guard issued an interim CFR part 160, subpart 160.133 (Release New Jersey Avenue SE., Washington, rule because in May 2011, the Mechanisms for Lifeboats and Rescue DC 20590, between 9 a.m. and 5 p.m., International Maritime Organization’s Boats (SOLAS)). Subpart 160.133 Monday through Friday, except Federal (IMO) Maritime Safety Committee implements current SOLAS holidays. The Coast Guard has an (MSC) amended its international requirements for lifeboat release agreement with the Department of standards regarding release mechanisms by incorporating by Transportation to use the Docket mechanisms. See 76 FR 62962. reference the IMO standards referenced Management Facility. Additionally in the interim rule, the by Chapter III of SOLAS. The primary Coast Guard announced plans to IMO standards referenced by Chapter III C. Privacy Act publish in a future Federal Register of SOLAS are the ‘‘International Life- Anyone can search the electronic document proposed changes to Coast saving Appliance Code,’’ IMO form of comments received into any of Guard regulations to implement the Resolution MSC.48(66), as amended our dockets by the name of the IMO amendments regarding (hereinafter ‘‘IMO LSA Code’’), and the individual submitting the comment (or performance requirements for lifeboat ‘‘Revised recommendation on testing of signing the comment, if submitted on and rescue boat release mechanisms that life-saving appliances,’’ IMO Resolution behalf of an association, business, labor the Coast Guard determines appropriate MSC.81(70), as amended (hereinafter union, etc.). You may review a Privacy for purposes of harmonization and ‘‘Revised recommendation on testing’’). Act notice regarding our public dockets consistency with international The IMO updates these standards by in the January 17, 2008, issue of the standards, and to finalize the interim adopting MSC Resolutions promulgating Federal Register (73 FR 3316). rule at the same time the Coast Guard amendments to these standards. issues any final rule for those proposed Subpart 160.133 incorporates by D. Public Meeting changes. 76 FR 62962. reference the latest published version of The Coast Guard does not plan to The Coast Guard is issuing this the IMO LSA Code and the Revised hold a public meeting. You may submit supplemental notice of proposed recommendation on testing. Sections a request for one to the docket using one rulemaking (SNPRM) to address 160.133–5(c)(2) and (c)(3) incorporate of the methods specified under amendments to international standards by reference the parts of IMO’s ADDRESSES. In your request, explain affecting the design and performance of publication ‘‘Life-saving Appliances, why you believe a public meeting release mechanisms that were adopted 2010 Edition’’ that include the IMO LSA would be beneficial. If the Coast Guard by the IMO, and that will enter into Code and the Revised recommendation

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on testing. The ‘‘Life-saving Appliances, if restricted by design, from its locked best available standards for the design 2010 Edition’’ includes all amendments position; and and performance of release mechanisms to the IMO LSA Code and Revised • operating links and cables to be and to be appropriate for lifeboats and recommendation on testing adopted waterproof and not have exposed or rescue boats subject to inspection by the through 2010. These amendments are unprotected areas. United States. In order to facilitate discussed in the NPRM published in the Resolution MSC.321(89) amends the international commerce with other Federal Register on August 31, 2010, Revised recommendation on testing and contracting governments to SOLAS that titled ‘‘Lifesaving Equipment: enters into force on January 1, 2013. follow IMO standards, and to achieve Production Testing and Harmonization This Resolution specifies revisions to the benefits of the increased safety of with International Standards.’’ See 75 the prototype testing of release adhering to these IMO standards, the FR 53458. mechanisms supporting the Coast Guard has, pursuant to 46 U.S.C. On May 20, 2011, IMO adopted two amendments to the IMO LSA Code. The 3306 and 46 CFR 159.005–7(c), deemed revisions to the testing include: compliance by U.S.-flagged ships with new MSC Resolutions further amending • the IMO LSA Code and the Revised a demonstration that the moveable the IMO standards as compliance with recommendation on testing: IMO hook component, when disconnected Coast Guard domestic regulations. Resolution MSC.320(89), ‘‘Adoption of from the operating mechanism, remains The effect of this proposed change amendments to the International Life- closed while under a load equivalent to would be that all davit-launched saving Appliance (LSA) Code,’’ and the B-weight of a lifeboat (see ‘‘Full lifeboats for Coast Guard approval under IMO Resolution MSC.321(89), load’’ definition in 46 CFR part 160, subpart 160.135, and SOLAS rescue subpart 160.135–3) at a speed of 5 knots. boats and fast rescue boats for Coast ‘‘Adoption of amendments to the • Revised Recommendation on Testing of a demonstration that a lifeboat Guard approval under subpart 160.156 Life-saving Appliances (Resolution release mechanism loaded at 100 (other than those fitted with automatic MSC.81(70)), as amended.’’ percent of the design load of the release release hooks under approval series hook will successfully release under Resolution MSC.320(89) amends the 160.170), would be required to have a load 50 consecutive times, as well as IMO LSA Code and enters into force on release mechanism approved under this simultaneously in the case of twin-fall January 1, 2013. This Resolution revised subpart 160.133. See § 160.135– systems; amends the design and performance 7(b)(17) (‘‘Each release mechanism must • a demonstration that the moveable requirements for release mechanisms by be identified at the application for hook component, when disconnected requiring— approval of the prototype lifeboat and • from the operating mechanism, remains must be approved under 46 CFR part The hook portion to be ‘‘stable’’ closed when tested 10 times with a such that when the hook is in the closed 160, subpart 160.133’’) and 160.156– cyclical loading from no load to 110 7(b)(18) (‘‘Each release mechanism fitted and reset position and under load from percent of the design load, or 1 percent the lifeboat, no forces are transmitted to a rescue boat, including a fast rescue to 110 percent of design load for load boat, must be identified at the back to the release handle; over center designs, at 10 seconds per • specific components within the application for approval of the cycle; prototype rescue boat and must be system to be made of corrosion-resistant • a demonstration that the actuating approved under subparts 160.133 or materials without the need for force under the design load of the 160.170 of this part.’’). Davit-launched galvanizing; release mechanism is between 100 N • lifeboats and SOLAS rescue boats and that, for moveable hook designs that and 300 N (22.5 lbf and 67.5 lbf); and are not of the ‘‘load over center’’ type • prototype testing of a second unit, fast rescue boats already installed prior (i.e., that are designed to rotate when a repeating the actuation force test before to the implementation of this SNPRM load is applied to the hook face), the undergoing a tensile test at six times the will not be affected. Beyond the new IMO Resolutions moveable hook component is kept fully design safe working load. closed by the hook locking parts so that The Coast Guard proposes to revise discussed above, the Coast Guard is also it is capable of holding its safe working subpart 160.133 to incorporate by proposing amendments to § 160.115 to load under any operational conditions reference IMO Resolutions MSC.320(89) clarify the winch drum design until the hook locking part is and MSC.321(89). Beyond the requirements, and editorial amendments deliberately caused to open by means of obligations to adopt the changes to the to correct non-substantive errors in 46 the operating mechanism; IMO LSA Code and Revised CFR part 160, subparts 160.133, • that if a hydrostatic interlock or recommendation on testing as a 160.135, and 160.156. similar device is provided to indicate signatory to the SOLAS convention, the V. Discussion of Proposed Rule that the lifeboat or rescue boat is Coast Guard desires to incorporate by waterborne, it automatically resets upon reference the amendments in IMO Revision to 46 CFR Part 160, Subpart lifting the boat from the water; Resolutions MSC.320(89) and 160.115 • multiple actions to perform on-load MSC.321(89) because they provide a The Coast Guard proposes to replace release, including the deliberate higher standard of safety and 46 CFR 160.115–7(b)(5)(i) with text that destruction of a ‘‘break glass’’ or similar performance than that of the existing requires winch drums to either be arrangement; requirements incorporated by reference grooved or otherwise designed to wind • operational capability of up to 100 in § 160.133–5. Further, for the falls evenly on and off each drum. percent of the release hook’s design load manufacturers, harmonization with The Coast Guard is proposing to make under conditions of trim of up to 10 current international standards will this change because winch drum degrees and a list of up to 20 degrees facilitate marketing of their products designs are increasingly being shown to either way; internationally. be effective at winding the falls on and • release mechanisms of the hook tail The United States actively off the drum without grooves, (i.e., and cam type to remain closed and hold participated in the negotiations that led winch drums with a smooth drum their design load through rotation of the to the development of these IMO design instead of the traditional grooved cam of up to 45 degrees in either standards. The Coast Guard considers drum design). The proposed change in direction, or 45 degrees in one direction these IMO standards to represent the § 160.115–7(b)(5)(i) does not modify the

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standard of design or performance for § 160.133–5(c)(3) which was incorrectly requiring each major structural winch drums. Rather, the proposed spelled as ‘‘live-saving’’. component of each release mechanism change is intended to clarify the current The Coast Guard proposes to revise to be constructed of corrosion-resistant regulation text which requires drums to § 160.133–5(c) to incorporate by steel that meets the standards for type be grooved ‘‘unless otherwise approved reference IMO Resolutions MSC.320(89) 302 stainless steel in ASTM A 276, by the Commandant.’’ The primary and MSC.321(89) in new paragraphs ASTM A 313, or ASTM A 314 standard by which the Coast Guard (c)(6) and (c)(7), respectively. Because of (incorporated by reference, see evaluates the design and performance of the incorporation by reference of these § 160.133–5 of this subpart). The launching appliances, IMO LSA Code Resolutions in § 160.133–5(c), proposed language would also permit Chapter VI, ‘‘Launching and references to the IMO LSA Code in other corrosion-resistant materials to be embarkation appliances’’ (referenced in §§ 160.133–3, 160.133–7(a)(1), 160.133– used if accepted by the Commandant as § 160.115–7(a)(1)), does not require 7(b)(8), and 160.133–7(b)(9) would be having equivalent or superior corrosion- drums to be grooved, but requires the revised with ‘‘as amended by Resolution resistant characteristics without the falls to wind evenly on and off the MSC.320(89),’’ and references to the need for coatings or galvanizing. drum(s). Revised recommendation on testing in The Coast Guard proposes to remove For many years, the Coast Guard has §§ 160.133–7(a)(2) and 160.133–13(d)(2) § 160.133–7(b)(15), which requires each approved winches with smooth drums would be revised with ‘‘as amended by release mechanism to have mechanical under approval series 160.115 as IMO Resolution MSC.321(89).’’ Revising protection against accidental or providing equivalent performance to these incorporations by reference would premature release that can only be grooved drums. However, there remains affect the provisions in §§ 160.133–7 engaged when the release mechanism is some confusion on the interpretation of and 160.133–13, which refer to the properly and completely reset. The existing § 160.115–7(b)(5)(i) with Revised recommendation on testing, as Coast Guard recognized that the respect to the approval of winches discussed in part IV above. requirements in this paragraph were without grooved drums. The Coast Because IMO Resolution MSC.320(89) already addressed in the existing IMO Guard believes this proposed change requires ‘‘all components of the hook LSA Code (incorporated by reference in would reduce confusion about the Coast unit, release handle unit, control cables § 160.133–5(c)(2)), paragraph 4.4.7.6.4, Guard’s criteria for acceptance of non- or mechanical operating links and the related to lifeboat fittings, and are not grooved drums in launching appliance fixed structural connections in a lifeboat affected by IMO Resolution winches by providing manufacturers [to] be of material corrosion resistant in MSC.320(89) that amends the IMO LSA with clearer language regarding the the marine environment without the Code. Therefore, removing existing intended design performance. need for coatings or galvanizing,’’ the § 160.133–7(b)(15) would eliminate a The Coast Guard proposes to add a current ASTM standard for structural redundancy with the incorporation by new paragraph (4) to § 160.115–13(d), carbon steel incorporated by reference reference of the IMO LSA Code. which would support the proposed in § 160.133–5 is a conflicting standard. The Coast Guard proposes to remove revision to 46 CFR 160.115–7(b)(5)(i) by This standard would no longer be § 160.133–13(d)(2)(iii), which contains a ensuring that any non-grooved drum appropriate because these steels require stipulation regarding galvanizing, design is still shown at the prototype coatings or galvanizing to be corrosion because galvanizing is no longer an testing phase to be as effective at evenly resistant. Therefore, the Coast Guard acceptable form of metal treatment for winding the falls on and off the drum proposes to remove § 160.133–5(b)(1), corrosion resistance under IMO surface as a grooved drum. incorporating by reference ASTM A 36/ Resolution MSC.320(89) and its removal A 36M–08, ‘‘Standard Specification for is consistent with the proposed removal Revisions to 46 CFR Part 160, Subpart Carbon Structural Steel,’’ and to remove of ASTM A 653 in §§ 160.133–5 and 160.133 the accompanying standard for 160.133–7 discussed above. The Coast The Coast Guard proposes to amend galvanizing in § 160.133–5(b)(5), Guard would re-number paragraphs the title of subpart 160.133 by removing incorporating by reference ASTM A consistent with the removal of these ‘‘(SOLAS).’’ As stated in the interim rule 653/A 653M–08, ‘‘Standard items. The Coast Guard proposes to published on October 11, 2011, the Specification for Steel Sheet, Zinc- remove the last two sentences in Coast Guard removed the standard for Coated (Galvanized) or Zinc-Iron Alloy- paragraph (e) of § 160.133–15, domestic release mechanisms under 46 Coated (Galvannealed) by the Hot-Dip consistent with the proposed removal of CFR 160.033 and created one standard Process.’’ Because § 160.133–5 already ASTM A 653. for release mechanisms under 160.133. contains three standards for stainless The Coast Guard proposes to amend Therefore the use of ‘‘SOLAS’’ in the steel that meet the non-galvanized, § 160.133–15(e) by removing the last title is unnecessary and may be corrosion-resistant material requirement two sentences, which require each misleading when installing release of IMO Resolution MSC.320(89), the approved release mechanism to be mechanisms approved under subpart Coast Guard further proposes to retain constructed with non-corrosion- 160.133 in lifeboats serving U.S. vessels and renumber § 160.133–5(b)(2), (3), and resistant steel that meets the coating only on domestic routes. Changing the (4), incorporating by reference the three mass and bend tests requirement title would make it consistent with ASTM stainless-steel standards. The specified under ASTM A 653 after other subparts affected by the interim Coast Guard seeks public comment on galvanizing or other anti-corrosion rule. The Coast Guard also proposes other corrosion-resistant material treatment has been applied. This changing the title of subpart 160.135, standards for possible incorporation by amendment is consistent with the which will be discussed in the section reference in § 160.133–5(b). changes to § 160.133–5, § 160.133–7 and below titled, ‘‘Revisions to 46 CFR part The Coast Guard proposes to amend § 160.133–13 discussed above as related 160, subpart 160.135, and subpart § 160.133–7(b)(3) to remove reference to to the use of galvanized steel. 160.156.’’ ASTM A36 and ASTM A653, as these The Coast Guard proposes to correct standards would no longer apply as Revisions to 46 CFR Part 160, Subpart the misspelling of ‘‘life-saving’’ in the described above. As proposed, the 160.135, and Subpart 160.156 title of the ‘‘Revised recommendation on references to the ASTM standards The Coast Guard proposes to amend testing of life-saving appliances’’ in would be replaced with language the title of § 160.135 by removing

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‘‘(SOLAS).’’ As stated in the interim rule 160.156–15(d), which correctly incorporating by reference the published on October 11, 2011, the references paragraph (e) in its entirety. amendments to the IMO LSA Code from Coast Guard removed the standard for Without this correction, it may be IMO Resolution MSC.320(89). If the lifeboats for merchant vessels under 46 misinterpreted that the independent information submitted in accordance CFR 160.035 and created one standard laboratory does not have responsibility with § 160.133–23, for changes to for lifeboats under 160.135. Therefore for witnessing the lifeboat in-process existing designs, or § 160.133–9, for new the use of ‘‘SOLAS’’ in the title is tests and inspections outlined in designs, is satisfactory to the unnecessary and may be misleading § 160.135–15(e)(1). Commandant, the manufacturer would when installing lifeboats approved The Coast Guard proposes to amend be permitted to proceed with fabrication under § 160.135 on U.S. vessels only on § 160.135–15(e)(1)(iv) to correct the of the prototype release mechanism and domestic routes. Regardless of domestic typographical error referencing the approval inspections and tests or international service, U.S. vessels § 160.135–13(c)(2)(i)(B), which does not required under proposed § 160.133–13 must carry lifeboats approved under exist, and replace it with the correct incorporating by reference the approval series 160.135. See 46 CFR reference, which is § 160.135– amendments to the Revised 199.201 and 199.261. Changing the title 11(c)(2)(i)(B). recommendation on testing from IMO to subpart 160.135 will make it Additionally, the Coast Guard Resolution MSC.321(89). The Coast consistent with the title of other proposes to correct typographical errors Guard would document compliance subparts affected by the interim rule. in § 160.156–7(b)(13), § 156–9(b)(22)(iv), with Resolutions MSC.320(89) and The Coast Guard does not propose to and § 156–9(d)(2) by replacing the word MSC.321(89) by means of amended remove ‘‘SOLAS’’ from the title of 46 ‘‘lifeboat’’ with the correct term, ‘‘rescue Certificates of Approval under subpart CFR 160.156 for rescue boats and fast boat,’’ because § 160.156 applies to 160.133. rescue boats because the Coast Guard rescue boats only. The Coast Guard also Similarly, if these proposed changes retained the domestic, locally approved proposes to amend § 160.156–15(e)(1) are finalized, any manufacturer of davit- rescue boat standard in 46 CFR 160.056. by removing the phrase ‘‘In accordance launched lifeboats and those The Coast Guard proposes to amend with the interval prescribed in manufacturers of SOLAS rescue boats or § 160.135–15(e)(2) and § 160.156– paragraph (d)(1) of this section.’’ Part of fast rescue boats with installed release 15(e)(2) to include the reference to the the Coast Guard’s original intent when mechanisms approved under existing Revised recommendation on testing part drafting this rule was consistency of subpart 160.133 who want to continue 2, paragraph 5.3 and to remove the language throughout the affected manufacturing such boats under a redundant statement, ‘‘At a minimum, subparts where possible. This phrase Certificate of Approval issued under each [lifeboat/rescue boat] must be does not appear in any other subpart subpart 160.135 or 160.156, operated for 2 hours during which all affected by the interim rule and respectively, would have to provide the [lifeboat/rescue boat] systems must be inadvertently remained in 160.156– Coast Guard with an application for pre- exercised.’’ Under existing § 160.135– 15(e)(1) when the interim rule was approval review in accordance with 15(e)(2) and § 160.156–15(e)(2), the published. Removal of this phrase will § 160.135–23 or § 160.156–23 Coast Guard expected all of the also eliminate the typographical error in (Procedure for approval of design, production tests of IMO Revised § 160.156–15(e)(1) by removing material, or construction change). This recommendation on testing part 2, reference to § 160.156–15(d)(1), which application would have to indicate the paragraph 5.3, as applicable to the type does not exist. proposed installation of a release of boat, to be performed on all approved Finally, the Coast Guard proposes to mechanism meeting the requirements of lifeboats and rescue boats. By amending remove the cite to 49 CFR 1.46 in the the proposed § 160.133–7 incorporating § 160.135–15(e)(2) and § 160.156– authorities section of part 160 and part by reference the amendments to the 15(e)(2), the Coast Guard will make this 164 because that authority applies to the IMO LSA Code from IMO Resolution requirement clear. The requirement to Department of Transportation, under MSC.320(89). If the information operate each production lifeboat and which the Coast Guard no longer submitted in accordance with rescue boat for 2 hours is already operates. The Coast Guard currently § 160.135–23 or § 160.156–23 is included in the IMO Revised operates under the authority of the satisfactory to the Commandant, the recommendation on testing part 2 Department of Homeland Security. manufacturer would be permitted to (incorporated by reference in § 160.135– Proposed Impacts to Certificates of proceed with fabrication of the 5 and § 160.156–5), paragraph 5.3, and Approval prototype lifeboat or rescue boat, and thus the Coast Guard proposes removal would be notified of the extent of any of this sentence from § 160.135–15(e)(2) If these proposed changes to prototype testing needed for reissuance and § 160.156–15(e)(2). Because of the incorporate by reference IMO of the Certificate of Approval under existing incorporation by reference of Resolutions MSC.320(89) and 160.135 or 160.156. The Coast Guard the Revised recommendation on testing MSC.321(89) are finalized, any would document compliance with in § 160.135–15 and § 160.156–15, these manufacturer of SOLAS release Resolutions MSC.320(89) and sections would be added as approved mechanisms who wants to continue to MSC.321(89) by means of amended incorporations by reference in manufacture such release mechanisms Certificates of Approval under subparts § 160.135–5(d)(4) and § 160.156–5(d)(4), under a Certificate of Approval issued 160.135 and 160.156 indicating respectively. under existing subpart 160.133 would installation of a release mechanism The Coast Guard also proposes to have to provide the Coast Guard with an demonstrated to meet Resolutions amend § 160.135–15(d), which sets forth application for pre-approval review in MSC.320(89) and MSC.321(89). independent laboratory responsibilities, accordance with § 160.133–23 by amending the reference to paragraph (Procedure for approval of design, VI. Incorporation by Reference (e)(2) so that it references all of material, or construction change). The Material proposed for incorporation paragraph (e). This amendment would application would have to indicate how by reference appears in proposed 46 correct a typographical error; § 160.135– the existing release mechanism, or a CFR 160.133–5(c)(6) and (c)(7). You may 15(d) was intended to have the same new or revised design, meets the inspect this material at U.S. Coast Guard language as 46 CFR part 160, subpart requirements of proposed § 160.133–7 Headquarters where indicated under

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ADDRESSES. Copies of the material are and Budget. A draft regulatory either be grooved or otherwise designed available from the sources listed in assessment follows: to wind the falls evenly on and off each paragraph (A) of that section. The proposed rule would amend the drum.’’ As such, this change clarifies Before publishing a final rule, the existing regulations for release requirements by specifying criteria used Coast Guard will submit this material to mechanisms for lifeboats and rescue by the Coast Guard in historic approvals the Director of the Federal Register for boats in order to harmonize Coast Guard directly in the regulations, thereby approval of the incorporation by regulatory requirements with the reducing paperwork and regulatory reference. international standards established by uncertainty. The proposed change in VII. Regulatory Analyses the IMO. The proposed rule specifically § 160.115–7(b)(5)(i) would not modify requires U.S. standards regarding the standard of design, performance, or The Coast Guard developed this design, construction, performance, and testing for winch drums. Approval proposed rule after considering testing of release mechanisms to be requests for non-grooved winch drums numerous statutes and executive orders harmonized to the IMO’s standards. are a component of the application related to rulemaking. Below the Coast This harmonization is required— process for all winch drums (grooved Guard summarizes its analyses based on • For the U.S. to comply with its and non-grooved), along with many 14 of these statutes or executive orders. treaty obligations as a contracting other lifesaving appliances (i.e., davits, A. Regulatory Planning and Review government to SOLAS by harmonizing lifeboats, etc.), that must be approved by Executive Orders 12866 (‘‘Regulatory Coast Guard requirements for release the Coast Guard. The Coast Guard Planning and Review’’) and 13563 mechanisms for lifeboats and rescue estimates that any time saved associated (‘‘Improving Regulation and Regulatory boats with the international standards with this clarification to the winch Review’’) direct agencies to assess the established by the IMO LSA Code; and drum approvals would be minimal. In costs and benefits of available regulatory • To clarify requirements and remove addition, there are already alternatives and, if regulation is inconsistencies between the manufacturers of non-grooved or necessary, to select regulatory requirements for SOLAS compliance smooth winch drums. For these reasons, approaches that maximize net benefits and the sections of 46 CFR regulating there are no cost implications for (including potential economic, release mechanisms on lifeboats and industry from the rewording of environmental, public health and safety rescue boats. § 160.115–7(b)(5)(i). The purpose of the effects, distributive impacts, and In addition, the proposed rule would modification of the wording in equity). Executive Order 13563 add wording to 46 CFR 160.115– § 160.115–7(b)(5)(i) is to clarify the emphasizes the importance of 7(b)(5)(i) that would clarify the Coast Coast Guard’s criteria for acceptance of quantifying both costs and benefits, of Guard’s acceptance of non-grooved non-grooved or smooth winch drums as reducing costs, of harmonizing rules, winch drums as an alternative to an alternative to grooved drums. and of promoting flexibility. grooved drums on launching appliance Table 1 provides a summary of the This SNPRM has not been designated winches. Currently that section states, proposed rule’s applicability, affected a ‘‘significant regulatory action’’ under ‘‘A winch must have grooved drums population, costs, and benefits. Each of section 3(f) of Executive Order 12866. unless otherwise approved by the these factors is discussed in greater Accordingly, the SNPRM has not been Commandant.’’ The section would be depth in the sections following the reviewed by the Office of Management reworded to state, ‘‘Winch drums must table.

TABLE 1—SUMMARY OF THE IMPACTS OF THE PROPOSED RULE

Category Summary

Applicability ...... U.S. manufacturers of release mechanisms for lifeboats and rescue boats, U.S. manufacturers of non- grooved or smooth winch drums, and U.S.-flagged vessels required by the Coast Guard to carry lifeboats and rescue boats. Affected Population ...... One U.S. manufacturer of release mechanisms, five U.S. manufacturers of non-grooved or smooth winch drums, 102 non-SOLAS-certified vessels, 289 SOLAS-certified vessels. Costs ...... None. Quantified Benefits ...... None. Qualitative Benefits ...... Benefits Associated with Harmonizing Standards: • Fulfilling U.S. treaty obligations to the IMO; • USCG and vessel owners and operators would face less uncertainty and more efficient USCG inspections; • Manufacturers and users of non-grooved or smooth winch drums will face less uncertainty regarding the Coast Guard criteria for approval of non-grooved or smooth winch drums.

Affected Population and Cost Impacts lifeboats and rescue boats.1 This required under current regulations) 2 manufacturer is, however, in the process The proposed rule would potentially of phasing out production of the release 2 The Coast Guard regulation currently in place affect three groups. The first consists of mechanisms manufactured from does not require the use of galvanized steel, per se, U.S. manufacturers of release but permits a regulatory equivalent to galvanized galvanized steel or its equivalent (as steel that does not necessarily have to be mechanisms, the second consists of manufactured of galvanized steel. The current vessels that are required to be equipped § 160.133–7(b)(3), the section of the regulation with lifeboats or rescue boats, and the dealing with the ‘‘design, construction, and performance of release mechanisms’’ describes the 1 Manufacturers of release mechanisms are third consists of U.S. manufacturers of regulatory equivalent as follows: ‘‘Each major non-grooved or smooth winch drums. currently required to test their mechanisms and file structural component of each release mechanism the results with the Coast Guard. Coast Guard must be constructed of steel. Other materials may There is currently only one U.S. records indicate that there is only one U.S.-based be used if accepted by the Commandant as manufacturer of release mechanisms for manufacturer of these mechanisms. Continued

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before January 1, 2013. This also be in compliance with the new IMO accidents, there was only one accident manufacturer, which is also the only requirements. that resulted in injuries, and these known manufacturer of galvanized steel There are a total of five potential injuries were slight.9 mechanisms for lifeboats and rescue manufacturers of non-grooved or (2) Release mechanisms may need to boats in the U.S., will be manufacturing smooth winch drums.5 As stated be replaced due to their deterioration only stainless-steel release mechanisms, previously, the proposed regulation from normal wear and tear. However, manufactured from corrosion-resistant would not modify production, design, both private sector and Coast Guard materials and without the need for or testing standards associated with subject matter experts have stated that galvanizing (or its equivalent), 3 and these winch drums, nor would it change the lifespans of both galvanized and complying with the latest IMO reporting and recordkeeping stainless-steel mechanisms generally requirements, before that date. The requirements surrounding their sale or exceed the lifespan of the lifeboats and manufacturer is planning this phase-out use. Therefore, the Coast Guard does not rescue boats on which they are carried. because it expects the market for expect there would be any cost or Therefore, the Coast Guard does not galvanized steel mechanisms approved collection of information implications to expect any replacements resulting from to the current requirements to U.S. manufacturers. deterioration or normal wear and tear.10 disappear.4 Because the manufacturer’s Based on data from the Coast Guard’s Lifeboats and rescue boats installed phase-out will occur independently of Marine Information for Safety and Law on or after the implementation of the whether the proposed rule is Enforcement (MISLE) database, the final rule by in-scope vessel owners and implemented, the manufacturer would Coast Guard estimates the total number operators would need to meet the experience no additional cost impact of vessels affected by the proposed rule requirements in IMO resolutions due to this proposed rule. If the to be 391, of which 289 6 are SOLAS MSC.320(89) and MSC.321(89) in order proposed rule is implemented, the certified (hereinafter referred to as to obtain SOLAS certification. manufacturer, by the time of the SOLAS vessels), and 102 are non- Therefore, the proposed rule would not proposed rule’s implementation, will SOLAS. 7 This proposed rule would have any additional cost impact to this have already incurred the cost of the require these vessels to comply with class of vessels. The non-SOLAS vessels switchover from the galvanized steel new IMO requirements and use release would have to upgrade to the non- mechanisms to those manufactured with mechanisms made from corrosion- galvanized, corrosion-resistant corrosion-resistant material without the resistant materials without the need for mechanisms compliant with the new need for galvanizing. The decision will galvanizing (or regulatory equivalent), requirements whenever they need to have been made based on expected instead of a galvanized steel release replace any mechanisms in the future changes in market conditions and will mechanism (or regulatory equivalent) for either of the reasons cited above, or for any future replacements of on-load for newly constructed lifeboats and equivalent or superior. Sheet steel and plate must release mechanisms installed in existing rescue boats. be low-carbon, commercial quality, either corrosion If release mechanisms meeting both resistant or galvanized as per ASTM A 653 life or rescue boats. Release mechanisms (incorporated by reference, see § 160.133–5 of this currently in place would not need to be the current and the new requirements subpart), coating designation G115. Structural steel replaced except in two limited were available, the Coast Guard assumes plates and shapes must be carbon steel as per circumstances. These are: vessel owners and operators would ASTM A 36 (incorporated by reference, see § 160.133–5 of this subpart). All steel products, (1) Accidents that result in the purchase the less-expensive of the two, except corrosion-resistant steel, must be galvanized damage of the mechanisms themselves those meeting the current requirements. to provide high-quality zinc coatings suitable for or accidents that damage lifeboats and Release mechanisms approved to the the intended service life in a marine environment. rescue boats seriously enough to require current requirements (such as those Each fabricated part must be galvanized after 8 fabrication. Corrosion-resistant steel must be a type replacement. A search was conducted made of galvanized steel) were found to 302 stainless steel per ASTM A 276, ASTM A 313 of the MISLE database system for such be $1,500 less-expensive, per unit, than or ASTM A 314 (incorporated by reference, see accidents from 2003 through 2011. those meeting the new requirements § 160.133–5 of this subpart) or another corrosion- 11 resistant stainless steel of equal or superior Based on accidents found during this (corrosion-resistant mechanisms). As corrosion-resistant characteristics’’. In this period, six release mechanisms were stated above, however, the one supplier regulatory analysis, the term ‘‘galvanized steel estimated to need replacement on of galvanized steel on-load release release mechanisms’’ will also refer to those that SOLAS vessels and six on non-SOLAS mechanisms is expected to stop may not necessarily be manufactured of galvanized steel but are the equivalent thereof as defined vessels. This yields an average of less manufacturing them before the above. than one release mechanism needing proposed rule would take effect on 3 The proposed regulation does not require only replacement per annum. In all of these January 1, 2013. Foreign entities that the use of stainless steel, per se, but also permits have manufactured these mechanisms a regulatory equivalent to such a stainless steel 5 Estimated based on data provided by mechanism that does not necessarily have to be have also, based on our research, manufacturers of winch drums to the U.S. Coast 12 manufactured of stainless steel. § 167.133–7(b)(3), discontinued manufacturing them. Guard for the required approval of their winch the section of the regulation dealing with the drums. This data was found in the U.S. Coast Therefore, the galvanized steel ‘‘design, construction, and performance of release Guard’s Maritime Information Exchange database mechanisms’’, states: ‘‘Each major structural 9 component of each release mechanism must be under the equipment approved for § 160.115 (winch The four were sent to the hospital for constructed of steel. Corrosion-resistant steel must drums). In this database the Coast Guard does not examinations but all four went back to work the be a type 302 stainless steel per ASTM A 276, break out approvals given for winch drums by same day. ASTM A 313 or ASTM A 314 (incorporated by grooved and non-grooved or smooth construction. 10 It should be noted that depreciation and normal reference, see § 160.133–5 of this subpart). Other The data is for all winch drums. Hence, it is a wear and tear do not include accidents. corrosion-resistant materials may be used if maximum potential number of manufacturers of all 11 This same cost differential was obtained from accepted by the Commandant as having equivalent winch drum (both grooved and non-grooved) two separate and independent industry sources. or superior corrosion-resistant characteristics.’’ In manufacturers. One source, as of March 2012, is producing both the this regulatory analysis, the term ‘‘stainless steel’’ 6 Data source: Marine Information for Safety and stainless steel and galvanized steel mechanisms release mechanisms will also refer to those that may Law Enforcement (MISLE) system. while the second is not currently producing both not necessarily be manufactured of stainless steel 7 Id. mechanisms, but cited a price difference that but are the equivalent thereof as defined in the 8 New lifeboats and rescue boats are equipped existed when it produced both. proposed regulation. with new release mechanisms as standard 12 Based on telephone discussions with numerous 4 Information provided to the Coast Guard by equipment. This was the consensus of the Coast distributors and manufacturers of release telephone, June 2012. Guard and private sector subject matter experts. mechanisms in the U.S.

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mechanisms (or their equivalent) will governmental jurisdictions with smooth drums that must be sent to the no longer be available for purchase. populations of fewer than 50,000. Coast Guard and processed by the Coast Only the non-galvanized, corrosion- There are three industries that may Guard. Approval requests for non- resistant mechanisms that are in potentially face a direct cost resulting grooved winch drums are a component compliance with the IMO requirements from the proposed rule. The first of the application process for all winch will be available. The single U.S. industry consists of the single U.S. drums (grooved and non-grooved), along manufacturer is phasing out the manufacturer of release mechanisms. with many other lifesaving appliances galvanized steel mechanisms The second industry consists of the five (i.e., davits, lifeboats, etc.), that must be irrespective of whether the proposed manufacturers of winch drums. The approved by the Coast Guard. rule is enacted. The single U.S. third industry consists of owners and With respect to the in-scope owners manufacturer is planning this phase-out operators of vessels equipped with in- and operators of vessels, the marginal because it no longer sees a future market scope lifeboats and rescue boats. Based additional cost stemming from the for the galvanized steel mechanisms.13 on data from the Coast Guard’s Marine requirements to fulfill the proposed rule As a result, consumers will be able to Information for Safety and Law are expected to be minimal. This is purchase only the corrosion-resistant Enforcement (MISLE) database, the because, as stated previously, regardless mechanisms. Coast Guard estimates the total number of whether or not the proposed rule is of vessels affected by the proposed rule implemented (i.e., independent thereof), Benefits to be 391, of which 289 14 are SOLAS prior to the implementation of the The proposed rule would amend the certified and 102 are non-SOLAS. 15 The proposed rule the cheaper galvanized existing regulations for release Coast Guard has determined that a steel release mechanisms will no longer mechanisms for lifeboats and rescue significant number of small entities in be available in the market place. The boats in order to harmonize Coast Guard these three industries will not be single U.S. manufacturer will no longer regulatory requirements with the substantially impacted and the be manufacturing galvanized steel international standards established by explanation for this determination release mechanisms. Thus vessel the IMO. The harmonization specifically appears in the paragraphs that follow. owners will only be able to purchase requires U.S. standards regarding With respect to the single U.S. stainless steel release mechanisms. design, construction, performance, and manufacturer of release mechanisms, Therefore, the Coast Guard certifies testing of release mechanisms to be the Coast Guard does not expect that under 5 U.S.C. 605(b) that this proposed harmonized to the IMO’s standards. there would be any cost impact because, rule, if promulgated, would not have a Benefits from the harmonization of as stated previously, prior to January 1, significant economic impact on a the Coast Guard regulatory requirements 2013, the only U.S. manufacturer of the substantial number of small entities. If you think that your business, to the IMO standards include the galvanized steel mechanisms is organization, or governmental following: planning to discontinue manufacturing jurisdiction qualifies as a small entity (1) Fulfilling U.S. treaty obligations to them.16 Based on our research (as of and that this proposed rule would have the IMO; March 2012), there are no manufacturers (2) The Coast Guard and vessel a significant economic impact on it, of galvanized steel release mechanisms owners and operators would face less please submit a comment to the Docket (or their equivalent) outside of the U.S. uncertainty and more efficient Coast Management Facility at the address Therefore, the galvanized steel Guard inspections during vessel under ADDRESSES. In your comment, mechanisms (or their equivalent) will inspections because only one type of explain why you think it qualifies and no longer be available for purchase. release mechanism would have to be how and to what degree this proposed Only the non-galvanized, corrosion- inspected as opposed to two. rule would economically affect it. (3) The inclusion of performance resistant mechanisms that are in C. Assistance for Small Entities criteria for approval of non-grooved or compliance with the IMO requirements smooth winch drums to the language will be available. The single U.S. Under section 213(a) of the Small contained in § 160.115–7(b)(5)(i), and manufacturer is phasing out the Business Regulatory Enforcement the addition of proposed new galvanized steel mechanisms Fairness Act of 1996 (Pub. L. 104–121), § 160.155–13(d)(4), reduces any irrespective of whether the proposed the Coast Guard wants to assist small uncertainty to U.S.-based manufacturers rule is enacted. The single U.S. entities in understanding this proposed and users of such winch drums. If the manufacturer is planning this phase-out rule so that they can better evaluate its because it no longer sees a future market effects on them and participate in the proposed regulation is finalized, it will 17 be clear that such products, when for the galvanized steel mechanisms. rulemaking. If the proposed rule would approved by the Coast Guard, will be With respect to the five U.S. affect your small business, organization, equivalent to grooved winch drums in manufacturers of winch drums, as stated or governmental jurisdiction and you terms of performance. previously, the proposed regulation will have questions concerning its not modify the requirements regarding provisions or options for compliance, B. Small Entities production, design, or testing standards please consult Mr. George Grills, Under the Regulatory Flexibility Act for non-grooved and smooth winch Commercial Regulations and Standards (5 U.S.C. 601–612), the Coast Guard has drums. The proposed regulation will Directorate, Office of Design and considered whether this proposed rule also not impose further reporting Engineering Standards, Lifesaving and would have a significant economic burdens on manufacturers. This is Fire Safety Division (CG–ENG–4), Coast impact on a substantial number of small because there is no specific application, Guard; telephone 202–372–13851385, or entities. The term ‘‘small entities’’ per se, regarding non-grooved and email [email protected]. The comprises small businesses, not-for- Coast Guard will not retaliate against 14 profit organizations that are Data source: Marine Information for Safety and small entities that question or complain Law Enforcement (MISLE) system. independently owned and operated and 15 Id. about this proposed rule or any policy are not dominant in their fields, and 16 Based on telephone conversation with the or action of the Coast Guard. manufacturer held in June 2012. Small businesses may send comments 13 Information supplied by U.S. manufacturer. 17 Information supplied by U.S. manufacturer. on the actions of Federal employees

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who enforce, or otherwise determine as these categories are within a field eliminate ambiguity, and reduce compliance with, Federal regulations to foreclosed from regulation by the states burden. the Small Business and Agriculture (see U.S. v. Locke, above), the Coast I. Protection of Children Regulatory Enforcement Ombudsman Guard recognizes the key role State and and the Regional Small Business local governments may have in making The Coast Guard has analyzed this Regulatory Fairness Boards. The regulatory determinations. Additionally, proposed rule under Executive Order Ombudsman evaluates these actions Sections 4 and 6 of Executive Order 13045, Protection of Children from annually and rates each agency’s 13132 require that for any rules with Environmental Health Risks and Safety responsiveness to small business. If you preemptive effect, the Coast Guard will Risks. This proposed rule is not an wish to comment on actions by provide elected officials of affected state economically significant rule and would employees of the Coast Guard, call 1– and local governments and their not create an environmental risk to 888–REG–FAIR (1–888–734–3247). representative national organizations health or risk to safety that might the notice and opportunity for disproportionately affect children. D. Collection of Information appropriate participation in any J. Indian Tribal Governments This proposed rule would call for no rulemaking proceedings, and to consult new collection of information under the with such officials early in the This proposed rule does not have Paperwork Reduction Act of 1995 (44 rulemaking process. Therefore, the tribal implications under Executive U.S.C. 3501–3520) nor would it adjust Coast Guard invites affected State and Order 13175, Consultation and an existing collection of information. local governments and their Coordination with Indian Tribal Governments, because it would not have E. Federalism representative national organizations to indicate their desire for participation a substantial direct effect on one or A rule has implications for federalism and consultation in this rulemaking more Indian tribes, on the relationship under Executive Order 13132, process by submitting comments to the between the Federal Government and Federalism, if it has a substantial direct docket using one of the methods Indian tribes, or on the distribution of effect on the States, on the relationship specified under ADDRESSES. In power and responsibilities between the between the national government and accordance with Executive Order 13132, Federal Government and Indian tribes. the States, or on the distribution of the Coast Guard will provide a K. Energy Effects power among the various levels of federalism impact statement to government. The Coast Guard has document (1) the extent of the Coast The Coast Guard has analyzed this analyzed this proposed rule under that Guard’s consultation with State and proposed rule under Executive Order order and has determined that it does local officials that submit comments to 13211, Actions Concerning Regulations not have implications for federalism. A this proposed rule, (2) a summary of the That Significantly Affect Energy Supply, summary of our analysis follows. nature of any concerns raised by State Distribution, or Use. The Coast Guard The U.S. Supreme Court has long or local governments and the Coast has determined that it is not a recognized the field preemptive impact Guard’s position thereon, and (3) a ‘‘significant energy action’’ under that of the Federal regulatory regime for statement of the extent to which the order because it is not a ‘‘significant inspected vessels. See, e.g., Kelly v. concerns of State and local officials regulatory action’’ under Executive Washington ex rel Foss, 302 U.S. 1 have been met. Order 12866 and is not likely to have a (1937) and the consolidated cases of significant adverse effect on the supply, United States v. Locke and Intertanko v. F. Unfunded Mandates Reform Act distribution, or use of energy. Locke, 529 U.S. 89, 113–116 (2000). The Unfunded Mandates Reform Act L. Technical Standards Therefore, the Coast Guard’s view is that of 1995 (2 U.S.C. 1531–1538) requires regulations issued under the authority Federal agencies to assess the effects of The National Technology Transfer of 46 U.S.C. 3306 in the areas of design, their discretionary regulatory actions. In and Advancement Act (15 U.S.C. 272 construction, alteration, repair, particular, the Act addresses actions note) directs agencies to use voluntary operation, superstructures, hulls, that may result in the expenditure by a consensus standards in their regulatory fittings, equipment, appliances, State, local, or tribal government, in the activities unless the agency provides propulsion machinery, auxiliary aggregate, or by the private sector of Congress, through the Office of machinery, boilers, unfired pressure $100,000,000 (adjusted for inflation) or Management and Budget, with an vessels, piping, electric installations, more in any 1 year. Although this explanation of why using these accommodations for passengers and proposed rule would not result in such standards would be inconsistent with crew, sailing school instructors, sailing an expenditure, the Coast Guard does applicable law or otherwise impractical. school students, lifesaving equipment discuss the effects of this rule elsewhere Voluntary consensus standards are and its use, firefighting equipment, its in the preamble. technical standards (e.g., specifications use and precautionary measures to of materials, performance, design, or guard against fire, inspections and tests G. Taking of Private Property operation; test methods; sampling related to these areas, and the use of This proposed rule would not cause a procedures; and related management vessel stores and other supplies of a taking of private property or otherwise systems practices) that are developed or dangerous nature have preemptive effect have taking implications under adopted by voluntary consensus over State regulation in these fields, Executive Order 12630, Governmental standards bodies. regardless of whether the Coast Guard Actions and Interference with This proposed rule uses technical has issued regulations on the subject, Constitutionally Protected Property standards other than voluntary and regardless of the existence of Rights. consensus standards: conflict between the state and Coast • International Life-Saving Appliance Guard regulation. H. Civil Justice Reform Code, (IMO Resolution MSC.48(66)), as While it is well settled that states may This proposed rule meets applicable amended by IMO Resolution not regulate in categories in which standards in sections 3(a) and 3(b)(2) of MSC.320(89); Congress intended the Coast Guard to be Executive Order 12988, Civil Justice • IMO Resolution MSC.81(70), the sole source of a vessel’s obligations, Reform, to minimize litigation, Revised recommendation on testing of

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life-saving appliances, as amended by available in the docket where indicated that the falls wind evenly on and off IMO Resolution MSC.321(89). under the ‘‘Public Participation and each drum. The proposed sections that reference Request for Comments’’’ section of this * * * * * these standards and the locations where preamble. This proposed rule involves these standards are available are listed regulations that are editorial, regulations Subpart 160.133 [Amended] in 46 CFR 160.133–5. They are used concerning equipping of vessels, and 4. Amend the title to Subpart 160.133 because we did not find voluntary regulations concerning vessel operation by removing the word ‘‘(SOLAS)’’. consensus standards that are applicable safety standards. This proposed rule is to this rule. If you are aware of categorically excluded under Section Subpart 160.133—Release voluntary consensus standards that 2.B.2, Figure 2–1, paragraphs (34)(a) and Mechanisms for Lifeboats and Rescue might apply, please identify them by (d) of the Instruction and under Boats sending a comment to the docket using paragraph 6(a) of the ‘‘Appendix to one of the methods under ADDRESSES. In National Environmental Policy Act: § 160.133–3 [Amended] your comment, please explain why you Coast Guard Procedures for Categorical 5. In § 160.133–3, in the introductory think the standards might apply. Exclusions, Notice of Final Agency text, after the words ‘‘IMO LSA Code’’, If you disagree with our analysis of Policy’’ (67 FR 48243, July 23, 2002). add the words ‘‘, as amended by the voluntary consensus standards The Coast Guard seeks any comments or Resolution MSC.320(89)’’. listed above or are aware of voluntary information that may lead to the 6. Amend § 160.133–5 as follows: consensus standards that might apply discovery of a significant environmental a. Remove paragraphs (b)(1) and but are not listed, please send a impact from this proposed rule. (b)(5); comment to the docket using one of the b. Redesignate paragraphs (b)(2), methods under ADDRESSES. In your List of Subjects (b)(3), (b)(4), and (b)(6) as paragraphs comment, please explain why you 46 CFR Part 160 (b)(1), (b)(2), (b)(3), and (b)(4), disagree with the Coast Guard’s analysis Marine safety, Incorporation by respectively; and/or identify voluntary consensus c. In paragraph (c)(3), after the words reference, Reporting and recordkeeping standards not listed that might apply. ‘‘Revised recommendation on testing requirements. M. Coast Guard Authorization Act Sec. of’’, remove the words ‘‘live-saving’’ and 608 (46 U.S.C. 2118(a)) 46 CFR Part 164 add, in their place, the words ‘‘life- saving’’; and Section 608 of the Coast Guard Fire prevention, Marine safety, Reporting and recordkeeping d. Add paragraphs (c)(6) and (c)(7) to Authorization Act of 2010 (Pub. L. 111– read as follows: 281) adds new section 2118 to 46 U.S.C. requirements. Subtitle II (Vessels and Seamen), For the reasons discussed in the § 160.133–5 Incorporation by reference. Chapter 21 (General). New section preamble, the Coast Guard proposes to * * * * * 2118(a) sets forth requirements for amend 46 CFR parts 160 and 164 as (c) * * * standards established for approved follows: (6) Annex 4 to MSC 89/25, Report of equipment required on vessels subject the Maritime Safety Committee on its PART 160—LIFESAVING EQUIPMENT to 46 U.S.C. Subtitle II (Vessels and Eighty-Ninth Session, ‘‘Resolution Seamen), Part B (Inspection and 1. The authority citation for part 160 MSC.320(89), Adoption of Amendments Regulation of Vessels). Those standards is revised to read as follows: to the International Life-Saving must be ‘‘(1) based on performance Authority: 46 U.S.C. 2103, 3306, 3703 and Appliance (LSA) Code,’’ (adopted May using the best available technology that 4302; E.O. 12234; 45 FR 58801; 3 CFR, 1980 20, 2011), IBR approved for §§ 160.133– is economically achievable; and (2) Comp., p. 277; and Department of Homeland 3, 160.133–5(c)(6), 160.133–7(d)(1), operationally practical.’’ See 46 U.S.C. Security Delegation No. 0170.1. 160.133–7(b)(8), and 160.133–7(b)(9) 2118(a). This proposed rule addresses (Resolution MSC.320(89)). lifesaving equipment for Coast Guard Subpart 160.115—Launching (7) Annex 5 to MSC 89/25, Report of approval that is required on vessels Appliances—Winches the Maritime Safety Committee on its subject to 46 U.S.C. Subtitle II, Part B, Eighty-Ninth Session, ‘‘Resolution 2. In § 160.115–7, revise paragraph and the Coast Guard has ensured that MSC.321(89), Adoption of Amendments (b)(5)(i) to read as follows: this proposed rule would satisfy the to the Revised Recommendation on requirements of 46 U.S.C. 2118(a), as § 160.115–7 Design, construction, and Testing of Life-Saving Appliances necessary. performance of winches. (Resolution MSC.81(70)),’’ (adopted N. Environment * * * * * May 20, 2011), IBR approved for (b) * * * §§ 160.133–5(c)(7), 160.133–7(a)(2), and The Coast Guard has analyzed this (5) * * * 160.133–13(d)(2) (Resolution proposed rule under Department of (i) Winch drums must either be MSC.321(89)). Homeland Security Management grooved or otherwise designed to wind 7. Amend § 160.133–7 as follows: Directive 023–01 and Commandant the falls evenly on and off each drum. a. In paragraph (a)(1), after the words Instruction M16475.lD, which guide the * * * * * ‘‘IMO LSA Code,’’ add the words ‘‘as Coast Guard in complying with the 3. In § 160.115–13, add new amended by Resolution MSC.320(89),’’; National Environmental Policy Act of paragraph (d)(4) to read as follows: b. In paragraph (a)(2), after the words 1969 (42 U.S.C. 4321–4370f), and have ‘‘IMO Revised recommendation on made a preliminary determination that § 160.115–13 Approval instructions and testing,’’ add the words ‘‘as amended by this action is one of a category of actions tests for prototype winches. Resolution MSC.321(89),’’; that do not individually or cumulatively * * * * * c. Revise paragraph (b)(3) as set out have a significant effect on the human (d) * * * below; environment. A preliminary (4) Winch drum. Each winch designed d. In paragraph (b)(8), after the words environmental analysis checklist without grooved drums must ‘‘required by’’, add the word ‘‘IMO’’, supporting this determination is demonstrate during prototype testing and after the words ‘‘LSA Code’’, add

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the words ‘‘, as amended by Resolution adding, in its place, the punctuation ‘‘,’’, (2) Post assembly tests and MSC.320(89),’’; and, after the numbers ‘‘160.135–13’’, inspections. The finished rescue boat e. In paragraph (b)(9), after the words adding the words ‘‘, and 160.135–15’’. must be visually inspected inside and ‘‘required by’’, add the word ‘‘IMO’’, 12. Amend § 160.135–15 as follows: out. The manufacturer must develop and after the words ‘‘LSA Code’’, add a. In paragraph (d), remove the word and maintain a visual inspection the words ‘‘, as amended by Resolution ‘‘(e)(2)’’ and add, in its place, the word checklist designed to ensure that all MSC.320(89),’’; and ‘‘(e)’’; applicable requirements have been met f. Remove paragraph (b)(15). b. In paragraph (e)(1)(iv), remove the and the rescue boat is equipped in § 160.133–7 Design, construction, and reference ‘‘§ 160.135–13(c)(2)(i)(B)’’ and accordance with approved plans. Each performance of release mechanisms. add, in its place, the reference production rescue boat of each design ‘‘§ 160.135–11(c)(2)(i)(B)’’; and must pass each of the tests described in * * * * * c. Revise paragraph (e)(2) to read as (b) * * * the IMO Revised recommendation on (3) Steel. Each major structural follows: testing, part 2, section 5.3 (incorporated by reference, see § 160.156–5 of this component of each release mechanism § 160.135–15 Production inspections, must be constructed of corrosion- tests, quality control, and conformance of subpart). resistant steel. Corrosion-resistant steel lifeboats. PART 164—MATERIALS must be a type 302 stainless steel per * * * * * ASTM A 276, ASTM A 313 or ASTM A (e) * * * 17. The authority citation for part 164 314 (incorporated by reference, see (2) Post assembly tests and is revised to read as follows: § 160.133–5 of this subpart). Other inspections. The finished lifeboat must Authority: 46 U.S.C. 3306, 3703, 4302; E.O. corrosion-resistant materials may be be visually inspected inside and out. 12234;; 45 FR 58801;; 3 CFR, 1980 Comp., p. used if accepted by the Commandant as The manufacturer must develop and 277; and Department of Homeland Security having equivalent or superior corrosion- maintain a visual inspection checklist Delegation No. 0170.1. resistant characteristics; designed to ensure that all applicable Dated: November 15, 2012. * * * * * requirements have been met and the J.G. Lantz, lifeboat is equipped in accordance with § 160.133–13 [Amended] Director of Commercial Regulations and approved plans. Each production 8. Amend § 160.133–13 as follows: Standards, U.S. Coast Guard. lifeboat of each design must pass each [FR Doc. 2012–28492 Filed 11–23–12; 8:45 am] a. In paragraph (d)(2), after the words of the tests described in the IMO ‘‘tests described in IMO Revised BILLING CODE 9110–04–P Revised recommendation on testing, recommendation on testing,’’ add the part 2, section 5.3 (incorporated by words ‘‘as amended by Resolution reference, see § 160.135–5 of this MSC.321(89),’’ and after the words FEDERAL COMMUNICATIONS subpart). ‘‘with these paragraphs of IMO Revised COMMISSION recommendation on testing,’’ add the § 160.156–5 [Amended] 47 CFR Parts 1 and 63 words ‘‘as amended by Resolution 13. In § 160.156–5, amend paragraph MSC.321(89),’’; (d)(4) by removing the word ‘‘and’’ and [IB Docket No. 12–299; FCC 12–125] b. Remove paragraph (d)(2)(iii); and adding, in its place, the punctuation ‘‘,’’, c. Redesignate paragraphs (d)(2)(iv), and, after the numbers ‘‘160.156–13’’, Reform of Rules and Policies on (d)(2)(v), and (d)(2)(vi) as paragraphs adding the words ‘‘, and 160.156–15’’. Foreign Carrier Entry Into the U.S. (d)(2)(iii), (d)(2)(iv), and (d)(2)(v), Telecommunications Market respectively. § 160.156–7 [Amended] AGENCY: Federal Communications 14. In § 160.156–7, amend paragraph § 160.133–15 [Amended] Commission. (b)(13) by removing the word ‘‘lifeboat’’ 9. In § 160.133–15, amend paragraph and adding, in its place, the words ACTION: Proposed rule. (e) by removing the words, ‘‘Each ‘‘rescue boat’’. approved release mechanism SUMMARY: In this document, the constructed with non-corrosion- § 160.156–9 [Amended] Commission is proposing to make changes to the criteria under which it resistant steel must be confirmed to 15. Amend § 160.156–9 as follows: considers applications and notifications have met the coating mass and bend a. In paragraph (b)(22)(iv), remove the from foreign carriers or affiliates of tests requirement specified under ASTM word ‘‘lifeboat’’ and add, in its place, foreign carriers for entry into the U.S. A 653 (incorporated by reference, see the words ‘‘rescue boat’’; and market for international § 160.133–5 of this subpart) after b. In paragraph (d)(2), remove the telecommunications services and galvanizing or other anti-corrosion word ‘‘lifeboat’’ and add, in its place, facilities under section 214 of treatment has been applied. This the words ‘‘rescue boat’’. Communications Act of 1934, as compliance can be ascertained through 16. Amend § 160.156–15 as follows: a supplier’s certification papers or a. In paragraph (e)(1), remove the amended (the ‘‘Act’’) and section 2 of through conducting actual tests.’’ words ‘‘In accordance with the interval the Cable Landing License Act. By this prescribed in paragraph (d)(1) of this document, the Commission seeks to Subpart 160.135 [Amended] section, each’’ and add, in their place, eliminate outdated or unnecessary rules, simplify rules that it may retain, reduce 10. Amend the title to Subpart the word ‘‘Each’’; and regulatory costs and burdens imposed 160.135 by removing the word b. Revise paragraph (e)(2) to read as on applicants, and improve ‘‘(SOLAS)’’. follows: transparency with respect to filing Subpart 160.135—Lifeboats § 160.156–15 Production inspections, requirements of the ECO Test. It also tests, quality control, and conformance of seeks to promote competition to achieve § 160.135–5 [Amended] rescue boats and fast rescue boats. greater decisional flexibility in 11. In § 160.135–5, amend paragraph * * * * * evaluating applications and (d)(4) by removing the word ‘‘and’’ and (e) * * * notifications, and continue to protect

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important interests related to national be purchased from the Commission’s section 214 of the Communications Act security, law enforcement, foreign duplicating contractor, Best Copy and of 1934, as amended, and section 2 of policy, and trade policy. Printing, Inc. (BCPI), located in Room the Cable Landing License Act. The DATES: Submit comments on or before CY–B402, 445 12th Street, SW., Commission seeks comment in the December 26, 2012, and replies on or Washington, DC 20554. Customers may NPRM on proposals to eliminate or, in before January 15, 2013. Written contact BCPI at its Web site, http:// the alternative, simplify the ECO Test comments on the Paperwork Reduction www.bcpiweb.com, or call 1–800–378– that applies to Commission review of (1) Act (PRA) proposed information 3160. international section 214 applications, (2) cable landing license applications, collection requirements must be Comment Filing Procedures submitted by the public, Office of and (3) notifications of foreign carrier Management and Budget (OMB) and Pursuant to §§ 1.415, 1.419, interested affiliations. The ECO Test is a set of other interested parties on or before parties may file comments and reply criteria designed to protect the U.S. January 25, 2013. comments on or before the dates telecommunications market from ADDRESSES: You may submit comments, indicated above. Comments may be filed potential anticompetitive activities by indentified by Docket No. 12–299, by using the Commission’s Electronic foreign carriers or their affiliates with any of the following methods: Comment Filing System (ECFS). See market power in their country. The • Federal eRulemaking Portal: Electronic Filing of Documents in Commission currently applies the ECO http://www.regulations.gov. Follow the Rulemaking Proceedings, 63 FR 24121 Test to applications filed by foreign (1998). carriers or their affiliates from countries instructions for submitting comments. • • Federal Communications Electronic Filers: Comments may be that are not members of the WTO. The Commission’s ECFS Web site: http:// filed electronically using the Internet by Commission also applies the ECO Test fjallfoss.fcc.gov/ecfs2/. Follow the accessing the ECFS Web site at http:// in the context of its rules requiring fjallfoss.fcc.gov/ecfs2/. authorized U.S. international carriers instructions for submitting comments. • • People with Disabilities: Contact the Paper Filers: Parties who choose to and cable landing licensees to notify the FCC to request reasonable file by paper must file an original and Commission of their foreign carrier accommodations (accessible format one copy of each filing. If more than one affiliations. documents, sign language interpreters, docket or rulemaking number appears in 2. In the 1995 Foreign Carrier Entry CART, etc.) by email to the caption of this proceeding, filers Order, the Commission concluded that [email protected], phone: 202–418–0530 must submit two additional copies for the public interest would be served by (voice), tty: 202–418–0432. each additional docket or rulemaking regulating the entry of foreign carriers or In addition to filing comments as number. Filings can be sent by hand or their affiliates into the U.S. market for described above, a copy of any messenger delivery, by commercial international telecommunications and comments on the PRA information overnight courier, or by first-class or facilities under section 214 of the collection requirements contained overnight U.S. Postal Service mail. All Communications Act. In that proceeding herein should be submitted to the FCC filings must be addressed to the the Commission adopted rules that via email to [email protected] and to Commission’s Secretary, Office of the examined, as one factor in its overall Nicholas A. Fraser, OMB, via email to Secretary, Federal Communications public interest analysis of an [email protected] or via Commission. application for international section 214 • fax at 202–395–5167. All hand-delivered or messenger- authority, whether ‘‘effective For detailed instructions on submitting delivered paper filings for the competitive opportunities’’ exist for comments and additional information Commission’s Secretary must be U.S. carriers in the destination markets on the rulemaking process, see the delivered to FCC Headquarters at 445 of foreign carriers seeking to enter the U.S. international services market SUPPLEMENTARY INFORMATION section of 12th St. SW., Room TW–A325, through affiliation with a new or this document. Washington, DC 20554. The filing hours are 8 a.m. to 7 p.m. All hand deliveries existing carrier. The Commission FOR FURTHER INFORMATION CONTACT: Jodi must be held together with rubber bands applied the ECO Test only to Cooper or James Ball, Policy Division, or fasteners. Any envelopes must be applications to provide service to International Bureau, FCC, (202) 418– disposed of before entering the building. foreign points where the affiliated 1460 or via email to • Commercial overnight mail (other foreign carrier had market power, and [email protected], than U.S. Postal Service Express Mail the Commission’s analysis did not [email protected]. On PRA matters, and Priority Mail) must be sent to 9300 distinguish between World Trade contact Cathy Williams, Office of the East Hampton Drive, Capitol Heights, Organization (WTO) countries and non- Managing Director, FCC, (202) 418–2918 MD 20743. WTO Member countries. Although the or via email to [email protected]. • U.S. Postal Service first-class, Foreign Carrier Entry Order did not SUPPLEMENTARY INFORMATION: This is a Express, and Priority mail must be discuss application of the ECO Test to summary of the Commission’s Notice of addressed to 445 12th Street SW., submarine cable applications, the Proposed Rulemaking in IB Docket No. Washington, DC 20554. Commission historically had applied an 12–299, FCC 12–125, adopted on analysis similar to the section 214 ECO Summary of Notice of Proposed October 10, 2012 and released on Test analysis on a case-by-case basis Rulemaking October 11, 2012. The full text of this under the Cable Landing License Act. document is available for inspection 1. The Notice of Proposed Rulemaking 3. The Commission, in its 1997 and copying during normal business (NPRM) proposes changes to the criteria Foreign Participation Order, replaced hours in the FCC Reference Center, 445 that the Federal Communications the section 214 ECO Test adopted in the 12th Street SW., Washington, DC 20554. Commission (FCC) considers in Foreign Carrier Entry Order, with an The document also is available for analyzing applications filed by foreign open entry standard for applicants from download over the Internet at http:// carriers or affiliates of foreign carriers WTO Member countries. The transition.fcc.gov/Dailylowbar;Releases/ for entry into the U.S. market for Commission adopted a rebuttable Daily_Business/2012/db1011/FCC–12– international telecommunications presumption by which it presumes that 125A1.pdf. The complete text also may services and facilities pursuant to foreign investment from WTO Member

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countries does not pose competitive requiring authorized international licensee must demonstrate in its concerns in the U.S. market. The section 214 carriers to notify the notification either that the foreign Commission, however, retained the ECO Commission of their foreign carrier carrier lacks market power in that Test with respect to foreign entrants affiliations. A U.S. authorized carrier country or that there are effective from non-WTO Member countries, that acquires or seeks to acquire an competitive opportunities for U.S.- finding that circumstances that existed affiliation with a foreign carrier that is licensed companies to land and operate when it adopted the Foreign Carrier authorized to operate in a non-WTO submarine cables in that country. If the Entry Order had not changed country that the U.S. carrier is licensee is unable to make either sufficiently with respect to countries authorized to serve under section 214 showing, then the Commission may that were not members of the WTO, i.e., must show, under the ECO Test impose conditions on the authorization that non-WTO countries were not requirements in § 63.18 of the or proceed to an authorization liberalized and presented legal and Commission’s rules, that its operations revocation hearing. practical barriers to entry. The on the route for which it proposes to 8. Re-examining the ECO Test: The Commission concluded that its goals of acquire an affiliation with the non-WTO Commission now believes it is time to increasing competition in the U.S. foreign carrier continues to serve the review the requirements of the ECO Test telecommunications service market and public interest. If the U.S. carrier cannot as it applies to section 214 authority opening foreign telecommunications make this showing, or demonstrate that applications, cable landing license service markets would continue to be the foreign carrier lacks market power in applications, and foreign carrier served by opening the U.S. market to the non-WTO Member country, then the affiliation notifications. There are now applicants from non-WTO countries Commission may impose conditions 156 countries that are Members of the where the applicants can demonstrate necessary to address any public interest WTO (in addition to the European that there are effective competitive harms or may proceed to an immediate Union), and 27 observer countries that opportunities for U.S. carriers in the revocation hearing. are in the process of joining, or acceding foreign country. The Commission did 6. ECO Test criteria for Submarine to, the WTO. While this leaves not presume, however, that an Cable Applications and Notifications: approximately one-quarter of all application from a carrier in either a The Commission’s ECO Test as it countries outside the WTO that have not WTO or non-WTO country poses no applies to applications for submarine opened up their markets pursuant to national security, law enforcement, cable landing licenses filed by foreign WTO accords, the non-WTO Member foreign policy or trade policy concerns, carriers or certain of their affiliates is countries represent a de minimis and accords deference to Executive not codified in the rules. The test is fraction, or approximately five percent Branch agencies in identifying and similar, but not identical, to the analysis of the world’s gross domestic product. interpreting issues of concern related to for international section 214 The detailed ECO Test requirements, as these matters. applications. The Commission initially adopted in the Foreign Carrier 4. ECO Test Criteria for Section 214 examines: (1) The legal, or de jure, Entry Order, were designed to be Applications and Notifications: The ability of U.S.-licensed companies to applied to countries that could support ECO Test that applies to international have ownership interests in submarine advanced regulatory regimes. Today, the section 214 authority applications filed cables landing in the foreign market, ECO Test applies only to non-WTO by foreign carriers or certain of their and (2) if no explicit legal restrictions Member countries, and these countries affiliates is codified in section 63.18(k) on ownership exist, the practical, or de are small countries that may not have of the Commission’s rules. For section facto, ability of U.S.-licensed companies the necessary resources to support a 214 applications, the Commission’s to have ownership interests in cable regulatory framework that meets the rules require that a foreign carrier facilities in the foreign market. The detailed ECO Test requirements. applicant from a non-WTO country Commission also considers other public 9. The Commission therefore proposes must demonstrate: (1) The legal ability interest factors consistent with its to re-examine current ECO Test of U.S. carriers to enter the foreign discretion under the Cable Landing requirements to either eliminate the market and provide facilities-based and/ License Act that may weigh in favor of ECO Test or modify ECO Test criteria it or resold international services, in or against grant of a license, including uses in review of section 214 particular international message any national security, law enforcement, applications, cable landing license telephone service (IMTS), (2) the foreign policy or trade policy concerns applications, and foreign carrier existence of reasonable and that may be raised by a particular affiliation notifications. If the ECO Test nondiscriminatory charges, terms and application. is maintained, the Commission proposes conditions for interconnection to a 7. In addition, the Commission to codify that test in its rules governing foreign carrier’s domestic facilities for applies the ECO Text in the context of submarine cable landing license termination and origination of its rules requiring U.S. authorized cable applications. However, whether the international services or the provision of landing licensees to notify the ECO Test is eliminated or modified, the the relevant resale service, (3) the Commission of their foreign carrier Commission proposes to continue to existence of competitive safeguards in affiliations. Under Commission rules, maintain its review of section 214 the foreign country to protect against U.S. cable landing licensees have a applications, cable landing license anticompetitive practices, (4) the continuing obligation to notify the applications, and foreign carrier existence of an effective regulatory Commission of an affiliation with a affiliation notifications under its framework in the foreign country to foreign carrier authorized to operate in dominant carrier safeguards and ‘‘no develop, implement and enforce legal a destination market where the U.S.- special concessions’’ rules. These rules, requirements, interconnection licensed cable lands. In certain according to the Commission in arrangements and other safeguards, and circumstances, cable landing licensees previous rulings, help to prevent certain (5) any other factors the applicant have an obligation to obtain prior anticompetitive strategies that foreign deems relevant to the ECO Test approval before acquiring an affiliation carriers can use to discriminate among demonstration. with a foreign carrier authorized to their U.S. carrier correspondents, such 5. The Commission also applies the operate in a market where the U.S.- as refusal to interconnect and circuit ECO Test in the context of its rules licensed cable lands. That is, the U.S. blocking. Absent these rules, foreign

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carriers with market power could use needed, which may be similar to the determine whether there are practical, their market power to discriminate in type of information required by the or de facto, effective competitive favor of certain U.S. carriers, including current ECO Test. If the Commission opportunities for U.S. carriers to enter their own affiliates. Furthermore, finds that U.S. carriers are experiencing the foreign destination market. applications for section 214 authority competitive problems in that market, Specifically, the Commission proposes and cable landing licenses, and foreign then it would have the flexibility to seek to eliminate (1) the requirement that affiliation notifications, that involve additional information from the applicants show that there is an foreign carrier entry or investment will applicant relating to U.S. carrier ability effective regulatory framework in the continue to be coordinated with the to enter the foreign market of the foreign country to develop, implement, appropriate Executive Branch agencies, applicant and impose, if necessary, and enforce legal requirements, and the Commission will accord appropriate conditions on the interconnection arrangements and other deference to their views in matters authorization or license. safeguards, and (2) the requirement that related to national security, law 11. The Commission requests applicants must show whether enforcement, foreign policy, or trade comment on eliminating an ECO Test competitive safeguards exist in the policy that may be raised by a particular determination from our rules and foreign country to protect against transaction. policies applicable to U.S.-licensed anticompetitive practices, with the 10. Proposals to Eliminate the ECO companies and applicants under section exception of retaining a competitive Test: The Commission seeks comment 214 of the Communications Act and safeguard that requires timely and under the Cable Landing License Act. on elimination of the ECO Test for nondiscriminatory disclosure of Specifically, commenters should section 214 authorizations, cable technical information needed to address whether the Commission’s landing licenses and foreign carrier interconnect with carriers’ facilities. dominant carrier safeguards and the ‘‘no affiliation notifications. If the ECO Test Therefore, the Commission would special concessions’’ rules provide is eliminated, the Commission would continue to require applicants to show adequate protection against anti- maintain the distinction in its rules that there are reasonable and competitive harm, or whether additional between carriers or affiliates from WTO nondiscriminatory charges, terms, and safeguards are necessary to protect U.S. and non-WTO Member countries. Non- conditions for interconnection to a carriers from competitive harm in their WTO applicants for section 214 foreign carrier’s domestic facilities for provision of U.S. international services termination and origination of authorizations would no longer be and facilities on routes between the required to demonstrate compliance international services. The Commission United States and non-WTO countries. seeks comment on whether there is a with the ECO Test. Instead, the 12. In proposing elimination of the Commission would rely on its authority practical basis for retaining these ECO Test, the Commission seeks requirements based on carriers’ to analyze potential anticompetitive comment on to what extent eliminating experiences interconnecting to a foreign harm on a case-by-case basis to make a the ECO Test would reduce costs carrier’s domestic facilities for public interest determination as to incurred by carriers by the review of termination and origination of whether U.S. carriers are experiencing applications involving an ECO Test international services. Further, the competitive problems in that market, determination, and whether there may Commission also seeks comment on and whether the public interest would be benefits in retaining the ECO Test whether there is a policy basis for be served by authorizing the foreign criteria that outweigh the costs and retaining current ECO Test criteria that carrier to enter the U.S. market. The burdens associated with it. case-by-case analysis would require 13. Alternative Proposal to Modify the apply to remaining non-WTO markets, applicants to submit the information to Section 214 ECO Test: If the and whether fewer criteria or additional us required by our rules applicable to Commission maintains the ECO Test, it criteria are required for either type of section 214 applications and cable seeks comment on ways to simplify and authorization. landing license applications. The improve its application. First, under a 15. Codification of the Submarine applications would not be eligible for modified approach, the Commission Cable ECO Test: The ECO Test for streamlined processing, and the foreign proposes retaining—either in a rule or submarine cable landing licenses is not carrier affiliation notifications would by application on a case-by-case basis codified in the Commission’s rules. continue to be subject to a 45-day under our broad authority—the first Whether or not the ECO Test is notification prior to consummation of prong of the section 214 ECO Test that eliminated or modified, the Commission the transaction. Existing section 214 requires the Commission to determine proposes to amend the cable licensing carriers and cable landing licensees whether U.S. carriers have the legal, or rules to include certifications would still have to provide information de jure, ability to enter the foreign concerning foreign carrier affiliations in showing that it is, or is seeking to destination market and provide a manner similar to section 214 become affiliated with, a foreign carrier international facilities-based services authorization rules. If the Commission with market power in a non-WTO and/or resold services. The Commission retains the ECO Test, then the country. The Commission could consult requests commenters to identify and Commission proposes to codify in the with the United States Trade comment on known legal barriers to cable landing license rules an ECO Test Representative (USTR) and other entry in markets of non-WTO Member that contains criteria similar to the agencies as to any anticompetitive countries that may continue to exist, section 214 ECO Test criteria proposed problems that may exist for U.S. and more specifically of how laws, in the alternative rules. Under this companies in the country of the regulations, policies, and practices approach, the Commission seeks applicant. U.S. carriers would also have known to commenters prevent U.S. comment on proposed rules that would an opportunity to file comments as to carriers from competing in a particular require applicants from non-WTO whether they have experienced foreign market should this legal countries to demonstrate that U.S. problems in entering the relevant requirement be removed. carriers have both the legal, or de jure, market of a non-WTO country. The 14. In modifying the ECO Test, the and practical, or de facto, ability to own Commission would have the flexibility Commission also proposes to eliminate and operate submarine cables in a to request additional information, if certain criteria that it considers to country where a cable lands. To

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demonstrate de facto ability, the Herman, Federal Communications the Chief Counsel for Advocacy of the applicant would have to show that U.S. Commission, Room 1–C804, 445 12th Small Business Administration (SBA). carriers would have the ability to Street, SW., Washington, DC 20554, or Ordering Clauses collocate facilities, provide or obtain via email to [email protected] backhaul capacity, access technical and to Kim A. Johnson, OMB Desk 22. It is ordered that, pursuant to network information, and interconnect Officer, Room 10236 NEOB, 725 17th sections 1, 2, 4(i) and (j), 201–205, 208, to the public switched telephone Street NW., Washington, DC 20503 or 211, 214, 303(r), and 403 of the network. These proposed rules would via email to [email protected]. Communications Act of 1934, as also apply to notifications filed by a gov. amended, 47 U.S.C. 151, 152, 154(i)–(j), cable landing licensee that becomes, or 201–205, 208, 211, 214, 303(r), and 403, seeks to become, affiliated with, a Initial Regulatory Flexibility Analysis and the Cable Landing License Act, 47 foreign carrier possessing market power 19. Pursuant to the Regulatory U.S.C. 34–39 and Executive Order No. in a non-WTO Member country where Flexibility Act (RFA), the Commission 10530, section 5(a), reprinted as the cable lands. The Commission seeks certifies that that an Initial Regulatory amended in 3 U.S.C. 301, this Notice of comment on these proposals. Flexibility Analysis (IRFA) of the Proposed Rulemaking is adopted. 16. The Commission also requests possible significant economic impact on 23. It is further ordered that the comment on the benefits and costs of small entities by the proposals Commission’s Consumer and the current ECO Test with respect to considered in this NPRM is not Governmental Affairs Bureau, Reference cable landing license applications and warranted, and that a regulatory Information Center, shall send a copy of notifications. Specifically, is there an flexibility certification is appropriate for this Notice of Proposed Rulemaking, incentive for non-WTO countries to the reasons stated below. including the Initial Regulatory Flexibility Certification, to the Chief open their markets to U.S. carriers 20. First, the ECO Test rules that the Counsel for Advocacy of Small Business under the current test, or are there any Commission proposes to either Administration. other benefits to U.S. carriers in eliminate or modify in this NPRM affect modification of the ECO Test? only applications filed by foreign List of Subjects Conversely, what are the costs an carriers or their affiliates that hold 47 CFR Part 1 applicant incurs in providing market power in a country that is not a information under the current ECO member of the WTO. Based on statistics Administrative practice and Test? The Commission encourages available, there are currently 156 WTO procedure, Cable landing licenses. commenters to discuss all aspects of this Member countries (in addition to the proposal as well as practical problems 47 CFR Part 63 European Union), and we calculate, cable landing license applicants face in based on 2010 World Bank gross Communications common carriers. complying with the current ECO Test domestic product (GDP) data, that the Federal Communications Commission. requirements. remaining non-WTO Member countries Bulah P. Wheeler, Paperwork Reduction Act of 1995 represent approximately five percent of Associate Secretary. Analyses the world’s GDP. The ECO Test For the reasons discussed in the 17. This document contains proposed requirements are detailed and were preamble, the Federal Communications new and modified information designed to be applied to countries that Commission proposes to amend 47 CFR collection requirements. The could support advanced regulatory parts 1 and 63, and propose alternative Commission, as a part of its continuing regimes. Most of the non-WTO Member rules to those parts as follows: effort to reduce paperwork burdens, countries are countries that may not invites the general public and the Office have the necessary resources to support PART 1—PRACTICE AND of Management and Budget (OMB) to a regulatory framework that meets the PROCEDURE comment on the information collection ECO Test requirements. In this NPRM 1. The authority citation for part 1 requirements contained in this the Commission is proposing either to continues to read as follows: document, as required by the Paperwork completely eliminate or modify the current ECO Test criteria that will result Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. Reduction Act of 1995 (PRA), Public 151, 154(i), 154(j), 155, 157, 225, 227, 303(r), Law 104–13. In addition, pursuant to in lessening the economic impact on and 309. the Small Business Paperwork Relief applicants from non-WTO Member 2. Section 1.767 is amended by Act of 2002, Public Law 107–198, see 44 countries requesting an ECO Test revising paragraph (a)(8), adding note to U.S.C. 3506(c)(4), the Commission seeks determination. (a)(8)(iv), and revising note to section to specific comment on how it might 21. The Commission believes that the read as follows: ‘‘further reduce the information proposal and other options on which it collection burden for small business seeks comment in this NPRM will § 1.767 Cable Landing Licenses. concerns with fewer than 25 reduce costs and burdens currently (a) * * * employees.’’ imposed on applicants, carriers, and (8) For each applicant: 18. Written comments by the public licensees, including those that are small (i) The place of organization and the on the proposed and/or modified entities, and accelerate the authorization information and certifications required information collections are due and licensing process, while continuing in § 63.18(h) and (o) of this chapter; December 26, 2012. Written comments to ensure that the Commission has the (ii) A certification as to whether the must be submitted by the public, Office information it needs to carry out its applicant is, or is affiliated with, a of Management and Budget (OMB), and statutory duties. Therefore, the foreign carrier, including an entity that other interested parties on or before Commission certifies that the proposals owns or controls a cable landing station, January 25, 2013. In addition to filing in this NPRM, if adopted, will not have in any foreign country. The certification comments with the Secretary, Marlene a significant impact on a substantial shall state with specificity each such H. Dortch, a copy of any comments on number of small entities. The country; the information collection(s) contained Commission will send a copy of the (iii) A certification as to whether or herein should be submitted to Judith B. NPRM, including the certification, to not the applicant seeks to land and

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operate a submarine cable connecting serve the public interest for it to retain whether the foreign carrier lacks market the United States to any country for its interest in the cable landing license power in the non-WTO Member country which any of the following is true. The for that segment of the cable that lands with reference to the criteria in certification shall state with specificity in the non-WTO destination market. § 63.10(a) of this chapter. If the U.S. the foreign carriers and each country: Such a showing shall include a authorized carrier is unable to make the (A) The applicant is a foreign carrier demonstration as to whether the foreign required showing in § 63.10(a), the U.S. in that country; or carrier lacks market power in the non- authorized carrier shall agree to comply (B) The applicant controls a foreign WTO destination market with reference with the dominant carrier safeguards carrier in that country; or to the criteria in § 63.10(a) of this contained in section 63.10(c), effective (C) Any entity that owns more than 25 chapter. If the licensee is unable to upon the acquisition of the affiliation. If percent of the applicant, or that controls make the required showing or is notified the U.S. authorized carrier is notified by the applicant, controls a foreign carrier by the Commission that the affiliation the Commission that the affiliation may in that country. may otherwise harm the public interest otherwise harm the public interest (D) Two or more foreign carriers (or pursuant to the Commission’s policies pursuant to the Commission’s policies parties that control foreign carriers) and rules under 47 U.S.C. 34 through 39 and rules, then the Commission may own, in the aggregate, more than 25 and Executive Order No. 10530, dated impose conditions necessary to address percent of the applicant and are parties May 10, 1954, then the Commission any public interest harms or may to, or the beneficiaries of, a contractual may impose conditions necessary to proceed to an immediate authorization relation (e.g., a joint venture or market address any public interest harms or revocation hearing. alliance) affecting the provision or may proceed to an immediate marketing of arrangements for the terms authorization revocation hearing. Note to Paragraph (g)(2): Under § 63.10(a), of acquisition, sale, lease, transfer and the Commission presumes, subject to Note to Paragraph (g)(2): Under § 63.10(a), rebuttal, that a foreign carrier lacks market use of capacity on the cable in the the Commission presumes, subject to power in a particular foreign country if the United States; and rebuttal, that a foreign carrier lacks market (iv) For any country that the applicant power in a particular foreign country if the applicant demonstrates that the foreign has listed in response to paragraph applicant demonstrates that the foreign carrier lacks 50 percent market share in (a)(8)(iii) of this section that is not a carrier lacks 50 percent market share in international transport facilities or services, member of the World Trade international transport facilities or services, including cable landing station access and Organization, a demonstration as to including cable landing station access and backhaul facilities, intercity facilities or whether the foreign carrier lacks market backhaul facilities, intercity facilities or services, and local access facilities or services services, and local access facilities or services on the foreign end of a particular route. power with reference to the criteria in on the foreign end of a particular route. § 63.10(a) of this chapter. * * * * * Note to Paragraph (a)(8)(iv): Under * * * * * § 63.10(a), the Commission presumes, subject 6. Section 63.18 is amended by to rebuttal, that a foreign carrier lacks market PART 63—EXTENSION OF LINES, NEW revising paragraph (k), removing power in a particular foreign country if the LINES, AND DISCONTINUANCE, paragraph (p), redesignating paragraph applicant demonstrates that the foreign REDUCTION, OUTAGE AND (q) as (p), and adding new paragraph (q) carrier lacks 50 percent market share in IMPAIRMENT OF SERVICE BY to read as follows: international transport facilities or services, COMMON CARRIERS; AND GRANTS including cable landing station access and OF RECOGNIZED PRIVATE § 63.18 Contents of applications for backhaul facilities, intercity facilities or OPERATING AGENCY STATUS international common carriers. services, and local access facilities or services * * * * * on the foreign end of a particular route. 4. The authority citation for part 63 continues to read as follows: (k) For any country that the applicant * * * * * has listed in response to paragraph (j) of Authority: Sections 1, 4(i), 4(j), 10, 11, Note to § 1.767: The terms ‘‘affiliated’’ and 201–205, 214, 218, 403 and 651 of the this section that is not a member of the ‘‘foreign carrier,’’ as used in this section, are Communications Act of 1934, as amended, World Trade Organization, the applicant defined as in § 63.09 of this chapter except 47 U.S.C. 151, 154(i), 154(j), 160, 201–205, shall make a demonstration as to that the term ‘‘foreign carrier’’ also shall 214, 218, 403, and 571, unless otherwise whether the foreign carrier has market include any entity that owns or controls a noted. power, or lacks market power, with cable landing station in a foreign market. The term ‘‘country’’ as used in this section refers 5. Section 63.11 is amended by reference to the criteria in § 63.10(a) of to the foreign points identified in the U.S. revising paragraph (g)(2) to read as this chapter. Department of State list of Independent follows: Note to Paragraph (k): Under § 63.10(a), States of the World and its list of the Commission presumes, subject to Dependencies and Areas of Special § 63.11 Notification by and prior approval rebuttal, that a foreign carrier lacks market Sovereignty. See http://www.state.gov. for U.S. international carriers that are or propose to become affiliated with a foreign power in a particular foreign country if the 3. Section 1.768 is amended by carrier. applicant demonstrates that the foreign revising paragraph (g)(2) to read as * * * * * carrier lacks 50 percent market share in follows: (g) * * * international transport facilities or services, including cable landing station access and § 1.768 Notification by and prior approval (2) In the case of a prior notification for submarine cable landing licensees that filed pursuant to paragraph (a) of this backhaul facilities, intercity facilities or are or propose to become affiliated with a section, the U.S. authorized carrier must services, and local access facilities or services foreign carrier. demonstrate that it continues to serve on the foreign end of a particular route. * * * * * the public interest for it to operate on * * * * * (g) * * * the route for which it proposes to (2) In the case of a prior notification acquire an affiliation with the foreign (q) Any other information that may be filed pursuant to paragraph (a) of this carrier authorized to operate in the non- necessary to enable the Commission to section, the authorized U.S. licensee WTO Member country. Such a showing act on the application. must demonstrate that it continues to shall include a demonstration as to * * * * *

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Alternative Proposed Rules demonstration should address the required showing or is notified by the following factors: Commission that the affiliation may PART 1—PRACTICE AND (1) Whether U.S. cable landing otherwise harm the public interest PROCEDURE licensees have the legal ability to enter pursuant to the Commission’s policies 1. The authority citation for part 1 the market of the named country and and rules under 47 U.S.C. 34 through 39 continues to read as follows: have ownership interests in submarine and Executive Order No. 10530, dated cables that land in that country; May 10, 1954, then the Commission Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. (2) Whether there exist reasonable and may impose conditions necessary to 151, 154(i), 154(j), 155, 157, 225, 227, 303(r), nondiscriminatory charges, terms and address any public interest harms or and 309. conditions to interconnect a cable in the may proceed to an immediate 2. Section 1.767 is amended by named country, the ability to collocate authorization revocation hearing. revising paragraph (a)(8) and note to facilities, provide or obtain backhaul Note to Paragraph (g)(2): Under § 63.10(a), section to read as follows: capacity, and access to timely disclosed the Commission presumes, subject to technical network information for the rebuttal, that a foreign carrier lacks market § 1.767 Cable Landing Licenses. purpose of providing services in the power in a particular foreign country if the (a) * * * market of that country; and applicant demonstrates that the foreign (8) For each applicant: (3) Any other factors the applicant carrier lacks 50 percent market share in (i) The place of organization and the deems relevant to its demonstration. international transport facilities or services, information and certifications required including cable landing station access and Note to Paragraph (a)(8)(iv): Under backhaul facilities, intercity facilities or in § 63.18(h) and (o) of this chapter; § 63.10(a), the Commission presumes, subject (ii) A certification as to whether the services, and local access facilities or services to rebuttal, that a foreign carrier lacks market on the foreign end of a particular route. applicant is, or is affiliated with, a power in a particular foreign country if the foreign carrier, including an entity that applicant demonstrates that the foreign * * * * * owns or controls a cable landing station, carrier lacks 50 percent market share in in any foreign country. The certification international transport facilities or services, PART 63—EXTENSION OF LINES, NEW shall state with specificity each such including cable landing station access and LINES, AND DISCONTINUANCE, country; backhaul facilities, intercity facilities or REDUCTION, OUTAGE AND (iii) A certification as to whether or services, and local access facilities or services IMPAIRMENT OF SERVICE BY on the foreign end of a particular route. not the applicant seeks to land and COMMON CARRIERS; AND GRANTS operate a submarine cable connecting * * * * * OF RECOGNIZED PRIVATE OPERATING AGENCY STATUS the United States to any country for Note to § 1.767: The terms ‘‘affiliated’’ and which any of the following is true. The ‘‘foreign carrier,’’ as used in this section, are 4. The authority citation for part 63 certification shall state with specificity defined as in § 63.09 of this chapter except continues to read as follows: the foreign carriers and each country: that the term ‘‘foreign carrier’’ also shall (A) The applicant is a foreign carrier include any entity that owns or controls a Authority: Sections 1, 4(i), 4(j), 10, 11, cable landing station in a foreign market. The 201–205, 214, 218, 403 and 651 of the in that country; or Communications Act of 1934, as amended, (B) The applicant controls a foreign term ‘‘country’’ as used in this section refers to the foreign points identified in the U.S. 47 U.S.C. 151, 154(i), 154(j), 160, 201–205, carrier in that country; or 214, 218, 403, and 571, unless otherwise (C) Any entity that owns more than 25 Department of State list of Independent States of the World and its list of noted. percent of the applicant, or that controls Dependencies and Areas of Special 5. Section 63.18 is amended by the applicant, controls a foreign carrier Sovereignty. See http://www.state.gov. revising paragraph (k)(3) introductory in that country. 3. Section 1.768 is amended by text, paragraphs (k)(3)(ii) and (iii), (D) Two or more foreign carriers (or removing paragraphs (k)(3)(iv) and (v), parties that control foreign carriers) revising paragraph (g)(2) to read as follows: and redesignating paragraph (k)(3)(vi) as own, in the aggregate, more than 25 (iv) to read as follows: percent of the applicant and are parties § 1.768 Notification by and prior approval to, or the beneficiaries of, a contractual for submarine cable landing licensees that § 63.18 Contents of applications for relation (e.g., a joint venture or market are or propose to become affiliated with a international common carriers. alliance) affecting the provision or foreign carrier. * * * * * marketing of arrangements for the terms * * * * * (k) * * * of acquisition, sale, lease, transfer and (g) * * * (3) The named foreign country use of capacity on the cable in the (2) In the case of a prior notification provides effective competitive United States; and filed pursuant to paragraph (a) of this opportunities to U.S. carriers to compete (iv) For any country named in section, the U.S. authorized licensee in that country’s market for the service response to paragraph (a)(8)(iii) of this must demonstrate that it continues to that the applicant seeks to provide section, the applicant shall make one of serve the public interest for it to retain (facilities-based, resold switched, or the following showings: its interest in the cable landing license resold private line services). An (A) The named country is a Member for that segment of the cable that lands effective competitive opportunities of the World Trade Organization; or in the non-WTO Member country by demonstration should address the (B) The foreign carrier lacks market demonstrating either that the foreign following factors: power in the named country, with carrier lacks market power in that * * * * * reference to the criteria in § 63.10(a) of country, with reference to the criteria in (ii) If the applicant seeks to provide this chapter; or § 63.10(a) of this chapter, or that the resold services, the legal ability of U.S. (C) The named country provides country offers effective competitive carriers to enter the foreign market and effective competitive opportunities to opportunities to U.S. cable landing provide resold international switched U.S. cable landing licensees to have licensees to land and operate submarine services (for switched resale ownership interests in submarine cables cables in that country by making the applications) or resold private line that land in that country. An effective required showing in § 1.767(a)(8)(iv)(C). services (for private line resale competitive opportunities If the licensee is unable to make either applications);

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(iii) Whether there exist reasonable information on the rulemaking process, Background and nondiscriminatory charges, terms see the SUPPLEMENTARY INFORMATION 2. In the Hearing Aid Compatibility and conditions, including timely section of this document. Policy Statement and Second Report disclosed technical information, for FOR FUTHER INFORMATION CONTACT: and Order released on August 5, 2010, interconnection to a foreign carrier’s Jennifer Flynn, Spectrum & Competition 75 FR 54508, Sept. 8, 2010, the domestic facilities for termination and Policy Division, Wireless Commission reiterated its intention, first origination of international services or Telecommunications Bureau, (202) 418– stated in 2008, to initiate a review of the the provision of the relevant resale 0612 or by email [email protected]. hearing aid compatibility rules for service; and SUPPLEMENTARY INFORMATION: This is a digital wireless services and handsets in (iv) Any other factors the applicant summary of the Commission’s Public 2010. Shortly thereafter, on October 8, deems relevant to its demonstration. Notice in WT Docket No. 10–254, DA 2010, the Twenty-first Century * * * * * 12–1745, released November 1, 2012. Communications and Video [FR Doc. 2012–28224 Filed 11–23–12; 8:45 am] The full text of the Public Notice is Accessibility Act of 2010 (CVAA, Pub. BILLING CODE 6712–01–P available for public inspection and L. 111–260) became law, ensuring that copying during business hours in the individuals with disabilities have access FCC Reference Information Center, to emerging Internet Protocol-based FEDERAL COMMUNICATIONS Portals II, 445 12th Street SW., Room communications and video COMMISSION CY–A257, Washington, DC 20554. programming technologies in the 21st 47 CFR Part 20 Copies may be purchased from the Century. Among other provisions, the Commission’s duplicating contractor, CVAA extended hearing aid [WT Docket No. 10–254: DA 12–1745] Best Copy and Printing, Inc. (BCPI), 445 compatibility requirements to customer 12th Street SW., Room CY–B402, premises equipment ‘‘used with Updated Information and Comment Washington, DC 20554, 202–488–5300 advanced communications services that Sought on Review of Hearing Aid or 800–378–3160 (voice), 202–488–5562 is designed to provide 2-way voice Compatibility Regulations (TTY), 202–488–5563 (fax), or you may communications via a built-in speaker AGENCY: Federal Communications contact BCPI at its Web site: http:// intended to be held to the ear in a Commission. www.BCPIWEB.com. When ordering manner functionally equivalent to a ACTION: Proposed rule. documents from BCPI, please provide telephone.’’ The CVAA preserved the the appropriate FCC document number, exemption of mobile handsets from the SUMMARY: In this document, the for example, DA 12–1745. The Updated requirement that all telephones be Wireless Telecommunications Bureau Information and Comment Sought on hearing aid-compatible, while (Bureau) seeks updated comment on the Review of Hearing Aid Compatibility maintaining the Commission’s authority operation and effectiveness of the Regulations Public Notice is available to revoke or limit such exemption. Commission’s rules relating to hearing on the Internet at the Commission’s Web 3. In December 2010, the Bureau aid compatibility of wireless handsets. site at http://www.fcc.gov/document/ released the 2010 Review PN, which The Bureau seeks updated comment on hearing-aid-compatibility-review- sought comment on numerous questions whether, in light of technological and additional-comments-sought and related relating to the operation of the current market developments, the Commission’s documents are also available by using hearing aid compatibility rules and their deployment benchmarks continue to the search function for WT Docket No. success in making a broad selection of ensure that hearing aid-compatible 10–254 on the Commission’s Electronic wireless phones accessible to people handsets are available to all consumers. Comment Filing System (ECFS) Web who use hearing aids and cochlear Additionally, the Bureau asks for page at http://apps.fcc.gov/ecfs/. To implants, as well as in making current information on whether the request information in accessible information about those phones rules have succeeded in making hearing formats (computer diskettes, large print, available to the public. In particular, the aid-compatible phones available to audio recording, and Braille), send an 2010 Review PN sought comment on consumers with a full range of different email to [email protected] or call the several substantive issues. feature sets, and whether the rules FCC’s Consumer and Governmental 4. First, the Bureau sought comment appropriately account for the challenges Affairs Bureau at 202–418–0530 (voice) on the availability of hearing aid- facing smaller service providers. or 202–418–0432 (TTY). compatible handsets. Specifically, the DATES: Bureau requested comment on whether Comments due on or before Summary December 26, 2012. the Commission’s deployment ADDRESSES: You may submit comments, 1. By the Public Notice, the Wireless benchmarks appropriately ensure that identified by WT Docket No. 10–254, by Telecommunications Bureau (Bureau) hearing aid-compatible handsets are any of the following methods: seeks updated comment on the available to all consumers. The Bureau D Federal Communications operation and effectiveness of the also asked whether the rules have Commission’s Web Site: http:// Commission’s rules relating to hearing succeeded in making hearing aid- fjallfoss.fcc.gov/ecfs2/. Follow the aid compatibility of wireless handsets, compatible phones available to instructions for submitting comments. found at 47 CFR 20.19. In December consumers with a full range of different D Mail. 2010, the Bureau issued a public notice feature sets, and whether the rules D People with Disabilities: Contact the to initiate a comprehensive review of appropriately account for the challenges FCC to request reasonable the wireless hearing aid compatibility facing smaller service providers. In accommodations (accessible format regulations (2010 Review PN), 76 FR addition, the Bureau requested documents, sign language interpreters, 2625, January 14, 2011. Due to comment on whether the M3 and T3 CART, etc.) by email: [email protected] intervening market, technical, and technical standards contained in or phone: 202–418–0530 or TTY: 202– regulatory developments since the 2010 American National Standards Institute 418–0432. Review PN, the Bureau seeks updated Technical Standard C63.19 (ANSI For detailed instructions for and additional comment on these Standard C63.19), which is incorporated submitting comments and additional matters. in the Commission’s rules,

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appropriately ensure that users of measuring the radio frequency (RF) devices in new sizes and form factors, hearing aids and cochlear implants will interference level of wireless devices to is it sufficiently clear whether a device be able to access wireless hearing aids, thereby enabling testing is ‘‘typically held to the ear in any of its communications. procedures to be applied to operations ordinary uses’’ and therefore covered 5. The Bureau also sought comment over any RF air interface or protocol. under the hearing aid compatibility on whether sufficient information about The 2011 ANSI Standard also exempts rules? The Bureau encourages hearing aid-compatible phones is being from testing certain low power commenters to address these and any made available to the Commission and transmitters that are unlikely to cause other effects of technological and market the public. In particular, the Bureau unacceptable RF interference to hearing developments. asked whether the Commission’s aids. Under the recently adopted rules, 10. The Bureau also seeks comment reporting system is collecting beginning August 16, 2013, newly on the impact of the newly adopted appropriate information in an efficient introduced multi-band and multi-mode 2011 revision of ANSI Standard C63.19. way, and whether that information is handset models that include operations In particular, because the direct being made available to the public in an not covered under ANSI Standard measurement methodology made it accessible manner. The Bureau further C63.19–2007 must be tested under ANSI possible to eliminate certain sought comment on whether Standard C63.19–2011 in order to be conservative assumptions, it is manufacturers’ and service providers’ considered hearing aid-compatible. The approximately 2.2 dB easier under the Web sites are providing useful and Commission’s deployment benchmarks new standard for a GSM phone to accessible information, whether point- will become applicable to operations receive an M3 rating. In light of this of-sale and packaging disclosures are over frequency bands and air interfaces development, is it still necessary and appropriately informing consumers, and that are newly covered under the 2011 appropriate to allow phones operating whether the in-store testing requirement revision of the standard on August 16, over GSM at 1900 MHz to achieve an is effective. The Bureau also asked what 2014, for manufacturers and nationwide M3 rating by means of a user-controlled actions the Commission might take to carriers and on November 16, 2014, for power reduction? Do the new standard provide better information to consumers other service providers. or the rules implementing that standard with hearing loss who obtain handsets affect any other issues addressed in the from sources other than service Request for Comments 2010 Review PN? The Bureau also notes providers. 9. During the period since the record that the Telecommunications Industry 6. The Bureau also sought comment closed on the 2010 Review PN, Association (TIA) has released new and on technical issues. Specifically, the technologies and markets for both revised standards relating to volume Bureau asked whether additional wireless handsets and hearing control and amplification for wireline measures are needed to facilitate assistance devices have continued to phones, including digital cordless acoustic coupling compatibility. The evolve. For example, manufacturers phones, which include revised Bureau asked about the effects on have introduced many new handset measurement procedures as well as a hearing aid compatibility of display models, including models that both do new metric based on conversational screens, wireless headsets, and and do not meet hearing aid gain. Although ASC C63® has not simultaneous transmission capabilities compatibility technical standards, as addressed these procedures and metrics in handsets. The Bureau also asked evidenced by the most recent annual in the context of mobile phones, the what actions the Commission might take reports filed by manufacturers on July Consumer and Governmental Affairs to facilitate better interoperability of 15, 2012. Many of these handsets offer Bureau has recognized their value in hearing aids and cochlear implants with 3G and 4G broadband capability as well promoting accessibility to wireline handsets. as other advanced and innovative services for people with hearing loss, 7. In addition, the Bureau sought features. At the same time, increasing and the Bureau invites comment on comment about the state of innovation numbers of hearing aids are equipped their potential relevance and benefits in in solutions to enable people with with telecoils. The Bureau seeks the mobile context. hearing loss to access wireless comment on how this and other 11. The Bureau encourages technology and whether the developments affect any of the matters commenters, to the extent feasible, to Commission’s rules appropriately addressed in the 2010 Review PN. For include specific, quantifiable facilitate such innovation, investment, example, do the Commission’s rules information regarding the costs and and competition. Finally, the Bureau continue to ensure that a full range of benefits of the Commission’s hearing aid asked what the Commission should do hearing aid-compatible handsets is compatibility reporting and enforcement to promote collaboration among available to all consumers? Have regime. Under the Hearing Aid consumers with hearing loss, the developments in the marketplace posed Compatibility Act, the Commission is communications industry, and the new challenges, or relieved pre-existing required to revoke or limit the hearing aid industry. challenges, to smaller providers? Are exemption of phones used with public 8. On April 9, 2012, the Bureau and consumers adequately informed about mobile services from hearing aid the Office of Engineering and the capabilities of the new handsets and compatibility requirements if (i) Such Technology released the Hearing Aid their functionality with hearing aids and revocation or limitation is in the public Compatibility Third Report and Order, cochlear implants? In particular, are interest; (ii) continuation of the 77 FR 41919, July 17, 2012, which consumers informed about the exemption without such revocation or adopted the 2011 revision of ANSI functioning of handsets that have a limitation would have an adverse effect Standard C63.19 as an applicable separate menu-driven mode for on hearing-impaired individuals; (iii) technical standard for evaluating the operation with telecoils, and that compliance with hearing aid hearing aid compatibility of wireless activating this mode may affect the compatibility requirements is phones. The 2011 ANSI Standard phone’s acoustic coupling performance? technologically feasible for the expands the range of frequencies over Do the existing technical standards telephones to which the exemption which hearing aid compatibility can be adequately and completely measure the applies; and (iv) compliance with tested to 698 MHz—6 GHz and it new handsets’ hearing aid hearing aid compatibility requirements establishes a direct method for compatibility? With the introduction of would not increase costs to such an

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extent that the telephones to which the Washington, DC 20002. The filing hours considered to the extent possible exemption applies could not be at this location are 8:00 a.m. to 7:00 p.m. without incurring additional expenses successfully marketed. However, the All hand deliveries must be held or delays. statute leaves the Commission together with rubber bands or fasteners. ADDRESSES: Comments: Comments substantial discretion to implement the Any envelopes must be disposed of related to Docket No. FRA–2011–0060 mechanisms that most cost-effectively before entering the building. may be submitted by any of the ensure compliance with these • Commercial overnight mail (other following methods: requirements. Accordingly, the Bureau than U.S. Postal Service Express Mail • Web site: The Federal eRulemaking invites further comment on the costs and Priority Mail) must be sent to 9300 Portal, www.regulations.gov. Follow the and benefits of these mechanisms, East Hampton Drive, Capitol Heights, Web site’s online instructions for particularly as applied to small entities. MD 20743. submitting comments. For example, what are the costs to small • U.S. Postal Service first-class mail, • Fax: 202–493–2251. entities of accurately and timely Express Mail, and Priority Mail should • Mail: Docket Management Facility, completing FCC Form 655 and of be addressed to 445 12th Street SW., U.S. Department of Transportation, 1200 responding to the Commission’s Washington, DC 20554. New Jersey Avenue SE., Room W12– enforcement inquiries? What are the One copy of each pleading must be 140, Washington, DC 20590. benefits to consumers of having the delivered electronically, by email or • Hand Delivery: Docket Management information in the hearing aid facsimile, or if delivered as paper copy, Facility, U.S. Department of compatibility reports available from the by hand or messenger delivery, by Transportation, 1200 New Jersey smallest service providers as well as the commercial overnight courier, or by Avenue SE., Room W12–140 on the major national and regional carriers? first-class or overnight U.S. Postal Ground level of the West Building, Are there alternative approaches that Service mail (according to the between 9 a.m. and 5 p.m., Monday would achieve substantially the same procedures set forth above for paper through Friday, except Federal holidays. benefits in a more cost-effective filings), to the Commission’s duplicating Instructions: All submissions must manner? contractor, Best Copy and Printing, Inc., include the agency name, docket name, 12. The Bureau also welcomes at [email protected] or (202) 488– and docket number or Regulatory comment on any other new or changed 5563 (facsimile). Identification Number (RIN) for this circumstances relevant to the operation Federal Communications Commission. rulemaking (2130–AC31). Note that all and effect of the hearing aid comments received will be posted Jane E. Jackson, compatibility rules. without change to http://www. Associate Chief, Wireless regulations.gov, including any personal Procedural Matters Telecommunications Bureau. information provided. Please see the 13. Pursuant to §§ 1.415 and 1.419 of [FR Doc. 2012–28494 Filed 11–23–12; 8:45 am] Privacy Act heading in the the Commission’s rules, 47 CFR 1.415, BILLING CODE 6712–01–P SUPPLEMENTARY INFORMATION section of 1.419, interested parties may file this document for Privacy Act comments and reply comments on or information related to any submitted before the dates indicated on the first DEPARTMENT OF TRANSPORTATION comments or materials. page of this document. Comments may Docket: For access to the docket to be filed using the Commission’s Federal Railroad Administration read background documents or Electronic Comment Filing System comments received, go to http://www. (ECFS). See Electronic Filing of 49 CFR Part 270 regulations.gov at any time or visit the Documents in Rulemaking Proceedings, Docket Management Facility, U.S. 63 FR 24121 (1998). [Docket No. FRA–2011–0060, Notice No. 2] • Department of Transportation, 1200 Electronic Filers: Comments may be 2130–AC31 New Jersey Avenue SE., Room W12–140 filed electronically using the Internet by on the Ground level of the West accessing the ECFS: http://fjallfoss.fcc. System Safety Program Building, between 9 a.m. and 5 p.m., gov/ecfs2/. Monday through Friday, except Federal • Paper Filers: Parties who choose to AGENCY: Federal Railroad holidays. file by paper must file an original and Administration (FRA), Department of four copies of each filing. If more than Transportation (DOT). FOR FURTHER INFORMATION CONTACT: one docket or rulemaking number ACTION: Reopening of comment period. Daniel Knote, Staff Director, Passenger appears in the caption of this Rail Division, U.S. Department of proceeding, filers must submit two SUMMARY: By notice of proposed Transportation, Federal Railroad additional copies for each additional rulemaking (NPRM) published on Administration, Office of Railroad docket or rulemaking number. September 7, 2012, FRA proposed Safety, Mail Stop 25, West Building 3rd Filings can be sent by hand or regulations to require commuter and Floor, 1200 New Jersey Avenue SE., messenger delivery, by commercial intercity passenger railroads to develop Washington, DC 20590 (telephone: 631– overnight courier, or by first-class or and implement a system safety program 965–1827), [email protected]; or overnight U.S. Postal Service mail (SSP) to improve the safety of their Matthew Navarrete, Trial Attorney, U.S. (although we continue to experience operations. The comment period for the Department of Transportation, Federal delays in receiving U.S. Postal Service NPRM closed November 6, 2012. This Railroad Administration, Office of Chief mail). All filings must be addressed to document reopens the comment period Counsel, Mail Stop 10, West Building the Commission’s Secretary, Office of until December 7, 2012. 3rd Floor, 1200 New Jersey Avenue SE., the Secretary, Federal Communications DATES: The comment period for the Washington, DC 20590 (telephone: 202– Commission. proposed rule published September 7, 493–0138), [email protected]. • All hand-delivered or messenger- 2012, at 77 FR 55372, is reopened. SUPPLEMENTARY INFORMATION: On delivered paper filings for the Written comments must be received by October 29 and 30, 2012, Hurricane Commission’s Secretary at 236 Friday, December 7, 2012. Comments Sandy struck the Northeast region of the Massachusetts Avenue NE., Suite 110, received after that date will be United States causing significant

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damage, flooding, and loss of power. review, we will issue a 12-month Previous Federal Actions Many passenger railroads in the finding on two petitions to delist For a detailed description of Federal Northeast region were affected by Preble’s. Because a status review also is actions concerning the Preble’s, please Hurricane Sandy and are still making required for the 5-year review of listed refer to the May 13, 1998, listing under efforts to resume normal service. Due to species under section 4(c)(2)(A) of the the Act (63 FR 26517); the July 10, 2008, these extraordinary circumstances, FRA Act, we are electing to prepare these final rule amending the listing is reopening the comment period and reviews simultaneously. At the determination for the Preble’s (73 FR extending the deadline for the NPRM so conclusion of these simultaneous 39790); and our August 5, 2011, that the railroads impacted by Hurricane reviews, we will issue the 12-month reinstatement of listing protections for finding on the petitions, as provided in Sandy have an adequate opportunity to the Preble’s (76 FR 47490). submit comments. The comment section 4(b)(3)(B) of the Act, and make On December 23, 2003, we received deadline is reopened and extended from the requisite determination under two nearly identical petitions, one from November 6, 2012 to December 7, 2012. section 4(c)(2)(B) of the Act based on the the State of Wyoming’s Office of the results of the 5-year review. Through Governor and the second from Privacy Act this notice, we encourage all interested Coloradans for Water Conservation and parties to provide us information Interested parties should be aware Development, seeking to remove the regarding the Preble’s. We also that anyone is able to search the Preble’s from the Federal List of announce the availability of new electronic form of all comments Endangered and Threatened Wildlife information relevant to our received into any agency docket by the (Freudenthal 2003; Sonnenberg 2003). consideration of the status of the name of the individual submitting the The petitions maintained that Preble’s Preble’s. comment (or signing the comment, if should be delisted based on the submitted on behalf of an association, DATES: To allow us adequate time to taxonomic revision suggested by Ramey business, labor union, etc.). See http:// conduct these reviews, we request that et al. (2003) and new distribution, www.regulations.gov/#!privacyNotice we receive comments and information abundance, and trends data that for the privacy notice of regulations.gov no later than December 26, 2012. The suggested the subspecies was no longer or you may review DOT’s complete deadline for submitting an electronic endangered or threatened (Freudenthal Privacy Act Statement in the Federal comment using the Federal 2003, p. 1; Sonnenberg 2003, p. 1). Register published on April 11, 2000 eRulemaking Portal (see ADDRESSES On July 10, 2008, we published a final (Volume 65, Number 70; Pages 19477– section, below) is 11:59 p.m. Eastern rule amending the listing for the 78). Time on this date. After December 26, Preble’s by removing protections for the Issued in Washington, DC, on November 2012, you must submit information Preble’s in Wyoming (73 FR 39790). In 19, 2012. using the U.S. mail or hand-delivery that rule, we determined that the Robert C. Lauby, option provided in the ADDRESSES Preble’s was not threatened throughout Deputy Associate Administrator for section below. Please note that we may all of its range, but the portion of its Regulatory and Legislative Operations. not be able to address or incorporate range located in Colorado represented a [FR Doc. 2012–28561 Filed 11–23–12; 8:45 am] information that we receive after the ‘‘significant portion of the range’’ (SPR) BILLING CODE 4910–06–P above requested date. where the Preble’s should retain its ADDRESSES: You may submit comments threatened status. by one of the following methods: On June 23, 2009, a petition for • DEPARTMENT OF THE INTERIOR Federal eRulemaking Portal: http:// review of the 2008 amendment to the www.regulations.gov. Search for Docket listing was filed in the United States Fish and Wildlife Service No. FWS–R6–ES–2012–0095 and then District Court for the District of follow the instructions for submitting Colorado. The petitioners challenged, 50 CFR Part 17 comments. among other things, our interpretation • U.S. mail or hand-delivery: Public of SPR as applied to the Preble’s [Docket No. FWS–R6–ES–2012–0095; Comments Processing, Attn: FWS–R6– decision. The Service filed a motion for FXES11130900000–134–FF09E30000] ES–2012–0095; Division of Policy and voluntary remand and vacatur of the Directives Management; U.S. Fish and 2008 Preble’s amended listing decision. Endangered and Threatened Wildlife Wildlife Service; 4401 N. Fairfax Drive, and Plants; Initiation of Status Review On July 7, 2011, the United States MS 2042–PDM; Arlington, VA 22203. District Court for the District of and 5-Year Review of the Preble’s We will post all information received Meadow Jumping Mouse Colorado granted this motion and on http://www.regulations.gov. This ordered the 2008 amended listing AGENCY: Fish and Wildlife Service, generally means that we will post any decision vacated and remanded as of Interior. personal information you provide us August 6, 2011 (Center for Native (see Request for Information section ACTION: Notice of initiation of status Ecosystems, et al. v. Salazar, et al., 09– below for more details). review and 5-year review. cv–01463–AP–JLK, 2011 U.S. Dist. FOR FURTHER INFORMATION CONTACT: LEXIS 72664). On August 5, 2011, the SUMMARY: We, the U.S. Fish and Susan Linner, Field Supervisor, Service issued a final rule complying Wildlife Service (Service), under the Colorado Ecological Services Office; with the court order and reinstating the authority of the Endangered Species Act mailing address P.O. Box 25486, DFC regulatory protections under the Act for of 1973, as amended (Act), announce (MS 65412), Denver, CO 80225; the Preble’s in Wyoming, effective the initiation of a status review of the telephone (303) 236–4773; office August 6, 2011 (76 FR 47490). Preble’s meadow jumping mouse (Zapus location: 134 Union Boulevard, Suite The court also ordered that by June 1, hudsonius preblei) (Preble’s) throughout 670, Lakewood, CO 80228. If you use a 2013, the Service must complete its its range. We conduct status reviews to telecommunications device for the deaf status review of the Preble’s and publish determine whether a species should be (TDD), call the Federal Information a 12-month finding in the Federal listed as endangered or threatened Relay Service (FIRS) at (800) 877–8339. Register for the petitions submitted by under the Act. Following this status SUPPLEMENTARY INFORMATION: the State of Wyoming and Coloradans

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for Water Conservation and and Sivert 1999, p. 11; Ryon 1999, p. 12; on the Web site. If you submit a Development to delist the Preble’s. Schorr 2001, p. 14; Trainor et al. 2012). hardcopy that includes personal On December 9, 2011, we published While Preble’s dispersal capabilities are identifying information, you may a notice of our draft policy (76 FR thought to be limited, in one instance a request at the top of your document that 76987) to establish a joint interpretation Preble’s was documented moving as far we withhold this personal identifying and application of SPR with the as 0.7 mile (1.1 kilometers) in 24 hours information from public review. National Marine Fisheries Service that (Ryon 1999, p. 12). The Preble’s However, we cannot guarantee that we reflects a permissible reading of the law typically enters hibernation in will be able to do so. We will post all and its legislative history, and September or October and emerges the hardcopy submissions on http:// minimizes undesirable policy outcomes, following May (Whitaker 1963, p. 5; www.regulations.gov. while fulfilling the conservation Meaney et al. 2003, p. 621). Information and supporting purposes of the Act. To date, our draft For additional information on the documentation we receive and use in policy on SPR has not been finalized. biology of this subspecies, see the May preparing a 12-month finding and 5-year Background 13, 1998, final rule to list the Preble’s as review will be available for public threatened (63 FR 26517) and the inspection on http:// The Preble’s is recognized as 1 of 12 October 8, 2009, proposal to revise www.regulations.gov, or by subspecies of meadow jumping mouse critical habitat for the Preble’s in appointment, during normal business (Zapus hudsonius), a species that ranges Colorado (74 FR 52066). hours, at the U.S. Fish and Wildlife from the Pacific Coast of Alaska to the Service, Colorado Ecological Services Request for Information Atlantic Coast and from the northern Office (see FOR FURTHER INFORMATION limit of forests south to New Mexico, To ensure our determination is based CONTACT). Oklahoma, and Georgia (Hafner et al. on the best available scientific and 1981, p. 501; Hall 1981, p. 843; Krutzsch commercial information, we request New Information Available for Review 1954, pp. 420–421). Meadow jumping information on the Preble’s from Pertinent information received, mice are small rodents with long tails, governmental agencies, Native developed, or analyzed since our July large hind feet, and long hind legs. Total American Tribes, the scientific 10, 2008, final rule amending the listing length of an adult is approximately 7 to community, industry, and any other determination for the Preble’s (73 FR 10 inches (187 to 255 millimeters), with interested parties. We are seeking any 39790) is available for review on the the tail of 4 to 6 inches (108 to 155 new information including: Service’s Web site http://www.fws.gov/ millimeters) comprising about 60 (1) Data from any systematic surveys mountain-prairie/species/mammals/ percent of that length (Krutzsch 1954, p. for the Preble’s, as well as any studies preble/, or by contacting the Field 420; Armstrong et al. 2011, p. 189). that may show distribution, status, Supervisor, Colorado Ecological The Preble’s is found along the population size, or population trends; Services Office (see FOR FURTHER foothills in southeastern Wyoming (2) Information concerning the INFORMATION CONTACT). This information southward along the eastern edge of the taxonomic status of the Preble’s; includes both scientific publications Front Range of Colorado to Colorado (3) Quantitative information regarding and selected unpublished reports. Springs in El Paso County, Colorado the life history, ecology, and habitat use Compilations of data, correspondence, (Hall 1981, p. 844; Clark and Stromberg of the Preble’s; and other information are also available 1987, pp. 184–188; Armstrong et al. (4) Information on the current and on the Service’s Web site. See the 2011, p. 189; Clippenger 2002, pp. 14– foreseeable threats faced by the Preble’s Federal eRulemaking Portal at http:// 15, 20). Typical habitat for the Preble’s in all or a significant portion of its range www.regulations.gov (Docket No. FWS– is comprised of well-developed riparian in relation to the five listing factors (as R6–ES–2012–0095) for additional vegetation with adjacent, relatively defined in section 4(a)(1) of the information we receive during the undisturbed grassland communities and Endangered Species Act, as amended comment period opened by this a nearby water source (Bakeman 1997, [16 U.S.C. 1531 et seq.]); document. pp. 22–31). Preble’s are typically (5) Information regarding the effects of captured in areas with multi-storied current and foreseeable land References Cited cover with an understory of grasses or management on the status of the A complete list of all the references is forbs or a mixture thereof (Bakeman Preble’s; available on the Internet at http:// 1997, pp. 22–31; Schorr 2001, pp. 23– (6) Specific information on the www.regulations.gov and upon request 24). The shrub canopy is often willow potential effects of climate change on from the Field Supervisor, Colorado (Salix spp.), although other shrub the Preble’s and its habitat; Ecological Services Field Office (see FOR species may occur (Shenk and Eussen (7) Information demonstrating what, FURTHER INFORMATION CONTACT. 1998, p. 9–11). Trainor et al. (2007, pp. for the Preble’s, might constitute an SPR 471–472) found that high-use areas for in light of our December 9, 2011, draft Authors the Preble’s tended to be close to creeks policy on SPR (76 FR 76987); and The primary authors of this notice are and were positively associated with the (8) Information regarding contact and staff members of the Colorado percentage of shrubs, grasses, and interaction among Preble’s populations Ecological Services Office, U.S. Fish and woody debris. Hydrologic regimes that or other information relevant to a Wildlife Service. support Preble’s’ habitat range from distinct population segment analysis (see 61 FR 4722, February 7, 1996). Authority: The authority for this action is large perennial rivers, such as the South the Endangered Species Act of 1973, as Platte River, to small drainages only 3 You may submit information amended (16 U.S.C. 1531 et seq.). to 10 feet (1 to 3 meters) in width. concerning the status review or the 5- Meadow jumping mice are primarily year review by one of the methods listed Dated: November 15, 2012. nocturnal or crepuscular (active during in the ADDRESSES section. If you submit G. Mendel Stewart, twilight), but also may be active during information via http:// Acting Director, U.S. Fish and Wildlife the day. The Preble’s uses uplands at www.regulations.gov, your entire Service. least as far out as 330 feet (100 meters) submission—including any personal [FR Doc. 2012–28629 Filed 11–23–12; 8:45 am] beyond the 100-year floodplain (Shenk identifying information—will be posted BILLING CODE 4310–55–P

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Notices Federal Register Vol. 77, No. 227

Monday, November 26, 2012

This section of the FEDERAL REGISTER number and the agency informs Animal and Plant Health Inspection contains documents other than rules or potential persons who are to respond to Service proposed rules that are applicable to the the collection of information that such public. Notices of hearings and investigations, Title: Animal Welfare. persons are not required to respond to OMB Control Number: 0579–0093. committee meetings, agency decisions and the collection of information unless it rulings, delegations of authority, filing of Summary of Collection: The petitions and applications and agency displays a currently valid OMB control Laboratory Animal Welfare Act (AWA) statements of organization and functions are number. (Pub. L. 89–544) enacted August 24, examples of documents appearing in this Animal & Plant Health Inspection 1966, and amended December 24, 1970 section. Service (Pub. L. 91–579); April 22, 1976 (Pub. L. 94–279); and December 23, 1985 (Pub. Title: National Poultry Improvement L. 99–198) required the U.S. Department DEPARTMENT OF AGRICULTURE Plan (NPIP). of Agriculture (USDA) to regulate the OMB Control Number: 0579–0007. humane care and handling of most Submission for OMB Review; Summary of Collection: The National Comment Request warm-blooded animals, including Poultry Improvement Plan (NPIP) is a marine mammals, used for research or November 19, 2012. voluntary Federal-State-industry exhibition purposes, sold as pets, or The Department of Agriculture has mechanism for controlling certain transported in commerce. The submitted the following information poultry diseases and for improving legislation and its amendments were the collection requirement(s) to OMB for poultry flocks and products through result of extensive demand by organized review and clearance under the disease control techniques. The animal welfare groups and private Paperwork Reduction Act of 1995, National Turkey Improvement Plan was citizens requesting a Federal law to Public Law 104–13. Comments combined with the NPIP in 1970 to protect such animals. The Animal and regarding (a) Whether the collection of create the NPIP, as it now exists. Emu, Plant Health Inspection Service information is necessary for the proper rhea, ostrich, and cassowary breeding (APHIS), Animal Care (AC) has the performance of the functions of the flocks are also allowed participation in responsibility to enforce the AWA and agency, including whether the the Plan. The NPIP requires several the provisions of 9 CFR, Chapter 1, information will have practical utility; information collection activities, Subchapter A, which implements the (b) the accuracy of the agency’s estimate including: The memorandum of AWA. of burden including the validity of the understanding; flock selecting and Need and Use of the Information: methodology and assumptions used; (c) testing report; sales reports, including APHIS will collect information to insure ways to enhance the quality, utility and sales of hatching eggs, chicks, and that animals used in research facilities clarity of the information to be poults, breeding flock and slaughter or for exhibition purposes are provided collected; (d) ways to minimize the plant participation summaries, hatchery humane care and treatment. The burden of the collection of information participation summaries, salmonella information is used to ensure those on those who are to respond, including investigation reports, flock and hatchery dealers, exhibitors, research facilities, through the use of appropriate inspection reports. Sentinel bird carriers, etc., are in compliance with the automated, electronic, mechanical, or identification, salmonella serotyping AWA and regulations and standards other technological collection requests, small chick order printouts promulgated under this authority of the techniques or other forms of information and appraisal and indemnity forms. Act. technology. Authority for this program is contained Description of Respondents: Business Comments regarding this information in the U.S. Department of Agriculture or other for-profit; State, Local or Tribal collection received by December 26, Organic Act of 1944, as amended (7 Government. 2012 will be considered. Written U.S.C. 429). The cooperative work is Number of Respondents: 11,783. comments should be addressed to: Desk carried out through a Memorandum of Frequency of Responses: Officer for Agriculture, Office of Understanding with the participating Recordkeeping; Reporting: On occasion. Information and Regulatory Affairs, States. Total Burden Hours: 50,245. Office of Management and Budget Need and Use of the Information: (OMB), New Executive Office Building, APHIS will collection information to Animal and Plant Health Inspection 725 17th Street NW., Washington, DC continually improve the health of the Service 20502. Commenters are encouraged to U.S. poultry population and the quality Title: National Veterinary submit their comments to OMB via of U.S. poultry products. If the Accreditation Program. email to: [email protected]. information were collected less OMB Control Number: 0579–0297. GOV or fax (202) 395–5806 and to frequently or not collected, APHIS Summary of Collection: The Animal Departmental Clearance Office, USDA, could not affectively monitor the health Health Protection Act, (APHA) of 2002 OCIO, Mail Stop 7602, Washington, DC of the nation’s poultry population. is the primary Federal law governing the 20250–7602. Copies of the Description of Respondents: Business protection of animal health. The law submission(s) may be obtained by or other for-profit; State, Local or Tribal gives the Secretary of Agriculture broad calling (202) 720–8958. Government. authority to detect, control, or eradicate An agency may not conduct or Number of Respondents: 12,195. pests or diseases of livestock or poultry. sponsor a collection of information Frequency of Responses: The APHA is contained in Title X, unless the collection of information Recordkeeping; Reporting: On occasion. Subtitle E, Sections 10401–18 of Public displays a currently valid OMB control Total Burden Hours: 103,363. Law 107–171, May 13, 2002, the Farm

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Security and Rural Investment Act of other technological collection Description of Respondents: State, 2002. The Animal and Plant Health techniques or other forms of information Local, or Tribal Government; Inspection Service (APHIS) is the technology should be addressed to: Desk individuals or households; business or Agency charged with carrying out this Officer for Agriculture, Office of other for-profit; not-for-profit disease prevention mission. An Information and Regulatory Affairs, institutions. important approach for disease Office of Management and Budget Number of Respondents: 9,023,066. detection and control is provided to (OMB), [email protected]. Frequency of Responses: APHIS by the assistance of private GOV or fax (202) 395–5806 and to Recordkeeping; Report: Quarterly; semi- veterinarians through the National Departmental Clearance Office, USDA, annually; annually; biennially. Veterinary Accreditation Program OCIO, Mail Stop 7602, Washington, DC Total Burden Hours: 4,024,697. (NVAP). This voluntary program, 20250–7602. Comments regarding these administered by APHIS, certifies private information collections are best assured Ruth Brown, practitioners, to work cooperatively of having their full effect if received Departmental Information Collection with Federal and State animal health within 30 days of this notification. Clearance Officer. authorities. Copies of the submission(s) may be [FR Doc. 2012–28510 Filed 11–23–12; 8:45 am] Need and Use of the Information: obtained by calling (202) 720–8958. BILLING CODE 3410–30–P APHIS will use VS form 1–36A to An agency may not conduct or collect information to certify private sponsor a collection of information practitioners to work cooperatively with unless the collection of information DEPARTMENT OF AGRICULTURE Federal and State animal health displays a currently valid OMB control Forest Service authorities as accredited private number and the agency informs veterinarians on various approaches for potential persons who are to respond to Information Collection; Flathead and disease prevention and proactive the collection of information that such McKenzie Rivers and McKenzie disease surveillance as effective persons are not required to respond to National Recreational Trail Visitor methods for maintaining a healthy the collection of information unless it Surveys animal population and for enhancing displays a currently valid OMB control the United States’ ability to compete in number. AGENCY: Forest Service, USDA. the global market for animal and animal Food and Nutrition Service ACTION: Notice; request for comment. product trade. Description of Respondents: Business Title: WIC Program Regulations- SUMMARY: In accordance with the or other for-profit. Reporting and Recordkeeping Burden. Paperwork Reduction Act of 1995, the Number of Respondents: 23,800. OMB Control Number: 0584–0043. Forest Service is seeking comments Frequency of Responses: Reporting: Summary of Collection: The WIC from all interested individuals and On occasion. Program is authorized by the Child organizations on an extension with no Total Burden Hours: 11,900. Nutrition Act of 1966, as amended, and revisions of a currently approved is administered by State agencies in information collection, Flathead Wild Ruth Brown, accordance with WIC program Departmental Information Collection and Scenic River Visitor Survey and regulations at 7 CFR part 246. This McKenzie River Visitor Survey. Clearance Officer. submission incorporates the information DATES: Comments must be received in [FR Doc. 2012–28506 Filed 11–23–12; 8:45 am] collection burden associated with writing on or before January 25, 2013 to BILLING CODE 3410–34–P requirements contained in the Healthy be assured of consideration. Comments Hunger-Free Kids Act of 2010 (Pub. L. received after that date will be 111–296). DEPARTMENT OF AGRICULTURE Need and Use of the Information: The considered to the extent practicable. Food and Nutrition Service (FNS) will ADDRESSES: Comments concerning this Submission for OMB Review; notice should be addressed to Matt Comment Request collect information that include participant certification information Peterson, U.S. Department of November 19, 2012. (e.g. income and nutrition risk); Agriculture (USDA) Forest Service, The Department of Agriculture has nutrition education documentation; Willamette National Forest, 3106 Pierce submitted the following information local agency and vendor application and Parkway, Suite D, Springfield, OR collection requirement(s) to OMB for agreement information; vendor sales 97477. Comments also may be review and clearance under the and shelf price data; data related to submitted via email to: Paperwork Reduction Act of 1995, vendor monitoring and training; and, [email protected] The public may Public Law 104–13. Comments financial and food delivery system inspect comments received at USDA regarding (a) Whether the collection of records. The information is needed for Forest Service, Willamette National information is necessary for the proper the general operation of the Program, Forest, 3106 Pierce Parkway, Suite D, performance of the functions of the including regulatory compliance, and Springfield, OR, during normal business agency, including whether the for ongoing program integrity and cost- hours. Visitors are encouraged to call information will have practical utility; saving efforts. The information collected ahead to 541–225–6421 to facilitate (b) the accuracy of the agency’s estimate is also used by FNS to manage, plan, entry to the building. of burden including the validity of the evaluate, make decisions and report on FOR FURTHER INFORMATION CONTACT: methodology and assumptions used; (c) WIC program operations. If the Flathead—Colter Pence, Flathead ways to enhance the quality, utility and information were not collected the National Forests, 406–387–3949 and clarity of the information to be efficiency and effectiveness of the Willamette—Matt Peterson, Willamette collected; (d) ways to minimize the program would be jeopardized, the National Forest, 541–225–6421. burden of the collection of information likelihood of misuse or improper use of Individuals who use telecommunication on those who are to respond, including Federal funds would increase, and FNS’ devices for the deaf (TDD) may call the through the use of appropriate ability to detect violations or abusive Federal Relay Service (FRS) at 800–877– automated, electronic, mechanical, or behavior would diminish greatly. 8339, between 8 a.m. and 8 p.m.,

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Eastern Standard time, Monday through Package for the Social Sciences) for DEPARTMENT OF AGRICULTURE Friday. analysis. The database will be SUPPLEMENTARY INFORMATION: Title: maintained at the respective National Forest Service Forest to be used for development of Flathead Wild and Scenic River Visitor White River National Forest; Eagle Survey and McKenzie River Visitor subsequent management plans and direction. County, CO; Vail Mountain Recreation Survey. Enhancements Projects EIS OMB Number: 0596–0229. Collecting thoughts from the public Expiration Date of Approval: 04/30/ on how these areas should be managed AGENCY: Forest Service, USDA. 2013. and consideration of their interests and ACTION: Notice of intent to prepare an Type of Request: Extension with no priorities is a critical component to environmental impact statement. revision of a currently approved developing a fair and balanced information collection management plan and strategy. Without SUMMARY: Vail Mountain Ski Resort Abstract: The Flathead and the public’s involvement, a plan has the (Vail) recently submitted a proposal to Willamette National Forests are risk of being biased and ineffective. the White River National Forest (WRNF) proposing to continue implementation Estimate of Annual Burden: The for new and enhanced activities within of an information collection from forest survey is expected to take 20 minutes to its Forest Service-administered Special visitors who are recreating on or near complete. Use Permit (SUP) area. The WRNF has the Flathead Wild and Scenic River, Type of Respondents: National Forest accepted this proposal, and is initiating McKenzie Wild and Scenic River, or and National Park (Flathead) visitors a National Environmental Policy Act McKenzie National Recreational Trail. (adults, age 16 and older) who are (NEPA) analysis to document and Because of the differences in the issues recreating on or near the Flathead or disclose potential impacts. The on each River and the need for different McKenzie Rivers or the McKenzie Proposed Action—the Vail Mountain information, two separate surveys will National Recreational Trail. Recreation Enhancements Project—is built on the goal of fostering enhanced be administered for the Flathead and Estimated Annual Number of opportunities for, and appreciation of, Willamette Rivers though the Respondents: 1000 (Willamette) and natural resource-based recreation on methodology for collection will be 1200 (Flathead). essentially identical. public lands administered by the Estimated Annual Number of WRNF. The proposed projects are The visitor survey will support Responses per Respondent: One development of the Flathead designed to take advantage of existing response per respondent. lift and guest service infrastructure Comprehensive River Management Plan Estimated Total Annual Burden on (CRMP), implementation of the exiting across Vail’s SUP area and proposed Respondents: 333 hours (Willamette) non-ski-based activities are designed to Upper McKenzie River Management and 400 hours (Flathead). Plan, and will provide needed suit a wide range of visitors to the information for managers to protect and Comment is Invited WRNF and the Vail Valley. DATES: Comments concerning the scope enhance the outstandingly remarkable Comment is invited on: (1) Whether values for which the Flathead and of the analysis must be received by this collection of information is December 26, 2012. The draft McKenzie Rivers were designated. In necessary for the stated purposes and addition, the survey proposed will help environmental impact statement is the proper performance of the functions expected to be available for public managers identify the most important of the agency, including whether the indicators to monitor over the life of the review in August or September 2013 information will have practical or and the final environmental impact plan, determine if any thresholds are scientific utility; (2) the accuracy of the being approached, and if management statement is expected in the winter of agency’s estimate of the burden of the 2013/14. action may need to occur. collection of information, including the ADDRESSES: Information will continue to be validity of the methodology and Comments may be collected from visitors who are assumptions used; (3) ways to enhance submitted online at www.vailreceis.info. recreating on or near the Flathead and the quality, utility, and clarity of the Send written comments to: Scott McKenzie Rivers and McKenzie information to be collected; and (4) Fitzwilliams, Forest Supervisor, c/o Don National Recreational Trail by in- ways to minimize the burden of the Dressler, Winter Sports Administrator, person, written surveys which will be collection of information on White River National Forest, P.O. Box administered by Forest Service or respondents, including the use of 190, Minturn, CO 81645; FAX (970) National Park Service (Flathead) automated, electronic, mechanical, or 945–9343 or by email to: comment@ employees, volunteers, or study other technological collection vailreceis.info (include ‘‘Vail Recreation cooperators to randomly selected techniques or other forms of information Enhancements Project EIS’’ in the visitors. Surveys will ask visitors to technology. subject line). Additional details of the Proposed Action, figures, the EIS provide information about their trip and All comments received in response to scoping process, how to comment activities, environmental and social this notice, including names and electronically, and the overall NEPA conditions that may alter the quality of addresses when provided, will be a process can be viewed at www. their recreational experience, and their matter of public record. Comments will vailreceis.info. attitudes toward different existing and be summarized and included in the potential recreation management submission request toward Office of FOR FURTHER INFORMATION CONTACT: policies and practices. Visitors’ Management and Budget approval. Additional information related to the responses are voluntary and proposed project can be obtained from: anonymous. Dated: November 5, 2012. Don Dressler, Winter Sports Data will be entered into an Excel James M. Pena, Administrator, Eagle/Holy Cross Ranger database. Once data entry has been Associate Deputy Chief, National Forest District, 24747 U.S. Highway 24, P.O. completed and validated, the hardcopy System. Box 190, Minturn, Colorado 81645. Mr. questionnaires will be discarded. Data [FR Doc. 2012–28511 Filed 11–23–12; 8:45 am] Dressler can be reached by phone at will be imported into SPSS (Statistical BILLING CODE 3410–11–P (970) 827–5157 or by email at

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[email protected]. Individuals who connect people with the natural both functional and minimizes/ use telecommunication devices for the environment and enhance eliminates resource impacts. deaf (TDD) may call the Federal understanding and appreciation of the Responsible Official: The Responsible Information Relay Service (FIRS) at 1– purpose and value of public lands. Official is Scott Fitzwilliams, Forest 800–877–8339 between 8 a.m. and 8 Proposed Action: The Proposed Supervisor for the WRNF. p.m., Eastern Time, Monday through Action includes the 13 elements, Friday. identified below. A full description of Nature of Decision To Be Made: Based on the analysis that will be documented SUPPLEMENTARY INFORMATION: Purpose each element can be found at: www. in the forthcoming EIS, the Responsible and Need for Action: In November 2011, vailreceis.info. Official will decide whether or not to the National Forest Ski Area Permit Act • Educational Opportunities and implement, in whole or in part, the of 1986 was amended to clarify the Interpretive Information authority of the Secretary of Agriculture • Game Creek Canopy Tour Proposed Action or another alternative regarding additional recreational uses of • Front Side Canopy Tour that may be developed by the Forest NFS land that is subject to ski area • Adventure Ridge Forest Flyer Service as a result of scoping. permits, and for other purposes. The • Pride Express Forest Flyer Scoping Process: This notice of intent Proposed Action was designed in • Rappel Activity at Adventure Ridge initiates the scoping process, which • response to the Ski Area Recreational Expanded Hiking and Mountain Bike guides the development of the Opportunity Enhancement Act of 2011 Trails environmental impact statement. The • (the 2011 Act) which encourages Riparian Experience at Adventure Forest Service is soliciting comments outdoor recreation and enjoyment of Ridge • from Federal, State and local agencies nature, harmony with the natural Family Forest Park at Adventure and other individuals or organizations environment, and requires (to the extent Ridge that may be interested in or affected by • Modified Horse Trail in Game Creek practical) that activities shall be located implementation of the proposed Bowl within the developed portions of ski projects. Public questions and • Observation Decks and Towers at areas. comments regarding this proposal are an As a recreation-based economy, the Adventure Ridge and Wildwood integral part of this environmental Vail Valley both relies on, and attracts, • Reconfigured Talon’s Deck and analysis process. Input provided by large numbers of visitors throughout the Barbeque Area at Eagles Nest year, most of which—either knowingly • Wedding Deck at The 10th interested and/or affected individuals, or unknowingly—come to recreate on As a whole and individually, organizations and governmental public lands. These visitors can be proposed projects have been designed to agencies will be used to identify broadly placed into two types: (1) Those harmonize with, and benefit from, the resource issues that will be analyzed in who are likely to engage in dispersed natural setting of the NFS lands within the environmental impact statement. recreational activities (i.e., hiking, Vail’s existing Forest Service- The Forest Service will identify biking and camping); and (2) those who administered SUP area. They are significant issues raised during the seek more organized, controlled designed to both complement and scoping process, and use them to activities. The need for specialized improve the existing non-skiing formulate alternatives, prescribe knowledge, equipment, skills and recreational opportunities that are mitigation measures and project design familiarity with the mountain currently offered on NFS lands at Vail features, or analyze environmental environment can be a significant barrier Mountain. All of the proposed projects effects. for some visitors to engage in outdoor rely on the Alpine forest setting on NFS It is important that reviewers provide lands within the Vail SUP, either activities. Vail’s customer surveys their comments at such times and in because of the natural surroundings indicate that visitors to the Valley are such manner that they are useful to the (such as the forest canopy) or because of consistently seeking a more diverse agency’s preparation of the range of recreational activities, the natural conditions (such as environmental impact statement. particularly for families, children and topography and vertical relief). Therefore, comments should be the aging, but extending to people Due to engineering, planning and seeking more adventurous activities. resource considerations, the WRNF and provided prior to the close of the This extends to both non-skiing and Vail are in the process of finalizing comment period and should clearly after-skiing activities, as well as an many of the proposed project locations articulate the reviewer’s concerns and enhanced variety of activities in the and specifics across the project area. contentions. non-winter months. While some proposed project locations Comments received in response to The Need for Action is to respond to are considered accurate at this time this solicitation, including names and Vail’s proposal to implement activities (e.g., observation decks and the wedding addresses of those who comment, will consistent with the Ski Area deck), others are more conceptual, and be part of the public record for this Recreational Opportunity Enhancement will be further refined in the coming proposed action. Comments submitted Act of 2011. Based on the months as site-specific mapping and anonymously will be accepted and aforementioned information, the updated engineering/planning/design considered, however. Purpose of Action is to: data is considered (e.g., Forest Flyers 1. Provide new and innovative forms and canopy tours). Finally, while the Dated: November 13, 2012. of year-round, outdoor recreation on conceptual areas and extents of David Neely, NFS land for visitors to the Vail Valley. proposed hiking and mountain bike District Ranger. 2. Utilize existing lift and guest trails have been identified across Vail [FR Doc. 2012–28202 Filed 11–23–12; 8:45 am] service infrastructure throughout Vail’s Mountain, the precise locations of any BILLING CODE 3410–11–M SUP area to support new recreational approved trails would be determined on activities. a case-by-case basis (in coordination 3. Capitalize on the relationship with Forest Service specialists, as between the WRNF and Vail Resorts to appropriate) to arrive at a design that is

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DEPARTMENT OF AGRICULTURE FOR FURTHER INFORMATION CONTACT: Ms. questions be addressed in drafting Camielle Compton, (202) 401–6825 comments on the program: National Institute of Food and (phone), or [email protected]. 1. What are the current educational Agriculture SUPPLEMENTARY INFORMATION: gaps in agricultural safety and health education that could be addressed Solicitation of Input From Stakeholders Additional Meeting and Comment through this program? Regarding the Youth Farm Safety Procedures 2. What are the critical components of Education and Certification Persons wishing to present oral a coordinated approach to Agricultural Competitive Grants Program comments at the December 12th meeting Safety and Health Education? AGENCY: National Institute of Food and are requested to pre-register by 3. Is there a need for a one-stop-shop Agriculture, USDA. contacting Camielle Compton, (202) for education and program materials in 401–6825 (phone), or by email to ACTION: Notice of public meeting and agricultural safety and health? [email protected]. request for stakeholder input. 4. What educational standards should Participants may reserve one five- be considered in development of the SUMMARY: The Youth Farm Safety minute comment period. More time may curriculum? Education and Certification (YFSEC) be available, depending on the number 5. What can be done to improve program is authorized under Extension of people wishing to make a educational outreach to vulnerable Activities, Smith-Lever 3(d) Programs. presentation. Reservations for oral populations, such as non-english- By this notice, NIFA is designated to act comments will be confirmed on a first- speaking and immigrant youth, in on behalf of the Secretary of Agriculture come, first-served basis. All comments agricultural jobs? in soliciting public comment from not presented or submitted for the 6. What partners would be beneficial interested persons regarding program record at the meeting must be submitted to engage in developing a more and funding priorities for the Youth by close of business on December 26, comprehensive and effective Farm Safety Education and Certification 2012, to be considered in the agricultural health and safety Program. development of the FY 2013 Farm curriculum for youth? Safety program guidelines. All DATES: One listening session will be 7. What educational approaches, such comments and the official transcript of as use of social media, could be used to held on December 12, 2012 to collect the meeting, when they become stakeholder input. All comments not get the message out, both more available, will be available on the NIFA effectively and to a larger number of otherwise presented or submitted for the Web page for six months. record at the meeting must be submitted young workers? by close of business December 26, 2012, Background and Purpose The December 12, 2012 listening to assure consideration in the The YFSEC program is authorized by session is scheduled to assist NIFA development of the proposed FY 2013 the Smith-Lever Act of May 8, 1914, as leadership in more fully addressing program guidelines. amended (7 U.S.C. 341 et seq.). Section stakeholder needs and assuring that the ADDRESSES: The December 12, 2012 7403 of the Food, Conservation, and Farm Safety programs address the meeting will use a webinar format and Energy Act (FCEA) of 2008 (Pub. L. 110– highest priorities authorized under this will be accessible by conference call 246) amended section 3(d) of the Smith- program. (audio) and Internet (visual only). Lever Act of 1914 [7 U.S.C. 343(d)] to Implementation Plans Connection details for the meeting will include 1890 Land-Grant Colleges and NIFA plans to consider stakeholder be posted on the National Institute of Universities, including Tuskegee input received from this meeting as well Food and Agriculture Web site University and West Virginia State as other written comments and (www.nifa.usda.gov) or by contacting University, as institutions eligible for stakeholder input in developing the FY the individual listed under FOR FURTHER funding. Beginning in FY 2009, the 2013 program guidelines, dependent on INFORMATION (below). You may submit eligibility to compete for funding for Congressional appropriation. NIFA comments, identified by NIFA–2013– both programs was further broadened to anticipates releasing the proposed FY 0007, by any of the following methods: include the University of the District of Email: [email protected]. Columbia. 2013 RFA(s) by March 2013. Include NIFA–2013–0007 in the subject The YFSEC program supports Done at Washington, DC, this 16th day of line of the message. national efforts to deliver timely, November 2012. Mail: Paper submissions should be pertinent, and appropriate training to Sonny Ramaswamy, submitted to Farm Safety Comments; youth actively working, with or without Director, National Institute of Food and Division of Agricultural Systems, compensation, in agricultural Agriculture. Institute of Food Production and production, regardless of whether the [FR Doc. 2012–28522 Filed 11–23–12; 8:45 am] Sustainability, National Institute of agricultural production enterprise is or BILLING CODE 3410–22–P Food and Agriculture, U.S. Department is not family-owned. NIFA supports of Agriculture; STOP 2240, 1400 training for the existing Agricultural Independence Avenue SW., Hazardous Occupation Order by DEPARTMENT OF COMMERCE Washington, DC 20250–2240. updating and assessing curricula, testing Hand Delivery/Courier: Farm Safety procedures, and certification means. Submission for OMB Review; Comments; Division of Agricultural Two complete curricula have been Comment Request Systems, Institute of Food Production developed through the YFSEC program and Sustainability, National Institute of and are available at The Department of Commerce will Food and Agriculture, U.S. Department www.agsafety4youth.info. The intent of submit to the Office of Management and of Agriculture; Room 3446, Waterfront the listening session and written Budget (OMB) for clearance the Centre, 800 9th Street SW., Washington, comments is to gather stakeholder input following proposal for collection of DC 20024. Instructions: All submissions on program focus and priorities for information under the provisions of the must include the identifier NIFA–2013– agricultural safety and health education. Paperwork Reduction Act (44 U.S.C. 0007. USDA–NIFA suggests the following Chapter 35).

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Agency: National Oceanic and Dated: November 19, 2012. A copy of the notification will be Atmospheric Administration (NOAA). Gwellnar Banks, available for public inspection at the Title: Designation of Fishery Management Analyst, Office of the Chief Office of the Executive Secretary, Management Council Members and Information Officer. Foreign-Trade Zones Board, Room Application for Reinstatement of State [FR Doc. 2012–28536 Filed 11–23–12; 8:45 am] 21013, U.S. Department of Commerce, Authority. BILLING CODE 3510–22–P 1401 Constitution Avenue NW., OMB Control Number: 0648–0314. Washington, DC 20230–0002, and in the Form Number(s): NA. ‘‘Reading Room’’ section of the Board’s DEPARTMENT OF COMMERCE Web site, which is accessible via Type of Request: Regular submission www.trade.gov/ftz. (revision and extension of a current Foreign-Trade Zones Board For further information, contact Pierre information collection). [B–84–2012] Duy at [email protected], or (202) Number of Respondents: 146. 482–1378. Average Hours Per Response: Foreign-Trade Zone 7—Mayaguez, Dated: November 11, 2012. Nominations of principal state officials Puerto Rico; Notification of Proposed Andrew McGilvray, and designees, 1 hour; nominations for Production Activity; Pepsi Cola Puerto Council members, 80 hours per package Rico Distributing, LLC, (Soft Drink and Executive Secretary. of 3 nominations, nominees’ Fruit Drink Beverages), Toa Baja, [FR Doc. 2012–28624 Filed 11–23–12; 8:45 am] background information, 16 hours. Puerto Rico BILLING CODE 3510–DS–P Burden Hours: 4,607. The Puerto Rico Industrial Needs and Uses: This request is for Development Company, grantee of FTZ DEPARTMENT OF COMMERCE revision and extension of a currently 7, submitted a notification of proposed approved information collection. production activity on behalf of Pepsi International Trade Administration The Magnuson-Stevens Fishery Cola Puerto Rico Distributing, LLC Conservation and Management Act (PCPRD), located in Toa Baja, Puerto [A–570–863] (Magnuson-Stevens Act), as amended in Rico. The notification conforming to the 1996, provides for the nomination for Administrative Review of Honey From requirements of the regulations of the the People’s Republic of China: Final members of Fishery Management Foreign-Trade Zones Board (15 CFR Councils by state governors and Indian Results of Antidumping Duty § 400.22) was received on November 5, Administrative Review treaty tribes, for the designation of a 2012. principal state fishery official who will The PCPRD facility is located at AGENCY: Import Administration, perform duties under the Magnuson- Carretera 865, KM 0.4, in Toa Baja, International Trade Administration, Stevens Act, and for a request by a state Puerto Rico. A separate application for Department of Commerce. for reinstatement of state authority over subzone status at the PCPRD facility was SUMMARY: On August 6, 2012, the a managed fishery. Nominees for submitted and will be processed under Department of Commerce council membership must provide the Section 400.31 of the Board’s (‘‘Department’’) published in the governor or tribe with background regulations. The facility is used for the Federal Register the preliminary results documentation, which is then submitted production of bottled and canned soft of the tenth administrative review, to NOAA with the nomination. The drink and fruit drink beverages. covering the period December 1, 2010, information submitted with these Production under FTZ procedures could through November 30, 2011, of the actions will be used to ensure that the exempt PCPRD from customs duty antidumping duty order on honey from requirements of the Magnuson-Stevens payments on the foreign status the People’s Republic of China Act are being met. components and materials used in (‘‘PRC’’).1 We gave interested parties an Change: Adobe fillable nomination export production. On its domestic opportunity to comment on the kits are now available on the Council sales, PCPRD would be able to choose Preliminary Results. After reviewing Nomination Web site. the duty rate during customs entry interested parties’ comments, we made Affected Public: State, local or tribal procedures that applies to canned and no changes for the final results of governments. bottled soft drink and fruit drink review. The final antidumping duty Frequency: Annually and on occasion. beverages (duty free) for the foreign margins for this review are listed in the status inputs noted below. Customs Respondent’s Obligation: Mandatory. ‘‘Final Results of Review’’ section duties also could possibly be deferred or below. OMB Desk Officer: reduced on foreign status production _ DATES: Effective Date: November 26, OIRA [email protected]. equipment. Copies of the above information Components and materials sourced 2012. collection proposal can be obtained by from abroad include: fruit nectars FOR FURTHER INFORMATION CONTACT: Bob calling or writing Jennifer Jessup, (excluding orange juice and grapefruit Palmer or Catherine Bertrand, AD/CVD Departmental Paperwork Clearance juice), labels, plastic bottles, and plastic Operations, Office 9, Import Officer, (202) 482–0336, Department of caps for bottles (duty rates range from Administration, International Trade Commerce, Room 6616, 14th and 3.0 to 5.8%; 2¢/liter). The request Administration, U.S. Department of Constitution Avenue NW., Washington, indicates that PCPRD will not use Commerce, 14th Street and Constitution DC 20230 (or via the Internet at foreign-status sugar in the proposed FTZ Avenue NW., Washington, DC 20230; [email protected]). production activity. telephone: (202) 482–9068 or (202) 482– Written comments and Public comment is invited from 3207, respectively. recommendations for the proposed interested parties. Submissions shall be SUPPLEMENTARY INFORMATION: information collection should be sent addressed to the Board’s Executive within 30 days of publication of this Secretary at the address below. The 1 See Honey From the People’s Republic of China: notice to closing period for their receipt is Preliminary Results of Review, 77 FR 46699 (August [email protected]. January 7, 2013. 6, 2012) (‘‘Preliminary Results’’).

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Background Memo and the electronic versions of the the PRC-wide entity did not cooperate I&D Memo are identical in content. to the best of its ability, and its non- On April 16, 2012, Petitioners 2 responsiveness necessitates the use of withdrew their request for an Scope of the Order facts available, pursuant to sections administrative review for all companies The products covered by the order are 776(a)(2)(A), (B) and (C) of the Tariff Act under review except Dongtai Peak natural honey, artificial honey of 1930, as amended (‘‘Act’’). Because Honey Industry Co., Ltd. (‘‘Peak’’).3 On containing more than 50 percent natural the PRC-wide entity, including Peak, May 1, 2012, the Department rescinded honey by weight, preparations of natural withheld requested information, failed the review with respect to Anhui honey containing more than 50 percent to provide information in a timely Honghui, Foodstuff (Group) Co., Ltd., natural honey by weight and flavored manner and in the form requested, and Shanghai Bloom International Trading honey.5 The merchandise subject to the significantly impeded this proceeding, Co., Ltd., Shanghai Taiside Trading Co., order is currently classifiable under we continue to find that the PRC-wide Ltd., Tianjin Eulia Honey Co., Ltd., and subheadings 0409.00.00, 1702.90.90 and entity, failed to cooperate to the best of Wuhan Bee Healthy Co., Ltd., because 2106.90.99 of the Harmonized Tariff its ability, and, accordingly, find it the requests for review of these Schedule of the United States appropriate to apply to it a margin based companies were withdrawn and they (‘‘HTSUS’’). Although the HTSUS on adverse facts available (‘‘AFA’’). The 4 were not part of the PRC-wide entity. subheadings are provided for Department’s determination is in As noted above, on August 6, 2012, convenience and customs purposes, the accordance with sections 76(a)(2)(A), the Department published the Department’s written description of the (B), (C) and 776(b) of the Act.11 For a Preliminary Results of this merchandise under order is further discussion regarding Peak, see administrative review. In the dispositive.6 I&D Memo. Preliminary Results, we set the deadline for interested parties to submit case PRC-Wide Entity Final Results of Review briefs and rebuttal briefs to September 5, In the Preliminary Results, the The weighted-average dumping 2012, and September 10, 2012, Department determined that those margins for the POR are as follows: respectively. On September 5, 2012, companies remaining under review as of Peak filed a case brief. On September April 1, 2012, which did not Manufacturer/exporter Margin 10, 2012, the Petitioners filed a rebuttal demonstrate eligibility for a separate (per kilogram) rate effectively became part of the PRC- brief. The Department did not hold a PRC-Wide entity 12 ...... $2.63 public hearing pursuant to 19 CFR wide entity.7 Since the Preliminary 351.310(d), as no interested parties Results, no interested parties have Assessment requested one. submitted comments regarding these findings. Therefore, we will continue to Consistent with these final results, Analysis of Comments Received treat these companies as part of the and pursuant to section 751(a)(2)(B) of All issues raised in the case and PRC-wide entity. the Act and 19 CFR 351.212(b), the Department will direct U.S. Customs rebuttal briefs submitted by parties to Facts Available this review are addressed in the and Border Protection (‘‘CBP’’) to assess ‘‘Administrative Review of Honey from As noted in the Preliminary Results, antidumping duties on all appropriate the People’s Republic of China: Issue the Department issued the non-market entries. Consistent with AR5 Final and Decision Memorandum for the economy (‘‘NME’’) antidumping duty Results, we will direct CBP to assess questionnaire to Peak for individual importer-specific assessments rates Final Results’’ (‘‘I&D Memo’’), which is 8 dated concurrently with this notice, and examination in this review. However, based on the resulting per-unit (i.e., per which is hereby adopted by this notice. because the record lacks a complete kilogram) amount on each entry of the A list of the issues which parties raised questionnaire response from Peak, the subject merchandise during the review and to which we respond to in the I&D Department found that the information period.13 The Department intends to necessary to calculate an accurate Memo is attached to this notice as an issue assessment instructions to CBP 15 margin is not available on the record of Appendix. The I&D Memo is a public days after the publication date of the this review.9 Further, we found that document and is on file electronically final results of this review. because we issued questions regarding via Import Administration’s The Department recently announced a Peak’s separate rate status to which Peak Antidumping and Countervailing Duty refinement to its assessment practice in did not timely respond, Peak did not Centralized Electronic Service System establish its eligibility for a separate rate 11 (‘‘IA ACCESS’’). IA ACCESS is available See, e.g., Non-Malleable Cast Iron Pipe Fittings in this segment of the proceeding, and from the People’s Republic of China: Final Results to registered users at http:// thus is considered part of the PRC-wide of Antidumping Duty Administrative Review, 71 FR iaaccess.trade.gov and in the Central entity.10 69546 (December 1, 2006) and accompanying Issues Records Unit (‘‘CRU’’), room 7046 of the Because Peak, as part of the PRC-wide and Decision Memorandum at Comment 1. See also main Department of Commerce Certain Frozen Warmwater Shrimp from the entity, failed to respond in a timely Socialist Republic of Vietnam: Preliminary Results building. In addition, a complete manner to the Department’s requests for of the First Administrative Review and New Shipper version of the I&D Memo can be information, the Department finds that Review, 72 FR 10689, 10692 (March 9, 2007) accessed directly on the Internet at (decision to apply total AFA to the NME-wide entity) unchanged in Certain Frozen Warmwater http://www.trade.gov/ia. The signed I&D 5 See I&D Memo issued concurrently with this Shrimp From the Socialist Republic of Vietnam: notice for a complete description of the Scope of Final Results of the First Antidumping Duty 2 Petitioners are the American Honey Producers the Order. Administrative Review and First New Shipper Association and the Sioux Honey Association. 6 See Notice of Antidumping Duty Order And Review, 72 FR 52052 (September 12, 2007). 3 See Letter from Petitioners to the Secretary of Amendment To Final Determination: Honey from 12 The PRC-wide entity includes Dongtai Peak Commerce ‘‘Petitioners’ Partial Withdrawal of the People’s Republic of China, 66 FR 59026 Honey Industry Co., Ltd. (December 10, 2001). Request for Tenth Administrative Review’’ (April 13 See Honey from the People’s Republic of China: 7 16, 2012). See Preliminary Results, 77 FR at 46700. Final Results and Rescission, In Part, of Aligned 4 See Honey From the People’s Republic of China: 8 See Preliminary Results, 77 FR at 46699. Antidumping Duty Administrative Review and New Partial Rescission of Antidumping Duty 9 See id. at 46702. Shipper Review, 73 FR 424321 (July 21, 2008) Administrative Review, 77 FR 25682 (May 1, 2012). 10 See id. (‘‘AR5 Final Results’’).

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NME cases. Pursuant to this refinement assessment of doubled antidumping will reconvene on Wednesday, in practice, for entries that were not duties. December 20, 2012 from 9 a.m. to 5 p.m. reported in the U.S. sales databases Administrative Protective Order ADDRESSES: The meetings will be held at submitted by companies individually the Marriott Frenchman’s Reef and examined during this review, the This notice also serves as a reminder Morning Star Hotel, #4 Estate Bakkeroe, Department will instruct CBP to to parties subject to administrative St. Thomas, U.S.V.I. 00802. protective order (‘‘APO’’) of their liquidate such entries at the NME-wide FOR FURTHER INFORMATION CONTACT: Mr. responsibility concerning the return or rate. In addition, if the Department Miguel A. Rolo´n, Executive Director, destruction of proprietary information determines that an exporter under Caribbean Fishery Management Council, disclosed under APO in accordance review had no shipments of the subject 268 Mun˜ oz Rivera Avenue, Suite 1108, with 19 CFR 351.305, which continues merchandise, any suspended entries San Juan, Puerto Rico 00918–1920, to govern business proprietary that entered under that exporter’s case telephone: (787) 766–5926. number (i.e., at that exporter’s rate) will information in this segment of the SUPPLEMENTARY INFORMATION: The be liquidated at the NME-wide rate. For proceeding. Timely written notification Council will hold its 144th regular a full discussion of this practice, see of the return/destruction of APO Council Meeting to discuss the items Non-Market Economy Antidumping materials or conversion to judicial contained in the following agenda: Proceedings: Assessment of protective order is hereby requested. Antidumping Duties, 76 FR 65694 Failure to comply with the regulations December 19, 2012, 9 a.m.–5 p.m. and terms of an APO is a violation (October 24, 2011). • Call to Order which is subject to sanction. • Adoption of Agenda Cash Deposit Requirements We are issuing and publishing this • Consideration of 143rd Council administrative review and notice in The following cash deposit Meeting Verbatim Transcriptions accordance with sections 751(a)(1) and requirements will be effective upon • Executive Director’s Report 777(i) of the Act. publication of these final results of • Amendment 5 to the Atlantic Highly administrative review for all shipments Dated: November 19, 2012. Migratory Species Fishery of the subject merchandise entered, or Paul Piquado, Management Plan (FMP) withdrawn from warehouse, for Assistant Secretary for Import 1. Address results of recent stock consumption on or after the publication Administration. assessments for scalloped date, as provided for by section hammerhead, sandbar, dusky, Appendix—I&D Memo 751(a)(2)(C) of the Act: (1) For the blacknose, and Gulf of Mexico exporter listed above, the cash deposit Comment 1: Whether the Department blacktip sharks rate will be established in the final Properly Rejected Peak’s Extension Request 2. Proposed measures to end results of this review (except, if the rate Comment 2: Whether the Department overfishing and rebuild overfished is zero or de minimis, i.e., less than 0.5 Properly Rejected Peak’s SAQR stocks include establishing total Comment 3: Peak’s Separate Rate Status percent, no cash deposit will be allowable catches and commercial required for that company); (2) for Comment 4: Whether the Adverse Inference is Appropriate quotas, quota linkages, modifying previously investigated or reviewed PRC Comment 5: Whether the AFA Rate is recreational minimum size and and non-PRC exporters not listed above Appropriate reporting requirements and creating that have separate rates, the cash and modifying time/area closures deposit rate will continue to be the [FR Doc. 2012–28625 Filed 11–23–12; 8:45 a.m.] BILLING CODE 3510–DS–P 3. Public comment period for the exporter-specific rate published for the proposed rule end on February 12, most recent period; (3) for all PRC 2013. exporters of subject merchandise which DEPARTMENT OF COMMERCE • Amendment 4 to the Coral FMP— have not been found to be entitled to a Removal of Seagrasses Species from separate rate, the cash deposit rate will National Oceanic and Atmospheric the Coral FMP be the PRC-wide rate $2.63 per Administration 1. Final action expected by the kilogram; and (4) for all non-PRC Council exporters of subject merchandise which RIN 0648–XC363 2. Timeline for implementation of the have not received their own rate, the new regulations cash deposit rate will be the rate Caribbean Fishery Management • Regulatory Amendment 4 to the applicable to the PRC exporters that Council; Public Meetings Reeffish FMP—Implementation of supplied that non-PRC exporter. These Minimum Size Limits for Parrotfish AGENCY: deposit requirements, when imposed, National Marine Fisheries in St. Croix shall remain in effect until further Service (NMFS), National Oceanic and 1. Final action expected by the notice. Atmospheric Administration (NOAA), Council Commerce. Reimbursement of Duties 2. Timeline for implementation of the ACTION: Notice of public meetings. new regulations This notice also serves as a final • ACLs—SSC Report SUMMARY: reminder to importers of their The Caribbean Fishery 1. 2012 Annual Catch Limits (ACLs) responsibility under 19 CFR 351.402(f) Management Council (Council) and its overages by Island to file a certificate regarding the Administrative Committee will hold 2. Implementation of accountability reimbursement of antidumping duties meetings. measures in 213 for any ACLs prior to liquidation of the relevant DATES: The meetings will be held on Overages entries during this POR. Failure to December 19–20, 2012. The Council • Research Priorities—SSC Report comply with this requirement could will convene on Tuesday, December 19, 1. Status of the 5-year research plan result in the Department’s presumption 2012 from 9 a.m. to 5 p.m., and the 2. Next steps that reimbursement of antidumping Administrative Committee will meet 3. Timeline for completion of the duties has occurred and the subsequent from 5:15 p.m. to 6 p.m. The Council research plan

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• Island Specific FMP before this group for discussion, those FOR FURTHER INFORMATION CONTACT: Ms. 1. Environmental assessment for shift issues may not be subjects for formal Kelly Ames, Staff Officer, Pacific in management from species based action during these meetings. Actions Council: (503) 820–2280. to island based management will be restricted to those issues SUPPLEMENTARY INFORMATION: The 2. Island specific scoping documents specifically identified in this notice, and overarching goals of the Workgroup 3. Island Specific fishery management any issues arising after publication of meeting are to explore the best methods plan draft outline this notice that require emergency for incorporating the area south of the 4. Scheduling of scoping hearings action under section 305(c) of the Oregon/California border into the 5. Timeline for completion of new Magnuson-Stevens Fishery International Pacific Halibut island-specific FMPs Conservation and Management Act, Commission’s (IPHC) Pacific halibut Public Comment Period (5-minutes provided that the public has been stock assessment, examine the effect of presentations) notified of the Council’s intent to take including that area on the Area 2A December 19, 2012, 5:15 p.m.–6 p.m. final action to address the emergency. apportionment, and evaluate methods to manage the fishery south of Humbug • Administrative Committee Meeting Special Accommodations • Mountain to comply with allocation Budget 2012/13/14 These meetings are physically provisions of the Catch Sharing Plan —SSC/AP Membership accessible to people with disabilities. and the overall total allowable catch —Other Business For more information or request for sign apportioned to Area 2A. No December 20, 2012, 9 a.m.–5 p.m. language interpretation and/other management actions will be decided by auxiliary aids, please contact Mr. the Workgroup. The Workgroup’s task • Endangered Species Act Procedures: Miguel A. Rolo´n, Executive Director, will be to develop recommendations for Updates on Queen Conch, Corals Caribbean Fishery Management Council, IPHC and Council consideration in and Nassau Groupers 268 Mun˜ oz Rivera Avenue, Suite 1108, • CITES: Queen Conch Status—Nancy 2013. San Juan, Puerto Rico 00918–1920, Although non-emergency issues not Daves telephone: (787) 766–5926, at least 5 contained in the meeting agenda may • Queen Conch Compatibility Issues days prior to the meeting date. come before the Workgroup for with USVI discussion, those issues may not be the —Discussion of Management Options Dated: November 20, 2012. subject of formal Workgroup action • Outreach and Education Panel Tracey L. Thompson, during this meeting. Workgroup action Report—Alida Ortı´z Acting Deputy Director, Office of Sustainable —Report of the new CFMC Web site Fisheries, National Marine Fisheries Service. will be restricted to those issues • NMFS Outreach and Education [FR Doc. 2012–28552 Filed 11–23–12; 8:45 am] specifically listed in this notice and any issues arising after publication of this Projects—Lee Carrubba BILLING CODE 3510–22–P • Trap Reduction Spiny Lobster notice that require emergency action Report—Anthony Iarocci under section 305(c) of the Magnuson- • STFA Updates on Lobster and Traps DEPARTMENT OF COMMERCE Stevens Fishery Conservation and Projects, among others Management Act, provided the public • Enforcement Reports National Oceanic and Atmospheric has been notified of the Workgroup’s —Puerto Rico—DNER Administration intent to take final action to address the emergency. —U.S. Virgin Islands—DPNR RIN 0648–XC364 —NOAA/NMFS Special Accommodations —U.S. Coast Guard Pacific Fishery Management Council; This meeting is physically accessible • Administrative Committee Public Meeting to people with disabilities. Requests for Recommendations AGENCY: • Meetings Attended by Council National Marine Fisheries sign language interpretation or other Members and Staff Service (NMFS), National Oceanic and auxiliary aids should be directed to Mr. Public Comment Period (5-minute Atmospheric Administration (NOAA), Kris Kleinschmidt at (503) 820–2280 at presentations) Commerce. least 5 days prior to the meeting date. • Other Business ACTION: Notice of public meeting. Dated: November 20, 2012. • Next Council Meeting Tracey L. Thompson, SUMMARY: The Pacific Fishery The established times for addressing Management Council’s (Pacific Council) Acting Deputy Director, Office of Sustainable items on the agenda may be adjusted as Fisheries, National Marine Fisheries Service. South of Humbug Policy Workgroup necessary to accommodate the timely (Workgroup) for Pacific halibut will [FR Doc. 2012–28553 Filed 11–23–12; 8:45 am] completion of discussion relevant to the hold a working meeting, which is open BILLING CODE 3510–22–P agenda items. To further accommodate to the public. discussion and completion of all items DATES: The Workgroup meeting will be on the agenda, the meeting may be COMMODITY FUTURES TRADING held Thursday, December 13, 2012 from extended from, or completed prior to COMMISSION the date established in this notice. 10 a.m. until business for the day is The meetings are open to the public, completed. Sunshine Act Meetings and will be conducted in English. ADDRESSES: The meeting will be held at Simultaneous Interpretation (English/ the Pacific Council Office, Large AGENCY HOLDING THE MEETING: Spanish) will be provided. Fishers and Conference Room, 7700 NE Ambassador Commodity Futures Trading other interested persons are invited to Place, Suite 101, Portland, OR 97220– Commission. attend and participate with oral or 1384; telephone: (503) 820–2280. TIME AND DATE: 10:00 a.m., Friday written statements regarding agenda Council address: Pacific Fishery December 7, 2012. issues. Management Council, 7700 NE PLACE: 1155 21st St. NW., Washington, Although non-emergency issues not Ambassador Place, Suite 101, Portland, DC, 9th Floor Commission Conference contained in this agenda may come OR 97220–1384. Room.

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STATUS: Closed. the new time and place of the meeting agenda for this meeting is available to MATTERS TO BE CONSIDERED: Surveillance will be posted on the Commission’s the public and posted on the and Enforcement Matters. In the event Web site at http://www.cftc.gov Commission’s Web site at http:// that the times or dates of these or any CONTACT PERSON FOR MORE INFORMATION: www.cftc.gov. In the event that the time future meetings change, an Sauntia S. Warfield, 202–418–5084. or date of the meeting changes, an announcement of the change, along with announcement of the change, along with the new time and place of the meeting Sauntia Warfield, the new time and place of the meeting will be posted on the Commission’s Assistant Secretary of the Commission. will be posted on the Commission’s Web site at http://www.cftc.gov [FR Doc. 2012–28706 Filed 11–21–12; 4:15 pm] Web site. CONTACT PERSON FOR MORE INFORMATION: BILLING CODE 6351–01–P CONTACT PERSON FOR MORE INFORMATION: Sauntia S. Warfield, 202–418–5084. Sauntia S. Warfield, Assistant Secretary of the Commission, 202–418–5084. Sauntia Warfield, COMMODITY FUTURES TRADING Assistant Secretary of the Commission. COMMISSION Sauntia S. Warfield, [FR Doc. 2012–28704 Filed 11–21–12; 4:15 pm] Assistant Secretary of the Commission. Sunshine Act Meetings BILLING CODE 6351–01–P [FR Doc. 2012–28703 Filed 11–21–12; 4:15 pm] AGENCY HOLDING THE MEETING: BILLING CODE 6351–01–P Commodity Futures Trading COMMODITY FUTURES TRADING Commission COMMISSION TIME AND DATE: 10:00 a.m., Friday DEPARTMENT OF DEFENSE Sunshine Act Meetings December 28, 2012 PLACE: 1155 21st St. NW., Washington, Department of the Air Force AGENCY HOLDING THE MEETINGS: DC, 9th Floor Commission Conference Commodity Futures Trading Room GPS Satellite Simulator Control Commission. Working Group Meeting STATUS: Closed TIME AND DATE: 10:00 a.m., Friday MATTERS TO BE CONSIDERED: Surveillance AGENCY: Space and Missile Systems December 14, 2012. and Enforcement Matters. In the event Center, Global Positioning Systems PLACE: 1155 21st St. NW., Washington, that the times or dates of these or any (GPS) Directorate, Department of the Air DC, 9th Floor Commission Conference future meetings change, an Force, DoD. Room. announcement of the change, along with ACTION: Meeting Notice. STATUS: Closed. the new time and place of the meeting SUMMARY: This meeting notice is to MATTERS TO BE CONSIDERED: Surveillance will be posted on the Commission’s inform GPS simulator manufacturers, and Enforcement Matters. In the event Web site at http://www.cftc.gov who supply products to the Department that the times or dates of these or any Contact Person for More Information: of Defense (DoD), and GPS simulator future meetings change, an Sauntia S. Warfield, 202–418–5084. users, both government and DoD announcement of the change, along with contractors, that the GPS Directorate Sauntia Warfield, the new time and place of the meeting will host a GPS Satellite Simulator will be posted on the Commission’s Assistant Secretary of the Commission. Control Working Group (SSCWG) Web site at http://www.cftc.gov [FR Doc. 2012–28708 Filed 11–21–12; 4:15 pm] meeting on 14 December 2012 from FOR MORE INFORMATION CONTACT: Sauntia BILLING CODE 6351–01–P 0900–1600 PST at Los Angeles Air S. Warfield, 202–418–5084. Force Base. The purpose of this meeting is to COMMODITY FUTURES TRADING Sauntia Warfield, disseminate information about GPS COMMISSION Assistant Secretary of the Commission. simulators, discuss current and on-going [FR Doc. 2012–28705 Filed 11–21–12; 4:15 pm] Sunshine Act Meeting efforts related to GPS simulators, and to BILLING CODE 6351–01–P discuss future GPS simulator The following notice of a scheduled development. This event will be meeting is published pursuant to the conducted as a classified meeting. COMMODITY FUTURES TRADING provisions of the Government in the COMMISSION FOR FURTHER INFORMATION CONTACT: We Sunshine Act, Public Law 94–409, 5 request that you register for this event U.S.C. 552b. Sunshine Act Meetings no later than 10 December 2012. Please AGENCY HOLDING THE MEETING: send your registration (name, AGENCY HOLDING THE MEETINGS: Commodity Futures Trading organization, phone number and email Commodity Futures Trading Commission. address) to [email protected] Commission. TIMES AND DATES: The Commission has and have your security personnel TIME AND DATE: 10:00 a.m., Friday scheduled a meeting for the following submit your VAR through JPAS. SMO December 21, 2012. date: November 29, 2012 at 11:00 a.m. Code: GPSD and POC: Lt Wayne Urubio, PLACE: 1155 21st St. NW., Washington, PLACE: Three Lafayette Center, 1155 21st 310–653–4603. Please visit http:// DC, 9th Floor Commission Conference St. NW., Washington, DC, Lobby Level www.gps.gov/technical/sscwg/ for Room. Hearing Room (Room 1300). information regarding an address and a draft agenda. STATUS: Closed. STATUS: Open. MATTERS TO BE CONSIDERED: Surveillance MATTERS TO BE CONSIDERED: The Henry Williams Jr, and Enforcement Matters. In the event Commission has scheduled this meeting DAF, Acting Air Force Federal Register that the times or dates of these or any to consider various rulemaking matters, Liaison Officer. future meetings change, an including the issuance of proposed rules [FR Doc. 2012–28550 Filed 11–23–12; 8:45 am] announcement of the change, along with and the approval of final rules. The BILLING CODE 5001–10–P

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DEPARTMENT OF EDUCATION (3) is the estimate of burden accurate; DEPARTMENT OF EDUCATION (4) how might the Department enhance [Docket No.: ED–2012–ICCD–0059] [Docket No.: ED–2012–ICCD–0058] the quality, utility, and clarity of the Agency Information Collection information to be collected; and (5) how Agency Information Collection Activities; Comment Request; might the Department minimize the Activities; Submission to the Office of Mathematics and Science Partnerships burden of this collection on the Management and Budget for Review Program: Annual Performance Report respondents, including through the use and Approval; Comment Request; of information technology. Please note William D. Ford Federal Direct Loan AGENCY: Office of Elementary and that written comments received in Program (DL) Regulations— Secondary Education (OESE), response to this notice will be Servicemembers Civil Relief Act Department of Education (ED). considered public records. (SCRA) ACTION: Notice. Title of Collection: Mathematics and Science Partnerships Program: Annual AGENCY: Department of Education (ED), SUMMARY: In accordance with the Performance Report. Federal Student Aid (FSA) Paperwork Reduction Act of 1995 (44 OMB Control Number: 1810–0669. ACTION: Notice. U.S.C. chapter 3501 et seq.), ED is Type of Review: Revision of an proposing a revision of an existing existing information collection. SUMMARY: In accordance with the information collection. Respondents/Affected Public: State, Paperwork Reduction Act of 1995, ED is DATES: Interested persons are invited to Local, or Tribal Governments. proposing an extension of an existing submit comments on or before January Total Estimated Number of Annual information collection. 25, 2013. Responses: 600. DATES: Interested persons are invited to ADDRESSES: Comments submitted in Total Estimated Number of Annual submit comments on or before response to this notice should be Burden Hours: 7,800. December 26, 2012. submitted electronically through the Abstract: The Mathematics and ADDRESSES: Comments submitted in Federal eRulemaking Portal at http:// Science Partnerships (MSP) program is response to this notice should be www.regulations.gov by selecting a formula grant program to the States in submitted electronically through the Docket ID number ED–2012–ICCD–0059 which states make competitive awards Federal eRulemaking Portal at http:// or via postal mail, commercial delivery, to projects. The authorizing legislation, www.regulations.gov by selecting or hand delivery. Please note that Title II, Part B, Section 2202 (f) of the Docket ID number ED–2012–ICCD–0058 comments submitted by fax or email Elementary and Secondary Education or via postal mail, commercial delivery, and those submitted after the comment Act of 1965 as amended by the No Child or hand delivery. Please note that period will not be accepted. Written Left Behind Act of 2001, requires all comments submitted by fax or email requests for information or comments locally funded projects to report and those submitted after the comment submitted by postal mail or delivery annually to the Secretary documenting period will not be accepted. Written should be addressed to the Director of progress towards goals and objectives. requests for information or comments the Information Collection Clearance The Annual Performance Report (APR) submitted by postal mail or delivery Division, U.S. Department of Education, is an online reporting tool. Annual should be addressed to the Director of 400 Maryland Avenue SW., LBJ, Room reporting requirements include impact the Information Collection Clearance 2E117, Washington, DC 20202–4537. on increasing teacher learning and Division, U.S. Department of Education, FOR FURTHER INFORMATION CONTACT: student achievement; standard 400 Maryland Avenue SW., LBJ, Room Electronically mail descriptive information on the MSP 2E117, Washington, DC 20202–4537. [email protected]. Please do not projects; the professional development FOR FURTHER INFORMATION CONTACT: send comments here. participants; the professional Electronically mail development models, content, and SUPPLEMENTARY INFORMATION: The [email protected]. Please do not processes; the evaluation plans; and Department of Education (ED), in send comments here. lessons learned. By structuring the accordance with the Paperwork SUPPLEMENTARY INFORMATION: The reporting so that all MSPs are required Reduction Act of 1995 (PRA) (44 U.S.C. Department of Education (ED), in to provide standardized data, the 3506(c)(2)(A)), provides the general accordance with the Paperwork program office is better able to examine public and Federal agencies with an Reduction Act of 1995 (PRA) (44 U.S.C. outcomes across funded partnerships. opportunity to comment on proposed, 3506(c)(2)(A)), provides the general The primary objective of the proposed revised, and continuing collections of public and Federal agencies with an revision is to reduce burden on information. This helps the Department opportunity to comment on proposed, reporting entities while ensuring that assess the impact of its information revised, and continuing collections of needed data continue to be collected. collection requirements and minimize information. This helps the Department Proposed revisions include removing the public’s reporting burden. It also assess the impact of its information items that duplicate information, helps the public understand the collection requirements and minimize condensing sections of the APR that Department’s information collection the public’s reporting burden. It also require substantial project burden to requirements and provide the requested helps the public understand the complete, and clarifying reporting data in the desired format. ED is Department’s information collection instructions to improve quality of soliciting comments on the proposed requirements and provide the requested responses. information collection request (ICR) that data in the desired format. ED is is described below. The Department of Dated: November 20, 2012. soliciting comments on the proposed Education is especially interested in Darrin A. King, information collection request (ICR) that public comment addressing the Director, Information Collection Clearance is described below. The Department of following issues: (1) Is this collection Division, Privacy, Information and Records Education is especially interested in necessary to the proper functions of the Management Services, Office of Management. public comment addressing the Department; (2) will this information be [FR Doc. 2012–28619 Filed 11–23–12; 8:45 am] following issues: (1) Is this collection processed and used in a timely manner; BILLING CODE 4000–01–P necessary to the proper functions of the

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Department; (2) will this information be 463; 86 Stat. 770) requires that public DEPARTMENT OF ENERGY processed and used in a timely manner; notice of these meetings be announced (3) is the estimate of burden accurate; in the Federal Register. Federal Energy Regulatory (4) how might the Department enhance Commission DATES: Thursday, December 20, 2012; the quality, utility, and clarity of the [Project Nos. 2710–061; 2712–078] information to be collected; and (5) how 3:30 p.m.–4:00 p.m. (EST). might the Department minimize the FOR FURTHER INFORMATION CONTACT: To Black Bear Hydro Partners, LLC and burden of this collection on the receive the call-in number and Black Bear Development Holdings, respondents, including through the use passcode, please contact: Gil Sperling, LLC and Black Bear SO, LLC; Notice of of information technology. Please note STEAB’s Designated Federal Officer, Application for Partial Transfer of that written comments received in U.S. Department of Energy, Office of Licenses, and Soliciting Comments response to this notice will be Energy Efficiency and Renewable and Motions To Intervene considered public records. Energy, 1000 Independence Avenue Title of Collection: William D. Ford On October 25, 2012, Black Bear SW., Washington, DC 20585. Phone Federal Direct Loan Program (DL) Hydro Partners, LLC, sole licensee number is (202) 287–1644. Regulations—Servicemembers Civil (transferor) and Black Bear Development Holdings, LLC and Black Bear SO, LLC Relief Act (SCRA). SUPPLEMENTARY INFORMATION: (transferees) filed an application for the OMB Control Number: 1845–0094. Purpose of the Board: To provide Type of Review: Extension. partial the transfer of licenses for the Respondents/Affected Public: advice and make recommendations to Orono Hydroelectric Project, FERC No. Individuals or households; Private the Assistant Secretary for the Office of 2710, and the Stillwater Hydroelectric Sector (Not-for-profit institutions); State, Energy Efficiency and Renewable Project, FERC No. 2712, both located on Local or Tribal Governments. Energy regarding goals and objectives, the Stillwater Branch of the Penobscot Total Estimated Number of Annual programmatic and administrative River in Penobscot County, Maine. Responses: 2,723. policies, and to otherwise carry out the Applicants seek Commission approval Total Estimated Number of Annual Board’s responsibilities as designated in to partially transfer the licenses for the Burden Hours: 681. the State Energy Efficiency Programs Orono and Stillwater Hydroelectric Abstract: Upon a loan holder’s receipt Improvement Act of 1990 (Pub. L. 101– Projects from the transferor as sole of a written request from a borrower and 440). licensee to the transferor and transferees as co-licensees. a copy of the borrower’s military orders, Tentative Agenda: Receive an update the regulations at 34 CFR 685.202 Applicants’ Contact: Ms. Christine on the activities of the STEAB’s Task provide that the maximum interest rate Miller, Esq., Black Bear Hydro Partners, Forces, review the activities of the (as defined in 50 U.S.C. 527, App. LLC, Black Bear Development Holdings, newly formed STEAB Strategic Planning Section 207 (d)) that may be charged on LLC, Black Bear SO, LLC, c/o ArcLight Federal Family Education Loan Program Subcommittee, and provide an update Capital Partners, LLC, 200 Clarendon loans made prior to the borrower to the Board on routine business matters Street, Boston, MA 02117, Phone (617) entering active duty status is six percent and other topics of interest, and follow- 531–6338 and Ms. Margaret A. Moore, while the borrower is on active duty up on activities of the Weatherization Ms. Jessica C. Friedman, and Ms. Julia status. This request is for an extension Taskforce’s meeting at DOE. S. Wood, Van Ness Feldman, LLP, 1050 of the approved recordkeeping Public Participation: The meeting is Thomas Jefferson St. NW., Washington, requirements contained in the open to the public. Written statements DC 20007–3877, Phone (202) 298–1800. FERC Contact: Patricia W. Gillis (202) regulations related to the administrative may be filed with the Board either 502–8735, [email protected]. requirements of the Direct Loan before or after the meeting. Members of Program. Deadline for filing comments and the public who wish to make oral motions to intervene: 15 days from the Dated: November 20, 2012. statements pertaining to agenda items issuance of this notice by the Darrin A. King, should contact Gil Sperling at the Commission. Comments and motions to Director, Information Collection Clearance address or telephone number listed intervene may be filed electronically via Division, Privacy, Information and Records above. Requests to make oral comments the Internet. See 18 CFR 385.2001(a)(1) Management Services, Office of Management. must be received five days prior to the and the instructions on the [FR Doc. 2012–28620 Filed 11–23–12; 8:45 am] meeting; reasonable provisions will be Commission’s Web site under http:// BILLING CODE 4000–01–P made to include requested topic(s) on www.ferc.gov/docs-filing/efiling.asp. the agenda. The Chair of the Board is Commenters can submit brief comments empowered to conduct the meeting in a up to 6,000 characters, without prior DEPARTMENT OF ENERGY fashion that will facilitate the orderly registration, using the eComment system conduct of business. at http://www.ferc.gov/docs-filing/ Energy Efficiency and Renewable Minutes: The minutes of the meeting ecomment.asp. You must include your Energy name and contact information at the end will be available for public review and of your comments. If unable to be filed copying within 60 days on the STEAB State Energy Advisory Board (STEAB) electronically, documents may be paper- Web site at: www.steab.org. AGENCY: Energy Efficiency and filed. To paper-file, an original plus Renewable Energy, Department of Issued at Washington, DC, on November seven copies should be mailed to: Energy. 19, 2012. Kimberly D. Bose, Secretary, Federal ACTION: Notice of Open Teleconference. LaTanya R. Butler, Energy Regulatory Commission, 888 Deputy Committee Management Officer. First Street NE., Washington, DC 20426. SUMMARY : This notice announces a [FR Doc. 2012–28568 Filed 11–23–12; 8:45 am] More information about this project can teleconference call of the State Energy be viewed or printed on the eLibrary Advisory Board (STEAB). The Federal BILLING CODE 6450–01–P link of Commission’s Web site at http:// Advisory Committee Act (Pub. L. 92– www.ferc.gov/docs-filing/elibrary.asp.

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Enter the docket number (P–2710 or P– Please include the project numbers Commission’s Rules may become a 2712) in the docket number field to (P–1121–112) on any comments, party to the proceeding. Any comments, access the document. For assistance, motions, or protests filed. protests, or motions to intervene must call toll-free 1–866–208–3372. k. Description of Request: Pacific Gas be received on or before the specified Dated: November 16, 2012. and Electric Company (licensee) is comment date for the particular proposing to change the design of an Kimberly D. Bose, application. unconstructed fish barrier structure in o. Filing and Service of Responsive Secretary. Baldwin Creek, from what was Documents: Any filing must (1) Bear in [FR Doc. 2012–28467 Filed 11–23–12; 8:45 am] previously approved by Commission all capital letters the title BILLING CODE 6717–01–P Order issued August 25, 2009. Rather ‘‘COMMENTS’’, ‘‘PROTEST’’, or than locating the barrier on top of the ‘‘MOTION TO INTERVENE’’ as Asbury Diversion Dam, the barrier applicable; (2) set forth in the heading DEPARTMENT OF ENERGY would be located approximately 500 the name of the applicant and the feet downstream of the diversion dam. Federal Energy Regulatory project number of the application to The fish barrier would be a reinforced Commission which the filing responds; (3) furnish concrete overflow weir structure the name, address, and telephone [Project No. 1121–112] approximately 10 feet tall and 45 feet number of the person protesting or wide, which would include: an upper intervening; and (4) otherwise comply Pacific Gas and Electric Company; barrier weir with a 2-foot long metal with the requirements of 18 CFR Notice of Application Accepted for overhanging cap, a 14-foot-long elevated 385.2001 through 385.2005. All Filing, Soliciting Comments, Motions jump apron with a 4-foot over hang, a comments, motions to intervene, or To Intervene, and Protests 20-foot-long smooth apron, and a lower protests must set forth their evidentiary 60-foot-long rough apron. The purpose Take notice that the following basis and otherwise comply with the of the barrier is to prevent steelhead hydroelectric application has been filed requirements of 18 CFR 4.34(b). All migrations above the Asbury Dam to with the Commission and is available comments, motions to intervene, or protect the Darrah Springs State Fish for public inspection: protests should relate to project works Hatchery from diseases carried by a. Type of Application: Amendment which are the subject of the license migrating fish. The licensee is also amendment. Agencies may obtain of License. proposing to revise the project boundary b. Project No.: 1121–112. copies of the application directly from to incorporate the barrier and an access the applicant. A copy of any protest or c. Date Filed: November 13, 2012. road. d. Applicant: Pacific Gas and Electric motion to intervene must be served l. Locations of the Application: A upon each representative of the Company. copy of the application is available for applicant specified in the particular e. Name of Project: Battle Creek. inspection and reproduction at the application. If an intervener files f. Location: On the mainstem Battle Commission’s Public Reference Room, comments or documents with the Creek, and on the North Fork and South located at 888 First Street, NE., Room Commission relating to the merits of an Fork Battle Creek in Shasta and Tehama 2A, Washington, DC 20426, or by calling issue that may affect the responsibilities Counties, California. (202) 502–8371. This filing may also be of a particular resource agency, they g. Filed Pursuant to: Federal Power viewed on the Commission’s Web site at must also serve a copy of the document Act, 16 U.S.C. 791a–825r. http://www.ferc.gov/docs-filing/ on that resource agency. A copy of all h. Applicant Contact: Ms. Elisabeth elibrary.asp. Enter the docket number other filings in reference to this Rossi, License Coordinator, Pacific Gas excluding the last three digits in the and Electric Company, 245 Market docket number field to access the application must be accompanied by Street, San Francisco, CA 94105. Tel: document. You may also register online proof of service on all persons listed in (415) 973–2032. at http://www.ferc.gov/docs-filing/ the service list prepared by the i. FERC Contact: Ms. Andrea Claros, esubscription.asp to be notified via Commission in this proceeding, in (202) 502–8171, [email protected]. email of new filings and issuances accordance with 18 CFR 4.34(b) and j. Deadline for filing comments, related to this or other pending projects. 385.2010. motions to intervene, and protests, is 30 For assistance, call 1–866–208–3676 or Dated: November 15, 2012. days from the issuance date of this email [email protected], for Kimberly D. Bose, notice. All documents may be filed TTY, call (202) 502–8659. A copy is also Secretary. electronically via the Internet. See, 18 available for inspection and [FR Doc. 2012–28466 Filed 11–23–12; 8:45 am] CFR 385.2001(a)(1)(iii) and the reproduction at the address in item (h) BILLING CODE 6717–01–P instructions on the Commission’s web above. site at http://www.ferc.gov/docs-filing/ m. Individuals desiring to be included efiling.asp. If unable to be filed on the Commission’s mailing list should DEPARTMENT OF ENERGY electronically, documents may be paper- so indicate by writing to the Secretary filed. To paper-file, an original and of the Commission. Federal Energy Regulatory seven copies should be mailed to: The n. Comments, Protests, or Motions to Commission Secretary, Federal Energy Regulatory Intervene: Anyone may submit Commission, 888 First Street NE., comments, a protest, or a motion to [Docket No. CP13–13–000] Washington, DC 20426. Commenters intervene in accordance with the Dominion Transmission, Inc.; Notice of can submit brief comments up to 6,000 requirements of Rules of Practice and Application characters, without prior registration, Procedure, 18 CFR 385.210, .211, .214. using the eComment system at http:// In determining the appropriate action to Take notice that on November 1, www.ferc.gov/docs-filing/ take, the Commission will consider all 2012, Dominion Transmission, Inc. ecomment.asp. You must include your protests or other comments filed, but (DTI), 120 Tredegar Street, Richmond, name and contact information at the end only those who file a motion to VA 23219, filed in the above referenced of your comments. intervene in accordance with the docket an abbreviated application

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pursuant to section 7(c) of the Natural possible, an original and two copies of DEPARTMENT OF ENERGY Gas Act (NGA) for authorization to comments in support of or in opposition construct, install, own, operate and to this project. The Commission will Federal Energy Regulatory maintain its Natrium to Market Project consider these comments in Commission (Project) located in Greene and determining the appropriate action to be [ Project No. 13946–001] Westmoreland Counties, Pennsylvania. taken, but the filing of a comment alone Specifically, DTI will provide 185,000 will not serve to make the filer a party Tarrant Regional Water District; Notice dekatherms per day (Dth/d) of firm to the proceeding. The Commission’s of Application for Amendment of transportation service from a receipt rules require that persons filing Exemption and Soliciting Comments, point located at an interconnect comments in opposition to the project Motions To Intervene, and Protests between DTI and the processing provide copies of their protests only to facilities of Dominion Natrium, LLC in the party or parties directly involved in Take notice that the following Marshall County, West Virginia to an the protest. hydroelectric application has been filed with the Commission and is available interconnect between DTI and Texas Persons who wish to comment only Eastern Transmission, LP in Greene for public inspection: on the environmental review of this a. Application Type: Amendment of County, Pennsylvania, all as more fully project should submit an original and set forth in the application which is on Exemption. two copies of their comments to the b. Project No.: P–13946–001. file with the Commission and open to Secretary of the Commission. c. Date Filed: October 26, 2012. public inspection. The filing is available Environmental commentors will be d. Applicant: Tarrant Regional Water for review at the Commission in the placed on the Commission’s District. Public Reference Room or may be environmental mailing list, will receive e. Name of Project: Arlington Outlet viewed on the Commission’s Web site copies of the environmental documents, Hydroelectric Project. web at http://www.ferc.gov using the and will be notified of meetings f. Location: The Arlington Outlet ‘‘eLibrary’’ link. Enter the docket associated with the Commission’s Hydroelectric Project is located at the number excluding the last three digits in environmental review process. Arlington Outlet Discharge Facility, a the docket number field to access the Environmental commentors will not be flow control facility in Tarrant Regional document. For assistance, contact FERC required to serve copies of filed Water District’s water distribution at [email protected] or call documents on all other parties. system located in Tarrant County, toll-free, (886) 208–3676 or TYY, (202) However, the non-party commentors Texas. The project does not affect 502–8659. will not receive copies of all documents federal lands. Any questions concerning this filed by other parties or issued by the g. Filed Pursuant to: Federal Power application may be directed to Brad A. Commission (except for the mailing of Act, 16 U.S.C. 791(a)–825(r). Knisley, Regulatory and Certificates environmental documents issued by the h. Applicant Contact: Dena Wiggins, Analyst III, Dominion Transmission, Commission) and will not have the right Partner, Ballard Spahr LLP, 1909 K Inc., 701 East Cary Street, Richmond, to seek court review of the Street NW., 12th Floor, Washington, DC, VA 23219, telephone no. (804) 771– Commission’s final order. 20006; Telephone: (202) 661–2225. 4412, facsimile no. (804) 771–4804 and i. FERC Contact: Any questions on email: [email protected]. The Commission strongly encourages this notice should be addressed to There are two ways to become electronic filings of comments, protests Christopher Chaney, Telephone (202) involved in the Commission’s review of and interventions in lieu of paper using 502–6778 or this project. First, any person wishing to the ‘‘eFiling’’ link at http:// [email protected]. obtain legal status by becoming a party www.ferc.gov. Persons unable to file j. Deadline for filing comments, to the proceedings for this project electronically should submit an original motions to intervene, and protests: 30 should, on or before the comment date and 7 copies of the protest or days from the issuance date of this stated below file with the Federal intervention to the Federal Energy notice. Energy Regulatory Commission, 888 Regulatory Commission, 888 First Comments, protests, and First Street, NE., Washington, DC 20426, Street, NE., Washington, DC 20426. interventions may be filed electronically a motion to intervene in accordance This filing is accessible on-line at via the Internet in lieu of paper. See 18 with the requirements of the http://www.ferc.gov, using the CFR 385.2001(a)(1)(iii) and the Commission’s Rules of Practice and ‘‘eLibrary’’ link and is available for instructions on the Commission’s Web Procedure (18 CFR 385.214 or 385.211) review in the Commission’s Public site (http://www.ferc.gov/docs-filing/ and the Regulations under the NGA (18 Reference Room in Washington, DC. efiling.asp). Commenters can submit CFR 157.10). A person obtaining party There is an ‘‘eSubscription’’ link on the brief comments up to 6,000 characters, status will be placed on the service list Web site that enables subscribers to without prior registration, using the maintained by the Secretary of the receive email notification when a eComment system (http://www.ferc.gov/ Commission and will receive copies of document is added to a subscribed docs-filing/ecomment.asp) and must all documents filed by the applicant and docket(s). For assistance with any FERC include name and contact information by all other parties. A party must submit Online service, please email at the end of comments. The 7 copies of filings made in the [email protected], or call Commission strongly encourages proceeding with the Commission and (866) 208–3676 (toll free). For TTY, call electronic filings. must mail a copy to the applicant and (202) 502–8659. All documents (original and seven to every other party. Only parties to the Comment Date: 5:00 p.m. Eastern copies) filed by paper should be sent to: proceeding can ask for court review of Time on December 6, 2012. Secretary, Federal Energy Regulatory Commission orders in the proceeding. Commission, 888 First Street NE., Dated: November 15, 2012. However, a person does not have to Washington, DC 20426. Please include intervene in order to have comments Kimberly D. Bose, the project number (P–13946–001) on considered. The second way to Secretary. any comments or motions filed. participate is by filing with the [FR Doc. 2012–28469 Filed 11–23–12; 8:45 am] The Commission’s Rules of Practice Secretary of the Commission, as soon as BILLING CODE 6717–01–P and Procedure require all interveners

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filing documents with the Commission only those who file a motion to DEPARTMENT OF ENERGY to serve a copy of that document on intervene in accordance with the each person whose name appears on the Commission’s Rules may become a Federal Energy Regulatory official service list for the project. party to the proceeding. Any comments, Commission Further, if an intervener files comments protests, or motions to intervene must Combined Notice of Filings or documents with the Commission be received on or before the specified relating to the merits of an issue that comment date for the particular Take notice that the Commission has may affect the responsibilities of a application. received the following Natural Gas particular resource agency, they must Pipeline Rate and Refund Report filings: also serve a copy of the document on o. Any filings must bear in all capital that resource agency. A copy of any letters the title ‘‘COMMENTS’’, Filings Instituting Proceedings motion to intervene must also be served ‘‘PROTEST’’, or ‘‘MOTION TO upon each representative of the INTERVENE’’, as applicable, and the Docket Numbers: RP13–283–000. Applicant specified in the particular Project Number of the particular Applicants: East Tennessee Natural application. application to which the filing refers. Gas, LLC. Description: Contracting Process k. Description of Application: The p. Agency Comments: Federal, state, exemptee proposes to amend the site Nov2012 Filing to be effective 1/1/2013. and local agencies are invited to file Filed Date: 11/15/12. and powerhouse arrangements and the comments on the described application. installed capacity based on the project’s Accession Number: 20121115–5076. A copy of the application may be final design. Under the proposed Comments Due: 5 p.m. ET 11/27/12. amendment, the powerhouse footprint obtained by agencies directly from the Docket Numbers: RP13–284–000. would increase from 39 feet by 42 feet Applicant. If an agency does not file Applicants: Maritimes & Northeast to 46 feet by 46 feet, the powerhouse comments within the time specified for Pipeline, L.L.C. would be constructed approximately 40 filing comments, it will be presumed to Description: Contracting Processes feet to the northwest, the discharge pipe have no comments. One copy of an Nov2012 Filing to be effective 1/1/2013. would be relocated from the south side agency’s comments must also be sent to Filed Date: 11/15/12. to the east side of the powerhouse, and the Applicant’s representatives. Accession Number: 20121115–5082. Comments Due: 5 p.m. ET 11/27/12. the authorized installed capacity would Dated: November 16, 2012. increase from 1,300 kilowatts (kW) to Docket Numbers: RP13–285–000. Kimberly D. Bose, 1,350 kW. No change in project Applicants: Ozark Gas Transmission, operation is proposed. Secretary. L.L.C. l. Locations of the Application: A [FR Doc. 2012–28468 Filed 11–23–12; 8:45 am] Description: Contracting Processes copy of the application is available for BILLING CODE 6717–01–P Nov2012 Filing to be effective 1/1/2013. inspection and reproduction at the Filed Date: 11/15/12. Commission’s Public Reference Room, Accession Number: 20121115–5083. located at 888 First Street, NE., Room DEPARTMENT OF ENERGY Comments Due: 5 p.m. ET 11/27/12. 2A, Washington, DC 20426, or by calling Docket Numbers: RP13–286–000. (202) 502–8371. This filing may also be Federal Energy Regulatory Applicants: Discovery Gas viewed on the Commission’s Web site Commission Transmission L.L.C. using the ‘‘eLibrary’’ link at http:// Description: 2013 HMRE Filing to be elibrary.ferc.gov/idmws/search/ [Project No. 12690–005] effective 1/1/2013. fercgensearch.asp. Enter the docket Filed Date: 11/15/12. number excluding the last three digits Public Utility District No. 1 of Accession Number: 20121115–5085. (P–13946) in the docket number field to Snohomish County, Washington; Comments Due: 5 p.m. ET 11/27/12. access the document. You may also Notice of Revised Procedural Schedule Docket Numbers: RP13–287–000. register online at http://www.ferc.gov/ for Processing the License Application Applicants: Saltville Gas Storage docs-filing/esubscription.asp to be Company L.L.C. notified via email of new filings and Based on the information in the Description: Contracting Processes issuances related to this or other record now, the Commission will Nov2012 Filing to be effective 1/1/2013. pending projects. For assistance, call 1– continue processing the license Filed Date: 11/15/12. 866–208–3676 or email application for the Admiralty Inlet Pilot Accession Number: 20121115–5089. Comments Due: 5 p.m. ET 11/27/12. [email protected], for TTY, Tidal Project according to the schedule call (202) 502–8659. A copy is also below. Revisions to the schedule may be Docket Numbers: RP13–288–000. Applicants: Egan Hub Storage, LLC. available for inspection and made as appropriate. reproduction at the address in item (h) Description: Contracting Processes Nov2012 Filing to be effective 1/1/2013. above. Milestone Target date m. Individuals desiring to be included Filed Date: 11/15/12. on the Commission’s mailing list should Commission issues January 18, 2013. Accession Number: 20121115–5092. so indicate by writing to the Secretary non-draft EA. Comments Due: 5 p.m. ET 11/27/12. of the Commission. Comments on EA due February 18, 2013. Docket Numbers: RP13–289–000. n. Comments, Protests, or Motions to Applicants: Bobcat Gas Storage. Intervene: Anyone may submit Description: Contracting Processes comments, a protest, or a motion to Dated: November 19, 2012. Nov2012 Filing to be effective 1/1/2013. intervene in accordance with the Kimberly D. Bose, Filed Date: 11/15/12. requirements of Rules of Practice and Secretary. Accession Number: 20121115–5093. Procedure, 18 CFR 385.210, .211, .214. [FR Doc. 2012–28546 Filed 11–23–12; 8:45 am] Comments Due: 5 p.m. ET 11/27/12. In determining the appropriate action to BILLING CODE 6717–01–P Docket Numbers: RP13–290–000. take, the Commission will consider all Applicants: Iroquois Gas protests or other comments filed, but Transmission System, L.P.

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Description: 11/15/12 Negotiated Filings in Existing Proceedings DEPARTMENT OF ENERGY Rates—BG Energy Merchants, LLC Docket Numbers: RP12–1070–001. (RTS) 6040–39 & -40 to be effective 12/ Federal Energy Regulatory Applicants: Midwestern Gas 1/2012. Commission Transmission Company. Filed Date: 11/15/12. Description: Negotiated Rate Non- Accession Number: 20121115–5146. Combined Notice of Filings #1 Conforming Agreement—Sequent to be Comments Due: 5 p.m. ET 11/27/12. effective 10/1/2012. Take notice that the Commission Docket Numbers: RP13–291–000. Filed Date: 11/15/12. received the following electric rate Applicants: Iroquois Gas Accession Number: 20121115–5145. filings: Transmission System, L.P. Comments Due: 5 p.m. ET 11/27/12. Docket Numbers: ER10–1285–003. Description: 11/15/12 HUB Docket Numbers: RP13–121–001. Applicants: Craven County Wood Negotiated Rates Blanket Filing 2 to be Energy Limited Partnership. Applicants: Crossroads Pipeline effective 11/15/2012. Description: Craven County Wood Company. Filed Date: 11/15/12. Energy Limited Partnership submits Description: NAESB 2.0 Compliance Accession Number: 20121115–5148. Notice of Non-Material Change in Filing to be effective 12/1/2012. Comments Due: 5 p.m. ET 11/27/12. Status. Docket Numbers: RP13–292–000. Filed Date: 11/16/12. Filed Date: 11/15/2012. Applicants: Iroquois Gas Accession Number: 20121116–5103. Accession Number: 20121115–5173. Transmission System, L.P. Comments Due: 5 p.m. ET 11/28/12. Comments Due: 5 p.m. ET 12/6/12. Description: 11/15/12 Negotiated Docket Numbers: RP13–225–001. Docket Numbers: ER12–2676–000. Rates—Barclays Bank PLC to be Applicants: Gulf South Pipeline Applicants: Piedmont Green Power, effective 12/1/2012. Company, LP. LLC. Filed Date: 11/15/12. Description: Amendment to Filing in Description: Refund Compliance Accession Number: 20121115–5149. Docket No. RP13–225–000 to be Report to be effective N/A. Comments Due: 5 p.m. ET 11/27/12. effective 11/1/2012. Filed Date: 11/16/12. Docket Numbers: RP13–293–000. Filed Date: 11/16/12. Accession Number: 20121116–5122. Applicants: Equitrans, L.P. Accession Number: 20121116–5033. Comments Due: 5 p.m. ET 12/7/12. Description: Reservation of Capacity Comments Due: 5 p.m. ET 11/28/12. Docket Numbers: ER13–388–000. for Future Service to be effective 12/15/ Docket Numbers: RP13–99–001. Applicants: Sky River LLC. 2012. Applicants: Empire Pipeline, Inc. Description: Sky River LLC and North Filed Date: 11/15/12. Description: Empire-NAESB v2 CF to Sky River Energy, LLC Shared Facilities Accession Number: 20121115–5156. be effective 12/1/2012. Agreement to be effective 11/16/2012. Comments Due: 5 p.m. ET 11/27/12. Filed Date: 11/16/12. Filed Date: 11/15/12. Docket Numbers: RP13–294–000. Accession Number: 20121116–5189. Accession Number: 20121115–5151. Applicants: Gulf South Pipeline Comments Due: 5 p.m. ET 11/28/12. Comments Due: 5 p.m. ET 12/6/12. Company, LP. Docket Numbers: RP13–97–001. Docket Numbers: ER13–390–000. Description: Create ENS Service to be Applicants: National Fuel Gas Supply Applicants: Public Service Company effective 1/1/2013. Corporation. of New Mexico. Filed Date: 11/16/12. Description: NAESB V2.0 CF to be Description: Executed Asset Purchase Accession Number: 20121116–5034. effective 12/1/2012. Agreement to be effective 1/15/2013. Comments Due: 5 p.m. ET 11/28/12. Filed Date: 11/19/12. Filed Date: 11/16/12. Docket Numbers: RP13–295–000. Accession Number: 20121119–5022. Accession Number: 20121116–5000. Applicants: Tennessee Gas Pipeline Comments Due: 5 p.m. ET 12/3/12. Comments Due: 5 p.m. ET 12/7/12. Company, L.L.C. Docket Numbers: ER13–391–000. Any person desiring to protest in any Description: Update Tariff Prior to Applicants: Pacific Gas and Electric the above proceedings must file in EP2DART Conversion Filing to be Company. accordance with Rule 211 of the effective 12/17/2012. Description: Notices of Termination Commission’s Regulations (18 CFR Filed Date: 11/16/12. for Four PG&E E&P Agreements to be 385.211) on or before 5:00 p.m. Eastern Accession Number: 20121116–5074. effective 10/24/2012. time on the specified comment date. Comments Due: 5 p.m. ET 11/28/12. Filed Date: 11/16/12. The filings are accessible in the Docket Numbers: RP13–296–000. Accession Number: 20121116–5001. Commission’s eLibrary system by Applicants: ANR Pipeline Company. Comments Due: 5 p.m. ET 12/7/12. clicking on the links or querying the Description: Remove Rate Schedule docket number. Docket Numbers: ER13–392–000. X–64 to be effective 11/1/2012. eFiling is encouraged. More detailed Applicants: M&R Energy Resources Filed Date: 11/16/12. information relating to filing Corp. Accession Number: 20121116–5165. requirements, interventions, protests, Description: Baseline New to be Comments Due: 5 p.m. ET 11/28/12. and service can be found at: http:// effective 11/16/2012. Any person desiring to intervene or www.ferc.gov/docs-filing/efiling/filing- Filed Date: 11/16/12. protest in any of the above proceedings req.pdf. For other information, call (866) Accession Number: 20121116–5003. must file in accordance with Rules 211 208–3676 (toll free). For TTY, call (202) Comments Due: 5 p.m. ET 12/7/12. and 214 of the Commission’s 502–8659. Docket Numbers: ER13–393–000. Regulations (18 CFR 385.211 and Applicants: PJM Interconnection, 385.214) on or before 5:00 p.m. Eastern Dated: November 19, 2012. L.L.C. time on the specified comment date. Nathaniel J. Davis, Sr., Description: Panther Creek ISA? Protests may be considered, but Deputy Secretary. Original Service Agreement No. 3443 to intervention is necessary to become a [FR Doc. 2012–28573 Filed 11–23–12; 8:45 am] be effective 10/19/2012. party to the proceeding. BILLING CODE 6717–01–P Filed Date: 11/16/12.

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Accession Number: 20121116–5032. Docket Numbers: ER13–401–000. Commission and is available for public Comments Due: 5 p.m. ET 12/7/12. Applicants: Southwest Power Pool, inspection: Docket Numbers: ER13–394–000. Inc. a. Application Type: Declaration of Applicants: International Description: 607R17 Westar Energy, Intention. Transmission Company. Inc. NITSA NOAS to be effective 11/1/ b. Docket No: DI13–2–000. Description: Filing of Executed 2012. c. Date Filed: November 2, 2012. Agreement in Compliance with ER12– Filed Date: 11/16/12. d. Applicant: Bar None Ranch LLC. Accession Number: 20121116–5127. e. Name of Project: Snodgrass Springs 1742 with Modification to be effective Comments Due: 5 p.m. ET 12/7/12. Micro Hydro Project. 7/10/2012. f. Location: The proposed Snodgrass Filed Date: 11/16/12. Docket Numbers: ER13–402–000. Applicants: Smoky Mountain Springs Micro Hydro Project will be Accession Number: 20121116–5046. Transmission LLC. located on Snodgrass Creek, near the Comments Due: 5 p.m. ET 12/7/12. Description: Baseline New Tariff to be town of Lava Hot Springs, Bannock Docket Numbers: ER13–395–000. effective 11/16/2012. County, Idaho, affecting T. 10 S., R. 38 Applicants: Safe Harbor Water Power Filed Date: 11/16/12. E., sec. 28, Boise Meridian. Corporation. Accession Number: 20121116–5145. g. Filed Pursuant to: Section 23(b)(1) Description: Revision to Safe Harbor Comments Due: 5 p.m. ET 12/7/12. of the Federal Power Act, 16 U.S.C. Market-Base Rate Tariff to be effective Docket Numbers: ER13–403–000. 817(b). 11/16/2012. Applicants: Smoky Mountain h. Applicant Contact: Blaine Nye, Filed Date: 11/16/12. Transmission LLC. 1200 Bay Laurel, Menlo Park, CA 94025; Accession Number: 20121116–5058. Description: Smoky Mountain telephone: (650) 326–0777; email: Comments Due: 5 p.m. ET 12/7/12. Transmission LLC submits tariff filing [email protected]. Docket Numbers: ER13–396–000. per 35.13(a)(2)(iii: OATT Filing to be i. FERC Contact: Any questions on Applicants: PJM Interconnection, effective 11/16/2012. this notice should be addressed to L.L.C. Filed Date: 11/16/12. Ashish Desai, (202) 502–8370, or Email Description: 3rd Quarter 2012 Accession Number: 20121116–5172. address: [email protected]. Updates to PJM Operating Agreement Comments Due: 5 p.m. ET 12/7/12. j. Deadline for filing comments, and RAA Membership Lists to be The filings are accessible in the protests, and/or motions is: 30 days effective 9/30/2012. Commission’s eLibrary system by from the issuance of this notice by the Filed Date: 11/16/12. clicking on the links or querying the Commission. Comments, Motions to Accession Number: 20121116–5079. docket number. Intervene, and Protests may be filed Comments Due: 5 p.m. ET 12/7/12. Any person desiring to intervene or electronically via the Internet. See 18 Docket Numbers: ER13–397–000. protest in any of the above proceedings CFR 385.2001(a)(l)(iii) and the Applicants: PJM Interconnection, must file in accordance with Rules 211 instructions on the Commission’s Web L.L.C. and 214 of the Commission’s site under the ‘‘eFiling’’ link. If unable Description: Amendments to Regulations (18 CFR 385.211 and to be filed electronically, documents Schedule 12-Appendix re RTEP 385.214) on or before 5:00 p.m. Eastern may be paper-filed. To paper-file, an approved by PJM Board Oct 16, 2012 to time on the specified comment date. original and eight copies should be be effective 2/14/2013. Protests may be considered, but mailed to: Kimberly D. Bose, Secretary, Filed Date: 11/16/12. intervention is necessary to become a Federal Energy Regulatory Commission, Accession Number: 20121116–5089. party to the proceeding. 888 First Street, NE., Washington, DC eFiling is encouraged. More detailed Comments Due: 5 p.m. ET 12/7/12. 20426. For more information on how to information relating to filing submit these types of filings, please go Docket Numbers: ER13–398–000. requirements, interventions, protests, Applicants: The Detroit Edison to the Commission’s Web site located at service, and qualifying facilities filings http://www.ferc.gov/filing- Company. can be found at: http://www.ferc.gov/ Description: The Detroit Edison comments.asp. docs-filing/efiling/filing-req.pdf. For Please include the docket number Company submits Informational Report. other information, call (866) 208–3676 (DI13–2–000) on any comments, Filed Date: 11/9/12. (toll free). For TTY, call (202) 502–8659. protests, and/or motions filed. Accession Number: 20121109–5240. k. Description of Project: The Comments Due: 5 p.m. ET 11/30/12. Dated: November 16, 2012. Nathaniel J. Davis, Sr., proposed run-of-river Snodgrass Springs Docket Numbers: ER13–399–000. Deputy Secretary. Micro Hydro Project will consist of: (1) Applicants: Southern California Water transported from three springs [FR Doc. 2012–28548 Filed 11–23–12; 8:45 am] Edison Company. into an 8-foot-by-8-foot underground Description: Notice of Cancellation of BILLING CODE 6717–01–P reservoir or cistern; (2) a buried 4-inch- Letter Agmt SCE Tehachapi Wind diameter, 200-foot-long penstock; (3) an Energy Storage Project to be effective 9/ DEPARTMENT OF ENERGY 1,800-watt Alternative Power Machine 8/2012. Model 1800 turbine/generator, to be Filed Date: 11/16/12. Federal Energy Regulatory located in a cabin; (4) a 4-inch-diameter, Accession Number: 20121116–5104. Commission 300-foot long pipe tailrace, directing the Comments Due: 5 p.m. ET 12/7/12. water into Snodgrass Creek; and (5) Docket Numbers: ER13–400–000. [Docket No. DI13–2–000] appurtenant facilities. The power Applicants: PacifiCorp. Bar None Ranch LLC; Notice of generated will be used in a local cabin. Description: BPA General Transfer Declaration of Intention and Soliciting When a Declaration of Intention is Agreement (East) to be effective 9/22/ Comments, Protests, and/or Motions filed with the Federal Energy Regulatory 2010. To Intervene Commission, the Federal Power Act Filed Date: 11/16/12. requires the Commission to investigate Accession Number: 20121116–5123. Take notice that the following and determine if the interests of Comments Due: 5 p.m. ET 12/7/12. application has been filed with the interstate or foreign commerce would be

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affected by the project. The Commission A copy of the application may be Date and time Location also determines whether or not the obtained by agencies directly from the project: (1) Would be located on a Applicant. If an agency does not file December 5, Oak Park Elementary navigable waterway; (2) would occupy comments within the time specified for 2012, 7:00 School, 1205 Queensburg or affect public lands or reservations of filing comments, it will be presumed to PM EST. Avenue, Laurel, MS, (601) the United States; (3) would utilize have no comments. One copy of an 428–5046. December 6, George County Middle surplus water or water power from a agency’s comments must also be sent to 2012, 7:00 School, 330 Church government dam; or (4) if applicable, the Applicant’s representatives. PM EST. Street, Lucedale, MS, has involved or would involve any Dated: November 16, 2012. (601) 947–3106. construction subsequent to 1935 that Kimberly D. Bose, may have increased or would increase Secretary. This notice is being sent to the the project’s head or generating Commission’s current environmental capacity, or have otherwise significantly [FR Doc. 2012–28470 Filed 11–23–12; 8:45 am] mailing list for this project. State and modified the project’s pre-1935 design BILLING CODE 6717–01–P local government representatives should or operation. DEPARTMENT OF ENERGY notify their constituents of this planned l. Locations of the Application: Copies project and encourage them to comment of this filing are on file with the Federal Energy Regulatory on their areas of concern. Commission and are available for public Commission If you are a landowner receiving this inspection. This filing may be viewed notice, a pipeline company on the web at http://www.ferc.gov using [Docket No. PF12–21–000] representative may contact you about the ‘‘eLibrary’’ link. Enter the Docket the acquisition of an easement to Gulf South Pipeline Company, LP; number excluding the last three digits in construct, operate, and maintain the Notice of Intent To Prepare an the docket number field to access the planned facilities. The company would document. You may also register online Environmental Assessment for the seek to negotiate a mutually acceptable at http://www.ferc.gov/docs-filing/ Planned Southeast Market Expansion agreement. However, if the Commission esubscription.asp to be notified via Project, Request for Comments on approves the project, that approval email of new filings and issuances Environmental Issues, and Notice of conveys with it the right of eminent related to this or other pending projects. Public Scoping Meetings domain. Therefore, if easement For assistance, call 1–866–208–3676 or The staff of the Federal Energy negotiations fail to produce an email [email protected] for Regulatory Commission (FERC or agreement, the pipeline company could TTY, call (202) 502–8659. A copy is also Commission) will prepare an initiate condemnation proceedings available for inspection and environmental assessment (EA) that will where compensation would be reproduction at the address in item (h) discuss the environmental impacts of determined in accordance with state above. the Southeast Market Expansion Project law. m. Individuals desiring to be included (SEME Project) involving construction A fact sheet prepared by the FERC on the Commission’s mailing list should and operation of facilities by Gulf South entitled ‘‘An Interstate Natural Gas so indicate by writing to the Secretary Pipeline Company, LP (Gulf South) in Facility On My Land? What Do I Need of the Commission. To Know?’’ is available for viewing on n. Comments, Protests, or Motions to Jasper, Forrest, Perry, Greene, George, and Jackson Counties, Mississippi and the FERC Web site (www.ferc.gov). This Intervene—Anyone may submit fact sheet addresses a number of comments, a protest, or a motion to Mobile County, Alabama. The Commission will use this EA in its typically-asked questions, including the intervene in accordance with the use of eminent domain and how to requirements of Rules of Practice and decision-making process to determine whether the project is in the public participate in the Commission’s Procedure, 18 CFR 385.210, .211, .214. proceedings. In determining the appropriate action to convenience and necessity. take, the Commission will consider all This notice announces the opening of Summary of the Planned Project the scoping process the Commission protests or other comments filed, but Gulf South plans to construct and will use to gather input from the public only those who file a motion to operate approximately 70 miles of new and interested agencies on the project. intervene in accordance with the 30-inch-diameter and 24-inch-diameter Your input will help the Commission Commission’s Rules may become a natural gas pipeline and 3 new staff determine what issues they need to party to the proceeding. Any comments, compressor stations in Mississippi and protests, or motions to intervene must evaluate in the EA. Please note that the Alabama. The SEME Project would be received on or before the specified scoping period will close on December provide about 450 million standard comment date for the particular 19, 2012. cubic feet of natural gas per day to the You may submit comments in written application. Florida and Southeast markets via an form or verbally. Further details on how o. Filing and Service of Responsive interconnect with Florida Gas to submit written comments are in the Documents — All filings must bear in Transmission Company and a new high Public Participation section of this all capital letters the title pressure interconnect with Gulf South’s notice. In lieu of or in addition to ‘‘COMMENTS’’, ‘‘PROTESTS’’, AND/OR existing Index 311 pipeline. According sending written comments, the ‘‘MOTIONS TO INTERVENE’’, as to Gulf South, the project is necessary Commission invites you to attend the applicable, and the Docket Number of to provide new natural gas public scoping meetings scheduled as the particular application to which the transportation capacity to meet an follows: filing refers. A copy of any Motion to increased level of gas supplies in the Intervene must also be served upon each Date and time Location region. representative of the Applicant The SEME Project would consist of specified in the particular application. December 4, New Augusta Elementary the following: p. Agency Comments—Federal, state, 2012, 7:00 School, 100 8th Avenue S, • Construction of 70 miles of new 30- and local agencies are invited to file PM EST. New Augusta, MS, (601) inch-diameter and 24-inch-diameter comments on the described application. 964–3226. pipeline (approximately 42.2 miles and

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27.8 miles, respectively), which would Necessity. NEPA also requires us 3 to environmental issues related to this begin near the southern terminus of discover and address concerns the project to formally cooperate with us in Petal Gas Storage, L.L.C.’s transmission public may have about proposals. This the preparation of the EA.4 Agencies facilities in Forrest County, Mississippi process is referred to as scoping. The that would like to request cooperating and end at Gulf South’s existing Index main goal of the scoping process is to agency status should follow the 311 pipeline tie-in, approximately 4.5 focus the analysis in the EA on the instructions for filing comments miles west of Semmes, Alabama; important environmental issues. By this provided under the Public Participation • Installation of ancillary facilities notice, the Commission requests public section of this notice. associated with the new pipeline comments on the scope of the issues to Consultations Under Section 106 of the including one meter and regulating address in the EA. We will consider all National Historic Preservation Act station, five mainline valves, two pig 1 filed comments during the preparation launchers, two pig receivers, and of the EA. In accordance with the Advisory overpressure protection devices; and In the EA we will discuss impacts that Council on Historic Preservation’s • Installation of three new could occur as a result of the implementing regulations for section compressor stations, including: construction and operation of the 106 of the National Historic D The Forrest Compressor Station, planned project under these general Preservation Act, we are using this which would be located in Forrest headings: notice to initiate consultation with County, Mississippi at the beginning of • Geology and soils; applicable State Historic Preservation the proposed 70-mile pipeline and • Land use; Offices (SHPOs), and to solicit their would provide 16,000 nominal • Water resources, fisheries, and views and those of other government horsepower (hp) of compression; wetlands; agencies, interested Indian tribes, and D The Jasper Compressor Station, • Cultural resources; the public on the project’s potential which would be located on Gulf South’s • Vegetation and wildlife; effects on historic properties.5 We will existing Index 818 pipeline in Jasper • Air quality and noise; define the project-specific Area of County, Mississippi and would provide • Endangered and threatened species; Potential Effects (APE) in consultation 13,222 nominal hp of compression; and • Socioeconomics; with the SHPOs as the project develops. D The Moss Point Compressor Station, • Public safety; and On natural gas facility projects, the APE which would be located at the • Cumulative impacts. at a minimum encompasses all areas intersection of Gulf South’s existing We will also evaluate possible subject to ground disturbance (examples Index 300 pipeline and the Pascagoula alternatives to the planned project or include construction right-of-way, Lateral in Jackson County, Mississippi portions of the project, and make contractor/pipe storage yards, and would provide 2,000 nominal hp of recommendations on how to lessen or compressor stations, and access roads). compression. avoid impacts on the various resource Our EA for this project will document The general location of the project areas. our findings on the impacts on historic facilities is shown in Appendix 1.2 Although no formal application has properties and summarize the status of been filed, we have already initiated our consultations under section 106. Land Requirements for Construction NEPA review under the Commission’s Public Participation Construction of the planned facilities pre-filing process. The purpose of the would disturb about 1,133 acres of land pre-filing process is to encourage early You can make a difference by for the aboveground facilities, pipeline, involvement of interested stakeholders providing us with your specific and access roads. Following and to identify and resolve issues before comments or concerns about the project. construction, Gulf South would the FERC receives an application. As Your comments should focus on the maintain about 453 acres for permanent part of our pre-filing review, we have potential environmental effects, reasonable alternatives, and measures to operation of the project’s facilities; the begun to contact some federal and state avoid or lessen environmental impacts. remaining acreage would be restored agencies to discuss their involvement in The more specific your comments, the and revert to former uses. About 80 the scoping process and the preparation more useful they will be. To ensure that percent of the planned pipeline route of the EA. parallels existing pipeline, utility, or The EA will present our independent your comments are timely and properly road rights-of-way. analysis of the issues. The EA will be recorded, please send your comments so available in the public record through that the Commission receives them in The EA Process eLibrary. Depending on the comments Washington, DC on or before December The National Environmental Policy received during the scoping process, we 19, 2012. For your convenience, there are three Act (NEPA) requires the Commission to may also publish and distribute the EA methods you can use to submit your take into account the environmental to the public for an allotted comment comments to the Commission. In all impacts that could result from an action period. We will consider all comments instances, please reference the project whenever it considers the issuance of a on the EA before we make our docket number (PF12–21–000) with Certificate of Public Convenience and recommendations to the Commission. your submission. The Commission To ensure we have the opportunity to encourages electronic filing of 1 A ‘‘pig’’ is a tool that the pipeline company consider and address your comments, inserts into and pushes through the pipeline for please carefully follow the instructions cleaning the pipeline, conducting internal 4 The Council on Environmental Quality inspections, or other purposes. in the Public Participation section regulations addressing cooperating agency 2 The appendices referenced in this notice will below. responsibilities are at Title 40, Code of Federal not appear in the Federal Register. Copies of the With this notice, we are asking Regulations, § 1501.6. appendices were sent to all those receiving this agencies with jurisdiction by law and/ 5 The Advisory Council on Historic Preservation notice in the mail and are available at www.ferc.gov regulations are at Title 36, Code of Federal using the link called ‘‘eLibrary’’ or from the or special expertise with respect to the Regulations, Part 800. Those regulations define Commission’s Public Reference Room, 888 First historic properties as any prehistoric or historic Street NE., Washington, DC 20426, or call (202) 3 ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to the district, site, building, structure, or object included 502–8371. For instructions on connecting to environmental staff of the Commission’s Office of in or eligible for inclusion in the National Register eLibrary, refer to the last page of this notice. Energy Projects. of Historic Places.

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comments and has expert staff available become an ‘‘intervenor’’ which is an DEPARTMENT OF ENERGY to assist you at (202) 502–8258 or official party to the Commission’s [email protected]. proceeding. Intervenors play a more Federal Energy Regulatory (1) You can file your comments formal role in the process and are able Commission electronically using the eComment to file briefs, appear at hearings, and be [Docket No. EL13–21–000] feature located on the Commission’s heard by the courts if they choose to Web site (www.ferc.gov) under the link appeal the Commission’s final ruling. California Independent System to Documents and Filings. This is an An intervenor formally participates in Operator Corporation; Notice easy method for interested persons to the proceeding by filing a request to Establishing Answer Period to Limited submit brief, text-only comments on a intervene. Instructions for becoming an Emergency Protest project; (2) You can file your comments intervenor are in the User’s Guide under On November 16, 2012, JP Morgan electronically using the eFiling feature the ‘‘e-filing’’ link on the Commission’s Ventures Energy Corp. (JPMVEC) filed a located on the Commission’s Web site Web site. Please note that the Limited Emergency Protest (Protest) (www.ferc.gov) under the link to Commission will not accept requests for regarding the comment period for the Documents and Filings. With eFiling, intervenor status at this time. You must California Independent System Operator you can provide comments in a variety wait until the Commission receives a Corporation’s (CAISO) petition for of formats by attaching them as a file formal application for the project. declaratory order and request for with your submission. New eFiling expedited treatment filed on November Additional Information users must first create an account by 16, 2012. (See Notice of Petition for Declaratory Order, November 16, 2012) clicking on ‘‘eRegister.’’ You must select Additional information about the the type of filing you are making. If you Upon consideration, notice is hereby project is available from the given that the date for filing answers to are filing a comment on a particular Commission’s Office of External Affairs, project, please select ‘‘Comment on a JPMVEC’s Protest is shortened to and at (866) 208–FERC, or on the FERC Web including November 20, 2012. Filing’’; or site (www.ferc.gov) using the eLibrary You can file a paper copy of your Dated: November 19, 2012. link. Click on the eLibrary link, click on comments by mailing them to the ‘‘General Search’’ and enter the docket Nathaniel J. Davis, Sr., following address: Kimberly D. Bose, number, excluding the last three digits Deputy Secretary. Secretary, Federal Energy Regulatory in the Docket Number field (i.e., PF12– [FR Doc. 2012–28549 Filed 11–23–12; 8:45 am] Commission, 888 First Street NE., Room BILLING CODE 6717–01–P 1A, Washington, DC 20426. 21). Be sure you have selected an appropriate date range. For assistance, Environmental Mailing List please contact FERC Online Support at DEPARTMENT OF ENERGY The environmental mailing list [email protected] or toll free includes federal, state, and local at (866) 208–3676, or for TTY, contact Federal Energy Regulatory government representatives and (202) 502–8659. The eLibrary link also Commission agencies; elected officials; provides access to the texts of formal [Docket No. PR13–10–000] environmental and public interest documents issued by the Commission, groups; Native American Tribes; other such as orders, notices, and Moss Bluff Hub, LLC; Notice of Filing interested parties; and local libraries rulemakings. and newspapers. This list also includes Take notice that on November 15, In addition, the Commission offers a all affected landowners (as defined in 2012, Moss Bluff Hub, LLC, (Moss Bluff) the Commission’s regulations) who are free service called eSubscription which filed to revise its Statement of Operating potential right-of-way grantors, whose allows you to keep track of all formal Conditions (SOC) to reflect, among other property may be used temporarily for issuances and submittals in specific things modifications to Section 3 project purposes, or who own homes dockets. This can reduce the amount of (Request for Storage Service), as more within certain distances of aboveground time you spend researching proceedings fully described in the filing. facilities, and anyone who submits by automatically providing you with Any person desiring to participate in comments on the project. We will notification of these filings, document this rate filing must file in accordance update the environmental mailing list as summaries, and direct links to the with Rules 211 and 214 of the the analysis proceeds to ensure that we documents. Go to www.ferc.gov/ Commission’s Rules of Practice and send the information related to this esubscribenow.htm. Procedure (18 CFR 385.211 and 385.214). Protests will be considered by environmental review to all individuals, Finally, public meetings or site visits the Commission in determining the organizations, and government entities will be posted on the Commission’s interested in and/or potentially affected appropriate action to be taken, but will calendar located at www.ferc.gov/ not serve to make protestants parties to by the planned project. EventCalendar/EventsList.aspx along If we publish and distribute the EA, the proceeding. Any person wishing to with other related information. copies will be sent to the environmental become a party must file a notice of Information about the project may also mailing list for public review and intervention or motion to intervene, as comment. If you would prefer to receive be found on Gulf South’s Web site at appropriate. Such notices, motions, or a paper copy of the document instead of http://www.gulfsouthpl.com/ protests must be filed on or before the the CD version or would like to remove ExpansionProjectsGS.aspx. date as indicated below. Anyone filing your name from the mailing list, please Dated: November 19, 2012. an intervention or protest must serve a return the attached Information Request Kimberly D. Bose, copy of that document on the Applicant. (Appendix 2). Anyone filing an intervention or protest Secretary. on or before the intervention or protest Becoming an Intervenor [FR Doc. 2012–28541 Filed 11–23–12; 8:45 am] date need not serve motions to intervene Once Gulf South files its application BILLING CODE 6717–01–P or protests on persons other than the with the Commission, you may want to Applicant.

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The Commission encourages date need not serve motions to intervene copy of that document on the Applicant. electronic submission of protests and or protests on persons other than the Anyone filing an intervention or protest interventions in lieu of paper using the Applicant. on or before the intervention or protest ‘‘eFiling’’ link at http://www.ferc.gov. The Commission encourages date need not serve motions to intervene Persons unable to file electronically electronic submission of protests and or protests on persons other than the should submit an original and 7 copies interventions in lieu of paper using the Applicant. of the protest or intervention to the ‘‘eFiling’’ link at http://www.ferc.gov. The Commission encourages Federal Energy Regulatory Commission, Persons unable to file electronically electronic submission of protests and 888 First Street NE., Washington, DC should submit an original and 7 copies interventions in lieu of paper using the 20426. of the protest or intervention to the ‘‘eFiling’’ link at http://www.ferc.gov. This filing is accessible on-line at Federal Energy Regulatory Commission, Persons unable to file electronically http://www.ferc.gov, using the 888 First Street NE., Washington, DC should submit an original and 7 copies ‘‘eLibrary’’ link and is available for 20426. of the protest or intervention to the review in the Commission’s Public This filing is accessible on-line at Federal Energy Regulatory Commission, Reference Room in Washington, DC. http://www.ferc.gov, using the 888 First Street NE., Washington, DC There is an ‘‘eSubscription’’ link on the ‘‘eLibrary’’ link and is available for 20426. Web site that enables subscribers to review in the Commission’s Public This filing is accessible on-line at receive email notification when a Reference Room in Washington, DC. http://www.ferc.gov, using the document is added to a subscribed There is an ‘‘eSubscription’’ link on the ‘‘eLibrary’’ link and is available for docket(s). For assistance with any FERC Web site that enables subscribers to review in the Commission’s Public Online service, please email receive email notification when a Reference Room in Washington, DC. [email protected], or call document is added to a subscribed There is an ‘‘eSubscription’’ link on the (866) 208–3676 (toll free). For TTY, call docket(s). For assistance with any FERC web site that enables subscribers to (202) 502–8659. Online service, please email receive email notification when a Comment Date: 5:00 p.m. Eastern [email protected], or call document is added to a subscribed Time on Tuesday, November 27, 2012. (866) 208–3676 (toll free). For TTY, call docket(s). For assistance with any FERC Dated: November 19, 2012. (202) 502–8659. Online service, please email Kimberly D. Bose, Comment Date: 5:00 p.m. Eastern [email protected], or call Time on Tuesday, November 27, 2012. (866) 208–3676 (toll free). For TTY, call Secretary. (202) 502–8659. [FR Doc. 2012–28545 Filed 11–23–12; 8:45 am] Dated: November 19, 2012. Kimberly D. Bose, Comment Date: 5:00 p.m. Eastern BILLING CODE 6717–01–P Time on Tuesday, November 27, 2012. Secretary. [FR Doc. 2012–28544 Filed 11–23–12; 8:45 am] Dated: November 19, 2012. DEPARTMENT OF ENERGY BILLING CODE 6717–01–P Kimberly D. Bose, Secretary. Federal Energy Regulatory [FR Doc. 2012–28543 Filed 11–23–12; 8:45 am] Commission DEPARTMENT OF ENERGY BILLING CODE 6717–01–P [Docket No. PR13–9–000] Federal Energy Regulatory Magic Valley Pipeline, L.P.; Notice of Commission DEPARTMENT OF ENERGY Filing [Docket Nos. PR13–6–000; PR13–7–000] Federal Energy Regulatory Take notice that on November 15, Washington Gas Light Company; Commission 2012, Magic Valley Pipeline, L.P. (Magic Notice of Petition for Rate Approval Valley) filed to revise its Statement of [Docket No. OR13–7–000] Operating Conditions (SOC) to reflect Take notice that on November 9, Enterprise Liquids Pipeline LLC; among other things, the discontinuation 2012, Washington Gas Light Company Notice of Petition for Declaratory Order of interruptible transportation service as (Washington Gas) filed its Lost and more fully described in the filing. unaccounted-for Gas (LAUF) as Take notice that on November 14, Any person desiring to participate in provided for in Paragraph IV.F of its 2012, pursuant to Rule 207(a)(2) of the this rate filing must file in accordance FERC NGPA Gas Tariff as more fully Commission’s Rules of Practices and with Rules 211 and 214 of the detailed in the petition. Procedure, 18 CFR 385.207(a)(2)(2012), Commission’s Rules of Practice and Any person desiring to participate in Enterprise Liquids Pipeline LLC, filed a Procedure (18 CFR 385.211 and this rate filing must file in accordance petition seeking a declaratory order 385.214). Protests will be considered by with Rules 211 and 214 of the approving the rate structures, services the Commission in determining the Commission’s Rules of Practice and and prorationing terms, as more fully appropriate action to be taken, but will Procedure (18 CFR 385.211 and explained in its petition. not serve to make protestants parties to 385.214). Protests will be considered by Any person desiring to intervene or to the proceeding. Any person wishing to the Commission in determining the protest this filing must file in become a party must file a notice of appropriate action to be taken, but will accordance with Rules 211 and 214 of intervention or motion to intervene, as not serve to make protestants parties to the Commission’s Rules of Practice and appropriate. Such notices, motions, or the proceeding. Any person wishing to Procedure (18 CFR 385.211, 385.214). protests must be filed on or before the become a party must file a notice of Protests will be considered by the date as indicated below. Anyone filing intervention or motion to intervene, as Commission in determining the an intervention or protest must serve a appropriate. Such notices, motions, or appropriate action to be taken, but will copy of that document on the Applicant. protests must be filed on or before the not serve to make protestants parties to Anyone filing an intervention or protest date as indicated below. Anyone filing the proceeding. Any person wishing to on or before the intervention or protest an intervention or protest must serve a become a party must file a notice of

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intervention or motion to intervene, as any land-disturbing activities or Dated: November 15, 2012. appropriate. Such notices, motions, or otherwise enter upon lands or waters Kimberly D. Bose, protests must be filed on or before the owned by others without the owners’ Secretary. comment date. On or before the express permission. [FR Doc. 2012–28465 Filed 11–23–12; 8:45 am] comment date, it is not necessary to The proposed project would consist BILLING CODE 6717–01–P serve motions to intervene or protests of: (1) Between 7 and 15 Surge Wave on persons other than the Applicant. Energy Converters for a maximum total The Commission encourages DEPARTMENT OF ENERGY installed capacity of 750 kilowatts; (2) a electronic submission of protests and single transmission line to bring project interventions in lieu of paper using the Federal Energy Regulatory ‘‘eFiling’’ link at http://www.ferc.gov. power to shore; (3) shore-based power Commission conditioning equipment, transformers, Persons unable to file electronically [Docket No. RM98–1–000] should submit an original and 14 copies and voltage regulations facilities; and (5) of the protest or intervention to the appurtenant facilities. The project Records Governing Off-the-Record Federal Energy Regulatory Commission, would have an estimated annual Communications; Public Notice 888 First Street, NE., Washington, DC generation of 3,942 megawatthours. This constitutes notice, in accordance 20426. Applicant Contact: Mr. P. William with 18 CFR 385.2201(b), of the receipt This filing is accessible on-line at Staby, Resolute Marine Energy, Inc., 3 of prohibited and exempt off-the-record http://www.ferc.gov, using the Post Office Square, 3rd floor, Boston, communications. ‘‘eLibrary’’ link and is available for MA 02109; (917) 626–6790; wstaby@ Order No. 607 (64 FR 51222, review in the Commission’s Public resolutemarine.com. September 22, 1999) requires Reference Room in Washington, DC. FERC Contact: Kenneth Hogan (202) Commission decisional employees, who There is an ‘‘eSubscription’’ link on the 502–8434 or via email at: Kenneth. make or receive a prohibited or exempt web site that enables subscribers to [email protected]. off-the-record communication relevant receive email notification when a to the merits of a contested proceeding, document is added to a subscribed Deadline for filing comments, motions to intervene, and competing to deliver to the Secretary of the docket(s). For assistance with any FERC Commission, a copy of the applications (without notices of intent), Online service, please email communication, if written, or a or notices of intent to file competing [email protected], or call summary of the substance of any oral applications: 60 days from the issuance (866) 208–3676 (toll free). For TTY, call communication. (202) 502–8659. of this notice. Competing applications Prohibited communications are Comment Date: 5:00 p.m. Eastern time and notices of intent must meet the included in a public, non-decisional file on Tuesday, December 4, 2012 requirements of 18 CFR 4.36. associated with, but not a part of, the Dated: November 15, 2012. Comments, motions to intervene, decisional record of the proceeding. Kimberly D. Bose, notices of intent, and competing Unless the Commission determines that Secretary. applications may be filed electronically the prohibited communication and any via the Internet. See 18 CFR [FR Doc. 2012–28471 Filed 11–23–12; 8:45 am] responses thereto should become a part 385.2001(a)(1)(iii) and the instructions BILLING CODE 6717–01–P of the decisional record, the prohibited on the Commission’s Web site http:// off-the-record communication will not www.ferc.gov/docs-filing/efiling.asp. be considered by the Commission in DEPARTMENT OF ENERGY Commenters can submit brief comments reaching its decision. Parties to a up to 6,000 characters, without prior proceeding may seek the opportunity to Federal Energy Regulatory registration, using the eComment system respond to any facts or contentions Commission at http://www.ferc.gov/docs-filing/ made in a prohibited off-the-record [Project No. 14438–000] ecomment.asp. You must include your communication, and may request that name and contact information at the end the Commission place the prohibited Resolute Marine Energy, Inc.; Notice of of your comments. For assistance, communication and responses thereto Preliminary Permit Application please contact FERC Online Support at in the decisional record. The Accepted for Filing and Soliciting [email protected] or toll Commission will grant such a request Comments, Motions To Intervene, and free at 1–866–208–3676, or for TTY, only when it determines that fairness so Competing Applications (202) 502–8659. Although the requires. Any person identified below as Commission strongly encourages having made a prohibited off-the-record On July 25, 2012, Resolute Marine electronic filing, documents may also be communication shall serve the Energy, Inc. (Resolute or Applicant) paper-filed. To paper-file, mail an document on all parties listed on the filed an application for a preliminary original and seven copies to: Kimberly official service list for the applicable permit under section 4(f) of the Federal D. Bose, Secretary, Federal Energy proceeding in accordance with Rule Power Act proposing to study the Regulatory Commission, 888 First Street 2010, 18 CFR 385.2010. feasibility of the Yakutat Alaska Wave NE., Washington, DC 20426. Exempt off-the-record Energy Project No. 14438. Resolute communications are included in the supplemented its application on More information about this project, decisional record of the proceeding, September 19, 2012. The proposed including a copy of the application can unless the communication was with a project would be located within a 25.26 be viewed or printed on the ‘‘eLibrary’’ cooperating agency as described by 40 square mile area within Alaska State link of Commission’s Web site at CFR 1501.6, made under 18 CFR submerged lands in the Gulf of Alaska, http://www.ferc.gov/docs-filing/elibrary. 385.2201(e)(1)(v). near the City and Borough of Yakutat, asp. Enter the docket number (P–14438) The following is a list of off-the- Alaska. in the docket number field to access the record communications recently A preliminary permit does not document. For assistance, contact FERC received by the Secretary of the authorize the permit holder to perform Online Support. Commission. The communications

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listed are grouped by docket numbers in http://www.ferc.gov using the eLibrary FERC, Online Support at ascending order. These filings are link. Enter the docket number, [email protected] or toll available for review at the Commission excluding the last three digits, in the free at (866) 208–3676, or for TTY, in the Public Reference Room or may be docket number field to access the contact (202) 502–8659. viewed on the Commission’s Web site at document. For assistance, please contact

Docket No. Filed date Presenter or requester

Prohibited: 1. CP11–515–000 ...... 11–19–12 Minisink Resident.1 Exempt: 1. CP12–29–000 ...... 10–26–12 FERC Staff.2 2. CP11–161–000 ...... 11–8–12 Hon. Barbara Buono. 3. EL11–50–000 ...... 11–16–12 U.S. Congress.3 1 Distributed protest card regarding the 11–15–12 Commission Meeting. 2 Phone record. 3 Letter signed by 13 members of the Congress of the United States.

Dated: November 19, 2012. described more fully in the Settlement SUMMARY: In accordance with the Nathaniel J. Davis, Sr., filing. Federal Advisory Committee Act, this Deputy Secretary. Petal states that it has served copies notice advises interested persons that [FR Doc. 2012–28547 Filed 11–23–12; 8:45 am] of this filing on all affected customers the Federal Communications BILLING CODE 6717–01–P and interested state commissions. Commission’s (FCC) Technological Pursuant to Rule 602(f)(2) of the Advisory Council will hold a meeting Commission’s Rules of Practice and on Monday, December 10, 2012 in the DEPARTMENT OF ENERGY Procedure, 18 CFR 385.602(f)(2) (2012), Commission Meeting Room, from 1 p.m. initial comments on the Settlement are to 4 p.m. at the Federal Federal Energy Regulatory due not later than 20 days after the Communications Commission, 445 12th Commission filing of the Settlement, and reply Street SW., Washington, DC 20554. [Docket No. CP12–464–000] comments are due not later than 30 days DATES: December 10, 2012. after the filing of the Settlement. ADDRESSES: Federal Communications Petal Gas Storage, L.L.C., Hattiesburg The Commission encourages Commission, 445 12th Street SW., Industrial Gas Sales, L.L.C.; Notice of electronic submission interventions and Washington, DC 20554. comments in lieu of paper using the Offer of Settlement FOR FURTHER INFORMATION CONTACT: ‘‘eFiling’’ link at http://www.ferc.gov. Walter Johnston, Chief, Electromagnetic Take notice that on November 8, This filing is accessible on-line at http:// 2012, Petal Gas Storage, L.L.C. (Petal) Compatibility Division, 202–418–0807; www.ferc.gov, using the ‘‘eLibrary’’ link [email protected]. and Hattiesburg Industrial Gas Sales, and is available for review in the SUPPLEMENTARY INFORMATION: The FCC L.L.C. (Hattiesburg), filed a Stipulation Commission’s Public Reference Room in Technological Advisory Council and Agreement (Settlement), including Washington, DC. There is an discussed progress and issues related to pro forma tariff records, pursuant to 18 ‘‘eSubscription’’ link on the Web site its 2012 work program at its last meeting CFR 385.602 (2012) to resolve all issues that enables subscribers to receive email on September 24, 2012. This meeting in the above-captioned docket raised by notification when a document is added will present the final recommendations Consolidated Edison of New York, Inc. to a subscribed docket(s). For assistance of the TAC work groups and discuss (ConEd). with any FERC Online service, please recommendations for future work The Stipulation and Agreement is email [email protected], or efforts. The FCC will attempt to uncontested by all settling parties (Petal, call (866) 208–3676 (toll free). For TTY, accommodate as many people as Hattiesburg and ConEd) within the call (202) 502–8659. possible. However, admittance will be meaning of Rule 602(g). Petal and Comments are due by: November 28, limited to seating availability. Meetings Hattiesburg have submitted to ConEd a 2012. draft service agreement that would Reply Comments are due by: are also broadcast live with open govern ConEd’s firm storage service December 8, 2012. captioning over the internet from the under Petal’s Rate Schedule FSS. Petal FCC Live Web page at http://www.fcc. has also agreed as a part of the Dated: November 19, 2012. gov/live/. The public may submit Settlement to make the tariff filings set Kimberly D. Bose, written comments before the meeting to: forth in Article I of the Stipulation and Secretary. Walter Johnston, the FCC’s Designated Agreement to address ConEd’s concerns [FR Doc. 2012–28542 Filed 11–23–12; 8:45 am] Federal Officer for Technological regarding the terms and conditions of BILLING CODE 6717–01–P Advisory Council by email: Walter. Petal’s FSS service. Except as specified, [email protected] or U.S. Postal Service each of the tariff filings will be generally Mail (Walter Johnston, Federal applicable to all Petal customers, FEDERAL COMMUNICATIONS Communications Commission, Room 7– including former Hattiesburg customers, COMMISSION A224, 445 12th Street SW., Washington, and are designed to replicate certain DC 20554). Open captioning will be aspects of the terms and conditions of Federal Advisory Committee Act; provided for this event. Other the 311 firm storage service offered by Technological Advisory Council reasonable accommodations for people Hattiesburg. Petal agrees to submit tariff AGENCY: Federal Communications with disabilities are available upon filing in a compliance filing to the Commission. request. Requests for such Commission within thirty days of the accommodations should be submitted ACTION: Notice of public meeting. effective date of this Settlement, all as via email to [email protected] or by calling

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the Office of Engineering and Corporation, 550 17th Street NW., FEDERAL DEPOSIT INSURANCE Technology at 202–418–2470 (voice), Washington, DC 20429. CORPORATION (202) 418–1944 (fax). Such requests • Hand Delivery: Comments may be should include a detailed description of hand-delivered to the guard station at Agency Information Collection the accommodation needed. In addition, the rear of the 17th Street Building Activities: Proposed Information please include your contact information. (located on F Street), on business days Collection; Submission for OMB Please allow at least five days advance between 7:00 a.m. and 5:00 p.m. Review notice; last minute requests will be All comments should refer to the AGENCY: Federal Deposit Insurance accepted, but may be impossible to fill. relevant OMB control number. A copy Corporation. of the comments may also be submitted Federal Communications Commission. ACTION: Notice of information collection to the OMB desk officer for the FDIC: Bulah P. Wheeler, to be submitted to OMB for review and Office of Information and Regulatory Associate Secretary. approval under the Paperwork Affairs, Office of Management and [FR Doc. 2012–28491 Filed 11–23–12; 8:45 am] Reduction Act, and request for Budget, New Executive Office Building, comment. BILLING CODE 6712–01–P Washington, DC 20503. FOR FURTHER INFORMATION CONTACT: Gary SUMMARY: The Federal Deposit A. Kuiper, at the FDIC address above. Insurance Corporation, as part of its FEDERAL DEPOSIT INSURANCE SUPPLEMENTARY INFORMATION: continuing effort to reduce paperwork CORPORATION and respondent burden, invites the Proposal To Renew the Following general public and other Federal Agency Information Collection Currently-Approved Collection of agencies to take this opportunity to Activities: Submission for OMB Information Review; Comment Request comment on a new information Title: Mutual-to-Stock Conversion of collection, as required by the Paperwork AGENCY: Federal Deposit Insurance State Savings Banks. Reduction Act of 1995. Corporation (FDIC). OMB Number: 3064–0117. An agency may not conduct or ACTION: Notice of information collection Affected Public: State nonmember sponsor, and a respondent is not to be submitted to OMB for review and banks. required to respond to, an information approval under the Paperwork Estimated Number of Respondents: collection unless it displays a currently Reduction Act. 15. valid OMB control number. The FDIC is Estimated burden per respondent: soliciting comment concerning its SUMMARY: In accordance with 250. information collection titled, ‘‘Annual Estimated Total Annual Burden requirements of the Paperwork Stress Test Reporting Template and Hours: 3750 hours. Reduction Act of 1995 (‘‘PRA’’), 44 Documentation for Covered Banks with General Description of Collection: U.S.C. 3501 et seq., the FDIC may not Total Consolidated Assets of $50 Billion State nonmember savings banks musts conduct or sponsor, and the respondent or More under the Dodd-Frank Wall file with the FDIC a notice of intent to is not required to respond to, an Street Reform and Consumer Protection convert to stock form, and provide the information collection unless it displays Act.’’ a currently valid Office of Management FDIC with copies of documents filed with state and federal banking and/or DATES: Comments must be received by and Budget (OMB) control number. The December 26, 2012. FDIC, as part of its continuing effort to securities regulators in connection with ADDRESSES: You may submit written reduce paperwork and respondent the proposed conversion. comments by any of the following burden, invites the general public and Request for Comment methods: other Federal agencies to take this Comments are invited on: (a) Whether • Agency Web Site: http://www.fdic. opportunity to comment on the renewal the collection of information is gov/regulations/laws/federal/propose. of an existing information collection, as necessary for the proper performance of html. Follow the instructions for required by the PRA. On September 20, the FDIC’s functions, including whether submitting comments on the FDIC Web 2012 (77 FR 58378), the FDIC solicited the information has practical utility; (b) site. public comment for a 60-day period on the accuracy of the estimates of the • Federal eRulemaking Portal: http:// the renewal of the following information burden of the information collection, www.regulations.gov. Follow the collection: Mutual-to-Stock Conversion including the validity of the instructions for submitting comments. of State Savings Banks. No comments methodology and assumptions used; (c) • Email: [email protected]. were received. Therefore, the FDIC ways to enhance the quality, utility, and Include ‘‘Annual Stress Test Reporting hereby gives notice of submission of its clarity of the information to be Template and Documentation’’ on the request for renewal to OMB for review. collected; and (d) ways to minimize the subject line of the message. DATES: Comments must be submitted on burden of the information collection on • Mail: Robert E. Feldman, Executive or before December 26, 2012. respondents, including through the use Secretary, Attention: Comments, FDIC, ADDRESSES: Interested parties are of automated collection techniques or 550 17th Street NW., Washington, DC invited to submit written comments to other forms of information technology. 20429. • the FDIC by any of the following All comments will become a matter of Hand Delivery/Courier: Guard methods: public record. station at the rear of the 550 17th Street • http://www.FDIC.gov/regulations/ Building (located on F Street) on Dated at Washington, DC, this 20th day of business days between 7 a.m. and 5 p.m. laws/federal/notices.html. November 2012. • Email: [email protected]. Include Public Inspection: All comments the name of the collection in the subject Federal Deposit Insurance Corporation. received will be posted without change line of the message. Valerie J. Best, to http://www.fdic.gov/regulations/laws/ • Mail: Gary A. Kuiper Assistant Executive Secretary. federal/propose.html including any (202.898.3877), Counsel, Room NYA– [FR Doc. 2012–28587 Filed 11–23–12; 8:45 am] personal information provided. 5046, Federal Deposit Insurance BILLING CODE 6714–01–P Comments may be inspected at the FDIC

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Public Information Center, 3501 North reporting requirements under section worked to minimize any potential Fairfax Drive, Room E–1002, Arlington, 165(i)(2). These information collections duplication of effort related to the VA 22226 between 9 a.m. and 4:30 p.m. will be given confidential treatment (5 annual stress test requirements. The on business days. U.S.C. 552(b)(4)). FDIC also recognizes that many covered Additionally, please send a copy of The FDIC intends to use the data banks with total consolidated assets of your comments to: By mail to the U.S. collected through these proposed $50 billion or more are required to Office of Management and Budget, 725 templates to assess the reasonableness submit reports using CCAR reporting 17th Street NW., #10235, Washington, of the stress test results of covered banks form FR Y–14A.7 Therefore, the FDIC DC 20503 or by facsimile to and to provide forward-looking based its reporting requirements closely 202.395.6974, Attention: Federal information to the FDIC regarding a on the Board’s form FR Y–14A for Banking Agency Desk Officer. covered bank’s capital adequacy. The covered banks with total consolidated FOR FURTHER INFORMATION CONTACT: You FDIC also may use the results of the assets of $50 billion or more. The FDIC can request additional information from stress tests to determine whether recognizes the Board modified the FR Gary Kuiper, 202.898.3877, Legal additional analytical techniques and Y–14A and, to the extent practical, the Division, Federal Deposit Insurance exercises could be appropriate to FDIC anticipates keeping its reporting Corporation, 550 17th Street NW., identify, measure, and monitor risks at requirements consistent with the NYA–5046, Washington, DC 20429. In the covered bank. The stress test results Board’s FR Y–14A in order to minimize addition, copies of the templates are expected to support ongoing burden on covered banks.8 In order to referenced in this notice can be found improvement in a covered bank’s stress fully evaluate the stress test results on the FDIC’s Web site (http://www.fdic. testing practices with respect to its submissions, the FDIC may conduct gov/regulations/laws/federal/propose. internal assessments of capital adequacy follow-up discussions with or request html). and overall capital planning. responses to follow-up questions from The Dodd-Frank Act stress testing SUPPLEMENTARY INFORMATION: The FDIC respondents, as needed. requirements apply to all covered banks, is requesting comment on the following but the FDIC recognizes that many Description of Reporting Templates for new proposed information collection: covered banks with consolidated total Banks With $50 Billion or More in Annual Stress Test Reporting Template assets of $50 billion or more have been Assets and Documentation for Covered Banks subject to stress testing requirements The FDIC DFAST–14A Summary With Total Consolidated Assets of $50 under the Board’s Comprehensive Schedule includes data collection Billion or More Under the Dodd-Frank Capital Analysis and Review (CCAR). worksheets necessary for the FDIC to Wall Street Reform and Consumer The FDIC also recognizes that these assess the company-run stress test Protection Act banks’ stress tests will be applied to results for baseline, adverse and Section 165(i)(2) of the Dodd-Frank more complex portfolios and therefore severely adverse scenarios as well as Wall Street Reform and Consumer warrant a broader set of reports to any other scenario specified in Protection Act 1 (Dodd-Frank Act) adequately capture the results of the accordance with regulations specified requires certain financial companies, stress tests. These reports will by the FDIC. The DFAST–14A Summary necessarily require more detail than including state nonmember banks and Schedule includes worksheets that would be appropriate for smaller, less state savings associations, to conduct collect information on the following complex institutions. Therefore, the annual stress tests 2 and requires the areas: FDIC has decided to specify separate primary financial regulatory agency 3 of 1. Income Statement; reporting templates for covered banks those financial companies to issue 2. Balance Sheet; with total consolidated assets between regulations implementing the stress test 3. Capital Statement; $10 billion and $50 billion and for requirements.4 A state nonmember bank 4. Retail Risk; covered banks with total consolidated or state savings association is a ‘‘covered 5. Securities: Available-for-Sale/Held assets of $50 billion or more. In cases bank’’ and therefore subject to the stress to Maturity (AFS/HTM); where a covered bank with assets less test requirements if its total 6. Trading; than $50 billion is affiliated with a 7. Counterparty Credit Risk (CCR); consolidated assets are more than $10 banking organization with assets of $50 billion. Under section 165(i)(2), a 8. Operational Risk; and billion or more, the FDIC reserves the 9. Pre-Provision Net Revenue (PPNR). covered bank is required to submit to authority to require that covered bank to the Board of Governors of the Federal Each covered bank reporting to the use the reporting template for larger FDIC using this form will be required to Reserve System (Board) and to its banks with total consolidated assets of primary financial regulatory agency a submit to the FDIC a separate DFAST– $50 billion or more. The FDIC may also, 14A Summary Schedule for each report at such time, in such form, and on a case-by-case basis, require a containing such information as the scenario provided to covered banks in covered bank with assets of $50 billion accordance with regulations primary financial regulatory agency may or more to report stress test results using require.5 On October 9, 2012, the FDIC implementing Section 165(i)(2) as a simpler format to be specified by the specified by the FDIC. published in the Federal Register a final FDIC. The reporting templates for rule implementing the section 165(i)(2) institutions with assets of $50 billion or Worksheets: Income Statement 6 annual stress test requirement. This more are described below. This income statement worksheet notice describes the reports and The FDIC has worked closely with the collects data for the quarter preceding information required to meet the Board and the Office of the Comptroller the planning horizon and for each of the Currency (OCC) to make the quarter of the planning horizon for the 1 Public Law 111–203, 124 Stat. 1376, July 21, agencies’ respective rules implementing 2010. stress test on projected losses and 2 12 U.S.C. 5365(i)(2)(A). annual stress testing under the Dodd- revenues in the following categories. 3 12 U.S.C. 5301(12). Frank Act consistent and comparable by 1. Loan losses; 4 12 U.S.C. 5365(i)(2)(C). requiring similar standards for scope of 5 12 U.S.C. 5365(i)(2)(B). application, scenarios, data collection 7 http://www.federalreserve.gov/reportforms. 6 77 FR 62417, October 15, 2012. and reporting forms. The FDIC has 8 77 FR 60695, October 4, 2012.

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2. Losses due to contingent credit card, automobile, student loans, the stress test. Operational losses are commitments and liabilities; small business loans, and other defined as losses arising from 3. Other Than Temporary consumer. For residential real estate, the inadequate or failed internal processes, Impairments (OTTI) on assets held to worksheets collect data for first lien people, and systems or from external maturity and available for sale; mortgages, home equity lines of credit, events including legal losses. Some 4. Trading account losses; and home equity loans. For all major examples of operational loss events are 5. Allowance for loan and lease retail portfolios, the worksheets contain losses related to improper business losses; separate segments for domestic and practices (including class action 6. Pre-provision net revenue; and international loans for various product lawsuits), execution errors, and fraud. 7. Repurchase reserve/liability for types. Within each broad product-type Additional detail may be requested in representations and warranties. segment, the reporting for the portfolio order for the FDIC to evaluate the This schedule provides information is divided into a number of sub- transformation of the covered banks’ used to assess losses that covered banks segments that embody unique risk historical loss experience into can sustain in adverse and severely characteristics. This modular product- operational loss projections. Additional adverse stress scenarios. type design of the retail worksheet detail also may be requested on any Worksheets: Balance Sheet allows for a targeted data collection that budgeting processes used to project encompasses only the material operational losses. The balance sheet worksheet collects portfolios in a given product area for a Completion of the operational risk data for the quarter preceding the particular covered bank. A covered bank worksheets would be required only for planning horizon and for each quarter of would be required to complete only the those banks subject to advanced the planning horizon for the stress test segments and sub-segments material for approaches risk-based capital rules. on projected equity capital, as well as that bank. This design is intended to Worksheets: PPNR on assets and liabilities in the following limit burden while maximizing the categories. supervisory information produced from For the PPNR worksheets, covered 1. HTM Securities; the collection. banks must provide projections for the 2. AFS Securities; three major components of PPNR (net 3. Loans; Worksheets: Securities interest income, non-interest income, 4. Trading Assets; Several securities worksheets collect and non-interest expense) for each 5. Intangibles; data related to AFS and HTM securities. quarter of the planning horizon. 6. Deposits; and The worksheets collect data and Collection of these data in this format is 7. Trading Liabilities. information such as: Projected OTTI by based on the assumption that the The FDIC intends to use this asset class for each quarter of the revenues generated by different business worksheet to assess the projected forecast time horizon; methodologies lines are affected differently by different changes in assets and liabilities that a and assumptions used to generate the stress scenarios, and such a view covered bank can sustain in an adverse OTTI projections for each asset class; facilitates a more robust analysis of the and severely adverse stress scenario. projected stressed fair market value resulting projections. This worksheet will also be used to (FMV) for each asset class as well as Description of FDIC DFAST–14A assess the revenue and loss projections qualitative information on the Counterparty Credit Risk Template identified in the income statement methodologies and assumptions used to worksheet. generate the stressed market value; and The CCR template collects, on various worksheets, data to identify credit Worksheets: Capital actual FMV including the source (vendor or proprietary) and key valuation adjustment (CVA), exposures, The capital worksheet collects data assumptions used in determining and CVA sensitivities for the covered for the quarter preceding the planning market values (if using a proprietary bank’s top counterparties along a horizon and for each quarter of the model). number of dimensions, including planning horizon for the stress test on current CVA, stressed CVA, net current the following areas. Worksheets: Trading and Counterparty exposure, and gross current exposure. 1. Changes to Equity Capital; Risk Covered banks also must submit 2. Changes to Regulatory Capital; and The trading and counterparty risk aggregate CVA, exposures, and CVA 3. Capital Actions. worksheets collect projected losses sensitivities by ratings categories. The The FDIC intends to use this associated with a specified global Notes to the CCR Schedule worksheet worksheet to assess the impact on market risk scenario for covered banks allow covered banks to voluntarily capital of the projected losses and with large trading operations. The FDIC submit additional information to projected changes in assets that the provides a set of risk factors relevant to provide clarity to the portfolio. Covered covered bank can sustain in a stressed the trading and counterparty positions banks are required to report results for scenario. In addition to reviewing the so that respondent covered banks one scenario and two specifications to worksheet in the context of the balance project trading and counterparty capture Expected Exposure profiles. sheet and income statement projections, components in the adverse and severely Completion of the CCR template the FDIC also intends to use this adverse scenarios. would be required only for those worksheet to assess the adequacy of the Completion of the trading and institutions subject to the market shock capital plans and capital planning counterparty risk worksheets would be provided by the FDIC. processes for each covered bank. required only for those banks subject to Description of FDIC DFAST–14A Basel the market shock provided by the FDIC. Worksheets: Retail Projections III and Dodd-Frank Template The retail projections worksheets Worksheets: Operational Risk The Basel III and Dodd-Frank collect data for each quarter of the The operational risk worksheets template collects projections of Tier 1 planning horizon for the stress test on collect data on covered banks’ Common Equity, Tier 1 Capital, Risk- projected balances and losses for major projections of operational losses for Weighted Assets (RWA), and Leverage retail portfolios: residential real estate, each quarter of the planning horizon for Exposures (along with granular

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components of those elements) under Definitions worksheet), the actual value The FDIC recognizes the Board has the baseline scenario for each year of the variable during the Q3 of the estimated 79,200 hours for bank holding through 2017. Banks are required to reporting year, and the projected value companies to prepare their systems for complete the schedule based on the of the variable for nine future quarters. submitting data for the FR Y–14.10 The methodologies outlined in the U.S. FDIC believes that these systems will Description of FDIC DFAST–14A banking agencies NPRs: Basel III NPR, also be used to submit data for the Contact Information Template Advanced Approaches NPR, and final reporting templates described in this market risk capital rule (see FDIC Joint The contact information template notice. Release dated June 12, 2012 9). Covered includes a directory worksheet for Comments continue to be invited on: banks also are required to include data reporting points of contact for each of (a) Whether the collection of on the projected impact of any the templates described above: information is necessary for the proper significant actions planned in response summary, counterparty credit risk, Basel performance of the functions of the to Basel III and the Dodd-Frank Act (for III and Dodd-Frank, operational risk, FDIC, including whether the example, asset sales, asset wind-downs, regulatory capital instruments, and information has practical utility; (b) The and data collection and modeling scenario. accuracy of the FDIC’s estimate of the enhancements). The FDIC expects to burden of the collection of information; Description of Supporting align this template and its instructions (c) Ways to enhance the quality, utility, Documentation with the rules implementing the Basel and clarity of the information to be III framework in the U.S. when those Covered banks must submit clear collected; (d) Ways to minimize the rules are final. documentation of the projections burden of the collection on respondents, included in the worksheets to support including through the use of automated Description of FDIC DFAST–14A efficient and timely review of annual collection techniques or other forms of Regulatory Capital Instruments stress test results by the FDIC. The information technology; and (e) Template supporting documentation should be Estimates of capital or start-up costs and The regulatory capital instruments submitted electronically and is not costs of operation, maintenance, and schedule collects historical data and expected to be reported in the purchase of services to provide projections of covered banks’ balances workbooks used for required data information. of the funded instruments that are reporting. This supporting Dated at Washington, DC, this 20th day of included in regulatory capital. The documentation must clearly describe November 2012. schedule collects data by instrument the methodology used to produce the Federal Deposit Insurance Corporation. type, in addition to projections for stress test projections, and must include Valerie J. Best, issuances and redemptions that how the macroeconomic factors were Assistant Executive Secretary. contribute to changes in balances under translated into a covered bank’s [FR Doc. 2012–28596 Filed 11–23–12; 8:45 am] the covered bank baseline scenario. projections, as well as technical details BILLING CODE 6714–01–P Description of FDIC DFAST–14A of any underlying statistical methods Operational Risk Template used. Where company-specific assumptions are made that differ from FEDERAL DEPOSIT INSURANCE The operational risk schedule collects the broad macroeconomic assumptions CORPORATION data on covered banks’ historical and incorporated in stress scenarios current operational losses. This provided by the FDIC, the Update to Notice of Financial schedule is only required from covered documentation must also describe such Institutions for Which the Federal banks subject to the advanced assumptions and how those Deposit Insurance Corporation Has approaches risk-based capital rules. The assumptions relate to reported Been Appointed Either Receiver, first worksheet gathers data on covered projections. Where historical Liquidator, or Manager banks’ operational risk capital by unit- relationships are relied upon, the AGENCY: Federal Deposit Insurance of-measure (undiversified basis) from covered banks must describe the Corporation. Q4 of the previous year to Q3 of the historical data and provide the basis for reporting year. The second worksheet the expectation that these relationships ACTION: Update Listing of Financial gather data on the total dollar value of would be maintained in each scenario, Institutions in Liquidation. a covered banks’ legal reserve balance as particularly under adverse and severely of September 30. SUMMARY: Notice is hereby given that adverse conditions. the Federal Deposit Insurance Description of FDIC DFAST–14A Comment Summary Corporation (Corporation) has been Scenario Template appointed the sole receiver for the In the Federal Register of August 30, To conduct the stress test required following financial institutions effective 2012 (77 FR 52718), the FDIC published under this rule, a covered bank may as of the Date Closed as indicated in the a 60-day notice requesting public need to project additional economic and listing. This list (as updated from time comment on the templates and the financial variables to estimate losses or to time in the Federal Register) may be collection of information. The FDIC did revenues for some or all of its portfolios. relied upon as ‘‘of record’’ notice that not receive any comments. In such a case, the covered bank is the Corporation has been appointed required to complete a worksheet for Burden Estimates receiver for purposes of the statement of each scenario where such additional policy published in the July 2, 1992 The FDIC estimates the burden of this variables are used to conduct the stress issue of the Federal Register (57 FR collection of information as follows: test. Each scenario worksheet collects 29491). For further information the variable name (matching that Estimated Number of Respondents: 4. concerning the identification of any reported on the Scenario Variable Estimated Annual Burden per institutions which have been placed in Respondent: 1,040 hours. liquidation, please visit the Corporation 9 http://www.fdic.gov/news/news/press/2012/ Estimated Total Annual Burden: pr12068.html. 4,160 hours. 10 77 FR 60695 (October 4, 2012).

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Web site at www.fdic.gov/bank/ Oversight in the appropriate service Federal Deposit Insurance Corporation. individual/failed/banklist.html or center. Pamela Johnson, contact the Manager of Receivership Dated: November 19, 2012. Regulatory Editing Specialist.

INSTITUTIONS IN LIQUIDATION [In alphabetical order]

FDIC Ref. No. Bank name City State Date closed

10466 ...... Hometown Community Bank ...... Braselton ...... GA 11/16/2012

[FR Doc. 2012–28554 Filed 11–23–12; 8:45 am] ‘‘The Federal Open Market Committee FEDERAL RESERVE SYSTEM BILLING CODE 6714–01–P seeks monetary and financial conditions that will foster price stability and Formations of, Acquisitions by, and promote sustainable growth in output. Mergers of Bank Holding Companies FEDERAL ELECTION COMMISSION To further its long-run objectives, the The companies listed in this notice Committee seeks conditions in reserve have applied to the Board for approval, Sunshine Act Notice markets consistent with federal funds pursuant to the Bank Holding Company trading in a range from 0 to 1⁄4 percent. AGENCY: Federal Election Commission. Act of 1956 (12 U.S.C. 1841 et seq.) The Committee directs the Desk to (BHC Act), Regulation Y (12 CFR part DATE AND TIME: Wednesday, November continue the maturity extension 225), and all other applicable statutes 28, 2012 at 10:00 a.m. program it announced in June to and regulations to become a bank PLACE: 999 E Street NW., Washington, purchase Treasury securities with holding company and/or to acquire the DC. remaining maturities of 6 years to 30 assets or the ownership of, control of, or STATUS: This meeting will be closed to years with a total face value of about the power to vote shares of a bank or the public. $267 billion by the end of December bank holding company and all of the ITEMS TO BE DISCUSSED: Compliance 2012, and to sell or redeem Treasury banks and nonbanking companies matters pursuant to 2 U.S.C. 437g. securities with remaining maturities of owned by the bank holding company, Audits conducted pursuant to 2 U.S.C. approximately 3 years or less with a including the companies listed below. 437g, 438(b), and Title 26, U.S.C. total face value of about $267 billion. The applications listed below, as well Matters concerning participation in civil For the duration of this program, the as other related filings required by the actions or proceedings or arbitration. Committee directs the Desk to suspend Board, are available for immediate Internal personnel rules and procedures its policy of rolling over maturing inspection at the Federal Reserve Bank or matters affecting a particular Treasury securities into new issues. The indicated. The applications will also be employee. Committee directs the Desk to maintain available for inspection at the offices of * * * * * its existing policy of reinvesting the Board of Governors. Interested persons may express their views in PERSON TO CONTACT FOR INFORMATION: principal payments on all agency debt Judith Ingram, Press Officer, Telephone: and agency mortgage-backed securities writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the (202) 694–1220. in the System Open Market Account in proposal also involves the acquisition of agency mortgage-backed securities. The Shawn Woodhead Werth, a nonbanking company, the review also Desk is also directed to continue Secretary and Clerk of the Commission. includes whether the acquisition of the purchasing agency mortgage-backed nonbanking company complies with the [FR Doc. 2012–28757 Filed 11–21–12; 4:15 pm] securities at a pace of about $40 billion BILLING CODE 6715–01–P standards in section 4 of the BHC Act per month. The Committee directs the (12 U.S.C. 1843). Unless otherwise Desk to engage in dollar roll and coupon noted, nonbanking activities will be swap transactions as necessary to FEDERAL RESERVE SYSTEM conducted throughout the United States. facilitate settlement of the Federal Unless otherwise noted, comments Federal Open Market Committee Reserve’s agency MBS transactions. The regarding each of these applications Domestic Policy Directive of October System Open Market Account Manager must be received at the Reserve Bank 23–24, 2012 and the Secretary will keep the indicated or the offices of the Board of Committee informed of ongoing Governors not later than December 19, In accordance with Section 271.25 of developments regarding the System’s 2012. its rules regarding availability of balance sheet that could affect the A. Federal Reserve Bank of Dallas (E. information (12 CFR part 271), there is attainment over time of the Committee’s Ann Worthy, Vice President) 2200 set forth below the domestic policy objectives of maximum employment North Pearl Street, Dallas, Texas 75201– directive issued by the Federal Open and price stability.’’ 2272: Market Committee at its meeting held 1. Quanah Financial Corporation on October 23–24, 2012.1 By order of the Federal Open Market Committee, November 15, 2012. Employee Stock Ownership Plan, Quanah, Texas, to retain 32.73 percent 1 William B. English, Copies of the Minutes of the Federal Open of Quanah Financial Corporation, Market Committee at its meeting held on October Secretary, Federal Open Market Committee. 23–24, 2012, which includes the domestic policy Quanah, Texas, and thereby indirectly directive issued at the meeting, are available upon [FR Doc. 2012–28508 Filed 11–23–12; 8:45 am] acquire First Capital Bank, Quanah, request to the Board of Governors of the Federal BILLING CODE 6210–01–P Texas. Reserve System, Washington, DC 20551. The minutes are published in the Federal Reserve Board of Governors of the Federal Reserve Bulletin and in the Board’s Annual Report. System.

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Dated: November 20, 2012. describes the terms of the consent confidential only if the FTC General Margaret McCloskey Shanks, agreement, and the allegations in the Counsel, in his or her sole discretion, Deputy Secretary of the Board. complaint. An electronic copy of the grants your request in accordance with [FR Doc. 2012–28556 Filed 11–23–12; 8:45 am] full text of the consent agreement the law and the public interest. Postal mail addressed to the BILLING CODE 6210–01–P package can be obtained from the FTC Home Page (for November 15, 2012), on Commission is subject to delay due to the World Wide Web, at http:// heightened security screening. As a result, we encourage you to submit your FEDERAL TRADE COMMISSION www.ftc.gov/os/actions.shtm. A paper copy can be obtained from the FTC comments online. To make sure that the [File No. 101 0137] Public Reference Room, Room 130–H, Commission considers your online 600 Pennsylvania Avenue NW., comment, you must file it at https:// Hertz Global Holdings, Inc.; Analysis of Washington, DC 20580, either in person ftcpublic.commentworks.com/ftc/ Agreement Containing Consent Orders or by calling (202) 326–2222. hertzdollarthriftyconsent by following To Aid Public Comment You can file a comment online or on the instructions on the web-based form. If this Notice appears at http:// AGENCY: Federal Trade Commission. paper. For the Commission to consider your comment, we must receive it on or www.regulations.gov/#!home, you also ACTION: Proposed consent agreement. before December 17, 2012. Write ‘‘Hertz, may file a comment through that Web site. SUMMARY: The consent agreement in this File No. 101 0137’’ on your comment. If you file your comment on paper, matter settles alleged violations of Your comment—including your name write ‘‘Hertz, File No. 101 0137’’ on federal law prohibiting unfair or and your state—will be placed on the public record of this proceeding, your comment and on the envelope, and deceptive acts or practices or unfair mail or deliver it to the following methods of competition. The attached including, to the extent practicable, on the public Commission Web site, at address: Federal Trade Commission, Analysis To Aid Public Comment Office of the Secretary, Room H–113 describes both the allegations in the http://www.ftc.gov/os/ publiccomments.shtm. As a matter of (Annex D), 600 Pennsylvania Avenue draft complaint and the terms of the NW., Washington, DC 20580. If possible, consent order—embodied in the consent discretion, the Commission tries to remove individuals’ home contact submit your paper comment to the agreement—that would settle these Commission by courier or overnight allegations. information from comments before placing them on the Commission Web service. Visit the Commission Web site at DATES: Comments must be received on site. or before December 17, 2012. Because your comment will be made http://www.ftc.gov to read this Notice ADDRESSES: Interested parties may file a public, you are solely responsible for and the news release describing it. The FTC Act and other laws that the comment at https:// making sure that your comment does Commission administers permit the ftcpublic.commentworks.com/ftc/ not include any sensitive personal collection of public comments to hertzdollarthriftyconsent online or on information, like anyone’s Social consider and use in this proceeding as paper, by following the instructions in Security number, date of birth, driver’s appropriate. The Commission will the Request for Comment part of the license number or other state consider all timely and responsive SUPPLEMENTARY INFORMATION section identification number or foreign country public comments that it receives on or below. Write ‘‘Hertz, File No. 101 0137’’ equivalent, passport number, financial before December 17, 2012. You can find on your comment and file your account number, or credit or debit card more information, including routine comment online at https:// number. You are also solely responsible uses permitted by the Privacy Act, in ftcpublic.commentworks.com/ftc/ for making sure that your comment does hertzdollarthriftyconsent by following the Commission’s privacy policy, at not include any sensitive health http://www.ftc.gov/ftc/privacy.htm. the instructions on the web-based form. information, like medical records or If you prefer to file your comment on other individually identifiable health Analysis of Agreement Containing paper, mail or deliver your comment to information. In addition, do not include Consent Order To Aid Public Comment the following address: Federal Trade any ‘‘[t]rade secret or any commercial or I. Introduction Commission, Office of the Secretary, financial information which * * * is Room H–113 (Annex D), 600 privileged or confidential,’’ as discussed The Federal Trade Commission Pennsylvania Avenue NW., Washington, in Section 6(f) of the FTC Act, 15 U.S.C. (‘‘Commission’’) has accepted from DC 20580. 46(f), and FTC Rule 4.10(a)(2), 16 CFR Hertz Global Holdings, Inc. (‘‘Hertz’’), subject to final approval, an Agreement FOR FURTHER INFORMATION CONTACT: 4.10(a)(2). In particular, do not include Containing Consent Orders (‘‘Consent Michael R. Moiseyev (202–326–3106), competitively sensitive information Agreement’’), which is designed to FTC, Bureau of Competition, 600 such as costs, sales statistics, remedy the anticompetitive effects Pennsylvania Avenue NW., Washington, inventories, formulas, patterns, devices, resulting from Hertz’s proposed manufacturing processes, or customer DC 20580. acquisition of Dollar Thrifty Automotive names. SUPPLEMENTARY INFORMATION: Pursuant Group, Inc. (‘‘Dollar Thrifty’’). Under to Section 6(f) of the Federal Trade If you want the Commission to give your comment confidential treatment, the terms of the Consent Agreement, Commission Act, 15 U.S.C. 46(f), and Hertz will divest its Advantage Rent A FTC Rule 2.34, 16 CFR 2.34, notice is you must file it in paper form, with a request for confidential treatment, and Car (‘‘Advantage’’) business as well as hereby given that the above-captioned the right to operate at 16 additional consent agreement containing a consent you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR Dollar Thrifty on-airport locations at order to cease and desist, having been which Advantage does not yet operate 4.9(c).1 Your comment will be kept filed with and accepted, subject to final to Franchise Services of North America, approval, by the Commission, has been 1 In particular, the written request for confidential Inc. (‘‘FSNA’’) and Macquarie Capital placed on the public record for a period treatment that accompanies the comment must of thirty (30) days. The following include the factual and legal basis for the request, comment to be withheld from the public record. See Analysis To Aid Public Comment and must identify the specific portions of the FTC Rule 4.9(c), 16 CFR 4.9(c).

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USA Inc. (‘‘Macquarie’’) (collectively individual customers; and contracted • Denver, Colorado (Denver ‘‘FSNA/Macquarie’’). Hertz will also rentals that are available only to volume International Airport) divest 13 additional Dollar Thrifty on- purchasers, such as corporate or • Des Moines, Iowa (Des Moines airport locations to FSNA/Macquarie or government customers who have pre- Airport) another buyer, subject to the approval of negotiated car rental contracts and tour • El Paso, Texas (El Paso Airport) the Commission, following the closing operators offering vacation packages. • Fort Lauderdale, Florida (Fort of its acquisition of Dollar Thrifty. The competitive concerns associated Lauderdale-Hollywood Airport) The proposed Consent Agreement has with the proposed transaction are • Fort Myers, Florida (Southwest been placed on the public record for 30 similar whether the market is viewed as Florida International Airport) days to solicit comments from interested an overall airport car rental market, or • Fort Walton Beach, Florida (Fort persons. Comments received during this as a narrower one excluding rentals Walton Beach Regional Airport) period will become part of the public made pursuant to pre-negotiated rates • Harlingen, Texas (Valley International record. After 30 days, the Commission and terms. Airport) will again review the proposed Consent There are four major competitors • Hartford, Connecticut (Bradley Agreement and will decide whether it operating in the airport car rental International Airport) • should withdraw from the proposed market: Hertz, which operates the Hilo, Hawaii (Hilo International Consent Agreement, modify it, or make Advantage and Hertz brands; Dollar Airport) • it final. Thrifty, which operates the Dollar and Honolulu, Hawaii (Honolulu Pursuant to an Agreement and Plan of Thrifty brands; Avis Budget Group, Inc., International Airport) • Merger dated August 26, 2012, Hertz which operates the Avis and Budget Houston, Texas (George Bush plans to acquire Dollar Thrifty for Intercontinental Airport) brands; and Enterprise Holdings, Inc., • approximately $2.3 billion. The which operates the National, Alamo, Houston, Texas (William P. Hobby Commission’s Complaint alleges that Airport) and Enterprise brands. Market shares • the proposed acquisition, if vary by individual airport, but on a Jacksonville, Florida (Jacksonville consummated, would violate Section 7 national level these four firms account International Airport) of the Clayton Act, as amended, 15 • Kahului, Hawaii (Kahului Airport) for approximately 98% of all U.S. • U.S.C. 18, and Section 5 of the Federal airport car rentals. Las Vegas, Nevada (McCarran Trade Commission Act, as amended, 15 The relevant geographic markets in International Airport) U.S.C. 45, by lessening competition in • Lihue, Hawaii (Lihue Airport) which to evaluate the competitive • the market for airport car rentals. effects of the acquisition are 72 Los Angeles, California (Los Angeles International Airport) II. The Parties individual airport locations: • • Louisville, Kentucky (Louisville Hertz, headquartered in Park Ridge, Albuquerque, New Mexico International Airport) New Jersey, is a global supplier of (Albuquerque International Sunport • Manchester, New Hampshire automobile and equipment rentals and Airport) • (Manchester-Boston Regional Airport) related products and services. The Atlanta, Georgia (Hartsfield-Jackson • Miami, Florida (Miami International company provides car rentals to International Airport) Airport) • consumers at virtually every large or Austin, Texas (Austin-Bergstrom • Milwaukee, Wisconsin (Milwaukee medium-sized commercial airport in the International Airport) International Airport) • United States. Baltimore, Maryland (Baltimore/ • Minneapolis-St. Paul, Minnesota Dollar Thrifty is headquartered in Washington International Thurgood (Minneapolis-St. Paul International Tulsa, Oklahoma, and supplies Marshall Airport) Airport) • automobile rentals to customers Boston, Massachusetts (Logan • Nashville, Tennessee (Nashville throughout the United States and International Airport) International Airport) • Canada. In the United States, Dollar Burbank, California (Burbank Bob • New York, New York (LaGuardia Thrifty is present at most major airports, Hope Airport) Airport) and it operates 86 company-owned • Burlington, Vermont (Burlington • New York, New York (John F. airport locations. International Airport) Kennedy International Airport) • Charleston, South Carolina • Newark, New Jersey (Newark Liberty III. The Relevant Product and Structure (Charleston International Airport) International Airport) of the Markets • Charlotte, North Carolina (Charlotte • Norfolk, Virginia (Norfolk The acquisition threatens to harm Douglas International Airport) International Airport) competition in the airport car rental • Chicago, Illinois (Chicago Midway • Oakland, California (Oakland market. Airport car rentals consist of car International Airport) International Airport) rentals made to consumers at airport • Chicago, Illinois (Chicago O’Hare • Oklahoma City, Oklahoma (Will locations. Airport car rentals are a International Airport) Rogers World Airport) distinct relevant market because • Cincinnati, Ohio (Cincinnati/ • Omaha, Nebraska (Omaha Airport) alternative modes of transportation, Northern Kentucky International • Los Angeles, California (Ontario such as a taxis or buses, are not Airport) International Airport) reasonable substitutes. Other forms of • Cleveland, Ohio (Cleveland Hopkins • Orange County, California (John transportation do not provide the International Airport) Wayne Airport) convenience, autonomy, or cost • Colorado Springs, Colorado (Colorado • Orlando, Florida (Orlando efficiency of renting a car, and, as a Springs Airport) International Airport) practical matter, customers are unlikely • Dallas, Texas (Dallas Love Field • Pensacola, Florida (Pensacola to turn to these alternative forms of Airport) International Airport) transportation in response to a small but • Dallas, Texas (Dallas/Fort Worth • Phoenix, Arizona (Sky Harbor significant increase in airport car rental International Airport) Airport) prices. There are two categories of • Detroit, Michigan (Detroit Metro • Pittsburgh, Pennsylvania (Pittsburgh airport car rentals: those made to Airport) International Airport)

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• Portland, Oregon (Portland single-digit market share. Accordingly, competition in the airport car rental International Airport) new entry would not be timely, likely, market. • Providence, Rhode Island (T.F. Green or sufficient to counteract the FSNA/Macquarie possesses the Airport) anticompetitive effects that would arise resources and capability to acquire the • Raleigh-Durham, North Carolina as a result of the acquisition. divested assets and replace Dollar (Raleigh-Durham International V. Effects of the Acquisition Thrifty as an effective competitor in the Airport) affected geographic markets. FSNA has • Reno, Nevada (Reno-Tahoe Hertz and Dollar Thrifty are two of existing relationships with the major International Airport) four major competitors in markets for online travel agencies, has the IT • Richmond, Virginia (Richmond airport car rentals. By eliminating the infrastructure necessary to support the International Airport) substantial competition between Hertz divested assets, and managers • Sacramento, California (Sacramento and Dollar Thrifty, the proposed experienced in running a national International Airport) acquisition would cause consumers of airport car rental company. Macquarie is • Salt Lake City, Utah (Salt Lake City airport car rentals to pay higher prices a global provider of banking, financial, International Airport) and experience reduced levels of service • advisory, investment and funds San Antonio, Texas (San Antonio and slower innovation rates. management services. Macquarie has International Airport) With only four suppliers of national committed substantial financial • San Diego, California (San Diego significance, the markets for airport car resources to the Advantage transaction, International Airport) rentals are already highly concentrated. and it expects to provide additional • Sanford, Florida (Orlando-Sanford In many instances, Hertz and Dollar growth capital as needed. FSNA/ International Airport) Macquarie’s resources and expertise, • San Francisco, California (San Thrifty compete head-to-head for the together with the initial rental car fleet Francisco International Airport) sale of airport car rentals in each and other support terms contained in • San Jose, California (Norman Y. relevant market. Among other ways of the Consent Agreement, will enable Mineta San Jose International Airport) competing with Dollar Thrifty, Hertz’s FSNA/Macquarie to compete effectively • Sarasota, Florida (Sarasota Bradenton low-priced Advantage brand is as the fourth largest rental car company International Airport) positioned similarly to Dollar Thrifty in • Seattle, Washington (Seattle-Tacoma terms of price, features, and customer in the country. International Airport) service, and Hertz’s incentive to Pursuant to the Consent Agreement, • Tampa, Florida (Tampa International continue to expand Advantage would be FSNA/Macquarie will receive the assets Airport) reduced significantly post-acquisition. necessary to replicate Advantage’s • Tulsa, Oklahoma (Tulsa International The elimination of the direct current airport car rental business, and this, Airport) and future competition between Hertz coupled with the divestiture of the • Washington, District of Columbia and Dollar Thrifty would allow Hertz to additional Dollar Thrifty airport (Ronald Reagan National Airport) increase prices, slow the pace of concession agreements and related • Washington, District of Columbia innovation, and/or decrease service assets, remedies the unilateral and (Washington Dulles International levels. In addition, the fact that only coordinated anticompetitive effects of Airport) three firms would own all of the most the transaction. In addition to ensuring • West Palm Beach, Florida (Palm competitively significant brands after that employees of the businesses have Beach International Airport) the proposed acquisition leads to an the incentive to continue their increased likelihood of coordination employment with the acquirers, the IV. Entry among the remaining competitors. Consent Agreement requires Hertz to Neither new entry nor repositioning provide FSNA/Macquarie with access to VI. The Consent Agreement and expansion sufficient to deter or an initial rental car fleet and related counteract the anticompetitive effects of The proposed Consent Agreement support until FSNA/Macquarie can the proposed acquisition is likely to resolves the acquisition’s independently obtain its own fleet of occur within two years. A new entrant anticompetitive effects by requiring cars. Combined, the Consent Agreement to the airport car rental market would Hertz to divest its entire Advantage provisions ensure the benefits of face significant obstacles, as entering the business as well as 16 additional on- competition that would otherwise have airport car rental business on an airport locations to FSNA/Macquarie. been lost through the acquisition will be efficient scale is both expensive and This divestiture will effectively maintained. time-consuming. In order to compete replicate the loss of current and future The Commission has appointed an effectively across geographic markets, a competition that would occur if Hertz interim monitor to oversee the new entrant must have concession acquires Dollar Thrifty. Also, by divestiture of the assets after the contracts in place that allow it to creating a new independently-owned Consent Agreement has been signed. In operate at each individual airport, competitor with a national footprint, the order to ensure that the Commission establish brand identity, gain access to Consent Agreement effectively remains informed about the status of the online travel agencies and other addresses the threat of increased proposed divestitures, the proposed distribution channels, and be of a size coordinated interaction among the Consent Agreement requires the parties sufficient to achieve economies of scale. remaining competitors. The Consent to file periodic reports with the Further, in order to draw customers, a Agreement also requires that Hertz Commission until the divestiture is new entrant would have to develop a divest 13 additional Dollar Thrifty accomplished. If the Commission reputation for quality and reliability, airport concession agreements and determines that Hertz has not fully and it would take at least several years related assets to a Commission- complied with its obligations under the to acquire a reputation on par with the approved buyer, whether FSNA/ Decision and Order within ten days existing national firms. These entry Macquarie or another acquirer, within after the date the Decision and Order barriers have limited existing fringe 60 days of the closing of the acquisition. becomes final, the Commission may firms from expanding beyond their This requirement further ensures that seek civil penalties to ensure that Hertz regional footprints and collective low the acquisition will not harm remains in compliance.

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The purpose of this analysis is to the public on this ICR during the review Need and Proposed Use of the facilitate public comment on the and approval period. Information: DCVMRC uses MRC unit Consent Agreement, and it is not DATES: Comments on the ICR must be data in reports and presentations, and intended to constitute an official received on or before December 26, analyzes the data to assess the interpretation of the proposed Decision 2012. maturation and sustainment of the and Order or to modify its terms in any program, confirm that MRC units are ADDRESSES: Submit your comments to way. [email protected] or via carrying out activities in support of the By direction of the Commission, facsimile to (202) 395–5806. Surgeon General’s priorities, and to best Commissioner Rosch dissenting. tailor the technical assistance provided FOR FURTHER INFORMATION CONTACT: to MRC units. In addition, the data Donald S. Clark, Information Collection Clearance staff, serves as an important recruitment tool Secretary. Information.CollectionClearance@ [FR Doc. 2012–28517 Filed 11–23–12; 8:45 am] hhs.gov or (202) 690–6162. for the individual MRC units. Often, before committing to volunteer with an BILLING CODE 6750–01–P SUPPLEMENTARY INFORMATION: When MRC unit, potential volunteers go to the submitting comments or requesting MRC Web site (www.medicalreserve information, please include the OMB corps.gov) to review the local MRC DEPARTMENT OF HEALTH AND control number 0990–0302 and profile, which includes its name and HUMAN SERVICES document identifier HHS–OS–17339– 30D for reference. point of contact, the most recent MRC Office of the Secretary Information Collection Request Title: unit activities, the community served, Medical Reserve Corps Unit Profile and the date established, a narrative profile, [Document Identifier: HHS–OS–17339–30D] Reports. and an up-to-date count of its volunteers. Agency Information Collection OMB No.: 0990–0302. Activities; Submission to OMB for Abstract: Medical Reserve Corps Likely Respondents: MRC Unit Review and Approval; Public Comment (MRC) units are currently located in Leaders almost 1,000 communities across the Request Burden Statement: Burden in this United States, and represent a resource context means the time expended by AGENCY: Office of the Secretary, HHS. of more than 205,000 volunteers. In persons to generate, maintain, retain, ACTION: Notice. order to continue supporting the MRC units in communities across the United disclose or provide the information SUMMARY: In compliance with section States, and to continue planning for requested. This includes the time 3507(a)(1)(D) of the Paperwork future emergencies that are national in needed to review instructions, to Reduction Act of 1995, the Office of the scope, detailed information about the develop, acquire, install and utilize Secretary, Department of Health and MRC units, including unit technology and systems for the purpose Human Services, has submitted an demographics, contact information of collecting, validating and verifying Information Collection Request (ICR), (regular and emergency), volunteer information, processing and described below, to the Office of numbers, unit characteristics and maintaining information, and disclosing Management and Budget (OMB) for information about activities is needed and providing information, to train review and approval. The ICR is for by the Division of Civilian Volunteer personnel and to be able to respond to renewal of the approved information Medical Reserve Corps (DCVMRC). MRC a collection of information, to search collection assigned OMB control Unit Leaders are asked to update this data sources, to complete and review number 0990–0302, scheduled to expire information on the MRC Web site at the collection of information, and to on November 31, 2012. Comments least quarterly, and to participate in a transmit or otherwise disclose the submitted during the first public review Technical Assistance Assessment at information. The total annual burden of this ICR will be provided to OMB. least annually. This OMB extension hours estimated for this ICR are OMB will accept further comments from request is for 3 years. summarized in the table below.

TOTAL ESTIMATED ANNUALIZED BURDEN—HOURS

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

MRC Unit Registration Form ...... 1,000 6 1 6,000

Total ...... 6,000 ...... 6,000

Keith A. Tucker, Information Collection Clearance Officer. [FR Doc. 2012–28567 Filed 11–23–12; 8:45 am] BILLING CODE 4150–47–P

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DEPARTMENT OF HEALTH AND www.regulations.gov. Follow the search organizations to develop valid and HUMAN SERVICES instructions on that Web site to view reliable quality measures and to public comments. consider how best to report those Office of the National Coordinator for Dated: November 14, 2012. measures to beneficiaries. Health Information Technology; Health A primary vehicle for reporting MacKenzie Robertson, Information Technology; HIT Policy quality information to beneficiaries is Committee: Request for Comment FACA Program Lead, Office of Policy and the Medicare Plan Finder, a section of Regarding the Stage 3 Definition of Planning, Office of the National Coordinator the Medicare Web site that is intended for Health Information Technology. Meaningful Use of Electronic Health to help beneficiaries make informed Records (EHRs) [FR Doc. 2012–28584 Filed 11–23–12; 8:45 am] choices among health and prescription BILLING CODE 4150–45–P drug plans. The Medicare Plan Finder AGENCY: Health Information Technology tool contains a great deal of potentially (HIT) Policy Committee, Office of the useful information, including extensive DEPARTMENT OF HEALTH AND National Coordinator for Health data on the fixed and variable costs HUMAN SERVICES Information Technology (ONC), associated with being enrolled in plans, Department of Health and Human the benefits and coverage that plans Services (HHS). Centers for Medicare & Medicaid Services offer, and the quality of service that ACTION: Notice. plans provide, as revealed by member [Document Identifier: CMS–10441] experience data, disenrollment SUMMARY: This notice announces the statistics, and a variety of measures of HIT Policy Committee’s request for Agency Information Collection clinical processes and outcomes. comments on its draft recommendations Activities: Submission for OMB One of the key challenges that CMS for meaningful use Stage 3. Review; Comment Request has faced is how to engage beneficiaries DATES: To be assured consideration, AGENCY: Centers for Medicare & with the quality information provided electronic comments must be received Medicaid Services, HHS. in the Medicare Plan Finder. Among the no later than 11:59p.m. ET on January possible reasons that beneficiaries may 14, 2013. In compliance with the requirement fail to engage with this information are of section 3506(c)(2)(A) of the ADDRESSES: Because of staff and first, that several steps are required for Paperwork Reduction Act of 1995, the resource limitations, we are only a user of the Medicare Plan Finder to Centers for Medicare & Medicaid accepting comments electronically gain access to comparative plan Services (CMS), Department of Health through http://www.regulations.gov. information, and second that once the and Human Services, is publishing the Follow the ‘‘Submit a comment’’ user does reach a data display, the following summary of proposed instructions. Attachments should be in amount of information presented is collections for public comment. Microsoft Word or Excel, WordPerfect, voluminous, and can seem Interested persons are invited to send or Adobe PDF. Please do not submit overwhelming. comments regarding this burden duplicative comments. This study will use an experimental estimate or any other aspect of this FOR FURTHER INFORMATION CONTACT: design to assess the effectiveness of two collection of information, including any potential enhancements to the Medicare MacKenzie Robertson, Office of the of the following subjects: (1) The National Coordinator, Patriots Plaza III, Plan Finder tool that may help address necessity and utility of the proposed these barriers to engagement and use of 355 E Street SW., Washington, DC information collection for the proper quality information. The purpose of this 20201, (202) 205–8089, performance of the Agency’s function; experiment is to test the effects of two [email protected]. (2) the accuracy of the estimated prospective enhancements to the SUPPLEMENTARY INFORMATION: The burden; (3) ways to enhance the quality, Medicare Plan Finder (MPF) Web site. Request for Comment can be found on utility, and clarity of the information to We refer to these prospective the ONC Web site at http:// be collected; and (4) the use of enhancements as the ‘‘Quick Links’’ www.healthit.gov/buzz-blog/. automated collection techniques or home page and the ‘‘enhanced data Inspection of Public Comments: All other forms of information technology to display.’’ Form Number: CMS– comments received before the close of minimize the information collection 10441(OCN#: 0938–New); Frequency: the comment period will be available for burden. Reporting—Once; Affected Public: public inspection, including any 1. Type of Information Collection individuals or households; Number of personally identifiable or confidential Request: New collection; Title: Medicare Respondents: 600; Total Annual business information that is included in Plan Finder Experiment; Use: The Responses: 600; Total Annual Hours: a comment. Please do not include mission of the Centers for Medicare & 252. (For policy questions regarding this anything in your comment submission Medicaid Services (CMS) is to ensure collection contact David Miranda at that you do not wish to share with the the provision of health care to its 410–786–7819. For all other issues call general public. Such information beneficiaries. Recent legislative 410–786–1326.) includes, but is not limited to: A mandates, including the Medicare To obtain copies of the supporting person’s social security number; date of Prescription Drug, Improvement, and statement and any related forms for the birth; driver’s license number; state Modernization Act of 2003, require CMS proposed paperwork collections identification number or foreign country to provide information to beneficiaries referenced above, access CMS Web Site equivalent; passport number; financial about the quality of the Medicare health address at http://www.cms.hhs.gov/ account number; credit or debit card and prescription drug plans. To provide PaperworkReductionActof1995, or number; any personal health that information, all Medicare health Email your request, including your information; or any business and prescription drug plans with an address, phone number, OMB number, information that could be considered to enrollment of 600 or more are required and CMS document identifier, to be proprietary. We will post all to collect and report data following [email protected], or call the comments received before the close of protocols that CMS has established. Reports Clearance Office on (410) 786– the comment period on http:// CMS has also contracted with various 1326.

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To be assured consideration, identity of an individual requesting benefits are provided under Part 422. comments and recommendations for the electronic access to CMS protected Form Number: CMS–10453 (OCN: proposed information collections must information or services, CMS will 0938–New); Frequency: On occasion; be received by the OMB desk officer at collect a core set of attributes about that Affected Public: Private Sector— the address below, no later than 5 p.m. individual. Business or other for-profits. Number of on January 10, 2013. These core attributes will be used to: Respondents: 564. Number of OMB, Office of Information and 1. Provide the identity proofing Responses: 2,256. Total Annual Hours: service sufficient data to establish that Regulatory Affairs, Attention: CMS Desk 101,520. (For policy questions regarding Officer, Fax Number: (202) 395–6974, the individual’s identity is provable to this collection contact Chris McClintick Email: [email protected]. a NIST assurance level; 2. Store the approval information at 410–786–4682. For all other issues Dated: November 19, 2012. returned by the identity proofing call 410–786–1326.) Martique Jones, service; To obtain copies of the supporting Director, Regulations Development Group, 3. Provide CMS with additional data statement and any related forms for the Division B, Office of Strategic Operations and for multi-factor identification (personal Regulatory Affairs. proposed paperwork collections questions and answers); referenced above, access CMS’ Web Site [FR Doc. 2012–28569 Filed 11–23–12; 8:45 am] 4. Provide the user a single sign-on, BILLING CODE 4120–01–P address at http://www.cms.hhs.gov/ federated CMS EIDM ID and Password; PaperworkReductionActof1995, or 5. Authenticate the user; and 6. Authorize the user for application Email your request, including your DEPARTMENT OF HEALTH AND access. address, phone number, OMB number, HUMAN SERVICES The information collected will be and CMS document identifier, to gathered and used solely by CMS and [email protected], or call the Centers for Medicare & Medicaid approved contractor(s) and state health Reports Clearance Office on (410) 786– Services insurance exchanges. Information 1326. [Document Identifier: CMS–10452 and CMS– confidentiality will conform to HIPAA In commenting on the proposed 10453] and FISMA requirements. Respondents information collections please reference may also access CMS Terms of Service Agency Information Collection the document identifier or OMB control and CMS Privacy Statement on the Web. number. To be assured consideration, Activities: Proposed Collection; Form Numbers: CMS–10452 (OCN: Comment Request comments and recommendations must 0938–New); Frequency: Reporting—On be submitted in one of the following AGENCY: Centers for Medicare & occasion; Affected Public: Individuals ways by January 25, 2013: Medicaid Services, HHS. and households; Number of Annual In compliance with the requirement Respondents: 26 million; Total Annual 1. Electronically. You may submit of section 3506(c)(2)(A) of the Responses: 26,000,000; Total Annual your comments electronically to http:// Paperwork Reduction Act of 1995, the Hours: 8,666,667. (For policy questions www.regulations.gov. Follow the Centers for Medicare & Medicaid regarding this collection contact Robert instructions for ‘‘Comment or Services (CMS) is publishing the Burger at 410–786–2125. For all other Submission’’ or ‘‘More Search Options’’ following summary of proposed issues call 410–786–1326.) to find the information collection collections for public comment. 2. Type of Information Collection document(s) accepting comments. Interested persons are invited to send Request: New collection; Title of 2. By regular mail. You may mail comments regarding this burden Information Collection: The Medicare written comments to the following Advantage and Prescription Drug estimate or any other aspect of this address: CMS, Office of Strategic Program: Part C Explanation of Benefits collection of information, including any Operations and Regulatory Affairs, of the following subjects: (1) The CFR 422.111(b)(12); Use: CMS is Division of Regulations Development, necessity and utility of the proposed requesting OMB approval for the Attention: Document Identifier/OMB information collection for the proper information collection requirements lllll performance of the agency’s functions; referenced in the April 15, 2011 final Control Number , Room C4– (2) the accuracy of the estimated rule revising the Medicare Advantage 26–05, 7500 Security Boulevard, burden; (3) ways to enhance the quality, (MA) and Part D programs for calendar Baltimore, Maryland 21244–1850. utility, and clarity of the information to year 2012 (77 FR 21432–21577). The Dated: November 19, 2012. be collected; and (4) the use of rule revised the MA disclosure Martique Jones, requirements in 42 CFR 422.111(b) by automated collection techniques or Director, Regulations Development Group, other forms of information technology to adding the authority for CMS to require Division B, Office of Strategic Operations and minimize the information collection MA organizations to furnish a written Regulatory Affairs. explanation of benefits directly to burden. [FR Doc. 2012–28570 Filed 11–23–12; 8:45 am] 1. Type of Information Collection enrollees, in a manner specified by CMS Request: New collection; Title of and in a form easily understandable to BILLING CODE 4120–01–P Information Collection: CMS Enterprise enrollees, when benefits are provided Identity Management System; Use: The under Part 422. The collection Enterprise Identity Management (EIDM) instrument that requires OMB approval solution will provide an enterprise-wide concerns the disclosure requirements in solution that will also support CMS’ paragraph 42 CFR 422.111(b)(12). This senior management goal to improve the information collection request would Provider and Health Information require MA organizations to furnish Exchange experience by providing an directly to enrollees, in the manner enterprise-wide set of credentials and specified by CMS and in a form easily single sign-on capability for multiple understandable to such enrollees, a CMS applications. In order to prove the written explanation of benefits, when

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DEPARTMENT OF HEALTH AND through accreditation by an approved 1865(a)(2) of the Act and in our HUMAN SERVICES national accrediting organization that all regulations at § 488.4 and § 488.8, we applicable Medicare conditions are met conducted a review of AAAASF’s Centers for Medicare & Medicaid or exceeded, we will deem those application in accordance with the Services provider entities as having met the criteria specified by our regulations, [CMS–3262–FN] requirements. Accreditation by an which include, but are not limited to the accrediting organization is voluntary following: Medicare and Medicaid Programs; and is not required for Medicare • An onsite administrative review of Approval of the American Association participation. AAAASF’s—(1) corporate policies; (2) for Accreditation of Ambulatory If an accrediting organization is financial and human resources available Surgery Facilities (AAAASF) for recognized by the Secretary as having to accomplish the proposed surveys; (3) Continuing CMS Approval of Its standards for accreditation that meet or procedures for training, monitoring, and Ambulatory Surgical Center exceed Medicare requirements, any evaluation of its surveyors; (4) ability to Accreditation Program provider entity accredited by the investigate and respond appropriately to national accrediting body’s approved complaints against accredited facilities; AGENCY: Centers for Medicare & program would be deemed to meet the and (5) survey review and decision- Medicaid Services, HHS. Medicare conditions. A national making process for accreditation. ACTION: Final notice. accrediting organization applying for • The comparison of AAAASF’s approval of its accreditation program accreditation to CMS’s current Medicare SUMMARY: This notice announces our under part 488, subpart A, must provide ASC conditions for coverage. decision to approve the American us with reasonable assurance that the • A documentation review of Association for Accreditation of accrediting organization requires the AAAASF’s survey process to— Ambulatory Surgery Facilities accredited provider entities to meet + Determine the composition of the (AAAASF) for continued recognition as requirements that are at least as survey team, surveyor qualifications, a national accrediting organization for stringent as the Medicare conditions. and AAAASF’s ability to provide ambulatory surgical centers (ASCs) that Our regulations concerning the approval continuing surveyor training. wish to participate in the Medicare or of accrediting organizations are set forth + Compare AAAASF’s processes to Medicaid programs. at § 488.4 and § 488.8(d)(3). The those of State survey agencies, including DATES: Effective Date: This final notice regulations at § 488.8(d)(3) require an survey frequency, and the ability to is effective November 27, 2012 through accrediting organization to reapply for investigate and respond appropriately to November 27, 2018. continued approval of its accreditation complaints against accredited facilities. + Evaluate AAAASF’s procedures for FOR FURTHER INFORMATION CONTACT: program every 6 years or sooner as monitoring ASCs found to be out of Cindy Melanson, (410) 786–0310. determined by CMS. American Association for compliance with AAAASF’s program Patricia Chmielewski, (410) 786–6899. Accreditation of Ambulatory Surgery requirements. The monitoring SUPPLEMENTARY INFORMATION: Facilities (AAAASFs) current term of procedures are used only when I. Background approval for their ASC accreditation AAAASF identifies noncompliance. If program expires November 27, 2012. noncompliance is identified through Under the Medicare program, eligible validation reviews, the State survey II. Application Approval Process beneficiaries may receive covered agency monitors corrections as specified services in an ambulatory surgical Section 1865(a)(3)(A) of the Act at § 488.7(d). center (ASC) provided certain provides a statutory timetable to ensure + Assess AAAASF’s ability to report requirements are met. Section 1832 that our review of applications for CMS deficiencies to the surveyed facilities (a)(2)(F)(i) of the Social Security Act approval of an accreditation program is and respond to the facility’s plan of (the Act) establishes distinct criteria for conducted in a timely manner. The Act correction in a timely manner. facilities seeking designation as an ASC. provides us with 210 days from receipt + Establish AAAASF’s ability to Regulations concerning provider of a complete application, with any provide CMS with electronic data and agreements are at 42 CFR part 489 and documentation necessary, to make the reports necessary for effective validation those pertaining to activities relating to determination and to complete our and assessment of the organization’s the survey and certification of facilities survey activities and application survey process. are at 42 CFR part 488. The regulations process. Within 60 days after receiving + Determine the adequacy of staff and at 42 CFR part 416 specify the a complete application, we must other resources. conditions that an ASC must meet to publish a notice in the Federal Register + Confirm AAAASF’s ability to participate in the Medicare program, the that identifies the national accrediting provide adequate funding for scope of covered services, and the body making the request, describes the performing required surveys. conditions for Medicare payment for request, and provides no less than a 30 + Confirm AAAASF’s policies with ASCs. day public comment period. At the end respect to whether surveys are Generally, to enter into an agreement, of the 210-day period, we must publish announced or unannounced. an ASC must first be certified by a State a notice in the Federal Register + Obtain AAAASF’s agreement to survey agency as complying with the approving or denying the application. provide CMS with a copy of the most conditions or requirements set forth in current accreditation survey together 42 CFR part 416. Thereafter, the ASC is III. Provisions of the Proposed Notice with any other information related to subject to regular surveys by a State On June 22, 2012, we published a the survey as we may require, including survey agency to determine whether it proposed notice in the Federal Register corrective action plans. continues to meet these requirements. (77 FR 37678) announcing AAAASF’s In accordance with section There is an alternative, however, to request for continued approval of its 1865(a)(3)(A) of the Act, the June 22, surveys by State agencies. ASC accreditation program. In the 2012 proposed notice also solicited Section 1865(a)(1) of the Act provides proposed notice, we detailed our public comments regarding whether that, if a provider entity demonstrates evaluation criteria. Under section AAAASF’s requirements met or

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exceeded the Medicare conditions for policies regarding timeframes for Advisory Panel on Hospital Outpatient coverage for ASCs. We received no sending and receiving a plan of Payment (HOP, the Panel), (the public comments in response to our correction. Ambulatory Payment Classification proposed notice. • To meet the requirements at Section (APC) Panel) for 2013. The purpose of 3012 of the SOM, AAAASF modified its IV. Provisions of the Final Notice the Panel is to advise the Secretary of policies to ensure follow-up, focused the Department of Health and Human A. Differences Between AAAASF’s surveys for condition level Services (DHHS) (the Secretary) and the Standards and Requirements for noncompliance are conducted timely. Administrator of the Centers for • To meet the requirements at Section Accreditation and Medicare’s Medicare & Medicaid Services (CMS) 2700A of the SOM, AAAASF modified Conditions and Survey Requirements (the Administrator) on the clinical its policies to ensure all surveys are We compared AAAASF’s ASC conducted unannounced. integrity of the APC groups and their requirements and survey process with associated weights, and hospital the Medicare conditions for coverage B. Term of Approval outpatient therapeutic supervision and survey process as outlined in the Based on our review and observations issues. State Operations Manual (SOM). Our described in section III of this final DATES: review and evaluation of AAAASF’s notice, we have determined that Meeting Date: The first semi- ASC application, which were conducted AAAASF’s requirements for ASCs meet annual meeting in 2013 is scheduled for as described in section III of this final or exceed our requirements. Therefore, the following dates and times. notice, yielded the following: we approve AAAASF as a national Note: The times listed in this notice are • To meet the requirements at accreditation organization for ASCs that Eastern Daylight Time (EDT) and are § 416.41(b)(2), AAAASF revised its request participation in the Medicare approximate times; consequently, the standards to ensure the ASC’s transfer program, effective November 27, 2012 meetings may last longer than the times agreement is with a local, Medicare- through November 27, 2018. listed in this notice, but will not begin before participating hospital that meets the the posted times: V. Collection of Information requirements for emergency services. • Monday, March 11, 2013, 1 p.m. to 5 Requirements • To meet the requirements at p.m. EDT § 416.44(a)(2), AAAASF revised its This document does not impose any • Tuesday, March 12, 2013, 9 a.m. to 5 standards to address the requirement information reporting, recordkeeping or p.m. EDT that ‘‘the ASC must have a separate third-party disclosure requirements. recovery room and waiting area.’’ Consequently, it need not be reviewed Deadlines • AAAASF revised its crosswalk to by the Office of Management and ensure that all regulatory references are Budget under the authority of the Deadline for Presentations and correct for the following citations: Paperwork Reduction Act of 1995 (44 Comments U.S.C. 35). § 416.42(a)(2), § 416.42(c)(2), The email copy of a presentation or § 416.44(c)(3), § 416.50(c)(1), § 416.50(e), Authority: Section 1865 of the Social comment and form CMS–20017 must be and § 416.50(g). Security Act (42 U.S.C. 1395bb). in the Designated Federal Official’s • To meet the requirements at (Catalog of Federal Domestic Assistance (DFO’s) email inbox § 488.4(a)(4), AAAASF modified its Program No. 93.778, Medical Assistance ([email protected]) by 5 p.m. policies to ensure all personnel files are Program; No. 93.773 Medicare—ASC EDT, Friday, January 25, 2013. The accurate and complete. Insurance Program; and No. 93.774, • To meet the requirements at hardcopy of the presentation must be Medicare—Supplementary Medical received by the DFO on or before § 488.4(a)(5), AAAASF modified its Insurance Program) policies to improve the accuracy and Friday, February 1, 2013. Presentations consistency of data submissions to CMS. Dated: November 20, 2012. and comments that are not received by • To meet the requirements at Marilyn Tavenner, the due dates will be considered late § 488.4(a)(6), AAAASF modified its Acting Administrator, Centers for Medicare and will not be included on the agenda. policies to ensure all compliant & Medicaid Services. (See below for submission instructions investigations are conducted in [FR Doc. 2012–28640 Filed 11–23–12; 8:45 am] for both hardcopy and electronic accordance with the requirements in BILLING CODE 4120–01–P submissions.) chapter Five of the SOM. Meeting Registration Timeframe: • To meet the requirements at DEPARTMENT OF HEALTH AND Monday, January 9, 2013 through § 488.6(a), AAAASF revised its policies Friday, February 22, 2013 at 5 p.m. EDT. and procedures to ensure deemed status HUMAN SERVICES Participants planning to attend this survey files are complete and accurate. Centers for Medicare & Medicaid • To meet the requirements at meeting in person must register online, Services § 488.12, AAAASF modified its policies during the above specified timeframe at: to ensure all pertinent survey [CMS–1597–N] https://www.cms.gov/apps/events/ information, including all surveys default.asp. On this Web page, double conducted, is included in the final Medicare Program; Semi-Annual click the ‘‘Upcoming Events’’ hyperlink, accreditation decision letters. Meeting of the Advisory Panel on and then double click the ‘‘HOP Panel’’ • To meet the medical record Hospital Outpatient Payment (HOP event title link and enter the required requirements at Appendix L of the Panel)—March 11 and 12, 2013 information. Include any requests for SOM, AAAASF revised its policies to AGENCY: Centers for Medicare & special accommodations. Note: ensure surveyors review the required Medicaid Services (CMS), HHS. Participants who do not plan to attend this meeting in person should not number of medical records during a ACTION: Notice. survey. register. No registration is required for • To meet the requirements at Section SUMMARY: This notice announces the participants that plan to view the 2728 of the SOM, AAAASF modified its first semi-annual meeting of the meeting via webcast.

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Submission Instructions for Resource Locator (URL) for linking to Ambulatory Payment Classification Presentations and Comments this form is as follows: http://www.cms. (APC) groups and relative payment Because of staffing and resource hhs.gov/cmsforms/downloads/ weights. The Panel (which was formerly limitations, we cannot accept written cms20017.pdf. known as the Advisory Panel on comments and or presentations by FAX. Meeting Location and Webcast: The Ambulatory Payment Classification meeting will be held in the Auditorium, Groups) is governed by the provisions of Presentations CMS Central Office, 7500 Security the Federal Advisory Committee Act Presentation subject matter must be Boulevard, Woodlawn, Maryland (Pub. L. 92–463), as amended (5 U.S.C. within the scope of the Panel designated 21244–1850. Appendix 2), to set forth standards for in the Charter. Any presentations Alternately, the public may view this the formation and use of advisory outside of the scope of this Panel will meeting via a webcast. During the panels. be returned and/or amendments scheduled meeting, webcasting is The Charter provides that the Panel requested. Unrelated topics include, but accessible online at: http://cms.gov/live shall meet up to 3 times annually. We are not limited to, the conversion factor, or http://www.ustream.tv. Viewers consider the technical advice provided charge compression, revisions to the interested in receiving the webcast from by the Panel as we prepare the proposed cost report, pass-through payments, http://www.ustream.tv will need to type and final rules to update the outpatient correct coding, new technology ‘‘CMS Public Events’’ in the search bar prospective payment system (OPPS). to access the webcast. applications (including supporting II. Agenda information/documentation), provider FOR FURTHER INFORMATION CONTACT: For payment adjustments, supervision of inquiries about the Panel, contact the The agenda for the March 2013 hospital outpatient diagnostic services DFO: Chuck Braver, 7500 Security meeting will provide for discussion and and the types of practitioners that are Boulevard, Mail Stop: C4–05–17, comment on the following topics as permitted to supervise hospital Woodlawn, MD 21244–1850. Phone: designated in the Panel’s Charter: • outpatient services. The Panel may not (410) 786–3985. Email: APCPanel@cms. Addressing whether procedures recommend that services be designated hhs.gov within an APC group are similar both as nonsurgical extended duration Mail hardcopies and email copies to clinically and in terms of resource use. • therapeutic services. the following addresses: Chuck Braver, Evaluating APC group weights. All presentations are limited to 5 DFO, CMS, CM, HAPG, DOC—HOP • Reviewing the packaging of OPPS minutes total presentation time, Panel, 7500 Security Blvd. Mail Stop: services and costs, including the regardless of the number of individuals C4–05–17, Woodlawn, MD 21244–1850 methodology and the impact on APC or organizations represented by a single Email: [email protected] groups and payment. • presentation. Presenters may use their 5 Note: We recommend that you advise Removing procedures from the minutes to represent either one or more couriers of the following information: When inpatient list for payment under the agenda items. delivering hardcopies of presentations to OPPS. All presentations will be considered CMS, call (410) 786–4532 or (410) 786–6719 • Using single and multiple public information and may be posted to ensure receipt of documents by procedure claims data for CMS’ on the CMS Web site and will be shared appropriate staff. determination of APC group weights. with the public. Presenters should not News Media: Representatives must • Addressing other technical issues send pictures of patients or Medicare contact our Public Affairs Office at (202) concerning APC group structure. beneficiaries in any of the documents 690–6145. • Recommending the appropriate (unless their faces have been blocked Advisory Committees’ Information supervision level (general, direct, or out) or include any examples with Lines: The phone numbers for the CMS personal) for individual hospital personally identifiable information. Federal Advisory Committee Hotline are outpatient therapeutic services. In order to consider presentation and/ 1–877–449–5659 (toll free) and (410) The subject matter before the Panel or comment requests, we will need to 786–3985 (local). will be limited to these and related receive the following information: Web Sites: For additional information topics. Unrelated topics include, but are 1. A hardcopy of your presentation; on the Panel and updates to the Panel’s not limited to, the conversion factor, only hardcopy comments and activities, we refer readers to view our charge compression, revisions to the presentations can be reproduced for Web site at the following: http://www. cost report, pass-through payments, public dissemination. cms.gov/Regulations-and-Guidance/ correct coding, new technology 2. An email copy of your presentation Guidance/FACA/AdvisoryPanelon applications (including supporting sent to the DFO mailbox, APCPanel@ AmbulatoryPaymentClassification information/documentation), provider cms.hhs.gov. Groups.html. payment adjustments, hospital 3. Form CMS–20017 with complete You may also search information outpatient supervision of diagnostic contact information that includes name, about the Panel and its membership in services and the types of practitioners address, phone, and email addresses for the Federal Advisory Committee Act who are permitted to supervise hospital all presenters and a contact that can (FACA) database at the following URL: outpatient services. answer any questions and or provide https://www.fido.gov/facadatabase/ The Panel may not recommend that revisions that are requested for the public.asp. services be designated as nonsurgical presentation. SUPPLEMENTARY INFORMATION: extended duration therapeutic services. Æ Presenters must clearly explain the The Panel may use data collected or action(s) that they are requesting CMS to I. Background developed by entities and organizations, take in the appropriate section of the The Secretary is required by section other than the DHHS and CMS in form. A presenter’s relationship to the 1833(t)(9)(A) of the Social Security Act conducting its review. We recommend organization that they represent must (the Act) and section 222 of the Public organizations submit data for the Panel’s also be clearly listed. Health Service Act (PHS Act) to consult and CMS staff’s review. The Agenda Æ The form is now available through with an expert outside advisory panel will be posted on the CMS Web site the CMS Forms Web site. The Uniform regarding the clinical integrity of the before the meeting.

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III. Oral Comments VII. Panel Recommendations and written comments to the Division of In addition to formal oral Discussions Dockets Management (HFA–305), Food presentations, which are limited to 5 The Panel’s recommendations at any and Drug Administration, 5630 Fishers minutes total per presentation, there Panel meeting generally are not final Lane, rm. 1061, Rockville, MD 20852. will be an opportunity during the until they have been reviewed and FOR FURTHER INFORMATION CONTACT: meeting for public oral comments, approved by the Panel on the last day Philip Desjardins, Center for Devices which will be limited to 1 minute for of the meeting, before the final and Radiological Health, Food and Drug each individual and a total of 3 minutes adjournment. These recommendations Administration, 10903 New Hampshire per organization. will be posted to our Web site after the Ave., Bldg. 66, rm. 5452, Silver Spring, meeting. MD 20993–0002, 301–796–5678. IV. Meeting Attendance SUPPLEMENTARY INFORMATION: The meeting is open to the public; VIII. Collection of Information however, attendance is limited to space Requirements I. Background available. Priority will be given to those This document does not impose During negotiations over the Medical who pre-register, and attendance may be information collection and Device User Fee Amendments of 2012 limited based on the number of recordkeeping requirements. (MDUFA III), Title II, Food and Drug registrants and the space available. Consequently, it need not be reviewed Administration Safety and Innovation Persons wishing to attend this by the Office of Management and Act (Pub. L. 112–114), FDA agreed, in meeting, which is located on Federal Budget under the authority of the return for additional funding from property, must register by following the Paperwork Reduction Act of 1995 (44 industry, to meet a variety of instructions in the ‘‘Meeting U.S.C. 35). quantitative and qualitative goals Registration Timeframe’’ section of this (Catalog of Federal Domestic Assistance intended to help get safe and effective notice. A confirmation email will be Program; No. 93.773 Medicare—Hospital medical devices to market more quickly. sent to the registrants shortly after Insurance Program; and No. 93.774, These commitments include annually completing the registration process. Medicare—Supplementary Medical posting a list of prioritized medical Insurance Program) V. Security, Building, and Parking device guidance documents that the Guidelines Dated: November 14, 2012. Agency intends to publish within 12 Marilyn Tavenner, months of the date this list is published The following are the security, each fiscal year (the ‘‘A-list’’) and a list building, and parking guidelines: Acting Administrator, Centers for Medicare • & Medicaid Services. of device guidance documents that the Persons attending the meeting, Agency intends to publish, as the including presenters, must be pre- [FR Doc. 2012–28639 Filed 11–23–12; 8:45 am] BILLING CODE 4120–01–P Agency’s guidance-development registered and on the attendance list by resources permit each fiscal year (the the prescribed date. ‘‘B-list’’). In addition to posting lists of • Individuals who are not pre- prioritized device guidance documents, registered in advance may not be DEPARTMENT OF HEALTH AND FDA has committed to updating its Web permitted to enter the building and may HUMAN SERVICES site in a timely manner to reflect the be unable to attend the meeting. Food and Drug Administration Agency’s review of previously • Attendees must present valid photo published guidance documents, identification to the Federal Protective [Docket No. FDA–2012–N–1021] including the deletion of guidance Service or Guard Service personnel documents that no longer represent the before entering the building. Without a Medical Device User Fee and Agency’s interpretation of, or policy on, current, valid photo ID, persons may not Modernization Act; Notice to Public of a regulatory issue, and notation of be permitted entry to the building. Web Site Location of Fiscal Year 2013 • Security measures include Proposed Guidance Development guidance documents that are under inspection of vehicles, inside and out, at review by the Agency. Fulfillment of AGENCY: Food and Drug Administration, this commitment will be reflected the entrance to the grounds. HHS. • All persons entering the building through the issuance of updated ACTION: Notice. must pass through a metal detector. guidance on existing topics, removal of • guidances that that no longer reflect All items brought into CMS SUMMARY: The Food and Drug FDA’s current thinking on a particular including personal items, for example, Administration (FDA) is announcing the topic, and annual updates to A-list and laptops and cell phones are subject to Web site location where the Agency will B-list announced in this notice. physical inspection. post two lists of guidance documents • This notice announces the Web site The public may enter the building that the Center for Devices and location of the two lists of guidance 30 to 45 minutes before the meeting Radiological Health (CDRH) is intending documents which CDRH is intending to convenes each day. to publish in Fiscal Year (FY) 2013. In • publish during FY 2013. We note that All visitors must be escorted in addition, FDA has established a docket the Agency is not required to publish areas other than the lower and first-floor where stakeholders may provide every guidance on either list if the levels in the Central Building. comments and/or propose draft • resources needed would be to the The main-entrance guards will language for those topics, suggest new detriment of meeting quantitative issue parking permits and instructions or different guidance documents, and review timelines and statutory upon arrival at the building. comment on the priority of topics for obligations. The Agency is not guidance. VI. Special Accommodations precluded from issuing guidance Individuals requiring sign-language DATES: Submit either electronic or documents that are not on either list. interpretation or other special written comments at any time. FDA and CDRH priorities are subject accommodations must include the ADDRESSES: Submit electronic to change at any time. Topics on this request for these services during comments on the proposed guidance to and past guidance priority lists may be registration. http://www.regulations.gov. Submit removed or modified based on current

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priorities. CDRH’s experience in Dated: November 7, 2012. to learn about possible modifications guidance development has shown that Leslie Kux, before coming to the meeting. there are many reasons that CDRH staff Assistant Commissioner for Policy. Agenda: On February 12, 2013, the may not complete the entire agenda of [FR Doc. 2012–28539 Filed 11–23–12; 8:45 am] Committee will discuss general factors in risk communication about FDA guidance documents it undertakes. Staff BILLING CODE 4160–01–P are frequently diverted from guidance regulated products, including development to other priority activities. approaches to avoid message fatigue and In addition, at any time new issues may DEPARTMENT OF HEALTH AND related communication barriers such as arise to be addressed in guidance that HUMAN SERVICES prevention or warning fatigue or could not have been anticipated at the inaccurate risk perception. time the annual list is generated. These Food and Drug Administration FDA intends to make background issues may involve newly identified material available to the public no later [Docket No. FDA–2012–N–0001] public health issues as well as special than 2 business days before the meeting. control documents that are necessary for Risk Communication Advisory If FDA is unable to post the background the classification of de novo devices. Committee; Notice of Meeting material on its Web site prior to the FDA anticipates that feedback from meeting, the background material will stakeholders, including draft language AGENCY: Food and Drug Administration, be made publicly available at the for guidance documents, will allow HHS. location of the advisory committee CDRH to better prioritize and more ACTION: Notice. meeting, and the background material efficiently draft guidances that will be will be posted on FDA’s Web site after useful to industry and other This notice announces a forthcoming the meeting. Background material is stakeholders. FDA intends to update the meeting of a public advisory committee available at http://www.fda.gov/ list each year. of the Food and Drug Administration AdvisoryCommittees/Calendar/ FDA invites interested persons to (FDA). The meeting will be open to the default.htm. Scroll down to the submit comments on any or all of the public. appropriate advisory committee meeting guidance documents on the lists. FDA Name of Committee: Risk link. has established a docket where Communication Advisory Committee. Procedure: Interested persons may comments on the FY 2013 lists, draft General Function of the Committee: present data, information, or views, language for guidance documents on To provide advice and orally or in writing, on issues pending those topics, suggestions for new or recommendations to the Agency on before the committee. Written different guidances, and relative priority FDA’s regulatory issues. submissions may be made to the contact of guidance documents may be Date and Time: The meeting will be person on or before January 28, 2013. submitted (see ADDRESSES). FDA held on February 12, 2013, from 8 a.m. Oral presentations from the public will believes this docket is an important tool to 3 p.m. be scheduled between approximately for receiving information from Location: FDA White Oak Campus, 10:30 a.m. and 11:30 a.m. on February interested parties and for sharing this 10903 New Hampshire Ave., Bldg. 31 12, 2013. Those individuals interested information with the public. Similar Conference Center, the Great Room (rm. in making formal oral presentations information about planned guidance 1503), Silver Spring, MD 20993. should notify the contact person and development is included in the annual Information regarding special submit a brief statement of the general Agency-wide notice issued under its accommodations due to a disability, nature of the evidence or arguments good guidance practices (21 CFR visitor parking, and transportation may they wish to present, the names and 10.115(f)(5)). The CDRH lists, however, be accessed at: http://www.fda.gov/ addresses of proposed participants, and will be focused exclusively on device- AdvisoryCommittees/default.htm; under an indication of the approximate time related guidances and will be made the heading ‘‘Resources for You,’’ click requested to make their presentation on available on FDA’s Web site at the on ‘‘Public Meetings at the FDA White or before January 17, 2013. Time beginning of each fiscal year from 2013 Oak Campus.’’ Please note that visitors allotted for each presentation may be to 2017. To access the lists of guidance to the White Oak Campus must enter limited. If the number of registrants documents CDRH is intending to through Building 1. requesting to speak is greater than can publish in FY 2013, visit FDA’s Web Contact Person: Lee L. Zwanziger, be reasonably accommodated during the site http://www.fda.gov/Medical Risk Communication Staff, Food and scheduled open public hearing session, Devices/DeviceRegulationandGuidance/ Drug Administration, 10903 New FDA may conduct a lottery to determine Overview/MDUFAIII/ucm321367.htm Hampshire Ave., Bldg. 32, rm. 3278, the speakers for the scheduled open Silver Spring, MD 20993, 301–796– public hearing session. The contact II. Request for Comments 9151, FAX: 301–847–8611, email: person will notify interested persons Interested persons may submit either [email protected], or FDA Advisory regarding their request to speak by written comments regarding this Committee Information Line, 1–800– January 18, 2013. Interested persons can document to the Division of Dockets 741–8138 (301–443–0572 in the also log on to https://collaboration.fda. Management (see ADDRESSES) or Washington, DC area). A notice in the gov/rcac/ to hear and see the electronic comments to http:// Federal Register about last minute proceedings. www.regulations.gov. It is only modifications that impact a previously Persons attending FDA’s advisory necessary to send one set of comments. announced advisory committee meeting committee meetings are advised that the Identify comments with the docket cannot always be published quickly Agency is not responsible for providing number found in brackets in the enough to provide timely notice. access to electrical outlets. heading of this document. Received Therefore, you should always check the FDA welcomes the attendance of the comments may be seen in the Division Agency’s Web site at http://www.fda. public at its advisory committee of Dockets Management between 9 a.m. gov/AdvisoryCommittees/default.htm meetings and will make every effort to and 4 p.m., Monday through Friday, and and scroll down to the appropriate accommodate persons with physical will be posted to the docket at http:// advisory committee meeting link, or call disabilities or special needs. If you www.regulations.gov. the advisory committee information line require special accommodations due to

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a disability, please contact Lee L. DEPARTMENT OF HEALTH AND implemented as part of the Family Zwanziger at least 7 days in advance of HUMAN SERVICES Smoking Prevention and Tobacco the meeting. Control Act (FSPTCA) by the Food and National Institutes of Health FDA is committed to the orderly Drug Administration (FDA). NIDA is conduct of its advisory committee requesting generic approval from OMB Proposed Collection; Comment for methodological studies to improve meetings. Please visit our Web site at Request; Methodological Studies for the PATH study instrumentation and http://www.fda.gov/Advisory the Population Assessment of data collection procedures. These Committees/AboutAdvisoryCommittees/ Tobacco and Health (PATH) Study methodological studies will support ucm111462.htm for procedures on SUMMARY: In compliance with the ongoing assessment and refinement of public conduct during advisory requirement of Section 3506(c)(2)(A) of the PATH study’s design, and highlight committee meetings. the Paperwork Reduction Act of 1995, ways to improve study implementation Notice of this meeting is given under for opportunity for public comment on and techniques for retention and the Federal Advisory Committee Act (5 proposed data collection projects, the followup. Data collection methods to be U.S.C. app. 2). National Institute on Drug Abuse used in these methodological studies include: in-person and telephone Dated: November 19, 2012. (NIDA), the National Institutes of Health (NIH) will publish periodic summaries surveys; web and smartphone/mobile Jill Hartzler Warner, of proposed projects to be submitted to phone surveys; and focus group and Acting Associate Commissioner for Special the Office of Management and Budget individual in-depth qualitative Medical Programs. (OMB) for review and approval. interviews. Biospecimens may also be [FR Doc. 2012–28462 Filed 11–23–12; 8:45 am] Proposed Collection: Title: collected from adults. BILLING CODE 4160–01–P Methodological Studies for Population Frequency of Response: Annual [As Assessment of Tobacco and Health needed on an on-going and concurrent (PATH) Study. Type of Information basis]. Affected Public: Individuals. Collection Request: New. Need and Use Type of Respondents: Youth (ages 12– of Information Collection: The PATH 17) and Adults (ages 18+). Annual study will establish a population-based Reporting Burden: See Table 1. The framework for monitoring and annualized cost to respondents is evaluating the behavioral and health estimated at: $227,562. There are no impacts of regulatory provisions capital, operating or maintenance costs.

TABLE 1—ESTIMATED ANNUAL REPORTING BURDEN SUMMARY—METHODOLOGICAL STUDIES FOR THE PATH STUDY

Responses Data collection activity Type of Number of per Hours per Annual respondent respondents respondent response hour burden

In-person and telephone surveys ...... Adults ...... 3,000 1 11⁄2 4,500 Youth ...... 2,000 1 11⁄2 3,000 Web and smartphone/mobile phone surveys ...... Adults ...... 3,000 1 11⁄2 4,500 Youth ...... 2,000 1 11⁄2 3,000 Focus groups and individual in-depth qualitative interviews ... Adults ...... 800 1 2 1,600 Youth ...... 800 1 2 1,600

Total ...... 11,600 ...... 18,200

Request for Comments: Written collection techniques or other forms of Dated: November 14, 2012. comments and/or suggestions from the information technology. Glenda J. Conroy, public and affected agencies are invited Executive Officer (OM Director), NIDA. FOR FURTHER INFORMATION CONTACT: To on one or more of the following points: request more information on the [FR Doc. 2012–28575 Filed 11–23–12; 8:45 am] (1) Whether the proposed collection of proposed project or to obtain a copy of BILLING CODE 4140–01–P information is necessary for the proper the data collection plans contact Kevin performance of the function of the P. Conway, Ph.D., Deputy Director, agency, including whether the DEPARTMENT OF HEALTH AND Division of Epidemiology, Services, and information will have practical utility; HUMAN SERVICES Prevention Research, National Institute (2) The accuracy of the agency’s on Drug Abuse, 6001 Executive Blvd., National Institutes of Health estimate of the burden of the proposed Room 5185; Rockville, MD 20852, or collection of information, including the call non-toll free number 301–443–8755 Report of the Evidence-Based validity of the methodology and or email your request, including your Methodology Workshop on Polycystic assumptions used; (3) Ways to enhance address to: PATHprojectofficer@mail. Ovary Syndrome—Request for the quality, utility, and clarity of the nih.gov. Comments information to be collected; and (4) Ways to minimize the burden of the Comments Due Date: Comments SUMMARY: The National Institutes of collection of information on those who regarding this information collection are Health (NIH) will place in the docket for are to respond, including the use of best assured of having their full effect if public review and comment a report appropriate automated, electronic, received within 60-days of the date of resulting from the NIH Evidence-Based mechanical, or other technological this publication. Methodology Workshop on Polycystic Ovary Syndrome, to be held December

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3–5, 2012. The purpose of the report is definition of the disorder and diagnostic information on the various measures to summarize the workshop and identify criteria. The outcome of this conference, that publicly traded companies employ future research priorities. The report the NIH Criteria, served as a standard to comply with the statutory will be available online beginning for researchers and clinicians for more requirement that at least 75 percent of December 7, 2012, at http://prevention. than a decade. In 2003, a consensus the ownership of companies that nih.gov/workshops/2012/pcos/ workshop in Rotterdam developed new operate vessels engaged in the coastwise default.aspx. diagnostic criteria, the Rotterdam trade be vested in U.S. citizens. On November 3, 2011, the Coast Guard DATES: Comments on the report will be Criteria. The 2012 NIH Evidence-Based published a notice in the Federal accepted from December 7, 2012, to Methodology Workshop on PCOS seeks Register seeking those comments and January 4, 2013. to clarify: • The benefits and drawbacks of that information. The Coast Guard read ADDRESSES: Written comments must be using the Rotterdam Criteria; the written submissions and listened to postmarked by January 4, 2013, and • The condition’s causes, predictors, oral comments generated by that notice should be sent to the NIH Office of and long-term consequences; and issues today’s notice to inform Disease Prevention, ATTN: Paris A. • The optimal prevention and industry and the public on how the Watson, 6100 Executive Boulevard, treatment strategies. Coast Guard plans to exercise its Suite 2B03, Bethesda, Maryland 20892. The NIH workshop is sponsored by discretion in enforcing the referenced Email comments should be sent to the Office of Disease Prevention and the U.S. citizen ownership requirement. [email protected] by January 4, Eunice Kennedy Shriver National ADDRESSES: Comments and material 2013. Institute of Child Health and Human received from the public, as well as FOR FURTHER INFORMATION CONTACT: To Development. A multidisciplinary documents mentioned in this notice as request more information, please steering committee developed the being available in the docket, are part of contact Paris A. Watson at 301–496– workshop agenda. The NIH Library docket USCG–2011–0619 and are 6615 or [email protected]. created an extensive, descriptive available for inspection or copying at SUPPLEMENTARY INFORMATION: Polycystic bibliography on PCOS to facilitate the Docket Management Facility (M–30), ovary syndrome (PCOS) is a common workshop discussion. During the two- U.S. Department of Transportation, hormone disorder that affects and-one-half-day workshop, invited West Building Ground Floor, Room approximately 5 million reproductive- experts will discuss the body of W12–140, 1200 New Jersey Avenue SE., aged women in the United States. evidence and attendees will have Washington, DC 20590, between 9 a.m. Women with PCOS have difficulty opportunities to provide comments and 5 p.m., Monday through Friday, becoming pregnant (i.e., are infertile) during open discussion periods. After except Federal holidays. You may also due to hormone imbalances that cause weighing the evidence, an unbiased, find this docket on the Internet by going or result from altered development of independent panel will prepare a report to http://www.regulations.gov, inserting ovarian follicles. One such imbalance is that summarizes the workshop and USCG–2011–0619 in the ‘‘Search’’ box, high blood levels of androgens, which identifies future research priorities. and then clicking ‘‘Search.’’ can come from both the ovaries and The report will be available online FOR FURTHER INFORMATION CONTACT: If adrenal gland. Other organ systems that beginning December 7, 2012, at http:// you have questions on this notice, call are affected by PCOS include the prevention.nih.gov/workshops/2012/ or email Mr. Douglas Cameron, United pancreas, liver, muscle, blood pcos/default.aspx. States Coast Guard, National Vessel vasculature, and fat. Dated: November 16, 2012. Documentation Center; telephone 304– In addition to fertility impairment, Francis S. Collins, 271–2506, email Douglas.G.Cameron@ other common symptoms of PCOS Director, National Institutes of Health. uscg.mil. If you have questions on viewing the docket, call Renee V. include: [FR Doc. 2012–28608 Filed 11–23–12; 8:45 am] • Wright, Program Manager, Docket Irregular or no menstrual periods BILLING CODE 4140–01–P (for women of reproductive age) Operations, telephone 202–366–9826. • Acne SUPPLEMENTARY INFORMATION: On • Weight gain DEPARTMENT OF HOMELAND November 3, 2011, the Coast Guard • Excess hair growth on the face and SECURITY published a notice in the Federal body Register (76 FR 68203) (‘‘2011 notice’’) • Thinning scalp hair Coast Guard requesting comments and information • Ovarian cysts. on the various measures that publicly Women with PCOS are often resistant [Docket No. USCG–2011–0619] traded companies employ in order to to the biological effects of insulin and, comply with the requirement in 46 Mechanisms of Compliance With as a consequence, may have high U.S.C. 50501 that at least 75 percent of United States Citizenship insulin levels. As such, women with the ownership of companies that Requirements for the Ownership of PCOS are at risk for type 2 diabetes, operate vessels engaged in the coastwise Vessels Eligible To Engage in high cholesterol, and high blood trade be vested in U.S. citizens. The Restricted Trades by Publicly Traded pressure. Obesity also appears to worsen 2011 notice was published because of a Companies the condition. Costs to the U.S. health recommendation in a January 12, 2011, care system to identify and manage AGENCY: Coast Guard, DHS. Coast Guard report of an investigation PCOS are approximately $4 billion ACTION: Notice; response to comments. into the citizenship of Trico Marine annually; however, this estimate does Services, Inc. (‘‘Trico Report’’). A copy not include treatment of the serious SUMMARY: As part of its January 2011 of this report has been placed in the conditions associated with PCOS. report on a Coast Guard investigation docket and is also available via http:// For most of the 20th century, PCOS into the citizenship of owners of a www.uscg.mil/hq/cg5/nvdc/ (under the was a poorly understood condition. In publicly traded company, the National Latest News tab). The Coast Guard 1990, the NIH held a conference on Vessel Documentation Center solicited the following information in PCOS to create both a working recommended requesting comments and the 2011 notice (emphasis added):

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This notice solicits information, for the • Analysis of registered stockholders; participate in restricted trading benefit of the Coast Guard but also for the and privileges, using means that are mutual benefit of industry, as to the • Use of dual stock certificates. available to the company and at its mechanisms that publicly traded companies We also considered comments made disposal, in order to satisfy U.S. have employed, including but not limited to at a general discussion of these issues at citizenship requirements. those mentioned in the quoted language a forum organized by the Chamber of above, to assure compliance with United The Coast Guard has a long-standing States citizenship requirements. We are also Shipping of America held on September policy that the filing of a properly requesting information on the manner in 13, 2012, in Washington, DC, the completed CG–1258 establishes a which those mechanisms function to provide minutes of which have been placed in rebuttable presumption that the that assurance and, when called upon to do the online docket (USCG–2011–0619 via applicant is a United States citizen. See so, to offer proof of compliance. 76 FR 68205. www.regulations.gov). 46 CFR 67.43. The presumption can be The reference to ‘‘the quoted language The Coast Guard has taken all of the rebutted with evidence that the above’’ was to language in the most comments offered into account and is statutory requirements have not been recent Coast Guard statement published grateful to the commenters who were met. Such evidence can provide the thorough, candid and forthcoming in in the Federal Register which addressed basis for the Coast Guard to initiate an their responses to the 2011 notice, both this subject. See 58 FR 60256, November investigation and the burden will be in the written responses and the 15, 1993 (‘‘1993 final rule’’). At that upon the vessel owner to establish discussion engaged in at the forum time, the Coast Guard offered the compliance. In investigations of referred to above. The responses following statement which referenced publicly-traded companies for received and information provided are only two mechanisms as examples compliance with the statutory exactly what had been hoped for by (emphasis added): citizenship requirements, the Coast publication of the notice and affirmed Guard will give positive consideration The documentation laws are meant to be our sense, following issuance of the to a company’s diligent and good faith restrictive and are intended to limit the Trico Report, that it was appropriate, in persons who are eligible to document vessels light of the significant technological efforts to timely and effectively monitor under U.S. law and acquire trading changes that have occurred in the the ownership of its stock and take privileges. Corporations can make proof of prompt action where necessary so as to citizenship less difficult, for instance by trading of shares of stock since the Coast Guard’s 1993 final rule, to take another maintain compliance with the statutory restricting sale of their stock to U.S. citizens, requirements. or using a transfer agent to administer a dual look at the issue. stock certificate system. Of course, any U.S. The Coast Guard recognizes that in Further Development of Enforcement corporation that is unwilling to subject itself the modern, complex, multi-faceted, Policy to the possibility of having to prove that it and dynamic securities market no single qualifies for coastwise or fisheries privileges measure or combination of measures The Coast Guard will continue to can choose not to seek them. The Coast may always provide direct proof of the listen to industry and the public and Guard will not be bound by any citizenship of every shareholder. The monitor events concerning this issue. presumptions or inferences in making Coast Guard also recognizes that the We anticipate refining our enforcement eligibility determinations for documentation policy as we see how well our stated purposes. 58 FR 60258–59. choice of compliance measures is best left up to the individual company as policy works in allowing the Coast Comments in Response to 2011 Notice each one is best positioned to evaluate Guard to meet its obligation to ensure The comments the Coast Guard initially and on an on-going basis the that at least 75 percent of the ownership received from industry in response to totality of its circumstances. of companies that operate vessels the 2011 notice detailed how companies Companies that employ, and engaged in the coastwise trade are monitor and determine compliance with diligently administer and adhere to, vested in U.S. citizens. If we see the the statutory standard in the current measures such as those identified above need for any new enforcement policy, paperless securities trading market, in an active system of monitoring stock we would invite comments on any such which is regulated by the Securities and ownership may use these as a sufficient policy through a separate notice. We Exchange Commission (‘‘SEC’’) and basis to file an Application for Initial appreciate all the comments made in more complex than the system that Issue, Exchange, or Replacement of response to the 2011 notice. existed when the Coast Guard issued its Certificate of Documentation (form CG– This notice is issued under authority 1993 final rule. Those comments 1258) to document a vessel with a of 5 U.S.C. 552(a). indicated that publicly-traded coastwise endorsement. In that regard, Dated: November 14, 2012. while the Coast Guard expects diligence companies employ several measures to Timothy V. Skuby, monitor and determine compliance, and good faith efforts, it will be realistic about acceptable measures in the Director, National Vessel Documentation sometimes in combination with one Center, U.S. Coast Guard. another. These include, among others: current trading environment. Finally, • the Coast Guard acknowledges that it [FR Doc. 2012–28560 Filed 11–23–12; 8:45 am] Use of the Depository Trust BILLING CODE 9110–04–P Company segregated account (or ‘‘SEG– does not seek to unnecessarily restrict 100’’) system; access to the legitimate capital markets, • Monitoring SEC filings re: 5% which it recognizes to be essential to the DEPARTMENT OF HOMELAND holders (Schedules 13D, 13G, Form 13F) maintenance of a strong and vibrant SECURITY and follow-up requests for information coastwise shipping industry, nor to from filers; mandate a one-size-fits-all structure or Coast Guard • Use of protective provisions in mechanism to ensure compliance with U.S. citizenship requirements. The organizational documents in order to [Docket No. USCG–2012–1030] guard against and rectify the possibility Coast Guard, however, must fulfill its of what are referred to as excess shares; obligation to ensure compliance with Chemical Transportation Advisory • Communications with Non- those requirements, and will look for Committee Objecting Beneficial Owners (or due diligence and timely good faith ‘‘NOBOs’’); action by every company that seeks to AGENCY: Coast Guard, DHS.

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ACTION: Committee Management; Notice Avenue SE., Washington, DC 20590– 2. Swearing in newly appointed of Federal Advisory Committee Meeting. 0001. members. • Hand delivery: Same as mail 3. USCG presentations on the SUMMARY: The Chemical Transportation address above, between 9 a.m. and 5 following items of interest: Advisory Committee (CTAC) and its p.m., Monday through Friday, except a. Hazardous Substances Response Subcommittees and Working Groups Federal holidays. The telephone number Plans. will meet on December 11 through 13, is 202–366–9329. b. Vapor control systems and mobile 2012, in Washington, DC, to discuss Instructions: All submissions received vapor control systems. marine transportation of hazardous must include the words ‘‘Department of c. Classification of Biofuels and materials in bulk. The meetings will be Homeland Security’’ and the docket Biofuel blends. Shipments and use as open to the public. number for this action. Comments fuel of Liquefied Natural Gas and DATES: CTAC will meet Tuesday, received will be posted without Compressed Natural Gas. December 11, 2012, from 8 a.m. to 3 alteration at http://www.regulations.gov, d. Air emissions. p.m. and Wednesday, December 12, including any personal information e. Tank Barge best practices. f. Certification of 3rd party witnesses 2012, from 8 a.m. to 3 p.m. CTAC provided. You may review a Privacy Act for the International Convention for the Subcommittee and Working Group notice regarding our public dockets in Prevention of Pollution from Ships meetings will begin upon completion of the January 17, 2008, issue of the the CTAC meeting agenda on prewash. Federal Register (73 FR 3316). g. Material Safety Data Sheets Wednesday, December 12, 2012, and Docket: This notice, and documents requirement for oils carried as cargo and continue until 3 p.m., and resume again or comments related to it, may be on Thursday, December 13, 2012, from fuel. viewed in our online docket, USCG h. Pending International Maritime 8 a.m. to 3 p.m. Please note that the 2012–1030 at http:// meetings may close early if the Organization issues. www.regulations.gov. i. Security, Transportations Worker committee has completed its business. A public comment period will be held All written materials, comments, and Identification Credential, etc. during the meeting concerning matters requests to make oral presentations at j. USCG Centers of Excellence. being discussed. Public comments will the meeting should reach Lieutenant k. Food grade product safety. be limited to three minutes per speaker. Sean Peterson, Assistant Designated l. Other items of interest raised by the Please note that the public comment Federal Officer (ADFO) for CTAC by committee and the public. period may end before the time 4. Public Comment Period. November 29, 2012. For contact indicated following the last call for 5. Prioritization of key issues to focus information please see the FOR FURTHER comments. Contact the individuals on. INFORMATION CONTACT section below. listed below to register as a speaker. 6. Set next meeting date and location. Any written material submitted by the FOR FURTHER INFORMATION CONTACT: 7. Set Subcommittee and Working public will distributed to the Committee Group Meeting schedule. and become part of the public record. Commander Michael Roldan, Designated Federal Officer (DFO) of the Subcommittees and Working Group ADDRESSES: The meetings will be held at CTAC, or Lieutenant Sean Peterson, Meetings. Contingent on available U.S. Coast Guard Headquarters Room Assistant Designated Federal Officer, expertise at the meeting, working groups 6319, 2100 Second Street SW., telephone 202–372–1403, fax 202–372– will be formed to address the items of Washington, DC. Attendees will be 1926. If you have any questions on interest listed in paragraph (3) above. required to provide a picture viewing or submitting material to the The agenda for each working group identification card and pass through a docket, call Renee V. Wright, Program formed will include the following: magnetometer in order to gain (1) Review task statements. Manager, Docket Operations, telephone admittance to the U.S. Coast Guard (2) Develop work plan. 202–366–9826. Headquarters Building. Visitors should (3) Begin working on tasks. SUPPLEMENTARY INFORMATION: Notice of also arrive at least 30 minutes in Dated: November 19, 2012. this meeting is given under the Federal advance of the meeting in case of long J.G. Lantz, lines at the entrance. Advisory Committee Act (FACA), 5 U.S.C. App. (Pub. L. 92–463). Director of Commercial Regulations and For information on facilities or Standards. services for individuals with disabilities CTAC is an advisory committee [FR Doc. 2012–28559 Filed 11–23–12; 8:45 am] or to request special assistance at the authorized under section 871 of the meeting, contact Commander Michael Homeland Security Act of 2002, Title 6, BILLING CODE 9110–04–P Roldan as soon as possible. United States Code, section 451, and To facilitate public participation, we chartered under the provisions of the DEPARTMENT OF HOMELAND are inviting public comment on the FACA. The Committee acts solely in an SECURITY issues to be considered by the advisory capacity to the Secretary of the committee as listed in the ‘‘Agenda’’ Department of Homeland Security Federal Emergency Management section below. Comments must be (DHS) through the Commandant of the Agency submitted in writing no later than Coast Guard and the Director of November 29, 2012, and may be Commercial Regulations and Standards [Docket No. FEMA–2012–0003; Internal submitted by one of the following on matters relating to marine Agency Docket No. FEMA–B–1261] transportation of hazardous materials in methods: Proposed Flood Hazard (1) Federal eRulemaking Portal: bulk. The Committee advises, consults Determinations http://www.regulations.gov. (Preferred with, and makes recommendations method to avoid delays in processing.) reflecting its independent judgment to AGENCY: Federal Emergency • Fax: 202–493–2252. the Secretary. Management Agency; DHS. • Mail: Docket Management Facility ACTION: Notice; correction. (M–30), U.S. Department of Agendas of Meetings Transportation, West Building Ground The agenda for CTAC is as follows: SUMMARY: On July 30, 2012, FEMA Floor, Room W12–140, 1200 New Jersey 1. Introductions and opening remarks. published in the Federal Register a

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proposed flood hazard determination 20472, (202) 646–4064 or (email) Use of a Scientific Resolution Panel notice at FR 77 44651 that contained a [email protected]. (SRP) is available to communities in table which included a Web page SUPPLEMENTARY INFORMATION: FEMA support of the appeal resolution address through which the Preliminary proposes to make flood hazard process. SRPs are independent panels of Flood Insurance Rate Map (FIRM), and determinations for each community experts in hydrology, hydraulics, and where applicable, the Flood Insurance listed in the table below, in accordance other pertinent sciences established to Study (FIS) report for the communities with Section 110 of the Flood Disaster review conflicting scientific and listed in the table could be accessed. Protection Act of 1973, 42 U.S.C. 4104, technical data and provide The information available through the and 44 CFR 67.4(a). recommendations for resolution. Use of Web page address has subsequently These proposed flood hazard the SRP may only be exercised after been updated. The table provided here determinations, together with the FEMA and local communities have been represents the proposed flood hazard floodplain management criteria required engaged in a collaborative consultation determinations and communities by 44 CFR 60.3, are the minimum that process for at least 60 days without a affected for Mecklenburg County, North are required. They should not be mutually acceptable resolution of an Carolina, and Incorporated Areas. construed to mean that the community appeal. Additional information must change any existing ordinances DATES: Comments are to be submitted regarding the SRP process can be found on or before February 25, 2013. that are more stringent in their floodplain management requirements. online at http://www.floodsrp.org/pdfs/ ADDRESSES: The Preliminary FIRM, and srp_fact_sheet.pdf. where applicable, the FIS report for The community may at any time enact each community are available for stricter requirements of its own, or Correction inspection at both the online location pursuant to policies established by other and the respective Community Map Federal, State, or regional entities. In the proposed flood hazard Repository address listed in the table These flood hazard determinations are determination notice published at 77 FR below. Additionally, the current used to meet the floodplain 44651 in the July 30, 2012, issue of the effective FIRM and FIS report for each management requirements of the NFIP Federal Register, FEMA published a community are accessible online and are also used to calculate the table titled ‘‘Mecklenburg County, North through the FEMA Map Service Center appropriate flood insurance premium Carolina, and Incorporated Areas.’’ This at www.msc.fema.gov for comparison. rates for new buildings built after the table contained a Web page address You may submit comments, identified FIRM and FIS report become effective. through which the Preliminary FIRM, The communities affected by the by Docket No. FEMA–B–1261, to Luis and where applicable, FIS report for the flood hazard determinations are Rodriguez, Chief, Engineering communities listed in the table could be provided in the table below. Any Management Branch, Federal Insurance accessed online. A Revised Preliminary request for reconsideration of the and Mitigation Administration, FEMA, revised flood hazard determinations FIRM and/or FIS report have 500 C Street SW., Washington, DC shown on the Preliminary FIRM and FIS subsequently been issued for some or all 20472, (202) 646–4064, or (email) report that satisfies the data of the communities listed in the table. [email protected]. requirements outlined in 44 CFR 67.6(b) The information available through the FOR FURTHER INFORMATION CONTACT: Luis is considered an appeal. Comments web page address listed in the table has Rodriguez, Chief, Engineering unrelated to the flood hazard been updated to reflect the Revised Management Branch, Federal Insurance determinations will also be considered Preliminary information and is to be and Mitigation Administration, FEMA, before the FIRM and FIS report are used in lieu of the information 500 C Street SW., Washington, DC made final. previously available.

Community Community Map Repository Address

Mecklenburg County, North Carolina, and Incorporated Areas

Maps Available for Inspection Online at: http://mapserver.mecklenburgcountync.gov/fmr/

City of Charlotte ...... City Hall, 600 East 4th Street, Charlotte, NC 28202. Town of Matthews ...... Town Hall, 232 Matthews Station Street, Matthews, NC 28105. Town of Mint Hill ...... Town Hall, 7151 Matthews-Mint Hill Road, Mint Hill, NC 28277. Town of Pineville ...... Town Hall, 200 Dover Street, Pineville, NC 28134. Unincorporated Areas of Mecklenburg County ...... Mecklenburg County Government Center, 600 East 4th Street, Charlotte, NC 28202.

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Catalog of Federal Domestic Assistance No. If you wish to comment, you may Carolina Flying Squirrel (Glaucomys 97.022, ‘‘Flood Insurance.’’ submit comments by any one of the sabrinus carolinensis) Dated: October 31, 2012. following methods. You may mail These surveys will be conducted in, James A. Walke, comments to the Fish and Wildlife Virginia, Tennessee, Kentucky, North Acting Deputy Associate Administrator for Service’s Regional Office (see Carolina and South Carolina. ADDRESSES section) or via electronic Mitigation, Department of Homeland Permit Application Number: TE–171553 Security, Federal Emergency Management mail (email) to: [email protected]. Agency. Please include your name and return Applicant: The Ivory-billed [FR Doc. 2012–28623 Filed 11–23–12; 8:45 am] address in your email message. If you do Woodpecker Foundation, Gurley, BILLING CODE 9110–12–P not receive a confirmation from the Fish Alabama. and Wildlife Service that we have The applicant requests renewed received your email message, contact us authorization to collect discarded DEPARTMENT OF THE INTERIOR directly at the telephone number listed feathers, feces, and egg shell above (see FOR FURTHER INFORMATION fragments from Ivory-billed Fish and Wildlife Service CONTACT section). Finally, you may woodpeckers (Campephilus hand deliver comments to the Fish and principalis) and to examine non- [FWS–R4–ES–2012–N256; 40120–1112– active nests sites throughout the 0000–F2] Wildlife Service office listed above (see ADDRESSES section). historic range of this species. Receipt of Applications for Before including your address, Permit Application Number: TE– Endangered Species Permits telephone number, email address, or 89074A other personal identifying information AGENCY: Fish and Wildlife Service, in your comments, you should be aware Applicant: Christopher Haggerty, Interior. that your entire comment—including Homosassa, Florida. ACTION: Notice. your personal identifying information— The applicant requests authorization may be made publicly available at any to conduct scientific research involving SUMMARY: We, the U.S. Fish and time. While you can ask us in your capture and handling of reticulated Wildlife Service, invite the public to comments to withhold your personal flatwoods salamanders (Ambystoma comment on the following applications identifying information from public bishop) and frosted flatwoods to conduct certain activities with review, we cannot guarantee that we salamanders (Ambystoma cingulatum). endangered species. With some will be able to do so. This study will be conducted in exceptions, the Endangered Species Act Escambia, Okaloosa, Walton, (ESA) prohibits activities with listed Permit Application Number: TE– Washington, Jackson, Liberty, Franklin, species unless a Federal permit is issued 13844A Wakulla, Jefferson, Baker and Alachua that allows such activities. The ESA Applicant: Aquatic Resources Counties, Florida. requires that we invite public comment Management, Lexington, Kentucky. before issuing these permits. Permit Application Number: TE– Applicant requests amendment to 63633A DATES: We must receive written data or authorization to conduct presence/ Applicant: Biodiversity Research comments on the applications at the absence surveys for three (3) bat species, Institute, Gorham, Maine. address given below, by December 26, one(1) freshwater fish species, twelve 2012. (12) fresh-water mussel species, one (1) The applicant requests amended ADDRESSES: Documents and other snake species, one (1) insect species and authorization to expand the location information submitted with the two (2) plant species in the State of they are authorized to conduct scientific applications are available for review, Tennessee. research on Indiana bats (Myotis sodalis) subject to the requirements of the and Gray bats (Myotis grisescens) into Permit Application Number: TE–7747 Privacy Act and Freedom of Information the states of Georgia, Ohio, Alabama, Act, by any party who submits a written Applicant: U.S. Forest Service, Louisiana, Mississippi and Kentucky. request for a copy of such documents to National Forests in Florida, Tallahassee, Permit Application Number: TE–834056 Florida. the following office within 30 days of Applicant: North Florida Wildlife LLC, the date of publication of this notice: Applicant requested renewed authority Crawfordville, Florida. U.S. Fish and Wildlife Service, 1875 to capture, mark, translocate and Applicant requests amended authority Century Boulevard, Suite 200, Atlanta, install artificial nesting cavities for to translocate red-cockaded woodpecker GA 30345 (Attn: Cameron Shaw, Permit the red-cockaded woodpecker (Picoides borealis). These activities will Coordinator). (Picoides borealis). These activities be conducted throughout the range of FOR FURTHER INFORMATION CONTACT: will be conducted on National Forests the species. Cameron Shaw, telephone 904/731– throughout Florida. 3191; facsimile 904/731–3045. Permit Application Number: TE– Permit Application Number: TE– 89083A SUPPLEMENTARY INFORMATION: The 82796A public is invited to comment on the Applicant: Robert Bahn, Eatonton, following applications for permits to Applicant: Christopher McGrath, Georgia. Leicester, North Carolina. conduct certain activities with The application requests endangered and threatened species Applicant requests reauthorization to authorization to conduct presence/ pursuant to section 10(a)(1)(A) of the conduct presence/absence surveys and absence surveys for the following Endangered Species Act of 1973, as scientific studies on the following freshwater fish species: amended (16 U.S.C. 1531 et seq.) and species: Etowah Darter (Etheostoma etowahae) our regulations in the Code of Federal Indiana bat (Myotis sodalis) Amber Darter (Percina antesella) Regulations (CFR) at 50 CFR 17. This Gray bat (Myotis grisescens) Conasauga Logperch (Percina jenkinsi) notice is provided under section 10(c) of Virginia big-eared bat (Corynorhinus These surveys will be conducted in the Act. townsendii virginianus) Tennessee, Georgia and Alabama.

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Permit Application Number: TE–114069 Fish and Wildlife Service, P.O. Box National Environmental Policy Act Applicant: Fairchild Tropical Botanic 25486–DFC, Denver, CO 80225. (NEPA) • In-Person Drop-off, Viewing, or Garden, Miami, Florida. In compliance with NEPA (42 U.S.C. Pickup: Call (303) 236–4256 to make an 4321 et seq.), we have made an initial The applicant requests amended appointment during regular business determination that the proposed authorization to collect seeds and hours at 134 Union Blvd., Suite 645, activities in these permits are cuttings for scientific research from the Lakewood, CO 80228. following plant species: categorically excluded from the FOR FURTHER INFORMATION CONTACT: Kris Buxus vahlii Vahl’s boxwood requirement to prepare an Olsen, Permit Coordinator Ecological environmental assessment or Calyptranthes thomasiana Services, (303) 236–4256 (phone); Catesbaea melanocarpa Tropical environmental impact statement (516 [email protected] (email). DM 6 Appendix 1, 1.4C(1)). lilythorn SUPPLEMENTARY INFORMATION: Zanthoxylum thomasianum St. Thomas Public Availability of Comments pricklyash Background All comments and materials we Collection will be done in Miami- The Act (16 U.S.C. 1531 et seq.) receive in response to this request will Dade County, Florida and Saint John, prohibits activities with endangered and be available for public inspection, by U.S. Virgin Islands. threatened species unless a Federal appointment, during normal business Dated: November 9, 2012. permit allows such activity. Along with hours at the address listed in the our implementing regulations in the Mark J. Musaus, ADDRESSES section of this notice. Code of Federal Regulations (CFR) at 50 Before including your address, phone Acting Regional Director. CFR part 17, the Act provides for number, email address, or other [FR Doc. 2012–28558 Filed 11–23–12; 8:45 am] permits, and requires that we invite personal identifying information in your BILLING CODE 4310–55–P public comment before issuing these comment, you should be aware that permits. your entire comment—including your A permit granted by us under section personal identifying information—may DEPARTMENT OF THE INTERIOR 10(a)(1)(A) of the Act authorizes be made publicly available at any time. applicants to conduct activities with Fish and Wildlife Service While you can ask us in your comment U.S. endangered or threatened species to withhold your personal identifying [FWS–R6–ES–2012–N272; for scientific purposes, enhancement of information from public review, we FXES11130600000D2–123–FF06E00000] propagation or survival, or interstate cannot guarantee that we will be able to commerce (the latter only in the event Endangered and Threatened Wildlife do so. that it facilitates scientific purposes or and Plants; Recovery Permit enhancement of propagation or Authority: We provide this notice under Applications survival). Our regulations implementing section 10 of the Act (16 U.S.C. 1531 et seq.) AGENCY: Fish and Wildlife Service, section 10(a)(1)(A) for these permits are Dated: November 16, 2012. Interior. found at 50 CFR 17.22 for endangered Michael G. Thabault, ACTION: Notice of availability; request wildlife species, 50 CFR 17.32 for Assistant Regional Director, Mountain-Prairie for comments. threatened wildlife species, 50 CFR Region. 17.62 for endangered plant species, and [FR Doc. 2012–28540 Filed 11–23–12; 8:45 am] SUMMARY: We, the U.S. Fish and 50 CFR 17.72 for threatened plant BILLING CODE 4310–55–P Wildlife Service, invite the public to species. comment on the following application Applications Available for Review and to conduct certain activities with Comment DEPARTMENT OF THE INTERIOR endangered or threatened species. The Endangered Species Act of 1973, as We invite local, State, and Federal Fish and Wildlife Service amended (Act), prohibits activities with agencies, and the public to comment on endangered and threatened species the following applications. Please refer [FWS–HQ–IA–2012–N280; unless a Federal permit allows such to the appropriate permit number (e.g., FXIA16710900000P5–123–FF09A30000] activity. The Act also requires that we Permit No. TE–123456) for the invite public comment before issuing application when submitting comments. Endangered Species; Marine these permits. Documents and other information the Mammals; Receipt of Applications for applicants have submitted with these DATES: Permit To ensure consideration, please applications are available for review, send your written comments by subject to the requirements of the AGENCY: Fish and Wildlife Service, December 26, 2012. Privacy Act (5 U.S.C. 552a) and Interior. ADDRESSES: You may submit comments Freedom of Information Act (5 U.S.C. ACTION: Notice of receipt of applications or requests for copies or more 552). for permit. information by any of the following methods. Please refer to the respective Permit Application Number: TE–180540 SUMMARY: We, the U.S. Fish and permit number (e.g., Permit No. TE– Applicant: Lisa Church, Bureau of Wildlife Service, invite the public to 123456) for each application. A limited Land Management, Kanab Field Office, comment on the following applications number of CD–ROMs and hard copies Kanab, Utah to conduct certain activities with are also available. The applicant requests renewal of an endangered species, marine mammals, • Email: [email protected]. existing permit to take (harass by survey or both. With some exceptions, the Please refer to the respective permit and transport) Utah prairie dog Endangered Species Act (ESA) and number (e.g., Permit No. TE–123456) in (Cynomys parvidens) in conjunction Marine Mammal Protection Act the subject line of the message. with surveys and population monitoring (MMPA) prohibit activities with listed • U.S. Mail: Kris Olsen, Permit activities in Utah for the purpose of species unless Federal authorization is Coordinator, Ecological Services, U.S. enhancing the species’ survival. acquired that allows such activities.

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DATES: We must receive comments or support of the application unless our Panamanian golden frog (Atelopus requests for documents on or before allowing viewing would violate the zeteki). December 26, 2012. We must receive Privacy Act or Freedom of Information Applicant: Staten Island Zoo, Staten requests for marine mammal permit Act. Before including your address, Island, NY; PRT–813047 public hearings, in writing, at the phone number, email address, or other address shown in the ADDRESSES section personal identifying information in your The applicant requests renewal of by December 26, 2012. comment, you should be aware that their captive-bred wildlife registration ADDRESSES: Brenda Tapia, Division of your entire comment—including your under 50 CFR 17.21(g) for the following Management Authority, U.S. Fish and personal identifying information—may species, to enhance their propagation or Wildlife Service, 4401 North Fairfax be made publicly available at any time. survival. This notification covers Drive, Room 212, Arlington, VA 22203; While you can ask us in your comment activities to be conducted by the fax (703) 358–2280; or email to withhold your personal identifying applicant over a 5-year period. [email protected]. information from public review, we Species: Cotton-top tamarin (Saguinus FOR FURTHER INFORMATION CONTACT: cannot guarantee that we will be able to oedipus) Brenda Tapia, (703) 358–2104 do so. Leopard (Panthera pardus) (telephone); (703) 358–2280 (fax); II. Background Chinese alligator (Alligator sinensis) [email protected] (email). To help us carry out our conservation Aruba Island rattlesnake (Crotalus SUPPLEMENTARY INFORMATION: responsibilities for affected species, and unicolor) I. Public Comment Procedures in consideration of section 10(a)(1)(A) of Panamanian golden frog (Atelopus the Endangered Species Act of 1973, as zeteki) A. How do I request copies of amended (16 U.S.C. 1531 et seq.), and applications or comment on submitted Applicant: Lionshare Farm Zoological the Marine Mammal Protection Act of applications? LLC, Greenwich, CT; PRT–195196 1972, as amended (16 U.S.C. 1361 et Send your request for copies of seq.), along with Executive Order 13576, The applicant requests amendment of applications or comments and materials ‘‘Delivering an Efficient, Effective, and their captive-bred wildlife registration concerning any of the applications to Accountable Government,’’ and the under 50 CFR 17.21(g) to include the contact listed under ADDRESSES. President’s Memorandum for the Heads cheetah (Acinonyx jubatus) and jackass Please include the Federal Register of Executive Departments and Agencies penguin (Spheniscus demersus) to notice publication date, the PRT- of January 21, 2009—Transparency and enhance their propagation or survival. number, and the name of the applicant Open Government (74 FR 4685; January This notification covers activities to be in your request or submission. We will 26, 2009), which call on all Federal conducted by the applicant over a 5- not consider requests or comments sent agencies to promote openness and year period. to an email or address not listed under transparency in Government by Applicant: St. Catherines Island ADDRESSES. If you provide an email disclosing information to the public, we Foundation, Midway, GA; PRT–89124A address in your request for copies of invite public comment on these permit applications, we will attempt to respond applications before final action is taken. The applicant requests a captive-bred to your request electronically. Under the MMPA, you may request a wildlife registration under 50 CFR Please make your requests or hearing on any MMPA application 17.21(g) for the ring-tailed lemur (Lemur comments as specific as possible. Please received. If you request a hearing, give catta) and Grevy’s Zebra (Equus grevyi) confine your comments to issues for specific reasons why a hearing would be to enhance the species’ propagation or which we seek comments in this notice, appropriate. The holding of such a survival. This notification covers and explain the basis for your hearing is at the discretion of the activities to be conducted by the comments. Include sufficient Service Director. applicant over a 5-year period. information with your comments to Applicant: Johnny B Corporation, allow us to authenticate any scientific or III. Permit Applications Kennesaw, GA; PRT–89321A commercial data you include. A. Endangered Species The comments and recommendations The applicant requests a captive-bred that will be most useful and likely to Applicant: Blank Park Zoo, Des Moines, wildlife registration under 50 CFR influence agency decisions are: (1) IA; PRT–705206 17.21(g) for the following species, to Those supported by quantitative The applicant requests renewal of enhance their propagation or survival. information or studies; and (2) Those their captive-bred wildlife registration This notification covers activities to be that include citations to, and analyses under 50 CFR 17.21(g) for the following conducted by the applicant over a 5- of, the applicable laws and regulations. families, genera and species, to enhance year period. We will not consider or include in our their propagation or survival. This Species: administrative record comments we notification covers activities to be Ring-tailed lemur (Lemur catta) receive after the close of the comment conducted by the applicant over a 5- Black and white ruffed lemur (Varecia period (see DATES) or comments year period. variegata) delivered to an address other than those Families: Red ruffed lemur (Varecia rubra) listed above (see ADDRESSES). Hylobatidae Black lemur (Eulemur macaco) Genus: Brown lemur (Eulemur fulvus) B. May I review comments submitted by Cotton-top tamarin (Saguinus others? Lemur Species: oedipus) Comments, including names and Siberian tiger (Panthera tigris altaica) Lar gibbon (Hylobates lar) street addresses of respondents, will be Snow leopard (Uncia uncia) South American tapir (Tapirus available for public review at the street Japanese macaque (Macaca fuscata) terrestris) address listed under ADDRESSES. The Golden headed tamarin Salmon-crested cockatoo (Cacatua public may review documents and other (Leontopithecus chrysomelas) moluccensis) information applicants have sent in Pink pigeon (Nesoenas mayeri) Golden parakeet (Guarouba guarouba)

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Cuban amazon (Amazona Applicant: Zoological Society of conducted by the applicant over a 5- leucocephala) Philadelphia, Philadelphia, PA; PRT– year period. Bali starling (Leucopsar rothschildi) 89481A Families: The applicant requests a permit to Bovidae Applicant: Terry Owen, Sonora, TX; Camelidae PRT–89708A import 15 male and 15 female captive- born Rodrigues flying fox from the Cebidae The applicant requests a captive-bred Gerald Durrell Endemic Wildlife Cercopithecidae Cervidae wildlife registration under 50 CFR Sanctuary, Vacoas, Mauritius, for the Equidae 17.21(g) for the barasingha (Rucervus purpose of enhancement of the survival Felidae (does not include jaguar, duvaucelii), Eld’s deer (Rucervus eldii), of the species. scimitar-horned oryx (Oryx dammah), margay or ocelot) Arabian oryx (Oryx leucoryx), addax Applicant: Brian Holeman, Ardmore, Hominidae (Addax nasomaculatus), dama gazelle PA; PRT–83682A Hylobatidae (Nanger dama), and red lechwe (Kobus The applicant requests a captive-bred Lemuridae leche) to enhance the species’ wildlife registration under 50 CFR Macropodidae propagation or survival. This 17.21(g) for the scimitar-horned oryx Bucerotidae notification covers activities to be (Oryx dammah), Arabian oryx (Oryx Cathartidae Gruidae conducted by the applicant over a 5- leucoryx), addax (Addax Psittacidae (does not include thick- year period. nasomaculatus), and dama gazelle billed parrot) (Nanger dama) to enhance the species’ Applicant: Terry Owen, Sonora, TX; Rheidae propagation or survival. This PRT–89824A Spheniscidae notification covers activities to be Sturnidae (does not include Aplonis The applicant requests a permit conducted by the applicant over a 5- pelzelni) authorizing interstate and foreign year period. Alligatoridae commerce, export, and cull of excess Applicant: Diane Hitchcock, Delhi, NY; Boidae (does not include Mona boa or barasingha (Rucervus duvaucelii), PRT–84317A Puerto Rico boa) scimitar-horned oryx (Oryx dammah), The applicant requests a captive-bred Crocodylidae (does not include the and addax (Addax nasomaculatus) from American Crocodile) the captive herd maintained at their wildlife registration under 50 CFR 17.21(g) for the golden parakeet Emydidae facility, for the purpose of enhancement Testudinidae of the survival of the species. This (Guarouba guarouba) to enhance the species’ propagation or survival. This Genus: notification covers activities to be Tragopan conducted by the applicant over a 5- notification covers activities to be conducted by the applicant over a 5- Bettongia year period. Species: year period. Applicant: Endangered Species Red siskin (Carduelis cucullata) Applicant: Karla White, Okeechobee, Propagation, Survival and Research Applicant: Alan Flynn, Brockton, MA; FL; PRT–89715A Center, Inc., Mertzon, TX; PRT–748351 PRT–027091 The applicant requests renewal of The applicant requests a captive-bred wildlife registration under 50 CFR The applicant requests renewal of their captive-bred wildlife registration their captive-bred wildlife registration under 50 CFR 17.21(g) for Arabian oryx 17.21(g) for the golden parakeet (Guarouba guarouba) to enhance the under 50 CFR 17.21(g) for radiated (Oryx leucoryx) to enhance their tortoise (Astrochelys radiata) to enhance propagation or survival. This species’ propagation or survival. This notification covers activities to be their propagation or survival. This notification covers activities to be notification covers activities to be conducted by the applicant over a 5- conducted by the applicant over a 5- year period. conducted by the applicant over a 5- year period. year period. Applicant: Tony Roach, Junction, TX; Applicant: Kingdom of Mammals, Central, IN; PRT–713600 Applicant: San Diego Zoo Global, San PRT–89123A Diego, CA; PRT–778487 The applicant requests renewal of The applicant requests a captive-bred their captive-bred wildlife registration The applicant requests reissuance of wildlife registration under 50 CFR under 50 CFR 17.21(g) for the following their permit for scientific research with 17.21(g) for the scimitar-horned oryx species, to enhance their propagation or captive-born giant pandas currently (Oryx dammah), to enhance the species’ survival. This notification covers held under loan agreement with the propagation or survival. This activities to be conducted by the Government of China under the notification covers activities to be applicant over a 5-year period. provisions of the USFWS Panda Policy. conducted by the applicant over a 5- Species: The proposed research will cover all year period. Leopard (Panthera pardus) aspects of behavior, reproductive Applicant: James Sillers, Imlay City, MI; Snow leopard (Uncia uncia) physiology, genetics, nutrition, and PRT–89821A Clouded leopard (Neofelis nebulosa) animal health and is a continuation of activities currently in progress. This The applicant requests a captive-bred Applicant: Wildlife Conservation notification covers activities to be wildlife registration under 50 CFR Society, Bronx, NY; PRT–678969 conducted by the applicant over a 5- 17.21(g) for red siskin (Carduelis The applicant requests renewal of year period. cucullata) to enhance the species’ their captive-bred wildlife registration propagation or survival. This under 50 CFR 17.21(g) for the following Applicant: Robert Opferman, Pueblo, notification covers activities to be families, genera and species, to enhance CO; PRT–073270 conducted by the applicant over a 5- their propagation or survival. This The applicant requests renewal of year period. notification covers activities to be their captive-bred wildlife registration

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under 50 CFR 17.21(g) for radiated conducted by the applicant over a 5- DEPARTMENT OF THE INTERIOR tortoise (Astrochelys radiata) to enhance year period. their propagation or survival. This Families: Bureau of Indian Affairs notification covers activities to be Cebidae Notice of Intent To Prepare an conducted by the applicant over a 5- Felidae (does not include jaguar, year period. Environmental Impact Statement for margay or ocelot) the Proposed Ho-Chunk Nation Beloit Applicant: Roosevelt Park Zoo, Minot, Hylobatidae Casino Project, City of Beloit, Rock ND; PRT–680444 Lemuridae County, WI The applicant requests renewal of Crocodylidae AGENCY: Bureau of Indian Affairs, Varanidae their captive-bred wildlife registration Interior. under 50 CFR 17.21(g) for the following Viperidae (includes Crotalus unicolor families, genera and species, to enhance but not Crotalus willardi) ACTION: Notice. their propagation or survival. This Species: SUMMARY: This notice advises the public notification covers activities to be Grand Cayman blue iguana (Cyclura that the Bureau of Indian Affairs (BIA) conducted by the applicant over a 5- lewisi) as lead agency intends to gather year period. Multiple Applicants information necessary for preparing an Families: Environmental Impact Statement (EIS) Lemuridae The following applicants each request in connection with the Ho-Chunk Genus: a permit to import the sport-hunted Nation (Nation) application for a Hylobates trophy of one male bontebok proposed 33-acre fee-to-trust transfer Species: (Damaliscus pygargus pygargus) culled and casino project to be located in the Cotton-top tamarin (Saguinus from a captive herd maintained under City of Beloit, Rock County, Wisconsin. oedipus) the management program of the This notice also announces a public Bengal tiger (Panthera tigris tigris) Republic of South Africa, for the scoping meeting to identify potential Amur leopard (Panthera pardus purpose of enhancement of the survival issues and content for inclusion in the orientalis) of the species. EIS. Snow leopard (Uncia uncia) Applicant: Charles Kleiser, Mill Creek, DATES: Written comments on the scope Applicant: Zoological Society of Sioux WA; PRT–89909A of the EIS must arrive by December 26, Falls, Sioux Falls, SD; PRT–773473 2012. The public scoping meeting will Applicant: Joseph Borgesen, Clarkston, be held on December 13, 2012, from 6 The applicant requests renewal and MI; PRT–89908A amendment of their captive-bred p.m. until the last public comment is wildlife registration under 50 CFR B. Endangered Marine Mammals and received. 17.21(g) for the following families, Marine Mammals ADDRESSES: You may mail or hand carry genera and species, to enhance their Applicant: Seward Association for the written comments to Ms. Diane Rosen, propagation or survival. This Advancement of Marine Science, Alaska Midwest Regional Director, Bureau of notification covers activities to be SeaLife Center, Seward, AK; PRT– Indian Affairs, Midwest Region, Norman conducted by the applicant over a 5- 73634A Pointe II Building, 5600 West American year period. Boulevard, Suite 500, Bloomington, MN Families: The applicant requests a permit to 55347. Please include your name, return Cercopithecidae take non-releasable northern sea otters address, and ‘‘DEIS Scoping Comments, Hylobatidae (Enhydra lutris kenyoni) for the purpose Ho-Chunk Nation Beloit Casino Project’’ Lemuridae of public display. These would be on the first page of your written Genus: animals that strand from the non-ESA- comments. The public scoping meeting Panthera listed stocks in Alaska and that the will be held at Aldrich Middle School, Species: Service would declare non-releasable 1859 Northgate Drive, Beloit, Wisconsin Yellow-footed rock wallaby (Petrogale because they do not demonstrate the 53511. xanthopus) skills and abilities needed to survive in FOR FURTHER INFORMATION CONTACT: Cheetah (Acinonyx jubatus) the wild. Further, each of these non- Scott Doig, Environmental Protection Black rhinoceros (Diceros bicornis) releasable sea otters would be eligible to Specialist, Bureau of Indian Affairs, Grevy’s zebra (Equus grevyi) be exported for the purpose of public Midwest Region, Norman Pointe II African wild dog (Lycaon pictus) display to facilities that meet the criteria Building, 5600 West American Humboldt penguin (Spheniscus under the MMPA. This notification Boulevard, Suite 500, Bloomington, MN humboldti) covers activities to be conducted by the 55347; Phone (612) 725–4514. Komodo monitor (Varanus applicant over a 5-year period. komodoensis) Concurrent with publishing this SUPPLEMENTARY INFORMATION: The Galapagos tortoise (Chelonoidis nigra) notice in the Federal Register, we are proposed action would transfer Panamanian golden frog (Atelopus forwarding copies of the above approximately 33 acres of land from fee zeteki) applications to the Marine Mammal to trust status, upon which the Nation would develop a casino, hotel, parking, Applicant: Central Florida Zoological Commission and the Committee of Scientific Advisors for their review. and other supporting facilities. The Park, Lake Monroe, FL; PRT–675130 property is located within the The applicant requests renewal of Brenda Tapia, incorporated boundaries of the City of their captive-bred wildlife registration Program Analyst/Data Administrator, Branch Beloit, Wisconsin. Areas of under 50 CFR 17.21(g) for the following of Permits, Division of Management environmental concern identified for families, genera and species, to enhance Authority. analysis in the EIS include land their propagation or survival. This [FR Doc. 2012–28634 Filed 11–23–12; 8:45 am] resources, water resources, air quality, notification covers activities to be BILLING CODE 4310–55–P noise, biological resources, cultural

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resources, resource use patterns, traffic DEPARTMENT OF THE INTERIOR Dated: November 13, 2012. and transportation, public health/ Kevin K. Washburn, environmental hazards, public services Bureau of Indian Affairs Acting Assistant Secretary—Indian Affairs. and utilities, socioeconomics, The Jackson Rancheria’s Tribal environmental justice, and visual Jackson Rancheria—Tribal Council Council Ordinance No. 2012–01—Sale, resources/aesthetics. Alternatives Ordinance No. 2012–01—Sale, Consumption & Possession of Alcoholic identified for analysis include the Consumption & Possession of Beverages reads as follows: proposed action, a no-action Alcoholic Beverages at the Jackson commercial (non-gaming) construction Rancheria Sale, Consumption & Possession of alternative, a no-action no-construction Alcoholic Beverages at the Jackson AGENCY: Bureau of Indian Affairs, alternative, a reduced-intensity Rancheria Interior. development alternative, and an The Tribal Council of the Jackson ACTION: Notice. alternative site location alternative. The Band of Miwuk Indians of the Jackson range of issues and alternatives are open Rancheria, the governing body of the SUMMARY: This notice publishes Jackson to revision based on comments received Jackson Band of Miwuk Indians of the Rancheria’s Tribal Council Ordinance in response to this notice. Additional Jackson Rancheria, hereby enacts this No. 2012–01—Sale, Consumption & information, including a map of the Ordinance to govern the sale, Possession of Alcoholic Beverages at the project site, is available by contacting consumption, and possession of Jackson Rancheria. The Ordinance the person listed in the FOR FURTHER alcoholic beverages on Rancheria lands. INFORMATION CONTACT section of this regulates and controls the sale, notice. Other related approvals may be consumption and possession of liquor Preamble required to implement the project, within the Jackson Rancheria’s Indian 1. Title 18, United States Code, including approval of the Nation’s fee- country. This Ordinance will increase Section 1161, provides Indian tribes to-trust application, determination of the ability of the tribal government to with authority to enact ordinances the site’s eligibility for gaming, control the distribution and possession governing the consumption, possession, compliance with the Clean Water Act, of liquor within its Indian country and and sale of alcoholic beverages on their and local service agreements. To the at the same time will provide an Reservations, provided such ordinance extent applicable, the EIS will identify important source of revenue and is certified by the Secretary of the and evaluate issues related to these strengthening of the tribal government Interior, published in the Federal approvals. and the delivery of tribal services. Register and such activities are in Public Comment Availability: DATES: Effective Date: This Act is conformity with state law. Comments, including names and effective as of November 26, 2012. 2. The Jackson Band of Miwuk addresses of respondents, will be FOR FURTHER INFORMATION CONTACT: Indians of the Jackson Rancheria is a available for public review at the BIA Sophia Torres, Tribal Government federally recognized Indian tribe address shown in the ADDRESSES Specialist, Pacific Regional Office, (hereinafter referred to as the ‘‘Tribe’’) section, during regular business hours, 8 Bureau of Indian Affairs, 2800 Cottage exercising sovereign authority over the a.m. to 4:30 p.m., Monday through Way—Room W–2820, Sacramento, CA lands of the Jackson Rancheria located Friday, except holidays. Before 95825; Telephone (916) 978–6073; Fax within Amador County, California, and including your address, phone number, (916) 978–6099; or De Springer, Office held in trust by the United States on email address, or other personal of Indian Services, 1849 C Street NW., behalf of the Tribe (hereinafter referred identifying information in your MS/4513/MIB, Washington, DC 20240; to as ‘‘Rancheria’’) on which tribal comment, you should be aware that Telephone (202) 513–7626; Fax (202) members reside in private homes and your entire comment—including your 208–5113. the Tribe conducts various tribal personal identifying information—may businesses. be made publicly available at any time. SUPPLEMENTARY INFORMATION: Pursuant 3. Pursuant to Article III Section 1 and While you can ask in your comment that to the Act of August 15, 1953; Public Article VI of the Tribe’s Constitution, your personal identifying information Law 83–277, 67 Stat. 586, 18 U.S.C. the Tribal Council is the governing body be withheld from public review, the BIA 1161, as interpreted by the Supreme of the Tribe with the power to enact cannot guarantee that this will occur. Court in Rice v. Rehner, 463 U.S. 713 ordinances to promote the general (1983), the Secretary of the Interior shall welfare and economic advancement of Authority: This notice is published in certify and publish in the Federal the Tribe and its members. accordance with sections 1503.1 and 1506.6 Register notice of adopted liquor of the Council on Environmental Quality 4. The Tribe is the owner and operator ordinances for the purpose of regulating of the Jackson Rancheria Casino & Hotel Regulations (40 CFR parts 1500 through liquor transactions in Indian country. 1508) implementing the procedural which includes an outdoor The Jackson Rancheria Tribal Council entertainment area, an RV park with a requirements of the National Environmental adopted Ordinance No. 2012–01, by Policy Act of 1969, as amended (42 U.S.C. recreation center, and a General Store Tribal Council Resolution No. 2012–02, 4321 et seq.), and the Department of the (collectively referred to herein as Interior National Environmental Policy Act on January 15, 2012. ‘‘Tribal Business Enterprises’’), which Implementation Policy (43 CFR part 46), and This notice is published in are all located on the Rancheria. is in the exercise of authority delegated to the accordance with the authority delegated 5. The Tribal Business Enterprises are Assistant Secretary—Indian Affairs by 209 by the Secretary of the Interior to the an integral and indispensable part of the DM 8. Assistant Secretary—Indian Affairs. I Tribe’s economy, providing income to Dated: September 20, 2012. certify that the Tribal Council duly the Tribe and training and employment adopted Jackson Rancheria’s Tribal to its members. Donald E. Laverdure, Council Ordinance No. 2012–01—Sale, 6. The Tribal Council has determined Acting Assistant Secretary—Indian Affairs. Consumption & Possession of Alcoholic that it is in the Tribe’s best interest to [FR Doc. 2012–28551 Filed 11–23–12; 8:45 am] Beverages at the Jackson Rancheria on offer for sale alcoholic beverages under BILLING CODE P January 15, 2012. limited conditions established by the

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Tribal Council and to update, 6. All liquor sales at the Tribal Council and its individual members consolidate, and replace two previous Business Enterprises shall be on a cash shall not accept any gratuity or Tribal Council Ordinances governing only basis and no credit shall be compensation from any liquor the limited sale and consumption of extended to any person, organization or wholesaler, retailer, or distributor for alcoholic beverages. entity, except that this provision does the Jackson Rancheria, including all of 7. It is the purpose of this ordinance not prevent the use of credit cards or its Tribal Business Enterprises. to set out the terms and conditions debit credit cards issued by any under which the sale, consumption, and financial institution. Severability, Amendment, and possession of alcoholic beverages may 7. In addition to the foregoing Sovereign Immunity take place as provided for herein. paragraphs pertaining to the sale and 1. If any provision or application of consumption of alcohol, the this ordinance is determined by review General Terms consumption and possession of to be invalid, such adjudication shall 1. The sale of alcohol at the Jackson alcoholic beverages where no sale is not be held to render ineffectual the Rancheria Casino & Hotel (including its involved is hereby authorized only in remaining portions of this title or to outdoor entertainment area) for on- areas within the Rancheria with render such provisions inapplicable to premises consumption only is hereby overnight accommodations, specifically other persons or circumstances. authorized. For purposes of this the RV Park, the individual hotel rooms 2. This ordinance may only be paragraph 1, ‘‘on-premises’’ is defined of the Jackson Rancheria Casino & Hotel, amended by a majority vote of the Tribal as the Jackson Rancheria Casino & Hotel and private homes located on the Council. and its outdoor entertainment area. Rancheria, including possession while 3. Nothing in this ordinance in any 2. The sale of alcohol at the Tribe’s specifically en route to these areas. All way limits, alters, restricts or waives the RV Park for on-premises consumption such consumption and possession shall Tribe’s sovereign immunity from only is hereby authorized. For purposes comply with all applicable tribal, unconsented suit or action. of this paragraph 2, ‘‘on-premises’’ is federal and state laws and regulations. Effective Date defined as the Tribe’s RV Park which For purposes of this paragraph 7, includes a recreation center. ‘‘where no sale is involved’’ is defined This ordinance shall become effective 3. The Jackson Rancheria General as consumption or possession of alcohol following its certification by the Store is hereby authorized for the off- where no money is requested or paid. Secretary of the Interior and its sale of alcohol only. For purposes of this 8. This ordinance updates, publication in the Federal Register. paragraph 3, ‘‘off-sale of alcohol’’ is consolidates, and replaces Tribal [FR Doc. 2012–28538 Filed 11–23–12; 8:45 am] defined as sale of alcohol for Council Ordinance No. 99–04 enacted BILLING CODE 4310–4J–P consumption off the premises of the in 1999 to govern the limited sale of General Store and within the following alcoholic beverages at the Tribe’s areas: (a) outside the boundaries of the Conference Center and Tribal Council DEPARTMENT OF THE INTERIOR Jackson Rancheria lands; and (b) within Ordinance No. 2008–01 enacted in 2008 Bureau of Land Management the Jackson Rancheria in areas with to govern the limited sale of alcoholic overnight accommodations, specifically beverages at the Tribe’s General Store. [LLAK–963000–L1410000–FQ0000; F–08649] the RV Park, the individual hotel rooms Therefore, said Ordinance No. 99–04 of the Jackson Rancheria Casino & Hotel, and Ordinance No. 2008–01 shall be Public Land Order No. 7806; Partial and private homes located on the repealed as of the Effective Date of this Revocation of Secretarial Order Dated Rancheria. ordinance, as defined below. September 24, 1942; Alaska 4. The sale of said alcoholic beverages Posting AGENCY: Bureau of Land Management, authorized by this ordinance shall be Interior. limited to the time, place and manner This ordinance shall be ACTION: Public Land Order. restrictions enacted by the Tribal conspicuously posted at each Tribal Council. No alcohol may be sold at any Business Enterprise on the Jackson SUMMARY: This order revokes a location on the Rancheria pursuant to Rancheria where alcohol is sold Secretarial Order insofar as it affects this ordinance other than at the Tribal pursuant to this ordinance at all times approximately 1,905 acres of public Business Enterprises. it is open to the public. lands withdrawn on behalf of the 5. The sale of said alcoholic beverages Enforcement Federal Aviation Administration for Air authorized by this ordinance shall be in Navigation Site No. 189 at Farewell, conformity with all applicable laws of 1. This ordinance may be enforced by Alaska. The Federal Aviation the State of California, and the sale of the Tribal Council by implementation of Administration no longer needs the said beverages shall be subject to state monetary fines not to exceed $500 and/ lands for air navigation purposes. sales tax, federal excise tax and any fees or withdrawal of authorization to sell DATES: Effective Date: November 26, alcohol. Prior to any enforcement required by the Federal Bureau of 2012. Alcohol, Tobacco & Firearms. This action, the Tribal Council shall provide includes but is not limited to the the alleged offender of this ordinance FOR FURTHER INFORMATION CONTACT: following examples: with at least three (3) days notice of an Robert L. Lloyd, BLM Alaska State a. No person under the age of 21 years opportunity to be heard during a Office, 222 W. Seventh Avenue, #13, shall consume, acquire or have in his or specially-called Tribal Council meeting. Anchorage, AK 99513, 907–271–4682. her possession at the Tribal Business The decision of the Tribal Council shall Persons who use a telecommunications Enterprises any alcoholic beverage. be final. device for the deaf (TDD) may call the b. No person shall sell alcohol to any 2. This ordinance also may be Federal Information Relay Service person under the age of 21 at the Tribal enforced by the Amador County (FIRS) at 1–800–877–8339 to contact the Business Enterprises. Sheriff’s Office at the request of the above individual during normal c. No person shall sell alcohol to a Tribal Council. business hours. The FIRS is available 24 person apparently under the influence 3. In the exercise of its powers and hours a day, 7 days a week, to leave a of liquor. duties under this ordinance, the Tribal message or question with the above

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individual. You will receive a reply No. 3; thence along a portion of line 3– Sec. 3, E1⁄2 of lot 1 of NE1⁄4, lot 2 of NE1⁄4, ° ′ ″ 1 1 1 during normal business hours. 4, N. 14 24 03 E., a distance of 4,675.46 lot 2 of NW ⁄4, and S ⁄2S ⁄2; feet to a point not monumented; thence Sec. 4, lots 1 and 2 of NE1⁄4, lots 1 and 2 SUPPLEMENTARY INFORMATION: The S. 75°35′54″ E., a distance of 3,295.12 of NW1⁄4, SW1⁄4, and S1⁄2SE1⁄4; Federal Aviation Administration has feet, to a point not monumented; thence Secs 5 and 6; determined that approximately 1,905 N. 14°35′22″ E., a distance of 1,261.78 Sec. 7, E1⁄2; acres of Air Navigation Site No. 189 is feet to corner No. 6, Lot 1, U. S. Survey Secs. 8 and 9; excess to its needs and has requested a No. 2640, the point of beginning, Sec. 10, N1⁄2N1⁄2; partial revocation of the withdrawal. containing 714.11 acres more or less. Sec. 12, N1⁄2 and SE1⁄4. Upon revocation, the State of Alaska The total area described contains T. 5 N., R. 3 E., partly unsurveyed. selection applications made under the approximately 1,905 acres, more or less, at Secs. 2 to 35, inclusive; 1 Alaska Statehood Act and the Alaska Farewell, Alaska. Sec. 36, SW ⁄4. 2. The State of Alaska applications for T. 4 N., R. 4 E., National Interest Lands Conservation Secs. 1 to 15, inclusive; Act become effective without further selection made under Section 6(a) of the Alaska Statehood Act of July 7, 1958, 48 Sec. 17; action by the State. While the land U.S.C. note prec. 21 and under Section 906(e) Sec. 18, N1⁄2; remains in Federal ownership, there is of the Alaska National Interest Lands Sec. 20, N1⁄2; no significant restriction on subsistence Conservation Act, 43 U.S.C. 1635(e) become Secs. 21 to 27, inclusive; uses. If the lands are ultimately effective without further action by the State Sec. 28, N1⁄2. conveyed to the State of Alaska upon publication of this Public Land Order T. 5 N., R. 4 E., partly unsurveyed. pursuant to the Alaska Statehood Act, in the Federal Register, if such land is Secs. 2 to 11, inclusive; that conveyance will not result in a otherwise available. Land selected by, but not Sec. 12, all except for Mineral Survey No. 6336; significant restriction on subsistence. conveyed to, the State will be subject to Public Land Order No. 5186, (37 FR 5589 Sec. 13, E1⁄2, E1⁄2E1⁄2NW1⁄4, E1⁄2SW1⁄4, and Even if any such restriction would 1 1 1 (1972)), as amended, and any other E ⁄2W ⁄2SW ⁄4; result upon conveyance of the land to withdrawal or segregation of record. Secs. 14, 15, and 16; the State, conveyance of the land is Sec. 17, NW1⁄4 and S1⁄2; Dated: October 25, 2012. authorized by Section 810(c) of the Secs. 18 to 24, inclusive; Rhea S. Suh, 1 1 1 1 Alaska National Interest Lands Sec. 25, N ⁄2, SW ⁄4, and W ⁄2SE ⁄4; Conservation Act. Assistant Secretary—Policy, Management Sec. 26, lots 1 to 4, inclusive, W1⁄2, and and Budget. SE1⁄4; Order [FR Doc. 2012–28643 Filed 11–23–12; 8:45 am] Secs. 27 to 36, inclusive. By virtue of the authority vested in BILLING CODE 4310–JA–P T. 6 N., R. 4 E., the Secretary of the Interior by Section Secs. 1 to 15, inclusive, and 17 to 24, inclusive; 204 of the Federal Land Policy and DEPARTMENT OF THE INTERIOR Sec. 26; Management Act of 1976, 43 U.S.C. Secs. 27 and 28, all except for Mineral 1714, it is ordered as follows: [LLCAD08000–L14300000–ET0000; CACA Survey Nos. 3000 and 3980; 1. The Secretarial Order dated 51737] Secs. 29 to 35, inclusive; September 24, 1942, which withdrew Sec. 36, N1⁄2 and SW1⁄4. public lands and reserved them on Public Land Order No. 7801; T. 3 N., R. 5 E., behalf of the Federal Aviation Withdrawal of Public Lands for Secs. 1, 2, and 3; Administration for Air Navigation Site Protection of Proposed Expansion of Sec. 4, lots 1 to 12, inclusive, and 1 1 1 1 No. 189, is hereby revoked only insofar Twentynine Palms, CA E ⁄2NW ⁄4NE ⁄4SW ⁄4; as it affects the following described Secs. 5 and 6; Correction Sec. 9, lots 1 and 2; land: Sec. 10, lots 1 to 7, inclusive; In notice document 2012–23479 Seward Meridian, Alaska Sec. 11; beginning on page 58864 of the issue of Sec. 12, lots 1 to 12, inclusive. T. 28 N., R. 25 W., more particularly Monday, September 24, 2012 make the described as follows: T. 4 N., R. 5 E., partly unsurveyed. Parcel A, a portion of U.S. Survey No. following correction: Secs. 2 to 35, inclusive. 2640, Alaska, is described as follows: On page 58865, beginning in the first T. 5 N., R. 5 E., Beginning at corner No. 1, U.S. Survey column, under the heading ‘‘a. Federal Secs. 4 and 5; 1 1 No. 2640; thence along a portion of line surface and mineral estate:’’, and Sec. 6, lots 1 to 10, inclusive, SE ⁄4NW ⁄4, 1 1 1 1 1 1 1–4, S. 14°21′59″ W., a distance of ending on the same page, in the third E ⁄2SW ⁄4, N ⁄2SE ⁄4, and SW ⁄4SE ⁄4; 2,765.52 feet, to a point not column, on the last line, the text should Sec. 7, lots 1 to 4, inclusive, lots 6 and 7, S1⁄2NE1⁄4, SE1⁄4NW1⁄4, E1⁄2SW1⁄4, and monumented; thence N. 75°53′00″ W., a read as follows: distance of 18,479.03 feet to a point on SE1⁄4; line 3–2, not monumented; thence along San Bernardino Meridian Sec. 8; ° ′ ″ Secs. 14, 15, 18, 19, 20, 22, 23, 26, 27, 28, a portion of line 3–2, N. 14 20 30 E., a Western Acquisition Area distance of 2,846.73 feet to corner No. 2; 30, 31, 32, 34, and 35. thence along line 2–1, S. 75°37′54″ E., a T. 4 N., R. 2 E., T. 6 N., R. 5 E., distance of 18,480.13 feet to corner No. Sec. 1. Secs. 17 to 20, inclusive, and 29 to 32, 1, the point of beginning, containing T. 5 N., R. 2 E., inclusive. 1190.44 acres more or less. Secs. 1 and 2; Southern Acquisition Area Parcel B, a portion of U.S. Survey No. Secs. 11 to 14, inclusive, and 23 to 26, 5408, Alaska, is described as follows: inclusive; T. 2 N., R. 9 E., Beginning at corner No. 6, Lot 1, U. S. Sec. 35. Sec. 25; Survey No. 2640, on line 4–1, U.S. T. 6 N., R. 2 E., Sec. 26, all except for Survey No. 5408; thence along a portion Sec. 13; N1⁄2NW1⁄4SW1⁄4SW1⁄4; of said line 4–1, S. 75°38′58″ E., a Secs. 23 to 26, inclusive; Sec. 27, E1⁄2 except for W1⁄2SE1⁄4SE1⁄4SE1⁄4; distance of 2,639.78 feet, to corner No. 1; Sec. 35. Sec. 34, S1⁄2NE1⁄4NE1⁄4NE1⁄4, thence along line 1–2, S. 14°23′28″ W., T. 4 N., R. 3 E., SE1⁄4NE1⁄4NE1⁄4, W1⁄2NE1⁄4NE1⁄4, a distance of 5,939.45 feet, to corner No. Sec. 1, lots 1 and 2 of NE1⁄4, lots 1 and 2 NW1⁄4NE1⁄4, and E1⁄2NW1⁄4; 2; thence along line 2–3, N. 75°36′00″ of NW1⁄4, NW1⁄4SW1⁄4, and SE1⁄4; Sec. 35, N1⁄2 except for N1⁄2NE1⁄4NE1⁄4NE1⁄4 W., a distance of 5,940.00 feet to corner Sec. 2; and S1⁄2SW1⁄4NW1⁄4NE1⁄4.

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T. 2 N., R. 10 E., Secs. 11, 12, and 13; telephone 202–205–2000. General Secs. 2 to 11, inclusive; Secs. 14 and 15, those portions lying east information concerning the Commission Sec. 14, that portion lying north and west of the Sheephole Valley Wilderness may also be obtained by accessing its of the boundary of the Cleghorn Lakes Area. Wilderness Area; T. 4 N., R. 14 E., Internet server (http://www.usitc.gov). Sec. 15 and 17 to 22, inclusive; Secs. 6, 7, 8, 10, 11, 12, 14, 15, 17, and 18; The public record for this investigation Sec. 23, that portion lying west of the Sec. 20, that portion lying northeasterly of may be viewed on the Commission’s boundary of the Cleghorn Lakes the Sheephole Valley Wilderness Area; electronic docket (EDIS) at http:// Wilderness Area; Secs. 21 to 24, inclusive; edis.usitc.gov. Hearing-impaired Sec. 26, that portion lying west and south Sec. 25, that portion lying northwesterly of persons are advised that information on of the boundary of the Cleghorn Lakes the Cadiz Dunes Wilderness Area; this matter can be obtained by Wilderness Area; Secs. 26, 27, and 28; contacting the Commission’s TDD Secs. 27 to 35, inclusive. Sec. 29, that portion lying northeasterly of the Sheephole Valley Wilderness Area; terminal on 202–205–1810. Eastern Acquisition Area Secs. 33, 34, and 35. SUPPLEMENTARY INFORMATION: The T. 4 N., R. 11 E., T. 5 N., R. 14 E., Commission instituted this investigation Secs. 1, 2, 11, 12, and 14. Secs. 30 and 31. on August 1, 2011, based on a complaint T. 5 N., R. 11 E., T. 4 N, R. 15 E., filed by Samsung Electronics Co., Ltd. of Sec. 35. Secs. 1 to 4, inclusive; Korea and Samsung T. 3 N., R. 12 E., Sec. 5, all except for railroad rights-of-way; Secs. 1, 2, and 3; Secs. 6, 7, and 8; Telecommunications America, LLC of Secs. 10 to 15, inclusive; Sec. 9, all except for railroad rights-of-way; Richardson, Texas (collectively, Secs. 22, 23, and 24; [FR Doc. C1–2012–23479 Filed 11–23–12; 8:45 am] ‘‘Samsung’’). 76 FR 45860 (Aug. 1, Sec. 25, that portion lying west of the BILLING CODE 1505–01–D 2011). The complaint alleges violations boundary of the Sheephole Valley of section 337 of the Tariff Act of 1930, Wilderness Area; as amended (19 U.S.C. 1337), in the Secs. 26 and 27; Sec. 34, that portion lying north and east INTERNATIONAL TRADE importation into the United States, the of the boundary of Cleghorn Lakes COMMISSION sale for importation, and the sale within Wilderness Area; the United States after importation of Sec. 35. [Investigation No. 337–TA–794] certain electronic devices, including T. 4 N., R. 12 E., wireless communication devices, Secs. 1 to 8, inclusive; Certain Electronic Devices, Including portable music and data processing Secs. 10, 11, 12, 14, and 15; Wireless Communication Devices, devices, and tablet computers, by reason Sec. 18, all except for Mineral Survey No. Portable Music and Data Processing of infringement of various patents, 5802; Devices, and Tablet Computers; Notice including U.S. Patent Nos. 7,706,348 Sec. 19, N1⁄2 except for Mineral Survey of Commission Determination To (‘‘the ’348 patent’’), 7,486,644 (‘‘the ’644 Nos. 5802 and 5805; Review the Final Initial Determination; 1 patent’’), 7,450,114 (‘‘the ’114 patent’’), Sec. 21, E ⁄2; Schedule for Filing Written Secs. 23 to 27, inclusive; and 6,771,980 (‘‘the ’980 patent’’). The Submissions on the Issues Under Sec. 28, E1⁄2; notice of investigation names Apple Inc. Secs. 34 and 35. Review and on Remedy, Public of Cupertino, California, as the only T. 5 N., R. 12 E., Interest, and Bonding respondent. Secs. 19 and 20, all except the lands AGENCY: On September 14, 2012, the presiding conveyed by Patent No. 1000678; U.S. International Trade Secs. 21 to 27, inclusive; Commission. administrative law judge (‘‘ALJ’’) issued Sec. 28, N1⁄2 and SW1⁄4; ACTION: Notice. his final initial determination (‘‘ID’’) in Secs, 29 and 30, all except the lands this investigation finding no violation of conveyed by Patent No. 1000678; SUMMARY: Notice is hereby given that section 337. The ALJ determined that Secs. 31 to 35, inclusive. the U.S. International Trade the ’348, ’644, and ’980 patents are valid T. 3 N., R. 13 E., Commission has determined to review but not infringed and that the ’114 Sec. 4, that portion lying west of the the final initial determination issued by patent is both invalid and not infringed. Sheephole Valley Wilderness Area; the presiding administrative law judge The ALJ further determined that the Secs. 5 and 7; in the above-captioned investigation on economic prong of the domestic Sec. 8, 17, 18, and 19, those portions lying September 14, 2012. The Commission west of the Sheephole Valley Wilderness industry requirement is satisfied for all Area. requests certain briefing from the parties four patents at issue, but that the T. 4 N., R. 13 E., on the issues under review, as indicated technical prong is not satisfied for any Secs. 1 to 4, inclusive, 6 to 15, inclusive, in this notice. The Commission also of the asserted patents. and 17 to 22, inclusive; requests briefing from the parties and On October 1, 2012, complainant Secs. 23, 24, and 27, those portions lying the public on the issues of remedy, the Samsung and the Commission northwesterly of the Sheephole Valley public interest, and bonding. investigative attorney filed petitions for Wilderness Area; FOR FURTHER INFORMATION CONTACT: review of the ID, while Apple filed a Secs. 28 to 32, inclusive; Secs. 33 and 34, that portion lying Clark S. Cheney, Office of the General contingent petition for review. northwesterly of the Sheephole Valley Counsel, U.S. International Trade Having examined the record of this Wilderness Area. Commission, 500 E Street SW., investigation, including the ID, the T. 5 N., R. 13 E., Washington, DC 20436, telephone 202– petitions for review, and the responses Secs. 19 and 20; 205–2661. Copies of non-confidential thereto, the Commission has determined Sec. 22, W1⁄2; documents filed in connection with this to review the ALJ’s determination of no Secs. 23 to 28, inclusive, and 30, 31, 32, investigation are or will be available for violation in its entirety. 34, and 35. inspection during official business In connection with the final T. 3 N., R. 14 E., Secs. 1 and 2; hours (8:45 a.m. to 5:15 p.m.) in the disposition of this investigation, the Secs. 3, 4, and 10, those portions lying east Office of the Secretary, U.S. Commission may issue an order that of the Sheephole Valley Wilderness International Trade Commission, 500 E results in the exclusion of the subject Area; Street SW., Washington, DC 20436, articles from entry into the United

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States. See 19 U.S.C. 1337(d). 1. Does the mere existence of a 10. With respect to asserted claims Accordingly, the Commission is FRAND undertaking with respect to a 82–84 of the ’348 patent, identify any interested in receiving written particular patent preclude issuance of support in the patent specification or submissions that address the form of an exclusion order based on the record generally for construing the remedy, if any, that should be ordered. infringement of that patent? Please term ‘‘puncturing’’ in asserted claims If a party seeks exclusion of an article discuss theories in law, equity, and the 82–84 to encompass ‘‘excluding’’ bits from entry into the United States for public interest, and identify which (if (see, e.g., ’348 patent at 32:10–17). What purposes other than entry for any) of the 337(d)(1) public interest consequence would such a construction consumption, the party should so factors preclude issuance of such an have on the issues of infringement, indicate and provide information order. validity, and the technical prong of the establishing that activities involving 2. Where a patent owner has offered domestic industry requirement? other types of entry either are adversely to license a patent to an accused 11. With respect to the asserted claims affecting it or likely to do so. For infringer, what framework should be of the ’644 patent, what is the proper background, see Certain Devices for used for determining whether the offer construction of ‘‘extracting’’? What Connecting Computers via Telephone complies with a FRAND undertaking? variable, if any, in the source code Lines, lnv. No. 337TA360, USITC Pub. How would a rejection of the offer by an relied upon by Samsung to prove No. 2843, Comm’n Op. at 7–10 accused infringer influence the analysis, infringement and domestic industry (December 1994). if at all? represents a ‘‘60-bit rate-matched block’’ When the Commission contemplates 3. Would there be substantial cost or that has been extracted from a received some form of remedy, it must consider delay to design around the technology signal? the effects of that remedy upon the covered by the ’348 and ’644 patents 12. With respect to the ’980 patent, public interest. The factors the asserted in this investigation? Could has Samsung waived all infringement Commission will consider include the such a design-around still comply with and domestic industry allegations effect that an exclusion order and/or the relevant ETSI standard? except for those based on claim 10? cease and desist orders would have on 4. What portion of the accused Identify by source code file name or other specific record designation the (1) The public health and welfare, (2) devices is allegedly covered by the precise ‘‘dialing program’’ that Samsung competitive conditions in the U.S. asserted claims of each of the ’348 and relies upon to prove infringement and economy, (3) U.S. production of articles ’644 patents? Do the patents cover domestic industry with respect to claim that are like or directly competitive with relatively minor features of the accused 10. Also identify, using record evidence, those that are subject to investigation, devices? In addition to the foregoing, the the conditions that trigger execution of and (4) U.S. consumers. The parties to the investigation are requested the ‘‘dialing program’’ in the relevant Commission is therefore interested in to brief their positions on the following devices. receiving written submissions that subset of the issues under review, with 13. With respect to the ’980 patent, if address the aforementioned public reference to the applicable law and the the Commission were to construe interest factors in the context of this evidentiary record: ‘‘dialing icon’’ to require a ‘‘pictorial investigation. 5. What evidence in the record element,’’ what record evidence When the Commission orders some explains the legal significance of demonstrates that Samsung’s alleged form of remedy, the U.S. Trade Samsung’s FRAND undertakings under domestic industry products meet that Representative, as delegated by the French law? limitation? President, has 60 days to approve or 6. [ ] The parties have been invited to brief disapprove the Commission’s action. 7. [ ] only the discrete issues enumerated See Presidential Memorandum of July 8. With respect to the asserted claims above, with reference to the applicable 21, 2005, 70 FR 43251 (July 26, 2005). of the ’348 patent, what record evidence law and evidentiary record. The parties During this period, the subject articles shows that a person of ordinary skill in are not to brief other issues on review, would be entitled to enter the United the art would understand the phrase ‘‘10 which are adequately presented in the States under bond, in an amount bit TFCI information’’ to allow or parties’ existing filings. determined by the Commission and preclude the use of padding bits? What Written Submissions: Written prescribed by the Secretary of the is the difference between the ‘‘10 bit submissions and proposed remedial Treasury. The Commission is therefore TFCI information’’ in the portion of orders in response to this notice must be interested in receiving submissions Table 1a shown in columns 13 and 14 filed no later than close of business on concerning the amount of the bond that of ’348 patent and the TFCI information December 3, 2012. Complainant and should be imposed if a remedy is with padding zeroes allegedly used in OUII are also requested to submit ordered. the alleged domestic industry devices? proposed remedial orders for the Parties to the investigation, interested Is the patent’s discussion of padding Commission’s consideration. government agencies, the Office of zeroes at col. 3, lines 27–34 of any Complainant is also requested to state Unfair Import Investigations (‘‘OUII’’), relevance? What consequence would the dates that the patents expire and the and any other interested parties are construing ‘‘10 bit TFCI information’’ to HTSUS numbers under which the encouraged to file written submissions allow padding bits have on the issues of accused products are imported. Initial on the issues of remedy, the public infringement, validity, and the technical submissions by the parties are limited to interest, and bonding. Such submissions prong of the domestic industry 80 pages, not including any attachments should address the recommended requirement? or exhibits related to discussion of the determination by the ALJ on remedy 9. With respect to the asserted claims public interest. Initial submissions by and bonding. of the ’348 patent, what claim language, other members of the public are limited The Commission further encourages if any, limits the claim to the use of a to 50 pages, not including any briefing from the parties to the look-up table and precludes the claim attachments or exhibits related to investigation, interested government from covering the embodiment of the discussion of the public interest. Reply agencies, OUII, and any other interested invention shown in Figures 8 and 14 of submissions must be filed no later than parties on the following topics: the ’348 patent? the close of business December 10,

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2012. All reply submissions are limited JUDICIAL CONFERENCE OF THE instrument with instructions, should be to 50 pages, not including any UNITED STATES directed to Andre Simons, Federal attachments or exhibits related to Bureau of Investigation, NCAVC, discussion of the public interest. No Meeting of the Judicial Conference Critical Incident Response Group, FBI further submissions on these issues will Committee on Rules of Practice and Academy, 1 Range Road, Quantico, be permitted unless otherwise ordered Procedure Virginia, 22135.Written comments and suggestions from the public and affected by the Commission. AGENCY: Judicial Conference of the agencies concerning the proposed United States Committee on Rules of Persons filing written submissions collection of information are Practice and Procedure. must file the original document encouraged. Comments should address electronically on or before the deadlines ACTION: Notice of open meeting. one or more of the following four points: stated above and submit 8 true paper SUMMARY: The Committee on Rules of (1) Evaluate whether the proposed copies to the Office of the Secretary by collection of information is necessary noon the next day pursuant to section Practice and Procedure will hold a two- day meeting. The meeting will be open for the proper performance of the 210.4(f) of the Commission’s Rules of functions of the agency, including Practice and Procedure (19 CFR to public observation but not participation. whether the information will have 210.4(f)). Submissions should refer to practical utility; the investigation number (‘‘Inv. No. DATE: January 3–4, 2013. (2) Evaluate the accuracy of the 337–TA–794’’) in a prominent place on TIME: 8:30 a.m. to 5:00 p.m. agency’s estimate of the burden of the the cover page and/or the first page. (See ADDRESSES: The Charles Hotel, Harvard proposed collection of information, Handbook for Electronic Filing Square, One Bennett Street, Cambridge, including the validity of the Procedures, http://www.usitc.gov/ MA 02138. methodology and assumptions used; _ _ secretary/fed reg notices/rules/ FOR FURTHER INFORMATION CONTACT: (3) Enhance the quality, utility, and _ _ _ handbook on electronic filing.pdf). Jonathan C. Rose, Rules Committee clarity of the information to be Persons with questions regarding filing Secretary, Rules Committee Support collected; and should contact the Secretary (202–205– Office, Administrative Office of the (4) Minimize the burden of the 2000). United States Courts, Washington, DC collection of information on those who are to respond, including through the Any person desiring to submit a 20544, telephone (202) 502–1820. use of appropriate automated, document to the Commission in Dated: November 20, 2012. electronic, mechanical, or other confidence must request confidential Jonathan C. Rose, technological collection techniques of treatment. All such requests should be Rules Committee Secretary. other forms of information technology, directed to the Secretary to the [FR Doc. 2012–28627 Filed 11–23–12; 8:45 am] e.g., permitting electronic submission of Commission and must include a full BILLING CODE 2210–55–P responses. statement of the reasons why the Commission should grant such Overview of This Information Collection treatment. See 19 CFR 201.6. Documents DEPARTMENT OF JUSTICE for which confidential treatment by the (1) Type of information collection: Commission is properly sought will be [OMB Number 1110–NEW] Emergency notice: Identify bomb-related treated accordingly. A redacted non- incidents (including hoax devices and Agency Information Collection confidential version of the document threats where no device was involved) Activities: Proposed Collection, must also be filed simultaneously with occurring at institutions of higher Comments Requested; Notice of the any confidential filing. All non- education (IHE), and how each IHE has Collection of Information Relative to responded to these incidents. confidential written submissions will be Threats of Explosive Device Violence (2) The title of the form/collection: available for public inspection at the at Institutions of Higher Education Office of the Secretary and on EDIS. Institution of Higher Education Bomb Threat/Incident Survey The authority for the Commission’s ACTION: Emergency 60-day Notice. (3) The agency form number, if any, determination is contained in section The Department of Justice, Federal and the applicable component of the 337 of the Tariff Act of 1930, as Bureau of Investigation (FBI), National department sponsoring the collection: amended (19 U.S.C. 1337), and in Part Center for the Analysis of Violent Crime N/A 210 of the Commission’s Rules of (NCAVC), will be submitting the (4) Affected public who will be asked Practice and Procedure (19 CFR part following information collection request or required to respond, as well as a brief 210). to the Office of Management and Budget abstract: IHE law enforcement or Issued: November 19, 2012. (OMB) for review and clearance in campus safety agencies. By order of the Commission. accordance with established review (5) An estimate of the total number of Lisa R. Barton, procedures of the Paperwork Reduction respondents and the amount of time Act of 1995. The proposed information estimated for an average respondent to Acting Secretary to the Commission. collection is published to obtain respond: It is estimated that 1200 [FR Doc. 2012–28509 Filed 11–23–12; 8:45 am] comments from the public and affected respondents will be contacted to BILLING CODE 7020–02–P agencies. Comments are encouraged and complete a survey consisting of 19 will be accepted until 12/5/2012. This questions. It is estimated that a burden process is conducted in accordance with of approximately 20 to 60 minutes will 5 CFR 1320.10. be cast upon each respondent to All comments, suggestions, or complete the survey. However, this questions regarding additional estimated burden will depend on information, to include obtaining a copy individualized data retrieval systems, of the proposed information collection availability of requested data, and other

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variables that could not be estimated via Written comments and suggestions then be used to advise OVC on ways to sample testing. from the public and affected agencies improve the support that it provides to (6) An estimate of the total public concerning the proposed collection of the victim services field at-large. burden (in hours) associated with this information are encouraged. Your (5) An estimate of the total number of collection: There are approximately comments should address one or more respondents and the amount of time 24,000 to 72,000 burden minutes of the following four points: estimated for an average respondent to associated with this information (1) Evaluate whether the proposed respond/reply: There are approximately collection. collection of information is necessary 11,119 respondents who will require an If additional information is required for the proper performance of the average of 8 minutes (ranging from 4 to contact: Jerri Murray, Department functions of the agency/component, 15 minutes across all forms) to respond Clearance Officer, Policy and Planning including whether the information will to a single form each year. Staff, Justice Management Division, have practical utility; (6) An estimate of the total public United States Department of Justice, (2) Evaluate the accuracy of the burden (in hours) associated with the Two Constitution Square, 145 N Street agencies/components estimate of the collection: The total annual public NE., Room 3W–1407B, NW., burden of the proposed collection of burden hours for this information Washington, DC 20530. information, including the validity of collection are estimated to be 1,736 Dated: November 20, 2012. the methodology and assumptions used; hours. Jerri Murray, (3) Enhance the quality, utility, and If additional information is required clarity of the information to be contact: Jerri Murray, Department Department Clearance Officer for PRA, United States Department of Justice. collected; and Clearance Officer, United States (4) Minimize the burden of the Department of Justice, Justice [FR Doc. 2012–28579 Filed 11–23–12; 8:45 am] collection of information on those who Management Division, Policy and BILLING CODE 4410–02–P are to respond, including the use of Planning Staff, Two Constitution appropriate automated, electronic, Square, 145 N Street NE., Room 3W– DEPARTMENT OF JUSTICE mechanical, or other technological 1407B, Washington, DC 20530. collection techniques or other forms of Dated: November 20, 2012. [OMB Number 1121–0277] information technology, e.g., permitting Jerri Murray, electronic submission of responses. Agency Information Collection Department Clearance Officer for PRA, Activities: Proposed Collection; Overview of This Information United States Department of Justice. Comments Requested; Revision of Collection [FR Doc. 2012–28581 Filed 11–23–12; 8:45 am] Currently Approved Collection; Office (1) Type of Information Collection: BILLING CODE 4410–18–P for Victims of Crime Training and Revision of Existing Collection. Technical Assistance Center (OVC (2) The Title of the Form/Collection: TTAC) Feedback Form Package OVC TTAC Feedback Form Package. DEPARTMENT OF JUSTICE (3) The Agency form number, if any, Bureau of Alcohol, Tobacco, Firearms ACTION: 30-day notice. and the applicable component of the and Explosives The Department of Justice, Office of Department of Justice sponsoring the Justice Programs, Office for Victims of collection: Form Number(s): NA. Office [OMB Number 1140–0001] for Victims of Crime, Office of Justice Crime, will be submitting the following Agency Information Collection information collection request to the Programs, Department of Justice. Activities: Proposed Collection; Office of Management and Budget (4) Affected public who will be asked Comments Requested; ATF (OMB) for review and approval in or required to respond, as well as a brief Distribution Center Contractor Survey accordance with the Paperwork abstract. Primary: State, Local or Tribal agencies/organizations. Other: Federal Reduction Act of 1995. The proposed ACTION: 30-day notice. information collection is published to Government; individuals or households; obtain comments from the public and not-for-profit institutions; businesses or The Department of Justice (DOJ), affected agencies. This proposed other for-profit. Abstract: The Office for Bureau of Alcohol, Tobacco, Firearms information collection was previously Victims of Crime Training and and Explosives (ATF) will be submitting published in the Federal Register Technical Assistance Center (OVC the following information collection Volume 77, Number 176, page 55862, on TTAC) Feedback Form Package is request to the Office of Management and September 11, 2012, allowing for a 60 designed to collect the data necessary to Budget (OMB) for review and approval day comment period. continuously assess the satisfaction and in accordance with the Paperwork The purpose of this notice is to allow outcomes of assistance provided Reduction Act of 1995. The proposed for an additional 30 days for public through OVC TTAC for both monitoring information collection is published to comment until December 26, 2012. This and accountability purposes to obtain comments from the public and process is conducted in accordance with continuously meet the needs of the affected agencies. This proposed 5 CFR 1320.10. victim services field. OVC TTAC will information collection was previously If you have comments, especially on give these forms to recipients of training published in the Federal Register the estimated public burden or and technical assistance, scholarship Volume 77, Number 181, page 57590 on associated response time, suggestions, applicants, users of the Web site and September 18, 2012, allowing for a 60- or need a copy of the proposed call center, consultants/instructors day comment period. information collection instrument with providing training, agencies requesting The purpose of this notice is to allow instructions or additional information, services, and other professionals for an additional 30 days for public please contact Shelby Crawford, Victim receiving assistance from OVC TTAC. comment until December 26, 2012. This Justice Program Specialist, Office for The purpose of this data collection will process is conducted in accordance with Victims of Crime, Office of Justice be to capture important feedback on the 5 CFR 1320.10. Programs, Department of Justice, 810 respondent’s satisfaction and outcomes Written comments concerning this 7th Street NW., Washington, DC 20530. of the resources provided. The data will information collection should be sent to

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the Office of Information and Regulatory (6) An estimate of the total burden (in concerning the proposed collection of Affairs, Office of Management and hours) associated with the collection: information are encouraged. Your Budget, Attn: DOJ Desk Officer. The best There are an estimated 4 annual total comments should address one or more way to ensure your comments are burden hours associated with this of the following four points: received is to email them to collection. —Evaluate whether the proposed [email protected] or fax If additional information is required collection of information is necessary them to 202–395–7285. All comments contact: Jerri Murray, Department for the proper performance of the should reference the eight digit OMB Clearance Officer, Policy and Planning functions of the agency, including number or the title of the collection. Staff, Justice Management Division, whether the information will have Written comments and suggestions Department of Justice, Two Constitution practical utility; from the public and affected agencies Square, 145 N Street NE., Room 3W– —Evaluate the accuracy of the agency’s concerning the proposed collection of 1407B, Washington, DC 20530. estimate of the burden of the information are encouraged. Your Dated: November 20, 2012. proposed collection of information, comments should address one or more Jerri Murray, including the validity of the of the following four points: Department Clearance Officer for PRA, U.S. methodology and assumptions used; (1) Evaluate whether the proposed Department of Justice. —Enhance the quality, utility, and collection of information is necessary [FR Doc. 2012–28602 Filed 11–23–12; 8:45 am] clarity of the information to be for the proper performance of the BILLING CODE 4410–FY–P collected; and functions of the agency, including —Minimize the burden of the collection whether the information will have of information on those who are to practical utility; DEPARTMENT OF JUSTICE respond, including through the use of (2) Evaluate the accuracy of the appropriate automated, electronic, agency’s estimate of the burden of the Bureau of Alcohol, Tobacco, Firearms mechanical, or other technological proposed collection of information, and Explosives collection techniques or other forms including the validity of the [OMB Number 1140–0010] of information technology, e.g., methodology and assumptions used; permitting electronic submission of (3) Enhance the quality, utility, and Agency Information Collection responses. clarity of the information to be Activities: Proposed Collection; Summary of Information Collection collected; and Comments Requested; Application To (1) Type of Information Collection: (4) Minimize the burden of the Transport Interstate or Temporarily Extension of a currently approved collection of information on those who Export Certain National Firearms Act collection. are to respond, including through the (NFA) Firearms (2) Title of the Form/Collection: use of appropriate automated, Application to Transport Interstate or electronic, mechanical, or other ACTION: 30-Day Notice. Temporarily Export Certain National technological collection techniques or The Department of Justice (DOJ), Firearms Act (NFA) Firearms. other forms of information technology, Bureau of Alcohol, Tobacco, Firearms, (3) Agency form number, if any, and e.g., permitting electronic submission of and Explosives (ATF) will be submitting the applicable component of the responses. the following information collection Department of Justice sponsoring the Summary of Information Collection request to the Office of Management and collection: Form Number: ATF F Budget (OMB) for review and approval 5320.20. Bureau of Alcohol, Tobacco, (1) Type of Information Collection: in accordance with the Paperwork Firearms and Explosives. Extension of a currently approved Reduction Act of 1995. The proposed (4) Affected public who will be asked collection. information collection is published to or required to respond, as well as a brief (2) Title of the Form/Collection: ATF obtain comments from the public and abstract: Primary: Individuals or Distribution Center Survey. affected agencies. This proposed households. Other: None. (2) Agency form number, if any, and information collection was previously the applicable component of the published in the Federal Register Need for Collection Department of Justice sponsoring the Volume 77, Number 185, page 58869 on The information is used by ATF to collection: Form Number: ATF F 1370.4. September 24, 2012, allowing for a 60- determine the lawful transportation of Bureau of Alcohol, Tobacco, Firearms day comment period. an NFA firearm and/or to pursue the and Explosives. The purpose of this notice is to allow criminal investigation into an (4) Affected public who will be asked for an additional 30 days for public unregistered NFA firearm. or required to respond, as well as a brief comment until December 26, 2012. This (5) An estimate of the total number of abstract: Primary: Business or other for- process is conducted in accordance with respondents and the amount of time profit. Other: Individuals or households. 5 CFR 1320.10. Written comments estimated for an average respondent to concerning this information collection Need for Collection respond: There will be an estimated should be sent to the Office of 4400 respondents will complete a 20 The information provided on the form Information and Regulatory Affairs, minute form. is used to evaluate the ATF Distribution Office of Management and Budget, Attn: (6) An estimate of the total burden (in Center and the services it provides to DOJ Desk Officer. The best way to hours) associated with the collection: the users of ATF forms and ensure your comments are received is to There is an estimated 1467 annual total publications. email them to burden hours associated with this (5) An estimate of the total number of [email protected] or fax collection. respondents and the amount of time them to 202–395–7285. All comments If additional information is required estimated for an average respondent to should reference the eight digit OMB contact: Jerri Murray, Department respond: It is estimated that 240 number or the title of the collection. Clearance Officer, Policy and Planning respondents will complete a 1 minute Written comments and suggestions Staff, Justice Management Division, form. from the public and affected agencies Department of Justice, Two Constitution

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Square, 145 N Street NE., Room 3W– —Evaluate the accuracy of the agency’s DEPARTMENT OF JUSTICE 1407B, Washington, DC 20530. estimate of the burden of the Dated: November 20, 2012. proposed collection of information, Bureau of Alcohol, Tobacco, Firearms, and Explosives Jerri Murray, including the validity of the methodology and assumptions used; Department Clearance Officer for PR, U.S. [OMB Number 1140–0072] Department of Justice. —Enhance the quality, utility, and [FR Doc. 2012–28604 Filed 11–23–12; 8:45 am] clarity of the information to be Agency Information Collection BILLING CODE 4410–FY–P collected; and Activities: Proposed Collection; —Minimize the burden of the collection Comments Requested; Employee of information on those who are to Possessor Questionnaire DEPARTMENT OF JUSTICE respond, including through the use of ACTION: 30-Day notice. appropriate automated, electronic, Bureau of Alcohol, Tobacco, Firearms mechanical, or other technological The Department of Justice (DOJ), and Explosives collection techniques or other forms Bureau of Alcohol, Tobacco, Firearms, [OMB Number 1140–0066] of information technology, e.g., and Explosives (ATF) will be submitting permitting electronic submission of the following information collection Agency Information Collection responses. request to the Office of Management and Activities: Proposed Collection; Summary of Information Collection Budget (OMB) for review and approval Comments Requested; Manufacturers in accordance with the Paperwork of Ammunition, Records and (1) Type of Information Collection: Reduction Act of 1995. The proposed Supporting Data of Ammunition Extension of a currently approved information collection is published to Manufactured and Disposed of collection. obtain comments from the public and affected agencies. This proposed ACTION: 30-day notice. (2) Title of the Form/Collection: Manufacturers of Ammunition, Records information collection was previously The Department of Justice (DOJ), and Supporting Data of Ammunition published in the Federal Register Bureau of Alcohol, Tobacco, Firearms Manufactured and Disposed of. Volume 77, Number 181, page 57592 on and Explosives (ATF) will be submitting (3) Agency form number, if any, and September 18, 2012, allowing for a 60 the following information collection the applicable component of the day comment period. request to the Office of Management and Department of Justice sponsoring the The purpose of this notice is to allow Budget (OMB) for review and approval collection: Form Number: None. Bureau for an additional 30 days for public in accordance with the Paperwork of Alcohol, Tobacco, Firearms and comment until December 26, 2012. This Reduction Act of 1995. The proposed Explosives. process is conducted in accordance with information collection is published to 5 CFR 1320.10. (4) Affected public who will be asked obtain comments from the public and Written comments concerning this or required to respond, as well as a brief affected agencies. This proposed information collection should be sent to abstract: Primary: Business or other for- information collection was previously the Office of Information and Regulatory profit. Other: None. published in the Federal Register Affairs, Office of Management and Volume 77, Number 181, page 57592 on Need for Collection Budget, Attn: DOJ Desk Officer. The best September 18, 2012, allowing for a 60 way to ensure your comments are These records are used by ATF in day comment period. received is to email them to The purpose of this notice is to allow criminal investigations and compliance [email protected] or fax for an additional 30 days for public inspections in fulfilling the Bureau’s them to 202–395–7285. All comments comment until December 26, 2012. This mission to enforce the Gun Control Law. should reference the eight digit OMB process is conducted in accordance with (5) An estimate of the total number of number or the title of the collection. 5 CFR 1320.10. respondents and the amount of time Written comments and suggestions Written comments concerning this estimated for an average respondent to from the public and affected agencies information collection should be sent to respond: It is estimated that 260 concerning the proposed collection of the Office of Information and Regulatory respondents will take 30 minutes to information are encouraged. Your Affairs, Office of Management and respond. comments should address one or more Budget, Attn: DOJ Desk Officer. The best (6) An estimate of the total burden (in of the following four points: way to ensure your comments are hours) associated with the collection: (1) Evaluate whether the proposed received is to email them to There are an estimated 130 annual total collection of information is necessary [email protected] or fax burden hours associated with this for the proper performance of the them to 202–395–7285. All comments collection. functions of the agency, including should reference the eight digit OMB If additional information is required whether the information will have number or the title of the collection. contact: Jerri Murray, Department practical utility; Written comments and suggestions Clearance Officer, Policy and Planning (2) Evaluate the accuracy of the from the public and affected agencies Staff, Justice Management Division, agency’s estimate of the burden of the concerning the proposed collection of Department of Justice, Two Constitution proposed collection of information, information are encouraged. Your Square, 145 N Street NE., Room 3W– including the validity of the comments should address one or more 1407B, Washington, DC 20530. methodology and assumptions used; of the following four points: (3) Enhance the quality, utility, and —Evaluate whether the proposed Dated: November 20, 2012. clarity of the information to be collection of information is necessary Jerri Murray, collected; and for the proper performance of the Department Clearance Officer for PRA, U.S. (4) Minimize the burden of the functions of the agency, including Department of Justice. collection of information on those who whether the information will have [FR Doc. 2012–28605 Filed 11–23–12; 8:45 am] are to respond, including through the practical utility; BILLING CODE 4410–FY–P use of appropriate automated,

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electronic, mechanical, or other DEPARTMENT OF JUSTICE respond, including through the use of technological collection techniques or appropriate automated, electronic, other forms of information technology, Bureau of Alcohol, Tobacco, Firearms mechanical, or other technological e.g., permitting electronic submission of and Explosives collection techniques or other forms responses. [OMB Number 1140–0008] of information technology, e.g., permitting electronic submission of Summary of Information Collection Agency Information Collection responses. Activities: Proposed Collection; (1) Type of Information Collection: Summary of Information Collection Extension of a currently approved Comments Requested; Application and collection. Permit for Permanent Exportation of (1) Type of Information Collection: Firearms (2) Title of the Form/Collection: Extension of a currently approved Employee Possessor Questionnaire. ACTION: 30-day notice of information collection. (3) Agency form number, if any, and collection under review. (2) Title of the Form/Collection: Application and Permit for Permanent the applicable component of the The Department of Justice (DOJ), Exportation of Firearms. Department of Justice sponsoring the Bureau of Alcohol, Tobacco, Firearms collection: Form Number: ATF F and Explosives (ATF) will be submitting (3) Agency form number, if any, and 5400.28. Bureau of Alcohol, Tobacco, the following information collection the applicable component of the Firearms and Explosives. request to the Office of Management and Department of Justice sponsoring the (4) Affected public who will be asked Budget (OMB) for review and approval collection: Form Number: ATF F or required to respond, as well as a brief in accordance with the Paperwork 9(5320.9). Bureau of Alcohol, Tobacco, abstract: Primary: Individuals or Reduction Act of 1995. The proposed Firearms and Explosives. households. Other: Business or other information collection is published to (4) Affected public who will be asked for-profit. obtain comments from the public and or required to respond, as well as a brief affected agencies. This proposed abstract: Primary: Business or other for- Need for Collection information collection was previously profit. Other: Individuals or households. published in the Federal Register Each employee possessor in the Volume 77, Number 181, page 57591 on Need for Collection explosives business or operations September 18, 2012, allowing for a 60 required to ship, transport, receive, or day comment period. The form is used to obtain permission possess (actual or constructive), The purpose of this notice is to allow to export firearms and serves as a explosive materials must submit this for an additional 30 days for public vehicle to allow either the removal of form. The form will be submitted to comment until December 26, 2012. This the firearms from registration in the ATF to determine whether the person process is conducted in accordance with National Firearms Registration and who provided the information is 5 CFR 1320.10. Transfer Record or collection of an qualified to be an employee possessor in Written comments concerning this excise tax. It is used by Federal firearms an explosive business or operation. information collection should be sent to licensees and others to obtain a benefit. (5) An estimate of the total number of the Office of Information and Regulatory (5) An estimate of the total number of Affairs, Office of Management and respondents and the amount of time respondents and the amount of time Budget, Attn: DOJ Desk Officer. The best estimated for an average respondent to estimated for an average respondent to way to ensure your comments are respond: It is estimated that 10,000 received is to email them to respond: It is estimated that 930 respondents will complete the form [email protected] or fax respondents will complete an 18 minute within 20 minutes. them to 202–395–7285. All comments form. (6) An estimate of the total burden (in should reference the eight digit OMB (6) An estimate of the total burden (in hours) associated with the collection: number or the title of the collection. hours) associated with the collection: There are an estimated 3,334 annual Written comments and suggestions There are an estimated 279 annual total total burden hours associated with this from the public and affected agencies burden hours associated with this collection. concerning the proposed collection of collection. information are encouraged. Your If additional information is required If additional information is required comments should address one or more contact: Jerri Murray, Department contact: Jerri Murray, Department of the following four points: Clearance Officer, Policy and Planning —Evaluate whether the proposed Clearance Officer, Policy and Planning Staff, Justice Management Division, collection of information is necessary Staff, Justice Management Division, Department of Justice, Two Constitution for the proper performance of the Department of Justice, Two Constitution Square, 145 N Street NE., Room 3W– functions of the agency, including Square, 145 N Street NE., Room 3W– 1407B, Washington, DC 20530. whether the information will have 1407B, Washington, DC 20530. Dated: November 20, 2012. practical utility; Dated: November 20, 2012. Jerri Murray, —Evaluate the accuracy of the agency’s Jerri Murray, estimate of the burden of the Department Clearance Officer for PRA, U.S. proposed collection of information, Department Clearance Officer for PRA, U.S. Department of Justice. Department of Justice. including the validity of the [FR Doc. 2012–28606 Filed 11–23–12; 8:45 am] methodology and assumptions used; [FR Doc. 2012–28603 Filed 11–23–12; 8:45 am] BILLING CODE 4410–FY–P —Enhance the quality, utility, and BILLING CODE 4410–FY–P clarity of the information to be collected; and —Minimize the burden of the collection of information on those who are to

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DEPARTMENT OF JUSTICE mechanical, or other technological DEPARTMENT OF JUSTICE collection techniques or other forms Bureau of Alcohol, Tobacco, Firearms of information technology, e.g., Drug Enforcement Administration and Explosives permitting electronic submission of [OMB Number 1117–0031] [OMB Number 1140–0073] responses. Agency Information Collection Agency Information Collection Summary of Information Collection Activities: Proposed Collection; Activities: Proposed Collection; (1) Type of Information Collection: Comments Requested: Application for Comments Requested; Furnishing of Extension of a currently approved Registration Under Domestic Chemical Diversion Control Act of 1993 and Samples collection. Renewal Application for Registration ACTION: 30-day notice. (2) Title of the Form/Collection: Under Domestic Chemical Diversion Furnishing of Samples. Control Act of 1993 DEA Forms 510 & The Department of Justice (DOJ), 510A Bureau of Alcohol, Tobacco, Firearms (3) Agency form number, if any, and the applicable component of the and Explosives (ATF) will be submitting ACTION: 60-Day notice. the following information collection Department of Justice sponsoring the request to the Office of Management and collection: Form Number: None. Bureau The Department of Justice (DOJ), Drug Budget (OMB) for review and approval of Alcohol, Tobacco, Firearms and Enforcement Administration (DEA), will in accordance with the Paperwork Explosives. be submitting the following information Reduction Act of 1995. The proposed (4) Affected public who will be asked collection request to the Office of information collection is published to or required to respond, as well as a brief Management and Budget (OMB) for obtain comments from the public and abstract: Primary: Business or other for- review and approval in accordance with affected agencies. This proposed profit. Other: None. the Paperwork Reduction Act of 1995. information collection was previously The proposed information collection is published in the Federal Register Need for Collection published to obtain comments from the Volume 77, Number 181, page 57593 on public and affected agencies. Comments September 18, 2012, allowing for a 60- Licensed manufacturers and licensed are encouraged and will be accepted day comment period. importers and persons who manufacture until January 25, 2013. This process is The purpose of this notice is to allow or import explosive materials or conducted in accordance with 5 CFR for an additional 30 days for public ammonium nitrate must, when required 1320.10. comment until December 26, 2012. This by the Director, furnish samples of such If you have comments, especially on process is conducted in accordance with explosive materials or ammonium the estimated public burden or 5 CFR 1320.10. nitrate; information on chemical associated response time, suggestions, Written comments concerning this composition of those products; and any or need a copy of the proposed information collection should be sent to other information that the Director information collection instrument with the Office of Information and Regulatory determines is relevant to the instructions or additional information, Affairs, Office of Management and identification of the ammonium nitrate. please contact Cathy A. Gallagher, Chief, Liaison and Policy Section, Office Budget, Attn: DOJ Desk Officer. The best (5) An estimate of the total number of way to ensure your comments are of Diversion Control, Drug Enforcement respondents and the amount of time received is to email them to Administration, 8701 Morrissette Drive, estimated for an average respondent to [email protected] or fax Springfield, VA 22152. them to 202–395–7285. All comments respond: It is estimated that 100 Written comments and suggestions should reference the eight digit OMB respondents will take 30 minutes to from the public and affected agencies number or the title of the collection. submit the samples. concerning the proposed collection of Written comments and suggestions (6) An estimate of the total burden (in information are encouraged. Your from the public and affected agencies hours) associated with the collection: comments should address one or more concerning the proposed collection of There are an estimated 50 annual total of the following four points: information are encouraged. Your burden hours associated with this —Evaluate whether the proposed comments should address one or more collection. collection of information is necessary of the following four points: for the proper performance of the If additional information is required —Evaluate whether the proposed functions of the agency, including contact: Jerri Murray, Department collection of information is necessary whether the information will have Clearance Officer, Policy and Planning for the proper performance of the practical utility; functions of the agency, including Staff, Justice Management Division, —Evaluate the accuracy of the agencies whether the information will have Department of Justice, Two Constitution estimate of the burden of the practical utility; Square, 145 N Street NE., Room 3W– proposed collection of information, —Evaluate the accuracy of the agency’s 1407B, Washington, DC 20530. including the validity of the estimate of the burden of the Dated: November 20, 2012. methodology and assumptions used; proposed collection of information, Jerri Murray, —Enhance the quality, utility, and including the validity of the clarity of the information to be methodology and assumptions used; Department Clearance Officer for PRA, U.S. collected; and —Enhance the quality, utility, and Department of Justice. —Minimize the burden of the collection clarity of the information to be [FR Doc. 2012–28607 Filed 11–23–12; 8:45 am] of information on those who are to collected; and BILLING CODE 4410–FY–P respond, including through the use of —Minimize the burden of the collection appropriate automated, electronic, of information on those who are to mechanical, or other technological respond, including through the use of collection techniques or other forms appropriate automated, electronic, of information technology, e.g.,

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permitting electronic submission of Chemical Diversion Control Act of 1993 Other: none. responses. DEA Forms 510 & 510A. Abstract: The Domestic Chemical (3) Agency form number, if any, and Diversion Control Act requires that Overview of This Information the applicable component of the Collection manufacturers, distributors, importers, Department sponsoring the collection: and exporters of List I chemicals which Form number: DEA Forms 510 and may be diverted in the United States for (1) Type of Information Collection: 510a. the production of illicit drugs must Extension of a Currently Approved Component: Office of Diversion Collection. Control, Drug Enforcement register with DEA. Registration provides a system to aid in the tracking of the (2) Title of the Form/Collection: Administration, U.S. Department of distribution of List I chemicals. Application for Registration under Justice. Domestic Chemical Diversion Control (4) Affected public who will be asked (5) An estimate of the total number of Act of 1993 and Renewal Application or required to respond, as well as a brief respondents and the amount of time for Registration under Domestic abstract: estimated for an average respondent to Primary: Business or other for-profit. respond:

Burden Total hour Respondents (minutes) burden @ $52.80/hour =

DEA–510 (paper) ...... 17 0.5 hours ... 8 .5 $448.80 DEA–510 (electronic) ...... 143 0.25 hours 35 .75 1,887.60 DEA–510a (paper) ...... 158 0.5 hours ... 79 4,171.20 DEA–510a (electronic) ...... 896 0.25 hours 224 11,827.20

Total ...... 1054 ...... 347 .25 18,334.80

Total percentage electronic: 85.7% for are encouraged and will be accepted permitting electronic submission of renewal and 95% for new. until January 25, 2013. This process is responses. (6) An estimate of the total public conducted in accordance with 5 CFR Overview of This Information burden (in hours) associated with the 1320.10. Collection collection: 347.25 annual burden hours. If you have comments, especially on If additional information is required the estimated public burden or (1) Type of Information Collection: contact: Jerri Murray, Department associated response time, suggestions, Extension of a currently approved Clearance Officer, Policy and Planning or need a copy of the proposed collection. Staff, Justice Management Division, information collection instrument with (2) Title of the Form/Collection: Department of Justice, Two Constitution instructions or additional information, Annual Reporting Requirement for Square, 145 N Street NE., Room 3W– please contact Cathy A. Gallagher, Manufacturers of Listed Chemicals. 1407B, Washington, DC 20530. Chief, Liaison and Policy Section, Drug (3) Agency form number, if any and Dated: November 20, 2012. Enforcement Administration, Office of the applicable component of the Department sponsoring the collection: Jerri Murray, Diversion Control, 8701 Morrissette Form number: none. Office of Diversion Department Clearance Officer for PRA, U.S. Drive, Springfield, VA. 22152. Department of Justice. Written comments and suggestions Control, Drug Enforcement from the public and affected agencies Administration, U.S. Department of [FR Doc. 2012–28578 Filed 11–23–12; 8:45 am] Justice. BILLING CODE 4410–09–P concerning the proposed collection of information are encouraged. Your (4) Affected public who will be asked comments should address one or more or required to respond, as well as a brief DEPARTMENT OF JUSTICE of the following four points: abstract: Primary: Business or other for-profit. —Evaluate whether the proposed Drug Enforcement Administration Other: None. collection of information is necessary Abstract: This information collection [OMB Number 1117–0029] for the proper performance of the permits the Drug Enforcement functions of the agency, including Administration to monitor the volume Agency Information Collection whether the information will have and availability of domestically Activities: Proposed Collection; practical utility; manufactured listed chemicals. These Comments Requested: Annual —Evaluate the accuracy of the agencies listed chemicals may be subject to Reporting Requirement for estimate of the burden of the diversion for the illicit production of Manufacturers of Listed Chemicals proposed collection of information, controlled substances. This information including the validity of the ACTION: 60-Day notice. collection is required by law. methodology and assumptions used; (5) An estimate of the total number of The Department of Justice (DOJ), Drug —Enhance the quality, utility, and respondents and the amount of time Enforcement Administration (DEA), will clarity of the information to be estimated for an average respondent to be submitting the following information collected; and respond: It is estimated that there are collection request to the Office of —Minimize the burden of the collection one hundred (100) total respondents for Management and Budget (OMB) for of information on those who are to this information collection. One review and approval in accordance with respond, including through the use of hundred (100) persons respond the Paperwork Reduction Act of 1995. appropriate automated, electronic, annually at 1 hour per response. The proposed information collection is mechanical, or other technological (6) An estimate of the total public published to obtain comments from the collection techniques or other forms burden (in hours) associated with the public and affected agencies. Comments of information technology, e.g., collection: It is estimated that there are

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100 annual burden hours associated functions of the agency, including DEPARTMENT OF LABOR with this collection. whether the information will have If additional information is required practical utility; Child Labor, Forced Labor, and Forced contact: Jerri Murray, Department —Evaluate the accuracy of the agencies or Indentured Child Labor in the Clearance Officer, United States estimate of the burden of the Production of Goods in Foreign Countries and Efforts by Certain Department of Justice, Justice proposed collection of information, Countries To Eliminate the Worst Management Division, Policy and including the validity of the Forms of Child Labor Planning Staff, Two Constitution methodology and assumptions used; Square, 145 N Street NE., Room 3W– AGENCY: The Bureau of International 1407B, Washington, DC 20530. —Enhance the quality, utility, and clarity of the information to be Labor Affairs, United States Department Dated: November 20, 2012. collected; and of Labor. Jerri Murray, —Minimize the burden of the collection ACTION: Notice: Request for information Department Clearance Officer for PRA, U.S. of information on those who are to and invitation to comment. Department of Justice. respond, including through the use of SUMMARY [FR Doc. 2012–28577 Filed 11–23–12; 8:45 am] : This notice is a request for appropriate automated, electronic, information and/or comment on reports BILLING CODE 4410–09–P mechanical, or other technological issued by the Bureau of International collection techniques or other forms Labor Affairs (ILAB) September 26, of information technology, e.g., DEPARTMENT OF JUSTICE 2012, regarding child labor and forced permitting electronic submission of labor in foreign countries. Relevant [OMB Number 1121–0218] responses. information will be used by the Department of Labor (DOL) in Office of Juvenile Justice and Overview of This Information preparation of its ongoing reporting Delinquency Prevention; Agency Collection Back to Top under Congressional mandates and Information Collection Activities: (1) Type of information collection: Presidential directive. In addition, ILAB Proposed Collection; Comments Revision of a Currently Approved will use relevant information to conduct Requested; Census of Juveniles in Collection. assessments of each country’s Residential Placement (Revision of a individual advancement toward Currently Approved Collection) (2) The title of the form/collection: Census of Juveniles in Residential eliminating the worst forms of child ACTION: 60-Day Notice. Placement. labor during the current reporting (3) The agency form number, if any, period compared to previous years. The Department of Justice (DOJ), and the applicable component of the DATES: Submitters of information are Office of Justice Programs, Office of Department sponsoring the collection: requested to provide their submission to Juvenile Justice and Delinquency The form number is CJ–14, Office of the Office of Child Labor, Forced Labor Prevention, will be submitting the Juvenile Justice and Delinquency and Human Trafficking (OCFT) at the following information collection request Prevention, United States Department of email or physical address below by 5 to the Office of Management and Budget Justice. p.m. January 15, 2013. (OMB) for review and approval in To Submit Information: Information accordance with the Paperwork (4) Affected public who will be asked submitted to DOL should be submitted Reduction Act of 1995. The proposed or required to respond, as well as a brief directly to OCFT, Bureau of information collection is published to abstract: Primary: Federal Government, International Labor Affairs, U.S. obtain comments from the public and State, Local or Tribal. Other: Not-for- Department of Labor at (202) 693–4843 affected agencies. Comments are profit institutions; Business or other for- (this is not a toll free number). encouraged and will be accepted for profit. Comments, identified as ‘‘Docket No. ‘‘sixty days’’ until January 25, 2013. (5) An estimate of the total number of DOL–2012–0006,’’ may be submitted by This process is conducted in accordance respondents and the amount of time any of the following methods: with 5 CFR 1320.10. estimated for an average respondent to Federal eRulemaking Portal: http:// If you have comments especially on respond/reply: It is estimated that 2,550 www.regulations.gov. the estimated public burden or respondents will complete a 3.5-hour The portal includes instructions for associated response time, suggestions, questionnaire. submitting comments. Parties or need a copy of the proposed (6) An estimate of the total public submitting responses electronically are information collection instrument with burden (in hours) associated with the encouraged not to submit paper copies. instructions or additional information, collection: Approximately 9,225 hours. Facsimile (fax): OCFT at 202–693– please contact Brecht Donoghue, (202) 4830. If additional information is required, 305–1270, Office of Juvenile Justice and Mail, Express Delivery, Hand Delivery, contact: Jerri Murray, Department Delinquency Prevention, Office of and Messenger Service (1 copy): Karrie Clearance Officer, United States Justice Programs, U.S. Department of Peterson at U.S. Department of Labor, Department of Justice, Justice Justice, 810 Seventh Street NW., OCFT, Bureau of International Labor Management Division, Policy and Washington, DC 20531. Affairs, 200 Constitution Avenue NW., Written comments and suggestions Planning Staff, Two Constitution Room S–5317, Washington, DC 20210. from the public and affected agencies Square, 145 N Street NE., Room 3W– Email: Email submissions should be concerning the proposed collection of 1407B, Washington, DC 20530. addressed to Karrie Peterson at information are encouraged. Your Dated: November 20, 2012. [email protected]. comments should address one or more Jerri Murray, FOR FURTHER INFORMATION CONTACT: of the following four points: Department Clearance Officer for PRA, U.S. Karrie Peterson (see contact information —Evaluate whether the proposed Department of Justice. above). collection of information is necessary [FR Doc. 2012–28580 Filed 11–23–12; 8:45 am] SUPPLEMENTARY INFORMATION: I. Section for the proper performance of the BILLING CODE 4410–18–P 105(b)(1) of the Trafficking Victims

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Protection Reauthorization Act of 2005 appropriate, revising the EO List (66 FR Information Requested and Invitation (‘‘TVPRA of 2005’’), Public Law 109– 5351). to Comment: Interested parties are 164 (2006), directed the Secretary of Pursuant to Sections D through G of invited to comment and provide Labor, acting through ILAB, to ‘‘develop the Procedural Guidelines, the EO List information regarding DOL’s 2011 TDA and make available to the public a list may be updated through consideration Report; the 2012 TVPRA List; and the of goods from countries that the Bureau of submissions by individuals or current E.O. 13126 List, all of which of International Labor Affairs has reason through OCFT’s own initiative. may be found on the Internet at to believe are produced by forced labor DOL has officially revised the EO List http://www.dol.gov/ilab/programs/ocft/ or child labor in violation of three times, on July 20, 2010, May 31, research.htm or obtained from OCFT. international standards’’ (TVPRA List). 2011, and April 3, 2012, each time after DOL requests comments or information Pursuant to this mandate, in public notice and comment as well as to update the findings and suggestions December 2007 DOL published in the consultation with DOS and DHS. In for government action for countries Federal Register a set of procedural addition, DOL published an initial reviewed in the TDA Report, as well as guidelines that ILAB follows in determination on September 27, 2012 to assess each country’s individual developing the TVPRA List (72 FR proposing another revision to the EO advancement toward eliminating the 73374). The guidelines set forth the List and requesting public comment (76 worst forms of child labor during the criteria by which information is FR 61384). current reporting period compared to evaluated; established procedures for The current EO List, Procedural public submission of information to be Guidelines, and related information can previous years. For more information on considered by ILAB; and identified the be accessed on the Internet at http:// the types of issues covered in the TDA process ILAB follows in maintaining www.dol.gov/ILAB/regs/eo13126/ Report, please see Appendix II of the and updating the List after its initial main.htm. report. In addition, DOL especially publication. III. The Trade and Development Act appreciates information on the nature ILAB published its first TVPRA List of 2000 (TDA), Public Law 106–200 and extent of child labor, forced labor, on September 30, 2009, and has issued (2002), established a new eligibility and forced or indentured child labor in updates in 2010, 2011, and 2012. This criterion for receipt of trade benefits the production of goods in foreign List is updated periodically as under the Generalized System of countries as well as information on additional countries and territories are Preferences (GSP), Caribbean Basin government, industry, or third-party researched and new information for Trade and Partnership Act (CBTPA), actions to address these issues for countries and territories already and Africa Growth and Opportunity Act countries reviewed for the E.O. and reviewed is evaluated. For a copy of the (AGOA). The TDA amends the GSP TVPRA lists. Materials submitted 2012 TVPRA report, Frequently Asked reporting requirements of Section 504 of should be confined to the specific topics Questions, and other materials relating the Trade Act of 1974, 19 U.S.C. 2464, of these reports. DOL will generally to the TVPRA List, see ILAB’s TVPRA to require that the President’s annual consider sources with dates up to five Web page at: http://www.dol.gov/ILAB/ report on the status of internationally years old (i.e., data not older than programs/ocft/tvpra.htm. recognized worker rights include January 1, 2007). DOL appreciates the II. Executive Order No. 13126 (E.O. ‘‘findings by the Secretary of Labor with extent to which submissions clearly 13126) declared that it was ‘‘the policy respect to the beneficiary country’s indicate the time period to which they of the United States Government * * * implementation of its international apply. In the interest of transparency, that the executive agencies shall take commitments to eliminate the worst classified information will not be appropriate actions to enforce the laws forms of child labor.’’ Title II of the TDA accepted. Where applicable, information prohibiting the manufacture or and the TDA Conference Report, Joint submitted should indicate its source or importation of goods, wares, articles, Explanatory Statement of the Committee sources, and copies of the source and merchandise mined, produced, or of Conference, 106th Cong.2d.Sess. material should be provided. If primary manufactured wholly or in part by (2000), indicate that the same criterion sources are utilized, such as research forced or indentured child labor.’’ applies for the receipt of benefits under studies, interviews, direct observations, CBTPA and AGOA, respectively. Pursuant to E.O. 13126, and following or other sources of quantitative or In addition, the Andean Trade public notice and comment, the qualitative data, details on the research Department of Labor published in the Preference Act, as amended and or data-gathering methodology should January 18, 2001, Federal Register, a expanded by the Andean Trade be provided. Please see the 2011 TDA final list of products (‘‘E.O. List’’), Promotion and Drug Eradication Act, Report, 2012 TVPRA List, and E.O. List identified by country of origin, that the Public Law 107–210, Title XXXI (2002), Department, in consultation and includes as a criterion for receiving for a complete explanation of relevant cooperation with the Departments of benefits ‘‘[w]hether the country has terms, definitions, and reporting State (DOS) and Treasury [relevant implemented its commitments to guidelines employed by DOL, or refer to responsibilities now within the eliminate the worst forms of child labor ILAB’s previous Request for Information Department of Homeland Security as defined in section 507(6) of the Trade published in the Federal Register on (DHS)], had a reasonable basis to believe Act of 1974.’’ DOL fulfills these February 16, 2012 (77 FR 9267). might have been mined, produced or reporting mandates through annual This notice is a general solicitation of manufactured with forced or indentured publication of the U.S. Department of comments from the public. child labor (66 FR 5353). In addition to Labor’s Findings on the Worst Forms of Signed at Washington, DC, this 15th day of the List, the Department also published Child Labor with respect to countries November 2012. on January 18, 2001, ‘‘Procedural eligible for the aforementioned Guidelines for Maintenance of the List programs. The 2011 report and Carol Pier, of Products Requiring Federal additional background information are Acting Deputy Undersecretary for Contractor Certification as to Forced or available on the Internet at http:// International Affairs. Indentured Child Labor,’’ which provide www.dol.gov/ILAB/programs/ocft/ [FR Doc. 2012–28515 Filed 11–23–12; 8:45 am] for maintaining, reviewing, and, as tda.htm. BILLING CODE 4510–28–P

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DEPARTMENT OF LABOR young people between the ages of 16 III. Current Actions and 24 for success in our nation’s The Request for Proposal (RFP) Employment and Training workforce. With 125 centers in 48 states, provides potential offerors with the Administration Puerto Rico, and the District of Government’s expectations for the Columbia, Job Corps assists students development of proposals to operate Job Comment Request for Information across the nation in attaining academic Collection for Contractor Information Corps centers. The proposals developed credentials, including a High School by offerors in response to the RFP are Gathering, Extension Without Diploma (HSD) and/or General Revisions evaluated in terms of technical factors Educational Development (GED), and and costs. These proposals serve as the AGENCY: Employment and Training career technical training credentials, principal basis for selection of a Administration (ETA), Labor. including industry-recognized successful offeror. The operation of the ACTION: Notice. certifications, state licensures, and pre- Job Corps program is such that many apprenticeship credentials. activities required of contractors must SUMMARY: The Department of Labor Job Corps is a national program be coordinated with other organizations, (Department), as part of its continuing administered by the U.S. Department of both Federal and nonfederal. Most of effort to reduce paperwork and Labor (DOL) through the National Office the information collection requirements respondent burden, conducts a of Job Corps and six Regional Offices. of Job Corps center operators stem preclearance consultation program to DOL awards and administers contracts directly from operational needs or are provide the public and Federal agencies for the recruiting and screening of new necessary to ensure compliance with with an opportunity to comment on students, center operations, and the Federal requirements and the terms of proposed and/or continuing collections placement and transitional support of the contract. of information in accordance with the graduates and former enrollees. Large Statistical reports are typically Paperwork Reduction Act of 1995 [44 and small corporations and nonprofit generated from source documents U.S.C. 3506(c)(2)(A)]. organizations manage and operate 97 directly by the Federal government, not This program helps ensure that the contractors. Data is entered directly requested data can be provided in the Job Corps centers under contractual agreements with DOL. These contract into a database and reports are desired format, reporting burden (time generated from the data. Examples of and financial resources) is minimized, center operators are selected through a competitive procurement process that these data include are ETA Forms 2110 collection instruments are clearly (Center Financial Report), 2181 & 2181A understood, and the impact of collection evaluates potential operators’ technical expertise, proposed costs, past (Center Operations Budget), 6–127 (Job requirements on respondents can be Corps Utilization Summary), 6–131A properly assessed. Currently, ETA is performance, and other factors, in accordance with the Competition in (Disciplinary Discharge), 6–131B soliciting comments concerning the (Review Board Hearings), 6–131C collection of data about Standard Job Contracting Act and the Federal Acquisition Regulations. The remaining (Rights to Appeal), 6–40 (Student Corps Request for Proposal and related Profile), 6–61 (Notice of Termination) contractor information gathering and 28 Job Corps centers, called Civilian Conservation Centers, are operated by and 3–38 (Property Inventory reporting requirements (expiration date Transcription.) November 30, 2012). the U.S. Department of Agriculture Forest Service, via an interagency In addition, several forms are DATES: Written comments must be agreement. provided in Portable Data File (PDF) submitted to the office listed in the format. These forms include the 6–125 addresses section below on or before II. Review Focus (Job Corps Health Staff Activity), 6–128 January 25, 2013. (Job Corps Health Annual Service ADDRESSES: Submit written comments The Department is particularly Costs), 6–112 (Immunization Record), to Lawrence Lyford, Office of Job Corps, interested in comments which: 6–135 (CM Health Record Envelope), 6– Room N–4507, Employment and • Evaluate whether the proposed 136 (CM Health Record Folder), 6–37 Training Administration, U.S. collection of information is necessary (Inspection Residential & Educational Department of Labor, 200 Constitution for the proper performance of the Facilities), 6–38 (Inspection Water Avenue NW., Washington, DC 20210. functions of the agency, including Supply Facilities), and 6–39 (Inspection Telephone number: 202–693–3121 (this whether the information will have of Waste Treatment Facilities Costs). is not a toll-free number). Individuals practical utility; Type of Review: extension without with hearing or speech impairments • evaluate the accuracy of the changes may access the telephone number above agency’s estimate of the burden of the Title: Standard Job Corps Contractor via TTY by calling the toll-free Federal proposed collection of information, Information Gathering Information Relay Service at 877–889– including the validity of the OMB Number: 1205–0219 5627 (TTY/TDD). Fax: 202–693–3113. methodology and assumptions used; Affected Public: Business, for profit Email: [email protected]. and not-for-profit institutions, and • enhance the quality, utility, and SUPPLEMENTARY INFORMATION: Tribal governments. clarity of the information to be Recordkeeping: Center operators are I. Background collected; and required to keep accurate records on Job Corps is the nation’s largest • minimize the burden of the each Job Corps student. All records are residential, educational, and career collection of information on those who required to be maintained on a Job technical training program for young are to respond, including through the Corps center for five years. The annual Americans. Job Corps was established in use of appropriate automated, burden hours estimated for the 1964 by the Economic Opportunity Act electronic, mechanical, or other preparation of the Standard Center Job and currently is authorized by Title I– technological collection techniques or Corps Request for Proposal submitted by C of the Workforce Investment Act of other forms of information technology, new and experienced contractors is 1998. For nearly 50 years, Job Corps has e.g., permitting electronic submissions 16,183 hours. Data collection for the helped prepare nearly 3 million at-risk of responses Center Financial and the Center

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Operations Budget Reports is made with contractual requirements and to more than quarterly, and is essential to ensure operation of the program. ensure contractor financial compliance

Number of Submissions Total annual Hours per Total burden Required activity ETA Form No. respondents per year submissions submission hours

Center Financial Report ...... 2110 125 12 1500 1 1500 Center Operations Budget ...... 2181/2181/A 97 3 291 1 291

Total ...... 1,791

Center staff members enter data transmits the data electronically to a and performance reports are created utilizing a personal computer that centralized database. Many management from this database.

Number of Submissions Total annual Hours per Total burden Required activity ETA Form No. respondents per year submissions submission hours

Job Corps Utilization Summary ...... 6–127 125 12 1500 0.01875 25 (1 minute) Disciplinary Discharge ...... 6–131A 1500 1 1500 0.01875 25 Review Board Hearings ...... 6–131B 1500 1 1500 0.01875 25 Rights to Appeal ...... 6–131C 1500 1 1500 0.01875 25 Student Profile ...... 6–40 1500 1 1500 0.01875 25 Notice of Termination ...... 6–61 1500 1 1500 0.01875 25 Property Inventory Transcription ...... 3–28 126 52 6552 0.0275 328 (3 minutes)

Total ...... 478

Certain student personnel initial data entry is maintained in the Major recordkeeping and operational requirements such as student payroll national database and used for multiple forms listed below that pertain to information, student training and reporting purposes, therefore reducing student and facility administrative education courses received, student the need to enter the data more than matters are provided in PDF forms. The leave, disciplinary actions and medical once. The total burden associated with total burden for processing these forms information are also collected in an the input of data to data screens is is 38,574 hours. electronic information system. The 20,847 hours.

Number of Submissions Total annual Hours per Total burden Required activity ETA Form No. respondents per year submissions submission hours

Job Corps Health Staff Activity ...... 6–125 125 1 125 0.25 31 (25 min) Job Corps Health Annual Service Costs 6–128 125 1 125 0.25 31 Immunization Record ...... 6–112 71000 1 71000 0.05 3,550 (5 min) CM Health Record Envelope ...... 6–135 71000 1 71000 0.125 8,875 (13 min) CM Health Record Folder ...... 6–136 71000 1 71000 0.125 8,875 Inspection of Residential & Educational Facilities ...... 6–37 125 4 500 0.5 250 Inspection of Waste Treatment Facilities Costs ...... 6–39 23 4 92 1.25 130 (1hr. 25 min) Inspection Water Supply Facilities ...... 6–38 125 4 500 1.25 625

Total ...... 22,367

A total of 8,625 burden hours are are required for the operation of a Job estimated for the preparation of the Corps center. Center Operating Plans listed below that

Number of Submissions Total annual Hours per Total burden Required activity ETA Form No. respondents per year submissions submission hours

Center Operation Plan ...... 125 1 125 30 3750 Maintenance ...... 125 1 125 5 625 C/M Welfare ...... 125 1 125 2 250 Annual VST ...... 125 1 125 24 3,000 Annual Staff Training ...... 125 1 125 1 125

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Number of Submissions Total annual Hours per Total burden Required activity ETA Form No. respondents per year submissions submission hours

Energy Conservation ...... 125 1 125 5 625 Outreach ...... 125 1 125 2 250

Total ...... 8,625

Total Estimated Burden: 65,651 hours. DEPARTMENT OF LABOR coated mechanical and supercalendered Total Burden Cost (Capital/Startup): paper for various commercial printing Employment and Training The Office of Job Corps has automated applications. Administration the data collection process for its Based on information provided in a centers. The Center Information System [TA–W–81,210] later-filed petition, the Department allows all centers to directly input data reviewed the certification for Verso. Verso Paper Corporation, Sartell Mill into a national database. The Division, Including On-Site Leased Additional information provided by maintenance cost associated with the Workers From Securitas Security the company official and the State of system is estimated to be $2.7 million Services, Manpower, Inc., Banick Minnesota revealed that the subject per year for hardware and software. Logging, Inc., Beck Lumber Company, worker group includes on-site leased Total Burden Cost (Operating/ Bell Timber, Inc., Benson Timber, Inc., workers from several commercial Maintaining): The costs to contractors Big H Logging, Demenge Trucking & entities as well as two on-site for accomplishing record keeping Forest Products, LLC, Dick Walsh contractors (Bryce Kowalzek and Ted requirements are computed by the Forest Products, Dobbs Logging, Inc., Kromy). The certification is being Federal government annually. While Douglas Hustad Logging, Dukek amended to reflect this new precise costs cannot be identified, at the Logging, Inc.—Dukek Trucking, Inc., information. present time and based on past Edin Logging, Inc., Enberg Logging The intent of the Department’s experience, the annual related costs for Supply, Great Northern Logging, Inc., certification is to include all workers of contractor staff are estimated to be Gregerson Logging, Haverinen Verso who have met the appropriate $992,658, which represents an average Brothers Logging, Hodgden Logging, TAA criteria. Inc., Holden Logging, Hufnagle Forest cost of $15.12 per hour. Based on these findings, the Resources, LLC, Johnson Timber Department is amending this Comments submitted in response to Harvesting, Inc., Kimball Logging, Inc., certification to include on-site leased this comment request will be Koski Wood Services, Larson Lumber workers from Securitas Security summarized and/or included in the Company, Lovdahl & Sons, LLC, Services, Manpower, Inc., Banick request for Office of Management and Lundberg Forest Products, Inc., Logging, Inc., Beck Lumber Company, Budget approval of the information Mccabe Forest Products, Inc., Nelson Bell Timber, Inc., Benson Timber, Inc., collection request; they will also Brothers Logging, LLC, North Shore Big H Logging, Demenge Trucking & become a matter of public record. Forest Products, Inc., Northern Forest Products, LLC, Dick Walsh Forest Logging, Inc., Northland Timber Dated: Signed in Washington, DC, on this Products, Dobbs Logging, Inc., Douglas 3rd day of October, 2012. Company, Olson Forest Products, Pelland Logging, Inc., Richard Dukek Hustad Logging, Dukek Logging, Inc.— Jane Oates, Logging, Inc., Riverdale Environmental Dukek Trucking, Inc., Edin Logging, Assistant Secretary for Employment and Svcs, Inc., Ron Weiss Logging, Inc., Inc., Enberg Logging Supply, Great Training, Labor. Roy Lundmark Company, Sawyer Northern Logging, Inc., Gregerson [FR Doc. 2012–28563 Filed 11–23–12; 8:45 am] Enterprise, LLC, Sawyer Timber Co., Logging, Haverinen Brothers Logging, Hodgden Logging, Inc., Holden Logging, BILLING CODE 4510–FT–P LLP, Shawn Fletcher Trucking, Skoe Lumber Company, Timberline Hufnagle Forest Resources, LLC, Trucking, Inc., Trout Enterprise, Inc., Johnson Timber Harvesting, Inc., and Wood Forest Products, Inc. and Kimball Logging, Inc., Koski Wood Including Bryce Kowalzek and Ted Services, Larson Lumber Company, Kromy, Sartell, Minnesota; Amended Lovdahl & Sons, LLC, Lundberg Forest Certification Regarding Eligibility To Products, Inc., McCabe Forest Products, Apply for Worker Adjustment Inc., Nelson Brothers Logging LLC, Assistance North Shore Forest Products, Inc., Northern Logging, Inc., Northland In accordance with Section 223 of the Timber Company, Olson Forest Trade Act of 1974, as amended (‘‘Act’’), Products, Pelland Logging, Inc., Richard 19 U.S.C. 2273, the Department of Labor Dukek Logging, Inc., Riverdale issued a Certification of Eligibility to Environmental Services, Inc., Ron Weiss Apply for Worker Adjustment Logging, Inc., Roy Lundmark Company, Assistance on February 1, 2012, Sawyer Enterprise, LLC, Sawyer Timber applicable to workers and former Co., LLP, Shawn Fletcher Trucking, workers of Verso Paper Corporation, Skoe Lumber Company, Timberline Sartell Mill Division, Sartell, Minnesota Trucking, Inc., Trout Enterprise, Inc., (Verso). The subject firm worker group and Wood Forest Products, Inc., and did not include on-site leased workers. including two individuals (Bryce The workers’ firm is engaged in Kowalzek and Ted Kromy), Sartell, activities related to the production of Minnesota.

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The amended notice applicable to DEPARTMENT OF LABOR including on-site leased workers from Pro TA–W–81,210 is hereby issued as Unlimited and Green Energy Initiatives, LLC, follows: Employment and Training Wheeling, West Virginia (TA–W–81,880) and Administration Mountain State Carbon, LLC, including All workers of Verso Paper Corporation, workers whose wages were reported through Sartell Mill Division, Sartell, Minnesota, [TA–W–81,880: TA–A–81,880A] RG Steel Wheeling, LLC, Follansbee, West including on-site leased workers from Virginia (TA–W–81,880A), including Securitas Security Services, Manpower, Inc., RG Steel Wheeling, LLC, Wheeling workers, at both firms, whose unemployment insurance (UI) wages are reported through Banick Logging, Inc., Beck Lumber Company, Office, A Division Of RG Steel, LLC, Including On-Site Leased Workers Severstal Wheeling who became totally or Bell Timber, Inc., Benson Timber, Inc., Big H partially separated from who became totally Logging, Demenge Trucking & Forest From Pro Unlimited and Green Energy Initiatives LLC, Including Workers or partially separated from employment on or Products, LLC, Dick Walsh Forest Products, after August 7, 2011 through October 2, 2014, Dobbs Logging, Inc., Douglas Hustad Logging, Whose Wages Were Reported Through and all workers in the group threatened with Dukek Logging, Inc.—Dukek Trucking, Inc., Severstal Wheeling, Wheeling, WV: total or partial separation from employment Edin Logging, Inc., Enberg Logging Supply, Mountain State Carbon, LLC, Including on date of certification through two years Great Northern Logging, Inc., Gregerson Workers Whose Wages Were Reported from the date of certification, are eligible to Logging, Haverinen Brothers Logging, Through RG Steel Wheeling, Llc and apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, Hodgden Logging, Inc., Holden Logging, Severstal Wheeling Follansbee, WV; as amended. Hufnagle Forest Resources, LLC, Johnson Amended Certification Regarding Timber Harvesting, Inc., Kimball Logging, Eligibility To Apply for Worker Signed in Washington, DC, this 2nd day of Inc., Koski Wood Services, Larson Lumber Adjustment Assistance November, 2012. Elliott S. Kushner Company, Lovdahl & Sons, LLC, Lundberg In accordance with Section 223 of the Forest Products, Inc., McCabe Forest Certifying Officer, Office of Trade Adjustment Trade Act of 1974, as amended (‘‘Act’’), Assistance. Products, Inc., Nelson Brothers Logging LLC, 19 U.S.C. 2273, the Department of Labor [FR Doc. 2012–28614 Filed 11–23–12; 8:45 am] North Shore Forest Products, Inc., Northern issued a Certification of Eligibility to Logging, Inc., Northland Timber Company, Apply for Worker Adjustment BILLING CODE 4510–FN–P Olson Forest Products, Pelland Logging, Inc., Assistance on October 2, 2012, Richard Dukek Logging, Inc., Riverdale applicable to workers of RG Steel DEPARTMENT OF LABOR Environmental Services, Inc., Ron Weiss Wheeling, LLC, Wheeling Office, a Logging, Inc., Roy Lundmark Company, division of RG Steel, LLC, including on- Sawyer Enterprise, LLC, Sawyer Timber Co., Employment and Training site leased workers from Pro Unlimited Administration LLP, Shawn Fletcher Trucking, Skoe Lumber and Green Energy Initiatives, LLC, Company, Timberline Trucking, Inc., Trout Wheeling, West Virginia (TA–W– Notice of Determinations Regarding Enterprise, Inc., and Wood Forest Products, 81,880) and Mountain State Carbon, Eligibility To Apply for Worker Inc., and including Bryce Kowalzek and Ted LLC, including workers whose wages Adjustment Assistance Kromy, Sartell, Minnesota, who became were reported through RG Steel totally or partially separated from that In accordance with Section 223 of the Wheeling, LLC, Follansbee, West employment on or after December 27, 2012 Trade Act of 1974, as amended (19 Virginia (TA–W–81,880A). The through February 1, 2012, and all workers in U.S.C. 2273) the Department of Labor Department’s notice of determination the group threatened with total or partial herein presents summaries of was published in the Federal Register separation from February 1, 2012 through determinations regarding eligibility to on October 19, 2012 (77 FR 64357). February 1, 2014, are eligible to apply for apply for trade adjustment assistance for At the request of a state workforce adjustment assistance under Chapter 2 of workers by (TA–W) number issued office, the Department reviewed the Title II of the Trade Act of 1974, as amended. during the period of October 29, 2012 certification for workers of the subject through November 2, 2012. Signed in Washington, DC, this 5th day of firm. The workers are engaged in In order for an affirmative November, 2012. activities related to the production of determination to be made for workers of Del Min Amy Chen, coke. a primary firm and a certification issued New information shows that some regarding eligibility to apply for worker Certifying Officer, Office of Trade Adjustment workers separated from employment at adjustment assistance, each of the group Assistance. the Wheeling Office (TA–W–81,880) eligibility requirements of Section [FR Doc. 2012–28613 Filed 11–23–12; 8:45 am] and Mountain State Carbon (TA–W– BILLING CODE 4510–FN–P 222(a) of the Act must be met. 81,880A) had their wages reported I. Under Section 222(a)(2)(A), the through a separate unemployment following must be satisfied: insurance (UI) tax account under the (1) A significant number or proportion name Severstal Wheeling, a former of the workers in such workers’ firm owner of the workers’ firms. have become totally or partially The intent of the Department’s separated, or are threatened to become certification is to include all workers of totally or partially separated; the subject firm who meet the worker (2) The sales or production, or both, group certification criteria under of such firm have decreased absolutely; Section 222(a) of the Act, 19 U.S.C. and 2272(a). (3) One of the following must be Accordingly, the Department is satisfied: amending this certification to properly (A) Imports of articles or services like reflect this matter. The amended notice or directly competitive with articles applicable to TA–W–81,880 and TA–W– produced or services supplied by such 81,880A is hereby issued as follows: firm have increased; All workers of RG Steel Wheeling, LLC, (B) Imports of articles like or directly Wheeling Office, a division of RG Steel, LLC, competitive with articles into which one

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or more component parts produced by become totally or partially separated, or (1) The workers’ firm is publicly such firm are directly incorporated, are threatened to become totally or identified by name by the International have increased; partially separated; Trade Commission as a member of a (C) imports of articles directly (2) The public agency has acquired domestic industry in an investigation incorporating one or more component from a foreign country services like or resulting in— parts produced outside the United directly competitive with services (A) An affirmative determination of States that are like or directly which are supplied by such agency; and serious injury or threat thereof under competitive with imports of articles (3) The acquisition of services section 202(b)(1); incorporating one or more component contributed importantly to such (B) An affirmative determination of parts produced by such firm have workers’ separation or threat of market disruption or threat thereof increased; separation. (D) Imports of articles like or directly under section 421(b)(1); or In order for an affirmative competitive with articles which are (C) An affirmative final determination determination to be made for adversely produced directly using services of material injury or threat thereof under affected secondary workers of a firm and supplied by such firm, have increased; section 705(b)(1)(A) or 735(b)(1)(A) of a certification issued regarding and the Tariff Act of 1930 (19 U.S.C. (4) The increase in imports eligibility to apply for worker 1671d(b)(1)(A) and 1673d(b)(1)(A)); contributed importantly to such adjustment assistance, each of the group (2) The petition is filed during the 1- workers’ separation or threat of eligibility requirements of Section year period beginning on the date on separation and to the decline in the 222(c) of the Act must be met. which— (1) A significant number or proportion sales or production of such firm; or (A) A summary of the report of the workers in the workers’ firm have II. Section 222(a)(2)(B) all of the submitted to the President by the become totally or partially separated, or following must be satisfied: International Trade Commission under are threatened to become totally or (1) A significant number or proportion section 202(f)(1) with respect to the partially separated; of the workers in such workers’ firm affirmative determination described in have become totally or partially (2) The workers’ firm is a Supplier or paragraph (1)(A) is published in the separated, or are threatened to become Downstream Producer to a firm that Federal Register under section 202(f)(3); totally or partially separated; employed a group of workers who or (2) One of the following must be received a certification of eligibility satisfied: under Section 222(a) of the Act, and (B) Notice of an affirmative (A) There has been a shift by the such supply or production is related to determination described in workers’ firm to a foreign country in the the article or service that was the basis subparagraph (1) is published in the production of articles or supply of for such certification; and Federal Register; and services like or directly competitive (3) Either— (3) The workers have become totally with those produced/supplied by the (A) The workers’ firm is a supplier or partially separated from the workers’ workers’ firm; and the component parts it supplied to firm within— (B) There has been an acquisition the firm described in paragraph (2) (A) The 1-year period described in from a foreign country by the workers’ accounted for at least 20 percent of the paragraph (2); or firm of articles/services that are like or production or sales of the workers’ firm; (B) Notwithstanding section 223(b)(1), directly competitive with those or the 1-year period preceding the 1-year produced/supplied by the workers’ firm; period described in paragraph (2). and (B) A loss of business by the workers’ (3) The shift/acquisition contributed firm with the firm described in Affirmative Determinations for Worker importantly to the workers’ separation paragraph (2) contributed importantly to Adjustment Assistance or threat of separation. the workers’ separation or threat of In order for an affirmative separation. The following certifications have been determination to be made for adversely In order for an affirmative issued. The date following the company affected workers in public agencies and determination to be made for adversely name and location of each a certification issued regarding affected workers in firms identified by determination references the impact eligibility to apply for worker the International Trade Commission and date for all workers of such adjustment assistance, each of the group a certification issued regarding determination. eligibility requirements of Section eligibility to apply for worker The following certifications have been 222(b) of the Act must be met. adjustment assistance, each of the group issued. The requirements of Section (1) A significant number or proportion eligibility requirements of Section 222(f) 222(a)(2)(A) (increased imports) of the of the workers in the public agency have of the Act must be met. Trade Act have been met.

TA–W number Subject firm Location Impact date

81,927 ...... International Business Machines (IBM), Large Panel Assem- Poughkeepsie, NY ...... August 21, 2011. bly and Test Division (LPAT), Manpower. 81,982 ...... Leistritz Advanced Turbine Components, Inc., On-Site Leased Rural Hall, NC ...... August 23, 2011. Workers From Winston Personnel Group. 82,053 ...... Queen Cutlery Company, Servotronics, Inc...... Titusville, PA ...... October 3, 2011.

The following certifications have been services) of the Trade Act have been issued. The requirements of Section met. 222(a)(2)(B) (shift in production or

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TA–W number Subject firm Location Impact date

81,947 ...... Enkeboll Designs ...... Carson, CA ...... September 6, 2011. 82,003 ...... RR Donnelley Johnson City, Kelly Services ...... Johnson City, TN ...... September 24, 2011. 82,025 ...... Comcast Cable, West Division Customer Care ...... Sacramento, CA ...... October 1, 2011. 82,037 ...... The Bank of New York Mellon, Asset Servicing Global Oper- Brooklyn, NY ...... October 2, 2011. ations, Income Collections Department, etc. 82,087 ...... Medtronic Advanced Energy, Medtronic, Inc., Peak Surgical, Palo Alto, CA ...... October 16, 2011. ATR, Trendtec, and Validant. 82,091 ...... T-Shirt International, Inc., United Talent LLC ...... Culloden, WV ...... April 24, 2012.

Negative Determinations for Worker criteria for worker adjustment assistance (increased imports) and (a)(2)(B) (shift Adjustment Assistance have not been met for the reasons in production or services to a foreign specified. country) of section 222 have not been In the following cases, the The investigation revealed that the met. investigation revealed that the eligibility criteria under paragraphs (a)(2)(A)

TA–W number Subject firm Location Impact date

81,895 ...... Medimedia Health, Inc., Outbound Customer Service Team ... Carlstadt, NJ. 81,895A ...... Medimedia Health, Inc., Outbound Customer Service Team ... Yardley, PA. 82,074 ...... Komax Solar, Inc., Komax Holdings AG ...... York, PA.

Determinations Terminating required by Section 221 of the Act (19 workers are covered by active Investigations of Petitions for Worker U.S.C. 2271), the Department initiated certifications. Consequently, further Adjustment Assistance investigations of these petitions. investigation in these cases would serve After notice of the petitions was The following determinations no purpose since the petitioning group published in the Federal Register and terminating investigations were issued of workers cannot be covered by more on the Department’s Web site, as because the petitioning groups of than one certification at a time.

TA–W number Subject firm Location Impact date

81,930 ...... Hydro Aluminum North America, Inc., Midwest Region, Monett, MO. Penmac. 82,013 ...... Hewlett-Packard Company, Ink Jet and Web Services, World Vancouver, WA. Wide Design Group.

I hereby certify that the DEPARTMENT OF LABOR determination of the date on which total aforementioned determinations were or partial separations began or issued during the period of October 29, Employment and Training threatened to begin and the subdivision 2012 through November 2, 2012. These Administration of the firm involved. determinations are available on the The petitioners or any other persons Investigations Regarding Certifications Department’s Web site tradeact/taa/taa showing a substantial interest in the of Eligibility To Apply for Worker subject matter of the investigations may search firm.cfm under the searchable Adjustment Assistance listing of determinations or by calling request a public hearing, provided such request is filed in writing with the the Office of Trade Adjustment Petitions have been filed with the Director, Office of Trade Adjustment Assistance toll free at 888–365–6822. Secretary of Labor under Section 221(a) Assistance, at the address shown below, Dated: November 6, 2012. of the Trade Act of 1974 (‘‘the Act’’) and not later than December 6, 2012. Elliott S. Kushner, are identified in the Appendix to this Interested persons are invited to notice. Upon receipt of these petitions, Certifying Officer, Office of Trade Adjustment submit written comments regarding the the Director of the Division of Trade subject matter of the investigations to Assistance . Adjustment Assistance, Employment [FR Doc. 2012–28616 Filed 11–23–12; 8:45 am] the Director, Office of Trade Adjustment and Training Administration, has Assistance, at the address shown below, BILLING CODE 4510–FN–P instituted investigations pursuant to not later than December 6, 2012. Section 221(a) of the Act. The petitions filed in this case are The purpose of each of the available for inspection at the Office of investigations is to determine whether the Director, Office of Trade Adjustment the workers are eligible to apply for Assistance, Employment and Training adjustment assistance under Title II, Administration, U.S. Department of Chapter 2, of the Act. The investigations Labor, Room N–5428, 200 Constitution will further relate, as appropriate, to the Avenue NW., Washington, DC 20210.

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Signed at Washington, DC this 8th day of November 2012. Elliott S. Kushner, Certifying Officer, Office of Trade Adjustment Assistance.

APPENDIX [31 TAA petitions instituted between 10/22/12 and 11/2/12]

Subject firm Date of Date of TA–W (petitioners) Location institution petition

82096 ...... Thyssenkrupp Access (State/One-Stop) ...... Roanoke, IL ...... 10/22/12 10/18/12 82097 ...... Tholstrup Cheese USA Inc. (Workers) ...... Norton Shores, MI ...... 10/22/12 10/18/12 82098 ...... Choice Hotels International (State/One-Stop) ...... Grand Junction, CO ...... 10/22/12 10/18/12 82099 ...... Air Products & Chemicals (State/One-Stop) ...... Sparrows Point, MD ...... 10/22/12 10/18/12 82100 ...... NXP Semiconductor (State/One-Stop) ...... San Jose, CA ...... 10/22/12 10/18/12 82101 ...... BT Americas (Company) ...... EL Segundo, CA ...... 10/22/12 10/15/12 82102 ...... PPD Development, LLC (Workers) ...... Austin, TX 78744 and Morris- 10/22/12 10/17/12 ville, NC 27560. 82103 ...... American Airlines (Union) ...... Chicago, IL ...... 10/22/12 10/18/12 82104 ...... Sauk Technologies (Union) ...... Saukville, WI ...... 10/22/12 10/18/12 82105 ...... Thorco Industries, Inc. (State/One-Stop) ...... Cassville, MO ...... 10/22/12 10/19/12 82106 ...... Xyratex International, Inc. (Company) ...... West Sacramento, CA ...... 10/23/12 10/22/12 82107 ...... Sub Zero and Wolf, Inc. (Workers) ...... Madison, WI ...... 10/23/12 10/02/12 82108 ...... Axa Equitable (Workers) ...... Syracuse, NY ...... 10/24/12 10/23/12 82109 ...... ArcelorMittal (Union) ...... Georgetown, SC ...... 10/24/12 10/24/12 82110 ...... Hewlett-Packard Company (State/One-Stop) ...... Wayland, MA ...... 10/25/12 10/23/12 82111 ...... Carolina Precision Plastics (CPP Global) (State/One-Stop) Stratford, CT ...... 10/26/12 10/25/12 82112 ...... Rockwell Collins (State/One-Stop) ...... Cedar Rapids, IA ...... 10/31/12 10/25/12 82113 ...... SGL Carbon, LLC (Union) ...... St. Marys, PA ...... 10/31/12 10/19/12 82114 ...... BRP US Inc. (Company) ...... Spruce Pine, NC ...... 10/31/12 10/31/12 82115 ...... Cinch Connectors (State/One-Stop) ...... Vinita, OK ...... 10/31/12 10/29/12 82116 ...... Heraeus Kulzer, LLC (Company) ...... South Bend, IN ...... 10/31/12 10/30/12 82117 ...... Simple Way Limited Partnership, dba The Rosary Shop McMinnville, OR ...... 10/31/12 10/31/12 (Company). 82118 ...... Hanson Worldwide LLC (State/One-Stop) ...... Spokane, WA ...... 10/31/12 10/29/12 82119 ...... Hewlett-Packard Company (State/One-Stop) ...... Corvallis, OR ...... 10/31/12 10/23/12 82120 ...... Welch Allyn Inc. (Workers) ...... Skaneateles, NY ...... 11/01/12 10/31/12 82121 ...... Goodyear Tire & Rubber Company (Union) ...... Gadsden, AL ...... 11/01/12 10/31/12 82122 ...... Straits Steel and Wire Company (Company) ...... Ludington, MI ...... 11/01/12 10/31/12 82123 ...... Medtronic (State/One-Stop) ...... Mounds View, MN ...... 11/01/12 10/31/12 82124 ...... Brunswick Corporation Sea Ray Boats (State/One-Stop) ... Knoxville, TN ...... 11/02/12 11/01/12 82125 ...... Honeywell, Inc. (Workers) ...... Mars Hill, NC ...... 11/02/12 10/24/12 82126 ...... Covidien (Workers) ...... Mansfield, MA ...... 11/02/12 11/01/12

[FR Doc. 2012–28615 Filed 11–23–12; 8:45 am] related to warehousing and distribution Conclusion BILLING CODE 4510–FN–P of electric motors, as well as After careful review of the additional engineering, customer service and facts obtained during the information technology (IT) services. reconsideration investigation, I DEPARTMENT OF LABOR Workers are not separately identifiable determine that workers of Fasco, a by service supplied. The worker group division of Regal Beloit Corporation, Employment and Training includes on-site leased workers from Administration Eldon, Missouri, who were engaged in Penmac Personnel Services. employment related to the supply of Section 222(a)(1) has been met [TA–W–81,791] warehousing, distribution, engineering, because a significant number or customer service and information proportion of the workers in the subject Fasco, A Division of Regal Beloit technology services, meet the worker firm have become totally or partially Corporation, Including On-Site Leased group certification criteria under separated, or are threatened with such Workers From Penmac Personnel Section 222(a) of the Act, 19 U.S.C. separation. Services, Eldon, MO; Notice of Revised 2272(a). In accordance with Section 223 Based on information provided during Determination on Reconsideration of the Act, 19 U.S.C. 2273, I make the the reconsideration investigation, the following certification: On September 14, 2012, the Department determines that worker Department of Labor issued a Notice of separations at the subject firm are All workers of Fasco, a division of Regal Affirmative Determination Regarding related to a shift in a portion of the Beloit Corporation, including on-site leased Application for Reconsideration supply of engineering services (or like workers from Penmac Personnel Services, Eldon, Missouri who became totally or applicable to workers and former or directly competitive services) to a partially separated from employment on or workers of Fasco, a division of Regal foreign country and that the shift in the after July 9, 2011, through two years from the Beloit Corporation, Eldon, Missouri supply of these services contributed date of certification, and all workers in the (subject firm). The subject worker group importantly to worker separations at the group threatened with total or partial includes workers engaged in activities subject firm. separation from employment on the date of

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certification through two years from the date providing strategic and programmatic Headquarters, 300 E Street SW., of certification, are eligible to apply for guidance for planning and prioritizing Washington, DC 20546, (202) 358–1557. adjustment assistance under Chapter 2 of the Earth Science Division’s Applied Patricia D. Rausch, Title II of the Trade Act of 1974, as amended. Sciences Program activities and has Signed at Washington, DC, this 5th day of served as a community-based Advisory Committee Management Officer, November, 2012. National Aeronautics and Space interdisciplinary forum for analysis. The Administration. Del Min Amy Chen, AGAG held its first meeting in January [FR Doc. 2012–28537 Filed 11–23–12; 8:45 am] Certifying Officer, Office of Trade Adjustment 2009, with one or two meetings per year Assistance. taking place since then. The ASAG has BILLING CODE 7510–13–P [FR Doc. 2012–28617 Filed 11–23–12; 8:45 am] been governed by a Terms of Reference. BILLING CODE 4510–FN–P During 2012, NASA has determined that NATIONAL AERONAUTICS AND the establishment of a separate SPACE ADMINISTRATION independent Federal advisory NATIONAL AERONAUTICS AND committee known as the Applied [Notice (12–099)] SPACE ADMINISTRATION Sciences Advisory Committee (ASAC) is more in line with the letter and spirit of [Notice: (12–102)] Notice of Intent To Grant an Exclusive the statutory requirement. License Notice of Establishment of a NASA Nature and Purpose: The ASAC will AGENCY: Federal Advisory Committee; Applied be governed by a formal charter, National Aeronautics and Sciences Advisory Committee consistent with FACA, the GSA Final Space Administration. Rule noted above, and related ACTION: Notice of intent to grant an AGENCY: National Aeronautics and regulations, policies and guidelines. It exclusive license. Space Administration (NASA). shall draw upon the expertise of its SUMMARY: This notice is issued in ACTION: In accordance with the Federal members and other sources to provide accordance with 35 U.S.C. 209(e) and 37 Advisory Committee Act (FACA) (Pub. advice and make recommendations to L. 92–463, as amended), and pursuant to CFR 404.7(a)(1)(i). NASA hereby gives the Director, Earth Science Division, notice of its intent to grant an exclusive Section 314(a) of the NASA Science Mission Directorate, NASA Authorization Act of 2005 (Pub. L. 109– license in the United States to practice Headquarters, on Applied Sciences the inventions described and claimed in 155), the NASA Administrator has programs, policies, plans and priorities. determined that the establishment of the the following U.S. Patent Applications: The ASAC’s recommendations and ‘‘Reducing Sensor and Readout Applied Sciences Advisory Committee analysis can be used to inform decisions as a Federal advisory committee under Circuitry Noise in Digital Domain Using on the programmatic scope and FACA is necessary and in the public Referencing Pixels’’ Application Serial priorities, as well as the implementation interest in connection with duties No. 13/489073, NASA Case No. GSC– of Applied Sciences programs. In imposed upon NASA by law. This 16181 and ‘‘Hilbert-Huang Transform addition, the ASAC will provide a determination follows consultation with Data Processing Real-Time System with regular forum for broad discussion of the Committee Management Secretariat, 2–D Capabilities’’ Application Serial Earth science applications and the role U.S. General Services Administration No. 13/474367, NASA Case No. GSC– of Applied Sciences within and outside (GSA), in accordance with Section 102– 16328–1 to Syneren Technologies of NASA. The ASAC will function 3.60(a) of the GSA Final Rule on Federal Corporation having its principal place of solely as an advisory body and comply Advisory Committee Management (41 business in Lanham, Maryland. The fully with the provisions of FACA. CFR parts 101–6 and 102–3). patent rights in these inventions have Membership: The ASAC will consist been assigned to the United States of FOR FURTHER INFORMATION CONTACT: Mr. of approximately 9–12 members who America as represented by the Peter Meister, Strategic Integration and will serve as Special Government Administrator of the National Management Division, Science Mission Employees for a two-year term, Aeronautics and Space Administration. Directorate, NASA Headquarters, 300 E renewable at the discretion of the The exclusive license will comply with Street SW., Washington, DC 20546, Director, Earth Science Division, the terms and conditions of 35 U.S.C. (202) 358–1557. Science Mission Directorate, NASA 209 and 37 CFR 404.7. SUPPLEMENTARY INFORMATION: Headquarters. The ASAC Chair will also DATES: The prospective exclusive Background: Section 313 of the NASA serve as a member of the Earth Science license may be granted unless, within Authorization Act of 2005 directs that Subcommittee of the NASA Advisory fifteen (15) days from the date of this NASA establish a program of grants for Council. published notice, NASA receives competitively-awarded pilot projects to Meetings: The ASAC shall meet written objections including evidence explore the integrated use of sources of approximately one to two times per year and argument that establish that the remote sensing and other geospatial or as required by the Director, Earth grant of the license would not be information to address State, local, Science Division, Science Mission consistent with the requirements of 35 regional and tribal agency needs. Directorate, NASA Headquarters. U.S.C. 209 and 37 CFR 404.7. Section 314(a) of this Act requires that Competing applications completed and NASA establish an advisory committee Duration: Since the ASAC is a received by NASA within fifteen (15) to monitor the program established nondiscretionary Federal advisory days of the date of this published notice under Section 313. Pursuant to Section committee required by Federal statute; it will also be treated as objections to the 314(a), in late 2008, NASA established is envisioned to be a continuing entity. grant of the contemplated exclusive the Applied Sciences Analysis Group Designated Federal Officer: The license. (ASAG) as a task group under the NASA Designated Federal Officer (DFO) Objections submitted in response to auspices of the Earth Science for ASAC is: Mr. Peter Meister, Strategic this notice will not be made available to Subcommittee of the NASA Advisory Integration and Management Division, the public for inspection and, to the Council. It has been responsible for Science Mission Directorate, NASA extent permitted by law, will not be

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released under the Freedom of and NSF Staff. Discussions and question Reason for Closing: The nominations being Information Act, 5 U.S.C. 552. and answer sessions. reviewed include information of a personal nature where disclosure would constitute ADDRESSES: Objections relating to the 1:00 p.m.–8:00 p.m. Closed—Draft report on education and research unwarranted invasions of personal privacy. prospective license may be submitted to These matters are exempt under 5 U.S.C. Mr. Bryan A. Geurts, Chief Patent activities. 552b(c)(6) of the Government in the Sunshine Counsel/140.1, Goddard Space Flight Thursday, December 5, 2012 Act. Center, Greenbelt, MD 20771, (301) 286– Dated: November 20, 2012. 7351. 8:30 a.m.–noon: Open—Response presentations by Site Team and NSF Susanne Bolton, FOR FURTHER INFORMATION CONTACT: Staff Awardee Institution faculty staff Committee Management Officer. Enidia Santiago-Arce, Innovative to. Discussions and question and answer [FR Doc. 2012–28636 Filed 11–23–12; 8:45 am] Partnerships Program Office/504, sessions. BILLING CODE 7555–01–P Goddard Space Flight Center, Greenbelt, Noon to 3:00 p.m.: Closed—Complete MD 20771 (301) 286–5810. Information written site visit report with preliminary about other NASA inventions available recommendations. NATIONAL SCIENCE FOUNDATION for licensing can be found online at Reason for Closing: The proposals http://technology.nasa.gov/. being reviewed include information of a Request for Comments (RFC)—Federal Sumara M. Thompson-King, proprietary or confidential nature, Cybersecurity Research and Development Strategic Plan Deputy General Counsel. including technical information; [FR Doc. 2012–28557 Filed 11–23–12; 8:45 am] financial data, such as salaries; and AGENCY: The National Coordination personal information concerning BILLING CODE 7510–13–P Office (NCO) for Networking individuals associated with the Information Technology Research and proposals. These matters are exempt Development (NITRD). under 5 U.S.C. 552b(c), (4) and (6) of the ACTION: Request for comments (RFC). NATIONAL SCIENCE FOUNDATION Government in the Sunshine Act. Proposal Review Panel for Computing Dated: November 20, 2012. FOR FURTHER INFORMATION, CONTACT: Communication Foundations; Notice Susanne Bolton, Tomas Vagoun at [email protected] or of Meeting Committee Management Officer. (703) 292–4873. [FR Doc. 2012–28635 Filed 11–23–12; 8:45 am] DATES: To be considered, submissions In accordance with the Federal BILLING CODE 7555–01–P must be received by December 19, 2012. Advisory Committee Act (Pub. L. 92– SUMMARY: This Request For Comments 463, as amended), the National Science (RFC) is issued by the Cyber Security Foundation announces the following NATIONAL SCIENCE FOUNDATION and Information Assurance Research meeting: and Development Senior Steering Group Name: Site Visit, Proposal Panel President’s Committee on the National (SSG) of the Federal Networking and Review for Science and Technology Medal of Science; Notice of Meeting Information Technology Research and Centers—Integrative Partnerships Development (NITRD) Program. The (#1192). Notice is hereby given of a change in SSG is preparing a report to provide an Date/Time: December 3, 2012, 6:30 meeting of the President’ Committee on update on technological developments p.m.–8:30 p.m.; December 4, 2012, 8:00 the National Medal of Science. in Federal cybersecurity research and a.m.–8:00 p.m.; December 5, 2012, 8:30 Originally the meeting was scheduled development since the release of the a.m.–3:00 p.m. for October 31, 2012. A notice was 2011 Federal Cybersecurity Research Place: Purdue University, West published in the Federal Register on and Development Strategic Plan (the Lafayette, IN. Wednesday, October 10, 2012 on page strategic plan). Also, in light of the ever Type of Meeting: Partial Closed. 61644. However, due to Hurricane evolving technological landscape of Contact Person: John Cozzens, Sandy it was necessary to cancel. In cybersecurity, and as input to its follow- National Science Foundation, 4201 accordance with the Federal Advisory on report, the SSG seeks comments on Wilson Boulevard, Room 1115, Committee Act (Pub. L. 92–463, as the progress over the past year in the Arlington, VA 22230. Telephone: (703) amended), the National Science research areas identified in the strategic 292–8910. Foundation announces the rescheduled plan, the strategic plan’s impact in Purpose of Meeting: To assess the meeting: orienting private sector cybersecurity progress of the STC Award: 0939370, Name: President’s Committee on the research and development activities, the ‘‘Emerging Frontiers of Science of National Medal of Science (1182). successes and challenges in achieving Information’’, and to provide advice and Date and Time: Monday, December 10, the technological objectives outlined in recommendations concerning further 2012, 8:30 a.m.–2:00 p.m. the plan, and on any nascent or NSF support for the Center. Place: National Science Foundation, 4201 Wilson Boulevard, Arlington, VA, 22230. emerging areas in cybersecurity research AGENDA Type of Meeting: Closed. and development that warrant further Contact Person: Ms. Mayra Montrose, focus. Additionally, the comments will Monday, December 3, 2012 Program Manager, Room 1282, National be used by the SSG in its assessment of 6:30 p.m. to 8:30 p.m.: Closed—Site Science Foundation, 4201 Wilson Blvd., future needs and directions in Federal Team and NSF Staff meets to discuss Arlington, VA 22230. Telephone: 703–292– cybersecurity research and Site Visit materials, review process and 4757. development. Comments are to be Purpose of Meeting: To provide advice and submitted to [email protected]. charge. recommendations to the President in the SUPPLEMENTARY INFORMATION: Continued Tuesday, December 4, 2012 selection of the 2012 National Medal of Science recipients. cybersecurity research and development 8:00 a.m. to 1:00 p.m. Open— Agenda: To review and evaluate is critical to ensuring that we are on Presentations by Awardee Institution, nominations as part of the selection process track as a Nation to develop innovative faculty staff and students, to Site Team for awards. tools and capabilities to address

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cybersecurity threats. In December 2011, (b) What are the research, Responders are solely responsible for all the White House Office of Science and development, implementation, expenses associated with responding to Technology Policy (OSTP) released the transition-to-practice, or other this RFC. ‘‘Trustworthy Cyberspace: Strategic Plan challenges that need to be overcome to Submitted by the National Science for the Federal Cybersecurity Research achieve the goals under each theme? Foundation for the National and Development Program,’’ a (c) Are there areas in cybersecurity Coordination Office (NCO) for framework for a set of coordinated research not addressed by the strategic Networking and Information Federal strategic priorities and plan that should be? If yes, what are Technology Research and Development objectives for cybersecurity research. they, why are they important, and what (NITRD) on November 19, 2012. (http://www.nitrd.gov/Publications/ advances in such areas are needed to Suzanne H. Plimpton, improve the security, safety, and PublicationDetail.aspx?pubid=39). Reports Clearance Officer, National Science The strategic plan was developed trustworthiness of cyberspace? Foundation. (2) Activities that Advance the under the leadership of the Cyber [FR Doc. 2012–28481 Filed 11–23–12; 8:45 am] Security and Information Assurance Strategic Plan: BILLING CODE 7555–01–P Research and Development Senior (d) What activities are you or your Steering Group (SSG) of the Federal organization undertaking that support Networking and Information the objectives of the strategic plan? NUCLEAR REGULATORY Technology Research and Development Please include a brief description of COMMISSION (NITRD) Program. It identifies key initiatives, use-cases, capabilities, cybersecurity research and development technologies, and/or achievements. [NRC–2012–0282] themes that are shaping and facilitating (e) How might your organization a coordinated Federal research and utilize the research outcomes? Preoperational Testing of Onsite development agenda to engender game- (3) Sustainable Progress: Electric Power Systems To Verify (f) What interactions, relationships, changing technologies. With this Proper Load Group Assignments, campaigns, or targeted assistance would overarching template, the federal Electrical Separation, and Redundancy support a sustainable process to drive scientific community has been focusing changes envisioned by the research AGENCY: Nuclear Regulatory on a common set of problems. The themes? Commission. strategic plan is being executed by all of (g) What engagements among Federal ACTION: Draft regulatory guide; request the agencies conducting and funding agencies, government labs, industry, for comment. Federal cybersecurity research, and universities are particularly including DARPA, Department of SUMMARY: The U.S. Nuclear Regulatory effective in enabling rapid progress in Homeland Security, Department of Commission (NRC or the Commission) the development of solutions? is issuing for public comment draft Energy, IARPA, National Institute of To further enhance discussions regulatory guide (DG), DG–1294, Standards and Technology, National related to cybersecurity research and ‘‘Preoperational Testing of On-Site Security Agency, National Science this RFC, the Government will webcast Electric Power Systems to Verify Proper Foundation, and the Department of a session on Federal cybersecurity Load Group Assignments, Electrical Defense. Input from industry, academia, research and development during the Separation, and Redundancy.’’ DG–1294 and other stakeholders during the National Science Foundation’s Secure is proposed Revision 1 of RG 1.41, dated development of the strategic plan and Trustworthy Cyberspace Principal March 1973. This revision expands the contributed greatly to the formulation of Investigators Meeting. The session and scope of the guide to encompass Federal research directions in the webcast will take place on preoperational testing of electrical cybersecurity. Guided by this plan, November 27, 2012, from approximately power systems used to meet current many research activities, initiatives, and 1:00 p.m.–3:00 p.m. EST. Additional Station Blackout regulations, time solicitations have already been instructions will be available at http:// requirements for startup and alignment launched by Federal agencies in all cps-vo.org/group/satc. areas defined by the plan. of emergency power sources, and testing In an effort to continue to evolve Submission Instructions requirements for facilities licensed Federal strategic directions in Submission email: submit your under 10 CFR Part 52. cybersecurity research, the SSG seeks comments to [email protected]. DATES: Submit comments by January 31, comments to gain a better Submission deadline: to be 2013. Comments received after this date understanding of the plan’s impact. considered, submissions must be will be considered if it is practical to do Furthermore, the SSG seeks input received by December 19, 2012. so, but the NRC is able to ensure regarding prospective areas in To the extent applicable, when consideration only for comments cybersecurity research and development addressing a particular question received on or before this date. that might benefit from coordinated included in this request for comments, Although a time limit is given, support by Federal agencies. To assist comments should reference the relevant comments and suggestions in with its report, the SSG is requesting number associated with the question. connection with items for inclusion in that interested parties submit written Comments submitted will be made guides currently being developed or comments. We welcome comments from available to the public online or by improvements in all published guides all interested parties, including, but not alternative means. For this reason, do are encouraged at any time. limited to, academia, private industry, not include in your comments ADDRESSES: You may access information and all levels of government. We seek information of a confidential nature, and comment submissions related to comments on the following questions in such as sensitive personal information this document, which the NRC relation to the strategic plan: or proprietary information. In possesses and is publicly available, by (1) Research Themes of the Strategic accordance with FAR 15.202(3), searching on http://www.regulations.gov Plan: responses to this notice are not offers under Docket ID NRC–2012–0282. You (a) Do the research themes need to be and cannot be accepted by the may submit comments by the following refined or enhanced? If so, in what way? Government to form a binding contract. methods:

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• Federal rulemaking Web site: Go to the NRC’s PDR, Room O1–F21, One and redundancy. The guide was first http://www.regulations.gov and search White Flint North, 11555 Rockville issued in 1973 and has not been revised for Docket ID NRC–2012–0282. Address Pike, Rockville, Maryland 20852. despite multiple revisions to the questions about NRC dockets to Carol B. Submitting Comments underlying regulations. Since 1973 the Gallagher; telephone: 301–492–3668; Commission has amended its email: [email protected]. Please include Docket ID NRC–2012– regulations for loss of all alternating • 0282 in the subject line of your Mail comments to: Cindy Bladey, current power (Station Blackout) and comment submission, in order to ensure Chief, Rules, Announcements, and loss of large areas of the plant due to Directives Branch (RADB), Office of that the NRC is able to make your comment submission available to the explosions or fire, and has established a Administration, Mail Stop: TWB–05– new combined (construction and B01M, U.S. Nuclear Regulatory public in this docket. operating) licensing process under 10 Commission, Washington, DC 20555– The NRC cautions you not to include CFR part 52. 0001. identifying or contact information in • Fax comments to: RADB at 301– comment submissions that you do not This regulatory guide is being revised 492–3446. want to be publicly disclosed in your for three reasons: (1) To expand the For additional direction on accessing comment submission. The NRC posts all scope of the guide to encompass information and submitting comments, comment submissions at http:// preoperational tests for the electrical see ‘‘Accessing Information and www.regulations.gov as well as enter the power systems used to meet the Submitting Comments’’ in the comment submissions into ADAMS. regulatory requirements addressing SUPPLEMENTARY INFORMATION section of The NRC does not routinely edit Station Blackout and loss of large areas this document. comment submissions to remove of the plant due to explosions or fire; (2) FOR FURTHER INFORMATION CONTACT: identifying or contact information. to expand the scope of the guide to Thomas Kendzia, U.S. Nuclear If you are requesting or aggregating comments from other persons for encompass testing the ability to meet Regulatory Commission, Office of New time requirements for startup and Reactors, Division of Construction submission to the NRC, then you should inform those persons not to include alignment for use of electric power Inspection and Operational Programs, sources used to meet the regulatory Washington, DC 20555–0001, telephone: identifying or contact information that they do not want to be publicly requirements addressing Station 301–415–8155 or email Blackout and loss of large areas of the [email protected]. disclosed in their comment submission. Your request should state that the NRC plant due to explosions or fire and (3) SUPPLEMENTARY INFORMATION: does not routinely edit comment to update the guide references and I. Accessing Information and submissions to remove such information address facilities licensed under 10 CFR Submitting Comments before making the comment part 52. submissions available to the public or III. Backfitting and Issue Finality A. Accessing Information entering the comment submissions into Please refer to Docket ID NRC–2012– ADAMS. As discussed in the ‘‘Implementation’’ 0282 when contacting the NRC about II. Additional Information section of this regulatory guide, the NRC the availability of information regarding has no current intention to impose this this document. You may access The NRC is issuing for public regulatory guide on holders of current information related to this document, comment a draft guide in the NRC’s operating licenses or combined licenses. ‘‘Regulatory Guide’’ series. This series which the NRC possesses and is Accordingly, the issuance of this was developed to describe and make publicly available, by any of the regulatory guide would not constitute available to the public such information following methods: ‘‘backfitting’’ as defined in 10 CFR • Federal Rulemaking Web Site: Go to as methods that are acceptable to the 50.109(a)(1) of the Backfit Rule or be http://www.regulations.gov and search NRC staff for implementing specific otherwise inconsistent with the for Docket ID NRC–2012–0282. parts of the NRC’s regulations, • NRC’s Agencywide Documents techniques that the staff uses in applicable issue finality provisions in Access and Management System evaluating specific problems or 10 CFR part 52. (ADAMS): You may access publicly postulated accidents, and data that the This regulatory guide may be applied available documents online in the NRC staff needs in its review of applications to applications for operating licenses Library at http://www.nrc.gov/reading- for permits and licenses. and combined licenses docketed by the rm/adams.html. To begin the search, The draft regulatory guide entitled NRC as of the date of issuance of the select ‘‘ADAMS Public Documents’’ and ‘‘Preoperational Testing of On-Site final regulatory guide, as well as future then select ‘‘Begin Web-based ADAMS Electric Power Systems to Verify Proper applications for operating licenses and Search.’’ For problems with ADAMS, Load Group Assignments, Electrical combined licenses submitted after the please contact the NRC’s Public Separation, and Redundancy’’ is issuance of the regulatory guide. Such Document Room (PDR) reference staff at temporarily identified by its task action would not constitute backfitting 1–800–397–4209, 301–415–4737, or by number, DG–1294. The DG–1294 is as defined in 10 CFR 50.109(a)(1) or be email to [email protected]. The draft proposed Revision 1 of Regulatory otherwise inconsistent with the regulatory guide is available Guide 1.41, ‘‘Preoperational Testing of applicable issue finality provision in 10 electronically under ADAMS Accession On-Site Electric Power Systems to CFR part 52, inasmuch as such Number ML12228A589. The regulatory Verify Proper Load Group Assignments, applicants or potential applicants are Electrical Separation, and Redundancy’’ analysis may be found in ADAMS under not within the scope of entities dated March 1973. Accession No. ML12228A591. protected by the Backfit Rule or the Regulatory guides are not Regulatory Guide 1.41 was developed relevant issue finality provisions in Part copyrighted, and NRC approval is not to provide guidance on preoperational 52. required to reproduce them. testing of on-site electrical power • NRC’s PDR: You may examine and systems important to safety for load Dated at Rockville, Maryland, this 15th day purchase copies of public documents at group assignments, electrical separation, of November, 2012.

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For the Nuclear Regulatory Commission. Directives Branch (RADB), Office of B. Submitting Comments Thomas H. Boyce, Administration, Mail Stop: TWB–05– Please include Docket ID NRC–2012– Chief, Regulatory Guide Development Branch, B01M, U.S. Nuclear Regulatory 0277 in the subject line of your Division of Engineering, Office of Nuclear Commission, Washington, DC 20555– Regulatory Research. 0001. comment submission, in order to ensure that the NRC is able to make your [FR Doc. 2012–28564 Filed 11–23–12; 8:45 am] • Fax comments to: RADB at 301– comment submission available to the BILLING CODE 7590–01–P 492–3446. public in this docket. For additional direction on accessing The NRC cautions you not to include NUCLEAR REGULATORY information and submitting comments, identifying or contact information that COMMISSION see ‘‘Accessing Information and you do not want to be publicly Submitting Comments’’ in the disclosed in your comment submission. [NRC–2012–0277] SUPPLEMENTARY INFORMATION section of The NRC will post all comment this document. submissions at http://www.regulations. Supplemental Environmental Impact gov as well as enter the comment Statement for Proposed Dewey- FOR FURTHER INFORMATION CONTACT: submissions into ADAMS. The NRC Burdock In-Situ Uranium Recovery Haimanot Yilma, Project Manager, does not routinely edit comment Project in Custer and Fall River Office of Federal and State Materials submissions to remove identifying or Counties, SD and Environmental Management Programs, U.S. Nuclear Regulatory contact information. AGENCY: Nuclear Regulatory Commission, Washington, DC 20555– If you are requesting or aggregating Commission. 0001; telephone: 301–415–8029; email: comments from other persons for ACTION: Availability of draft [email protected]. submission to the NRC, then you should supplemental environmental impact inform those persons not to include SUPPLEMENTARY INFORMATION: statement; request for comment. identifying or contact information that I. Accessing Information and they do not want to be publicly SUMMARY: The U.S. Nuclear Regulatory Submitting Comments disclosed in their comment submission. Commission (NRC) is issuing for public Your request should state that the NRC comment a draft Supplemental A. Accessing Information does not routinely edit comment Environmental Impact Statement (Draft Please refer to Docket ID NRC–2012– submissions to remove such information SEIS) for the Dewey-Burdock In-Situ 0277 when contacting the NRC about before making the comment Uranium Recovery (ISR) Project in the availability of information regarding submissions available to the public or Custer and Fall River Counties, South this document. You may access entering the comment submissions into Dakota. The Draft SEIS is Supplement 4 information related to this document by ADAMS. to NUREG–1910, ‘‘Generic any of the following methods: Environmental Impact Statement for In- II. Further Information • Situ Leach Uranium Milling Facilities,’’ Federal Rulemaking Web site: Go to Under the NRC’s environmental May 2009. By letter dated August 10, http://www.regulations.gov and search protection regulations in part 51 of Title 2009, Powertech USA, Inc. (Powertech) for Docket ID NRC–2012–0277. 10 of the Code of Federal Regulations submitted an application to the NRC for NRC’s Agencywide Documents (10 CFR), which implement the National a new source materials license for the Access and Management System Environmental Policy Act of 1969 Dewey-Burdock ISR Project. Powertech (ADAMS): You may access publicly (NEPA), preparation of an is proposing to recover uranium from available documents associated with the Environmental Impact Statement (EIS) the Dewey-Burdock Project site using an Dewey-Burdock ISR Project through the or supplement to an EIS (SEIS) is in-situ recovery process. NRC Library at http://www.nrc.gov/ required for issuance of a license to DATES: The public comment period on reading-rm/adams.html. To begin the possess and use source material for the draft SEIS begins with publication of search, select ‘‘ADAMS Public uranium milling (see 10 CFR this notice and continues until January Documents’’ and then select ‘‘Begin 51.20(b)(8)). 10, 2013. Comments received after this Web-based ADAMS Search.’’ For In May 2009, the NRC staff issued date will be considered if it is practical problems with ADAMS, please contact NUREG–1910, ‘‘Generic Environmental to do so, but the NRC is able to assure the NRC’s Public Document Room (PDR) Impact Statement for In-Situ Leach consideration only for comments reference staff at 1–800–397–4209, 301– Uranium Milling Facilities’’ (herein received on or before this date. 415–4737, or by email to pdr.resource@ referred to as the GEIS). In the GEIS, ADDRESSES: You may access information nrc.gov. The ADAMS accession number NRC assessed the potential and comment submissions related to for each document referenced in this environmental impacts from this document, which the NRC notice is provided below. The ‘‘Draft construction, operation, aquifer possesses and are publically available, SEIS (NUREG–1910, Supplement 4) is restoration, and decommissioning of an by searching on http://www.regulations. available in ADAMS under Accession in-situ leach uranium milling facility gov under Docket ID NRC–2012–0277. Numbers ML12312A039 (Volume 1) and (also known as an ISR facility) located You may submit comments by any of ML12312A040 (Volume 2). NUREG– in four specific geographic regions of the following methods: 1910 is available in ADAMS under the western United States. The proposed • Federal Rulemaking Web site: Go to Accession Numbers ML091480244 Dewey-Burdock ISR Project is located http://www.regulations.gov and search (Volume 1) and ML091480188 (Volume within the Nebraska-South Dakota- for Docket ID NRC–2012–0277. Address 2). Wyoming Uranium Milling Region questions about NRC dockets to Carol • NRC’s PDR: You may examine and identified in the GEIS. This Draft SEIS Gallagher; telephone: 301–492–3668; purchase copies of public documents at supplements the GEIS and incorporates email: [email protected]. the NRC’s PDR, Room O1–F21, One by reference relevant portions from the • Mail comments to: Cindy Bladey, White Flint North, 11555 Rockville GEIS, and uses site-specific information Chief, Rules, Announcements, and Pike, Rockville, Maryland 20852. from the applicant’s license application

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and independent sources to fulfill the quality; geology, minerals and soils; NUCLEAR REGULATORY requirements in 10 CFR 51.20(b)(8). water resources; ecological resources; COMMISSION The Draft SEIS for the proposed socioeconomics; environmental justice; Dewey-Burdock Project may also be noise; traffic and transportation; public [Docket Nos. 50–361–CAL, 50–362–CAL; accessed on the internet at http://www. and occupational health and safety; and ASLBP No. 13–924–01–CAL–BD01] nrc.gov/reading-rm/doc-collections/ waste management. Additionally, the nuregs/staff/ by selecting ‘‘NUREG– Draft SEIS analyzes and compares the Southern California Edison Company; 1910’’ and then ‘‘Supplement 4,’’ or on benefits and costs of the proposed Establishment of Atomic Safety and the NRC’s Dewey-Burdock ISR Project action. Licensing Board Web page at http://www.nrc.gov/ In doing so, the NRC staff evaluated materials/uranium-recovery/license- site-specific data and information on the Pursuant to delegation by the apps/dewey-burdock.html. Dewey-Burdock ISR Project to Commission, see 37 FR 28,710 (Dec. 29, Additionally, a copy of the Draft SEIS determine if Powertech’s proposed 1972), and the Commission’s will be available at the following public activities and the site characteristics regulations, see 10 CFR 2.104, 2.105, libraries: were consistent with those evaluated in 2.300, 2.309, 2.313, 2.318, and 2.321, Edgemont Public Library, 412 2nd the GEIS. NRC then determined which notice is hereby given that an Atomic Avenue, Edgemont, SD 57735. relevant sections of, and impact Safety and Licensing Board (Board) is Rapid City Public Library, 610 Quincy conclusions in, the GEIS could be being established to preside over the Street, Rapid City, SD 57701–3630. incorporated by reference. The NRC following proceeding: Custer County Library, 447 Crook Street, staff also determined if additional data Custer, SD 57730. or analysis was needed to assess the Southern California Edison Company potential environmental impacts for a Weston County Library, 23 West Main (San Onofre Nuclear Generating Station, Street, Newcastle, WY 82701. specific environmental resource area. The NRC documented its assessments Units 2 and 3) Hot Springs Public Library, 145 N. and conclusions in the Draft SEIS. Chicago Street, Hot Springs, SD This proceeding involves a March 27, 57747. In addition to the action proposed by 2012 NRC Confirmatory Action Letter Powertech, the NRC staff addressed the (CAL) issued to Southern California Oglala Lakota College Library, P.O. Box no-action alternative, as well as 310, Kyle, SD 57752. Edison Company (SCE), and the NRC alternative wastewater disposal options Commission’s November 8, 2012 The Draft SEIS was prepared in under the proposed action. All the decision in CLI–12–20 referring to the response to an application submitted by alternatives were analyzed in detail. The Atomic Safety and Licensing Board Powertech on August 10, 2009. The no-action alternative serves as a baseline applicant proposes the construction, Panel that portion of Friends of the for comparing the potential Earth’s June 18, 2012 intervention operation, aquifer restoration, and environmental impacts of the proposed petition challenging the CAL. In decommissioning of an ISR facility. action. The Draft SEIS was prepared by the particular, the Commission directs (CLI– After weighing the impacts of the 12–20, slip op. at 5) that a duly NRC and its contractor, the Center for proposed action and comparing the Nuclear Waste Regulatory Analyses, in constituted Board ‘‘consider whether: alternatives, the NRC staff, in (1) the [CAL] issued to SCE constitutes cooperation with the U.S. Bureau of accordance with 10 CFR 51.71(f), sets a de facto license amendment that Land Management (BLM). The NRC has forth its preliminary recommendation would be subject to a hearing prepared this Draft SEIS in compliance regarding the proposed action. Unless opportunity under Section 189a [of the with NEPA and the NRC’s regulations safety issues mandate otherwise, the Atomic Energy Act]; and, if so, (2) for implementing NEPA (10 CFR Part NRC staff preliminarily recommends 51). that the proposed action be approved whether the petition meets the standing The proposed Dewey-Burdock ISR (i.e., the NRC should issue a source and contention admissibility Project will be located approximately 21 material license for the proposed requirements of 10 CFR § 2.309.’’ kilometers (13 miles) north-northwest of Dewey-Burdock ISR Project). The Board is comprised of the Edgemont, South Dakota, in northern This Draft SEIS is being issued for following administrative judges: Fall River and southern Custer Counties. public comment. The public comment The proposed facility would encompass E. Roy Hawkens, Chair, Atomic Safety period on the Draft SEIS begins with approximately 4,282 hectares (10,580 and Licensing Board Panel, U.S. Nuclear publication of this notice and continues acres), which consists of two contiguous Regulatory Commission, Washington, until January 10, 2013. Written mining units: the Burdock Unit and the DC 20555–0001; comments should be submitted as Dewey Unit. Dr. Anthony J. Baratta, Atomic Safety described in the ADDRESSES section of The Draft SEIS is being issued as part this document. The NRC will consider and Licensing Board Panel, U.S. Nuclear of the NRC’s process to decide whether comments received or postmarked after Regulatory Commission, Washington, to issue a license to Powertech pursuant that date to the extent practical. DC 20555–0001l to 10 CFR Part 40. In this Draft SEIS, the Dr. Gary S. Arnold, Atomic Safety and NRC staff has assessed the potential Dated at Rockville, Maryland, this 8th day Licensing Board Panel, U.S. Nuclear environmental impacts from the of November 2012. Regulatory Commission, Washington, construction, operation, aquifer For the Nuclear Regulatory Commission. DC 20555–0001. restoration, and decommissioning of the Aby Mohseni, proposed Dewey-Burdock Project. The Deputy Director, Environmental Protection All correspondence, documents, and NRC staff assessed the impacts of the and Performance Assessment Directorate, other materials shall be filed in proposed action and its alternatives on and Environmental Protection, Office of accordance with the NRC E-Filing rule land use; historical and cultural Federal and State Materials. (10 CFR 2.302), which the NRC resources; visual and scenic resources; [FR Doc. 2012–28425 Filed 11–21–12; 11:15 am] promulgated in August 2007 (72 FR climatology, meteorology and air BILLING CODE 7590–01–P 49,139).

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Issued at Rockville, Maryland, this 19th Week of December 31, 2012—Tentative December 6, 2012 Board of Directors day of November 2012. There are no meetings scheduled for meeting has been cancelled. E. Roy Hawkens, Contact Person for Information: the week of December 31, 2012. Chief Administrative Judge, Atomic Safety Information on the hearing cancellation and Licensing Board Panel. * * * * * may be obtained from Connie M. Downs [FR Doc. 2012–28562 Filed 11–23–12; 8:45 am] *The schedule for Commission at (202) 336–8438, or via email at meetings is subject to change on short BILLING CODE 7590–01–P [email protected]. notice. To verify the status of meetings, call (recording)—301–415–1292. Dated: November 21, 2012. Connie M. Downs, NUCLEAR REGULATORY Contact person for more information: COMMISSION Rochelle Bavol, 301–415–1651. OPIC Corporate Secretary. * * * * * [FR Doc. 2012–28754 Filed 11–21–12; 4:15 pm] BILLING CODE 3210–01–P [NRC–2012–0002] The NRC Commission Meeting Schedule can be found on the Internet Sunshine Federal Register Notice at: http://www.nrc.gov/public-involve/ public-meetings/schedule.html. POSTAL REGULATORY COMMISSION AGENCY HOLDING THE MEETINGS: Nuclear * * * * * [Docket No. MC2013–20 and CP2013–19; Regulatory Commission The NRC provides reasonable Order No.1546] DATES: Weeks of November 26, accommodation to individuals with December 3, 10, 17, 24, 31, 2012 disabilities where appropriate. If you New Postal Product need a reasonable accommodation to PLACE: Commissioners’ Conference AGENCY: Postal Regulatory Commission. participate in these public meetings, or Room, 11555 Rockville Pike, Rockville, ACTION: Notice. Maryland need this meeting notice or the transcript or other information from the SUMMARY: The Commission is noticing a STATUS: Public and Closed. public meetings in another format (e.g. recent Postal Service filing concerning Week of November 26, 2012 braille, large print), please notify Bill the addition of First-Class Package Dosch, Chief, Work Life and Benefits Contract 30 to the competitive product Tuesday, November 27, 2012 Branch, at 301–415–6200, TDD: 301– list. This notice informs the public of 9:00 a.m. Briefing on Operator 415–2100, or by email at the filing, invites public comment, and Licensing Program (Public Meeting) [email protected]. Determinations takes other administrative steps. (Contact: Jack McHale, 301–415– on requests for reasonable DATES: Comments are due: November 3254). accommodation will be made on a case- 28, 2012. by-case basis. This meeting will be webcast live at ADDRESSES: Submit comments the Web address—www.nrc.gov. * * * * * electronically via the Commission’s This notice is distributed Filing Online system at http:// Wednesday, November 28, 2012 electronically to subscribers. If you no www.prc.gov. Those who cannot submit 9:00 a.m. Discussion of Management longer wish to receive it, or would like comments electronically should contact and Personnel Issues (Closed—Ex. 2 to be added to the distribution, please the person identified in the FOR FURTHER & 6). contact the Office of the Secretary, INFORMATION CONTACT section by 2:00 p.m. Discussion of Management Washington, DC 20555 (301–415–1969), telephone for advice on filing and Personnel Issues (Closed—Ex. or send an email to alternatives. [email protected]. 1, 2 & 6). FOR FURTHER INFORMATION CONTACT: Dated: November 20, 2012. Thursday, November 29, 2012 Stephen L. Sharfman, General Counsel, Rochelle C. Bavol, at 202–789–6820. 2:30 p.m. Briefing on Security issues Policy Coordinator, Office of the Secretary. SUPPLEMENTARY INFORMATION: (Closed—Ex. 1). [FR Doc. 2012–28715 Filed 11–21–12; 4:15 pm] Table of Contents Week of December 3, 2012—Tentative BILLING CODE 7590–01–P Thursday, December 6, 2012 I. Introduction II. Notice of Filing 9:30 a.m. Meeting with the Advisory III. Ordering Paragraphs Committee on Reactor Safeguards OVERSEAS PRIVATE INVESTMENT (ACRS) (Public Meeting) (Contact: CORPORATION I. Introduction Ed Hackett, 301–415–7360). Sunshine Act Meeting Cancellation In accordance with 39 U.S.C. 3642 This meeting will be webcast live at Notice—OPIC November 28, 2012 and 39 CFR 3020.30 et seq., the Postal the Web address—www.nrc.gov. Public Hearing Service filed a formal request and associated supporting information to Week of December 10, 2012—Tentative OPIC’s Sunshine Act notice of its add First-Class Package Service Contract There are no meetings scheduled for Public Hearing in Conjunction with 30 to the competitive product list.1 The the week of December 10, 2012. each Board meeting was published in Postal Service asserts that First-Class the Federal Register (Volume 77, Package Service Contract 30 is a Week of December 17, 2012—Tentative Number 221, Pages 68162 and 68163) on competitive product ‘‘not of general There are no meetings scheduled for November 15, 2012. No requests were the week of December 17, 2012. received to provide testimony or submit 1 Request of the United States Postal Service to written statements for the record; Add First-Class Package Service Contract 27 to the Week of December 24, 2012—Tentative Competitive Product List and Notice of Filing therefore, OPIC’s public hearing (Under Seal) of Unredacted Governors’ Decision, There are no meetings scheduled for scheduled for 2 p.m., November 28, Contract, and Supporting Data, November 16, 2012 the week of December 24, 2012. 2012 in conjunction with OPIC’s (Request).

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applicability’’ within the meaning of 39 remain confidential. Id. at 3. This Contract 28 to the competitive product U.S.C. 3632(b)(3). Id. at 1. The Request information includes the price structure, list. This notice informs the public of has been assigned Docket No. MC2013– underlying costs and assumptions, the filing, invites public comment, and 20. pricing formulas, information relevant takes other administrative steps. The Postal Service to the customer’s mailing profile, and DATES: Comments are due: November contemporaneously filed a redacted cost coverage projections. Id. The Postal 28, 2012. contract related to the proposed new Service asks the Commission to protect ADDRESSES: Submit comments product under 39 U.S.C. 3632(b)(3) and customer-identifying information from electronically via the Commission’s 39 CFR 3015.5. Id. Attachment B. The public disclosure indefinitely. Id. at 7. Filing Online system at http:// instant contract has been assigned II. Notice of Filings www.prc.gov. Those who cannot submit Docket No. CP2013–19. comments electronically should contact Request. To support its Request, the The Commission establishes Docket the person identified in the FOR FURTHER Postal Service filed six attachments as Nos. MC2013–20 and CP2013–19 to INFORMATION CONTACT section by follows: consider the Request pertaining to the telephone for advice on filing • Attachment A—a redacted copy of proposed First-Class Package Service alternatives. Governors’ Decision No. 11–6, Contract 30 product and the related authorizing the new product; contract, respectively. FOR FURTHER INFORMATION CONTACT: • Attachment B—a redacted copy of Interested persons may submit Stephen L. Sharfman, General Counsel, the contract; comments on whether the Postal at 202–789–6820. • Attachment C—proposed changes Service’s filings in the captioned SUPPLEMENTARY INFORMATION: to the Mail Classification Schedule dockets are consistent with the policies competitive product list with the of 39 U.S.C. 3632, 3633, or 3642, 39 CFR Table of Contents addition underlined; 3015.5, and 39 CFR part 3020, subpart I. Introduction • Attachment D—a Statement of B. Comments are due no later than Supporting Justification as required by II. Notice of Filing November 28, 2012. The public portions III. Ordering Paragraphs 39 CFR 3020.32; of these filings can be accessed via the • Attachment E—a certification of Commission’s Web site (http:// I. Introduction compliance with 39 U.S.C. 3633(a); and www.prc.gov). • Attachment F—an application for The Commission appoints Claude B. In accordance with 39 U.S.C. 3642 non-public treatment of materials to Lawrence to serve as Public and 39 CFR 3020.30 et seq., the Postal maintain redacted portions of the Representative in these dockets. Service filed a formal request and contract and related financial associated supporting information to information under seal. III. Ordering Paragraphs add First-Class Package Service Contract In the Statement of Supporting It is ordered: 28 to the competitive product list.1 The Justification, Dennis R. Nicoski, 1. The Commission establishes Docket Postal Service asserts that First-Class Manager, Field Sales Strategy and Nos. MC2013–20 and CP2013–19 to Package Service Contract 28 is a Contracts, asserts that the contract will consider the matters raised in each competitive product ‘‘not of general cover its attributable costs, make a docket. applicability’’ within the meaning of 39 positive contribution to covering 2. Pursuant to 39 U.S.C. 505, Claude U.S.C. 3632(b)(3). Id. at 1. The Request institutional costs, and increase B. Lawrence is appointed to serve as an has been assigned Docket No. MC2013– contribution toward the requisite 5.5 officer of the Commission (Public 18. percent of the Postal Service’s total Representative) to represent the The Postal Service institutional costs. Id. Attachment D at interests of the general public in these contemporaneously filed a redacted 1. Mr. Nicoski contends that there will proceedings. contract related to the proposed new be no issue of market dominant 3. Comments by interested persons in product under 39 U.S.C. 3632(b)(3) and products subsidizing competitive these proceedings are due no later than 39 CFR 3015.5. Id. Attachment B. The products as a result of this contract. Id. November 28, 2012. instant contract has been assigned Related contract. The Postal Service 4. The Secretary shall arrange for Docket No. CP2013–17. included a redacted version of the publication of this Order in the Federal Request. To support its Request, the related contract with the Request. Id. Register. Postal Service filed six attachments as Attachment B. The contract is By the Commission. follows: • scheduled to become effective on the Shoshana M. Grove, Attachment A—a redacted copy of day that the Commission issues all Governors’ Decision No. 11–6, Secretary. regulatory approvals. Id. at 2. The authorizing the new product; contract will expire 3 years from the [FR Doc. 2012–28461 Filed 11–23–12; 8:45 am] • Attachment B—a redacted copy of effective date unless, among other BILLING CODE 7710–FW–P the contract; things, either party terminates the • Attachment C—proposed changes agreement upon 30 days’ written notice POSTAL REGULATORY COMMISSION to the Mail Classification Schedule to the other party. Id. The Postal Service competitive product list with the represents that the contract is consistent [Docket No. MC2013–18 and CP2013–17; addition underlined; with 39 U.S.C. 3633(a). Id. Attachment Order No. 1544] • Attachment D—a Statement of D. Supporting Justification as required by The Postal Service filed much of the New Postal Product 39 CFR 3020.32; supporting materials, including the AGENCY: Postal Regulatory Commission. 1 related contract, under seal. Id. ACTION: Notice. Request of the United States Postal Service to Attachment F. It maintains that the Add First-Class Package Service Contract 27 to the SUMMARY: Competitive Product List and Notice of Filing redacted portions of the contract, The Commission is noticing a (Under Seal) of Unredacted Governors’ Decision, customer-identifying information, and recent Postal Service filing concerning Contract, and Supporting Data, November 16, 2012 related financial information, should the addition of First-Class Package (Request).

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• Attachment E—a certification of Commission’s Web site (http:// I. Introduction compliance with 39 U.S.C. 3633(a); and www.prc.gov). In accordance with 39 U.S.C. 3642 • Attachment F—an application for The Commission appoints Pamela A. and 39 CFR 3020.30 et seq., the Postal non-public treatment of materials to Thompson to serve as Public Service filed a formal request and maintain redacted portions of the Representative in these dockets. associated supporting information to contract and related financial add First-Class Package Service Contract information under seal. III. Ordering Paragraphs 29 to the competitive product list.1 The In the Statement of Supporting It is ordered: Postal Service asserts that First-Class Justification, Dennis R. Nicoski, 1. The Commission establishes Docket Package Service Contract 29 is a Manager, Field Sales Strategy and Nos. MC2013–18 and CP2013–17 to competitive product ‘‘not of general Contracts, asserts that the contract will consider the matters raised in each applicability’’ within the meaning of 39 cover its attributable costs, make a docket. U.S.C. 3632(b)(3). Id. at 1. The Request positive contribution to covering 2. Pursuant to 39 U.S.C. 505, Pamela has been assigned Docket No. MC2013– institutional costs, and increase A. Thompson is appointed to serve as 19. contribution toward the requisite 5.5 an officer of the Commission (Public The Postal Service percent of the Postal Service’s total Representative) to represent the contemporaneously filed a redacted institutional costs. Id. Attachment D at interests of the general public in these contract related to the proposed new 1. Mr. Nicoski contends that there will proceedings. product under 39 U.S.C. 3632(b)(3) and be no issue of market dominant 3. Comments by interested persons in 39 CFR 3015.5. Id. Attachment B. The products subsidizing competitive these proceedings are due no later than instant contract has been assigned products as a result of this contract. Id. November 28, 2012. Docket No. CP2013–18. Related contract. The Postal Service 4. The Secretary shall arrange for included a redacted version of the Request. To support its Request, the publication of this Order in the Federal Postal Service filed six attachments as related contract with the Request. Id. Register. Attachment B. The contract is follows: • scheduled to become effective on the By the Commission. Attachment A—a redacted copy of day that the Commission issues all Shoshana M. Grove, Governors’ Decision No. 11–6, regulatory approvals. Id. at 2. The Secretary. authorizing the new product; • contract will expire 3 years from the [FR Doc. 2012–28459 Filed 11–23–12; 8:45 am] Attachment B—a redacted copy of effective date unless, among other BILLING CODE 7710–FW–P the contract; • things, either party terminates the Attachment C—proposed changes agreement upon 30 days’ written notice to the Mail Classification Schedule to the other party. Id. The Postal Service POSTAL REGULATORY COMMISSION competitive product list with the represents that the contract is consistent addition underlined; • with 39 U.S.C. 3633(a). Id. Attachment [Docket No. MC2013–19 and CP2013–18; Attachment D—a Statement of D. Order No. 1545] Supporting Justification as required by The Postal Service filed much of the 39 CFR 3020.32; New Postal Product supporting materials, including the • Attachment E—a certification of related contract, under seal. Id. AGENCY: Postal Regulatory Commission. compliance with 39 U.S.C. 3633(a); and • Attachment F—an application for Attachment F. It maintains that the ACTION: Notice. redacted portions of the contract, non-public treatment of materials to customer-identifying information, and SUMMARY: The Commission is noticing a maintain redacted portions of the related financial information, should recent Postal Service filing concerning contract and related financial remain confidential. Id. at 3. This the addition of First-Class Package information under seal. information includes the price structure, Contract 29 to the competitive product In the Statement of Supporting underlying costs and assumptions, list. This notice informs the public of Justification, Dennis R. Nicoski, pricing formulas, information relevant the filing, invites public comment, and Manager, Field Sales Strategy and to the customer’s mailing profile, and takes other administrative steps. Contracts, asserts that the contract will cover its attributable costs, make a cost coverage projections. Id. The Postal DATES: Comments are due: November Service asks the Commission to protect 28, 2012. positive contribution to covering customer-identifying information from institutional costs, and increase ADDRESSES: Submit comments public disclosure indefinitely. Id. at 7. contribution toward the requisite 5.5 electronically via the Commission’s percent of the Postal Service’s total II. Notice of Filings Filing Online system at http:// institutional costs. Id. Attachment D at The Commission establishes Docket www.prc.gov. Those who cannot submit 1. Mr. Nicoski contends that there will Nos. MC2013–18 and CP2013–17 to comments electronically should contact be no issue of market dominant consider the Request pertaining to the the person identified in the FOR FURTHER products subsidizing competitive proposed First-Class Package Service INFORMATION CONTACT section by products as a result of this contract. Id. Contract 28 product and the related telephone for advice on filing Related contract. The Postal Service contract, respectively. alternatives. included a redacted version of the Interested persons may submit FOR FURTHER INFORMATION CONTACT: related contract with the Request. Id. comments on whether the Postal Stephen L. Sharfman, General Counsel, Attachment B. The contract is Service’s filings in the captioned at 202–789–6820. scheduled to become effective on the dockets are consistent with the policies SUPPLEMENTARY INFORMATION: of 39 U.S.C. 3632, 3633, or 3642, 39 CFR 1 Request of the United States Postal Service to 3015.5, and 39 CFR part 3020, subpart Table of Contents Add First-Class Package Service Contract 27 to the Competitive Product List and Notice of Filing B. Comments are due no later than I. Introduction (Under Seal) of Unredacted Governors’ Decision, November 28, 2012. The public portions II. Notice of Filing Contract, and Supporting Data, November 16, 2012 of these filings can be accessed via the III. Ordering Paragraphs (Request).

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day that the Commission issues all By the Commission. 39 CFR 3015.5. Id. Attachment B. The regulatory approvals. Id. at 2. The Shoshana M. Grove, instant contract has been assigned contract will expire 3 years from the Secretary. Docket No. CP2013–16. effective date unless, among other [FR Doc. 2012–28460 Filed 11–23–12; 8:45 am] Request. To support its Request, the things, either party terminates the BILLING CODE 7710–FW–P Postal Service filed six attachments as agreement upon 30 days’ written notice follows: to the other party. Id. The Postal Service • Attachment A—a redacted copy of represents that the contract is consistent POSTAL REGULATORY COMMISSION Governors’ Decision No. 11–6, with 39 U.S.C. 3633(a). Id. Attachment authorizing the new product; D. [Docket No. MC2013–17 and CP2013–16; • Order No. 1543] Attachment B—a redacted copy of The Postal Service filed much of the the contract; supporting materials, including the New Postal Product • Attachment C—proposed changes related contract, under seal. Id. to the Mail Classification Schedule Attachment F. It maintains that the AGENCY: Postal Regulatory Commission. competitive product list with the redacted portions of the contract, ACTION: Notice. addition underlined; customer-identifying information, and • Attachment D—a Statement of SUMMARY: related financial information, should The Commission is noticing a Supporting Justification as required by remain confidential. Id. at 3. This recent Postal Service filing concerning 39 CFR 3020.32; information includes the price structure, the addition of First-Class Package • Attachment E—a certification of underlying costs and assumptions, Contract 27 to the competitive product compliance with 39 U.S.C. 3633(a); and pricing formulas, information relevant list. This notice informs the public of • Attachment F—an application for to the customer’s mailing profile, and the filing, invites public comment, and non-public treatment of materials to cost coverage projections. Id. The Postal takes other administrative steps. maintain redacted portions of the Service asks the Commission to protect DATES: Comments are due: November contract and related financial customer-identifying information from 28, 2012. information under seal. public disclosure indefinitely. Id. at 7. ADDRESSES: Submit comments In the Statement of Supporting electronically via the Commission’s Justification, Dennis R. Nicoski, II. Notice of Filings Filing Online system at http:// Manager, Field Sales Strategy and The Commission establishes Docket www.prc.gov. Those who cannot submit Contracts, asserts that the contract will Nos. MC2013–19 and CP2013–18 to comments electronically should contact cover its attributable costs, make a consider the Request pertaining to the the person identified in the FOR FURTHER positive contribution to covering proposed First-Class Package Service INFORMATION CONTACT section by institutional costs, and increase Contract 29 product and the related telephone for advice on filing contribution toward the requisite 5.5 contract, respectively. alternatives. percent of the Postal Service’s total Interested persons may submit FOR FURTHER INFORMATION CONTACT: institutional costs. Id. Attachment D at comments on whether the Postal Stephen L. Sharfman, General Counsel, 1. Mr. Nicoski contends that there will Service’s filings in the captioned at 202–789–6820. be no issue of market dominant products subsidizing competitive dockets are consistent with the policies SUPPLEMENTARY INFORMATION: of 39 U.S.C. 3632, 3633, or 3642, 39 CFR products as a result of this contract. Id. 3015.5, and 39 CFR part 3020, subpart Table of Contents Related contract. The Postal Service B. Comments are due no later than I. Introduction included a redacted version of the November 28, 2012. The public portions II. Notice of Filing related contract with the Request. Id. of these filings can be accessed via the III. Ordering Paragraphs Attachment B. The contract is Commission’s Web site (http:// scheduled to become effective on the I. Introduction www.prc.gov). day that the Commission issues all The Commission appoints Claude B. In accordance with 39 U.S.C. 3642 regulatory approvals. Id. at 2. The Lawrence to serve as Public and 39 CFR 3020.30 et seq., the Postal contract will expire 3 years from the Representative in these dockets. Service filed a formal request and effective date unless, among other associated supporting information to things, either party terminates the III. Ordering Paragraphs add First-Class Package Service Contract agreement upon 30 days’ written notice 1 It is ordered: 27 to the competitive product list. The to the other party. Id. The Postal Service Postal Service asserts that First-Class represents that the contract is consistent 1. The Commission establishes Docket Package Service Contract 27 is a with 39 U.S.C. 3633(a). Id. Attachment Nos. MC2013–19 and CP2013–18 to competitive product ‘‘not of general D. consider the matters raised in each applicability’’ within the meaning of 39 The Postal Service filed much of the docket. U.S.C. 3632(b)(3). Id. at 1. The Request supporting materials, including the 2. Pursuant to 39 U.S.C. 505, Claude has been assigned Docket No. MC2013– related contract, under seal. Id. B. Lawrence is appointed to serve as an 17. Attachment F. It maintains that the officer of the Commission (Public The Postal Service redacted portions of the contract, Representative) to represent the contemporaneously filed a redacted customer-identifying information, and interests of the general public in these contract related to the proposed new related financial information, should proceedings. product under 39 U.S.C. 3632(b)(3) and remain confidential. Id. at 3. This 3. Comments by interested persons in information includes the price structure, these proceedings are due no later than 1 Request of the United States Postal Service to underlying costs and assumptions, November 28, 2012. Add First-Class Package Service Contract 27 to the pricing formulas, information relevant Competitive Product List and Notice of Filing 4. The Secretary shall arrange for (Under Seal) of Unredacted Governors’ Decision, to the customer’s mailing profile, and publication of this Order in the Federal Contract, and Supporting Data, November 16, 2012 cost coverage projections. Id. The Postal Register. (Request). Service asks the Commission to protect

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customer-identifying information from (‘‘Commission’’) is soliciting comments Education and Advocacy, public disclosure indefinitely. Id. at 7. on the collection of information Washington, DC 20549–0213. summarized below. The Commission II. Notice of Filings Extension: plans to submit this existing collection The Commission establishes Docket of information to the Office of Form F–7, OMB Control No. 3235– Nos. MC2013–17 and CP2013–16 to Management and Budget for extension 0383, SEC File No. 270–331. consider the Request pertaining to the and approval. Notice is hereby given that, pursuant proposed First-Class Package Service Industry Guides are used by to the Paperwork Reduction Act of 1995 Contract 27 product and the related registrants in certain industries as (44 U.S.C. 3501 et seq.), the Securities contract, respectively. disclosure guidelines to be followed in and Exchange Commission Interested persons may submit presenting information to investors in (‘‘Commission’’) is soliciting comments comments on whether the Postal Securities Act (15 U.S.C. 77a et seq.) on the collection of information Service’s filings in the captioned and Exchange Act (15 U.S.C. 78a et seq.) summarized below. The Commission dockets are consistent with the policies registration statements and certain other plans to submit this existing collection of 39 U.S.C. 3632, 3633, or 3642, 39 CFR Exchange Act filings. The paperwork of information to the Office of 3015.5, and 39 CFR part 3020, subpart burden from the Industry Guides is Management and Budget for extension B. Comments are due no later than imposed through the forms that are and approval. November 28, 2012. The public portions subject to the disclosure requirements in of these filings can be accessed via the the Industry Guides and is reflected in Form F–7 (17 CFR 239.37) is a Commission’s Web site (http:// the analysis of these documents. To registration statement under the www.prc.gov). avoid a Paperwork Reduction Act Securities Act of 1933 (15 U.S.C. 77a et The Commission appoints Pamela A. inventory reflecting duplicative seq.) used to register securities that are Thompson to serve as Public burdens, for administrative convenience offered for cash upon the exercise of Representative in these dockets. the Commission estimates the total rights granted to a registrant’s existing III. Ordering Paragraphs annual burden imposed by the Industry security holders to purchase or Guides to be one hour. subscribe such securities. The It is ordered: Written comments are invited on: (a) information collected is intended to 1. The Commission establishes Docket Whether this proposed collection of ensure that the information required to Nos. MC2013–17 and CP2013–16 to information is necessary for the proper be filed by the Commission permits consider the matters raised in each performance of the functions of the verification of compliance with docket. agency, including whether the securities law requirements and assures 2. Pursuant to 39 U.S.C. 505, Pamela information will have practical utility; the public availability of such A. Thompson is appointed to serve as (b) the accuracy of the agency’s estimate information. Form F–7 takes an officer of the Commission (Public of the burden imposed by the collection Representative) to represent the approximately 4 hours per response to of information; (c) ways to enhance the prepare and is filed by approximately 5 interests of the general public in these quality, utility, and clarity of the proceedings. respondents. We estimate that 25% of 4 information collected; and (d) ways to hours per response (one hour) is 3. Comments by interested persons in minimize the burden of the collection of these proceedings are due no later than prepared by the company for a total information on respondents, including annual reporting burden of 5 hours (one November 28, 2012. through the use of automated collection hour per response × 5 responses). 4. The Secretary shall arrange for techniques or other forms of information publication of this Order in the Federal technology. Consideration will be given Written comments are invited on: (a) Register. to comments and suggestions submitted Whether this proposed collection of By the Commission. in writing within 60 days of this information is necessary for the proper Shoshana M. Grove, publication. performance of the functions of the Secretary. Please direct your written comments agency, including whether the [FR Doc. 2012–28458 Filed 11–23–12; 8:45 am] to Thomas Bayer, Director/Chief information will have practical utility; BILLING CODE 7710–FW–P Information Officer, Securities and (b) the accuracy of the agency’s estimate Exchange Commission, c/o Remi Pavlik- of the burden imposed by the collection Simon, 6432 General Green Way, of information; (c) ways to enhance the Alexandria, Virginia 22312; or send an quality, utility, and clarity of the SECURITIES AND EXCHANGE _ COMMISSION email to: PRA [email protected]. information collected; and (d) ways to Dated: November 19, 2012. minimize the burden of the collection of Proposed Collection; Comment Kevin M. O’Neill, information on respondents, including Request Deputy Secretary. through the use of automated collection techniques or other forms of information Upon Written Request, Copies Available [FR Doc. 2012–28529 Filed 11–23–12; 8:45 am] technology. Consideration will be given From: Securities and Exchange BILLING CODE 8011–01–P Commission, Office of Investor to comments and suggestions submitted Education and Advocacy, in writing within 60 days of this Washington, DC 20549–0213. SECURITIES AND EXCHANGE publication. Extension: COMMISSION Please direct your written comment to Industry Guides, OMB Control No. Thomas Bayer, Director/Chief Proposed Collection; Comment 3235–0069, SEC File No. 270–069. Request Information Officer, Securities and Notice is hereby given that, pursuant Exchange Commission, c/o Remi Pavlik- to the Paperwork Reduction Act of 1995 Upon Written Request Copies Available Simon, 6432 General Green Way, (44 U.S.C. 3501 et seq.), the Securities From: Securities and Exchange Alexandria, Virginia 22312; or send an and Exchange Commission Commission, Office of Investor email to: [email protected].

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Dated: November 19, 2012. technology. Consideration will be given agency, including whether the Kevin M. O’Neill, to comments and suggestions submitted information will have practical utility; Deputy Secretary. in writing within 60 days of this (b) the accuracy of the agency’s estimate [FR Doc. 2012–28527 Filed 11–23–12; 8:45 am] publication. of the burden imposed by the collection BILLING CODE 8011–01–P Please direct your written comment to of information; (c) ways to enhance the Thomas Bayer, Director/Chief quality, utility, and clarity of the Information Officer, Securities and information collected; and (d) ways to SECURITIES AND EXCHANGE Exchange Commission, c/o Remi Pavlik- minimize the burden of the collection of COMMISSION Simon, 6432 General Green Way, information on respondents, including Alexandria, Virginia 22312; or send an through the use of automated collection Proposed Collection; Comment email to: [email protected]. techniques or other forms of information Request Dated: November 19, 2012. technology. Consideration will be given to comments and suggestions submitted Upon Written Request Copies Available Kevin M. O’Neill, in writing within 60 days of this From: Securities and Exchange Deputy Secretary. publication. Commission, Office of Investor [FR Doc. 2012–28534 Filed 11–23–12; 8:45 am] Please direct your written comment to Education and Advocacy, BILLING CODE 8011–01–P Thomas Bayer, Director/Chief Washington, DC 20549–0213. Information Officer, Securities and Extension: Exchange Commission, c/o Remi Pavlik- Rule 14f–1. OMB Control No. 3235– SECURITIES AND EXCHANGE Simon, 6432 General Green Way, 0108, SEC File No. 270–127. COMMISSION Alexandria, Virginia 22312; or send an Notice is hereby given that, pursuant email to: [email protected]. to the Paperwork Reduction Act of 1995 Proposed Collection; Comment (44 U.S.C. 3501 et seq.), the Securities Request Dated: November 19, 2012. and Exchange Commission Upon Written Request Copies Available Kevin M. O’Neill, (‘‘Commission’’) is soliciting comments From: Securities and Exchange Deputy Secretary. on the collection of information Commission, Office of Investor [FR Doc. 2012–28528 Filed 11–23–12; 8:45 am] summarized below. The Commission Education and Advocacy, BILLING CODE 8011–01–P plans to submit this existing collection Washington, DC 20549–0213. of information to the Office of Extension: Management and Budget for extension Form F–8, OMB Control No. 3235– SECURITIES AND EXCHANGE and approval. 0378, SEC File No. 270–332. COMMISSION Under Exchange Act Rule 14f–1 (17 Notice is hereby given that, pursuant CFR 240.14f–1), if a person or persons Proposed Collection; Comment to the Paperwork Reduction Act of 1995 Request have acquired securities of an issuer in (44 U.S.C. 3501 et seq.), the Securities a transaction subject to Sections 13(d) or and Exchange Commission Upon Written Request Copies Available 14(d) of the Exchange Act, and changes (‘‘Commission’’) is soliciting comments From: Securities and Exchange a majority of the directors of the issuer on the collection of information Commission, Office of Investor otherwise than at a meeting of security summarized below. The Commission Education and Advocacy, holders, then the issuer must file with plans to submit this existing collection Washington, DC 20549–0213. the Commission and transmit to security of information to the Office of Extension: holders information related to the Management and Budget for extension Rule 12d1–3, OMB Control No. 3235– change in directors within 10 days prior and approval. 0109, SEC File No. 270–116. to the date the new majority takes office Form F–8 (17 CFR 239.38) may be Notice is hereby given that, pursuant as directors. The information filed used to register securities of certain to the Paperwork Reduction Act of 1995 under Rule 14f–1 must be filed with the Canadian issuers under the Securities (44 U.S.C. 3501 et seq.), the Securities Commission and is publicly available. Act of 1933 (15 U.S.C. 77a et seq.) that and Exchange Commission We estimate that it takes approximately will be used in an exchange offer or (‘‘Commission’’) is soliciting comments 18 burden hours to provide the business combination. The information on the collection of information information required under Rule 14f–1 collected is intended to ensure that the summarized below. The Commission and that the information is filed by information required to be filed by the plans to submit this existing collection approximately 172 respondents for a Commission permits verification of of information to the Office of total annual reporting burden of 3,096 compliance with securities law Management and Budget for extension hours. requirements and assures the public and approval. Written comments are invited on: (a) availability of such information. We Exchange Act Rule 12d1–3 (17 CFR Whether this proposed collection of estimate that Form F–8 takes 240.12d1–3) requires a certification that information is necessary for the approximately one hour per response to a security has been approved by an performance of the functions of the prepare and is filed by approximately 10 exchange for listing and registration agency, including whether the respondents. We estimate that 25% of pursuant to Section 12(d) of the information will have practical utility; one hour per response (15 minutes) is Securities Exchange Act of 1934 (15 (b) the accuracy of the agency’s estimate prepared by the company for a total U.S.C. 781(d)) to be filed with the of the burden imposed by the collection annual reporting burden of 3 hours (15 Commission. The information required of information; (c) ways to enhance the minutes/60 minutes per response × 10 under Rule 12d1–3 must be filed with quality, utility, and clarity of the responses = 2.5 hours rounded to 3 the Commission and is publicly information collected; and (d) ways to hours). available. We estimate that it takes minimize the burden of the collection of Written comments are invited on: (a) approximately one-half hour per information on respondents, including Whether this proposed collection of response to provide the information through the use of automated collection information is necessary for the proper required under Rule 12d1–3 and that techniques or other forms of information performance of the functions of the the information is filed by

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approximately 688 respondents for a a cash tender or exchange offer for a Management and Budget for extension total annual reporting burden of 344 class of securities filed on Schedule and approval. hours (0.5 hours per response x 688 14D–1F. The information required to be Schedule 13E–4F (17 CFR 240.13e- responses). filed with the Commission is intended 102) may be used by an issuer that is Written comments are invited on: (a) to permit verification of compliance incorporated or organized under the Whether this proposed collection of with the securities law requirements laws of Canada to make a cash tender information is necessary for the and assures the public availability of or exchange offer for the issuer’s own performance of the functions of the such information. We estimate that securities if less than 40 percent of the agency, including whether the Schedule 14D–9F takes approximately 2 class of such issuer’s securities information will have practical utility; hours per response to prepare and is outstanding that are the subject of the (b) the accuracy of the agency’s estimate filed by approximately 6 respondents tender offer is held by U.S. holders. The of the burden imposed by the collection annually for a total reporting burden of information collected must be filed with of information; (c) ways to enhance the 12 hours. the Commission and is publicly quality, utility, and clarity of the Written comments are invited on: (a) available. We estimate that it takes information collected; and (d) ways to Whether this proposed collection of approximately 2 hours per response to minimize the burden of the collection of information is necessary for the proper prepare Schedule 13E–4F and that the information on respondents, including performance of the functions of the information is filed by approximately 3 through the use of automated collection agency, including whether the respondents for a total annual reporting techniques or other forms of information information will have practical utility; burden of 6 hours (2 hours per response technology. Consideration will be given (b) the accuracy of the agency’s estimate × 3 responses). to comments and suggestions submitted of the burden imposed by the collection Written comments are invited on: (a) in writing within 60 days of this of information; (c) ways to enhance the Whether this proposed collection of publication. quality, utility, and clarity of the information is necessary for the Please direct your written comment to information collected; and (d) ways to performance of the functions of the Thomas Bayer, Director/Chief minimize the burden of the collection of agency, including whether the Information Officer, Securities and information on respondents, including information will have practical utility; Exchange Commission, c/o Remi Pavlik- through the use of automated collection (b) the accuracy of the agency’s estimate Simon, 6432 General Green Way, techniques or other forms of information of the burden imposed by the collection Alexandria, Virginia 22312; or send an technology. Consideration will be given of information; (c) ways to enhance the email to: [email protected]. to comments and suggestions submitted quality, utility, and clarity of the Dated: November 19, 2012. in writing within 60 days of this information collected; and (d) ways to Kevin M. O’Neill, publication. minimize the burden of the collection of Please direct your written comments information on respondents, including Deputy Secretary. to Thomas Bayer, Director/Chief through the use of automated collection [FR Doc. 2012–28531 Filed 11–23–12; 8:45 am] Information Officer, Securities and techniques or other forms of information BILLING CODE 8011–01–P Exchange Commission, c/o Remi Pavlik- technology. Consideration will be given Simon, 6432 General Green Way, to comments and suggestions submitted Alexandria, Virginia 22312; or send an SECURITIES AND EXCHANGE in writing within 60 days of this email to: [email protected]. COMMISSION publication. Dated: November 19, 2012. Please direct your written comment to Proposed Collection; Comment Kevin M. O’Neill, Thomas Bayer, Director/Chief Information Officer, Securities and Request Deputy Secretary. Exchange Commission, c/o Remi Pavlik- Upon Written Request Copies Available [FR Doc. 2012–28535 Filed 11–23–12; 8:45 am] Simon, 6432 General Green Way, From: Securities and Exchange BILLING CODE 8011–01–P Alexandria, Virginia 22312; or send an Commission, Office of Investor email to: [email protected]. Education and Advocacy, Dated: November 19, 2012. Washington, DC 20549–0213. SECURITIES AND EXCHANGE Extension: COMMISSION Kevin M. O’Neill, Schedule 14D–9F, OMB Control No. Deputy Secretary. Proposed Collection; Comment 3235–0382, SEC File No. 270–339. [FR Doc. 2012–28533 Filed 11–23–12; 8:45 am] Request Notice is hereby given that, pursuant BILLING CODE 8011–01–P to the Paperwork Reduction Act of 1995 Upon Written Request Copies Available (44 U.S.C. 3501 et seq.), the Securities From: Securities and Exchange and Exchange Commission Commission, Office of Investor SECURITIES AND EXCHANGE (‘‘Commission’’) is soliciting comments Education and Advocacy, COMMISSION on the collection of information Washington, DC 20549–0213. Proposed Collection; Comment Extension: summarized below. The Commission Request plans to submit this existing collection Schedule 13E–4F, OMB Control No. of information to the Office of 3235–0375, SEC File No. 270–340. Upon Written Request Copies Available Management and Budget for extension Notice is hereby given that, pursuant From: Securities and Exchange and approval. to the Paperwork Reduction Act of 1995 Commission, Office of Investor Schedule 14D–9F (17 CFR 240.14d– (44 U.S.C. 3501 et seq.), the Securities Education and Advocacy, 103) under the Securities Exchange Act and Exchange Commission Washington, DC 20549–0213. of 1934 (15 U.S.C. 78 et seq.) is used by (‘‘Commission’’) is soliciting comments Extension: any foreign private issuer incorporated on the collection of information Rule 13e–1, OMB Control No. 3235– or organized under the laws of Canada summarized below. The Commission 0305, SEC File No. 270–255. or by any director or officer of such plans to submit this existing collection Notice is hereby given that, pursuant issuer, where the issuer is the subject of of information to the Office of to the Paperwork Reduction Act of 1995

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(44 U.S.C. 3501 et seq.), the Securities SECURITIES AND EXCHANGE Dated: November 19, 2012. and Exchange Commission COMMISSION Kevin M. O’Neill, (‘‘Commission’’) is soliciting comments Deputy Secretary. on the collection of information Proposed Collection; Comment [FR Doc. 2012–28530 Filed 11–23–12; 8:45 am] Request summarized below. The Commission BILLING CODE 8011–01–P plans to submit this existing collection Upon Written Request Copies Available of information to the Office of From: Securities and Exchange Management and Budget for extension Commission, Office of Investor SECURITIES AND EXCHANGE and approval. Education and Advocacy, COMMISSION Rule 13e–1 (17 CFR 240.13e–1) under Washington, DC 20549–0213. Proposed Collection; Comment the Securities Exchange Act of 1934 (15 Extension: U.S.C. 78 et seq.) makes it unlawful for Form F–X, OMB Control No. 3235– Request an issuer who has received notice that 0379, SEC File No. 270–336. Upon Written Request Copies Available it is the subject of a tender offer made Notice is hereby given that, pursuant From: Securities and Exchange under Section 14(d)(1) to purchase any to the Paperwork Reduction Act of 1995 Commission, Office of Investor of its equity securities during the tender (44 U.S.C. 3501 et seq.), the Securities Education and Advocacy, offer, unless it first files a statement and Exchange Commission Washington, DC 20549–0213. with the Commission containing (‘‘Commission’’) is soliciting comments Extension: information require by the Rule. This on the collection of information Form 18–K, OMB Control No. 3235– rule is in keeping with the summarized below. The Commission 0120, SEC File No. 270–108. Commission’s statutory responsibility to plans to submit this existing collection Notice is hereby given that, pursuant prescribe rules and regulations that are of information to the Office of to the Paperwork Reduction Act of 1995 necessary for the protection of investors. Management and Budget for extension (44 U.S.C. 3501 et seq.), the Securities The information filed under Rule 13e– and approval. and Exchange Commission 1 must be filed with the Commission Form F–X (17 CFR 239.42) is used to (‘‘Commission’’) is soliciting comments and is publicly available. We estimate appoint an agent for service of process on the collection of information that it takes approximately 10 burden by Canadian issuers registering summarized below. The Commission hours per response to provide the securities on Forms F–7, F–8, F–9 or F– plans to submit this existing collection information required under Rule 13e–1 10 under the Securities Act of 1933 (15 of information to the Office of and that the information is filed by U.S.C. 77a et seq.), or filing periodic Management and Budget for extension approximately 20 respondents. We reports on Form 40–F under the and approval. estimate that 25% of the 10 hours per Securities Exchange Act of 1934 (15 Form 18–K (17 CFR 249.318) is an response (2.5 hours) is prepared by the U.S.C. 78a et seq.). The information annual report form used by foreign company for a total annual reporting collected must be filed with the governments or political subdivisions of burden of 50 hours (2.5 hours per Commission and is publicly available. foreign governments that have securities response × 20 responses). We estimate that it takes approximately listed on an U.S. securities exchange. Written comments are invited on: (a) 2 hours per response to prepare Form F– The information to be collected is Whether this proposed collection of X and that the information is filed by intended to ensure the adequacy of information is necessary for the approximately 161 respondents for a information available to investors in the performance of the functions of the total annual reporting burden of 322 registration of securities and assures agency, including whether the hours (2 hours per response × 161 public availability. We estimate that information will have practical utility; responses). Form 18–K takes approximately 8 hours (b) the accuracy of the agency’s estimate Written comments are invited on: (a) to prepare and is filed by approximately of the burden imposed by the collection Whether this proposed collection of 143 respondents for a total annual of information; (c) ways to enhance the information is necessary for the reporting burden of 1,144 hours. We quality, utility, and clarity of the performance of the functions of the estimate that 100% of the total burden information collected; and (d) ways to agency, including whether the is prepared by the issuer. minimize the burden of the collection of information will have practical utility; Written comments are invited on: (a) information on respondents, including (b) the accuracy of the agency’s estimate Whether this proposed collection of through the use of automated collection of the burden imposed by the collection information is necessary for the techniques or other forms of information of information; (c) ways to enhance the performance of the functions of the technology. Consideration will be given quality, utility, and clarity of the agency, including whether the to comments and suggestions submitted information collected; and (d) ways to information will have practical utility; in writing within 60 days of this minimize the burden of the collection of (b) the accuracy of the agency’s estimate publication. information on respondents, including of the burden imposed by the collection Please direct your written comment to through the use of automated collection of information; (c) ways to enhance the Thomas Bayer, Director/Chief techniques or other forms of information quality, utility, and clarity of the Information Officer, Securities and technology. Consideration will be given information collected; and (d) ways to Exchange Commission, c/o Remi Pavlik- to comments and suggestions submitted minimize the burden of the collection of Simon, 6432 General Green Way, in writing within 60 days of this information on respondents, including Alexandria, Virginia 22312; or send an publication. through the use of automated collection email to: [email protected]. Please direct your written comment to techniques or other forms of information Thomas Bayer, Director/Chief technology. Consideration will be given Dated: November 19, 2012. Information Officer, Securities and to comments and suggestions submitted Kevin M. O’Neill, Exchange Commission, c/o Remi Pavlik- in writing within 60 days of this Deputy Secretary. Simon, 6432 General Green Way, publication. [FR Doc. 2012–28532 Filed 11–23–12; 8:45 am] Alexandria, Virginia 22312; or send an Please direct your written comments BILLING CODE 8011–01–P email to: [email protected]. to Thomas Bayer, Director/Chief

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Information Officer, Securities and SECURITIES AND EXCHANGE of the most significant parts of such Exchange Commission, c/o Remi Pavlik- COMMISSION statements. Simon, 6432 General Green Way, A. Self-Regulatory Organization’s Alexandria, Virginia 22312; or send an [Release No. 34–68260; File No. SR–C2– Statement of the Purpose of, and the _ 2012–038] email to: PRA [email protected]. Statutory Basis for, the Proposed Rule Dated: November 19, 2012. Self-Regulatory Organizations; C2 Change Kevin M. O’Neill, Options Exchange, Incorporated; 1. Purpose Notice of Proposed Rule Change To Deputy Secretary. The purpose of the proposed rule Address Authority To Cancel Orders [FR Doc. 2012–28526 Filed 11–23–12; 8:45 am] change is to adopt new Rule 6.47 to When a Technical or Systems Issue BILLING CODE 8011–01–P address the authority of the Exchange to Occurs and To Describe the Operation cancel orders (or release routing-related of Routing Service Error Accounts orders) when a technical or systems SECURITIES AND EXCHANGE November 19, 2012. issue occurs and to adopt new Rule COMMISSION 4 Pursuant to Section 19(b)(1) 1 of the 6.37 to describe the operation of an Exchange error account(s) (‘‘Exchange Sunshine Act Meeting Securities Exchange Act of 1934 (the ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 Error Account(s)’’) and routing broker error account(s), which may be used to Notice is hereby given, pursuant to notice is hereby given that, on November 8, 2012, the C2 Options liquidate unmatched executions that the provisions of the Government in the may occur in the provision of the Sunshine Act, Public Law 94–409, that Exchange, Incorporated (the ‘‘Exchange’’ or ‘‘C2’’) filed with the Securities and Exchange’s routing service. the Securities and Exchange By way of background, C2 operates a Exchange Commission (the Commission will hold a Closed Meeting system of trading that allows automatic ‘‘Commission’’) the proposed rule on Tuesday, November 29, 2012 at 2:00 executions to occur electronically. As change as described in Items I and II part of this infrastructure, C2 also p.m. below, which Items have been prepared automatically routes orders to other Commissioners, Counsel to the by the self-regulatory organization. The exchanges under certain circumstances. Commissioners, the Secretary to the Commission is publishing this notice to These routing services are provided in Commission, and recording secretaries solicit comments on the proposed rule conjunction with one or more routing will attend the Closed Meeting. Certain change from interested persons. brokers that are not affiliated with the staff members who have an interest in I. Self-Regulatory Organization’s Exchange.5 Mechanically, when the the matters also may be present. Statement of the Terms of Substance of Exchange receives an order from a The General Counsel of the the Proposed Rule Change Trading Permit Holder (‘‘TPH’’) that is Commission, or his designee, has held in the Exchange system and The Exchange is proposing to amend certified that, in his opinion, one or determines to route an order to another its rules to (i) address the authority of more of the exemptions set forth in 5 exchange, the Exchange provides the the Exchange to cancel orders (or release routing broker with a corresponding U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) routing-related orders) when a technical order and instructions to route the order and 17 CFR 200.402(a)(3), (5), (7), 9(ii) or systems issue occurs; and (ii) to another exchange(s). The routing and (10), permit consideration of the describe the operation of an Exchange broker then sends the corresponding scheduled matters at the Closed error account(s) and routing broker error order to the other exchange.6 Meeting. account(s), which may be used to Commissioner Paredes as duty officer, liquidate unmatched executions that 4 In conjunction with adopting new Rule 6.37, the voted to consider the items listed for the may occur in the provision of the Exchange is proposing to renumber existing Rule Closed Meeting in a closed session. Exchange’s routing service. The text of 6.37, Reporting of Trade Information, to Rule 6.38. 5 See, e.g., Rule 6.36, Order Routing to Other The subject matter of the Closed the rule proposal is available on the Exchange’s Web site (http://www. Exchanges. Meeting will be: a litigiation matter; 6 Generally, the routing brokers route the orders institution and settlement of injunctive c2exchange.com/Legal/Rule directly to other exchanges. However, it is possible actions; institution and settlement of Filings.aspx), at the Exchange’s Office of that a routing broker may route orders to another the Secretary and at the Commission. exchange through a third-party broker-dealer. In administrative proceedings; and other those cases, the third-party broker-dealer would matters relating to enforcement II. Self-Regulatory Organization’s route the orders to the other exchange in its name, proceedings. Statement of the Purpose of, and and any executions would be submitted for clearance and settlement in the name of the routing At times, changes in Commission Statutory Basis for, the Proposed Rule broker so that any resulting positions are delivered priorities require alterations in the Change to the routing broker upon settlement. As described above, normally the routing broker would then scheduling of meeting items. In its filing with the Commission, the coordinate with the Exchange to arrange for any For further information and to self-regulatory organization included resulting securities positions to be delivered to the ascertain what, if any, matters have been statements concerning the purpose of TPH that submitted the corresponding order to the and basis for the proposed rule change Exchange. If error positions (as defined in proposed added, deleted or postponed, please Rule 6.37) result in connection with the routing contact: and discussed any comments it received broker’s use of a third-party broker-dealer for on the proposed rule change. The text outbound routing, and those positions are delivered The Office of the Secretary at (202) of those statements may be examined at to the routing broker through the clearance and 551–5400. settlement process, those positions would be the places specified in Item IV below. permitted to be resolved in accordance with Dated: November 20, 2012. The Exchange has prepared summaries, proposed Rule 6.37. If the third-party broker-dealer Elizabeth M. Murphy, set forth in sections A, B, and C below, received error positions and the positions were not delivered to the routing broker through the Secretary. clearance and settlement process, then the third- 1 15 U.S.C.78s(b)(1). [FR Doc. 2012–28685 Filed 11–21–12; 11:15 am] party broker-dealer would resolve the position 2 15 U.S.C. 78a. itself, and those positions would not be permitted BILLING CODE 8011–01–P 3 17 CFR 240.19b–4. to be resolved as set forth in proposed Rule 6.37.

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In the normal course, the routing Rules.9 Paragraph (a) would also or-cancel (‘‘IOC’’) orders sent to the other broker reports an execution or provide that the Exchange shall provide exchange, and that issue is not resolved in a cancellation of the routed order back to notice of the cancellation to affected timely manner, then the Exchange may seek to cancel the routed orders affected by the the Exchange. Routed orders that are Trading Permit Holders as soon as 11 executed at another exchange are issue. For instance, if a routing broker practicable. experiences a connectivity issue affecting the submitted for clearance and settlement Paragraph (b) of the proposed rule manner in which it sends and receives order in the name of the routing broker. The provides that the Exchange may also messages to or from another exchange, it may routing broker then coordinates with the determine to release orders being held be unable to receive timely execution or Exchange to arrange for any resulting on the Exchange awaiting an away cancellation reports from the other exchange, securities positions to be delivered to exchange execution as it deems to be and Exchange may consequently seek to the TPH that submitted the original necessary to maintain fair and orderly cancel the affected routed orders (e.g., by order to the Exchange (i.e., upon receipt markets if a technical or systems issues calling the routing broker and instructing the of a filled execution report for the occurs at the Exchange, a routing broker, routing broker to attempt to cancel the routed order, the Exchange system pairs or another exchange to which an order orders) or perhaps the routing broker may the execution against the TPH’s original initiate the cancellation of the affected routed has been routed (the process for orders pursuant to a standing or specific order being held in the Exchange system ‘‘releasing’’ orders is illustrated in more instruction from the Exchange. In these and reports the pairing for clearance and detail below). Paragraph (c) of the circumstances, the Exchange would also settlement purposes by submitting a proposed rule would provide that, for attempt to release the initial orders submitted non-tape, clearing only transaction). purposes of Rule 6.47, technical or by TPHs.12 From time to time, the Exchange system issues would include, without Example 2: If the Exchange does not encounters situations in which it limitation, instances where the receive confirmation of an execution (or becomes necessary to cancel orders (or Exchange has not received confirmation cancellation) of an IOC order sent to another release routing-related orders) and of an execution (or cancellation) on exchange from a routing broker within a resolve error positions that result from designated response time interval of three (3) another exchange from a routing broker seconds, then an automated system feature errors of the Exchange, routing brokers, within a response time interval 7 will release the initial order being held by the or another exchange. designated by the Exchange, which Exchange.13 The Exchange would also Proposed Rule 6.47 (Order interval may not be less than three (3) Cancellation/Release) seconds.10 11 In a normal situation (i.e., one in which a The examples set forth below describe technical or systems issue does not exist), the The Exchange proposes to adopt new some of the circumstances in which the Exchange should receive an immediate response C2 Rule 6.47 to address the authority of Exchange may decide to cancel (or back from the routing broker reporting any the Exchange to cancel orders when a executions or cancellations from the other release) orders. exchange, and would then pass the resulting fill or technical or systems issue occurs. cancellation onto the TPH. If, after submitting an Specifically, paragraph (a) of the Example 1: If a routing broker or another exchange experiences a technical or systems order for which a corresponding order has been proposed rule would expressly routed to another exchange, a TPH sends an issue that results in the Exchange or routing authorize the Exchange to cancel orders instruction to cancel the original order, the broker not receiving responses to immediate- cancellation is held by the Exchange until a as it deems to be necessary to maintain response is received from the routing broker on the fair and orderly markets if a technical or 9 As discussed above, the Exchange uses non- corresponding order. For instance, if the other systems issue occurs at the Exchange,8 affiliated routing brokers to provide the routing exchange executes the corresponding order, the the routing broker, or another exchange services. These routing brokers are also not facilities execution would be passed onto the TPH and the to which an Exchange order has been of the Exchange. For all routing services, the cancellation instruction on the TPH’s original order Exchange determines the logic that provides when, would be disregarded. routed. Paragraph (a) would also how and where orders are routed away to other 12 Once an initial order is released, any provide that a routing broker may only exchanges. The routing broker receives the routing cancellation that a TPH submitted to the Exchange cancel orders being routed to another instructions from the Exchange to route orders to on the initial order during such a situation would exchange based on the Exchange’s other exchanges and to report executions back to be honored. If a TPH did not submit a cancellation the Exchange. The routing broker cannot change the to the Exchange, however, that initial order would standing or specific instructions or as terms of an order or the routing instructions, nor remain ‘‘live’’ and thus be eligible for execution or otherwise provided in the Exchange does the routing broker have any discretion about posting on the Exchange, and the Exchange would where to route an order. See Rule 6.36(c), (e) and not treat any execution of the initial order or any 7 The examples described in this filing are not (f). Under paragraph (a) to proposed Rule 6.47, the subsequent routed order related to that initial order intended to be exclusive. Proposed Rule 6.47 would decision to take action with respect to orders as an error (unless, of course, the order was itself provide general authority for the Exchange to cancel affected by a technical or systems issue shall be subject to another technical or systems issue or any orders (or release routing-related orders) in order to made by the Exchange. Depending on where those away exchange processing exceeded the applicable maintain fair and orderly markets when technical orders are located, a routing broker would be response time interval). or systems issues are occurring, and proposed Rule permitted to initiate a cancellation of an order(s) 13 This routing risk management feature would 6.37 also would set forth the manner in which error pursuant to the Exchange’s standing or specific serve as one means for the Exchange to efficiently positions (which may occur in the provision of the instructions or as otherwise provided in the determine if there is a technical or system issue Exchange’s routing service) may be handled by the Exchange Rules (e.g., the Exchange’s standing occurring. The feature, and the system functionality Exchange. The proposed rule change is not limited instructions might provide, among other things, that used to operate the feature, is generally modeled to addressing order cancellation (release) or error the routing broker could initiate the cancellation of after a process that was utilized under the former positions resulting only from the specific examples orders if the routing broker is experiencing Options Intermarket Linkage Plan (the ‘‘Old Linkage described in this filing. technical or systems issues routing orders to an Plan’’). Under the Old Linkage Plan, an eligible 8 To confirm, the authority to cancel orders to away exchange). market maker that sent a ‘‘principal acting as agent maintain fair and orderly markets under proposed 10 A determination by the Exchange to cancel or order’’ (referred to as a ‘‘P/A Order’’) through the Rule 6.47 would apply to any technical or systems release orders may not cause the Exchange to linkage and who did not receive a reply from the issue at the Exchange and would include any orders declare self-help against the other exchange away exchange within 30 seconds was able to reject at the Exchange (i.e., the authority to cancel orders pursuant Section E of the C2 Rules (which cross- any response received thereafter purporting to would apply to any orders that are subject to the reference paragraph (b)(1) of Chicago Board Options report a total or partial execution of that order. Over Exchange’s routing service and any orders that are Exchange, Incorporated (‘‘CBOE’’) Rule 6.81, Order time, the time frame in which an away exchange not subject to the Exchange’s routing service). By Protection). If the Exchange determines to cancel or was required to respond was ultimately reduced to comparison, the routing service error account release orders, as applicable, under proposed Rule 3 seconds. See, e.g., Securities Exchange Act provisions under proposed Rule 6.37 (discussed 6.47 but does not declare self-help against that other Release Nos. 43086 (July 28, 2000), 65 FR 48023 below) would apply only to original and exchange, the Exchange would continue to be (August 4, 2000)(order approving Options corresponding orders that are subject to the subject to the trade-through requirements in Rule Intermarket Linkage Plan submitted by the Exchange routing service. 6.81 with respect to that exchange. Continued

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attempt to cancel the routed order in these in the name of the routing broker, one executing broker associated with these circumstances.14 or more accounts for the purpose of transactions. The Exchange also believes Example 3: If the Exchange experiences a liquidating unmatched trade positions that having the flexibility to determine systems issue, the Exchange may take steps that may occur in connection with the to utilize an Exchange Error Account in to cancel and/or release all outstanding orders affected by the issue (which orders away exchange routing service provided the limited circumstances described 16 may include orders that may or may not be under Rule 6.36 (‘‘error positions’’). In above allows for administrative subject to routing services). The Exchange addition, the Exchange may also convenience and contributes to the would also attempt to cancel any routed maintain, in the name of the Exchange, Exchange’s ability to maintain a fair and orders related to the TPHs’ initial orders, if one or more Exchange Error Accounts orderly market.17 From a TPH applicable, in these circumstances.15 for the purpose of liquidating error perspective, there would be no impact Proposed Rule 6.37 (Routing Service positions in the circumstances resulting from the decision to use an Error Accounts) described below. Exchange Error Account or the routing Paragraph (a) of the proposed rule broker’s error account to liquidate the Proposed Rule 6.37 would provide would provide that errors to which the error position in these circumstances. that each routing broker shall maintain, rule would apply include any action or By definition, an error position in an omission by the Exchange, a routing Exchange Error Account would only American Stock Exchange LLC, Chicago Board broker, or another exchange to which an include unmatched trades due to a Options Exchange, Inc., and International Securities Exchange LLC) and 57238 (January 30, 2008), 73 FR Exchange order has been routed, either routing error. In that regard, paragraph 6748 (February 5, 2008)(order approving joint of which result in an unmatched trade (c) of the proposed rule would provide amendment no. 25 to the Plan for the Purpose of position due to the execution of an that the Exchange shall not accept any Creating and Operating an Intermarket Option positions in an Exchange Error Account Linkage Relating to Response Time for Certain original or corresponding order that is Orders Sent Through the Linkage). The Old Linkage subject to the away market routing from an account of a Trading Permit Plan was replaced by the Options Order Protection service and for which there is no Holder or permit any Trading Permit and Locked/Crossed Markets Plan (the ‘‘Distributive corresponding order to pair with the Holder to transfer any positions from Options Linkage Plan’’) in 2009. See Securities the Trading Permit Holder’s account to Exchange Act Release No. 60405 (July 30, 2009), 74 execution (each a ‘‘routing error’’). Such 18 FR 39362 (August 6, 2009)(order approving the routing errors would include, without an Exchange Error Account. National Market System Plan relating to Options limitation, positions resulting from To the extent a routing broker utilizes Order Protection and Locked/Crossed Markets determinations by the Exchange to its own account to liquidate error submitted by the Chicago Board Options Exchange, positions, paragraph (d) of the proposed Incorporated, International Securities Exchange, cancel or release an order pursuant to LLC, The NASDAQ Stock Market LLC, NASDAQ proposed Rule 6.47 (as described rule provides that the routing broker OMX BX, Inc., NASDAQ OMX PHLX, Inc., NYSE above). shall liquidate the error positions as Amex LLC, and NYSE Arca, Inc.). Although there Paragraph (b) of the proposed rule soon as practicable. The routing broker is no longer a similar provision for P/A Orders and could determine to liquidate the away exchange response times under the would provide that, generally, each Distributive Options Linkage Plan, the Exchange routing broker will utilize its own error position itself or have a third party has system functionality that tracks response times account to liquidate error positions. broker-dealer liquidate the position on for orders routed to away exchanges. The primary However, in certain circumstances, the the routing broker’s behalf. Paragraph distinction between the process under the Old (d) also provides that the routing broker Linkage Plan and the process described in the Exchange may utilize an Exchange Error current proposed rule change is that, instead of Account. In particular, in instances establish and enforce policies and rejecting an execution report back to the away where the routing broker is unable to procedures reasonably designed to (i) exchange, an execution report received after the utilize its own error account (e.g., due adequately restrict the flow confidential TPH’s order is released would be considered an and proprietary information associated error and subject to the Exchange Error Account to a technical, systems or other issue procedures discussed below. The Exchange views that prevents the routing broker from with the liquidation of the error position having this ability to release orders that are queued doing so) or where the an error is due waiting for a responsive execution/cancel report for to a technical or systems issue at the 17 The Exchange notes that any profit/loss from a corresponding order from an away exchange as an liquidating the error positions would belong to the important risk management feature. Because the Exchange, the Exchange may (but would Exchange (when an Exchange Error Account is markets are highly automated, the Exchange would not be required to) determine it is utilized) or the routing broker (when the routing normally expect to receive a response to an order appropriate to utilize an Exchange Error broker’s error account is utilized). However, all or routed through the routing service within Account. In making such a any portion of such profits/losses may be subject to milliseconds after it is sent. If a response is not certain contractual obligations pursuant to the received in a timely manner, it generally is an determination to utilize an Exchange routing service agreement between the Exchange indication of a system problem with the other Error Account, the Exchange would and the routing broker (e.g., used to offset certain exchange, the routing broker(s) or the Exchange. In consider whether is has sufficient time, contractual obligations). addition, especially in fast-moving markets like the 18 information and capabilities considering The Exchange may address error positions options market, the Exchange believes allowing for under the proposed rule that are caused by the the release of a TPH’s related original order due to the market circumstances to determine errors noted above, but the Exchange may not an untimely response will provide an opportunity that an error is due to such accept from a TPH positions that are delivered to for the transmittal of responses while also allowing circumstances and whether the the TPH through the clearance and settlement the Exchange’s TPHs to address and execute orders Exchange can address the error. process, even if those positions may have been the pending on the Exchange in a timely manner. The result of an error. This would not apply, however, Exchange believes this contributes to the The Exchange believes it is reasonable to situations like the one described below in which Exchange’s ability to maintain fair and orderly and appropriate to address routing the Exchange incurred a position to settle a TPH markets. errors through the error account of a purchase, as the TPH did not yet have a position 14 It is possible that attempts to cancel the routed routing broker in the manner proposed in its account as a result of the purchase at the time orders may not succeed. If the Exchange receives an of the Exchange’s action, i.e., the Exchange’s action execution report on the order that had been routed because, among other reasons, it is the was necessary for the purchase to settle into the to an away exchange, then the unmatched TPH’s account. Moreover, to the extent a TPH execution would be considered an ‘‘error position’’ 16 The Exchange notes that, in connection with receives positions in connection with an error or under proposed Rule 6.47. providing routing services, routing brokers other technical or systems issue, the TPH may seek 15 It is possible that attempts to cancel the routed currently may utilize their own error accounts to to rely on other Exchange Rules such as Rule 6.42, orders may not succeed. If the Exchange receives an liquidate error positions. The Exchange believes it Exchange Liability, if it experiences a loss. For execution report on the order that had been routed is reasonable and not inappropriate to address example, Rule 6.42 provides TPHs with the ability to an away exchange, then the unmatched routing errors through the error account of a routing to file claims for negligent acts or omissions of execution would be considered an ‘‘error position’’ broker because, among other reasons, it is the Exchange employees or for the failure of its systems under proposed Rule 6.47. executing broker associated with these transactions. or facilities.

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in accordance with Rule 6.36,19 and (ii) records in accordance with Rule 17a–1 with open positions.23 Instead, the routing prevent the use of information under the Act.22 broker would post the positions into its associated with other orders subject to account and resolve the positions in the Examples of such error positions due manner described above. Alternatively, if the the routing services when making to a routing error may include, without routing broker is unable to resolve the determinations regarding the liquidation limitation, the following: positions, the Exchange may determine to of error positions. In addition, post the positions into an Exchange Error Example 4: Error positions may result from Account and resolve the positions in the paragraph (d) provides that the routing routed orders that the Exchange or a routing manner described above. broker shall make and keep records broker attempts to cancel but that are associated with the liquidation of such Example 7: Error positions may result from executed before the other exchange receives a technical or systems issue that causes routing broker error positions and shall the cancellation message or that are executed orders to be executed in the name of a maintain such records in accordance because the other exchange is unable to routing broker in connection with its routing with Rule 17a–4 under the Act.20 process the cancellation message. Using the services function that are not related to any situation described in Example 1 above, Paragraph (e) of the proposed rule corresponding initial orders of TPHs. As a assume the Exchange seeks to release the result, the Exchange would not be able to would provide that, to the extent an initial orders being held by the Exchange assign any positions resulting from such an Exchange Error Account is utilized to because it is not receiving timely execution issue to TPHs. Instead, the routing broker liquidate error positions, the Exchange or cancellation reports from another would post the positions into its account and shall liquidate the error positions as exchange. In such a situation, although the resolve the positions in the manner described soon as practicable. In liquidating error Exchange would attempt to direct the routing above. Alternatively, if the routing broker is positions in an Exchange Error Account, broker to cancel the routed corresponding unable to resolve the positions, the Exchange orders, the routing broker may still receive the Exchange shall provide complete may determine to post the positions into an executions from the other exchange after Exchange Error Account and resolve the time and price discretion for the trading connectivity is restored, which would not positions in the manner described above.24 to liquidate error positions in an then be allocated to TPHs because of the In each of the circumstances Exchange Error Account to a third-party earlier decision to release the affected initial described above, the Exchange and its broker-dealer and shall not attempt to orders. Instead, the routing broker would routing broker may not learn about an exercise any influence or control over post the positions into its account and error position until T+1. For instance, the timing or methods of such trading.21 resolve the positions in the manner described the Exchange and its routing broker may Such a third-party broker-dealer may above. Alternatively, if the routing broker is unable to resolve the positions (or if the error not learn about an error position until include a routing broker not affiliated position is due to a system or technical issue either (i) during the clearing process with the Exchange. Paragraph (e) would on the Exchange), the Exchange may when a routing destination has also provide that the Exchange shall determine to post the positions into an submitted to The Options Clearing establish and enforce policies and Exchange Error Account and resolve the Corporation (‘‘OCC’’) a transaction for procedures reasonably designed to positions in the manner described above. clearance and settlement for which the adequately restrict the flow of Example 5: Error positions may result from Exchange/routing broker never received confidential and proprietary an order processing issue at another an execution confirmation, or (ii) when information between the Exchange and exchange. For instance, if another exchange another exchange does not recognize a experienced a systems problem that affects transaction submitted by a routing the third-party broker-dealer associated its order processing, it may transmit back a with the liquidation of the error message purporting to cancel a routed order, broker to OCC for clearance and positions. Finally, paragraph (e) would but then subsequently submit an execution of settlement. Moreover, the affected TPHs’ provide that the Exchange shall make that same order for clearance and settlement. trade may not be nullified absent and keep records to document all In such a situation, the Exchange would not express authority under Exchange determinations to treat positions as error then allocate the execution to the TPH Rules.25 As such, the Exchange believes positions under the rule (whether or not because of the earlier cancellation message that use of a routing broker error an Exchange Error Account is utilized to from the other exchange. Instead, the routing account (or an Exchange Error Account, broker would post the positions into its as applicable) to liquidate the error liquidate such error positions), as well account and resolve the positions in the as records associated with the positions that may occur in these manner described above. Alternatively, if the circumstances is reasonable and liquidation of Exchange Error Account routing broker is unable to resolve the error positions through a third-party positions, the Exchange may determine to appropriate in these circumstances. broker-dealer, and shall maintain such post the positions into an Exchange Error 2. Statutory Basis Account and resolve the positions in the manner described above. The proposed rule change is 19 Rule 6.36(b) provides that the Exchange shall consistent with Section 6(b) of the Act 26 establish and maintain procedures and internal Example 6: Error positions may result if a controls reasonably designed to adequately restrict routing broker receives an execution report in general and furthers the objectives of the flow of confidential and proprietary information from another exchange but does not receive Section 6(b)(5) of the Act 27 in between the Exchange and the routing broker, and clearing instructions for the execution from particular, which requires that the rules any other entity, including any affiliate of the the other exchange. For instance, assume that of an exchange be designed to promote routing broker, and, if the routing broker or any of a TPH sends the Exchange an order to buy its affiliates engages in any other business activities 10 ABC option contracts, which causes the 23 To the extent that a loss is incurred in covering other than providing routing services to the routing broker to send an order to another Exchange, between the segment of the routing the position, the routing broker (on behalf of the broker or affiliate that provides the other business exchange that is subsequently executed, Exchange or itself) may submit a reimbursement activities and the segment of the routing broker that cleared and closed out by that other claim to that other exchange. provides the routing services. exchange, and the execution is ultimately 24 To the extent such positions are not related to 20 17 CFR 240.17a–4. communicated back to the TPH. On the next the routing broker’s function as an Exchange 21 This provision is not intended to preclude the trading day (T+1), if the other exchange does routing broker (i.e., originating with the Exchange), Exchange from providing the third-party broker not providing clearing instructions for that the Exchange would not post such positions to an with standing instructions with respect to the execution, the Exchange/routing broker Exchange Error Account. The routing broker would resolve the error positions itself. manner in which it should handle all error account would still be responsible for settling that 25 See, e.g., Rule 6.15, Obvious Error and transactions. For example, the Exchange might TPH’s purchase and therefore would be left instruct the broker to treat all orders as ‘‘not held’’ Catastrophic Errors. and to attempt to minimize any market impact on 26 15 U.S.C. 78f(b). the price of the option being traded. 22 17 CFR 240.17a–1. 27 15 U.S.C. 78f(b)(5).

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just and equitable principles of trade, to III. Date of Effectiveness of the located at 100 F Street NE., Washington, prevent fraudulent and manipulative Proposed Rule Change and Timing for DC 20549–1090. Copies of the filing will acts, to remove impediments to and to Commission Action also be available for inspection and perfect the mechanism of a free and Within 45 days of the date of copying at the principal office of the open market and a national market publication of this notice in the Federal Exchange. All comments received will system, and, in general, to protect Register or within such longer period (i) be posted without change; the investors and the public interest. The as the Commission may designate up to Commission does not edit personal identifying information from Exchange believes that this proposed 90 days of such date if it finds such submissions. You should submit only rule change is in keeping with those longer period to be appropriate and information that you wish to make principles since the Exchange’s ability publishes its reasons for so finding or available publicly. All submissions to cancel and release orders during a (ii) as to which the self-regulatory should refer to File Number SR–C2– technical or systems issue and to organization consents, the Commission 2012–038 and should be submitted on maintain an Exchange Error Account will: or before December 17, 2012. facilitates the smooth and efficient (A) By order approve or disapprove operation of the market. Specifically, the proposed rule change, or For the Commission, by the Division of the Exchange believes that allowing the (B) Institute proceedings to determine Trading and Markets, pursuant to delegated 28 Exchange to cancel and release orders whether the proposed rule change authority. during a technical or systems issue (and should be disapproved. Kevin M. O’Neill, permitting its routing brokers to cancel Deputy Secretary. orders pursuant to standing or specific IV. Solicitation of Comments [FR Doc. 2012–28592 Filed 11–23–12; 8:45 am] instructions or as otherwise permitted Interested persons are invited to BILLING CODE 8011–01–P under Exchange Rules) would allow the submit written data, views, and Exchange to maintain fair and orderly arguments concerning the foregoing, markets. Moreover, the Exchange including whether the proposed rule SECURITIES AND EXCHANGE believes that allowing a routing broker change is consistent with the Act. COMMISSION to assume error positions in its own Comments may be submitted by any of [Release No. 34–68257; File No. SR–BATS– account(s) to liquidate those positions the following methods: 2012–044] (or allowing the Exchange to assume error positions in an Exchange Error Electronic Comments Self-Regulatory Organizations; BATS Account to liquidate those positions in • Use the Commission’s Internet Exchange, Inc.; Notice of Filing of instances where a routing broker is comment form (http://www.sec.gov/ Proposed Rule Change To Amend unable to do so or where the routing rules/sro.shtml); or BATS Rule 14.11, Entitled ‘‘Other error is due to a technical or systems • Send an email to rule- Securities,’’ and To List and Trade issue at the Exchange) subject to the [email protected]. Please include File Shares of Certain ProShares Products conditions set forth in proposed Rule Number SR–C2–2012–038 on the 6.37 would be the least disruptive subject line. November 19, 2012. means to address these errors. Overall, Pursuant to Section 19(b)(1) of the the proposed new rule is designed to Paper Comments Securities Exchange Act of 1934 (‘‘Act’’ 1 ensure full trade certainty to market • Send paper comments in triplicate or ‘‘Exchange Act’’) and Rule 19b–4 2 participants and to avoid disrupting the to Elizabeth M. Murphy, Secretary, thereunder, notice is hereby given that clearance and settlement process. The Securities and Exchange Commission, on November 5, 2012, BATS Exchange, proposed new rule is also designed to 100 F Street NE., Washington, DC Inc. (‘‘Exchange’’ or ‘‘BATS’’) filed with provide a consistent methodology for 20549–1090. the Securities and Exchange Commission (‘‘Commission’’) the handling error positions in a manner All submissions should refer to File proposed rule change as described in that does not discriminate among TPHs. Number SR–C2–2012–038. This file Items I, II, and III below, which Items The proposed new rule is also number should be included on the have been substantially prepared by the consistent with Section 6 of the Act subject line if email is used. To help the Exchange. The Commission is insofar as it would require the Exchange Commission process and review your publishing this notice to solicit (and its routing brokers, as applicable) comments more efficiently, please use comments on the proposed rule change to establish controls to restrict the flow only one method. The Commission will from interested persons. of any confidential information post all comments on the Commission’s associated with the liquidation of error Internet Web site (http://www.sec.gov/ I. Self-Regulatory Organization’s positions. rules/sro.shtml). Copies of the Statement of the Terms of Substance of B. Self-Regulatory Organization’s submission, all subsequent the Proposed Rule Change Statement on Burden on Competition amendments, all written statements The Exchange proposes to amend with respect to the proposed rule Rule 14.11, entitled ‘‘Other Securities,’’ The Exchange does not believe that change that are filed with the to adopt new criteria for certain the proposed rule change will impose Commission, and all written securities to be listed on the Exchange any burden on competition not communications relating to the as Trust Issued Receipts (‘‘TIRs’’), as necessary or appropriate in furtherance proposed rule change between the well as to list and trade shares of the of the purposes of the Act. Commission and any person, other than following: ProShares Managed Futures C. Self-Regulatory Organization’s those that may be withheld from the Strategy; ProShares Commodity Statement on Comments on the public in accordance with the Managed Futures Strategy; and Proposed Rule Change Received From provisions of 5 U.S.C. 552, will be ProShares Financial Managed Futures Members, Participants, or Others available for Web site viewing and printing in the Commission’s Public 28 17 CFR 200.30–3(a)(12). The Exchange neither solicited nor Reference Room, on business days 1 15 U.S.C. 78s(b)(1). received comments on the proposal. between the hours of 10 a.m. and 3 p.m., 2 17 CFR 240.19b–4.

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Strategy. The Exchange has also pursuant to Section 19(b)(2) of the Act Proposed Listing Rules proposed to correct a reference stating and Rule 19b–4 thereunder. Capitalized The Exchange proposes to adopt the that TIRs will trade on the Exchange terms that are otherwise undefined have following definitions for purposes of until 4:00 p.m. Eastern Time (‘‘E.T.’’) to the same meaning as those set forth sub-paragraph (f)(4) of Rule 14.11: allow TIRs to trade until the end of the under the Rules of the Exchange. The • The term ‘‘Investment Shares’’ will Exchange’s after market session, which Exchange has also proposed to correct a mean a security (a) that is issued by a ends at 5:00 p.m. E.T. The Exchange has reference stating that TIRs will trade on trust, partnership, commodity pool or also proposed to make certain changes the Exchange until 4:00 p.m. E.T. to other similar entity that invests in any to conform to the listing rules of certain allow TIRs to trade until the end of the combination of futures contracts, other exchanges and to make certain Exchange’s after market session, which options on futures contracts, forward non-substantive changes and corrections ends at 5:00 p.m. E.T. The Exchange has contracts, commodities, swaps or high to existing rule text. also proposed to make certain changes credit quality short-term fixed income The text of the proposed rule change to conform to the listing rules of certain securities or other securities; and (b) is available at the Exchange’s Web site other exchanges and to make certain issued and redeemed daily at net asset at http://www.batstrading.com, at the non-substantive changes and corrections value in amounts correlating to the principal office of the Exchange, and at to existing rule text. number of receipts created and the Commission’s Public Reference Pursuant to this proposed rule redeemed in a specified aggregate Room. change, the Exchange also proposes to minimum number. II. Self-Regulatory Organization’s list and trade shares (‘‘Shares’’) of the • The term ‘‘futures contract’’ is Statement of the Purpose of, and following: ProShares Managed Futures commonly known as a ‘‘contract of sale Statutory Basis for, the Proposed Rule Strategy; ProShares Commodity of a commodity for future delivery’’ set Change Managed Futures Strategy; and forth in Section 2(a) of the Commodity ProShares Financial Managed Futures Exchange Act. In its filing with the Commission, the Strategy (each a ‘‘Fund,’’ and together, • A ‘‘forward contract’’ is a contract Exchange included statements ‘‘Funds’’).3 Each Fund is a series of the between two parties to purchase and concerning the purpose of, and basis for, ProShares Trust II (‘‘Trust’’), a Delaware sell a specific quantity of a commodity the proposed rule change and discussed statutory trust. ProShare Capital at a specified price with delivery and any comments it received on the Management LLC (‘‘Sponsor’’) is the settlement at a future date. Forward proposed rule change. The text of these Trust’s Sponsor and Wilmington Trust contracts are traded over-the-counter statements may be examined at the Company is the Trust’s trustee. Brown (‘‘OTC’’) and not listed on a futures places specified in Item IV below. The Brothers Harriman & Co. serves as the exchange. Exchange has prepared summaries, set administrator (‘‘Administrator’’), • The term ‘‘Financial Instruments’’ forth in Sections A, B, and C below, of custodian, and transfer agent of the will mean any combination of the most significant parts of such Funds. SEI Investments Distribution Co. investments, including cash; securities; statements. serves as distributor of the Shares options on securities and indices; A. Self-Regulatory Organization’s (‘‘Distributor’’). futures contracts; options on futures Statement of the Purpose of, and The Exchange notes that the contracts; forward contracts; equity Statutory Basis for, the Proposed Rule Commission has previously approved caps, collars and floors; and swap Change the listing and trading of shares of the agreements. Funds on NYSE Arca.4 In addition, the The proposed listing requirements 1. Purpose Commission has approved other include a designation requirement. The changes proposed in this filing exchange-traded investment products Specifically, the proposed Rules provide will modify the Exchange’s rules in linked to the performance of underlying that the Exchange may list and trade order to allow listing of certain commodities and currencies.5 TIRs investing in Investment Shares or exchange traded products (‘‘ETPs’’) by Financial Instruments and that each adopting criteria based on existing 3 See the Trust’s Registration Statement on Form issue of a TIR based on a particular criteria applicable to ETPs listed on S–1, dated November 29, 2011, as amended (File Investment Share or Financial NYSE MKT LLC (formerly the American No. 333–178212 (‘‘Registration Statement’’)). The Instrument shall be designated as a description of the Funds and the Shares contained Stock Exchange or ‘‘AMEX’’) and NYSE herein is based, in part, on the Registration separate series and identified by a Arca Equities, Inc. (‘‘NYSE Arca’’). Statement. unique symbol. Specifically, the Exchange proposes to 4 See Securities Exchange Act Release No. 66334 When the Exchange is the primary modify Rule 14.11(f), which governs the (February 6, 2012), 77 FR 7219 (February 10, 2012) listing exchange for a trust that issues listing of TIRs that are issued by a trust (SR–NYSEArca–2011–94) (order approving NYSE TIRs that invest in Investment Shares or Arca listing and trading of the Funds). Although the on the Exchange, in order to adopt new Funds were approved for listing and trading on Financial Instruments, the trust will be criteria for the listing of TIRs that invest NYSE Arca, the Funds’ Shares have never been subject to the initial and continued in ‘‘Investment Shares’’ or ‘‘Financial traded on any national securities exchange. listing criteria under proposed Rule Instruments,’’ as proposed to be defined 5 See, e.g., Securities Exchange Act Release Nos. 14.11(f)(4), as well as Rules 14.11(f)(1) 57456 (March 7, 2008), 73 FR 13599 (March 13, herein. The addition of sub-paragraph 2008) (SR–NYSEArca–2007–91) (order granting and (2), as proposed to be amended. In (4) to Rule 14.11(f) is based on accelerated approval for NYSE Arca listing the particular, the proposed initial listing Commentary .07 of AMEX Rule 1202 iShares GS Commodity Trusts); 59895 (May 8, criteria provide that the Exchange will and Commentary .02 of NYSE Arca Rule 2009), 74 FR 22993 (May 15, 2009) (SR–NYSEArca– establish a minimum number of receipts 2009–40) (order granting accelerated approval for 8.200 and is intended to accommodate NYSE Arca listing the ETFS Gold Trust); 58365 required to be outstanding at the time of possible future listing and trading of (August 14, 2008), 73 FR 49522 (August 21, 2008) commencement of trading on the TIRs that invest in Investment Shares or (order granting accelerated approval for NYSE Arca Exchange. The proposed continued Financial Instruments. Any new listing listing of four CurrencyShares Trusts); 63598 listing criteria provide that the (December 22, 2010), 75 FR 82106 (December 29, or trading of an issue of such TIRs will 2010) (SR–NYSEArca–2010–98) (order approving Exchange may consider delisting or be subject to the approval of a proposed listing and trading on the NYSE Arca of removal from listing of such TIRs under rule change by the Commission WisdomTree Managed Futures Strategy Fund). any of the following circumstances:

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• If following the initial twelve 14.11(f)(4), which sets forth certain commodity value, the current value of month period following the restrictions on Members acting as the underlying asset or commodity if commencement of trading of the registered Market Makers in TIRs that required to be deposited to the trust in receipts, (1) the trust has more than 60 invest in Investment Shares or Financial connection with issuance of TIRs, net days remaining until termination and Instruments to facilitate surveillance. asset value, or other information relating there are fewer than 50 record and/or Rule 14.11(f)(4)(D)(i) will require that to the purchase, redemption, or trading beneficial holders of TIRs for 30 or more any Member acting as a registered of TIRs, resulting from any negligent act consecutive trading days; (2) the trust Market Maker in TIRs must file, with or omission by the Exchange or any has fewer than 50,000 receipts issued the Exchange, in a manner prescribed by agent of the Exchange, or any act, and outstanding; or (3) the market value the Exchange, and keep current a list condition, or cause beyond the of all receipts issued and outstanding is identifying all accounts for trading the reasonable control of the Exchange or its less than $1 million. underlying physical asset or agent, including, but not limited to, an • If the level or value of an commodity, related futures or options act of God; fire; flood; extraordinary underlying index or portfolio is no on futures, or any other related weather conditions; war; insurrection; longer calculated or available on at least derivatives, which the Member acting as riot; strike; accident; action of a 15-second delayed basis or the registered Market Maker may have or government; communications or power Exchange stops providing a hyperlink over which it may exercise investment failure; equipment or software on its Web site to any such asset or discretion. Rule 14.11(f)(4)(D)(i) will malfunction; or any error, omission, or investment value. prohibit any Member acting as delay in the reports of transactions in an • If the Intraday Indicative Value is registered Market Maker in the Trust underlying asset or commodity. no longer made available on at least a Issued Receipts from trading in the The Exchange has also proposed the 15-second delayed basis. underlying physical asset or adoption of Rule 14.11(f)(4)(F), which • If such other event shall occur or commodity, related futures or options would require the Exchange to file condition exists which in the opinion of on futures, or any other related separate proposals under Section 19(b) the Exchange makes further dealings on derivatives, in an account in which a of the Act before listing and trading the Exchange inadvisable. Member acting as a registered Market TIRs based on separate Investment In addition, the Exchange will remove Maker, directly or indirectly, controls Shares or Financial Instruments. TIRs from listing and trading upon trading activities, or has a direct interest In addition to the adoption of new termination of the trust. A trust may in the profits or losses thereof, which sub-paragraph (f)(4) to Rule 14.11, the terminate in accordance with the has not been reported to the Exchange Exchange proposes to make additional provisions of the trust prospectus, as required by the Rule. substantive modifications to Rule which may provide for termination if Adoption of Rule 14.11(f)(4)(D)(ii) 14.11(f) in order to conform to AMEX the value of securities in the trust falls will also ensure that Market Makers and NYSE Arca rules related to TIRs, as below a specified amount. The handling shares of TIRs provide the described below. Exchange represents that it prohibits the Exchange with such books, records, or First, the Exchange proposes to delete initial and/or continued listing of any other information pertaining to current sub-paragraph (f)(2)(B) of Rule security that is not in compliance with transactions by such entity or registered 14.11, which sets forth criteria that are Rule 10A–3 under the Exchange Act.6 or non-registered employee affiliated not included in the equivalent TIRs Further, the Exchange proposes to with such entity for its or their own rules of AMEX (AMEX Rule 1202) and require that the term of a trust shall be accounts in the underlying physical NYSE Arca (NYSE Arca Rule 8.200). as stated in the prospectus, however, asset or commodity, related futures or Sub-paragraph (f)(2)(B) of Exchange such entity may be terminated earlier options on futures, or any other related Rule 14.11 governs eligibility of certain under such circumstances as may be derivatives, as may be requested by the component securities that are issued by specified in the prospectus. Exchange. a company that has already been The Exchange also proposes to add As a general matter, the Exchange has included as a component security in the the defined term ‘‘Trustee’’ to Rule regulatory jurisdiction over its Members applicable series of TIRs or has been 14.11(f)(1), along with applying the and their associated persons, which received as part of a merger, following requirements to the Trustee: includes any person or entity consolidation, corporate combination, • The Trustee of a trust must be a controlling a Member, as well as a or other event. Rather than apply trust company or banking institution subsidiary or affiliate of a Member that different criteria to such securities, the having substantial capital and surplus is in the securities business. A Exchange proposes to apply the criteria and the experience and facilities for subsidiary or affiliate of a Member that of sub-paragraph (f)(2)(G) of Rule 14.11 handling corporate trust business. In does business only in commodities or (to be re-numbered as (f)(3)) to all cases where, for any reason, an futures contracts would not be subject to component securities of a TIR listed on individual has been appointed as Exchange jurisdiction, but the Exchange the Exchange. Further, as noted above, Trustee, a qualified trust company or could obtain information regarding the this change will help to align the banking institution must be appointed activities of such subsidiary or affiliate Exchange’s rules applicable to TIRs with co-trustee. through surveillance sharing agreements the rules of AMEX and NYSE Arca, • No change is to be made in the with regulatory organizations of which which should help to alleviate Trustee of a listed issue without prior such subsidiary or affiliate is a member. confusion amongst issuers. notice to and approval of the Exchange. The Exchange has also proposed the The Exchange also proposes to The Exchange is also proposing to add adoption of Rule 14.11(f)(4)(E) related to eliminate the requirement of current new sub-paragraph (f)(4)(C)(v), which limitation of liability. Specifically, Rule 14.11(f)(2)(E)(iv) that the Exchange states that voting rights shall be as set neither the Exchange nor any agent of receive prior notice and provide forth in the applicable trust prospectus. the Exchange shall have any liability for approval before a change can be made In addition, the Exchange has damages, claims, losses, or expenses to the trustee of a listed TIR. The proposed new sub-paragraph (D) to Rule caused by any errors, omissions, or Exchange is proposing this change in delays in calculating or disseminating order to align the Exchange’s rules with 6 17 CFR 240.10A–3. any applicable underlying asset or NYSE Arca Rule 8.200.

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Third, the Exchange proposes to a.m. to 5:00 p.m. E.T. (Pre-Opening comprehensive surveillance sharing eliminate the requirement in Rule Session, Regular Trading Hours, and agreement.9 The Exchange prohibits the 14.11(f)(2)(F) that transactions in Trust After Hours Trading Session). The distribution of material, non-public Issued Receipts may only be made in Exchange has appropriate rules to information by its employees. round lots of 100 receipts or round lot facilitate transactions in the TIRs during Suitability multiples. As with the proposed all trading sessions. The minimum price changes above, this change will align increment for quoting and entry of Currently, BATS Rule 3.7 governs the Exchange’s rules with AMEX Rule orders in equity securities traded on the Recommendations to Customers, and 1202 and NYSE Arca Rule 8.200, which Exchange is $0.01, with the exception of Chapter III generally governs Rules of do not limit transactions in Trust Issued securities that are priced less than Fair Practice. Prior to the Receipts to round lots. Further, to the $1.00, for which the minimum price commencement of trading of any TIRs, extent a specific Trust Issued Receipt increment for order entry is $0.0001.8 the Exchange will remind its Members should be limited to trading in round of the suitability requirements of BATS Trading Halts lots, the Exchange has general authority Rule 3.7 in an Information Circular. pursuant to Exchange Rule 11.2 to limit With respect to trading halts, the Specifically, Rule 3.7 provides that, in transactions accordingly.7 Exchange may consider all relevant recommending transactions in these The Exchange also proposes to: factors in exercising its discretion to securities, a Member must have • Capitalize ‘‘Trust’’ several times halt or suspend trading in the TIRs. The reasonable grounds for believing that (1) throughout Rule 14.11(f) in order to Exchange will halt trading in the TIRs the recommendation is suitable for a make clear which references to Trust are under the conditions specified in BATS customer given reasonable inquiry a reference to the term defined in Rule Rule 11.18. Trading may be halted concerning the customer’s investment 14.11(f)(1); because of market conditions or for objectives, financial situation, needs, • Add a defined term ‘‘Trustee’’ to reasons that, in the view of the and any other information known by Rule 14.11(f)(1) and to capitalize the Exchange, make trading in the TIRs such Member, and (2) the customer can term Trustee throughout Rule 14.11(f) in inadvisable. These may include: (1) The evaluate the special characteristics, and order to make clear which references to extent to which trading is not occurring is able to bear the financial risks, of an Trustee are intended to refer to the in the TIRs and/or the underlying asset investment in the securities. In defined term in Rule 14.11(f)(1); or assets; or (2) whether other unusual connection with the suitability • Add titles to Rules 14.11(f)(2)(C) conditions or circumstances detrimental obligation, the Information Circular will and (D) in order to make the rules more to the maintenance of a fair and orderly also provide that Members must make clear; market are present. If any of the Intraday reasonable efforts to obtain the • Remove the words ‘‘a Trust upon Indicative Value, the level of the following information: (1) The which’’ and ‘‘is based’’ from Rule underlying index, or the value of the customer’s other securities holdings; (2) 14.11(f)(2)(D)(ii) in order to clarify that underlying assets of the TIRs is not the customer’s financial situation and the Exchange will consider the disseminated as required, the Exchange needs; (3) the customer’s investment suspension of trading in or removal may halt trading during the day in objectives; and (4) such other from listing of a series of TIRs rather which such interruption to the information used or considered to be than the Trust upon which a series of dissemination occurs. If an interruption reasonable by such Member or TIRs is based; to the dissemination of the Intraday registered representative in making • Remove the words ‘‘following Indicative Value, the level of the recommendations to the customer. requirements apply: (a) the’’ from Rule underlying index, or the value of the In addition, FINRA has implemented 14.11(f)(2)(D)(iv) because they would be underlying assets of the TIRs persists increased sales practice and customer unnecessary as a result of the proposed past the trading day in which it margin requirements for FINRA deletion of subparagraph (b) from this occurred, the Exchange will halt trading members applicable to inverse, section; and no later than the beginning of the leveraged, and inverse leveraged • Add the word ‘‘additional’’ to Rule trading day following the interruption. securities and options on such 14.11(f)(3) to clarify that the Exchange In addition, if the Exchange becomes securities, as described in FINRA may approve a series of TIRs for listing aware that the NAV with respect to a Regulatory Notices 09–31 (June 2009), and trading pursuant to Rule 19b–4(e) series of the TIRs is not disseminated to 09–53 (August 2009) and 09–65 under the Act, provided that such TIRs all market participants at the same time, (November 2009) (together, ‘‘FINRA satisfy the requirements in Rules it will halt trading in such series until Regulatory Notices’’). Members that 14.11(f)(1) and (2), as proposed to be such time as the NAV is available to all carry customer accounts will be amended, in addition to the market participants. required to follow the FINRA guidance requirements under subparagraph (f)(3) Surveillance set forth in the FINRA Regulatory relating to component securities Notices. The Information Circular will underlying such TIRs. The Exchange believes that its reference the FINRA Regulatory Notices surveillance procedures are adequate to Trading Rules regarding sales practice and customer address any concerns about the trading margin requirements for FINRA The Exchange deems the TIRs to be of the TIRs on the Exchange. Trading of members applicable to inverse, equity securities, thus rendering trading the TIRs on the Exchange will be subject leveraged, and inverse leveraged in the securities subject to the to the Exchange’s surveillance securities and options on such Exchange’s existing rules governing the procedures for derivative products. The securities. trading of equity securities. The TIRs Exchange may obtain information via The Exchange notes that, for inverse, will trade on the Exchange from 8:00 the Intermarket Surveillance Group leveraged, and inverse leveraged (‘‘ISG’’) from other exchanges who are securities, the corresponding funds seek 7 As set forth in Exchange Rule 11.2, ‘‘[a]ll members or affiliates of the ISG or with securities designated for trading are eligible for odd- leveraged, inverse, or leveraged inverse lot, round-lot and mixed-lot executions, unless which the Exchange has entered into a otherwise indicated by the Exchange or limited 9 For a list of the current members and affiliate pursuant to [the Exchange’s] Rules.’’ 8 See Rule 11.11(a). members of ISG, see www.isgportal.com.

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returns on a daily basis, and do not seek to the previous sector structure in which under limited circumstances (as further to achieve their stated investment the component weights floated described herein), swap agreements objective over a period of time greater throughout the year within the sector whose value is derived from the level of than one day because compounding weights, which were reset monthly. the Index, a Sub-Index, one or more prevents the funds from perfectly Other than the foregoing changes, no Index Components, or, in the case of achieving such results. Accordingly, other aspect of the Index or Sub-Indexes currency-based Financial Futures results over periods of time greater than is changing. Contracts, the exchange rates underlying one day typically will not be a leveraged The Index and each Sub-Index were such Financial Futures Contracts, or multiple (+200%), the inverse (-100%) developed by Standard & Poor’s and are invest in other futures contracts or or a leveraged inverse multiple (-200%) long/short rules-based investable swaps if such instruments tend to of the period return of the applicable indexes designed to attempt to capture exhibit trading prices or returns that benchmark and may differ significantly the economic benefit derived from both correlate with the Index or Sub-Indexes from these multiples. The Exchange’s rising and declining trends in futures or any Index Component and will Information Circular, as well as the prices.12 The Index is composed of further the investment objective of the applicable registration statement, will unleveraged positions in U.S. exchange- Fund.15 Each Fund may also invest in provide information regarding the traded futures contracts on sixteen suitability of an investment in such different tangible commodities cash or cash equivalents such as U.S. securities. (‘‘Commodity Futures Contracts’’), as Treasury securities or other high credit quality short-term fixed-income or Description of the Shares and the Funds well as U.S. exchange-traded futures contracts on eight different financials, similar securities (including shares of According to the Registration such as major currencies and U.S. money market funds, bank deposits, Statement, the Funds will seek to Treasury securities (‘‘Financial Futures bank money market accounts, certain provide investment results (before fees Contracts’’ and together with the variable rate-demand notes, and and expenses) that correspond to the Commodity Futures Contracts, ‘‘Index repurchase agreements collateralized by performance of the S&P Dynamic Components’’).13 Commodity Futures government securities) for direct Futures Index (‘‘DFI’’ or ‘‘Index’’) or to Contracts and Financial Futures investment or as collateral for the a sub-index of the Index (‘‘Sub-Index’’). Contracts each comprise a Sub-Index of Futures Contracts or swap agreements. The ProShares Managed Futures the Index: the DCFI and the DFFI, The Sponsor does not expect that the Strategy will seek to provide investment respectively (together, ‘‘Sub-Indexes’’). Funds will be invested directly in any results (before fees and expenses) that Previously, the Index and the DCFI commodity or currency. correspond to the performance of the were designed such that the energy According to the Registration DFI. The ProShares Commodity components would only be set long or Managed Futures Strategy will seek to Statement, each Fund will seek to flat (i.e., zero weight), rather than long achieve its investment objective by provide investment results (before fees or short. The rationale for this rule was and expenses) that correspond to the investing, under normal market the heightened potential for significant circumstances,16 in exchange-traded performance of the S&P Dynamic losses in the event of a supply Futures Contracts. In the event position Commodities Futures Index (‘‘DCFI’’), a disruption of certain energy markets. accountability rules or position limits Sub-Index of the DFI. The ProShares The Index and the DCFI have been with respect to a Futures Contract are Financial Managed Futures Strategy will redesigned to allow energy components reached with respect to a Fund, the seek to provide investment results to be set long or short. The primary (before fees and expenses) that considerations in this determination Sponsor may, in its commercially correspond to the performance of the were: reasonable judgment, cause such Fund S&P Dynamic Financial Futures Index • Potential losses are mitigated by the to obtain exposure through swaps (‘‘DFFI’’), another Sub-Index of the DFI. limited weight attributable to any single whose value is derived from the level of As mentioned above, the Commission energy component. the Index, a Sub-Index, one or more has previously approved the listing and • The magnitude of energy market Index Components, or, in the case of trading of the Funds on the NYSE price movements during previous major currency-based Financial Futures 10 Arca. Since approving the listing and market supply disruptions (e.g., the Gulf Contracts, the exchange rates underlying trading of the Funds on NYSE Arca, the Wars) does not support restricting short such Financial Futures Contracts or structure of the Index and its Sub- energy positions. invest in other futures contracts or Indexes have not changed and the In order to achieve the investment swaps if such instruments tend to underlying components remain the objective of the Funds, the Sponsor will exhibit trading prices or returns that same, however, the following changes in invest in: (i) Exchange-traded futures correlate with the Index, the Sub- administering the Index have occurred: • contracts of the type comprising the Indexes, or any Index Component and Rebalancing and positioning now Index or Sub-Indexes, as applicable will further the investment objective of occur on a component by component (‘‘Futures Contracts’’); 14 and/or (ii) basis, rather than by sector; • differ from the expiration dates of the Index energy components can now be 12 Standard & Poor’s is not a broker-dealer, is not Components at any given point in time. held in long or short positions, rather affiliated with a broker-dealer, and has 15 Terms relating to the Funds and the Shares that than just long or flat (as further implemented procedures designed to prevent the are referred to, but not defined herein, are defined described herein); 11 and use and dissemination of material, non-public in the Registration Statement. • components are set to their annual information regarding the Index and Sub-Indexes. 16 The term ‘‘under normal market 13 weights on a monthly basis, as opposed The Index Components are traded on the circumstances’’ includes, but is not limited to, the Chicago Mercantile Exchange, Inc. (‘‘CME’’), absence of extreme volatility or trading halts in the COMEX (a division of CME), Chicago Board of futures markets or the financial markets generally; 10 See Securities Exchange Act Release No. 66334 Trade (‘‘CBOT,’’ a division of CME), NYMEX (a operational issues causing dissemination of (February 6, 2012), 77 FR 7219 (February 10, 2012) division of CME), and ICE Futures US (‘‘ICE’’) inaccurate market information; or force majeure (SR–NYSEArca–2011–94) (order approving NYSE (collectively, ‘‘Futures Exchanges’’). type events such as systems failure, natural or man- Arca listing and trading of the Funds). 14 Futures Contracts will be the same type of made disaster, act of God, armed conflict, act of 11 As previously approved, all sectors other than contracts as the Index Components, but the terrorism, riot or labor disruption, or any similar energy could go long and short. expiration dates of such Futures Contracts may intervening circumstance.

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the Funds.17 The Funds may also invest commodity and financial markets.19 The positions the Index (and in swaps if the market for a specific Index Components are chosen based on accordingly, each Sub-Index) takes in Futures Contract experiences fundamental characteristics and the Index Components are not long- emergencies (e.g., natural disaster, liquidity. The Commodity Futures only, but are set by component, long or terrorist attack, or an act of God) or Contracts comprise the DCFI as short based on the relation of the disruptions (e.g., a trading halt or a flash described below, and the Financial current price input of each Index crash) that would prevent the Funds Futures Contracts comprise the DFFI, as Component with a seven-month from obtaining the appropriate amount described below. weighted moving average of the price of investment exposure to the affected inputs of the same Index Component. Futures Contracts or other futures Weightings of the Commodity Futures contracts directly.18 Contracts are based on generally known The following charts reflect the initial world production levels, as adjusted to 2012 weighting schemes for the Index The Index and the Sub-Indexes limit the impact of the energy-related and each Sub-Index. For the Index, the The Index is composed of the Index Index Components. Weightings of the initial Index weights, together with Components, representing unleveraged Financial Futures Contracts are based information about the exchange and long or short positions in U.S. exchange- on, but not directly proportional to, trading hours for each Futures Contract, traded futures contracts in the gross domestic product (‘‘GDP’’). are as follows:

INDEX WEIGHTS

Weight Weight Weight 20 Sub-Index (percent) Sector (percent) Component (percent) Exchange Trading Hours

DCFI ...... 50 Energy ...... 15.06 Light Crude...... 10.93 NYMEX (CME)..... 6:00 p.m.–5:15 p.m. next day. Heating Oil ...... 1.79 NYMEX (CME) ..... 6:00 p.m.–5:15 p.m. next day. RBOB Gasoline .... 1.74 NYMEX (CME) ..... 6:00 p.m.–5:15 p.m. next day. Natural Gas ...... 0.59 NYMEX (CME) ..... 6:00 p.m.–5:15 p.m. next day. Industrial Metals ... 4.67 Copper ...... 4.67 COMEX (CME) ..... 6:00 p.m.–5:15 p.m. next day. Precious Metals .... 5.09 Gold ...... 4.36 COMEX (CME) ..... 6:00 p.m.–5:15 p.m. next day. Silver ...... 0.72 COMEX (CME) ..... 6:00 p.m.–5:15 p.m. next day. Livestock ...... 6.02 Lean Hogs...... 2.12 CME ...... ** 21 Live Cattle ...... 3.90 CME ...... ** 22 Grains ...... 13.33 Corn ...... 6.20 CBOT (CME) ...... 6:00 p.m.–3:00 p.m. next day. Soybeans ...... 3.16 CBOT (CME) ...... 6:00 p.m.–3:00 p.m. next day. Wheat ...... 3.97 CBOT (CME) ...... 6:00 p.m.–3:00 p.m. next day. Softs ...... 5.83 Coffee ...... 1.23 ICE ...... 3:30 am–2:00 p.m. Cocoa ...... 0.31 ICE ...... 4:00 am–2:00 p.m. Sugar ...... 2.67 ICE ...... 2:30 am–2:00 p.m. Cotton ...... 1.63 ICE ...... 9:00 p.m.–2:30 p.m. next day. DFFI ...... 50 Australian Dollar ... 1.61 Australian Dollar ...... CME ...... 6:00 p.m.–5:15 p.m. next day. British Pound ...... 3.01 British Pound ...... CME ...... 6:00 p.m.–5:15 p.m. next day. Canadian Dollar .... 2.05 Canadian Dollar ...... CME ...... 6:00 p.m.–5:15 p.m. Next day. Euro ...... 16.49 Euro ...... CME ...... 6:00 p.m.–5:15 p.m. Next day. Japanese Yen ...... 7.09 Japanese Yen ...... CME ...... 6:00 p.m.–5:15 p.m. Next day. Swiss Franc ...... 0.66 Swiss Franc ...... CME ...... 6:00 p.m.–5:15 p.m. Next day. U.S. Treasury 9.54 U.S. Treasury ...... CBOT (CME) ...... 6:00 p.m.–5:00 Notes 23. Notes. p.m. Next day. U.S. Treasury 9.54 U.S. Treasury ...... CBOT (CME) ...... 6:00 p.m.–5:00 Bonds 24. Bonds. p.m. Next day.

17 To the extent practicable, the Funds will invest determine the creditworthiness of a counterparty. Industrial Metals) and each commodity is assigned in swaps cleared through the facilities of a The Sponsor will take various steps to limit a percentage weight. Similarly, the financial centralized clearing house. counterparty credit risk, as described in the markets portion of the Index consists of multiple 18 According to the Registration Statement, the Registration Statement. foreign currency and U.S. Treasury sectors (e.g., 19 Sponsor will also attempt to mitigate the Funds’ As set forth in the Index weighting scheme Australian dollar, U.S. Treasury Notes), each with credit risk by transacting only with large, well- example below, the commodity portion of the Index an assigned component weight. capitalized institutions using measures designed to consists of multiple commodities (e.g., Energy,

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INDEX WEIGHTS—Continued

Weight Weight Weight 20 Sub-Index (percent) Sector (percent) Component (percent) Exchange Trading Hours

Totals .... 100 ...... 100 ...... 100 20 All times are E.T., inclusive of electronic and open outcry trading sessions, as applicable. 21 Lean Hogs trade from 10:05 a.m. Monday to 2:55 p.m. Friday, with daily trading halts from 5:00 p.m. to 6:00 p.m. 22 Live Cattle trade from 10:05 a.m. Monday to 2:55 p.m. Friday, with daily trading halts from 5:00 p.m. to 6:00 p.m. 23 ‘‘U.S. Treasury Notes’’ refer to 10 year U.S. Treasury Note futures. 24 ‘‘U.S. Treasury Bonds’’ refer to those futures with underlying bonds of a remaining term to call or maturity of 15–25 years.

For the DCFI, the initial Sub-Index weightings would be as follows:

DCFI WEIGHTS

Weight Weight Sector (percent) Component (percent)

Energy ...... 30.12 Light Crude...... 21.86 Heating Oil ...... 3.58 RBOB Gasoline ...... 3.49 Natural Gas ...... 1.19 Industrial Metals ...... 9.34 Copper ...... 9.34 Precious Metals ...... 10.18 Gold ...... 8.73 Silver ...... 1.45 Livestock ...... 12.04 Lean Hogs...... 4.24% Live Cattle ...... 7.80 Grains ...... 26.67 Corn ...... 12.41 Soybeans ...... 6.31 Wheat ...... 7.95 Softs ...... 11.67 Coffee ...... 2.45 Cocoa ...... 0.62 Sugar ...... 5.34 Cotton ...... 3.26

Total ...... 100 ...... 100

Finally, for the DFFI, the initial Sub- Index weightings would be as follows:

DFFI WEIGHTS

Weight Weight Sector (percent) Component (percent)

Australian Dollar ...... 3.23 Australian Dollar ...... 3.23 British Pound ...... 6.02 British Pound ...... 6.02 Canadian Dollar ...... 4.10 Canadian Dollar ...... 4.10 Euro ...... 32.99 Euro ...... 32.99 Japanese Yen ...... 14.17 Japanese Yen ...... 14.17 Swiss Franc ...... 1.33 Swiss Franc ...... 1.33 U.S. Treasury Notes ...... 19.08 U.S. Treasury Notes ...... 19.08 U.S. Treasury Bonds ...... 19.08 U.S. Treasury Bonds ...... 19.08

Total ...... 100 ...... 100

Index Components are rebalanced the exponential weighted average of the an Index Component’s price is each month to their annually past seven monthly price inputs; and compared to past monthly price determined weights. • Short positions are tracked when an changes, exponentially weighted to give Index Component’s current one-month greatest weight to the most recent return Determining the Long/Short Positioning price change is less than the exponential and least weight to the return seven of the Index Components weighted average of the past seven months prior. The weighted sum of the The rules for the Index and each Sub- monthly price inputs. percentage changes of all the Index Index regarding long or short positions Monthly long or short positions are Component prices equals the daily are summarized as follows: determined on the second to last DFI movement of the Index. • Long positions are tracked when an business day of the month (defined as To create an exponential average for Index Component’s current one-month the position determination date, or PDD) comparison, price inputs (percentage price change is greater than or equal to when the monthly percentage change of change from current and previous PDDs)

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are weighted per the schedule below. the Administrator at 3:00 p.m. E.T. and and the end of Regular Trading Hours Due to this weighting methodology, will be disseminated daily to market will be impacted by static values for current price movements are more participants. certain Futures Contracts.27 For each important than those of the more distant In calculating the NAV of each Fund, Fund, the IIV will be calculated past. all open Futures Contracts will be throughout Regular Trading Hours using calculated at their then current market the prior day’s closing NAV of such Number of Months Weight value, as described in the Registration Fund as a base and updating throughout (percent) Statement. The current market value of the trading day changes in the value of each Fund’s Futures Contracts, cash 7 ...... 2.32 all open Futures Contracts, to the extent 6 ...... 3.71 applicable, will be based upon the equivalents, swap agreements, if 5 ...... 5.94 settlement price for that particular applicable, and other applicable 4 ...... 9.51 Futures Contract on the date with holdings. The IIV should not be viewed 3 ...... 15.22 respect to which NAV is being as an actual real-time update of the NAV 2 ...... 24.34 determined, as described in the because NAV is calculated only once 1 ...... 38.95 Registration Statement. each trading day at 3:00 p.m. E.T. The The settlement value of a Fund’s swap IIV also should not be viewed as a Total ...... 100.00 agreements, as applicable, will be precise value of the Shares. According to the Registration All the Index Components will be set determined by applying the then- current disseminated value for the Statement, dissemination of the IIV long or short upon each monthly provides additional information that is rebalancing. applicable Index Components to the terms of the Funds’ swap agreements. not otherwise available to the public in Index Component Rebalancing In the event that an underlying Index such form and may be useful to investors and market professionals in Index Component weights are fixed Component is not trading due to the connection with the trading of Shares. each year and rebalanced back to their operation of daily limits or otherwise, annual base weight monthly. the Sponsor may in its sole discretion Creation and Redemption of Shares choose to fair value the applicable Index During this monthly rebalancing, the According to the Registration or Sub-Index level in order to value a Index will also ‘‘roll’’ certain of its Statement, each Fund will create and Fund’s futures contracts and, if positions from the current contract to a redeem Shares from time to time, but 25 applicable, swap agreements for contract further from settlement. only in one or more Creation Units. A purposes of NAV calculation. Creation Unit is a block of 50,000 Net Asset Value The Exchange will obtain a Shares. Creation Units may be created or The NAV in respect of each Fund representation (prior to listing of each redeemed only by authorized means the total assets of such Fund Fund) from the Trust that the NAV per participants, as described in the including, but not limited to, all cash Share will be calculated daily and made Registration Statement. Except when and cash equivalents or other debt available to all market participants at aggregated in Creation Units, the Shares securities less total liabilities of such the same time. will not be redeemable securities. The Fund, each determined on the basis of Intraday Indicative Value Sponsor will make available on a daily generally accepted accounting basis the total cash payment required to principles in the United States, An estimated value, defined in BATS create each Creation Unit of a Fund on consistently applied under the accrual Rule 14.11(i)(3)(C) as the ‘‘Intraday the purchase order date in connection method of accounting. In particular, Indicative Value’’ or ‘‘IIV’’ that reflects with the issuance of the respective NAV will include any unrealized profit a current estimated intraday value of Shares. Authorized participants may or loss on open Futures Contracts and Futures Contracts and other applicable pay a fixed and/or variable transaction other holdings, if any, and any other holdings, cash and receivables, less fee in connection with each order to credit or debit accruing to a Fund but liabilities of each Fund, will be create or redeem a Creation Unit. unpaid or not received by such Fund. disseminated. Authorized participants may sell the The NAV per Share of each Fund will For each Fund, the IIV will be widely Shares included in the Creation Units be computed by dividing the value of disseminated on a per Share basis by they purchase from the Funds to other the net assets of such Fund (i.e., the one or more major market data vendors investors. On any business day, an value of its total assets less total every 15 seconds during ‘‘Regular authorized participant may place an liabilities) by its total number of Shares Trading Hours’’ (9:30 a.m. to 4:00 p.m. order prior to 10:45 a.m. E.T. with the outstanding. Expenses and fees will be E.T.).26 The value of a Share may be Distributor to create one or more accrued daily and taken into account for influenced by non-concurrent trading Creation Units. The total payment purposes of determining NAV. The NAV hours between the Exchange and the required to create each Creation Unit for the Funds will be calculated daily by applicable Futures Exchanges trading Futures Contracts when the Shares are will be equal to the NAV of 50,000 Shares of the applicable Fund on the 25 The Index is composed of Index Components, traded on the Exchange after normal which are futures contracts. In order to maintain trading hours of such Futures purchase order date plus the applicable consistent exposure to the Index Components, each Exchanges. The IIV will be updated transaction fee. Index Component contract must be sold prior to its According to the Registration during Regular Trading Hours when expiration date and replaced by a contract maturing Statement, the procedures by which an applicable Futures Exchanges are at a specified date in the future. This process is authorized participant can redeem one known as rolling. Index Component contracts are trading any Futures Contracts held by rolled periodically. The rolls are implemented the Funds. However, the IIV that will be pursuant to a roll schedule over a five-day period 27 The value of the IIV will be based on the from the first through the fifth Index business days disseminated between 11:50 a.m. E.T. underlying Futures Contracts. Once a particular of the month. An Index business day is any day on Futures Contract settles, a static closing value for which the majority of the Index Components are 26 Currently, it is the Exchange’s understanding that Futures Contract will be used to calculate the open for official trading and official settlement that several major market data vendors display and/ IIV, which will continue to update based on any prices are provided, excluding holidays and or make widely available IIVs published on CTA or other futures contracts that have not reached their weekends. other data feeds. settlement time.

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or more Creation Units will mirror the available, as applicable, from the The anticipated minimum number of procedures for the creation of Creation respective Futures Exchanges. Shares for each Fund to be outstanding Units. On any business day, an Quotation and last-sale information for at the start of trading will be 100,000 authorized participant may place an the Shares will be available via the CTA Shares. The Exchange believes that this order prior to 10:45 a.m. E.T. with the high-speed line. anticipated minimum number of Shares Distributor to redeem one or more Portfolio Disclosure for each Fund to be outstanding at the Creation Units. Individual shareholders start of trading is sufficient to provide may not redeem directly from a Fund. Each Fund’s total portfolio adequate market liquidity and to further By placing a redemption order, an composition will be disclosed on such the objectives of each Fund. The authorized participant agrees to deliver Fund’s Web site or another relevant Exchange represents that, for the initial the Creation Units to be redeemed Web site as determined by the Trust and continued listing of the Shares, the through the Depository Trust and/or the Exchange. The Trust will Funds must be in compliance with Rule Company’s book-entry system to a Fund provide Web site disclosure of portfolio 14.11(f)(4) as well as Rule 10A–3 under not later than noon E.T., on the first holdings daily and will include, as the Act. business day immediately following the applicable, the names, notional value redemption order date (T+1). The (in U.S. dollars) and number of Futures Trading Halts Contracts or units of swaps held by a Sponsor reserves the right to extend the With respect to trading halts, the Fund, if any, cash equivalents, and the deadline for the Fund to receive the Exchange may consider all relevant amount of cash held in the portfolio of Creation Units up to the third business factors in exercising its discretion to each Fund. This public Web site day following the redemption order date halt or suspend trading in the Shares. disclosure of the portfolio composition (T+3). The redemption proceeds from a The Exchange will halt trading in the of the Funds will occur at the same time Fund will consist of the cash Shares under the conditions specified in as the disclosure by the Sponsor of the redemption amount. The cash BATS Rule 11.18. Trading may be portfolio composition to authorized redemption amount is an amount equal halted because of market conditions or to the NAV of the number of Creation participants, so that all market for reasons that, in the view of the Unit(s) of a Fund requested in the participants are provided portfolio Exchange, make trading in the Shares authorized participant’s redemption composition information at the same inadvisable. These may include: (1) The order as of the time of the calculation of time. Therefore, the same portfolio extent to which trading is not occurring the Fund’s NAV on the redemption information will be provided on the in the futures contracts and/or the order date, less transaction fees, as public Web site as well as in electronic financial instruments comprising the described in the Registration Statement. files provided to authorized Funds; or (2) whether other unusual participants. Accordingly, each investor Availability of Information Regarding conditions or circumstances detrimental will have access to the current portfolio the Shares to the maintenance of a fair and orderly composition of the Funds through the market are present. If any of the Intraday The Web site for the Funds Funds’ Web site, and/or at the Indicative Value, the level of the (www.ProShares.com) and/or the Exchange’s Web site. Exchange, which are publicly accessible underlying index, or the value of the at no charge, will contain the following Availability of Information About the underlying assets of the TIRs is not information: (a) The current NAV per Index and Sub-Indexes being disseminated as required, the Share daily and the prior business day’s The daily closing Index level and the Exchange may halt trading during the NAV per Share; (b) calculation of the percentage change in the daily closing day in which such interruption to the premium or discount between the NAV Index level for the Index and each Sub- dissemination occurs. If an interruption per Share and the price or mid-point of Index will be publicly available from to the dissemination of the Intraday the Bid/Ask Price of the Funds as of the one or more major market data vendors. Indicative Value, the value of the time the NAV is calculated or as of the Data regarding the Index and each Sub- underlying index, or the value of the official market close; (c) the prospectus; Index, updated every 15 seconds during underlying assets of the TIRs persists and (d) other applicable quantitative Regular Trading Hours, is also available past the trading day in which it information. from Standard & Poor’s on a occurred, the Exchange will halt trading The Exchange also will disseminate subscription basis. Several independent no later than the beginning of the on a daily basis via the Consolidated data vendors also package and trading day following the interruption. Tape Association (‘‘CTA’’) information disseminate Index and Sub-Index data In addition, if the Exchange becomes with respect to the recent NAV and in various value-added formats aware that the NAV is not disseminated Shares outstanding. The Exchange will (including vendors displaying both to all market participants at the same also make available on its Web site Index constituents and Index levels and time, it will halt trading until such time (www.batstrading.com) daily trading vendors displaying Index levels only). as the NAV is available to all market volume of the Shares. Daily trading Data regarding the Index Components is participants. volume information will also be also available from the Web sites of the Trading Rules available in the financial section of Futures Exchanges. Data regarding the newspapers, their related Web sites or commodities, currencies, and Treasury The Exchange deems the Shares to be other financial Web sites, through securities underlying the Index equity securities, thus rendering trading subscription services such as Components is publicly available from in the Shares subject to the Exchange’s Bloomberg, Thomson Reuters, and various financial information service existing rules governing the trading of International Data Corporation, which providers. equity securities. BATS will allow can be accessed by authorized trading in the Shares during Regular participants and other investors, as well Criteria for Initial and Continued Listing Trading Hours, as well as during the as through other electronic services, The Funds will be subject to the Pre-Opening Session 28 and the After including major public Web sites. The criteria proposed above in BATS Rule intra-day, closing, and settlement prices 14.11(f)(4) for initial and continued 28 The Pre-Opening Session is from 8:00 a.m. to of the Futures Contracts are also readily listing of the Shares. 9:30 a.m. E.T.

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Hours Trading Session.29 The Exchange redeemable); (2) BATS Rule 3.7, which among market participants, to the has appropriate rules to facilitate imposes suitability obligations on benefit of investors and the marketplace. transactions in the Shares during all Exchange members with respect to In addition, the listing and trading trading sessions. As provided in BATS recommending transactions in the criteria set forth in the proposed rules Rule 11.11(a), the minimum price Shares to customers; (3) how are intended to protect investors and the variation for quoting and entry of orders information regarding the Intraday public interest. in TIRs traded on the Exchange is $0.01, Indicative Value is disseminated; (4) the The Exchange’s listing requirements with the exception of securities that are risks involved in trading the Shares as proposed herein are at least as priced less than $1.00 for which the during the Pre-Opening and After Hours stringent as those of AMEX and NYSE minimum price variation for order entry Trading Sessions when an updated Arca and, consequently, the proposed is $0.0001. Trading of the Shares will Intraday Indicative Value will not be rule change is consistent with the also be subject to proposed BATS Rule calculated or publicly disseminated; (5) protection of investors and the public 14.11(f)(4)(D), which sets forth certain the requirement that members deliver a interest. Additionally, the proposal is restrictions on Members acting as prospectus to investors purchasing designed to prevent fraudulent and market makers. newly issued Shares prior to or manipulative acts and practices, as all of concurrently with the confirmation of a the proposed new products are subject Surveillance transaction; and (6) trading information. to existing Exchange trading rules, The Exchange believes that its In addition, the Information Circular together with specific requirements for surveillance procedures are adequate to will advise members, prior to the registered market makers, books and properly monitor the trading of the commencement of trading, of the record production, surveillance Shares on the Exchange during all prospectus delivery requirements procedures, suitability and prospectus trading sessions and to deter and detect applicable to the Funds. Members requirements, and requisite Exchange violations of Exchange rules and the purchasing Shares from the Funds for approvals, all set forth above. applicable federal securities laws. resale to investors will deliver a The proposal is also designed to Trading of the Shares through the prospectus to such investors. The promote just and equitable principles of Exchange will be subject to the Information Circular will also discuss trade by way of initial and continued Exchange’s surveillance procedures for any exemptive, no-action, and listing standards which, if not derivative products, including TIRs. The interpretive relief granted by the maintained, will result in the Exchange can obtain market Commission from any rules under the discontinuation of trading in the surveillance information, including Act. affected products. These requirements, customer identity information, with In addition, the Information Circular together with the applicable Exchange respect to transactions occurring on the will reference that the Funds are subject equity trading rules (which will apply to Futures Exchanges, all of which are to various fees and expenses described products listed under the proposed currently members of ISG.30 In addition, in the Registration Statement. The criteria), ensure that no investor would for components traded on exchanges, Information Circular will also disclose have an unfair advantage over another not more than 10% of the weight of a the trading hours of the Shares and the respecting the trading of the subject Fund’s portfolio in the aggregate shall applicable NAV calculation time for the products. On the contrary, all investors consist of components whose principal Shares. The Information Circular will will have the same access to, and use of, trading market is not a member of ISG disclose that information about the information concerning the specific or is a market with which the Exchange Shares of the Funds will be publicly products and trading in the specific does not have a comprehensive available on the Funds’ Web site. products, all to the benefit of public surveillance sharing agreement. Finally, customers and the marketplace as a 2. Statutory Basis all Futures Contracts will be traded on whole. a trading market that is a member of ISG The rule change proposed in this Furthermore, the proposal is designed or is a market with which the Exchange submission is consistent with the to remove impediments to and perfect has a comprehensive surveillance requirements of the Act and the rules the mechanism of a free and open sharing agreement. The Exchange also and regulations thereunder that are market and a national market system by prohibits the distribution of material, applicable to a national securities adopting listing standards that will lead non-public information by its exchange, and, in particular, with the ultimately to the trading of the proposed employees. requirements of Section 6(b) of the new products on the Exchange, just as Act.31 Specifically, the proposed change they are currently traded on other Information Circular is consistent with Section 6(b)(5) of the exchanges. The Exchange believes that Prior to the commencement of Act,32 because it is designed to prevent individuals and entities permitted to trading, the Exchange will inform its fraudulent and manipulative acts and make markets on the Exchange in the members in an Information Circular of practices, to promote just and equitable proposed new products should enhance the special characteristics and risks principles of trade, to foster cooperation competition within the mechanism of a associated with trading the Shares. and coordination with persons engaged free and open market and a national Specifically, the Information Circular in facilitating transactions in securities, market system, and customers and other will discuss the following: (1) The and to remove impediments to, and investors in the national market system procedures for purchases and perfect the mechanism of, a free and should benefit from more depth and redemptions of Shares in Creation Units open market and a national market liquidity in the market for the proposed (and that Shares are not individually system. The Exchange believes that the new products. proposed rules will facilitate the listing As it relates to the Funds, the 29 The After Hours Trading Session is from 4:00 and trading of additional types of Exchange believes that the proposed p.m. to 5:00 p.m. E.T. exchange-traded products on the rule change is designed to prevent 30 The Exchange notes that certain components of Exchange that will enhance competition fraudulent and manipulative acts and the portfolio for the Funds may not trade on markets that are members of ISG or with which the practices in that the Shares will be Exchange has in place a comprehensive 31 15 U.S.C. 78f(b). listed and traded on the Exchange surveillance sharing agreement. 32 15 U.S.C. 78f(b)(5). pursuant to the initial and continued

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listing criteria proposed in Rule market supply disruptions (e.g., the Gulf mechanism of a free and open market 14.11(f)(4). The Exchange has in place Wars) does not support restricting short and, in general, to protect investors and surveillance procedures that are energy positions. the public interest in that it will adequate to properly monitor trading in The proposed rule change is also facilitate the listing and trading of an the Shares in all trading sessions and to designed to promote just and equitable additional type of exchange-traded deter and detect violations of Exchange principles of trade and to protect product that will enhance competition rules and applicable federal securities investors and the public interest in that among market participants, to the laws. The Exchange can obtain market the Exchange will obtain a benefit of investors and the marketplace. surveillance information, including representation from the issuer of the The Exchange has in place surveillance customer identity information, with Shares that the NAV per Share will be procedures relating to trading in the respect to transactions occurring on the calculated daily and that the NAV will Shares and may obtain information via Futures Exchanges, all of which are be made available to all market ISG from other exchanges that are currently members of ISG, as noted participants at the same time. In members of ISG or with which the above. In addition, for components addition, a large amount of information Exchange has entered into a traded on exchanges, not more than is publicly available regarding the comprehensive surveillance sharing 10% of the weight of a Fund’s portfolio Funds and the Shares, thereby agreement. in the aggregate shall consist of promoting market transparency. On For the above reasons, the Exchange components whose principal trading each business day, before believes that the proposed rule change market is not a member of ISG or is a commencement of trading in Shares on is consistent with the requirements of the Exchange, the Funds will disclose market with which the Exchange does Section 6(b)(5) of the Act. the identities and quantities of the not have a comprehensive surveillance futures contracts and other assets held B. Self-Regulatory Organization’s sharing agreement. The Futures by the Funds that will form the basis for Statement on Burden on Competition Contracts are traded on the Futures the calculation of NAV at the end of the Exchanges, each of which is an ISG The Exchange does not believe that business day. Moreover, the Intraday member, and information regarding the proposed rule change imposes any Indicative Value will be disseminated trading in the Index Components is burden on competition. by one or more major market data available from the Web sites of the vendors at least every 15 seconds during C. Self-Regulatory Organization’s respective Futures Exchanges and from Regular Trading Hours. Pricing Statement on Comments on the major market data vendors. The daily information will be available on the Proposed Rule Change Received From closing Index level and the percentage Trust’s Web site including: (1) The Members, Participants, or Others change in the daily closing Index level current NAV per Share daily and the The Exchange has neither solicited for the Index and each Sub-Index will prior business day’s NAV per Share; (2) nor received written comments on the be publicly available from one or more calculation of the premium or discount proposed rule change. major market data vendors. Data between the NAV per Share and the regarding the Index and each Sub-Index, price or mid-point of the Bid/Ask Price III. Date of Effectiveness of the updated every 15 seconds during of the Funds as of the time the NAV is Proposed Rule Changes and Timing for Regular Trading Hours, is also available calculated or as of the official market Commission Action from Standard & Poor’s on a close; (3) the prospectus; and (4) other Within 45 days of the date of subscription basis. Standard & Poor’s applicable quantitative information. publication of this notice in the Federal has implemented procedures designed Additionally, information regarding Register or within such longer period (i) to prevent the use and dissemination of market price and trading of the Shares as the Commission may designate up to material, non-public information is and will be continually available on 90 days of such date if it finds such regarding the Index and Sub-Indexes. a real-time basis throughout the day on longer period to be appropriate and Data regarding the commodities, brokers’ computer screens and other publishes its reasons for so finding or currencies, and Treasury securities electronic services, and quotation and (ii) as to which the Exchange consents, underlying the Index Components is last-sale information for the Shares will the Commission will: publicly available from various financial be available on the relevant Exchange A. by order approve or disapprove information service providers. The data feeds, which contain information such proposed rule change; or Exchange may halt trading during the for widely followed indexes and B. institute proceedings to determine day in which an interruption to the securities traded on the Exchange. The whether the proposed rule change dissemination of the IIV, the level of the Web site for the Funds will include a should be disapproved. Index (or Sub-Index) or the value of the form of the prospectus for the Funds underlying Futures Contracts occurs. If and additional data relating to NAV and IV. Solicitation of Comments an interruption to the dissemination of other applicable quantitative Interested persons are invited to the IIV, the level of the Index (or Sub- information. Trading in the Shares will submit written data, views, and Index), or the value of the underlying be halted under the conditions specified arguments concerning the foregoing, Futures Contracts persists past the in BATS Rule 11.18. Trading may also including whether the proposed rule trading day in which it occurred, the be halted because of market conditions change is consistent with the Act. Exchange will halt trading no later than or for reasons that, in the view of the Comments may be submitted by any of the beginning of the trading day Exchange, make trading in the Shares the following methods: following the interruption. As inadvisable. In addition, as noted above, Electronic Comments mentioned above, energy components investors will have ready access to are now set long or short because: (i) information regarding the Funds’ • Use the Commission’s Internet Potential losses are mitigated by the holdings, the Intraday Indicative Value, comment form (http://www.sec.gov/ limited weight attributable to any single and quotation and last-sale information rules/sro.shtml); or energy component; and (ii) the for the Shares. • Send an email to rule-comments@ magnitude of energy market price On the whole, the proposed rule sec.gov. Please include File Number SR– movements during previous major change is designed to perfect the BATS–2012–044 on the subject line.

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Paper Comments SECURITIES AND EXCHANGE The Exchange has prepared summaries, set forth in sections A, B, and C below, • COMMISSION Send paper comments in triplicate of the most significant parts of such to Elizabeth M. Murphy, Secretary, [Release No. 34–68265; File No. SR–CBOE– statements. Securities and Exchange Commission, 2012–109] A. Self-Regulatory Organization’s 100 F Street NE., Washington, DC Self-Regulatory Organizations; 20549–1090. Statement of the Purpose of, and the Chicago Board Options Exchange, Statutory Basis for, the Proposed Rule All submissions should refer to File Incorporated; Notice of Proposed Rule Change Number SR–BATS–2012–044. This file Change Related to CBSX To Address 1. Purpose number should be included on the Authority To Cancel Orders When a subject line if email is used. To help the Technical or Systems Issue Occurs The purpose of the proposed rule Commission process and review your and To Describe the Operation of change is to adopt new Rule 52.3A to comments more efficiently, please use Routing Service Error Accounts address the authority of CBSX to cancel orders (or release routing-related orders) only one method. The Commission will November 19, 2012. when a technical or systems issue post all comments on the Commission’s 1 Pursuant to Section 19(b)(1) of the occurs and to adopt new Rule 52.10A to Internet Web site (http://www.sec.gov/ Securities Exchange Act of 1934 (the describe the operation of a CBSX Error 2 3 rules/sro.shtml). Copies of the ‘‘Act’’) and Rule 19b–4 thereunder, Account(s) (‘‘CBSX Error Account(s)’’) submission, all subsequent notice is hereby given that, on and routing broker error account(s), amendments, all written statements November 16, 2012, the Chicago Board which may be used to liquidate with respect to the proposed rule Options Exchange, Incorporated (the unmatched executions that may occur change that are filed with the ‘‘Exchange’’ or ‘‘CBOE’’) filed with the in the provision of CBSX’s routing Commission, and all written Securities and Exchange Commission service. communications relating to the (the ‘‘Commission’’) the proposed rule By way of background, CBSX operates proposed rule change between the change as described in Items I and II a system of trading that allows Commission and any person, other than below, which Items have been prepared automatic executions to occur those that may be withheld from the by the self-regulatory organization. The electronically. As part of this public in accordance with the Commission is publishing this notice to infrastructure, CBSX also automatically provisions of 5 U.S.C. 552, will be solicit comments on the proposed rule routes orders to other trading centers available for Web site viewing and change from interested persons. under certain circumstances. These printing in the Commission’s Public I. Self-Regulatory Organization’s routing services are provided in Reference Section, 100 F Street NE., Statement of the Terms of Substance of conjunction with one or more routing Washington, DC 20549, on official the Proposed Rule Change brokers that are not affiliated with CBSX.4 Mechanically, when CBSX business days between 10:00 a.m. and The Exchange is proposing to amend receives an order from a Trading Permit 3:00 p.m. Copies of the filing will also its rules to (i) address the authority of Holder (‘‘TPH’’) that is held in CBSX be available for inspection and copying CBOE Stock Exchange, LLC (‘‘CBSX,’’ system and determines to route an order at the principal office of the Exchange. CBOE’s stock execution facility) to to another trading center, CBSX All comments received will be posted cancel orders (or release routing-related provides the routing broker with a without change; the Commission does orders) when a technical or systems corresponding order and instructions to not edit personal identifying issue occurs; and (ii) describe the route the order to another trading information from submissions. You operation of a CBSX error account(s) center(s). The routing broker then sends should submit only information that and routing broker error account(s), the corresponding order to the other you wish to make available publicly. All which may be used to liquidate trading center.5 submissions should refer to File unmatched executions that may occur Number SR–BATS–2012–044 and in the provision of CBSX’s routing 4 See, e.g., Rule 52.10, Order Routing to Other should be submitted on or before service. The text of the rule proposal is Trading Centers. 5 December 17, 2012. available on the Exchange’s Web site Generally, the routing brokers route the orders (http://www.cboe.org/legal), at the directly to other trading centers. However, it is For the Commission, by the Division of possible that a routing broker may route orders to Exchange’s Office of the Secretary and another trading center through a third-party broker- Trading and Markets, pursuant to delegated at the Commission’s Public Reference dealer. In those cases, the third-party broker-dealer 33 authority. Room. would route the orders to the other trading center Kevin M. O’Neill, in its name, and any executions would be submitted II. Self-Regulatory Organization’s for clearance and settlement in the name of the Deputy Secretary. Statement of the Purpose of, and routing broker so that any resulting positions are [FR Doc. 2012–28525 Filed 11–23–12; 8:45 am] delivered to the routing broker upon settlement. As Statutory Basis for, the Proposed Rule described above, normally the routing broker would BILLING CODE 8011–01–P Change then coordinate with CBSX to arrange for any resulting securities positions to be delivered to the In its filing with the Commission, the TPH that submitted the corresponding order to self-regulatory organization included CBSX. If error positions (as defined in proposed statements concerning the purpose of Rule 52.10A) result in connection with the routing and basis for the proposed rule change broker’s use of a third-party broker-dealer for outbound routing, and those positions are delivered and discussed any comments it received to the routing broker through the clearance and on the proposed rule change. The text settlement process, those positions would be of those statements may be examined at permitted to be resolved in accordance with the places specified in Item IV below. proposed Rule 52.10A. If the third-party broker- dealer received error positions and the positions were not delivered to the routing broker through the 1 15 U.S.C. 78s(b)(1). clearance and settlement process, then the third- 2 15 U.S.C. 78a. party broker-dealer would resolve those position 33 17 CFR 200.30–3(a)(12). 3 17 CFR 240.19b–4. Continued

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In the normal course, the routing Rules.8 Paragraph (a) would also experiences a connectivity issue affecting the broker reports an execution or provide that CBSX shall provide notice manner in which it sends and receives order cancellation of the routed order back to of the cancellation to affected Trading messages to or from another trading center, Permit Holders as soon as practicable. it may be unable to receive timely execution CBSX. Routed orders that are executed or cancellation reports from the other trading at another trading center are submitted Paragraph (b) of the proposed rule center, and CBSX may consequently seek to for clearance and settlement in the name provides that CBSX may also determine cancel the affected routed orders (e.g., by of the routing broker. The routing broker to release orders being held on CBSX calling the routing broker and instructing the then coordinates with CBSX to arrange awaiting another trading center routing broker to attempt to cancel the for any resulting securities positions to execution as it deems to be necessary to orders) or perhaps the routing broker may be delivered to the TPH that submitted maintain fair and orderly markets if a initiate the cancellation of the affected routed the original order to CBSX (i.e., upon technical or systems issues occurs at orders pursuant to a standing or specific CBSX, a routing broker, or another instruction from CBSX. In these receipt of a filled execution report for circumstances, CBSX would also attempt to the routed order, the CBSX system pairs trading center to which an order has release the initial orders submitted by the execution against the TPH’s original been routed (the process for ‘‘releasing’’ TPHs.11 order being held in the CBSX system orders is illustrated in more detail Example 2: If CBSX does not receive and reports the pairing for clearance and below). Paragraph (c) of the proposed confirmation of an execution (or settlement purposes by submitting a rule would provide that, for purposes of cancellation) of an IOC order sent to another non-tape, clearing only transaction). Rule 52.10A, technical or system issues trading center from a routing broker within would include, without limitation, a designated response time interval of three From time to time, CBSX encounters (3) seconds, then an automated system situations in which it becomes instances where CBSX has not received feature will release the initial order being necessary to cancel orders (or release confirmation of an execution (or held by CBSX.12 CBSX would also attempt to routing-related orders) and resolve error cancellation) on another trading center cancel the routed order in these positions that result from errors of from a routing broker within a response circumstances.13 CBSX, routing brokers, or another time interval designated by CBSX, trading center.6 which interval may not be less than trading center, a TPH sends an instruction to cancel three (3) seconds.9 the original order, the cancellation is held by CBSX Proposed Rule 52.3A (Order until a response is received from the routing broker The examples set forth below describe on the corresponding order. For instance, if the Cancellation/Release) some of the circumstances in which other trading center executes the corresponding The Exchange proposes to adopt new CBSX may decide to cancel (or release) order, the execution would be passed onto the TPH orders. and the cancellation instruction on the TPH’s Rule 52.3A to address the authority of original order would be disregarded. CBSX to cancel orders when a technical Example 1: If a routing broker or another 11 Once an initial order is released, any or systems issue occurs. Specifically, trading center experiences a technical or cancellation that a TPH submitted to CBSX on the systems issue that results in CBSX or routing initial order during such a situation would be paragraph (a) of the proposed rule honored. If a TPH did not submit a cancellation to would expressly authorize CBSX to broker not receiving responses to immediate- or-cancel (‘‘IOC’’) orders sent to the other CBSX, however, that initial order would remain ‘‘live’’ and thus be eligible for execution or posting cancel orders as it deems to be trading center, and that issue is not resolved necessary to maintain fair and orderly on CBSX, and CBSX would not treat any execution in a timely manner, then CBSX may seek to of the initial order or any subsequent routed order markets if a technical or systems issue cancel the routed orders affected by the related to that initial order as an error (unless, of occurs at CBSX,7 the routing broker, or issue.10 For instance, if a routing broker course, the order was itself subject to another another trading center to which a CBSX technical or systems issue or any other trading order has been routed. Paragraph (a) 8 As discussed above, CBSX uses non-affiliated center processing exceeded the applicable response routing brokers to provide the routing services. time interval). would also provide that a routing broker 12 These routing brokers are also not facilities of See existing paragraph (a) to Rule 52.7, may only cancel orders being routed to CBSX. As provider of the routing services, CBSX Sweeping and Trading Through Away Markets, another trading center based on CBSX’s determines the logic that determines when, how which provides, in relevant part, that ‘‘[i]n the and where orders are routed away to other trading event that CBSX does not receive any response at standing or specific instructions or as all to an outbound Intermarket Sweep Order, and otherwise provided in the Exchange centers. See Rule 52.10.01(b). Under paragraph (a) to proposed Rule 52.10A, the decision to take action assuming that no system errors have been detected, with respect to orders affected by a technical or CBSX will issue a cancellation at the expiration of the expiration delay timer on the Intermarket itself, and the positions would not be permitted to systems issue shall be made by CBSX. Depending Sweep Order. This action will release the be resolved as set forth in proposed Rule 52.10A. on where those orders are located, a routing broker corresponding order that had been suspended on 6 would be permitted to initiate a cancellation of an The examples described in this filing are not the CBSX Book pending the response to the order(s) pursuant to CBSX’s standing or specific intended to be exclusive. Proposed Rule 52.3A Intermarket Sweep Order, and the released order would provide general authority for CBSX to cancel instructions or as otherwise provided in the will re-aggress the CBSX Book (including the orders (or release routing-related orders) in order to Exchange Rules (e.g., CBSX’s standing instructions generation of Intermarket Sweep Orders to other maintain fair and orderly markets when technical might provide, among other things, that the routing away markets, if necessary).’’ broker could initiate the cancellation of orders if the or systems issues are occurring, and proposed Rule In conjunction with this rule change, CBSX is routing broker is experiencing technical or systems 52.10A also would set forth the manner in which proposing to amend Rule 52.7 to provide that, ‘‘[in] error positions (which may occur in the provision issues routing orders to an away trading center). the event that CBSX does not receive any response of CBSX’s routing service) may be handled by 9 Such a situation may not cause CBSX to declare at all to an outbound Intermarket Sweep Order, at CBSX. The proposed rule change is not limited to self-help against the other trading center pursuant the expiration of the response time interval, CBSX addressing order cancellation (release) or error to Rule 611 of Regulation NMS. If CBSX determines will release the corresponding order that had been positions resulting only from the specific examples to cancel or release orders, as applicable, under suspended on the CBSX Book pending the response described in this filing. proposed Rule 52.3A(a) but does not declare self- to the Intermarket Sweep Order in accordance with 7 To confirm, the authority to cancel orders to help against that other trading center, CBSX would Rule 52.3A, and the released order will re-aggress maintain fair and orderly markets under proposed continue to be subject to the trade-through the CBSX Book (including the generation of Rule 52.3A would apply to any technical or systems requirements in Rule 611 with respect to that Intermarket Sweep Orders to other away markets, issue at CBSX and would include orders at CBSX trading center. if necessary).’’ See proposed changes to Rule (i.e., the authority to cancel orders would apply to 10 In a normal situation (i.e., one in which a 52.7(a). any orders that are subject to CBSX’s routing service technical or systems issue does not exist), CBSX As noted in Example 2 above, if the and any orders that are not subject to CBSX’s should receive an immediate response back from corresponding initial order is released, CBSX would routing service). By comparison, the routing service the routing broker reporting any executions or also attempt to cancel the routed order (e.g., by error account provisions under proposed Rule cancellations from the other trading center, and calling the routing broker and instructing the 52.10A (discussed below) would apply only to would then pass the resulting fill or cancellation routing broker to attempt to cancel the orders). original and corresponding orders that are subject onto the TPH. If, after submitting an order for which 13 It is possible that attempts to cancel the routed to CBSX’s routing service. a corresponding order has been routed to another orders may not succeed. If CBSX receives an

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Example 3: If CBSX experiences a systems due to a technical or systems issue at To the extent a routing broker utilizes issue, CBSX may take steps to cancel and/or CBSX, CBSX may (but would not be its own account to liquidate error release all outstanding orders affected by the required to) determine it is appropriate positions, paragraph (d) of the proposed issue (which orders may include orders that to utilize a CBSX Error Account. In rule provides that the routing broker may or may not be subject to routing services). CBSX would also attempt to cancel making such a determination to utilize shall liquidate the error positions as any routed orders related to the TPHs’ initial a CBSX Error Account, CBSX would soon as practicable. The routing broker orders, if applicable, in these consider whether is [sic] has sufficient could determine to liquidate the circumstances.14 time, information and capabilities position itself or have a third party considering the market circumstances to broker-dealer liquidate the position on Proposed Rule 52.10A (Routing Service determine that an error is due to such the routing broker’s behalf. Paragraph Error Accounts) circumstances and whether CBSX can (d) also provides that the routing broker Proposed Rule 52.10A would provide address the error. establish and enforce policies and that each routing broker shall maintain, CBSX believes it is reasonable and procedures reasonably designed to (i) in the name of the routing broker, one appropriate to address routing errors adequately restrict the flow confidential or more accounts for the purpose of through the error account of a routing and proprietary information associated liquidating unmatched trade positions broker in the manner proposed because, with the liquidation of the error position that may occur in connection with the among other reasons, it is the executing in accordance with Rule 52.10,18 and (ii) another trading center routing service broker associated with these prevent the use of information provided under Rule 52.10 (‘‘error transactions. CBSX also believes that associated with other orders subject to positions’’).15 In addition, CBSX may having the flexibility to determine to the routing services when making also maintain, in the name of CBSX, one utilize a CBSX Error Account in the determinations regarding the liquidation or more CBSX Error Accounts for the limited circumstances described above of error positions. In addition, purpose of liquidating error positions in allows for administrative convenience paragraph (d) provides that the routing the circumstances described below. and contributes to CBSX’s ability to broker shall make and keep records Paragraph (a) of the proposed rule maintain a fair and orderly market.16 associated with the liquidation of such would provide that errors to which the From a TPH perspective, there would be routing broker error positions and shall rule would apply include any action or no impact resulting from the decision to maintain such records in accordance omission by CBSX, a routing broker, or use a CBSX Error Account or the routing with Rule 17a–4 under the Act.19 another trading center to which a CBSX broker’s error account to liquidate the Paragraph (e) of the proposed rule order has been routed, either of which error position in these circumstances. would provide that, to the extent a result in an unmatched trade position By definition, an error position in a CBSX Error Account is utilized to due to the execution of an order that is CBSX Error Account would only liquidate error positions, CBSX shall subject to the away market routing include unmatched trades due to a liquidate the error positions as soon as service and for which there is no routing error. In that regard, paragraph practicable. In liquidating error corresponding order to pair with the (c) of the proposed rule would provide positions in a CBSX Error Account, execution (each a ‘‘routing error’’). Such that CBSX shall not accept any positions CBSX shall provide complete time and routing errors would include, without in a CBSX Error Account from an price discretion for the trading to limitation, positions resulting from account of a Trading Permit Holder or liquidate error positions in a CBSX Error determinations by CBSX to cancel or permit any Trading Permit Holder to Account to a third-party broker-dealer release an order pursuant to proposed transfer any positions from the Trading and shall not attempt to exercise any Rule 52.3A (as described above). Permit Holder’s account to a CBSX Error 17 influence or control over the timing or Paragraph (b) of the proposed rule Account. methods of such trading.20 Such a third- would provide that, generally, each party broker-dealer may include a 16 routing broker will utilize its own error The Exchange notes that any profit/loss from routing broker not affiliated with CBSX. account to liquidate error positions. liquidating the error positions would belong to CBSX (when a CBSX Error Account is utilized) or Paragraph (e) would also provide that However, in certain circumstances, the routing broker (when the routing broker’s error CBSX shall establish and enforce CBSX may utilize a CBSX Error account is utilized). However, all or any portion of policies and procedures reasonably such profits/losses may be subject to certain Account. In particular, in instances designed to adequately restrict the flow where the routing broker is unable to contractual obligations pursuant to the routing service agreement between CBSX and the routing of confidential and proprietary utilize its own error account (e.g., due broker (e.g., used to offset certain contractual information between CBSX and the to a technical, systems or other issue obligations). third-party broker-dealer associated that prevents the routing broker from 17 CBSX may address error positions under the doing so) or where the an [sic] error is proposed rule that are caused by the errors noted above, but CBSX may not accept from a TPH 18 Rule 52.10.01(c) provides that CBSX will positions that are delivered to the TPH through the establish and maintain procedures and internal execution report on the order that had been routed clearance and settlement process, even if those controls reasonably designed to adequately restrict to another trading center, then the unmatched positions may have been the result of an error. This the flow of confidential and proprietary information execution would be considered an ‘‘error position’’ would not apply, however, to situations like the one between CBSX and the routing broker (referred to under proposed Rule 52.10A. described below in which CBSX incurred a position in the rule as the ‘‘Technology Provider’’), and, to 14 It is possible that attempts to cancel the routed to settle a TPH purchase, as the TPH did not yet the extent the routing broker reasonably receives orders may not succeed. If CBSX receives an have a position in its account as a result of the confidential and proprietary information, that execution report on the order that had been routed purchase at the time of CBSX’s action, i.e., CBSX’s adequately restrict the use of such information by to another trading center, then the unmatched action was necessary for the purchase to settle into the routing broker to legitimate business purposes execution would be considered an ‘‘error position’’ the TPH’s account. Moreover, to the extent a TPH necessary for the licensing of routing technology. under proposed Rule 52.10A. receives positions in connection with an error or 19 17 CFR 240.17a–4. 15 CBSX notes that, in connection with providing other technical or systems issue, the TPH may seek 20 This provision is not intended to preclude routing services, routing brokers currently may to rely on other Exchange Rules such as Rule 50.6, CBSX from providing the third-party broker with utilize their own error accounts to liquidate error Liability and Legal Proceedings, if it experiences a standing instructions with respect to the manner in positions. CBSX believes it is reasonable and not loss. For example, Rule 50.6, which cross-references which it should handle all error account inappropriate to address routing errors through the Rule 6.7, Exchange Liability, provides TPHs with transactions. For example, CBSX might instruct the error account of a routing broker because, among the ability to file claims for negligent acts or broker to treat all orders as ‘‘not held’’ and to other reasons, it is the executing broker associated omissions of CBSX employees or for the failure of attempt to minimize any market impact on the price with these transactions. its systems or facilities. of the stock being traded.

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with the liquidation of the error causes the routing broker to send an order to 2. Statutory Basis positions. Finally, paragraph (e) would another trading center that is subsequently executed, cleared and closed out by that The proposed rule change is provide that CBSX shall make and keep 25 other trading center, and the execution is consistent with Section 6(b) of the Act records to document all determinations in general and furthers the objectives of to treat positions as error positions ultimately communicated back to the TPH. On the next trading day (T+1), if the other Section 6(b)(5) of the Act 26 in under the rule (whether or not a CBSX trading center does not providing clearing particular, which requires that the rules Error Account is utilized to liquidate instructions for that execution, CBSX/routing of an exchange be designed to promote such error positions), as well as records broker would still be responsible for settling just and equitable principles of trade, to associated with the liquidation of CBSX that TPH’s purchase and therefore would be prevent fraudulent and manipulative Error Account error positions through a left with open positions.22 Instead, the acts, to remove impediments to and to third-party broker-dealer, and shall routing broker would post the positions into perfect the mechanism of a free and maintain such records in accordance its account and resolve the positions in the open market and a national market 21 manner described above. Alternatively, if the with Rule 17a–1 under the Act. system, and, in general, to protect Examples of such error positions due routing broker is unable to resolve the investors and the public interest. CBSX to a routing error may include, without positions, CBSX may determine to post the believes that this proposed rule change limitation, the following: positions into a CBSX Error Account and resolve the positions in the manner described is in keeping with those principles since Example 4: Error positions may result from above. CBSX’s ability to cancel and release routed orders that CBSX or a routing broker Example 7: Error positions may result from orders during a technical or systems attempts to cancel but that are executed a technical or systems issue that causes issue and to maintain a CBSX Error before the other trading center receives the orders to be executed in the name of a Account facilitates the smooth and cancellation message or that are executed routing broker in connection with its routing because the other trading center is unable to efficient operation of the market. services function that are not related to any process the cancellation message. Using the Specifically, CBSX believes that corresponding initial orders of TPHs. As a situation described in Example 1 above, allowing CBSX to cancel and release result, CBSX would not be able to assign any assume CBSX seeks to release the initial positions resulting from such an issue to orders during a technical or systems orders being held by CBSX because it is not issue (and permitting its routing brokers receiving timely execution or cancellation TPHs. Instead, the routing broker would post the positions into its account and resolve the to cancel orders pursuant to standing or reports from another trading center. In such specific instructions or as otherwise a situation, although CBSX would attempt to positions in the manner described above. direct the routing broker to cancel the routed Alternatively, if the routing broker is unable permitted under Exchange Rules) would orders, the routing broker may still receive to resolve the positions, CBSX may allow CBSX to maintain fair and orderly executions from the other trading center after determine to post the positions into a CBSX markets. Moreover, CBSX believes that connectivity is restored, which would not Error Account and resolve the positions in allowing a routing broker to assume then be allocated to TPHs because of the the manner described above.23 error positions in its own account(s) to earlier decision to release the affected initial liquidate those positions (and allowing In each of the circumstances orders. Instead, the routing broker would CBSX to assume error positions in a described above, CBSX and its routing post the positions into its account and CBSX Error Account to liquidate those resolve the positions in the manner described broker may not learn about an error positions in instances where a routing above. Alternatively, if the routing broker is position until T+1. For instance, CBSX broker is unable to do so or where the unable to resolve the positions (or if the error and its routing broker may not learn routing error is due to a technical or position is due to a system or technical issue about an error position until either (i) systems issue at CBSX) subject to the on CBSX), CBSX may determine to post the during the clearing process when a positions into a CBSX Error Account and conditions set forth in proposed Rule routing destination has submitted to resolve the positions in the manner described 52.10A would be the least disruptive DTCC a transaction for clearance and above. means to address these errors. Overall, settlement for which CBSX/routing Example 5: Error positions may result from the proposed new rule is designed to an order processing issue at another trading broker never received an execution ensure full trade certainty to market center. For instance, if another trading center confirmation, or (ii) when another participants and to avoid disrupting the experienced a systems problem that affects trading center does not recognize a clearance and settlement process. The its order processing, it may transmit back a transaction submitted by a routing proposed new rule is also designed to message purporting to cancel a routed order, broker to DTCC for clearance and but then subsequently submit an execution of provide a consistent methodology for settlement. Moreover, the affected TPHs’ that same order for clearance and settlement. handling error positions in a manner trade may not be nullified absent In such a situation, CBSX would not then that does not discriminate among TPHs. express authority under Exchange allocate the execution to the TPH because of The proposed new rule is also the earlier cancellation message from the Rules.24 As such, CBSX believes that consistent with Section 6 of the Act other trading center. Instead, the routing use of a routing broker error account (or insofar as it would require CBSX (and broker would post the positions into its a CBSX Error Account, as applicable), to its routing brokers, as applicable) to account and resolve the positions in the liquidate the error positions that may establish controls to restrict the flow of manner described above. Alternatively, if the occur in these circumstances is routing broker is unable to resolve the any confidential information associated reasonable and appropriate in these positions, CBSX may determine to post the with the liquidation of error positions. positions into a CBSX Error Account and circumstances. resolve the positions in the manner described B. Self-Regulatory Organization’s above. 22 To the extent that a loss is incurred in covering Statement on Burden on Competition the position, the routing broker (on behalf of CBSX Example 6: Error positions may result if a CBOE does not believe that the routing broker receives an execution report or itself) may submit a reimbursement claim to that from another trading center but does not other trading center. proposed rule change will impose any receive clearing instructions for the 23 To the extent such positions are not related to burden on competition not necessary or execution from the other trading center. For the routing broker’s function as a CBSX routing appropriate in furtherance of the broker (i.e., originating with CBSX), CBSX would instance, assume that a TPH sends CBSX an not post such positions to a CBSX Error Account. purposes of the Act. order to buy 100 shares of ABC stock, which The routing broker would resolve the error positions itself. 25 15 U.S.C. 78f(b). 21 17 CFR 240.17a–1. 24 See, e.g., Rule 52.4, Clearly Erroneous Policy. 26 15 U.S.C. 78f(b)(5).

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C. Self-Regulatory Organization’s those that may be withheld from the filing by the Commission. The Statement on Comments on the public in accordance with the Commission is publishing this notice to Proposed Rule Change Received From provisions of 5 U.S.C. 552, will be solicit comments on the proposed rule Members, Participants, or Others available for Web site viewing and change from interested persons. The Exchange neither solicited nor printing in the Commission’s Public Reference Room, on business days I. Self-Regulatory Organization’s received comments on the proposal. between the hours of 10 a.m. and 3 p.m., Statement of the Terms of Substance of III. Date of Effectiveness of the located at 100 F Street NE., Washington, the Proposed Rule Change Proposed Rule Change and Timing for DC 20549–1090. Copies of the filing will FINRA is proposing to amend FINRA Commission Action also be available for inspection and Rule 7730(c) to establish a pilot program Within 45 days of the date of copying at the principal office of the to provide a limited waiver of the publication of this notice in the Federal Exchange. All comments received will Professional Real-Time Data Display Fee Register or within such longer period (i) be posted without change; the of $60 to access Real-Time Trade as the Commission may designate up to Commission does not edit personal Reporting and Compliance Engine 90 days of such date if it finds such identifying information from (‘‘TRACE’’) transaction data in submissions. You should submit only longer period to be appropriate and connection with certain free trials of information that you wish to make publishes its reasons for so finding or data products. In addition, FINRA available publicly. All submissions (ii) as to which the self-regulatory proposes technical amendments to Rule should refer to File Number SR–CBOE– organization consents, the Commission 7730(c) and related statements in the fee 2012–109 and should be submitted on will: chart to use a single term, ‘‘display or before December 17, 2012. (A) By order approve or disapprove application,’’ to describe uniformly a the proposed rule change, or For the Commission, by the Division of software program that interrogates and Trading and Markets, pursuant to delegated displays TRACE data and allows a (B) Institute proceedings to determine 27 whether the proposed rule change authority. person to access TRACE data. The text of the proposed rule change should be disapproved. Kevin M. O’Neill, Deputy Secretary. is available on FINRA’s Web site at IV. Solicitation of Comments [FR Doc. 2012–28595 Filed 11–23–12; 8:45 am] http://www.finra.org, at the principal office of FINRA and at the Interested persons are invited to BILLING CODE 8011–01–P submit written data, views, and Commission’s Public Reference Room. arguments concerning the foregoing, II. Self-Regulatory Organization’s including whether the proposed rule SECURITIES AND EXCHANGE Statement of the Purpose of, and change is consistent with the Act. COMMISSION Statutory Basis for, the Proposed Rule Comments may be submitted by any of [Release No. 34–68255; File No. SR–FINRA– Change the following methods: 2012–049] In its filing with the Commission, Electronic Comments Self-Regulatory Organizations; FINRA included statements concerning • Use the Commission’s Internet Financial Industry Regulatory the purpose of and basis for the comment form (http://www.sec.gov/ Authority, Inc.; Notice of Filing and proposed rule change and discussed any rules/sro.shtml); or Immediate Effectiveness of Proposed comments it received on the proposed • Send an email to rule- Rule Change To Establish a Limited rule change. The text of these statements [email protected]. Please include File Waiver of the TRACE Professional may be examined at the places specified Number SR–CBOE–2012–109 on the Real-Time Data Display Fee on a Pilot in Item IV below. FINRA has prepared subject line. Basis summaries, set forth in sections A, B, and C below, of the most significant Paper Comments November 19, 2012. aspects of such statements. Pursuant to Section 19(b)(1) of the • Send paper comments in triplicate A. Self-Regulatory Organization’s Securities Exchange Act of 1934 to Elizabeth M. Murphy, Secretary, Statement of the Purpose of, and (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Securities and Exchange Commission, Statutory Basis for, the Proposed Rule notice is hereby given that, on 100 F Street NE., Washington, DC Change 20549–1090. November 7, 2012, the Financial Industry Regulatory Authority, Inc. 1. Purpose All submissions should refer to File (‘‘FINRA’’) filed with the Securities and Number SR–CBOE–2012–109. This file Pursuant to FINRA Rule Exchange Commission (‘‘SEC’’ or number should be included on the 7730(c)(1)(A), FINRA charges a ‘‘Commission’’) the proposed rule subject line if email is used. To help the Professional $60 per month, per display change as described in Items I, II, and Commission process and review your application per Data Set 5 (‘‘display III below, which Items have been comments more efficiently, please use prepared by FINRA. FINRA has only one method. The Commission will 5 A Data Set is each of the FINRA databases, designated the proposed rule change as post all comments on the Commission’s which currently include the Real-Time TRACE ‘‘establishing or changing a due, fee or transaction data disseminated by FINRA for Internet Web site (http://www.sec.gov/ other charge’’ under Section corporate bonds and Agency Debt Securities (as rules/sro.shtml). Copies of the defined in Rule 6710(l)). Effective November 12, 19(b)(3)(A)(ii) of the Act 3 and Rule 19b– submission, all subsequent 2012, FINRA will add the Data Set for Asset-Backed 4(f)(2) thereunder,4 which renders the amendments, all written statements Securities, when dissemination of Agency-Pass proposal effective upon receipt of this Through Mortgage-Backed Securities traded To Be with respect to the proposed rule Announced begins. See Securities Exchange Act Release No. 66829 (April 18, 2012), 77 FR 24748 change that are filed with the 27 17 CFR 200.30–3(a)(12). (April 25, 2012) (SEC Approval Order regarding Commission, and all written 1 15 U.S.C. 78s(b)(1). dissemination of Agency-Pass Through Mortgage- communications relating to the 2 17 CFR 240.19b–4. Backed Securities traded To Be Announced (TBA)), proposed rule change between the 3 15 U.S.C. 78s(b)(3)(A)(ii). Regulatory Notice 12–26 (May 2012) and Regulatory Commission and any person, other than 4 17 CFR 240.19b–4(f)(2). Notice 12–48 (November 2012).

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application’’) of Real-Time 6 TRACE included Real-Time TRACE transaction more accurate and timely pricing and transaction data.7 The term display data. In addition, the FINRA fee waiver valuations of debt securities by application refers to any software would be available to not more than members, and may prevent fraudulent program that interrogates and displays four Professionals associated with, and manipulative acts and practices TRACE data. In general, Real-Time employed by, or otherwise affiliated regarding pricing and valuations, for the TRACE transaction data is accessed not with a member, employer or other protection of investors and the public directly from FINRA but through a person during one free trial period. interest. vendor, such as Bloomberg, L.P. and its Once the Real-Time Data Display Fee FINRA believes that the pilot program Bloomberg display application, or other had been waived, a Professional and the providing for a limited waiver of the redistributors (collectively, ‘‘vendors’’) member, employer or other person with monthly fee per display application for of financial market data. Under this whom the Professional is associated access to Real-Time TRACE transaction arrangement, a Professional pays the with, employed by, or otherwise data also results in reasonable fees and vendor for the license to use the affiliated with would not be eligible for financial benefits from fee waivers that vendor’s display application and if the the FINRA fee waiver again in are equitably allocated. The financial display application displays Real-Time connection with another free trial benefit of the fee waiver would be TRACE transaction data, the payment offered by the same vendor until 12 available to all Professionals that accept must include the applicable TRACE fee, months had lapsed from the last day of an offer to test a vendor data product which the vendor remits to FINRA. the prior fee waiver.9 However, a that includes Real-Time TRACE FINRA understands that vendors are Professional and the member, employer transaction data on a free trial basis. continually developing new products or other person with whom the Any Professional that tests data that, among other data, may display Professional is associated or otherwise products during a free trial would be Real-Time TRACE transaction data. affiliated with would be eligible for a fee eligible for and would benefit from the Often a vendor will make its new waiver in connection with a free trial concurrent FINRA fee waiver, subject to products available to members and offered by a different vendor regarding the proscriptions against a Professional other Professional end-users of Real- its data products. obtaining multiple free trials as Time TRACE transaction data to test on FINRA also proposes technical previously described. In addition, the a free trial basis. In these cases, FINRA amendments to Rule 7730(c) and related financial benefit of the fee waiver would believes it would be beneficial also to statements in the fee chart to use a be available for a very limited period permit Professionals to access Real- single term, ‘‘display application,’’ to Time TRACE transaction data on a free (i.e., 31 days or less), such that describe uniformly a software program Professionals not eligible for the fee trial basis in connection, and that interrogates and displays TRACE concurrently, with the free trial of the waiver are not unfairly or inequitably data and allows a person to access affected. The proposed amendment is vendor’s product. Accordingly, FINRA TRACE data. proposes to amend FINRA Rule 7730(c) reasonable because the waiver of a FINRA has filed the proposed rule standard FINRA fee, and the financial to establish a pilot program to waive the change for immediate effectiveness. The $60 fee for one month for a Professional benefit from such waiver, is of limited implementation date will be November amount, duration (i.e., one month) and to access Real-Time TRACE transaction 7, 2012. data in connection with a vendor’s offer application (i.e., only four Professionals of a free trial. 2. Statutory Basis per member (or other end-user)), limited to concurrent free trials of data products The pilot program would operate for FINRA believes that the proposed rule offered by vendors, and subject to approximately one year until November change is consistent with the provisions restrictions on re-use, and is being 8, 2013 to allow FINRA sufficient time of Section 15A(b)(6) of the Act,10 which proposed to enhance a member’s ability to assess the efficacy and operation of requires, among other things, that 8 to access and test, among other things, the program. In the event FINRA FINRA rules must be designed to the uses of Real-Time TRACE determines to extend the pilot program prevent fraudulent and manipulative transaction data to determine if access or make the program permanent, FINRA acts and practices, to promote just and to such Real-Time TRACE transaction will file a proposed rule change in equitable principles of trade, and, in data would further its business needs. accordance with the Act. Specifically, general, to protect investors and the Finally, the proposed amendment does the FINRA fee waiver would be limited public interest and Section 15A(b)(5) of not unfairly discriminate between or to one month (i.e., a period not longer the Act,11 which requires, among other among Professionals and members (or than 31 days), and would be available things, that FINRA rules provide for the other end-users) in that the waiver only if the fee waiver is provided in equitable allocation of reasonable dues, would be available to any of such conjunction and concurrently with a fees and other charges among members persons that accepts an offer to test a vendor’s offer of a free trial to a and issuers and other persons using any vendor data product that includes Real- Professional to test a data product that facility or system that FINRA operates Time TRACE transaction data on a free or controls. FINRA believes that the 6 trial basis, subject to the limitations Real-Time is defined in FINRA Rule 7730(f)(3). proposed amendment, which is 7 Real-Time TRACE transaction data is also described above. The data vendor, designed to encourage additional available for a flat fee of $7,500 per month per Data rather than FINRA, would decide Professionals to test and use Real-Time Set for Professionals to make unlimited internal use initially whether to offer a free trial of of such data as provided in Rule 7730(c)(1)(A). TRACE transaction data, may promote Professionals associated with enterprises that pay its data product to a particular the $7,500 flat rate per month are not eligible for 9 For example, if a Professional were granted a Professional, member, or other end-user. the fee waiver set forth in the proposed rule change FINRA’s role would be limited to because, as further described herein, the waiver is waiver for one month beginning on November 1, limited to four Professionals during one free trial 2012, the individual would not be eligible for refusing to extend a fee waiver to a period. another waiver in connection with another free trial particular person previously identified 8 A fee waiver granted less than one month prior offered by the same vendor until December 1, 2013. This example assumes that the pilot program is by the data vendor, due to the to the expiration of the pilot period would continue prohibition against extending multiple to be valid and the $60 fee would be waived for the extended or adopted on a permanent basis. full month notwithstanding the pilot expiration 10 15 U.S.C. 78o–3(b)(6). fee waivers to the same person. FINRA date. 11 15 U.S.C. 78o–3(b)(5). believes that establishing such a

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program on a pilot basis for public interest, for the protection of 2012–049 and should be submitted on approximately one year will provide investors, or otherwise in furtherance of or before December 17, 2012. FINRA sufficient time to assess the the purposes of the Act. If the For the Commission, by the Division of efficacy and utility of the program. Commission takes such action, the Trading and Markets, pursuant to delegated Commission shall institute proceedings B. Self-Regulatory Organization’s authority.14 to determine whether the proposed rule Statement on Burden on Competition should be approved or disapproved. Kevin M. O’Neill, FINRA does not believe that the Deputy Secretary. proposed rule change will result in any IV. Solicitation of Comments [FR Doc. 2012–28524 Filed 11–23–12; 8:45 am] burden on competition that is not Interested persons are invited to BILLING CODE 8011–01–P necessary or appropriate in furtherance submit written data, views, and of the purposes of the Act. FINRA arguments concerning the foregoing, believes that the proposed amendment, including whether the proposed rule SECURITIES AND EXCHANGE which is designed to encourage change is consistent with the Act. COMMISSION additional Professionals to test and use Comments may be submitted by any of Real-Time TRACE transaction data, may the following methods: [Release No. 34–68262; File No. SR–CBOE– promote more accurate and timely Electronic Comments 2012–108] pricing and valuations of debt securities • Use the Commission’s Internet by members. Moreover, the pilot Self-Regulatory Organizations; comment form (http://www.sec.gov/ program providing for a limited waiver Chicago Board Options Exchange, rules/sro.shtml); or of the monthly fee per display • Incorporated; Notice of Proposed Rule application for access to Real-Time Send an email to rule- [email protected]. Please include File Change To Address Authority To TRACE transaction data would not Cancel Orders When a Technical or place an unreasonable fee burden on Number SR–FINRA–2012–049 on the subject line. Systems Issue Occurs and To members and other persons (i.e., Describe the Operation of Routing Professionals) that currently subscribe Paper Comments Service Error Accounts to receive Real-Time TRACE transaction • Send paper comments in triplicate data, nor confer an uncompetitive to Elizabeth M. Murphy, Secretary, November 19, 2012. benefit to Professionals taking advantage Securities and Exchange Commission, Pursuant to Section 19(b)(1) 1 of the of the pilot program, in that the fee 100 F Street NE., Washington, DC Securities Exchange Act of 1934 (the waiver would be available for a very 20549–1090. ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 limited period (i.e, 31 days or less), and All submissions should refer to File notice is hereby given that, on the financial impact of such a pilot Number SR–FINRA–2012–049. This file November 8, 2012, the Chicago Board program on Professionals would be de number should be included on the Options Exchange, Incorporated (the minimis. In addition, the proposed rule subject line if email is used. To help the ‘‘Exchange’’ or ‘‘CBOE’’) filed with the change does not place a burden on Commission process and review your Securities and Exchange Commission competition in that the financial benefit comments more efficiently, please use (the ‘‘Commission’’) the proposed rule of the fee waiver would be available in only one method. The Commission will change as described in Items I and II general to all Professionals. Any post all comments on the Commission’s below, which Items have been prepared Professional that tests data products Internet Web site (http://www.sec.gov/ by the self-regulatory organization. The during a free trial would be eligible for rules/sro.shtml). Copies of the Commission is publishing this notice to and would benefit from the concurrent submission, all subsequent solicit comments on the proposed rule FINRA fee waiver, subject to the amendments, all written statements change from interested persons. proscriptions against a Professional with respect to the proposed rule obtaining multiple free trials previously I. Self-Regulatory Organization’s change that are filed with the described. Statement of the Terms of Substance of Commission, and all written the Proposed Rule Change C. Self-Regulatory Organization’s communications relating to the Statement on Comments on the proposed rule change between the The Exchange is proposing to amend Proposed Rule Change Received From Commission and any person, other than its rules to (i) address the authority of Members, Participants, or Others those that may be withheld from the the Exchange to cancel orders (or release Written comments were neither public in accordance with the routing-related orders) when a technical solicited nor received. provisions of 5 U.S.C. 552, will be or systems issue occurs; and (ii) available for Web site viewing and describe the operation of an Exchange III. Date of Effectiveness of the printing in the Commission’s Public error account(s) and routing broker error Proposed Rule Change and Timing for Reference Room, 100 F Street NE., account(s), which may be used to Commission Action Washington, DC 20549, on official liquidate unmatched executions that The foregoing rule change has become business days between the hours of may occur in the provision of the effective pursuant to Section 19(b)(3)(A) 10:00 a.m. and 3:00 p.m. Copies of the Exchange’s routing service. The text of of the Act 12 and paragraph (f)(2) of Rule filing also will be available for the rule proposal is available on the 19b–4 thereunder.13 At any time within inspection and copying at the principal Exchange’s Web site (http://www.cboe. 60 days of the filing of the proposed rule office of FINRA. All comments received org/legal), at the Exchange’s Office of change, the Commission summarily may will be posted without change; the the Secretary and at the Commission’s temporarily suspend such rule change if Commission does not edit personal Public Reference Room. it appears to the Commission that such identifying information from action is necessary or appropriate in the submissions. You should submit only 14 17 CFR 200.30–3(a)(12). information that you wish to make 1 15 U.S.C. 78s(b)(1). 12 15 U.S.C. 78s(b)(3)(A). available publicly. All submissions 2 15 U.S.C. 78a. 13 17 CFR 240.19b–4(f)(2). should refer to File Number SR–FINRA– 3 17 CFR 240.19b–4.

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II. Self-Regulatory Organization’s In the normal course, the routing the routing broker, or another exchange Statement of the Purpose of, and broker reports an execution or to which an Exchange order has been Statutory Basis for, the Proposed Rule cancellation of the routed order back to routed. Paragraph (a) would also Change the Exchange. Routed orders that are provide that a routing broker may only In its filing with the Commission, the executed at another exchange are cancel orders being routed to another self-regulatory organization included submitted for clearance and settlement exchange based on the Exchange’s statements concerning the purpose of in the name of the routing broker. The standing or specific instructions or as and basis for the proposed rule change routing broker then coordinates with the otherwise provided in the Exchange 8 and discussed any comments it received Exchange to arrange for any resulting Rules. Paragraph (a) would also on the proposed rule change. The text securities positions to be delivered to provide that the Exchange shall provide of those statements may be examined at the TPH that submitted the original notice of the cancellation to affected the places specified in Item IV below. order to the Exchange (i.e., upon receipt Trading Permit Holders as soon as The Exchange has prepared summaries, of a filled execution report for the practicable. set forth in sections A, B, and C below, routed order, the Exchange system pairs Paragraph (b) of the proposed rule of the most significant parts of such the execution against the TPH’s original provides that the Exchange may also statements. order being held in the Exchange system determine to release orders being held and reports the pairing for clearance and on the Exchange awaiting an away A. Self-Regulatory Organization’s settlement purposes by submitting a exchange execution as it deems to be Statement of the Purpose of, and the non-tape, clearing only transaction). necessary to maintain fair and orderly Statutory Basis for, the Proposed Rule From time to time, the Exchange markets if a technical or systems issues Change encounters situations in which it occurs at the Exchange, a routing broker, 1. Purpose becomes necessary to cancel orders (or or another exchange to which an order has been routed (the process for The purpose of the proposed rule release routing-related orders) and resolve error positions that result from ‘‘releasing’’ orders is illustrated in more change is to adopt new Rule 6.6A to detail below). Paragraph (c) of the address the authority of the Exchange to errors of the Exchange, routing brokers, or another exchange.6 proposed rule would provide that, for cancel orders (or release routing-related purposes of Rule 6.6A, technical or orders) when a technical or systems Proposed Rule 6.6A (Order system issues would include, without issue occurs and to adopt new Rule Cancellation/Release) limitation, instances where the 6.14C to describe the operation of an The Exchange proposes to adopt new Exchange has not received confirmation Exchange error account(s)(‘‘Exchange CBOE Rule 6.6A to address the of an execution (or cancellation) on Error Account(s)’’) and routing broker another exchange from a routing broker error account(s), which may be used to authority of the Exchange to cancel orders when a technical or systems within a response time interval liquidate unmatched executions that designated by the Exchange, which may occur in the provision of the issue occurs. Specifically, paragraph (a) of the proposed rule would expressly interval may not be less than three (3) Exchange’s routing service. seconds.9 By way of background, the Exchange authorize the Exchange to cancel orders as it deems to be necessary to maintain operates a ‘‘hybrid’’ style system of Rule 6.6A would apply to any technical or systems trading that allows automatic executions fair and orderly markets if a technical or issue at the Exchange and would include any orders 7 to occur electronically and open outcry systems issue occurs at the Exchange, at the Exchange (i.e., the authority to cancel orders trades to occur on the floor of the would apply to any orders that are subject to the to the routing broker upon settlement. As described Exchange’s routing service and any orders that are Exchange. As part of this infrastructure, above, normally the routing broker would then not subject to the Exchange’s routing service). By the Exchange also automatically routes coordinate with the Exchange to arrange for any comparison, the routing service error account orders to other exchanges under certain resulting securities positions to be delivered to the provisions under proposed Rule 6.14C (discussed circumstances. These routing services TPH that submitted the corresponding order to the below) would apply only to original and Exchange. If error positions (as defined in proposed corresponding orders that are subject to the are provided in conjunction with one or Rule 6.14C) result in connection with the routing Exchange routing service. more routing brokers that are not broker’s use of a third-party broker-dealer for 8 As discussed above, the Exchange uses non- affiliated with the Exchange.4 outbound routing, and those positions are delivered affiliated routing brokers to provide the routing Mechanically, when the Exchange to the routing broker through the clearance and services. These routing brokers are also not facilities settlement process, those positions would be of the Exchange. For all routing services, the receives an order from a Trading Permit permitted to be resolved in accordance with Exchange determines the logic that provides when, Holder (‘‘TPH’’) that is held in the proposed Rule 6.14C. If the third-party broker- how and where orders are routed away to other Exchange system and determines to dealer received error positions and the positions exchanges. The routing broker receives the routing were not delivered to the routing broker through the instructions from the Exchange to route orders to route an order to another exchange, the other exchanges and to report executions back to clearance and settlement process, then the third- the Exchange. The routing broker cannot change the Exchange provides the routing broker party broker-dealer would resolve those positions terms of an order or the routing instructions, nor with a corresponding order and itself, and the positions would not be permitted to does the routing broker have any discretion about be resolved as set forth in proposed Rule 6.14C. instructions to route the order to where to route an order. See Rule 6.14B(c), (e) and 6 another exchange(s). The routing broker The examples described in this filing are not (f). Under paragraph (a) to proposed Rule 6.6A, the then sends the corresponding order to intended to be exclusive. Proposed Rule 6.6A decision to take action with respect to orders would provide general authority for the Exchange the other exchange.5 affected by a technical or systems issue shall be to cancel orders (or release routing-related orders) made by the Exchange. Depending on where those in order to maintain fair and orderly markets when orders are located, a routing broker would be 4 See, e.g., Rule 6.14B, Order Routing to Other technical or systems issues are occurring, and permitted to initiate a cancellation of an order(s) Exchanges. proposed Rule 6.14C also would set forth the pursuant to the Exchange’s standing or specific 5 Generally, the routing brokers route the orders manner in which error positions (which may occur instructions or as otherwise provided in the directly to other exchanges. However, it is possible in the provision of the Exchange’s routing service) Exchange Rules (e.g., the Exchange’s standing that a routing broker may route orders to another may be handled by the Exchange. The proposed instructions might provide, among other things, that exchange through a third-party broker-dealer. In rule change is not limited to addressing order the routing broker could initiate the cancellation of those cases, the third-party broker-dealer would cancellation (release) or error positions resulting orders if the routing broker is experiencing route the orders to the other exchange in its name, only from the specific examples described in this technical or systems issues routing orders to an and any executions would be submitted for filing. away exchange). clearance and settlement in the name of the routing 7 To confirm, the authority to cancel orders to 9 A determination by the Exchange to cancel or broker so that any resulting positions are delivered maintain fair and orderly markets under proposed release orders may not cause the Exchange to

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The examples set forth below describe attempt to cancel the routed order in these may include orders that may or may not be some of the circumstances in which the circumstances.13 subject to routing services). The Exchange Exchange may decide to cancel (or Example 3: If the Exchange experiences a would also attempt to cancel any routed release) orders. systems issue, the Exchange may take steps orders related to the TPHs’ initial orders, if to cancel and/or release all outstanding applicable, in these circumstances.14 Example 1: If a routing broker or another orders affected by the issue (which orders exchange experiences a technical or systems Proposed Rule 6.14C (Routing Service issue that results in the Exchange or routing occurring. The feature, and the system functionality Error Accounts) broker not receiving responses to immediate- used to operate the feature, is generally modeled Proposed Rule 6.14C would provide or-cancel (‘‘IOC’’) orders sent to the other after a process that was utilized by the Exchange that each routing broker shall maintain, under the former Options Intermarket Linkage Plan exchange, and that issue is not resolved in a in the name of the routing broker, one timely manner, then the Exchange may seek (the ‘‘Old Linkage Plan’’). Under the Old Linkage to cancel the routed orders affected by the Plan, an eligible market maker that sent a ‘‘principal or more accounts for the purpose of issue.10 For instance, if a routing broker acting as agent order’’ (referred to as a ‘‘P/A Order’’) liquidating unmatched trade positions experiences a connectivity issue affecting the through the linkage and who did not receive a reply that may occur in connection with the from the away exchange within 30 seconds was able manner in which it sends and receives order to reject any response received thereafter purporting away exchange routing service provided 15 messages to or from another exchange, it may to report a total or partial execution of that order. under Rule 6.14B (‘‘error positions’’). be unable to receive timely execution or Over time, the time frame in which an away In addition, the Exchange may also cancellation reports from the other exchange, exchange was required to respond was ultimately maintain, in the name of the Exchange, and Exchange may consequently seek to reduced to 3 seconds. See, e.g., Securities Exchange Act Release Nos. 43086 (July 28, 2000), 65 FR 48023 one or more Exchange Error Accounts cancel the affected routed orders (e.g., by for the purpose of liquidating error calling the routing broker and instructing the (August 4, 2000)(order approving Options routing broker to attempt to cancel the Intermarket Linkage Plan submitted by the positions in the circumstances American Stock Exchange LLC, Chicago Board orders) or perhaps the routing broker may described below. Options Exchange, Inc., and International Securities Paragraph (a) of the proposed rule initiate the cancellation of the affected routed Exchange LLC) and 57238 (January 30, 2008), 73 FR orders pursuant to a standing or specific 6748 (February 5, 2008) (order approving joint would provide that errors to which the instruction from the Exchange. In these amendment no. 25 to the Plan for the Purpose of rule would apply include any action or circumstances, the Exchange would also Creating and Operating an Intermarket Option omission by the Exchange, a routing attempt to release the initial orders submitted Linkage Relating to Response Time for Certain broker, or another exchange to which an by TPHs.11 Orders Sent Through the Linkage). The Old Linkage Exchange order has been routed, either Example 2: If the Exchange does not Plan was replaced by the Options Order Protection and Locked/Crossed Markets Plan (the ‘‘Distributive of which result in an unmatched trade receive confirmation of an execution (or Options Linkage Plan’’) in 2009. See Securities position due to the execution of an cancellation) of an IOC order sent to another Exchange Act Release No. 60405 (July 30, 2009), 74 original or corresponding order that is exchange from a routing broker within a FR 39362 (August 6, 2009)(order approving the designated response time interval of three (3) National Market System Plan relating to Options subject to the away market routing seconds, then an automated system feature Order Protection and Locked/Crossed Markets service and for which there is no will release the initial order being held by the submitted by the Chicago Board Options Exchange, corresponding order to pair with the Exchange.12 The Exchange would also Incorporated, International Securities Exchange, execution (each a ‘‘routing error’’). Such LLC, The NASDAQ Stock Market LLC, NASDAQ routing errors would include, without OMX BX, Inc., NASDAQ OMX PHLX, Inc., NYSE declare self-help against the other exchange Amex LLC, and NYSE Arca, Inc.). Although there limitation, positions resulting from pursuant to paragraph (b)(1) of Rule 6.81, Order is no longer a similar provision for P/A Orders and determinations by the Exchange to Protection. If the Exchange determines to cancel or away exchange response times under the cancel or release an order pursuant to release orders, as applicable, under proposed Rule Distributive Options Linkage Plan, the Exchange proposed Rule 6.6A (as described 6.6A but does not declare self-help against that still has system functionality that tracks response other exchange, the Exchange would continue to be times for orders routed to away exchanges. The above). subject to the trade-through requirements in Rule primary distinction between the process under the Paragraph (b) of the proposed rule 6.81 with respect to that exchange. Old Linkage Plan and the process described in the would provide that, generally, each 10 In a normal situation (i.e., one in which a current proposed rule change is that, instead of routing broker will utilize its own error technical or systems issue does not exist), the rejecting an execution report back to the away Exchange should receive an immediate response exchange, an execution report received after the account to liquidate error positions. back from the routing broker reporting any TPH’s order is released would be considered an However, in certain circumstances, the executions or cancellations from the other error and subject to the Exchange Error Account Exchange may utilize an Exchange Error exchange, and would then pass the resulting fill or procedures discussed below. The Exchange views Account. In particular, in instances cancellation onto the TPH. If, after submitting an having this ability to release orders that are queued order for which a corresponding order has been waiting for a responsive execution/cancel report for where the routing broker is unable to routed to another exchange, a TPH sends an a corresponding order from an away exchange as an utilize its own error account (e.g., due instruction to cancel the original order, the important risk management feature. Because the to a technical, systems or other issue cancellation is held by the Exchange until a markets are highly automated, the Exchange would that prevents the routing broker from response is received from the routing broker on the normally expect to receive a response to an order corresponding order. For instance, if the other routed through the routing service within doing so) or where the an error is due exchange executes the corresponding order, the milliseconds after it is sent. If a response is not to a technical or systems issue at the execution would be passed onto the TPH and the received in a timely manner, it generally is an Exchange, the Exchange may (but would cancellation instruction on the TPH’s original order indication of a system problem with the other not be required to) determine it is would be disregarded. exchange, the routing broker(s) or the Exchange. In 11 Once an initial order is released, any addition, especially in fast-moving markets like the appropriate to utilize an Exchange Error cancellation that a TPH submitted to the Exchange options market, the Exchange believes allowing for on the initial order during such a situation would the release of a TPH’s related original order due to 14 It is possible that attempts to cancel the routed be honored. If a TPH did not submit a cancellation an untimely response will provide an opportunity orders may not succeed. If the Exchange receives an to the Exchange, however, that initial order would for the transmittal of responses while also allowing execution report on the order that had been routed remain ‘‘live’’ and thus be eligible for execution or the Exchange’s TPHs to address and execute orders to an away exchange, then the unmatched posting on the Exchange, and the Exchange would pending on the Exchange in a timely manner. The execution would be considered an ‘‘error position’’ not treat any execution of the initial order or any Exchange believes this contributes to the under proposed Rule 6.14C. subsequent routed order related to that initial order Exchange’s ability to maintain fair and orderly 15 The Exchange notes that, in connection with as an error (unless, of course, the order was itself markets. providing routing services, routing brokers subject to another technical or systems issue or any 13 It is possible that attempts to cancel the routed currently may utilize their own error accounts to away exchange processing exceeded the applicable orders may not succeed. If the Exchange receives an liquidate error positions. The Exchange believes it response time interval). execution report on the order that had been routed is reasonable and not inappropriate to address 12 This routing risk management feature would to an away exchange, then the unmatched routing errors through the error account of a routing serve as one means for the Exchange to efficiently execution would be considered an ‘‘error position’’ broker because, among other reasons, it is the determine if there is a technical or system issue under proposed Rule 6.14C. executing broker associated with these transactions.

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Account. In making such a positions, paragraph (d) of the proposed with the liquidation of the error determination to utilize an Exchange rule provides that the routing broker positions. Finally, paragraph (e) would Error Account, the Exchange would shall liquidate the error positions as provide that the Exchange shall make consider whether is has sufficient time, soon as practicable. The routing broker and keep records to document all information and capabilities considering could determine to liquidate the determinations to treat positions as error the market circumstances to determine position itself or have a third party positions under the rule (whether or not that an error is due to such broker-dealer liquidate the position on an Exchange Error Account is utilized to circumstances and whether the the routing broker’s behalf. Paragraph liquidate such error positions), as well Exchange can address the error. (d) also provides that the routing broker as records associated with the The Exchange believes it is reasonable establish and enforce policies and liquidation of Exchange Error Account and appropriate to address routing procedures reasonably designed to (i) error positions through a third-party errors through the error account of a adequately restrict the flow confidential broker-dealer, and shall maintain such routing broker in the manner proposed and proprietary information associated records in accordance with Rule 17a–1 because, among other reasons, it is the with the liquidation of the error position under the Act.21 executing broker associated with these in accordance with Rule 6.14B,18 and Examples of such error positions due transactions. The Exchange also believes (ii) prevent the use of information to a routing error may include, without that having the flexibility to determine associated with other orders subject to limitation, the following: to utilize an Exchange Error Account in the routing services when making Example 4: Error positions may result from the limited circumstances described determinations regarding the liquidation routed orders that the Exchange or a routing above allows for administrative of error positions. In addition, broker attempts to cancel but that are convenience and contributes to the paragraph (d) provides that the routing executed before the other exchange receives Exchange’s ability to maintain a fair and broker shall make and keep records the cancellation message or that are executed orderly market.16 From a TPH associated with the liquidation of such because the other exchange is unable to perspective, there would be no impact routing broker error positions and shall process the cancellation message. Using the resulting from the decision to use an maintain such records in accordance situation described in Example 1 above, Exchange Error Account or the routing with Rule 17a–4 under the Act.19 assume the Exchange seeks to release the initial orders being held by the Exchange broker’s error account to liquidate the Paragraph (e) of the proposed rule because it is not receiving timely execution error position in these circumstances. would provide that, to the extent an or cancellation reports from another By definition, an error position in an Exchange Error Account is utilized to exchange. In such a situation, although the Exchange Error Account would only liquidate error positions, the Exchange Exchange would attempt to direct the routing include unmatched trades due to a shall liquidate the error positions as broker to cancel the routed corresponding routing error. In that regard, paragraph soon as practicable. In liquidating error orders, the routing broker may still receive (c) of the proposed rule would provide positions in an Exchange Error Account, executions from the other exchange after that the Exchange shall not accept any the Exchange shall provide complete connectivity is restored, which would not positions in an Exchange Error Account time and price discretion for the trading then be allocated to TPHs because of the from an account of a Trading Permit earlier decision to release the affected initial to liquidate error positions in an orders. Instead, the routing broker would Holder or permit any Trading Permit Exchange Error Account to a third-party post the positions into its account and Holder to transfer any positions from broker-dealer and shall not attempt to resolve the positions in the manner described the Trading Permit Holder’s account to exercise any influence or control over above. Alternatively, if the routing broker is an Exchange Error Account.17 the timing or methods of such trading.20 unable to resolve the positions (or if the error To the extent a routing broker utilizes Such a third-party broker-dealer may position is due to a system or technical issue its own account to liquidate error include a routing broker not affiliated on the Exchange), the Exchange may with the Exchange. Paragraph (e) would determine to post the positions into an 16 The Exchange notes that any profit/loss from also provide that the Exchange shall Exchange Error Account and resolve the positions in the manner described above. liquidating the error positions would belong to the establish and enforce policies and Exchange (when an Exchange Error Account is Example 5: Error positions may result from utilized) or the routing broker (when the routing procedures reasonably designed to an order processing issue at another broker’s error account is utilized). However, all or adequately restrict the flow of exchange. For instance, if another exchange any portion of such profits/losses may be subject to confidential and proprietary experienced a systems problem that affects certain contractual obligations pursuant to the information between the Exchange and its order processing, it may transmit back a routing service agreement between the Exchange and the routing broker (e.g., used to offset certain the third-party broker-dealer associated message purporting to cancel a routed order, contractual obligations). but then subsequently submit an execution of 17 The Exchange may address error positions 18 Rule 6.14B(b) provides that the Exchange shall that same order for clearance and settlement. under the proposed rule that are caused by the establish and maintain procedures and internal In such a situation, the Exchange would not errors noted above, but the Exchange may not controls reasonably designed to adequately restrict then allocate the execution to the TPH accept from a TPH positions that are delivered to the flow of confidential and proprietary information because of the earlier cancellation message the TPH through the clearance and settlement between the Exchange and the routing broker, and from the other exchange. Instead, the routing process, even if those positions may have been the any other entity, including any affiliate of the broker would post the positions into its result of an error. This would not apply, however, routing broker, and, if the routing broker or any of account and resolve the positions in the to situations like the one described below in which its affiliates engages in any other business activities manner described above. Alternatively, if the the Exchange incurred a position to settle a TPH other than providing routing services to the purchase, as the TPH did not yet have a position Exchange, between the segment of the routing routing broker is unable to resolve the in its account as a result of the purchase at the time broker or affiliate that provides the other business positions, the Exchange may determine to of the Exchange’s action, i.e., the Exchange’s action activities and the segment of the routing broker that post the positions into an Exchange Error was necessary for the purchase to settle into the provides the routing services. Account and resolve the positions in the TPH’s account. Moreover, to the extent a TPH 19 17 CFR 240.17a–4. manner described above. receives positions in connection with an error or 20 This provision is not intended to preclude the Example 6: Error positions may result if a other technical or systems issue, the TPH may seek Exchange from providing the third-party broker routing broker receives an execution report to rely on other Exchange Rules such as Rule 6.7, with standing instructions with respect to the from another exchange but does not receive Exchange Liability, if it experiences a loss. For manner in which it should handle all error account clearing instructions for the execution from example, Rule 6.7 provides TPHs with the ability transactions. For example, the Exchange might to file claims for negligent acts or omissions of instruct the broker to treat all orders as ‘‘not held’’ the other exchange. For instance, assume that Exchange employees or for the failure of its systems and to attempt to minimize any market impact on or facilities. the price of the option being traded. 21 17 CFR 240.17a–1.

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a TPH sends the Exchange an order to buy circumstances is reasonable and B. Self-Regulatory Organization’s 10 ABC option contracts, which causes the appropriate in these circumstances. Statement on Burden on Competition routing broker to send an order to another exchange that is subsequently executed, 2. Statutory Basis CBOE does not believe that the cleared and closed out by that other proposed rule change will impose any exchange, and the execution is ultimately The proposed rule change is burden on competition not necessary or communicated back to the TPH. On the next consistent with Section 6(b) of the Act 25 appropriate in furtherance of the trading day (T+1), if the other exchange does in general and furthers the objectives of purposes of the Act. not providing clearing instructions for that Section 6(b)(5) of the Act 26 in execution, the Exchange/routing broker C. Self-Regulatory Organization’s would still be responsible for settling that particular, which requires that the rules Statement on Comments on the TPH’s purchase and therefore would be left of an exchange be designed to promote Proposed Rule Change Received From with open positions.22 Instead, the routing just and equitable principles of trade, to Members, Participants, or Others broker would post the positions into its prevent fraudulent and manipulative account and resolve the positions in the The Exchange neither solicited nor acts, to remove impediments to and to received comments on the proposal. manner described above. Alternatively, if the perfect the mechanism of a free and routing broker is unable to resolve the open market and a national market III. Date of Effectiveness of the positions, the Exchange may determine to Proposed Rule Change and Timing for post the positions into an Exchange Error system, and, in general, to protect Account and resolve the positions in the investors and the public interest. The Commission Action manner described above. Exchange believes that this proposed Within 45 days of the date of Example 7: Error positions may result from rule change is in keeping with those publication of this notice in the Federal a technical or systems issue that causes principles since the Exchange’s ability Register or within such longer period (i) orders to be executed in the name of a to cancel and release orders during a as the Commission may designate up to routing broker in connection with its routing technical or systems issue and to 90 days of such date if it finds such services function that are not related to any corresponding initial orders of TPHs. As a maintain an Exchange Error Account longer period to be appropriate and result, the Exchange would not be able to facilitates the smooth and efficient publishes its reasons for so finding or assign any positions resulting from such an operation of the market. Specifically, (ii) as to which the self-regulatory issue to TPHs. Instead, the routing broker the Exchange believes that allowing the organization consents, the Commission would post the positions into its account and Exchange to cancel and release orders will: resolve the positions in the manner described during a technical or systems issue (and (A) By order approve or disapprove above. Alternatively, if the routing broker is permitting its routing brokers to cancel the proposed rule change, or unable to resolve the positions, the Exchange (B) Institute proceedings to determine orders pursuant to standing or specific may determine to post the positions into an whether the proposed rule change instructions or as otherwise permitted Exchange Error Account and resolve the should be disapproved. positions in the manner described above.23 under Exchange Rules) would allow the In each of the circumstances Exchange to maintain fair and orderly IV. Solicitation of Comments described above, the Exchange and its markets. Moreover, the Exchange Interested persons are invited to routing broker may not learn about an believes that allowing a routing broker submit written data, views, and error position until T+1. For instance, to assume error positions in its own arguments concerning the foregoing, the Exchange and its routing broker may account(s) to liquidate those positions including whether the proposed rule not learn about an error position until (or allowing the Exchange to assume change is consistent with the Act. either (i) during the clearing process error positions in an Exchange Error Comments may be submitted by any of when a routing destination has Account to liquidate those positions in the following methods: submitted to The Options Clearing instances where a routing broker is Electronic Comments Corporation (‘‘OCC’’) a transaction for unable to do so or where the routing • clearance and settlement for which the error is due to a technical or systems Use the Commission’s Internet Exchange/routing broker never received issue at Exchange) subject to the comment form (http://www.sec.gov/ an execution confirmation, or (ii) when rules/sro.shtml); or conditions set forth in proposed Rule • another exchange does not recognize a 6.14C would be the least disruptive Send an email to rule- [email protected]. Please include File transaction submitted by a routing means to address these errors. Overall, Number SR–CBOE–2012–108 on the broker to OCC for clearance and the proposed new rule is designed to settlement. Moreover, the affected TPHs’ subject line. ensure full trade certainty to market trade may not be nullified absent participants and to avoid disrupting the Paper Comments express authority under Exchange clearance and settlement process. The • Rules.24 As such, the Exchange believes Send paper comments in triplicate that use of a routing broker error proposed new rule is also designed to to Elizabeth M. Murphy, Secretary, account (or an Exchange Error Account, provide a consistent methodology for Securities and Exchange Commission, as applicable) to liquidate the error handling error positions in a manner 100 F Street NE., Washington, DC positions that may occur in these that does not discriminate among TPHs. 20549–1090. The proposed new rule is also All submissions should refer to File 22 To the extent that a loss is incurred in covering consistent with Section 6 of the Act Number SR–CBOE–2012–108. This file the position, the routing broker (on behalf of the insofar as it would require the Exchange number should be included on the Exchange or itself) may submit a reimbursement (and its routing brokers, as applicable) subject line if email is used. To help the claim to that other exchange. to establish controls to restrict the flow 23 To the extent such positions are not related to Commission process and review your the routing broker’s function as an Exchange of any confidential information comments more efficiently, please use routing broker (i.e., originating with the Exchange), associated with the liquidation of error only one method. The Commission will the Exchange would not post such positions to an positions. post all comments on the Commission’s Exchange Error Account. The routing broker would resolve the error positions itself. Internet Web site (http://www.sec.gov/ 24 See, e.g., Rule 6.25, Nullification and 25 15 U.S.C. 78f(b). rules/sro.shtml). Copies of the Adjustment of Options Transactions. 26 15 U.S.C. 78f(b)(5). submission, all subsequent

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amendments, all written statements I. Self-Regulatory Organization’s The Exchange proposes to change the with respect to the proposed rule Statement of the Terms of Substance of current methodology for order/quote change that are filed with the the Proposed Rule Change entry port billing, such that order/quote Commission, and all written The Exchange proposes to amend its entry ports would be charged on a per communications relating to the Price List to change the monthly fees for port basis, without billing in groups of proposed rule change between the the use of ports. The text of the five and without requiring that ports be 5 Commission and any person, other than proposed rule change is available on the in pairs. More specifically, the those that may be withheld from the Exchange’s Web site at www.nyse.com, Exchange proposes to charge $200 per public in accordance with the at the principal office of the Exchange, port per month for order/quote entry provisions of 5 U.S.C. 552, will be and at the Commission’s Public ports, which are currently charged $300 available for Web site viewing and Reference Room. per pair per month for activity on NYSE printing in the Commission’s Public MKT; 6 provided, however, that (i) users Reference Room, on business days II. Self-Regulatory Organization’s of the Exchange’s Risk Management between the hours of 10 a.m. and 3 p.m., Statement of the Purpose of, and Gateway service (‘‘RMG’’) would not be located at 100 F Street NE., Washington, Statutory Basis for, the Proposed Rule charged for order/quote entry ports if DC 20549–1090. Copies of the filing will Change such ports are designated as being used also be available for inspection and In its filing with the Commission, the for RMG purposes, and (ii) Designated copying at the principal office of the self-regulatory organization included Market Makers (‘‘DMMs’’) would not be Exchange. All comments received will statements concerning the purpose of, charged for order/quote entry ports that be posted without change; the and basis for, the proposed rule change connect to the Exchange via the DMM Commission does not edit personal and discussed any comments it received Gateway.7 identifying information from on the proposed rule change. The text Two methods are available to DMMs submissions. You should submit only of those statements may be examined at to connect to the Exchange: DMM information that you wish to make the places specified in Item IV below. Gateway and CCG. The two methods are available publicly. All submissions The Exchange has prepared summaries, quite distinct, however. Only DMMs should refer to File Number SR–CBOE– set forth in sections A, B, and C below, may utilize the DMM Gateway, and they 2012–108 and should be submitted on of the most significant parts of such may only use DMM Gateway when or before December 17, 2012. statements. No. 66104 (January 5, 2012), 77 FR 1771 (January For the Commission, by the Division of A. Self-Regulatory Organization’s 11, 2012) (SR–NYSEAmex–2011–107) (the port fee Trading and Markets, pursuant to delegated Statement of the Purpose of, and ‘‘Amending Release’’). For example, the current fee authority.27 Statutory Basis for, the Proposed Rule for six pairs of ports would be $3,000 total per Kevin M. O’Neill, month (i.e., $1,500 total for the first five pairs and Change $1,500 for the sixth pair). The fee would remain Deputy Secretary. 1. Purpose $3,000 for pairs seven through 10. The fee would [FR Doc. 2012–28594 Filed 11–23–12; 8:45 am] increase by $1,500, to $4,500 total, for pairs 11 through 15. BILLING CODE 8011–01–P The Exchange proposes to amend its Price List to change the monthly fees for 5 The Exchange stated in the Adopting Release that the port fee is charged per participant. The the use of ports that provide Exchange later clarified that ‘‘per participant’’ SECURITIES AND EXCHANGE connectivity to the Exchange’s trading means per member organization for purposes of the COMMISSION systems (i.e., ports for entry of orders port fees. See Amending Release, at 1772. The and/or quotes (‘‘order/quote entry proposed fee change would change the current [Release No. 34–68261; File No. SR– ports’’)) and to implement a fee for ports methodology such that ports would not be charged NYSEMKT–2012–64] on a per member organization basis. Accordingly, that allow for the receipt of ‘‘drop reference to per member organization would be Self-Regulatory Organizations; NYSE copies’’ of order or transaction removed from the Price List related to port fees. information (‘‘drop copy ports’’ and, 6 The Exchange has a Common Customer Gateway MKT LLC; Notice of Filing and (‘‘CCG’’) that accesses the equity trading systems Immediate Effectiveness of Proposed together with order/quote entry ports, 3 that it shares with its affiliates, New York Stock Rule Change To Change the Monthly ‘‘ports’’). Exchange LLC (‘‘NYSE’’) and NYSE Arca, Inc. Fees for the Use of Ports Order/Quote Entry Ports (‘‘NYSE Arca’’), and all ports connect to the CCG. See, e.g., Securities Exchange Act Release No. November 19, 2012. The Exchange currently makes order/ 64543 (May 25, 2011), 76 FR 31667 (June 1, 2011) quote entry ports available for (SR–NYSEAmex–2011–20). All NYSE MKT member Pursuant to Section 19(b)(1) of the organizations are also NYSE member organizations Securities Exchange Act of 1934 connectivity to its trading systems and and, accordingly, a member organization utilizes its (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 charges $300 per port pair per month for ports for activity on both NYSE and/or NYSE MKT up to five pairs of ports, then $1,500 per and is charged port fees based on the total number notice is hereby given that, on of ports connected to the CCG, whether the ports November 6, 2012, NYSE MKT LLC (the month for each additional five pairs of 4 are used to quote and trade on NYSE, NYSE MKT, ‘‘Exchange’’ or ‘‘NYSE MKT’’) filed with ports. and/or both, because those trading systems are the Securities and Exchange integrated. The NYSE Arca trading platform is not 3 Firms receive confirmations of their orders and integrated in the same manner. Therefore, it does Commission (‘‘Commission’’) the receive execution reports via the order/quote entry not share its ports with NYSE or NYSE MKT. proposed rule change as described in port that is used to enter the order or quote. A ‘‘drop 7 Since the Adopting Release, the Exchange has Items I, II and III below, which Items copy’’ contains redundant information that a firm not charged DMMs for order/quote entry ports that have been prepared by the Exchange. chooses to have ‘‘dropped’’ to another destination have connected to the Exchange via the DMM The Commission is publishing this (e.g., to allow the firm’s back office and/or Gateway. Since 2011, when DMMs first became able compliance department, or another firm—typically to enter orders through CCG, DMM order/quote notice to solicit comments on the the firm’s clearing broker—to have immediate entry ports connected to the Exchange via the CCG proposed rule change from interested access to the information). Such drop copies can have been, and currently are, charged port fees in persons. only be sent via a drop copy port. Drop copy ports accordance with the Price List. DMMs can elect to cannot be used to enter orders and/or quotes. use the DMM Gateway, the CCG, or both for their 4 See Securities Exchange Act Release No. 63072 connectivity to the Exchange. However, the DMM 27 17 CFR 200.30–3(a)(12). (October 7, 2010), 75 FR 64368 (October 19, 2010) Gateway must be used for certain DMM-specific 1 15 U.S.C. 78s(b)(1). (SR–NYSEAmex–2010–97) (the port fee ‘‘Adopting functions that relate to the DMM’s role on the 2 17 CFR 240.19b–4. Release’’). See also Securities Exchange Act Release Exchange and the obligations attendant therewith.

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acting in their capacity as a DMM. to order/quote entry ports designated as Exchange notes that the proposed DMMs are required to use the DMM being used for RMG. changes are not otherwise intended to Gateway for certain DMM-specific address any other issues surrounding Drop Copy Ports functions that relate to the DMM’s role ports or port fees and that the Exchange on the Exchange and the obligations The Exchange proposes to implement is not aware of any problems that port attendant therewith, which are not a fee for drop copy ports,10 for which users would have in complying with the applicable to other market participants the Exchange does not currently charge proposed change. on the Exchange. By contrast, non- a fee, provided, however, that DMMs The Exchange proposes to implement DMMs as well as DMMs may use the would not be charged for drop copy these changes immediately. In this CCG, use of the CCG by a DMM is ports that utilize the DMM Gateway and regard, the Exchange notes that billing optional, and a DMM that connects to users of RMG would not be charged for for ports would be based, as is currently the Exchange via CCG can use the drop copy ports if such ports are on the case, on the number of ports on relevant order/quote entry port for designated as being used for RMG the third business day prior to the end orders and quotes both in its capacity as purposes. The Exchange proposes to of the month. In addition, the level of a DMM and for orders and quotes in charge $500 per port per month for drop activity with respect to a particular port 11 other securities. Accordingly, because copy ports. Additionally, the would still not affect the assessment of DMMs are required to utilize DMM Exchange proposes to specify that only monthly fees, such that, except for ports Gateway, but not CCG, to be able to one fee per drop copy port would apply, that are not charged, even if a particular fulfill their functions as DMMs, the even if the port receives drop copies port is not used, a port fee would still Exchange proposes that DMMs not be from multiple order/quote entry ports apply. charged for order/quote entry ports that and/or drop copies for activity on both connect to the Exchange via the DMM NYSE and NYSE MKT.12 2. Statutory Basis Gateway, but that DMMs, like other DMMs that connect to the Exchange The Exchange believes that the market participants, be charged for using the DMM Gateway are required to proposed rule change is consistent with order/entry ports that connect to the use drop copy ports that utilize the Section 6(b) of the Securities Exchange Exchange via the CCG. DMM Gateway for their drop copies. Act of 1934 (the ‘‘Act’’),14 in general, The Exchange proposes that users of Accordingly, the Exchange proposes and furthers the objectives of Section RMG would not be charged for order/ that DMMs not be charged for drop copy 6(b)(4) of the Act,15 in particular, quote entry ports if such ports are ports that utilize the DMM Gateway, but because it provides for the equitable designated as being used for RMG that DMMs, like other market allocation of reasonable dues, fees, and purposes. RMG enables Sponsoring participants, be charged for drop copy other charges among its members, member organizations to verify whether ports that connect to the Exchange via issuers and other persons using its a Sponsored Participant’s orders comply the CCG, as DMMs are not required to facilities and does not unfairly with order criteria established by the use CCG. discriminate between customers, In addition, the Exchange proposes Sponsoring member organization for the issuers, brokers or dealers. that users of RMG would not be charged Sponsored Participant, including, Overall, the Exchange believes that for drop copy ports if such ports are among other things, criteria related to the proposed changes, including the designated as being used for RMG order size (per order or daily quantity rates proposed, are reasonable because purposes. The Exchange proposes that limits), credit limits (per order or daily the fees charged for order/quote entry 8 users of RMG not be required to pay value), specific symbols or end users. ports and drop copy ports are expected port fees for drop copy ports designated Currently, users of RMG are required to to permit the exchange to offset, in part, as being used for RMG because, in the pay the existing order/quote entry port its connectivity costs associated with Exchange’s opinion, ports are an fees for connectivity to the Exchange’s making such ports available, including integral part of RMG and such users are trading systems, in addition to the RMG costs based on gateway software and 9 already charged a fee for RMG, connection fees related to such ports. hardware enhancements and resources including additional connections The Exchange proposes that users of dedicated to gateway development, related thereto, which the Exchange RMG would no longer be required to quality assurance, and support. In this believes is sufficient to cover its costs pay port fees for order/quote entry ports regard, the Exchange believes that its related to making the ports available for designated as being used for RMG fees are competitive with those charged RMG purposes. Accordingly, the because, in the Exchange’s opinion, by other venues, and that in some cases Exchange proposes to specify that port order/quote entry ports are an integral its port fees are less expensive than fees are not applicable to drop copy part of RMG and such users are already many of its primary competitors.16 The ports designated as being used for RMG. charged a fee for RMG, including Exchange believes that the changes additional connections related thereto, Overall, the Exchange believes that the changes proposed herein will result proposed herein will result in the which the Exchange believes is method of billing for ports more closely sufficient to cover its costs related to in the method of billing for ports more closely aligning with the needs of firms aligning with the needs of firms with making the order/quote entry ports ports. available for RMG purposes. with ports. The proposed changes will also permit the Exchange to remain Accordingly, the Exchange proposes to separate charge for Pre-Trade Risk Management specify that port fees are not applicable competitive with other exchanges with 13 ports is applicable, which ranges from $400 to $600 respect to fees charged for ports. The and is capped at $25,000 per firm per month. Also, 8 See Securities Exchange Act Release No. 59353 the BATS Exchange, Inc. (‘‘BZX’’) charges $400 per (February 3, 2009), 74 FR 6935 (February 11, 2009) 10 See supra note 3. month per pair (primary and secondary data center) (SR–NYSEALTR–2008–12) (order approving RMG). 11 The Exchange proposes to add language to the for logical ports. Additionally, EDGA Exchange, Inc. See also Securities Exchange Act Release No. 59429 Price List to differentiate between drop copy ports (‘‘EDGA’’) and EDGX Exchange, Inc. (‘‘EDGX’’) each (February 20, 2009), 74 FR 9016 (February 27, 2009) and order/quote entry ports. charge $500 per port. EDGA and EDGX also provide (SR–NYSEALTR–2009–12) (establishing RMG fees). 12 See supra note 6. the first five ports for free. 9 Currently, a $3,000 charge per month applies for 13 For example, the charge for connectivity to the 14 15 U.S.C. 78f(b). an initial RMG connection and a $1,000 charge for NASDAQ Stock Market LLC (‘‘NASDAQ’’) NY- 15 15 U.S.C. 78f(b)(4). every additional connection thereafter. Metro and Mid-Atlantic Datacenters is $500 and a 16 See supra note 13.

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The Exchange believes that the ports that connect to the Exchange via is proposed for drop copy ports, which proposed change to the methodology for CCG, as use of the CCG is not necessary is higher than the rate proposed for billing for order/quote entry ports is for DMMs to fulfill their role as DMMs. order/quote entry ports. The Exchange reasonable because it will simplify the In addition, a single order/quote entry believes that the proposed new fee for fees for ports by eliminating the pair port that connects to the Exchange via drop copy ports is equitable and not requirement and allowing a firm that CCG could be used by a DMM both in unfairly discriminatory because it will requires more than five pairs of ports to its capacity as a DMM and for other apply on an equal basis to all users of request, and pay for, the specific securities, for which other market drop copy ports and to all drop copy number of ports that it requires, rather participants would be charged port fees. ports on the Exchange, except for those than requesting ports in pairs and in Consequently, the Exchange believes order/entry ports related to RMG and groups of five. This aspect of the that it is equitable and not unfairly ports utilized by DMMs to connect to proposed change is also equitable and discriminatory that a DMM that the Exchange via the DMM Gateway.20 not unfairly discriminatory because it connects to the Exchange via CCG will result in charges for order/entry would continue to be charged In this regard, all firms are able to ports being based on the number of applicable port fees, as is currently the request drop copy ports, as is the case ports utilized. This aspect of the case. with order/quote entry ports. proposed change is also equitable and In addition, the Exchange notes that The Exchange believes that it is not unfairly discriminatory because it DMM Gateway, unlike CCG, was equitable and not unfairly will apply on an equal basis for all ports designed with functionality to help discriminatory to not charge DMMs for on the Exchange, except for order/quote DMMs fulfill their obligations as DMMs drop copy ports that connect to the entry ports related to RMG and ports efficiently, and so the Exchange believes Exchange via the DMM Gateway for the utilized by DMMs to connect to the that to the extent that exempting DMM reasons above regarding order/quote Exchange via the DMM Gateway.17 Gateway from port fees for order/quote entry ports. The Exchange believes that it is entry ports encourages DMMs to use the reasonable to charge $200 per port per DMM Gateway to fulfill their obligations The Exchange believes that not month for order/quote entry ports helps ensure that that they are in the charging for ports that are designated to because, when combined with the best position to operate efficiently. be used for RMG is reasonable because change to the methodology for billing The Exchange believes that the ports are an integral part of RMG and for ports, it could result in a decrease in proposed new fee for drop copy ports is such users are already charged a fee for the overall cost to users of ports. The reasonable because it will result in a fee RMG, including additional connections proposed rate is also reasonable because being charged for the use of technology related thereto, which the Exchange it is comparable to the rates of other and infrastructure provided by the believes is sufficient to cover its costs exchanges.18 The Exchange also Exchange. In this regard, the Exchange related to making the ports available for believes that these changes to the fees believes that the rate is reasonable RMG purposes.21 In this regard, ports are equitable and not unfairly because it is comparable to the rate not designated as being used for RMG discriminatory because they would charged by other exchanges for drop purposes would remain subject to port 19 apply to all users of order/quote entry copy ports. Furthermore, the fees. The Exchange also believes that Exchange believes that the proposed ports on the Exchange, subject to the this is equitable and not unfairly rate for a drop copy port is reasonable exceptions noted above. discriminatory because it would apply The Exchange also believes that it is because, when compared to the proposed rate for order/quote entry equally to all member organizations that equitable and not unfairly utilize RMG, which is fully-voluntary discriminatory to not charge DMMs for ports, it reflects the level of resources required of the Exchange to establish and is available to any member order/quote entry ports that connect to organization. the Exchange via the DMM Gateway but and maintain the port, including the to charge DMMs for order/quote entry various sources from which data comes Finally, the Exchange notes that it ports that connect to the Exchange via (i.e., establishing connections to order/ operates in a highly competitive market CCG, because DMMs are required to use quote entry ports as well as, in certain in which market participants can the DMM Gateway for certain DMM- circumstances, to order/quote entry readily favor competing venues. In such specific functions that relate to the ports on both NYSE and NYSE MKT). an environment, the Exchange must DMM’s role on the Exchange and the The proposed rate is also reasonable in continually review, and consider obligations attendant therewith, which light of the functional/operational adjusting, its fees and credits to remain are not applicable to other market differences between a drop copy port competitive with other exchanges. For and an order/quote entry port (e.g., that participants on the Exchange. By the reasons described above, the configuration and monitoring of the contrast, non-DMMs as well as DMMs Exchange believes that the proposed may use the CCG, use of the CCG by a drop copy port is more substantial and because drop copy ports capture rule change reflects this competitive DMM is optional, and a DMM that environment. connects to the Exchange via CCG can cumulative activity). The Exchange also believes that it is use the relevant order/quote entry port B. Self-Regulatory Organization’s reasonable that only one fee per drop for orders and quotes both in its Statement on Burden on Competition copy port would apply, even if the port capacity as a DMM and for orders and receives drop copies from multiple The Exchange does not believe that quotes in other securities. Accordingly, order/quote entry ports and/or from the Exchange believes that it is equitable the proposed rule change will impose both NYSE and NYSE MKT, because the and not unfairly discriminatory to any burden on competition that is not purpose of drop copies is such that a charge DMMs for order/quote entry necessary or appropriate in furtherance trading unit’s or a firm’s entire order of the purposes of the Act. and execution activity is captured. This 17 The Exchange describes below how the proposed changes regarding RMG and DMMs are is also reflected in the rate of $500 that consistent with the Act. 20 See supra note 17. 18 See supra note 13. 19 See supra note 13. 21 See supra note 8.

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C. Self-Regulatory Organization’s Commission, and all written Clearance Officer, Curtis Rich, Statement on Comments on the communications relating to the [email protected], Small Business Proposed Rule Change Received From proposed rule change between the Administration, 409 3rd Street SW., 5th Members, Participants, or Others Commission and any person, other than Floor, Washington, DC 20416; and OMB No written comments were solicited those that may be withheld from the Reviewer, Office of Information and or received with respect to the proposed public in accordance with the Regulatory Affairs, Office of rule change. provisions of 5 U.S.C. 552, will be Management and Budget, New available for Web site viewing and Executive Office Building, Washington, III. Date of Effectiveness of the printing in the Commission’s Public DC 20503. Proposed Rule Change and Timing for Reference Room, 100 F Street NE., FOR FURTHER INFORMATION CONTACT: Commission Action Washington, DC 20549, on official Curtis Rich, Agency Clearance Officer, The foregoing rule change is effective business days between the hours of (202) 205–7030. upon filing pursuant to Section 10:00 a.m. and 3:00 p.m. Copies of the SUPPLEMENTARY INFORMATION: 22 19(b)(3)(A) of the Act and filing also will be available for Title: ‘‘Surety Bond Guarantee 23 subparagraph (f)(2) of Rule 19b-4 inspection and copying at the principal Assistance.’’ thereunder, because it establishes a due, office of the Exchange. All comments Frequency: On occasion. fee, or other charge imposed by the received will be posted without change; SBA Form Number: N/A. NYSE MKT. the Commission does not edit personal Description of Respondents: Surety At any time within 60 days of the identifying information from Bond Guarantee Companies. filing of such proposed rule change, the submissions. You should submit only Responses: 13,563. Commission summarily may information that you wish to make Annual Burden: 1,658. temporarily suspend such rule change if available publicly. All submissions SUPPLEMENTARY INFORMATION: Title: it appears to the Commission that such should refer to File Number SR– ‘‘Disaster Assistance.’’ action is necessary or appropriate in the NYSEMKT–2012–64 and should be Frequency: On occasion. public interest, for the protection of submitted on or before December 17, SBA Form Number: N/A. investors, or otherwise in furtherance of 2012. Description of Respondents: Surety the purposes of the Act. For the Commission, by the Division of Bond Guarantee Companies. IV. Solicitation of Comments Trading and Markets, pursuant to delegated Responses: 2,400. authority.24 Interested persons are invited to Annual Burden: 199. Kevin M. O’Neill, submit written data, views, and Curtis Rich, Deputy Secretary. arguments concerning the foregoing, Management Analyst. [FR Doc. 2012–28593 Filed 11–23–12; 8:45 am] including whether the proposed rule [FR Doc. 2012–28513 Filed 11–23–12; 8:45 am] change is consistent with the Act. BILLING CODE 8011–01–P BILLING CODE P Comments may be submitted by any of the following methods: SMALL BUSINESS ADMINISTRATION Electronic Comments DEPARTMENT OF STATE • Use the Commission’s Internet Reporting and Recordkeeping [Public Notice 8094] comment form (http://www.sec.gov/ Requirements Under OMB Review rules/sro.shtml); or Shipping Coordinating Committee; AGENCY: Small Business Administration. • Send an email to rule- Notice of Committee Meeting [email protected]. Please include File ACTION: Notice of reporting requirements Number SR–NYSEMKT–2012–64 on the submitted for OMB review. The Shipping Coordinating subject line. Committee (SHC) will conduct an open SUMMARY: Under the provisions of the meeting at 1 p.m., on Wednesday, Paper Comments Paperwork Reduction Act (44 U.S.C. January 23, 2013, in Room 5–1224 of the • Send paper comments in triplicate Chapter 35), agencies are required to United States Coast Guard Headquarters to Elizabeth M. Murphy, Secretary, submit proposed reporting and Building, 2100 Second Street SW., Securities and Exchange Commission, recordkeeping requirements to OMB for Washington, DC 20593–0001. The 100 F Street NE., Washington, DC review and approval, and to publish a primary purpose of the meeting is to 20549–1090. notice in the Federal Register notifying prepare for the fifty-fifth Session of the the public that the agency has made All submissions should refer to File International Maritime Organization’s such a submission. Number SR–NYSEMKT–2012–64. This (IMO) Subcommittee on Stability and file number should be included on the DATES: Submit comments on or before Load Lines and on Fishing Vessels subject line if email is used. To help the December 26, 2012. If you intend to Safety (SLF) to be held at the IMO Commission process and review your comment but cannot prepare comments Headquarters, United Kingdom, comments more efficiently, please use promptly, please advise the OMB February 18–22, 2013. only one method. The Commission will Reviewer and the Agency Clearance The agenda items to be considered post all comments on the Commission’s Officer before the deadline. include: Internet Web site (http://www.sec.gov/ Copies: Request for clearance (OMB —Adoption of the agenda rules/sro.shtml). Copies of the 83–1), supporting statement, and other —Decisions of other IMO bodies submission, all subsequent documents submitted to OMB for —Development of second generation amendments, all written statements review may be obtained from the intact stability criteria with respect to the proposed rule Agency Clearance Officer. —Development of guidelines on safe change that are filed with the ADDRESSES: Address all comments return to port for passenger ships concerning this notice to: Agency —Development of guidelines for 22 15 U.S.C. 78s(b)(3)(A). verification of damage stability 23 17 CFR 240.19b–(f)(2). 24 17 CFR 200.30–3(a)(12). requirements for tankers

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—Development of mandatory carriage DEPARTMENT OF STATE vehicle spaces, closed ro-ro and requirements for stability instruments special category spaces on board tankers [Public Notice 8093] —Review of general cargo ship safety —Development of interpretation of —Review of the damage stability Shipping Coordinating Committee; SOLAS regulation II–2/13.6 on means regulations for ro-ro passenger ships Notice of Committee Meeting —Revision of SOLAS chapter II–1 of escape from ro-ro spaces —Any other business subdivision and damage stability The Shipping Coordinating regulations Committee (SHC) will conduct an open Members of the public may attend this meeting up to the seating capacity —Development of provisions to ensure meeting at 10 a.m. on Tuesday of the room. To facilitate the building the integrity and uniform December 18, 2012, at the offices of the Radio Technical Commission for security process, and to request implementation of the 1969 TM reasonable accommodation, those who Convention Maritime Services (RTCM), 1611 N. Kent Street, Suite 605, Arlington, Va. plan to attend should contact the —Development of amendments to part B 22209. The primary purpose of the meeting coordinator, Mr. Randall of the 2008 IS Code on towing and meeting is to prepare for the 56th Eberly, by email at anchor handling operations Session of the International Maritime [email protected], by phone at —Consideration of IACS unified Organization’s (IMO) Sub-Committee on (202) 372–1393, by fax at (202) 372– interpretations Fire Protection (FP 56) to be held at the 1925, or in writing at Commandant (CG– —Development of amendments to the IMO Headquarters, United Kingdom, ENG–4), U.S. Coast Guard, 2100 2nd criterion for maximum angle of heel January 7–11, 2013. Street SW., Stop 7126, Washington, DC in turns of the 2008 IS Code The agenda items to be considered 20593–7126 not later than December 11, —Development of a mandatory Code for include: 2012, 7 days prior to the meeting. ships operating in polar waters —Development of measures to prevent Requests made after December 11, 2012 —Biennial agenda and provisional explosions on oil and chemical might not be able to be accommodated. agenda for SLF 56 tankers transporting low flash point RTCM Headquarters is adjacent to the —Election of Chairman and Vice- cargoes Rosslyn Metro station. For further Chairman for 2014 —Development of requirements for the directions and lodging information, —Any other business fire resistance of ventilation ducts please see: http://www.rtcm.org/ visit.php. Additional information —Report to the Maritime Safety —Review of fire protection regarding this and other IMO SHC Committee requirements for on-deck cargoes —Review of the recommendations on public meetings may be found at: Members of the public may attend www.uscg.mil/imo. this meeting up to the seating capacity evacuation analysis for new and Dated: November 14, 2012. of the room. To facilitate the building existing passenger ships security process, and to request —Development of requirements for Brian Robinson, reasonable accommodation, those who additional means of escape from Executive Secretary, Shipping Coordinating plan to attend should contact the machinery spaces Committee, Department of State. meeting coordinator, LCDR Catherine —Development of requirements for [FR Doc. 2012–28610 Filed 11–23–12; 8:45 am] Phillips, by email at ships carrying hydrogen and BILLING CODE 4710–09–P [email protected], by compressed natural gas vehicles phone at (202) 372–1374, by fax at (202) —Consideration of IACS unified 372–1925, or in writing at Commandant interpretations OFFICE OF THE UNITED STATES (CG–ENG–2), U.S. Coast Guard, 2100 —Harmonization of the requirements for TRADE REPRESENTATIVE 2nd Street SW., Stop 7126, Washington, the location of entrances, air inlets Notice of Meeting of the Industry Trade DC 20593–7126, not later than January and openings in the superstructures of Advisory Committee on Small and 16, 2013, 7 days prior to the meeting. tankers Minority Business (ITAC–11) Requests made after January 16, 2013 —Development of unified interpretations for Chapter 7 of the might not be able to be accommodated. AGENCY: Office of the United States 2000 HSC Code Please note that due to security Trade Representative. considerations, two valid, government —Development of guidelines for use of fibre reinforced plastic (FRP) within ACTION: Notice of a partially opened issued photo identifications must be meeting. presented to gain entrance to the ships structures Headquarters building. The —Analysis of fire casualty records SUMMARY: The Industry Trade Advisory Headquarters building is accessible by —Development of amendments to Committee on Small and Minority taxi and privately owned conveyance SOLAS chapter II–2, the FTP Code Business (ITAC–11) will hold a meeting (public transportation is not generally and MSC/Circ. 1120 to clarify the on Tuesday, December 4, 2012, from available). However, parking in the requirements for plastic pipes on 1:00 p.m. to 4:00 p.m. The meeting will vicinity of the building is extremely ships be opened to the public from 2:30 p.m. limited. Additional information —Consideration of amendments to to 4:00 p.m. regarding this and other IMO SHC SOLAS chapter II–2 on location of DATES: The meeting is scheduled for public meetings may be found at: EEBDs December 4, 2012 unless otherwise www.uscg.mil/imo. —Development of amendments to the notified. requirements for foam-type fire Dated: November 14, 2012. extinguishers in SOLAS regulation II– ADDRESSES: The meeting will be held at Brian Robinson, 2/10.5 the White House Conference Center, 726 Executive Secretary, Shipping Coordinating —Development of amendments to Jackson Place NW., Washington, DC Committee, Department of State. SOLAS regulation II–2/20 and 20503. [FR Doc. 2012–28609 Filed 11–23–12; 8:45 am] associated guidance on air quality FOR FURTHER INFORMATION CONTACT: BILLING CODE 4710–09–P management for ventilation of closed Laura Hellstern, DFO for ITAC–11 at

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(202) 482–3222, Department of FOR FURTHER INFORMATION CONTACT: Telecommunications Equipment (see Commerce, 14th Street and Constitution Jonathan McHale, Office of Services and http://ts.nist.gov/standards/conformity/ Avenue NW., Washington, DC 20230. Investment, (202) 395–9533; or Scott mra/mra.cfm for links to certain U.S. SUPPLEMENTARY INFORMATION: The Pietan, Office of Market Access and telecommunications MRAs); Agenda topics to be discussed are: Industrial Competitiveness, (202) 395– (6) Whether any act, policy, or 9646. practice of a country cited in a previous —U.S. Export Controls Reform section 1377 review remains unresolved SUPPLEMENTARY INFORMATION: Section —Metropolitan Export Initiative (see http://www.ustr.gov/trade-topics/ 1377 requires the USTR to review services-investment/telecom- Dated: November 19, 2012. annually the operation and effectiveness ecommerce/section-1377-review for Rebecca Rosen, of all U.S. trade agreements regarding recent reviews); and Director for Intergovernmental Affairs and telecommunications products and Public Engagement. (7) Whether any measures or practices services that are in force with respect to of a country that is a WTO member or [FR Doc. 2012–28501 Filed 11–23–12; 8:45 am] the United States. The purpose of the for which an FTA or BILLING CODE 3290–F3–P review is to determine whether any act, telecommunications trade agreement policy, or practice of a country that has has entered into force with respect to entered into a trade agreement or other the United States impede access to its OFFICE OF THE UNITED STATES telecommunications trade agreement TRADE REPRESENTATIVE telecommunications markets or with the United States is inconsistent otherwise deny market opportunities to with the terms of such agreement or Request for Comments Concerning telecommunications products and otherwise denies U.S. firms, within the Compliance With Telecommunications services of United Stares firms. context of the terms of such agreements, Trade Agreements Measures or practices of interest mutually advantageous market include, for example, efforts by a foreign AGENCY: Office of the United States opportunities for telecommunications government or a telecommunications Trade Representative. products and services. For the current service provider to block services review, the USTR seeks comments on: ACTION: Notice of request for public delivered over the Internet (including, (1) Whether any WTO member is comment and reply comment. but not limited to voice over Internet acting in a manner that is inconsistent protocol services, social networking, SUMMARY: Pursuant to section 1377 of with its obligations under WTO and search services); requirements for the Omnibus Trade and agreements affecting market access to or use of networks that limit Competitiveness Act of 1988 (19 U.S.C. opportunities for telecommunications the products or services U.S. suppliers 3106) (‘Section 1377’), the Office of the products or services, e.g., the WTO can offer in specific foreign markets; the United States Trade Representative General Agreement on Trade in Services imposition of excessively high licensing (‘‘USTR’’) is reviewing and requests (‘‘GATS’’), including the Agreement on fees; unreasonable wholesale roaming comments on the operation, Basic Telecommunications Services, the rates that mobile telecommunications effectiveness, and implementation of, Annex on Telecommunications, and any service suppliers in specific foreign and compliance with the following scheduled commitments including the markets charge U.S. suppliers that seek agreements regarding Reference Paper on Pro-Competitive to supply international mobile roaming telecommunications products and Regulatory Principles; the WTO services to their U.S. customers; services of the United States: The World Agreement on Subsidies and allocating access to spectrum or other Trade Organization (‘‘WTO’’) General Countervailing Measures; the WTO scarce resources through discriminatory Agreement on Trade in Services; The Agreement on Trade-Related Aspects of procedures or contingent on the North American Free Trade Agreement Intellectual Property Rights; or the purchase of locally-produced (‘‘NAFTA’’); U.S. free trade agreements plurilateral WTO Agreement on equipment; subsidies provided to (‘‘FTAs’’) with Australia, Bahrain, Chile, Government Procurement. equipment manufactures which are Colombia, Korea, Morocco, Oman, (2) Whether Canada or Mexico has contingent upon exporting or local Panama, Peru, and Singapore; the failed to comply with its content, or have caused adverse effects Dominican Republic–Central America– telecommunications obligations under to domestic equipment manufacturers United States Free Trade Agreement the NAFTA; and the imposition by foreign (‘‘CAFTA–DR’’); and any other (3) Whether Costa Rica, the governments of unnecessary or telecommunications trade agreements, Dominican Republic, El Salvador, discriminatory technical regulations or such as Mutual Recognition Agreements Guatemala, Honduras or Nicaragua has standards for telecommunications (MRAs) for Conformity Assessment of failed to comply with its products or services. In all cases, Telecommunications Equipment. The telecommunications obligations under commenters should provide any USTR will conclude the review by the CAFTA–DR; available documentary evidence, March 31, 2013. (4) Whether Australia, Bahrain, Chile, including relevant legal measures where Colombia, Korea, Morocco, Oman, available, translated into English where DATES: Comments are due on December Panama, Peru, or Singapore has failed to necessary, to facilitate evaluation. 17, 2012 and reply comments on comply with its telecommunications January 14, 2013. obligations under its FTA with the Public Comment and Reply Comment: ADDRESSES: Submissions should be United States (see http://www.ustr.gov/ Requirements for Submission made via the Internet at trade-agreements/free-trade-agreements Comments in response to this notice www.regulations.gov docket number for links to U.S. FTAs); must be written in English, must USTR–2012–0035. For alternatives to (5) Whether any country has failed to identify (on the first page of the on-line submissions please contact comply with its obligations under comments) the telecommunications Yvonne Jamison (202–395–3475). The telecommunications trade agreements trade agreement(s) discussed therein, public is strongly encouraged to file with the United States other than FTAs, and must be submitted no later than submissions electronically rather than e.g., Mutual Recognition Agreements December 17, 2012. Any replies to by facsimile or mail. (MRAs) for Conformity Assessment of comments submitted must also be in

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English and must be submitted no later protected. The submission must regulation exempts these small than January 14, 2013. Comments and indicate, with asterisks, where operators from certain provisions of the reply comments must be submitted confidential information was redacted Federal statute to permit them to obtain using http://www.regulations.gov, or deleted. The top and bottom of each economic authority by filing a one-page, docket number USTR– 2012–0035. In page of the non-confidential version front and back, OST Form 4507, Air the unusual case where submitters are must be marked either ‘‘PUBLIC Taxi Operator Registration, and unable to make submissions through VERSION’’ or ‘‘NON-CONFIDENTIAL’’. Amendments under Part 298 of DOT’s regulations.gov, the submitter must Regulations. contact Yvonne Jamison at (202) 395– Public Inspection of Submissions DOT expects to receive 200 new air 3475 to make alternate arrangements. To Comments will be placed in the taxi registrations and 2,200 amended air submit comments using http:// docket and open to public inspection, taxi registrations each year, resulting in www.regulations.gov, enter docket except confidential business 2,400 total respondents. Further, DOT number USTR– 2012–0035 under ‘‘Key information. Comments may be viewed expects filers of new registrations to Word or ID’’ on the home page and click on the http://www.regulations.gov Web take 1 hour to complete the form, while ‘‘Search’’. The site will provide a search site by entering the relevant docket it should only take 30 minutes to results page listing all documents number in the search field on the home prepare amendments to the form. Thus, associated with this docket. Locate the page. the total annual burden is expected to reference to this notice, and click on be 1,300 hours. ’’Comment Now!’’ Follow the Douglas M. Bell, Affected Public: U.S. air taxi instructions given on the screen to Chair, Trade Policy Staff Committee. operators. submit a comment. The http:// [FR Doc. 2012–28505 Filed 11–23–12; 8:45 am] Number of Respondents: 2,400. www.regulations.gov Web site offers the BILLING CODE 3290–F3–P Frequency: On occasion. option of providing comments by filling Number of Responses: 2,400. in a ‘‘Type Comment’’ field or by Total Annual Burden: 1,300 hours. attaching a document using the ‘‘Upload DEPARTMENT OF TRANSPORTATION ADDRESSES: Send comments regarding File(s)’’ option. While both options are the burden estimate, including [Docket No. DOT–OST–2004–16951] acceptable, USTR prefers submissions suggestions for reducing the burden, to in the form of an attachment. If you the Office of Management and Budget, Request for Comments of a Previously Attention: Desk Officer for the Office of attach a comment, it is sufficient to type Approved Information Collection ‘‘see attached’’ in the comment section. the Secretary of Transportation, 725 Please do not attach separate cover AGENCY: Office of the Secretary, DOT. 17th Street NW., Washington, DC 20503. Comments are invited on: whether the letters to electronic submissions; rather, ACTION: Notice and request for proposed collection of information is include any information that might comments. appear in a cover letter in the comments necessary for the proper performance of themselves. Similarly, to the extent SUMMARY: In compliance with the the functions of the Department, possible, please include any exhibits, Paperwork Reduction Act of 1995 (44 including whether the information will annexes, or other attachments in the U.S.C. 3501 et seq.), this notice have practical utility; the accuracy of same file as the submission itself, not as announces that the Information the Department’s estimate of the burden separate files. (For further information Collection Request (ICR) abstracted of the proposed information collection; on using the www.regulations.gov Web below is being forwarded to the Office ways to enhance the quality, utility and site, please consult the resources of Management and Budget (OMB) for clarity of the information to be provided on the Web site by clicking on review and comments. A Federal collected; and ways to minimize the the ‘‘help’’ tab.) Submitters should Register Notice with a 60-day comment burden of the collection of information provide updated information on all period soliciting comments on the on respondents, including the use of issues they cite in their filings; USTR following information collection was automated collection techniques or will not review submissions that are published on September 11, 2012 (77 FR other forms of information technology. copies of earlier submissions. 55893). No comments were received. Authority: The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; Business Confidential Submissions DATES: Comments must be submitted on or before December 26, 2012. and 49 CFR 1:48. For any comments submitted Issued in Washington, DC on Monday, electronically containing business FOR FURTHER INFORMATION CONTACT: Vanessa R. Balgobin, (202) 366–9721, November 19, 2011. confidential information, the file name Habib Azarsina, of the business confidential version Office of Aviation Analysis, Office of the Secretary, U.S. Department of OST PRA Clearance Officer, Office of the should begin with the characters ‘‘BC’’. Secretary. The top of any page containing business Transportation, 1200 New Jersey [FR Doc. 2012–28571 Filed 11–23–12; 8:45 am] confidential information must be clearly Avenue SE., Washington, DC 20590. marked ‘‘BUSINESS CONFIDENTIAL’’. SUPPLEMENTARY INFORMATION: BILLING CODE 4910–9X–P Any person filing comments that Title: Exemptions for Air Taxi contain business confidential Operations. DEPARTMENT OF TRANSPORTATION information must also file in a separate OMB Control Number: 2105–0565. submission a public version of the Type of Request: Renewal of a Federal Highway Administration comments. The file name of the public Previously Approved Information version of the comments should begin Collection. [Docket No. FHWA–2012–0116] with the character ‘‘P’’. The ‘‘BC’’ and Abstract: Part 298 of Title 14 of the Agency Information Collection ‘‘P’’ should be followed by the name of Code of Federal Regulations, Activities: Request for Comments for a the person or entity submitting the Exemptions for Air Taxi Registration, New Information Collection comments. The submitter must include establishes a classification of air carriers in the comments a written explanation known as air taxi operators that offer on- AGENCY: Federal Highway of why the information should be demand passenger service. The Administration (FHWA), DOT.

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ACTION: Notice and request for (FHWA) is developing the RD&T Issued on: November 14, 2012. comments. Agenda Web site. This Web site will Larry W. Minor, communicate FHWA’s RD&T goals, Associate Administrator, Office of Policy, SUMMARY: FHWA invites public objectives and strategies to its Federal Motor Carrier Safety Administration. comments about our intention to request stakeholders and highlight notable [FR Doc. 2012–28697 Filed 11–21–12; 11:15 am] the Office of Management and Budget’s initiatives or projects that illustrate BILLING CODE 4910–EX–P (OMB) approval for a new information FHWA’s RD&T approach. The Web site collection, which is summarized below will include an electronic mechanism under SUPPLEMENTARY INFORMATION. We for stakeholders to provide feedback on DEPARTMENT OF TRANSPORTATION published a Federal Register Notice the overall RD&T Agenda, FHWA’s with a 60-day public comment period approach to addressing national Federal Motor Carrier Safety on this information collection on transportation challenges, and potential Administration August 23, 2012. We are required to opportunities for FHWA to collaborate [FMCSA Docket No. FMCSA–2012–0281] publish this notice in the Federal with stakeholders to address them. Register by the Paperwork Reduction Respondents: Approximately 1,000 Qualification of Drivers; Exemption Act of 1995. annual respondents. Applications; Diabetes Mellitus DATES: Please submit comments by Frequency: Annually. December 26, 2012. Estimated Average Burden per AGENCY: Federal Motor Carrier Safety ADDRESSES: You may send comments Response: Approximately 10 minutes Administration (FMCSA), DOT. within 30 days to the Office of per respondent per year. ACTION: Notice of final disposition. Information and Regulatory Affairs, Estimated Total Annual Burden Office of Management and Budget, 725 Hours: Approximately 167 hours per SUMMARY: FMCSA announces its 17th Street NW., Washington, DC 20503, year. decision to exempt 18 individuals from Attention DOT Desk Officer. You are Authority: The Paperwork Reduction Act its rule prohibiting persons with asked to comment on any aspect of this of 1995; 44 U.S.C. Chapter 35, as amended; insulin-treated diabetes mellitus (ITDM) information collection, including: (1) and 49 CFR 1.48. from operating commercial motor Whether the proposed collection is Issued on: November 19, 2012. vehicles (CMVs) in interstate commerce. The exemptions will enable these necessary for the FHWA’s performance; Victoria Scott, (2) the accuracy of the estimated individuals to operate CMVs in Business Operations Group Manager, interstate commerce. burden; (3) ways for the FHWA to Information Technology Division. DATES: The exemptions are effective enhance the quality, usefulness, and [FR Doc. 2012–28449 Filed 11–23–12; 8:45 am] clarity of the collected information; and November 26, 2012. The exemptions BILLING CODE 4910–22–P (4) ways that the burden could be expire on November 26, 2014. minimized, including the use of FOR FURTHER INFORMATION CONTACT: electronic technology, without reducing DEPARTMENT OF TRANSPORTATION Elaine M. Papp, Chief, Medical the quality of the collected information. Programs Division, (202) 366–4001, All comments should include the Federal Motor Carrier Safety [email protected], FMCSA, Room Docket number FHWA–2012–0116. Administration W64–224, Department of FOR FURTHER INFORMATION CONTACT: John Transportation, 1200 New Jersey Moulden, 202–493–3470, Turner- Sunshine Act Meetings; Unified Carrier Avenue SE., Washington, DC 20590– Fairbank Highway Research Center, Registration Plan Board of Directors 0001. Office hours are from 8:30 a.m. to Office of Corporate Research, 5 p.m., Monday through Friday, except AGENCY: Federal Motor Carrier Safety Technology, and Innovation Federal holidays. Administration (FMCSA), DOT. Management, Federal Highway SUPPLEMENTARY INFORMATION: ACTION: Administration, Department of Notice of Unified Carrier Transportation, 6300 Georgetown Pike, Registration Plan Board of Directors Electronic Access Meeting. McLean, VA 22101. Office hours are You may see all the comments online from 8 a.m. to 5 p.m., Monday through TIME AND DATE: The meeting will be held through the Federal Document Friday, except Federal holidays. on December 6, 2012, from 12:00 noon Management System (FDMS) at: http:// to 3:00 p.m., Eastern Standard Time. SUPPLEMENTARY INFORMATION: www.regulations.gov. Title: Federal Highway PLACE: This meeting will be open to the Docket: For access to the docket to Administration Research, Development public via conference call. Any read background documents or and Technology Agenda Web site. interested person may call 1–877–820– comments, go to http:// Background: Title 23, United States 7831, passcode, 908048 to listen and www.regulations.gov and/or Room Code, Section 502(a)(5) requires that participate in this meeting. W12–140 on the ground level of the Federal surface transportation research STATUS: Open to the public. West Building, 1200 New Jersey Avenue and development activities address the Matters To Be Considered: The SE., Washington, DC, between 9 a.m. needs of stakeholders, including Unified Carrier Registration Plan Board and 5 p.m., Monday through Friday, ‘‘States, metropolitan planning of Directors (the Board) will continue its except Federal holidays. organizations, local governments, the work in developing and implementing Privacy Act: Anyone may search the private sector, researchers, research the Unified Carrier Registration Plan electronic form of all comments sponsors, and other affected parties, and Agreement and to that end, may received into any of DOT’s dockets by including public interest groups.’’ As consider matters properly before the the name of the individual submitting part of its effort to ensure that Federal Board. the comment (or of the person signing research, development and technology FOR FURTHER INFORMATION CONTACT: Mr. the comment, if submitted on behalf of (RD&T) activities are addressing the Avelino Gutierrez, Chair, Unified an association, business, labor union, or most critical national challenges, the Carrier Registration Board of Directors at other entity). You may review DOT’s Federal Highway Administration (505) 827–4565. Privacy Act Statement for the Federal

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Docket Management System (FDMS) years. In each case, an endocrinologist medical examination; and (4) that each published in the Federal Register on verified that the driver has individual provide a copy of the annual January 17, 2008 (73 FR 3316), or you demonstrated a willingness to properly medical certification to the employer for may visit http://edocket.access.gpo.gov/ monitor and manage his/her diabetes retention in the driver’s qualification 2008/pdf/E8-785.pdf. mellitus, received education related to file, or keep a copy in his/her driver’s qualification file if he/she is self- Background diabetes management, and is on a stable insulin regimen. These drivers report no employed. The driver must also have a On September 27, 2012, FMCSA other disqualifying conditions, copy of the certification when driving, published a notice of receipt of Federal including diabetes-related for presentation to a duly authorized diabetes exemption applications from complications. Each meets the vision Federal, State, or local enforcement 18 individuals and requested comments requirement at 49 CFR 391.41(b)(10). official. from the public (77 FR 59447). The The qualifications and medical Conclusion public comment period closed on condition of each applicant were stated October 29, 2012, and no comments and discussed in detail in the Based upon its evaluation of the 18 were received. September 27, 2012, Federal Register exemption applications, FMCSA FMCSA has evaluated the eligibility notice and they will not be repeated in exempts Charles E. Castle (OH), Robert of the 18 applicants and determined that this notice. R. Coscio (NY), Larry W. Dearing (IN), granting the exemptions to these Bradley E. DeWitt (OR), Leonard R. individuals would achieve a level of Discussion of Comments Dobosenski (MN), Rodney L. Fife (OH), safety equivalent to or greater than the FMCSA received no comments in this Patrick J. Flynn (IA), Thomas K. Galford level that would be achieved by proceeding. (WV), Laurence S. Goldstein (NY), complying with the current regulation Michael L. Kiefer (SD), Marcus J. Kyle Basis for Exemption Determination 49 CFR 391.41(b)(3). (IA), Kevin K. Leavey (NJ), Sharon K. Under 49 U.S.C. 31136(e) and 31315, Diabetes Mellitus and Driving Locke (IN), David J. Maxwell (ND), FMCSA may grant an exemption from Experience of the Applicants Robert C. Moore (PA), Jedediaha C. the diabetes requirement in 49 CFR Record (WY), Jessie L. Webster (KY), The Agency established the current 391.41(b)(3) if the exemption is likely to Robert F. Zitoli (MA) from the ITDM requirement for diabetes in 1970 achieve an equivalent or greater level of requirement in 49 CFR 391.41(b)(3), because several risk studies indicated safety than would be achieved without subject to the conditions listed under that drivers with diabetes had a higher the exemption. The exemption allows ‘‘Conditions and Requirements’’ above. rate of crash involvement than the the applicants to operate CMVs in In accordance with 49 U.S.C. 31136(e) general population. The diabetes rule interstate commerce. and 31315 each exemption will be valid provides that ‘‘A person is physically To evaluate the effect of these for two years unless revoked earlier by qualified to drive a commercial motor exemptions on safety, FMCSA FMCSA. The exemption will be revoked vehicle if that person has no established considered medical reports about the if the following occurs: (1) The person medical history or clinical diagnosis of applicants’ ITDM and vision, and fails to comply with the terms and diabetes mellitus currently requiring reviewed the treating endocrinologists’ conditions of the exemption; (2) the insulin for control’’ (49 CFR medical opinion related to the ability of exemption has resulted in a lower level 391.41(b)(3)). the driver to safely operate a CMV while of safety than was maintained before it FMCSA established its diabetes using insulin. was granted; or (3) continuation of the exemption program, based on the Consequently, FMCSA finds that in exemption would not be consistent with Agency’s July 2000 study entitled ‘‘A each case exempting these applicants the goals and objectives of 49 U.S.C. Report to Congress on the Feasibility of from the diabetes requirement in 49 CFR 31136(e) and 31315. If the exemption is a Program to Qualify Individuals with 391.41(b)(3) is likely to achieve a level still effective at the end of the 2-year Insulin-Treated Diabetes Mellitus to of safety equal to that existing without period, the person may apply to FMCSA Operate in Interstate Commerce as the exemption. for a renewal under procedures in effect Directed by the Transportation Act for at that time. the 21st Century.’’ The report concluded Conditions and Requirements that a safe and practicable protocol to The terms and conditions of the Issued on: November 14, 2012. allow some drivers with ITDM to exemption will be provided to the Larry W. Minor, operate CMVs is feasible. The applicants in the exemption document Associate Administrator for Policy. September 3, 2003 (68 FR 52441), and they include the following: (1) That [FR Doc. 2012–28576 Filed 11–23–12; 8:45 am] Federal Register notice in conjunction each individual submit a quarterly BILLING CODE 4910–EX–P with the November 8, 2005 (70 FR monitoring checklist completed by the 67777), Federal Register notice provides treating endocrinologist as well as an the current protocol for allowing such annual checklist with a comprehensive DEPARTMENT OF TRANSPORTATION drivers to operate CMVs in interstate medical evaluation; (2) that each Federal Motor Carrier Safety commerce. individual reports within 2 business These 18 applicants have had ITDM days of occurrence, all episodes of Administration over a range of 1 to 24 years. These severe hypoglycemia, significant [Docket No. FMCSA–2012–0348] applicants report no severe complications, or inability to manage hypoglycemic reactions resulting in loss diabetes; also, any involvement in an Qualification of Drivers; Exemption of consciousness or seizure, requiring accident or any other adverse event in Applications; Diabetes Mellitus the assistance of another person, or a CMV or personal vehicle, whether or AGENCY: Federal Motor Carrier Safety resulting in impaired cognitive function not it is related to an episode of Administration (FMCSA), DOT. that occurred without warning hypoglycemia; (3) that each individual ACTION: Notice of applications for symptoms, in the past 12 months and no provide a copy of the ophthalmologist’s exemption from the diabetes mellitus recurrent (2 or more) severe or optometrist’s report to the medical requirement; request for comments. hypoglycemic episodes in the past 5 examiner at the time of the annual

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SUMMARY: FMCSA announces receipt of Statement for the FDMS published in reactions resulting in loss of applications from 27 individuals for the Federal Register on January 17, consciousness, requiring the assistance exemption from the prohibition against 2008 (73 FR 3316), or you may visit of another person, or resulting in persons with insulin-treated diabetes http://edocket.access.gpo.gov/2008/pdf/ impaired cognitive function that mellitus (ITDM) operating commercial E8-785.pdf. occurred without warning in the past 12 motor vehicles (CMVs) in interstate FOR FURTHER INFORMATION CONTACT: months and no recurrent (2 or more) commerce. If granted, the exemptions Elaine M. Papp, Chief, Medical severe hypoglycemic episodes in the would enable these individuals with Programs Division, (202) 366–4001, last 5 years. His endocrinologist certifies ITDM to operate CMVs in interstate [email protected], FMCSA, that Mr. Badertscher understands commerce. Department of Transportation, 1200 diabetes management and monitoring, has stable control of his diabetes using DATES: Comments must be received on New Jersey Avenue SE., Room W64– insulin, and is able to drive a CMV or before December 26, 2012. 224, Washington, DC 20590–0001. safely. Mr. Badertscher meets the vision ADDRESSES: You may submit comments Office hours are from 8:30 a.m. to 5 p.m., Monday through Friday, except requirements of 49 CFR 391.41(b)(10). bearing the Federal Docket Management His optometrist examined him in 2012 System (FDMS) Docket No. FMCSA– Federal holidays. SUPPLEMENTARY INFORMATION: and certified that he does not have 2012–0348 using any of the following diabetic retinopathy. He holds a Class A methods: Background CDL from Wyoming. • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the Under 49 U.S.C. 31136(e) and 31315, Gerald R. Bryson FMCSA may grant an exemption from on-line instructions for submitting Mr. Bryson, 26, has had ITDM since comments. the Federal Motor Carrier Safety Regulations for a 2-year period if it finds 1995. His endocrinologist examined him • Mail: Docket Management Facility; in 2012 and certified that he has had no ‘‘such exemption would likely achieve a U.S. Department of Transportation, 1200 severe hypoglycemic reactions resulting level of safety that is equivalent to or New Jersey Avenue SE., West Building in loss of consciousness, requiring the greater than the level that would be Ground Floor, Room W12–140, assistance of another person, or achieved absent such exemption.’’ The Washington, DC 20590–0001. resulting in impaired cognitive function • statute also allows the Agency to renew Hand Delivery: West Building that occurred without warning in the exemptions at the end of the 2-year Ground Floor, Room W12–140, 1200 past 12 months and no recurrent (2 or period. The 27 individuals listed in this New Jersey Avenue SE., Washington, more) severe hypoglycemic episodes in notice have recently requested such an DC, between 9 a.m. and 5 p.m., Monday the last 5 years. His endocrinologist exemption from the diabetes prohibition through Friday, except Federal certifies that Mr. Bryson understands in 49 CFR 391.41(b)(3), which applies to Holidays. diabetes management and monitoring, • drivers of CMVs in interstate commerce. Fax: 1–202–493–2251. has stable control of his diabetes using Accordingly, the Agency will evaluate Instructions: Each submission must insulin, and is able to drive a CMV the qualifications of each applicant to include the Agency name and the safely. Mr. Bryson meets the vision determine whether granting the docket numbers for this notice. Note requirements of 49 CFR 391.41(b)(10). exemption will achieve the required that all comments received will be His ophthalmologist examined him in level of safety mandated by the statutes. posted without change to http:// 2012 and certified that he has stable www.regulations.gov, including any Qualifications of Applicants nonproliferative diabetic retinopathy. personal information provided. Please He holds a Class D operator’s license Kenneth R. Anderson see the Privacy Act heading below for from Montana. further information. Mr. Anderson, 59, has had ITDM Docket: For access to the docket to since 2012. His endocrinologist Matthew J. Burris read background documents or examined him in 2012 and certified that Mr. Burris, 29, has had ITDM since comments, go to http:// he has had no severe hypoglycemic 1997. His endocrinologist examined him www.regulations.gov at any time or reactions resulting in loss of in 2012 and certified that he has had no Room W12–140 on the ground level of consciousness, requiring the assistance severe hypoglycemic reactions resulting the West Building, 1200 New Jersey of another person, or resulting in in loss of consciousness, requiring the Avenue SE., Washington, DC, between 9 impaired cognitive function that assistance of another person, or a.m. and 5 p.m., Monday through occurred without warning in the past 12 resulting in impaired cognitive function Friday, except Federal holidays. The months and no recurrent (2 or more) that occurred without warning in the Federal Docket Management System severe hypoglycemic episodes in the past 12 months and no recurrent (2 or (FDMS) is available 24 hours each day, last 5 years. His endocrinologist certifies more) severe hypoglycemic episodes in 365 days each year. If you want that Mr. Anderson understands diabetes the last 5 years. His endocrinologist acknowledgment that we received your management and monitoring, has stable certifies that Mr. Burris understands comments, please include a self- control of his diabetes using insulin, diabetes management and monitoring, addressed, stamped envelope or and is able to drive a CMV safely. Mr. has stable control of his diabetes using postcard or print the acknowledgement Anderson meets the vision requirements insulin, and is able to drive a CMV page that appears after submitting of 49 CFR 391.41(b)(10). His optometrist safely. Mr. Burris meets the vision comments on-line. examined him in 2012 and certified that requirements of 49 CFR 391.41(b)(10). Privacy Act: Anyone may search the he does not have diabetic retinopathy. His optometrist examined him in 2012 electronic form of all comments He holds a Class A CDL from Alabama. and certified that he does not have received into any of our dockets by the diabetic retinopathy. He holds a Class D Randle A. Badertscher name of the individual submitting the operator’s license from Minnesota. comment (or of the person signing the Mr. Badertscher, 32, has had ITDM comment, if submitted on behalf of an since 1988. His endocrinologist Samuel F. Dyer association, business, labor union, etc.). examined him in 2012 and certified that Mr. Dyer, 46, has had ITDM since You may review DOT’s Privacy Act he has had no severe hypoglycemic 2008. His endocrinologist examined him

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in 2012 and certified that he has had no Harold D. Grimes diabetic retinopathy. He holds a Class A severe hypoglycemic reactions resulting Mr. Grimes, 68, has had ITDM since CDL from Michigan. in loss of consciousness, requiring the 2011. His endocrinologist examined him Robert L. Johnson assistance of another person, or in 2012 and certified that he has had no resulting in impaired cognitive function Mr. Johnson, 58, has had ITDM since severe hypoglycemic reactions resulting 2010. His endocrinologist examined him that occurred without warning in the in loss of consciousness, requiring the past 12 months and no recurrent (2 or in 2012 and certified that he has had no assistance of another person, or severe hypoglycemic reactions resulting more) severe hypoglycemic episodes in resulting in impaired cognitive function in loss of consciousness, requiring the the last 5 years. His endocrinologist that occurred without warning in the assistance of another person, or certifies that Mr. Dyer understands past 12 months and no recurrent (2 or resulting in impaired cognitive function diabetes management and monitoring, more) severe hypoglycemic episodes in that occurred without warning in the has stable control of his diabetes using the last 5 years. His endocrinologist past 12 months and no recurrent (2 or insulin, and is able to drive a CMV certifies that Mr. Grimes understands more) severe hypoglycemic episodes in safely. Mr. Dyer meets the vision diabetes management and monitoring, the last 5 years. His endocrinologist requirements of 49 CFR 391.41(b)(10). has stable control of his diabetes using certifies that Mr. Johnson understands His optometrist examined him in 2012 insulin, and is able to drive a CMV diabetes management and monitoring, and certified that he does not have safely. Mr. Grimes meets the vision has stable control of his diabetes using diabetic retinopathy. He holds a Class A requirements of 49 CFR 391.41(b)(10). insulin, and is able to drive a CMV CDL from Nevada. His ophthalmologist examined him in safely. Mr. Johnson meets the vision 2012 and certified that he has stable requirements of 49 CFR 391.41(b)(10). Jerol G. Fox nonproliferative diabetic retinopathy. His ophthalmologist examined him in He holds a Class C Chauffeur license Mr. Fox, 67, has had ITDM since 2012 and certified that he does not have from Michigan. 2010. His endocrinologist examined him diabetic retinopathy. He holds a Class A in 2012 and certified that he has had no Daniel L. Helton CDL from Virginia. severe hypoglycemic reactions resulting Mr. Helton, 44, has had ITDM since Kevin R. Martin in loss of consciousness, requiring the 2005. His endocrinologist examined him Mr. Martin, 44, has had ITDM since assistance of another person, or in 2012 and certified that he has had no 1989. His endocrinologist examined him resulting in impaired cognitive function severe hypoglycemic reactions resulting in 2012 and certified that he has had no that occurred without warning in the in loss of consciousness, requiring the severe hypoglycemic reactions resulting past 12 months and no recurrent (2 or assistance of another person, or in loss of consciousness, requiring the more) severe hypoglycemic episodes in resulting in impaired cognitive function assistance of another person, or the last 5 years. His endocrinologist that occurred without warning in the resulting in impaired cognitive function certifies that Mr. Fox understands past 12 months and no recurrent (2 or that occurred without warning in the diabetes management and monitoring, more) severe hypoglycemic episodes in past 12 months and no recurrent (2 or has stable control of his diabetes using the last 5 years. His endocrinologist more) severe hypoglycemic episodes in insulin, and is able to drive a CMV certifies that Mr. Helton understands the last 5 years. His endocrinologist safely. Mr. Fox meets the vision diabetes management and monitoring, certifies that Mr. Martin understands requirements of 49 CFR 391.41(b)(10). has stable control of his diabetes using diabetes management and monitoring, His optometrist examined him in 2012 insulin, and is able to drive a CMV has stable control of his diabetes using and certified that he does not have safely. Mr. Helton meets the vision insulin, and is able to drive a CMV diabetic retinopathy. He holds a Class A requirements of 49 CFR 391.41(b)(10). safely. Mr. Martin meets the vision CDL from Delaware. His optometrist examined him in 2012 requirements of 49 CFR 391.41(b)(10). and certified that he does not have His ophthalmologist examined him in Michael S. Freeman diabetic retinopathy. He holds a Class B 2012 and certified that he has stable operator’s license from Illinois. Mr. Freeman, 59, has had ITDM since nonproliferative diabetic retinopathy. approximately 2009. His Douglas W. Hunderman He holds a Class B CDL from Missouri. endocrinologist examined him in 2012 Mr. Hunderman, 48, has had ITDM George R. Miller, III and certified that he has had no severe since 2011. His endocrinologist Mr. Miller, 65, has had ITDM since hypoglycemic reactions resulting in loss examined him in 2012 and certified that 1988. His endocrinologist examined him of consciousness, requiring the he has had no severe hypoglycemic in 2012 and certified that he has had no assistance of another person, or reactions resulting in loss of severe hypoglycemic reactions resulting resulting in impaired cognitive function consciousness, requiring the assistance in loss of consciousness, requiring the that occurred without warning in the of another person, or resulting in assistance of another person, or past 12 months and no recurrent (2 or impaired cognitive function that resulting in impaired cognitive function more) severe hypoglycemic episodes in occurred without warning in the past 12 that occurred without warning in the the last 5 years. His endocrinologist months and no recurrent (2 or more) past 12 months and no recurrent (2 or certifies that Mr. Freeman understands severe hypoglycemic episodes in the more) severe hypoglycemic episodes in diabetes management and monitoring, last 5 years. His endocrinologist certifies the last 5 years. His endocrinologist has stable control of his diabetes using that Mr. Hunderman understands certifies that Mr. Miller understands insulin, and is able to drive a CMV diabetes management and monitoring, diabetes management and monitoring, safely. Mr. Freeman meets the vision has stable control of his diabetes using has stable control of his diabetes using requirements of 49 CFR 391.41(b)(10). insulin, and is able to drive a CMV insulin, and is able to drive a CMV His optometrist examined him in 2012 safely. Mr. Hunderman meets the vision safely. Mr. Miller meets the vision and certified that he does not have requirements of 49 CFR 391.41(b)(10). requirements of 49 CFR 391.41(b)(10). diabetic retinopathy. He holds a Class C His ophthalmologist examined him in His ophthalmologist examined him in CDL from Oregon. 2012 and certified that he does not have 2012 and certified that he has stable

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nonproliferative diabetic retinopathy. and certified that he does not have His ophthalmologist examined him in He holds a Class A CDL from diabetic retinopathy. He holds a Class A 2012 and certified that he does not have Pennsylvania. CDL from Washington. diabetic retinopathy. He holds a Class C operator’s license from Maryland. Ronald G. Monroe Israel Ramos Mr. Monroe, 62, has had ITDM since Mr. Ramos, 46, has had ITDM since Craig W. Schafer 2011. His endocrinologist examined him 2009. His endocrinologist examined him Mr. Schafer, 59, has had ITDM since in 2012 and certified that he has had no in 2012 and certified that he has had no 2012. His endocrinologist examined him severe hypoglycemic reactions resulting severe hypoglycemic reactions resulting in 2012 and certified that he has had no in loss of consciousness, requiring the in loss of consciousness, requiring the severe hypoglycemic reactions resulting assistance of another person, or assistance of another person, or in loss of consciousness, requiring the resulting in impaired cognitive function resulting in impaired cognitive function assistance of another person, or that occurred without warning in the that occurred without warning in the resulting in impaired cognitive function past 12 months and no recurrent (2 or past 12 months and no recurrent (2 or that occurred without warning in the more) severe hypoglycemic episodes in more) severe hypoglycemic episodes in past 12 months and no recurrent (2 or the last 5 years. His endocrinologist the last 5 years. His endocrinologist more) severe hypoglycemic episodes in certifies that Mr. Monroe understands certifies that Mr. Ramos understands the last 5 years. His endocrinologist diabetes management and monitoring, diabetes management and monitoring, certifies that Mr. Schafer understands has stable control of his diabetes using has stable control of his diabetes using diabetes management and monitoring, insulin, and is able to drive a CMV insulin, and is able to drive a CMV has stable control of his diabetes using safely. Mr. Monroe meets the vision safely. Mr. Ramos meets the vision insulin, and is able to drive a CMV requirements of 49 CFR 391.41(b)(10). requirements of 49 CFR 391.41(b)(10). safely. Mr. Schafer meets the vision His optometrist examined him in 2012 His optometrist examined him in 2012 requirements of 49 CFR 391.41(b)(10). and certified that he does not have and certified that he does not have His ophthalmologist examined him in diabetic retinopathy. He holds a Class A diabetic retinopathy. He holds a Class A 2012 and certified that he does not have CDL from Indiana. CDL from NewYork. diabetic retinopathy. He holds a Class A CDL from Delaware. Ronald D. Norton Jed Ramsey Mr. Norton, 60, has had ITDM since Mr. Ramsey, 36, has had ITDM since Stephen L. Schug 2009. His endocrinologist examined him 2012. His endocrinologist examined him Mr. Schug, 26, has had ITDM since in 2012 and certified that he has had no in 2012 and certified that he has had no 2001. His endocrinologist examined him severe hypoglycemic reactions resulting severe hypoglycemic reactions resulting in 2012 and certified that he has had no in loss of consciousness, requiring the in loss of consciousness, requiring the severe hypoglycemic reactions resulting assistance of another person, or assistance of another person, or in loss of consciousness, requiring the resulting in impaired cognitive function resulting in impaired cognitive function assistance of another person, or that occurred without warning in the that occurred without warning in the resulting in impaired cognitive function past 12 months and no recurrent (2 or past 12 months and no recurrent (2 or that occurred without warning in the more) severe hypoglycemic episodes in more) severe hypoglycemic episodes in past 12 months and no recurrent (2 or the last 5 years. His endocrinologist the last 5 years. His endocrinologist more) severe hypoglycemic episodes in certifies that Mr. Norton understands certifies that Mr. Ramsey understands the last 5 years. His endocrinologist diabetes management and monitoring, diabetes management and monitoring, certifies that Mr. Schug understands has stable control of his diabetes using has stable control of his diabetes using diabetes management and monitoring, insulin, and is able to drive a CMV insulin, and is able to drive a CMV has stable control of his diabetes using safely. Mr. Norton meets the vision safely. Mr. Ramsey meets the vision insulin, and is able to drive a CMV requirements of 49 CFR 391.41(b)(10). requirements of 49 CFR 391.41(b)(10). safely. Mr. Schug meets the vision His optometrist examined him in 2012 His optometrist examined him in 2012 requirements of 49 CFR 391.41(b)(10). and certified that he does not have and certified that he does not have His optometrist examined him in 2012 diabetic retinopathy. He holds a Class A diabetic retinopathy. He holds a Class A and certified that he does not have CDL from Wisconsin. CDL from Idaho. diabetic retinopathy. He holds a Class E operator’s license from Florida. Lawrence E. Olson Raymond E. Richardson Mr. Olson, 64, has had ITDM since Mr. Richardson, 48, has had ITDM Shawn M. Seeley 2005. His endocrinologist examined him since 1998. His endocrinologist Mr. Seeley, 48, has had ITDM since in 2012 and certified that he has had no examined him in 2012 and certified that 2011. His endocrinologist examined him severe hypoglycemic reactions resulting he has had no severe hypoglycemic in 2012 and certified that he has had no in loss of consciousness, requiring the reactions resulting in loss of severe hypoglycemic reactions resulting assistance of another person, or consciousness, requiring the assistance in loss of consciousness, requiring the resulting in impaired cognitive function of another person, or resulting in assistance of another person, or that occurred without warning in the impaired cognitive function that resulting in impaired cognitive function past 12 months and no recurrent (2 or occurred without warning in the past 12 that occurred without warning in the more) severe hypoglycemic episodes in months and no recurrent (2 or more) past 12 months and no recurrent (2 or the last 5 years. His endocrinologist severe hypoglycemic episodes in the more) severe hypoglycemic episodes in certifies that Mr. Olson understands last 5 years. His endocrinologist certifies the last 5 years. His endocrinologist diabetes management and monitoring, that Mr. Richardson understands certifies that Mr. Seeley understands has stable control of his diabetes using diabetes management and monitoring, diabetes management and monitoring, insulin, and is able to drive a CMV has stable control of his diabetes using has stable control of his diabetes using safely. Mr. Olson meets the vision insulin, and is able to drive a CMV insulin, and is able to drive a CMV requirements of 49 CFR 391.41(b)(10). safely. Mr. Richardson meets the vision safely. Mr. Seeley meets the vision His optometrist examined him in 2012 requirements of 49 CFR 391.41(b)(10). requirements of 49 CFR 391.41(b)(10).

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His optometrist examined him in 2012 requirements of 49 CFR 391.41(b)(10). 52441).1 The revision must provide for and certified that he does not have His ophthalmologist examined him in individual assessment of drivers with diabetic retinopathy. He holds a Class A 2012 and certified that he has stable diabetes mellitus, and be consistent CDL from Connecticut. proliferative diabetic retinopathy. He with the criteria described in section holds a Class A CDL from Washington. 4018 of the Transportation Equity Act Mark S. Shepherd for the 21st Century (49 U.S.C. 31305). Mr. Shepherd, 55, has had ITDM Vernon F. Walters Section 4129 requires: (1) Elimination since 1993. His endocrinologist Mr. Walters, 57, has had ITDM since of the requirement for 3 years of examined him in 2012 and certified that 2011. His endocrinologist examined him experience operating CMVs while being he has had no severe hypoglycemic in 2012 and certified that he has had no treated with insulin; and (2) reactions resulting in loss of severe hypoglycemic reactions resulting establishment of a specified minimum consciousness, requiring the assistance in loss of consciousness, requiring the period of insulin use to demonstrate of another person, or resulting in assistance of another person, or stable control of diabetes before being impaired cognitive function that resulting in impaired cognitive function allowed to operate a CMV. occurred without warning in the past 12 In response to section 4129, FMCSA that occurred without warning in the months and no recurrent (2 or more) made immediate revisions to the past 12 months and no recurrent (2 or severe hypoglycemic episodes in the diabetes exemption program established more) severe hypoglycemic episodes in last 5 years. His endocrinologist certifies by the September 3, 2003 notice. the last 5 years. His endocrinologist that Mr. Shepherd understands diabetes FMCSA discontinued use of the 3-year management and monitoring, has stable certifies that Mr. Walters understands driving experience and fulfilled the control of his diabetes using insulin, diabetes management and monitoring, requirements of section 4129 while and is able to drive a CMV safely. Mr. has stable control of his diabetes using continuing to ensure that operation of Shepherd meets the requirements of the insulin, and is able to drive a CMV CMVs by drivers with ITDM will vision standard at 49 CFR 391.41(b)(10). safely. Mr. Walters meets the vision achieve the requisite level of safety His optometrist examined him in 2012 requirements of 49 CFR 391.41(b)(10). required of all exemptions granted and certified that he does not have His optometrist examined him in 2012 under 49 U.S.C. 31136(e). diabetic retinopathy. He holds a Class D and certified that he does not have Section 4129(d) also directed FMCSA operator’s license from Massachusetts. diabetic retinopathy. He holds a Class D to ensure that drivers of CMVs with operator’s license from Idaho. ITDM are not held to a higher standard L. Everett Stamper Christopher M. Young than other drivers, with the exception of Mr. Stamper, 70, has had ITDM since limited operating, monitoring and 2010. His endocrinologist examined him Mr. Young, 26, has had ITDM since medical requirements that are deemed in 2012 and certified that he has had no 1990. His endocrinologist examined him medically necessary. severe hypoglycemic reactions resulting in 2012 and certified that he has had no The FMCSA concluded that all of the in loss of consciousness, requiring the severe hypoglycemic reactions resulting operating, monitoring and medical assistance of another person, or in loss of consciousness, requiring the requirements set out in the September 3, resulting in impaired cognitive function assistance of another person, or 2003 notice, except as modified, were in that occurred without warning in the resulting in impaired cognitive function compliance with section 4129(d). past 12 months and no recurrent (2 or that occurred without warning in the Therefore, all of the requirements set more) severe hypoglycemic episodes in past 12 months and no recurrent (2 or out in the September 3, 2003 notice, the last 5 years. His endocrinologist more) severe hypoglycemic episodes in except as modified by the notice in the certifies that Mr. Stamper understands the last 5 years. His endocrinologist Federal Register on November 8, 2005 diabetes management and monitoring, certifies that Mr. Young understands (70 FR 67777), remain in effect. has stable control of his diabetes using diabetes management and monitoring, Issued on: November 14, 2012. insulin, and is able to drive a CMV has stable control of his diabetes using Larry W. Minor, safely. Mr. Stamper meets the vision insulin, and is able to drive a CMV Associate Administrator for Policy. requirements of 49 CFR 391.41(b)(10). safely. Mr. Young meets the vision His optometrist examined him in 2012 requirements of 49 CFR 391.41(b)(10). [FR Doc. 2012–28572 Filed 11–23–12; 8:45 am] and certified that he does not have His optometrist examined him in 2012 BILLING CODE P diabetic retinopathy. He holds an and certified that he does not have operator’s license from Indiana. diabetic retinopathy. He holds a Class D DEPARTMENT OF TRANSPORTATION Daniel C. Tow operator’s license from Oklahoma. Request for Comments Federal Motor Carrier Safety Mr. Tow, 41, has had ITDM since Administration 1986. His endocrinologist examined him In accordance with 49 U.S.C. 31136(e) in 2012 and certified that he has had no [Docket No. FMCSA–2012–0337] and 31315, FMCSA requests public severe hypoglycemic reactions resulting comment from all interested persons on in loss of consciousness, requiring the Qualification of Drivers; Exemption the exemption petitions described in assistance of another person, or Applications; Vision this notice. We will consider all resulting in impaired cognitive function comments received before the close of AGENCY: Federal Motor Carrier Safety that occurred without warning in the business on the closing date indicated Administration (FMCSA), DOT. past 12 months and no recurrent (2 or in the date section of the notice. ACTION: Notice of applications for more) severe hypoglycemic episodes in exemptions; request for comments. the last 5 years. His endocrinologist FMCSA notes that section 4129 of the certifies that Mr. Tow understands Safe, Accountable, Flexible and diabetes management and monitoring, Efficient Transportation Equity Act: A 1 Section 4129(a) refers to the 2003 notice as a Legacy for Users requires the Secretary ‘‘final rule.’’ However, the 2003 notice did not issue has stable control of his diabetes using a ‘‘final rule’’ but did establish the procedures and insulin, and is able to drive a CMV to revise its diabetes exemption program standards for issuing exemptions for drivers with safely. Mr. Tow meets the vision established on September 3, 2003 (68 FR ITDM.

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SUMMARY: FMCSA announces receipt of comment (or of the person signing the William A. Donovan applications from 18 individuals for comment, if submitted on behalf of an Mr. Donovan, 54, has had a cataract exemption from the vision requirement association, business, labor union, etc.). in his left eye since childhood due to a in the Federal Motor Carrier Safety You may review DOT’s Privacy Act traumatic incident. The visual acuity in Regulations. They are unable to meet Statement for the FDMS published in his right eye is 20/20, and in his left eye, the vision requirement in one eye for the Federal Register on January 17, 20/200. Following an examination in various reasons. The exemptions will 2008 (73 FR 3316), or you may visit 2012, his optometrist noted, ‘‘In my enable these individuals to operate http://edocket.access.gpo.gov/2008/pdf/ medical opinion, Mr. Donovan has commercial motor vehicles (CMVs) in E8–785.pdf. sufficient vision to perform the driving interstate commerce without meeting tasks required to drive a vehicle while FOR FURTHER INFORMATION CONTACT: the prescribed vision requirement in on the job.’’ Mr. Donovan reported that Elaine M. Papp, Chief, Medical one eye. If granted, the exemptions he has driven straight trucks for 17 Programs Division, (202) 366–4001, would enable these individuals to years, accumulating 142,800 miles. He [email protected], FMCSA, qualify as drivers of commercial motor holds an operator’s license from vehicles (CMVs) in interstate commerce. Department of Transportation, 1200 Washington. His driving record for the DATES: Comments must be received on New Jersey Avenue SE., Room W64– last 3 years shows no crashes and no or before December 26, 2012. 224, Washington, DC 20590–0001. convictions for moving violations in a Office hours are from 8:30 a.m. to 5 ADDRESSES: You may submit comments CMV. p.m., Monday through Friday, except bearing the Federal Docket Management Federal holidays. Douglas Eamens System (FDMS) Docket No. FMCSA– Mr. Eamens, 51, has had no light 2012–0337 using any of the following SUPPLEMENTARY INFORMATION: methods: perception in his left eye since • Federal eRulemaking Portal: Go to Background childhood due to a traumatic incident. http://www.regulations.gov. Follow the The best corrected visual acuity in his Under 49 U.S.C. 31136(e) and 31315, right eye is 20/20, and in his left eye, on-line instructions for submitting FMCSA may grant an exemption from comments. no light perception. Following an • the Federal Motor Carrier Safety examination in 2012, his optometrist Mail: Docket Management Facility; Regulations for a 2-year period if it finds U.S. Department of Transportation, 1200 noted, ‘‘In my medical opinion, I feel ‘‘such exemption would likely achieve a New Jersey Avenue SE., West Building that Mr. Eamens has sufficient vision to level of safety that is equivalent to or Ground Floor, Room W12–140, operate a commercial vehicle.’’ Mr. greater than the level that would be Washington, DC 20590–0001. Eamens reported that he has driven achieved absent such exemption.’’ • Hand Delivery: West Building straight trucks for 5 years, accumulating Ground Floor, Room W12–140, 1200 FMCSA can renew exemptions at the 300,000 miles. He holds a Class A CDL from New York. His driving record for New Jersey Avenue SE., Washington, end of each 2-year period. The 18 the last 3 years shows no crashes and no DC, between 9 a.m. and 5 p.m., Monday individuals listed in this notice have convictions for moving violations in a through Friday, except Federal each requested such an exemption from CMV. Holidays. the vision requirement in 49 CFR • Fax: 1–202–493–2251. 391.41(b)(10), which applies to drivers Brian Knust Instructions: Each submission must of CMVs in interstate commerce. Accordingly, the Agency will evaluate Mr. Knust, 47, has had a retinal include the Agency name and the detachment in his right eye since docket numbers for this notice. Note the qualifications of each applicant to determine whether granting an February 2004. The best corrected visual that all comments received will be acuity in his right eye is 20/400, and in exemption will achieve the required posted without change to http:// his left eye, 20/20. Following an level of safety mandated by statute. www.regulations.gov, including any examination in 2012, his optometrist personal information provided. Please Qualifications of Applicants noted, ‘‘Brian Knust, in my medical see the Privacy Act heading below for opinion, has sufficient vision to perform further information. Joseph Colecchi the driving tasks required to operate a Docket: For access to the docket to Mr. Colecchi, age 27, has had commercial vehicle.’’ Mr. Knust read background documents or reported that he has driven straight amblyopia in his right eye since birth. comments, go to http:// trucks for 17 years, accumulating The best corrected visual acuity in his www.regulations.gov at any time or 637,500 miles. He holds a Class D right eye is 20/50, and in his left eye, Room W12–140 on the ground level of operator’s license from Illinois. His the West Building, 1200 New Jersey 20/20. Following an examination in driving record for the last 3 years shows Avenue SE., Washington, DC, between 9 2012, his optometrist noted, ‘‘In my no crashes and no convictions for a.m. and 5 p.m., Monday through opinion, Mr. Colecchi has more than moving violations in a CMV. Friday, except Federal holidays. The adequate vision required to operate a FDMS is available 24 hours each day, commercial vehicle and there is no Scott A. Lambertson 365 days each year. If you want reason that he should not continue to Mr. Lambertson, 48, has had acknowledgment that we received your receive his CDL.’’ Mr. Colecchi reported amblyopia in his left eye since comments, please include a self- that he has driven straight trucks for 8 childhood. The visual acuity in his right addressed, stamped envelope or years, accumulating 80,000 miles, and eye is 20/15, and in his left eye, 20/60. postcard or print the acknowledgement tractor-trailer combinations for 8 years, Following an examination in 2011, his page that appears after submitting accumulating 80,000 miles. He holds a optometrist noted, ‘‘There is no reason comments on-line. Class AM Commercial Driver’s License for me to believe that this patient would Privacy Act: Anyone may search the (CDL) from Pennsylvania. His driving have any difficulty performing the electronic form of all comments record for the last 3 years shows no driving tasks required to operate a received into any of our dockets by the crashes and no convictions for moving commercial motor vehicle.’’ Mr. name of the individual submitting the violations in a CMV. Lambertson reported that he has driven

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straight trucks for 3 years, accumulating Johnie Reed childhood due to a traumatic incident. 18,000 miles, and tractor-trailer Mr. Reed, 54, has had open angle The best corrected visual acuity in his combinations for 4 years, accumulating glaucoma in his right eye since 2008. right eye is light perception only, and in 8,000 miles. He holds a Class A CDL The best corrected visual acuity in his his left eye, 20/20. Following an from Minnesota. His driving record for right eye is 20/150, and in his left eye, examination in 2012, his the last 3 years shows no crashes and no 20/20. Following an examination in ophthalmologist noted that Mr. Soles convictions for moving violations in a 2012, his ophthalmologist noted, ‘‘The ‘‘has full field OS and has the ability to CMV. patient has sufficient vision to drive a recognize the colors of traffic control commercial vehicle.’’ Mr. Reed reported signals and devices showing red, green, James W. Long that he has driven tractor-trailer and amber, and in my opinion has sufficient vision in the left eye to Mr. Long, 57, has had a traumatic combinations for 24 years, accumulating 1.2 million miles. He holds a Class A operate a commercial vehicle.’’ Mr. cataract in his right eye since 1967. The Soles reported that he has driven best corrected visual acuity in his right CDL from Virginia. His driving record for the last 3 years shows no crashes and straight trucks for 4.5 years, eye is counting fingers, and in his left accumulating 64,800 miles. He holds a eye, 20/15. Following an examination in no convictions for moving violations in a CMV. Class C chauffeur license from 2012, his optometrist noted, ‘‘Patient Michigan. His driving record for the last has sufficient vision for commercial Charles Roudebush 3 years shows no crashes and one vehicle operation.’’ Mr. Long reported Mr. Roudebush, 36, has had a macular conviction for speeding in a CMV; he that he has driven straight trucks for 35 scar and amblyopia in his right eye exceeded the speed limit by 5 mph. years, accumulating 875,000 miles, and since childhood. The best corrected Joseph Stenberg tractor-trailer combinations for 3 years, visual acuity in his right eye is 20/200, accumulating 90,000 miles. He holds a and in his left eye, 20/25. Following an Mr. Stenberg, 34, has had complete Class D operator’s license from examination in 2012, his loss of vision in his left eye since 2008 Arkansas. His driving record for the last ophthalmologist noted, ‘‘In my opinion, due to a traumatic incident. The best 3 years shows no crashes and no Mr. Roudebush’s retina shows scarring corrected visual acuity in his right eye convictions for moving violations in a of macula and periphery of right eye. 20/20. Following an examination in CMV. This correlates with longstanding 2012, his optometrist noted, ‘‘In my amblyopia. The left was clear of any opinion, Joe has sufficient vision to Dean L. Price retinopathy. I feel based on this perform many tasks including driving a commercial motor vehicle.’’ Mr. Mr. Price, 45, has had amblyopia in information that he is able to perform driving tasks to operate a commercial Stenberg reported that he has driven his right eye since birth. The best straight trucks for 16 years, corrected visual acuity in his right eye vehicle.’’ Mr. Roudebush reported that he has driven straight trucks for 3 years, accumulating 720,000 miles, tractor- is 20/400, and in his left eye, 20/20. accumulating 72,000 miles. He holds trailer combinations for 11 years, Following an examination in 2012, his Class D operator’s license from New accumulating 770,000 miles, and buses optometrist noted, ‘‘In my opinion, I Jersey. His driving record for the last 3 for 4 months, accumulating 8,000 miles. believe that Dean has the sufficient years shows no crashes and no He holds a Class A CDL from Montana. vision to perform the driving tasks convictions for moving violations in a His driving record for the last 3 years required to operate a commercial CMV. shows no crashes and no convictions for vehicle.’’ Mr. Price reported that he has moving violations in a CMV. driven straight trucks for 10 years, Mario G. Sanseverino Karl H. Strangfeld accumulating 25,000 miles, and tractor- Mr. Sanseverino, 59, has complete trailer combinations for 4 years, loss of vision in his left eye due to a Mr. Strangfeld, 58, has had amblyopia averaging 216,000 miles. He holds a traumatic incident in 2008. The best in his left eye since birth. The best Class A CDL from Washington. His corrected visual acuity in his right eye corrected visual acuity in his right eye driving record for the last 3 years shows is 20/20. Following an examination in is 20/20, and in his left eye, 20/70. no crashes and no convictions for 2012, his optometrist noted, ‘‘Mr. Following an examination in 2012, his moving violations in a CMV. Sanseverino has been operating a optometrist noted, ‘‘In my medical commercial vehicle for 3 years post opinion, he has sufficient vision to Roberto Ramos injury to his left eye. He has been perform the driving tasks necessary to operate a commercial vehicle.’’ Mr. Mr. Ramos, 50, has had amblyopia in accident free during this time. Strangfeld reported that he has driven his left eye since birth. The best Therefore, I feel he has sufficient vision to perform the driving tasks required to straight trucks for 6 years, accumulating corrected visual acuity in his right eye operate a commercial vehicle.’’ Mr. 18,000 miles, and tractor-trailer is 20/20, and in his left eye, 20/100. Sanseverino reported that he has driven combinations for 6 years, accumulating Following an examination in 2012, his straight trucks for 33 years, 90,000 miles. He holds a Class A CDL optometrist noted, ‘‘In my opinion, and accumulating 330,000 miles, and from Utah. His driving record for the by DPS state standards, Mr. Ramos has tractor-trailer combinations for 33 years, last 3 years shows no crashes and no sufficient vision to perform the driving accumulating 1.32 million miles. He convictions for moving violations in a tasks required to operate a commercial holds a Class A CDL from Oklahoma. CMV. vehicle.’’ Mr. Ramos reported that he His driving record for the last 3 years Grover C. Taylor has driven buses for 14 years, shows no crashes and one conviction for accumulating 909,538 miles. He holds a speeding in a CMV; he exceeded the Mr. Taylor, 57, has had refractive Class B CDL from Texas. His driving speed limit by 10 mph. amblyopia in his left eye since birth. record for the last 3 years shows no The best corrected visual acuity in his crashes and one conviction for speeding Samuel Soles right eye is 20/20, and in his left eye, in a CMV; he exceeded the speed limit Mr. Soles, 29, has had aphakia and a 20/100. Following an examination in by 5 mph. corneal scar in his right eye since 2012, his optometrist noted, ‘‘In my

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opinion and without reservation I 77,000 miles, and buses for 7 months, DATES: This decision is effective believe Mr. Taylor is able to visually accumulating 9000 miles. He holds an December 17, 2012. Comments must be perform the task of operating a operator’s license from Pennsylvania. received on or before December 26, commercial vehicle.’’ Mr. Taylor His driving record for the last 3 years 2012. reported that he has driven tractor- shows no crashes and no convictions for ADDRESSES: You may submit comments trailer combinations for 3 years, moving violations in a CMV. accumulating 111,000 miles. He holds a bearing the Federal Docket Management Class A CDL from Virginia. His driving Request for Comments System (FDMS) numbers: Docket No. record for the last 3 years shows no In accordance with 49 U.S.C. 31136(e) [FMCSA–2008–0106; FMCSA–2008– crashes and no convictions for moving and 31315, FMCSA requests public 0174; FMCSA–2008–0292; FMCSA– violations in a CMV. comment from all interested persons on 2010–0114; FMCSA–2010–0327], using the exemption petitions described in any of the following methods: Jimmy Van Meter • this notice. The Agency will consider all Federal eRulemaking Portal: Go to Mr. Van Meter, 63, has had a comments received before the close of http://www.regulations.gov. Follow the traumatic cataract and glaucoma since business December 26, 2012. Comments on-line instructions for submitting age 15, causing a field defect in his right will be available for examination in the comments. eye. The best corrected visual acuity in docket at the location listed under the • Mail: Docket Management Facility; his right eye is 20/25, and in his left eye, ADDRESSES section of this notice. The U.S. Department of Transportation, 1200 20/30. Following an examination in Agency will file comments received New Jersey Avenue SE., West Building 2012, his ophthalmologist noted, ‘‘There after the comment closing date in the Ground Floor, Room W12–140, have been no changes in your visual public docket, and will consider them to Washington, DC 20590–0001. acuity or visual fields since 2007. It is the extent practicable. • Hand Delivery or Courier: West my opinion that if you have been able In addition to late comments, FMCSA Building Ground Floor, Room W12–140, to operate a commercial vehicle since will also continue to file, in the public 1200 New Jersey Avenue SE., that time, then there is no reason to docket, relevant information that Washington, DC, between 9 a.m. and 5 make a change at this time.’’ Mr. Van becomes available after the comment p.m., Monday through Friday, except Meter reported that he has driven closing date. Interested persons should Federal Holidays. tractor-trailer combinations for 44 years, monitor the public docket for new • Fax: 1–202–493–2251. accumulating 5.5 million miles. He material. Instructions: Each submission must holds a Class A CDL from Arkansas. His Issued on: November 14, 2012. include the Agency name and the driving record for the last 3 years shows docket number for this notice. Note that no crashes and no convictions for Larry W. Minor, Associate Administrator for Policy. DOT posts all comments received moving violations in a CMV. without change to http:// [FR Doc. 2012–28574 Filed 11–23–12; 8:45 am] Keith Washington www.regulations.gov, including any BILLING CODE 4910–EX–P Mr. Washington, 55, has had a branch personal information included in a retinal artery occlusion in his right eye comment. Please see the Privacy Act since 1985 due to a traumatic incident. DEPARTMENT OF TRANSPORTATION heading below. The best corrected visual acuity in his Docket: For access to the docket to right eye is 20/50, and in his left eye, Federal Motor Carrier Safety read background documents or 20/20. Following an examination in Administration comments, go to http:// 2012, his ophthalmologist noted, www.regulations.gov at any time or ‘‘Patient has sufficient vision to drive [Docket No. FMCSA–2008–0106; FMCSA– Room W12–140 on the ground level of and operate a commercial vehicle.’’ Mr. 2008–0174; FMCSA–2008–0292; FMCSA– the West Building, 1200 New Jersey 2010–0114; FMCSA–2010–0327] Washington reported that he has driven Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through straight trucks for 6 years, accumulating Qualification of Drivers; Exemption Friday, except Federal holidays. The 366,000 miles, and tractor-trailer Applications; Vision combinations for 19 years, accumulating Federal Docket Management System 1.08 million miles. He holds a Class A AGENCY: Federal Motor Carrier Safety (FDMS) is available 24 hours each day, CDL from Illinois. His driving record for Administration (FMCSA), DOT. 365 days each year. If you want the last 3 years shows no crashes and no ACTION: Notice of renewal of acknowledgment that we received your convictions for moving violations in a exemptions; request for comments. comments, please include a self- CMV. addressed, stamped envelope or SUMMARY: FMCSA announces its postcard or print the acknowledgement Donald L. Weston decision to renew the exemptions from page that appears after submitting Mr. Weston, 39, has had medullated the vision requirement in the Federal comments on-line. nerve fibers in his right eye since birth. Motor Carrier Safety Regulations for 16 Privacy Act: Anyone may search the The best corrected visual acuity in his individuals. FMCSA has statutory electronic form of all comments right eye is counting fingers, and in his authority to exempt individuals from received into any of our dockets by the left eye, 20/20. Following an the vision requirement if the name of the individual submitting the examination in 2012, his optometrist exemptions granted will not comment (or of the person signing the noted, ‘‘Donald’s right eye alone has compromise safety. The Agency has comment, if submitted on behalf of an about 65% intact visual field and along concluded that granting these association, business, labor union, etc.). with the normal vision and full field of exemption renewals will provide a level You may review DOT’s Privacy Act his left eye, again I have no concern that of safety that is equivalent to or greater Statement for the FDMS published in Donald will be more than capable of than the level of safety maintained the Federal Register on January 17, operating a commercial vehicle.’’ Mr. without the exemptions for these 2008 (73 FR 3316), or you may visit Weston reported that he has driven commercial motor vehicle (CMV) http://edocket.access.gpo.gov/2008/pdf/ straight trucks for 7 years, accumulating drivers. E8-785.pdf.

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FOR FURTHER INFORMATION CONTACT: copy of the annual medical certification FMCSA believes that the Elaine M. Papp, Chief, Medical to the employer for retention in the requirements for a renewal of an Programs Division, 202–366–4001, driver’s qualification file and retains a exemption under 49 U.S.C. 31136(e) and [email protected], FMCSA, copy of the certification on his/her 31315 can be satisfied by initially Department of Transportation, 1200 person while driving for presentation to granting the renewal and then New Jersey Avenue SE., Room W64– a duly authorized Federal, State, or local requesting and evaluating, if needed, 224, Washington, DC 20590–0001. enforcement official. Each exemption subsequent comments submitted by Office hours are from 8:30 a.m. to 5 p.m. will be valid for two years unless interested parties. As indicated above, Monday through Friday, except Federal rescinded earlier by FMCSA. The the Agency previously published holidays. exemption will be rescinded if: (1) The notices of final disposition announcing SUPPLEMENTARY INFORMATION: person fails to comply with the terms its decision to exempt these 16 and conditions of the exemption; (2) the individuals from the vision requirement Background exemption has resulted in a lower level in 49 CFR 391.41(b)(10). The final Under 49 U.S.C. 31136(e) and 31315, of safety than was maintained before it decision to grant an exemption to each FMCSA may renew an exemption from was granted; or (3) continuation of the of these individuals was made on the the vision requirements in 49 CFR exemption would not be consistent with merits of each case and made only after 391.41(b)(10), which applies to drivers the goals and objectives of 49 U.S.C. careful consideration of the comments of CMVs in interstate commerce, for a 31136(e) and 31315. received to its notices of applications. The notices of applications stated in two-year period if it finds ‘‘such Basis for Renewing Exemptions exemption would likely achieve a level detail the qualifications, experience, of safety that is equivalent to or greater Under 49 U.S.C. 31315(b)(1), an and medical condition of each applicant than the level that would be achieved exemption may be granted for no longer for an exemption from the vision absent such exemption.’’ The than two years from its approval date requirements. That information is procedures for requesting an exemption and may be renewed upon application available by consulting the above cited (including renewals) are set out in 49 for additional two year periods. In Federal Register publications. CFR part 381. accordance with 49 U.S.C. 31136(e) and Interested parties or organizations 31315, each of the 16 applicants has possessing information that would Exemption Decision satisfied the entry conditions for otherwise show that any, or all, of these This notice addresses 16 individuals obtaining an exemption from the vision drivers are not currently achieving the who have requested renewal of their requirements (73 FR 35194; 73 FR statutory level of safety should exemptions in accordance with FMCSA 38497; 73 FR 48271; 73 FR 48273; 73 FR immediately notify FMCSA. The procedures. FMCSA has evaluated these 61922; 73 FR 74563; 75 FR 34209; 75 FR Agency will evaluate any adverse 16 applications for renewal on their 47886; 75 FR 65057; 75 FR 77590; 75 FR evidence submitted and, if safety is merits and decided to extend each 79081). Each of these 16 applicants has being compromised or if continuation of exemption for a renewable two-year requested renewal of the exemption and the exemption would not be consistent period. They are: has submitted evidence showing that with the goals and objectives of 49 Charlene F. Brown (KS) the vision in the better eye continues to U.S.C. 31136(e) and 31315, FMCSA will Nathan A. Buckles (IN) meet the requirement specified at 49 take immediate steps to revoke the Dale H. Dattler (NY) CFR 391.41(b)(10) and that the vision exemption of a driver. Paul A. Giarrusso (FL) impairment is stable. In addition, a Issued on: November 14, 2012. Benjamin P. Hall (NY) review of each record of safety while Larry W. Minor, driving with the respective vision John N. Lanning (CA) Associate Administrator for Policy. Bruce J. Lewis (RI) deficiencies over the past two years John L. Lolley (AL) indicates each applicant continues to [FR Doc. 2012–28582 Filed 11–23–12; 8:45 am] Charles M. McDaris (GA) meet the vision exemption BILLING CODE 4910–EX–P Tommy L. McKnight (OH) requirements. Calvin J. Schaap (MN) These factors provide an adequate DEPARTMENT OF TRANSPORTATION Frederick C. Schultz, Jr. (NY) basis for predicting each driver’s ability Steve C. Sinclair (IA) to continue to drive safely in interstate National Highway Traffic Safety Eugene J. Smith (WI) commerce. Therefore, FMCSA Administration Charles R. Sylvester (NC) concludes that extending the exemption Daniel M. Veselitza (NV) for each renewal applicant for a period [Docket No. NHTSA–2012–0119; Notice 2] of two years is likely to achieve a level The exemptions are extended subject Final Decision That Certain Canadian- of safety equal to that existing without to the following conditions: (1) That Certified Vehicles Are Eligible for the exemption. each individual has a physical Importation examination every year (a) by an Request for Comments ophthalmologist or optometrist who AGENCY: National Highway Traffic attests that the vision in the better eye FMCSA will review comments Safety Administration (NHTSA), continues to meet the requirements in received at any time concerning a Department of Transportation. 49 CFR 391.41(b)(10), and (b) by a particular driver’s safety record and ACTION: Final decision that certain medical examiner who attests that the determine if the continuation of the nonconforming vehicles are eligible for individual is otherwise physically exemption is consistent with the importation. qualified under 49 CFR 391.41; (2) that requirements at 49 U.S.C. 31136(e) and each individual provides a copy of the 31315. However, FMCSA requests that SUMMARY: This document announces a ophthalmologist’s or optometrist’s interested parties with specific data final decision by the National Highway report to the medical examiner at the concerning the safety records of these Traffic Safety Administration (NHTSA) time of the annual medical examination; drivers submit comments by December that certain vehicles that do not comply and (3) that each individual provide a 26, 2012. with all applicable Federal motor

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vehicle safety standards (FMVSS), but similar U.S.-certified motor vehicle, 49 • FMVSS No. 110 for all passenger that are certified by their original U.S.C. 30141(a)(1)(B) permits a cars and all multipurpose passenger manufacturer as complying with all nonconforming motor vehicle to be vehicles, trucks, and buses with a applicable Canadian motor vehicle admitted into the United States if GVWR of 4,536 kg (10,000 lb) or less safety standards (CMVSS), are NHTSA decides that its safety features manufactured on or after September 1, nevertheless eligible for importation comply with, or are capable of being 2009; into the United States. The vehicles in altered to comply with, all applicable • FMVSS No. 118 for all passenger question either (1) are substantially FMVSS based on destructive test data or cars and all multipurpose passenger similar to vehicles that were certified by such other evidence as NHTSA decides vehicles, trucks, and buses with a their manufacturers as complying with to be adequate. GVWR of 4,536 kg (10,000 lb) or less the U.S. safety standards and are Tentative Decision manufactured on or after September 1, capable of being readily altered to On September 18, 2012, NHTSA 2011; conform to those standards, or (2) have • safety features that comply with, or are published a notice in the Federal FMVSS No. 126 for all passenger capable of being altered to comply with, Register announcing that it had made a cars and all multipurpose passenger all U.S. safety standards. tentative decision that certain motor vehicles, trucks, and buses with a vehicles that are not certified by their GVWR of 4,536 kg (10,000 lb) or less DATES: This decision is effective on original manufacturer as complying manufactured on or after September 1, November 26, 2012. with all applicable FMVSS, but that are 2011; and FOR FURTHER INFORMATION CONTACT: Mr. certified as complying with all • FMVSS No. 401 for all passenger Coleman Sachs, Office of Vehicle Safety applicable CMVSS are eligible for Compliance, National Highway Traffic cars manufactured on or after September importation into the United States (77 1, 2010. Safety Administration, 1200 New Jersey FR 57641). The notice identified these Avenue SE., Washington, DC 20590. vehicles as: The reader is referred to the Telephone: (202) 366–3151. (a) All passenger cars manufactured September 18 notice for a full SUPPLEMENTARY INFORMATION: on or after September 1, 2012 and before discussion of the factors leading to the tentative decision. The notice of Background September 1, 2017 that, as originally manufactured, comply with FMVSS tentative decision included tables that Under 49 U.S.C. 30141(a)(1)(A), a Nos. 138, 201, 206, 208, 213, 214, and summarize the current state of motor vehicle that was not originally 225; and harmonization between the CMVSS and manufactured to conform to all (b) All multipurpose passenger the FMVSS. For the convenience of the applicable FMVSS shall be refused vehicles, trucks, and buses with a reader, those tables are set out below. admission into the United States unless GVWR of 4,536 kg (10,000 lb) or less Table 1 is a list of all FMVSS that are NHTSA has decided, either pursuant to manufactured on or after September 1, harmonized to the CMVSS, or for which a petition from the manufacturer or 2012 and before September 1, 2017, the differences are such that compliance registered importer or on its own that, as originally manufactured, comply with the U.S. standard can be readily initiative, (1) that the nonconforming with FMVSS Nos. 201, 206, 208, 213, achieved. Table 2 is a list of all FMVSS motor vehicle is substantially similar to 214, and 216, and insofar as they are which are not harmonized. Table 3 is a a motor vehicle of the same model year applicable, with FMVSS Nos. 138, 222, list of FMVSS that have been adopted that was originally manufactured for and 225. and are not yet effective, but will be in importation into and sale in the United The notice stated that the agency also the future. Table 2 has been revised States and certified by its manufacturer tentatively decided to revise its prior from the version provided in the notice as complying with all applicable import eligibility decisions to eliminate of tentative decision to show that FMVSS, and (2) that the nonconforming references to the following standards FMVSS 225 Child Restraint Anchorage motor vehicle is capable of being readily that have been harmonized to their Systems has two Canadian equivalents, altered to conform to all applicable Canadian counterparts for the vehicles CMVSS 210.1 Tether Anchorage and FMVSS. Where there is no substantially identified below: CMVSS 210.2 Lower Anchorage.

TABLE 1—HARMONIZED STANDARDS

Date harmonized FMVSS Canadian equivalent since last determination

102—Transmission Shift Position Sequence, Starter Inter- CMVSS 102—Transmission Control Functions ...... lock, and Transmission Braking Effect. 103—Windshield Defrosting and Defogging Systems ...... CMVSS 103—Windshield Defrost and Defog ...... 104—Windshield Wiping and Washing Systems ...... CMVSS 104—Windshield Wiping and Wash ...... 105—Hydraulic and Electric Brake Systems ...... CMVSS 105—Hydraulic and Electric Brakes; TSD 105 ...... 106—Brake Hoses ...... CMVSS 106—Brake Hoses; TSD 106 ...... 108—Lamps, Reflective Devices and Associated Equipment CMVSS 108—Lighting Systems and Retroreflective De- vices; TSD 108. 110—Tire Selection and Rims for Motor Vehicles with a CMVSS 110—Tire Selection and Rims; TSD 110 ...... September 1, 2009. GVWR of 4,536 kg (10,000) lb) or Less. 111—Rearview Mirrors ...... CMVSS 111—Mirrors ...... 113—Hood Latch Systems ...... CMVSS 113—Hood Latch System ...... 114—Theft Protection and Rollaway Prevention ...... CMVSS 114—Locking and Immobilization; TSD 114 ...... 116—Motor Vehicle Brake Fluids ...... CMVSS 116—Hydraulic Brake Fluids; TSD 116 ...... 118—Power-Operated Window, Partition, and Roof Panel CMVSS 118—Power-operated Windows; TSD 118 ...... September 1, 2011. Systems.

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TABLE 1—HARMONIZED STANDARDS—Continued

Date harmonized FMVSS Canadian equivalent since last determination

120—Tire Selection and Rims and Motor Home/Recreation CMVSS 120—Tire Selection and Rims for Vehicles Other Vehicle Trailer Load Carrying Capacity Information for Than Passenger Cars; TSD 120. Motor Vehicles with a GVWR of More Than 4,536 Kilo- grams (10,000 pounds). 121—Air Brake Systems ...... CMVSS 121—Air Brakes for Trucks; TSD 121 ...... 122—Motorcycle Brake Systems ...... CMVSS 122—Motorcycle Brake Systems; TSD 122 ...... 123—Motorcycle Controls and Displays ...... CMVSS 123—Motorcycle Control & Displays; TSD 123 ..... 124—Accelerator Control Systems ...... CMVSS 124—Accelerator Control Systems; TSD 124 ...... 126—Electronic Stability Control Systems ...... CMVSS 126—Electronic Stability Control; TSD 126 ...... September 1, 2011. 131—School Bus Pedestrian Safety Devices ...... CMVSS 131—School Bus Pedestrian Safety Devices; TSD 131. 135—Light Vehicle Brake Systems ...... CMVSS 135—Light Vehicle Brake Systems; TSD 135 ...... 202—Head Restraints; Applicable unless a vehicle is cer- CMVSS 202—Head Restraints; TSD 202 ...... tified to § 571.202a. 202a—Head Restraints ...... CMVSS 202—Head Restraints; TSD 202 ...... September 1, 2012. 203—Impact protection for the driver from the steering con- CMVSS 203—Driver Impact Protection ...... trol system. 204—Steering control rearward displacement ...... CMVSS 204—Steering Column Rearward Displacement ... 205—Glazing materials ...... CMVSS 205—Glazing Materials ...... 205a—Glazing materials before September 1, 2006 and CMVSS 205—Glazing Materials ...... glazing materials used in vehicles manufactured before November 1, 2006. 207—Seating systems ...... CMVSS 207—Anchorage of Seats ...... 210—Seat belt assembly anchorages ...... CMVSS 210—Seat Belt Assembly Anchorages ...... 212—Windshield mounting ...... CMVSS 212—Windshield Mounting ...... 216—Roof crush resistance; Applicable unless a vehicle is CMVSS 216—Roof Intrusion Protection; TSD 216 ...... certified to § 571.216a. 216a—Roof crush resistance; Upgraded standard ...... CMVSS 216—Roof Intrusion Protection; TSD 216 ...... 217—Bus emergency exits and window retention and re- CMVSS 217—Bus Window Retention and Emergency lease. Exits. 219—Windshield zone intrusion ...... CMVSS 219—Windshield Zone Intrusion ...... 220—School bus rollover protection ...... CMVSS 220—Rollover Protection; TSD 220 ...... 221—School bus body joint strength ...... CMVSS 221—School Bus Body Joint Strength ...... 224—Rear impact protection ...... CMVSS 223—Rear Impact Guards ...... 301—Fuel system integrity ...... CMVSS 301—Fuel System Integrity; TSD 301 ...... 302—Flammability of interior materials ...... CMVSS 302—Flammability; TSD 302 ...... 303—Fuel system integrity of compressed natural gas vehi- CMVSS 301.2—CNG Fuel System Integrity ...... cles. 304—Compressed natural gas fuel container integrity ...... CMVSS 301.2—CNG Fuel System Integrity ...... 305—Electric-powered vehicles: electrolyte spillage and CMVSS 305—Electrolyte Spillage and Electrical Shock electrical shock protection. Protection; TSD 305. 401—Internal trunk release ...... CMVSS 401—Interior Trunk Release; TSD 401 ...... September 1, 2010 500—Low-speed vehicles ...... CMVSS 500—Low-speed Vehicles; TSD 500 ......

TABLE 2—STANDARDS THAT HAVE NOT BEEN HARMONIZED

Multipurpose pas- senger vehicles, trucks, U.S. Standard Canadian standard Passenger cars and buses with a GVWR of 4,536 kg (10,000 lb) or less

FMVSS 101—Controls and Displays ...... CMVSS 101—Controls and Displays ...... X X FMVSS 138—Tire Pressure Monitoring Systems ...... X X FMVSS 201—Occupant Protection in Interior CMVSS 201—Occupant Protection ...... X X Impact. 206—Door locks and door retention components CMVSS 206—Door Locks and Door Retention X X Components. FMVSS 208—Occupant Crash Protection ...... CMVSS 208—Occupant Restraint Frontal Im- X X pact. FMVSS 213—Child Restraint Systems ...... CMVSS 213.4—Built-in Child Restraint Systems X X FMVSS 214—Side Impact Protection ...... CMVSS 214—Side Door Strength ...... X X FMVSS 222—School Bus Passenger Seating CMVSS 222—School Bus Passenger Seating ...... School buses only And Crash Protection. and Crash Protection. FMVSS 225—Child restraint anchorage systems CMVSS 210.1 Tether Anchorage and 210.2 X X Lower Anchorage.

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TABLE 3—FMVSS THAT HAVE BEEN ADOPTED BUT ARE NOT YET EFFECTIVE

FMVSS Federal Register Notice Description Effective date

226—Ejection Mitigation ...... 76 FR 3212; 1/19/2011 .. New standard to mitigate occupant 9/1/17, except for altered and multi- ejection from side windows in roll- stage vehicles 9/1/18. overs and side impacts..

In accordance with 49 U.S.C. United States for sale therein, and petition for a decision that 30141(b), the September 18 notice certified as complying with all nonconforming 2009 Porsche 911 (997) solicited public comments on the applicable FMVSS, and are capable of passenger cars that were not originally tentative decision. No comments were being readily altered to conform to all manufactured to comply with all submitted in response to the notice. applicable FMVSS, or applicable Federal Motor Vehicle Safety Accordingly, we are adopting the 2. They have safety features that Standards (FMVSS), are eligible for tentative decision as a final decision. comply with, or are capable of being importation into the United States altered to comply with, all applicable Final Decision because they are substantially similar to FMVSS. vehicles that were originally In consideration of the foregoing, Vehicle Eligibility Number manufactured for sale in the United NHTSA hereby decides that— States and that were certified by their (a) All passenger cars manufactured The importer of a vehicle admissible manufacturer as complying with the on or after September 1, 2009 and before under any final decision must indicate safety standards (the U.S.-certified September 1, 2010 that, as originally on the form HS–7 accompanying entry version of the 2009 Porsche 911 (997) manufactured, comply with FMVSS the appropriate vehicle eligibility passenger cars) and they are capable of Nos. 118, 138, 201, 202a, 206, 208, 213, number indicating that the vehicle is being readily altered to conform to the 214, 225, and 401; eligible for entry. Vehicle Eligibility standards. (b) All passenger cars manufactured Number VSA–80 is currently assigned DATES: The closing date for comments on or after September 1, 2010 and before to Canadian-certified passenger cars and on the petition is December 26, 2012. September 1, 2011 that, as originally Vehicle Eligibility Number VSA–81 is manufactured, comply with FMVSS currently assigned to Canadian-certified ADDRESSES: Comments should refer to Nos. 118, 138, 201, 202a, 206, 208, 213, multipurpose passenger vehicles, the docket and notice numbers above 214, and 225; trucks, and buses with a GVWR of 4,536 and be submitted by any of the (c) All passenger cars manufactured following methods: kg (10,000 lb) or less. All passenger cars • on or after September 1, 2011 and before admissible under this decision will be Federal eRulemaking Portal: Go to September 1, 2017 that, as originally assigned vehicle eligibility number http://www.regulations.gov. Follow the manufactured, comply with FMVSS VSA–80, and all multipurpose online instructions for submitting Nos. 138, 201, 206, 208, 213, 214, and comments. passenger vehicles, trucks, and buses • 225; admissible under this decision will be Mail: Docket Management Facility: (d) All multipurpose passenger assigned vehicle eligibility number U.S. Department of Transportation, 1200 vehicles, trucks, and buses with a VSA–81. New Jersey Avenue SE., West Building GVWR of 4,536 kg (10,000 lb) or less Ground Floor, Room W12–140, manufactured on or after September 1, Authority: 49 U.S.C. 30141(a)(1)(A), Washington, DC 20590–0001. (a)(1)(B), and (b)(1); 49 CFR 593.8; delegation • 2011 and before September 1, 2012, of authority at 49 CFR 1.95. Hand Delivery or Courier: West that, as originally manufactured, comply Building Ground Floor, Room W12–140, with FMVSS Nos. 201, 202a, 206, 208, Issued on: November 15, 2012. 1200 New Jersey Avenue SE., between 213, 214, and 216, and insofar as they Daniel C. Smith, 9 a.m. and 5 p.m. ET, Monday through are applicable, with FMVSS Nos. 138 Senior Associate Administrator for Vehicle Friday, except Federal holidays. and 225; and Safety. • Fax: 202–493–2251. (e) All multipurpose passenger [FR Doc. 2012–28626 Filed 11–23–12; 8:45 am] Instructions: Comments must be vehicles, trucks, and buses with a BILLING CODE 4910–59–P written in the English language, and be GVWR of 4,536 kg (10,000 lb) or less no greater than 15 pages in length, manufactured on or after September 1, although there is no limit to the length 2012 and before September 1, 2017, DEPARTMENT OF TRANSPORTATION of necessary attachments to the that, as originally manufactured, comply comments. If comments are submitted National Highway Traffic Safety with FMVSS Nos. 201, 206, 208, 213, in hard copy form, please ensure that Administration 214, and 216, and insofar as they are two copies are provided. If you wish to applicable, with FMVSS Nos. 138, 222, [Docket No. NHTSA–2012–0160, Notice 1] receive confirmation that your and 225; comments were received, please enclose that are certified by their original Notice of Receipt of Petition for a stamped, self-addressed postcard with manufacturer as complying with all Decision That Nonconforming 2009 the comments. Note that all comments applicable Canadian motor vehicle Porsche 911 (997) Passenger Cars Are received will be posted without change safety standards, are eligible for Eligible for Importation to http://www.regulations.gov, including importation into the United States on AGENCY: National Highway Traffic any personal information provided. the basis that either: Safety Administration, DOT. Please see the Privacy Act heading 1. They are substantially similar to ACTION: Notice of receipt of petition. below. vehicles of the same make, model, and Privacy Act: Anyone is able to search model year originally manufactured for SUMMARY: This document announces the electronic form of all comments importation into and sale in the United receipt by the National Highway Traffic received into any of our dockets by the States, or originally manufactured in the Safety Administration (NHTSA) of a name of the individual submitting the

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comment (or signing the comment, if importation into the United States. The speedometer so that it reads in miles per submitted on behalf of an association, vehicles which WETL believes are hour. business, labor union, etc.). You may substantially similar are 2009 Porsche Standard No. 108 Lamps, Reflective review DOT’s complete Privacy Act 911 (997) passenger cars that were Devices and Associated Equipment: Statement in the Federal Register manufactured for sale in the United Replacement of the headlamps and tail published on April 11, 2000 (65 FR States and certified by their lamps with U.S.-model components. 19477–78). manufacturer as conforming to all How to Read Comments submitted to applicable FMVSS. Standard No. 110 Tire Selection and the Docket: You may read the comments The petitioner claims that it compared Rims for Motor Vehicles with a GVWR received by Docket Management at the non-U.S. certified nonconforming 2009 of 4,536 kilograms (10,000 pounds) or address and times given above. You may Porsche 911 (997) passenger cars to their Less: installation of a tire information also view the documents from the U.S.-certified counterparts, and found placard. Internet at http://www.regulations.gov. the vehicles to be substantially similar Standard No. 208 Occupant Crash Follow the online instructions for with respect to compliance with most Protection: Petitioner claims that the accessing the dockets. The docket ID FMVSS. passive restraint system hardware in the number and title of this notice are WETL submitted information with its nonconforming 2009 Porsche 911 (997) shown at the heading of this document petition intended to demonstrate that is identical to that found on the U.S.- notice. Please note that even after the non-U.S. certified nonconforming 2009 certified 2009 Porsche 911 (997), and comment closing date, we will continue Porsche 911 (997) passenger cars as has included a listing of the advanced to file relevant information in the originally manufactured, conform to air bag component part numbers in its Docket as it becomes available. Further, many FMVSS in the same manner as petition as proof. The petitioner also some people may submit late comments. their U.S. certified counterparts, or are states that the software and firmware Accordingly, we recommend that you capable of being readily altered to periodically search the Docket for new conform to those standards. associated with the occupant protection material. Specifically, the petitioner claims that system must be verified and updated FOR FURTHER INFORMATION CONTACT: non-U.S. certified 2009 Porsche 911 with U.S.-version software as necessary George Stevens, Office of Vehicle Safety (997) passenger cars are identical to to ensure that the system conforms to Compliance, NHTSA (202–366–5308). their U.S. certified counterparts with the standard. This may require the replacement of system components. The SUPPLEMENTARY INFORMATION: respect to compliance with Standard Nos. 102 Transmission Shift Lever petitioner additionally states that the Background Sequence, Starter Interlock, and installation of U.S.-model knee bolster Under 49 U.S.C. 30141(a)(1)(A), a Transmission Braking Effect, 103 components is necessary. motor vehicle that was not originally Windshield Defrosting and Defogging Standard No. 301 Fuel System manufactured to conform to all Systems, 104 Windshield Wiping and Integrity: installation of U.S.-model applicable FMVSS shall be refused Washing Systems, 106 Brake Hoses, 113 rollover valve in the fuel tank vent line. admission into the United States unless Hood Latch System, 111 Rearview Standard No. 401 Interior Trunk NHTSA has decided that the motor Mirrors, 114 Theft Protection, 116 Motor Release: installation of U.S.-model vehicle is substantially similar to a Vehicle Brake Fluids, 118 Power- motor vehicle originally manufactured Operated Window, Partition, and Roof interior trunk release components. for importation into and sale in the Panel Systems, 124 Accelerator Control The petitioner additionally states that United States, certified under 49 U.S.C. Systems, 135 Light Vehicle Brake a vehicle identification plate must be 30115, and of the same model year as Systems, 138 Tire Pressure Monitoring affixed to the vehicles near the left the model of the motor vehicle to be Systems, 139 New Pneumatic radial windshield post to meet the compared, and is capable of being tires for light vehicles, 201 Occupant requirements of 49 CFR part 565. Protection in Interior Impact, 202 Head readily altered to conform to all All comments received before the Restraints, 204 Steering Control applicable FMVSS. close of business on the closing date Petitions for eligibility decisions may Rearward Displacement, 205 Glazing indicated above will be considered, and be submitted by either manufacturers or Materials, 206 Door Locks and Door will be available for examination in the importers who have registered with Retention Components, 207 Seating NHTSA pursuant to 49 CFR part 592. As Systems, 209 Seat Belt Assemblies, 210 docket at the above addresses both specified in 49 CFR 593.7, NHTSA Seat Belt Assembly Anchorages, 212 before and after that date. To the extent publishes notice in the Federal Register Windshield Mounting, 214 Side Impact possible, comments filed after the of each petition that it receives, and Protection, 216 Roof Crush Resistance, closing date will also be considered. affords interested persons an 219 Windshield Zone Intrusion, 225 Notice of final action on the petition opportunity to comment on the petition. Child Restraint Anchorage Systems, and will be published in the Federal At the close of the comment period, 302 Flammability of Interior Materials. Register pursuant to the authority NHTSA decides, on the basis of the The petitioner also contends that the indicated below. petition and any comments that it has vehicles are capable of being readily Authority: 49 U.S.C. 30141(a)(1)(A), received, whether the vehicle is eligible altered to meet the following standards, (a)(1)(B), and (b)(1); 49 CFR 593.7; delegation for importation. The agency then in the manner indicated: of authority at 49 CFR 1.95 and 501.8. publishes this decision in the Federal Standard No. 101 Controls Telltales, Register. and Indicators: (a) Inscription of the Issued on: November 16, 2012. Wallace Environmental Testing word ‘‘brake’’ on the brake failure Claude H. Harris, Laboratories, Inc. of Houston, Texas indicator lamp in place of the Director, Office of Vehicle Safety Compliance. (WETL) (Registered Importer 90–005) international ECE warning symbol; and [FR Doc. 2012–28628 Filed 11–23–12; 8:45 am] has petitioned NHTSA to decide (b) replacement of the speedometer with BILLING CODE 4910–59–P whether nonconforming 2009 Porsche a unit reading in miles per hour, or 911 (997) passenger cars are eligible for modification of the existing

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DEPARTMENT OF TRANSPORTATION E-Gov Web Site: http:// individual who submitted the comment www.regulations.gov. This site allows (or signing the comment, if submitted Pipeline and Hazardous Materials the public to enter comments on any on behalf of an association, business, Safety Administration Federal Register notice issued by any labor union, etc.). DOT’s complete [Docket No. PHMSA–2009–0203] agency. Privacy Act Statement was published in Fax: 1–202–493–2251. the Federal Register on April 11, 2000 Pipeline Safety: Meeting of the Gas Mail: Docket Management Facility; (65 FR 19477). Pipeline Advisory Committee and the U.S. Department of Transportation Liquid Pipeline Advisory Committee (DOT), 1200 New Jersey Avenue SE., Information on Services for Individuals West Building, Room W12–140, With Disabilities AGENCY: Pipeline and Hazardous Washington, DC 20590–001. Materials Safety Administration Hand Delivery: Room W12–140 on the For information on facilities or (PHMSA), DOT. ground level of the DOT West Building, services for individuals with ACTION: Notice of advisory committee 1200 New Jersey Avenue SE., disabilities, or to seek special assistance meeting. Washington, DC, between 9:00 a.m. and at the meeting, please contact Cheryl 5:00 p.m., Monday through Friday, Whetsel at 202–366–4431 by December SUMMARY: This notice announces a except Federal holidays. 5, 2012. public meeting of the Gas Pipeline Instructions: Identify the docket FOR FURTHER INFORMATION CONTACT: For Advisory Committee (GPAC), also number PHMSA–2009–0203 at the information about the meeting, contact known as the Technical Pipeline Safety beginning of your comments. Note that Cheryl Whetsel by phone at 202–366– Standards Committee, and the Liquid all comments received will be posted 4431 or by email at Pipeline Advisory Committee (LPAC), without change to http:// [email protected]. also known as the Technical Hazardous www.regulations.gov, including any Liquid Pipeline Safety Standards personal information provided. You SUPPLEMENTARY INFORMATION: Committee. The committees will meet to should know that anyone is able to discuss two proposed rules, the first to search the electronic form of all I. Meeting Details implement changes to the comments received into any of our Members of the public may attend administrative procedures in Part 190 dockets by the name of the individual and make a statement during the Enforcement Procedures, and the submitting the comment (or signing the advisory committee meeting. If you second to establish criteria and comment, if submitted on behalf of an intend to make a statement, please procedures for determining the association, business, labor union, etc.). notify PHMSA in advance by adequacy of state pipeline excavation Therefore, you may want to review damage prevention law enforcement DOT’s complete Privacy Act Statement forwarding an email to programs; to establish an administrative in the Federal Register published on [email protected] by December 5, process for making adequacy April 11, 2000 (65 FR 19477) or view 2012. determinations and Federal the Privacy Notice at http:// II. Committee Background requirements PHMSA will enforce in www.regulations.gov before submitting states with inadequate programs; and to any such comments. The GPAC and LPAC are statutorily establish the adjudication process for Docket: For access to the docket or to mandated advisory committees that administrative enforcement proceedings read background documents or advise PHMSA on proposed safety against excavators where Federal comments, go to http:// standards, risks assessments, and safety authority is exercised. www.regulations.gov at any time or to policies for natural gas pipelines and for DATES: The meeting schedule follows: Room W12–140 on the ground level of hazardous liquid pipelines. Both 1. Tuesday, December 11, 2012, 1:00 the DOT West Building, 1200 New committees were established under the p.m. to 4:00 p.m., LPAC Meeting. Jersey Avenue SE., Washington, DC, Federal Advisory Committee Act (Pub. 2. Wednesday, December 12, 2012, between 9:00 a.m. and 5:00 p.m., L. 92–463, 5 U.S.C. App. 1) and the 9:00 a.m. to 5:00 p.m., Joint Meeting Monday through Friday, except Federal pipeline safety law (49 U.S.C. Chap. (LPAC and GPAC). holidays. 601). Each committee consists of 15 3. Thursday, December 13, 2012, 9:00 If you wish to receive confirmation of members—with membership evenly a.m. to 1:00 p.m., GPAC Meeting. receipt of your written comments, divided among the Federal and state The meetings will not be Web cast; please include a self-addressed, government, the regulated industry, and however, presentations will be available stamped postcard with the following the public. The committees advise on the meeting Web site and posted in statement: ‘‘Comments on PHMSA– PHMSA on the technical feasibility, the E-Gov Web Site: http:// 2009–0203.’’ The Docket Clerk will practicability, and cost-effectiveness of www.regulations.gov under docket date-stamp the postcard prior to each proposed pipeline safety standard. number PHMSA–2009–0203 within 30 returning it to you via the U.S. mail. days following the meeting. Please note that due to delays in the III. Agenda ADDRESSES: The meeting will take place delivery of U.S. mail to Federal offices The Agenda will be published on the at the Westin Alexandria, 400 in Washington, DC, we recommend that PHMSA (DOT) Web site. Courthouse Square, Alexandria, VA persons consider an alternative method 22314, Phone: 703–253–8600, Web Site: (internet, fax, or professional delivery Authority: 49 U.S.C. 60102, 60115; 60118. http://www.westinalexandria.com/. Any service) of submitting comments to the Issued in Washington, DC, on November additional information will be docket and ensuring their timely receipt 19, 2012. published on the PHMSA Web site at DOT. (http://www.phmsa.dot.gov/public), Linda Daugherty, under ‘‘Latest News’’ on the homepage. Privacy Act Statement Deputy Associate Administrator for Policy Comments on the meeting may be Anyone may search the electronic and Programs. submitted to the docket in the following form of comments received in response [FR Doc. 2012–28463 Filed 11–23–12; 8:45 am] ways: to any of our dockets by the name of the BILLING CODE 4910–60–P

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DEPARTMENT OF THE TREASURY copy of the information collection from The OCC is considering expanding Mary H. Gottlieb or Johnny Vilela, OCC this reporting requirement to include Office of the Comptroller of the Clearance Officers, (202) 874–5090, OCC’s Midsize and Large Bank Currency Legislative and Regulatory Activities populations and, therefore, is seeking Division, Office of the Comptroller of OMB approval to include these Agency Information Collection the Currency, 250 E Street SW., populations in its information Activities; Proposed Information Washington, DC 20219. collection. Collection; Comment Request; Bank SUPPLEMENTARY INFORMATION: Under the The OCC recently updated the annual Secrecy Act/Money Laundering Risk Risk Summary Form. The changes in the Assessment PRA, Federal agencies must obtain approval from the Office of Management 2012 form enhance the assessment AGENCY: Office of the Comptroller of the and Budget (OMB) for each collection of process by requiring the reporting of Currency (OCC), Treasury. information they conduct or sponsor. products, services, and customers ACTION: Notice and request for comment. ‘‘Collection of information’’ is defined (PSCs) related to prepaid access or in 44 U.S.C. 3502(3) and 5 CFR prepaid cards, a growth industry that is SUMMARY: The OCC, as part of its 1320.3(c) to include agency requests or receiving increased attention from continuing effort to reduce paperwork requirements that members of the public regulators, law enforcement, and and respondent burden, invites the submit reports, keep records, or provide Congress. The form now requires the general public and other Federal information to a third party. Section reporting of the following prepaid card agencies to take this opportunity to 3506(c)(2)(A) of the PRA requires PSCs: (i) Prepaid Cards (Reloadable and comment on a continuing information Federal agencies to provide a 60-day Non-Reloadable); (ii) Prepaid Card collection, as required by the Paperwork notice in the Federal Register Programs—Third-Party Sponsored Reduction Act of 1995. concerning each proposed collection of (Reloadable and Non-Reloadable); (iii) Under the Paperwork Reduction Act information, including each proposed Prepaid Card Programs—Bank- of 1995 (44 U.S.C. chapter 35)(PRA), extension of an existing collection of Sponsored (Reloadable and Non- Federal agencies are required to publish information, before submitting the Reloadable); (iv) Prepaid Cardholders notice in the Federal Register collection to OMB for approval. To (Reloadable and Non-Reloadable); and concerning each proposed collection of comply with this requirement, the OCC (v) Prepaid Card Program Managers. In information, including each proposed is publishing notice of the proposed addition, the Money Services Business extension of an existing collection of collection of information set forth in (MSB) section of the form was modified information, and to allow 60 days for this document. to reflect changes in regulatory public comment in response to the definitions. The form now includes notice. Bank Secrecy Act/Money Laundering MSB customers that are Providers of In accordance with the requirements Risk Assessment (OMB Control Number Prepaid Access and Sellers of Prepaid of the PRA, the OCC may not conduct 1557–0231)—Extension Access. All of these changes were made or sponsor, and the respondent is not The MLR System enhances the ability within the existing subject headers. required to respond to, an information of examiners and bank management to The OCC estimates the burden of this collection unless it displays a currently identify and evaluate Bank Secrecy Act/ collection of information as follows: valid Office of Management and Budget Money Laundering and Office of Burden Estimates (OMB) control number. Foreign Asset Control (OFAC) sanctions The OCC is soliciting comment risks associated with banks’ products, Community Bank population concerning its information collection services, customers, and locations. As Estimated Number of Respondents: entitled, ‘‘Bank Secrecy Act/Money new products and services are Laundering Risk Assessment,’’ also 1,792. introduced, existing products and Estimated Number of Responses: known as the Money Laundering Risk services change, and banks expand (MLR) System. 1,792. through mergers and acquisitions, Frequency of Response: Annually. DATES: Comments must be submitted by management’s evaluation of potentially Estimated Annual Burden: 10,752 January 25, 2013. new money laundering and terrorist hours. ADDRESSES: Communications Division, financing risks must evolve as well. Office of the Comptroller of the Consequently, the MLR risk assessment Midsize Bank population Currency, Mailstop 2–3, Attention: is an important tool for the OCC’s Bank Estimated Number of Respondents: 1557–0231, 250 E Street SW., Secrecy Act/Anti-Money Laundering/ 62. Washington, DC 20219. In addition, OFAC supervision activities because it Estimated Number of Responses: 62. comments may be sent by fax to (202) allows the agency to better identify Frequency of Response: Annually. 874–5274, or by electronic mail to those institutions, and areas within Estimated Annual Burden: 1,860 [email protected]. You may institutions, that pose heightened risk hours. personally inspect and photocopy and allocate examination resources comments at the OCC, 250 E Street SW., accordingly. This risk assessment is Large Bank population Washington, DC. For security reasons, critical in protecting financial Estimated Number of Respondents: the OCC requires that visitors make an institutions of all sizes from potential 99. appointment to inspect comments. You abuse from money laundering or Estimated Number of Responses: 99. may do so by calling (202) 874–4700. terrorist financing. Absent an Frequency of Response: Annually. Upon arrival, visitors will be required to appropriate risk assessment, applicable Estimated Annual Burden: 9,900 present valid government-issued photo controls cannot be effectively hours. identification and submit to security implemented for these lines of business, With respect to the following screening in order to inspect and products, or entities, which would collection of information, the OCC photocopy comments. elevate Bank Secrecy Act/Money invites comments on these topics: FOR FURTHER INFORMATION CONTACT: You Laundering and OFAC compliance (a) Whether the collection of can request additional information or a risks. information is necessary for the proper

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performance of the functions of the Division, Financial Crimes Enforcement The following paragraph applies to all agency, including whether the Network, Department of the Treasury, of the collections of information covered information has practical utility; P.O. Box 39, Vienna, Virginia 22183. by this notice: (b) The accuracy of the agency’s Attention: PRA Comments—Form 8300. An agency may not conduct or estimate of the burden of the collection Comments also may be submitted by sponsor, and a person is not required to of information; electronic mail to the following Internet respond to, a collection of information (c) Ways to enhance the quality, address: [email protected] with unless the collection of information utility, and clarity of the information to the caption in the body of the text, displays a valid Office of Management be collected; ‘‘Attention: PRA Comments—Form and Budget (OMB) control number. In (d) Ways to minimize the burden of 8300.’’ accordance with 31 CFR 1010.330(e)(3), the collection on respondents, including Inspection of comments. Comments a person required to make a report through the use of automated collection may be inspected, between 10 a.m. and under this section must keep a copy of techniques or other forms of information 4 p.m., in the FinCEN reading room in each report filed for five years from the technology; and Vienna, VA. Persons wishing to inspect date of filing. (e) Estimates of capital or start-up the comments submitted must request Request for Comments: Comments costs and costs of operation, an appointment with the Disclosure submitted in response to this notice will maintenance, and purchase of services Officer by telephoning (703) 905–5034 be summarized and/or included in the to provide information. (not a toll free call). request for OMB approval. All All comments will become a matter of FOR FURTHER INFORMATION CONTACT: comments will become a matter of public record. Written comments should Requests for additional information or public record. Comments are invited on: address the accuracy of the burden copies of the form and instructions (a) Whether the collection of estimates and ways to minimize burden should be directed to the Regulatory information is necessary for the proper including the use of automated Policy and Programs Division performance of the functions of the collection techniques or the use of other Regulatory Helpline, (800) 949–2732 agency, including whether the forms of information technology as well and select option 6. A copy of the form information shall have practical utility; as other relevant aspects of the may be obtained through the Internet at (b) the accuracy of the agency’s estimate information collection request. www.fincen.gov/forms. of the burden of the collection of Dated: November 14, 2012. SUPPLEMENTARY INFORMATION: information; (c) ways to enhance the Michele Meyer, Title: Report of Cash Payments Over quality, utility, and clarity of the Assistant Director, Legislative and Regulatory $10,000 Received in a Trade or information to be collected; (d) ways to Activities Division. Business. minimize the burden of the collection of [FR Doc. 2012–28618 Filed 11–23–12; 8:45 am] OMB Number: 1506–0018. information on respondents, including BILLING CODE 4810–33–P Form Number: 8300. through the use of automated collection Abstract: 31 CFR 1010.331 requires techniques or other forms of information any person in a trade or business who, technology; and (e) estimates of capital DEPARTMENT OF THE TREASURY in the course of the trade or business, or start-up costs and costs of operation, receives more than $10,000 in cash or maintenance, and purchase of services Financial Crimes Enforcement Network foreign currency in one or more related to provide information. transactions to report it to FinCEN and Dated: November 16, 2012. Proposed Collection; Comment provide a statement to the payer. Form Jennifer Shasky Calvery, Request; Renewal Without Change of 8300 is used for this purpose. the FinCEN Form 8300 Section 365 of the USA PATRIOT Act Director, Financial Crimes Enforcement of 2001 (Pub. L. 107–56), adding new Network. AGENCY: Financial Crimes Enforcement [FR Doc. 2012–28518 Filed 11–23–12; 8:45 am] Network (FinCEN), Treasury. section 5331 to Title 31 of the United States Code, authorized FinCEN to BILLING CODE 4810–02–P ACTION: Notice and request for collect the information reported on comments. Form 8300. FinCEN makes the Forms DEPARTMENT OF THE TREASURY SUMMARY: The Department of the 8300 available to law enforcement Treasury, as part of its continuing effort through its Bank Secrecy Act Financial Crimes Enforcement to reduce paperwork and respondent information sharing agreements. Network; Proposed Collection; burden, invites the general public and Current Actions: There are no changes Comment Request; Renewal without other Federal agencies to take this being made to the form at this time. Change of the FinCEN Suspicious opportunity to comment on proposed Type of Review: Extension of a Activity Reports Currently Approved and/or continuing information currently approved collection. Electronic Data Fields collections, as required by the Affected Public: Businesses or other Paperwork Reduction Act of 1995, for-profit organizations, farms, and the AGENCY: Financial Crimes Enforcement Public Law 104–13 (44 U.S.C. Federal government. Network (‘‘FinCEN’’), Treasury. Frequency: As required. 3506(c)(2)(A)). Currently, the Financial ACTION: Notice and request for Estimated Number of Respondents: comments. Crimes Enforcement Network (FinCEN) 46,800. is soliciting comments concerning Form Estimated Time per Respondent: 45 SUMMARY: FinCEN is proposing to renew 8300, Report of Cash Payments Over minutes. without change the OMB-approved list $10,000 Received in a Trade or Estimated Total Annual Burden of current data fields within the Business. Hours: 35,100.1 database that are required to support the DATES: Written comments should be FinCEN Suspicious Activity Report received on or before January 25, 2013 1 The burden for the information collection in 31 (‘‘SAR’’) filings by financial institutions to be assured of consideration. CFR 1010.330, (also approved under control number 1506–0018), relating to the Form 8300, is required to file such reports under the ADDRESSES: Direct all written comments reflected in the burden of the form and includes Bank Secrecy Act (‘‘BSA’’). This notice to the Regulatory Policy and Programs reporting and recordkeeping. does not propose any new regulatory

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requirements or changes to the and file reports that are determined to Estimated number of respondents: requirements related to suspicious have a high degree of usefulness in 84,655 (Broker-Dealers, Casinos and activity reporting. The data fields reflect criminal, tax, and regulatory matters, or Card Clubs, Depository Institutions, the filing requirement for all filers of in the conduct of intelligence or Future Commission Merchants, SARs under the BSA. The FinCEN SAR counter-intelligence activities, to protect Insurance Companies, Money Services is an e-filed dynamic and interactive against international terrorism, and to Businesses, Mutual Funds, and Non- report used by all BSA filing institutions implement anti-money laundering Bank Residential Mortgage Lenders and to report suspicious financial activities programs and compliance procedures.3 Originators). to the Department of the Treasury. This Regulations implementing Title II of the request for comments covers 31 CFR BSA appear at 31 CFR Chapter X. The Estimated Total Annual Responses: 7 1020.320, 1021.320, 1022.320, 1023.320, authority of the Secretary to administer 1,127,928. 1024.320, 1025.320, and 1026.320. This the BSA has been delegated to the Estimated Total Annual Reporting request for comments is being made Director of FinCEN.4 and Recordkeeping Burden: 2,255,856 pursuant to the Paperwork Reduction The information collected on the hours. Act of 1995, Public Law 104–13, 44 ‘‘report’’ is required to be provided Note: A joint filing 8 will increase the U.S.C. 3506(c)(2)(A). pursuant to 31 U.S.C. 5318(g), as burden to 90 minutes reporting and 60 DATES: implemented by FinCEN regulations 1 Written comments are welcome minutes recordkeeping for a total of 2 and ⁄2 and must be received on or before found at 31 CFR 1020.320, 1021.320, hours per report. January 25, 2013. 1022.320, 1023.320, 1024.320, 1025.320, An agency may not conduct or ADDRESSES: Written comments should and 1026.320. The information collected sponsor, and a person is not required to be submitted to: Regulatory Policy and under this requirement is made respond to, a collection of information Programs Division, Financial Crimes available to appropriate agencies and Enforcement Network, Department of organizations as disclosed in FinCEN’s unless the collection of information the Treasury, P.O. Box 39, Vienna, Privacy Act System of Records Notice displays a valid OMB control number. Virginia 22183, ‘‘Attention: PRA relating to BSA Reports.5 Records required to be retained under Comments—SAR Database.’’ Comments Current Action: FinCEN is renewing the BSA must be retained for five years. also may be submitted by electronic without change the OMB-approved Request for Comments: Comments mail to the following Internet address: electronic data elements currently submitted in response to this notice will [email protected], with the supporting the reporting of suspicious be summarized and/or included in the caption, ‘‘Attention: SAR Database’’ in financial activities. All filings (discrete, request for OMB approval. All the body of the text. Please submit by batch, and computer-to-computer) will comments will become a matter of one method only. be accessed through the BSA E-Filing public record. Comments are invited on: system using current registration and Inspection of comments: Comments (a) Whether the collection of login procedures. may be inspected, between 10 a.m. and information is necessary for the proper Type of Review: Renewal without 4 p.m., in the FinCEN reading room in performance of the functions of the Vienna, VA. Persons wishing to inspect change of the electronic data elements agency, including whether the the comments submitted must request of the FinCEN SAR that support the information shall have practical utility; an appointment with the Disclosure electronic filing of a dynamic SAR. (b) the accuracy of the agencys estimate Officer by telephoning (703) 905–5034 Affected public: Business or other for- (not a toll free call). profit and not-for-profit financial of the burden of the collection of information; (c) ways to enhance the FOR FURTHER INFORMATION CONTACT: The institutions. quality, utility, and clarity of the FinCEN Regulatory Helpline at 800– Frequency: As required. 949–2732, select option 7. Estimated Reporting Burden: Average information to be collected; (d) ways to minimize the burden of the collection of SUPPLEMENTARY INFORMATION: Title: of 60 minutes per report and 60 minutes information on respondents, including FinCEN Suspicious Activity Report by recordkeeping per filing. (The reporting Financial Institutions (see 31 CFR burden of the regulations 31 CFR through the use of automated collection 1020.320, 1021.320, 1022.320, 1023.320, 1020.320, 1021.320, 1022.320, 1023.320, techniques or other forms of information 1024.320, 1025.320, and 1026.320).1 1024.320, 1025.320, and 1026.320 is technology; and (e) estimates of capital OMB Number: 1506–0065.2 reflected in the burden for the form.) or start-up costs and costs of operation, Form Number: FinCEN 111. Estimated Recordkeeping and maintenance and purchase of services to Abstract: The statute generally Reporting Burden: 120 minutes (60 provide information. reporting and 60 minutes referred to as the ‘‘Bank Secrecy Act,’’ Dated: November 16, 2012. Titles I and II of Public Law 91–508, as recordkeeping, for a total of 2 hours).6 amended, codified at 12 U.S.C. 1829b, Jennifer Shasky Calvery, 12 U.S.C. 1951–1959, and 31 U.S.C. 3 Language expanding the scope of the BSA to Director, Financial Crimes Enforcement 5311–5332, authorizes the Secretary of intelligence or counter-intelligence activities to Network. protect against international terrorism was added by [FR Doc. 2012–28520 Filed 11–23–12; 8:45 am] the Treasury, inter alia, to require Section 358 of the Uniting and Strengthening financial institutions to keep records America by Providing Appropriate Tools Required BILLING CODE 4810–02–P to Intercept and Obstruct Terrorism Act of 2001 (the 1 This is a new title for this control number. The USA PATRIOT Act), Public Law 107–56. previously approved title was ‘‘Bank Secrecy Act 4 Treasury Order 180–01 (Sept. 26, 2002). 7 Numbers are based on actual 2012 filings as Suspicious Activity Report (BSA–SAR).’’ 5 Department of the Treasury bureaus such as reported to the IRS Enterprise Computing Center- 2 The SAR reporting requirements are currently FinCEN renew their System of Records Notices covered under the following OMB Control numbers: every three years unless there is cause to amend Detroit (EEC–D) as of 09/30/2012. This number 1506–0001 (Depository Institutions), 1506–0006 them more frequently. FinCEN’s System of Records reflects the projected total number of SAR filings for (Casinos and Card Clubs), 1506–0015 (Money Notice for BSA Reports System was most recently the year. Services Business), 1506–0019 (Securities and published at 77 FR 60014–60022 (October 1, 2012). Futures Industries), 1506–0029 (Insurance 6 FinCEN believes this burden estimate to be high, 8 Two separate financial institutions filing a Companies), and 1506–0061 (Residential Mortgage but insufficient collection data exist to reduce the single SAR. This type of filing constitutes less than Lenders and Originators). number at this time. 1% of total filings.

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DEPARTMENT OF THE TREASURY Title: FinCEN Currency Transaction system 6 using current registration and Report by Financial Institutions (see 31 login procedures. Financial Crimes Enforcement CFR 1010.311 and 1021.311.1 Type of Review: Renewal without Network; Proposed Collection; OMB Number: 1506–0064.2 change of the electronic data elements Comment Request; Renewal Without Form Number: FinCEN 112. of the FinCEN CTR that support the Change of the FinCEN Currency electronic filing of a dynamic CTR. Abstract: The statute generally Transaction Reports Currently Affected public: Business or other for- referred to as the ‘‘Bank Secrecy Act,’’ Approved Electronic Data Fields profit and not-for-profit financial Titles I and II of Public Law 91–508, as institutions. amended, codified at 12 U.S.C. 1829b, AGENCY: Financial Crimes Enforcement Frequency: As required. 12 U.S.C. 1951–1959, and 31 U.S.C. Network (‘‘FinCEN’’), Treasury. Estimated Reporting Burden: Average 5311–5332, authorizes the Secretary of of 20 minutes per report and 20 minutes ACTION: Notice and request for the Treasury, inter alia, to require recordkeeping per filing. (The reporting comments. financial institutions to keep records burden of the regulations 31 CFR and file reports that are determined to 1010.311 and 1021.311 is reflected in SUMMARY: FinCEN is proposing to renew have a high degree of usefulness in the burden for the form.) without change the OMB-approved list criminal, tax, and regulatory matters, or Estimated Recordkeeping and of current data fields within the in the conduct of intelligence or Reporting Burden: 40 minutes. database that are required to support the counter-intelligence activities, to protect FinCEN Currency Transaction Report Estimated number of respondents: against international terrorism, and to 82,255 (includes depository institutions, (‘‘CTR’’) filings by financial institutions implement counter-money laundering required to file such reports under the 3 broker-dealers, future commission programs and compliance procedures. merchants, introducing brokers in Bank Secrecy Act (‘‘BSA’’). This notice Regulations implementing Title II of the does not propose any new regulatory commodities, money services BSA appear at 31 CFR Chapter X. The businesses, and mutual funds). requirements or changes to the authority of the Secretary to administer requirements related to currency Estimated Total Annual Responses: the BSA has been delegated to the 7 transaction reporting. The data fields 4 14,111,600. Director of FinCEN. The Secretary of Estimated Total Annual Reporting reflect the filing requirement for all the Treasury was granted authority in filers of CTRs under the BSA. The and Recordkeeping Burden: 9,407,733 1970, with the enactment of 31 U.S.C. hours. FinCEN CTR is an e-filed dynamic and 5313, to require financial institutions to interactive report used by all BSA filing An agency may not conduct or report currency transactions exceeding sponsor, and a person is not required to institutions to report designated $10,000. currency transactions to the Department respond to, a collection of information The information collected on the of the Treasury. This request for unless the collection of information ‘‘report’’ is required to be provided comments covers 31 CFR 1010.311 and displays a valid OMB control number. pursuant to 31 U.S.C. 5313 as 1021.311. This request for comments is Records required to be retained under implemented by FinCEN regulations being made pursuant to the Paperwork the BSA must be retained for five years. found at 31 CFR 1010.311 and 1021.311. Reduction Act of 1995, Public Law 104– Request for Comments: The information collected under this 13, 44 U.S.C. 3506(c)(2)(A). Comments submitted in response to requirement is made available to this notice will be summarized and/or DATES: Written comments are welcome appropriate agencies and organizations included in the request for OMB and must be received on or before as disclosed in FinCEN’s Privacy Act approval. All comments will become a January 25, 2013. System of Records Notice relating to matter of public record. Comments are 5 ADDRESSES: Written comments should BSA Reports. invited on: (a) Whether the collection of be submitted to: Regulatory Policy and Current Action: FinCEN is renewing, information is necessary for the proper Programs Division, Financial Crimes without change, the OMB-approved performance of the functions of the Enforcement Network, Department of electronic data elements currently agency, including whether the the Treasury, P.O. Box 39, Vienna, supporting the reporting of currency information shall have practical utility; Virginia 22183, ‘‘Attention: PRA transactions. All filings (discrete, batch, (b) the accuracy of the agency’s estimate Comments—CTR Database.’’ Comments and computer-to-computer) will be of the burden of the collection of also may be submitted by electronic accessed through the BSA E-Filing information; (c) ways to enhance the mail to the following Internet address: quality, utility, and clarity of the [email protected], with the 1 This is a new title for this control number. The information to be collected; (d) ways to caption, ‘‘Attention: CTR Database’’ in previously approved title was ‘‘Bank Secrecy Act minimize the burden of the collection of Currency Transaction Report (BSA–CTR).’’ information on respondents, including the body of the text. Please submit by 2 The CTR reporting requirements are currently one method only. covered under the following OMB Control numbers: through the use of automated collection Inspection of comments: Comments 1506–0004 (Financial Institutions other than techniques or other forms of information may be inspected, between 10 a.m. and Casinos), and 1506–0005 (Casinos and Card Clubs). technology; and (e) estimates of capital 3 Language expanding the scope of the BSA to 4 p.m., in the FinCEN reading room in or start-up costs and costs of operation, intelligence or counter-intelligence activities to maintenance and purchase of services to Vienna, VA. Persons wishing to inspect protect against international terrorism was added by the comments submitted must request Section 358 of the Uniting and Strengthening provide information. an appointment with the Disclosure America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the 6 BSA E-Filing is a free service provided by Officer by telephoning (703) 905–5034 USA PATRIOT Act), Public Law 107–56. FinCEN. More information on the filing methods (not a toll free call). 4 Treasury Order 180–01 (Sept. 26, 2002). may be accessed at http:// 5 bsaefiling.fincen.treas.gov/main.html. FOR FURTHER INFORMATION CONTACT: The Department of the Treasury bureaus such as FinCEN renew their System of Records Notices 7 Numbers are based on actual 2012 filings as FinCEN Regulatory Helpline at 800– every three years unless there is cause to amend reported to the IRS Enterprise Computing Center- 949–2732, select option 7. them more frequently. FinCEN’s System of Records Detroit (EEC–D) as of 09/30/2012. This number Notice for BSA Reports System was most recently reflects the total projected number of filings for both SUPPLEMENTARY INFORMATION: published at 77 FR 60014–60022 (October 1, 2012). the legacy CTR and CTRC and the FinCEN CTR.

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Dated: November 16, 2012. sanctions on persons who have property and interests in property are Jennifer Shasky Calvery, committed, pose a significant risk of blocked pursuant to Executive Order Director, Financial Crimes Enforcement committing, or support acts of terrorism. 13224. Network. The President identified in the Annex to The listing for this individual on [FR Doc. 2012–28521 Filed 11–23–12; 8:45 am] the Order, as amended by Executive OFAC’s list of Specially Designated BILLING CODE 4810–02–P Order 13268 of July 2, 2002, 13 Nationals and Blocked Persons appear individuals and 16 entities as subject to as follows: the economic sanctions. The Order was Individual DEPARTMENT OF THE TREASURY further amended by Executive Order 13284 of January 23, 2003, to reflect the 1. AL–MUSAWI, Ali Mussa Daqduq (a.k.a. Office of Foreign Assets Control creation of the Department of Homeland ’ABD AL–YUNIS, Hamid Majid; a.k.a. Security. AL–LAMI, Hamid Muhammad; a.k.a. Designation of one (1) individual Section 1 of the Order blocks, with AL–MASUI, Husayn Muhammad Jabur; Pursuant to Executive Order 13224 of certain exceptions, all property and a.k.a. AL–MUSAWI, Hamid Muhammad September 23, 2001, ‘‘Blocking interests in property that are in or Daqduq; a.k.a. AL–MUSAWI, Hamid Muhammad Jabur; a.k.a. AL–MUSUI, Property and Prohibiting Transactions hereafter come within the United States With Persons Who Commit, Threaten Hamid Muhammad Jabur; a.k.a. or the possession or control of United DAQDUQ, Ali Mussa; a.k.a. JABUR AL– To Commit, or Support Terrorism’’ States persons, of: (1) Foreign persons LAMI, Hamid Muhammad); DOB 01 Sep listed in the Annex to the Order; (2) AGENCY: Office of Foreign Assets 1969; alt. DOB 31 Dec 1971; alt. DOB 09 Control, Treasury. foreign persons determined by the Aug 1971; alt. DOB 09 Sep 1970; alt. Secretary of State, in consultation with DOB 09 Aug 1969; alt. DOB 05 Mar 1972; ACTION: Notice. the Secretary of the Treasury, the POB Beirut, Lebanon; alt. POB Al- Secretary of the Department of Karradah, Baghdad, Iraq; nationality SUMMARY: The Treasury Department’s Lebanon (individual) [SDGT]. Office of Foreign Assets Control Homeland Security and the Attorney (‘‘OFAC’’) is publishing the name of one General, to have committed, or to pose Dated: November 19, 2012. (1) individual whose property and a significant risk of committing, acts of Adam J. Szubin, interests in property are blocked terrorism that threaten the security of Director, Office of Foreign Assets Control. pursuant to Executive Order 13224 of U.S. nationals or the national security, [FR Doc. 2012–28656 Filed 11–23–12; 8:45 am] September 23, 2001, ‘‘Blocking Property foreign policy, or economy of the United BILLING CODE 4810–AL–P and Prohibiting Transactions With States; (3) persons determined by the Persons Who Commit, Threaten To Director of OFAC, in consultation with the Departments of State, Homeland Commit, or Support Terrorism.’’ DEPARTMENT OF VETERANS Security and Justice, to be owned or DATES: The designation by the Director AFFAIRS controlled by, or to act for or on behalf of OFAC of the one (1) individual in this of those persons listed in the Annex to notice, pursuant to Executive Order National Research Advisory Council, the Order or those persons determined 13224, is effective on November 19, Notice of Meeting to be subject to subsection 1(b), 1(c), or 2012. 1(d)(i) of the Order; and (4) except as The Department of Veterans Affairs FOR FURTHER INFORMATION CONTACT: provided in section 5 of the Order and (VA) gives notice under the Federal Assistant Director, Compliance after such consultation, if any, with Advisory Committee Act, 5 U.S.C., App. Outreach & Implementation, Office of foreign authorities as the Secretary of 2, that the National Research Advisory Foreign Assets Control, Department of State, in consultation with the Secretary Council will hold a meeting on the Treasury, Washington, DC 20220, of the Treasury, the Secretary of the Wednesday, December 5, 2012, in tel.: 202/622–2490. Department of Homeland Security and conference room 23, at 131 M Street SUPPLEMENTARY INFORMATION: the Attorney General, deems NE., Washington, DC. The meeting will appropriate in the exercise of his convene at 9:30 a.m. and end at 3:30 Electronic and Facsimile Availability discretion, persons determined by the p.m. The meeting is open to the public. This document and additional Director of OFAC, in consultation with The purpose of the Council is to information concerning OFAC are the Departments of State, Homeland provide external advice and review for available from OFAC’s Web site Security and Justice, to assist in, VA’s research mission. The agenda will (www.treas.gov/ofac) or via facsimile sponsor, or provide financial, material, include a review of the 2013 Operations through a 24-hour fax-on-demand or technological support for, or financial Plan, VA’s research portfolio, and a service, tel.: 202/622–0077. or other services to or in support of, summary of special projects. The such acts of terrorism or those persons Council will also provide feedback on Background listed in the Annex to the Order or the direction/focus of VA’s research On September 23, 2001, the President determined to be subject to the Order or initiatives. issued Executive Order 13224 (the to be otherwise associated with those No time will be allocated at this ‘‘Order’’) pursuant to the International persons listed in the Annex to the Order meeting for receiving oral presentations Emergency Economic Powers Act, 50 or those persons determined to be from the public. Interested members of U.S.C. 1701–1706, and the United subject to subsection 1(b), 1(c), or 1(d)(i) the public may submit written Nations Participation Act of 1945, 22 of the Order. statements for the Council’s review to U.S.C. 287c. In the Order, the President On November 19, 2012 the Director of Pauline Cilladi-Rehrer, Designated declared a national emergency to OFAC, in consultation with the Federal Officer, Office of Research and address grave acts of terrorism and Departments of State, Homeland Development (10P9), Department of threats of terrorism committed by Security, Justice and other relevant Veterans Affairs, 810 Vermont Avenue foreign terrorists, including the agencies, designated, pursuant to one or NW., Washington, DC, 20420, or by September 11, 2001 terrorist attacks in more of the criteria set forth in email at [email protected]. New York, Pennsylvania, and at the subsections 1(b), 1(c) or 1(d) of the Any member of the public wishing to Pentagon. The Order imposes economic Order, one (1) individual whose attend the meeting or wishing further

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information should contact Ms. Cilladi- and end at 4 p.m. The meetings are open accommodated on a first-come, first- Rehrer at (202) 443–5607. to the public. served basis. Individuals who speak are The purpose of the Committee is to By Direction of the Secretary. invited to submit 1–2 page summaries of advise the Secretary of Veterans Affairs their comments at the time of the Dated: November 20, 2012. on the maintenance and periodic meeting for inclusion in the official Vivian Drake, readjustment of the VA Schedule for meeting record. Committee Management Officer. Rating Disabilities. The Committee is to The public may submit written [FR Doc. 2012–28597 Filed 11–23–12; 8:45 am] assemble and review relevant statements for the Committee’s review BILLING CODE 8320–01–P information relating to the nature and to Nancy Copeland, Acting Designated character of disabilities arising during Federal Officer, Department of Veterans service in the Armed Forces, provide an Affairs, Veterans Benefits DEPARTMENT OF VETERANS ongoing assessment of the effectiveness Administration, Compensation Service, AFFAIRS of the rating schedule, and give advice Regulation Staff (211D), 810 Vermont on the most appropriate means of Avenue NW., Washington, DC 20420 or Advisory Committee on Disability responding to the needs of Veterans email at [email protected]. Any Compensation, Notice of Meeting relating to disability compensation. member of the public wishing to attend The Committee will receive briefings the meeting or seeking additional The Department of Veterans Affairs on issues related to compensation for information should contact Mrs. (VA) gives notice under the Federal Veterans with service-connected Copeland at (202) 461–9685. Advisory Committee Act, 5 U.S.C. App. disabilities and other VA benefits Dated: November 20, 2012. 2, that the Advisory Committee on programs. Time will be allocated for Disability Compensation will meet on receiving public comments in the By Direction of the Secretary: December 5–6, 2012, at the Hilton afternoon. Public comments will be Vivian Drake, Homewood Suites, 1475 Massachusetts limited to three minutes each. Committee Management Officer. Avenue NW., Washington, DC. The Individuals wishing to make oral [FR Doc. 2012–28601 Filed 11–23–12; 8:45 am] sessions will begin each day at 8:30 a.m. statements before the Committee will be BILLING CODE 8320–01–P

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Part II

Department of Commerce

National Oceanic and Atmospheric Administration 50 CFR Part 635 Highly Migratory Species; Atlantic Shark Management Measures; Proposed Rule

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DEPARTMENT OF COMMERCE including the Gulf of Mexico and Clark, or Karyl Brewster-Geisz at 301– Caribbean Sea. 427–8503. National Oceanic and Atmospheric DATES: Written comments will be SUPPLEMENTARY INFORMATION: Atlantic Administration accepted until February 12, 2013. NMFS tunas and swordfish are managed under will announce the dates and locations of the dual authority of the Magnuson- 50 CFR Part 635 public hearings in a future Federal Stevens Fishery Conservation and [Docket No. 110831548–2430–01] Register notice. Management Act (Magnuson-Stevens ADDRESSES: NMFS will announce the Act) and the Atlantic Tuna Conventions RIN 0648–BB29 dates and locations of public hearings in Act (ATCA), which authorizes the Highly Migratory Species; Atlantic a future Federal Register notice. Secretary of Commerce (Secretary) to Shark Management Measures You may submit comments on this promulgate regulations as may be document, identified by NOAA–NMFS– necessary and appropriate to implement AGENCY: National Marine Fisheries 2012–0161, by any of the following recommendations of the International Service (NMFS), National Oceanic and methods: Commission for the Conservation of Atmospheric Administration (NOAA), • Electronic Submission: Submit all Atlantic Tunas (ICCAT). Federal Commerce. electronic public comments via the Atlantic shark fisheries are managed ACTION: Proposed rule; request for Federal e-Rulemaking Portal under the authority of the Magnuson- comments. www.regulations.gov. To submit Stevens Act. The authority to issue comments via the e-Rulemaking Portal, regulations under the Magnuson- SUMMARY: NMFS is amending the 2006 first click the ‘‘submit a comment’’ icon, Stevens Act and ATCA has been Consolidated Atlantic Highly Migratory then enter NOAA–NMFS–2012–0161 in delegated from the Secretary to the Species Fishery Management Plan based the keyword search. Locate the Assistant Administrator for Fisheries, on several shark stock assessments that document you wish to comment on NOAA (AA). On May 28, 1999, NMFS were completed from 2009 to 2012. The from the resulting list and click on the published in the Federal Register (64 assessments for Atlantic blacknose, ‘‘Submit a Comment’’ icon on the right FR 29090) final regulations, effective dusky, and scalloped hammerhead of that line. July 1, 1999, implementing the Fishery sharks indicated that these species are • Mail: Submit written comments to Management Plan (FMP) for Atlantic overfished and experiencing Peter Cooper, 1315 East-West Highway, Tunas, Swordfish, and Sharks (1999 overfishing. The assessment for sandbar Silver Spring, MD 20910. FMP). On October 2, 2006, NMFS sharks indicated that this species is • Fax: 301–713–1917; Attn: Peter published in the Federal Register (71 overfished, but not experiencing Cooper FR 58058) final regulations, effective overfishing. The assessment for Gulf of Instructions: Comments must be November 1, 2006, implementing the Mexico blacktip sharks, adopted in this submitted by one of the above methods 2006 Consolidated Highly Migratory rulemaking, indicated that the stock is to ensure that the comments are Species (HMS) FMP, which details the not overfished and not experiencing received, documented, and considered management measures for Atlantic HMS overfishing. The assessment for Gulf of by NMFS. Comments sent by any other fisheries, including the Atlantic shark Mexico blacknose sharks was not method, to any other address or fisheries. accepted; therefore, the overfished and individual, or received after the end of Background overfishing statuses have been the comment period, may not be determined to be unknown. The considered. All comments received are A brief summary of the background of Magnuson-Stevens Fishery a part of the public record and will this proposed action is provided below. Conservation and Management generally be posted for public viewing Additional information regarding Reauthorization Act (Magnuson-Stevens on www.regulations.gov without change. Atlantic HMS management can be found Act) requires the Agency to implement All personal identifying information in the Draft Environmental Impact management measures that prevent (e.g., name, address, etc.) submitted Statement for Amendment 5, the 2006 overfishing and rebuild overfished voluntarily by the sender will be Consolidated HMS FMP and its stocks, as necessary. Based on the new publicly accessible. Do not submit amendments, the annual HMS Stock stock assessments, and after considering confidential business information, or Assessment and Fishery Evaluation public comments received during otherwise sensitive or protected Reports, and online at http:// scoping and on a predraft document, we information. NMFS will accept www.nmfs.noaa.gov/sfa/hms/. are proposing measures that would anonymous comments (enter ‘‘N/A’’ in On April 28, 2011, we made the reduce fishing mortality and effort in the required fields if you wish to remain determination that scalloped order to rebuild overfished Atlantic anonymous). Attachments to electronic hammerhead sharks were overfished shark species while ensuring that a comments will be accepted in Microsoft and experiencing overfishing (76 FR limited sustainable shark fishery can be Word or Excel, WordPerfect, or Adobe 23794). On October 7, 2011, we maintained consistent with our legal PDF file formats only. published a notice announcing our obligations. The proposed measures Written comments regarding the intent to prepare a proposal for include changes to commercial quotas burden-hour estimates or other aspects Amendment 5 to the 2006 Consolidated and species groups, the creation of of the collection-of-information HMS FMP with an Environmental several time/area closures, a change to requirements contained in this proposed Impact Statement in accordance with an existing time/area closure, an rule may be submitted to the Highly the requirements of the National increase in the recreational minimum Migratory Species Management Division Environmental Policy Act (76 FR 62331) size restrictions, and the establishment of the Office of Sustainable Fisheries based on several assessments and of recreational reporting for certain and by email to determinations. In that notice, we made species of sharks. The proposed [email protected] or fax stock status determinations based on the measures could affect U.S. commercial to (202) 395–7285. results of the Southeast Data, or recreational fishermen who harvest FOR FURTHER INFORMATION CONTACT: Assessment, and Review 21 process. sharks within the Atlantic Ocean, Peter Cooper, Guy´ DuBeck, Michael Determinations in the October 2011

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notice included that sandbar sharks are Review 29 process, and that process in recruitment was incorporated into the still overfished, but no longer would be completed before this model and was not confident about the experiencing overfishing, and that amendment was finalized. Therefore, conclusion of ‘‘no overfishing’’ reached dusky sharks are still overfished and we believed that the addition of Gulf of in the assessment because three of the still experiencing overfishing (i.e., their Mexico blacktip sharks to this indices had declined in the last five stock status has not changed). The amendment would facilitate years and because maximum sustainable October 2011 notice also acknowledged administrative efficiency by optimizing yield fishing mortality (FMSY) was low. recent available scientific information our resources, and would allow us to The peer reviewer stated that a model indicating that there are two stocks of address new scientific information in with reasonable variation in recruitment blacknose sharks, the Atlantic blacknose the timeliest manner. We also expected could indicate a current fishing shark and the Gulf of Mexico blacknose that this addition would provide better mortality more similar to FMSY and thus shark, and that the Atlantic blacknose clarity to and understanding by the show the stock approaching an shark stock is overfished and public regarding any possible impacts of overfishing condition. The stock experiencing overfishing, and the Gulf the rulemaking on shark fisheries by assessment scientists showed in the of Mexico blacknose shark stock status combining potential management post-review updates and projections is unknown. measures resulting from recent shark document that process error in In that notice, as part of a scoping stock assessments into one rulemaking. recruitment was fully considered and process for Amendment 5, we asked for Public comments on this addition to that recruitment in the model was comments on existing commercial and Amendment 5 were accepted until June reasonable. They also showed that the recreational shark management 21, 2012. We received two comments on low value of FMSY is consistent with measures that would assist us in the notice, one supporting the addition what is expected from the biology of determining options for conservation of blacktip sharks, the other opposing sharks, and that of the three indices and management of scalloped the addition. The commenter who mentioned by the reviewer that showed hammerhead, sandbar, dusky, and opposed the addition felt that more time a decline, two show an increase in the blacknose sharks consistent with was needed in the predraft scoping terminal year of 2010. Therefore, the relevant Federal statutes. We held six period to provide comment on any stock assessment scientists concluded scoping meetings from October through particular proposals regarding blacktip that the stock assessment result of no December 2011 and released a scoping shark management. While it is overfishing is warranted. As such, in presentation in conjunction with the preferable to have a pre-draft, it is not this proposed rule, we accept the results Federal Register notice. In the a legal requirement and we believe that of the stock assessment as final and presentation and at the scoping ample opportunity will be presented declare the Gulf of Mexico blacktip meetings, we described results of stock through the rulemaking process for shark stock to be not overfished with no assessments and potential options for public input and comment. The overfishing occurring. management of scalloped hammerhead, commenter who supported the addition sandbar, dusky, and blacknose sharks to Results of the stock assessment show felt that this was the most responsive that Gulf of Mexico blacktip sharks are reach rebuilding goals. and timely way to address the stock We released a predraft of Amendment not overfished (SSF2009/SSFMSY = 2.50– assessment. 5 to the 2006 Consolidated HMS FMP, 2.78) and are not experiencing which summarized and incorporated The Final Stock Assessment Report overfishing (F2009/FMSY = 0.03–0.106). comments received during scoping, to for Gulf of Mexico Blacktip Sharks was Because the stock is healthy, projections the HMS Advisory Panel on March 14, completed in June 2012, and the peer and the calculations needed to 2012, and made it available to the review was completed in July 2012. The determine the acceptable biological public on the Internet for broader public assessment was conducted through the catch were not considered part of the comment. The predraft included, among Southeast Data, Assessment, and statement of work for the stock other things, the outcome of stock Review process and the peer review was assessment and therefore were not assessments for sandbar, dusky, conducted by two scientists under the conducted during the stock assessment scalloped hammerhead, Atlantic Center for Independent Experts. Both itself (for an overfished stock, these blacknose, and Gulf of Mexico peer reviewers raised questions about calculations would have been done blacknose sharks as well as potential the assessment. One reviewer accepted before completion of the stock management measures for these species/ the model and its results. The other peer assessment). Rather, the Southeast stocks. We requested that the HMS reviewer supported the assessment’s Fisheries Science Center calculated the Advisory Panel and Consulting Parties conclusion that the Gulf of Mexico projections after the stock assessment as (Atlantic, Gulf, and Caribbean Fishery blacktip shark stock is not overfished, a whole was peer reviewed. The stock Management Councils, Marine Fisheries but concluded that the status regarding assessment noted that current removal Commissions, U.S. Coast Guard, and overfishing is uncertain. The Southeast rates are sustainable, and the other State and Federal Agency Fisheries Science Center addressed the subsequent projections, which were representatives) submit comments on questions from the peer reviewers in a completed outside the Southeast Data, the predraft by April 13, 2012. The post peer-review ‘‘updates and Assessment, and Review process, predraft was published online and projections’’ document written by stock indicate that current removals are public comments were collected. assessment scientists, who were the lead unlikely to lead to an overfished fish We published a Federal Register scientists during the Southeast Data, stock by 2040. The projections also notice on May 29, 2012 (77 FR 31562) Assessment, and Review 29 process. indicate that higher levels of removal notifying the public that we were The scientists concluded that the (those associated with an FTARGET considering the addition of Gulf of reviewer’s conclusion on the overfishing scenario) are unlikely to result in an Mexico blacktip sharks to Amendment status was based on the reviewer’s overfished stock; however, the 5. This addition was proposed because interpretation that the model methodology for estimating FTARGET is Gulf of Mexico blacktip sharks were configuration was not appropriate for currently in development for sharks and undergoing a stock assessment as part of the stock. Specifically, the peer reviewer has yet to be introduced and reviewed the Southeast Data, Assessment, and did not think that reasonable variation within the Southeast Data, Assessment,

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and Review process for this species. different issues including establishing 4 years from the current rebuilding Therefore, we analyze a range of total allowable catches, quota limits, timeframe. Because the current total alternatives to calculate the total time/area closures and bycatch caps, as allowable catch already provides a allowable catch and define a draft well as establishing rebuilding plans for greater than 70-percent probability of preferred alternative. Once this rule and overfished stocks, and recreational rebuilding, and because overfishing is Amendment is finalized in 2013, we measures. Because many of the species- not occurring and the stock status is will establish the total allowable catch specific total allowable catch, improving, we believe that maintaining described in the final preferred commercial quota, and recreational the current total allowable catch and alternative to be the annual catch limit measures are interlinked, these rebuilding plan is fully consistent with for the stock. As described above and in alternatives are arranged and analyzed the Magnuson-Stevens Act requirements the Alternative Suites, we split the total in groups of Alternative Suites. In and the National Standard Guidelines. allowable catch into recreational addition to the Alternative Suites, Additionally, a change in the rebuilding harvest, dead discards, and commercial which focus on quotas and recreational plan that would result in a reduction in landings to calculate the different sector measures, we developed potential total allowable catch of sandbar sharks annual catch limits. These sector annual stand-alone alternatives for pelagic and from 220 to 178 mt ww could have catch limits are currently in draft and bottom longline effort modifications or significant economic impacts to their calculation depends on the amount controls. These alternatives contain fishermen participating in the shark calculated for the total allowable catch. independent measures to modify and/or research fishery. If fishermen feel the Thus, we analyze a range of sector establish time/area closures, bycatch economic impacts are sufficiently annual catch limits dependent on the caps, and restrictions within the shark negative, they are less likely to total allowable catch. research fishery. Many of these effort participate in the shark research fishery Based on comments received during modification alternatives are designed which, in turn, would likely reduce the scoping, on the predraft, and on our to reduce fishing mortality of dusky ability of the Agency to both collect notice considering the addition of Gulf sharks, a species that has been biological and other data for stock of Mexico blacktip shark, we prohibited from commercial and assessments from the research fishery determined the scope of significant recreational retention since 2000, but and monitor the status of sandbar and issues of concern that would be was still determined to be overfished other sharks. Furthermore, we anticipate addressed in this draft amendment. The and experiencing overfishing. For that the other measures proposed, such objectives in the draft amendment and details regarding all the alternatives as modifications to the recreational this proposed rule are driven by considered and their potential impacts, minimum size and new or expanded statutory mandates under the please see draft Amendment 5. A time/area closures, would likely further Magnuson-Stevens Act, such as summary of the alternatives and their reduce fishing mortality of sandbar rebuilding overfished sandbar, dusky, expected impact is found below. The sharks beyond the reductions scalloped hammerhead, and Atlantic proposed measures in this rule are the considered in the assessment, and that blacknose shark stocks, and ending preferred alternatives in draft these reductions will likely provide overfishing of dusky, scalloped Amendment 5. assurances of meeting or reducing the hammerhead, and Atlantic blacknose It is important to note that while the current rebuilding timeframe. After sharks. The specific goals and objectives considering this information, we are of the draft amendment and proposed alternatives could affect all shark fishing, this proposed rule and the draft maintaining the current sandbar shark rule are: (1) To end overfishing and total allowable catch of 220 mt ww and achieve optimum yield for dusky, Amendment 5 do not propose changes the current sandbar shark rebuilding scalloped hammerhead, and Atlantic to the current total allowable catch or plan including regulations prohibiting blacknose sharks; (2) to implement a commercial quota for sandbar sharks. possession of sandbar sharks in rebuilding plan for scalloped According to the 2010/2011 stock commercial and recreational shark hammerhead and Atlantic blacknose assessment, current management fisheries and allowing retention only in sharks to ensure that fishing mortality measures implemented in Amendment a shark research fishery. levels for both species are maintained at 2 to the 2006 Consolidated HMS FMP in or below levels that would result in a 2008 appear to have stopped overfishing In addition to the management 70-percent probability of rebuilding in on sandbar sharks. Additionally, measures considered in this proposed the timeframe recommended by the according to the most recent stock action and below, we are also proposing assessments; (3) to modify the current assessment, the sandbar shark stock several minor changes in the regulations rebuilding plan for dusky sharks to status is improving, and the current for corrective or clarification purposes. ensure that fishing mortality levels for rebuilding timeframe, with the 2008 The proposed changes are not expected dusky sharks are maintained at or below total allowable catch of 220 metric tons to have any ecological or economic levels that would result in a 70-percent (mt) whole weight (ww) (158.3 mt impacts and do not impose any new probability of rebuilding in the dressed weight (dw)), provides a greater requirements on the regulated timeframe recommended by the than 70-percent probability of community or require fishermen to assessment; (4) to maintain the rebuilding by 2070. Having a 70-percent change their actions to comply with the rebuilding plan for sandbar sharks to probability of rebuilding is the level of regulations. These administrative ensure a 70-percent probability of success for rebuilding of sharks that was changes are: (1) The addition of a rebuilding in the timeframe established in the 1999 FMP for Atlantic definition for ‘‘fork length’’; (2) an recommended by the assessment; and Tunas, Swordfish, and Sharks and update to the permit Web page and (5) to achieve optimum yield and carried over in the 2006 Consolidated name of the reporting system at provide an opportunity for the HMS FMP. The recent stock assessment § 635.5(c)(1); (3) the deletion of sustainable harvest of Gulf of Mexico also indicates that reducing the total incorrect text referring to swordfish blacknose, Gulf of Mexico blacktip allowable catch from the current 220 to permits in a sentence regarding tunas at sharks, and other sharks, as appropriate. 178 mt ww (128 mt dw) would provide § 635.20(a); (4) a correction changing the To meet these objectives, we consider a 70-percent chance of rebuilding the term ‘‘NED closed area’’ to ‘‘NED a range of alternatives for several stock by the year 2066, a reduction of restricted area’’ at § 635.21(c)(5)(iii)(C);

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(5) the removal of smoothhound shark for scalloped hammerhead, Atlantic participants typically target larger language at § 635.24(a)(7) that blacknose, Gulf of Mexico blacknose, sharks and the sharks many incorrectly remained after the final rule and Gulf of Mexico blacktip sharks. It tournaments target, such as shortfin (November 10, 2011, 76 FR 70064) also would also create regional mako, blue, and thresher, grow to larger delaying the effectiveness of the commercial quotas for all hammerheads than 96 inches FL. Neutral smoothhound measures indefinitely; (6) combined, blacknose, non-blacknose socioeconomic impacts are expected for the removal of language at SCS, and ‘‘aggregated LCS,’’ and fishermen targeting the newly § 635.27(b)(1)(iv)(C) that required species-specific commercial quotas for configured ‘‘aggregated LCS’’ and non- landings reported by dealers located in blacknose and Gulf of Mexico blacktip blacknose SCS groups since the new certain areas to be counted against the sharks. Furthermore, certain quota proposed quotas are based on the regional quota where the dealer is would be linked to prevent overfishing, average landings for each species. Quota located. Measures recently put in place and there are multiple recreational linkages would affect the socioeconomic in the electronic dealer reporting rule measures that would be implemented, impacts based on the fishing rate of each (August 8, 2012, 77 FR 47303) allow including increasing the minimum size linked shark quota. For example, the dealers to report and to count landed and requiring non-tournament reporting Preferred Alternative Suite A2 proposes fish against the appropriate quota of the of hammerhead sharks. The details and to link regional hammerhead shark and region where the fish was caught; and impacts of each of these measures are aggregated LCS quotas so that the two (7) in Table 1 of Appendix A, a described below, starting with impacts quotas will open and close together. If correction to the scientific name of of the alternative as a whole followed by fishermen fill both quotas at about the Atlantic angel sharks along with a the impacts of the alternative on each of same rate, there will be little or no removal of the headings ‘‘ridgeback’’ the seven topics in the Alternative unutilized quota. If, however, one or the and ‘‘non-ridgeback sharks’’ since, with Suite. other is filled at a much faster rate than the proposed changes in this rule, those Overall, Preferred Alternative Suite the other and both quotas close, there terms are no longer used. Additionally, A2 is expected to have direct, moderate, could be quota available that otherwise to accommodate the changes being beneficial ecological impacts in the could have been harvested and sold by proposed and to more clearly organize short- and long-term as these measures fishermen. When we compare the the regulations § 635.27(b) has been in the Atlantic shark fisheries would socioeconomic impacts of Preferred reorganized. Changes to the operative end overfishing and rebuild the stocks. Alternative Suite A2 to the other text are minimal and include: removing These impacts would mostly affect Alternative Suites, this Alternative Suite language and sentences that refer to text scalloped hammerhead and blacknose would cause fewer impacts overall to that will be expired before this rule is sharks, because the quotas for those fishermen. For this reason and the finalized and removing terms such as species would be reduced slightly. The ecological reasons stated above, we ‘‘non-sandbar LCS’’ that would no quota linkages between species and prefer this Alternative Suite at this time. longer be operable based on the species groups would ensure that 1. Scalloped Hammerhead Sharks proposed changes in this rule. overfishing ends because shark species that are undergoing rebuilding would Under Preferred Alternative Suite A2, Summary of the Alternatives not be caught as bycatch in other shark scalloped, smooth, and great Considered Regarding Total Allowable fisheries once the directed quota hammerhead sharks (hammerhead Catches, Commercial Quotas, and category has been closed. These sharks) would be removed from what is Recreational Measures management measures would cause now the ‘‘non-sandbar LCS’’ complex, As described above, because many of neutral indirect impacts in the short- and separate Atlantic and Gulf of the species-specific total allowable and long-term since fishermen would Mexico hammerhead shark quotas catch, commercial quota, and not be expected to redirect fishing would be established. To calculate the recreational measures are interlinked, pressure on other species. The Atlantic and Gulf of Mexico these alternatives are arranged in groups cumulative direct and indirect impacts hammerhead shark quotas, we would of Alternative Suites. We considered on essential fish habitat, predator/prey estimate the maximum sustainable level five Alternative Suites that were chosen relationships, and protected resources of scalloped hammerhead shark to meet the objectives of the rulemaking would be neutral for the short- and long- commercial landings by using the total consistent with the Magnuson-Stevens term because commercial quotas would allowable catch calculated in the 2009 Act, the 2006 Consolidated HMS FMP be similar to or reduced slightly stock assessment and all sources of and its amendments, and other compared to current levels and fishing scalloped hammerhead mortality requirements. Each Alternative Suite pressure is not expected to change. (including recreational landings, analyzes certain management actions Overall, Preferred Alternative Suite commercial discards, and research under seven different topics including: A2 would likely have direct short- and mortality). We would then split this Scalloped hammerhead measures, large long-term minor adverse socioeconomic maximum sustainable level of scalloped coastal shark (LCS) measures, blacktip impacts. These impacts would mostly hammerhead shark commercial landings measures, blacknose measures, non- affect fishermen targeting scalloped between each region, and make it blacknose small coastal shark (SCS) hammerhead and blacknose sharks, applicable to scalloped, smooth, and measures, quota linkage measures, and because those quotas for those species great hammerhead sharks. As a result, recreational measures. would be reduced. Fishermen are likely we are proposing that the total Atlantic to adapt to the new regulations by and Gulf of Mexico commercial A. Analyses of the Proposed Alternative fishing in other fisheries, or changing hammerhead shark quota would be 52.2 Suite their fishing habitats. Recreational mt dw (115,076 lb dw). This quota We are proposing the management management measures would increase would be split between the two regions measures in Preferred Alternative Suite the size limit and would require using the average percentage of A2, the Preferred Alternative Suite in fishermen to catch and release sharks hammerhead sharks landed in each the draft Amendment 5. Preferred (rather than land them), although region from 2008 to 2011, or 54.2 Alternative Suite A2 would establish tournament participants should not be percent for the Atlantic region and 45.8 species-specific total allowable catches impacted because tournament percent for the Gulf of Mexico region.

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This action would have short- and Atlantic (62,390 lb of meat, 3,120 lb of and landings would be capped at recent long-term direct, moderate, beneficial fins) and reduced by $928 to $52,690 in levels. For these reasons, short- and ecological impacts for the following the Gulf of Mexico (52,690 lb of meat, long-term direct ecological impacts reasons. A separate hammerhead shark 2,634 lb of fins), assuming the same ex- resulting from this portion of Preferred quota in each region would allow us to vessel values and fin-to-carcass ratio. Alternative Suite A2 are expected to be more precisely monitor commercial These reductions in revenue would neutral. Similarly, the short- and long- landings of the species to keep mortality negatively impact fishermen in the term direct socioeconomic impacts within the recommended total allowable directed and incidental hammerhead resulting from this portion of Preferred catch in the stock assessment and to shark fishery but not to a great extent. Alternative Suite A2 are expected to be rebuild within the parameters set by the Additionally, hammerhead sharks neutral. We do not expect any rebuilding plan. Additionally, including species rarely make up a significant additional ecological or socioeconomic all three large hammerhead species portion of the catch. Therefore, short- impacts to occur as the result of the (scalloped, great, and smooth and long-term direct minor adverse measures in this Alternative Suite. socioeconomic impacts are expected. hammerhead sharks) under the same 3. Blacktip Sharks quota would prevent fishing in excess of 2. Large Coastal Shark Complex the quota that could occur as a result of Under Preferred Alternative Suite A2, species identification problems. The Under Preferred Alternative Suite A2, blacktip sharks would be removed from three large hammerhead species can be species formerly grouped in Atlantic the non-sandbar LCS quota complex in difficult to differentiate, particularly and Gulf of Mexico non-sandbar LCS the Gulf of Mexico and a separate when dressed with the head removed. complexes would be re-grouped. Some blacktip quota would be established Including all three species under one species now would be addressed along with a new ‘‘aggregated LCS’’ quota is proposed, because, otherwise, individually while others would commercial quota. The assessment of scalloped hammerhead sharks that are continue to be managed within a newly- Gulf of Mexico blacktip sharks was mistakenly identified as one of the other configured and re-named complex. In recently completed and we adopt its large hammerhead species could the Atlantic, all three hammerhead results as final in this proposed rule. improperly be reported under the LCS sharks (scalloped, smooth, and great The assessment and the projections quota. Including all three species in one hammerhead sharks) would be removed completed by the Southeast Fisheries quota will therefore enable us to more from the Atlantic non-sandbar LCS Science Center indicate that the Gulf of quota and a separate Atlantic Mexico blacktip shark stock is not effectively monitor commercial landings hammerhead shark quota would be overfished and overfishing is not of hammerhead sharks and will provide established. The methodology for occurring, that current removal rates are additional ecological benefits for the establishing the Atlantic hammerhead sustainable and are unlikely to lead to species by better tracking the shark quota is outlined above. After an overfished stock by 2040, and that populations and more carefully removing hammerhead sharks, the higher levels of removal are unlikely to enforcing the quota limits. Preferred sharks remaining from the Atlantic non- result in an overfished stock. Based on Alternative Suite A2 would cause sandbar LCS quota would be renamed this information, we would establish a neutral direct and indirect impacts on the ‘‘Atlantic Aggregated LCS quota’’ total allowable catch based on current essential fish habitat, predator/prey and would include blacktip, bull, sustainable levels of catch. This total relationships, and protected resources lemon, nurse, silky, spinner, and tiger allowable catch would be 413.4 mt dw in the short- and long-term because the sharks. Using the methodology outlined and would be calculated by summing all changed hammerhead shark complex in draft Amendment 5, under Preferred of the sources of mortality (recreational and quota should not increase fishing Alternative Suite A2, the Atlantic landings, commercial discards, and pressure. Aggregated LCS commercial quota research set-aside mortality) and the This action would have short- and would be 168.2 mt dw. For the Gulf of commercial quota. The commercial long-term direct minor adverse Mexico region, blacktip sharks as well quota would be calculated by taking the socioeconomic impacts due to the as all three hammerhead sharks proportion of current Gulf of Mexico reduction in hammerhead shark quotas. (scalloped, smooth, and great blacktip shark landings that make up From 2008 through 2011, the data hammerhead sharks) would be removed the Gulf of Mexico non-sandbar LCS indicate that fishermen caught and sold from the current Gulf of Mexico non- quota multiplied by the Gulf of Mexico an annual average 63,404 lb dw of sandbar LCS complex, and the complex, non-sandbar LCS quota that will be in hammerhead sharks in the Atlantic and composed of the remaining species, effect in 2013. This would result in a 53,613 lb dw in the Gulf of Mexico. would be renamed the ‘‘Gulf of Mexico commercial quota of 256.7 mt dw Under Preferred Alternative Suite A2, aggregated LCS.’’ In addition, a separate (565,921 lb dw). harvest of hammerhead sharks would be quota would be established for both Neutral short- and long-term direct limited to 62,371 lb dw in the Atlantic blacktip sharks and hammerhead impacts would be expected under and 52,705 lb dw in the Gulf of Mexico. sharks. The Gulf of Mexico Aggregated Alternative Suite A2, the preferred Using the ex-vessel prices described in LCS would include bull, lemon, nurse, alternative, as overfishing is not the DEIS under Alternative Suite A1 silky, spinner, and tiger sharks. Using occurring and commercial landings and assuming a fin-to-carcass ratio of 5 the methodology described in the draft would be capped at current fishing percent, this would result in the Amendment 5, under Preferred levels. Based on the stock assessment, hammerhead fishery having an average Alternative Suite A2, the Gulf of Mexico this alternative would cause neutral annual ex-vessel value of $50,721 in the aggregated LCS commercial quota direct and indirect impacts on EFH, Atlantic (63,404 lb of meat, 3,170 lb of would be 157.9 mt dw. predator/prey relationships, and fins) and $53,618 in the Gulf of Mexico The aggregated LCS quota would be protected resources in the short- and (53,613 lb of meat, 2,681 lb of fins). based on average annual landings of the long-term because fishing pressure Under the quotas proposed under remaining species. Therefore, those would be similar to current levels and Preferred Alternative Suite A2, ex-vessel species comprising the aggregated LCS is not anticipated to change. hammerhead shark revenue would be management groups would not This alternative suite’s proposed reduced by $809 to $49,912 in the experience a change in fishing pressure, blacktip shark measure is likely to result

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in short- and long-term direct commercial fishery and average Atlantic blacknose shark stock is socioeconomic neutral impacts. The recreational and discard mortality since overfished with overfishing occurring, quota of 256.7 mt dw (565,921 lb dw) the implementation of blacknose shark while the Gulf of Mexico stock status is of blacktip sharks is representative of measures from Amendment 3 to the unknown. Projections of the base model the current blacktip shark landings 2006 Consolidated HMS Fishery FMP in indicated that the Atlantic stock could percentage applied to the 2013 Gulf of 2010. Amendment 3 removed blacknose rebuild by 2043 with a total allowable Mexico non-sandbar LCS quota (see sharks from the SCS quota and created catch of 7,300 blacknose sharks. For the draft Amendment 5 for further details). a blacknose shark-specific quota of 19.9 Gulf of Mexico blacknose shark stock, Based on current average annual mt dw (43,872 lb dw) for both regions. we would use a total allowable catch of landings, the Gulf of Mexico blacktip Also, the blacknose shark and non- 17,802 blacknose sharks, which was shark fishery has average annual blacknose SCS quotas were linked, so if determined by using the average revenues of $650,809 across the whole either the blacknose shark quota or non- mortality of blacknose sharks since fishery (2008–2011 median ex-vessel blacknose SCS quota (488,540 lb dw; Amendment 3 as well as commercial values of $0.40 for meat and $15for fins, 221.6 mt dw) reaches 80 percent, both landings from 2011. Preferred based on a 5 percent fin-to-carcass fisheries close for the rest of the season. Alternative Suite A2 would cause ratio). Given the current stock status, The reduced quotas and quota linkage neutral direct and indirect impacts on fishermen would likely continue to changed the fishery as fishermen began essential fish habitat, predator/prey realize this revenue, fishery-wide. avoiding blacknose sharks to ensure that relationships, and protected resources Therefore, short- and long-term direct the larger non-blacknose SCS quota in the short- and long-term because the socioeconomic impacts are expected to remained open. The 2011 commercial fishery would not change. be neutral. mortality was used to calculate the total This alternative would decrease the blacknose shark quotas overall in each 4. Blacknose Sharks allowable catch instead of average commercial mortality since Amendment region. In the Atlantic region, blacknose In 2010, Amendment 3 to the 2006 3 was implemented because of a shark landings would be reduced by 61 Consolidated HMS FMP (Amendment 3) shortened 2010 fishing season due to percent to allow for a total allowable removed blacknose sharks from the SCS the implementation of Amendment 3 catch of 7,300 blacknose sharks complex and established a separate (season opened on June 1, 2010) and consistent with the assessment. The quota for blacknose sharks that covered fishing restrictions due to the Deepwater new commercial quota for the Atlantic both the Atlantic and Gulf of Mexico Horizon/BP oil spill. On May 11, 2010, blacknose sharks would be 18.0 mt dw regions. Preferred Alternative Suite A2 we issued an emergency rule to close (39,749 lb dw) under Preferred would create separate commercial portions of the Gulf of Mexico Exclusive Alternative Suite A2. Average annual quotas for Atlantic and Gulf of Mexico Economic Zone to all fishing, in order gross revenues for the blacknose shark blacknose sharks based on the recent to respond to the evolving nature of the landings for the Atlantic region would blacknose assessments conducted under Deepwater Horizon/BP oil spill in the decrease by $3,268 from $58,122 under the Southeast, Data, Assessment and Gulf of Mexico (75 FR 27217). Thus, a the No Action alternative to $54,854 Review 21 process, which determined large portion of the fishing grounds for under Preferred Alternative Suite A2. that two separate stocks exist (Atlantic blacknose and non-blacknose SCS in the We anticipate these directed and and Gulf of Mexico). The Atlantic Gulf of Mexico, whose commercial incidental shark permit holders would commercial quota would be derived experience minor direct adverse fishing season opened on June 1, 2010, from the total allowable catch of 7,300 socioeconomic impacts in the short- and were closed for most of the 2010 blacknose sharks, or 21.2 mt dw, that long-term as blacknose sharks are not commercial fishing season. Using 2011 was specified in the stock assessment. the targeted shark species for SCS commercial landings of blacknose Within the total allowable catch of 21.2 fishermen. mt dw, all of the sources of mortality sharks in the Gulf of Mexico, the new For the Gulf of Mexico, we would (recreational landings, commercial Gulf of Mexico blacknose shark implement a blacknose shark quota that discards, and research set-aside commercial quota would be 2.0 mt dw is equal to the 2011 commercial mortality) would be summed and (4,513 lb dw). Establishing this total landings. The new quota would be 2.0 subtracted from the total allowable allowable catch would account for the mt dw (4,513 lb dw) under this catch to calculate the commercial quota blacknose shark mortality that occurs as alternative. This would cause a minor of 18 mt dw (39,749 lb dw). bycatch in the shrimp trawl and reef increase to the average annual gross The Southeast Data, Assessment, and fish fisheries in the Gulf of Mexico revenues for the blacknose shark Review 21 Review Panel did not accept region. Since the Gulf of Mexico Fishery landings for the Gulf of Mexico region the Gulf of Mexico stock assessment for Management Council manages the from $3,273 under the No Action blacknose sharks, and therefore, we did shrimp trawl and reef fish fisheries, we alternative to $5,650 under Preferred not receive a total allowable catch would continue to work with the Gulf Alternative Suite A2. We anticipate recommendation. Therefore, we of Mexico Fishery Management Council these directed and incidental shark determined that the stock status for the to establish bycatch reduction methods, permit holders would experience Gulf of Mexico blacknose shark stock is as appropriate, to reduce mortality in neutral direct socioeconomic impacts in unknown (76 FR 62331; October 7, the shrimp trawl and reef fish fisheries. the short- and long-term since the new 2011). As such, we explored how to Preferred Alternative Suite A2 is Gulf of Mexico blacknose shark quota calculate a Gulf of Mexico blacknose anticipated to have minor, beneficial would be consistent with current shark total allowable catch that would ecological impacts for blacknose sharks landings. include all commercial and recreational as it would separate blacknose sharks Under Preferred Alternative Suite A2, landings and any dead discards in all into two separate regions (Atlantic we anticipate that there would be direct fisheries that interact with Gulf of Ocean and Gulf of Mexico) as moderate adverse socioeconomic Mexico blacknose sharks. A total recommended in the Southeast Data, impacts in the short-term from the allowable catch of 34.9 mt dw for Assessment and Review 21 stock proposed quotas under this Alternative blacknose sharks was calculated by assessment and reduce fishing mortality Suite. In the short-term, lost revenues summing mortality from the 2011 based on the total allowable catch. The would be moderate for the 22 directed

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shark permit and 3 incidental shark regional quotas and restrict fishing SCS product if fishing effort increases permit holders that land blacknose mortality below the total allowable for non-blacknose SCS. Currently, the sharks in the Atlantic region, and the 8 catch established for SCS in the last fishery never reaches the allowable directed shark and the 2 incidental stock assessment for those species. quota, but that could change with a shark permits that land blacknose Currently, there is one quota for non- smaller regional quota and if fishermen sharks in the Gulf of Mexico. Over the blacknose SCS in both the Atlantic and are displaced from other fisheries. long-term, the socioeconomic impact Gulf of Mexico, and, according to 6. Quota Linkages would be minor, as the fishermen are landings reports from 2008 through likely to adapt to the new regulations by 2011, fishing pressure for non-blacknose Under Preferred Alternative Suite A2, fishing in other fisheries, or change their SCS is higher in the Atlantic region. several quota linkages would be fishing habitats. The indirect Over time, this could cause implemented to prevent exceeding the socioeconomic impacts from Preferred unsustainable fishing pressure on non- newly established quotas. Generally, Alternative Suite A2 would be adverse, blacknose SCS in the Atlantic region. two or more shark species with separate but minor in the short-term, as the However, regional quotas would cap quotas are caught together on the same anticipated reduction in blacknose fishing pressure at levels since set or trip. If the quota for one of these landings would result in a Amendment 3 was implemented and species has been filled and closed, that corresponding loss of revenue for a prevent overfishing. Since fishing species could still be caught in other small number of businesses as pressure would be similar to current directed shark fisheries as bycatch, blacknose shark product does not make levels, the impacts on essential fish possibly resulting in mortality and up a large part of the market. In the habitat, predator/prey relationships, and negating some of the conservation long-term, these indirect impacts would protected resources would be neutral. benefit of quota closures. Preferred be neutral as businesses would be Based on the landings data, the non- Alternative Suite A2 would link several expected to find other sources of blacknose SCS quota in the Atlantic quotas to ensure that the quota for shark revenue to augment the losses from the would be 197.9 mt dw (436,243 lb dw) species that are caught together open reduced quotas. and the Gulf of Mexico quota would be and close at the same time. In the 23.7 mt dw (52,296 lb dw). In the Atlantic, the hammerhead shark and 5. Non-Blacknose Small Coastal Sharks Atlantic, an average of approximately 33 aggregated LCS quotas would be linked. Preferred Alternative Suite A2 would vessels with directed shark permits These two quotas would open at the separate the non-blacknose SCS quota landed blacknose sharks, while same time and both quotas would close into two separate regions (Atlantic approximately 10 vessels with when landings of either hammerhead Ocean and Gulf of Mexico) based on the incidental shark permits landed non- sharks or aggregated LCS reach, or are percentage of regional landings since blacknose SCS. The average annual expected to reach, 80 percent of the implementation of the Amendment 3 gross revenues from Atlantic non- quota. Opening and closing these two blacknose shark quotas. As described blacknose SCS meat were $314,095 and quotas concurrently would strengthen above, blacknose sharks were removed average annual gross revenues for the conservation benefits of either from the SCS complex and a non- Atlantic non-blacknose SCS fins were group’s quota closure. Similarly, in the blacknose shark-specific quota of 221.6 $261,746, making total average annual Gulf of Mexico, hammerhead sharks, mt dw (488,540 lb dw) was created for gross revenues for blacknose shark blacktip sharks, and the aggregated LCS both regions. Blacknose shark and non- landings for the entire fishery $575,841. quota would open at the same time and blacknose SCS quotas were also linked In the Gulf of Mexico, an average of all three quotas would close when so that if either the non-blacknose SCS approximately nine vessels with landings of any one of the three quotas quota or blacknose shark quota reaches directed shark permits landed blacknose reach, or are expected to reach, 80 80 percent, both fisheries close for the sharks, while approximately three percent. Also, linkage of the blacknose rest of the fishing year. The reduced vessels with incidental shark permits and non-blacknose SCS regional quotas quotas and quota linkage changed how landed non-blacknose SCS since would be implemented under this the SCS fishery operated as fishermen Amendment 3. The average annual gross alternative. The Atlantic blacknose began to specifically avoid blacknose revenues from Gulf of Mexico non- shark quota would be linked to the sharks to ensure that the larger non- blacknose SCS meat were $31,378 and Atlantic non-blacknose SCS quota, and blacknose SCS quota would remain average annual gross revenues for the Gulf of Mexico blacknose shark open. According to 2010 and 2011 Atlantic non-blacknose SCS fins were quota would be linked to the Gulf of dealer data, an average of 89.3 percent $39,222, making total average annual Mexico non-blacknose SCS quota. of non-blacknose landings occurred in gross revenues for blacknose shark We would also establish a mechanism the Atlantic region (94.2 and 85.2 landings for the entire fishery $70,600. to allow inseason and annual regional percent for 2010 and 2011, Under the Preferred Alternative Suite quota transfers between species or respectively). The 2010 and 2011 Gulf of A2, there would be neutral direct and species groups where the quota was Mexico non-blacknose SCS landings indirect socioeconomic impacts to split regionally for management were 5.8 and 14.8 percent, respectively, directed and incidental shark permit purposes and not as a result of a stock for an average of 10.7 percent for total holders as the average annual gross assessment. At this time, only the Gulf of Mexico non-blacknose SCS revenues from non-blacknose SCS Atlantic and Gulf of Mexico non- landings. Based on these averages, the landings would be the same as the blacknose SCS and the Atlantic and new non-blacknose SCS quota in the status quo in the short- and long-term. Gulf of Mexico hammerhead regional Atlantic would be 197.9 mt dw (436,290 Fishermen and shark dealers would be quotas meet this criterion. Monitoring lb dw), while the Gulf of Mexico quota expected to operate in the same manner total mortality for these quotas, not would be 23.7 mt dw (52,249 lb dw). as the status quo in the short- term. regional-specific mortality, is necessary This alternative is anticipated to have However, this Alternative Suite could for conservation purposes. Providing direct, minor beneficial ecological have minor negative direct and indirect this regional quota transfer flexibility impacts for Atlantic sharpnose, socioeconomic impacts on fishermen would facilitate overall quota bonnethead, and finetooth sharks in the and shark dealers and associated shark management while having no negative short- and long-term as it would create businesses that deal with non-blacknose conservation impacts on stocks where

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regional mortality is not a concern for determined total allowable catch for size was established based on the size stock conservation. Before making any each species and complex. at maturity of sandbar sharks. This new inseason quota transfer, we would The quota linkages proposed under size limit is based on the best available consider certain criteria and other this Alternative Suite could have short- scientific information, which reported relevant factors described in and long-term direct moderate adverse female dusky shark size-at-maturity to § 635.27(b)(2)(iii)(A) through socioeconomic impacts. Quota linkages be 235 cm fork length (approximately 93 (b)(2)(iii)(H). are explicitly designed to concurrently inches). Since 93 inches does not equate The quota linkages proposed under close multiple shark quotas, regardless to a round number of feet (93 inches = this Alternative Suite would be of whether all the linked quotas are 7.75 feet), we are proposing to round up expected to have short- and long-term filled. This provides protection against the minimum size to the whole foot, direct moderate beneficial ecological incidental capture for species for which resulting in a proposed minimum size of impacts. Linking quotas of species that the quota has been reached, but it can 96 inches FL (8 feet). Dusky sharks have are often caught together on the same set also preclude fishermen from harvesting been prohibited in the recreational or trip can prevent incidental catch of the entirety of each of the linked quotas. fishery since 1999, but are still landed sharks caught in other directed shark A quantitative analysis of the economic due to misidentification issues. To fisheries as bycatch, possibly resulting impact is not possible without address the misidentification issues, we in mortality and negating some of the comparing the rates of hammerhead would increase outreach to the conservation benefit of quota closures. shark, blacktip shark, and aggregated recreational community to increase LCS catch, and without knowing the For quotas that are linked, the fisheries awareness of current regulations and extent to which fishermen can avoid would open and close together. In the shark identification, specifically for hammerhead sharks. However, a Atlantic, the hammerhead shark and dusky and sandbar sharks which are qualitative analysis can provide insight aggregated LCS quotas would be linked prohibited, and for the three species of on possible adverse socioeconomic as would the non-blacknose SCS and hammerhead sharks (great, scalloped, impacts. Under Preferred Alternative blacknose shark quotas. If, for example, and smooth). Suite A2, both the hammerhead shark This increased recreational size limit the Atlantic the hammerhead quota and aggregated LCS quotas would close will also help reduce blacknose, closes based on landings information, when landings of either reaches or is sandbar, and scalloped hammerhead the Atlantic aggregated LCS quota expected to reach 80 percent of the shark catches because fishermen usually would close as well, preventing quota. If hammerhead shark landings do not catch sharks that large additional incidental hammerhead reach 80 percent of the hammerhead frequently. Blacknose shark retention in mortality from occurring in the directed shark quota, the aggregated LCS fishery the recreational fishery effectively aggregated LCS fishery. Similarly, if the would close, regardless of what portion would be eliminated with a 96-inch FL aggregated LCS quota closes, a of the aggregated LCS quota has been recreational size limit. Blacknose sharks hammerhead quota closure would filled. If the entire Aggregate LCS quota rarely reach a size greater than the prevent incidental aggregated LCS has not been harvested, the fishery current Federal minimum size of 54- landings in the directed hammerhead would not realize the full level of inch FL; therefore, the 96-inch FL size fishery, to the extent that a directed revenues possible under the established limit creates a de facto retention hammerhead fishery occurs. In the Gulf quota. A similar situation could occur in prohibition of blacknose sharks in of Mexico, the blacktip, hammerhead, the Gulf of Mexico under Preferred Federal waters. In the draft Amendment and aggregated LCS quota would be Alternative Suite A2 where both the 3, we proposed prohibiting retention of linked as would the non-blacknose SCS hammerhead shark and blacktip shark blacknose sharks in the recreational and blacknose shark quotas. In addition, quotas would be linked to the fishery. During the public comment we would allow inseason regional quota aggregated LCS quota. period for Amendment 3, we received transfers between regions for species or The blacknose shark and non- comments that if we prohibited the management groups where the species blacknose SCS socioeconomic impacts retention of blacknose sharks in Federal are the same between regions and the would be the same as the aggregated waters, then states would also have to quota is split between regions for LCS since there would be similar implement the prohibition in state management purposes and not as a scenarios with the quota linkage by waters. The comments also stated that result of a stock assessment. At this species and region. In addition, we because some states have a well- time, only the hammerhead sharks and would allow inseason quota transfer managed blacknose recreational fishery the regional non-blacknose SCS meet between non-blacknose SCS regions. and conservation measures in place to this description; and therefore, we are This would have minor beneficial adequately protect this species in state proposing that only the hammerhead socioeconomic impacts for this fishery waters, prohibiting their retention is shark and non-blacknose SCS regional as the non-blacknose SCS quota would unnecessary. However, since we did not quotas can be transferred on an inseason not be the limiting factor. Consequently, prohibit blacknose sharks in basis between regions. Before making the quota linkages proposed under this Amendment 3, some states continued to any inseason quota transfer, we would Alternative Suite could have short- and allow recreational landings of blacknose consider certain criteria and other long-term direct moderate adverse sharks below the 54-inch FL in state relevant factors described in socioeconomic impacts. waters. Overfishing continued to occur § 635.27(b)(2)(iii)(A–H). This would on the Atlantic blacknose shark stock help ensure that the hammerhead shark 7. Recreational Measures based on the recent assessment, and we and non-blacknose SCS fisheries are not Under Preferred Alternative Suite A2, need to reduce the recreational limited by the smaller regional quotas. the minimum recreational size limit for mortality of blacknose sharks to meet All quota transfers would be announced sharks would increase from 54 to 96 rebuilding target for the established total in a Federal Register notice. These inches fork length (FL) (8 ft or 244 cm). allowable catch. measures would have direct, minor Currently, the recreational size limit for Like dusky sharks, recreational beneficial ecological impacts because authorized shark species (except for fishermen are not allowed to retain they provide additional protection Atlantic sharpnose and bonnethead sandbar sharks, but fishermen still land against exceeding the scientifically- sharks) is 54-inches FL. This minimum them due to misidentification. The

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larger size limit would reduce protected resources in the short- and impacts in the short-term since no recreational catches since sandbar long-term. action would be taken, but may result in sharks do not grow to 96 inches FL. We This alternative would result in direct moderate, adverse indirect impacts over plan to conduct outreach to the minor adverse socioeconomic impacts time due to the increasing decline of the recreational community to better inform for recreational fishermen in the short- scalloped hammerhead, dusky, and anglers of prohibited species as well as term due to the reduced incentive to Atlantic blacknose shark populations. identifying dusky and sandbar sharks. recreationally fish for sharks. However, Alternative Suite A1 would cause This increase in minimum size would management measures to address neutral direct and indirect impacts on also reduce scalloped hammerhead overfishing of dusky, sandbar, scalloped essential fish habitat, predator/prey sharks catches in the recreational hammerhead, and blacknose sharks are relationships, and protected resources fishery and help rebuild this overfished needed based on the stock assessments. in the short- and long-term no action stock. Female scalloped hammerhead Tournaments awarding points for sharks would be taken relative to the status sharks reach maturity at approximately are unlikely to be impacted by quo. 78-inches FL. The larger recreational implementing the 96 inch FL minimum Alternative Suite A1 would likely size limit would limit the retention of size. Tournament participants typically have direct neutral social and economic scalloped hammerhead sharks to mature target larger sharks and the sharks many impacts in the short-term because the individuals and help rebuild the stock tournaments target, such as shortfin fisheries would continue to operate as faster consistent with rebuilding goals. mako, blue, and thresher, grow to larger they currently do. In the long-term, it We are currently working on an than 96 inches FL. These measures could cause direct moderate adverse identification guide for all of the could change the way that the social and economic impacts because prohibited shark species to help with recreational shark fishery operates, overfished stocks would not rebuild and this outreach. This identification guide which could cause short-term moderate catches would decline. The decline in would complement the existing guide of adverse direct socioeconomic impacts. catches would lead to a moderate shark species that can be landed by Implementation of management reduction in sales and revenue. focusing on the species that cannot be measures that would significantly alter Additionally, Alternative Suite A1 landed. the way charter vessels operate, or would likely have neutral indirect short- In addition to the change in minimum reduce opportunity and demand for term socioeconomic impacts. Dealers size, we would require mandatory recreational shark fishing, could create and supporting businesses, such as bait adverse socioeconomic impacts. In the and tackle suppliers, would be unlikely reporting of all hammerhead sharks long-term, increased recreational to experience any impacts in the short- landed recreationally through the non- fisheries opportunities may result as term. In the long-term, catches of the tournament reporting system. The non- these measures end overfishing and overfished stocks would decline, and tournament reporting system was overfished stocks rebuild. minor negative socioeconomic impacts established to track the trips that would occur as dealers and supporting released (alive or dead) or retained B. Summary of the Other Alternative businesses would have to offset reduced bluefin tuna, blue marlin, white marlin, Suites Considered revenues from shark landings. For these roundscale spearfish, longbill spearfish, In addition to Preferred Alternative reasons, we do not prefer this sailfish, and swordfish. Fishermen can Suite A2, we considered four other Alternative Suite at this time. report online or over the phone. Alternative Suites ranging from status Alternative Suite A3 is similar to the Recreational fishermen who land quo or no action (Alternative Suite A1) proposed Preferred Alternative Suite A2 hammerhead sharks would need to to closing all shark fisheries (Alternative except we would not create regional submit similar information, thus Suite A5). Alternative Suite A1 is the hammerhead shark and non-blacknose providing us more timely and accurate No Action Alternative. Under this SCS quotas, there would be no quota estimates of recreational hammerhead alternative, we would maintain current linkage for the shark fisheries, and there landings. total allowable catches, commercial would be an increase in the recreational This alternative would have short- quotas, and recreational measures in all minimum size limit for only and long-term moderate, beneficial shark fisheries. Choosing this alternative hammerhead sharks. Specifically, ecological impacts on dusky, sandbar, would not end overfishing or rebuild Alternative Suite A3 would establish scalloped hammerhead, and blacknose overfished stocks. Taken as a whole, new species complexes by regions, sharks. Increasing the size limit, this alternative would have direct adjust LCS and SCS quotas, prohibit providing outreach material, and moderate, adverse ecological impacts in retention of commercial blacknose establishing mandatory reporting for the short-term since there would be no sharks in the Gulf of Mexico, and hammerhead sharks should reduce change to harvest levels in the Atlantic increase the hammerhead shark recreational catches and provide us shark fisheries and overfishing of minimum recreational size to 78″ FL. better and timelier estimates of scalloped hammerhead and blacknose This alternative would remove recreational ladings of hammerhead sharks would continue. This alternative hammerhead sharks from the non- sharks. There would be beneficial could result in direct significant, sandbar LCS complex to form a separate indirect ecological impacts since adverse long-term ecological impacts for non-regional quota of 52.2 mt dw, while increasing the size limit would reduce certain LCS and SCS, since this non-blacknose SCS regulations and the recreational catch of other shark alternative would result in continued quota would remain the same (221.6 mt species that do not grow larger than 96 overfishing of scalloped hammerhead, dw). This alternative would also create inches FL. Overall, the reductions in dusky, and Atlantic blacknose sharks, regional quotas for blacknose sharks as recreational mortality along with the which would lead to further stock well as remove blacktip sharks from the commercial management measures are decline of these species, and could Gulf of Mexico non-sandbar LCS expected to help rebuild the overfished increase fishing pressure on the other complex. Additionally, this alternative stocks. The increased recreational size LCS and SCS species as fishermen shift would reconfigure and rename the limit would cause neutral direct and their efforts to other species to make up species remaining in the non-sandbar indirect impacts on essential fish for the reduced catches. This alternative LCS complex as the ‘‘aggregated LCS’’ in habitat, predator/prey relationships, and would have indirect neutral ecological both the Atlantic and Gulf of Mexico

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regions. The new Gulf of Mexico base sharks since the increased size limit overfishing and rebuild the species), we quotas would be as follows: blacktip would result in more hammerhead do not prefer this Alternative Suite at sharks—380.7 mt dw; and non-sandbar sharks having to be released, and this time. LCS—157.3 mt dw. The new aggregated blacknose sharks would be prohibited We also considered Alternative Suite LCS complex in the Gulf of Mexico under this Alternative Suite. Neutral A4. This Alternative Suite is different region would consist of bull, lemon, socioeconomic impacts are expected for than the Proposed Alternative Suite A2 nurse, spinner, silky, and tiger sharks. fishermen targeting the aggregated LCS because it would establish regional In the Atlantic region, base quotas and non-blacknose SCS complexes since scalloped hammerhead shark quotas, would be as follows: Non-sandbar these management measures would establish regional aggregated LCS quotas LCS—168.2 mt dw; and blacknose maintain status quo in these fisheries. based on the largest landings, divide the sharks—18 mt dw. The new aggregated Furthermore, the lack of quota linkages non-blacknose SCS quota in half for LCS complex in the Atlantic would in Alternative Suite A3 would allow each region, and establish species- consist of blacktip, bull, lemon, nurse, fishermen to fully harvest all of the specific recreational shark quotas. spinner, silky, and tiger sharks. We quotas. This alternative would likely Specifically, Alternative Suite A4 would would need to prohibit the retention of have indirect short-term minor adverse establish new species complexes by blacknose sharks in the Gulf of Mexico socioeconomic impacts. The measures regions, adjust LCS and SCS quotas, region so we can meet the rebuilding in this Alternative Suite adjust quotas prohibit retention of commercial plan for this species. based on new scientific information and blacknose sharks in the Gulf of Mexico When taken as a whole, Alternative would impact shark landings. region, link appropriate quotas, and Suite A3 would have direct moderate, Consequently, dealers and supporting establish species-specific recreational beneficial ecological impacts in the businesses such as bait and tackle shark quotas. The alternative would short-term since changes to the Atlantic suppliers may experience minor adverse remove scalloped hammerhead sharks shark fisheries would help rebuild impacts in the short-term, but since they from the non-sandbar LCS complex to scalloped hammerhead and blacknose do not rely solely on the shark fishery form separate regional quotas, and shark stocks, but long-term impacts and buy from and sell to a variety of create regional quotas for blacknose and would be minor and adverse because fisheries, the impacts are expected to be non-blacknose SCS. Also, blacktip the absence of quota linkages could neutral in the long-term. The changes to sharks would be removed from the Gulf allow overfishing to continue through quotas would impact fishermen of Mexico non-sandbar LCS complex dead discards in other fisheries. The retaining sharks, but the changes are and the non-sandbar LCS complex indirect ecological impacts would be small enough that dealers and would be renamed ‘‘aggregated LCS’’ in neutral to essential fish habitat, supporting businesses are unlikely to both the Atlantic and Gulf of Mexico. predator/prey relationships, or experience impacts from this The new Gulf of Mexico base quotas protected resources because fishing Alternative Suite. While Alternative would be as follows: scalloped pressure is expected to remain near Suite A3 might have more beneficial hammerhead sharks 24.4 mt dw; current levels. Establishing a Gulf of direct socioeconomic impacts than the blacktip sharks 1,992.6 mt dw; non- Mexico blacktip shark total allowable proposed Preferred Alternative Suite sandbar LCS 185.2 mt dw; and non- catch at a level 30 percent greater than A2, the ecological impacts would be blacknose SCS 110.8 mt dw. The new the total allowable catch calculated in adverse and would not achieve the aggregated LCS complex in the Gulf of Mexico region would consist of bull, Alternative Suite 2 could increase shark rebuilding plan targets for these stocks. fishing effort and, as described above, lemon, nurse, spinner, silky, and tiger might have adverse ecological impacts Indirect short- and long-term sharks. In the Atlantic region, base on other shark stocks and other species. moderate beneficial socioeconomic quotas would be as follows: scalloped It is also uncertain what impact the impacts would likely result from this hammerhead sharks 27.8 mt dw; non- increase would have on the Gulf of Alternative Suite’s actions. The sandbar LCS 180.1 mt dw; blacknose Mexico shark stock because there is measures in this Alternative Suite adjust sharks 18 mt dw; and non-blacknose high degree of uncertainty associated quotas based on new scientific SCS 110.8 mt dw. The new aggregated with the projections, particularly since information and would impact shark LCS in the Atlantic region would these projections were not peer landings. Consequently, the increase in consist of blacktip, bull, lemon, nurse, reviewed as part of the Southeast Data, the commercial Gulf of Mexico blacktip spinner, silky, and tiger sharks. This Assessment and Review process. shark quota could result in short- and Alternative Suite would also link the Additionally, Alternative Suite A3 long-term beneficial economic impacts species within regional LCS and SCS would likely have direct short- and for dealers and supporting businesses quotas to prevent overfishing of one long-term moderate beneficial such as bait and tackle suppliers. The species while fishing for another socioeconomic impacts, mainly other changes to quotas (e.g., scalloped species/group continues. Under this resulting from the increase in Gulf of hammerhead, blacknose) would impact Alternative Suite, we would prohibit the Mexico blacktip quota. Adverse impacts fishermen retaining sharks, but the retention of blacknose sharks in the Gulf would mostly affect fishermen catching changes are small enough that dealers of Mexico to end overfishing and meet hammerhead and blacknose sharks. The and supporting businesses are unlikely the rebuilding plan target for this hammerhead shark quota would be to experience impacts from this species. based on the scalloped hammerhead alternative suite. This increase in the Considering all the ecological impacts shark total allowable catch and would Gulf of Mexico blacktip quota could for each species, complex, or issue as reduce all hammerhead shark landings. lead to increased revenues of $314,376 discussed above, when taken as a The blacknose shark quota in the when compared to the quota calculated whole, Alternative Suite A4 would Atlantic would be reduced, while the in Alternative Suite A2. Because of the likely have direct short- and long-term Gulf of Mexico blacknose shark uncertainty in the projections and minor beneficial ecological impacts. retention would be prohibited to meet because this Alternative Suite does not Overfishing on scalloped hammerhead the total allowable catch. Recreational have quota linkages that would prevent and Atlantic blacknose sharks would be management measures would affect quota exceedances from occurring (and addressed, and the rebuilding plans for fishermen who catch hammerhead thus would affect the ability to end these stocks would be implemented.

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However, only scalloped hammerhead potential for more adverse Suite A5 would have significant sharks would be included under the socioeconomic impacts if quotas are beneficial ecological impacts in the scalloped hammerhead total allowable exceeded in the future. Although this short- and long-term. Overfishing on catch, rather than all three large alternative suite would allow for the scalloped hammerhead and Atlantic hammerhead species as in Alternative highest Gulf of Mexico blacktip shark blacknose sharks would end, and Suites A2 and A3, possibly leading to commercial quota, as described above, rebuilding plan targets would be exceedances of scalloped hammerhead the stock assessment scientists could achieved. By preventing the landing of total allowable catch due to capture and not conclude with certainty that such a any sharks, except spiny dogfish, in the retention of scalloped hammerheads high level of catch would not result in Atlantic Ocean, including the Gulf of misidentified as other hammerhead overfishing. In addition to the Mexico and Caribbean Sea, we would species. Additionally, the Atlantic non- uncertainty in the model, the blacktip affect not only the species that are blacknose SCS commercial quota would shark quota proposed under this overfished, but all other shark species. be reduced. Indirect short- and long- alternative suite could lead to increased This Alternative Suite would cause an term ecological impacts resulting from bycatch of other species due to increase in the number of dead discards any of the Alternative Suite A4 actions increased fishing effort. of sharks that are caught as bycatch in would likely be neutral. Similarly, all Indirect short-term minor adverse other fisheries because none of those impacts on protected resources would socioeconomic impacts would likely sharks could be legally landed. Also, be neutral as well because the measures result from this Alternative Suite’s closing the recreational shark fishery in Alternative Suite A4 would be actions. The measures in this effectively would create a catch and unlikely to significantly alter effort in Alternative Suite adjust quotas based on release requirement for all Atlantic the Atlantic or Gulf of Mexico shark new scientific information and would sharks, except spiny dogfish, in the fisheries. Therefore, additional impacts impact shark landings. Consequently, recreational fishery and all tournaments to essential fish habitat, predator/prey dealers and supporting businesses such that have Atlantic shark prize relationships, or protected resources are as bait and tackle suppliers may categories. Indirect short- and long-term unlikely. Although this alternative suite experience minor adverse impacts in the ecological impacts resulting from any of would allow for the highest Gulf of short-term, but since they do not rely the Alternative Suite A5 actions would Mexico blacktip shark commercial solely on the shark fishery and buy from likely be significantly beneficial. These quota, it is based on base model and sell to a variety of fisheries, the measures could eliminate effort in the projections, which the NMFS scientists impacts are expected to be neutral in the Atlantic Ocean, including the Gulf of who participated in the stock long-term. The changes to quotas would Mexico and Caribbean Sea, shark assessment felt had a high degree of impact fishermen retaining sharks, but fisheries; therefore additional impacts to uncertainty, and, because these the changes are small enough that essential fish habitat, predator/prey projections were developed outside of dealers and supporting businesses are relationships, or protected resources are the standard Southeast Data, unlikely to experience impacts from this unlikely. This Alternative Suite would Assessment and Review process and Alternative Suite. In summary, this likely have direct short- and long-term were not been peer reviewed, they could Alternative Suite is less likely to end significant adverse socioeconomic not conclude with certainty that such a overfishing on scalloped hammerhead impacts because all recreational and high level of catch would not result in due to catch and misidentification as commercial shark fishing would be other hammerheads and because of the overfishing. Therefore, given the prohibited. Indirect short- and long-term administrative difficulties in uncertainty in the results of the socioeconomic impacts resulting from establishing and monitoring numerous projections at this level of catch, this this Alternative Suite’s actions would hammerhead species-specific alternative suite could lead to long-term likely be moderately adverse. The recreational quotas. Additionally, this adverse ecological impacts due to measures in this Alternative Suite Alternative Suite may not prevent overfishing if the projections were would shut down the commercial and overfishing on Gulf of Mexico blacktip overly optimistic. recreational shark fisheries, and dealers sharks and could increase fishing and supporting businesses such as bait Alternative Suite A4 would likely mortality of other sharks as bycatch. and tackle suppliers would likely be have direct short- and long-term minor Furthermore, while this Alternative adversely impacted due to decreased adverse socioeconomic impacts. These Suite might have minor adverse shark catches and sales. Because other impacts would mostly affect fishermen socioeconomic impacts, there is the alternatives should meet the objectives catching blacknose sharks. The potential for more adverse of this Amendment with less significant blacknose shark quota in the Atlantic socioeconomic impacts if quotas are adverse socioeconomic impacts, and would be reduced, while the Gulf of exceeded and stocks are prevented from because this Alternative Suite would Mexico blacknose shark retention would rebuilding it may become necessary to curtail data collection for future stock be prohibited to prevent exceedance of implement smaller quotas and more assessments, we do not prefer this the total allowable catch. Recreational strict retention limits. For all these Alternative Suite at this time. management measures would affect reasons, and because of the potential for fishermen who retain sharks since we additional adverse socioeconomic Summary of the Alternatives would implement species- and impacts if quotas are exceeded, we do Considered Regarding Pelagic and complex-specific quotas for the not prefer this Alternative Suite at this Bottom Longline Effort Modifications/ recreational fishery. Neutral time. Controls socioeconomic impacts are expected for The last Alternative Suite we Dusky sharks are overfished and recreational and commercial fishermen considered in this section is Alternative continue to experience overfishing, even targeting scalloped hammerhead sharks, Suite A5. Under this Alternative Suite, though they have been a prohibited aggregated LCS, and non-blacknose SCS all commercial and recreational shark shark species since 2000. Therefore, we as detailed in those sections of this fisheries, except spiny dogfish, in all are considering a number of Alternative Suite. While this alternative regions (the Atlantic Ocean including individually-assessed alternatives that suite might have minor adverse the Gulf of Mexico and Caribbean Sea) would address pelagic and bottom socioeconomic impacts, there is the would close. As a whole, Alternative longline fishing effort to further reduce

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interactions and fishing mortality of C. Summary of the Proposed Individual other bycatch, including protected dusky sharks, especially since dusky Alternatives resources. By limiting the size and sharks tend to have high at-vessel We are proposing three Alternatives duration of these hotspot closed areas, mortality rates on commercial fishing (Alternatives B3, B5, and B6) that would the Agency is attempting to minimize gear. Although these alternatives are modify pelagic and bottom longline any negative ecological impacts that mainly targeted at dusky sharks, they fishing effort. The first alternative is could occur if fishing effort redistributes should also help end overfishing on Alternative B3. Alternative B3 would to adjacent areas. The cumulative other shark species including scalloped identify discrete areas in space and time impact of combining the eight preferred hammerhead sharks and help rebuild where high dusky shark interactions hotspot closed areas for pelagic longline other species of sharks such as occurred (according to HMS logbook gear under Alternative B3 and assuming scalloped hammerhead and sandbar data from 2008–2010), and would redistribution of fishing effort would sharks. We chose to consider the prohibit pelagic longline fishing in these reduce the number of dusky shark interactions by 854 dusky sharks. This alternatives described in this section dusky shark ‘‘hotspot’’ areas by all U.S. represents a 49-percent reduction in the because they meet the objectives of this flagged-vessels permitted to fish for number of dusky shark interactions rulemaking consistent with the HMS. ‘‘Hotspot’’ areas were identified compared to current levels. If fishing Magnuson-Stevens Act, the 2006 by using Geographic Information effort were not redistributed, dusky Consolidated HMS FMP and its System software to plot the location and shark interactions would be reduced by amendments, and other requirements. timing of dusky shark interactions based 55-percent. Reducing dusky shark on latitude and longitude coordinates of Some of the alternatives are based on interactions to this extent would result individual sets made with pelagic current time/area closures while others in direct, moderate, beneficial long-term longline gear between 2008 and 2010. In would develop additional time/area ecological benefits for dusky shark closures. The first time/area closure in order to maximize the efficacy of populations consistent with stock the HMS regulations was implemented hotspot closed areas, areas were selected assessment recommendations to reduce in the 1999 FMP with the Northeastern based on the number and concentration fishing mortality by 62 percent in all U.S. closure off New Jersey in June to of interactions and the ability to fisheries. Short-term, moderate reduce bluefin tuna discards. Since delineate a simple polygon that would beneficial impacts for dusky sharks are then, additional closures have been encapsulate these interactions. Discrete, expected as well; however, it would implemented by us and the Regional identifiable areas with fishing effort that take time to see any impacts on the Fishery Management Councils that contributed to greater than 10 dusky dusky shark population. affect HMS fishermen. The goals of all shark interactions over the 3-year period The ecological impacts on 34 HMS of the HMS time/area closures are to: (1) were included for analysis. Areas with and non-HMS target species, prohibited Maximize the reduction in bycatch; (2) fewer than 10 dusky shark interactions species, and bycatch depends on the minimize the effects of any reduction in over the 3-year period were not species and whether or not interactions the target catch; and (3) consider included because they would not make increase or decrease after redistribution impacts on non-target HMS (e.g., bluefin a significant contribution to reducing of fishing effort as a result of the eight tuna, undersized swordfish) to dusky shark interactions. Furthermore, closures. See draft Amendment 5 for minimize or reduce non-target catch odd-shaped or excessively large tables summarizing the impacts of the levels, to the extent practicable. polygons were avoided in favor of more proposed closure for these individual discrete areas for shorter periods of time species, both with and without In looking at time/area closures, we to avoid significant disruptions to redistribution of fishing effort. analyzed various fishing data using two fishing activity while ensuring dusky Generally, we expect direct, moderate, different methodologies. One shark interactions are reduced. Using beneficial, short- and long-term methodology is to assume redistribution this methodology, a total of eight ecological impacts for protected sea of effort. Under this methodology, hotspot areas are proposed to be closed turtles because after redistributing fishing effort that occurred in an area to pelagic longline fishing. fishing effort to adjacent open areas, considered for closure is assumed to In draft Amendment 5, the eight interactions with sea turtles would move into areas that remain open. In hotspot closed areas are subdivided into decrease by three leatherback and 23 other words, we assumed all fishermen alternatives B3a through B3h. While loggerhead sea turtles. Given the would continue fishing in an open area draft Amendment 5 looks at the impact moderate direct impacts of most species, for the duration of the closure or would of each individual hotspot closed area, with the exception of dusky sharks, the sell their permits to other fishermen all of these hotspot closed areas are indirect impacts of Alternative B3 on who would continue fishing in the open included and proposed under ecosystem function and predator/prey areas. A second methodology is to Alternative B3 because their cumulative relationships are anticipated to be assume no redistribution of effort. reduction in dusky shark interactions neutral in the short- and long-term. Under this methodology, fishing effort would be necessary to assist in reaching These pelagic longline hotspot closed that occurred in an area considered for reductions in fishing mortality areas are being considered along with closure is assumed to stop. In other recommended by the stock assessment. other measures that would affect the words, we assumed all fishermen would A summary of the cumulative impact of number of dusky shark interactions in stop fishing entirely for the duration of all eight hotspot closed areas is bottom longline and recreational the closure rather than fish in an open included below. For more details fisheries, although the alternatives are area. In reality, the impact of any regarding the impact of each individual being assessed individually. While particular closure or group of closures is hotspot closed area, please see draft Alternative B3 may not reduce the likely to be somewhere between the Amendment 5. number of dusky shark interactions in results of these two methodologies as The primary goal of the proposed the pelagic longline fishery by the 62- some fishermen will continue fishing hotspot closed areas for pelagic longline percent target outlined in the 2009 stock while other fishermen will move onto gear is to maximize reductions in assessment, measures proposed for the different species or to other interactions with dusky sharks while bottom longline and recreational occupations. minimizing impacts to target species or fisheries may reduce interactions by

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more than 62-percent. Considered mid-Atlantic shark time/area closure ecosystem function and predator/prey together, the target reductions for dusky from January 1 through July 31 to relationships are also anticipated to be shark interactions outlined in the stock December 15 through July 15. In other neutral in the short- and long-term. assessment would be achieved. words, this alternative would modify Alternative B5 is anticipated to have Furthermore, in May of 2011, the the timing of the existing mid-Atlantic direct, minor, beneficial short- and long- Agency implemented a requirement that shark time/area closure by two weeks. term socioeconomic impacts because pelagic longline vessels in the Gulf of The Atlantic States Marine Fisheries fishermen in North Carolina would have Mexico use weak hooks in order to Commission Shark Plan closes state access to adjacent Federal waters, minimize bycatch of large, spawning waters in Virginia, Maryland, Delaware, consistent with other shark fisheries in bluefin tuna on the spawning grounds. and New Jersey from May 15 through other states and the Atlantic States Based on research conducted by the July 15 every year to protect nursery Marine Fisheries Commission Shark Southeast Fisheries Science Center, areas during pupping season. The Plan. In the short-term, revenue gain Mississippi Laboratory, two dusky purpose of Alternative B5 is to ensure would be minor for the 17 directed sharks were caught on experimental that the end date of the closure shark permit and 12 incidental shark weak hooks and four dusky sharks were coincides with the season opening dates permit holders along with state-water caught on the standard (non-weak) in the Atlantic States Marine Fisheries fishermen that might normally fish in hooks. This requirement has direct Commission Shark Plan (i.e., July 15) the mid-Atlantic closed area. These ecological benefits for dusky shark while maintaining the total length of the North Carolina fishermen would be able populations in the Gulf of Mexico, and closure, and to address requests from to fish sooner than in previous years, is also included in the reduction targets the State of North Carolina to revisit this but the adjustment to the starting date for dusky sharks to end overfishing and time/area closure in regards to impacts of the closure would have minor rebuild the stock. Between 2008 and to that one state. The State of North impacts. In the past 4 years, the non- 2010, logbook reports indicate that 133 Carolina has made several requests, both sandbar LCS fishery, which primarily dusky sharks were discarded in the Gulf formally and informally, since 2008 for uses bottom longline gear, has only been of Mexico. The number of dusky shark the Agency to reconsider the timing of open beyond December 15 once. This discards is expected to decrease with the end date of the mid Atlantic Shark occurred in 2008 when the fishery the implementation of weak hooks Closed Area because North Carolina opened in late July under the current because larger dusky sharks may be able feels the current opening of July 31 fishing regulations. Since then, the non- to straighten the hook. disadvantages its fishermen, contrary to sandbar LCS fishery has closed before Implementing the eight time/area National Standard 4, compared to other December 15. Over the long-term, the hotspot closed areas included in states in the region. Thus, North economic impact would be minor, as Alternative B3 would result in direct, Carolina would like to have Federal the fishermen are likely to adapt to the moderate, adverse socioeconomic waters available to its fishermen on July new regulations. Alternative B5 is preferred because it impacts in the short-term on 15, consistent with the ASMFC Shark would result in beneficial economic participants in the pelagic longline Plan and other states near it. These impacts and would not have adverse fishery. While these impacts may comments have been received during ecological impacts. This alternative was become less adverse in the long-term as the public comment period for actions included in response to several requests the pelagic longline fleet adjusts their that affect the shark fishery. The from the State of North Carolina for the fishing activities after implementation dimensions of the closure would remain of the closures, the time/area closures Agency to reconsider the timing of the the same and only the start and end would result in reduced fishing end date of the mid-Atlantic Shark dates of the closure would change. opportunities in the near-term. In Closed Area because North Carolina addition to direct impacts to vessels The mid-Atlantic closed area was feels the current opening of July 31 owners, operators, and crew members, implemented to reduce bycatch of disadvantages its fishermen, contrary to these time/area closures would have dusky sharks, along with neonate and National Standard 4, compared to other minor, adverse indirect impacts in the juvenile sandbar sharks. Alternative B5 states in the region. Thus, North short- and long-term on fish dealers, would result in direct and indirect, Carolina would like to have Federal processors, bait/gear suppliers, and neutral, short- and long-term ecological waters available to its fishermen on July other shore-based businesses impacted benefits for both dusky and sandbar 15, consistent with the ASMFC Shark by reduced fishing opportunities for shark stocks as the closure area timing Plan and other states near it. These pelagic longline vessel owners in the would be shifted by 15 days and should comments have been received in writing vicinity of the proposed closures. The not have a significant impact on fishing during the public comment period for closures may result in indirect social effort with bottom longline gear in this actions that affect the shark fishery. The impacts ranging from disruption of local area. Fishing effort for sharks in this dimensions of the closure would remain fishing communities to relocation of area would continue to be impacted by the same and only the start and end vessels and homeports, loss of crew, the timing of the Federal shark season dates of the closure would change. It is increased time at sea, and other social for LCS, which in recent years, has not not expected to have any impacts to the hardships stemming from further opened until July. This alternative rebuilding plans for dusky or sandbar reducing fishing opportunities in the would not affect the rebuilding plans for sharks because overall fishing effort vicinity of the respective closures. dusky and sandbar sharks and would (and fishing mortality) would still be Overall, the proposed time/area closures have neutral impacts on protected regulated by quotas and retention limits in Alternative B3 would reduce annual resources because the duration of the for target species. revenues by $385,423 per year and closure is not affected, while the timing The last effort-control proposed would impact 72 unique vessels that of the closure is affected (15 days). alternative is alternative B6. This have fished in these hotspot closed Direct, neutral, short- and long-term alternative would modify the existing areas between 2008 and 2010. ecological impacts for protected bottom longline shark research fishery In addition to Alternative B3, we are resources are expected. Given the to reduce dusky shark interactions by 62 also proposing Alternative B5, which neutral impacts on most species, the percent, at a minimum, while still would modify the timing of the existing indirect impacts of Alternative B5 on allowing for shark biological and catch

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rate data to be collected. In 2008, we for dusky sharks in the short- and long- sharks. Alternative B6 is preferred implemented a shark research fishery term. Indirect, minor beneficial impacts because it would result in beneficial that allowed fishermen to target and would be expected as a result of limiting ecological impacts by reducing the retain sandbar sharks to maintain the soak time because of increased post- number of dusky shark interactions that commercial fishery time series and to release survival rates of sharks, and occur on bottom longline gear. Since the obtain biological information for stock teleosts in the short- and long-term. The majority of the interactions with dusky assessments. Fishermen participating in potential changes in the shark research sharks and bottom longline gear occur the shark research fishery are generally fishery are targeted to reduce dusky in the shark research fishery, it is targeting sandbar sharks, and can catch shark dead discards, but the possible important that modifications in this dusky sharks as bycatch. A total of 450 modifications would benefit all sharks. fishery that reduce interactions with dusky sharks were caught during shark Limiting soak time, decreasing the dusky sharks by vessels targeting research fishery trips from 2008 through number of hooks per set, restricting sandbar sharks. Economic impacts are 2011 with 263 being discarded dead. We fishing areas, or reducing overall fishing expected to be minor and adverse as a need to reduce the bycatch of dusky effort by restricting participation in the result of reduced soak time, limiting the sharks in the shark research fishery to research fishery would have minor, number of hooks deployed per set, or ensure that the dusky rebuilding plan indirect beneficial ecological impacts. preventing fishermen from fishing in target is achieved. Measures considered However, extensive modifications to the areas with elevated densities of sandbar to reduce dusky shark interactions, shark research fishery could become so sharks in order to reduce the potential include, but are not limited to: restricting in the view of fishery for dusky shark interactions. Limitations on soak time, limits on the participants that participation decreases D. Summary of the Other Individual number of hooks deployed per set, and valuable data from the shark Alternatives Considered prohibiting participants from deploying research fishery could be lost. Direct, bottom longline gear at times and in neutral, short- and long-term ecological In addition to proposed alternatives areas where elevated levels of dusky impacts for protected resources are B3, B5, and B6, we considered four shark interactions have been observed, expected. Given the neutral to minor other alternatives, including Alternative and/or stopping the shark research beneficial ecological impacts on most B1, the status quo or No Action fishery, or a specific vessel in the species, with the exception of dusky Alternative; Alternative B2, which fishery, for the year if a certain number sharks, the indirect impacts of would extend the existing Charleston of dusky shark interactions is reached. Alternative B6 on ecosystem function Bump time/area closure through May Reduction in dusky shark interactions and predator/prey relationships are also (Feb. 1 through May 31) and prohibit may need to be greater than 62 percent anticipated to be neutral in the short- the use of pelagic longline gear by all in the shark research fishery if and long-term. U.S. flagged-vessels permitted to fish for reductions in other fisheries (i.e., Alternative B6 could result in direct, HMS in this area; Alternative B4, which pelagic longline and recreational) do not minor adverse socioeconomic impacts would implement bycatch caps on reach their targets. in the short-term for fishermen dusky shark interactions in hotspot There are a several options we could participating in the shark research areas identified for closure in use to reduce dusky shark mortality in fishery because of additional restrictions Alternative B3; and Alternative B7, this fishery. Based on preliminary data, placed on participating vessels. Long- which would prohibit the use of pelagic we would have to limit soak times to term impacts are not anticipated and bottom longline gear in HMS approximately 4 hours to reduce dusky because the pool of applicants and those fisheries in all areas to enhance shark mortality by 50 percent. Another selected for participation in the shark rebuilding of overfished dusky sharks, way to reduce dusky shark mortality research fishery changes on an annual as well as other overfished shark species would be to limit the number of hooks basis. Fishermen participating in the (sharks would still be able to be retained deployed per set. Decreasing the research fishery are targeting sandbar recreationally and commercially with number of hooks and limiting the soak sharks; however, dusky sharks are often gillnets). time would decrease the mortality and caught as bycatch when targeting Alternative B1, the No Action possible interaction with dusky sharks. sandbar sharks. These measures could Alternative, would maintain all existing In addition, we have noticed certain change the way that the shark research time/area closures for pelagic and areas where a large number of dusky fishery operates, which could result in bottom longline fishermen. The pelagic sharks have been caught (i.e., the mid- direct, short-term, minor adverse longline fishery for Atlantic HMS Atlantic shark bottom longline closed socioeconomic impacts. However, it is primarily targets swordfish, yellowfin area). Fishing in these locations resulted anticipated that vessels will continue to tuna, and bigeye tuna in various areas in 71 percent of the dusky shark dead want to participate in the shark research and seasons. Secondary target species discards from 2008 through 2011. We fishery because these vessels have the include dolphin, albacore tuna, and, to could prohibit participants from exclusive privilege of being able to a lesser degree, sharks, among other deploying bottom longline gear at times target and harvest sandbar sharks, a species. Although this gear can be and/or in areas where elevated levels of high-fin-value species. There is a modified (e.g., depth of set, hook type, dusky shark interactions have been possibility that these measures would hook size, bait, etc.) to target swordfish, observed. Another potential way to help sandbar sharks rebuild more tunas, or sharks, it is generally a multi- decrease dead discards of dusky sharks quickly and increase commercial species fishery. These vessel operators would be to implement a bycatch cap fisheries opportunities in the future. are opportunistic, switching gear style for dusky shark interactions in the shark Indirect impacts in the short-term and making subtle changes to target the research fishery. The potential would be minor and adverse due to best available economic opportunity of ramifications of a dusky shark bycatch reduced revenues for fish dealers and each individual trip. Pelagic longline cap could limit the fishing opportunities other support industries that may occur gear sometimes attracts and hooks non- to collect data for the shark research if fishing effort is curtailed in the shark target finfish with little or no fishery if the bycatch cap is reached. research fishery. commercial value, as well as species Alternative B6 would have direct, An objective of this rulemaking is to that cannot be retained by commercial moderate, beneficial ecological impacts reduce fishing mortality of dusky fishermen due to regulations, such as

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billfish. Pelagic longline gear may also based on the most recent assessment. the status quo would be largely neutral, interact with protected species such as Maintaining the existing time/area the adverse ecological impacts are marine mammals, sea turtles, and closures, and not implementing unacceptable and inconsistent with the seabirds. As of October 2011, there were additional closures, would result in objectives of this rulemaking, 242 vessels that could use pelagic direct, minor, adverse, short-term specifically, to implement ‘‘stand-alone longline to catch HMS. The ecological impacts for dusky sharks. measures to reduce shark fishing effectiveness of existing pelagic longline These impacts would likely become mortality to rebuild overfished stocks time/area closures in reducing bycatch moderate and/or significant as existing and end overfishing.’’ has been evaluated on an annual basis interaction rates for dusky sharks would Alternative B2 would extend the since 2006 for the HMS Stock continue to exacerbate overfishing, thus Charleston Bump time/area closure Assessment and Fishery Evaluation inhibiting the probability that dusky through the month of May. This Report. In the 2011 Stock Assessment shark populations would rebuild by alternative would result in direct, and Fishery Evaluation report, we 2099. The direct and indirect impacts moderate, beneficial ecological impacts examined the combined effects of the on other species, both HMS and non- for dusky sharks. In the short-term, individual time/area closures and gear HMS target species, bycatch, and these impacts may be minor compared restrictions, comparing the reported protected resources, are expected to be to the long-term where impacts may catch and discards from 2005 through neutral in the short- and long-term increase to ‘‘moderate’’ because the 2010 to the averages for 1997 through because the existing time/area closures benefits of reducing interactions with 1999, throughout the entire U.S. would be maintained. Given the minor individual dusky sharks may take Atlantic fishery. Overall effort, direct impacts of most species, several years to affect the dusky shark expressed as the number of hooks including dusky sharks, we expect the population. However, the ecological reported per set, declined by 27.6 indirect impacts to ecosystem function impacts on numerous HMS and non- percent during 2005 through 2010 and predator/prey relationships as a HMS target species, prohibited species, compared to1997 through 1999. We also result of Alternative B1 to be neutral in and other bycatch depends on the noted declines in both the numbers of the short- and long-term. species and whether or not interactions kept animals and discards of almost all Maintaining the existing pelagic and increase or decrease after redistribution species examined, including swordfish, bottom longline closures and not of fishing effort from the closed area to tunas, sharks, billfish, and sea turtles. implementing additional time/area adjacent open areas in the Charleston The only increases from the base period closures, as proposed in this Bump. The direct ecological impacts of were the numbers of bluefin tuna and rulemaking, would have direct, neutral, closing the Charleston Bump during the dolphin kept. The closures also had an short-term economic impacts. Vessels month of May would have minor impact with respect to the number of would continue to operate subject to beneficial impacts in the short- and interactions with bycatch and protected existing regulations, including time/area long-term for protected resources species (turtles). closures, therefore no new economic because interactions with leatherback The bottom longline fishery targets impacts would be associated with and loggerhead sea turtles would sharks. Comparing landings reported maintaining the status quo. However, in decrease by one turtle per species. from the South Atlantic region between the long-term, if additional measures to Additionally, Alternative B2 would 2002 through 2004 (without closed area) prevent overfishing of dusky sharks and result in direct, moderate, adverse short- with 2005 (with closed area) indicates allow populations to rebuild were and long-term economic impacts. On that landings of LCS decreased by 22.3 implemented, including time/area average from 2008 to 2010, 27 vessels percent after implementation of the closures, minor to moderate adverse fished in the area that would be closed. mid-Atlantic shark closed area. economic impacts could be experienced However, all pelagic longline vessels Landings of sandbar sharks in the South by participants in the pelagic and could potentially be affected by reduced Atlantic region decreased by 26.7 bottom longline fisheries. fishing opportunities. Overall, the percent in 2005 compared to 2002– In addition to direct impacts to annual average reduction in revenues as 2004, which could have been a result of vessels owners, operators, and crew a result of this closure would be the mid-Atlantic shark closed area. In members, this alternative would have $385,887 (fishery-wide), after adjusting addition, observer data from 1994 to also have neutral indirect impacts in the for redistribution of effort into 2004 (i.e., before the implementation of short- and long-term on fish dealers, remaining open areas of the South the closed area) indicate that there have processors, bait/gear suppliers, and Atlantic Bight Statistical reporting area. been five loggerhead sea turtles other shore-based businesses impacted Vessels fishing in this area during the observed caught on bottom longline gear by fishing opportunities for pelagic and month of May are primarily targeting in the vicinity of the mid-Atlantic shark bottom longline vessels. Maintaining the swordfish and dolphin, and, to a lesser closed area, two of which were released status quo would also result in neutral extent, wahoo and yellowfin tuna. alive. Therefore, maintaining the mid- impacts on local fishing communities Reductions of 46 percent (¥$356,001) Atlantic closed area under Alternative because it would not modify the and 12 percent (¥$148,447) for B1 may maintain reductions in sea existing time/area closures or require swordfish and dolphin, respectively, turtle interactions with sea turtles and that vessels relocate from homeports, would be expected on a regional basis bottom longline gear when compared to have longer trips at sea, and other social after fishing effort is redistributed to pre-closure levels, and, therefore have hardships that stem from further remaining open areas of the South positive ecological impacts for protected reducing fishing opportunities for Atlantic Bight Statistical reporting area. resources. Atlantic HMS vessels. Wahoo revenues would decrease by 78 Despite the ecological benefits of the Alternative B1, the No Action percent regionally (¥$7,434) with existing pelagic and bottom longline Alternative, is not preferred because redistribution of fishing effort. time/area closures, dusky sharks maintaining the status quo would not Redistributing fishing effort to continue to experience overfishing, and reduce dusky shark fishing mortality by remaining open areas of the South additional measures to reduce 62 percent, consistent with the stock Atlantic Bight would increase interactions and mortality of dusky assessment recommendations. Although interactions and revenues from bluefin sharks in HMS fisheries are necessary the economic impacts of maintaining tuna (+$32,758), yellowfin tuna

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(+$60,831), and bigeye tuna (+$23,111). of dusky shark interactions occur. If dusky sharks. If bycatch caps were While most pelagic longline vessels do vessel owners are selected for observer implemented, interactions with dusky not target sharks, revenues from sharks coverage and an observer is available, sharks in excess of the cap would close (predominately from shortfin mako these vessels would be able to fish in the area for up to 3 years, in which case sharks) would increase by $9,442. hotspot areas within statistical reporting fishermen may change fishing behavior Alternative B2 would extend an areas for which they had been selected. to minimize the likelihood of catching existing three month time/area closure Vessel operators would be able to fish a dusky shark. Fishermen may deploy for pelagic longline vessels in the outside of an area for which they had ‘‘feeler sets’’ (shorter sets in length with Charleston Bump region for an been selected but they would not be fewer hooks that are shorter in duration additional month, which would impose able to fish within any hotspot areas in compared to other sets) in order to limits on regional fishing opportunities. other statistical reporting areas. This ascertain whether dusky sharks are in In addition to direct impacts to vessels alternative would not completely close the vicinity. Avoiding water of a certain owners, operators, and crew members, the hotspot areas and fishing would still temperature, shorter soak times, and this alternative would have minor, be allowed, with 100-percent observer changes to hook and bait configurations adverse indirect impacts in the short- coverage. The number of dusky shark also may be employed to try to avoid and long-term on fish dealers, interactions allowed in hotspot areas dusky sharks. processors, bait/gear suppliers, and would be set at 10 percent of the Implementing bycatch caps in other shore-based businesses in the estimated 3-year reduction in dusky conjunction with the proposed hotspot vicinity of the closure. Impacts would shark interactions by closing each closed described in Alternative B3 be more pronounced in the vicinity of hotspot area and accounting for would result in direct, minor adverse the proposed closure because of the size redistribution of effort. Once observed socioeconomic impacts in the short- and and duration of the closure because interactions with dusky sharks meet the long-term consistent with the social and regional vessel owners would have to 10-percent threshold for a particular economic impacts described for each of travel further to fish in open areas; hotspot area, then that area would be the hotspot closed areas included in however, pelagic longline vessels from closed for the remainder of the 3-year Alternative B3. The direct economic other areas that have traditionally fished period. Any overharvests in excess of impacts of Alternative B4 would be less in the proposed closure would also the bycatch cap would be accounted for adverse in the short-term than experience adverse economic impacts. in the subsequent 3-year period. implementing the proposed hotspot The closure may result in numerous closed areas because bycatch caps indirect social impacts ranging from The ecological impacts of hotspot area would allow a limited amount of fishing disruption of local fishing communities closures in Alternative B4 would be to continue within the hotspot area until to relocation of vessels and homeports, similar to those described for the a bycatch cap was reached. The exact loss of crew, increased time at sea, and proposed hotspot closed areas in economic impacts of implementing other social hardships stemming from Alternative B3. Overall, for dusky bycatch caps would depend on the further reducing fishing opportunities in sharks, this alternative would also have number of vessels authorized to fish in the Charleston Bump region. moderate, direct beneficial impacts for the hotspot areas (vessels selected for Alternative B2 is not preferred dusky sharks. In the short-term, these observer coverage and carrying an because Alternative B3 meets the benefits may be somewhat reduced observer) on an annual basis and the Amendment’s objectives and compared to the long-term because the number of trips that occur within each Alternative B2 would result in adverse benefits of reducing interactions with hotspot area before the bycatch cap is economic impacts compared to individual dusky sharks may take met. After the cap is met, economic Alternative B3. Alternative B3 includes several years to affect the dusky shark impacts would be more pronounced and a sub alternative (Alternative B3a) that population. Interactions with the 34 consistent with impacts of Alternative would close a portion of the area HMS and non-HMS target species, B3, because the hotspot area would encapsulated in Alternative B2 where prohibited species, and bycatch, close for the remainder of the 3-year the majority of the dusky shark analyzed in Alternative B3 could be period. interactions occur but would not close increased or decreased by 10-percent Alternative B4 is not preferred the entire Charleston Bump. The compared to completely closing the area because it would result in additional objective of this rulemaking is to reduce to fishing because vessels would be able challenges for pelagic longline fishing mortality of dusky sharks, and to fish in these areas (with an observer) observers. Relative to target catch and Alternative B2 would reduce dusky until the 10 percent bycatch cap for incidentally retained pelagic sharks, shark interactions by an additional nine dusky sharks was reached. However, interactions with dusky sharks are a rare fish, compared to Alternative B3a. because vessels would have to be event, making positive identification However, interactions with some other selected for observer coverage and have difficult without bringing the fish species would increase (tiger sharks, an observer onboard to fish in these onboard. Furthermore, if and when hammerhead sharks, sandbar sharks, areas, overall fishing effort and how vessel operators and crew interact with bluefin tuna, and blue marlin). On vessels fish in these hotspot areas would a prohibited species, their goal is to cut balance, Alternative B2 is not selected be affected. It is very likely that fishing the line and release the fish in a manner and Alternative B3 is preferred because effort would be reduced considerably in that maximizes the probability of Alternative B3a provides ecological the hotspot areas, especially compared survival, therefore observers may not benefits that meet the Amendment’s to the status quo, because only a limited have the time and viewing opportunities objectives while mitigating economic number of vessels could gain access in necessary to identify the sharks with impacts. the hotspot area every year subject to absolute certainty. Pelagic longline Alternative B4 would implement observer availability. Furthermore, if a vessels typically use longer gangions bycatch caps on dusky shark bycatch cap were implemented, vessels and have a higher freeboard than other interactions in hotspot areas identified may change fishing practices in order to vessels, which also hinders an for closure in Alternatives B3. Under reduce the likelihood of a dusky shark observer’s ability to get an adequate this alternative, fishermen could fish in interaction. In the past, fishermen may view of the shark to ensure that it is a hotspot areas until a specified number not have had any incentive to avoid dusky shark and not another

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Carcharhinid shark (e.g., sandbar or research fishery would decrease the percent), Louisiana (11.9 percent), silky sharks are commonly confused number of dusky shark interactions Massachusetts (9.1 percent), and New with dusky sharks). Assuming that all because dusky sharks are predominately York (8.0 percent). The states with the unidentified Carcharhinid sharks are caught in the bottom longline fishery by majority of shark directed permit dusky sharks may alleviate this concern vessels targeting sandbar sharks. holders include Florida (62 percent), to a degree; however, we prefer Between 2008 and 2010, there were 325 New Jersey (11 percent), and North implementation of the hotspot closed observed interactions with dusky sharks Carolina (7 percent). areas described in Alternative B3, in the shark research fishery. Alternative B7 would result in without bycatch caps, at this time. Closing the pelagic and bottom ecological benefits for the 34 species Alternative B7 would prohibit the use longline fisheries would have indirect, considered in this analysis because of pelagic longline and bottom longline minor negative ecological impacts prohibiting bottom longline and pelagic gear in all HMS fisheries. Prohibiting because these fisheries are the primary longline gear would eliminate a the use of pelagic longline gears would source of fishery dependent data. These significant source of fishing mortality have direct, significant beneficial data are critical to scientific for these species. However, the ecological impacts on target and non- understanding of the species that the economic impacts stemming from target HMS, prohibited species, and fisheries interact with, and the basis of prohibiting of these gears would also be bycatch in the short- and long-term. The stock assessments for many target and significant. While an objective of this species-specific ecological impacts on bycatch species frequently encountered. rulemaking is to reduce fishing 34 HMS and non-HMS target species, Closing these fisheries would eliminate mortality of dusky sharks and this prohibited species, and other bycatch the logbooks submitted by longline alternative would meet this goal, we do depends on the species’ life history, vessel operators and remove the not prefer this alternative at this time population status, and interaction rates Agency’s ability to deploy observers on because this objective can be achieved in the pelagic longline fishery. Of the longline vessels. Observer programs for via implementation of other measures, alternatives considered, this alternative the pelagic and bottom longline fishery, as described above. would have the most beneficial administered by the Southeast Fisheries Request for Comments ecological impacts for dusky sharks Science Center, rely on observers for because the number of interactions tagging studies, collecting biological We are requesting comments on the would be reduced by 586 sharks per samples, and for enhancing alternatives and analyses described in year. The number of harvested and understanding on the life history and this proposed rule and in the draft discarded swordfish would decrease by ecology of living marine resources. Amendment 5. Comments on this 48,926 fish per year. Yellowfin tuna Closing the pelagic and bottom longline proposed rule may be submitted via harvested would decrease by 35,757 fish fisheries would result in direct, http://www.regulations.gov, mail, or fax. per year. Blue and white marlin significant adverse economic impacts in Comments may also be submitted at a discards would also decrease by the short- and long-term for longline public hearing (see Public Hearings and prohibiting the use of pelagic longline vessel owners, operators, and crew. In Special Accommodations below). We gear by 734 and 779 fish per year, 2010, there were 242 tuna longline solicit comments on this proposed rule respectively. Bluefin tuna kept and permits (pelagic longline) and 217 shark by February 12, 2013 (see DATES and discarded 1,853 fish per year. directed permit holders (bottom ADDRESSES). Interactions with loggerhead and longline) that would be affected. In We will announce the dates and leatherback sea turtles would decrease 2010, the pelagic and bottom longline locations of public hearings in a future by 162 and 70 turtles per year, fisheries had revenues of $27,026,120, Federal Register notice. Additionally, respectively. Interactions with pelagic which equates to approximately 70 we have requested to present a summary sharks, prohibited sharks, and LCS percent of the total revenues for all of the draft amendment and this would all be decreased substantially. commercial HMS fisheries. proposed rule to the five Atlantic Prohibiting the use of bottom longline In addition to direct impacts to Regional Fishery Management Councils gear—which is primarily used to target vessels owners, operators, and crew (the New England, Mid-Atlantic, South LCS in HMS fisheries—would have members, this alternative would have Atlantic, Gulf of Mexico, and Caribbean direct, significant, and beneficial significant, adverse indirect impacts in Fishery Management Councils) and the ecological impacts on dusky sharks. the short- and long-term on fish dealers, Atlantic and Gulf States Marine Indirect, significant, beneficial impacts processors, bait/gear suppliers, and Fisheries Commissions during the on HMS and non-HMS target species other shore-based businesses in the public comment period. Please consult (primarily LCS), non-target HMS, and vicinity of the fishing ports impacted by the Councils’ and Commissions’ fall protected species in the short- and long- reduced fishing opportunities for meeting notices for times and locations. term are also expected. The majority of longline vessel owners. Prohibiting the We are also requesting comments on LCS are caught on bottom longline gear. use of longline gear would result in specific items related to the alternatives In 2010, approximately 73 percent of significant, indirect social impacts to clarify sections of the regulatory text LCS were caught on bottom longline ranging from disruption of local fishing or in analyzing potential impacts of the gear. The species-specific ecological communities to relocation of vessels alternatives. Specifically, we request impacts on HMS and non-HMS target and homeports, loss of crew, increased comments on: species, prohibited species, and other time at sea, and other social hardships 1. Monitoring dusky shark bycatch bycatch depends on the species’ life stemming from further reducing fishing caps. We are seeking public comment history, population status, and opportunities for HMS participants. The on how to administer monitoring of interaction rates in the bottom longline states with the most tuna permit holders dusky shark bycatch caps with limited fishery. Observers are onboard for 100 are Massachusetts (31.5 percent), North additional observer program resources. percent of the trips targeting sandbars in Carolina (12.9 percent), Maine (10.2 One alternative that we are considering the shark research fishery and for 2–3 percent), New Jersey (7.0 percent), and would implement dusky shark bycatch percent of the trips outside the shark New York (6.4 percent). The states with caps on vessels fishing with pelagic research fishery. Prohibiting bottom the most swordfish permit holders are longline gear. This alternative would longline gear and closing the shark Florida (32.4 percent), New Jersey (13.9 allow pelagic longline vessels limited

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access to high dusky shark interaction all sharks together (e.g., the recreational this proposed rule, we propose language areas while limiting the number of retention limit of one shark per vessel similar to the language used in § 622.34 dusky shark interactions that could per trip). However, these measures have and § 648.23 that would allow occur in these areas. Once the dusky not been effective for some species, such fishermen to transit the closed areas if shark bycatch cap for an area is reached, as dusky sharks, which are prohibited they remove and stow the gangions, that area would close until the end of but look similar enough to other species hooks, and buoys from the mainline and the 3-year bycatch cap period (see that some anglers land them in error. In drum. The hooks could not be baited. Alternative B4 above). To implement the draft Amendment 5 and this We are seeking comments on whether this alternative, we would need an proposed rule, we propose increasing this language is appropriate, if following appropriate level of monitoring and outreach to anglers and have suggested those requirements is possible on accuracy to ensure the mortality rate of a companion to the current shark bottom and pelagic longline vessels, and dusky sharks, as determined by the placard that would describe the if disconnecting the hydraulics is a stock assessment and this amendment, characteristics of sharks that cannot be feasible option to consider. is not exceeded. However, additional landed recreationally. We are looking Classification funding sources to provide increased for comments and suggestions on observer coverage to monitor dusky additional methods we can use to Pursuant to the Magnuson-Stevens bycatch cap areas are unlikely, and we provide recreational anglers, Act, the NMFS Assistant Administrator are looking for comments on how to particularly those that rarely fish for has determined that the proposed rule is monitor these areas if this alternative is sharks, information on how to identify consistent with the 2006 Consolidated implemented. Options that we are sharks and comply with the regulations. HMS FMP and its amendments, other exploring range from allowing access We are also looking for comments on provisions of the Magnuson-Stevens only to vessels that have been selected additional approaches that could reduce Act, ATCA, and other applicable law, for pelagic longline observer program dusky shark mortality in the subject to further consideration after coverage under its current selection recreational fishery to help meet the public comment. process and when they are on a trip rebuilding targets of the Southeast Data, This proposed rule has been with an observer on board, to Assessment, and Review 21 stock determined to be not significant for establishing other monitoring programs, assessment. Because dusky sharks are purposes of Executive Order 12866. We prepared a draft environmental such as an industry-funded observer prohibited from recreational retention, impact statement (EIS) for this rule that program, or the use of electronic we are proposing enhancing outreach discusses the impact on the monitoring technology (e.g., video and education efforts along with environment that would result from this monitoring). increasing the recreational minimum rule. A copy of the EIS is available from 2. The name ‘‘aggregated LCS.’’ We size from 4.5 feet fork length to 8 feet NMFS (see ADDRESSES). The Notice of are seeking public comment on what to fork length to reach the rebuilding Availability of the EIS is publishing in name the reconfigured grouping of target, but acknowledge that there may the Federal Register on the same day as sharks that would continue to be be other approaches that could assist in this proposed rule. A summary of the managed collectively in the remainder reaching that target while also resulting impacts of the alternatives considered is of what is currently the LCS complex for in fewer changes to the way the described above. quota monitoring purposes. When we recreational fishery currently operates. began managing sharks, we grouped Paperwork Reduction Act sharks for management purposes into 4. Stowing longline gear to transit three species complexes: large coastal, closed areas. We are looking for This proposed rule would require small coastal, and pelagic sharks. Over comments on the proposed change that recreational fishermen who are not time, as a result of numerous species- would allow longline fishermen to stow fishing in a tournament to report all specific stock assessments and gear and transit closed areas. There are landings of hammerhead sharks. If increasing requests for species-specific currently a number of time/area closures finalized, this requirement would be management, we have begun managing for pelagic and bottom longline considered a collection-of-information a number of species separately and have fishermen that have commercial requirement and would be subject to removed those species from the original swordfish and/or shark limited access review and approval by OMB under the LCS complex. In the draft Amendment permits. The regulations do not provide Paperwork Reduction Act (PRA). 5 and this proposed rule, we use the these fishermen the ability to stow their Because we are currently in the process name ‘‘aggregated LCS.’’ However, other gear and transit the areas. Instead, of renewing the existing non- names may exist that are more fishermen must go around the areas to tournament recreational reporting descriptive or appropriate and that remain in compliance with the requirement for billfish, swordfish, and could help avoid confusion in the regulations. Among other things, this bluefin tuna and cannot make changes fishery as the groupings are restriction has raised safety-at-sea while in the renewal process, we have reconfigured. concerns and could increase the not yet submitted this collection-of- 3. Suggestions for improving angler economic cost of fishing by requiring information to OMB for approval. If we identification of shark species and fishermen to spend more time at sea and finalize this permitting requirement, we reducing dusky shark mortality in the use more fuel. Over the years, we have would submit an application amending recreational fishery. We are looking for heard from fishermen that they should the existing non-tournament comments and suggestions on how to be allowed to transit the closed areas if recreational reporting collection-of- improve angler identification of the the hydraulics are disconnected from information to OMB for approval and different shark species. Many shark the mainline and drum. However, we would delay implementation of that species are similar looking, particularly have not implemented that in lieu of a portion of the rule pending approval. to recreational anglers who may not see stowage requirement because of Public comment is sought regarding: sharks on a regular basis. This difficulty concerns that the hydraulics are easily whether this proposed collection of in identifying sharks correctly has reconnected and, therefore, information is necessary for the proper resulted in recreational shark disconnecting them does not effectively performance of the functions of the management measures that try to group render the gear unavailable for use. In agency, including whether the

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information shall have practical utility; Magnuson-Stevens Act and other pelagic longline vessels. Based on the the accuracy of the burden estimate; statutes which may apply to such number of Tuna Longline permit ways to enhance the quality, utility, and management, including the Endangered holders, we estimate that there are 242 clarity of the information to be Species Act, Marine Mammal Protection longline vessels with HMS permits that collected; and ways to minimize the Act, and Atlantic Tunas Convention could potentially be impacted by the burden of the collection of information, Act. As described earlier in the proposed hotspot closed areas. Of those including through the use of automated preamble of this proposed rule and in pelagic longline vessels, 116 actively collection techniques or other forms of Chapter 1 of the draft Amendment 5, the fished in 2011. information technology. Send comments management objectives of the proposed The recreational measures proposed on these or any other aspects of the regulations will be to amend the 2006 would also impact HMS Angling collection of information to (enter office Consolidated HMS FMP to achieve the category and HMS Charter/Headboat name) at the ADDRESSES above, and by following: end overfishing and achieve category permit holders. In general, the email to optimum yield for dusky, scalloped HMS Charter/Headboat category permit [email protected] or fax hammerhead, and Atlantic blacknose holders can be regarded as small to (202) 395–7285. sharks; implement a rebuilding plan for businesses, while HMS Angling Notwithstanding any other provision scalloped hammerhead and Atlantic category permits are typically obtained of the law, no person is required to blacknose sharks to ensure that fishing by individuals who are not considered respond to, nor shall any person be mortality levels for both species are small entities for purposes of the RFA. subject to, a penalty for failure to maintained at or below levels that In 2011, 4,194 vessels obtained HMS comply with, a collection-of- would result in a 70 percent probability Charter/Headboat category permits. It is information subject to the requirements of rebuilding in the timeframe unknown what portion of these permit of the PRA, unless that collection-of- recommended by the assessments; holders actively participate in shark information displays a currently valid modify the current rebuilding plan for fishing or market shark fishing services OMB Control Number. dusky sharks to ensure that fishing for recreational anglers. Under section 603(b)(4) of the RFA, Regulatory Flexibility Act mortality levels for dusky sharks are maintained at or below levels that Agencies are required to describe any An initial regulatory flexibility would result in a 70 percent probability new reporting, record-keeping and other analysis (IRFA) was prepared, as of rebuilding in the timeframe compliance requirements. Most of the required by section 603 of the recommended by the assessment; proposed commercial and recreational Regulatory Flexibility Act (RFA). The maintain the rebuilding plan for sandbar measures would not introduce any new IRFA describes the economic impact sharks to ensure 70 percent probability reporting and record-keeping this proposed rule, if adopted, would of rebuilding in the timeframe requirements. However, Alternative have on small entities. A summary of recommended by the assessment; and Suite A2 would require hammerhead the analysis follows. A copy of this achieve optimum yield and provide an shark reporting through the non- analysis is available from NMFS (see opportunity for the sustainable harvest tournament reporting system. While this ADDRESSES). of Gulf of Mexico blacknose, Gulf of reporting requirement primarily impacts In compliance with section 603(b)(1) Mexico blacktip sharks, and other recreational fishermen, it also impacts of the RFA, the purpose of this proposed sharks, as appropriate. small entities that operate charter/ rulemaking is, consistent with the 2006 Section 603(b)(3) of the RFA requires headboat trips that catch hammerhead Consolidated HMS FMP objectives, the Agencies to provide an estimate of the sharks. The 4,194 charter/headboat Magnuson-Stevens Act, and other number of small entities to which the permit holders in 2011 would be applicable law, to rebuild and end rule would apply. The Small Business required to submit hammerhead shark overfishing of certain species of sharks, Administration has defined a ‘‘small’’ landings through the non-tournament as appropriate. As described earlier in fishing entity as one with average reporting system. Some small portion of the preamble of this proposed rule and annual receipts of less than $4.0 those charter/headboat permit holders, in Chapter 1 of the draft Amendment 5, million; a small charter/party boat entity primarily vessels in the Gulf of Mexico based on the results of the Southeast is one with average annual receipts of or South Atlantic targeting sharks, Data, Assessment, and Review 21 stock less than $6.5 million; a small wholesale would actually be submitting reports assessments for sandbar, dusky, and dealer as one with 100 or fewer because most charter-headboat trips blacknose sharks, and a published stock employees; and a small seafood target other HMS species and not assessment for scalloped hammerhead processor as one with 500 or fewer hammerhead sharks. sharks, we have determined that employees. Under these standards, we Under section 603(b)(5) of the RFA, sandbar, dusky, scalloped hammerhead, consider all Atlantic HMS permit Agencies must identify, to the extent and Atlantic blacknose sharks are holders subject to this rulemaking to be practicable, relevant Federal rules overfished and that dusky, scalloped small entities. which duplicate, overlap, or conflict hammerhead, and Atlantic blacknose The proposed rule would apply to the with the proposed rule. Fishermen, sharks are experiencing overfishing. In 479 commercial shark permit holders in dealers, and managers in these fisheries addition, the overfishing and overfished the Atlantic shark fishery based on an must comply with a number of status of the Gulf of Mexico blacknose analysis of permit holders in October international agreements, domestic shark stock is unknown, and the results 2011. Of these permit holders, 217 have laws, and other FMPs. These include, of the Gulf of Mexico blacktip shark directed shark permits and 262 hold but are not limited to, the Magnuson- stock assessment are to be incorporated incidental shark permits. Not all permit Stevens Act, ATCA, the High Seas into this amendment as appropriate. holders are active in the fishery in any Fishing Compliance Act, the Marine In compliance with section 603(b)(2) given year. We estimate that between Mammal Protection Act, the Endangered of the RFA, the objectives of this 2008 and 2011, approximately 169 Species Act, the National proposed rulemaking are to provide for vessels with directed shark permits and Environmental Policy Act, the the sustainable management of shark 121 vessels with incidental shark Paperwork Reduction Act, and the species under authority of the Secretary permits landed sharks. The hotspot Coastal Zone Management Act. The new consistent with the requirements of the closed area alternatives also impact regulations proposed to be implemented

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do not conflict with any relevant allowable catch. The second category of Scalloped hammerhead sharks are regulations, Federal or otherwise. alternatives (Alternatives B1–B7) overfished with overfishing occurring, Under section 603(c), agencies are involves pelagic longline and bottom and the stock could become increasingly required to describe any alternatives to longline effort modifications, including unproductive, therefore we do not the proposed rule which accomplish the time/area closures, bycatch caps, prefer this alternative at this time. stated objectives and which minimize modification to the existing bottom For LCS, from 2008 through 2011, any significant economic impacts. These longline shark research fishery, and gear approximately 68 vessels with directed impacts are summarized below and in restrictions. The expected economic shark permits had non-sandbar LCS Amendment 5. impacts of the different alternatives landings, while approximately 25 One of the requirements of an IRFA is considered and analyzed are discussed vessels with incidental shark permits to describe any alternatives to the below. The potential impacts these had non-sandbar LCS landings in the proposed rule which accomplish the alternatives may have on small entities Atlantic. In the Gulf of Mexico, stated objectives and which minimize have been analyzed and are summarized approximately 45 vessels with directed any significant economic impacts. These below. The full IRFA and all its analyses shark permits had non-sandbar LCS impacts are discussed below. can be found in draft Amendment 5. landings, while approximately 11 Additionally, the RFA (5 U.S.C. The proposed action includes: vessels with incidental shark permits 603(c)(1)–(4)) lists four general Alternative Suite A2, Alternative B3, had non-sandbar LCS landings. It is categories of ‘‘significant’’ alternatives Alternative B5, and Alternative B6. The estimated that these permit holders that would assist an agency in the economic impacts that would occur would be the most affected by development of significant alternatives. under these proposed actions were management measures proposed for These categories of alternatives are: (1) compared with the other alternatives non-sandbar LCS. Spread amongst the Establishment of differing compliance considered to determine if economic directed and incidental shark permit or reporting requirements or timetables impacts to small entities could be holders that landed non-sandbar LCS in that take into account the resources minimized while still accomplishing the the Atlantic, the average directed shark available to small entities; (2) stated objectives of this rule. permit holder earned $7,656 in average clarification, consolidation, or annual gross revenues, and the average Under the first group of alternatives simplification of compliance and incidental shark permit holder earned that address various shark quotas and reporting requirements under the rule $7,703 in average annual gross revenues for such small entities; (3) use of total allowable catches, Alternative from non-sandbar LCS landings. Spread performance rather than design Suite A1 (status quo) would not change amongst the directed and incidental standards; and (4) exemptions from current management of the Atlantic shark permit holders that landed non- coverage of the rule for small entities. In shark fisheries. Specifically, for sandbar LCS, the average directed shark order to meet the objectives of this hammerhead sharks, from 2008 through permit holder earned $19,001 in average proposed rule, consistent with the 2011, approximately 39 vessels with annual gross revenues, and the average Magnuson-Stevens Act and ESA, we directed shark permits had hammerhead incidental shark permit holder earned cannot exempt small entities or change shark landings, while approximately 9 $19,433 in average annual gross the reporting requirements only for vessels with incidental shark permits revenues from non-sandbar LCS small entities because all the entities had hammerhead shark landings in the landings. affected are considered small entities. Atlantic. In the Gulf of Mexico, For Gulf of Mexico blacktip sharks, Thus, there are no alternatives approximately 25 vessels with directed from 2008 through 2011, approximately discussed that fall under the first and shark permits had hammerhead shark 41 vessels with directed shark permits fourth categories described above. landings, while approximately 4 vessels had blacktip shark landings, while Under the third category, ‘‘use of with incidental shark permits had approximately 4 vessels with incidental performance rather than design hammerhead shark landings. Spread shark permits had blacktip shark standards,’’ we consider Alternative B4 amongst the directed and incidental landings in the Gulf of Mexico. Spread addressing dusky shark bycatch caps in shark permit holders that landed amongst the directed and incidental the pelagic longline fishery, to be a scalloped hammerhead in the Atlantic, shark permit holders that landed performance standard rather than a the average directed shark permit holder blacktip shark, the average directed design standard. It establishes earned $748 in average annual gross shark permit holder earned $13,861 in performance levels for pelagic longline revenues, and the average incidental average annual gross revenues, and the vessels for avoiding interactions with shark permit holder earned $760 in average incidental shark permit holder dusky sharks, and only triggers closures average annual gross revenues from earned $14,051 in average annual gross of hotspot areas if those performance scalloped hammerhead shark landings. revenues from blacktip shark landings. levels are exceeded. As described Spread amongst the directed and For blacknose sharks, since below, we analyzed several different incidental shark permit holders that Amendment 3 to the 2006 HMS FMP alternatives in this proposed rulemaking landed scalloped hammerhead in the was implemented in 2010, an average of and provide the rationale for identifying Gulf of Mexico, the average directed approximately 25 vessels with directed the preferred alternative to achieve the shark permit holder earned $1,363 in shark permits had blacknose shark desired objective. average annual gross revenues, and the landings, while approximately 4 vessels In this rulemaking, we considered two average incidental shark permit holder with incidental shark permits had different categories of issues to address earned $1,387 in average annual gross blacknose shark landings. It is estimated shark management measures where each revenues from scalloped hammerhead that these permit holders would be the issue had its own range of alternatives shark landings. Scalloped hammerhead most affected by management measures that would meet the objectives of the sharks compose a small portion of total proposed for blacknose sharks. Spread Magnuson-Stevens Act and the 2006 non-sandbar LCS landings; an annual amongst the directed and incidental Consolidated HMS FMP. The first average of 7.6 percent of non-sandbar shark permit holders that landed category (Alternative Suites A1–A5) LCS landings are scalloped blacknose, the average directed shark covers five alternative suites that hammerhead sharks in the Atlantic and permit holder earned $1,739 in average address various shark quotas and total 4.3 percent on the Gulf of Mexico. annual gross revenues, and the average

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incidental shark permit holder earned hammerhead sharks). Under those short-term, lost revenues would be $222 in average annual gross revenues quotas, the reduction in revenue fishery- moderate for the 22 directed shark from blacknose shark landings. wide would be $809 in the Atlantic and permit and 3 incidental shark permit Similarly, for non-blacknose SCS, $928 in the Gulf of Mexico. Therefore, holders that land blacknose sharks in since Amendment 3 to the 2006 HMS there would be minimal impact on the the Atlantic region, and the 8 directed FMP was implemented in 2010, an annual revenues of individual vessels shark and the 2 incidental shark permits average of approximately 39 vessels actively involved in the fishery. that land blacknose sharks in the Gulf with directed shark permits had For LCS, Alternative Suite A2 would of Mexico. blacknose shark landings, while establish new, separate quotas for For non-blacknose SCS, Alternative approximately 13 vessels with scalloped hammerhead sharks and Gulf Suite A2 would establish regional incidental shark permits had non- of Mexico blacktip sharks, necessitating quotas for non-blacknose SCS based on blacknose SCS landings. It is estimated removal of these species from the non- the landings since Amendment 3 to the that these permit holders would be the sandbar LCS complex (which will then 2006 HMS FMP was implemented in most affected by management measures be renamed aggregated LCS complex in 2010. In the Atlantic, an average of proposed for non-blacknose SCS. both the Atlantic and Gulf of Mexico). approximately 33 vessels with directed Spread amongst the directed and The aggregated LCS quota would be shark permits had blacknose shark incidental shark permit holders that based on average annual landings of the landings, while approximately 10 landed non-blacknose SCS, the average remaining species, therefore, those vessels with incidental shark permits directed shark permit holder earned species composing the aggregated LCS had non-blacknose SCS landings. In the $13,414 in average annual gross complex would not experience a change Gulf of Mexico, an average of revenues, and the average incidental in fishing pressure and landings would approximately 9 vessels with directed shark permit holder earned $1,677 in be capped at recent levels. For these shark permits had blacknose shark average annual gross revenues from reasons, economic impacts to small landings, while approximately 3 vessels non-blacknose SCS landings. entities resulting from this portion of with incidental shark permits had non- Regarding quota linkages, since Alternative Suite A2 are expected to be blacknose SCS landings since Alternative Suite A1 does not create any neutral. Amendment 3. Under the Alternative new species or species complex, new For Gulf of Mexico blacktip sharks, Suite A2, there would be neutral quota linkages would be unnecessarily. this alternative suite’s proposed blacktip economic impacts to directed and Consequently, there are no additional shark action would essentially maintain incidental shark permit holders as the direct or indirect socioeconomic the current fishing levels and is likely average annual gross revenues from impacts in the short or long-term to result in neutral economic impacts to non-blacknose SCS landings would be beyond those discussed for scalloped small entities. We have determined that the same as the status quo in the short- hammerhead, blacktip sharks, non- the Gulf of Mexico blacktip shark stock and long-term. Fishermen would be blacknose SCS, and blacknose sharks. is not overfished and not experiencing expected to operate in the same manner Regarding recreational measures, overfishing. The results of the most as the status quo in the short-term. under Alternative Suite A1, there would recent stock assessment indicate the However, this alternative suite could be no changes to the existing Gulf of Mexico blacktip shark stock can have minor negative economic impacts recreational retention limits for all sustain current fishing levels and on fishermen if fishing effort increases species. Therefore, small entities, such should not result in any additional for non-blacknose SCS. The fishery has as charter/headboat operators and impacts to small entities. never filled the entire quota established tournaments that target sharks, would For blacknose sharks, under for the fishery in 2010, but that could not experience any change in economic Alternative Suite A2, we would separate change with a smaller regional quota impact under this alternative. blacknose sharks into the Atlantic and and if fishermen are displaced from When taken as a whole, Alternative Gulf of Mexico regions as suggested in other fisheries. Suite A1 would likely have neutral the Southeast Data, Assessment, and Under Alternative Suite A2, the quota economic impacts on small entities in Review 21 stock assessment. These linkages could have short and long-term the short-term because the fisheries alternatives would decrease the moderate adverse economic impacts. would continue to operate as status quo. blacknose shark landings in each region. Quota linkages are explicitly designed In the long-term, it could cause direct Average annual gross revenues for the to concurrently close multiple shark minor adverse economic impacts blacknose shark landings for the quotas, regardless of whether all the because we would need to make to Atlantic region would decrease from linked quotas are filled. This provides changes to the fishery to address the $58,122 under the No Action alternative protection from exceeding the quota by overfishing and overfished stocks. Since down to $54,854 under Alternative incidental capture where a directed Alternative Suite A1 does not address Suite A2. We anticipate these directed fishery has been closed because it filled the overfished and/or overfishing and incidental shark permit holders its quota, but it could also preclude determination based on recent stock would experience minor economic fishermen from harvesting the entirety assessments, we do not prefer this impacts as blacknose sharks are not the of each of the linked quotas. A alternative at this time. targeted shark species for SCS quantitative analysis of the economic Alternative Suite A2, the preferred fishermen. Average annual gross impact is not possible without alternative, would establish new species revenues for the blacknose shark comparing the rates of hammerhead complexes by regions, adjust LCS and landings for the Gulf of Mexico region shark, blacktip shark, and aggregated SCS quotas, link appropriate quotas, would increase from $3,273 under the LCS catch and without knowing the and increase the shark minimum No Action alternative to $5,650 under extent to which fishermen can avoid recreational size to 96″ FL. Specifically, Alternative Suite A2. We anticipate hammerhead sharks because. If for scalloped hammerhead sharks, these directed and incidental shark fisherman are unable to sufficiently under Alternative Suite A2, we would permit holders would experience avoid hammerhead sharks the quotas establish an Atlantic and a Gulf of neutral economic impacts since the new will likely close much sooner, but if Mexico hammerhead shark quota Gulf of Mexico blacknose shark quota is they can successfully avoid (including scalloped, smooth, and great consistent with current landings. In the hammerhead sharks, it is likely that

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they will be able to fully utilize the impacts are expected for fishermen From 2008 through 2011, approximately other shark quotas. However, a targeting the aggregated LCS and non- 41 vessels with directed shark permits qualitative analysis can provide insight blacknose SCS complexes since the new had blacktip shark landings, while on possible adverse socioeconomic proposed quotas are based on the approximately 4 vessels with incidental impacts. Under Alternative Suite A2, average landings for each species. shark permits had blacktip shark both the hammerhead shark and Furthermore, quota linkages would landings in the Gulf of Mexico. Spread aggregated LCS quotas would close affect the economic impacts based on amongst the directed and incidental when landings of either reaches or is the fishing rate of each linked shark shark permit holders that landed expected to reach 80 percent of the quota. When we compare the economic blacktip shark, the average shark permit quota. If hammerhead shark landings impacts of Alternative Suite A2 to the holder could potentially land up to reach 80 percent of the quota, the other alternative suites, this alternative $6,986 in additional annual revenue aggregated LCS fishery would close, suite would cause fewer impacts overall from Gulf of Mexico blacktip sharks. regardless of what portion of the quota to fishermen. For this reason and the The blacknose shark management has been filled. If the entire aggregate ecological reasons previously discussed, measures under Alternative Suite A3 are LCS quota has not been harvested, the we prefer this alternative suite at this identical to those under Alternative fishery would not realize the full level time. Suite A2 for the Atlantic region. Under of revenues possible under the Alternative Suite A3 would establish Alternative Suite A3, we would prohibit established quota. A similar situation new species complexes by regions, blacknose sharks in the commercial and could occur in the Gulf of Mexico under adjust LCS and SCS quotas, prohibit recreational shark fisheries in the Gulf Alternative Suite A2 where both the retention of commercial blacknose of Mexico region and work with the hammerhead shark and blacktip shark sharks in the Gulf of Mexico, and Gulf of Mexico Fishery Management quotas would be linked to the increase the hammerhead shark Council to reduce the mortality of aggregated LCS quota. The blacknose minimum recreational size to 96″ FL. blacknose sharks to attain the total shark and non-blacknose SCS Specifically, for hammerhead sharks, we allowable catch of 11,900 sharks. socioeconomic impacts would be the would remove hammerhead sharks from Currently, the average annual gross same as the LCS since there would be the non-sandbar LCS quota and revenues for blacknose shark landings similar scenarios with the quota linkage establish a separate hammerhead shark for the entire commercial fishery are by species and region. In addition, we quota for the three species of large $3,273, but would be reduced to $0 would allow inseason quota transfer hammerhead sharks (scalloped, smooth, under this alternative. Under between non-blacknose SCS regions. and great hammerhead sharks), similar Alternative Suite A3, lost revenues This would have minor beneficial to the action proposed under would lead to moderate direct adverse economic impacts for the fishery as the Alternative Suite A2. In contrast to economic impacts for the 8 directed non-blacknose SCS quota would not be Alternative Suite A2, however, the shark and the 2 incidental shark permits the limiting factor. Consequently, the hammerhead shark quota under that land blacknose sharks in the Gulf quota linkages proposed under Alternative Suite A3 would not be split of Mexico. Alternative Suite A2 could have between the Atlantic and Gulf of Alternative Suite A3 would keep the moderate adverse economic impacts. Mexico, leaving one hammerhead shark non-blacknose SCS complex and quota Under Alternative Suite A2, we quota across both regions. Although this as status quo with one regional quota of would increase the current recreational difference could create some 221.6 mt dw (488,539 lb dw). There size limit for all authorized shark administrative difficulties, it is unlikely would be neutral economic impacts to species to 96 inches FL, implement to alter the economic impacts from shark permit holders. mandatory reporting of landed Alternative Suite A2’s minor adverse Under Alternative Suite A3, no quota hammerhead sharks, and provide economic impacts. Alternative B2 linkages would be implemented. All identification guide for all of the would have split the quota between the shark quotas would open and close prohibition shark species. two regions based on historical independently of each other. Quota Implementation of these management landings; therefore, under Alternative linkages can lead to closures of quotas measures would significantly alter the Suite A3, a similar breakdown of that are not yet filled if quotas of other way tournaments and charter vessels landings would likely occur. sharks caught concurrently are closed. If operate, or reduce opportunity and Non-sandbar LCS complex each quota opens and closes demand for recreational shark fishing, management measures under independently, each quota would have could create adverse economic impacts. Alternative Suite A3 are identical to a higher likelihood of being filled, However, these measures would help those under Alternative Suite A2. See allowing for full realization of potential the stocks rebuild and possibly increase the LCS complex section of Alternative revenues. Thus, the lack of quota recreational fisheries opportunities in Suite A2 for more details on impacts. linkages under this alternative suite the future. Alternative Suite A3 would create a could lead to minor beneficial economic When taken as a whole, Alternative separate Gulf of Mexico blacktip shark impacts. However, this could result in Suite A2 would likely have direct short total allowable catch and commercial adverse ecological impacts for and long-term minor adverse economic quota, by increasing the total allowable overfished shark species. impacts. These impacts would mostly catch calculated in Alternative Suite A2 Alternative Suite A3 would increase affect fishermen targeting scalloped by 30 percent, which is based on the the minimum recreational size for all hammerhead and blacknose sharks current landings percentage of Gulf of hammerhead sharks (great, smooth, and since the quotas would be reduced. Mexico blacktip sharks. This would scalloped) to 78 inches FL, provide These fishermen are likely to adapt to result in a commercial quota of 380.7 mt identification guide for all of the the new regulations by fishing in other dw (839,291 lb dw), which is a 48 prohibition shark species, and prohibit fisheries, or change their fishing percent increase from average Gulf of the retention of blacknose sharks in the habitats. Recreational management Mexico blacktip shark landings from recreational fishery. Therefore, this measures would increase the size limit 2008–2011 (256.7 mt dw; 565,921 lb alternative would likely result in minor and cause fishermen to catch and dw). This is an increase of $314,376 adverse economic impacts for charter/ release more sharks. Neutral economic when compared to current landings. head boat operators and tournaments

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that target hammerhead and blacknose Suite A4 would instead calculate each for the commercial fishery are $3,273, sharks because of the reduced incentive species’ contribution to total non- but would be reduced to $0 under this to recreationally fish for these species. sandbar LCS landings using the year alternative. Under Alternative Suite A4, Increasing the recreational size limit for with the highest annual landings for the it is anticipated that there would be hammerhead sharks would ensure that complex between 2008 and 2011 for moderate adverse economic impacts. In only larger or ‘‘trophy’’ sized sharks each species. The year with the highest the short-term lost revenues would be would be landed. non-sandbar LCS landings in the moderate for the 8 directed shark and When taken as a whole, Alternative Atlantic was 2008 and the highest in the the 2 incidental shark permits that land Suite A3 would likely have moderate Gulf of Mexico was 2011. This deviation blacknose sharks in the Gulf of Mexico. adverse economic impacts on small in method does not substantially change Over the long-term the economic impact entities. These impacts would mostly the quotas; therefore, economic impacts would be moderate, as the other affect fishermen catching hammerhead are unchanged from Alternative Suite management measures could be and blacknose sharks. The hammerhead A2. implemented to reduce the discards of shark quota would be based on the Alternative Suite A4 would establish blacknose sharks. scalloped hammerhead shark total a separate Gulf of Mexico blacktip shark For non-sandbar SCS, under allowable catch and would reduce all quota of 1,992.6 mt dw based upon Alternative Suite A4, we would hammerhead shark landings. The projections produced by stock establish regional quotas for non- blacknose shark quota in the Atlantic assessment scientists. The quota of blacknose SCS by dividing the current would be reduced, while the Gulf of 1,992.6 mt dw is more than five times quota in half. This alternative would Mexico blacknose shark retention would the current Gulf of Mexico non-sandbar cause significant adverse economic be prohibited. Recreational management LCS quota. Ex-vessel revenue resulting impacts for shark fishermen in the measures would affect fishermen who from this quota could increase by up to Atlantic region. Alternative Suite A4 catch hammerhead sharks since the $4,427,322 across the entire Gulf of would restrict fishing of non-blacknose increased size limit would result in Mexico blacktip. Spread amongst the 45 in the Atlantic to 244,269.5 lb dw and more hammerhead sharks having to be directed and incidental shark permit potentially reduce current annual released and blacknose sharks as holders that landed blacktip shark, the revenue by $253,411. In the Gulf of blacknose sharks would be prohibited average shark permit holder could Mexico, this alternative would cause under this alternative suite. In addition, potentially land up to $98,385 in beneficial economic impacts for non- no quota linkages would allow additional annual revenue from Gulf of blacknose SCS fishery as the quota fishermen to fully harvest all of the Mexico blacktip sharks. However, it is would be larger than their average quotas. While this alternative suite unlikely that this value would be landings. This larger quota could might have more beneficial direct realized. The Gulf of Mexico blacktip potentially increase gross revenues by economic impacts than Alternative shark quota would be linked to the Gulf $259,157. However, this alternative Suite A2, the ecological impacts would of Mexico aggregated LCS and scalloped suite would cause adverse impacts on be adverse and would not achieve the hammerhead shark quotas. All three of blacknose sharks since current fishing rebuilding plan targets for these stocks. these quotas would close when one and bycatch levels of blacknose sharks Alternative Suite A4 would establish reached, or was expected to reach, 80 could increase. Since Alternative Suite new species complexes by regions, percent of the respective quota. Either A4 would not reduce blacknose shark adjust LCS and SCS quotas, prohibit the aggregated or scalloped mortality in the Gulf of Mexico and retention of commercial blacknose hammerhead quota would be likely to decrease the Atlantic non-blacknose sharks in the Gulf of Mexico, link be filled before the large blacktip quota SCS fishing levels, we do not prefer this appropriate quotas, and establish a was filled. Regardless, the increase alternative at this time. species-specific recreational shark blacktip quota would allow for Quota linkages under Alternative quota. Specifically, for scalloped increased fishing opportunities and Suite A4 are nearly identical to those hammerhead sharks, Alternative Suite positive impacts to small entities. under Alternative Suite A2, except that A4 would use the scalloped Under Alternative Suite A4, the instead of linking the hammerhead hammerhead shark total allowable catch mortality of blacknose sharks in the quotas to the aggregated LCS quota in established in the stock assessment to Atlantic region will be reduced by at the Atlantic and Gulf of Mexico, the create separate Atlantic and Gulf of least 61 percent in the Atlantic region as scalloped hammerhead quota would be Mexico quotas applicable to only recommended in the stock assessment. linked instead. This deviation should scalloped hammerheads sharks rather All of the economic impacts resulting not change the expected economic than all three large hammerhead sharks from this portion of the alternative suite impacts. In addition, we would link the as proposed under Alternative Suite A2. are the same as those analyzed in Atlantic blacknose and non-blacknose The proposed quotas in both regions are Alternative Suite A2. SCS quotas and Gulf of Mexico higher than current landings. Therefore, For the Gulf of Mexico, we would blacknose shark and non-blacknose SCS we expect neutral economic impacts. establish a total allowable catch of 9,792 quotas, and allow inseason quota Great and smooth hammerhead sharks blacknose sharks. As described in transfer between the non-blacknose SCS could continue to be landed at current Alternative Suite A3, we would prohibit regions. The quota linkages proposed levels under the aggregated LCS quota. blacknose sharks in any shark fishery in under Alternative Suite A4 would be For LCS, Alternative Suite A4 would the Gulf of Mexico in order to meet this expected to have moderate adverse establish new aggregated LCS quotas in proposed total allowable catch given the economic impacts. the Atlantic and Gulf of Mexico using a blacknose mortality in non-HMS Under Alternative Suite A4, we similar methodology to that outlined in fisheries in the Gulf of Mexico. We would establish species-specific Alternative Suite A2, except for one would also work with the Gulf of recreational shark quotas and prohibit difference. While Alternative Suite A2 Mexico Fishery Management Council to the recreational retention of blacknose would calculate each species’ reduce bycatch mortality of blacknose sharks. This alternative would cause contribution to total non-sandbar LCS sharks in the shrimp trawl and reef fish short-term neutral economic impacts for landings using average annual landings fisheries. The average annual gross recreational fishermen as it would between 2008 and 2011, Alternative revenues for blacknose shark landings restrict landings to current levels. In the

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long-term, this alternative could have fishery for a large portion of annual Alternative Suite A5 would likely result minor adverse socioeconomic impacts if earnings. A closure of the fishery would in no additional economic impacts on the species-specific recreational shark significantly impact the livelihoods of small entities. Alternative Suite A5 quotas are exceeded and we implement these fishermen. Currently, the non- would have direct significant adverse additional management measures. This sandbar LCS fishery provides fishery- socioeconomic impacts because it would have a greater effect on wide revenue of $1,781,996 (as would prohibit the retention of all tournaments and charter vessels that discussed under Alternative Suite A1), sharks for recreational anglers. This target sharks. which would be lost under this would have a significant effect on Overall, Alternative Suite A4 would alternative suite. Currently, Gulf of tournaments and charter vessels that likely have direct short and long-term Mexico blacktip sharks provide fishery- target sharks. Alternative Suite A5 minor adverse economic impacts. These wide revenue of $624,496 (as discussed would likely have significant adverse impacts would mostly affect fishermen under Alternative Suite A1), which economic impacts because recreational catching blacknose sharks. The would be lost under this alternative and commercial shark fishing in the blacknose shark quota in the Atlantic suite and reduce the annual revenue of Atlantic, Gulf of Mexico and Caribbean would be reduced, while the Gulf of the approximately 45 direct and would be prohibited. Because other Mexico blacknose shark retention would incidental shark permit holders that had alternatives should meet the objectives be prohibited to meet the total allowable blacktip shark landings by $13,878 per of this Amendment with less significant catch. Recreational management permit holder. Consequently, the Gulf of adverse socioeconomic impacts, we do measures would affect fishermen who Mexico blacktip shark portion of not prefer this alternative suite at this retain sharks since we would implement Alternative Suite A5 would be expected time. a species-specific quota for the As explained above, in addition to to have significant adverse economic recreational fishery. Neutral economic Alternatives Suites A1 through B5, we impacts. Alternative Suite A5 would impacts are expected for recreational also considered a second category of close the entire blacknose commercial and commercial fishermen targeting alternatives (Alternatives B1 through shark fishery, prohibiting the landing of scalloped hammerhead sharks, B7) that involve pelagic longline and any blacknose sharks. This alternative aggregated LCS and non-blacknose SCS. bottom longline effort modifications, would have significant, adverse, While this alternative suite might have including time/area closures, bycatch economic impacts on fishermen with minor adverse economic impacts, there caps, modification to the existing directed and incidental shark permits is the potential for more adverse bottom longline shark research fishery, economic impacts if quotas are that fish for blacknose: the 29 directed and gear restrictions. Alternative B1 is exceeded in the future. Although this shark permit holders, and the 4 the no action alternative in this group alternative suite would allow for the incidental shark permit holders that had and would maintain existing time/area highest Gulf of Mexico blacktip shark blacknose shark landings during 2008 closures and would not implement any commercial quota, it is based on base through 2011. The result would be a new time/area closures. Under this model projections produced by stock loss of average annual gross revenues of alternative, maintaining the existing assessment scientists after the formal $35,797 from blacknose shark landings. closures and not implementing stock assessment process. These stock While this alternative could reduce additional time area closures would assessment scientists felt that the blacknose mortality below the have neutral, direct economic impacts projections had a high degree of commercial allowance required to in the short term. Vessels would uncertainty in the base model used to rebuild blacknose shark stocks, it would continue to operate subject to existing create the projections. Furthermore, also drastically reduce non-blacknose regulations, including time/area these projections were developed SCS landings, and have the largest closures, therefore no new economic outside of the standard stock assessment social and economic impacts of all the impacts would be associated with process and were not reviewed. In alternatives considered. This action maintaining the status quo. However, in addition to the uncertainty in the would require fishermen to leave the the long-term, if additional measures to model, the blacktip shark quota closed shark fisheries altogether. prevent overfishing of dusky sharks and proposed under this alternative suite Alternative Suite A5 would close the allow populations to rebuild were could lead to increased bycatch of other entire SCS commercial shark fishery, implemented, including time/area species due to increased fishing effort. prohibiting the landing of any SCS, closures, minor to moderate adverse For all these reasons, and because of the including finetooth, Atlantic sharpnose, economic impacts could be experienced potential for additional adverse and bonnethead. This alternative would by participants in the PLL and BLL socioeconomic impacts if quotas are have significant, adverse, fisheries. exceeded, we do not prefer this socioeconomic impacts on fishermen Alternative B2 would modify the alternative suite at this time. with directed and incidental shark existing Charleston Bump Pelagic Alternative Suite A5 would close all permits that fish for non-blacknose SCS, Longline time/area closure by extending commercial and recreational shark the 39 directed shark permit holders, the timing of the closure through May fisheries. Currently, scalloped and the 13 incidental shark permit 31 every year. Closing the entire hammerhead sharks provide fishery- holders that had non-blacknose SCS Charleston Bump during the month of wide revenue of $75,633 (as discussed landings since Amendment 3. The result May would result in direct, moderate under Alternative Suite A1), which would be a loss of average annual gross adverse economic impacts in the short would be lost under this alternative revenues of $544,954 from non- and long-term. On average from 2008 to suite. Consequently, the scalloped blacknose SCS landings. This action 2010, 27 vessels fished in the proposed hammerhead portion of Alternative would require fishermen to leave the closure and would be affected. The Suite A5 would be expected to only closed shark fisheries altogether. annual average reduction in revenues have moderate adverse direct economic Alternative Suite A5 would close all per affected vessel as a result of the impacts. Closure of the non-sandbar federally managed Atlantic recreational closure would be $14,292, after LCS fishery would have significant and commercial shark fisheries, adjusting for redistribution of effort into adverse direct economic impacts. Many obviating the need for quota linkages. open areas of the South Atlantic Bight fishermen rely on the non-sandbar LCS The quota linkages portion of Statistical reporting area.

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Alternative B3 would create result of the closure would be $4,177, the proposed closure and would be additional time/area closures based on after adjusting for redistribution of effort affected. The annual average reduction dusky shark interaction hotspot areas. into open areas of the Mid Atlantic in revenues per vessel as a result of the This is the preferred alternative and Bight Statistical reporting area. closure would be $8,954, after adjusting under this alternative, we consider Alternative B3e would prohibit the for redistribution of effort into open several different sub-alternatives, all of use of pelagic longline gear in HMS areas of the Charleston Bump area. which are preferred. Alternative B3a fisheries in three distinct closures in the Under Alternative B4, we would would prohibit the use of pelagic vicinity of the Mid Atlantic Bight implement dusky shark bycatch caps in longline gear in HMS fisheries in a Canyons during the month of October. the pelagic longline fishery. portion of the Charleston Bump during This sub-alternative would result in Implementing bycatch caps in the month of May. This sub-alternative neutral direct ecological impacts in the conjunction with the proposed time/ would result in direct, minor adverse short and long-term. On average from area closures described in Alternative economic impacts in the short and long- 2008 to 2010, 24 vessels fished in the B3 would result in direct, minor term, although this would be offset by proposed closure and would be affected. economic impacts in the short and long- a potential increase in dolphin The annual average increase in revenues term consistent with the economic revenues. On average from 2008 to 2010, per affected vessel as a result of the impacts described for each of the 17 vessels fished in the proposed closure would be +$5,707, after hotspot closed areas included in closure and would be affected. The adjusting for redistribution of effort into Alternative B3. The economic impacts annual average reduction in revenues open areas of the Mid Atlantic Bight of Alternative B4 would be less adverse per affected vessel as a result of the Statistical reporting area. in the short-term than implementing the closure would be $1,074, after adjusting Alternative B3f would prohibit the preferred time/area closures because for redistribution of effort into open use of pelagic longline gear in HMS bycatch caps would allow a limited areas of the Charleston Bump closed fisheries in an area in the vicinity of the amount of fishing to continue within the area. existing Northeastern closed area during time/area closures until a bycatch cap Alternative B3b would prohibit the the month of July. This sub-alternative was reached. The exact economic use of pelagic longline gear in HMS would result in direct, moderate adverse impacts of implementing bycatch caps fisheries in the vicinity of the Cape economic impacts in the short term would depend on the number of vessels Hatteras Special Research/Hatteras Shelf becoming minor in the long-term as authorized to fish in the hotspot areas Area during the month of May. This fishing vessels adjust to fishing in (vessels selected for observer coverage sub-alternative would result in direct, different areas during the proposed and carrying an observer on an annual minor adverse economic impacts in the closure. On average from 2008 to 2010, basis and the number of trips that occur short and long-term. On average from 15 vessels fished in the proposed within each hotspot areas before the 2008 to 2010, 10 vessels fished in the closure and would be affected. The bycatch cap is met. After the cap is met, proposed closure during that month and annual average reduction in revenues economic impacts would be more would be affected. The annual average per vessel as a result of the closure pronounced because of the fact that the reduction in revenues per affected would be ¥$12,518 after adjusting for hotspot area would close for the vessel as a result of the closure would redistribution of effort into open areas of remainder of the three year period. be $2,982, after adjusting for the Northeast Coastal Statistical Between 2008 and 2010, a total of 72 redistribution of effort into open areas of reporting area. unique vessels fished in the proposed the Mid Atlantic Bight Statistical Alternative B3g would prohibit the hotspot closed areas. The number of reporting area. use of pelagic longline gear in HMS vessels that would be authorized to fish Alternative B3c would prohibit the fisheries in an area in the vicinity of the in these areas would decrease as a result use of pelagic longline gear in HMS existing Northeastern closed area during of selecting this alternative, however, a fisheries in the vicinity of the Cape the month of August. This sub- limited number of vessels would still be Hatteras Special Research/Hatteras Shelf alternative would result in direct, authorized to fish in the hotspot areas Area during the month of June. This moderate adverse economic impacts in with an observer therefore the economic sub-alternative would result in direct, the short term becoming minor in the impacts of this alternative would be minor adverse economic impacts in the long-term as fishing vessels adjust to more adverse than the status quo short and long-term. On average from fishing in different areas during the (Alternative B1) and less adverse than 2008 to 2010, 11 vessels fished in the proposed closure. On average from 2008 the preferred alternative (Alternative proposed closure and would be affected. to 2010, 15 vessels fished in the B3). The annual average reduction in proposed closure and would be affected. Under Alternative B5, we would revenues per affected vessel as a result The annual average reduction in modify the timing of the existing mid- of the closure would be $2,559, after revenues per affected vessel as a result Atlantic shark closed area to December adjusting for redistribution of effort into of the closure would be ¥$7,557, after 15 to July 15. This is a preferred open areas of the Mid Atlantic Bight adjusting for redistribution of effort into alternative. Under Alternative B2, we Statistical reporting area. open areas of the Northeast Coastal would modify the timing of the existing Alternative B3d would prohibit the Statistical reporting area. mid-Atlantic shark closed area to use of pelagic longline gear in HMS Alternative B3h would prohibit the coincide with the season opening dates fisheries in the vicinity of the Cape use of pelagic longline gear in HMS in the Atlantic States Marine Fisheries Hatteras Special Research/Hatteras Shelf fisheries in a portion of the Charleston Commission Shark Plan. This is Area during the month of November. Bump during the month of November. anticipated to have direct, minor, This sub-alternative would result in This sub-alternative would result in socioeconomic impacts in the short- and direct, minor adverse economic impacts direct, moderate adverse economic long-term because fishermen in North in the short and long-term. On average impacts in the short-term becoming Carolina would have access to adjacent from 2008 to 2010, 9 vessels fished in minor in the long-term as fishing vessels Federal waters at the same that state the proposed closure and would be adjust to fishing in different areas waters open, consistent with the affected. The annual average reduction during the proposed closure. On average Atlantic States Marine Fisheries in revenues per affected vessel as a from 2008 to 2010, 12 vessels fished in Commission Shark Plan. In the short-

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term, revenue gain would be minor for quickly and increase commercial closed area,’’ ‘‘Charleston Bump May the 17 directed shark permit and 12 fisheries opportunities in the future. Hotspot closed area,’’ ‘‘Charleston Bump incidental shark permit holders along Indirect impacts, in the short and long November Hotspot closed area,’’ ‘‘FL with state-water fishermen that might term would be minor and adverse due (fork length),’’ ‘‘Gulf of Mexico normally fish in the mid-Atlantic closed to reduced revenues for fish dealers and Aggregated LCS,’’ ‘‘Hammerhead area. These North Carolina fishermen other support industries that may occur Shark(s),’’ ‘‘Hatteras Shelf Hotspot would be able to fish sooner than in if fishing effort is curtailed in the shark closed area,’’ ‘‘Research LCS,’’ and previous years, but the adjustment to research fishery. ‘‘Southern Georges Bank Hotspot the starting date of the closure would Alternative B7 would prohibit the use closed’’ in alphabetical order to read as have very minor impacts. In the past of pelagic longline and bottom longline follows: four years, the non-sandbar LCS fishery, gear in Atlantic HMS fisheries. Closing which primarily uses bottom longline the pelagic and bottom longline § 635.2 Definitions. gear, has only been open beyond fisheries would result in direct, * * * * * December 15th once. This occurred in significant adverse economic impacts in Atlantic Aggregated LCS means one of 2008 when the fishery opened in late the short and long-term for longline the following species, or parts thereof, July under the current fishing vessel owners, operators, and crew. In as listed in Table 1 of Appendix A of regulations. Since then, the non-sandbar 2010, there were 242 tuna longline this part: Atlantic blacktip, bull, lemon, LCS fishery has closed before December permits (pelagic longline) and 217 shark nurse, silky, spinner, and tiger. directed permit holders (bottom 15th. Over the long-term, the economic * * * * * impact would be minor, as the longline) that would be affected. We Canyons Hotspot closed area means a fishermen are likely to adapt to the new estimate that between 2008 and 2011, closed area comprised of three separate regulations. Because the economic approximately 169 vessels with directed rectangular areas of the Atlantic Ocean. impacts of this alternative would have shark permits landed sharks and 116 Each of these areas is bounded by direct, minor economic benefits and pelagic longline vessels made a set in straight lines connecting the following neutral ecological impacts, we prefer 2011. In 2010, the pelagic and bottom coordinates in the order stated: this alternative suite at this time. longline fisheries had revenues of $27,026,120, which equates to (1) South area: 37° 30′ N. Lat., 74° 50′ Under Alternative B6, we would approximately 70 percent of the total W. Long.; 37° 30′ N. Lat., 74° 20′ W. modify the existing bottom longline revenues for all commercial HMS Long.; 36° 30′ N. Lat., 74° 20′ W. Long.; shark research fishery to ensure that fisheries. Assuming these revenues are 36° 30′ N. Lat., 74° 50′ W. Long; 37° 30′ dusky shark interactions are reduced. distributed evenly among the 285 active N. Lat., 74° 50′ W. Long. This alternative is also preferred. Under vessels, the estimated annual reduction ° ′ ° Alternative B6, we would implement (2) Middle area: 39 10 N. Lat., 73 in revenues per vessel would be ′ ° ′ ° ′ measures in the shark research fishery 20 W. Long.; 39 10 N. Lat., 72 40 W. approximately $94,828. Given that other ° ′ ° ′ to reduce the interactions with dusky Long.; 38 40 N. Lat., 72 40 W. Long; alternatives meet the objectives of this ° ′ ° ′ ° ′ sharks. This alternative would result in 38 40 N. Lat., 74 50 W. Long; 39 10 rule at significantly lower economic ° ′ direct, minor adverse socioeconomic N. Lat., 73 20 W. Long. impacts to small entities, this alternative ° ′ ° ′ impacts in the short and long term for is not preferred. (3) North area: 40 00 N. Lat., 72 00 fishermen participating in the shark W. Long.; 40° 00′ N. Lat., 70° 30′ W. research fishery because of additional List of Subjects in 50 CFR Part 635 Long.; 39° 30′ N. Lat., 70° 30′ W. Long.; restrictions placed on vessels Fisheries, Fishing, Fishing vessels, 39° 30′ N. Lat., 72° 00′ W. Long; 40° 00′ participating in the shark research Foreign relations, Imports, Penalties, N. Lat., 72° 00′ W. Long. fishery, including, but not limited to: Reporting and recordkeeping * * * * * Limitations on soak time, limits on the requirements, Treaties. Charleston Bump May Hotspot closed number of hooks deployed per set, Dated: November 14, 2012. area means a closed area comprised of prohibiting participants from deploying Alan D. Risenhoover, the rectangular area of the Atlantic bottom longline gear at times and in Ocean bounded by straight lines areas where elevated levels of dusky Director, Office of Sustainable Fisheries, performing the functions and duties of the connecting the following coordinates in shark interactions have been observed, Deputy Assistant Administrator for the order stated: 31°30′ N. Lat., 80°00′ and/or stopping the shark research Regulatory Programs, National Marine W. Long.; 31°30′ N. Lat., 78°20′ W. fishery for the year if a certain number Fisheries Service. Long.; 31°00′ N. Lat., 78°20′ W. Long.; of dusky shark interactions is reached. For the reasons set out in the 31°00′ N. Lat., 80°00′ W. Long.; 31°30′ Fishermen participating in the research preamble, 50 CFR part 635 is proposed N. Lat., 80°00′ W. Long. fishery are targeting sandbar sharks; to be amended as follows: however, dusky sharks are often caught Charleston Bump November Hotspot as bycatch when targeting sandbar closed area means a closed area PART 635—ATLANTIC HIGHLY comprised of the polygon area of the sharks. These measures could change MIGRATORY SPECIES the way that the shark research fishery Atlantic Ocean bounded by straight 1. The authority citation for part 635 lines connecting the following operates, which could result in direct, ° ′ long-term, minor adverse socioeconomic continues to read as follows: coordinates in the order stated: 31 10 N. Lat., 79°20′ W. Long.; 31°10′ N. Lat., impacts. However, it is anticipated that Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. ° ′ ° ′ ° ′ 1801 et seq. 79 10 W. Long.; 31 20 N. Lat., 79 10 vessels will continue to want to ° ′ ° ′ participate in the shark research fishery W. Long.; 31 20 N. Lat., 78 50 W. 2. In § 635.2: Long.; 31°00′ N. Lat., 78°50′ W. Long.; because these vessels have the exclusive a. Remove the definitions of ‘‘Non- 31°00′ N. Lat., 79°20′ W. Long.; 31°10′ privilege of being able to target and ridgeback large coastal shark,’’ ‘‘Non- N. Lat., 79°20′ W. Long. harvest sandbar sharks which are sandbar LCS,’’ and ‘‘Ridgeback large desired because of their high fin value. coastal shark’’; and * * * * * It is likely that these measures would b. Add the definitions of ‘‘Atlantic FL (fork length) means the straight help sandbar sharks rebuild more Aggregated LCS,’’ ‘‘Canyons Hotspot line measurement along the length of

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the fish from the tip of the upper jaw to Such reports may be made by calling 1– with hooks are on board. Removal of the fork of the tail. 888–872–8862 or by submitting the any one of these elements constitutes * * * * * required information over the Internet removal of pelagic longline gear. If a Gulf of Mexico Aggregated LCS means at: www.hmspermits.gov. vessel issued a permit under this part is one of the following species, or parts (2) The owner, or the owner’s in a closed area designated under thereof, as listed in Table 1 of appendix designee, of a vessel permitted, or paragraph (c)(2) of this section with A of this part: bull, lemon, nurse, silky, required to be permitted, in the Atlantic pelagic longline gear on board, it is a spinner, and tiger. HMS Angling or Atlantic HMS Charter/ rebuttable presumption that fish on * * * * * Headboat category must report all non- board such vessel were taken with Hammerhead Shark(s) means great, tournament landings of Atlantic blue pelagic longline gear in the closed area scalloped, and smooth hammerhead marlin, Atlantic white marlin, except where such possession is aboard shark species, or parts thereof, as listed roundscale spearfish, and Atlantic a vessel transiting a closed area with in Table 1 in Appendix A of this part. sailfish, and all non-tournament and fishing gear stowed appropriately. ‘‘In non-commercial landings of North * * * * * transit’’ or ‘‘transiting’’ means non-stop Hatteras Shelf Hotspot closed area Atlantic swordfish and hammerhead progression through an area. Longline means a closed area comprised of the sharks to NMFS by telephone to a gear is stowed appropriately as long as rectangular area of the Atlantic Ocean number designated by NMFS, or all gangions and hooks are disconnected bounded by straight lines connecting electronically via the internet to an from the mainline and are stowed on or the following coordinates in the area internet Web site designated by NMFS, below deck, hooks are not baited, and stated: 36°10′ N. Lat., 75°00′ W. Long.; or by other means as specified by all buoys are disconnected from the 36°10′ N. Lat., 74°40′ W. Long.; 35°10′ NMFS, within 24 hours of that landing. mainline and drum (buoys may remain N. Lat., 74°40′ W. Long.; 35°10′ N. Lat., For telephone landing reports, the on deck). 75°00′ W. Long.; 36°10′ N. Lat., 75°00′ owner, or the owner’s designee, must (1) * * * W. Long. provide a contact phone number so that (i) Is in a closed area designated under a NMFS designee can call the vessel paragraph (c)(2) of this section with * * * * * owner, or the owner’s designee, for bottom longline gear onboard, and is not Research LCS means one of the follow up questions and to confirm the transiting such closed area and does not species, or part thereof, listed under reported landing. Regardless of how have with fishing gear stowed heading A of Table 1 in Appendix A of submitted, landing reports submitted to appropriately as defined above, the this part, other than the sandbar shark. NMFS are not complete unless the vessel may not, at any time, possess or * * * * * vessel owner, or the owner’s designee, land any pelagic species listed in table Southern Georges Bank Hotspot has received a confirmation number 2 of appendix A to this part in excess closed area means a closed area from NMFS or a NMFS designee. of 5 percent, by weight, of the total comprised of the parallelogram shaped * * * * * weight of pelagic and demersal species area of the Atlantic Ocean bounded by 4. In § 635.20, paragraphs (a) and possessed or landed, that are listed in straight lines connecting the following ° ′ (e)(2) are revised to read as follows: tables 2 and 3 of appendix A to this coordinates in the area stated: 40 50 N. part. Lat., 68°50′ W. Long.; 40°50′ N. Lat., § 635.20 Size limits. 66°30′ W. Long.; 39°40′ N. Lat., 67°40′ * * * * * (a) General. The CFL will be the sole (2) If pelagic longline gear is on board W. Long.; 39°40′ N. Lat., 70°00′ W. criterion for determining the size and/or Long.; 40°50′ N. Lat., 68°50′ W. Long. a vessel issued a permit under this part, size class of whole (head on) Atlantic persons aboard that vessel may not fish * * * * * tunas. or deploy any type of fishing gear: 3. In § 635.5, introductory paragraph * * * * * (i) In the following month-long (c) and paragraphs (c)(1) and (c)(2) are (e) * * * closures every year: the Charleston revised to read as follows: (2) All sharks landed under the Bump May Hotspot closed area in May; recreational retention limits specified at § 635.5 Recordkeeping and reporting. Northeastern United States closed area § 635.22(c)(2) must be at least 96 inches in June; the Canyons Hotspot closed * * * * * (243.8 cm) FL. (c) Anglers. All bluefin tuna, billfish, area in October; the Hatteras Shelf North Atlantic swordfish, and * * * * * Hotspot closed area in November; and 5. In § 635.21: the Charleston Bump November Hotspot hammerhead shark non-tournament a. Remove the introductory paragraph; landings must be reported as specified closed area in November; and (ii) In the following multi-month under paragraphs (c)(1) or (c)(2) of this b. Revise introductory paragraph (c), section, unless an alternative closures each year: Charleston Bump paragraph (c)(1)(i), introductory Hotspot closed area from February recreational catch reporting system has paragraph (c)(2), paragraphs (c)(2)(i) and been established as specified under through April; the Hatteras Shelf (ii), introductory paragraph (c)(5)(iii)(c), Hotspot closed area in May and June; paragraph (c)(3) of this section. introductory paragraph (d), and Tournament landings must be reported and the Southern Georges Bank Hotspot paragraphs (d)(1)(i) and (d)(4) to read as closed area in July and August; as specified under paragraph (d) of this follows: section. * * * * * (1) Bluefin tuna. The owner of a § 635.21 Gear operation and deployment (5) * * * vessel permitted, or required to be restrictions. (iii) * * * permitted, in the Atlantic HMS Angling * * * * * (C) Hook size, type, and bait. Vessels or Atlantic HMS Charter/Headboat (c) Pelagic longlines. For purposes of fishing outside of the Northeast Distant category must report all BFT landings this part, a vessel is considered to have gear restricted area, as defined at under the Angling category quota pelagic longline gear on board when a § 635.2, that have pelagic longline gear designated at § 635.27(a) through the power-operated longline hauler, a on board, and that have, or are required NMFS automated landings reporting mainline, floats capable of supporting to have, a limited access swordfish, system within 24 hours of the landing. the mainline, and leaders (gangions) shark, or tuna longline category permit

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for use in the Atlantic Ocean, including § 635.22 Recreational retention limits. § 635.27 Quotas. the Caribbean Sea and the Gulf of * * * * * * * * * * Mexico, are limited, at all times, to (c) * * * (b) Sharks—(1) Commercial quotas. possessing on board and/or using only (2) Only one shark from the following The commercial quotas for sharks whole finfish and/or squid bait, and the list may be retained per vessel per trip, specified in this section apply to all following types and sizes of fishing subject to the size limits described in sharks harvested from the management hooks: § 635.20(e)(2): Atlantic blacktip, Gulf of unit, regardless of where harvested. The * * * * * Mexico blacktip, bull, great base quotas listed below may be hammerhead, scalloped hammerhead, adjusted per paragraph (b)(2) of this (d) Bottom longlines. For the purposes section. Sharks taken and landed of this part, a vessel is considered to smooth hammerhead, lemon, nurse, spinner, tiger, blue, common thresher, commercially from state waters, even by have bottom longline gear on board fishermen without Federal shark when a power-operated longline hauler, oceanic whitetip, porbeagle, shortfin mako, Atlantic sharpnose, finetooth, permits, must be counted against the a mainline, weights and/or anchors commercial quota. Any sharks landed capable of maintaining contact between Atlantic blacknose, Gulf of Mexico blacknose, and bonnethead. commercially as unclassified will be the mainline and the ocean bottom, and counted against the appropriate quota leaders (gangions) with hooks are on * * * * * based on the species composition board. Removal of any one of these 7. In § 635.24: calculated from data collected by elements constitutes removal of bottom a. Remove and reserve paragraph observers on non-research trips and/or longline gear. Bottom longline vessels (a)(7); and dealer data. No prohibited sharks, may have a limited number of floats b. Revise paragraphs (a)(2), (a)(3), and including parts or pieces of prohibited and/or high flyers onboard for the (a)(4)(ii) to read as follows: sharks, which are listed under heading purposes of marking the location of the D of Table 1 of Appendix A to this part, gear but removal of these floats does not § 635.24 Commercial retention limits for may be retained except as authorized sharks and swordfish. constitute removal of bottom longline under § 635.32. For the purposes of this gear. If a vessel issued a permit under * * * * * section, the boundary between the Gulf this part is in a closed area designated (a) * * * of Mexico region and the Atlantic region under paragraph (d)(1) of this section (2) A person who owns or operates a is defined as a line beginning on the east with bottom longline gear on board, it vessel that has been issued a directed coast of Florida at the mainland at is a rebuttable presumption that any fish LAP for sharks and does not have a 25°20.4′ N. lat, proceeding due east. on board such a vessel were taken with valid shark research permit, or a person Any water and land to the south and bottom longline in the closed area who owns or operates a vessel that has west of that boundary is considered, for except where such possession is aboard been issued a directed LAP for sharks the purposes of quota monitoring and a vessel transiting a closed area fishing and that has been issued a shark setting of quotas, to be within the Gulf gear stowed appropriately. ‘‘In transit’’ research permit but does not have a of Mexico region. Any water and land or ‘‘transiting’’ means non-stop NMFS-approved observer on board, may to the north and east of that boundary, progression through an area. Longline retain, possess, or land no more than 36 for the purposes of quota monitoring gear is stowed appropriately as long as LCS other than sandbar sharks per and setting of quotas, is considered to be all gangions and hooks are disconnected vessel per trip if the respective LCS within the Atlantic region. from the mainline and are stowed on or fishery(ies) is open per § 635.27 and (i) Sandbar sharks. The base annual below deck, hooks are not baited, and § 635.28. Such persons may not retain, commercial quota for sandbar sharks is all buoys are disconnected from the possess, or land sandbar sharks. 116.6 mt dw. This quota, as adjusted per mainline and drum (buoys may remain (3) A person who owns or operates a paragraph (b)(2) of this section, is on deck). vessel that has been issued an incidental available only to the owners of (1) * * * LAP for sharks and does not have a commercial shark vessels that have been issued a valid shark research permit and (i) The mid-Atlantic shark closed area valid shark research permit, or a person who owns or operates a vessel that has that have a NMFS-approved observer from December 15 through July 15 every onboard. year; been issued an incidental LAP for sharks and that has been issued a valid (ii) Atlantic aggregated LCS. The base * * * * * shark research permit but does not have annual commercial quota for Atlantic (4) If a vessel issued or required to be a NMFS-approved observer on board, aggregated LCS is 168.2 mt dw. The issued a permit under this part is in a may retain, possess, or land no more commercial quota for the Atlantic closed area designated under paragraph than 3 LCS other than sandbar sharks aggregated LCS, as adjusted per (d)(1) of this section with pelagic per vessel per trip if the respective LCS paragraph (b)(2) of this section, applies longline gear onboard, and is not fishery(ies) is open per § 635.27 and only to those species of sharks that were transiting such closed area and does not § 635.28. Such persons may not retain, caught in the Atlantic region, as defined have with gear stowed appropriately as possess, or land sandbar sharks. in paragraph (b)(1) of this section. (iii) Gulf of Mexico aggregated LCS. defined above, the vessel may not, at (4) * * * any time, possess or land any demersal The base annual commercial quota for (ii) A person who owns or operates a Gulf of Mexico aggregated LCS is 157.3 species listed in Table 3 of Appendix A vessel that has been issued a directed to this part in excess of 5 percent, by mt dw. The commercial quota for the shark LAP may retain, possess, or land Gulf of Mexico aggregated LCS, as weight, of the total weight of pelagic blacknose and non-blacknose SCS if the and demersal species possessed or adjusted per paragraph (b)(2), applies respective blacknose and non-blacknose only to those species of sharks that were landed, that are listed in Tables 2 and SCS fisheries are open per §§ 635.27 and 3 of Appendix A to this part. caught in the Gulf of Mexico region, as 635.28. defined in paragraph (b)(1) of this * * * * * * * * * * section. 6. In § 635.22, paragraph (c)(2) is 8. In § 635.27, paragraph (b) is revised (iv) Research LCS. The base annual revised to read as follows: to read as follows: commercial quota for Research LCS is

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50 mt dw. This quota, as adjusted per (ix) Gulf of Mexico blacknose sharks. equal to the base annual quota. If the paragraph (b)(2) of this section, is The base annual commercial quota for species or all species in a management available only to the owners of Gulf of Mexico blacknose sharks is 2 mt group is not declared to be overfished, commercial shark vessels that have been dw. The commercial quota for Gulf of to have overfishing occurring, or to have issued a valid shark research permit and Mexico blacknose sharks, as adjusted an unknown status, NMFS may increase that have a NMFS-approved observer per paragraph (b)(2) of this section, the following year’s base annual quota onboard. applies only to those species of sharks by an equivalent amount of the (v) Hammerhead sharks. The base that were caught in the Gulf of Mexico underharvest up to 50 percent above the annual commercial quota for all region, as defined in paragraph (b)(1) of base annual quota. Except as noted hammerhead sharks is 52.2 mt dw. This this section. below, underharvests are not quota is split between the regions (x) Pelagic sharks. The base annual transferable between regions, species, defined in paragraph (b)(1) of this commercial quotas for pelagic sharks are and/or management groups. section as follows: Atlantic region 273 mt dw for blue sharks, 1.7 mt dw (iii) Determination criteria for receives 54.2% of the base quota, except for porbeagle sharks, and 488 mt dw for inseason and annual quota transfers as adjusted per paragraph (b)(2) of this pelagic sharks other than blue sharks or between regions. Inseason and/or annual section; Gulf of Mexico region receives porbeagle sharks. quota transfers of regional quotas 45.8% of the base quota, except as (2) Annual and inseason adjustments between regions may be conducted only adjusted per paragraph (b)(2) of this of commercial quotas. NMFS will for species or management groups section. The commercial quota for publish in the Federal Register any where the species are the same between Atlantic hammerhead sharks applies annual or inseason adjustments to the regions and the quota is split between only to those species of sharks that were base annual commercial quotas. The regions for management purposes and caught in the Atlantic region, as defined base annual quota will not be available, not as a result of a stock assessment. in paragraph (b)(1) of this section. The and the fishery will not open, until any Before making any inseason or annual commercial quota for Gulf of Mexico adjustments are published and effective quota transfer between regions, NMFS hammerhead sharks applies only to in the Federal Register. Within a fishing will consider the following criteria and those species of sharks that were caught year or at the start of a fishing year, other relevant factors: in the Gulf of Mexico region, as defined NMFS may transfer quotas between (A) The usefulness of information in paragraph (b)(1) of this section. regions of the same species or obtained from catches in the particular (vi) Gulf of Mexico blacktip sharks. management group, as appropriate, management group for biological The base annual commercial quota for based on the criteria in paragraph sampling and monitoring of the status of Gulf of Mexico blacktip sharks is 256.7 (b)(1)(i)(C) of this section. the respective shark species and/or mt dw. The commercial quota for Gulf (i) Annual overharvest adjustments. management group. of Mexico blacktip sharks, as adjusted Except as noted in this paragraph, if any (B) The catches of the particular per paragraph (b)(2) of this section, of the available commercial base or species and/or management group quota applies only to those species of sharks adjusted quotas as described in this to date and the likelihood of closure of that were caught in the Gulf of Mexico section is exceeded in any fishing year, region, as defined in paragraph (b)(1) of NMFS will deduct an amount that segment of the fishery if no this section. equivalent to the overharvest(s) from the adjustment is made. (vii) Non-blacknose small coastal base quota the following fishing year or, (C) The projected ability of the vessels sharks. The base annual commercial depending on the level of fishing under the particular species and/ quota for non-blacknose small coastal overharvest(s), NMFS may deduct from or management group quota to harvest sharks across all regions is 221.6 mt dw. the base quota an amount equivalent to the additional amount of corresponding This quota is split between the regions the overharvest(s) spread over a number quota before the end of the fishing year. defined in paragraph (b)(1) of this of subsequent fishing years to a (D) Effects of the adjustment on the section as follows: The Atlantic region maximum of five years. If the blue shark status of all shark species. receives 89.3% of the base quota, except quota is exceeded, NMFS will reduce (E) Effects of the adjustment on as adjusted per paragraph (b)(2) of this the annual commercial quota for pelagic accomplishing the objectives of the section; the Gulf of Mexico region sharks by the amount that the blue shark fishery management plan. receives 10.7% of the base quota, except quota is exceeded prior to the start of (F) Variations in seasonal distribution, as adjusted per paragraph (b)(2) of this the next fishing year or, depending on abundance, or migration patterns of the section. The commercial quota for the level of overharvest(s), deduct an appropriate shark species and/or Atlantic non-blacknose SCS applies amount equivalent to the overharvest(s) management group. only to those species of sharks that were spread over a number of subsequent (G) Effects of catch rates in one area caught in the Atlantic region, as defined fishing years to a maximum of five precluding vessels in another area from in paragraph (b)(1) of this section. The years. having a reasonable opportunity to commercial quota for Gulf of Mexico (ii) Annual underharvest adjustments. harvest a portion of the quota. non-blacknose SCS applies only to those Except as noted in this paragraph, if any (H) Review of dealer reports, daily species of sharks that were caught in the of the annual base or adjusted quotas as landing trends, and the availability of Gulf of Mexico region, as defined in described in this section is not the respective shark species and/or paragraph (b)(1) of this section. harvested, NMFS may adjust the annual management group on the fishing (viii) Atlantic blacknose sharks. The base quota depending on the status of grounds. base annual commercial quota for the stock or quota group. If a species or (3) Opening commercial fishing Atlantic blacknose sharks is 18 mt dw. a specific species within a management season criteria. NMFS will file with the The commercial quota for Atlantic group is declared to be overfished, to Office of the Federal Register for blacknose sharks, as adjusted per have overfishing occurring, or to have publication notification of the opening paragraph (b)(2) of this section, applies an unknown status, NMFS may not dates of the shark fishery for each only to those species of sharks that were adjust the following fishing year’s base species and management group. Before caught in the Atlantic region, as defined quota for any underharvest, and the making any decisions, NMFS would in paragraph (b)(1) of this section. following fishing year’s quota will be consider the following criteria and other

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relevant factors in establishing the (b) Sharks—(1) Non-linked quotas: If (iii) Atlantic blacknose and Atlantic opening dates: the quota of a species or management non-blacknose SCS. (i) The available annual quotas for the group is not linked to another species or (iv) Gulf of Mexico blacknose and current fishing season for the different management group, then if quota is Gulf of Mexico non-blacknose SCS. species/complexes based on any over- available as specified by a publication (4) When the fishery for a shark and/or underharvests experienced in the Federal Register, the commercial species and/or management group is during the previous commercial shark fishery for the shark species closed, a fishing vessel, issued a Federal fishing seasons; management group specified in Atlantic commercial shark permit (ii) Estimated season length based on § 635.27(b) will remain open. When pursuant to § 635.4, may not possess or available quota(s) and average weekly NMFS calculates that the landings for sell a shark of that species and/or catch rates of different species and/or the shark species management group, as management group, except under the management group from the previous specified in § 635.27(b)(1), has reached conditions specified in § 635.22(a) and years; or is projected to reach 80 percent of the (c) or if the vessel possesses a valid (iii) Length of the season for the available quota as specified in shark research permit under § 635.32, a different species and/or management § 635.27(b)(1), NMFS will file for NMFS-approved observer is onboard, group in the previous years and whether publication with the Office of the and the sandbar and/or Research LCS fishermen were able to participate in the Federal Register a notice of closure for fishery is open. A shark dealer, issued fishery in those years; that shark species, shark management a permit pursuant to § 635.4, may not (iv) Variations in seasonal group, and/or region that will be effective no fewer than 5 days from date purchase or receive a shark of that distribution, abundance, or migratory species and/or management group from patterns of the different species/ of filing. From the effective date and time of the closure until NMFS a vessel issued a Federal Atlantic complexes based on scientific and commercial shark permit, except that a fishery information; announces, via the publication of a notice in the Federal Register, that permitted shark dealer or processor may (v) Effects of catch rates in one part of possess sharks that were harvested, off- a region precluding vessels in another additional quota is available and the season is reopened, the fisheries for the loaded, and sold, traded, or bartered, part of that region from having a prior to the effective date of the closure reasonable opportunity to harvest a shark species or management group are closed, even across fishing years. and were held in storage. Under a portion of the different species and/or closure for a shark species group, a management quotas; (2) Linked Quotas: As specified in paragraph (b)(3) of this section, the shark dealer, issued a permit pursuant (vi) Effects of the adjustment on quotas of some shark species and/or to § 635.4 may, in accordance with State accomplishing the objectives of the 2006 management groups are linked to the regulations, purchase or receive a shark Consolidated HMS FMP and its quotas of other shark species and/or of that species or management group if amendments; and/or, management groups. For these linked the sharks were harvested, off-loaded, (vii) Effects of a delayed opening with species and/or management groups, if and sold, traded, or bartered from a regard to fishing opportunities in other the quota specified in § 635.27(b)(1) is vessel that fishes only in State waters fisheries. available for all the linked species and/ and that has not been issued a Federal (4) Public display and non-specific or management groups as specified by a Atlantic commercial shark permit, HMS research quotas. All sharks collected publication in the Federal Register, the Angling permit, or HMS Charter/ under the authority of a display permit commercial fishery for all linked species Headboat permit pursuant to § 635.4. or EFP, subject to restrictions at and/or management groups will remain Additionally, under a closure for a shark § 635.32, will be counted against the open. When NMFS calculates that the species and/or management group, a following: landings for any species and/or shark dealer, issued a permit pursuant (i) The base annual quota for persons management group of a linked group to § 635.4, may purchase or receive a who collect LCS other than sandbar, has reached or is projected to reach 80 shark of that species group if the SCS, pelagic sharks, blue sharks, percent of the available quota as sandbar and/or Research LCS fishery is porbeagle sharks, or prohibited species specified in § 635.27(b)(1), NMFS will open and the sharks were harvested, off- under a display permit or EFP is 57.2 mt file for publication with the Office of the loaded, and sold, traded, or bartered ww (41.2 mt dw). Federal Register a notice of closure for from a vessel issued a valid shark (ii) The base annual quota for persons all of the species and/or management research permit (per § 635.32) that had who collect sandbar sharks under a groups in a linked group that will be a NMFS-approved observer on board display permit is 1.4 mt ww (1 mt dw) effective no fewer than 5 days from date during the trip sharks were collected. and under an EFP is 1.4 mt ww (1 mt of filing. From the effective date and * * * * * dw). time of the closure until NMFS 10. In § 635.31, paragraphs (c)(1) and (iii) No persons may collect dusky announces, via the publication of a (c)(4) are revised to read as follows: sharks under a display permit. notice in the Federal Register, that Collection of dusky sharks for research additional quota is available and the § 635.31 Restrictions on sale and under EFPs and/or SRPs may be season is reopened, the fishery for all purchase. considered on a case by case basis and species and/or management groups in a * * * * * any associated mortality would be linked group is closed, even across (c) * * * deducted from the shark research and fishing years. display quota. (3) The quotas of the following (1) Persons who own or operate a * * * * * species and/or management groups are vessel that possesses a shark from the 9. In § 635.28, the section heading and linked: management unit may sell such shark paragraph (b) are revised to read as (i) Atlantic hammerhead sharks and only if the vessel has a valid commercial follows: Atlantic aggregated LCS. shark permit issued under this part. (ii) Gulf of Mexico hammerhead Persons may possess and sell a shark § 635.28 Fishery closures. sharks, Gulf of Mexico aggregated LCS, only when the fishery for that species, * * * * * and Gulf of Mexico blacktip sharks. management group, and/or region has

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not been closed, as specified in (d) * * * B. Small Coastal Sharks § 635.28(b). (3) Retain, possess, or land a shark of Atlantic sharpnose, Rhizoprionodon * * * * * a species group when the fishery for that terraenovae (4) Only dealers who have a valid species, management group, and/or Atlantic and Gulf of Mexico blacknose, shark dealer permit may purchase shark region is closed, as specified in Carcharhinus acronotus from the owner or operator of a fishing § 635.28(b). Bonnethead, Sphyrna tiburo vessel. Dealers may purchase a shark (4) Sell or purchase a shark of a Finetooth, Carcharhinus isodon only from an owner or operator of a species group when the fishery for that * * * * * vessel who has a valid commercial species, management group, and/or shark permit issued under this part, region is closed, as specified in D. Prohibited Sharks except that dealers may purchase a § 635.28(b). Atlantic angel, Squatina dumeril shark from an owner or operator of a * * * * * Basking, Cetorhinus maximus vessel who does not have a commercial 12. In Appendix A to part 635, Bigeye sand tiger, Odontaspis noronhai Bigeye sixgill, Hexanchus nakamurai permit for shark if that vessel fishes Sections A, B, and D of Table 1 are Bigeye thresher, Alopias superciliosus exclusively in state waters. Dealers may revised to read as follows: purchase a sandbar shark only from an Bignose, Carcharhinus altimus owner or operator of a vessel who has Appendix A to Part 635—Species Caribbean reef, Carcharhinus perezii a valid shark research permit and who Tables Caribbean sharpnose, Rhizoprionodon porosus had a NMFS-approved observer onboard Table 1 of Appendix A to Part 635—Oceanic Dusky, Carcharhinus obscurus the vessel for the trip in which the Sharks sandbar shark was collected. Dealers Galapagos, Carcharhinus galapagensis may purchase a shark from an owner or A. Large Coastal Sharks Longfin mako, Isurus paucus operator of fishing vessel who has a Atlantic and Gulf of Mexico blacktip, Narrowtooth, Carcharhinus brachyurus permit issued under this part only when Carcharhinus limbatus Night, Carcharhinus signatus the fishery for that species, management Bull, Carcharhinus leucas Sand tiger, Carcharias taurus group, and/or region has not been Great hammerhead, Sphyrna mokarran Sevengill, Heptranchias perlo closed, as specified in § 635.28(b). Lemon, Negaprion brevirostris Sixgill, Hexanchus griseus Nurse, Ginglymostoma cirratum Smalltail, Carcharhinus porosus * * * * * Sandbar, Carcharhinus plumbeus Whale, Rhincodon typus 11. In § 635.71, paragraphs (d)(3) and Scalloped hammerhead, Sphyrna lewini White, Carcharodon carcharias (d)(4) are revised to read as follows: Silky, Carcharhinus falciformis Smooth hammerhead, Sphyrna zygaena * * * * * § 635.71 Prohibitions. Spinner, Carcharhinus brevipinna [FR Doc. 2012–28056 Filed 11–23–12; 8:45 am] * * * * * Tiger, Galeocerdo cuvier BILLING CODE 3510–22–P

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Part III

Department of Health and Human Services

45 CFR Parts 144, 147, 150, et al. Patient Protection and Affordable Care Act; Health Insurance Market Rules; Rate Review; Proposed Rule

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DEPARTMENT OF HEALTH AND Stop C4–26–05, 7500 Security of a document, at the headquarters of HUMAN SERVICES Boulevard, Baltimore, MD 21244–1850. the Centers for Medicare & Medicaid 4. By Hand or Courier. Alternatively, Services, 7500 Security Boulevard, 45 CFR Parts 144, 147, 150, 154 and you may deliver (by hand or courier) Baltimore, Maryland 21244, Monday 156 your written comments only to the through Friday of each week from 8:30 [CMS–9972–P] following addresses prior to the close of a.m. to 4 p.m. To schedule an the comment period: appointment to view public comments, RIN 0938–AR40 a. For delivery in Washington, DC— phone (800) 743–3951. Centers for Medicare & Medicaid Patient Protection and Affordable Care Services, Department of Health and I. Executive Summary Act; Health Insurance Market Rules; Human Services, Room 445–G, Hubert A. Purpose of the Proposed Regulatory Rate Review H. Humphrey Building, 200 Action AGENCY: Centers for Medicare & Independence Avenue SW., Washington, DC 20201. 1. Need for the Proposed Regulatory Medicaid Services (CMS), HHS. Action ACTION: Proposed rule. (Because access to the interior of the Hubert H. Humphrey Building is not Today, consumers with current or SUMMARY: This proposed rule would readily available to persons without past medical problems can be denied implement the Affordable Care Act’s federal government identification, health insurance coverage in the vast policies related to fair health insurance commenters are encouraged to leave majority of individual (nongroup) premiums, guaranteed availability, their comments in the CMS drop slots markets (45 states). Similarly, guaranteed renewability, risk pools, and located in the main lobby of the individuals and small employers often catastrophic plans. The proposed rule building. A stamp-in clock is available find that they have few protections in would clarify the approach used to for persons wishing to retain a proof of terms of the premiums that issuers can enforce the applicable requirements of filing by stamping in and retaining an charge them. For example, in the the Affordable Care Act with respect to extra copy of the comments being filed.) individual market, 43 states allow health insurance issuers and group b. For delivery in Baltimore, MD— health status rating and 48 states allow health plans that are non-federal Centers for Medicare & Medicaid age rating (often unlimited). While 37 governmental plans. This proposed rule Services, states explicitly allow gender rating, would also amend the standards for Department of Health and Human three states that prohibit gender rating health insurance issuers and states Services, 7500 Security Boulevard, do not require maternity coverage in all regarding reporting, utilization, and Baltimore, MD 21244–1850. individual market policies, meaning collection of data under section 2794 of If you intend to deliver your that, since maternity coverage requires the Public Health Service Act (PHS Act). comments to the Baltimore address, call additional premium in those states, a It also revises the timeline for states to telephone number (410) 786–9994 in total of 40 states allow some form of propose state-specific thresholds for advance to schedule your arrival with gender rating in practice. In the small review and approval by CMS. one of our staff members. group market, 38 states allow health DATES: To be assured consideration, Comments erroneously mailed to the status rating, 48 states allow age rating comments must be received at one of addresses indicated as appropriate for (often unlimited), 35 states allow gender the addresses provided below, no later hand or courier delivery may be delayed rating, and 37 states allow industry than 5 p.m. on December 26, 2012. and received after the comment period. rating.1 For information on viewing public Sections 2701, 2702, and 2703 of the ADDRESSES: In commenting, please refer comments, see the beginning of the Public Health Service Act (PHS Act), as to file code CMS–9972–P. Because of SUPPLEMENTARY INFORMATION section. added and amended by the Patient staff and resource limitations, we cannot Protection and Affordable Care Act accept comments by facsimile (FAX) FOR FURTHER INFORMATION CONTACT: (Affordable Care Act), and section transmission. Jacob Ackerman, (410) 786–1565, You may submit comments in one of concerning the health insurance market 1312(c) of the Affordable Care Act four ways (please choose only one of the rules; Douglas Pennington, (410) 786– address these problems by extending ways listed): 1553 (or by email: [email protected]), guaranteed availability (also known as 1. Electronically. You may submit concerning rate review. guaranteed issue) protections so that electronic comments on this regulation SUPPLEMENTARY INFORMATION: Inspection individuals and employers will be able to http://www.regulations.gov. Follow of Public Comments: All comments to obtain coverage when it currently can the ‘‘Submit a comment’’ instructions. received before the close of the be denied, by continuing current 2. By Regular Mail. You may mail comment period are available for guaranteed renewability protections, by written comments to the following viewing by the public, including any prohibiting the use of factors such as address ONLY: Centers for Medicare & personally identifiable or confidential health status, medical history, gender, Medicaid Services, Department of business information that is included in and industry of employment to set Health and Human Services, Attention: a comment. We post all comments premium rates, by limiting age rating, CMS–9972–P, P.O. Box 8012, Baltimore, received before the close of the and by prohibiting issuers from dividing MD 21244–1850. comment period on the following Web up their insurance pools. These reforms Please allow sufficient time for mailed site as soon as possible after they have are effective for plan years (group comments to be received before the been received: http:// 1 Ctr. on Health Ins. Reforms, Georgetown Univ. close of the comment period. www.regulations.gov. Follow the search Health Policy Inst., Individual Market Guaranteed 3. By Express or Overnight Mail. You instructions on that Web site to view Issue, Individual Health Insurance Market Rate may send written comments to the public comments. Restrictions, and Small Group Health Insurance following address only: Centers for Comments received timely will also Market Rate Restrictions, available at http:// statehealthfacts.org; Nat’l Women’s Law Center, Medicare & Medicaid Services, be available for public inspection as Turning to Fairness: Insurance Discrimination Department of Health and Human they are received, generally beginning Against Women Today and the Affordable Care Act Services, Attention: CMS–9972–P, Mail approximately 3 weeks after publication (2012).

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market) and policy years (individual Exchange. The Secretary will monitor after January 1, 2014 in a state that does market) starting on or after January 1, these increases to identify patterns that not require the rate increases to be filed. 2014. could signal market disruption and Proposed revisions in § 154.301 would The implementation of these assist in oversight of the new market- add criteria and factors for a state to proposed rules will ensure that every wide rating reforms created by the have an Effective Rate Review Program, American, for the first time, will have Affordable Care Act, which are effective including that the state receives from all access to affordable health insurance on January 1, 2014. issuers proposing rate increases data coverage notwithstanding any health 2. Legal Authority and documentation about the rate problems they may have. In addition, increases in the standardized form also for the first time throughout the The substantive authority for these specified by the Secretary; reviews the nation, health insurance issuers will be proposed rules is generally sections information for proposed rate increases prevented from charging individuals 2701, 2702, 2703, 2723 and 2794 of the greater than or equal to the review and small employers higher premiums PHS Act and sections 1302(e), 1312(c), threshold; and makes information due to enrollees’ health status or gender. and 1560(c) of the Affordable Care Act. publicly available through its Web site. CMS is issuing these proposed PHS Act section 2792 authorizes us to Proposed § 156.80 generally would regulations to provide the necessary promulgate regulations that are require health insurance issuers to treat guidance to implement these important necessary or appropriate to carry out all of their non-grandfathered business consumer protections included in sections 2701, 2702, 2703, 2723, and in the individual market and small sections 2701, 2702, and 2703 of the 2794. Section 1321(a) of the Affordable group market, respectively, as a single PHS Act and section 1312(c) of the Care Act authorizes rulemaking with risk pool. A state would have the Affordable Care Act. respect to sections 1302(e), 1312(c), and authority to choose to direct issuers to In addition, PHS Act section 2723 1560(c). merge their non-grandfathered provides CMS with enforcement B. Summary of the Major Provisions of individual and small group pools into a authority with respect to health This Proposed Regulatory Action combined pool. insurance issuers (in certain instances) Proposed § 156.155 generally would and group health plans that are non- Proposed 45 CFR 147.102 would codify section 1302(e) of the Affordable federal governmental plans in require issuers offering non- Care Act regarding catastrophic plans. connection with the various health grandfathered health insurance coverage insurance and group health plan in the individual and small group The proposed revisions in 45 CFR standards added by the Affordable Care markets starting in 2014, and the large part 150 would clarify that CMS uses Act. The proposed rules would make group market if such coverage is the same enforcement processes with non-substantive changes that clarify the available through an Affordable respect to the requirements of 45 CFR processes that CMS currently uses to Insurance Exchange (Exchange) starting part 147, which implements provisions enforce such standards. These technical in 2017, to limit any variation in added by the Affordable Care Act, as it changes seek to eliminate confusion premiums with respect to a particular does with respect to the requirements of among states, issuers, non-federal plan or coverage to age and tobacco use 45 CFR parts 146 and 148, which pre- governmental group health plans, within limits, family size, and date the Affordable Care Act. Additional consumers, and others concerning geography. revisions would conform certain CMS’s enforcement processes. Proposed § 147.104 would require sections in 45 CFR part 144 to the The proposed rule would also include issuers offering non-grandfathered clarification concerning the scope of 45 proposed policy for enrollment in health insurance coverage to accept CFR part 150. catastrophic plans that are available for every individual or employer who C. Costs and Benefits young adults and people who would applies for coverage in the individual or otherwise find health insurance group market, as applicable, subject to The provisions of this proposed rule, unaffordable. certain exceptions (for example, limits combined with other provisions in the The proposed rule would also revise on network capacity). Affordable Care Act, will improve the the timing of the submission of requests Proposed § 147.106 would require individual health insurance market by for state-specific thresholds and the issuers to renew all coverage in the making insurance affordable and effective dates of such thresholds; individual and group markets, subject to accessible to millions of Americans who require that health insurance issuers certain exceptions (for example, non- currently do not have affordable options submit data on proposed rate increases payment of premiums or fraud). available to them. The shortcomings of in a form and manner to be determined The proposed revisions in 45 CFR the individual market today have been by CMS, and amend the requirements part 154 would make three changes to widely documented.2 Between 50 and for a state to have an Effective Rate the existing rate review program. 129 million Americans, if they tried to Review Program. We are proposing Proposed revisions in § 154.200 would purchase coverage in the individual these changes to align with the timing require states seeking state-specific market, would be denied coverage of rate submissions of qualified health thresholds to submit proposals for such entirely or would have their premiums plans (QHPs), as defined under section thresholds by August 1 of each year and ‘‘rated up,’’ and would likely have 1301 of the Affordable Care Act, in the require CMS to review the proposals by coverage for certain medical conditions Exchanges, and to adjust rate review to September 1 of each year. If approved, meet its additional purpose of helping a state-specific threshold would be 2 Michelle M. Doty et al., Failure to Protect: Why to promote fair market competition effective January 1 of the following year. the Individual Insurance Market Is Not a Viable Option for Most U.S. Families: Findings from the beginning in 2014. The law requires Proposed revisions in § 154.215 and Commonwealth Fund Biennial Health Insurance that, beginning in 2014, the Secretary of § 154.220 would require health Survey, 2007, The Commonwealth Fund, July 2009; the Department of Health and Human insurance issuers to submit, in a Sara R. Collins, Invited Testimony: Premium Tax Services (the Secretary), in conjunction standardized format to be specified by Credits Under The Affordable Care Act: How They Will Help Millions Of Uninsured And with states, monitor premium increases the Secretary, data relating to proposed Underinsured Americans Gain Affordable, of health insurance coverage offered rate increases that are filed in a state on Comprehensive Health Insurance, The through an Exchange and outside of an or after April 1, 2013, or effective on or Commonwealth Fund, October 27, 2011.

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excluded.3 In addition, people eliminating gender rating and the could continue their high risk pools previously enrolled in individual limitations on age ratios could affect beyond 2014 as a means of easing the insurance with high health risks or costs premium rates for some in some transition. Ensuring premiums are are often further blocked from access to markets, this will be largely mitigated affordable is a priority for the the market as they are put into ‘‘closed for most people by the availability of Administration as well as states, blocks’’ of business that are not open to premium tax credits, by increased consumers, and insurers, so we new enrollees, and subject to large efficiencies and greater competition in welcome suggestions for the final rule premium increases each year. Relatively the individual market, by measures such on ways to achieve this goal while healthy subscribers can switch into as the transitional reinsurance program implementing these essential consumer lower-priced, open blocks of coverage, and temporary risk corridors program to protections. while those who are sick only have the stabilize premiums, and by expected Issuers may incur some one-time choice of paying the large premium improvements in the overall health fixed costs in order to comply with the increases or dropping coverage status of the risk pool. The availability provisions of the final rule, including altogether. of premium tax credits through administrative and marketing costs. These limitations of the individual Exchanges starting in 2014 will result in Administrative costs are, however, market are made evident by how few lower net premium rates for most expected to decrease as a result of the people actually purchase coverage in people currently purchasing coverage in elimination of medical underwriting to the individual market. In 2011, the individual market, and will determine premium amounts. Issuer approximately 48.6 million people were encourage younger and healthier revenues and expenditures are also uninsured in the United States,4 while enrollees to enter the market, improving expected to increase substantially as a only around 10.8 million were enrolled the risk pool and leading to reductions result of the expected increase in the in the individual market.5 The relatively in premium rates for current number of people purchasing individual small fraction of the target market that policyholders.6 Additionally, young market coverage, which is projected to actually purchases coverage in the adults and people for whom coverage exceed 50 percent of current individual market in part reflects how would otherwise be unaffordable will enrollment.7 We are soliciting expensive the product is relative to its have access to a catastrophic plan that information on the nature and value, people’s resources, and how will have a lower premium, protect magnitude of these costs and benefits to difficult it is for many people to access against high out-of-pocket costs, and issuers, and the potential effect of the coverage. cover recommended preventive services provisions of this rule on premium rates The provisions of this proposed rule, without cost sharing. Similarly, the and financial performance. combined with other provisions in the minimum coverage provision will lead In addition, states may incur costs if Affordable Care Act, will improve the to expansion in the number of they choose to establish their own, new functioning of both the individual and purchasers and improvements in the geographic rating areas and age rating the small group markets. The provision health of the risk pool. Further, curves. We are also requesting for guaranteed availability will ensure premium rates are expected to decline information on such costs. that individuals with health problems as a result of the administrative The proposed amendments to the rate who were previously unable to obtain efficiencies from eliminating review program would help issuers to coverage in the individual market will underwriting, and, more importantly, avoid significant duplication of effort have access to coverage. The provision due to the effects of greater competition for filings subject to review by using the requiring that age, tobacco use, family in the individual market created by same standardized template for both size, and geography are the only Exchanges. Lower premium rates are non-QHPs and QHPs. Additionally, the permissible rating factors, within limits, expected to lead to further increases in collection of rate information below the will ensure that people with greater purchase, and a further improvement in rate review threshold and use of a than average health needs are not priced the risk pool. standardized data template would out of the market. The provision We solicit comments on additional provide the Department of Health and requiring a single risk pool in each strategies consistent with the Affordable Human Services (HHS) and state market will ensure that rate increases Care Act that CMS or states might departments of insurance with the for healthy and less healthy people will deploy to avoid or minimize disruption ability to conduct the review and be equal over time. Elimination of rating of rates in the current market and approval of products sold inside and based on gender will mean lower encourage timely enrollment in outside an Exchange and ensure market premium rates for women, and the 3:1 coverage in 2014. For example, these stability. Health insurance issuers limit on the rates charged to older strategies could include instituting the would incur administrative costs to subscribers will result in lower same enrollment periods inside and prepare and submit the data. premium rates for older subscribers outside of Exchanges (as proposed in In accordance with Executive Orders without shifting significant risk to this rule) or a phase-in or transition 12866 and 13563, we believe that the younger subscribers as would happen period for certain policies. Additionally, benefits of this regulatory action would under pure community rating. While we are examining ways in which states justify the costs.

3 ASPE, At Risk: Preexisting Conditions Could 6 Congressional Budget Office, Letter to II. Background Affect 1 in 2 Americans: 129 Million People Could Honorable Evan Bayh, providing an Analysis of The Patient Protection and Affordable Be Denied Affordable Coverage Without Health Health Insurance Premiums Under the Patient Reform, November 2011. Protection and Affordable Care Act, November 30, Care Act, Public Law 111–148, was 4 Source: U.S. Census Bureau, Current Population 2009; Sara R. Collins, Invited Testimony: Premium enacted on March 23, 2010. The Health Survey, 2012 Annual Social and Economic Tax Credits Under The Affordable Care Act: How Care and Education Reconciliation Act, Supplement, Table HI01. Health Insurance They Will Help Millions Of Uninsured And Public Law 111–152, was enacted on Coverage Status and Type of Coverage by Selected Underinsured Americans Gain Affordable, Characteristics: 2011. Comprehensive Health Insurance, The March 30, 2010. These laws are 5 Source: CMS analysis of June 2012 Medical Loss Commonwealth Fund, October 27, 2011; Fredric Ratio Annual Reporting data for 2011 MLR Blavin et al., The Coverage and Cost Effects of 7 Congressional Budget Office, http://www.cbo. reporting year, available at http://cciio.cms.gov/ Implementation of the Affordable Care Act in New gov/sites/default/files/cbofiles/attachments/03-13- resources/data/mlr.html. York State, Urban Institute, March 2012. Coverage%20Estimates.pdf (Table 3).

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collectively referred to as the Affordable having routine medical check-ups, not coverage by issuers in the vast majority Care Act. receiving recommended medical of states. HIPAA also did not include treatments, and not refilling any limits on premium variation or A. Legislative Overview Prior to the prescriptions.13 requirements regarding risk pooling that Affordable Care Act Among other policies, the Affordable would have made health insurance The current individual and small Care Act expands affordable coverage to coverage more affordable for individuals group health insurance markets uninsured Americans through the and small employers. HIPAA included generally are viewed as dysfunctional, private health insurance market. When enforcement provisions allowing CMS placing consumers at a disadvantage fully implemented, its reforms will to enforce these and other requirements due to the high cost of health insurance make health insurance coverage more of title XXVII of the PHS Act with coverage, resulting from factors such as affordable and accessible for individuals respect to health insurance issuers (in lack of competition, adverse selection, and families, many of whom could not some instances) and group health plans and limited transparency. In the past ten previously get or afford coverage. The that are non-federal governmental plans. years, average total premiums for group insurance market reforms will help Both before and after HIPAA, a and individual health insurance ensure that no individual or small number of states enacted limited, coverage have increased substantially.8 employer is denied insurance coverage, incremental reforms to improve access Similarly, the share of premium paid by and that, once issued, coverage cannot and increase affordability in their employees in the group market has be non-renewed due to health factors. individual and group insurance increased, as well as the amounts that Premiums charged by health insurance employees pay in out-of-pocket costs.9 issuers may only vary by certain factors. markets. HIPAA explicitly recognized In 2007, 62 percent of personal Further, each issuer will have a single the role of the states as the primary bankruptcies were attributable to risk pool for its business in the insurance regulators where their medical expenses. Many of these individual market and a single risk pool standards were at least as protective as individuals and families either had for its business in the small group HIPAA. Although the level of activity health insurance that did not provide market (unless a state decides to merge varies by state, most states have adopted adequate coverage for their medical the markets). This risk pool provision guaranteed availability and renewability expenses or lost medical coverage due will spread risk more evenly among reforms consistent with HIPAA, and to illness.10 consumers, which will help keep several states have adopted rating In addition to affordability concerns, premiums more affordable. standards. For example, one recent many people have difficulty finding and Prior to the Affordable Care Act, title survey of state insurance market rules enrolling in coverage options. If XXVII of the PHS Act included certain found that all states require guaranteed employer-based coverage is not insurance market protections for availability in the small employer available, a person may find that individuals and employers that were market.15 The same survey found that affordable individual market coverage is added by the Health Insurance 41 states had implemented ‘‘alternative not available due to medical Portability and Accountability Act of mechanisms’’ for guaranteed availability underwriting. Research has shown that 1996 (HIPAA). HIPAA provided for HIPAA-eligible individuals, while individuals could be denied coverage guaranteed renewability of coverage to the remaining states used the federal based even on common medical individuals and employers, broad fallback mechanism.16 However, only conditions such as asthma, depression, guaranteed availability rights to small five states (Maine, Massachusetts, New hypertension, and knee injuries.11 Even employers, and narrower guaranteed Jersey, New York, and Vermont) went if a person is accepted for coverage in availability rights in the individual beyond HIPAA to require that all issuers the individual market, that coverage market for certain individuals leaving accept all applicants in the individual may be conditioned on paying higher group coverage. In practice, relatively market, with limited exceptions.17 With premiums, preexisting condition few individuals exercise their HIPAA respect to guaranteed renewability, one exclusion waiting periods, and even rights to individual market guaranteed survey reported that 48 states require it permanent exclusions of coverage for availability due to the high costs of such in the small group market 18 and another certain medical conditions. One study coverage in many states and the survey reported that all 50 states require found that 38 percent of persons seeking requirement that they first exhaust any it in the individual market.19 While individual market coverage reported it available continuation coverage, such as HIPAA did not include any provisions very difficult or impossible to find the COBRA, which is often unaffordable.14 addressing rating or pooling, 47 states coverage they needed.12 Uninsured HIPAA did not include any protections have one or more requirements in the individuals are more likely to report not to ensure that all persons could obtain small group market and 18 states have affordable coverage in the individual 8 Schoen, C., et al., State Trends in Premiums and market. Thus, most individuals could be 15 Ctr. on Health Ins. Reforms, Georgetown Univ. Deductibles, 2003–2010: The Need for Action to medically underwritten and denied Health Policy Inst., Small Group Health Insurance Address Rising Costs, Realizing Health Reform’s Market Guaranteed Issue and Individual Market Potential, p. 5 (Nov. 2011). Guarantee Issue, available at http:// 13 Doty, M., et al., When Unemployed Means 9 Claxton,G., et al., Health Benefits in 2010: statehealthfacts.org. Uninsured: The Toll of Job Loss on Health 16 Premiums Rise Modestly, Workers Pay More Toward Coverage, and How the Affordable Care Act Will Ctr. on Health Ins. Reforms, Georgetown Univ. Coverage, Health Affairs, 29, no.10 (2010):1942– Help, Realizing Health Reform’s Potential, p. 3 Health Policy Inst., Small Group Health Insurance 1950. (Aug. 2011). Market Guaranteed Issue and Individual Market 10 Guarantee Issue, available at http:// Himmelstein, D., et al., Medical Bankruptcy in 14 COBRA continuation coverage permits some statehealthfacts.org. the United States, 2007: Results of a National employees and their dependents, in some 17 Study, The American Journal of Medicine, Vol. 122, circumstances, to remain temporarily covered Ctr. on Health Ins. Reforms, Georgetown Univ. No. 8, 741–746. under an employer’s group health plan after Health Policy Inst., HIPAA Rules, available at 11 Pollitz, K., How Accessible is Individual Health coverage would otherwise end. But because a http://statehealthfacts.org. Insurance for Consumers in Less-Than-Perfect former employee must usually pay the entire 18 Pollitz, K., et al., Early Experience with the Health (2001). premium amount (including both the amount paid ‘‘New Federalism’’ in Health Insurance Regulation, 12 Collins, S., et al., Gaps in Health Insurance: as an active employee and the amount previously Health Affairs, 19, no.4 (2000):7–22. Why So Many Americans Experience Breaks in contributed by the employer), plus a 2-percent 19 Fuchs, B., Expanding the Individual Health Coverage and How the Affordable Care Act Will administrative fee, COBRA coverage may be Insurance Market: Lessons from the State Reforms Help (April 2011). unaffordable for many people. of the 1990s (2004) at p. 7.

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one or more requirements in the individuals and employers have certain superseded by the Affordable Care individual market.20 basic protections with respect to the Act.26 Despite the advances in some states, availability of the health insurance Section 1312(c) of the Affordable Care only five states (Maine, Massachusetts, coverage in all states. Act creates a single risk pool standard, New Jersey, New York, and Vermont) Section 2701 regarding fair premiums applicable to both QHPs and non-QHPs, have adopted a comprehensive set of applies to the individual and small in the individual and small group guaranteed availability and community group markets generally, and to the markets; in addition, states may choose rating reforms in both their individual large group market if a state permits to have a merged individual and small and small group markets that meet or large employers to purchase coverage group market pool. Although the exceed those in the Affordable Care Act. through an Exchange.24 Pursuant to Affordable Care Act does not provide an Only Massachusetts, which enacted a section 1312(f)(2)(B) of the Affordable explicit effective date for section landmark health reform law in 2006 that Care Act, a state may permit large 1312(c), we interpret it to be effective coupled insurance market reforms with employers to purchase through an for plan years (in the individual market, an insurance exchange, premium Exchange starting in 2017. Sections policy years) beginning on or after subsidies, and a minimum coverage 2702 and 2703 apply to the individual January 1, 2014, given its dependence provision, has succeeded in covering and group (small and large) markets. on and interaction with the new market nearly all residents of the state. In 2011, These provisions apply to health reforms, as well as its explicit reference only 3.4 percent of Massachusetts insurance coverage in the respective to the establishment of the Exchanges in residents were uninsured, compared to markets regardless of whether such 2014. Section 1312(c) does not apply to 15.7 percent nationally.21 In contrast, coverage is a QHP offered on Exchanges. grandfathered health plans. individuals with medical conditions in Section 1255 of the Affordable Care Act Lastly, section 1302 of the Affordable the 45 states without guaranteed provides that PHS Act sections 2701, Care Act specifies levels of cost-sharing availability and rating reforms often find 2702, and 2703 are effective for plan protections that health plans will offer, themselves with few—or even no— years (in the individual market, policy including in subsection (e) a coverage options at affordable prices. years) beginning on or after January 1, catastrophic plan for young adults and 2014.25 Section 1251(a)(2) of the people who cannot otherwise afford B. Overview of the Changes in the health insurance. Affordable Care Act Affordable Care Act specifies that grandfathered health insurance coverage C. Rate Increase Disclosure and Review Subtitles A and C of title I of the is not subject to sections 2701, 2702, Affordable Care Act reorganized, and 2703 of the PHS Act. In addition, Section 1003 of the Affordable Care amended, and added provisions to part the Affordable Care Act amended the Act adds a new section 2794 of the PHS A of title XXVII of the PHS Act relating HIPAA enforcement provision that Act, which directs the Secretary, in conjunction with the states, to establish to health insurance issuers in the group previously was applicable to group a process for the annual review of and individual markets and group health insurance coverage and non- ‘‘unreasonable increases in premiums health plans that are non-federal federal governmental group health plans 22 for health insurance coverage.’’ The governmental plans. As relevant here, by expanding its scope to include statute provides that health insurance these provisions include PHS Act individual health insurance coverage issuers must submit to the Secretary and sections 2701 (fair health insurance and by renumbering the provision as the applicable state justifications for premiums), 2702 (guaranteed PHS Act section 2723. availability of coverage), and 2703 The preemption provisions of PHS unreasonable premium increases prior to the implementation of the increases. (guaranteed renewability of coverage), Act section 2724(a)(1) apply so that the Section 2794 also specifies that which apply to health insurance requirements of the Affordable Care Act beginning with plan years beginning in coverage offered by health insurance are not to be ‘‘construed to supersede 23 2014, the Secretary, in conjunction with issuers. These provisions will any provision of state law which the states, shall monitor premium establish a federal floor that ensures all establishes, implements, or continues in increases of health insurance coverage effect any standard or requirement 20 offered through an Exchange and Ctr. on Health Ins. Reforms, Georgetown Univ. solely relating to health insurance Health Policy Inst., Small Group Health Insurance outside of an Exchange. Section 2794 of issuers in connection with individual or Market Rate Restrictions and Individual Market the PHS Act does not apply to Rate Restrictions, available at http:// group health insurance coverage except grandfathered health insurance statehealthfacts.org. to the extent that such standard or 21 coverage, nor does it apply to self- Source: U.S. Census Bureau, Current requirement prevents the application of Population Survey, 2012 Annual Social and funded plans.27 Economic Supplement, Table HI06. Health a requirement’’ of the Affordable Care On May 23, 2011, CMS published a Insurance Coverage Status by State for All People: Act. Section 1321(d) of the Affordable final rule with comment period (76 FR 2011. Care Act applies the same preemption 29964), to implement the annual review 22 The Affordable Care Act also added section principle to requirements of title I of the 715(a)(1) to the Employee Retirement Income Security Act (ERISA) and section 9815(a)(1) to the Affordable Care Act. As mentioned, 26 In addition, although not the subject of this Internal Revenue Code (the Code) to incorporate the state laws that impose stricter proposed rule, section 1252 of the Affordable Care provisions of part A of title XXVII of the PHS Act requirements on health insurance Act generally provides that any standard or into ERISA and the Code, and to make them issuers than those imposed by the requirement adopted by a state pursuant to title I applicable to group health plans other than non- of the Affordable Care Act (or an amendment made federal governmental group health plans. The Affordable Care Act will not be by title I) shall be applied uniformly to all health market requirements discussed in this proposed plans in each insurance market to which the rule apply to health insurance issuers offering 24 The applicable definitions for individual standard and requirements apply. Sections 1302(e) health insurance coverage. market, small group market, and large group market and 1312(c) of the Affordable Care Act and the 23 Under the HIPAA enforcement structure, the are found in PHS Act section 2791(e) and section amendments to PHS Act sections 2701, 2702, and states (or, if they lack authority or fail to 1304(a) of the Affordable Care Act. 2703 are all found in title I of the Affordable Care substantially enforce, CMS) take enforcement 25 ‘‘Plan year’’ and ‘‘policy year,’’ for purposes of Act. actions against health insurance issuers that fail to these proposed rules, are defined at 45 CFR 27 In addition, through regulation, section 2794 comply with the requirements of PHS Act sections 144.103. These terms are defined differently than does not apply to health insurance issuers offering 2701–2703. See Code § 4980D(d); ERISA § 502(b)(3); ‘‘plan year’’ and ‘‘benefit year’’ as used in health insurance coverage in the large group PHS Act § 2723. connection with QHPs (45 CFR 155.20). market.

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of unreasonable increases in premiums Exchanges. Similarly, Code section 45R For purposes of family coverage, any for health insurance coverage called for provides for small business tax credits premium variation for age and tobacco by section 2794. Among other things, for eligible employers who enroll in use must be applied to the portion of CMS established a process by which all health insurance coverage through the premium attributable to each family proposed rate increases above a defined Small Business Health Options Program member. PHS Act section 2701(a)(2)(A) threshold in the individual and small (SHOP). Although these other reforms specifies that states can establish one or group markets would be reviewed by a are not the subjects of this proposed more rating areas. PHS Act section state or by CMS to determine whether rule, they do influence the options 2702(a)(2)(B) provides that CMS may or not the rate increases are available for implementing this establish rating areas if a state does not unreasonable. These rates would be proposed rule. establish them. CMS, in consultation reviewed by the state in states with As noted, the proposed rule would with the NAIC, will define permissible Effective Rate Review Programs and by make technical changes to clarify the age bands. All non-grandfathered health CMS in states without Effective Rate processes that CMS uses to enforce insurance coverage in the individual Review Programs. For 2011, the review Affordable Care Act reforms with and small group markets is subject to threshold was a rate increase of 10 respect to issuers and non-federal the requirements in this section.31 In percent or more. CMS also established governmental group health plans. The addition, health insurance coverage in a process for a state to set a state- proposed rule also would codify the the large group market is subject to specific threshold for future calendar policies related to catastrophic plans. these requirements, inside and outside years. A. Fair Health Insurance Premiums an Exchange, if a state permits such We are proposing revisions to the rate (Proposed § 147.102) coverage to be offered through an review program that would standardize Exchange starting in 2017.32 As and streamline data submission, fulfill PHS Act section 2701 provides that discussed earlier, we welcome the new requirement beginning in 2014 health insurance issuers may vary comments on whether and how this that the Secretary monitor premium premium rates for health insurance proposed rule could be modified to increases of health insurance coverage coverage in the individual and small simultaneously secure the protections offered through an Exchange and group markets 28 based on a limited set required by law and keep premiums outside of an Exchange, and establish of specified factors. The factors are, with affordable for individuals and small new standards that incorporate the respect to a particular plan or coverage: employers purchasing non- effect of the market reform provisions (1) Whether the plan or coverage applies grandfathered health insurance coverage that take effect in 2014. to an individual or family; (2) rating in these markets. area; (3) age, limited to a variation of 3:1 III. Provisions of the Proposed for adults; and (4) tobacco use, limited 1. State and Issuer Flexibility Related to Regulations to a variation of 1.5:1.29 All other rating Rating Methodologies Collectively, the proposed regulations factors are prohibited. Thus, PHS Act While PHS Act section 2701 limits regarding modified community rating, section 2701 effectively prohibits how issuers may vary premiums, the guaranteed availability, guaranteed several factors currently in use today, statute does not specify detailed rating renewability, and risk pooling create the such as health status, claims experience, methodologies. By rating methodology, foundation for a competitive and gender, industry, occupation, and we refer to the array of choices made in accessible health insurance market duration of coverage, among others. setting prices—for example, the age starting in 2014. The Affordable Care Other factors that might be considered curves an issuer would use to distribute Act allows individuals and employers to for rating purposes, such as eligibility rates within the 3:1 limit on adult rates obtain and renew health insurance for tax credits, prior source of coverage, as enrollees grow older. The rating coverage without regard to enrollees’ and credit worthiness, also are methodology also could include the health status. Health insurance prohibited. The practice of ‘‘re- method for computing rates in the small premiums will no longer be based on underwriting’’ also is prohibited. Re- group market and the methods for enrollees’ pre-existing conditions or underwriting refers to issuers increasing computing family premiums. In current gender, and health insurance issuers no premiums at renewal for existing practice, most aspects of rating longer will be able to divide up their customers because they incurred claims risk pools (also known as blocks of or experienced worsening health during situated individual enrolled in group health business) in order to discriminate a policy year.30 insurance coverage on the basis of a health factor. Further, issuers currently are prohibited from against less healthy individuals. These charging persons enrolled in group or individual proposed rules would clarify health 28 Consistent with our later discussion of the health insurance coverage higher premiums due to insurance issuers’ obligations under single risk pool provision, all non-grandfathered genetic information. PHS Act sections 2702, as in these reforms. health insurance coverage offered through effect when the Affordable Care Act was enacted associations and multiple employer welfare (group market), and 2753 (individual market). In These proposed rules regarding arrangements (MEWAs) is subject to the modified addition to these requirements, starting in policy insurance market reforms are community rating rules applicable to the years beginning on or after January 1, 2014, issuers inextricably linked to several other appropriate market, as defined by PHS Act section will be prohibited from requiring any individual reforms in the Affordable Care Act that 2791(e)(1), (3), and (5) (definitions of individual enrolled in non-grandfathered individual market market, large group market, and small group coverage to pay a premium greater than that for function to expand access to and market, respectively). another similarly situated individual on the basis of affordability of coverage. For example, 29 The age, tobacco use, and geographic factors are a health factor. PHS Act section 2705. subtitle D of title I of the Affordable multiplicative. For example, the maximum 31 By law, issuers must transition all non- Care Act authorizes the establishment of variation for both age (for adults) and tobacco use grandfathered small group and individual market is 4.5:1 (3 times 1.5:1), putting aside the issue of coverage issued prior to January 1, 2014, to these Exchanges where individuals and small wellness discounts, which are discussed later in adjusted community rating rules in the first plan employers can enroll in QHPs and this preamble. The family rate calculation could be year (small group market) or the first policy year creates certain premium stabilization additive or multiplicative, depending on whether a (individual market) beginning on or after January 1, programs for the reformed marketplace. per-member or family tier rating methodology is 2014, even if the issuers previously used other used, as explained later in this preamble. Further, Code section 36B provides for rating rules for products in these markets. 30 In addition, health insurance issuers currently 32 These requirements apply to health insurance premium tax credits for eligible are prohibited from requiring any individual to pay coverage and therefore are not applicable to self- individuals who enroll in QHPs through a premium greater than that for another similarly insured plans.

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methodology are left to the discretion of Furthermore, some core functions of example, those with ten or fewer health insurance issuers, subject to the Exchange, such as calculating rates employees). oversight by the states. As discussed for QHPs and determining the Given that PHS Act section 2701 does later, greater standardization in rating benchmark plan for purposes of the not distinguish between individual and methodologies starting in 2014 is premium tax credit under Code section small group market rating, we propose advantageous for a number of reasons, 36B, would be simplified if issuers used that issuers would calculate rates for including consumer protection, the same age curves, age bands, and employee and dependent coverage in improved transparency, improved family rating methods. The second the small group market on a per-member competition, and administrative lowest cost silver plan is the benchmark basis, in the same manner that they simplification. We discuss various types plan that will be used to determine the would calculate rates for persons in the of choices in rating methodology in maximum amount an applicant can individual market, as discussed below, more detail in the succeeding sections receive for premium tax credits. If and then calculate the group premium of this preamble, and welcome comment issuers choose their own age curves, age by totaling the premiums attributable to on them. bands, and family rating methods, the each covered individual. Per-member definition of the second lowest cost rating is required by PHS Act section This proposed rule implements our silver plan would likely vary by 2701(a)(4), which specifies that the age authority under PHS Act section 2701 applicant. In contrast, standardizing and tobacco use factors be apportioned and would apply to all non- rating methodologies will result in all to each family member. However, as grandfathered health insurance coverage applicants having the same plan from discussed below, this proposed rule in the individual and small group the same issuer as the second lowest does not preclude the possibility that markets starting in 2014. This rule cost silver plan, regardless of the employees and their dependents would proposes to standardize rating applicant’s age and family composition, be charged amounts based on their methodologies, particularly with respect in a given rating area. This will improve group’s average, rather than amounts to age rating and certain aspects of price transparency for consumers by based on their own specific factors, family rating, for health insurance facilitating their ability to identify the notwithstanding that issuers must base coverage in the individual and small second lowest cost silver plan. Lastly, the total premium for a group on its group markets when the market reforms allowing differences in rating actual current enrollment. We propose go into effect in 2014. This proposed methodologies between issuers in the that states which anticipate requiring rule allows flexibility for states and same market in a state could provide an premiums to be based on average issuers in rating methodology when it avenue for adverse selection. enrollee amounts submit information to comes to certain aspects of family, The following sections discuss the CMS not later than 30 days after the tobacco, age, geography, and small proposed rating methodology. We publication of the final rule to support group rating. welcome comments on the areas where the accuracy of the risk adjustment More standardization with respect to and the extent to which state and issuer methodology. rating methodologies is advantageous in flexibility in rating methodologies In the group context, the allowable many respects. First, the risk adjustment versus a more standardized approach is rating factors, including tobacco use, methodology under section 1343 of the desirable. would be appropriately associated with specific employees and dependents. Affordable Care Act will need to 2. Small Group Market Rating accommodate permissible rating factors Additionally, with per-member rating, under PHS Act section 2701.33 A Two rating methods are used premium changes for new hires and standardized rating methodology for all currently in the marketplace to generate departures during the year would be plans within a state would enhance the small group market rates. The first priced more accurately, an issue of transparency, predictability, and method, known as composite rating, particular importance in smaller groups. accuracy of risk adjustment because the uses the rating characteristics of an And in the SHOP, when employees are risk adjustment methodology would entire small group, such as the average offered choices among plans and 34 account for rating as it is applied by employee health risk, average issuers, the additional cost or savings issuers. For example, without a employee age, geography, group size, resulting from an employee’s plan specified age curve, the risk adjustment and industrial code, to determine an choice would also be priced more methodology would have to rely upon average per-employee rate (along with accurately, ensuring that each issuer an estimate of a state-level average age corresponding average family tier rates) receives appropriate premiums for the curve. This estimate, when applied to for the small group. We understand that individuals choosing its health plans. specific issuers, could lead to a loss of a few states require this approach. In The use of per-member rating would accuracy in the calculation of a plan’s states without such requirements, give employers flexibility to choose how average actuarial risk to the extent the issuers generally use this approach for to allocate their contributions to issuer’s rating curve varies from the groups with, for example, more than ten employees’ coverage. PHS Act section estimated average curve. To the extent employees. In contrast, under the 2701 governs the basis upon which an there is decreased accuracy in the risk second method, the issuer calculates a issuer may permissibly charge different adjustment methodology as a result of separate rate for each employee’s groups or individuals different rates for such an approximation, its goals of coverage based on the allowable rating the same insurance product, but it does promoting competition based on service factors for that employee and then sums not specify how an employer will and effective care, rather than risk each individual rate to determine the allocate the premium contributions selection, may be undermined and total group premium. This approach is among employees.35 Although many consumers and issuers would be often used for very small groups (for negatively affected. 35 Employer/employee contribution levels are 34 The HIPAA non-discrimination provisions subject to other laws. PHS Act section 2705(b) currently prohibit individual employees enrolled in prohibits group health plans from discriminating 33 For additional background, see CCIIO, Risk a group health plan from being required to pay based on health status against similarly situated Adjustment Implementation Issues (2011), pp. 17– higher premiums or make higher contributions individuals in terms of contribution amounts. This 23, available at: http://cciio.cms.gov/resources/ based on their health status (26 CFR 54.9802–1; 29 nondiscrimination requirement generally was files/riskadjustment_whitepaper_web.pdf. CFR 2590.702; 45 CFR 146.121). carried over to the Affordable Care Act from

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variations may be consistent with 3. Family Rating policyholder or oldest adult’s age. These applicable state and federal law, we PHS Act section 2701(a)(1)(A)(i) current practices are impermissible anticipate that there are two primary provides that issuers may vary rates under PHS Act section 2701(a)(4) to the ways employee contributions may be based on whether a plan covers an extent that the multipliers or the base determined. individual or a family. PHS Act section premium vary based on age or tobacco An employer may choose to set the 2701(a)(4) provides that, with respect to use, since some family members would employee contribution as a percentage family coverage, the rating variation be rated using factors that do not apply of the underlying cost of the employee’s permitted for age and tobacco use must to them individually. However, this conflict does not exist in a state that coverage. Under this option, older be applied based on the portion of the does not permit variation based on age employees and smokers would make premium attributable to each family or tobacco use. higher contributions toward coverage, member covered under a plan. The rule proposes that issuers add up Accordingly, the proposed rule would reflecting their higher risk and permit a state to require issuers to use permissible rate variation based on age the rate of each family member to arrive at a family premium.36 However, we a standard family tier methodology and tobacco use. Younger employees (with corresponding multipliers) if the would make lower contributions, which propose that the rates of no more than the three oldest family members who state requires pure community rating, may improve the perceived value of without any adjustments for age or insurance for these employees and are under age 21 would be taken into account in computing the family tobacco use. The multipliers for the tiers increase take-up rates, making it easier would need to be actuarially justified to for the employer to meet any minimum premium. This policy is intended to mitigate the premium disruption for ensure that health insurance issuers participation rate requirement that may could not charge excessively high apply. larger families accustomed to family tier structures, which typically cap the premiums to individuals or families that Alternatively, after the issuer number of children taken into would render meaningless their develops rates using the per-member consideration in setting premiums. We guaranteed availability rights under PHS methodology, an employer may elect to propose a cut-off age of 21 for this cap Act section 2702. PHS Act section 2701 generate a composite rate in which each so that it is consistent with the cut-off does not require that issuers use a two- employee’s contribution for a given age used in the proposed rule on age tier structure (that is, individual and family composition is the same, as most rating, as well as the requirement that family). For example, a state would be employers offering coverage do today, child-only policies be available to those able to specify a four-tier structure (that by adding the per-member rates and under age 21. We do not propose a is, individual; individual and spouse; dividing the total by the number of similar cap on the number of family individual and child/children; and all employees to arrive at the group’s members age 21 and older whose per- other families). If a state anticipates average rate and determine employer member rates would be added into the adopting such a policy in the event this and employee contributions based on family premium. proposed approach is finalized, we that composite rate. This flexibility for Consistent with PHS Act section propose such states submit relevant small employers would take into 2701(a)(4), the proposed per-member information on their proposed family account that many employers, states, approach to family rating ensures that tiers to CMS no later than 30 days after and issuers are already accustomed to any variation in premium by age or the publication of the final rule to composite rating, it is relatively simple, tobacco use is applied to the appropriate support the accuracy of the risk and this method may be beneficial to family member. Per-member rating also adjustment methodology. We propose that if a state has pure older employees. However, this simplifies the administration of risk community rating in place, but does not composite method may differ from how adjustment because the risk associated adopt a uniform family tier composite rates often are developed with each family member would be easily identified. We solicit comments methodology (with corresponding today. This decision will be up to multipliers), the per-member rating employers. on the use of the per-member build-up methodology for individual and small methodology would apply as the We seek comment on the alignment of group market coverage. In addition, we default. In a state that does not require the method for calculating each request comments on the appropriate community rating, an issuer that employee’s rate in the small group cap, if any, on the number of child and voluntarily uses pure community rating market with that used to calculate an adult family members whose premiums would need to use per-member rating, individual’s rate in the individual should be taken into account in given the absence of a uniform family market. In particular, we seek comment determining the family premium and tier methodology in that state. We solicit on the implications of this approach for the appropriate cut-off age for a per- comment on whether, instead of employers and employees, whether it is child cap (for example, whether this permitting flexibility in the final rule, more compatible with employee choice should be aligned with the extension of states with pure community rating in the SHOP, and whether it leads to dependent coverage to age 26 instead). should also use the per-member more accurate pricing of employee Currently, some issuers apply approach that would be used in states choices. specified family tier or family that allow age and tobacco use composition multipliers to a base adjustments. HIPAA. The relevant HIPAA authorities currently premium to arrive at a family rate. Other 4. Persons Included Under Family in effect for group health plans and group health issuers may determine a family insurance coverage are Code section 9802, ERISA Coverage section 702, and PHS Act section 2702 (prior to premium rate based upon the being renumbered and amended by the Affordable Currently, issuers have considerable Care Act), as well as 26 CFR 54.9802–1, 29 CFR 36 Under this approach, the issuer would charge flexibility in determining how to set 2590.702, and 45 CFR 146.121. Guidance the same per-member premium for all family rates for family policies and in defining concerning employer/employee contributions has members of the same age and tobacco use status. which family members may be on the been provided by the Equal Employment The issuer could not charge different rates for same policy, subject to federal and state Opportunity Commission in connection with the family members of the same age and tobacco use age discrimination requirements (29 CFR status based on their status, for example, as the laws requiring coverage of certain 1625.10(d)(4)(ii)). policyholder, spouse, or dependent. individuals (for example, dependent

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children under age 26 pursuant to PHS insurance coverage offered inside or codes generally cover larger areas than Act section 2714, if a plan or issuer outside an Exchange, so these rating a county. Current NAIC rating guidance otherwise offers dependent child areas would apply equally to all non- notes that many small group plans coverage). Our research indicates that grandfathered coverage in the currently use rating areas based on covered family members typically individual or small group market. three-digit zip codes or counties.37 include the employee or individual The choice of a maximum of seven Under the third standard, rating areas market policyholder; a spouse or areas in the proposed rule is based on could be based on the state’s MSAs and partner, as defined by state law; the higher-end of the number of rating non-MSAs. MSAs encompass at least biological children; adopted children; areas that states currently have one urban core with a population of at and children placed for adoption. established in the individual and small least 50,000 people, plus adjacent Sometimes other classes of people are group markets (for example, territory that has a high degree of social covered, such as stepchildren, Massachusetts, New Jersey, and and economic integration with the core. grandchildren, other children related by Oregon). We believe that setting an MSAs are always established along blood, foster children, and children upper limit on the number of rating county boundaries, but may include under guardianship. areas provides states with the flexibility counties from more than one state. The We request comments on whether the needed to designate rating areas that are 367 MSAs in the United States include final rule should specify the minimum adequately sized and accommodate approximately one-third of the counties categories of family members that health local market conditions, while avoiding and 83 percent of the population of the insurance issuers must include in an excessive number of rating areas that United States. MSAs could provide a setting rates for family policies, or would be confusing to consumers and convenient and established method of whether we should defer to the states not reflect significant market grouping counties into larger areas. and health insurance issuers to make differences. We solicit comments on the Further, current NAIC rating guidance this determination. We also request maximum number of rating areas that suggests that MSAs be considered as comments on the types of individuals may be established within a state and one possible standard for rating areas. who typically are included under family the potential standards for determining For MSAs that cross state boundaries, coverage currently, including types of an appropriate maximum number. we propose that these should be divided covered individuals who would not Taking into account the spectrum of between the respective states if the MSA meet the classification of tax current rating rules regarding geography option is adopted. States with counties dependents. We note that any family and the need for state flexibility to not encompassed by an MSA could member not covered under a family account for local market conditions, the create one or more non-MSA rating policy would be eligible for an proposed rule includes three standards areas for those counties. For states with individual policy pursuant to for the geographic divisions based on more than seven MSAs and non-MSA guaranteed availability of coverage standards that we understand states and areas, we propose that these states under PHS Act section 2702. issuers currently use for rating areas. A combine some of the areas into no more state could select one of the approved 5. Rating for Geography than seven rating areas based on a standards that we would presume reasonable methodology, such as cost PHS Act section 2701(a)(1)(A)(ii) ‘‘adequate’’ or submit its own standard, provides that rates may vary by rating similarity. which would be subject to approval. We request comments regarding the areas. PHS Act section 2701(a)(2) These are: (1) One rating area for the use of these proposed standards for provides that a state must establish one entire state; (2) rating areas based on rating areas, as well as comments or more rating areas within that state. counties or three-digit zip codes (that is, regarding other options for standards for CMS is charged with reviewing the areas in which all zip codes share the geographic divisions and other relevant adequacy of the rating areas established same first three digits); or (3) rating factors that could be used for by a state. If the state’s rating areas are areas based on metropolitan statistical developing rating areas. We request inadequate (for example, they do not areas (MSAs) and non-MSAs. The comments from states that already have cover a sufficient number of proposed rule would not require that all standard rating areas regarding what individuals) or a state does not act, CMS the sections of a rating area be changes, if any, would be necessary to may establish such rating areas. geographically adjacent. For example, a meet one or more of the proposed Although section 2701 does not specify state could create a rating area standards and the proposed limit of the maximum variation for a rating area comprised of all non-MSA portions of a having no more than seven rating areas. factor, in contrast to its specifying the state that have similar health care costs. maximum age factor (3:1 for adults) and Under the first standard, there would We also request comments on whether the maximum tobacco factor (1.5:1), a be one rating area for the entire state. the final rule should establish minimum rating area factor should be actuarially While this approach would make it geographic size and minimum justified to ensure that issuers do not easier to establish and monitor rating population requirements for rating areas charge excessively high premiums that areas, it may be most practical in states and whether state rating areas currently would render meaningless the where there is not significant variation in existence should be deemed in guaranteed availability rights of in health care costs among the different compliance with this provision. individuals and employers under PHS regions of the state. To the extent a state establishes rating Act section 2702. Under the second standard, the rating areas using the proposed standards, that Currently, in most states, issuers have areas would be based on counties or is one rating area for the entire state, or considerable flexibility in establishing three-digit zip codes. A state using this no more than seven rating areas if their rating areas. The rule proposes that method would be expected to use either counties, three-digit zip codes, or a state could establish no more than counties or three-digit zip codes, but not MSAs/non-MSAs are used, we propose seven rating areas within the state along both. In the United States, there are that the state’s rating areas would be geographic divisions, generally 3,068 counties, varying greatly in size 37 NAIC, Guidance Manual in the Evaluation of consistent with the maximum number and population. There are Rating Manuals and Filings Concerning Small in states today. The proposed rule approximately 455 three-digit zip codes Employer and Individual Health Insurance (2003), makes no distinction between health in the United States. Three-digit zip p. 33.

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presumed adequate. We propose that exercising their guaranteed availability • Children: A single age band CMS would take a more active role in rights. Accordingly, we propose to allow covering children 0 to 20 years of age, assessing the adequacy of the state’s rates to vary within a ratio of 3:1 for where all premium rates are the same. rating areas when a state designates adults (defined for purposes of this • Adults: One-year age bands starting rating areas based on geographic requirement as individuals age 21 and at age 21 and ending at age 63. • divisions other than those identified in older), and that rates must be actuarially Older adults: A single age band the proposed rule. justified based on a standard population covering individuals 64 years of age and In the event that a state does not for individuals under age 21, consistent older, where all premium rates are the establish rating areas consistent with the with the proposed uniform age curve same. proposed standards, the one-area-per- discussed later in this section. We We propose these age bands for a state standard would apply, unless we request comment on this approach. number of reasons. First, with respect to applied one of the other standards to children, we are proposing a single age designate rating areas in a particular We propose that enrollees’ age factors band for child ages 0–20 to reflect the state. In that case, we likely would be and bands should be determined based generally small differences in costs inclined to use the MSA/non-MSA on an enrollee’s age at policy issuance between children of various ages (other standard. To the extent that we establish and renewal, so that age rating factors than newborns and very young a state’s rating areas, we would work are applied on a consistent basis by all children). We believe that a single age with the state, local issuers, and others issuers and that consumers (including band for children will simplify and to determine how best to establish rating those purchasing policies covering make risk adjustment methodologies areas responsive to local market multiple family members) do not more efficient, and allow consumers to conditions. receive multiple premium increases more easily compare and predict costs We recognize that states and issuers each year. This is the same as children age, particularly if the need lead time to update pricing models measurement point as the first day of a consumer has children that are several and make related system changes to plan or policy year, which is the age years apart in age. We solicit comments accommodate potentially new rating determination point for catastrophic on whether multiple age bands or a areas in 2014. To support the accuracy plans. We request comments on whether single age band for children are of the risk adjustment methodology, we other measurement points (for example, appropriate. propose that states needing such lead birthdays) might be more appropriate. Second, with respect to adults ages 21 time submit relevant information on PHS Act section 2701(a)(3) directs to 63, we propose one-year age bands so that consumers would experience their rating areas to CMS within 30 days CMS, in consultation with the NAIC, to steady, relatively small premium after the publication of the final rule. define ‘‘permissible age bands’’ for increases each year due to age. If Lastly, we recognize that states may purposes of age rating. Age bands are broader age bands are adopted (for wish to establish or modify their rating simply ranges of sequential ages. In the example, five-year bands), consumers areas after 2014. For example, states context of health insurance, they are would experience larger premium might wish to modify rating areas in often used to segregate where the slope increases when they reach the end of light of local utilization and cost of premium rate variation by age one age band and move into the next. patterns, issuer service areas, or changes changes, the most common being that Although five-year bands are currently in MSA designations. We request the slope is zero within the band (that common in the small group market, we comments on appropriate schedules and is, does not change), and non-zero from procedural considerations related to are also proposing to apply the same one band to the next band in the age-band structure to the small group rating area designations for plan years sequence (for example, persons aged 30 after 2014. market to align with our proposal that to 34 pay the same premium, but lower the per-member rating buildup 6. Rating for Age than those age 35 to 39, who pay the approach be used in both the individual PHS Act section 2701(a)(1)(A)(iii) same premium to each other, and and the small group markets. We provides that the premium rate charged similarly for age 40 to 44, etc.). request comment on this approach. by an issuer for non-grandfathered In accordance with section 2701(a)(3), Finally, we propose a single age band health insurance coverage in the we consulted with the NAIC, through its for adults age 64 and older largely to individual or small group market may Health Care Reform Actuarial (B) facilitate compliance with the Medicare vary by age, but may not vary by more Working Group, concerning the Secondary Payer requirements when than 3:1 for adults. The statute does not permissible age bands to be defined by per-member rating is used for older specify a premium rating limitation for CMS. The NAIC Working Group did not individuals in the small group market. children, but it provides that the 3:1 make specific recommendations, but Medicare Secondary Payer requirements adult ratio must be ‘‘consistent with provided valuable feedback regarding generally prohibit an employer with 20 section 2707(c)’’ of the PHS Act. Section state regulation of age bands, issuer or more employees from charging 2707(c), in turn, requires that child-only practices, and important policy Medicare-eligible employees a premium plans be made available to individuals considerations related to possible age that is higher than the premium charged under age 21. band standards. Although state to non-Medicare-eligible employees We believe the statutory language standards vary, and issuers that set their (section 1862(b)(1)(A) of the Social supports an interpretation that the 3:1 own age bands do so using a variety of Security Act, 42 U.S.C. 1395y(b)(1)(A); age rating limitation was intended to different methods, our discussions with 42 CFR 411.102(b), 411.108(a)(6)). apply only to adults age 21 and older. the industry indicate that bands smaller Consequently, we believe that the Further, we believe that PHS Act section than five years are common in the highest age band used to generate 2702 supports a requirement that issuers individual market. Taking into individually rated premiums must begin set actuarially justifiable child rates consideration the feedback we received before age 65, when individuals using a standard population, to prevent from NAIC, we propose the following generally are not eligible for Medicare the charging of unjustified premiums standard age bands for use in all states based on age. We believe this proposed that would, in effect, prevent and markets subject to the rating rules age band is reasonable because individuals under age 21 from of PHS Act section 2701: individuals age 64 and older represent

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only a small proportion of enrollees in issuers according to the geographic a single, default age curve to the the individual and small group markets, region they are licensed in, or the value individual and small group market and are likely to have similar claims of the coverage that the product/plan based on the above assumptions and the costs despite their age differences. We type offers.39 methodology for doing so. seek comment on this approach. Our review of base premium rates for We propose that we would fit our This proposed rule would direct 60,000 covered lives (based on data uniform age curve to the 3:1 adult age health insurance issuers within a market reported on HealthCare.gov by a sample rating limit by ‘‘flattening’’ the ends of in a state to use a uniform age rating of regional issuers operating in different the age curve derived from expected curve. An age curve is a specified regions of the country) has shown that claim cost patterns in a manner that distribution of relative rates across all base premium rates vary according to accommodates the 3:1 premium ratio age bands. Reflecting statutory age at a mostly consistent rate, and are limit for the highest and the lowest requirements, our proposed age curve largely unaffected by product type/plan adult ages. Under this approach, when anchors the premium amount to age 21, design or geographic region.40 other factors (for example, mix of and is expressed as a ratio, for all ages Furthermore, an examination of the gender, tobacco use, geographic region, between ages 0 and 64, inclusive. We large group insurance market and plan type) are held constant among believe that using uniform age bands demonstrates clear evidence that issuers ages, the rate of premium change from and rating curves will simplify generally utilize an underlying cost one age to the next will closely mirror identification of the second lowest cost curve that varies by age in a manner that the rate of expected claims costs, except silver plan used to determine premium is independent of the value of the plan for those ages closest to age 21 and age tax credits, and will provide an coverage.41 The analysis of the large 64.42 As compared to an approach that incentive for issuers to compete to offer group market is particularly relevant as would proportionally compress the plans that provide the best value across a predictor of post-2014 individual and curve (that is, the relationship between the entire age curve. Doing so will also small group market rating practices premiums by age) for all ages, this promote the accuracy of the risk because the large group market is proposed approach would ensure that adjustment program established under characterized by coverage for most the fewest number of individuals (or section 1343 of the Affordable Care Act, essential benefits, has guaranteed employees, in the small group market) which is essential to ensuring market availability of coverage, and does not would be affected by the 3:1 premium stability in the reformed marketplace, use person-specific underwriting; these ratio constraint, thereby mitigating and reduce the potential for adverse types of rates will likely be more premium disruption for the largest selection.38 A standardized rating characteristic of those of the reformed number of consumers, and reducing the methodology for all plans within a state 2014 individual and small group need for significant risk adjustment would also enhance the transparency, market. Consequently, we do not believe across age bands. We propose that we predictability, and accuracy of the risk that issuers need the flexibility to vary would revise our default curve adjustment program because the risk age curves across product/plan designs periodically to reflect our most current adjustment methodology could account or geographic regions after taking into knowledge of the individual and small for age rating as it is applied by issuers. account the requirement for a 3:1 rating group market (for example, enrollment, We are proposing to apply the same restriction, or that applying a uniform population distribution, and cost default age rating curve to both the age curve to issuers in the individual patterns) following implementation of individual and small group markets. and small group markets will lead to 2014 reforms. We request comment on Our proposed uniform age curve any significant disturbance in issuer our proposed approach for fitting the assumes that issuers will vary premiums pricing practices across different proposed adult age curve to the to the greatest extent permissible within geographic regions or plan designs. statutorily specified 3:1 premium ratio. the 3:1 age rating constraint for adults Therefore, we are proposing that CMS’s With respect to the age curve for (or narrower ratios as provided under uniform age curve would apply by children’s ages, we have constructed a state law). We have constructed our default in a state, unless a state adopted proposed default curve using a single proposed age curve based on gross a different uniform age curve. We age band for ages 0–20, using the same premium amounts, which includes request comment on the application of data sources that we used to derive our administrative, overhead, and marketing proposed adult age curve, as described costs in addition to the amount 39 We measured the value of plan coverage by above. The value of our proposed attributable to enrollee claims costs, approximating plan actuarial value (AV) on the default age curve for ages 0–20 was without accounting for any tax credits same scale that we use to separate plans into four metal tiers. For the purposes of our analysis, we supported by the actual experience for that may offset a consumer’s premium designated plans with AVs of 0.55–0.75 as ‘‘low those ages. The shift from the child age costs. Because our analysis of premiums value’’ plan designs, 0.75–0.85 as ‘‘medium value’’ curve at age 20 to the adult age curve found evidence that issuers do not vary plan designs, and 0.85–0.95 for ‘‘high value’’ plan designs. at age 21 could result in a premium their age curves across much of the 21– 40 Reporting of base premium rates for the differential for these ages that is not 64 age band in significant amounts individual market to HealthCare.gov does not take reflected in issuers’ current rating across geography or product types, we into account any additional premium due to health do not believe that applying a uniform status, which is commonly added in the individual practices. However, given the low market. These rates, therefore, are not necessarily premiums for individuals in these age rating curve to individual and small the actual premiums paid by the 60,000 enrollees group markets would disadvantage groups, as well as the relative premium in those plans. stability from age 21 through early 30s 41 For the purposes of this analysis, we analyzed 38 We have developed our proposed age curve two separate employer databases with data from a under the standardized age curve, we do based on our assumptions of the distribution of combination of large and small employers. One not anticipate that this differential claims costs by age in the post-2103 market. database consisted of 303,000 individuals with 12 would result in a significant financial Although it is difficult to exactly predict the continuous months of coverage (to account for burden on consumers. While we do not composition of the post-2013 market and the actual seasonal variation in claims costs) that were claims costs that will be incurred, we developed employed at firms with 50–250 employees. The our proposed age curve using assumptions that are second database of large employer coverages 42 For younger ages near age 21 and older ages consistent with those utilized for the risk (including self-insured employers) was composed closer to 64, the change of premium rates from one adjustment program, as described in our Premium of 33 million individuals with 12 months of age to the next higher age would be lower than the Stabilization Rule (77 FR 17220). continuous coverage. change in expected claims costs for those ages.

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believe that this discontinuity proposed child curve to the proposed minimally disruptive to the current undermines the accuracy of the adult curve may have for issuers and market within the confines of the rating methodology we used to develop our consumers. We also seek comment on restrictions and reforms under the proposed child and adult age curves, we the proposed rating curve, including Affordable Care Act. request comment on potential whether it is generally consistent with implications that the transition from the current insurer rating practices and

CMS PROPOSED STANDARD AGE CURVE

Age Premium ratio Age Premium ratio Age Premium ratio

0–20 0.635 35 1.222 50 1.786 21 1.000 36 1.230 51 1.865 22 1.000 37 1.238 52 1.952 23 1.000 38 1.246 53 2.040 24 1.000 39 1.262 54 2.135 25 1.004 40 1.278 55 2.230 26 1.024 41 1.302 56 2.333 27 1.048 42 1.325 57 2.437 28 1.087 43 1.357 58 2.548 29 1.119 44 1.397 59 2.603 30 1.135 45 1.444 60 2.714 31 1.159 46 1.500 61 2.810 32 1.183 47 1.563 62 2.873 33 1.198 48 1.635 63 2.952 34 1.214 49 1.706 64 and Older 3.000

Although we are proposing a uniform submit relevant information on its small group markets to vary premiums age rating curve for the reasons proposed curve to CMS no later than 30 based on tobacco use. In addition, many described above, our proposed approach days after the publication of the final states limit the amount by which would maintain flexibility for states and rule to support the accuracy of the risk premiums can vary due to tobacco use issuers regarding certain aspects of age adjustment methodology. by allowing use of that factor only rating. In most states, premium rates for within their overall health status limits. 7. Rating for Tobacco Use health insurance coverage are permitted For example, the NAIC’s Small to vary by age to the extent that issuers PHS Act section 2701(a)(1)(A)(iv) Employer Health Insurance Availability can actuarially justify such rates; this provides that health insurance issuers in Model Act (1993 Version) does not practice could continue within the the individual and small group markets specifically identify tobacco use as a boundaries of the proposed policy. A cannot vary rates based on tobacco use permissible rating factor, but allows its state law that prescribed a narrower by more than 1.5:1.44 As mentioned, use within the overall 1.67:1 ratio for ratio for adults (for example, 2:1) or PHS Act section 2701(a)(4) provides that the health status of the employees or prohibited different adult rates the rating variation for tobacco use dependents of the small employer. altogether would not be preempted applies based on the portion of There is not a clear and consistent under PHS Act section 2724(a)(1) since premium that is attributable to each definition of tobacco use among the such state law would not ‘‘prevent the family member covered under the plan. states for rating purposes. Numerous application’’ of section 2701.43 To A state law that prescribes a narrower states such as Louisiana, Maine, support the accuracy of the risk ratio (for example, 1.25:1) or prohibits Massachusetts, Minnesota, and New adjustment methodology, we propose varying rates for tobacco use altogether Mexico allow tobacco use to be that states using narrower ratios submit would not be preempted since such considered as a rating factor in both the relevant information on their ratios to state law would not impose a standard individual and small group markets. CMS no later than 30 days after the or requirement that conflicts, or makes While these states provide a definition publication of the final rule. We also it impossible to comply, with of what constitutes a tobacco product, seek input on the consequences of these permissible rating practices under they do not specifically define ‘‘tobacco choices in terms of the likely percentage federal law, and thus would not prevent use.’’ premium increases that consumers will the application of PHS Act section We understand that issuers typically face when aging from one age band to 2701.45 If a state anticipates adopting rely on self-reported data, such as another, the impact on the narrower ratios for tobacco use, we information from applications and administration and accuracy of risk propose that the state submit relevant health risk assessments, to determine adjustment, the administration of information on their ratios to CMS no tobacco usage. Since applications and premium tax credits, and consumer later than 30 days after the publication health risk assessments vary from issuer convenience. We propose that states of the final rule. to issuer, there is wide variation in how would have the option to designate a Currently, many states allow health issuers define tobacco use. uniform age curve other than the CMS insurance issuers in the individual and One possible approach for purposes of age curve. If a state anticipates using its implementing this provision upon own age curve, we propose the state 44 The interaction of PHS Act section 2701 with which we invite comment would be to the wellness program rules under PHS Act section include one or more questions on 43 In addition, section 1334(c)(5) of the Affordable 2705(j) is discussed later in this section. tobacco use in the single streamlined Care Act, pertaining to multi-state plans, indicates 45 Although not the subject of this NPRM, we note that states may require ‘‘more protective’’ age rating that the tobacco use rating factor is not taken into application under § 155.405, or in requirements that are lower than 3:1 in their account in determining the amount of the premium connection with other enrollment- individual and small group markets. tax credit under Code section 36(b)(3)(C). related processes for an Exchange. We

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specifically invite comment on the does not exceed 20 percent of the total proposing that a health insurance issuer possible use of the single streamlined cost of coverage in a health-contingent in the small group market would be application to collect information wellness program, provided specified required to offer a tobacco user the concerning tobacco use in connection consumer-protection conditions were opportunity to avoid paying the full with a premium surcharge, as well as met.47 amount of the tobacco use surcharge alternative options for identifying The Affordable Care Act added a new permitted under PHS Act section 2701 tobacco use, as well as how the PHS Act section 2705(j), effective for if he or she participates in a wellness information should be collected with plan years beginning on or after January program meeting the standards of PHS respect to health insurance coverage 1, 2014. Section 2705(j) largely reflects Act section 2705(j) and its offered outside an Exchange. the wellness provisions from the 2006 implementing regulations.49 The proposed rule does not prohibit regulations, with a few clarifications There are several positive aspects to issuers from varying the tobacco use and modifications. Under PHS Act implementing PHS Act sections 2701 factor used for a particular age band, as section 2705(j), plans and issuers and 2705(j) in a coordinated manner long as any variation is not greater than generally can offer a reward of up to 30 with respect to tobacco use in the small 1.5:1, the maximum variation for percent of the cost of coverage48 for group market. Rather than have the tobacco use under PHS Act section participation in a wellness program that tobacco use surcharge under PHS Act 2701(a)(1)(A)(iv), and is consistent with is based on an individual satisfying a section 2701 be strictly a negative other applicable law, including the standard that is related to a health financial incentive, this approach would HIPAA nondiscrimination provisions. status-related factor (‘‘health factor’’), encourage tobacco users to pursue In other words, an issuer could use a subject to certain conditions. PHS Act tobacco cessation remedies offered lower tobacco use factor for a younger section 2705(j) also authorizes the under their employers’ wellness individual (for example, 1.3:1) Departments to increase the maximum programs, enhancing their long-term compared to an older individual (for reward to as much as 50 percent of the health and potentially reducing health example, 1.4:1), as long as the factor total cost of coverage if they determine care costs. It also would alleviate does not exceed 1.5:1 for any age group. such an increase to be appropriate. underreporting for tobacco use since In contrast to the age rating factor, Contemporaneously with the tobacco users who disclose their tobacco where we are proposing that issuers publication of this proposed rule, the use would not automatically have to pay utilize a standard age curve, we are Departments are publishing a notice of the premium surcharge, but could proposing that states or issuers have the proposed rulemaking (NPRM) under instead participate in the employer’s flexibility to determine the appropriate section 2705(j), which proposes to cessation program. Finally, group health tobacco rating factor within a range of increase the maximum reward under a plans and health insurance issuers with 1:1 to 1:1.5, consistent with the wellness wellness program in group health wellness programs may find it requirements discussed below. We seek coverage from 20 percent to 30 percent administratively more efficient to comments on this approach. of the cost of coverage. The rule further implement the two provisions We also considered how the proposes an increase of an additional 20 concurrently given that employers are requirements under PHS Act section percentage points (to 50 percent) to the familiar with the requirements of 2701(a)(1)(A)(iv) would interact with extent that the additional percentage is wellness programs associated with rewards for tobacco cessation offered as in connection with a program designed increased premiums related to a health part of employer wellness programs. to prevent or reduce tobacco use. factor. We welcome comments on this Tobacco cessation programs are a We propose in this rule that the proposal and other ideas for common aspect of employers’ wellness definition of ‘‘tobacco use’’ for purposes coordinating the implementation of the programs. Prior to the enactment of the of section 2701 be consistent with the tobacco surcharge under PHS Act Affordable Care Act, the Departments of approach taken with respect to health- section 2701 and the wellness HHS, Labor, and the Treasury (jointly, contingent programs designed to provisions under PHS Act section the Departments) published final rules prevent or reduce tobacco use under 2705(j). regarding the nondiscrimination and section 2705(j). That is, by proposing to We also invite comment on possible wellness program provisions under raise the maximum permissible reward definitions of ‘‘tobacco use’’ that could HIPAA (71 FR 75014, Dec. 13, 2006, for participating in a tobacco cessation be applied for purposes of sections 2701 referred to as the 2006 regulations).46 program in the wellness rule, we are and 2705(j). One possible definition The HIPAA wellness requirements would rely on self-reporting as to implemented in these 2006 regulations 47 The 2006 regulations also required that a whether the individual would be wellness program be reasonably designed to were set forth in section 2702 of the promote health or prevent disease; give eligible considered a tobacco user. Another PHS Act (with parallel provisions individuals an opportunity to qualify for the reward possibility may be what some issuers contained in ERISA section 702 and at least once per year; make the reward available to use today: a defined amount of tobacco Code section 9802). While PHS Act all similarly situated individuals (and offer a use within a specified look-back period. reasonable alternative standard to any individual section 2702 did not specifically impose for whom it is unreasonably difficult due to a A third possibility may be to define any limit on rewards that could be medical condition to satisfy the otherwise ‘‘tobacco use’’ as regular, and not offered under wellness programs, the applicable standard during that period (or for whom infrequent or sporadic, tobacco use 2006 regulations provided that plans it is medically inadvisable to attempt to satisfy the (perhaps including some standard of otherwise applicable standard)), and, in all plan and issuers could offer a reward that materials describing the terms of the program, frequency). Another option would disclose the availability of a reasonable alternative 46 See 26 CFR 54.9802–1; 29 CFR 2590.702; 45 standard. 49 The wellness program NPRM proposes that the CFR 146.121. Prior to the issuance of the final 2006 48 While this new 30 percent limit is set forth in additional increase in the size of the reward for regulations, the Departments published interim PHS Act section 2705(j), because the existing 20 wellness programs designed to prevent tobacco use final regulations with request for comment percent limits were established by regulation, in the would not be limited to the small group market, to implementing the HIPAA nondiscrimination case of grandfathered health plans governed by the provide consistency across markets and to provide provisions on April 8, 1997 at 62 FR 16894, old version of section 2702, the 20 percent limit is large group, self-insured, and grandfathered followed by proposed regulations regarding proposed to be increased by the Departments in employment-based plans the same additional wellness programs on January 8, 2001 at 66 FR proposed regulations published contemporaneously flexibility to promote tobacco-free workforces as 1421. with the publication of this proposed rule. small, insured, non-grandfathered health plans.

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define a tobacco user as one who uses bona fide association members in the are willing to offer them coverage at any tobacco with sufficient frequency so as small group market. Accordingly, this point in the year, we believe that a year- to be addicted to nicotine. Regardless of proposed rule generally is based on the round enrollment period for large and how tobacco use is defined, we are HIPAA rule for guaranteed availability small employers will not be proposing that the definition of in the small group market (§ 146.150). In burdensome on issuers nor change the ‘‘tobacco use’’ for purposes of section addition, the proposed rule would add status quo in most states. 2701 be consistent with the approach a new marketing standard pursuant to Prior to the Affordable Care Act, the taken with respect to health-contingent PHS Act section 2702 that is identical HIPAA provision for guaranteed wellness programs designed to prevent to that applicable to QHPs established availability in the small group market or reduce tobacco use under section under 45 CFR 156.225. had allowed issuers to establish 2705(j). The proposed rule would direct that employer contribution rules and group PHS Act section 2705(b) also issuers offer coverage to and accept any participation rules that small employers prohibits issuers from charging individual or employer in the state that must meet in order to qualify for enrollees in the individual market applies for such coverage—regardless of guaranteed availability, as allowed higher premiums based on health health status, risk, or medical claims under applicable state law. PHS Act factors. However, PHS Act section and costs—with limited exceptions.50 section 2702 does not include the 2705(j) does not apply to the individual Issuers would be required to offer all contribution and participation health insurance market. To the extent products that are approved for sale in exception to guaranteed availability; there is any conflict between PHS Act the applicable market. We believe that however, PHS Act section 2703 does sections 2701 and 2705 as applied to the the protections of the Affordable Care include such an exception for individual market, we think the more Act apply to all non-grandfathered guaranteed renewability. We are specific language of PHS Act section health insurance coverage in an concerned that failing to provide a small 2701 allowing tobacco use surcharges applicable state market. Accordingly, employer contribution and participation prevails over the more general language beginning in 2014, even non- exception to guaranteed availability by of PHS Act section 2705 prohibiting grandfathered ‘‘closed blocks’’ of regulation would trigger adverse premium differences based on health business would be available to new selection against the small group factors. In other words, issuers could enrollees, subject to the limited market, given its year-round open implement the tobacco use surcharge in exceptions discussed below. We enrollment period, vis-a`-vis the the individual market without having to welcome comments on this proposal. individual market, which has a time- offer wellness programs. However, we We propose that issuers offering limited open enrollment period. In other solicit comments on whether and how, health insurance coverage in the group words, some individuals could use the consistent with PHS Act sections 2701 market would maintain a year-round open-ended enrollment period for small and 2705, the tobacco surcharge in the open enrollment period for employers to employers to buy insurance only as individual market could be combined purchase such coverage, while issuers medical needs arise, thereby creating with the same type of incentive to offering coverage in the individual instability in the small group market promote tobacco cessation that is market would offer plans during open and increasing premiums for other small available in the group market. enrollment periods (including the initial employers. Thus, the proposed rule open enrollment period) consistent with would allow issuers to condition year- B. Guaranteed Availability of Coverage those required by Exchanges for round open enrollment in the small (Proposed § 147.104) individual market QHPs. The effective group market on a small employer being PHS Act section 2702 provides that dates of such coverage would align with able to satisfy the same contribution and health insurance issuers that offer the Exchange standards for the participation requirements at issuance health insurance coverage in the appropriate market (if any, in the case that the issuer is permitted to consider individual or group market in a state of the large group market). These at renewal, either as allowed by state must accept every individual and standards are intended to minimize law or, in the case of a QHP offered in employer in the state that applies for adverse selection by setting consistent the SHOP, as permitted by § 156.285(c). coverage, subject to certain exceptions. open enrollment periods for the Establishing this requirement by rule These exceptions allow issuers to limit insurance marketplace, regardless of effectively would preserve the status enrollment: (1) To certain open and whether individuals or employers quo under HIPAA. If the final rule special enrollment periods; (2) to an choose to purchase outside or through includes this requirement, we would employer’s eligible individuals who an Exchange. We solicit comments on also adopt corresponding changes in live, work, or reside in the service area whether this proposal sufficiently § 155.725, which establishes the of a network plan; and (3) in certain addresses the open enrollment needs of enrollment periods in the SHOP. situations involving network capacity individual market customers whose The proposed rule sets forth that and financial capacity. coverage renews on dates other than issuers make available special PHS Act section 2702 generally is January 1 and whether aligning open enrollment periods in both the based on the HIPAA provision for enrollment periods with policy years individual and group markets for guaranteed availability in the small (based on a calendar year) in the individuals and plan participants and group market. Compared to HIPAA, individual market is more desirable. beneficiaries in connection with the however, the Affordable Care Act: (1) Given that employer groups generally events that would trigger eligibility for Expands guaranteed availability beyond pose less of an adverse selection risk COBRA coverage under ERISA section the small group market to include the than individuals and issuers currently 603.51 This set of special enrollment individual and large group markets as well; (2) requires the establishment of 50 Other federal laws may restrict the health 51 For employees, COBRA events include a loss of open enrollment periods; (3) establishes insurance coverage products available to certain coverage due to voluntary or involuntary new special enrollment periods in individuals. For example, individuals must meet termination of employment for reasons other than certain requirements related to residency, gross misconduct and reduction in the number of addition to those in HIPAA; and (4) citizenship/immigration status, and non- hours of employment. For spouses of covered eliminates the guaranteed availability incarceration in order to buy QHPs through an employees, these events include a loss of coverage exception for coverage offered only to Exchange (45 CFR 155.305(a)). Continued

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events is in addition to the special market business within a state. detailed marketing standard in enrollment events provided under PHS Moreover, references to persons with connection with guaranteed availability Act section 2704(f) for loss of eligibility individual market coverage in paragraph that had not been included in the earlier for other coverage or dependent special (c)(1) and subparagraph (c)(1)(B) of PHS HIPAA rule. Nonetheless, it is similar to enrollment (that is, the special Act section 2702 suggest that such the guidance we provided in Health enrollment rights originally created persons with individual market Care Financing Administration Bulletin under HIPAA for group health coverage also were intended to be No. 98–01 that interpreted the HIPAA insurance coverage and group health described in paragraph (c)(1)(A). provisions related to guaranteed plans 52) and § 155.420(d) and Accordingly, the proposed rule would availability in the individual and small § 155.725(a)(3) (the special enrollment clarify that individual market coverage group markets. Bulletin No. 98–01 rights for QHPs). The proposed rule also may limit enrollment to those stated that the PHS Act prohibited directs that the election period would be individuals who live or reside in a issuers from setting agent commissions 30 calendar days, which is generally service area. for sales to HIPAA-eligible individuals consistent with the HIPAA standard. Issuers with network plans also and small groups so low that they were However, we request comment as to would not have to offer coverage to discouraged from marketing policies to whether another standard, such as 60 employers and individuals if they such individuals and groups.54 Pursuant calendar days, generally consistent with demonstrated to the appropriate state to section 1311(c)(1)(A) of the the Exchange standard, is more authority that they lacked the capacity Affordable Care Act, QHP issuers are appropriate.53 The proposed rule also to deliver services adequately to required to comply with applicable state would include standards regarding the additional groups or individuals due to laws and regulations regarding effective dates of coverage modeled their existing contractual obligations to marketing by health insurance issuers upon the effective dates of coverage current group contract holders and and not employ marketing practices or provided for the QHP special enrollees. Issuers would need to apply benefit designs that will have the effect enrollment events under § 155.420(b). the denial of guaranteed availability of discouraging the enrollment of We also request comments on whether uniformly to all employers and individuals with significant health health insurance issuers in the individuals, without regard to the needs in QHPs (§ 156.225). The individual market should provide to enrollees’ claims experience or health proposed rule would adopt this enrollees in their products a notice of status-related factors. Issuers invoking standard and apply it to the entire special enrollment rights similar to what this exception generally would be marketplace in order to ensure is currently provided to enrollees in barred from offering new coverage for at consistency in the marketing of plans group health plans (§ 146.117(c)). least 180 calendar days after coverage is inside and outside of the Exchanges and In addition, the proposed rule would denied, as directed by PHS Act section leverage existing state oversight include provisions allowing issuers 2702(c)(2). mechanisms. with network plans to limit guaranteed As noted, PHS Act section 2702 does The intent of this policy is for states availability to employers with eligible not include an explicit guaranteed to continue their traditional role of individuals who live, work, or reside in availability exception allowing issuers regulating marketing activities of the plans’ service areas. While PHS Act to limit the offering of certain products issuers, consistent with § 156.225. We section 2702(c)(1)(A) does not explicitly to members of bona fide associations. reiterated this point in guidance issued include a corresponding exception However, in the appropriate allowing issuers to limit the sale of circumstances, we think that the on November 29, 2011, where we individual market coverage to network capacity exception to indicated that we will apply existing individuals who live or reside in the guaranteed availability could be used to state standards on marketing materials provide a basis for limiting enrollment in states where a federally-facilitated individual market plan’s service area, 55 failing to recognize such an exception in certain products to bona fide Exchange operates. We note that the would eliminate an issuer’s ability to association members. Additionally, NAIC’s Model Unfair Trade Practices define a service area for its individual while the guaranteed availability Act 880–1 has been adopted in a exception for bona fide association ‘‘substantially similar manner’’ by 46 due to reasons that would make the employee coverage is not allowed under the states, and the NAIC’s Advertisements eligible for COBRA, the employee’s becoming statute, we are interested in whether of Accident and Sickness Insurance entitled to Medicare, divorce or legal separation of and how a transition or exception Model Regulation 40–1 has been the covered employee, and death of the covered adopted in a ‘‘substantially similar employee. For children of covered employees, these process for bona fide association events include a loss of coverage due to reasons that coverage could be structured to manner’’ by 44 states. Both the Model would make the employee eligible for COBRA, the minimize disruption while maintaining Act and Regulation include employee’s becoming entitled to Medicare, divorce consumer protections. We seek comprehensive marketing standards for or legal separation of the covered employee, death issuers.56 of the covered employee, and loss of dependent comment on this issue. child status under plan rules. Similarly, issuers would not have to 52 The special enrollment framework originally 54 Available at: http://cciio.cms.gov/resources/ offer coverage to employers and _ _ _ created under HIPAA for special enrollment due to individuals, uniformly and without files/Files2/10112011/hipaa 98 01 508.pdf.pdf. loss of eligibility for other coverage and dependent 55 CMS, ‘‘State Exchange Implementation special enrollment is 30 days. The Children’s regard to claims experience, if they Questions and Answers. Available at: http://cciio. Health Insurance Program (CHIP) Reauthorization demonstrate to their applicable state cms.gov/resources/files/Files2/11282011/exchange_ Act of 2009 also added special enrollment rights to authority (if required) that they lack the q_and_a.pdf.pdf. ERISA, the PHS Act, and the Code that allow financial capacity to sell additional 56 Section 4 of the NAIC Model Act prohibits ‘‘an employees to enroll in a group health plan or group advertisement, announcement or statement health insurance coverage upon termination of coverage. Issuers invoking this containing any assertion, representation or Medicaid or CHIP coverage or eligibility for a exception also would be barred from statement with respect to the business of insurance premium assistance program under Medicaid or offering new coverage for at least 180 or with respect to any insurer in the conduct of its CHIP. Under these circumstances, an employee calendar days, as directed by PHS Act insurance business, which is untrue, deceptive or must request special enrollment within 60 days. misleading.’’ Section 5 of the NAIC Model 53 See 26 CFR 54.9801–6, 29 CFR 2590.701–6, and section 2702(d)(2). Regulation provides that the format and content of 45 CFR 146.117 (HIPAA); and 45 CFR 155.420 Lastly, the proposed rule would advertisements of accident and sickness insurance (Exchange). include as a minimum standard a more must ‘‘be sufficiently complete and clear to avoid

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We propose these marketing markets.57 While section 2703 does not coverage terminated uniformly without standards to minimize the potential for include the individual market in its regard to any health status-related factor the adverse selection that could result if guaranteed renewability exceptions for relating to any covered individual. In plans sold through Exchanges were uniform modifications of coverage and the case of health insurance coverage subject to different marketing standards loss of bona fide association that is made available by a health from plans sold outside of the membership, nonetheless, we believe insurance issuer in the small or large Exchanges. A common standard PHS Act section 2742 continues to group market to employers only through covering the entire insurance market provide a basis for those exceptions. one or more associations, the reference can protect the efficient operation of all This proposed rule generally is based on to ‘‘plan sponsor’’ is deemed, with markets and reduce confusion for the corresponding HIPAA rule respect to coverage provided to an consumers. As stated in Bulletin No. (§ 146.152). employer member of the association, to 98–01, which interpreted the HIPAA The proposed rule would direct include a reference to such employer. guaranteed availability requirement, health insurance issuers offering health In addition, the proposed rule would marketing practices that fall below these insurance coverage in the individual or set requirements for issuers closing standards represent a failure by issuers group market to renew or continue in blocks of business. In any case where an to offer required coverage. We propose force the coverage at the option of the issuer decides to discontinue offering a that all issuers comply with state laws plan sponsor or individual, as particular plan offered in the group or regulating the marketing of insurance applicable, with certain exceptions. individual market, that plan may be unless the state has no laws regulating These exceptions include: (1) discontinued by the issuer in marketing or has laws which are below Nonpayment of premiums by the plan accordance with applicable state law in the federal minimum standard, in which sponsor, or individual, as applicable; (2) the particular market under certain case the federal minimum standard an act or practice that constitutes fraud circumstances. An issuer who elects to would govern. We solicit comment on or an intentional misrepresentation of discontinue offering all health insurance this federal minimum standard. material fact under the terms of coverage in a market (or markets) in a Concerns have been raised about the coverage performed by the plan sponsor state may not issue coverage in the ability of individuals to manipulate or individual, as applicable; (3) in the state’s market (or markets) involved guaranteed availability each year. While case of group health insurance coverage, during the 5-year period beginning on PHS Act section 2703 allows an issuer the plan sponsor has failed to comply the date of discontinuation of the last to nonrenew coverage for an individual with a material plan provision relating coverage not renewed, as directed by who has not paid premiums, PHS Act to employer contribution or group PHS Act section 2703(c)(2)(B). section 2702 does not include an participation rules pursuant to Only at the time of renewal may exception allowing issuers to refuse to applicable state law; (4) the issuer is issuers modify the health insurance cover individuals with histories of non- ceasing to offer coverage of this type, coverage for a plan offered to a group payment under other policies either acting uniformly without regard to health plan in the large group market, with the same issuer or other issuers. claims experience or health status- and small group market if, for coverage Nonetheless, we recognize the concerns related factor (an issuer may also modify available in this market (other than only that such potential gaming raises in the health insurance coverage for a plan through one or more bona fide relation to adverse selection, fairness to offered to a group health plan at associations), the modification is consumers maintaining continuous renewal); (5) for network plans, there is consistent with state law and is effective coverage, and the financial stability of no longer any enrollee under the plan uniformly among group health plans issuers participating in the individual who lives, resides, or works in the with that plan.58 market. We solicit comments on service area of the issuer (or in the area PHS Act section 2703(b)(6) retains a possible ways to discourage consumers for which the issuer is authorized to do guaranteed renewability exception for from abusing guaranteed availability business); and in the case of the small an employer’s loss of membership in a rights (for example, by ensuring group market, the issuer could limit the bona fide association. Although not the enrollees cannot use open and special employers that may apply for coverage subject of this proposed rule, PHS Act enrollment periods to facilitate such to those with eligible individuals who section 2742(b)(5) continues to provide abuses) while ensuring consumers are live, work, or reside in the service area a guaranteed renewability exception for guaranteed the protections afforded to for such network plan; and (6) for an individual’s loss of membership in a them under the law. coverage made available in the small or bona fide association. large group market only through one or Under § 155.430(b), an Exchange may C. Guaranteed Renewability of Coverage more bona fide associations, if the terminate an enrollee’s coverage, and (Proposed § 147.106) employer’s membership in the permit a QHP issuer to terminate such PHS Act section 2703 directs that any association ceases, but only if the coverage, under certain circumstances. health insurance issuer offering health These circumstances are: (1) The insurance coverage in the individual or 57 Prior to being amended and renumbered as enrollee is no longer eligible for group market must renew coverage at PHS Act section 2703 by the Affordable Care Act, coverage in a QHP; (2) payments of the option of the plan sponsor or the HIPAA guaranteed renewability requirements premiums for coverage of the enrollee for the group market were found at PHS Act section cease and any grace period(s) have been individual, with certain exceptions, 2712. The HIPAA guaranteed renewability which are more fully discussed below in requirements continue to apply with respect to exhausted; (3) the enrollee’s coverage is connection with the proposed rule text. grandfathered group market coverage in 2014 and rescinded due to fraud or PHS Act section 2703 is based largely beyond (and with respect to all group market misrepresentation; (4) a QHP terminates coverage before 2014). Section 1251 of the or is decertified; or (5) the enrollee on the HIPAA provision for group Affordable Care Act specifically excludes market guaranteed renewability, but grandfathered health plans from the effect of the changes from one QHP to another generally expands its scope to include amendments in the Affordable Care Act. The Affordable Care Act did not modify PHS Act section 58 Although PHS Act section 2703 does not both the group and individual 2742, which continues to require guaranteed contain a corresponding exception for uniform renewability in the individual market, including modification of coverage in the individual market, deception or the capacity or tendency to mislead or with respect to grandfathered health plans in the PHS Act section 2742 continues to provide a basis deceive.’’ individual market. for such an exception in the individual market.

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during an annual open enrollment requirements applicable to the coverage subject to PHS Act section period or special enrollment period. individual market (§ 147.145(b)(1)). 2701. Thus, excepted benefit and short- Although some QHP termination of Consistent with that policy, this term limited duration policies, for coverage events correspond to PHS Act proposed rule would provide student example, would not be subject to the non-renewal events (for example, health insurance coverage with single risk pool requirement. Also, this nonpayment of premiums), other events exceptions from the Affordable Care requirement would not be enforced do not (for example, a QHP’s loss of Act’s guaranteed availability and against health insurance coverage issued certification). With respect to those renewability requirements to ensure that to plans with fewer than two instances, we request comments on enrollment in these policies is limited to participants who are current employees whether an issuer would have to renew students and their dependents. (for example, retiree-only plans) (see 75 that coverage on a non-QHP basis, Under this proposed rule, student FR 34538, 34539–40 (June 17, 2010)). outside the Exchange, if applicable, to health insurance coverage would be Section 1312(c) of the Affordable Care affected enrollees. included in an issuer’s individual Act represents a change from current We are aware that issuers may need market single risk pool, as described market practice. Today, issuers often to make some plan design changes for below. Nonetheless, given the maintain several separate risk pools non-grandfathered coverage issued differences between the student health within their individual and small group between March 23, 2010 and January 1, insurance market and other forms of market business, often as a way to 2014 in order to comply with the individual market coverage, we solicit segment risk and further underwrite standards of the Affordable Care Act comment on whether the final rule premiums. For example, the NAIC’s that are effective for the 2014 plan and should allow issuers to maintain a Small Employer Health Insurance policy years. In addition, on an ongoing separate risk pool for student health Availability Model Act (1993 Version), basis, issuers may need to make some insurance coverage. We also seek adopted by a majority of states, allows cost-sharing adjustments at renewal to comment on whether the final rule issuers to maintain up to nine blocks of ensure that policyholders’ plans remain should provide any modifications with business in the small group market, at the same actuarial value level from respect to the generally applicable subject to a limitation that the index year to year. We believe that issuers can individual market rating rules in rates between the blocks not vary by make these types of policy changes connection with student health more than 20 percent. A 2004 study by consistent with the uniform insurance coverage. the American Academy of Actuaries modification of coverage requirements E. Single Risk Pool (Proposed § 156.80) noted that the current regulatory climate under PHS Act sections 2703 and 2742, in most states allows issuers to open and solicit comments on whether our Section 1312(c)(1) and (2) of the and close books of business in the interpretation should be explicitly Affordable Care Act states that a health individual market at will, effectively incorporated into text of the final rule. insurance issuer must consider all of its causing many long-term policyholders enrollees in all health plans (other than D. Applicability of the Proposed Rules in closed blocks to face very high grandfathered health plans) offered by premium increases at renewal because Under PHS Sections 2701, 2702, and the issuer to be members of a single risk 2703 and Section 1312(c) of the issuers can refuse to pool their claims pool in the individual market and small Affordable Care Act to Student Health experience with that of the newer or group market, respectively.59 This Insurance Coverage healthier policyholders.60 requirement applies to health plans both Beginning in 2014, issuers are no Section 1560(c) of the Affordable Care inside and outside of an Exchange for longer able to deny coverage based on Act provides that nothing in title I of the both markets. Section 1312(c)(3) of the applicants’ health status and are limited Affordable Care Act, or an amendment Affordable Care Act provides a state in the types of rating factors they can made by title I, ‘‘shall be construed to with an option to merge its individual apply in setting premiums in the prohibit an institution of higher and small group markets, in which case individual and small group markets. education (as such term is defined for all non-grandfathered plans’ risk would Without a single risk pool rule, these purposes of the Higher Education Act of be merged. To support the accuracy of prohibitions against traditional 1965) from offering a student health the risk adjustment methodology, we underwriting could incentivize issuers insurance plan, to the extent that such propose that states that intend to merge to find ways to segment the market into requirement is otherwise permitted their individual and small group market separate risk pools and charge under applicable federal, state, or local pools in 2014 inform us no later than 30 differential premiums based on law.’’ Title I of the Affordable Care Act days after the publication of the final segmented risk, a de facto mechanism includes the rating, guaranteed rule. Lastly, section 1312(c)(4) of the for underwriting. As a result, this availability, guaranteed renewability, Affordable Care Act renders statutory requirement that an issuer and single risk pool provisions that are inapplicable any state law requiring consider all of its enrollees in all plans discussed in this proposed rule. grandfathered health plans to be We have interpreted section 1560(c) (other than grandfathered plans) offered included in the single risk pool(s). by the issuer to be members of a single to mean that if particular requirements The proposed rule would largely in the Affordable Care Act would have, risk pool in the individual market or codify the statutory language and clarify small group market, respectively, as a practical matter, the effect of that the single risk pool requirement prohibiting an institution of higher prevents issuers from creating separate applies on a state-by-state basis and pools in order to segment high risk and education from offering a student health only to forms of non-grandfathered plan otherwise permitted under federal, individual and small group market 60 American Academy of Actuaries’ Rate Filing state or local law, such requirements Task Force, Report to the NAIC’s A&H Working would be inapplicable pursuant to the 59 By law, issuers are required to transition all Group of the Life & Health Actuarial Task Force, rule of construction in section 1560(c). non-grandfathered small group and individual at 3–4. See also NAIC, White Paper: An Exploration We previously provided student market coverage issued prior to January 1, 2014, to of Potential Regulatory Measures Intended to the appropriate single risk pool in the first plan year Prevent Individuals at Later Durations of Non- health insurance coverage with (small group market) or the first policy year Group Major Medical Products from Receiving exceptions from the HIPAA guaranteed (individual market) beginning on or after January 1, Higher Rate Increases than Those at Early availability and renewability 2014. Durations (2008).

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low risk enrollees. While risk adjustment and reinsurance programs, revisions in part 150 currently in no adjustment will address some risk and the variations for individual plans way prejudices our continued use of segmentation, the single risk pool would have to be actuarially justified. part 150 in connection with enforcing requirement provides another layer of Furthermore, all such actuarially the requirements of part 147 prior to the protection against adverse selection justified adjustments would have to be issuance of a final rule. implemented by issuers in a transparent among plans and protects consumers by G. Enrollment in Catastrophic Plans fashion, consistent with state and requiring issuers to consider the risk of (Proposed § 156.155) all enrollees when developing and federal rate review processes. We seek pricing unique plans. comment on the approach described Section 1302(e) of the Affordable Care To implement the single risk pool above, and on the proposed plan- Act outlines standards for offering protection, we propose that the claims specific adjustments to the index rate. catastrophic plans, which we propose to experience of the enrollees in all non- This proposed rule would apply both codify in § 156.155. In paragraph (a)(1), grandfathered plans of an health when rates are initially established for we propose that a plan is a catastrophic insurance issuer in the individual or a plan and at renewal. We expect that plan if it meets all applicable small group market within a state (or percentage renewal increases generally requirements for health insurance both, if the risk pools of the individual would be similar across all plans in the coverage in the individual market and small group market are merged same risk pool, but might differ (including but not limited to those within a state) be combined so that the somewhat due to the permitted product requirements described in 45 CFR parts premium rate of a particular plan is not differences described above. We are 147 and 148) and is offered only in the adversely impacted by the health status considering allowing additional individual market. In proposed or claims experience of its enrollees. For flexibility in product pricing in 2016 paragraph (a)(2), we specify that a rates effective starting January 1, 2014, after issuers have accumulated catastrophic plan does not offer a health insurance issuer would use the sufficient claims data. We request coverage at the bronze, silver, gold, or estimated total combined claims comments on this approach. platinum coverage levels described in section 1302(d) of the Affordable Care experience of all non-grandfathered F. CMS Enforcement in Group and plans deriving from providing essential Act and in proposed paragraph (a)(3), Individual Insurance Market (Various we clarify that a catastrophic plan does health benefits within a state market to Provisions in Parts 144 and 150) establish an index rate (average rate) for not provide coverage of essential health the relevant market. The index rate Part 150 of title 45 of the CFR sets benefits until the enrolled individual would be utilized to set the rates for all forth our enforcement processes for all reaches the annual limitation in cost non-grandfathered plans of the issuer in of the requirements of title XXVII of the sharing in section 1302(c)(1) of the Affordable Care Act. Proposed the market. After setting the index rate, PHS Act with respect to health insurance issuers and non-federal paragraph (a)(4) codifies the statutory an issuer would make a market-wide governmental group health plans. The requirement that a catastrophic plan adjustment to the index rate based on scope of part 150 includes our processes must cover at least three primary care the total expected market-wide for enforcing the requirements of title visits per year before reaching the payments and charges under the risk XXVII of the PHS Act added by the deductible. We do not propose here to adjustment and reinsurance programs in Affordable Care Act, given that the prohibit an issuer from imposing cost a state. statutory enforcement provisions that sharing in connection with these The premium rate for any given plan part 150 implements, PHS Act sections primary care visits so long as other could not vary from the resulting index 2723 and 2761, apply to all of parts A applicable law (for example, PHS Act rate, except for the following factors: 61 • and B of title XXVII. section 2713) permits. The actuarial value and cost-sharing This proposed rule would make a In paragraph (a)(5), we propose design of the plan; • number of conforming changes in codifying the statutory criteria The plan’s provider network and various sections of parts 144 and 150 identified in section 1302(e)(2) of the delivery system characteristics, as well intended to clarify the applicability of Affordable Care Act that lists the as utilization management practices. enforcement procedures to the PHS Act individuals who are permitted to enroll This factor is intended to pass savings requirements added by the Affordable in a catastrophic plan. In paragraph onto consumers where issuers are able Care Act. For example, we are proposing (a)(5)(i), we propose that individuals to negotiate better discounts, construct to replace the term ‘‘HIPAA younger than age 30 before the efficient networks, or manage care more requirements’’ with ‘‘PHS Act beginning of the plan year are eligible to efficiently; • requirements’’ throughout part 150 to enroll in catastrophic plans. If an Plan benefits in addition to the make clear that the part 150 processes individual enrolled in a catastrophic essential health benefits. The additional would be used for enforcing not only plan reaches age 30 during a plan year, benefits must be pooled with similar the requirements emanating from we propose that the individual can benefits provided in other plans to HIPAA, but also the Affordable Care Act remain enrolled in the catastrophic plan determine the allowable rate variation and other legislation enacted for the remainder of the plan year. In for plans that offer these benefits; and • subsequent to HIPAA. Similarly, the paragraph (a)(5)(ii), we propose that the With respect to catastrophic plans, proposed rule would add, where second group of individuals eligible to the expected impact of the specific appropriate, references to part 147 (that enroll in a catastrophic plan are those eligibility categories for those plans. is, the Affordable Care Act’s group and who have been certified as exempt from The index rate, the market-wide individual market requirements) the individual responsibility payment adjustment based on total expected alongside references to parts 146 and because they cannot afford minimum payments and charges for the risk 148 (the group and individual market essential coverage, or they are eligible requirements pre-dating the Affordable for a hardship exemption. 61 However, as described in § 147.102 of this Care Act). In paragraph (b), we propose to codify proposed rule, the specific premiums charged for particular enrollees would be permitted to vary While these proposed changes should the exception found in section based on family size, geographic rating area, and clarify to stakeholders our interpretation 1302(e)(1)(B)(i) of the Affordable Care age and tobacco use, within limits. concerning part 150, the lack of these Act by proposing that a health plan may

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not impose cost-sharing requirements The purpose of this policy is to identify in either the individual or small group (such as a copayment, coinsurance, or patterns that could indicate market market (or both if the state merges the deductible) for preventive services disruption, which could occur given the individual and small group markets into identified in PHS Act section 2713. We additional standards that apply to a combined risk pool). This means that note that a catastrophic plan must qualified health plans, and to oversee products can no longer be reviewed as provide coverage for such services the new, market-wide reforms. To assist completely unique, but rather must without regard to whether the enrollee the Secretary in carrying out this new include experience of the entire market accessing the service has reached the monitoring function, we propose (single risk pool). Accordingly, when cost-sharing maximum. modifying the rate review standards by any product has a rate increase, all other In paragraph (c), we propose that if extending the requirement that health products with enrollment or projected more than one person is covered by a insurance issuers report information enrollment would be reported to assure single catastrophic plan, such as a non- about rate increases above the review the single risk pool requirement was self only plan, then each individual threshold to all rate increases, as is appropriately implemented to promote enrolled must meet at least one of the already the policy in the vast majority fair market competition. two eligibility criteria in proposed of states. Under this proposal, each Additionally, collecting rate filing paragraph (a)(5). For example, a couple issuer would submit the same set of files data in a standardized format, as could enroll in a catastrophic family for all of their products in the same proposed, would reduce the burden on plan if one of them was under age 30 market, pursuant to work conducted in issuers because the data would be used and the other had received a certificate partnership with the NAIC to ensure for purposes beyond rate review, of exemption in accordance with section consistency between the NAIC’s System including Exchange functions like QHP 1302(e)(2)(B) of the Affordable Care Act. for Electronic Rate and Form Filing certification and premium tax credit and cost-sharing reduction verification. H. Rate Increase Disclosure and Review (SERFF) and HHS’s Health Insurance Rather than requiring multiple data (Part 154) Oversight System (HIOS) and to promote efficiency in data collection for submissions to conduct these various To account for the market changes in states and issuers. The same type of reviews, this proposal would provide 2014, many of which are detailed in this information is currently collected by state and federal regulators the proposed rule; to fulfill the statutory most states today, but in a variety of information they need in one place. requirement beginning in 2014 that the non-standardized formats. States would CMS incorporated feedback from state Secretary, in conjunction with the continue to have the authority to collect regulators facilitated through the NAIC states, monitor premium increases of additional information, above this and health plans in developing this health insurance coverage offered baseline, to conduct more thorough proposal. through an Exchange and outside of an CMS will propose for comment reviews or rate monitoring. The review Exchange; and in an effort to streamline through the Paperwork Reduction Act of threshold, described in § 154.200, data collection for issuers and states, we 1995 (PRA) process a standardized data would continue to be used to determine propose three changes to the existing template form for health insurance which rates must be reviewed rather rate review program under 45 CFR part issuers to use for submitting the data for than just reported. 154. rate increases. The template was First, we propose to amend Under the current rate review developed with input from the NAIC § 154.200(a)(2) and (b), so that states program, CMS collects rate filing and other stakeholders. The goal of a seeking state-specific thresholds submit information from issuers proposing standardized data template is to provide proposals to CMS by August 1 of each increases of 10 percent or greater, state regulators with a baseline of year; that the Secretary publish a notice including in states with Effective Rate information necessary to conduct the no later than September 1 of each year Review Programs. This data collection review and approval of products sold concerning whether a state-specific allows the Secretary to ensure the inside and outside an Exchange as new threshold applies in a state; and that any public disclosure of information on market rules go into effect in 2014. In state-specific threshold be effective on such increases as required by the order to help assure a competitive January 1 of each year following the statute. Collecting rate filing health insurance market, CMS Secretary’s notice. We are proposing information on all rate increases in anticipates releasing only information these changes in order to align with the applicable markets would provide CMS, collected that is determined to not timing of rate submissions of QHPs in in partnership with states, the necessary include trade secrets and is approved the Exchanges, as well as market-wide data to gauge how 2014 market changes for release under the Freedom of rating rules created by the Affordable are affecting rate changes for consumers Information Act. Care Act, which are effective January 1, both inside and outside the Exchange This data collection is intended to 2014. We welcome comments on these and to fulfill its obligation under section create greater uniformity for effective proposed changes in the submission 2794(b)(2)(A) of the PHS Act. rate review information, creating date and the effective date of state- Additionally, the improved data efficiencies and also providing issuers specific thresholds. collection would allow states and CMS, with a standardized, electronic format Second, we propose to amend where applicable, to adapt their rate for submitting this uniform data. Issuers § 154.215 to direct health insurance review processes to include the changes would no longer be required to submit issuers to submit data and to the individual and small group the same type of data in different documentation regarding rate increases markets that begin in 2014. Primary formats to different regulators. We on a standardized form in a manner among these changes to the individual request comments through the determined by the Secretary. Beginning and small group market is the single risk corresponding PRA comment process on in 2014, section 2794(b)(2)(A) of the pool requirement. Beginning with rates the proposed information collection Affordable Care Act directs that the effective in 2014, pursuant to section authorized under § 154.215, as proposed Secretary, in conjunction with states, 1312(c) of the Affordable Care Act, all to be amended, and the additional ‘‘monitor premium increases of health rates must be based on claims burden, if any, it would impose on insurance coverage offered through an experience calculated from all claims of health insurance issuers and the states. Exchange and outside of an Exchange.’’ all products an issuer has within a state The improved rate review data and

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information collection outlined in the into account, to the extent possible, the section 3506(c)(2)(A) of the Paperwork PRA would allow issuers to submit a following additional factors (which are Reduction Act of 1995 requires that we baseline set of rate review data in a necessary to carry out some of the solicit comment on the following issues: standardized form and format, which market reforms going into effect in 2014) • The need for the information should, on net, reduce the burden of when conducting an examination of a collection and its usefulness in carrying providing similar data in multiple rate review filing: out the proper functions of our agency. formats to each state and the federal • Other standardized ratio tests (in • The accuracy of our estimate of the government. We also welcome addition to the medical loss ratio) information collection burden. comments on the need for and impact recommended or required by statute, • The quality, utility, and clarity of of the extension of the reporting regulation, or best practices; the information to be collected. • requirement below the review threshold • The impacts of geographic factors Recommendations to minimize the and whether alternative approaches to and variations; information collection burden on the monitoring and oversight should be • The impact of changes within a affected public, including automated considered (e.g., auditing). single risk pool to all products or plans collection techniques. Third, we propose to modify the within the risk pool; and We are soliciting public comment on standards for an Effective Rate Review • The impact of federal reinsurance each of these issues for the following Program in response to the market and risk adjustment payments and sections of this proposed rule that changes in 2014 for rate filings subject charges. contain information collection to review. We propose revisions in The above proposed revisions and requirements (ICRs). § 154.301(a)(3) so that a state with an additions to § 154.301(a)(4) are driven A. ICRs Regarding State Disclosures Effective Rate Review Program would by provisions of the Affordable Care Act [§ 147.102(a)(1)(iii), § 147.102(a)(1)(iv), review the following additional that are effective in 2014. CMS intends § 147.102(b)(1), § 147.102(c)(2), elements as part of its rate review to work with states to ensure states § 147.102(c)(3), § 147.102(e), § 156.80 process: (1) The reasonableness of continue to have Effective Rate Review (c)] assumptions used by the health Programs. Comments are solicited on insurance issuer to estimate the rate the impact on states created by these The proposed rule would direct states impact of the federal reinsurance and proposed changes and whether there are to submit to CMS information on their risk adjustment programs; and (2) The additional factors that should be rating and risk pooling requirements if health insurance issuer’s data related to considered in reviewing rate increases different than the federal standards. In implementation and ongoing utilization starting in 2014. § 147.102(a)(1)(iii), we propose that a of a market-wide single risk pool, In § 154.301(b), we propose revisions state inform CMS if it adopts a narrower essential health benefits, actuarial to ensure that a state with an Effective age rating ratio than 3:1, and in values, and other market reforms rules Rate Review Program makes available § 147.102(a)(1)(iv), we propose that a as required by the Affordable Care Act. on its Web site, at a minimum, the same state inform CMS if it adopts a narrower The 10 percent review threshold, as information in Parts I, II, and III of each rating ratio for tobacco use than 1.5:1. In finalized in § 154.200 (76 FR 29964), Rate Filing Justification that CMS makes § 147.102(b)(1), we propose that a state will remain unchanged. Thus, only available on its Web site. We propose submit information to CMS regarding its proposed rate increases of 10 percent or that a state may, instead of providing geographic rating areas. In more will be subject to a determination access to the information contained in § 147.102(c)(2), we propose that a state of whether they are unreasonable, Parts I, II, and III of each Rate Filing with pure community rating submit unless the Secretary changes the Justification, provide a link to CMS’s information to CMS about its uniform threshold in a time and manner Web site where consumers can find family tiers and corresponding specified in 76 FR 29964, or a state such information. multipliers, if any. In § 147.102(c)(3), we requests (and the Secretary approves) a Finally, in § 154.225 and § 154.330, propose that a state inform CMS if it different threshold under § 154.200. we propose to replace the term requires premiums to be based on Additionally, we propose to revise ‘‘Preliminary Justification’’ with the average enrollee amounts in the small § 154.301(a)(4) by adding additional term ‘‘Rate Filing Justification,’’ to group market. In § 147.102(e), we factors that states must take into reflect more appropriately the rate filing propose that a state submit information consideration when conducting their information that would be reported on its uniform age rating curve to CMS. examinations. Specifically, we propose under this proposed rule. Finally, in § 156.80(c), we propose that that, in reviewing the impact of cost- a state inform CMS if it elects to merge IV. Collection of Information sharing changes, the impact on the its individual and small group market Requirements actuarial value of the health plan must risk pools. Because we do not know be considered in light of the Under the Paperwork Reduction Act how many states will choose to requirement under section 1302(d) of of 1995, we are required to provide 60- determine their own geographical rating the Affordable Care Act that a plan meet day notice in the Federal Register and areas, age rating curves, and family tier one of the metal levels in terms of solicit public comment before a structures; adopt narrower age or actuarial value. We also propose that, in collection of information requirement is tobacco rating factors; require premiums reviewing benefit changes to a plan, a submitted to the Office of Management to be based on average enrollee amounts state must consider the impact of the and Budget (OMB) for review and in the small group market; or merge changes on the plan’s essential health approval. This proposed rule contains their individual and small group market benefits and non-essential health information collection requirements risk pools, we have estimated the benefits. The impact of the changes on (ICRs) that are subject to review by burden for one state. We seek comments pricing, including the rating limitations OMB. A description of these provisions on how many states are likely to submit on age and tobacco use under PHS Act is given in the following paragraphs their own rating and risk pooling rules. section 2701, must also be considered. with an estimate of the annual burden, The burden associated with this We also propose to add new summarized in Table IV.1. In order to requirement is the time involved for paragraphs (xii), (xiv), (xv), and (xvi) to fairly evaluate whether an information states to provide to CMS information on § 154.301(a)(4), to ensure that states take collection should be approved by OMB, the rating factors and requirements

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applicable to their small group and its geographical rating areas, for a to prepare and submit a report to CMS. individual markets. If a state adopts burden of one hour and a cost of The burden for reporting family tier narrower rating ratios for age or tobacco approximately $31. If a state develops structure information is estimated to be use, or chooses to merge their an age rating curve, the state will report one hour, and a cost of approximately individual and small group market risk the state’s age rating curve to CMS. We $31. If a state requires premiums in the pools, the state will inform CMS. We anticipate that most states will default small group market to be based on estimate that it will take 20 minutes for to national age curve. For states that average enrollee amounts, it will submit a state to prepare and submit a report to designate their own curve, we estimate that information to CMS. We estimate CMS for each of these disclosures, for a that it will take three hours for each that it will take one hour for a state to total burden of one hour and a cost of state to prepare and submit a report on prepare and submit the report on small approximately $31 for all three reports its age rating curve, for a burden of three group market premiums to CMS, for a combined. If a state develops hours and a cost of $92. If a state is geographical rating areas (some states community rated and designates a burden of one hour and a cost of will default to one rating area for the uniform family tier structure, the state approximately $31. The total burden for entire state), it will provide a report on will report family tier structure all disclosures is seven hours and the rating areas to CMS. We estimate information to CMS. We estimate that approximately $215 per state, if a state that it will take one hour for a state to very few states will designate family tier needs to disclose all seven rating prepare and submit a report to CMS on structures and that it will take one hour requirements. TABLE IV.1—ANNUAL REPORTING, RECORDKEEPING AND DISCLOSURE BURDEN

Total Burden Total Hourly Total capital/ OMB Number of per re- annual labor labor mainte- Total cost Regulation section(s) Control respond- Responses sponse burden cost of cost of nance ($) No. ents (hours) (hours) reporting reporting costs ($) ($) ($)

Age Ratio: § 147.102(a)(1)(iii); Tobacco N.A ...... 1 7 1 7 30.67 214.69 0 214.69 Ratio: 147.102(a)(1)(iv); Rating areas: § 147.102(b)(1); Family Tier: § 147.102(c)(2); Small Group Market Pre- mium: § 147.102(c)(3); Age rating curve: § 147.102(e); Risk Pool Merger: § 156.80(c).

B. ICRs Regarding Rate Increase If you comment on these information reporting, utilization, and collection of Disclosure and Review (§ 154.215, collection requirements, please do data under the rate review program. § 154.301) either of the following: CMS has crafted this proposed rule to implement the protections intended by This proposed rule would require that 1. Submit your comments electronically as specified in the Congress in the most economically health insurance issuers use a efficient manner possible. We have standardized data form, as specified by ADDRESSES section of this proposed rule; or examined the effects of this proposed the Secretary, to report information rule as required by Executive Order about a proposed rate increase. In 2. Submit your comments to the 13563 (76 FR 3821, January 21, 2011), addition, this proposed rule would Office of Information and Regulatory Executive Order 12866 (58 FR 51735, direct states with Effective Rate Review Affairs, Office of Management and September 1993, Regulatory Planning Programs to consider additional Budget, Attention: CMS Desk Officer, and Review), the Regulatory Flexibility information (as a baseline) in their rate CMS–9972–P. Fax: (202) 395–5806; or _ Act (RFA) (September 19, 1980, Pub. L. review processes. The existing Email: OIRA [email protected]. 96–354), the Unfunded Mandates information collection requirement V. Regulatory Impact Analysis Reform Act of 1995 (Pub. L. 104–4), (OMB Control Number 0938–1141) Executive Order 13132 on Federalism, includes a data template that is In accordance with the provisions of and the Congressional Review Act (5 currently used by issuers seeking rate Executive Order 12866, this proposed U.S.C. 804(2)). In accordance with OMB increases to submit data to CMS. CMS rule was reviewed by the Office of Circular A–4, CMS has quantified the is publishing an updated data template Management and Budget. benefits, costs and transfers where for public comment, in accordance with A. Summary possible, and has also provided a the Paperwork Reduction Act of 1995 qualitative discussion of the benefits, (44 U.S.C. chapter 35). As stated earlier in this preamble, this costs and transfers that may stem from To obtain copies of the supporting proposed rule would implement the this proposed rule. statement and any related forms for the Affordable Care Act’s requirements on proposed paperwork collections health insurance coverage related to fair B. Executive Orders 13563 and 12866 referenced above, access CMS’s Web health insurance premiums, guaranteed Executive Order 12866 (58 FR 51735) Site at http://www.cms.gov/Paperwork availability, guaranteed renewability, directs agencies to assess all costs and ReductionActof1995/PRAL/list.asp#Top single risk pools, and catastrophic benefits of available regulatory OfPage or email your request, including plans. These provisions are generally alternatives and, if regulation is your address, phone number, OMB effective for plan or policy years necessary, to select regulatory number, and CMS document identifier, beginning on or after January 1, 2014. In approaches that maximize net benefits to [email protected], or call the addition, this proposed rule would (including potential economic, Reports Clearance Office at 410–786– amend the standards for health environmental, public health and safety 1326. insurance issuers and states regarding effects; distributive impacts; and

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equity). Executive Order 13563 (76 FR 1. Need for Regulatory Action 2. Summary of Impacts 3821, January 21, 2011) is supplemental In accordance with OMB Circular A– to and reaffirms the principles, Sections 1302(e) and 1312(c) of the Patient Protection and Affordable Care 4, Table V.1 below depicts an structures, and definitions governing accounting statement summarizing regulatory review as established in Act (Affordable Care Act), and sections 2701, 2702, and 2703 of the Public CMS’s assessment of the benefits, costs, Executive Order 12866. and transfers associated with this Health Service Act (PHS Act), as added Section 3(f) of Executive Order 12866 regulatory action. The period covered by and amended by the Affordable Care defines a ‘‘significant regulatory action’’ the regulatory impact analysis (RIA) is Act, create certain standards related to as an action that is likely to result in a 2013–2017. fair health insurance premiums, proposed rule—(1) Having an annual CMS anticipates that the provisions of guaranteed availability, guaranteed effect on the economy of $100 million these proposed regulations would or more in any one year, or adversely renewability, risk pools, and ensure increased access and improve and materially affecting a sector of the catastrophic plans applicable to non- affordability of health insurance economy, productivity, competition, grandfathered health insurance coverage coverage in the individual and small jobs, the environment, public health or starting in 2014. These proposed group markets. Individuals who are safety, or state, local or tribal regulations would provide the necessary currently unable to obtain affordable governments or communities (also guidance to implement these important coverage because of their medical referred to as ‘‘economically consumer protections. The current history, their health status, gender or significant’’); (2) creating a serious individual and small group health age will be able to obtain such coverage inconsistency or otherwise interfering insurance markets generally are viewed once the proposed rules are in effect with an action taken or planned by as dysfunctional, placing consumers at along with other provisions of the another agency; (3) materially altering a disadvantage due to the high cost of Affordable Care Act, leading to an the budgetary impacts of entitlement health insurance coverage, resulting increase in the number of people with grants, user fees, or loan programs or the from factors such as lack of competition, health insurance. Newly insured rights and obligations of recipients adverse selection, and limited individuals and individuals with thereof; or (4) raising novel legal or transparency. In addition to expanded coverage will have increased policy issues arising out of legal affordability concerns, many people access to health care, improving mandates, the President’s priorities, or have difficulty finding and enrolling in utilization of preventive care and health the principles set forth in the Executive coverage options. If employer-based outcomes and protection from the risk of catastrophic medical expenditures, Order. coverage is not available, a person may find that affordable individual market leading to financial security. In A regulatory impact analysis (RIA) addition, an issuer seeking a rate coverage is not available due to medical must be prepared for rules with increase would submit data and underwriting. The provisions of this economically significant effects (e.g., documentation about the rate increase $100 million or more in any 1 year), and proposed rule, combined with other using a standardized format, which a ‘‘significant’’ regulatory action is provisions in the Affordable Care Act, would provide CMS the data necessary subject to review by the OMB. OMB has will improve the functioning of both the for monitoring rate increases, enable designated this proposed rule as a individual and the small group markets consistent reporting between CMS and ‘‘significant regulatory action.’’ Even and make insurance affordable and the states and eliminate issuer burden though at this time it is uncertain accessible to millions of Americans who arising from having to use different whether it is likely to have economic currently do not have affordable options formats for submitting the data to states impacts of $100 million or more in any available to them. In addition, this and to CMS. In accordance with one year, CMS has provided an proposed rule would amend the existing Executive Order 12866, CMS expects assessment of the potential costs, rate review standards under section that the benefits of this proposed benefits, and transfers associated with 2794 of the PHS Act to reflect the new regulatory action would justify the this proposed regulation. market conditions in 2014. costs.

TABLE V.1—ACCOUNTING TABLE

Benefits:

Qualitative: * Increase in enrollment in the individual market leading to improved access to health care for the previously uninsured, especially individ- uals with medical conditions, which will result in improved health and protection from the risk of catastrophic medical expenditures * Lower premium rates in the individual market due to the improved risk profile of the insured, competition, and pooling * A common marketing standard covering the entire insurance market, reducing adverse selection, improving market oversight and competi- tion and reducing search costs for consumers * Decrease in administrative costs for issuers due to elimination of medical underwriting and coverage exclusions * Prevent duplication of effort for rate review filings subject to review by setting forth a standardized template for both non-QHPs and QHPs * Provide state departments of insurance with more capacity to conduct meaningful rate review and approval of products sold inside and outside an Exchange by using a standardized data template

Costs ...... Estimate 62 Year dollar Discount rate Period covered

Annualized Monetized ($/year) ...... $16 million ...... 2012 7% 2013–2017

$16 million ...... 2012 3% 2013–2017

Administrative costs related to submission of data by issuers seeking rate increases below the rate review threshold

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TABLE V.1—ACCOUNTING TABLE—Continued Qualitative: * Costs incurred by issuers to comply with provisions in the proposed rule. * Costs incurred by states choosing to establish rating areas and age rating curves. * Costs related to possible increases in utilization of health care for the newly insured. * Costs incurred by states for disclosure of rate increases, if applicable.

Transfers:

Qualitative: * Lower rates for individuals in the individual and small group market who are older and/or in relatively poor health, and women; and poten- tially higher rates for some young men which will be mitigated by provisions such as premium tax credits, risk stabilization programs, ac- cess to catastrophic plans, and the minimum coverage provision. * Reduction in uncompensated care for providers who treat the uninsured and increase in payments from issuers. * Decrease in out-of-pocket expenditures by the newly insured and increase in health care spending by issuers, which will be more than off- set by an increase in premium revenue.

gender rating in the individual market that will be effective by 2014, such as while 15 states do not allow gender establishment of the Exchanges, 3. Anticipated Benefits, Costs and rating in the small group market. Of the premium tax credits, and the minimum Transfers states that bar gender rating in the coverage provision, that relate to the In developing this proposed rule, individual market, only three of those provisions in this proposed rule. These CMS carefully considered its potential states require maternity coverage in all provisions will improve access to and effects including both costs and policies, meaning that women in the affordability of health insurance benefits. Because of data limitations, other states can be charged additional coverage. Therefore, it is appropriate to CMS did not attempt to quantify all of premiums for maternity coverage. take into consideration the effect of all the benefits, costs and transfers Currently, only five states have these provisions in this analysis, even resulting from this proposed rule. guaranteed issue in the individual though not all of them are the focus of Nonetheless, CMS was able to identify market. Studies show that 48 states this proposed rule. It should be noted several potential qualitative impacts require guaranteed renewability in small that the impact of these provisions may which are discussed below. group market while all 50 states provide vary between states, because of the There are diverse state laws and some level of guaranteed renewability in differences in current regulatory industry practices currently in place the individual market. In addition, frameworks. that result in a wide variation in HIPAA already provides guaranteed We solicit information and data on premium rates (henceforth referred to as renewability of coverage to individuals any industry practices and procedures ‘‘rates’’) and coverage for individual and and employers, irrespective of state law. that would be affected by the group health insurance markets. Therefore, this provision is not expected implementation of these provisions and Regarding the individual market, only to have any significant effect in that five states have both guaranteed issue any related costs and savings, including regard. administrative, operating, and for at least some products and modified Starting in 2014, issuers in the or pure community rating requirements, information technology related costs, individual and small group markets will and anticipated effects on premium while in other states, issuers can deny only be allowed to vary rates based on health insurance coverage or charge rates and financial performance. age and tobacco use within specified The provisions of this proposed rule higher premiums to people with ranges, family size, and geography (the 63 would also modify the existing Effective medical conditions. Currently, 11 fair health insurance premium states and the District of Columbia have Rate Review Program to take into requirement). Issuers generally will account market rule changes in 2014. rate bands, which allow issuers to vary accept every individual and employer rates only within a certain range of the Specifically, a state must include that applies for health insurance additional elements in its rate review average rate, two states bar rating based coverage (the guaranteed availability on age, and five states bar rating based process, like a review of the requirement), and must also renew or reasonableness of assumptions used by on tobacco use in the individual continue health insurance coverage at 64 the health insurance issuer to estimate market. In the small group market, 36 the option of the plan sponsor or states and the District of Columbia have the rate impact of the federal individual (the guaranteed renewability reinsurance and risk adjustment rate bands, 12 states have community requirement). In addition, issuers must rating requirements, two states do not programs and review of the health have single risk pools for each of the insurance issuer’s data related to allow rating based on age and 16 do not individual and small group markets, or allow rating based on tobacco use. In implementation and ongoing utilization a single merged risk pool, if a state so of a market-wide single risk pool, many states, women are charged higher elects, which will include all premiums than men—only 14 states bar essential health benefits, actuarial individuals enrolled in all non- values, and other market reforms rules grandfathered plans in the applicable 62 These estimates are exclusive of each other. as required by the law. Therefore, the total cost is estimated to be no higher market (the single risk pool than $16 million. requirement). a. Benefits 63 The provisions of the proposed rule GAO, Private Health Insurance: Estimates of In 2011, 48.6 million people in the Individuals with Preexisting Conditions Range from will affect the characteristics of United States were uninsured.65 In 36 Million to 122 Million, GAO–12–439, March enrollees, enrollment and premium 2012. 64 Kaiser Family Foundation, Focus on Health rates in the individual and small group 65 Source: U.S. Census Bureau, Current Reform: Health Insurance Market Reforms: Rate markets. In addition, there are other Population Survey, 2012 Annual Social and Restrictions, June 2012. provisions of the Affordable Care Act Economic Supplement, Table HI01. Health

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addition, an estimated 29 million adults Massachusetts passed similar health by the Commonwealth Fund found that were underinsured in 2010.66 Studies reforms in 2006, and now has the lowest 36 percent of adults ages 19 to 64 were have shown that people without health uninsured rate in the country. In 2011, denied coverage or charged a higher insurance have reduced access to health only 3.4 percent of Massachusetts price because of their medical care, higher out-of-pocket costs, higher residents were uninsured.70 This has conditions.74 Another study found that, mortality rates and receive less resulted in increased access to health in 2010, 35 percent of nonelderly adults preventive care.67 Uninsured and care, including preventive care and who shopped for health insurance underinsured people are also more fewer individuals with high out-of- coverage in the individual market were likely to be unable to pay their medical pocket spending.71 denied coverage or received coverage bills, have medical debt, and experience Research shows that individuals in exclusions for medical conditions.75 financial difficulties. relatively poor health experience The Affordable Care Act’s provision on The provisions of this proposed rule difficulty obtaining health insurance guaranteed availability will bar issuers and other changes implemented by the coverage. This results in lack of from denying coverage to individuals Affordable Care Act will increase adequate access to health care and based on their health status or any other enrollment in the individual and small higher out-of-pocket expenses for these factor, and the provision on fair group markets. According to the individuals. According to a recent study insurance premiums will prevent Congressional Budget Office (CBO), by GAO, between 36 million and 122 issuers from charging a higher premium there will be approximately 23 million million adults age 19 to 64 years old (or to individuals based on health status. enrollees in Exchange coverage by 2016. between 20 and 66 percent of the adult The proposed rule will ensure that CBO estimates that, by 2016, the population) have medical conditions individuals who would have been number of uninsured will be reduced to that could result in issuers denying denied coverage or charged excessively up to 30 million.68 Access to them coverage or charging higher high premium rates, for reasons such as catastrophic plans is likely to further premiums.72 Of these, an estimated 88– medical conditions or high expected increase the number of insured. Newly 89 percent live in states that do not have medical costs, will now be able to insured individuals and individuals insurance protections provided by the obtain health insurance at an affordable with expanded coverage will have fair health insurance premium and cost. In addition, young adults and access to better health care and guaranteed availability provisions of the people for whom coverage would experience a reduction in out-of-pocket Affordable Care Act. The GAO study otherwise be unaffordable will have costs. Ample research demonstrates that estimated that health care expenditures access to a catastrophic plan that will access to insurance coverage improves for adults with medical conditions are, have a lower premium, protect against utilization of preventive care, improves on average, between $1,504 and $4,844 high out-of-pocket costs, and cover health outcomes, and creates less more per year than for other adults. recommended preventive services financial debt, which would lead to Similarly, a study by HHS found that without cost sharing. better financial security.69 The State of there are between 50 million and 129 The provisions of this proposed rule million non-elderly individuals with a and other changes implemented by the Insurance Coverage Status and Type of Coverage by medical condition, including between 4 Affordable Care Act will increase Selected Characteristics: 2011. and 17 million children under age 18, enrollment in the individual market. An 66 Cathy Schoen Michelle M. Doty, Ruth H. and up to 25 million of these adults and analysis by the Congressional Budget Robertson and Sara R. Collins, Affordable Care Act children are uninsured.73 A 2007 study Office (CBO) and the staff of the Joint Reforms Could Reduce The Number Of 76 Underinsured U.S. Adults by 70 Percent, Health Committee on Taxation (JCT) Affairs, 30, no.9 (2011):1762–1771. and Statistics, 87(2): 256–270, 2005; Amy estimated that the characteristics of 67 The Henry J. Kaiser Family Foundation, The Finkelstein, et al., The Oregon Health Insurance enrollees in the individual market will Uninsured: A Primer, Key Facts About Americans Experiment: Evidence from the First Year, National Bureau of Economic Research Working Paper No. be significantly different, especially due Without Health Insurance, Washington, DC, 2011, 17190, July 2011; Institute of Medicine, Care to the addition of people who would citing a number of studies on the effects of being without coverage: too little, too late, National uninsured; ASPE, The Value of Health Insurance: have been uninsured in the absence of Academies Press, 2002; J. Ayanian et al., Unmet Few of the Uninsured Have Adequate Resources to the Affordable Care Act. CBO and JCT Health Needs of Uninsured Adults in the United Pay Potential Hospital Bills, 2011 (http://aspe.hhs. States, JAMA 284(16):2061–9, 2000; Andrew P. estimated that relatively more new gov/health/reports/2011/valueofinsurance/ Wilper, et al., Health Insurance and Mortality in enrollees in the individual market rb.shtml ); Sara R. Collins, Ruth Robertson, Tracy U.S. Adults. American Journal of Public Health, Garber, and Michelle M. Doty, The Income Divide would be younger and healthier and 99(12) 2289–2295, 2009; S. Dorn, Uninsured and likely to use less medical care, and the in Health Care: How the Affordable Care Act Will Dying Because of It: Updating the Institute of Help Restore Fairness to the U.S. Health System, Medicine Analysis on the Impact of Uninsurance on addition of new enrollees would result The Commonwealth Fund, February 2012; J. Doyle, Mortality, Urban Institute, 2008; Jack Hadley, in average premium rates in the market Health Insurance, Treatment and Outcomes: Using Insurance Coverage, Medical Care Use, and Short- being 7 to 10 percent lower in 2016 all Auto Accidents as Health Shocks, Review of term Health Changes Following an Unintentional Economics and Statistics, 87(2): 256–270, 2005; S. Injury or the Onset of a Chronic Condition, JAMA. Dorn, Uninsured and Dying Because of It: Updating 2007;297(10):1073–1084. doi: 10.1001/ Be Denied Affordable Coverage Without Health the Institute of Medicine Analysis on the Impact of jama.297.10.1073; K. Cook et al., Does major illness Reform, November 2011. Uninsurance on Mortality, Urban Institute, 2008; cause financial catastrophe?, Health Services 74 Michelle M. Doty et al., Failure to Protect: Why Cathy Schoen, Michelle M. Doty, Ruth H. Robertson Research 45, no. 2, 2010. the Individual Insurance Market Is Not a Viable and Sara R. Collins, Affordable Care Act Reforms 70 Source: U.S. Census Bureau, Current Option for Most U.S. Families: Findings from the Could Reduce The Number Of Underinsured U.S. Population Survey, 2012 Annual Social and Commonwealth Fund Biennial Health Insurance Adults by 70 Percent, Health Affairs, 30, no.9 Economic Supplement, Table HI06. Health Survey, 2007, The Commonwealth Fund, July 2009. (2011):1762–1771. Insurance Coverage Status by State for All People: 75 Sara R. Collins, Invited Testimony: Premium 68 ‘‘Estimates for the Insurance Coverage 2011. Tax Credits Under The Affordable Care Act: How Provisions of the Affordable Care Act Updated for 71 Kaiser Family Foundation, Focus on Health They Will Help Millions Of Uninsured And the Recent Supreme Court Decision,’’ Congressional Reform: Massachusetts Health Care Reform: Six Underinsured Americans Gain Affordable, Budget Office, July 2012. Years Later, June 2012. Comprehensive Health Insurance, The 69 T. Gross and Notowidigdo, Health Insurance 72 GAO, Private Health Insurance: Estimates of Commonwealth Fund, October 27, 2011. and the Consumer Bankruptcy Decision: Evidence Individuals with Preexisting Conditions Range from 76 Congressional Budget Office, Letter to from Expansions of Medicaid, Journal of Public 36 Million to 122 Million, GAO–12–439, March Honorable Evan Bayh, providing an Analysis of Economics, 95(7–8):767–778, 2011; J. Doyle, Health 2012. Health Insurance Premiums Under the Patient Insurance, Treatment and Outcomes: Using Auto 73 ASPE, At Risk: Preexisting Conditions Could Protection and Affordable Care Act, November 30, Accidents as Health Shocks, Review of Economics Affect 1 in 2 Americans: 129 Million People Could 2009.

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else held constant. According to CBO group markets. This, in turn, could We solicit data on the timing, nature and JCT, the characteristics of people in contribute to lower premium rates. and magnitude of these potential the large and small group markets The proposed rule also would require administrative and other costs and would change slightly, and projected all health insurance issuers marketing savings associated with the proposed premium rate changes would range from group or individual health insurance rules relative to current practices, a 1 percent decrease to a 2 percent coverage to comply with the same including merging the individual and increase. marketing standards as issuers offering small group markets into a single risk Currently, health insurance issuers QHPs within the Exchanges. This pool in a state, if the state chooses to do may maintain several blocks of minimizes the potential for the adverse so. We also request information on business, or ‘‘pools,’’ for their selection that could result if plans sold whether the changes in rating rules individual and small group market through Exchanges were subject to would require issuers to undertake any business. Most states place some different marketing standards from systems and operational changes, and restrictions on the number of small plans sold outside of the Exchanges. A we solicit data on any related costs and group blocks of business. However, the common standard covering the entire potential savings as well as potential individual market generally has not insurance market would also ensure effects on premiums and financial been subject to similar restrictions. In consistency in market oversight, performance. We are also soliciting the past, some issuers used separate increase competition and reduce search information on how standardizing rating pools to segment risks, resulting in large costs for consumers.78 areas could affect rates. In addition, we rate increases for less-healthy enrollees. The proposed amendments to the are requesting information on any A single risk pool will tend to lower Effective Rate Review Program would potential costs incurred by states to rates in the individual market by help issuers to avoid significant establish rating areas and uniform age including younger, healthier individuals duplication of effort for filings subject to rating curves if they choose to do so. in the pool and ensuring that newer and review by using the same standardized The proposed rule would also direct more long-term policyholders are template for both non-QHPs and QHPs. states to provide information to CMS pooled together. In the small group Issuers would also no longer be required about their rating and risk pooling market, a single risk pool will stabilize to submit the same type of data in practices in several key areas, as rates. different formats to different regulators. applicable. They include: age and The guaranteed availability provision Additionally, the use of a standardized tobacco rating factors, age rating curves, may result in some adverse selection— data template would provide state family tier structure, composite rating in individuals with poor health who departments of insurance and CMS as the small group market, geographical would have been denied coverage before applicable with more information to rating areas, and combined individual in some states will now be able to obtain conduct the review and approval of and small group market risk pools. As health insurance. However, according to products sold inside and outside an discussed in the Collection of CBO and JCT,77 adverse selection will Exchange, monitor rates to detect Information Requirements section, we be mitigated principally by the patterns that could signal market estimate a total burden of approximately minimum coverage provision and the disruption, and oversee the market-wide $215 for a state to submit information in availability of premium tax credits, rules. all seven areas. which will make insurance affordable Health insurance issuers seeking rate b. Costs for millions of Americans for whom it increases below the rate review is currently unaffordable. Other factors Under the proposed rule, issuers will threshold would submit data using the such as fixed open enrollment periods likely incur some one-time, fixed costs standardized data template and would will also help to mitigate adverse in order to comply with the provisions incur administrative costs to prepare selection. The Affordable Care Act also of the final rule, including and submit the data. Based on CMS’s establishes transitional reinsurance and administrative expenditures for systems experience with the 2011 MLR reporting temporary risk corridor programs and a and software updates and changes in year, there are 2,010 health insurance permanent risk adjustment program, marketing. In addition, states may incur issuers (company/state combinations) which will provide payments to issuers costs in order to establish geographic offering coverage in the individual providing coverage to high-risk rating areas and uniform age rating market in all states and 1,050 issuers individuals, to mitigate the potential curves. offering coverage in the small group effects of adverse selection. These In addition to these administrative market in all states, while there are programs will provide payment stability costs, insurance coverage can lead to 2,294 unique issuers offering products to issuers and reduce uncertainty in increased utilization of health services in one or both markets. Most issuers insurance risk in the individual market for individuals who become newly would already have to provide this and in the small group market, in the insured. While a portion of this information to their respective states. case of the permanent risk adjustment increased utilization may be We anticipate a total of 7,650 program. economically inefficient, studies that submissions for rate review increases Administrative costs for issuers will estimated the effects of Medicare found annually in both markets. Based on past be lowered because of the elimination of that the cost of this inefficiency is likely experience, we anticipate that medical underwriting and banning more than offset by the benefit of risk 79 80 approximately 1,200 of these coverage exclusions. Costs should reduction. submissions will be for rate increases at decrease for processing new or above the threshold and the applications for coverage and 78 R. Cebul et al., Unhealthy Insurance Markets: Search Frictions and the Cost and Quality of Health remaining 6,450 submissions will be for implementing the ban on coverage Insurance, American Economic Review 101(5): rate increases below the threshold. We exclusions in the individual and small 1842–1847, 2011. assume that each submission will 79 Finkelstein, A, McKnight R: ‘‘What Did require 11 hours of work by an actuary 77 Congressional Budget Office, Letter to Medicare Do? The Initial Impact of Medicare on (at a cost of $225 per hour), including Honorable Evan Bayh providing An Analysis of Mortality and Out Of Pocket Medical Spending ’’ Health Insurance Premiums Under the Patient Journal of Public Economics 2008, 92:1644–1668. Protection and Affordable Care Act, November 30, 80 Finkelstein, A., ‘‘The Aggregate Effects of Medicare,’’ National Bureau of Economic Research. 2009. Health Insurance: Evidence from the Introduction of Working Paper No. 11619, Sept, 2005.

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minimal time required for will mitigate the effects of reformed plan for purposes of obtaining tax recordkeeping. Therefore, the increase rating practices, such as choices of and credits. in administrative costs for all issuers competition among plans on Exchanges, CMS also considered the alternatives seeking rate increases below the greater pooling of risks through the of including a tobacco component for threshold would be approximately $16 Exchanges, premium tax credits, the risk the rating curve and keeping the rating million, with an average of $7,000 per stabilization programs, access to factor for tobacco use separate from the issuer. It should be noted that there are catastrophic plans, and the minimum wellness program rules. These administrative efficiencies gained by coverage provision. alternatives would reduce flexibility for helping issuers to avoid significant As people who were previously the issuers with respect to rating for duplication of effort for filings subject to uninsured obtain coverage, their out-of- tobacco use and would provide no review by using the same standardized pocket expenses are expected to alternative to the tobacco surcharge, which could discourage disclosure of template for both non-QHPs and QHPs decrease while the issuers’ spending tobacco use. Under the proposed rule, a across all states, and because the vast will increase, which is expected to be health insurance issuer in the small majority of states currently require all mitigated by an increase in premium group market would be able to rate increases to be filed; these revenues. Expansion in health insurance implement the tobacco use surcharge to efficiencies are not quantified in this coverage will also reduce the amount of employees only in connection with a rule. uncompensated care for providers that Additionally, all issuers seeking rate wellness program that effectively allows treat the uninsured. Millions of people increases would need to adjust their tobacco users to reduce their premiums without health insurance now use systems to provide the data required in to the level of non-tobacco users by health care services for which they do the standardized data template. We seek participating in a tobacco cessation not fully pay, shifting the comments on the extent of these costs program or satisfying another reasonable and plan to incorporate an estimate in uncompensated cost of their care to alternative. This proposal is designed to the final rule. health care providers, people who do discourage underreporting of tobacco For filings subject to review, states have insurance (in the form of higher use and encourage tobacco users to with Effective Rate Review Programs premiums), and state and local 83 enter cessation programs and improve would be expected to use the data governments. Providers of their health and reduce health care submissions in their reviews; however, uncompensated care try to recover the costs. it is not expected to increase review money by increasing the amounts CMS believes that the provisions of costs. charged to insurance companies, which this proposed rule strike the best results in higher premiums for balance of extending protections of the c. Transfers individuals with private insurance. The Affordable Care Act to consumers while As discussed elsewhere in the cost of uncompensated care for the preserving the availability of such preamble, most aspects of rating previously uninsured will be transferred coverage and minimizing market methodology today are left to the from the providers (for example, disruptions to the extent possible. discretion of health insurance issuers, hospitals and physicians), governmental subject to oversight by the states. In programs and charitable organizations D. Regulatory Flexibility Act most states, issuers may vary premium to the individuals and issuers of their The Regulatory Flexibility Act (RFA) rates based on a number of factors such health insurance coverage. Reduction in requires agencies that issue a rule to as age, health status, and gender. In the number of uninsured would reduce analyze options for regulatory relief of 2010, 60 percent of non-elderly adults the amount of uncompensated care and small businesses if a rule has a who shopped for insurance coverage in could lead to a decrease in private significant impact on a substantial the individual market had difficulty health insurance rates. number of small entities. The RFA finding affordable coverage.81 Also, as a generally defines a ‘‘small entity’’ as— C. Regulatory Alternatives result of current gender rating, premium (1) a proprietary firm meeting the size rates for women are significantly higher Under Executive Order 12866, CMS is standards of the Small Business than those for men. According to a required to consider alternatives to Administration (SBA), (2) a nonprofit study by the National Women’s Law issuing rules and alternative regulatory organization that is not dominant in its Center, 92 percent of best-selling plans approaches. field, or (3) a small government currently practice gender rating.82 The Under the proposed rule, all issuers in jurisdiction with a population of less provision of fair premiums will allow a state would use a uniform age rating than 50,000 (states and individuals are issuers to vary rates based on only a curve. CMS considered the alternative not included in the definition of ‘‘small limited number of factors and within of allowing issuers to set their own entity’’). CMS uses as its measure of specified ranges. Since rating based on rating curve. Under the alternative, significant economic impact on a gender and health will no longer be issuers would have more flexibility and substantial number of small entities a allowed, rates for some older, less change in revenues of more than 3 to 5 healthy adults and women may might incur lower upfront, fixed costs (for example, systems and software percent. decrease. While these rules could As discussed in the Web Portal final updates) to comply with the proposed increase rates for younger, healthier rule published on May 5, 2010 (75 FR rule. A uniform age rating curve, adults and for some men, other factors 24481), CMS examined the health however, would improve the accuracy insurance industry in depth in the of risk adjustment, increase consumer 81 Sara R. Collins, Invited Testimony: Premium Regulatory Impact Analysis we prepared transparency when comparing prices Tax Credits Under The Affordable Care Act: How for the proposed rule on establishment They Will Help Millions Of Uninsured And across plans, and make it simpler to of the Medicare Advantage program (69 Underinsured Americans Gain Affordable, identify the second lowest cost silver Comprehensive Health Insurance, The FR 46866, August 3, 2004). In that Commonwealth Fund, October 27, 2011. analysis it was determined that there 83 82 National Women’s Law Center, Turning to Families USA, Hidden Health Tax: Americans were few, if any, insurance firms Fairness: Insurance discrimination against women Pay a Premium (Washington, DC: Families USA, today and the Affordable Care Act, Washington, DC, 2009) (http://familiesusa2.org/assets/pdfs/hidden- underwriting comprehensive health March 2012. health-tax.pdf). insurance policies (in contrast, for

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example, to travel insurance policies or ‘‘Federal mandate’’ costs resulting requirements that are more stringent dental discount policies) that fell below from—(1) imposing enforceable duties than the Federal requirements would be the size thresholds for ‘‘small’’ business on state, local, or tribal governments, or not be preempted by this proposed rule. established by the SBA (currently $7 on the private sector; or (2) increasing Accordingly, states have significant million in annual receipts for health the stringency of conditions in, or latitude to impose requirements with issuers).84 decreasing the funding of, state, local, or respect to health insurance coverage In addition, CMS used the data from tribal governments under entitlement that are more restrictive than the Medical Loss Ratio annual report programs. Federal law. submissions for the 2011 MLR reporting This proposed rule would give state In compliance with the requirement year to develop an estimate of the governments the option to establish of Executive Order 13132 that agencies number of small entities that offer rating areas within the state and examine closely any policies that may comprehensive major medical coverage. uniform age rating curves. There are no have Federalism implications or limit These estimates may overstate the actual mandates on local or tribal the policymaking discretion of the number of small health insurance governments. State governments may states, CMS has engaged in efforts to issuers that would be affected, since incur administrative cost related to the consult with and work cooperatively they do not include receipts from these option of establishing rating areas and with affected states, including companies’ other lines of business. It is uniform age rating curves. However, if consulting with National Association of estimated that there are 22 small entities the state government does not act, CMS Insurance Commissioners. each with less than $7 million in earned may establish the rating areas and Throughout the process of developing premiums that offer individual or group uniform age rating curve in that state. this proposed rule, CMS has attempted health insurance coverage and would State governments would also incur to balance the states’ interests in therefore be subject to the requirements administrative costs related to regulating health insurance issuers and of this proposed regulation. These small disclosure of rating and pooling Congress’s intent to provide uniform entities account for less than five requirements to CMS, which are protections to consumers in every state. percent of the estimated 466 issuers that estimated to be $215 per state. The By doing so, it is CMS’s view that it has would be affected by the provisions of private sector (for example, health complied with the requirements of this rule. Thirty six percent of these insurance issuers) will incur Executive Order 13132. Under the small issuers belong to holding groups, administrative costs related to the requirements set forth in section 8(a) of and many if not all of these small implementation of the provisions in this Executive Order 13132, and by the issuers are likely to have other lines of proposed rule. This proposed rule signatures affixed to this rule, HHS business that would result in their would not impose an unfunded certifies that the CMS Center for Consumer Information and Insurance revenues exceeding $7 million. For mandate on local or tribal governments. Oversight has complied with the these reasons, CMS expects that this However, consistent with policy requirements of Executive Order 13132 proposed rule will not affect small embodied in UMRA, this proposed rule for the attached proposed rule in a issuers. has been designed to be the least meaningful and timely manner. This rule proposes requirements that burdensome alternative for state, local may affect health insurance premiums and tribal governments, and the private G. Congressional Review Act in the small group market. We expect sector while achieving the objectives of the Affordable Care Act. This proposed rule is subject to the that many employers that purchase Congressional Review Act provisions of health insurance coverage in the small F. Federalism the Small Business Regulatory group market would meet the SBA Executive Order 13132 establishes Enforcement Fairness Act of 1996 (5 standard for small entities. As certain requirements that an agency U.S.C. 801 et seq.), which specifies that mentioned earlier in the impact must meet when it promulgates a before a rule can take effect, the Federal analysis, the impact on premiums is proposed rule that imposes substantial agency promulgating the rule shall likely to be small and may even lead to direct requirement costs on state and submit to each House of the Congress lower rates in the small group market. local governments, preempts state law, and to the Comptroller General a report E. Unfunded Mandates Reform Act or otherwise has Federalism containing a copy of the rule along with implications. other specified information, and has Section 202 of the Unfunded As discussed earlier in the preamble, been transmitted to Congress and the Mandates Reform Act (UMRA) of 1995 states are the primary regulators of Comptroller General for review. requires that agencies assess anticipated health insurance coverage. States would costs and benefits before issuing any continue to apply state laws regarding List of Subjects proposed rule that includes a Federal health insurance coverage. However, if 45 CFR Part 144 mandate that could result in any any state law or requirement prevents Health care, Health insurance, expenditure in any one year by state, the application of a Federal standard, local or tribal governments, in the Reporting and recordkeeping then that particular state law or requirements. aggregate, or by the private sector, of requirement would be preempted. If $100 million in 1995 dollars, updated CMS determines that a state does not 45 CFR Part 147 annually for inflation. In 2012, that meet the criteria for an Effective Rate Health care, Health insurance, threshold level is approximately $139 Review Program, then CMS would Reporting and recordkeeping million. review a rate increase subject to review requirements, and state regulation of UMRA does not address the total cost to determine whether it is unreasonable. health insurance. of a proposed rule. Rather, it focuses on If a state does meet the criteria, then certain categories of cost, mainly those CMS would adopt that state’s 45 CFR Part 150 determination of whether a rate increase Administrative practice and 84 Table of Small Business Size Standards procedure, Health care, Health Matched to North American Industry Classification is unreasonable. States would continue System Codes, effective March 26, 2012, U.S. Small to apply state law requirements insurance, Penalties, Reporting and Business Administration, available at www.sba.gov. regarding rate and policy filings. State recordkeeping requirements.

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45 CFR Part 154 further divided into the large group (iii) Age, except that the rate must not Administrative practice and market and the small group market. vary by more than 3:1 for like (b) The protections afforded under 45 procedure, Claims, Health care, Health individuals of different age who are age CFR parts 144 through 148 to insurance, Health plans, Penalties, 21 and older and that the variation in individuals and employers (and other Reporting and recordkeeping rate must be actuarially justified for sponsors of health insurance offered in requirements. individuals under age 21, consistent connection with a group health plan) with the uniform age rating curve under 45 CFR Part 156 are determined by whether the coverage paragraph (e) of this section. For Administrative practice and involved is obtained in the small group purposes of identifying the appropriate procedure, Advertising, Advisory market, the large group market, or the age adjustment under this paragraph committees, Brokers, Conflict of individual market. and the age band in paragraph (d) of this interest, Consumer protection, Grant (c) Coverage that is provided to section applicable to a specific enrollee, programs-health, Grants administration, associations, but not related to the enrollee’s age as of the date of policy Health care, Health insurance, Health employment, and sold to individuals is issuance or renewal shall be used. maintenance organization (HMO), not considered group coverage under 45 Nothing in this paragraph prevents a Health records, Hospitals, Indians, CFR parts 144 through 148. If the state from requiring the use of a ratio Individuals with disabilities, Loan coverage is offered to an association narrower than 3:1 in connection with programs-health, Organization and member other than in connection with establishing rates for individuals who functions (Government agencies), a group health plan, or is offered to an are age 21 and older. A state that uses Medicaid, Public assistance programs, association’s employer-member that is a narrower ratio shall submit to CMS Reporting and recordkeeping maintaining a group health plan that has information on its ratio in accordance requirements, Safety, State and local fewer than two participants who are with the date and format specified by governments, Sunshine Act, Technical current employees on the first day of the CMS. Assistance, Women, and Youth. plan year, the coverage is considered (iv) Tobacco use, except that such rate individual health insurance coverage for shall not vary by more than 1.5:1 for like For the reasons set forth in the purposes of 45 CFR parts 144 through individuals who vary in tobacco usage. preamble, the Department of Health and 148. The coverage is considered (See § 147.110, related to prohibiting Human Services proposes to amend 45 coverage in the individual market, discrimination based on health status CFR parts 144, 147, 150, 154, and 156 regardless of whether it is considered and programs of health promotion or as set forth below: group coverage under state law. If the disease prevention.) Nothing in this PART 144—REQUIREMENTS health insurance coverage is offered in paragraph prevents a state from RELATING TO HEALTH INSURANCE connection with a group health plan as requiring the use of a ratio narrower COVERAGE defined at 45 CFR 144.103, it is than 1.5:1 in connection with considered group health insurance establishing rates for individuals who 1. The authority citation for part 144 coverage for purposes of 45 CFR parts vary in tobacco usage. A state that uses continues to read as follows: 144 through 148. a narrower ratio shall submit to CMS Authority: Secs. 2701 through 2763, 2791, (d) Provisions relating to CMS information on its ratio in accordance and 2792 of the Public Health Service Act (42 enforcement of parts 146, 147, and 148 with the date and format specified by U.S.C. 300gg through 300gg-63, 300gg-91, are contained in part 150 of this CMS. and 300gg-92). subchapter. (2) The rate must not vary with respect to the particular plan or 2. Section 144.101 is amended by PART 147—HEALTH INSURANCE coverage involved by any other factor revising paragraphs (d)(1) and (d)(2) to REFORM REQUIREMENTS FOR THE not described in paragraph (a)(1) of this read as follows: GROUP AND INDIVIDUAL HEALTH section. INSURANCE MARKETS § 144.101 Basis and purpose. (b) Rating area. (1) A state may * * * * * 4. The authority citation for part 147 establish rating areas within that state (d) * * * continues to read as follows: for purposes of applying this section (1) States that fail to substantially Authority: Secs. 2701 through 2763, 2791, and the requirements of title XXVII the enforce one or more provisions of part and 2792 of the Public Health Service Act (42 Public Health Service Act and title I of 146 concerning group health insurance, U.S.C. 300gg through 300gg-63, 300gg-91, the Patient Protection and Affordable one or more provisions of part 147 and 300gg-92), as amended. Care Act. A state that establishes rating areas shall submit to CMS information concerning group or individual health 5. Section 147.102 is added to read as on its rating areas in accordance with insurance, or the requirements of part follows: 148 of this subchapter concerning the date and format specified by CMS. individual health insurance. § 147.102 Fair health insurance premiums. (2) If a state’s rating areas are not (2) Insurance issuers in States (a) In general. With respect to the consistent with paragraph (b)(3) of this described in paragraph (d)(1) of this premium rate charged by a health section, or if a state does not establish section. insurance issuer for health insurance rating areas, the standard under * * * * * coverage offered in the individual or paragraph (b)(3)(i) of this section shall 3. Section 144.102 is revised to read small group market— apply unless CMS establishes rating as follows: (1) The rate may vary with respect to areas within the state applying one of the particular plan or coverage involved the standards under paragraph (b)(3)(ii) § 144.102 Scope and applicability. only by determining the following: of this section. (a) For purposes of 45 CFR parts 144 (i) Whether the plan or coverage (3) A state’s rating areas will be through 148, all health insurance covers an individual or family. presumed adequate if one of the coverage is generally divided into two (ii) Rating area, as established in following requirements are met: markets—the group market and the accordance with paragraph (b) of this (i) There is only one rating area individual market. The group market is section. within the state.

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(ii) There are no more than seven premiums based on average enrollee (1) Open enrollment periods—(i) rating areas based on the one of the amounts shall submit to CMS Group market. A health insurance issuer following geographic divisions: information on its election in in the group market must permit an counties, three-digit zip codes, or accordance with the date and format employer to purchase health insurance metropolitan statistical areas/non- specified by CMS. coverage for a group health plan at any metropolitan statistical areas. (d) Uniform age bands. The following point during the year. In the case of (4) Notwithstanding paragraph (b)(3) uniform age bands apply for rating health insurance coverage offered in the of this section, a state may propose to purposes under paragraph (a)(1)(iii) of small group market, a health insurance CMS for approval other existing this section: issuer may decline to offer coverage to geographic divisions on which to base (1) Child age bands. A single age band a plan sponsor that is unable to comply rating areas or a number of rating areas for individuals age 0 to 20. with a material plan provision relating greater than seven. (2) Adult age bands. One-year age to employer contribution or group (c) Application of variations based on bands starting at age 21 and ending at participation rules, as defined in age or tobacco use. With respect to age 63. § 147.106(b)(3), pursuant to applicable family coverage under health insurance (3) Older adult age bands. A single state law and, in the case of a QHP coverage, the rating variations permitted age band for individuals age 64 and offered in the SHOP, as permitted by under paragraphs (a)(1)(iii) and (a)(1)(iv) older. § 156.285(c) of this subchapter. With of this section must be applied based on (e) Uniform age rating curves. Each respect to coverage in the small group the portion of the premium attributable state must establish a uniform age rating market, and in the large group market if to each family member covered under curve for rating purposes under such coverage is offered in a Small the coverage. paragraph (a)(1)(iii) of this section and Business Health Options Program (1) Per-member rating. The total submit to CMS information on its (SHOP) in a state, coverage shall become premium for family coverage must be uniform age rating curve in accordance effective consistent with the dates determined by summing the premiums with the date and format specified by described in § 155.725(h) of this for each individual family member. In CMS. If a state does not establish a subchapter. determining the total premium for uniform age rating curve by a date (ii) Individual market. A health family members, premiums for no more specified by CMS, a default uniform age insurance issuer in the individual than the three oldest family members rating curve established by CMS shall market must permit an individual to who are under age 21 must be taken into apply in that state which takes into purchase health insurance coverage account. account the rating variation permitted during the initial and annual open (2) Family tiers under community for age under state law. enrollment periods described in rating. If a state does not permit any (f) Special rule for large group market. § 155.410(b) and (e) of this subchapter, rating variation for factors that If a state permits health insurance with such coverage becoming effective otherwise would be permitted under issuers that offer coverage in the large consistent with the dates described in paragraphs (a)(1)(iii) and (a)(1)(iv) of group market in the state to offer such § 155.410(c) and (f) of this subchapter. this section, the state may elect to coverage through an Exchange starting (2) Special enrollment periods. A require that premiums for family in 2017, the provisions of this section health insurance issuer in the group coverage be determined by using applicable to coverage in the small market and individual market shall uniform family tiers and the group market shall apply to all coverage establish special enrollment periods for corresponding multipliers established offered in the large group market in the qualifying events as defined under by the state. A state that establishes state. section 603 of the Employee Retirement uniform family tiers and corresponding (g) Applicability date. The provisions Income Security Act of 1974, as multipliers shall submit to CMS of this section apply for plan years (in amended. Enrollees shall be provided information on its uniform family tiers the individual market, for policy years) 30 calendar days after the date of the and corresponding multipliers in beginning on or after January 1, 2014. qualifying event to elect coverage, with accordance with the date and format (h) Grandfathered health plans. This such coverage becoming effective specified by CMS. If a state does not section does not apply to grandfathered consistent with the dates described in establish uniform family tiers and the health plans. § 155.420(b) of this subchapter. These corresponding multipliers, the per- 6. Section 147.104 is added to read as special enrollment periods are in member rating methodology under follows: addition to any other special enrollment paragraph (c)(1) of this section will periods that are required under federal apply in that state. § 147.104 Guaranteed availability of and state law. (3) Application to small group market. coverage. (c) Special rules for network plans. (1) In the case of the small group market, (a) Guaranteed availability of In the case of a health insurance issuer the total premium charged to the group coverage in the individual and group that offers health insurance coverage in shall be determined by summing the market. Subject to paragraphs (b) the group and individual market premiums of covered participants and through (d) of this section, a health through a network plan, the issuer may beneficiaries in accordance with insurance issuer that offers health do the following: paragraph (c)(1) or (c)(2) of this section, insurance coverage in the individual or (i) Limit the employers that may as applicable. Nothing in this section group market in a state must offer to any apply for the coverage to those with shall preclude a state from requiring individual or employer in the state all eligible individuals in the group market issuers to offer, or an issuer from products that are approved for sale in who live, work, or reside in the service voluntarily offering, to a group the applicable market, and must accept area for the network plan, and limit the premiums that are based on average any individual or employer that applies individuals who may apply for the enrollee amounts, provided that the for any of those products. coverage in the individual market to total group premium is the same total (b) Enrollment periods. A health those who live or reside in the service amount derived in accordance with insurance issuer may restrict enrollment area for the network plan. paragraph (c)(1) or (c)(2) of this section, in health insurance coverage to open or (ii) Within the service area of the as applicable. A state that requires special enrollment periods. plan, deny coverage to employers and

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individuals if the issuer has (ii) The date the issuer demonstrates health insurance coverage, the plan demonstrated to the applicable state to the applicable state authority, if sponsor has failed to comply with a authority (if required by the state required under applicable state law, that material plan provision relating to authority) the following: the issuer has sufficient financial employer contribution or group (A) It will not have the capacity to reserves to underwrite additional participation rules, pursuant to deliver services adequately to enrollees coverage. applicable state law. For purposes of of any additional groups or any (3) Paragraph (d)(2) of this section this paragraph (b) the following apply: additional individuals because of its does not limit the issuer’s ability to (i) The term ‘‘employer contribution obligations to existing group contract renew coverage already in force or rule’’ means a requirement relating to holders and enrollees. relieve the issuer of the responsibility to the minimum level or amount of (B) It is applying paragraph (c)(1) of renew that coverage. employer contribution toward the this section uniformly to all employers (4) Coverage offered after the 180-day premium for enrollment of participants and individuals without regard to the period specified in paragraph (d)(2) of and beneficiaries. claims experience of those individuals, this section is subject to the (ii) The term ‘‘group participation employers and their employees (and requirements of this section. rule’’ means a requirement relating to their dependents) or any health status- (5) An applicable state authority may the minimum number of participants or related factor relating to such provide for the application of this beneficiaries that must be enrolled in individuals, employees, and paragraph (d) on a service-area-specific relation to a specified percentage or dependents. basis. number of eligible individuals or (2) An issuer that denies health (e) Marketing. A health insurance employees of an employer. insurance coverage to an individual or issuer and its officials, employees, (4) Termination of plan. The issuer is an employer in any service area, in agents and representatives must comply ceasing to offer coverage in the market accordance with paragraph (c)(1)(ii) of with any applicable state laws and in accordance with paragraph (c) or (d) this section, may not offer coverage in regulations regarding marketing by of this section and applicable state law. the individual or group market, as health insurance issuers and cannot (5) Enrollees’ movement outside applicable, within the service area to employ marketing practices or benefit service area. For network plans, there is any individual or employer, as designs that will have the effect of no longer any enrollee under the plan applicable, for a period of 180 calendar discouraging the enrollment of who lives, resides, or works in the days after the date the coverage is individuals with significant health service area of the issuer (or in the area denied. This paragraph (c)(2) does not needs in health insurance coverage. for which the issuer is authorized to do limit the issuer’s ability to renew (f) Applicability date. The provisions business); and in the case of the small coverage already in force or relieve the of this section apply for plan years (in group market, the issuer applies the issuer of the responsibility to renew that the individual market, for policy years) same criteria it would apply in denying coverage. beginning on or after January 1, 2014. enrollment in the plan under (3) Coverage offered within a service (g) Grandfathered health plans. This § 147.104(c)(1)(i). area after the 180-day period specified section does not apply to grandfathered (6) Association membership ceases. in paragraph (c)(2) of this section is health plans. For coverage made available in the subject to the requirements of this 7. Section 147.106 is added to read as small or large group market only section. follows: through one or more bona fide (d) Application of financial capacity associations, if the employer’s limits. (1) A health insurance issuer may § 147.106 Guaranteed renewability of membership in the bona fide association deny health insurance coverage in the coverage. ceases, but only if the coverage is group or individual market if the issuer (a) General rule. Subject to paragraphs terminated uniformly without regard to has demonstrated to the applicable state (b) through (d) of this section, a health any health status-related factor relating authority (if required by the state insurance issuer offering health to any covered individual. authority) the following: insurance coverage in the individual or (c) Discontinuing a particular (i) It does not have the financial group market is required to renew or product. In any case in which an issuer reserves necessary to underwrite continue in force the coverage at the decides to discontinue offering a additional coverage. option of the plan sponsor or the particular product offered in the group (ii) Is applying this paragraph (d)(1) individual, as applicable. or individual market, that product may uniformly to all employers or (b) Exceptions. An issuer may be discontinued by the issuer in individuals in the group or individual nonrenew or discontinue health accordance with applicable state law in market, as applicable, in the state insurance coverage offered in the group the applicable market only if the consistent with applicable state law and or individual market based only on one following occurs: without regard to the claims experience or more of the following: (1) The issuer provides notice in of those individuals, employers and (1) Nonpayment of premiums. The writing to each plan sponsor or their employees (and their dependents) plan sponsor or individual, as individual, as applicable, provided that or any health status-related factor applicable, has failed to pay premiums particular product in that market (and to relating to such individuals, employees, or contributions in accordance with the all participants and beneficiaries and dependents. terms of the health insurance coverage, covered under such coverage) of the (2) An issuer that denies group health including any timeliness requirements. discontinuation at least 90 calendar insurance coverage to any employer or (2) Fraud. The plan sponsor or days before the date the coverage will be individual in a state under paragraph individual, as applicable, has performed discontinued. (d)(1) of this section may not offer an act or practice that constitutes fraud (2) The issuer offers to each plan coverage in the group or individual or made an intentional sponsor or individual, as applicable, market, as applicable, in the state before misrepresentation of material fact in provided that particular product the the later of either of the following dates: connection with the coverage. option, on a guaranteed issue basis, to (i) The 181st day after the date the (3) Violation of participation or purchase all (or, in the case of the large issuer denies coverage. contribution rules. In the case of group group market, any) other health

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insurance coverage currently being (g) Applicability date. The provisions determines under subpart B of this part offered by the issuer to a group health of this section apply for plan years (in that a state is not substantially enforcing plan or individual health insurance the individual market, for policy years) title XXVII of the PHS Act, including coverage in that market. beginning on or after January 1, 2014. the implementing regulations in parts (3) In exercising the option to (h) Grandfathered health plans. This 146, 147, and 148 of this subchapter, discontinue that product and in offering section does not apply to grandfathered CMS enforces them under subpart C of the option of coverage under paragraph health plans. this part. (c)(2) of this section, the issuer acts 8. Section 147.145 is amended by 11. Section 150.103 is amended by— uniformly without regard to the claims revising paragraph (b)(1) to read as a. Removing the definition of ‘‘HIPAA experience of those sponsors or follows: requirements;’’ individuals, as applicable, or any health b. Revising the definition of status-related factor relating to any § 147.145 Student health insurance ‘‘Individual health insurance policy or participants or beneficiaries covered or coverage. individual policy;’’ and new participants or beneficiaries who * * * * * c. Adding the definition of ‘‘PHS Act may become eligible for such coverage. (b) Exemptions from the Public Health requirements’’ in alphabetical order. (d) Discontinuing all coverage. (1) An Service Act— (1) Guaranteed The revision and addition read as issuer may elect to discontinue offering availability and guaranteed follows: all health insurance coverage in the renewability. (i) For purposes of sections individual or group market, or all 2741(e)(1) and 2742(b)(5) of the Public § 150.103 Definitions. markets, in a state in accordance with Health Service Act, student health * * * * * applicable state law only if the issuer insurance coverage is deemed to be Individual health insurance policy or meets all of the following conditions: available only through a bona fide individual policy means the legal (i) The issuer provides notice in association. document or contract issued by the writing to the applicable state authority (ii) For purposes of section 2702(a) of issuer to an individual that contains the and to each plan sponsor or individual, the Public Health Service Act, a health conditions and terms of the insurance. as applicable, (and all participants and insurance issuer that offers student Any association or trust arrangement beneficiaries covered under the health insurance coverage shall not be that is not a group health plan as coverage) of the discontinuation at least required to accept persons who are not defined in § 144.103 of this subchapter 180 calendar days prior to the date the students or dependents of students in or does not provide coverage in coverage will be discontinued. such coverage. connection with one or more group (ii) All health insurance policies (iii) For purposes of section 2703(a) of health plans is individual coverage issued or delivered for issuance in the the Public Health Service Act, a health subject to the requirements of parts 147 state in the applicable market (or insurance issuer that offers student and 148 of this subchapter. The term markets) are discontinued and not health insurance coverage shall not be ‘‘individual health insurance policy’’ renewed. required to renew or continue coverage includes a policy that is – (2) An issuer that elects to for individuals who are no longer (1) Issued to an association that makes discontinue offering all health insurance students or dependents of students. coverage available to individuals other coverage in a market (or markets) in a * * * * * than in connection with one or more state as described in this paragraph (d) group health plans; or may not issue coverage in the applicable PART 150—CMS ENFORCEMENT IN (2) Administered, or placed in a trust, market (or markets) and state involved GROUP AND INDIVIDUAL INSURANCE and is not sold in connection with a during the 5-year period beginning on MARKETS group health plan subject to the the date of discontinuation of the last provisions of parts 146 and 147 of this coverage not renewed. 9. The authority citation for part 150 subchapter. (e) Exception for uniform continues to read as follows: PHS Act requirements means the modification of coverage. Only at the Authority: Secs. 2701 through 2763, 2791, requirements of title XXVII of the PHS time of coverage renewal may issuers and 2792 of the Public Health Service Act (42 Act and its implementing regulations in modify the health insurance coverage U.S.C. 300gg through 300gg–63, 300gg–91, parts 146, 147, and 148 of this for a product offered to a group health and 300gg–92), as amended. subchapter. plan in the following: 10. Section 150.101 is amended by * * * * * (1) Large group market. revising paragraphs (a) and (b)(2) to read 12. In 45 CFR part 150, remove the (2) Small group market if, for coverage as follows: words ‘‘HIPAA requirement’’ or available in this market (other than only ‘‘HIPAA requirements,’’ and add in their through one or more bona fide § 150.101 Basis and scope. place ‘‘PHS Act requirement’’ or ‘‘PHS associations), the modification is (a) Basis. CMS’s enforcement Act requirements,’’ respectively, consistent with state law and is effective authority under sections 2723 and 2761 wherever they appear in the following uniformly among group health plans of the PHS Act and its rulemaking places. with that product. authority under section 2792 of the PHS a. Section 150.103, in the definition of (f) Application to coverage offered Act provide the basis for issuing ‘‘Complaint’’. only through associations. In the case of regulations under this part 150. b. In the heading of subpart B of part health insurance coverage that is made (b) * * * 150. available by a health insurance issuer in (2) Enforcement with respect to health c. Section 150.201. the small or large group market to insurance issuers. The states have d. Section 150.203, in the employers only through one or more primary enforcement authority with introductory text and paragraphs (a) and associations, the reference to ‘‘plan respect to the requirements of title (b). sponsor’’ is deemed, with respect to XXVII of the PHS Act that apply to e. Section 150.205(d) and (e)(1). coverage provided to an employer health insurance issuers offering f. Section 150.207, in the section member of the association, to include a coverage in the group or individual heading and text. reference to the employer. health insurance market. If CMS g. Section 150.209.

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h. Section 150.211, in the (b) The Rate Filing Justification must satisfying the requirements of introductory text. consist of the following Parts: § 154.301(a)(3) and (4) and determine i. Section 150.213(b) and (c). (1) Standardized data template (Part whether the rate increase is an j. Section 150.217, in the introductory I), as described in paragraph (d) of this unreasonable increase. Instructions text. section. concerning the requirements for the rate k. Section 150.219(a). (2) Written description justifying the filing documentation will be provided l. Section 150.221(a). rate increase (Part II), as described in in guidance issued by CMS. m. Section 150.301. paragraph (e) of this section. (g) If the level of detail provided by n. Section 150.303(a) introductory (3) Rating filing documentation (Part the issuer for the information under text, (a)(3), and (b). III), as described in paragraph (f) of this paragraphs (d) and (f) of this section o. Section 150.305(a)(1), (b)(2), and section. does not provide sufficient basis for (c)(2). (c) A health insurance issuer must CMS to determine whether the rate p. Section 150.309. complete and submit Parts I and III of increase is an unreasonable rate increase q. Section 150.311, in the the Rate Filing Justification described in when CMS reviews a rate increase introductory text and paragraphs (d), (f) paragraphs (b)(1) and (b)(3) of this subject to review under § 154.210(a), introductory text, (f)(3), and (g). section to CMS and, as long as the CMS will request the additional r. Section 150.313(a) and (e)(3)(iv). applicable State accepts such information necessary to make its s. Section 150.317(a)(1) and (a)(3). submissions, to the applicable State for determination. The health insurance t. Section 150.319(b)(1) introductory any rate increase. If a rate increase is issuer must provide the requested text, (b)(1)(ii), and (b)(1)(iii). subject to review, then the health information to CMS within 10 business u. Section 150.343(a). insurance issuer must also complete and days following its receipt of the request. v. Section 150.465(c). submit to CMS and, if applicable, the (h) Posting of the disclosure on the State Part II of the Rate Filing CMS Web site: PART 154—HEALTH INSURANCE Justification described in paragraph ISSUER RATE INCREASES: (1) CMS promptly will make available (b)(2) of this section. to the public on its Web site the DISCLOSURE AND REVIEW (d) Content of standardized data REQUIREMENTS information contained in Part II of each template (Part I): The standardized data Rate Filing Justification. template must include the following as 13. The authority citation for part 154 (2) CMS will make available to the determined appropriate by the continues to read as follows: public on its Web site the information Secretary: contained in Parts I and III of each Rate Authority: Section 2794 of the Public (1) Historical and projected claims Filing Justification that is not a trade Health Service Act (42 U.S.C. 300gg–94). experience. secret or confidential commercial or 14. Section 154.200 is amended by (2) Trend projections related to financial information as defined in revising paragraphs (a)(2) and (b) to read utilization, and service or unit cost. CMS’s Freedom of Information Act as follows: (3) Any claims assumptions related to benefit changes. regulations, 45 CFR 5.65. § 154.200 Rate increases subject to (4) Allocation of the overall rate (3) CMS will include a disclaimer on review. increase to claims and non-claims costs. its Web site with the information made (a) * * * (5) Per enrollee per month allocation available to the public that explains the (2) * * * A State-specific threshold of current and projected premium. purpose and role of the Rate Filing shall be based on factors impacting rate (6) Three year history of rate increases Justification. increases in a State to the extent that the for the product associated with the rate (i) CMS will include information on data relating to such State-specific increase. its Web site concerning how the public factors is available by August 1. States (e) Content of written description can submit comments on the proposed interested in proposing a State-specific justifying the rate increase (Part II): The rate increases that CMS reviews. threshold for approval are required to written description of the rate increase 16. Section 154.220 is revised to read submit a proposal to the Secretary by must include a simple and brief as follows: August 1. narrative describing the data and (b) The Secretary will publish a notice assumptions that were used to develop § 154.220 Timing of providing the rate filing justification. no later than September 1 of each year, the rate increase and including the to be effective on January 1 of the following: A health insurance issuer must following year, concerning whether a (1) Explanation of the most significant submit a Rate Filing Justification for all threshold under paragraph (a)(1) or factors causing the rate increase, rate increases that are filed in a State on (a)(2) of this section applies to the State; including a brief description of the or after April 1, 2013, or effective on or except that, with respect to the 12- relevant claims and non-claims expense after January 1, 2014 in a State that does month period that begins on September increases reported in the rate increase not require the rate increase to be filed, 1, 2011, the threshold under paragraph summary. as follows: (a)(1) of this section applies. (2) Brief description of the overall (a) If a State requires that a proposed * * * * * experience of the policy, including rate increase be filed with the State 15. Section 154.215 is revised to read historical and projected expenses, and prior to the implementation of the rate, as follows: loss ratios. the health insurance issuer must submit (f) Content of rate filing to CMS and the applicable State the § 154.215 Submission of rate filing documentation (Part III): The rate filing Rate Filing Justification on the date on justification. documentation must include an which the health insurance issuer (a) If any product is subject to a rate actuarial memorandum that contains the submits the proposed rate increase to increase, a health insurance issuer must reasoning and assumptions supporting the State. submit a Rate Filing Justification for all the data contained in Part I of the Rate (b) For all other States, the health products on a form and in a manner Filing Justification. Parts I and III must insurance issuer must submit to CMS prescribed by the Secretary. be sufficient to conduct an examination and the State the Rate Filing

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Justification prior to the implementation (xiv) The impacts of geographic markets within a state to be merged into of the rate increase. factors and variations. a single risk pool if the state determines (xv) The impact of changes within a appropriate. A state that requires such § 154.225 [Amended] single risk pool to all products or plans merger of risk pools shall submit to 17a. In § 154.225(a),introductory text, within the risk pool. CMS information on its election in remove the words ‘‘Preliminary (xvi) The impact of Federal accordance with the date and format Justification’’ and add in their place reinsurance and risk adjustment specified by CMS. ‘‘Rate Filing Justification.’’ payments and charges under sections (d) Index rate—(1) In general. Each § 154.230 [Amended] 1341 and 1343 of the Affordable Care plan year or policy year, as applicable, Act. 17b. In § 154.230(b) and (c)(1), remove a health insurance issuer shall establish the words ‘‘Preliminary Justification’’ * * * * * an index rate for a state market based on (b) Public disclosure and input. In and add in their place ‘‘Rate Filing the total combined claims costs for addition to satisfying the provisions in Justification.’’ providing essential health benefits 18. Section 154.301 is amended as paragraph (a) of this section, a State within the single risk pool of that state follows: with an Effective Rate Review Program market. The index rate shall be adjusted a. Amending paragraph (a)(3)(i) by must provide, for the rate increases it on a market-wide basis based on the removing ‘‘; and’’ and adding in its reviews, access from its Web site to at total expected market-wide payments place a period. least the information contained in Parts and charges under the risk adjustment b. Amending paragraphs (a)(4)(i), I, II, and III of the Rate Filing and reinsurance programs in the state. (a)(4)(ii), and (a)(4)(vi) through (a)(4)(x) Justification that CMS makes available The premium rate for all of the health by removing the semicolons and on its Web site (or provide CMS’s Web insurance issuer’s plans in the relevant replacing them with periods. address for such information) and have state market must use the applicable c. Amending paragraph (a)(3)(xi) by a mechanism for receiving public index rate, as adjusted for total expected removing ‘‘: and’’ and adding in its comments on those proposed rate market-wide payments and charges place a period. increases. under the risk adjustment and d. Revising paragraphs (a)(4)(iii) * * * * * reinsurance programs, subject only to through (a)(4)(v), and (b). the adjustments permitted in paragraph e. Redesignating paragraph (a)(4)(xii) PART 156—HEALTH INSURANCE (d)(2) of this section. as paragraph (a)(4)(xiii) and adding new ISSUER STANDARDS UNDER THE (2) Permitted plan-level adjustments paragraphs (a)(3)(iii), (a)(3)(iv), AFFORDABLE CARE ACT, INCLUDING to the index rate. For plan years or (a)(4)(xii), and (a)(4)(xiv) through STANDARDS RELATED TO policy years beginning on or after (a)(4)(xvi). EXCHANGES January 1, 2014, a health insurance The revisions and additions read as issuer may vary premium rates for a follows: 19. The authority citation for part 156 continues to read as follows: particular plan from its index rate for a relevant state market based only on the § 154.301 CMS’s determinations of Authority: Title I of the Affordable Care effective rate review programs. following actuarially justified plan- Act, sections 1301–1304, 1311–1312, 1321, specific factors: (a) * * * 1322, 1324, 1334, 1342–1343, and 1401– (3) * * * 1402, Pub. L. 111–148, 124 Stat. 119 (42 (i) The actuarial value and cost- (iii) The reasonableness of U.S.C. 18042). sharing design of the plan. (ii) The plan’s provider network, assumptions used by the health 20. Section 156.80 is added to subpart delivery system characteristics, and insurance issuer to estimate the rate A to read as follows: impact of the Federal reinsurance and utilization management practices. risk adjustment programs under sections § 156.80 Single risk pool. (iii) The benefits provided under the 1341 and 1343 of the Affordable Care (a) Individual market. A health plan that are in addition to the essential Act. insurance issuer shall consider the health benefits. These additional (iv) The health insurance issuer’s data claims experience of all enrollees in all benefits must be pooled with similar related to implementation and ongoing health plans (other than grandfathered benefits within the single risk pool and utilization of a market-wide single risk health plans) subject to section 2701 of the claims experience from those pool, essential health benefits, actuarial the Public Health Service Act and benefits must be utilized to determine values and other market reforms rules as offered by such issuer in the individual rate variations for plans that offer those required by the Affordable Care Act. market in a state, including those benefits in addition to essential health (4) * * * enrollees who do not enroll in such benefits. (iii) The impact of cost-sharing plans through the Exchange, to be (iv) With respect to catastrophic changes by major service categories, members of a single risk pool. plans, the expected impact of the including actuarial values. (b) Small group market. A health specific eligibility categories for those (iv) The impact of benefit changes, insurance issuer shall consider the plans. including essential health benefits and claims experience of all enrollees in all (e) Grandfathered health plans in the non-essential health benefits. health plans (other than grandfathered individual and small group market. A (v) The impact of changes in enrollee health plans) subject to section 2701 of state law requiring grandfathered health risk profile and pricing, including rating the Public Health Service Act and plans to be included in a single risk limitations for age and tobacco use offered by such issuer in the small pool described in paragraph (a) or (b) of under section 2701 of the Public Health group market in a state, including those this section shall not apply. Service Act. enrollees who do not enroll in such (f) Applicability date. The provisions * * * * * plans through the Exchange, to be of this section apply for plan years (as (xii) Other standardized ratio tests members of a single risk pool. that term is defined in § 144.103 of this recommended or required by statute, (c) Merger of the individual and small subchapter) in the group market, and for regulation, or best practices. group markets. A state may require the policy years (as that term is defined in * * * * * individual and small group insurance § 144.103 of this subchapter) in the

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individual market, beginning on or after (3) Provides coverage of the essential (such as a copayment, coinsurance, or January 1, 2014. health benefits under section 1302(b) of deductible) for preventive services, in 21. Section 156.155 is added to the Affordable Care Act once the annual accordance with section 2713 of the subpart B to read as follows: limitation on cost sharing in section Public Health Service Act. 1302(c)(1) of the Affordable Care Act is § 156.155 Enrollment in catastrophic (c) Application for family coverage. plans. reached. For other than self-only coverage, each (a) General rule. A health plan is a (4) Provides coverage for at least three individual enrolled must meet the catastrophic plan if it meets the primary care visits per year before requirements of paragraph (a)(4) of this following conditions: reaching the deductible. section. (1) Meets all applicable requirements (5) Covers only individuals who meet either of the following conditions: Dated: May 15, 2012. for health insurance coverage in the Marilyn Tavenner, individual market (including but not (i) Have not attained the age of 30 prior to the first day of the plan year. Acting Administrator, Centers for Medicare limited to those requirements described & Medicaid Services. in parts 147 and 148 of this subchapter), (ii) Have received a certificate of and is offered only in the individual exemption for the reasons identified in Approved: August 6, 2012. market. section 1302(e)(2)(B)(i) or (ii) of the Kathleen Sebelius, (2) Does not provide a bronze, silver, Affordable Care Act. Secretary, Department of Health and Human gold, or platinum level of coverage (b) Coverage of preventive health Services. described in section 1302(d) of the services. A catastrophic plan may not [FR Doc. 2012–28428 Filed 11–20–12; 11:15 am] Affordable Care Act. impose any cost-sharing requirements BILLING CODE 4120–01–P

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Part IV

Department of the Treasury

Internal Revenue Service 26 CFR Part 54

Department of Labor

Employee Benefits Security Administration 29 CFR Part 2590

Department of Health and Human Services

45 CFR Parts 146 and 147 Incentives for Nondiscriminatory Wellness Programs in Group Health Plans; Proposed Rule

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DEPARTMENT OF THE TREASURY available to the public. Warning: Do not Public Law 111–152, was enacted on include any personally identifiable March 30, 2010 (these are collectively Internal Revenue Service information (such as name, address, or known as the ‘‘Affordable Care Act’’). other contact information) or The Affordable Care Act reorganizes, 26 CFR Part 54 confidential business information that amends, and adds to the provisions of you do not want publicly disclosed. All part A of title XXVII of the Public [REG–122707–12] comments may be posted on the Internet Health Service Act (PHS Act) relating to RIN 1545–BL07 and can be retrieved by most Internet group health plans and health insurance search engines. No deletions, issuers in the group and individual DEPARTMENT OF LABOR modifications, or redactions will be markets. The term ‘‘group health plan’’ made to the comments received, as they includes both insured and self-insured Employee Benefits Security are public records. Comments may be group health plans.1 The Affordable Administration submitted anonymously. Care Act adds section 715(a)(1) to the Comments, identified by ‘‘Wellness Employee Retirement Income Security 29 CFR Part 2590 Programs’’, may be submitted by one of Act (ERISA) and section 9815(a)(1) to the following methods: the Internal Revenue Code (the Code) to RIN 1210–AB55 Federal eRulemaking Portal: http:// incorporate the provisions of part A of DEPARTMENT OF HEALTH AND www.regulations.gov. Follow the title XXVII of the PHS Act into ERISA HUMAN SERVICES instructions for submitting comments. and the Code, and to make them Mail or Hand Delivery: Office of applicable to group health plans and Health Plan Standards and Compliance 45 CFR Parts 146 and 147 health insurance issuers providing Assistance, Employee Benefits Security health insurance coverage in connection [CMS–9979–P] Administration, Room N–5653, U.S. with group health plans. The PHS Act Department of Labor, 200 Constitution sections incorporated by these RIN 0938–AR48 Avenue NW., Washington, DC 20210, references are sections 2701 through Attention: Wellness Programs. 2728. Incentives for Nondiscriminatory Comments received will be posted Wellness Programs in Group Health without change to www.regulations.gov B. Wellness Exception to HIPAA Plans and www.dol.gov/ebsa, and available for Nondiscrimination Provisions AGENCY: Internal Revenue Service, public inspection at the Public Prior to the enactment of the Department of the Treasury; Employee Disclosure Room, N–1513, Employee Affordable Care Act, Titles I and IV of Benefits Security Administration, Benefits Security Administration, 200 the Health Insurance Portability and Department of Labor; Centers for Constitution Avenue NW., Washington, Accountability Act of 1996 (HIPAA), Medicare & Medicaid Services, DC 20210, including any personal Public Law 104–191, added section Department of Health and Human information provided. 9802 of the Code, section 702 of ERISA, Services. FOR FURTHER INFORMATION CONTACT: and section 2702 of the PHS Act (HIPAA nondiscrimination and ACTION: Notice of proposed rulemaking. Amy Turner or Beth Baum, Employee Benefits Security Administration, wellness provisions). These provisions SUMMARY: This document proposes Department of Labor, at (202) 693–8335; generally prohibit group health plans amendments to regulations, consistent Karen Levin, Internal Revenue Service, and group health insurance issuers from with the Affordable Care Act, regarding Department of the Treasury, at (202) discriminating against individual nondiscriminatory wellness programs in 622–6080; or Jacob Ackerman, Centers participants and beneficiaries in group health coverage. Specifically, for Medicare & Medicaid Services, eligibility, benefits, or premiums based these proposed regulations would Department of Health and Human on a health factor.2 An exception to the increase the maximum permissible Services, at (410) 786–1565. general rule allows premium discounts reward under a health-contingent Customer Service Information: or rebates or modification to otherwise wellness program offered in connection Individuals interested in obtaining applicable cost sharing (including with a group health plan (and any information from the Department of copayments, deductibles or related health insurance coverage) from Labor concerning employment-based coinsurance) in return for adherence to 20 percent to 30 percent of the cost of health coverage laws may call the EBSA certain programs of health promotion coverage. The proposed regulations Toll-Free Hotline at 1–866–444–EBSA and disease prevention. The would further increase the maximum (3272) or visit the Department of Labor’s Departments of Labor, Health and permissible reward to 50 percent for Web site (www.dol.gov/ebsa). In Human Services (HHS), and the wellness programs designed to prevent addition, information from HHS on or reduce tobacco use. These regulations private health insurance for consumers 1 The term ‘‘group health plan’’ is used in title XXVII of the PHS Act, part 7 of ERISA, and chapter also include other proposed can be found on the Centers for 100 of the Code, and is distinct from the term clarifications regarding the reasonable Medicare & Medicaid Services (CMS) ‘‘health plan,’’ as used in other provisions of title design of health-contingent wellness Web site (www.cciio.cms.gov/) and I of the Affordable Care Act. The term ‘‘health plan’’ programs and the reasonable information on health reform can be does not include self-insured group health plans. found at www.HealthCare.gov. 2 The HIPAA nondiscrimination provisions set alternatives they must offer in order to forth eight health status-related factors, which the avoid prohibited discrimination. SUPPLEMENTARY INFORMATION: December 13, 2006 final regulations on DATES: Comments are due on or before nondiscrimination and wellness programs refer to I. Background as ‘‘health factors.’’ Under HIPAA and the 2006 January 25, 2013. regulations, the eight health factors are health ADDRESSES: Written comments may be A. Introduction status, medical condition (including both physical submitted to the Department of Labor as The Patient Protection and Affordable and mental illnesses), claims experience, receipt of health care, medical history, genetic information, specified below. Any comment that is Care Act, Public Law 111–148, was evidence of insurability (including conditions submitted will be shared with the other enacted on March 23, 2010; the Health arising out of acts of domestic violence), and Departments and will also be made Care and Education Reconciliation Act, disability. See 66 FR 1379, January 8, 2001.

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Treasury (collectively, the Departments) employees for the costs of smoking C. Amendments Made by the Affordable have implemented this exception by cessation programs regardless of Care Act allowing benefits (including cost whether the employee quits smoking, The Affordable Care Act (section sharing), premiums, or contributions to and a program that provides rewards for 1201) amended the nondiscrimination vary based on participation in a attending a free health education and wellness program provisions of the wellness program if such a program seminar. There is no limit on the PHS Act (but not of ERISA section 702 adheres to certain conditions set forth in financial incentives for participatory or Code section 9802). (Affordable Care regulations. wellness programs. Act section 1201 also moved those The Departments published joint final The second category of wellness provisions from PHS Act section 2702 to regulations on December 13, 2006 at 71 programs under the 2006 regulations PHS Act section 2705). As amended by FR 75014 (the 2006 regulations) consists of programs that require the Affordable Care Act, the regarding the HIPAA nondiscrimination individuals to satisfy a standard related 3 nondiscrimination and wellness and wellness provisions. The 2006 to a health factor in order to obtain a provisions of PHS Act section 2705 regulations divide wellness programs reward (‘‘health-contingent wellness largely reflect the 2006 regulations into two general categories. The first programs’’). This category includes (except as discussed later in this category is programs that either do not wellness programs that require an preamble), and extend the require an individual to meet a standard individual to attain or maintain a nondiscrimination protections to the related to a health factor in order to certain health outcome in order to individual market.8 The wellness obtain a reward or that do not offer a obtain a reward (such as not smoking, program exception to the prohibition on reward at all (‘‘participatory wellness attaining certain results on biometric discrimination under PHS Act section programs’’). Participatory wellness screenings, or meeting targets for 2705 applies with respect to group programs comply with the exercise). As outlined in the 2006 health plans (and any health insurance nondiscrimination requirements regulations,7 plans and issuers may vary coverage offered in connection with without having to satisfy any additional benefits (including cost-sharing such plans). Section 2705(l) separately standards if participation in the program mechanisms), premiums, or provides for a 10-State wellness is made available to all similarly contributions based on whether an 4 program demonstration project in the situated individuals. Examples of individual has met the standards of a individual market, to be established not participatory wellness programs in the wellness program that meets the later than July 1, 2014 (as such, this 2006 regulations include a fitness center requirements of paragraph (f). Paragraph 5 proposed rule does not include wellness reimbursement program, a diagnostic (f)(2) of the 2006 regulations prescribes program policy for the individual testing program that does not base any the following consumer-protection market). reward on test outcomes, a program that conditions for health-contingent waives cost sharing for prenatal or well- wellness programs: D. Application to Grandfathered Plans baby visits,6 a program that reimburses 1. The total reward for such wellness Section 1251 of the Affordable Care programs offered by a plan sponsor does Act provides that certain amendments 3 See 26 CFR 54.9802–1; 29 CFR 2590.702; 45 not exceed 20 percent of the total cost made by the Affordable Care Act CFR 146.121. Prior to issuance of the final 2006 regulations, the Departments published interim of coverage under the plan. generally do not apply to plans or health final regulations with request for comment 2. The program is reasonably designed insurance coverage that are in effect on implementing the HIPAA nondiscrimination to promote health or prevent disease. the date of enactment (and that are not provisions on April 8, 1997 at 62 FR 16894, For this purpose, it must have a changed in ways specified in followed by proposed regulations regarding 9 wellness programs on January 8, 2001 at 66 FR reasonable chance of improving health implementing regulations), except as 1421. or preventing disease, not be overly specified in section 1251(a)(3) and (4) of 4 See paragraph (f)(1) of the 2006 regulations. See burdensome, not be a subterfuge for the Affordable Care Act. Specifically, also 26 CFR 54.9802–1(d), 29 CFR 2590.702(d), and discriminating based on a health factor, section 1251(a)(2) of the Affordable Care 45 CFR 146.121(d), which provide that, generally, distinctions among groups of similarly situated and not be highly suspect in method. Act provides that subtitles A and C of participants in a health plan must be based on bona 3. The program gives eligible title I of the Affordable Care Act, and fide employment-based classifications consistent individuals an opportunity to qualify for the amendments made by such subtitles, with the employer’s usual business practice. A plan the reward at least once per year. ‘‘shall not apply’’ to such grandfathered may also distinguish between beneficiaries based on, for example, their relationship to the plan 4. The reward is available to all health plans. participant (such as spouse or dependent child) or similarly situated individuals. For this Because the amendments made to the based on the age of dependent children. purpose, a reasonable alternative PHS Act in section 1201 of the Distinctions are not permitted to be based on any standard (or waiver of the otherwise Affordable Care Act do not apply to of the health factors noted earlier. grandfathered health plans, the version 5 The Treasury and the IRS note that satisfying the applicable standard) must be made rules for wellness programs does not determine the available to any individual for whom it of PHS Act section 2702 in effect at the tax treatment of benefits provided by the wellness is unreasonably difficult due to a time of enactment of the Affordable Care program. For example, fitness center fees are medical condition to satisfy the Act (and the 2006 regulations under that generally considered expenses for general good section) continues to apply to health and thus payment of the fee by the employer otherwise applicable standard during is not excluded from income as the reimbursement that period (or for whom it is medically of a medical expense. inadvisable to attempt to satisfy the 8 Section 1201 of the Affordable Care Act also 6 Note that section 2713 of the PHS Act, as added moved the guaranteed availability provisions that otherwise applicable standard). were previously codified in PHS Act section 2711 by the Affordable Care Act, and the Departments’ 5. In all plan materials describing the interim final regulations at 26 CFR 54.9815–2713T, to PHS Act section 2702, and extended those 29 CFR 2590.715–2713, and 45 CFR 147.130 require terms of the program, the availability of requirements to the individual market. non-grandfathered group health plans and health a reasonable alternative standard (or the 9 See 26 CFR 54.9815–1251T, 29 CFR 2590.715– insurance issuers offering non-grandfathered group possibility of waiver of the otherwise 1251, and 45 CFR 147.140 (75 FR 34538, June 17, or individual health insurance coverage to provide 2010), as amended (75 FR 70114, November 17, benefits for certain preventive health services applicable standard) is disclosed. 2010). See also Q5 of Affordable Care Act without the imposition of cost sharing. See also 26 Implementation FAQs Part II (October 8, 2010), CFR 54.9815–1251T, 29 CFR 2590.715–1251, and 7 See 26 CFR 54.9802–1(b)(2)(ii) and (c)(3); 29 available at http;//www.dol.gov/ebsa/faqs/faq- 45 CFR 147.140 (regarding the definition of CFR 2590.702(b)(2)(ii) and (c)(3); and 45 CFR aca2.html and http://cciio.cms.gov/resources/ grandfathered health plan coverage). 146.121(b)(2)(ii) and (c)(3). factsheets/aca_implementation_faqs2.html.

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grandfathered health plans, while the Affordable Care Act. This rulemaking (or at risk) to take additional steps (such provisions of the new PHS Act section does not propose to modify provisions as meeting with a health coach, taking 2705 apply to non-grandfathered health of the 2006 regulations other than a health or fitness course, adhering to a plans for plan years (in the individual paragraph (f). health improvement action plan, or market, policy years) beginning on or A. Two Categories of Wellness Programs complying with a health care provider’s after January 1, 2014.10 ERISA section plan of care) to obtain the same reward. Consistent with the 2006 regulations 702 and Code section 9802 continue to Under paragraphs (b)(2)(ii) and (c)(3) of and PHS Act section 2705(j), these govern all group health plans, including the 2006 regulations (which remain grandfathered health plans, and, for proposed regulations would continue to 11 divide wellness programs into two unchanged), health-contingent plan years beginning on or after January wellness programs are permissible only 1, 2014, ERISA section 715(a)(1) and categories: ‘‘Participatory wellness programs’’, which are a majority of if they comply with the provisions of Code section 9815(a)(1) will also apply paragraph (f)(3), which are proposed to new PHS Act section 2705 to non- wellness programs (as noted below) and be amended in this rulemaking.12 grandfathered health plans. ‘‘health-contingent wellness programs.’’ However, because the Departments Participatory wellness programs are The Departments believe that believe that the provisions of these programs that are made available to all appropriately designed wellness proposed regulations would be similarly situated individuals and that programs have the potential to authorized under either HIPAA or the either do not provide a reward or do not contribute importantly to promoting Affordable Care Act, the Departments include any conditions for obtaining a health and preventing disease. Even are proposing in this rulemaking to reward that are based on an individual after the issuance of the 2006 apply the same set of standards to both satisfying a standard that is related to a regulations and the enactment of the health factor. Several examples of grandfathered and non-grandfathered Affordable Care Act wellness participatory wellness programs are health plans. As noted, PHS Act section provisions, however, stakeholder 2705(j) largely adopts the wellness provided in these proposed regulations, including: (1) A program that feedback suggests that there continues program provisions of the 2006 to be a degree of confusion regarding the regulations with some modification and reimburses for all or part of the cost of membership in a fitness center; and (2) scope of the rules governing wellness clarification. Consistent with the programs. The Departments hope that statutory approach, these proposed a program that provides a reward to employees for attending a monthly, no- these proposed regulations will help regulations would apply the rules of cost health education seminar. dispel the confusion by reiterating that PHS Act section 2705, governing Participatory programs are not required the five regulatory requirements relating rewards for adherence to certain to meet the five requirements applicable to frequency of opportunity to qualify, wellness programs, to grandfathered to health-contingent wellness programs. size of reward, uniform availability and health plans by regulation under In contrast, health-contingent reasonable alternative standards, authority in the HIPAA wellness programs require an individual nondiscrimination and wellness reasonable design, and notice of other to satisfy a standard related to a health means of qualifying for the reward provisions as was done in the 2006 factor to obtain a reward (or require an regulations. This approach is intended (summarized below and contained in individual to do more than a similarly paragraph (f)(3) of the proposed to avoid inconsistency across group situated individual based on a health health coverage and to provide regulations) apply only to those factor in order to obtain the same wellness programs that meet the grandfathered plans the same flexibility reward). Like the 2006 regulations, these definition of ‘‘health-contingent’’ to promote health and prevent disease proposed regulations would continue to programs. As discussed above, these are as non-grandfathered plans. permit rewards to be in the form of a wellness programs that both provide a II. Overview of the Proposed Rule discount or rebate of a premium or contribution, a waiver of all or part of reward and condition the reward on These regulations generally propose a cost-sharing mechanism (such as satisfying a standard that is related to a standards for group health plans and deductibles, copayments, or health factor. Many wellness programs health insurance issuers offering group coinsurance), the absence of a (those characterized in these regulations health insurance coverage with respect surcharge, the value of a benefit that as ‘‘participatory wellness programs’’) to wellness programs. These proposed otherwise would not be provided under do not both provide a reward and regulations would replace the wellness the plan, or other financial or condition the reward on satisfying a program provisions of paragraph (f) of nonfinancial incentives or standard that is related to a health the 2006 regulations and would apply to disincentives. Examples of health- factor. Accordingly, as noted, both grandfathered and non- contingent wellness programs in these participatory wellness programs are not grandfathered group health plans and proposed regulations are: (1) A program required to meet the five enumerated group health insurance coverage for that imposes a premium surcharge requirements applicable to health- plan years beginning on or after January based on tobacco use; and (2) a program contingent wellness programs, but they 1, 2014. These regulations also propose that uses a biometric screening or a to implement the nondiscrimination are required to be made available to all health risk assessment to identify similarly situated individuals. provisions made applicable to the employees with specified medical individual market by section 1201 of the conditions or risk factors (such as high cholesterol, high blood pressure, 11 26 CFR 54.9802–1(b)(2)(ii) and (c)(3); 29 CFR 10 See 26 CFR 54.9815–1251T(c)(2), 29 CFR abnormal body mass index, or high 2590.702(b)(2)(ii) and (c)(3); and 45 CFR 2590.715–1251(c)(2), and 45 CFR 147.140(c)(2), 146.121(b)(2)(ii) and (c)(3). providing that a grandfathered health plan must glucose level) and provides a reward to 12 Until these proposed regulations are finalized comply with the requirements of the PHS Act, employees identified as within a normal and effective, the provisions of the 2006 ERISA, and the Code applicable prior to the or healthy range (or at low risk for changes enacted by the Affordable Care Act, to the regulations, at 26 CFR 54.9802–1(f), 29 CFR extent not inconsistent with the rules applicable to certain medical conditions), while 2590.702(f), and 45 CFR 146.121(f) generally remain a grandfathered health plan (75 FR 34538, June 17, requiring employees who are identified applicable to group health plans and group health 2010). as outside the normal or healthy range insurance issuers.

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B. Requirements for Health-Contingent attributable to each participating 2701(a)(1)(A)(iv) provides that issuers in Wellness Programs dependent. If a class of dependents may the individual and small group markets Consistent with the 2006 regulations, participate in a health-contingent cannot vary rates for tobacco use by these proposed regulations generally wellness program, some have suggested more than a ratio of 1.5 to 1 (that is, would maintain the five requirements that there be a maximum reward allowing up to a 50 percent premium for health-contingent wellness programs attributable to the employee’s surcharge for tobacco use). with one significant modification participation in the wellness program, Contemporaneously with the relating to the size of the reward. In such as an amount that does not exceed publication of these proposed wellness the applicable percentage of the cost of addition, several regulatory provisions program regulations, HHS is publishing employee-only coverage. The proposed have been re-ordered, and clarifications a proposed regulation that would regulation being issued are proposed to address questions and implement PHS Act section 2701. HHS contemporaneously by HHS proposes issues raised by stakeholders since the proposes that a health insurance issuer that, to comply with PHS Act section 2006 regulations were issued and to be in the small group market would be able 2701, with respect to family coverage, consistent with the amendments made to implement the tobacco use surcharge any premium variation for tobacco use by the Affordable Care Act, as discussed under PHS Act section 2701 to must be applied to the portion of below. employees only in connection with a premium attributable to each family (1) Frequency of Opportunity to wellness program meeting the standards member. The Departments invite Qualify. of PHS Act section 2705(j) and its comments on apportionment of rewards These proposed regulations would, implementing regulations. As discussed in health-contingent wellness programs consistent with the 2006 regulations and in the preamble to the proposed (which may involve tobacco use and/or the amendments made by the Affordable regulation implementing PHS Act other health factors)—for example, Care Act, require health-contingent section 2701, HHS is proposing in that should the reward be prorated if only wellness programs to give individuals rule that the definition of ‘‘tobacco use’’ one family member fails to qualify for it. eligible for the program the opportunity for purposes of section 2701 be The 2006 regulations specify 20 consistent with the approach taken with to qualify for the reward at least once percent as the maximum permissible per year. As stated in the preamble to respect to health-contingent wellness reward for participation in a health- programs designed to prevent or reduce the 2006 regulations, the once-per-year contingent wellness program. PHS Act requirement was included as a bright- tobacco use under section 2705(j). section 2705(j)(3)(A), effective for plan Comments are solicited in the preamble line standard for determining the years beginning on or after January 1, minimum frequency that is consistent to the proposed rules implementing 2014, increases the maximum reward to section 2701 on possible definitions of with a reasonable design for promoting 30 percent and authorizes the 13 ‘‘tobacco use’’ that would be applied for good health or preventing disease. Departments to increase the maximum (2) Size of Reward. purposes of PHS Act sections 2701 and reward to as much as 50 percent if the 2705(j). Like the 2006 regulations, these Departments determine that such an proposed regulations would continue to To coordinate these proposed increase is appropriate. In these regulations with the tobacco use rating limit the total amount of the reward for proposed regulations, the increase in the health-contingent wellness programs provisions of PHS Act section 2701, as applicable percentage from 20 percent proposed by HHS, these proposed with respect to a plan, whether offered to 30 percent, which is effective for plan alone or coupled with the reward for wellness program regulations would use years beginning on or after January 1, the new authority in PHS Act section other health-contingent wellness 2014, conforms to the new PHS Act programs. Specifically, the total reward 2705(j)(3)(A) (and, with respect to section 2705(j)(3)(A). In addition, the grandfathered health plans, the offered to an individual under an Departments have determined that an employer’s health-contingent wellness preexisting authority in the HIPAA increase of an additional 20 percentage nondiscrimination and wellness programs could not exceed a specified points (to 50 percent) for health- percentage (referred to as the provisions) to increase the applicable contingent wellness programs designed percentage for determining the size of ‘‘applicable percentage’’ in the proposed to prevent or reduce tobacco use is regulations) of the total cost of the reward for participating in a health- warranted to conform to the new PHS contingent wellness program by an employee-only coverage under the plan, Act section 2701, to avoid inconsistency taking into account both employer and additional 20 percentage points (to 50 across group health coverage, whether percent) to the extent that the additional employee contributions towards the cost insured or self-insured, or offered in the of coverage. If, in addition to employees, percentage is attributed to tobacco use small group or large group market, and prevention or reduction. Applying these any class of dependents (such as to provide grandfathered plans the same spouses, or spouses and dependent proposed regulations to all group health flexibility to promote health and plans would provide consistency across children) may participate in the health- prevent disease as non-grandfathered contingent wellness program, the markets, giving large, self-insured, and plans. grandfathered employment-based health reward could not exceed the applicable Specifically, PHS Act section 2701, percentage of the total cost of the the ‘‘fair health insurance premium’’ beginning on or after January 1, 2014, amendments coverage in which the employee and provision, sets forth the factors that made by the Affordable Care Act provide that the any dependents are enrolled (such as issuers may use to vary premium rates term ‘‘small employer’’ means, in connection with family coverage or employee-plus-one in the individual or small group a group health plan with respect to a calendar year coverage). 14 and a plan year, an employer who employed an market. PHS Act section average of at least 1 but not more than 100 Some stakeholders have raised employees on business days during the preceding questions about health-contingent 14 Small group market means the health insurance calendar year and who employs at least 1 employee wellness programs that allow market under which individuals obtain health on the first day of the plan year. See PHS Act dependents to participate, and what insurance coverage (directly or through any section 2791(e)(4). In the case of plan years arrangement) on behalf of themselves (and their beginning before January 1, 2016, a State may elect portion of the reward should be dependents) through a group health plan to substitute ‘‘50 employees’’ for ‘‘100 employees’’ maintained by a small employer. See PHS Act in its definition of a small employer. See section 13 See 71 FR at 75018. section 2791(e)(5); 45 CFR 144.103. For plan years 1304(b)(3) of the Affordable Care Act.

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plans the same added flexibility to Second, these proposed regulations may impose standard cost sharing under promote tobacco-free workforces as would not require plans and issuers to the plan or coverage for medical items small, insured, non-grandfathered establish a particular alternative and services furnished in accordance health plans. standard in advance of an individual’s with the physician’s recommendations. Examples included in these proposed specific request for one. However, a The Departments intend that these regulations illustrate how to calculate reasonable alternative standard would clarifications with respect to offering the applicable percentage. The have to be provided by the plan or reasonable alternative standards will Departments invite comments on the issuer (or the condition for obtaining the help prevent health-contingent wellness proposed approach in general and other reward would be required to be waived) programs that provide little to no ideas for coordinating the upon an individual’s request. In this support to enrollees to improve implementation of the tobacco rating connection, the Departments note that, individuals’ health. In addition, as factor under PHS Act section 2701 with as stated in the preamble to the 2006 explained later in this preamble, the nondiscrimination and wellness regulations with respect to tobacco clarifications are proposed to ensure program provisions. The Departments cessation, ‘‘overcoming an addiction that a health-contingent wellness also invite comments as to whether sometimes requires a cycle of failure program is reasonably designed to additional rules or examples would be and renewed effort.’’ 15 Plans and improve health and is not a subterfuge helpful to demonstrate compliance with issuers cannot cease to provide a for underwriting or reducing benefits the limitation on the size of the reward reasonable alternative standard merely based on health status. Comments are when the amount of the reward is because one was not successful before; invited on these provisions, as well as variable and is not determinable at the they must continue to offer a reasonable whether other facts and circumstances time the reward is established (for alternative standard, whether it is the should be specifically addressed. For example, when the reward is waiver of same standard or a new reasonable example, the Departments seek a copayment for outpatient office visits, alternative standard (such as a new comment on whether any additional the frequency of which will not be weight-loss class or a new nicotine rules or clarifications are needed with predictable for any particular replacement therapy).16 respect to the process for determining a participant or beneficiary under the All the facts and circumstances would reasonable alternative standard. plan). be taken into account in determining Finally, the 2006 regulations provided (3) Uniform Availability and whether a plan or issuer has provided that it is permissible for a plan or issuer Reasonable Alternative Standards. a reasonable alternative standard, to seek verification, such as a statement A critical element of these proposed including but not limited to the from the individual’s personal regulations is the requirement that the following proposed factors: physician, that a health factor makes it reward under a health-contingent • If the reasonable alternative unreasonably difficult for the individual wellness program be available to all standard is completion of an to satisfy, or medically inadvisable for similarly situated individuals. To meet educational program, the plan or issuer the individual to attempt to satisfy, the this requirement, a ‘‘reasonable must make the educational program otherwise applicable standard. The alternative standard’’ (or waiver of the available instead of requiring an Affordable Care Act amendments otherwise applicable standard) for individual to find such a program codified this provision with one obtaining the reward must be provided unassisted, and may not require an modification: PHS Act section for any individual for whom, for that individual to pay for the cost of the 2705(j)(3)(D)(ii) makes clear that period, it is either unreasonably difficult program. physician verification may be required due to a medical condition to meet the • If the reasonable alternative by a plan or issuer ‘‘if reasonable under otherwise applicable standard, or for standard is a diet program, the plan or the circumstances.’’ These proposed whom it is medically inadvisable to issuer is not required to pay for the cost regulations clarify that it would not be attempt to satisfy the otherwise reasonable for a plan or issuer to seek applicable standard. That is, the same, of food but must pay any membership or participation fee. verification of a claim that is obviously full reward must be available to • valid based on the nature of the individuals who qualify by satisfying a If the reasonable alternative standard is compliance with the individual’s medical condition that is reasonable alternative standard as is known to the plan or issuer. Plans and provided to individuals who qualify by recommendations of a medical professional who is an employee or issuers are permitted under the satisfying the program’s otherwise proposed regulations to seek verification applicable standard. These proposed agent of the plan or issuer, and an individual’s personal physician states of claims that require the use of medical regulations would generally reiterate the judgment to evaluate. The Departments requirements set forth in the 2006 that the medical professional’s recommendations are not medically solicit comments on whether additional regulations and codified in PHS Act clarifications would be helpful section 2705(j), and provide several appropriate for that individual, the plan or issuer must provide a reasonable regarding the reasonableness of additional clarifications. physician verification. First, under these proposed alternative standard that accommodates the recommendations of the individual’s (4) Reasonable Design. regulations, as under the 2006 Consistent with the 2006 regulations physician with regard to medical regulations, in lieu of providing a and PHS Act section 2705(j), these appropriateness.17 Plans and issuers reasonable alternative standard, a plan proposed regulations would continue to or issuer may always waive the 15 require that health-contingent wellness otherwise applicable standard and See 71 FR 75019. 16 Id. programs be reasonably designed to provide the reward. The plan or issuer 17 As stated in the preamble to the Departments’ promote health or prevent disease, not may waive the otherwise applicable regulations on internal claims and appeals and be overly burdensome, not be a standard and provide a reward for an external review processes, adverse benefit subterfuge for discrimination based on a entire class of individuals or may do so determinations based on whether a participant or beneficiary is entitled to a reasonable alternative health factor, and not be highly suspect on an individual-by-individual basis standard for a reward under a plan’s wellness based on the facts and circumstances program are situations in which a claim is therefore is eligible for Federal external review. See presented. considered to involve medical judgment and 76 FR 37216.

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in the method chosen to promote health qualifying for the reward. Accordingly, Accordingly, these proposed regulations or prevent disease. The preamble to the the general approach that was adopted provide new sample language in the 2006 regulations stated that the in the 2006 regulations is preserved, regulatory text and in examples that is ‘‘reasonably designed’’ standard was which allows plans and issuers to intended to be simpler for individuals to designed to prevent abuse, but conduct screenings and employ understand and to increase the otherwise was ‘‘intended to be an easy measurement techniques in order to likelihood that those who qualify for a standard to satisfy * * *. There does not target wellness programs effectively. For different means of obtaining a reward need to be a scientific record that the example, plans and issuers could target will contact the plan or issuer to request method promotes wellness to satisfy individuals with high cholesterol for it. The Departments invite comment on this standard. The standard is intended participation in cholesterol reduction the sample language in both the to allow experimentation in diverse programs, or individuals who use regulatory text and in the examples. ways of promoting wellness.’’ 18 The tobacco for participation in tobacco preamble also stated that the cessation programs, rather than the C. Application to the Individual Health Departments did not ‘‘want plans and entire population of participants and Insurance Market issuers to be constrained by a narrow beneficiaries if individuals who do not PHS Act sections 2705(a) and (b), as range of programs * * * but want plans meet a plan’s target biometrics (or added by section 1201 of the Affordable and issuers to feel free to consider similar standards) are provided a Care Act, apply the HIPAA innovative programs for motivating different, reasonable means of nondiscrimination requirements to individuals to make efforts to improve qualifying for the same reward. The health insurance issuers in the their health.’’ 19 These proposed Departments invite comments on this individual health insurance market. regulations would continue to provide approach, including on ways to ensure Accordingly, the HHS proposed plans and issuers flexibility and that employees will not be subjected to regulations include a new § 147.110 encourage innovation. Also, as an unreasonable ‘‘one-size-fits-all’’ which applies the nondiscrimination discussed later in this preamble, the approach to designing the different protections of the 2006 regulations to regulations include several clarifications means of qualifying for the reward that non-grandfathered, individual health to ensure against subterfuge and would fail to take an employee’s insurance coverage, effective for policy discrimination. Comments are welcome circumstances into account to the extent years beginning on or after January 1, on whether certain standards, including that, as a practical matter, they would 2014. By their terms, the wellness evidence- or practice-based standards, make it unreasonably difficult for the program provisions of PHS Act section are needed to ensure that wellness employee to access those different 2705(j), however, do not apply to health programs are reasonably designed to means of qualifying. Comments also are insurance coverage in the individual promote health or prevent disease. The invited on whether any other consumer market. Accordingly, the wellness Departments also welcome comments protections are needed to ensure that program provisions of § 146.121(f) apply on best practices guidance regarding wellness programs are reasonably only to group health plans and group evidence- and practice-based strategies designed to promote health or prevent health insurance coverage, not in order to increase the likelihood of disease. individual market coverage. wellness program success. Resources for (5) Notice of Other Means of employers and plans include the Qualifying for the Reward. D. Applicability Date Healthier Worksite Initiative of the These proposed regulations, These proposed regulations would Centers for Disease Control and consistent with the 2006 regulations and apply for plan years (in the individual Prevention (CDC) at http:// the amendments made by the Affordable market, policy years) beginning on or www.cdc.gov/nccdphp/dnpao/hwi/. Care Act, would require plans and after January 1, 2014, consistent with Under the proposed regulations, the issuers to disclose the availability of the statutory effective date of PHS Act determination of whether a health- other means of qualifying for the reward section 2705, as well as PHS Act section contingent wellness program is or the possibility of waiver of the 2701. Comments are invited on this reasonably designed is based on all the otherwise applicable standard in all proposed applicability date. relevant facts and circumstances. To plan materials describing the terms of a ensure that programs are not a health-contingent wellness program. If III. Economic Impact and Paperwork subterfuge for discrimination or plan materials merely mention that a Burden underwriting based on health factors program is available, without describing A. Executive Orders 12866 and 13563— such as weight, blood pressure, glucose its terms, this disclosure is not required. Department of Labor and Department of levels, cholesterol levels, or tobacco use For example, a summary of benefits and Health and Human Services with no or insufficient support to coverage (SBC) required under section improve individuals’ health, the 2715 of the PHS Act that notes that cost Executive Orders 12866 and 13563 Departments propose that, to the extent sharing may vary based on participation direct agencies to assess all costs and a plan’s initial standard for obtaining a in a diabetes wellness program, without benefits of available regulatory reward (or a portion of a reward) is describing the standards of the program, alternatives and, if regulation is based on results of a measurement, test, would not trigger this disclosure. necessary, to select regulatory or screening that is related to a health The 2006 regulations provided sample approaches that maximize net benefits factor (such as a biometric examination language that could be used to satisfy (including potential economic, or a health risk assessment), the plan is this requirement in both the regulatory environmental, public health and safety not reasonably designed unless it makes text and in several examples. However, effects; distributive impacts; and available to all individuals who do not feedback and experience since the 2006 equity). Executive Order 13563 meet the standard based on the regulations were published have emphasizes the importance of measurement, test, or screening a indicated that the sample language was quantifying both costs and benefits, different, reasonable means of complicated and confusing to some reducing costs, harmonizing rules, and individuals and may have led fewer promoting flexibility. The Office of 18 71 FR 75018. individuals to seek a reasonable Management and Budget (OMB) has 19 71 FR 75019. alternative standard than were eligible. determined that this proposed rule is a

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‘‘significant regulatory action’’ under because it raises novel legal or policy priorities. Accordingly, the rule has section 3(f)(4) of Executive Order 12866, issues arising from the President’s been reviewed by the OMB.

TABLE 1—Accounting Table

Benefits ...... Quantified: Minimal due to low expected use of higher reward limits. Qualitative: Benefits include the ability to increase the reward based on a health factor to incentivize individuals to meet a health standard associated with improved health, which could reduce health care costs. Improved standards could reduce the use of wellness programs as a subterfuge for discrimination based on a health fac- tor. Costs ...... Quantified: Minimal since employers are expected to create or expand wellness programs only if the expected benefit exceeds the cost as well as due to low expected use of higher reward limits. Qualitative: Costs of the rule include clarifications regarding what costs individuals may pay as part of an alter- native means of complying with the health standard. To the extent an individual faces an increased cost for not meeting a health standard, the individual would have reduced resources to use for other purposes. Transfers ...... Quantified: Minimal due to low expected use of higher reward limits. Qualitative: Transfers resulting from the rule include transfers from those who do not meet a health standard to those who do meet the standard or the associated alternative standard.

Based on the Departments’ review of their intended benefit of improving nondiscrimination and wellness the most recent literature and studies health and reducing costs. provisions and the 2006 regulations. regarding wellness programs, the The one source of potential additional PHS Act section 2705 largely reflects Departments reached the conclusion cost discussed in the impact analysis is the provisions of the 2006 regulations that the impact of the benefits, costs, the clarification that plans must provide with some modification and and transfers associated with the a reasonable alternative means of clarification. Most notably, it increased proposed rules will be minimal. As satisfying the otherwise applicable the maximum reward that can be discussed in this analysis, few health- standard. The Departments present provided under a health-contingent contingent wellness programs today evidence that currently employers not wellness program from 20 percent to 30 come close to meeting the 20 percent only allow a reasonable alternative percent of the total cost of coverage limit (based on the data, the usual standard, but that most employers under the plan and authorized the reward percentage ranges from three to already pay for these alternatives. The Departments to increase this percentage 11 percent); therefore, the Departments Departments do not have an estimate of to as much as 50 percent of the total cost do not believe that expanding the limit how many plans are not currently of coverage under the plan, if the to 30 percent (or 50 percent for paying for alternatives consistent with Departments determine that such an programs designed to prevent or reduce the clarifications set forth in the increase is appropriate. Accordingly, as tobacco use) will result in significantly proposed regulations, but the number discussed in section II.B of this higher participation of employers in appears to be small. The Departments preamble, these proposed regulations such programs. The Departments also employ economic logic to conclude increase the applicable percentage for provide a qualitative discussion below that employers will create or expand the maximum reward from 20 percent to and cite the survey data used to their wellness program and provide 30 percent, with an additional increase substantiate this conclusion. Moreover, reasonable alternatives only if the of 20 percentage points (to 50 percent) most wellness programs appear to be expected benefits exceed the expected for health-contingent wellness programs participatory programs that do not costs. Therefore, the Departments designed to prevent or reduce tobacco require an individual to meet a standard believe that the benefits of the proposed use. The additional increase is related to a health factor in order to rule will justify the costs. The warranted to conform to PHS Act obtain a reward. As stated earlier in this Departments invite comments on these section 2701, to avoid inconsistency preamble, these participatory wellness conclusions and request input for across group health coverage, whether programs are not required to meet the improving the analysis, including insured or self-insured, or offered in the five requirements that apply to health- additional data, surveys, or studies. small group or large group market, and contingent wellness programs, but they to provide grandfathered plans the same are required to be made available to all B. Background and Need for Regulatory flexibility to promote health and similarly situated individuals. Action—Department of Labor and Department of Health and Human prevent disease as non-grandfathered Although the Departments believe few Services plans.20 plans will expand the reward percentage, the Departments provide a As discussed earlier in this preamble, C. Regulatory Alternatives—Department qualitative discussion regarding the on December 13, 2006, the Departments of Labor and Department of Health and sources of benefits, costs, and transfers issued joint final regulations regarding Human Services that could occur if plans were to expand the HIPAA nondiscrimination and As stated earlier in this preamble, the the reward beyond the current wellness provisions. The 2006 2006 regulations prescribed several maximum of 20 percent. Currently, regulations set forth the requirements requirements for health-contingent insufficient broad-based evidence makes for wellness programs that provide a wellness programs, including a it difficult to definitively assess the reward to individuals who satisfy a limitation on the maximum reward of impact of workplace wellness programs standard related to a health factor or 20 percent of the total cost of coverage on health outcomes and cost, although, provide a reward to individuals to do overall, employers largely report that more than a similarly situated 20 For a discussion of PHS Act section 2701 and workplace wellness programs in general individual based on a health factor. See the HHS proposed regulation being published (participatory programs and health- section I.B. of this preamble for a contemporaneously with these proposed contingent programs) are delivering on detailed discussion of the HIPAA regulations, see section II.B.2. of this preamble.

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under the plan.21 PHS Act section 2705 what was permissible in the small group health benefits, but only 18 percent of largely reflects the requirements for market and the large group market was employers with fewer than 200 workers. wellness programs from the 2006 not in line with the Departments’ policy The Kaiser/HRET survey indicates regulations with some modification and goal of providing consistency in that 29 percent of all firms and 53 clarification. Most notably, it increased flexibility for plans. percent of large firms offered weight the maximum reward that can be (2) Concurrent premium differentials loss programs, while 30 percent and 64 provided under a health-contingent with no reasonable alternative required percent, respectively, offered gym wellness program from 20 percent to 30 to be offered for tobacco use. Another memberships or on-site exercise percent of the total cost of coverage alternative would be to read sections facilities. Meanwhile, 32 percent of all employers and 63 percent of large under the plan and authorized the 2701 and 2705 together such that, for employers offered smoking cessation Departments to increase this percentage non-grandfathered health plans in the resources. Despite widespread to as much as 50 percent, if the small group market, up to a 50 percent availability, actual participation of Departments determine that such an premium differential would be employees in wellness programs increase is appropriate. permitted based on tobacco use, as PHS Act section 2701(a)(1)(A)(iv) remains limited. While no nationally authorized under PHS Act section provides that issuers in the individual representative data exist, a 2010 non- 2701(a)(1)(A)(iv), with no reasonable and small group markets cannot vary representative survey suggests that alternative standard required for the rates for tobacco use by more than a typically less than 20 percent of eligible tobacco use program. With respect to ratio of 1.5 to 1 (that is, allowing up to employees participate in wellness a 50 percent rating factor for tobacco non-tobacco-related wellness programs, interventions such as smoking use) for non-grandfathered plans. PHS a reward could be offered only to the cessation.24 Act section 2701 applies to the extent that a tobacco use wellness Currently, insufficient broad-based individual market and the small group program were less than 30 percent of the evidence makes it difficult to market, but does not apply in the large cost of coverage because the two definitively assess the impact of group market or to self-insured plans. provisions apply concurrently, and a workplace wellness on health outcomes Contemporaneously with the reward would not be permitted under and cost. Yet, overall, employers largely publication of these proposed PHS Act section 2705 if the maximum report that workplace wellness regulations, HHS is publishing a reward already were exceeded by virtue programs are delivering on their proposed rule that would provide that of PHS Act section 2701. Thus, the 50 intended benefit of improving health an issuer in the small group market percent tobacco surcharge under PHS and reducing costs. According to the would not be able to impose the tobacco Act section 2701 would be available 2011 Kaiser/HRET survey, 65 percent of rating factor on an individual in the only to non-grandfathered, insured, respondents that offered wellness plan under PHS Act section 2701 unless small group plans. The chosen approach programs stated that these programs it was imposed as part of a wellness is intended to avoid inconsistency and improved employee health, and 53 program meeting the standards of PHS to provide grandfathered plans the same percent believed that they reduced Act section 2705(j) and its flexibility to promote health and costs. Larger firms (defined as those implementing regulations. prevent disease as non-grandfathered with more than 200 workers in the An important policy goal of the plans. Kaiser/HRET survey) were significantly Departments is to provide the large D. Current Use of Wellness Programs more positive, as 74 percent affirmed group market and self-insured plans and and Economic Impacts—Department of that workplace wellness programs grandfathered health plans with the Labor and Department of Health and improved health and 65 percent said same flexibility as non-grandfathered Human Services that it reduced cost, as opposed to 65 plans in the small group market to percent and 52 percent, respectively, promote tobacco-free workforces. The The current use of wellness programs among smaller firms.25 Forty percent of Departments considered several and economic impacts of these respondents to a survey by Buck regulatory alternatives to meet this proposed regulations are discussed in Consultants indicated that they had objective, including the following: this analysis. measured the impact of their wellness (1) Stacking premium differentials. Wellness programs 22 have become program on the growth trend of their One alternative considered was to common among employers in the health care costs, and of these, 45 permit a 50 percent premium United States. The 2012 Kaiser/HRET percent reported a reduction in that differential for tobacco use in the small survey indicates that 63 percent of all growth trend. The majority of these group market under PHS Act section employers who offered health benefits employers, 61 percent, reported that the 2701 without requiring a reasonable reduction in growth trend of their health also offered at least one wellness alternative standard. Under PHS Act care costs was between two and five program.23 The uptake of wellness section 2705, an additional 30 percent percentage points per year.26 There are programs continues to be more common premium differential would also be numerous accounts of the positive among large employers. For example, permitted if the five criteria for a health- impact of workplace wellness programs the 2012 Kaiser/HRET survey found that contingent wellness program are met in many industries, regions, and types health risk assessments are offered by 38 (including the offering of a reasonable of employers. For example, a recent alternative standard). Under this option, percent of large employers offering an 80 percent premium differential 24 Nyce, S. Boosting Wellness Participation would have been allowable in the small 22 On behalf of the Departments, RAND Without Breaking the Bank. TowersWatson Insider. researchers did a review of the current literature on July, 2010:1–9. group market based on factors related to this topic. ‘‘A Review of the U.S. Workplace 25 Kaiser Family Foundation, Employer Health health status. Large and self-insured Wellness Market’’ February 2012. The report can be Benefits: 2010 Annual Survey. 2010, The Kaiser plans would have been limited to the 30 found at http://www.dol.gov/ebsa/pdf/workplace Family Foundation, Menlo Park, CA; Health percent maximum reward. Allowing wellnessmarketreview2012.pdf. Research & Educational Trust, Chicago, IL. 23 Kaiser Family Foundation, Employer Health 26 Buck Consultants, Working Well: A Global such a substantial difference between Benefits: 2011 Annual Survey. 2011, The Kaiser Survey of Health Promotion and Workplace Family Foundation, Menlo Park, CA; Health Wellness Strategies. 2010, Buck Consultants: San 21 See section I.B, earlier in this preamble. Research & Educational Trust, Chicago, IL. Francisco, CA.

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article published by the Harvard investigate the sustainability of There are also no data on potential Business Review cited positive results.33 unintended effects, such as outcomes reported by private-sector While employer sponsors generally discrimination against employees based employers along several different are satisfied with the results, more than on their health or health behaviors. dimensions, including health care half stated in a recent survey that they Currently, the most commonly savings, reduced absenteeism, and do not know their programs’ return on incentivized program appears to be employee satisfaction.27 investment.34 The peer-reviewed associated with completion of a health Several studies that looked at the literature, while predominantly risk assessment. According to the 2009 impact of smoking cessation programs positive, covers only a small proportion Mercer survey, 10 percent of all firms found significantly higher quit rates or of the universe of programs, limiting the and 23 percent of large employers that less tobacco use.28 29 Smoking cessation generalizability of the reported findings. offered a health risk assessment programs typically offered education Evaluating such complex interventions provided an incentive for completing and counseling to increase social is difficult and poses substantial the assessment. For other types of health support.30 Two studies reported that methodological challenges that can management programs that the survey individuals in the intervention group invalidate findings. assessed, only two to four percent of all quit smoking at a rate approximately 10 Overall, surveys suggest that a employers and 13 to 19 percent of large percentage points higher than those in relatively small percentage of employers employers offered incentives.38 The the control group, and another reported use incentives, dollar or otherwise, for 2011 Kaiser/HRET survey found that 10 that participants were almost four times wellness programs, although incentive percent of all employers and 42 percent as likely as nonparticipants to reduce use is more prevalent among larger of large firms that offered a health risk tobacco use.31 32 However, these effects employers. Data from the 2011 Kaiser/ assessment provided a financial should be interpreted with caution. One HRET Survey of Employer Health incentive to employees who completed study showed significant differences in Benefits indicate that 14 percent of all it. smoking rates at a one-month follow-up, employers offered cash, gift cards, Incentives are offered in a variety of but showed no significant differences in merchandise, or travel as incentives for forms, such as cash, gift cards, quit rates at six months, highlighting the wellness program participation. Among merchandise, time off, awards, importance of long-term follow-up to large firms (greater than 200 workers), recognition, raffles or lotteries, reduced only 27 percent offered these kinds of health plan premiums and co-pays, and 27 Berry, L., A. Mirabito, and W. Baun, What’s the incentives. Mercer Consulting’s 2009 contributions to flexible spending or Hard Return on Employee Wellness Programs? National Survey of Employer-Sponsored health savings accounts. As noted Harvard Business Review, 2010. 88(12): p. 104. previously, the Kaiser/HRET 2011 28 Heirich, M. and C.J. Sieck, Worksite Health Plans found similar patterns, cardiovascular wellness programs as a route to estimating that six percent of all firms survey reported that among firms substance abuse prevention. J Occup Environ Med, and 21 percent of those with 500 or offering health benefits with more than 2000. 42(1): p. 47–56; 40; McMahon, S.D. and L.A. more employees provided financial 200 workers, 27 percent offered cash or Jason, Social support in a worksite smoking cash equivalent incentives (including intervention. A test of theoretical models. Behav incentives for participating in at least Modif, 2000. 24(2): p. 184–201; Okechukwu, C.A., one program.35 Employers are also gift cards, merchandise, or travel et al., MassBuilt: Effectiveness of an apprenticeship looking to continue to add incentives to incentives). In addition, 11 percent of site-based smoking cessation intervention for their wellness programs, for example 17 these firms offered lower employee unionized building trades workers. Cancer Causes Control, 2009. 20(6): p. 887–94; Sorensen, G., et al., percent intend to add a reward or health plan premiums to wellness A comprehensive worksite cancer prevention penalty based on tobacco-use status.36 participants, two percent offered lower intervention: Behavior change results from a The use of incentives to promote deductibles, and 11 percent offered randomized controlled trial (United States). J Public employee engagement remains poorly higher health reimbursement account or Health Policy, 2003. 24(1): p. 5–25. health savings account contributions. 29 Gold, D.B., D.R. Anderson, and S.A. Serxner, understood, so it is not clear how type Impact of a telephone-based intervention on the (e.g., cash or non-cash), direction Meanwhile, 13 percent of firms with reduction of health risks. Am J Health Promot, (reward versus penalty), and strength of fewer than 200 workers offered cash or 2000. 15(2): p. 97–106; Herman, C.W., et al., incentive are related to employee equivalent incentives, and each of the Effectiveness of an incentive-based online physical other types of incentives were offered by activity intervention on employee health status. engagement and outcomes. The Health Journal of Occupational and Environmental Enhancement Research Organization only two percent or less of firms. Medicine, 2006. 48(9): p. 889–895; Ozminkowski, and associated organizations also Cash and cash-equivalent incentives R.J., et al., The impact of the Citibank, NA, health recognized this deficiency and provided remain the most popular incentive for management program on changes in employee 37 completion of a health risk assessment. health risks over time. J Occup Environ Med, 2000. seven questions for future research. 42(5): p. 502–11. The Kaiser/HRET 2011 survey reports 30 Heirich, M. and C.J. Sieck, Worksite 33 Kechukwu, C.A., et al., MassBuilt: that among employers incentivizing cardiovascular wellness programs as a route to Effectiveness of an apprenticeship site-based completion of a health risk assessment, substance abuse prevention. J Occup Environ Med, smoking cessation intervention for unionized 41 percent offered cash, gift cards, building trades workers. Cancer Causes Control, 2000. 42(1): p. 47–56; McMahon, S.D. and L.A. merchandise or travel, 23 percent Jason, Social support in a worksite smoking 2009. 20(6): p. 887–94. intervention. A test of theoretical models. Behav 34 Buck Consultants, Working Well: A Global allowed workers to pay a smaller Modif, 2000. 24(2): p. 184–201. Survey of Health Promotion and Workplace proportion of premiums, 12 percent 31 Heirich, M. and C.J. Sieck, Worksite Wellness Strategies. 2010, Buck Consultants: San offered lower deductibles, and one cardiovascular wellness programs as a route to Francisco, CA. percent offered lower coinsurance. substance abuse prevention. J Occup Environ Med, 35 Mercer, National Survey of Employer- 2000. 42(1): p. 47–56; Okechukwu, C.A., et al., Sponsored Health Plans: 2009 Survey Report. 2010, Among large employers, 57 percent MassBuilt: Effectiveness of an apprenticeship site- Mercer. based smoking cessation intervention for unionized 36 ‘‘Employer Survey on Purchasing Value in Organization, American College of Occupational building trades workers. Cancer Causes Control, Health Care,’’ 17th Annual Towers Watson/National and Environmental Medicine, American Cancer 2009. 20(6): p. 887–94. Business Group on Health Employer Survey on Society and American Cancer Society Cancer 32 In the study, 42% of participants reduced their Purchasing Value in Health Care. Action Network, American Diabetes Association, risk for tobacco use. See Gold, D.B., D.R. Anderson, 37 ‘‘Guidance for a Reasonably Designed, and American Heart Association. and S.A. Serxner, Impact of a telephone-based Employer-Sponsored Wellness Program Using 38 Mercer, National Survey of Employer- intervention on the reduction of health risks. Am Outcomes-Based Incentives,’’ joint consensus Sponsored Health Plans: 2009 Survey Report. 2010, J Health Promot, 2000. 15(2): p. 97–106. statement of the Health Enhancement Research Mercer.

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utilized cash incentives, 34 percent $152 41 and $557,42 or between three particular type of alternative standard offered smaller premiums, six percent and 11 percent of the $5,049 average that must be provided. Instead, it provided lower deductibles, and three cost of individual coverage in 2010,43 permits plan sponsors flexibility to percent provided lower coinsurance. among employees who receive them. provide any reasonable alternative. The Findings from Mercer’s 2009 survey This suggests that companies typically Departments expect that plan sponsors suggest similar trends, with five percent are not close to reaching the 20 percent will select alternatives that entail the of all employers and ten percent of of the total cost of coverage threshold minimum net costs (or, stated those with 500 or more workers set forth in the 2006 regulations. These differently, the maximum net benefits) providing cash incentives for findings indicate that based on currently that are possible to achieve derive completion of a health risk assessment; available data, increasing the maximum offsetting benefits, such as a higher one percent and two percent, reward for particpating in a health- smoking cessation success rate. respectively, offering lower cost sharing; contingent wellness program to 30 It seems reasonable to presume that and two percent and seven percent, percent (and the Departments’ decision the net cost plan sponsors will incur in the provision of alternatives, including respectively, offering lower premium to propose an additional 20 percentage transfers as well as new economic costs contributions.39 Note that in the Mercer points for programs designed to prevent and benefits, will not exceed the survey, the results cited reflect the or reduce tobacco use) is unlikely to have a significant impact. Additionally, transfer cost of waiving surcharges for incentives provided by all firms that all plan participants who qualify for offer a health risk assessment, while the as discussed earlier in this preamble, today most incentive-based wellness alternatives. The Departments expect Kaiser/HRET results previously that many plan sponsors will find more mentioned reflect only firms that programs are associated with completion of a health risk assessment cost effective ways to satisfy this incentivize completion of a health risk requirement, should they exercise the assessment. irrespective of the results, and therefore are not subject to the limitation, because option to provide incentives through a Incentives may be triggered by a range such programs are not health-contingent health-contingent wellness program and of different levels of employee wellness programs. that the true net cost to them will engagement. The simplest incentives are The Departments lack sufficient therefore be much smaller than the triggered by program enrollment—that information to assess how firms that transfer cost of waiving surcharges for is, by merely signing up for a wellness currently are at the 20 percent limit will all plan participants who qualify for program. At the next level, incentives respond to the increased limits and alternatives. The Departments have no are triggered by program participation— welcome public comments regarding basis for estimating the magnitude of the for instance, attending a class or this issue. If firms already viewed the cost of providing alternative standards initiating a program, such as a smoking current 20 percent reward limit as or of potential offsetting benefits, cessation intervention. Other incentive sufficient, then the Depatments would however, and therefore solicit programs may require completion of a not expect that increasing the limit comments from the public on this program, whether or not any particular would provide an incentive for program question. The Departments note that plan health-related goals are achieved, to design changes. sponsors will have strong motivation to earn an incentive. The health-contingent It is possible that the increased identify and provide alternative incentive programs require successfully wellness program reward limits will incentivize firms without health- standards that have positive net meeting a specific health outcome (or an economic effects. Plan sponsors will be alternative standard) to trigger an contingent wellness programs to establish them. The Departments, disinclined to provide alternatives that incentive, such as verifiably quitting undermine their overall wellness smoking. There is little representative however, do not expect a significant number of new programs to be created program and worsen behavioral and data indicating the relative prevalence health outcomes, or that make financial of these different types of triggers. The as a result of this change because firms without health-contingent wellness rewards available absent meaningful most common form of outcome-based efforts by participants to improve their programs could already have provided incentives is reportedly awarded for health habits and overall health. Instead rewards up to the 20 percent limit smoking cessation. The 2010 survey by plan sponsors will be inclined to before the enactment of the Affordable NBGH and TowersWatson indicated provide alternatives that sustain or Care Act, but did not. that while 25 percent of responding reinforce plan participants’ incentive to employers offered a financial incentive Two critical elements of these proposed regulations are (1) the improve their health habits and overall for employees to become tobacco-free, health, and/or that help participants standard that the reward under a health- only four percent offered financial make such improvements. It therefore contingent wellness program be incentives for maintaining a BMI within seems likely that gains in economic available to all similarly situated target levels, three percent did so for welfare from this requirement will equal individuals and (2) the standard that a maintaining blood pressure within or outweigh losses. The Departments program be reasonably designed to intend that the requirement to provide targets, and three percent for promote health or prevent disease.44 reasonable alternatives will reduce maintaining targeted cholesterol As discussed earlier in this preamble, 40 instances where wellness programs levels. the regulation does not prescribe a serve only to shift costs to higher risk The value of incentives can vary individuals and increase instances widely. Estimates from representative 41 Mercer, National Survey of Employer- where programs succeed at helping high surveys of the average value of Sponsored Health Plans: 2009 Survey Report. 2010, Mercer. risk individuals improve their health. incentives per year range between 42 Linnan, L., et al., Results of the 2004 national The Departments solicit comments on worksite health promotion survey. American its assumption. 39 Mercer, National Survey of Employer- Journal of Public Health, 2008. 98(8): p. 1503–1509. In considering the transfers that might Sponsored Health Plans: 2009 Survey Report. 2010, 43 Kaiser Family Foundation, Employer Health Mercer. Benefits: 2010 Annual Survey. derive from the availability of (and 40 TowersWatson, Raising the Bar on Health Care: 44 See section II.B, earlier in this preamble for a participants’ satisfaction with) Moving Beyond Incremental Change. more detailed discussion of these requirements. alternative means of qualifying for the

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reward, the transfers arising from this number of small entities, section 603 of percent of these firms offered lower requirement may take the form of the RFA requires the agency to present employee health plan premiums to transfers to participants who satisfy new an initial regulatory flexibility analysis wellness participants, one percent alternative wellness program standards at the time of the publication of the offered lower deductibles, and one from plan sponsors, to such participants notice of proposed rulemaking percent offered higher health from other participants, or some describing the impact of the rule on reimbursement account or health combination of these. The existence of small entities. Small entities include savings account contributions. a wellness program with a reward small businesses, organizations and Therefore, the Departments expect that contingent on meeting a standard governmental jurisdictions. few small plans will be affected by related to a health factor creates a For purposes of analysis under the increasing the rewards threshold from transfer from those who do not meet the RFA, the Departments propose to 20 percent to 30 percent (50 percent for standard to those who do meet the continue to consider a small entity to be programs targeting tobacco use standard. Allowing individuals to meet an employee benefit plan with fewer prevention or reduction), because a an alternative standard to receive the than 100 participants. The basis of this small percentage of plans have rewards- reward is a transfer to those who use the definition is found in section 104(a)(3) based wellness programs. Moreover, as alternative standard from everyone else of ERISA, which permits the Secretary discussed in the Economic Impacts in the risk pool. of Labor to prescribe simplified annual section earlier in this preamble, few The reward associated with the reports for welfare benefit plans that plans that offer rewards-based wellness wellness program is an incentive to cover fewer than 100 participants.45 programs come close to reaching the 20 encourage individuals to meet health Further, while some large employers percent limit, and most incentive-based standards associated with better or may have small plans, in general, small wellness programs are associated with improved health, which in turn is employers maintain most small plans. completing the health risk assessment associated with lower health care costs. Thus, the Departments believe that irrespective of the results, which are not If the rewards are effective, health care assessing the impact of these proposed subject to the limitation. costs will be reduced as an individual’s regulations on small plans is an The Kaiser/HRET survey also reports health improves. Some of these lower appropriate substitute for evaluating the that about 88 percent of small plans had health care costs could translate into effect on small entities. their wellness programs provided by the lower premiums paid by employers and The definition of small entity health plan provider. Industry experts employees, which could offset some of considered appropriate for this purpose indicated to the Departments that when the transfers. To the extent larger differs, however, from a definition of wellness programs are offered by the rewards are more effective at improving small business that is based on size health plan provider, they typically health and lowering costs, these standards promulgated by the Small supply alternative education programs proposed regulations would produce Business Administration (SBA) (13 CFR and offer them free of charge. This more benefits than the current 121.201) pursuant to the Small Business finding indicates that the requirement in regulations. Act (15 U.S.C. 631 et seq.). The the proposed rule for rewards-based Rewards also could create costs to Departments therefore request wellness programs to provide and pay individuals and to the extent the new comments on the appropriateness of the for a reasonable alternative standard for larger rewards create more costs than size standard used in evaluating the individuals for whom it is either smaller rewards, these proposed impact of these proposed regulations on unreasonably difficult or medically regulations could increase the costs small entities. The Departments have inadvisable to meet the original relative to the existing regulations. To consulted with the SBA Office of standard will impose little new costs or the extent an individual does not meet Advocacy concerning use of this transfers to the affected plans. a standard or satisfy an alternative participant count standard for RFA Based on the foregoing, the standard, they could face higher costs, purposes. See 13 CFR 121.902(b)(4). Departments herby certify that these for example in the case of a surcharge The Departments expect that these proposed regulations will not have a for smoking they could face up to a 50 proposed regulations will affect few significant economic impact on a percent increase in their premiums. small plans. While a large number of substantial number of small entities. Based on the foregoing discussion, the small plans offer a wellness program, F. Paperwork Reduction Act— Departments expect the benefits, costs, the 2011 Kaiser/HRET survey reported Department of Labor and Department of and transfers associated with these that only 13 percent of employers with the Treasury proposed regulations to be minimal. fewer than 200 employees had a However, the Departments are not able wellness program that offered cash or The 2006 final regulations regarding to provide aggregate estimates, because cash equivalent incentives (including wellness programs did not include an they do not have sufficent data to gift cards, merchandise, or travel information collection request (ICR). estimate the number of plans that will incentives).46 In addition, only two These proposed regulations, like the take advantage of the new limits. 2006 final regulations, provide that if a 45 Under ERISA section 104(a)(2), the Secretary plan’s wellness program requires E. Regulatory Flexibility Act— may also provide exemptions or simplified individuals to meet a standard related to Department of Labor and Department of reporting and disclosure requirements for pension a health factor in order to qualify for a Health and Human Services plans. Pursuant to the authority of ERISA section 104(a)(3), the Department of Labor has previously reward and if the plan materials The Regulatory Flexibility Act (5 issued at 29 CFR 2520.104–20, 2520.104–21, describe this standard, the materials U.S.C. 601 et seq.) (RFA) applies to most 2520.104–41, 2520.104–46, and 2520.104b–10 must also disclose the availability of certain simplified reporting provisions and limited Federal rules that are subject to the exemptions from reporting and disclosure other means of qualifying for the reward notice and comment requirements of requirements for small plans, including unfunded or the possibility of waiver of the section 553(b) of the Administrative or insured welfare plans, that cover fewer than 100 otherwise applicable standard. If plan Procedure Act (5 U.S.C. 551 et seq.). participants and satisfy certain other requirements. materials merely mention that a 46 Kaiser Family Foundation, Employer Health Unless an agency certifies that such a Benefits: 2011 Annual Survey. 2011, The Kaiser program is available, the disclosure rule will not have a significant Family Foundation, Menlo Park, CA; Health relating to alternatives is not required. economic impact on a substantial Research & Educational Trust, Chicago, IL. These proposed regulations include

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samples of disclosures that could be • The need for the information 1996 (5 U.S.C. 801 et seq.) and, if used to satisfy this requirement. collection and its usefulness in carrying finalized, will be transmitted to In concluding that these proposed out the proper functions of our agency. Congress and the Comptroller General regulations did not include an ICR, the • The accuracy of our estimate of the for review. These regulations, do not Departments reasoned that much of the information collection burden. constitute a ‘‘major rule,’’ as that term • information required was likely already The quality, utility, and clarity of is defined in 5 U.S.C. 804 because they the information to be collected. are unlikely to result in (1) an annual provided as a result of state and local • requirements or the usual business Recommendations to minimize the effect on the economy of $100 million practices of group health plans and information collection burden on the or more; (2) a major increase in costs or group health insurance issuers in affected public, including automated prices for consumers, individual connection with the offer and techniques. industries, or federal, State or local Section 146.121(f)(1)(iv) stipulates promotion of health care coverage. In government agencies, or geographic that the plan or issuer disclose in all addition, the sample disclosures would regions; or (3) significant adverse effects plan materials describing the terms of enable group health plans to make any on competition, employment, the program the availability of a necessary modifications with minimal investment, productivity, innovation, or reasonable alternative standard to effort. on the ability of United States-based qualify for the reward under a wellness enterprises to compete with foreign- Finally, although the proposed program. However, for plan materials regulations do not include an ICR, the based enterprises in domestic or export that merely mention that a program is markets. regulations could be interpreted to available, without describing its terms, require a revision to an existing the disclosure is not required. The J. Unfunded Mandates Reform Act collection of information. burden associated with this requirement For purposes of the Unfunded Administrators of group health plans was previously approved under OMB Mandates Reform Act of 1995 (Pub. L. covered under Title I of ERISA are control number 0938–0819. We are not 104–4), as well as Executive Order generally required to make certain seeking reinstatement of the information 12875, these proposed regulations do disclosures about the terms of a plan collection request under the not include any federal mandate that and material changes in terms through aforementioned OMB control number, may result in expenditures by state, a Summary Plan Description (SPD) or since we believe that much of the local, or tribal governments, nor does it Summary of Material Modifications information required is likely already include mandates which may impose an (SMM) pursuant to sections 101(a) and provided as a result of state and local annual burden of $100 million, adjusted 102(a) of ERISA and related regulations. requirements or the usual business for inflation,47 or more on the private The ICR related to the SPD and SMM is practices of group health plans and sector. currently approved by OMB under OMB group health insurance issuers in control number 1210–0039, which is connection with the offer and K. Federalism Statement—Department currently scheduled to expire on April promotion of health care coverage. In of Labor and Department of Health and 30, 2013. While these materials may in addition, the sample disclosures would Human Services some cases require revisions to comply enable group health plans to make any Executive Order 13132 outlines with the proposed regulations, the necessary modifications with minimal fundamental principles of federalism, associated burden is expected to be effort. and requires the adherence to specific negligible, and is already accounted for criteria by federal agencies in the H. Special Analyses—Department of the in the SPD, SMM, and the ICR by a process of their formulation and Treasury burden estimation methodology, which implementation of policies that have anticipates ongoing revisions. Based on For purposes of the Department of the ‘‘substantial direct effects’’ on the the foregoing, the Departments do not Treasury it has been determined that States, the relationship between the expect that any change to the existing this notice of proposed rulemaking is national government and States, or on ICR arising from these proposed not a significant regulatory action as the distribution of power and regulations will be substantive or defined in Executive Order 12866. responsibilities among the various material. Accordingly, the Departments Therefore, a regulatory assessment is not levels of government. Federal agencies have not filed an application for required. It has also been determined promulgating regulations that have approval of a revision to the existing that section 553(b) of the Administrative these federalism implications must ICR with OMB in connection with these Procedure Act (5 U.S.C. chapter 5) does consult with State and local officials, proposed regulations. not apply to these proposed regulations, and describe the extent of their G. Paperwork Reduction Act— and, because these proposed regulations consultation and the nature of the Department of Health and Human do not impose a collection of concerns of State and local officials in Services information on small entities, a the preamble to the regulation. Regulatory Flexibility Analysis under In the Departments’ view, these Under the Paperwork Reduction Act the Regulatory Flexibility Act (5 U.S.C. proposed regulations have federalism of 1995, the Department is required to chapter 6) is not required. Pursuant to implications, however, in the provide 60-day notice in the Federal section 7805(f) of the Code, this notice Departments’ view, the federalism Register and solicit public comment of proposed rulemaking has been implications of these final regulations before a collection of information submitted to the Small Business are substantially mitigated because, requirement is submitted to OMB for Administration for comment on its with respect to health insurance issuers, review and approval. In order to fairly impact on small business. the vast majority of States have enacted evaluate whether an information I. Congressional Review Act laws, which meet or exceed the federal collection should be approved by OMB, HIPAA standards prohibiting section 3506(c)(2)(A) of the Paperwork These proposed regulations are discrimination based on health factors. Reduction Act of 1995 requires the subject to the Congressional Review Act Department to solicit comment on the provisions of the Small Business 47 In 2012, that threshold level is approximately following issues: Regulatory Enforcement Fairness Act of $139 million.

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Therefore, the regulations are not likely procedures to implement its CFR part 147, pursuant to the authority to require substantial additional enforcement responsibilities, and to contained in sections 2701 through oversight of States by the Department of afford the States the maximum 2763, 2791, and 2792 of the PHS Act (42 HHS. opportunity to enforce HIPAA’s U.S.C. 300gg through 300gg–63, 300gg– In general, through section 514, requirements in the first instance. In 91, and 300gg–92), as amended by the ERISA supersedes State laws to the compliance with Executive Order Affordable Care Act. extent that they relate to any covered 13132’s requirement that agencies employee benefit plan, and preserves examine closely any policies that may List of Subjects State laws that regulate insurance, have federalism implications or limit 26 CFR Part 54 banking, or securities. While ERISA the policy making discretion of the Excise taxes, Health care, Health prohibits States from regulating a plan States, DOL and HHS have engaged in insurance, Pensions, Reporting and as an insurance or investment company numerous efforts to consult with and recordkeeping requirements. or bank, HIPAA added a new work cooperatively with affected State preemption provision to ERISA (as well and local officials. 29 CFR Part 2590 as to the PHS Act) narrowly preempting In conclusion, throughout the process Continuation coverage, Disclosure, State requirements for group health of developing these regulations, to the Employee benefit plans, Group health insurance coverage. With respect to the extent feasible within the specific plans, Health care, Health insurance, HIPAA nondiscrimination provisions, preemption provisions of HIPAA, the Medical child support, Reporting and States may continue to apply State law Departments have attempted to balance recordkeeping requirements. requirements except to the extent that the States’ interests in regulating health such requirements prevent the plans and health insurance issuers, and 45 CFR Parts 146 and 147 application of the portability, access, the rights of those individuals that Health care, Health insurance, and renewability requirements of Congress intended to protect through Reporting and recordkeeping HIPAA, which include HIPAA’s the enactment of HIPAA. requirements, and State regulation of nondiscrimination requirements health insurance. provisions. HIPAA’s Conference Report IV. Statutory Authority states that the conferees intended the The Department of the Treasury Steven T. Miller, narrowest preemption of State laws with regulations are proposed to be adopted Deputy Commissioner for Services and regard to health insurance issuers (H.R. pursuant to the authority contained in Enforcement, Internal Revenue Service. Conf. Rep. No. 736, 104th Cong. 2d sections 7805 and 9833 of the Code. Signed this 8th day of November, 2012. Session 205, 1996). State insurance laws The Department of Labor regulations Phyllis C. Borzi, that are more stringent than the federal are proposed to be adopted pursuant to Assistant Secretary, Employee Benefits requirements are unlikely to ‘‘prevent the authority contained in 29 U.S.C. Security Administration, Department of the application of’’ the HIPAA 1027, 1059, 1135, 1161–1168, 1169, Labor. nondiscrimination provisions, and 1181–1183, 1181 note, 1185, 1185a, Dated: August 1, 2012. therefore are not preempted. 1185b, 1185d, 1191, 1191a, 1191b, and Marilyn Tavenner, Accordingly, States have significant 1191c; sec. 101(g), Public Law 104–191, Acting Administrator, Centers for Medicare latitude to impose requirements on 110 Stat. 1936; sec. 401(b), Public Law & Medicaid Services. health insurance issuers that are more 105–200, 112 Stat. 645 (42 U.S.C. 651 Dated: August 7, 2012. note); sec. 512(d), Public Law 110–343, restrictive than the federal law. Kathleen Sebelius, Guidance conveying this 122 Stat. 3881; sec. 1001, 1201, and interpretation was published in the 1562(e), Public Law 111–148, 124 Stat. Secretary, Department of Health and Human Services. Federal Register on April 8, 1997 (62 FR 119, as amended by Public Law 111– 16904) and on December 30, 2004 (69 152, 124 Stat. 1029; Secretary of Labor’s Department of the Treasury Order 3–2010, 75 FR 55354 (September FR 78720), and these proposed Internal Revenue Service regulations clarify and implement the 10, 2010). statute’s minimum standards and do not The Department of Health and Human 26 CFR Chapter I significantly reduce the discretion given Services regulations are proposed to be Accordingly, 26 CFR part 54 is the States by the statute. Moreover, the adopted, with respect to 45 CFR part proposed to be amended as follows: Departments understand that the vast 146, pursuant to the authority contained majority of States have requirements in sections 2702 through 2705, 2711 PART 54—PENSION EXCISE TAXES that meet or exceed the minimum through 2723, 2791, and 2792 of the requirements of the HIPAA PHS Act (42 U.S.C. 300gg–1 through Paragraph 1. The authority citation nondiscrimination provisions. 300gg–5, 300gg–11 through 300gg–23, for Part 54 is amended by adding an HIPAA provides that the States may 300gg–91, and 300gg–92) prior to the entry for § 54.9815–2705 in numerical enforce the provisions of HIPAA as they amendments made by the Affordable order to read in part as follows: pertain to issuers, but that the Secretary Care Act and sections 2701 through Authority: 26 U.S.C. 7805. * * * of HHS must enforce any provisions that 2763, 2791, and 2792 of the Public Section 54.9815–2705 also issued under 26 a State chooses not to or fails to Health Service Act (42 U.S.C. 300gg U.S.C. 9833. substantially enforce. When exercising through 300gg–63, 300gg–91, and Par. 2. In § 54.9802–1, paragraph (f) is its responsibility to enforce provisions 300gg–92), as amended by the revised to read as follows: of HIPAA, HHS works cooperatively Affordable Care Act; with respect to 45 with the State for the purpose of § 54.9802–1 Prohibiting discrimination addressing the State’s concerns and plans covering employees of church organizations. against participants and beneficiaries based on a health factor. avoiding conflicts with the exercise of Thus, this discussion of federalism applies to all 48 group health insurance coverage that is subject to * * * * * State authority. HHS has developed the PHS Act, including those church plans that provide coverage through a health insurance issuer (f) Nondiscriminatory wellness 48 This authority applies to insurance issued with (but not to church plans that do not provide programs—in general. A wellness respect to group health plans generally, including coverage through a health insurance issuer). program is a program of health

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promotion or disease prevention. for the costs of, for example, prenatal under the program at least once per Paragraphs (b)(2)(ii) and (c)(3) of this care or well-baby visits. (Note that, with year. section provide exceptions to the respect to non-grandfathered plans, (ii) Size of reward. The reward for a general prohibitions against § 54.9815–2713T requires benefits for health-contingent wellness program, discrimination based on a health factor certain preventive health services together with the reward for other for plan provisions that vary benefits without the imposition of cost sharing.) health-contingent wellness programs (including cost-sharing mechanisms) or (iv) A program that reimburses with respect to the plan, must not the premium or contribution for employees for the costs of participating, exceed the applicable percentage of the similarly situated individuals in or that otherwise provides a reward for total cost of employee-only coverage connection with a wellness program participating, in a smoking cessation under the plan, as defined in this that satisfies the requirements of this program without regard to whether the paragraph (f)(3)(ii). However, if, in paragraph (f). If a wellness program is a employee quits smoking. addition to employees, any class of participatory wellness program, as (v) A program that provides a reward dependents (such as spouses, or spouses defined in paragraph (f)(1) of this to employees for attending a monthly and dependent children) may section, that paragraph also makes clear no-cost health education seminar. participate in the wellness program, the that the wellness program does not (vi) A program that provides a reward reward must not exceed the applicable violate this section if participation in to employees who complete a health percentage of the total cost of the the program is made available to all risk assessment regarding current health coverage in which an employee and any similarly situated individuals. If a status, without any further action dependents are enrolled. For purposes wellness program is a health-contingent (educational or otherwise) required by of this paragraph (f)(3)(ii), the cost of wellness program, as defined in the employee with regard to the health coverage is determined based on the paragraph (f)(2) of this section, the issues identified as part of the total amount of employer and employee wellness program does not violate this assessment. (See also § 54.9802–3T for contributions for the benefit package section if the requirements of paragraph rules prohibiting collection of genetic under which the employee is (or the (f)(3) of this section are met. Except information). employee and any dependents are) where expressly provided otherwise, (2) Health-contingent wellness receiving coverage. references in this section to an programs defined. If any of the (A) Applicable percentage. For individual obtaining a reward include conditions for obtaining a reward under purposes of this paragraph (f)(3)(ii), the both obtaining a reward (such as a a wellness program is based on an applicable percentage is 30 percent, premium discount or rebate, a waiver of individual satisfying a standard that is except that the applicable percentage is all or part of a cost-sharing mechanism, related to a health factor, the wellness increased an additional 20 percentage an additional benefit, or any financial or program is a health-contingent wellness points (to 50 percent) to the extent that other incentive) and avoiding a penalty program and the program is permissible the additional percentage is in (such as the absence of a premium under this section only if all of the connection with a program designed to surcharge, or other financial or requirements of paragraph (f)(3) of this prevent or reduce tobacco use. nonfinancial disincentive). References section are satisfied. Examples of (B) Examples. The rules of this in this section to a plan providing a health-contingent wellness programs paragraph (f)(3)(ii) are illustrated by the reward include both providing a reward are: following examples: (such as a premium discount or rebate, (i) A program that imposes a premium a waiver of all or part of a cost-sharing Example 1. (i) Facts. An employer sponsors surcharge based on tobacco use. mechanism, an additional benefit, or a group health plan. The annual premium for any financial or other incentive) and (ii) A program that uses a biometric employee-only coverage is $6,000 (of which screening or a health risk assessment to the employer pays $4,500 per year and the imposing a penalty (such as a surcharge employee pays $1,500 per year). The plan or other financial or nonfinancial identify employees with specified medical conditions or risk factors (such offers employees a health-contingent disincentive). wellness program focused on exercise, blood (1) Participatory wellness programs as high cholesterol, high blood pressure, unhealthy body mass index, or high sugar, weight, cholesterol, and blood defined. If none of the conditions for pressure. The reward for compliance is an obtaining a reward under a wellness glucose level) and provides a reward to annual premium rebate of $600. program is based on an individual employees identified as within a normal (ii) Conclusion. In this Example 1, the satisfying a standard that is related to a or healthy range for biometrics (or at program satisfies the requirements of this health factor (or if a wellness program low risk for certain medical conditions), paragraph (f)(3)(ii) because the reward for the does not provide a reward), the wellness while requiring employees who are wellness program, $600, does not exceed 30 program is a participatory wellness identified as outside the normal or percent of the total annual cost of employee- healthy range (or at risk) to take only coverage, $1,800. ($6,000 × 30% = program and, if participation in the $1,800.) program is made available to all additional steps (such as meeting with a health coach, taking a health or fitness Example 2. (i) Facts. Same facts as similarly situated individuals, does not Example 1, except the wellness program is violate this section. Examples of course, adhering to a health exclusively a tobacco prevention program. participatory wellness programs are: improvement action plan, or complying Employees who have used tobacco in the last (i) A program that reimburses all or with a health care provider’s plan of 12 months and who are not enrolled in the part of the cost for membership in a care) to obtain the same reward. plan’s tobacco cessation program are charged fitness center. (3) Requirements for health- a $1,000 premium surcharge (in addition to (ii) A diagnostic testing program that contingent wellness programs. A health- their employee contribution towards the provides a reward for participation and contingent wellness program does not coverage). (Those who participate in the plan’s tobacco cessation program are not does not base any part of the reward on violate this section if all of the following requirements are satisfied: assessed the $1,000 surcharge.) outcomes. (ii) Conclusion. In this Example 2, the (iii) A program that encourages (i) Frequency of opportunity to program satisfies the requirements of this preventive care through the waiver of qualify. The program must give paragraph (f)(3)(ii) because the reward for the the copayment or deductible individuals eligible for the program the wellness program (absence of a $1,000 requirement under a group health plan opportunity to qualify for the reward surcharge), does not exceed 50 percent of the

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total annual cost of employee-only coverage, unreasonably difficult due to a medical the individual’s medical condition that $3,000. ($6,000 × 50% = $3,000.) condition to satisfy the otherwise is known to the plan. However, plans Example 3. (i) Facts. Same facts as applicable standard; and may seek verification in the case of Example 1, except that, in addition to the (2) The program allows a reasonable claims for which it is reasonable to $600 reward for compliance with the health- alternative standard (or waiver of the contingent wellness program, the plan also determine that medical judgment is imposes an additional $2,000 tobacco otherwise applicable standard) for required to evaluate the validity of the premium surcharge on employees who have obtaining the reward for any individual claim. used tobacco in the last 12 months and who for whom, for that period, it is (iv) Reasonable design. The program are not enrolled in the plan’s tobacco medically inadvisable to attempt to must be reasonably designed to promote cessation program. (Those who participate in satisfy the otherwise applicable health or prevent disease. A program the plan’s tobacco cessation program are not standard. satisfies this standard if it has a assessed the $2,000 surcharge.) (B) While plans are not required to reasonable chance of improving the (ii) Conclusion. In this Example 3, the determine a particular alternative health of, or preventing disease in, program satisfies the requirements of this standard in advance of an individual’s paragraph (f)(3)(ii) because both: The total of participating individuals and it is not request for one, if an individual is overly burdensome, is not a subterfuge all rewards (including absence of a surcharge described in either paragraph for participating in the tobacco program) is for discriminating based on a health $2,600 ($600 + $2,000 = $2,600), which does (f)(3)(iii)(A)(1) or (2) of this section, a factor, and is not highly suspect in the not exceed 50 percent of the total annual cost reasonable alternative standard must be method chosen to promote health or of employee-only coverage ($3,000); and, furnished by the plan upon the prevent disease. This determination is tested separately, the $600 reward for the individual’s request or the condition for based on all the relevant facts and wellness program unrelated to tobacco use obtaining the reward must be waived. circumstances. To the extent a plan’s does not exceed 30 percent of the total All the facts and circumstances are initial standard for obtaining a reward annual cost of employee-only coverage, taken into account in determining (including a portion of a reward) is $1,800. whether a plan has furnished a Example 4. (i) Facts. An employer sponsors based on the results of a measurement, reasonable alternative standard, test, or screening relating to a health a group health plan. The total annual including but not limited to the premium for employee-only coverage factor (such as a biometric examination (including both employer and employee following: or a health risk assessment), the plan (1) If the reasonable alternative contributions towards the coverage) is must make available to any individual standard is completion of an $5,000. The plan provides a $250 reward to who does not meet the standard based educational program, the plan must employees who complete a health risk on the measurement, test, or screening make the educational program available assessment, without regard to the health a different, reasonable means of issues identified as part of the assessment. instead of requiring an individual to qualifying for the reward. The plan also offers a Healthy Heart program, find such a program unassisted, and (v) Notice of availability of other which is a health-contingent wellness may not require an individual to pay for means of qualifying for the reward. (A) program under paragraph (f)(2) of this the cost of the program. section, with an opportunity to earn a $1,500 (2) If the reasonable alternative The plan must disclose in all plan reward. standard is a diet program, plans are not materials describing the terms of the (ii) Conclusion. In this Example 4, the plan required to pay for the cost of food but program the availability of other means satisfies the requirements of this paragraph of qualifying for the reward or the (f)(3)(ii). Even though the total reward for all must pay any membership or participation fee. possibility of waiver of the otherwise wellness programs under the plan is $1,750 applicable standard. If plan materials ($250 + $1,500 = $1,750, which exceeds 30 (3) If the reasonable alternative percent of the cost of the annual premium for standard is compliance with the merely mention that a program is employee-only coverage ($5,000 × 30% = recommendations of a medical available, without describing its terms, $1,500)), only the reward offered for professional who is an employee or this disclosure is not required. compliance with the health-contingent agent of the plan, and an individual’s (B) The following language, or wellness program ($1,500) is taken into personal physician states that the plan’s substantially similar language, can be account in determining whether the rules of recommendations are not medically used to satisfy the notice requirement of this paragraph (f)(3)(ii) are met. (The $250 this paragraph (f)(3)(v): ‘‘Your health reward is offered in connection with a appropriate for that individual, the plan must provide a reasonable alternative plan is committed to helping you participatory wellness program and therefore achieve your best health status. Rewards is not taken into account under this standard that accommodates the paragraph (f)(3)(ii)). The health-contingent recommendations of the individual’s for participating in a wellness program wellness program offers a reward that does personal physician with regard to are available to all employees. If you not exceed 30 percent of the total annual cost medical appropriateness. Plans may think you might be unable to meet a of employee-only coverage. impose standard cost sharing under the standard for a reward under this (iii) Uniform availability and plan or coverage for medical items and wellness program, you might qualify for reasonable alternative standards. The services furnished pursuant to the an opportunity to earn the same reward reward under the program must be physician’s recommendations. by different means. Contact us at [insert available to all similarly situated (C) If reasonable under the contact information] and we will work individuals. circumstances, a plan may seek with you to find a wellness program (A) Under this paragraph (f)(3)(iii), a verification, such as a statement from an with the same reward that is right for reward under a program is not available individual’s personal physician, that a you in light of your health status.’’ to all similarly situated individuals for health factor makes it unreasonably Additional sample language is provided a period unless the program meets both difficult for the individual to satisfy, or in the examples of paragraph (f)(4) of of the following requirements: medically inadvisable for the individual this section. (1) The program allows a reasonable to attempt to satisfy, the otherwise (4) Examples. The rules of paragraphs alternative standard (or waiver of the applicable standard. It would not be (f)(3)(iii), (iv), and (v) of this section are otherwise applicable standard) for reasonable, for example, for a plan to illustrated by the following examples: obtaining the reward for any individual seek verification of a claim that is Example 1. (i) Facts. A group health plan for whom, for that period, it is obviously valid based on the nature of provides a reward to individuals who

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participate in a reasonable specified walking standard a different, reasonable means of paragraphs (f)(3)(iii), (iv), and (v) of this program. If it is unreasonably difficult due to qualifying for the reward and because the section. The program’s initial standard for a medical condition for an individual to program is otherwise reasonably designed obtaining a reward is dependent on the participate (or if it is medically inadvisable based on all the relevant facts and results of a BMI screening, which is related for an individual to participate), the plan will circumstances. The plan also discloses in all to a health factor. However, the plan waive the walking program requirement and materials describing the terms of the program complies with the requirements of paragraph provide the reward. All materials describing the opportunity to qualify for the reward (f)(3)(iv) of this section because it makes the terms of the walking program disclose the through other means. Thus, the program available to all individuals who do not satisfy availability of the waiver. satisfies paragraphs (f)(3)(iii), (iv), and (v) of the BMI standard a different reasonable (ii) Conclusion. The program satisfies the this section. means of qualifying for the reward (a walking requirements of paragraph (f)(3)(iii) of this Example 3. (i) Facts. Same facts as program that is not unreasonably section because the reward under the Example 2, except that, following diet and burdensome or impractical for individuals to program is available to all similarly situated exercise, D again fails to achieve a cholesterol comply with and that is otherwise reasonably individuals because it accommodates count that is under 200, and the program designed based on all the relevant facts and individuals who cannot participate in the requires D to visit a doctor and follow any circumstances). In addition, the plan walking program due to a medical condition additional recommendations of D’s doctor complies with the requirements of paragraph (or for whom it would be medically with respect to D’s cholesterol. The program (f)(3)(iii) of this section because, if there are inadvisable to attempt to participate) by permits D to select D’s own doctor for this individuals for whom it is unreasonably providing them the reward even if they do purpose. D visits D’s doctor, who determines difficult due to a medical condition to not participate in the walking program (that D should take a prescription medication for comply, or for whom it is medically is, by waiving the condition). The program cholesterol. In addition, the doctor inadvisable to attempt to comply, with the satisfies the requirements of paragraph determines that D must be monitored through walking program, the plan provides a (f)(3)(iv) of this section because the walking periodic blood tests to continually reevaluate reasonable alternative to those individuals. program is reasonably designed to promote D’s health status. The plan accommodates D Moreover, the plan satisfies the requirements health and prevent disease. Last, the plan by making the discount available to D, but of paragraph (f)(3)(v) of this section because complies with the disclosure requirement of only if D actually follows the advice of D’s it discloses, in all materials describing the paragraph (f)(3)(v) of this section. Thus, the doctor’s regarding medication and blood terms of the program, the availability of other plan satisfies paragraphs (f)(3)(iii), (iv), and tests. means of qualifying for the reward or the (v) of this section. (ii) Conclusion. In this Example 3, the possibility of waiver of the otherwise Example 2. (i) Facts. A group health plan program’s requirements to follow up with, applicable standard. Thus, the plan satisfies paragraphs (f)(3)(iii), (iv), and (v) of this offers a reward to individuals who achieve a and follow the recommendations of, D’s doctor do not make the program section. count under 200 on a cholesterol test. If a unreasonable under paragraph (f)(3)(iii) or Example 5. (i) Facts. In conjunction with participant does not achieve the targeted (iv) of this section. The program continues to an annual open enrollment period, a group cholesterol count, the plan will make satisfy the conditions of paragraph (f)(3)(iii), health plan provides a premium differential available a different, reasonable means of (iv), and (v) of this section. based on tobacco use, determined using a qualifying for the reward. In addition, all Example 4. (i) Facts. A group health plan health risk assessment. The following plan materials describing the terms of the will provide a reward to participants who statement is included in all plan materials program include the following statement: have a body mass index (BMI) that is 26 or describing the tobacco premium differential: ‘‘Your health plan wants to help you take lower, determined shortly before the ‘‘Stop smoking today! We can help! If you are charge of your health. Rewards are available beginning of the year. Any participant who a smoker, we offer a smoking cessation to all employees who participate in our does not meet the target BMI is given the program. If you complete the program, you Cholesterol Awareness Wellness Program. If same discount if the participant complies can avoid this surcharge.’’ The plan your cholesterol count is under 200, you will with an exercise program that consists of accommodates participants who smoke by receive the reward. If not, you will still have walking 150 minutes a week. Any participant facilitating their enrollment in a smoking an opportunity to qualify for the reward. We for whom it is unreasonably difficult due to cessation program that requires participation will work with you to find a Health Smart a medical condition to comply with this at a time and place that are not unreasonably program that is right for you.’’ Individual D walking program (and any participant for burdensome or impractical for participants, is identified as having a cholesterol count whom it is medically inadvisable to attempt and that is otherwise reasonably designed above 200. The plan partners D with a nurse to comply with the walking program) during based on all the relevant facts and who makes recommendations regarding diet the year is given the same discount if the circumstances. The plan pays the cost of the and exercise, with which it is not individual satisfies an alternative standard program. Any participant can avoid the unreasonably difficult due to a medical that is reasonable taking into consideration surcharge by participating in the program, condition of D or medically inadvisable for the individual’s medical situation, is not regardless of whether the participant stops D to comply, and which is otherwise unreasonably burdensome or impractical to smoking. reasonably designed, based on all the comply with, and is otherwise reasonably (ii) Conclusion. In this Example 5, the relevant facts and circumstances. In addition, designed based on all the relevant facts and premium differential satisfies the the plan makes available to all other circumstances. All plan materials describing requirements of paragraphs (f)(3)(iii), (iv), individuals who do not meet the cholesterol the terms of the wellness program include and (v) of this section. The program’s initial standard a different, reasonable means of the following statement: ‘‘Fitness is Easy! standard for obtaining a reward is dependent qualifying for the reward which is not Start Walking! Your health plan cares about on the results of a health risk assessment, unreasonably burdensome or impractical. D your health. If you are overweight, our Start which is a screening. However, the plan is will qualify for the discount if D follows the Walking program will help you lose weight reasonably designed under paragraph recommendations regardless of whether D and feel better. We will help you enroll. (** If (f)(3)(iv) because the plan provides a achieves a cholesterol count that is under your doctor says that walking isn’t right for different, reasonable means of qualifying for 200. you, that’s okay too. We will develop a the reward to all tobacco users. The plan (ii) Conclusion. In this Example 2, the wellness program that is.)’’ Individual is discloses, in all materials describing the program satisfies the requirements of unable to achieve a BMI that is 26 or lower terms of the program, the availability of other paragraphs (f)(3)(iii), (iv), and (v) of this within the plan’s timeframe and is also not means of qualifying for the reward. Thus, the section. The program’s initial standard for reasonably able to comply with the walking plan satisfies paragraphs (f)(3)(iii), (iv), and obtaining a reward is dependent on the program. E proposes a program based on the (v) of this section. results of a cholesterol screening, which is recommendations of E’s physician. The plan Example 6. (i) Facts. Same facts as related to a health factor. However, the agrees to make the discount available to E, Example 5, except the plan does not facilitate program is reasonably designed under but only if E actually follows the physician’s F’s enrollment in any program. Instead the paragraphs (f)(3)(iii) and (iv) of this section recommendations. plan advises F to find a program, pay for it, because the plan makes available to all (ii) Conclusion. In this Example 4, the and provide a certificate of completion to the individuals who do not meet the cholesterol program satisfies the requirements of plan.

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(ii) Conclusion. In this Example 6, the (f) Nondiscriminatory wellness (iii) A program that encourages requirement for F to find and pay for F’s own programs—in general. A wellness preventive care through the waiver of smoking cessation program means that the program is a program of health the copayment or deductible alternative program is not reasonable. requirement under a group health plan Accordingly, the plan has not offered a promotion or disease prevention. reasonable alternative standard that complies Paragraphs (b)(2)(ii) and (c)(3) of this for the costs of, for example, prenatal with paragraphs (f)(3)(iii) and (iv) of this section provide exceptions to the care or well-baby visits. (Note that, with section and the premium differential violates general prohibitions against respect to non-grandfathered plans, paragraph (c) of this section. discrimination based on a health factor section 2590.715–2713 of this Part * * * * * for plan provisions that vary benefits requires benefits for certain preventive Par. 3. Section 54.9815–2705 is added (including cost-sharing mechanisms) or health services without the imposition to read as follows: the premium or contribution for of cost sharing.) similarly situated individuals in (iv) A program that reimburses § 54.9815–2705 Prohibiting discrimination connection with a wellness program employees for the costs of participating, against participants and beneficiaries or that otherwise provides a reward for based on a health factor. that satisfies the requirements of this paragraph (f). If a wellness program is a participating, in a smoking cessation (a) In general. A group health plan participatory wellness program, as program without regard to whether the and a health insurance issuer offering defined in paragraph (f)(1) of this employee quits smoking. group health insurance coverage must section, that paragraph also makes clear (v) A program that provides a reward comply with the requirements of that the wellness program does not to employees for attending a monthly § 54.9802–1. Accordingly, with respect violate this section if participation in no-cost health education seminar. to health insurance issuers offering the program is made available to all (vi) A program that provides a reward group health insurance coverage, the similarly situated individuals. If a to employees who complete a health issuer is subject to the requirements of risk assessment regarding current health § 54.9802–1 to the same extent as a wellness program is a health-contingent wellness program, as defined in status, without any further action group health plan. (educational or otherwise) required by paragraph (f)(2) of this section, the (b) Applicability date. This section is the employee with regard to the health wellness program does not violate this applicable to group health plans and issues identified as part of the section if the requirements of paragraph health insurance issuers offering group assessment. (See also § 2590.702–1 for (f)(3) of this section are met. Except health insurance coverage for plan years rules prohibiting collection of genetic where expressly provided otherwise, beginning on or after January 1, 2014. information). See § 54.9815–1251T, which provides references in this section to an (2) Health-contingent wellness that the rules of this section do not individual obtaining a reward include programs defined. If any of the apply to grandfathered health plans. both obtaining a reward (such as a conditions for obtaining a reward under premium discount or rebate, a waiver of Department of Labor a wellness program is based on an all or part of a cost-sharing mechanism, individual satisfying a standard that is Employee Benefits Security an additional benefit, or any financial or related to a health factor, the wellness Administration other incentive) and avoiding a penalty program is a health-contingent wellness (such as the absence of a premium 29 CFR Chapter XXV program and the program is permissible surcharge, or other financial or under this section only if all of the 29 CFR Part 2590 is proposed to be nonfinancial disincentive). References requirements of paragraph (f)(3) of this amended as follows: in this section to a plan providing a section are satisfied. Examples of reward include both providing a reward health-contingent wellness programs PART 2590—RULES AND (such as a premium discount or rebate, REGULATIONS FOR GROUP HEALTH are: a waiver of all or part of a cost-sharing (i) A program that imposes a premium PLANS mechanism, an additional benefit, or surcharge based on tobacco use. 1. The authority citation for Part 2590 any financial or other incentive) and (ii) A program that uses a biometric continues to read as follows: imposing a penalty (such as a surcharge screening or a health risk assessment to or other financial or nonfinancial identify employees with specified Authority: 29 U.S.C. 1027, 1059, 1135, disincentive). 1161–1168, 1169, 1181–1183, 1181 note, medical conditions or risk factors (such 1185, 1185a, 1185b, 1185d, 1191, 1191a, (1) Participatory wellness programs as high cholesterol, high blood pressure, 1191b, and 1191c; sec. 101(g), Pub. L. 104– defined. If none of the conditions for unhealthy body mass index, or high 191, 110 Stat. 1936; sec. 401(b), Pub. L. 105– obtaining a reward under a wellness glucose level) and provides a reward to 200, 112 Stat. 645 (42 U.S.C. 651 note); sec. program is based on an individual employees identified as within a normal 12(d), Pub. L. 110–343, 122 Stat. 3881; sec. satisfying a standard that is related to a or healthy range for biometrics (or at 1001, 1201, and 1562(e), Pub. L. 111–148, health factor (or if a wellness program low risk for certain medical conditions), 124 Stat. 119, as amended by Pub. L. 111– does not provide a reward), the wellness 152, 124 Stat. 1029; Secretary of Labor’s while requiring employees who are Order 3–2010, 75 FR 55354 (September 10, program is a participatory wellness identified as outside the normal or 2010). program and, if participation in the healthy range (or at risk) to take program is made available to all additional steps (such as meeting with Subpart B—Health Coverage similarly situated individuals, does not a health coach, taking a health or fitness Portability, Nondiscrimination, and violate this section. Examples of course, adhering to a health Renewability participatory wellness programs are: improvement action plan, or complying (i) A program that reimburses all or 2. Section 2590.702 is amended by with a health care provider’s plan of part of the cost for membership in a revising paragraph (f) to read as follows: care) to obtain the same reward. fitness center. (3) Requirements for health- § 2590.702 Prohibiting discrimination (ii) A diagnostic testing program that contingent wellness programs. A health- against participants and beneficiaries provides a reward for participation and contingent wellness program does not based on a health factor. does not base any part of the reward on violate this section if all of the following * * * * * outcomes. requirements are satisfied:

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(i) Frequency of opportunity to paragraph (f)(3)(ii) because the reward for the otherwise applicable standard) for qualify. The program must give wellness program (absence of a $1,000 obtaining the reward for any individual individuals eligible for the program the surcharge), does not exceed 50 percent of the for whom, for that period, it is total annual cost of employee-only coverage, opportunity to qualify for the reward × unreasonably difficult due to a medical under the program at least once per $3,000. ($6,000 50% = $3,000.) condition to satisfy the otherwise Example 3. (i) Facts. Same facts as year. Example 1, except that, in addition to the applicable standard; and (ii) Size of reward. The reward for a $600 reward for compliance with the health- (2) The program allows a reasonable health-contingent wellness program, contingent wellness program, the plan also alternative standard (or waiver of the together with the reward for other imposes an additional $2,000 tobacco otherwise applicable standard) for health-contingent wellness programs premium surcharge on employees who have obtaining the reward for any individual with respect to the plan, must not used tobacco in the last 12 months and who for whom, for that period, it is exceed the applicable percentage of the are not enrolled in the plan’s tobacco medically inadvisable to attempt to total cost of employee-only coverage cessation program. (Those who participate in satisfy the otherwise applicable under the plan, as defined in this the plan’s tobacco cessation program are not standard. paragraph (f)(3)(ii). However, if, in assessed the $2,000 surcharge.) (B) While plans and issuers are not (ii) Conclusion. In this Example 3, the required to determine a particular addition to employees, any class of program satisfies the requirements of this dependents (such as spouses, or spouses paragraph (f)(3)(ii) because: Both the total of alternative standard in advance of an and dependent children) may all rewards (including absence of a surcharge individual’s request for one, if an participate in the wellness program, the for participating in the tobacco program) is individual is described in either reward must not exceed the applicable $2,600 ($600 + $2,000 = $2,600), which does paragraph (f)(3)(iii)(A)(1) or (2) of this percentage of the total cost of the not exceed 50 percent of the total annual cost section, a reasonable alternative coverage in which an employee and any of employee-only coverage ($3,000); and, standard must be furnished by the plan dependents are enrolled. For purposes tested separately, the $600 reward for the or issuer upon the individual’s request of this paragraph (f)(3)(ii), the cost of wellness program unrelated to tobacco use or the condition for obtaining the coverage is determined based on the does not exceed 30 percent of the total reward must be waived. All the facts annual cost of employee-only coverage, and circumstances are taken into total amount of employer and employee $1,800. contributions for the benefit package Example 4. (i) Facts. An employer sponsors account in determining whether a plan under which the employee is (or the a group health plan. The total annual or issuer has furnished a reasonable employee and any dependents are) premium for employee-only coverage alternative standard, including but not receiving coverage. (including both employer and employee limited to the following: (A) Applicable percentage. For contributions towards the coverage) is (1) If the reasonable alternative purposes of this paragraph (f)(3)(ii), the $5,000. The plan provides a $250 reward to standard is completion of an applicable percentage is 30 percent, employees who complete a health risk educational program, the plan or issuer except that the applicable percentage is assessment, without regard to the health must make the educational program increased an additional 20 percentage issues identified as part of the assessment. available instead of requiring an points (to 50 percent) to the extent that The plan also offers a Healthy Heart program, individual to find such a program which is a health-contingent wellness unassisted, and may not require an the additional percentage is in program under paragraph (f)(2) of this connection with a program designed to section, with an opportunity to earn a $1,500 individual to pay for the cost of the prevent or reduce tobacco use. reward. program. (B) Examples. The rules of this (ii) Conclusion. In this Example 4, the plan (2) If the reasonable alternative paragraph (f)(3)(ii) are illustrated by the satisfies the requirements of this paragraph standard is a diet program, plans and following examples: (f)(3)(ii). Even though the total reward for all issuers are not required to pay for the Example 1. (i) Facts. An employer sponsors wellness programs under the plan is $1,750 cost of food but must pay any a group health plan. The annual premium for ($250 + $1,500 = $1,750, which exceeds 30 membership or participation fee. percent of the cost of the annual premium for (3) If the reasonable alternative employee-only coverage is $6,000 (of which × the employer pays $4,500 per year and the employee-only coverage ($5,000 30% = standard is compliance with the employee pays $1,500 per year). The plan $1,500)), only the reward offered for recommendations of a medical compliance with the health-contingent offers employees a health-contingent professional who is an employee or wellness program focused on exercise, blood wellness program ($1,500) is taken into account in determining whether the rules of agent of the plan or issuer, and an sugar, weight, cholesterol, and blood individual’s personal physician states pressure. The reward for compliance is an this paragraph (f)(3)(ii) are met. (The $250 annual premium rebate of $600. reward is offered in connection with a that the plan’s recommendations are not (ii) Conclusion. In this Example 1, the participatory wellness program and therefore medically appropriate for that program satisfies the requirements of this is not taken into account under this individual, the plan or issuer must paragraph (f)(3)(ii) because the reward for the paragraph (f)(3)(ii)). The health-contingent provide a reasonable alternative wellness program, $600, does not exceed 30 wellness program offers a reward that does standard that accommodates the percent of the total annual cost of employee- not exceed 30 percent of the total annual cost recommendations of the individual’s × of employee-only coverage. only coverage, $1,800. ($6,000 30% = personal physician with regard to $1,800.) (iii) Uniform availability and Example 2. (i) Facts. Same facts as medical appropriateness. Plans and Example 1, except the wellness program is reasonable alternative standards. The issuers may impose standard cost exclusively a tobacco prevention program. reward under the program must be sharing under the plan or coverage for Employees who have used tobacco in the last available to all similarly situated medical items and services furnished 12 months and who are not enrolled in the individuals. pursuant to the physician’s plan’s tobacco cessation program are charged (A) Under this paragraph (f)(3)(iii), a recommendations. a $1,000 premium surcharge (in addition to reward under a program is not available (C) If reasonable under the their employee contribution towards the to all similarly situated individuals for circumstances, a plan or issuer may seek coverage). (Those who participate in the plan’s tobacco cessation program are not a period unless the program meets both verification, such as a statement from an assessed the $1,000 surcharge.) of the following requirements: individual’s personal physician, that a (ii) Conclusion. In this Example 2, the (1) The program allows a reasonable health factor makes it unreasonably program satisfies the requirements of this alternative standard (or waiver of the difficult for the individual to satisfy, or

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medically inadvisable for the individual (4) Examples. The rules of paragraphs results of a cholesterol screening, which is to attempt to satisfy, the otherwise (f)(3)(iii), (iv), and (v) of this section are related to a health factor. However, the applicable standard. It would not be illustrated by the following examples: program is reasonably designed under reasonable, for example, for a plan and paragraphs (f)(3)(iii) and (iv) of this section Example 1. (i) Facts. A group health plan because the plan makes available to all issuer to seek verification of a claim that provides a reward to individuals who individuals who do not meet the cholesterol is obviously valid based on the nature participate in a reasonable specified walking standard a different, reasonable means of of the individual’s medical condition program. If it is unreasonably difficult due to qualifying for the reward and because the that is known to the plan or issuer. a medical condition for an individual to program is otherwise reasonably designed However, plans and issuers may seek participate (or if it is medically inadvisable based on all the relevant facts and verification in the case of claims for for an individual to participate), the plan will circumstances. The plan also discloses in all which it is reasonable to determine that waive the walking program requirement and materials describing the terms of the program medical judgment is required to provide the reward. All materials describing the opportunity to qualify for the reward the terms of the walking program disclose the through other means. Thus, the program evaluate the validity of the claim. availability of the waiver. (iv) Reasonable design. The program satisfies paragraphs (f)(3)(iii), (iv), and (v) of (ii) Conclusion. The program satisfies the this section. must be reasonably designed to promote requirements of paragraph (f)(3)(iii) of this Example 3. (i) Facts. Same facts as health or prevent disease. A program section because the reward under the Example 2, except that, following diet and satisfies this standard if it has a program is available to all similarly situated exercise, D again fails to achieve a cholesterol reasonable chance of improving the individuals because it accommodates count that is under 200, and the program health of, or preventing disease in, individuals who cannot participate in the requires D to visit a doctor and follow any participating individuals and it is not walking program due to a medical condition additional recommendations of D’s doctor overly burdensome, is not a subterfuge (or for whom it would be medically with respect to D’s cholesterol. The program for discriminating based on a health inadvisable to attempt to participate) by permits D to select D’s own doctor for this factor, and is not highly suspect in the providing them the reward even if they do purpose. D visits D’s doctor, who determines not participate in the walking program (that D should take a prescription medication for method chosen to promote health or is, by waiving the condition). The program cholesterol. In addition, the doctor prevent disease. This determination is satisfies the requirements of paragraph determines that D must be monitored through based on all the relevant facts and (f)(3)(iv) of this section because the walking periodic blood tests to continually reevaluate circumstances. To the extent a plan’s program is reasonably designed to promote D’s health status. The plan accommodates D initial standard for obtaining a reward health and prevent disease. Last, the plan by making the discount available to D, but (including a portion of a reward) is complies with the disclosure requirement of only if D actually follows the advice of D’s based on the results of a measurement, paragraph (f)(3)(v) of this section. Thus, the doctor’s regarding medication and blood test, or screening relating to a health plan satisfies paragraphs (f)(3)(iii), (iv), and tests. factor (such as a biometric examination (v) of this section. (ii) Conclusion. In this Example 3, the or a health risk assessment), the plan Example 2. (i) Facts. A group health plan program’s requirements to follow up with, offers a reward to individuals who achieve a and follow the recommendations of, D’s must make available to any individual count under 200 on a cholesterol test. If a doctor do not make the program who does not meet the standard based participant does not achieve the targeted unreasonable under paragraphs (f)(3)(iii) or on the measurement, test, or screening cholesterol count, the plan will make (iv) of this section. The program continues to a different, reasonable means of available a different, reasonable means of satisfy the conditions of paragraphs (f)(3)(iii), qualifying for the reward. qualifying for the reward. In addition, all (iv), and (v) of this section. (v) Notice of availability of other plan materials describing the terms of the Example 4. (i) Facts. A group health plan means of qualifying for the reward. (A) program include the following statement: will provide a reward to participants who The plan or issuer must disclose in all ‘‘Your health plan wants to help you take have a body mass index (BMI) that is 26 or plan materials describing the terms of charge of your health. Rewards are available lower, determined shortly before the the program the availability of other to all employees who participate in our beginning of the year. Any participant who means of qualifying for the reward or Cholesterol Awareness Wellness Program. If does not meet the target BMI is given the your cholesterol count is under 200, you will same discount if the participant complies the possibility of waiver of the receive the reward. If not, you will still have with an exercise program that consists of otherwise applicable standard. If plan an opportunity to qualify for the reward. We walking 150 minutes a week. Any participant materials merely mention that a will work with you to find a Health Smart for whom it is unreasonably difficult due to program is available, without describing program that is right for you.’’ Individual D a medical condition to comply with this its terms, this disclosure is not required. is identified as having a cholesterol count walking program (and any participant for (B) The following language, or above 200. The plan partners D with a nurse whom it is medically inadvisable to attempt substantially similar language, can be who makes recommendations regarding diet to comply with the walking program) during used to satisfy the notice requirement of and exercise, with which it is not the year is given the same discount if the this paragraph (f)(3)(v): ‘‘Your health unreasonably difficult due to a medical individual satisfies an alternative standard plan is committed to helping you condition of D or medically inadvisable for that is reasonable taking into consideration achieve your best health status. Rewards D to comply, and which is otherwise the individual’s medical situation, is not reasonably designed, based on all the unreasonably burdensome or impractical to for participating in a wellness program relevant facts and circumstances. In addition, comply with, and is otherwise reasonably are available to all employees. If you the plan makes available to all other designed based on all the relevant facts and think you might be unable to meet a individuals who do not meet the cholesterol circumstances. All plan materials describing standard for a reward under this standard a different, reasonable means of the terms of the wellness program include wellness program, you might qualify for qualifying for the reward which is not the following statement: ‘‘Fitness is Easy! an opportunity to earn the same reward unreasonably burdensome or impractical. D Start Walking! Your health plan cares about by different means. Contact us at [insert will qualify for the discount if D follows the your health. If you are overweight, our Start contact information] and we will work recommendations regardless of whether D Walking program will help you lose weight with you to find a wellness program achieves a cholesterol count that is under and feel better. We will help you enroll. (**If 200. your doctor says that walking isn’t right for with the same reward that is right for (ii) Conclusion. In this Example 2, the you, that’s okay too. We will develop a you in light of your health status.’’ program satisfies the requirements of wellness program that is.)’’ Individual E is Additional sample language is provided paragraphs (f)(3)(iii), (iv), and (v) of this unable to achieve a BMI that is 26 or lower in the examples of paragraph (f)(4) of section. The program’s initial standard for within the plan’s timeframe and is also not this section. obtaining a reward is dependent on the reasonably able to comply with the walking

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program. E proposes a program based on the plan satisfies paragraphs (f)(3)(iii), (iv), and (f) Nondiscriminatory wellness recommendations of E’s physician. The plan (v) of this section. programs—in general. A wellness agrees to make the discount available to E, Example 6. (i) Facts. Same facts as program is a program of health but only if E actually follows the physician’s Example 5, except the plan does not facilitate promotion or disease prevention. recommendations. F’s enrollment in any program. Instead the (ii) Conclusion. In this Example 4, the plan advises F to find a program, pay for it, Paragraphs (b)(2)(ii) and (c)(3) of this program satisfies the requirements of and provide a certificate of completion to the section provide exceptions to the paragraphs (f)(3)(iii), (iv), and (v) of this plan. general prohibitions against section. The program’s initial standard for (ii) Conclusion. In this Example 6, the discrimination based on a health factor obtaining a reward is dependent on the requirement for F to find and pay for F’s own for plan provisions that vary benefits results of a BMI screening, which is related smoking cessation program means that the (including cost-sharing mechanisms) or to a health factor. However, the plan alternative program is not reasonable. the premium or contribution for complies with the requirements of paragraph Accordingly, the plan has not offered a similarly situated individuals in (f)(3)(iv) of this section because it makes reasonable alternative standard that complies connection with a wellness program available to all individuals who do not satisfy with paragraphs (f)(3)(iii) and (iv) of this the BMI standard a different reasonable section and the premium differential violates that satisfies the requirements of this means of qualifying for the reward (a walking paragraph (c) of this section. paragraph (f). If a wellness program is a program that is not unreasonably participatory wellness program, as * * * * * burdensome or impractical for individuals to defined in paragraph (f)(1) of this comply with and that is otherwise reasonably Subpart C—Other Requirements section, that paragraph also makes clear designed based on all the relevant facts and that the wellness program does not circumstances). In addition, the plan 3. Section 2590.715–2705 is added to violate this section if participation in complies with the requirements of paragraph read as follows: (f)(3)(iii) of this section because, if there are the program is made available to all individuals for whom it is unreasonably § 2590.715–2705 Prohibiting similarly situated individuals. If a difficult due to a medical condition to discrimination against participants and wellness program is a health-contingent comply, or for whom it is medically beneficiaries based on a health factor. wellness program, as defined in inadvisable to attempt to comply, with the (a) In general. A group health plan paragraph (f)(2) of this section, the walking program, the plan provides a and a health insurance issuer offering wellness program does not violate this reasonable alternative to those individuals. section if the requirements of paragraph Moreover, the plan satisfies the requirements group health insurance coverage must comply with the requirements of (f)(3) of this section are met. Except of paragraph (f)(3)(v) of this section because where expressly provided otherwise, it discloses, in all materials describing the § 2590.702. terms of the program, the availability of other (b) Applicability date. This section is references in this section to an means of qualifying for the reward or the applicable to group health plans and individual obtaining a reward include possibility of waiver of the otherwise health insurance issuers offering group both obtaining a reward (such as a applicable standard. Thus, the plan satisfies health insurance coverage for plan years premium discount or rebate, a waiver of paragraphs (f)(3)(iii), (iv), and (v) of this beginning on or after January 1, 2014. all or part of a cost-sharing mechanism, section. See § 2590.715–1251, which provides an additional benefit, or any financial or Example 5. (i) Facts. In conjunction with that the rules of this section do not other incentive) and avoiding a penalty an annual open enrollment period, a group apply to grandfathered health plans. (such as the absence of a premium health plan provides a premium differential surcharge, or other financial or based on tobacco use, determined using a Department of Health and Human nonfinancial disincentive). References health risk assessment. The following Services statement is included in all plan materials in this section to a plan providing a describing the tobacco premium differential: 45 CFR Subtitle A reward include both providing a reward (such as a premium discount or rebate, ‘‘Stop smoking today! We can help! If you are For the reasons stated in the a smoker, we offer a smoking cessation a waiver of all or part of a cost-sharing program. If you complete the program, you preamble, the Department of Health and mechanism, an additional benefit, or can avoid this surcharge.’’ The plan Human Services proposes to amend 45 any financial or other incentive) and accommodates participants who smoke by CFR Parts 146 and 147 as follows: imposing a penalty (such as a surcharge facilitating their enrollment in a smoking or other financial or nonfinancial cessation program that requires participation PART 146—REQUIREMENTS FOR THE at a time and place that are not unreasonably GROUP HEALTH INSURANCE disincentive). burdensome or impractical for participants, MARKET (1) Participatory wellness programs and that is otherwise reasonably designed defined. If none of the conditions for based on all the relevant facts and 1. The authority citation for Part 146 obtaining a reward under a wellness circumstances. The plan pays the cost of the continues to read as follows: program is based on an individual program. Any participant can avoid the Authority: Secs. 2702 through 2705, 2711 satisfying a standard that is related to a surcharge by participating in the program, through 2723, 2791, and 2792 of the PHS Act health factor (or if a wellness program regardless of whether the participant stops (42 U.S.C. 300gg–1 through 300gg–5, 300gg– does not provide a reward), the wellness smoking. 11 through 300gg–23, 300gg–91, and 300gg– program is a participatory wellness (ii) Conclusion. In this Example 5, the 92) (1996). premium differential satisfies the program and, if participation in the Section 146.121 is also issued under secs. program is made available to all requirements of paragraphs (f)(3)(iii), (iv), 2701 through 2763, 2791, and 2792 of the and (v) of this section. The program’s initial Public Health Service Act (42 U.S.C. 300gg similarly situated individuals, does not standard for obtaining a reward is dependent through 300gg–63, 300gg–91, and 300gg–92), violate this section. Examples of on the results of a health risk assessment, as amended (2010). participatory wellness programs are: which is a screening. However, the plan is (i) A program that reimburses all or 2. In § 146.121, paragraph (f) is reasonably designed under paragraph part of the cost for membership in a revised to read as follows: (f)(3)(iv) because the plan provides a fitness center. different, reasonable means of qualifying for the reward to all tobacco users. The plan § 146.121 Prohibiting discrimination (ii) A diagnostic testing program that discloses, in all materials describing the against participants and beneficiaries provides a reward for participation and terms of the program, the availability of other based on a health factor. does not base any part of the reward on means of qualifying for the reward. Thus, the * * * * * outcomes.

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(iii) A program that encourages (i) Frequency of opportunity to paragraph (f)(3)(ii) because the reward for the preventive care through the waiver of qualify. The program must give wellness program (absence of a $1,000 the copayment or deductible individuals eligible for the program the surcharge), does not exceed 50 percent of the total annual cost of employee-only coverage, requirement under a group health plan opportunity to qualify for the reward × for the costs of, for example, prenatal under the program at least once per $3,000. ($6,000 50% = $3,000.) Example 3. (i) Facts. Same facts as care or well-baby visits. (Note that, with year. Example 1, except that, in addition to the respect to non-grandfathered plans, (ii) Size of reward. The reward for a $600 reward for compliance with the health- § 147.130 of this subchapter requires health-contingent wellness program, contingent wellness program, the plan also benefits for certain preventive health together with the reward for other imposes an additional $2,000 tobacco services without the imposition of cost health-contingent wellness programs premium surcharge on employees who have sharing.) with respect to the plan, must not used tobacco in the last 12 months and who (iv) A program that reimburses exceed the applicable percentage of the are not enrolled in the plan’s tobacco employees for the costs of participating, total cost of employee-only coverage cessation program. (Those who participate in or that otherwise provides a reward for under the plan, as defined in this the plan’s tobacco cessation program are not participating, in a smoking cessation paragraph (f)(3)(ii). However, if, in assessed the $2,000 surcharge.) addition to employees, any class of (ii) Conclusion. In this Example 3, the program without regard to whether the program satisfies the requirements of this employee quits smoking. dependents (such as spouses, or spouses paragraph (f)(3)(ii) because both: The total of (v) A program that provides a reward and dependent children) may all rewards (including absence of a surcharge to employees for attending a monthly participate in the wellness program, the for participating in the tobacco program) is no-cost health education seminar. reward must not exceed the applicable $2,600 ($600 + $2,000 = $2,600), which does (vi) A program that provides a reward percentage of the total cost of the not exceed 50 percent of the total annual cost to employees who complete a health coverage in which an employee and any of employee-only coverage ($3,000); and, risk assessment regarding current health dependents are enrolled. For purposes tested separately, the $600 reward for the status, without any further action of this paragraph (f)(3)(ii), the cost of wellness program unrelated to tobacco use (educational or otherwise) required by coverage is determined based on the does not exceed 30 percent of the total the employee with regard to the health total amount of employer and employee annual cost of employee-only coverage, issues identified as part of the $1,800. contributions for the benefit package Example 4. (i) Facts. An employer sponsors assessment. (See also § 146.122 for rules under which the employee is (or the a group health plan. The total annual prohibiting collection of genetic employee and any dependents are) premium for employee-only coverage information). receiving coverage. (including both employer and employee (2) Health-contingent wellness (A) Applicable percentage. For contributions towards the coverage) is programs defined. If any of the purposes of this paragraph (f)(3)(ii), the $5,000. The plan provides a $250 reward to conditions for obtaining a reward under applicable percentage is 30 percent, employees who complete a health risk a wellness program is based on an except that the applicable percentage is assessment, without regard to the health individual satisfying a standard that is increased an additional 20 percentage issues identified as part of the assessment. related to a health factor, the wellness points (to 50 percent) to the extent that The plan also offers a Healthy Heart program, program is a health-contingent wellness which is a health-contingent wellness the additional percentage is in program under paragraph (f)(2) of this program and the program is permissible connection with a program designed to section, with an opportunity to earn a $1,500 under this section only if all of the prevent or reduce tobacco use. reward. requirements of paragraph (f)(3) of this (B) Examples. The rules of this (ii) Conclusion. In this Example 4, the plan section are satisfied. Examples of paragraph (f)(3)(ii) are illustrated by the satisfies the requirements of this paragraph health-contingent wellness programs following examples: (f)(3)(ii). Even though the total reward for all are: Example 1. (i) Facts. An employer sponsors wellness programs under the plan is $1,750 (i) A program that imposes a premium a group health plan. The annual premium for ($250 + $1,500 = $1,750, which exceeds 30 surcharge based on tobacco use. percent of the cost of the annual premium for employee-only coverage is $6,000 (of which × (ii) A program that uses a biometric the employer pays $4,500 per year and the employee-only coverage ($5,000 30% = screening or a health risk assessment to employee pays $1,500 per year). The plan $1,500)), only the reward offered for compliance with the health-contingent identify employees with specified offers employees a health-contingent wellness program focused on exercise, blood wellness program ($1,500) is taken into medical conditions or risk factors (such account in determining whether the rules of as high cholesterol, high blood pressure, sugar, weight, cholesterol, and blood pressure. The reward for compliance is an this paragraph (f)(3)(ii) are met. (The $250 unhealthy body mass index, or high annual premium rebate of $600. reward is offered in connection with a glucose level) and provides a reward to (ii) Conclusion. In this Example 1, the participatory wellness program and therefore employees identified as within a normal program satisfies the requirements of this is not taken into account under this or healthy range for biometrics (or at paragraph (f)(3)(ii) because the reward for the paragraph (f)(3)(ii)). The health-contingent low risk for certain medical conditions), wellness program, $600, does not exceed 30 wellness program offers a reward that does while requiring employees who are percent of the total annual cost of employee- not exceed 30 percent of the total annual cost × of employee-only coverage. identified as outside the normal or only coverage, $1,800. ($6,000 30% = $1,800.) (iii) Uniform availability and healthy range (or at risk) to take Example 2. (i) Facts. Same facts as additional steps (such as meeting with Example 1, except the wellness program is reasonable alternative standards. The a health coach, taking a health or fitness exclusively a tobacco prevention program. reward under the program must be course, adhering to a health Employees who have used tobacco in the last available to all similarly situated improvement action plan, or complying 12 months and who are not enrolled in the individuals. with a health care provider’s plan of plan’s tobacco cessation program are charged (A) Under this paragraph (f)(3)(iii), a care) to obtain the same reward. a $1,000 premium surcharge (in addition to reward under a program is not available (3) Requirements for health- their employee contribution towards the to all similarly situated individuals for coverage). (Those who participate in the contingent wellness programs. A health- plan’s tobacco cessation program are not a period unless the program meets both contingent wellness program does not assessed the $1,000 surcharge.) of the following requirements: violate this section if all of the following (ii) Conclusion. In this Example 2, the (1) The program allows a reasonable requirements are satisfied: program satisfies the requirements of this alternative standard (or waiver of the

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otherwise applicable standard) for medically inadvisable for the individual (4) Examples. The rules of paragraphs obtaining the reward for any individual to attempt to satisfy, the otherwise (f)(3)(iii), (iv), and (v) of this section are for whom, for that period, it is applicable standard. It would not be illustrated by the following examples: unreasonably difficult due to a medical reasonable, for example, for a plan and Example 1. (i) Facts. A group health plan condition to satisfy the otherwise issuer to seek verification of a claim that provides a reward to individuals who applicable standard; and is obviously valid based on the nature participate in a reasonable specified walking (2) The program allows a reasonable of the individual’s medical condition program. If it is unreasonably difficult due to alternative standard (or waiver of the that is known to the plan or issuer. a medical condition for an individual to otherwise applicable standard) for However, plans and issuers may seek participate (or if it is medically inadvisable obtaining the reward for any individual verification in the case of claims for for an individual to participate), the plan will for whom, for that period, it is which it is reasonable to determine that waive the walking program requirement and medically inadvisable to attempt to medical judgment is required to provide the reward. All materials describing satisfy the otherwise applicable the terms of the walking program disclose the evaluate the validity of the claim. availability of the waiver. standard. (iv) Reasonable design. The program (ii) Conclusion. The program satisfies the (B) While plans and issuers are not must be reasonably designed to promote requirements of paragraph (f)(3)(iii) of this required to determine a particular health or prevent disease. A program section because the reward under the alternative standard in advance of an satisfies this standard if it has a program is available to all similarly situated individual’s request for one, if an reasonable chance of improving the individuals because it accommodates individual is described in either health of, or preventing disease in, individuals who cannot participate in the paragraph (f)(3)(iii)(A)(1) or (2) of this participating individuals and it is not walking program due to a medical condition section, a reasonable alternative overly burdensome, is not a subterfuge (or for whom it would be medically standard must be furnished by the plan for discriminating based on a health inadvisable to attempt to participate) by or issuer upon the individual’s request factor, and is not highly suspect in the providing them the reward even if they do or the condition for obtaining the not participate in the walking program (that method chosen to promote health or is, by waiving the condition). The program reward must be waived. All the facts prevent disease. This determination is satisfies the requirements of paragraph and circumstances are taken into based on all the relevant facts and (f)(3)(iv) of this section because the walking account in determining whether a plan circumstances. To the extent a plan’s program is reasonably designed to promote or issuer has furnished a reasonable initial standard for obtaining a reward health and prevent disease. Last, the plan alternative standard, including but not (including a portion of a reward) is complies with the disclosure requirement of limited to the following: based on the results of a measurement, paragraph (f)(3)(v) of this section. Thus, the (1) If the reasonable alternative test, or screening relating to a health plan satisfies paragraphs (f)(3)(iii), (iv), and standard is completion of an factor (such as a biometric examination (v) of this section. educational program, the plan or issuer or a health risk assessment), the plan Example 2. (i) Facts. A group health plan offers a reward to individuals who achieve a must make the educational program must make available to any individual available instead of requiring an count under 200 on a cholesterol test. If a who does not meet the standard based participant does not achieve the targeted individual to find such a program on the measurement, test, or screening cholesterol count, the plan will make unassisted, and may not require an a different, reasonable means of available a different, reasonable means of individual to pay for the cost of the qualifying for the reward. qualifying for the reward. In addition, all program. (v) Notice of availability of other plan materials describing the terms of the (2) If the reasonable alternative means of qualifying for the reward. (A) program include the following statement: standard is a diet program, plans and The plan or issuer must disclose in all ‘‘Your health plan wants to help you take issuers are not required to pay for the plan materials describing the terms of charge of your health. Rewards are available cost of food but must pay any the program the availability of other to all employees who participate in our membership or participation fee. means of qualifying for the reward or Cholesterol Awareness Wellness Program. If (3) If the reasonable alternative your cholesterol count is under 200, you will the possibility of waiver of the receive the reward. If not, you will still have standard is compliance with the otherwise applicable standard. If plan an opportunity to qualify for the reward. We recommendations of a medical materials merely mention that a will work with you to find a Health Smart professional who is an employee or program is available, without describing program that is right for you.’’ Individual D agent of the plan or issuer, and an its terms, this disclosure is not required. is identified as having a cholesterol count individual’s personal physician states (B) The following language, or above 200. The plan partners D with a nurse that the plan’s recommendations are not substantially similar language, can be who makes recommendations regarding diet medically appropriate for that used to satisfy the notice requirement of and exercise, with which it is not individual, the plan or issuer must this paragraph (f)(3)(v): ‘‘Your health unreasonably difficult due to a medical provide a reasonable alternative plan is committed to helping you condition of D or medically inadvisable for achieve your best health status. Rewards D to comply, and which is otherwise standard that accommodates the reasonably designed, based on all the recommendations of the individual’s for participating in a wellness program relevant facts and circumstances. In addition, personal physician with regard to are available to all employees. If you the plan makes available to all other medical appropriateness. Plans and think you might be unable to meet a individuals who do not meet the cholesterol issuers may impose standard cost standard for a reward under this standard a different, reasonable means of sharing under the plan or coverage for wellness program, you might qualify for qualifying for the reward which is not medical items and services furnished an opportunity to earn the same reward unreasonably burdensome or impractical. D pursuant to the physician’s by different means. Contact us at [insert will qualify for the discount if D follows the recommendations. contact information] and we will work recommendations regardless of whether D (C) If reasonable under the with you to find a wellness program achieves a cholesterol count that is under 200. circumstances, a plan or issuer may seek with the same reward that is right for (ii) Conclusion. In this Example 2, the verification, such as a statement from an you in light of your health status.’’ program satisfies the requirements of individual’s personal physician, that a Additional sample language is provided paragraphs (f)(3)(iii), (iv), and (v) of this health factor makes it unreasonably in the examples of paragraph (f)(4) of section. The program’s initial standard for difficult for the individual to satisfy, or this section. obtaining a reward is dependent on the

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results of a cholesterol screening, which is within the plan’s timeframe and is also not the reward to all tobacco users. The plan related to a health factor. However, the reasonably able to comply with the walking discloses, in all materials describing the program is reasonably designed under program. E proposes a program based on the terms of the program, the availability of other paragraphs (f)(3)(iii) and (iv) of this section recommendations of E’s physician. The plan means of qualifying for the reward. Thus, the because the plan makes available to all agrees to make the discount available to E, plan satisfies paragraphs (f)(3)(iii), (iv), and individuals who do not meet the cholesterol but only if E actually follows the physician’s (v) of this section. standard a different, reasonable means of recommendations. Example 6. (i) Facts. Same facts as qualifying for the reward and because the (ii) Conclusion. In this Example 4, the Example 5, except the plan does not facilitate program is otherwise reasonably designed program satisfies the requirements of F’s enrollment in any program. Instead the based on all the relevant facts and paragraphs (f)(3)(iii), (iv), and (v) of this plan advises F to find a program, pay for it, circumstances. The plan also discloses in all section. The program’s initial standard for and provide a certificate of completion to the materials describing the terms of the program obtaining a reward is dependent on the plan. the opportunity to qualify for the reward results of a BMI screening, which is related (ii) Conclusion. In this Example 6, the through other means. Thus, the program to a health factor. However, the plan requirement for F to find and pay for F’s own satisfies paragraphs (f)(3)(iii), (iv), and (v) of complies with the requirements of paragraph smoking cessation program means that the this section. (f)(3)(iv) of this section because it makes alternative program is not reasonable. Example 3. (i) Facts. Same facts as available to all individuals who do not satisfy Accordingly, the plan has not offered a Example 2, except that, following diet and the BMI standard a different reasonable reasonable alternative standard that complies exercise, D again fails to achieve a cholesterol means of qualifying for the reward (a walking with paragraphs (f)(3)(iii) and (iv) of this count that is under 200, and the program program that is not unreasonably section and the premium differential violates requires D to visit a doctor and follow any burdensome or impractical for individuals to paragraph (c) of this section. additional recommendations of D’s doctor comply with and that is otherwise reasonably with respect to D’s cholesterol. The program designed based on all the relevant facts and * * * * * permits D to select D’s own doctor for this circumstances). In addition, the plan purpose. D visits D’s doctor, who determines complies with the requirements of paragraph PART 147—HEALTH INSURANCE D should take a prescription medication for (f)(3)(iii) of this section because, if there are REFORM REQUIREMENTS FOR THE cholesterol. In addition, the doctor individuals for whom it is unreasonably GROUP AND INDIVIDUAL HEALTH determines that D must be monitored through difficult due to a medical condition to INSURANCE MARKETS periodic blood tests to continually reevaluate comply, or for whom it is medically D’s health status. The plan accommodates D inadvisable to attempt to comply, with the 3. The authority citation for Part 147 by making the discount available to D, but walking program, the plan provides a continues to read as follows: only if D actually follows the advice of D’s reasonable alternative to those individuals. doctor’s regarding medication and blood Moreover, the plan satisfies the requirements Authority: Secs. 2701 through 2763, 2791, tests. of paragraph (f)(3)(v) of this section because and 2792 of the Public Health Service Act (42 (ii) Conclusion. In this Example 3, the it discloses, in all materials describing the U.S.C. 300gg through 300gg–63, 300gg–91, program’s requirements to follow up with, terms of the program, the availability of other and 300gg–92), as amended (2010). and follow the recommendations of, D’s means of qualifying for the reward or the doctor do not make the program possibility of waiver of the otherwise 4. Section 147.110 is added to read as unreasonable under paragraphs (f)(3)(iii) or applicable standard. Thus, the plan satisfies follows: (iv) of this section. The program continues to paragraphs (f)(3)(iii), (iv), and (v) of this satisfy the conditions of paragraphs (f)(3)(iii), section. § 147.110 Prohibiting discrimination (iv), and (v) of this section. Example 5. (i) Facts. In conjunction with against participants, beneficiaries, and Example 4. (i) Facts. A group health plan an annual open enrollment period, a group individuals based on a health factor. will provide a reward to participants who health plan provides a premium differential (a) In general. A group health plan have a body mass index (BMI) that is 26 or based on tobacco use, determined using a lower, determined shortly before the health risk assessment. The following and a health insurance issuer offering beginning of the year. Any participant who statement is included in all plan materials group or individual health insurance does not meet the target BMI is given the describing the tobacco premium differential: coverage must comply with all the same discount if the participant complies ‘‘Stop smoking today! We can help! If you are requirements under 45 CFR 146.121 with an exercise program that consists of a smoker, we offer a smoking cessation applicable to a group health plan and a walking 150 minutes a week. Any participant program. If you complete the program, you health insurance issuer offering group for whom it is unreasonably difficult due to can avoid this surcharge.’’ The plan health insurance coverage. Accordingly, a medical condition to comply with this accommodates participants who smoke by with respect to an issuer offering health walking program (and any participant for facilitating their enrollment in a smoking whom it is medically inadvisable to attempt cessation program that requires participation insurance coverage in the individual to comply with the walking program) during at a time and place that are not unreasonably market, the issuer is subject to the the year is given the same discount if the burdensome or impractical for participants, requirements of § 146.121 to the same individual satisfies an alternative standard and that is otherwise reasonably designed extent as an issuer offering group health that is reasonable taking into consideration based on all the relevant facts and insurance coverage, except that the the individual’s medical situation, is not circumstances. The plan pays the cost of the exception contained in § 146.121(f) does unreasonably burdensome or impractical to program. Any participant can avoid the not apply. comply with, and is otherwise reasonably surcharge by participating in the program, designed based on all the relevant facts and regardless of whether the participant stops (b) Applicability date. This section is circumstances. All plan materials describing smoking. applicable to a group health plan and a the terms of the wellness program include (ii) Conclusion. In this Example 5, the health insurance issuer offering group or the following statement: ‘‘Fitness is Easy! premium differential satisfies the individual health insurance coverage for Start Walking! Your health plan cares about requirements of paragraphs (f)(3)(iii), (iv), plan years (in the individual market, your health. If you are overweight, our Start and (v) of this section. The program’s initial policy years) beginning on or after Walking program will help you lose weight standard for obtaining a reward is dependent and feel better. We will help you enroll. (**If on the results of a health risk assessment, January 1, 2014. See § 147.140, which your doctor says that walking isn’t right for which is a screening. However, the plan is provides that the rules of this section do you, that’s okay too. We will develop a reasonably designed under paragraph not apply to grandfathered health plans. wellness program that is.)’’ Individual E is (f)(3)(iv) because the plan provides a [FR Doc. 2012–28361 Filed 11–20–12; 11:15 am] unable to achieve a BMI that is 26 or lower different, reasonable means of qualifying for BILLING CODE 4830–01–P; 4510–029–P; 4120–01–P

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Part V

Department of Health and Human Services

45 CFR Parts 147, 155, and 156 Patient Protection and Affordable Care Act; Standards Related to Essential Health Benefits, Actuarial Value, and Accreditation; Proposed Rule

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DEPARTMENT OF HEALTH AND Stop C4–26–05, 7500 Security they are received, generally beginning HUMAN SERVICES Boulevard, Baltimore, MD 21244–1850. approximately 3 weeks after publication 4. By hand or courier. Alternatively, of a document, at the headquarters of 45 CFR Parts 147, 155, and 156 you may deliver (by hand or courier) the Centers for Medicare & Medicaid [CMS–9980–P] your written comments only to the Services, 7500 Security Boulevard, following addresses prior to the close of Baltimore, Maryland 21244, Monday RIN 0938–AR03 the comment period: through Friday of each week from 8:30 a. For delivery in Washington, DC— a.m. to 4 p.m. To schedule an Patient Protection and Affordable Care Centers for Medicare & Medicaid appointment to view public comments, Act; Standards Related to Essential Services, Department of Health and phone 1–800–743–3951. Health Benefits, Actuarial Value, and Human Services, Room 445–G, Hubert Electronic Access Accreditation H. Humphrey Building, 200 AGENCY: Department of Health and Independence Avenue SW., This Federal Register document is Human Services. Washington, DC 20201. also available from the Federal Register online database through Federal Digital ACTION: Proposed rule. (Because access to the interior of the Hubert H. Humphrey Building is not System (FDsys), a service of the U.S. SUMMARY: This proposed rule details readily available to persons without Government Printing Office. This standards for health insurance issuers Federal government identification, database can be accessed via the consistent with title I of the Patient commenters are encouraged to leave internet at http://www.gpo.gov/fdsys/. Protection and Affordable Care Act, as their comments in the CMS drop slots Table of Contents amended by the Health Care and located in the main lobby of the Education Reconciliation Act of 2010, building. A stamp-in clock is available I. Background referred to collectively as the Affordable A. Legislative Overview for persons wishing to retain a proof of B. Stakeholder Consultation and Input Care Act. Specifically, this proposed filing by stamping in and retaining an C. Structure of the Proposed Rule rule outlines Exchange and issuer extra copy of the comments being filed.) II. Provisions of the Proposed Regulation standards related to coverage of b. For delivery in Baltimore, MD— A. Part 147—Health Insurance Reform essential health benefits and actuarial Centers for Medicare & Medicaid Requirements for the Group and value. This proposed rule also proposes Services, Department of Health and Individual Health Insurance Markets a timeline for qualified health plans to Human Services, 7500 Security 1. Subpart B—Requirements Relating to be accredited in Federally-facilitated Boulevard, Baltimore, MD 21244–1850. Health Care Access Exchanges and an amendment which If you intend to deliver your B. Part 155—Exchange Establishment Standards and Other Related Standards provides an application process for the comments to the Baltimore address, call Under the Affordable Care Act recognition of additional accrediting telephone number (410) 786–9994 in C. Part 156—Health Insurance Issuer entities for purposes of certification of advance to schedule your arrival with Standards Under the Affordable Care qualified health plans. one of our staff members. Act, Including Standards Related to DATES: To be assured consideration, Comments erroneously mailed to the Exchanges comments must be received at one of addresses indicated as appropriate for 1. Subpart A—General Provisions 2. Subpart B—EHB Package the addresses provided below, no later hand or courier delivery may be delayed and received after the comment period. 3. Subpart C—Accreditation than 5 p.m. Eastern Standard Time III. Collection of Information Requirements (EST) on December 26, 2012. For information on viewing public IV. Regulatory Impact Analysis ADDRESSES: In commenting, please refer comments, see the beginning of the V. Regulatory Flexibility Act to file code CMS–9980–P. Because of SUPPLEMENTARY INFORMATION section. VI. Unfunded Mandates staff and resource limitations, we cannot FOR FURTHER INFORMATION CONTACT: VII. Federalism accept comments by facsimile (FAX) Leigha Basini at (301) 492–4307 for VIII. Appendix A—List of Proposed EHB Benchmarks [List of Received transmission. general information. Adam Block at (410) 786–1698 for Benchmarks: Partial] You may submit comments in one of IX. Appendix B—Largest FEDVIP Dental and four ways (please choose only one of the matters related to essential health Vision Plan Options, as of March 31, ways listed): benefits, actuarial value, and minimum 2012 1. Electronically. You may submit value. electronic comments on this regulation Tara Oakman at (301) 492–4253 for Acronym List to http://www.regulations.gov. Follow matters related to accreditation. Because of the many organizations the ‘‘Submit a comment’’ instructions. SUPPLEMENTARY INFORMATION: and terms to which we refer by acronym 2. By regular mail. You may mail Inspection of Public Comments: All in this proposed rule, we are listing written comments to the following comments received before the close of these acronyms and their corresponding address only: Centers for Medicare & the comment period are available for terms in alphabetical order below: Medicaid Services, Department of viewing by the public, including any AV Actuarial Value Health and Human Services, Attention: personally identifiable or confidential CHIP Children’s Health Insurance Program CMS–9980–P, P.O. Box 8010, Baltimore, business information that is included in CMS Centers for Medicare & Medicaid MD 21244–8010. a comment. We post all comments Services Please allow sufficient time for mailed received before the close of the DOL U.S. Department of Labor comments to be received before the comment period on the following Web EHB Essential Health Benefits close of the comment period. site as soon as possible after they have ERISA Employee Retirement Income 3. By express or overnight mail. You been received: http:// Security Act (29 U.S.C. section 1001, et seq.) may send written comments to the www.regulations.gov. Follow the search FDA U.S. Food and Drug Administration following address only: Centers for instructions on that Web site to view FEDVIP Federal Employee Dental and Medicare & Medicaid Services, public comments. Vision Insurance Program Department of Health and Human Comments received timely will also FEHBP Federal Employees Health Benefits Services, Attention: CMS–9980–P, Mail be available for public inspection as Program

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HEDIS Healthcare Effectiveness Data and sponsored coverage and an HHS- opportunity for additional accrediting Information Set commissioned study from the Institute entities meeting the conditions in HHS U.S. Department of Health and Human of Medicine (IOM) 3 recommending the § 156.275 to be recognized by the Services criteria and methods for determining HIOS Health Insurance Oversight System Secretary, until phase two is in effect. HMO Health Maintenance Organization and updating the EHB. The EHB This opportunity would include an HSA Health Savings Account Bulletin outlined an intended regulatory application and review process. This HRA Health Reimbursement Account approach for defining EHB, including a rule also proposes a timeline for the IOM Institute of Medicine benchmark-based framework. Shortly accreditation standard for the purposes IRS Internal Revenue Service thereafter, on January 25, 2012, HHS of QHP certification in Federally- MV Minimum Value released an illustrative list of the largest facilitated Exchanges. NAIC National Association of Insurance three small group market products by Commissioners state, which were updated on July 2, I. Background OMB Office of Management and Budget 4 OPM U.S. Office of Personnel Management 2012. HHS further clarified the A. Legislative Overview PHS Act Public Health Service Act approach described in the EHB Bulletin Section 1302 of the Affordable Care PRA Paperwork Reduction Act through a series of Frequently Asked Act provides for the establishment of an QHP Qualified Health Plan Questions (FAQs), released on February EHB package that includes coverage of SSA Social Security Administration 17, 2012. On July 20, 2012, HHS EHB (as defined by the Secretary of the SHOP Small Business Health Options 5 published a final rule authorizing the Department of Health and Human Program collection of data to be used under the Services (the Secretary)) and AV The Act Social Security Act intended process for states to select requirements. The law directs that EHB The Code Internal Revenue Code of 1986 from among several benchmark options USP United States Pharmacopeia be equal in scope to the benefits covered Executive Summary: Beginning in to define EHB. HHS also published a bulletin 6 by a typical employer plan and cover at 2014, all non-grandfathered health outlining an intended regulatory least the following 10 general categories: insurance coverage 1 in the individual approach to calculations of AV and Ambulatory patient services; emergency and small group markets, Medicaid implementation of cost-sharing services; hospitalization; maternity and benchmark and benchmark-equivalent reductions on February 24, 2012 (the newborn care; mental health and plans, and Basic Health Programs (if ‘‘AV/CSR Bulletin’’). Specifically, HHS substance use disorder services, applicable) will be required to cover outlined an intended regulatory including behavioral health treatment; essential health benefits (EHB), which approach for the calculation of AV, de prescription drugs; rehabilitative and include items and services in 10 minimis variation standards, and silver habilitative services and devices; statutory benefit categories, such as plan variations for individuals eligible laboratory services; preventive and hospitalization, prescription drugs, and for cost-sharing reductions among other wellness services and chronic disease maternity and newborn care, and are topics. As described in section IB of this management; and pediatric services, equal in scope to a typical employer preamble, ‘‘Stakeholder Consultation including oral and vision care. Sections health plan. In addition to offering EHB, and Input,’’ HHS reviewed and 1302(b)(4)(A) through (D) establish that these health plans will meet specific considered comments on both the EHB the Secretary must define EHB in a actuarial values (AVs): 60 percent for a and AV/CSR Bulletins in developing manner that (1) Reflects appropriate bronze plan, 70 percent for a silver plan, this proposed rule. balance among the 10 categories; (2) is 80 percent for a gold plan, and 90 In addition, this rule proposes to not designed in such a way as to percent for a platinum plan. These AVs, amend 45 CFR 156.275, as published on discriminate based on age, disability, or called ‘‘metal levels,’’ will assist July 20, 2012 (77 FR 42658), which expected length of life; (3) takes into consumers in comparing and selecting established the first phase of an account the health care needs of diverse health plans by allowing a potential intended two-phase approach to segments of the population; and (4) does enrollee to compare the relative recognizing accrediting entities. As not allow denials of EHB based on age, payment generosity of available plans. directed under law, recognized entities life expectancy, or disability. Sections Taken together, EHB and AV will will implement the standards 1302(b)(4)(E) and (F) further direct the significantly increase consumers’ ability established under the Affordable Care Secretary to consider the provision of to compare and make an informed Act for qualified health plans (QHPs) to emergency services and dental benefits choice about health plans. be accredited on the basis of local when determining whether a particular The Department of Health and Human performance on a timeline established health plan covers EHB. Finally, Services (HHS) has provided by the Exchange. The amendment to sections 1302(b)(4)(G) and (H) specify information on EHB and AV standards phase one included herein would not that the Secretary periodically review in several phases. On December 16, the EHB, report the findings of such 2 alter recognition of the National 2011, HHS released a bulletin (the Committee for Quality Assurance review to the Congress and to the ‘‘EHB Bulletin’’), following a report (NCQA) and URAC on the terms public, and update the EHB as needed from the U.S. Department of Labor outlined in the final rule (and as to address any gaps in access to care or (DOL) describing the scope of benefits provided in the Federal Register Notice advances in the relevant evidence base. typically covered under employer- being released concurrently with this Section 1311(d)(3)(B) establishes that proposed rule) and would provide an states may require a QHP to cover 1 For more information on status as a additional benefits beyond those in the grandfathered health plans under the Affordable 3 EHB, provided that the state defrays the Care Act, please see Interim Final Rule, ‘‘Group ‘‘Essential Health Benefits: Balancing Coverage Health Plans and Health Insurance Coverage and Cost.’’ October 6, 2011. Available at: http:// costs of such required benefits. Relating to Status as a Grandfathered Health Plan www.iom.edu/Reports/2011/Essential-Health- Section 1301(a)(1)(B) of the Under the Patient Protection and Affordable Care Benefits-Balancing-Coverage-and-Cost.aspx. Affordable Care Act directs all issuers of 4 Act.’’ Available at: http://cciio.cms.gov/resources/ Available at: http://cciio.cms.gov/resources/ QHPs to cover the EHB package regulations/index.html#gp. files/largest-smgroup-products-7-2-2012.pdf.PDF. 2 Available at: http://cciio.cms.gov/resources/ 5 77 FR 42658 (July 20, 2012). described in section 1302(a) of the files/Files2/12162011/essential_health_benefits_ 6 Available at: http://cciio.cms.gov/resources/ Affordable Care Act, including coverage bulletin.pdf. files/Files2/02242012/Av-csr-bulletin.pdf. of the services described in section

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1302(b), adhering to the cost-sharing B. Stakeholder Consultation and Input the proposed standards for issuers of limits described in section 1302(c), and HHS has consulted with interested QHPs, including with respect to subject to 1302(e), meeting the AV stakeholders on several policies related participation in an Exchange. The levels established in section 1302(d). to EHB, AV, and Exchange functions. standards proposed to be codified in Section 2707(a) of the Public Health HHS held a number of listening sessions Part 156 as laid out in this NPRM apply Service (PHS) Act extends the coverage with consumers, providers, employers, only in the individual and small group of the EHB package to issuers of non- health plans, and state representatives markets, and not to Medicaid grandfathered individual and small to gather public input, and released benchmark or benchmark-equivalent group policies beginning with plan several documents for public review plans. EHB applicability to Medicaid years starting on or after January 1, and comment. As described previously, will be defined in a separate regulation. 2014, irrespective of whether such HHS released two Bulletins that II. Provisions of the Proposed issuers offer coverage through an outlined our intended regulatory Regulation Exchange. In addition, section 2707(b) approach to defining EHB and of the PHS Act directs non- calculating AV and sought public A. Part 147—Health Insurance Reform grandfathered group health plans to comment on the specific approaches. Requirements for the Group and ensure that cost-sharing under the plan In addition to the listening sessions, Individual Health Insurance Markets does not exceed the limitations HHS considered the findings of an IOM 1. Subpart B—Requirements Relating to described in sections 1302(c)(1) and (2) study, as well as a report conducted by Health Care Access of the Affordable Care Act. the DOL 7 on typical benefits offered by Section 1302(d)(2) of the Affordable employer-sponsored coverage before a. Coverage of EHB (§ 147.150) Care Act describes the levels of coverage releasing the Bulletins. Section 2707(a) of the Public Health that section 1302(a)(3) includes in the Finally, HHS consulted with Service Act (PHS Act), as added by the EHB package: 60 percent for a bronze stakeholders through regular meetings Affordable Care Act, directs health plan, 70 percent for a silver plan, 80 with the National Association of insurance issuers that offer non- percent for a gold plan, and 90 percent Insurance Commissioners (NAIC), grandfathered health insurance coverage for a platinum plan. Section 1302(d)(3) regular contact with states through the in the individual or small group market directs the Secretary to develop Exchange grant process, Medicaid to ensure that such coverage includes guidelines that allow for de minimis consultation, and meetings with tribal the EHB package defined under section variation in AV calculations. leaders and representatives, health 1302(a) of the Affordable Care Act that Section 1311(c)(1)(D)(i) of the insurance issuers, trade groups, includes the coverage of EHB, Affordable Care Act directs a health consumer advocates, employers, and application of cost-sharing limitations, plan to ‘‘be accredited with respect to other interested parties. and AV requirements (plans must be a local performance on clinical quality HHS received approximately 11,000 bronze, silver, gold, or platinum plan or measures * * * by any entity comments in response to the EHB a catastrophic plan). recognized by the Secretary for the Bulletin. Commenters represented a Section 1255 of the Affordable Care accreditation of health insurance issuers wide variety of stakeholders, including Act provides that this EHB package or plans (so long as any such entity has health insurance issuers, consumers, standard applies starting the first plan transparent and rigorous methodological health providers, states, employers, year for the small group market or and scoring criteria).’’ Section employees, and Members of Congress. policy year for the individual market 1311(c)(1)(D)(ii) requires that QHPs We considered all of these comments beginning on or after January 1, 2014. In ‘‘receive such accreditation within a as we developed the policies in this § 147.150(a), we propose that a health period established by an Exchange proposed rule. Though we do not insurance issuer that offers health * * *.’’ In a final rule published on July address each comment received, we insurance coverage in the individual or 20, 2012 (77 FR 42658), because the discuss many of the comments small group market—inside or outside NCQA and URAC already met the throughout the proposed rule. In of the Exchange—ensure that such statutory requirements, they were addition, HHS will be consulting with coverage offers the EHB package. recognized as accrediting entities on an federally recognized tribes on the PHS Act section 2707(b) provides that interim basis, subject to the submission provisions of this proposed rule that a group health plan shall ensure that of documentation required in 45 CFR impact tribes. any annual cost-sharing imposed under 156.275(c)(4). This recognition is now the plan does not exceed the limitations C. Structure of the Proposed Rule effective as indicated in a Federal provided for under section 1302(c)(1) Register notice being published The regulations outlined in this and (c)(2) of the Affordable Care Act. concurrently with this proposed rule. In proposed rule would be codified in 45 Section 715(a)(1) of the Employee this proposed rule, HHS introduces a CFR parts 147, 155, and 156. Part 147 Retirement Income Security Act (ERISA) new process by which accrediting outlines proposed standards for health and section 9815(a)(1) of the Internal entities that are not already recognized insurance issuers in the small group and Revenue Code (Code) incorporates can submit an application to be individual markets related to health section 2707(b) of the Public Health recognized and establishes a proposed insurance reforms. Part 155 outlines the Service Act into ERISA and the Code. notice and final notice process for proposed standards for states relative to HHS, DOL, and the Department of the recognizing any new accrediting the establishment of Exchanges and Treasury read the limitations on the entities. HHS intends, through future outlines the proposed standards for scope of section 1302(c) of the rulemaking, to establish a phase two Exchanges related to minimum Affordable Care Act to apply also to the recognition process which may establish Exchange functions. Part 156 outlines scope of PHS Act section 2707(b). additional criteria for the recognition of Therefore, these deductible limitations accrediting entities. This rule also 7 ‘‘Selected Medical Benefits: A Report from the apply only to plans and issuers in the Department of Labor to the Department of Health proposes a timeline for the accreditation and Human Services.’’ April 15, 2011. Available at: small group market and do not apply to requirement in a Federally-facilitated http://www.bls.gov/ncs/ebs/sp/selmedbens self-insured plans or health insurance Exchange. report.pdf. issuers offering health insurance

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coverage in the large group market. no federal obligation for states to defray benefits since required benefits enacted Section 147.150(b) is reserved at this the costs associated with those prior to December 31, 2011 will be part time. requirements.8 of EHB, and therefore will not require In addition, section 2707(c) of the Under the Affordable Care Act, state the state to incur any costs. PHS Act provides that an issuer offering payment for state-required benefits only Accreditation Timeline (§ 155.1045) any level of coverage specified under applies to QHPs. Since the Exchange is section 1302(d) of the Affordable Care responsible for certifying QHPs, we HHS proposes to amend § 155.1045 to Act offer coverage in that level to propose that the Exchange identify redesignate the existing paragraph as individuals who have not attained the which additional state-required benefits, paragraph (a) and add a new paragraph age of 21. We propose to codify this if any, are in excess of the EHB. HHS (b) to set forth the timeline for QHP standard in § 147.150(c). An issuer intends to publish a list of state-required accreditation in Federally-facilitated could satisfy this standard by offering benefits for Exchanges to use as a Exchanges (including State Partnership the same product to applicants seeking reference tool. Exchanges). HHS proposes a phased child-only coverage that it offers to After consideration of four possible approach to the requirement that QHP applicants seeking coverage solely for entities to conduct the cost calculation issuers be accredited in Federally- adults or for families including both for additional coverage (QHP issuers, facilitated Exchanges. This approach is adults and children, as long as the the state, the Exchange, or HHS), we in part modeled after the one used by child-only coverage is priced in believe that the QHP issuer should some states that require accreditation as accordance with the applicable rating conduct the calculation for the cost of part of issuer licensing. Further, this rules. additional benefits, because the QHP approach will accommodate new generates the necessary data regarding issuers—including Consumer Operated B. Part 155—Exchange Establishment claims, utilization, trend, and other and Oriented Plans—and those that Standards and Other Related Standards issuer-specific data typically used to have not previously been accredited, Under the Affordable Care Act calculate the cost of a benefit. Because while ensuring that all QHP issuers State Required Benefits QHP issuers will offer state-required make a commitment to ensure the benefits to every enrollee, the cost of the delivery of high quality care to Section 1311(d)(3)(B) of the benefit will be built into the overall consumers. Affordable Care Act explicitly permits a premium and spread across all The proposed accreditation timeline state to require QHPs to offer benefits in enrollees. We believe that the best to be used in Federally-facilitated addition to EHB, but requires the state method to calculate the state’s cost, if Exchanges is as follows: to make payments, either to the applicable, is to have the QHP issuer • During certification for an issuer’s individual enrollee or to the issuer on quantify the amount of premium initial year of QHP certification (for behalf of the enrollee, to defray the cost attributable to each additional benefit. example, in 2013 for the 2014 coverage of these additional benefits. We propose We additionally propose that the year), a QHP issuer without existing that state-required benefits enacted on calculations of the cost of additional commercial, Medicaid, or Exchange or before December 31, 2011 (even if not benefits be made by a member of the health plan accreditation granted by a effective until a later date) may be American Academy of Actuaries, based recognized accrediting entity for the considered EHB, which would obviate on an analysis performed in accordance same state in which the issuer is the requirement for the state to pay for with generally accepted actuarial applying to offer coverage must have these state-required benefits. We also principles and methodologies. We also scheduled or plan to schedule a review propose that state-required benefits that propose the calculation be done of QHP policies and procedures of the are not included in the benchmark prospectively to allow for the offset of applying QHP issuer with a recognized would apply to QHP markets in the an enrollee’s share of premium and for accrediting entity. same way they apply in the current purposes of calculating the premium tax • Prior to a QHP issuer’s second year market. For example, a benefit that is credit and reduced cost sharing.9 We and third year of QHP certification (for only required in the individual market request comment on whether the state example, in 2014 for the 2015 coverage by a state law enacted prior to December should make payments based on the year and 2015 for the 2016 coverage 31, 2011 would only be considered EHB statewide average cost or make year), a QHP issuer must be accredited (and exempt from the requirement that payments based on each QHP issuer’s by a recognized accrediting entity on the the state pay the cost of the benefit) with actual cost if different issuers report that policies and procedures that are respect to the individual QHP market in a particular additional required benefit applicable to their Exchange products 2014. This policy regarding state- costs a different amount. We note that or, a QHP issuer must have commercial required benefits is intended to apply we expect there will be few, if any, or Medicaid health plan accreditation for at least plan years 2014 and 2015. payments made for state-required granted by a recognized accrediting HHS received many comments in entity for the same state in which the response to the EHB Bulletin about how 8 For example, a state statute requiring issuers to issuer is offering Exchange coverage and state-required benefits beyond EHB pay the same for a physician consultation in the the administrative policies and could be identified and how states office and via telemedicine would not be a state- procedures underlying that required benefit. The physician consultation is the would defray the cost of those benefits. service; the requirement to pay for telemedicine accreditation must be the same or In this proposed rule, we interpret state- relates to payment for the service delivery method. similar to the administrative policies required benefits to be specific to the Since the requirement addresses a specific delivery and procedures used in connection with care, treatment, and services that a state method, not the underlying care, treatment, or the QHP. service being delivered, there is no requirement to • requires issuers to offer to its enrollees. defray the cost. Prior to a QHP issuer’s fourth year Therefore, state rules related to provider 9 Section 36B1401(b)(3)(D) of the Code specifies of QHP certification and in every types, cost-sharing, or reimbursement that the portion of the premium allocable to subsequent year of certification (for methods would not fall under our required additional benefits shall not be taken into example, in 2016 for the 2017 coverage account in determining a premium tax credit. interpretation of state-required benefits. Likewise, section 1402(c) of the Affordable Care Act year and forward), a QHP issuer must be Even though plans must comply with specifies that cost-sharing reductions do not apply accredited in accordance with 45 CFR those state requirements, there would be to required additional benefits. 156.275.

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C. Part 156—Health Insurance Issuer by an issuer, as set forth in section Medicaid Health Maintenance Standards Under the Affordable Care 1302(a) of the Affordable Care Act. The Organization (HMO) operating in the Act, Including Standards Related to EHB package provides at least the ten state. As we discussed in the EHB Exchanges statutory categories of benefits, as Bulletin, we use enrollment data from described in § 156.110(a); provides the first quarter two years prior to the 1. Subpart A—General Provisions benefits in the manner described in coverage year to determine plan In § 156.20, we propose to add § 156.115; limits cost-sharing for such enrollment. To help states make their definitions as follows: coverage as described in § 156.130; and benchmark selections, HHS has Actuarial Value and Percentage of the subject to offering catastrophic plans as provided states with benefit data on the Total Allowed Costs of Benefits described in section 1302(e) of the largest plans by enrollment in the three Affordable Care Act, provides distinct largest small group insurance products We propose to define ‘‘AV’’ as the levels of coverage as described in in each state’s small group market as of percentage paid by a health plan of the § 156.140. the first quarter of calendar year 2012.11 total allowed costs of benefits (using the 2. Subpart B—EHB Package States can use that information, which term ‘‘percentage of the total allowed we collected from issuers through costs of benefits’’ that we also propose a. State Selection of Benchmark HealthCare.gov, to inform their EHB to define here). (§ 156.100) benchmark selections. In addition to the In general, AV can be considered a In § 156.100, we propose criteria for data available on HealthCare.gov for general summary measure of health plan the selection process if a state chooses insurance products in the states’ small generosity. We propose to define the to select a benchmark plan. As we note group markets, in Appendix B, HHS is ‘‘percentage of the total allowed costs of in § 156.20, the plan selected by a state also making available benefit data for benefits’’ as the anticipated covered is known as the base-benchmark plan. the single largest Federal Employees medical spending for EHB coverage (as After the application of any adjustments Dental and Vision Insurance Program defined in § 156.110 (a)) paid by a described in § 156.110, the plan will be (FEDVIP) dental and vision plans health plan for a standard population, known as the EHB-benchmark plan. The respectively, based on enrollment. computed in accordance with the health EHB-benchmark plan would apply to Proposed paragraph (a)(1) of § 156.100 plan’s cost sharing, divided by the total non-grandfathered health insurance would reflect a typical plan in the anticipated allowed charges for EHB coverage offered in the individual or state’s small group market and provide coverage provided to the standard small group markets. The EHB- state flexibility as recommended by the population, and expressed as a benchmark plan would serve as a IOM in its report.12 The remaining percentage. reference plan, reflecting both the scope proposed benchmark plan options, in Because section 1302(d)(2) of the of services and limits offered by a paragraphs (a)(2) through (a)(4), reflect Affordable Care Act refers to AV relative typical employer plan in that state. This the benchmark approach in Medicaid to coverage of the EHB for a standard approach and benchmark selection, defined in 42 CFR 440.330 and in the population, we propose these which would apply for at least the 2014 Children’s Health Insurance Program definitions together in order to provide and 2015 benefit years, would allow (CHIP) in 42 CFR 457.410 and 457.420. that AV is the percentage that represents states to build on coverage that is We believe these options reflect both the the total allowed costs of benefits paid already widely available, minimize scope of services and any limits offered by the health plan, based on the market disruption, and provide by a ‘‘typical employer plan’’ as provision of EHB as defined for that consumers with familiar products. This specified by section 1302(b)(2)(A) of the plan according to § 156.115. approach is intended to balance Affordable Care Act. Based on Benchmark Plans consumers’ needs for commenters’ requests for an open and comprehensiveness and affordability, as transparent selection process, we Under the benchmark selection and recommended by IOM in its report on encourage states to solicit public input standards proposed in § 156.100 and the EHB.10 In developing these prior to their selection and confirmation § 156.110, we believe it is important to proposed guidelines, we considered the of a state benchmark plan. differentiate between the plan selected comments on the EHB Bulletin, which We believe that our proposed by a state (or through the default process urged an open and transparent approach and the benchmark options in § 156.100(c)), which we are proposing benchmark selection process with an available to states for defining EHB best to call the ‘‘base-benchmark plan,’’ and opportunity for public input. reflect the balance between the benchmark standard that EHB plans Consistent with the approach outlined comprehensiveness, affordability, and will need to meet, which we are in the EHB Bulletin, we propose in state flexibility as recommended by the proposing to call the ‘‘EHB-benchmark § 156.100(a) that the state may select its IOM. plan.’’ base-benchmark plan from among four Because the PHS Act defines ‘‘state’’ We propose that ‘‘base-benchmark types of health plans. These are (1) The to include the U.S. territories (Puerto plan’’ means the plan that is selected by largest plan by enrollment in any of the Rico, Guam, the Virgin Islands, a state from the options described in three largest small group insurance American Samoa, and the Northern § 156.100(a), or a default benchmark products in the state’s small group Mariana Islands), the EHB requirements plan, as described in § 156.100(c), prior market as defined in § 155.20; (2) any of established by section 1302 of the to any adjustments made to meet the the largest three state employee health Affordable Care Act apply to the benchmark standards described in benefit plans by enrollment; (3) any of territories. Given the smaller size and § 156.110. the largest three national Federal unique nature of the territories’ health We propose that ‘‘EHB-benchmark Employees Health Benefits Program insurance markets, we seek comment as plan’’ means the standardized set of (FEHBP) plan options by enrollment to whether the benchmark default EHB that must be met by a QHP or other that are open to Federal employees; or issuer as required by § 147.150. (4) the largest insured commercial non- 11 http://cciio.cms.gov/resources/files/largest- We propose that ‘‘EHB package’’ smgroup-products-7-2-2012.pdf.PDF means the scope of covered benefits and 10 Institute of Medicine, ‘‘Essential Health 12 Institute of Medicine, ‘‘Essential Health associated limits of a health plan offered Benefits: Balancing Coverage and Cost’’ (2011). Benefits: Balancing Coverage and Cost’’ (2011).

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process described in proposed that the state’s benchmark plan guidance related to its Multi-State Plan § 156.100(c) is appropriate for the selection in 2012 would be applicable Program (MSPP). territories. In particular, we seek for the 2014 and 2015 benefit years, and c. EHB Benchmark Plan Standards comment as to whether the default base- be based on plan benefits offered by the (§ 156.110) benchmark plan that will apply to the selected benchmark at the time of states—the largest plan by enrollment in selection, including any applicable Many commenters urged HHS to the largest product in the state’s small state-required benefits enacted prior to establish standards or a process to group market—is an appropriate default December 31, 2011. We intend to revisit ensure that an EHB-benchmark plan base-benchmark plan for the territories; this policy for subsequent years. We contains all 10 statutory EHB categories, or whether one of the other four types chose this approach for establishing a reflects an appropriate balance among of health plans outlined in the EHB consistent set of benefits for two years the categories, and is non- Bulletin, such as the largest FEHBP in order to directly reflect current discriminatory. In addition, a number of plan, would provide a more appropriate market offerings and limit market commenters suggested factors for default base-benchmark. We note that disruption in the first years of the consideration in selecting an EHB- the territories have the same Exchanges. We invite comment on the benchmark plan, including plan opportunity as states to select a process that HHS should use to update comprehensiveness, affordability, benchmark plan and we encourage them EHB over time. administrative simplicity, evidence- to do so. We intend to use the enforcement based practice, ethics, population In Appendix A: List of Proposed EHB processes and standards established in health, inclusion of value-based Benchmarks, we provide a list of 45 CFR part 150 to ensure that plans insurance design, and continuity of proposed benchmarks either selected by adhere to the EHB standards coverage. states or, for states that have not incorporated under the PHS Act. Part To clarify the relationship between selected, we propose what the default 150 sets forth HHS’s enforcement the 10 statutory categories and the EHB- benchmark plan would look like if the processes under sections 2723 and 2761 benchmark plan, in paragraph (a) we benchmark was determined by the of the PHS Act, with respect to the propose that the EHB-benchmark plan Secretary in accordance with requirements of title XXVII of the PHS must provide coverage of at least the § 156.100(c). States were encouraged to Act. Section 2723 generally provides following categories of benefits submit their selections by October 1, that states have primary enforcement described in section 1302(b)(1) of the 2012 to serve as the benchmarks for authority over health insurance issuers, Affordable Care Act: (1) Ambulatory 2014 and 2015. If a state wishes to make but allows HHS to take enforcement patient services; (2) emergency services; a selection or change its previous actions against issuers in a state if a (3) hospitalization; (4) maternity and selection it must do so by the end of the state has notified HHS that it has not newborn care; (5) mental health and comment period of this proposed rule. enacted legislation to enforce or that it substance use disorder services, Pending publication of a final rule, we is not otherwise enforcing, or when including behavioral health treatment; are proposing that the default HHS has determined that a state is not (6) prescription drugs; (7) rehabilitative benchmark option will apply in cases substantially enforcing one or more and habilitative services and devices; (8) where a state does not voluntarily select provisions of part A of title XXVII of the laboratory services; (9) preventive and a benchmark. Issuers have commented PHS Act. HHS may also take direct wellness services and chronic disease that early selection is important to enforcement action against issuers in a management; and (10) pediatric provide them with sufficient time to state if HHS determines, pursuant to the services, including oral and vision care. develop and receive certification for process set forth in45 CFR part 150, that With respect to the tenth category, we QHPs in advance of the QHP a state is not substantially enforcing a interpret ‘‘pediatric services’’ to mean application review scheduled for early provision of part A of title XXVII of the services for individuals under the age of 2013. PHS Act. This enforcement authority is 19 years. Several states have asked HHS At § 156.100(b), we propose the extended through section 1321(c)(2) of to define the age for coverage of standard for approval of a state-selected the Affordable Care Act to apply to ‘‘pediatric services’’ to ensure EHB-benchmark plan. Section enforcement of the requirements under comprehensive and consistent treatment 156.100(b) specifies that to become an title I of the Affordable Care Act, in every state. This interpretation is EHB-benchmark plan, a base-benchmark including section 1302. consistent with the age stated in the plan must meet the specifications in In § 156.100(c), we propose that if a Affordable Care Act’s prohibition on § 156.110, which include, coverage of at state does not make a selection using the preexisting conditions for children, and least the 10 categories of benefits process defined in this section, the the age limit for eligibility to enroll in outlined in the Affordable Care Act. default base-benchmark plan will be the the CHIP. While we recommend Sections 1302(b)(4)(G) and (H) of the largest plan by enrollment in the largest coverage of pediatric services up to age Affordable Care Act direct the Secretary product in the state’s small group 19, states have the flexibility to extend to periodically review the definition of market. pediatric coverage beyond the proposed EHB, report the findings of such review 19 year age limit. to the Congress and the public, and b. Determination of EHB for Multi-State Since some base-benchmark plan update the EHB definition as needed to Plans (§ 156.105) options may not cover all 10 of the address gaps in access to care or In § 156.105, we propose an statutorily required EHB categories, in advances in the relevant evidence base. alternative way of complying with the paragraph (b), we propose standards for In response to the EHB Bulletin, we EHB requirement for multi-state plans supplementing a base-benchmark plan received different comments from offered under contract with U.S. Office that does not provide coverage of one or stakeholders on the frequency with of Personnel Management (OPM) more of the categories described in which updates to the EHB should occur. pursuant to section 1334 of the paragraph (a). In paragraph (b)(1), we Some commenters favored annual Affordable Care Act. We propose that propose that if a base-benchmark plan updates, while others recommended multi-state plans must meet benchmark option does not cover any items and less frequent updates, including initially standards set by OPM, which will services within an EHB category, the waiting until 2016 or 2017. We propose promulgate forthcoming regulations and base-benchmark plan must be

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supplemented by adding that particular extent that the default base-benchmark of services.13 Accordingly, we are category in its entirety from another plan option does not cover any items proposing a transitional policy for base-benchmark plan option. The and services within an EHB category, coverage of habilitative services that resulting plan, which would reflect a the category must be added by would provide states with the base-benchmark that covers all 10 EHB supplementing the base-benchmark plan opportunity to define these benefits if categories, would be required to meet with that particular category in its not included in the base-benchmark standards for non-discrimination and entirety from another base-benchmark plan. Specifically, in paragraph (f), we balance defined in paragraphs (d) and plan option. Specifically, we propose propose that in order to define EHB, if (e) of this section. After meeting all of that HHS would supplement the the base-benchmark plan does not these requirements, it would be category of benefits in the default base- include coverage of habilitative services considered the EHB-benchmark plan. benchmark plan with the first of the the state may determine the services In paragraphs (b)(2) and (b)(3), we following options that offer benefits in included in the habilitative services discuss two categories of benefits that that particular EHB category: (1) The category. We believe that this may not currently be included in some largest plan by enrollment in the second transitional policy—which provides major medical benefit plans, but which largest product in the state’s small group states with additional flexibility beyond will be included in the EHB defined in market as defined in § 155.20; (2) the what was initially outlined in the EHB § 156.110(a), based on section 1302(b)(1) largest plan by enrollment in the third Bulletin will provide a valuable of the Affordable Care Act. In our largest product in the state’s small group opportunity for states to lead the review of research on employer- market as defined in § 155.20; (3) the development of policy in this area and sponsored plan benefits, including largest national FEHBP plan by welcome comments on this proposed small employer products, HHS found enrollment across states that is approach to providing habilitative that a number of potential benchmarks described in and offered to Federal services. If states choose not to define do not include coverage for pediatric employees under 5 U.S.C. 8903; (4) the the habilitative services category, plans oral and vision services, as they are plan described in paragraph (b)(2)(i) to must provide these benefits as defined often covered under stand-alone cover pediatric oral care benefits; (5) the in § 156.115. policies. To address these gaps, we Because states may propose propose targeted policy options for each plan described in (b)(3)(i) to cover pediatric vision care benefits; and (6) benchmarks in formal comments on this of these benefit categories. proposed rule other than those In paragraph (b)(2), we provide states habilitative services as described in tentatively proposed, HHS is requesting with two options for supplementing § 156.110 (f) or § 156.115(a)(4). public comment on all possible EHB- base-benchmark plans that do not In paragraph (d), we propose that the benchmark plans, not just those include benefits for pediatric oral care EHB-benchmark plan must not include included in Appendix A as proposed coverage. The first option, described in discriminatory benefit designs. As set benchmarks. This would also include paragraph (b)(2)(i), is to supplement forth in § 156.125, those standards each potential base-benchmark plan with pediatric coverage included in the would prohibit benefit and network available to a state for selection and all FEDVIP dental plan with the largest designs that discriminate on the basis of enrollment. The second option, potential combinations of benefits used an individual’s medical condition, or to supplement the base-benchmark described in paragraph (b)(2)(ii), is to against specific populations as supplement with the benefits available plans to ensure coverage of at least the described in the statute. This proposed 10 statutory benefit categories as set under that state’s separate CHIP standard would apply both to benefit program, if applicable. forth in § 156.110. As an example, a designs that limit enrollment, and those state may select its largest small group Similarly, in paragraph (b)(3), we that prohibit access to care for enrollees. propose that if the base-benchmark plan product and, if the product is missing While we believe that it is unlikely that maternity coverage and pediatric dental does not include pediatric vision an EHB-benchmark plan will include services, then these benefits may be coverage, supplement for missing discriminatory benefit offerings, this maternity coverage with the second supplemented from one of two options. section proposes that any EHB- The first option, described in (b)(3)(i), is largest small group market product and benchmark plan that does include for pediatric dental coverage with the to supplement pediatric vision coverage discriminatory benefit designs must be included in the FEDVIP vision plan state’s CHIP dental plan. However, adjusted to eliminate such according to the process described in with the largest national enrollment discrimination in benefit design. offered to Federal employees under 5 proposed § 156.110, the state may U.S.C. 8982. The second option, In paragraph (e), we propose choose to supplement using the described in (b)(3)(ii), is to supplement implementing section 1302(b)(4) of the maternity benefit from any of the base- pediatric vision coverage with the Affordable Care Act by proposing that benchmark plan options in the state that state’s separate CHIP plan, if applicable. the EHB-benchmark plan be required to offer maternity coverage, and the We believe that this additional option— ensure an appropriate balance among pediatric dental benefit from either an expansion of the policy presented in the categories of EHB so that benefits are FEDVIP or CHIP dental. In this example, the EHB Bulletin—will provide states not unduly weighted toward any commenters should consider: the state- with valuable flexibility as they select category. We solicit comments on selected EHB-benchmark plan as their EHB benchmark plans. HHS will potential approaches to ensuring that supplemented, the state-selected plan make benefit data available to facilitate the EHB-benchmark plans do not with other permissible supplementing any supplementation by states of their include discriminatory benefit designs options, and all other base-benchmark base-benchmark plans with benefits and reflect an appropriate balance plans the state has the opportunity to from FEDVIP dental and vision plans among the categories of EHB. In prior to the publication of this final rule. conducting research on employer- 13 ASPE Research Brief, ‘‘Essential Health In paragraph (c), we propose the sponsored plan benefits and state- Benefits: Comparing Benefits in Small Group process by which HHS would required benefits, HHS found that many Products and State and Federal Employee Plans.’’ health insurance plans do not identify December 16, 2011. Available at: http://aspe.hhs. supplement a default base-benchmark gov/health/reports/2011/MarketComparison/ plan, if necessary. We clarify that to the habilitative services as a distinct group rb.shtml.

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select, as supplemented by any of the (a)(4), we propose that if the EHB- and methodologies; and (iii) use a options available to that state. benchmark plan does not include standardized plan population. Lastly, in coverage for habilitative services and paragraph (b)(3), we propose that d. Provision of EHB (§ 156.115) the state does not determine habilitative actuarial equivalence of benefits be In paragraph (a)(1), we propose that benefits, a health insurance issuer must determined based on the value of the plans may have limitations on coverage either: (1) Provide parity by covering service without regard to cost-sharing, that differ from the EHB-benchmark habilitative services benefits that are as cost sharing will be considered in the plan, but covered benefits must remain similar in scope, amount, and duration actuarial value calculation described in substantially equal to those covered by to benefits covered for rehabilitative § 156.135. We note that the resulting the EHB-benchmark plan. This standard services; or (2) Decide which plan benefits would be subject to applies to the covered benefits, habilitative services to cover and report requirements of non-discrimination limitations on coverage (including on that coverage to HHS. With regard to described in § 156.125. In addition, we limits on the amount, duration, and option (2), HHS intends to evaluate the clarify that under this approach, states scope of covered benefits), and habilitative services reported and have the option to enforce a stricter prescription drug benefits that meet the further define habilitative services in standard on benefit substitution or requirements of § 156.120. the future. The issuer only has to prohibit it completely. With the As previously noted, the Affordable supplement habilitative services when exception of the EHB category of Care Act identifies coverage of mental there are no habilitative services at all coverage for pediatric services, a plan health and substance use disorder offered in the base benchmark plan and may not exclude an enrollee from benefits as one of the 10 statutory the state has not exercised its option to coverage in an entire EHB category benefit categories, and therefore as an define habilitative services under covered by the plan. For example, a EHB for non-grandfathered health § 156.110(f). We believe that this plan may not exclude dependent insurance coverage in both the alternative approach would provide a children from the category of maternity individual and small group markets. In valuable window of opportunity for and newborn coverage. paragraph (a)(2), under our authority to review and development of policy in In response to our proposed approach define EHB, we propose that in order to this area and welcome comments on to benefit substitution, we seek satisfy the requirement to offer EHB, this proposed approach. additional comment on the tradeoff mental health and substance use We first introduced the concept of between comparability of benefits and disorder services, including behavioral opportunities for plan innovation and health treatment services required under benefit substitution in the EHB Bulletin, which suggested that a plan offering the benefit choice. § 156.110(a)(5), must be provided in a In paragraph (c), we propose to clarify EHB could substitute a benefit or set of manner that complies with the parity that a plan does not fail to provide the benefits for another benefit or set of standards set forth in § 146.136 of this EHB solely because it does not offer the similar benefits subject to certain chapter, implementing the requirements services described in § 156.280(d). Here constraints—for example, that the two under the Mental Health Parity and we extend the statutory provision in sets of benefits be actuarially equivalent. Addiction Equity Act of 2008. section 1303(b)(1)(A), that allows a QHP In this proposed rule, we propose this In paragraph (a)(3), we further to meet the standards for EHB even if it policy for the substitution of benefits propose that a plan does not provide does not offer the services described in relative to the benefits defined by the EHB unless it provides all preventive § 156.280(d), to health insurance issuers EHB benchmark plan consistent with services described in section 2713 of the that offer non-grandfathered coverage in what HHS outlined in the EHB Bulletin. PHS Act, as added by section 1001 of the individual or small group market. As outlined in paragraph (b)(1)(i), we the Affordable Care Act. As codified in We note that this provision applies to propose that issuers may substitute § 147.130, PHS Act section 2713 all section 1303 services, including benefits, or sets of benefits, that are requires all non-grandfathered group pharmacological services. health plans and non-grandfathered actuarially equivalent to the benefits In paragraph (d), we propose that an individual and group market plans that being replaced. We further propose in issuer of a plan offering EHB may not are not exempt from the coverage paragraph (b)(1)(ii) that substitution of include routine non-pediatric dental requirement to offer certain preventive benefits would be allowed in each of the services, routine non-pediatric eye exam services without cost-sharing. We 10 statutorily required benefit services, and long-term/custodial believe it is appropriate to include a categories, meaning that substitution nursing home care benefits as EHB. As requirement for coverage of these could only occur within benefit previously noted, section 1302 of the services under the definition of EHB. categories, not between different benefit Affordable Care Act requires that the Setting forth this explicit application of categories. In paragraph (b)(1)(iii), we EHB package include at least the 10 PHS Act section 2713 in regulation is clarify that our proposed benefit statutorily required categories of EHB, necessary because EHB-benchmark plan substitution policy does not apply to and be equal to the scope of benefits benefits are based on 2012 plan designs prescription drug benefits. In paragraph provided under a typical employer plan. and therefore could be based on a (b)(2), we outline standards for an In contrast with the benefits covered by grandfathered plan not subject to PHS actuarial certification that must be a typical employer health plan, non- Act section 2713. submitted by an issuer to a state, which pediatric dental services, non-pediatric As an alternative to the transitional demonstrates that any substituted eye exam services, cosmetic approach outlined in § 156.110(f), some benefit, or group thereof, is actuarially orthodontia, and long-term/custodial states may prefer to provide issuers with equivalent to the original benefit or nursing home care benefits often qualify the opportunity to define the specific benefits contained in the EHB- as excepted benefits.14 Pursuant to the benefits included in the habilitative benchmark for that state. Specifically, direction provided in section 1302 to services category if it is missing from we propose that the report must: (i) Be define benefits equal in scope to a the base-benchmark plan. Accordingly, conducted by a member of the American Academy of Actuaries; (ii) based on an we are proposing that a state may allow 14 For more information on excepted benefits, see issuers time and experience to define analysis performed in accordance with 26 CFR 54.9831–1, 29 CFR 2590.732, 45 CFR these benefits. Specifically, in paragraph generally accepted actuarial principles 146.145, and 45 CFR 148.220.

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typical employer plan, we propose that must report its drug list to the Exchange, not included on the plan’s drug list, issuers of plans offering EHB may not an EHB plan operating outside of the which is consistent with private plan include these benefits as EHB. We Exchange must report its drug list to the practice today. We solicit comments on solicit comment on the exclusion of state, and a multi-state plan must report this proposed requirement. these specific benefits from EHB its drug list to OPM. In paragraph (b) we As discussed below, § 156.125 coverage. clarify that a health plan does not fail implements section 1302(b)(4)(B) of the to provide EHB prescription drug Affordable Care Act, which directs the e. Prescription Drug Benefits (§ 156.120) benefits solely because it does not offer Secretary to ensure that EHBs are not In the EHB Bulletin, we indicated that drugs that are § 156.280(d) services. designed in a discriminatory manner. In we were considering an option under We are considering using the most implementing § 156.125 in the context which, in order to be considered recent version of the United States of prescription drug benefits, we substantially equal to the EHB- Pharmacopeia’s (USP) classification encourage states to monitor and identify benchmark plan, issuers would be system as a common organizational tool discriminatory benefit designs, or the required to cover at least one drug in for plans to report drug coverage implementation thereof and to test for each category and class in which the because it is publically available, widely such discriminatory prescription drug EHB-benchmark plan covered at least used, and comprehensive. A benefit designs. We will use information one drug. The specific drugs on each classification system functions as an on complaints and appeals and data on plan’s drug list could vary under this organizational tool, similar to an outline drug lists to refine our prescription drug approach, as long as a drug in each or taxonomy. Directing plans to submit benefit review policy for future years. category and class was covered. their drug list using the same f. Prohibition on Discrimination In response to the EHB Bulletin, a classification system would facilitate (§ 156.125) large number of commenters raised review, analysis, and comparison of the concerns about the comprehensiveness number of drugs on the QHP’s list to the Section 1302(b)(4) of the Affordable of prescription drug benefits under this number of drugs on the EHB Benchmark Care Act directs the Secretary to address potential approach. Specifically, many Plan’s list. If adopted in the final rule, certain standards in defining EHB, commenters indicated that a we will continue to assess the need for including elements related to balance, requirement to offer one drug per and value of such a tool and intend to discrimination, the needs of diverse category and class could result in work with states and the NAIC to sections of the population, and denial of insufficient access to medications for facilitate state use of the USP benefits. Section 1302(b)(4)(B) of the individuals with certain conditions. classification system as a comparison Affordable Care Act provides that the Several commenters additionally tool.17 Secretary ensure that in terms of the recommended that the definition of EHB In general, each EHB plan would be benefits covered, payment rates adopt the standards used in Medicare able to cover different drugs than are provided, or incentives built into the Part D, including the protected class covered by the EHB-benchmark plan, definition of EHB, there is no policy under which all drugs in certain but those drugs must be presented using discrimination based on age, disability, classes must be covered.15 Conversely, the USP classification system. This or expected length of life. Similarly, other commenters emphasized the approach permits plan flexibility in the section 1302(b)(4)(C) of the Affordable importance of flexibility for issuers to drug benefit design and the use of Care Act provides that the Secretary design a drug benefit that maximizes medical management tools, while take into account the health care needs value for consumers. Based on these ensuring that plans offer drug coverage of diverse segments of the population, comments and the need to balance consistent with that of the typical including women, children, persons access with affordability, we propose employer plan. An EHB plan would be with disabilities, and other groups. In the following approach, on which we able to cover any drugs subject to addition, section 1302(b)(4)(D) of the solicit comment. meeting the minimum number per Affordable Care Act provides that the In paragraph (a)(1) we propose that in category and class. Secretary ensure that the EHB not be order to comply with the requirement to We also propose that drugs listed subject to denial to individuals against cover EHB, a plan would cover at least must be chemically distinct.18 For their wishes on the basis of the the greater of: (1) One drug in every example, offering two dosage forms or individuals’ age or expected length of category and class; or (2) the same strengths of the same drug would not be life, or of the individuals’ present or number of drugs in each category and offering drugs that are chemically predicted disability, degree of medical class as the EHB-benchmark plan. As distinct. Offering a brand name drug dependency, or quality of life. Taken such, if the EHB-benchmark drug list and its generic equivalent is another collectively, we interpret these offers more than one drug in a category example of drugs that are not provisions as a prohibition on or class, then plans covering EHB would chemically distinct. discrimination by issuers. To inform the offer at least the number of drugs in the In paragraph (c), we propose that a development of the policy on EHB-benchmark plan for that class. plan offering EHB have procedures in discrimination in the EHB, we sought Research suggests that this is consistent place to ensure that enrollees have stakeholder feedback, and considered with coverage in the small group market access to clinically appropriate drugs guidance provided by the IOM. Many today: one study found that most that are prescribed by a provider but are commenters expressed concern about existing small group plans cover more the potential for benefit designs that than one drug in each class.16 In 17 The requirement to use USP classification might discriminate against certain applies only to submission of formulary for review/ populations or consumers with paragraph (a)(2) we propose that a QHP certification. Plans may continue to use any classification system they choose in marketing and significant health needs. Commenters 15 CMS has identified certain ‘‘protected other plan materials. also recommended that HHS establish categories and classes.’’ In those protected 18 The concept of chemically distinct is also an explicit non-discrimination policy categories and classes, Plan D formularies must described in the Medicare Part D Manual, Chapter for benefit design. Based on this include substantially all drugs that are FDA- 6, Section 30.2.1. More information is available at: approved. https://www.cms.gov/Medicare/Prescription-Drug- information, in § 156.125, we propose 16 Available at: http://www.avalerehealth.net/ Coverage/PrescriptionDrugCovContra/downloads// an approach to addressing pdfs/Avalere_EHB_Formulary_Analysis.pdf. Chapter6.pdf. discrimination that would allow states

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to monitor and identify discriminatory requires all qualified health plans to $6,250 in 2013 for self-only and $12,500 benefit designs, or the implementation comply with these limits, and section for non-self only coverage.19 In thereof. Under this approach, consistent 2707(a) of the Public Health Service Act § 156.130(a)(2)(i), we propose that the with section 1563(d) of the Affordable requires compliance by issuers offering annual limitation on cost sharing is Care Act, we would not prohibit issuers non-grandfathered health insurance increased by the premium adjustment implementing the EHB standards from coverage in the individual and small percentage, which is set by HHS as applying utilization management group markets. Standards proposed described in § 156.130(e), in years after techniques. However, issuers could not here, at § 156.130, would be applicable 2014 for self-only coverage. In use such techniques to discriminate to QHPs pursuant to 45 CFR § 156.130(a)(2)(ii), we propose that the against certain groups of people. For 156.200(b)(3), which requires QHPs to annual limitation on cost sharing in example, an issuer could use prior offer the essential health benefits years after 2014 for non-self only authorization, but could not implement package described at section 1302(a) of coverage is double the annual limitation prior authorization in a manner that the Affordable Care Act. Similarly, these on cost sharing for self-only coverage for discriminates on the basis of factors standards would be applicable to health that year. These proposed rules including age, disability, or length of insurance coverage offered by health basically codify the statute. life (for example, in terms of whether insurance issuers in the individual and Sections 1302(c)(2)(A)(i) and prior authorization is required, or when small group markets pursuant to 1302(c)(2)(A)(ii) of the Affordable Care authorization is granted). § 147.150 of these regulations, as Act define and § 156.130(b) codifies the To address potentially discriminatory discussed earlier. annual limitation on deductibles for practices, based on the authority in Cost sharing is defined in § 156.20 as health plans offered in the small group section 1302(b)(4) of the Affordable Care any expenditure required by or on market. This limitation on cost-sharing Act, we propose in paragraph (a) that an behalf of an enrollee with respect to is imposed on QHPs by section issuer does not provide EHB if its essential health benefits. The term 1301(a)(1)(B) of the Affordable Care Act benefit design, or the implementation of includes deductibles, coinsurance, and 45 CFR 156.200(b)(3). The its benefit design, discriminates based copayments, or similar charges, but limitation is also imposed on non- on an individual’s age, expected length excludes premiums, balance billing grandfathered coverage in the small of life, or present or predicted disability, amounts for non-network providers, and group market by section 2707(b) of the degree of medical dependency, quality spending for non-covered services. We PHS Act, which we propose here to of life, or other health conditions. In discuss here the implications and implement in proposed 45 CFR paragraph (b), we reiterate that rationale of setting these standards in 147.150(a). In § 156.130(b)(1)(i), we § 156.200 and § 156.225 also apply to the context of their application to QHPs propose that the annual limitation on plans providing EHB. Section 156.200 and issuers of health plans in the deductibles for the year 2014 are $2,000 prohibits discrimination based on individual and small group markets. for self-only coverage and in In § 156.130(a), we codify the factors including but not limited to race, § 156.160(b)(1)(ii), $4,000 for non self- disability, and age. Section 156.225 Affordable Care Act’s annual limitation only coverage. In § 156.130(b)(2) we prohibits marketing practices and on cost sharing for 2014 and in propose that in years beyond 2014, the benefit designs that result in subsequent years. Section 1302(c)(1)(A) annual deductible limits for self-only discrimination against individuals with of the Affordable Care Act identifies the plans are increased by the premium significant or high cost health care limit on total enrollee cost-sharing that adjustment percentage described in needs. can be incurred. The annual limitation This proposal is intended to develop on cost sharing ensures that health paragraph (e) based on section the framework for analysis tools to plans pay for significant health 1302(c)(2)(B) of the Affordable Care Act. facilitate testing for discriminatory plan expenses associated with EHB and the In § 156.130(b)(2)(i), we specify this for benefits. The IOM, in its report on the risk of medical debt or bankruptcy for self-only coverage and in EHB, suggests that states have an individuals insured by such plans is § 156.130(b)(2)(ii), we specify this is important role in monitoring to ensure limited. Once the limitation on cost doubled for family coverage or coverage that issuers’ plans do not contain outlier sharing is reached for the year, the of any type other than self-only. practices that would undermine EHB enrollee is not responsible for additional Section 1302(c)(2)(C) of the coverage. We believe that cost sharing for EHBs for the remainder Affordable Care Act directs that the discrimination analyses could include of the plan year. limit on deductibles described in evaluations to identify significant Section 156.130(a)(1) ties the annual section 1302(c)(2)(A) for a health plan deviation from typical plan offerings limitation on cost sharing for plan years offered in the small group market be including unusual cost sharing and beginning on or after January 1, 2014, to applied so as to not affect the actuarial limitations for benefits with specific the enrollee out-of-pocket limit for high- value of any health plan. We interpret characteristics. We also note that deductible health plans (HDHP), as and implement this provision through Medicare Advantage Program cost- calculated pursuant to section our proposal at § 156.130(b)(3) by sharing designs are subjected to this 223(c)(2)(A)(ii) of Internal Revenue authorizing a health insurance issuer to type of analysis for potential Code of 1986 (the Code) based on make adjustments to its deductible to discriminatory effects. We welcome section 1302(c)(1)(A) of the Affordable maintain the specified actuarial value comments on our proposed approach to Care Act. Paragraph (a)(1)(i) addresses for the applicable level of coverage prohibiting discriminatory benefit the limitation for self-only coverage and required under proposed § 156.140 and design. paragraph (a)(1)(ii) addresses the annual limitation on cost sharing. In limitation for coverage other than self- § 156.130(b)(3), we propose that a plan g. Cost-Sharing Requirements only coverage; the practical effect for may exceed the annual deductible limit (§ 156.130) coverage other than self-only coverage is if it cannot reasonably reach a given Section 1302(c)(1) of the Affordable that the annual limitation will be double level of coverage (metal tier) without Care Act identifies an annual limitation the limitation applicable to self-only doing so. on enrollee cost sharing. Section coverage. For illustrative purposes only, 1301(a)(1)(B) of the Affordable Care Act for the year 2013 these amounts will be 19 http://www.irs.gov/pub/irs-drop/rp-12-26.pdf.

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We propose to use a ‘‘reasonableness’’ defined in paragraph (a) of this section, HHS notice of benefit and payment standard and request comment on what or the annual limitation on deductibles, parameters.20 evidence or factors should be required as defined in paragraph (b) of this In paragraph (f), we codify section from an issuer and considered in section. We consider an out-of-network 1302(c)(2)(D) of the Affordable Care Act, determining whether this standard is provider to be a provider with whom which states that the annual deductibles met with respect to health insurance the issuer does not have a contractual do not apply to preventive care coverage subject to 2707(b) of the PHS arrangement with respect to the described in § 147.130. In paragraph (g), Act. While it may be possible to develop applicable plan. For example, if an under our authority in section 1302(b)(4)(B) of the Affordable Care Act plan designs to meet all of these issuer offers a three-tiered network plan, constraints, we believe it could be prohibiting EHBs from discriminating with the third tier considered to be difficult to develop plans with against individuals based on age, ‘‘out-of-network’’ (that is, providers reasonable coinsurance or equivalent disability, or expected length of life, and cost sharing rates in the future, for without contractual relationships for our general authority under section example in bronze plans. An alternative providing services), only the cost 1321(a)(1)(D) of the Affordable Care Act would be to use the actuarial value sharing that an enrollee pays for benefits to establish appropriate requirements by calculator described in § 156.135 to provided under the first and second regulation, we propose to require that determine a reasonable increase to the tiers would count towards the annual cost-sharing requirements conform with amounts described in paragraph (b) that limitation on cost sharing (and, if the the anti-discrimination provisions of can be used by all plans in the small plan is one offered in the small group § 156.125. group market. We solicit comment on market, the annual limitation on Paragraph (h) would implement the this approach on whether a specific deductibles). Therefore, an enrollee who requirements in section 1302(b)(4)(E) of variation threshold should be identified, utilizes many services could reach the the Affordable Care Act that (1) and if so, how any such threshold annual limitation on cost sharing, but emergency department services will be should be established. still be required to pay cost sharing if provided out-of-network 21 without Section 1302(c)(2)(A) of the the enrollee chooses to purchase imposing any requirement under the Affordable Care Act provides that in services outside of the plan’s network plan for prior authorization of services, certain circumstances, the deductible that year. This policy aligns with the or any limitation on coverage for the provision of services, that is more maximums described in § 156.130(b)(1) definition of the enrollee out-of-pocket restrictive than the requirements or may be increased by the maximum limit for high deductible health plans, amount of reimbursement ‘‘reasonably limitations that apply to emergency articulated in section 223(c)(2)(D) of the available’’ to an employee under a department services received from flexible spending arrangement (FSA) Code. We believe this policy would network providers, and (2) cost sharing described in section 106(c)(2) of the allow issuers greater flexibility to design in the form of a copayment or Code. We considered permitting the innovative plan benefit structures. We coinsurance for emergency department maximum deductible to increase by the note that nothing in this proposal services amount for an out-of-network amount available to each employee explicitly prohibits an issuer from provider is the same as would apply to under the FSA. Permitting such voluntarily establishing a maximum an in-network provider. Because we variability in the maximum deductible out-of-pocket limit applicable to out-of- have already promulgated regulations at by employee would require different network services, or a state from § 147.138(b)(3) implementing identical deductible plans to be available to requiring that issuers do so. We statutory language in section different employees based on an FSA welcome comment on this approach. 2719A(b)(1)(C)(ii)(II) of the Public decision made during the open In § 156.130(d), we codify sections Health Service Act regarding limitations on cost-sharing in the emergency room enrollment process. Because we 1302(c)(1)(B) and 1302(c)(2)(B) of the context, we are proposing to require in interpret section 1302(c)(2)(A) of the Affordable Care Act by requiring that Affordable Care Act as permitting but paragraph (h) that an issuer comply the annual limitation on cost sharing not requiring FSAs to be taken into with the cost-sharing requirements at 45 and the annual limitation on account when determining the CFR147.138(b)(3). This treatment of out- deductible maximum, we propose to deductibles for a plan year beginning of-network emergency services extends standardize the maximum deductible after calendar year 2014 only increase the in-network treatment of cost-sharing for all health plans in the small group by multiples of $50 and must be payments and limitations to out-of- market at $2,000 for self-only coverage rounded to the next lowest multiple of network emergency services as a part of and $4,000 for non-self-only coverage, $50. the annual limit on cost sharing defined as described in § 156.130(b)(1) and In paragraph (e), we codify section in paragraph (a). potentially adjusted in § 156.130(b)(3), 1302(c)(4) of the Affordable Care Act, h. AV Calculation for Determining Level and not increase the deductible levels which specifies that the premium of Coverage (§ 156.135) by the amount available under the FSA. adjustment percentage is calculated as However, we welcome comments on As we stated previously in connection the percentage (if any) by which the with § 156.20, AV is a measure of the permitting such an adjustment, average per capita premium for health including permitting an employer to percentage of expected health care costs insurance coverage for the preceding a health plan will cover for a standard attest to the amount available to calendar year exceeds such average per employees in an FSA as the basis for capita premium for health insurance for 20 increasing the maximum permissible The annual HHS notice of benefit and payment 2013. This ensures that the annual parameters will first be published this year, as deductible for employees. limitation on cost sharing and the discussed in the Standards Related to Reinsurance, In § 156.130(c), we propose a special Risk Corridors and Risk Adjustment, final rule (77 rule for network plans. Under our annual limitation on deductibles change FR 17220 (March 23, 2012)). proposal, cost- sharing requirements for with health insurance market premiums 21 For consistency, we are using the term ‘‘out-of- benefits from a provider outside of a over time. HHS will publish the network’’ here to refer to services where the methodology and annual premium ‘‘provider of services does not have a contractual plan’s network do not count towards the relationship with the plan,’’ as this phrase is used annual limitation on cost sharing, as adjustment percentage in the annual in section 1302(b)(4)(E).

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population and can be considered a including in-network cost sharing are uniform calculator can accommodate general summary measure of health plan appropriate even if some plans offer in- the entire potential universe of plan generosity. The Affordable Care Act network services only, while other plans designs. Therefore, there may be a small directs issuers offering non- offer out-of-network services with subset of plans whose design would not grandfathered health insurance coverage higher cost-sharing, because in general, be compatible with the calculator. We in the individual and small group out-of-network costs are a very small intend to interpret this standard as markets to ensure that plans meet a percentage of total medical spending. dependent on whether the calculator level of coverage specified in section The calculator and accompanying takes into account or accommodates all 1302(a)(3) of the Affordable Care Act continuance tables are available at material aspects of a plan’s cost sharing and defined in § 156.140(b). Under the http://cciio.cms.gov/resources/ structure. For example, we expect that statute, each level of coverage regulations/index.html#pm and are the calculator will not be able to corresponds to an AV calculated based subject to comment. accommodate plan designs with on the cost-sharing features of the plan Under this proposal, the AV multiple coinsurance rates as different as described above. In this section, we calculator will be available for both levels of out-of-pocket spending are met propose an approach for issuer formal and informal calculations and or a multi-tier network with substantial calculation of AV as discussed in the could be used as a tool to assist in the amounts of utilization expected in tiers AV/CSR Bulletin.22 In paragraph (a), we design of health plans. The calculator other than the lowest-priced tier. As propose that an issuer would use the AV will allow health plan issuers to devise proposed in paragraph (b)(1), these calculator developed by HHS to a compliant plan without the burden of plans would need to submit to the determine its level of coverage as making the assumptions needed or appropriate entity (the state, HHS, the proposed in § 156.140(b), subject to the paying for the analysis for an AV Exchange, or OPM) documentation in exception in paragraph (b). calculation. Thus, the calculator would the form of actuarial certification that The AV calculator, as proposed here, reduce issuer burden in calculating AV. they have complied with one of the has been developed using a set of claims We solicit comment on this proposal to methods described below. data weighted to reflect the standard direct the use of the AV calculator and Paragraph (b)(2) proposes two options population projected to enroll in the on the parameters described here for to accommodate plans with benefit individual and small group markets for development of the AV calculator. designs that cannot be accommodated the identified year of enrollment. Plans Consistent with section 1302(d)(2)(A) by the AV calculator. In paragraph would input information on cost- of the Affordable Care Act, that AV be (b)(2)(i), we propose that a health plan sharing parameters. A methodology calculated based on the provision of the issuer be permitted to decide how to document including both the logic EHB to a standard population, we adjust the plan benefit design (for behind the calculator and a description propose that the AV calculator will use calculation purposes only) to fit the of the development of the standard one or more sets of national claims data parameters of the calculator and then, population, represented in the reflecting plans of various levels of pursuant to paragraph (b)(2)(ii), have an calculator as tables of aggregated data generosity as the underlying standard actuary who is a member of the called continuance tables, is available population. We considered distributing American Academy of Actuaries certify and proposed at http://cciio.cms.gov/ a standard set of de-identified that the methodology is in accordance resources/regulations/index.html#pm to individual-level claims data to issuers with generally accepted actuarial promote transparency. The document is as the standard population and allowing principles and methodologies. In part of the proposal for the use of the them to estimate the AV of their plans paragraph (b)(3), we propose a second AV calculator in determining actuarial by comparing that standard set of claims option, that the plan may use the value of an applicable plan. against their plan designs. However, we calculator for the plan design provisions We solicit comment on the are not aware at this time of a that correspond to the parameters of the methodology for the development of the sufficiently robust person-level data set calculator and then have a member of AV calculator and the continuance that could be made publicly available. the American Academy of Actuaries tables, which were developed based on As another alternative, we considered calculate appropriate adjustments to the the standard population. The consistent distributing only the continuance tables, AV as determined by the AV calculator methodology in AV calculation ensures representing the standard population for plan design features that deviate a consistent set of assumptions and and its utilization, to issuers to perform substantially, in accordance with methods in AV calculation for all health AV calculations. Under this method, the generally accepted actuarial principles plans using the calculator, resulting in set of assumptions would be more and methodologies. We propose in comparability for consumers since plans uniform, but there would still be paragraph (b)(4) that, to align with the with the same cost-sharing design inconsistency and variation among AV calculator and the rules proposed would have the same AV. Because issuers depending on the specific here for how AV is determined, plans empirically only a small percentage of calculation method and logic used by using one of these methods would total costs come from out-of-network each issuer. Comments on the AV/CSR exclude out-of-network costs when utilization, the difference in a plan’s AV Bulletin were generally supportive of using additional calculation methods. resulting from the inclusion of out-of- the approach we propose here to We also note, however, that a multi- network utilization in the AV develop a publicly available and tiered plan should consider all network calculation is small. Therefore, the transparent AV calculator based on a tiers in its AV calculation and exclude proposal for determining AV and, thus, standard population represented only costs that are truly out-of-network the calculator only considers in-network through continuance tables. (providers with which the plan has no utilization. Comments from the In paragraph (b), we propose options contractual relationship). American Academy of Actuaries to the for an issuer whose plan designs do not In paragraph (c), we propose a AV Bulletin confirmed that, for the permit the calculator to provide an standard for the treatment of small majority of plans, estimations only accurate summary of plan generosity. group market HDHPs offered with a Although HHS anticipates that the vast health savings account (HSA) or a 22 Available at http://cciio.cms.gov/resources/ majority of plans will be able to use the health plan in the small group market files/Files2/02242012/Av-csr-bulletin.pdf. calculator in 2014 and beyond, no integrated with a health reimbursement

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arrangement (HRA), so that HDHP and (i.e. in place of the HHS-issued our adoption of criteria identified by the HSAs/HRAs are integrated. Recognizing continuance tables) for AV calculations American Academy of Actuaries. that simply calculating the AV of the if approved by HHS. Issuers in such a In paragraph (e), HHS proposes that HDHP based on the insurance plan state would still use the AV calculator the default standard population alone could understate the value of logic, but the underlying data used for provided by HHS, which is described in coverage if the values of the employer generating the AV would be specific to paragraph (f) and represented in the contribution to such accounts are not the state. Paragraphs (d)(1) through (5) continuance tables incorporated into included, and that employer-provided propose criteria for acceptable state this regulatory proposal by reference, HSAs and HRAs are generally the claims data and their use. The proposed would be used unless the state submits equivalent of first dollar coverage for criteria are based on our review of a its own standard population consistent any cost-sharing requirements July, 2011 American Academy of with paragraphs (d) and (e). In encountered by the enrollee, in Actuaries issue brief.23 Paragraph (d)(1) paragraph (e), HHS proposes that the paragraph (c)(1), we propose that the proposes that the data support the state data set be submitted in a format annual employer contributions to HSAs calculation of AVs for the full range of that can support the AV calculator and amounts newly made available health plans available in the market, described in paragraph (a). Because under HRAs for the current year should meaning that the structure and HHS will use continuance tables to count within the plan design. This definitions for the data set must be support the development of the AV treatment of HSA and HRA standardized and clearly documented. calculator, we anticipate that states will contributions is similar to how other Paragraph (d)(2) proposes that the also submit any state-specific data sets employer contributions toward cost- underlying population must be derived in the form of continuance tables. HHS sharing are treated within the plan from the non-elderly population likely intends to provide a template and design, such that a plan with a $0 to be covered by private plans in the instructions for these submissions. deductible has the same AV as a plan 2014 market and beyond. For example, Several comments on the AV/CSR with a $1,000 deductible plus a $1,000 the underlying population cannot be Bulletin requested additional guidance HSA or HRA. based primarily on Medicaid or on the process and timeline for state Section 1302(d)(2)(B) of the Medicare enrollees. This criterion is submission of data. We remain open to Affordable Care Act directs the also intended to ensure that the data set comments on the use of state data for Secretary to issue regulations under represents members in the then current 2014, but given timing constraints, we which employer contributions to an small group and individual markets for propose that the option for states to HSA (within the meaning of section 223 the state. Paragraph (d)(3) proposes that submit a state-specific standard of the Internal Revenue Code of 1986) the data set must be large enough so that population will begin for plan years may be taken into account in (i) demographic patterns and spending starting in 2015. We expect that determining the level of coverage for a patterns are stable over time to submissions will be due in the second plan of the employer. HHS is accommodate periodic updates and (ii) quarter of the year prior to the benefit interpreting the statute to allow for a a substantial majority of the state’s year. similar treatment of HRAs because insured population is included, subject Paragraph (f) proposes that HHS will amounts newly made available under an to the requirement in paragraph (2) to develop the standard population to be HRA integrated with a small group cover the expected insured population used to calculate AV in accordance with market plan have a similar impact on in 2014. Paragraph (d)(4) proposes that, section 1302(d)(2)(A) of the Affordable AV calculation as employer if a state intends to reflect geographic Care Act, which requires that AV be contributions to an HSA when adjusted differences within the state, the data set calculated using a standard population. as described below in the discussion of must be sufficiently large and This standard population will be used paragraphs (c)(2)(i) and (c)(2)(ii). In geographically diverse for area-specific for AV calculation under § 156.135. paragraph (c)(2), we propose that these calculations. Paragraph (d)(5) proposes Comments on the AV/CSR Bulletin were contributions be applied to the plan that the data set must capture a wide generally supportive of the proposal to design to account for the fact that HSA range of health care services typically use a standard data set developed by and HRA contributions are the offered, including those that fall within HHS, with the option of state flexibility equivalent of first dollar coverage for EHB and are at the time of submission to provide a state-specific data set for any cost-sharing requirements offered in a typical employer plan. For AV calculations. We solicit comment on encountered by the enrollee and similar example the data set must include whether the AV calculator should allow to other employer cost-sharing claims for maternity, prescription drugs, for this variation between states. We contributions to plan design. and mental health benefits. Comments also solicit comment on whether we In paragraphs (c)(2)(i) and (c)(2)(ii), on the AV/CSR Bulletin 24 generally should consider including up to three we propose that the AV calculator supported the proposal to allow states regional adjustments for geographic would include any current year HSA the flexibility to provide their own data price differences as described in the contributions or amounts newly made sets. Some groups commented that the AV/CSR Bulletin. available under an HRA for the current state data would need to be at least as year as an input into the calculator that i. Levels of Coverage (§ 156.140) robust as the national data set. HHS can be used to determine the AV of an This section describes standards for believes that the parameters outlined employer health benefit plan. We note meeting the Affordable Care Act above, and adopted from the American that employee HSA contributions will provisions that issuers offering QHPs or Academy of Actuaries’ not count towards AV, nor do these non-grandfathered health plans in the recommendations, will ensure that state provisions apply to the coverage offered individual and small group markets specific data are sufficiently robust. We by issuers in the individual market offer plans that meet distinct levels of solicit comment on this proposal and because HSAs in the individual market coverage; we note that an applicable are funded directly by the enrollee. issuer may offer a catastrophic plan, as 23 Available at http://www.actuary.org/pdf/ Paragraph (d) proposes that in years health/Actuarial_Value_Issue_Brief_072211.pdf. described in section 1302(e) of the 2015 and after, a state-specific data set 24 http://cciio.cms.gov/resources/files/Files2/ Affordable Care Act, in lieu of a health may be used as the standard population 02242012/Av-csr-bulletin.pdf. plan that meets one of these levels of

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coverage. Section 1302(d)(2) of the amounts into account in determining In the event that a plan uses the MV Affordable Care Act directs the AV. calculator and offers an EHB outside of Secretary to issue regulations on the In applying this approach to the parameters of the MV calculator, we calculation of AV and its application to determining MV, in paragraph (a)(1), we propose in paragraph (b)(1) that an the levels of coverage. propose that employer-sponsored self- actuary who is a member of the Paragraph (a) proposes the general insured and insured large group plans American Academy of Actuaries will be requirement that the AV of a plan must will be able to use the MV calculator, permitted to determine the value of that be calculated according to § 156.135, which will be made available by HHS benefit and add it to the result derived within de minimis variation, in order to and the Internal Revenue Service. Under from the MV calculator in accordance determine a plan’s level of coverage. this proposal, the MV calculator will be with the generally accepted actuarial Paragraph (b) proposes to codify similar in design to the AV calculator principles and methodologies. This section 1302(d)(1) of the Affordable Care but based on continuance tables and a aims to consider the value of benefits Act, which requires that a bronze plan standard population reflecting claims that are among the EHB options, but not has an AV of 60 percent; a silver plan, data of typical self-insured employer necessarily in a state benchmark 70 percent; a gold plan, 80 percent; and plans. This will be a better reflection of because there is no EHB standard for a platinum plan, 90 percent. the typical employer plan that will use employer-sponsored self-insured group Paragraph (c) proposes standards for the MV calculator, resulting in a similar health plans or insured large group de minimis variation. Section 1302(d)(3) or higher actuarial value than the AV health plans. There is no requirement of the Affordable Care Act authorizes calculator for the same benefit designs. that employer-sponsored self-insured the Secretary to determine a reasonable This approach would permit an and insured large group health plans de minimis variation in the AVs used to employer-sponsored plan to enter offer all categories of EHB or conform to determine levels of coverage. In information about the plan’s cost any of the EHB benchmarks. For clarity, paragraph (c), we propose a de minimis sharing to determine whether the plan alignment, and administrative ease, we variation of +/- 2 percentage points for provides MV. propose in paragraph (b)(2), for all non-grandfathered plans. For purposes of determining that a group example, a silver plan could have an AV As an alternative to using the MV calculator, we propose in paragraph health plan provides MV, that such between 68 and 72 percent. We believe plans will be permitted to take into that a de minimis amount of +/- 2 (a)(2) that an employer-sponsored plan would be able to use an array of design- account all benefits provided by the percentage points strikes the right plan that are included in any of the EHB balance between ensuring comparability based safe harbors published by HHS and the Internal Revenue Service in the benchmarks. of plans within each metal level and We also propose, in paragraph (c), form of checklists to determine whether allowing plans the flexibility to use that MV determinations under the plan provides MV. Each safe harbor convenient cost-sharing metrics. § 156.145(a) will be based on a standard checklist would describe the cost Comments on this proposal in the AV/ population based on data from self- CSR Bulletin were generally supportive sharing attributes of a plan that apply to insured group health plans. of this approach. the following four core categories of benefits and services which comprise k. Application to Stand-alone Dental j. Determination of Minimum Value the vast majority of group health plan Plans inside the Exchange (§ 156.150) (§ 156.145) spending as described in the MV Notice: Section 1302 of the Affordable Care Section 1302(d)(2)(C) of the physician and mid-level practitioner Act outlines the standards for health Affordable Care Act sets forth the rules care, hospital and emergency room plans to cover the ten categories of the for calculating the percentage of the services, pharmacy benefits, and EHB. Section 1311(d)(2)(B)(ii) of the total allowed costs of benefits provided laboratory and imaging services. Affordable Care Act, as codified in under a group health plan or health Finally, if an employer-sponsored § 155.1065 of this subchapter, allows the insurance coverage. Section plan contains non-standard features that pediatric dental component of the EHB 36B(c)(2)(C)(ii) of the Code provides that are not suitable for the use of the to be offered through a stand-alone an employer-sponsored plan provides calculator and do not fit the safe harbor dental plan in an Exchange. If stand- minimum value (MV) if this percentage checklists, we propose in paragraph alone dental plans are available in an is no less than 60 percent. For the (a)(3) to permit MV to be determined Exchange, section 1302(b)(4)(F) of the purpose of determining that a given through certification by an actuary Affordable Care Act permits QHPs plan provides MV, we propose in without the use of the MV calculator. offered in that Exchange to exclude paragraph (a) that the percentage of the The actuary would make this coverage of the pediatric dental total allowed cost of benefits will be determination based on the plan’s component of the EHB. This is the only determined using one of the main benefits and coverage data and the exception to EHB coverage permitted methodologies as described in Treasury standard population, utilization, and under section 1302. Section 1311 also Notice 2012–31, released on May 14, pricing tables available for purposes of outlines how cost-sharing limits and AV 2012 (‘‘MV Notice’’). We also propose, the valuation of employer-sponsored would apply to such stand-alone dental in paragraph (c), that MV for employer- plans. This final option would be plans. sponsored self-insured group health available only when one of the other In paragraph (a), we propose that plans and insured large group health methodologies is not applicable to the stand-alone dental plans would have a plans will be determined using a employer-sponsored plan. We propose separate annual limitation on cost standard population that is based upon that the determination of MV must be sharing from QHPs covering the large self-insured group health plans. made by a member of the American remaining EHBs. While the annual We also propose that employer Academy of Actuaries, based on an limitation on cost-sharing for a QHP contributions to an HSA and amounts analysis performed in accordance with must be consistent with § 156.130, the newly made available under an HRA generally accepted actuarial principles annual limitation on cost sharing for a will be taken into account in and methodologies. We intend to issue stand-alone dental plan would be determining MV in accordance with the applicable guidance concerning the considered separately. We propose that principles applied in taking such actuarial analysis. the plan must demonstrate the annual

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limitation on cost sharing for the stand- dental services. Accordingly, in the conditions for recognition alone dental plan is reasonable for paragraph (b)(1), we propose that stand- articulated in section 1311(c)(1)(D) of coverage of the pediatric dental EHB. alone dental plans may not use the the Affordable Care Act and 45 CFR We request comment on this proposal HHS-developed AV calculator. Instead, 156.275(c)(2) through (c)(5).25 HHS and what parameters should be given the unique and narrow focus of intends, through future rulemaking, to considered a ‘‘reasonable’’ annual the stand-alone dental plan market, we establish a phase two recognition limitation on cost sharing. We note that propose in paragraph (b)(2) that any process which may establish additional the annual limitation on cost sharing stand-alone dental plan certified to meet criteria for recognized accrediting would be applicable to in-network an 75 percent AV, with a de minimis entities. services only, consistent with range of +/- 2 percentage points, be HHS’s initial survey of the market § 156.130(c). considered a ‘‘low’’ plan and anything showed that two entities, NCQA and We considered applying the full with an AV of 85 percent, with a de URAC, met the statutory requirements annual limitation on cost sharing minimis range of +/- 2 percentage for accreditation. During the public described in section 1302(c) of the points, be considered a ‘‘high’’ plan. We comment period for 45 CFR 156.275, Affordable Care Act separately to stand- request comment on whether a de additional accrediting entities indicated alone dental plans. However, if a person minimis variation of +/- 2 percentage that they may soon meet the purchased pediatric dental benefits points is feasible for stand-alone dental accreditation conditions specified in 45 through a stand-alone plan, it would plans. The ‘‘high/low’’ actuarial value CFR 156.275 (c)(2) and (c)(3). HHS effectively double the potential out-of- standard would apply to the pediatric believes that opening up the phase one pocket costs, putting individuals with dental EHB only in a stand-alone dental recognition process to provide other similar coverage, but purchasing plan. We note that when the pediatric entities an opportunity to apply would pediatric dental through a stand-alone dental EHB is included in a health plan, provide expanded choices regarding plan, at much greater financial risk. the AV calculator would apply to the QHP accreditation for Exchanges, states Another alternative would be to pediatric dental EHB. In order to meet and issuers. exclude the pediatric dental benefit this standard we propose in paragraph Therefore, HHS proposes to amend entirely from the annual limitation on (b)(3) that the issuer of a stand-alone § 156.275(c)(1) to provide an application cost sharing, whether it is offered plan demonstrate that the plan meets and review process for phase one through a health plan or through a the ‘‘high’’ or ‘‘low’’ level of coverage as recognition of accrediting entities. stand-alone dental plan. However, we certified by a member of the American Under this proposal, accrediting entities were concerned that not applying any Academy of Actuaries using generally could apply and demonstrate how they annual limitation on cost sharing to accepted actuarial principles. This meet the requirements for recognition as stand-alone dental plans would treat proposal would provide a means of established in 45 CFR 156.275 (c)(2) and such benefits differently than plans comparison for consumers as well as (c)(3). Such applications must include offering an embedded pediatric dental providing a comparable method of the documentation described in 45 CFR benefit, which could create a price fulfilling the offering requirements laid 156.275(c)(4), including current advantage over medical plans. out in § 156.200(c)(1). We request accreditation standards and We also considered requiring that the comment on this proposal and whether requirements, processes, and measure combination of the annual limitations the actuarial value standards for a specifications for performance on cost-sharing in the QHP and the ‘‘high’’ and ‘‘low’’ plan are appropriate. measures, and a document that stand-alone dental plan must not exceed As an alternative, we considered illustrates how (via a crosswalk) the the limitations identified in § 156.130, requiring that a stand-alone dental plan accrediting entity meets the standards regardless of whether the person meet at least a silver or gold level of established in § 156.275(c)(2) and (c)(3). received coverage through a health plan coverage as certified by a member of the This proposal would require HHS, that covers all of the 10 EHB categories American Academy of Actuaries using within 60 days of receiving the including dental, or received coverage generally accepted actuarial principles. complete application, to publish a through a combination of a QHP and a However, some commenters noted that notice in the Federal Register stand-alone dental policy. However, this because pediatric dental coverage is identifying the accrediting entity approach would entail a high level of comprised largely of preventive services making the request for phase one coordination between an Exchange, with 100 percent cost-sharing covered recognition, summarizing HHS’s QHP issuers, and issuers of stand-alone by the plan, in order to meet a 70 analysis of whether the applicant meets dental plans to track an enrollee’s cost percent AV, issuers of stand-alone the criteria for recognition, and sharing and notify the issuers if the dental plans would need to add a providing no less than a 30-day public limit was reached, which we are deductible that is not currently included comment period on this applicant concerned may be difficult to in plans. In contrast, our proposal accrediting entity. HHS will compare administer. would be more in line with current the applicant accrediting entity’s We request comment generally on industry practices and would result in standards and processes to the whether this approach to applying the fewer out-of-pocket costs for consumers. requirements for recognition established annual limitations on cost-sharing in 45 CFR 156.275(c)(2) and (3). This standard is appropriate for stand-alone 3. Subpart C—Accreditation assessment will be the same as that dental plans. Accreditation of QHP Issuers (§ 156.275) underlying the recognition of NCQA In paragraph (b), we propose actuarial and URAC. After the close of the value standards for stand-alone dental Recognition of Accrediting Entity by comment period, HHS will notify the plans. The calculator developed by HHS HHS (§ 156.275(c)(1) and public in the Federal Register of the under § 156.135 would be inappropriate § 156.275(c)(4)) names of the accrediting entities for stand-alone dental plans because the This proposed rule would amend the standard population that underlies the current (‘‘phase one’’) recognition 25 Patient Protection and Affordable Care Act; HHS-developed calculator cannot be process and provide additional Data Collection to Support Standards Related to Essential Health Benefits; Recognition of Entities for reasonably adapted to reflect a accrediting entities the opportunity to the Accreditation of Qualified Health Plans (CMS– pediatric-only population that utilizes apply and demonstrate how they meet 9965–F), 77 FR 42,658 (July 20, 2012).

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recognized and not recognized to • Recommendations to minimize the portion of the uniform rate template that provide accreditation of QHPs for the information collection burden on the pertains to benefits in addition to EHB. purposes of QHP certification. If an affected public, including automated We estimate that of the total 11 hours it accrediting entities is not recognized, collection techniques. will take an actuary to complete the then it may re-apply for recognition Below is a summary of the proposed uniform rate template, it will take an following the same application information collection requirements actuary 1 hour to complete the portion procedure as proposed in outlined in this regulation. Throughout pertaining to benefits in addition to § 156.275(c)(1). this section we assume that each data EHB. Therefore, we estimate the burden HHS is also amending collection will occur on an annual basis attributable to the collection of § 156.275(c)(4)(i) to delete the timeframe unless otherwise noted. We used the information regarding benefits in of submitting the documentation within Bureau of Labor Statistics (BLS) Web addition to EHB to be $1,721,250. Given 60 days of publication of this final rule. site to identify salary data, unless the policies included in this proposed Under the amended application and otherwise indicated. Fringe benefit rule regarding state required benefits, review process proposed in estimates were taken from the BLS we seek comment on this estimated time § 156.275(c)(1), accrediting entities must March 2011 Employer Costs for for additional benefits. Employee Compensation report. These provide the documentation described in B. ICRs Regarding State Selection of § 156.275(c)(4)(i) with their application compensation estimates were selected to align with the burden estimates for the Benchmark (§ 156.100) and EHB for review. Benchmark Plan Standards (§ 156.110) In a Federal Register notice being data collections described in the In § 156.100, we propose that a state published concurrently with this ‘‘Establishment of Exchanges and may select a base-benchmark plan to proposed rule, we are notifying the Qualified Health Plans Final Rule’’ (77 serve as a reference plan to define EHB public that NCQA and URAC are FR 18310 (March 27, 2012)). For in that state. We also propose that if a recognized as accrediting entities for the purposes of presenting an estimate of state does not select a benchmark plan, purposes of QHP certification consistent paperwork burden, we reflect the its base-benchmark will be the largest with the final rule published on July 20, operation of an Exchange in fifty states plan by enrollment in the largest 2012. NCQA and URAC do not need to and the District of Columbia. Similarly, product in the state’s small group reapply under this proposal but remain we estimate the burden for issuers market. In § 156.110, we propose that a subject to the requirements of 45 CFR participating in all 51 Exchanges. Therefore, these estimates should be state-selected or default benchmark plan 156.275(c), including (c)(4)(ii), which considered an upper bound of burden must offer coverage in each EHB requires recognized accrediting entities estimates. These estimates may be category, as required by the Affordable to provide to HHS any proposed adjusted in future Paperwork Reduction Care Act. We propose that if a base- changes or updates to the accreditation Act (PRA) packages. We are soliciting benchmark plan does not offer coverage standards and requirements, processes, public comment on each of these issues in a category, it must be supplemented and measure specifications for for the following sections of this to include those missing benefit performance measures with 60 days’ document that contain information categories. notice prior to public notification. This collection requirements (ICRs): We do not believe that this is a change proposed amendment of § 156.275(c) to the information collection associated only renumbers the applicable portion A. ICRs Regarding Additional Required with state selection and submission of a of the regulation recognizing NCQA and Benefits (§ 155.170(c)) benchmark plan and associated benefits URAC. As discussed in the preamble to In § 155.170(c), we direct issuers to and the data collection to establish the final rule published on July 20, quantify and report to the Exchange the default benchmark plans, including any 2012, the recognition of accrediting cost attributable to required benefits in required supplementing, which is entities in phase one is effective until it addition to EHB. This is a third-party already captured in the collection is rescinded or this interim phase one disclosure requirement. Issuers will use approved under OMB Control Number process is replaced by the phase two a uniform rate template in a revision to 0938–1174. process. the Rate Increase Disclosure and Review C. ICRs Regarding AV Calculation for III. Collection of Information Reporting Requirements PRA package (CMS–10379) (Rate Review PRA Determining Level of Coverage Under the Paperwork Reduction Act package) to report this information. The (§ 156.135) of 1995, we are required to provide 60- burden associated with meeting this In § 156.135(b), we propose to create day notice in the Federal Register and data collection is included in the Rate an exception to using the AV calculator solicit public comment before an Review PRA package. A Federal for issuers with health plans that are not information collection request is Register notice seeking comments on designed in a way that is compatible submitted to the Office of Management this PRA package is being published with the AV calculator. To take and Budget (OMB) for review and concurrently with this proposed rule. advantage of this exception, issuers approval. In order to fairly evaluate As noted in the Rate Review PRA must submit an actuarial certification on whether an information collection package, we estimate that a total of their alternative method to the state, should be approved by OMB, section 2,010 issuers in the individual market HHS, the Exchange, or OPM. This is a 3506(c)(2)(A) of the Paperwork and 1,050 issuers in the small group third-party disclosure requirement Reduction Act of 1995 requires that we market will offer products and that each when the issuers submit to the state or solicit comment on the following issues: issuer will have an average of 2.5 the Exchange, and this is a reporting • The need for the information submissions per year. We anticipate that requirement when the issuers submit to collection and its usefulness in carrying it will take an actuary a total of 11 hours HHS, OPM, or a Federally-facilitated out the proper functions of our agency. to complete the uniform rate template, Exchange. We account for this • The accuracy of our estimate of the at $225 per hour for an actuary. The collection in the Initial Plan Data information collection burden. total annual burden is estimated to be Collection to Support Qualified Health • The quality, utility, and clarity of $18,933,750. Of this total amount, only Plan Certification and Other Financial the information to be collected. a fraction can be attributable to the Management and Exchange Operations

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PRA package (CMS–10433) (QHP issuer. We estimate that of those 8 A regulatory impact analysis (RIA) Certification PRA package). A Federal hours, 1 will be attributable to must be prepared for rules with Register notice regarding this PRA demonstrating that the annual limitation economically significant effects ($100 package is being published concurrently on cost sharing is reasonable, at a cost million or more in any 1 year), and a with this proposed rule. of $77 per plan. Therefore, across 40 ‘‘significant’’ regulatory action is subject In the QHP Certification PRA package, plans, we estimate the total annual cost to review by the Office of Management we estimate that 1,200 issuers will each to be $3,080. and Budget (OMB). Section 3(f) of offer 15 potential QHPs, for a total of Executive Order 12866 defines a 18,000 potential QHPs, and that the per- E. ICRs Regarding Accreditation (§ 156.275) ‘‘significant regulatory action.’’ In issuer burden will be 175 hours. We accordance with the provisions of estimate the cost per issuer in the first In § 156.275, HHS proposes an Executive Order 12866, this regulation year of operations to be $13,475, which amendment to the phase one process by was reviewed by the Office of represents an aggregation of several which accrediting entities can submit an Management and Budget as an staff, including actuarial staff. This PRA application to be recognized by HHS for economically significant regulatory package includes data collections for purposes of accrediting QHPs. HHS action. QHP certification, risk adjustment, and previously sought OMB approval for reinsurance. We believe that only 5 recognition of two specific entities A. Summary percent of issuers will be unable to use under § 156.275(c)(1); this was approved As stated earlier in this preamble, this the AV calculator, thus use the process under OMB Control Number 0938–1176. proposed regulation would implement proposed in § 156.135(b) and that it will Under this proposed rule, this same the requirements related to EHB and AV take each issuer 8 of the total 175 hours process will be open to additional levels of coverage, and establish the to provide the requested information. applicants; therefore, we propose to timeline according to which QHP We further assume that the 8 hours of revise our estimate of the number of issuers participating in FFEs must be work would be performed by an actuary, applicants to four. We will revise the accredited. We note that the Exchange at $225 per hour. Therefore, we estimate information collection request approved regulation (45 CFR 156.200) established the total cost attributable to § 156.135(b) under OMB Control Number 0938–1176 that QHPs will cover essential health to be $1,800 per QHP and $1,620,000 in to account for the adjustment in the benefits, as defined by the Secretary, total. number of respondents and the and that QHPs be accredited on the In § 156.135(d), we propose that corresponding adjustment to the basis of local performance. The cost to beginning in 2015, a state may submit burden. If you comment on these health plans of obtaining QHP a state-specific standard population, to information collection requirements, certification and participating in be used for AV calculation, so long as please do either of the following: Exchanges are already accounted for in the criteria described in § 156.135(d)(1) 1. Submit your comments the regulatory impact analysis that through (6) are met. This will require electronically as specified in the accompanies that regulation.26 the state to submit to HHS summary ADDRESSES section of this proposed rule; Therefore, this analysis describes the evidence that the requirements or incremental costs, benefits, and described in the proposed rule are met 2. Submit your comments to the transfers associated with provisions in and the dataset in a format that will Office of Information and Regulatory this proposed rule, for example that support the use of the AV calculator. We Affairs, Office of Management and health plans cover the essential health expect that for each state choosing this Budget, Attention: CMS Desk Officer, benefits as specifically defined herein, option, the data submission will require [insert filecode], Fax: (202) 395–6974; or _ and that health plans use the HHS- 15 hours from a database administrator Email: OIRA [email protected]. developed AV calculator. at $47.70 an hour, 4 hours of actuarial IV. Regulatory Impact Analysis This proposed rule also contains work at $56.89 an hour, and 1 hour of HHS has examined the impacts of this details relating to the establishment of a management review at $75.15 an hour. timeline by which QHPs seeking Therefore, the total burden associated proposed regulation under Executive Order 12866 on Regulatory Planning certification by FFEs must be with the reporting requirement for each accredited. We do not believe that this state choosing this option will be and Review (September 30, 1993) and Executive Order 13563 on Improving results in incremental benefits, costs, or $1,018. We assume that states opting to transfers. develop a state-specific standard Regulation and Regulatory Review (February 2, 2011). HHS has proposed this regulation to population will provide new data every implement the protections intended by three to five years. Executive Orders 12866 and 13563 direct agencies to assess all costs and the Congress in the most economically D. ICRs Regarding Stand-Alone Dental benefits of available regulatory efficient manner possible. In accordance Plans Inside the Exchange (§ 156.150(a)) alternatives and, if regulation is with OMB Circular A–4, HHS has In § 156.150(a), we propose that necessary, to select regulatory quantified the benefits, costs and stand-alone dental plans covering the approaches that maximize net benefits transfers where possible, and has also pediatric dental EHB under § 155.1065 (including potential economic, provided a qualitative discussion of must demonstrate to the Exchange that environmental, public health and safety some of the benefits, costs and transfers they have a reasonable annual limitation effects, distributive impacts, and that may stem from this proposed on cost sharing. This is a third-party equity). Executive Order 13563 is regulation. disclosure requirement. supplemental to and reaffirms the 26 ‘‘Patient Protection and Affordable Care Act; We account for this collection in the principles, structures, and definitions Establishment of Exchanges and Qualified Health QHP Certification PRA package, where governing regulatory review as Plans, Exchange Standards for Employers (CMS– we estimate that 40 issuers will each established in Executive Order 12866— 9989–FWP) and Standards Related to Reinsurance, offer a stand-alone dental plan, and that emphasizing the importance of Risk Corridors and Risk Adjustment (CMS–9975–F): Regulatory Impact Analysis.’’ Centers for Medicare the burden for certification will be 6 quantifying both costs and benefits, of & Medicaid Services. Available at: http:// hours per issuer, at a total hourly billing reducing costs, of harmonizing rules, cciio.cms.gov/resources/files/Files2/03162012/ rate of $77, for a total cost of $462 per and of promoting flexibility. hie3r-ria-032012.pdf.

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B. Overview of Key Provisions in the how coverage of EHB should be defined consumer anticipated. Second, the Proposed Rule and evaluated. Similarly, failing to complexity reduces competitive As described earlier in this proposed specify a method for calculating AV pressure on insurers, and blunts insurer rule, the Affordable Care Act directs the could result in significant inconsistency incentives to improve the quality and Secretary of the Department of Health across states and issuers. Finally, value of the products they offer. As a and Human Services (the Secretary) to establishing a clear timeline for result of complexity and information define EHB such that EHB includes at potential QHPs to become accredited is gaps, some consumers cannot purchase least and reflects an appropriate balance essential to successful issuer health insurance efficiently. This among 10 benefit categories, and is participation in FFEs. inefficiency may reduce incentives for insurers to improve the value of their equal in scope to benefits offered by a D. Summary of Impacts and Accounting products. typical employer plan. Non- Table grandfathered plans in the individual The specific approach to defining and small group markets both inside In accordance with OMB Circular A– EHB in this proposed rule realizes the and outside of the Exchanges, including 4, Table IV.1 below depicts an benefits of simplicity and transparency multi-state plans, Medicaid benchmark accounting statement summarizing by allowing each state to choose a and benchmark-equivalent, and Basic HHS’s assessment of the benefits, costs, benchmark from a set of plans that are Health Programs, if applicable, must and transfers associated with this typical of the benefits offered by cover EHB beginning in 2014. This regulatory action. employers in that state. The proposed proposed rule establishes how the HHS anticipates that the provisions of rule allows that EHB in each state reflect Secretary will define EHB based on a this proposed rule will assure the choices made by employers and state-specific benchmark plan and lays consumers that they will have health employees in that state today, and out standards for the EHB-benchmark insurance coverage for essential health minimizes disruption in existing plan and for issuers that cover EHB. benefits, and significantly increase coverage in the small group market. In In addition, the Affordable Care Act consumers’ ability to compare health addition, the proposed provisions directs issuers offering non- plans, make an informed selection by addressing specific benefit categories, grandfathered health in the individual promoting consistency across covered such as habilitative services and and small group markets to ensure that benefits and levels of coverage, and pediatric dental and vision services, any offered plan meets specific AVs. more efficiently purchase coverage. This will improve access to care for The proposed rule outlines a process for proposed rule ensures that consumers consumers who require these benefits. computing plan AV using an HHS- can shop on the basis of issues that are The approach to defining AV in this developed AV calculator, as well as important to them such as price, proposed rule uses standard standards and flexibility for issuers in network physicians, and quality, and be assumptions about utilization and meeting the metal tiers. confident that the plan they choose does prices, and, for most products, directs not include unexpected coverage gaps, issuers to use an AV calculator created C. Need for Regulatory Action like hidden benefit exclusions. It also by the Department to compute AV. This This rule proposes standards related allows for some flexibility for plans to approach will ensure that two plans to EHB and AV consistent with the promote innovation in benefit design. with the same cost-sharing parameters Affordable Care Act. HHS believes that Insurance contracts are extremely (that is, deductibles, copayments, and the provisions that are included in this complicated documents; therefore, coinsurance features) will have the same proposed rule are necessary to fulfill the many consumers may not understand AVs. This approach is intended to lower Secretary’s obligations under sections the content of the contracts they consumer information costs and drive 1302 and 1311 of the Affordable Care purchase.27 This complexity has two competition in the market by enabling Act. Establishing specific approaches for undesirable results. First, consumers consumers to easily compare the defining EHB and calculating AV will may unknowingly purchase a product relative generosity of plans, knowing bring needed clarity for states, issuers, that does not meet their basic needs— that the AV of each plan has been and other stakeholders. Absent the the product may not cover benefits that calculated in the same manner. provisions outlined in this proposed the consumer needs to restore or In accordance with Executive Order rule, states, issuers, and consumers maintain good health, or may result in 12866, HHS believes that the benefits of would face significant uncertainty about more financial exposure than the this regulatory action justify the costs.

TABLE IV.1—ACCOUNTING TABLE

Units Category Estimates Discount rate Period Year dollar (percent) covered

Benefits: Annualized Monetized ($millions/year) ...... Not Estimated ...... 2012 7 2012–2016 Not Estimated ...... 2012 3 2012–2016

Qualitative: ...... (1) Improved coverage in benefit categories less typically available. Expanded ac- cess to coverage of benefits, particularly in the individual market, including ma- ternity and prescription drug coverage. (2) Alignment with current consumer and employer choices. Flexibility for states; limited market disruption; allowance for health plan innovation (e.g., substitution within benefit categories; de minimis variation for AV).

27 Consumers Union. (2012). ‘‘What’s Behind the Plans.’’ Available at: http:// Consumer%20Difficulties%20Selecting%20Health Door: Consumers’ Difficulties Selecting Health www.consumersunion.org/pub/pdf/ %20Plans%20Jan%202012.pdf.

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TABLE IV.1—ACCOUNTING TABLE—Continued

Units Category Estimates Discount rate Period Year dollar (percent) covered

(3) Efficiency due to greater transparency. Increased transparency and consumer ability to compare coverage.

Costs: Annualized Monetized ($millions/year) ...... $1.7 * ...... 2012 7 2012–2016 $1.5 * ...... 2012 3 2012–2016

Qualitative ...... (1) Administrative costs. Insurers will incur administrative costs associated with al- tering benefit packages to ensure compliance with the definition of EHB estab- lished in this proposed rule. Issuers may also incur minor administrative costs related to computing AV. (2) Costs due to higher service utilization. As consumers gain additional coverage for benefits that previously did not meet the standards outlined in this proposed rule (for example, pediatric dental or vision coverage), utilization, and thus costs, may increase. A portion of this increased utilization and costs will be eco- nomically inefficient, as insurance coverage creates a tendency to overuse health care. Further, there may be incremental costs to consumers associated with greater service utilization.

Transfers: Federal Annualized Monetized ($millions/year) ...... Not Estimated ...... 2012 7 2012–2016 Not Estimated ...... 2012 3 2012–2016 * Note: Administrative costs include costs associated with Information Collection Requirements as described in section III of this proposed rule.

E. Methods and Limitations of Analysis F. Estimated Number of Affected regulation at the company level because Entities this is the level at which issuers There are many provisions of the currently submit their annual financial Affordable Care Act that are integral to As discussed elsewhere in the preamble, standards relating to EHB and reports to the National Association of the goal of expanding access to AV will apply to all health insurance Insurance Commissioners (NAIC). Table affordable insurance coverage, including issuers offering non-grandfathered IV.2 shows the estimated distribution of the provisions of this proposed rule coverage in the individual and small issuers offering comprehensive major relating to EHB and AV. Because it is group markets—both inside and outside medical coverage in the individual and often difficult to isolate the effects of the Exchanges. The following small group markets based on data associated with each particular sections summarize HHS’s estimates of submitted on the National Association provision of the Affordable Care Act, we the number of entities that will be of Insurance Commissioners’ 2011 discuss the evidence relating to the affected by this proposed regulation. Supplemental Health Care Exhibit provisions of this proposed rule, as well (SHCE).28 Additionally, because many as related provisions of the Affordable a. Issuers issuers are licensed in more than one Care Act, in this regulatory impact For purposes of the regulatory impact analysis. We present quantitative analysis, we have estimated the total state, we have also included data by evidence where it is possible and number of health insurance issuers that ‘‘licensed entity’’ (company/state supplement with qualitative discussion. will be affected by this proposed combination) for each market.

TABLE IV.2—ESTIMATED NUMBER OF ISSUERS AND LICENSED ENTITIES AFFECTED BY THE EHB AND AV REQUIREMENTS BY MARKET, 2011

Issuers (1) offering Licensed entities (2) offering comprehensive major medical comprehensive major medical coverage Description coverage Percent of Percent of Number total Number total

Total Issuers Offering Comprehensive Major Medical Coverage (3) ...... 446 100.0 2,107 100.0 By Market: (4) Individual Market ...... 355 79.6 1,663 78.9 Small Group Market (5) ...... 366 82.1 1,039 49.3 Large Group Market ...... 375 84.1 922 43.8

28 The most complete source of data on the that issuers submit to the NAIC through State providing more extensive information about this number of entities offering fully insured, private insurance regulators on four different financial market than was previously available. We note that comprehensive major medical coverage in the exhibits (the Health, Life, Property & Casualty, and issuers electing not to offer non-grandfathered individual and group markets is the National Fraternal ‘‘Blanks’’). The 2011 SHCE captures data individual or small group market policies would Association of Insurance Commissioners (NAIC) on individual, small group and large group not be affected by the proposed rule. Annual Financial Statements and Policy Experience comprehensive major medical coverage at the State Exhibits database. These data contain information level in a consistent manner across all Blanks,

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TABLE IV.2—ESTIMATED NUMBER OF ISSUERS AND LICENSED ENTITIES AFFECTED BY THE EHB AND AV REQUIREMENTS BY MARKET, 2011—Continued

Issuers (1) offering Licensed entities (2) offering comprehensive major medical comprehensive major medical Description coverage coverage Percent of Percent of Number total Number total

Individual and/or Small Group Markets (6) ...... 427 95.7 1,993 94.6 Individual Market Only ...... 82 18.4 904 42.9 Small Group Market Only ...... 39 8.7 117 5.6 Individual & Small Group Markets Only ...... 29 6.5 164 7.8 All Three Markets ...... 279 62.6 545 25.9 Notes: (1) Issuers represents companies (for example, NAIC company codes). (2) Licensed Entities represents company/state combinations. (3) Total issuers excludes data for companies that are regulated by the California Department of Managed Health Care. (4) To be counted as of- fering coverage in a particular comprehensive major medical market, the issuer must have reported non-zero premiums and claims and had at least $1,000 in total premiums per life year for at least one state. (5) Small group is defined based on the current definition in the PHS Act. (6) Subcategories do not add to the total because other categories are not shown separately such as those entities in the large group and small group markets, but not in the individual market. Source: ASPE analysis of 2011 NAIC Supplemental Health Care Exhibit data.

b. Individuals offer a basic package of items and variation in deductibles, coinsurance, Persons enrolled in non-grandfathered services. The benefits of health and other cost sharing features make it individual or small group market insurance coverage are well difficult for consumers to understand coverage inside or outside of the documented and discussed at length in the relative levels of financial protection Exchanges beginning in 2014 will be previous RIAs,32 including they will receive under competing affected by the provisions of this improvement in clinical outcomes, plans.36, 37 proposed rule.29 financial security, and decreased Under the provisions in this proposed In July 2012, CBO estimated that there uncompensated care.33, 34 This proposed rule, the EHB-benchmark plan will will be approximately 23 million rule applies a definition to EHB and reflect both the scope of services and enrollees in Exchange coverage by proposes other standards that are any limits offered by a ‘‘typical 2016.30 Participation rates among required of health plans, as directed employer plan’’ in that state. This potential enrollees are expected to be under the statute. approach, applying for the 2014 and lower in the first few years of Exchange 2015 benefit years, will allow states to availability as employers and In the market today, it is difficult for build on coverage that is already widely individuals adjust to the features of the consumers to make well-informed available, minimize market disruption, Exchanges.31 Additionally, the EHB and choices when choosing among and provide consumers with familiar AV provisions of this proposed rule will competing health plans. The benefits products. This should heighten also affect enrollees in non- offered are complicated and can vary consumer understanding of plan options grandfathered individual and small widely across plans, making it difficult and may facilitate consumers’ abilities group coverage outside of the for consumers to understand which to make choices that better suit their Exchanges. benefits are covered.35 Further, wide needs. In addition, by ensuring that all plans cover a core set of benefits and G. Anticipated Benefits 32 Available at: http://cciio.cms.gov/resources/ services that will be compared against The Affordable Care Act ensures non- files/Files2/03162012/hie3r-ria-032012.pdf. other plans that offer the same financial grandfathered health plans offered in 33 Institute of Medicine (2001). Coverage Matters: protection to the consumer, this the individual and small group markets Insurance and Health Care. National Academies proposed rule is expected to improve Press: Washington, DC. Burstin HR, Swartz K, O’Neil AC, Orav EJ, Brennan TA. 1999. The effect the quality and value of the coverage 29 As discussed earlier, the provisions in this of change of health insurance on access to care. that is available for EHB. proposed regulation could also potentially affect Inquiry; 35: 389–97. Finkelstein A et al. 2011. The Information on AV is expected to be some enrollees with non-grandfathered large group Oregon health insurance experiment: Evidence from market coverage in States that choose to give larger the first year. NBER Working Paper No. 17190 used by consumers to compare non- employers the option of purchasing coverage 34 Institute of Medicine (2002). Care without grandfathered individual and small through the Exchange starting in 2017. However, group market plans, and provides a the Congressional Budget Office (CBO) and Joint coverage: too little, too late. National Academies Committee on Taxation (JCT) ‘‘expect that few large Press. Ayanian J, et al. ‘‘Unmet Health Needs of method for consumers to understand firms would take [advantage of] that option if Uninsured Adults in the United States.’’ JAMA. relative plan value. Proposing standard 284(16). 2000:2061–9. 27; Roetzheim R, et al. offered because their administrative costs would pricing and utilization assumptions for generally be lower than those of nongroup policies ‘‘Effects of Health Insurance and Race on Colorectal that would be available in the exchanges.’’ (For Cancer Treatments and Outcomes.’’ American AV calculations for QHPs and non- more information, see Congressional Budget Office, Journal of Public Health 90(11). 2000: 1746–54; grandfathered health plans in the ‘‘Letter to the Honorable Evan Bayh: An Analysis Wilper, et al. ‘‘Health Insurance and Mortality in individual and small group markets will US Adults.’’ American Journal of Public Health. of Health Insurance Premiums under the Patient promote transparency and simplicity in Protection and Affordable Care Act,’’ Washington, 99(12). 2009: 2289–2295. DC, 2009). 35 Garnick, D.W. et al. (1993). ‘‘How well do the consumer shopping experience, as 30 ‘‘Estimates for the Insurance Coverage Americans understand their health coverage?’’ well as offer issuers the flexibility to set Provisions of the Affordable Care Act Updated for Health Affairs, 12(3); 204–212. cost-sharing rates that are simple and the Recent Supreme Court Decision,’’ Congressional 36 Consumers Union. (2012). ‘‘What’s Behind the competitive. Without this approach, Budget Office, July 2012. Door: Consumers’ Difficulties Selecting Health 31 Congressional Budget Office, ‘‘Letter to the Plans.’’ Available at: http:// Honorable Evan Bayh: An Analysis of Health www.consumersunion.org/pub/pdf/ 37 Isaacs, S.L. (2006). Consumer’s information Insurance Premiums under the Patient Protection Consumer%20Difficulties%20Selecting%20Health needs: results of a national survey. Health Affairs, and Affordable Care Act,’’ Washington, DC, 2009. %20Plans%20Jan%202012.pdf. 15(4): 31–41.

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plans with the same cost-sharing products in the individual market due including healthier risk pools, greater provisions could have different AVs to the provisions of this proposed rule. administrative efficiencies, premium tax making it difficult for consumers to credits, and the transitional reinsurance Impact on Issuers compare and choose among health program will lower premiums in the plans. It also fosters plan competition Commonly purchased products in the individual market and Exchanges. based on price, quality, and service— small group market, state employee The statute requires that all plans rather than variations in benefit design. plans, and the FEHBP Blue Cross Blue covering EHB must offer mental health Shield (BCBS) Standard and Basic and substance use disorder service H. Anticipated Costs and Transfers Options and Government Employees benefits, including behavioral health In addition to the administrative costs Health Association (GEHA) plans do not treatment and services. The preamble of described in the Information Collection differ significantly in the range of this rule proposes that coverage must Requirements section of this proposed services they cover.40 Because one of provide parity in treatment limitations rule, HHS anticipates that the these plans will be chosen as the between medical and surgical benefits provisions of this proposed regulation reference plan for EHB, most small and the mental health and substance use will likely result in increased costs group plans will provide benefits that disorder benefits required to be covered related to increased utilization of health are similar to EHB, and changes in as EHB in both the individual and small care services by people receiving benefits offered to comply with EHB group markets. Many states 42 43 have coverage for previously uncovered provisions will be relatively minor. already added some form of mental benefits. Notwithstanding this general health parity in some or all insured States have primary enforcement conclusion, there are four types of markets.44 About 95 percent of those authority over health insurance issuers benefits where changes are expected in with coverage through the three largest and this proposed rule extends this the small group market: Mental health small group products in each state had primary enforcement authority for and substance use disorder, habilitative substance use disorder and mental compliance with EHB and AV services, pediatric dental care, and health benefits.45 Additionally, a study requirements defined in this rule. In pediatric vision services. In addition, of implementation of parity in the addition, states must defray the cost of individual health plans are less likely FEHBP plans 46 as well as research into any state-required benefits in excess of than small group health plans to cover state-passed mental health parity laws 47 the EHB that apply to QHPs and multi- all of the 10 categories of EHB. Below have shown little or no increase in state plans offered through Exchanges. we discuss two categories of benefits utilization of mental health services, but As stated earlier, we expect that this and services that are less likely to be found that parity reduced out-of-pocket will rarely occur, if at all, in 2014 and covered in the market today: Mental spending among those who used mental 2015, the period coverage by the health and substance use disorder health and substance abuse services. benchmark policy. services, and habilitative services. As indicated in the preamble, many The anticipated effects on enrollees in The coverage of additional benefits health insurance plans do not identify the individual market are expected to be results in a transfer from out-of-pocket habilitative services as a distinct group larger than the effects on enrollees in payments to premium payments. of services.48 By proposing a the small group market. Coverage in the Increased access to insurance coverage transitional policy for coverage of small group market is much more likely for previously excluded benefits will habilitative services, this rule allows to include EHB and, in fact, is included make medical care for those benefit issuers time for review and 38 in the choice of benchmark plans. categories more affordable for development of policy in this area, and Second, almost all products in the group consumers by covering a portion of the to gain experience to define these 39 market have AV above 60 percent, costs of those services. While out of benefits. To the extent that states while there are likely to be changes to pocket costs would decline, consumers could purchase benefits and services 42 Kaiser State Health Facts. State mandated 38 A study conducted by the Assistant Secretary inefficiently—that is, purchase more benefits in small group private health insurance: for Planning and Evaluation (ASPE) found that than the efficient amount of the Mandated coverage in mental health, as of January commonly purchased products in the small group 2010. Available at: http://www.statehealthfacts.org/ market, state employee plans, and federal employee previously excluded benefits and services. However, studies of the comparereport.jsp?rep=2&cat=7. plans do not differ significantly in the range of 43 Health Insurance Mandates in the States 2010, services they cover. Because one of these plans will Medicare program suggest that the costs Council for Affordable Health Insurance, available be chosen as the reference plan for EHB, most small of this inefficiency are likely more than at: http://www.cahi.org/cahi_contents/resources/ group plans will provide benefits that are similar offset by the benefits of risk reduction.41 pdf/MandatesintheStates2010ExecSummary.pdf. to EHB. (ASPE Issue Brief (2011). ‘‘EHB: Comparing 44 Benefits in Small Group Products and State and Because the standards outlined in this Health Insurance Mandates in the States 2010, Federal Employee Plans,’’ U.S. Department of proposed rule will likely result in Council for Affordable Health Insurance, available at: http://www.cahi.org/cahi_contents/resources/ Health & Human Services.) In contrast, another incremental gains in access, rather than ASPE study found that many current subscribers in pdf/MandatesintheStates2010ExecSummary.pdf. the individual market lack coverage for some EHB changes in status from uninsured to 45 ASPE Issue Brief, ‘‘EHB: Comparing Benefits in benefits and services, such as maternity care and insured, any costs associated with any Small Group Products and State and Federal prescription drugs. (ASPE Research Brief (2011). inefficiency, should be further reduced. Employee Plans, U.S. Department of Health & ‘‘EHB: Individual Market Coverage’’ U.S. As discussed previously, many other Human Services (2011). 46 Goldman HH, et al. 2006. Behavioral health Department of Health & Human Services.) provisions of the Affordable Care Act, 39 ASPE Research Brief (2011). ‘‘AV and Employer insurance parity for federal employees. New Engl J Sponsored Insurance,’’ available at: http:// Med; 354 1378–86. aspe.hhs.gov/health/reports/2011/AV-ESI/rb.pdf. 40 ASPE Issue Brief (2011). ‘‘EHB: Comparing 47 Barry CL, Busch SH. 2007. Effects of state Similar results were found in a recent study by Benefits in Small Group Products and State and parity laws on the family financial burden of Gabel and colleagues. Jon R. Gabel, Ryan Lore, Federal Employee Plans,’’ U.S. Department of children with mental health care needs. Health Serv Roland D. McDevitt, Jeremy D. Pickreign, Heidi Health & Human Services. Res; 42: 1061–84. Ma CA, McGuire TG. 1998. Cost Whitmore, Michael Slover and Ethan Levy- 41 Finkelstein A, McKnight R: ‘‘What Did and incentives in a behavioral health carve-out. Forsythe, ‘‘More Than Half Of Individual Health Medicare Do (And Was It Worth It)?’’ Journal of Health Affairs;17: 56–67, Plans Offer Coverage That Falls Short Of What Can Public Economics 2008, 92:1644–1669; and 48 ASPE Research Brief (2011). ‘‘EHB: Comparing Be Sold Through Exchanges As Of 2014,’’ Health Finkelstein, A, ‘‘The Aggregate Effects of Health Benefits in Small Group Products and State and Affairs, (2012), available at: http:// Insurance: Evidence from the Introduction of Federal Employee Plans.’’ Available at: http:// content.healthaffairs.org/content/early/2012/05/22/ Medicare,’’ National Bureau of Economic Research. aspe.hhs.gov/health/reports/2011/ hlthaff.2011.1082.full.pdf+html. Working Paper No. 11619, Sept, 2005. MarketComparison/rb.shtml.

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exercise the option to define habilitative to one of the four metal levels, these the ability of consumers to make services, small group market issuers costs will be relatively minor. We comparisons among plans. may incur administrative and request comment on the burden states HHS believes the benchmark contracting costs associated with will incur in enforcing these approach best strikes the balance bringing their products into compliance requirements. between comprehensiveness, with a state’s definition. However, If a state requires issuers to cover affordability, and state flexibility. because it is not yet clear which states benefits in excess of EHB, the Additionally, HHS believes that the will exercise this option or how any Affordable Care Act directs the state to benchmark approach, supplemented such states will define habilitative defray the costs of these benefits in when necessary, best addresses the services, HHS cannot estimate these QHPs. States may include as part of statutory requirements that EHBs reflect costs at this time. their benchmark plan state benefit a typical employer plan and encompass With respect to AV, research indicates requirements that were enacted before at least the 10 categories of items and that the overwhelming majority of December 31, 2011, avoiding costs services outlined in the statute. employer-sponsored health plans meets associated with these provisions. Calculation of AV and exceeds an AV of 60 percent.49 Combining both small group and large Costs to Health Insurance Issuers In the calculation of AV, the statute specifies the use of a standard group, an estimated 1.6 percent to 2.0 Issuers will incur administrative costs population. As described in the AV/CSR percent of people covered by employer- to modify existing offerings to meet EHB Bulletin, HHS considered allowing sponsored insurance are enrolled in and AV standards as defined in this issuers to use their own utilization and plans with an AV of less than 60 proposed rule. For example, issuers that pricing data in connection with an HHS- percent. do not currently meet the standards for defined standard population (that is, In the individual health insurance prescription drug coverage will incur market, McKethan et al. estimated the HHS-set demographics for the standard contracting and one-time administrative percentage of individual market plans population) to calculate a standard costs to bring their pharmacy benefits falling below 60 percent (the AV of a population. However, this would not into compliance. Issuers may also incur bronze plan), meaning that the health have allowed for consumer transparency minor administrative costs related to AV insurance coverage paid for less than 60 and would not have increased standards and computing AV. However, percent of benefit costs for the average competition. The approach in this because EHB will be based on a enrollee, at between 9 percent and 11 proposed rule instead reduces issuer benchmark plan that is typical of what percent.50 To keep premium costs low, burden while allowing consumers to is offered in the market in each state the Affordable Care Act allows certain compare more easily among plans. currently, the modifications in benefits individuals (adults under age 30 and are expected to be relatively minor for VI. Regulatory Flexibility Act people who otherwise have most issuers. Further, issuers have unaffordable coverage) to purchase The Regulatory Flexibility Act (5 extensive experience in offering catastrophic coverage, which still U.S.C. 601 et seq.) (RFA) requires products with various levels of cost guarantees first dollar coverage of agencies to analyze options for sharing, and HHS expects that following preventive services and primary care regulatory relief of small businesses if a the process for computing AV outlined check-ups but has higher deductibles proposed rule has a significant impact in this proposed rule will not demand and lower AVs. on a substantial number of small many additional resources. entities. The Act generally defines a Costs to States I. Regulatory Alternatives ‘‘small entity’’ as (1) A proprietary firm State governments are generally meeting the size standards of the Small responsible for health insurance In addition to the regulatory approach Business Administration (SBA), (2) a enforcement in the individual and small outlined in the Essential Health Bulletin not-for-profit organization that is not group markets, with the federal issued on December 16, 2011, HHS dominant in its field, or (3) a small government assuming that role in considered several alternatives when government jurisdiction with a connection with federal law developing policy around defining population of less than 50,000. (States requirements if a state does not do so. EHBs and calculating AV. and individuals are not included in the While HHS expects that states may need Definition of EHBs definition of ‘‘small entity.’’) HHS uses additional resources to enforce the as its measure of significant economic requirements that non-grandfathered At the request of some commenters, impact on a substantial number of small plans in the individual and small group HHS considered one national definition entities a change in revenues of more market provide EHB, and that these of EHB that would have applicable than 3 to 5 percent. plans offer coverage with an AV equal issuers offer a uniform list of benefits. As discussed above, this proposed However, this approach would not rule is necessary to implement 49 ASPE Research Brief (2011). ‘‘AV and Employer allow for state flexibility and issuer standards related to the EHB, AV, cost- Sponsored Insurance,’’ available at: http:// innovation in benefit design, would sharing limitations, and quality, as aspe.hhs.gov/health/reports/2011/AV-ESI/rb.pdf. require a burdensome overhaul for authorized by the Affordable Care Act. Similar results were found in a recent study by Gabel and colleagues. Jon R. Gabel, Ryan Lore, issuers, and would disrupt the market. For purposes of the Regulatory Roland D. McDevitt, Jeremy D. Pickreign, Heidi HHS also considered codifying the 10 Flexibility Analysis, we expect the Whitmore, Michael Slover and Ethan Levy- statutorily required categories without following types of entities to be affected Forsythe, ‘‘More Than Half Of Individual Health additional definition and allowing by this proposed rule: (1) Issuers; (2) Plans Offer Coverage That Falls Short Of What Can Be Sold Through Exchanges As Of 2014,’’ Health issuers to adjust their benefit packages employers; and (3) providers. Affairs, (2012), available at: http:// accordingly. However, this approach We believe that health insurers would content.healthaffairs.org/content/early/2012/05/ would have allowed wide variation be classified under the North American 22hlthaff.2011.1082.full.pdf+html. across plans in the benefits offered, Industry Classification System (NAICS) 50 Aaron McKethan, Mark Zezza, Lawrence Kocot, Code 524114 (Direct Health and Medical Mark Shepard, and Don Cohn, ‘‘Minimum would not have assured consumers that Creditable Coverage,’’ Bipartisan Policy Center, they would have coverage for basic Insurance Carriers). According to SBA January 2010. benefits, and would not have improved size standards, entities with average

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annual receipts of $7 million or less established by the SBA (currently $7 may overstate the actual number of would be considered small entities for million in annual receipts for health small health insurance issuers offering this NAICS code. Health issuers could insurers, based on North American such coverage, since it does not include possibly also be classified in NAICS Industry Classification System Code receipts from these companies’ other Code 621491 (HMO Medical Centers) 524114).51 lines of business. and, if this is the case, the SBA size For purposes of this proposed rule, HHS estimates that 83 percent of standard would be $10 million or less. HHS used 2011 National Association of As discussed in the Web Portal Insurance Commissioners (NAIC) these small issuers are subsidiaries of interim final rule (75 FR 24481), HHS Supplemental Health Care Exhibit data larger carriers, and 71 percent also offer examined the health insurance industry to develop an updated estimate of the large group or other types of A&H in depth in the Regulatory Impact number of small entities that offer coverage. On average, HHS estimates Analysis we prepared for the proposed comprehensive major medical coverage that individual and small group CMM rule on establishment of the Medicare in the individual and small group coverage accounts for approximately 45 Advantage program (69 FR 46866, markets. HHS used total Accident and percent of total A&H earned premiums August 3, 2004). In that analysis we Health (A&H) earned premiums as a for these small issuers. HHS estimates determined that there were few, if any, proxy for annual receipts. Table IV.3 that 75 percent of these small issuers insurance firms underwriting shows that HHS estimates that there only offer individual and small group comprehensive health insurance were 35 small entities with less than $7 CMM coverage in a single state. policies (in contrast, for example, to million in accident and health earned Additionally, HHS estimates that travel insurance policies or dental premiums offering individual or small approximately a third (11) of these small discount policies) that fell below the group comprehensive major medical issuers only offer individual market size thresholds for ‘‘small’’ business (CMM) coverage; however, this estimate CMM coverage.

TABLE IV.3—DESCRIPTION OF ISSUERS OFFERING INDIVIDUAL OR SMALL GROUP COMPREHENSIVE MAJOR MEDICAL (CMM) COVERAGE BY SIZE, 2011

Average Percent of Total issuers number of issuers only Individual & Percent of Number of offering Percent of states in which offering small group issuers also issuers only Total earned premiums individual or issuers that individual or individual or CMM offering large offering for accident and health small group are part of small group small group premiums as a group CMM or individual coverage market CMM larger carriers CMM CMM percent of total other A&H market CMM coverage coverage is coverage in a A&H coverage coverage offered single state premiums

Less Than $7 Million .... 35 82.9 2.3 74.3 45.0 71.4 11 $7 million to $99 million 93 68.8 4.5 62.4 37.2 66.7 6 $100 million to $999 bil- lion ...... 184 87.0 5.2 65.8 27.0 84.8 11 $1 billion or more ...... 115 87.8 4.8 69.6 24.0 93.9 1

Total ...... 427 82.9 4.7 66.7 24.5 82.2 29 Notes: (1) Issuers represents companies (for example, NAIC company codes). (2) Licensed Entities represents company/state combinations. (3) Total issuers excludes data for companies that are regulated by the California Department of Managed Health Care. (4) To be counted as of- fering coverage in a particular comprehensive major medical market, the issuer must have reported positive premiums, non-zero claims and had at least $1,000 in total premiums per life year for at least one state. (5) Small group is defined based on the current definition in the PHS Act. Sources: ASPE analysis of 2011 NAIC Supplemental Health Care Exhibit data.

This rule proposes standards related Accordingly, we cannot estimate an Analysis for the Establishment of to EHBs, AV, and accreditation. These effect on premiums with precision prior Exchanges and Qualified Health Plans; standards may impose some additional to final state selection of benchmarks. Exchange Standards for Employers final costs on issuers offering coverage that is As discussed in the regulatory impact rule, the SHOP is limited by statute to affected by these provisions. For analysis for the Establishment of employers with at least one but not example, as discussed earlier, issuers Exchanges and Qualified Health Plans; more than 100 employees. For this are likely to experience some Exchange Standards for Employers final reason, we expect that many affected administrative costs associated with rule (77 FR 18310 (Mar. 27, 2012)), the employers would meet the SBA reconfiguring existing non- cost of participating in an Exchange is standard for small entities. However, the grandfathered plans to meet EHB and an investment for QHP issuers, with standards outlined in this proposed rule AV metal level standards as defined in benefits expected to accrue to QHP apply to issuers of small group market this proposed rule. However, these costs issuers because of access to new markets health insurance coverage, and not to will vary depending on a number of where consumers may receive generous any small employers that elect to factors, including the extent to which an tax credits to purchase insurance. purchase such coverage on behalf of issuer offers coverage in multiple states This proposed rule also establishes their employees (that is, the proposed or is a subsidiary of a larger carrier, and standards that will affect employers rule impacts what coverage is available the variation between these standards participating in the small group market, to be purchased).We anticipate that the and current practice. Further, some of including those that choose to essential health benefits, coupled with the changes that standardize coverage participate in a SHOP. As discussed in the ability to compare plans based on may reduce administrative costs. the Summary of Regulatory Impact metal level, will lead to greater

51 ‘Table of Size Standards Matched to North effective November 5, 2010, U.S. Small Business American Industry Classification System Codes,’’ Administration, available at http://www.sba.gov.

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transparency and reduce transaction costs significantly tapering off during to determining standards for health costs for small employers. subsequent years. insurance coverage that is offered in the HHS anticipates that the provisions in The benchmark-based approach to individual and small group markets. this proposed rule will have a positive defining EHB ensures that EHB will Each state would adhere to the federal effect on providers—particularly those reflect the scope of services offered by standards outlined in the proposed rule offering services in areas where many a ‘‘typical employer plan.’’ Accordingly, for purposes of determining whether individual market enrollees previously we anticipate that many small group non-grandfathered individual and small did not have coverage for these services, market plans meet or are close to group market health insurance coverage and those who serve a substantial share meeting the coverage requirements for includes the EHB package, or have HHS of the low-income population. HHS EHB and will not need to incur enforce these policies. anticipates that small providers will significant administrative costs to bring HHS expects that the federalism also experience positive effects relating currently available plans into implications, if any, are substantially to the provisions of this proposed rule. compliance. Individual market plans are mitigated for a number of reasons. First, Therefore, the Secretary certifies that somewhat less likely to cover all the proposed rule affords discretion to this proposed rule will not have a statutorily required benefits and states to select an EHB-benchmark plan. significant impact on a substantial services as described in this proposed States also can choose to be responsible number of small entities. We welcome rule; however, many such plans are for evaluating the selected benchmark comment on the analysis described in offered by issuers with diverse and making adjustments as needed, and this section and on HHS’s conclusion. portfolios that may include small and for determining whether non- VII. Unfunded Mandates large group products or other individual grandfathered individual and small market products that do include the group market health insurance coverage Section 202 of the Unfunded required services. Accordingly, we do meets the standards outlined in the Mandates Reform Act (UMRA) of 1995 not anticipate that the provisions related proposed rule. While the proposed rule requires that agencies assess anticipated to the EHB package outlined in the establishes new federal standards for costs and benefits before issuing any proposed rule impose costs greater than certain health insurance coverage, states proposed rule that includes a federal $139 million on the private sector. will retain their traditional regulatory mandate that could result in Consistent with policy embodied in roles. Further, if a state elects not to expenditure in any one year by state, UMRA, this notice for proposed substantially enforce the standards local or tribal governments, in the rulemaking has been designed to be the outlined in the final rule, the Federal aggregate, or by the private sector, of least burdensome alternative for state, government will assume responsibility $100 million in 1995 dollars, updated local and tribal governments, and the for these standards. annually for inflation. In 2012, that private sector while achieving the In compliance with the requirement threshold level is approximately $139 objectives of the Affordable Care Act. of Executive Order 13132 that agencies million. UMRA does not address the total cost VIII. Federalism examine closely any policies that may of a proposed rule. Rather, it focuses on Executive Order 13132 establishes have federalism implications or limit certain categories of cost, mainly those certain requirements that an agency the policymaking discretion of the ‘‘Federal mandate’’ costs resulting from: must meet when it promulgates a states, HHS has made efforts to consult (1) Imposing enforceable duties on state, proposed rule that imposes substantial with and work cooperatively with states local, or tribal governments, or on the direct requirement costs on state and as evidenced by continued private sector; or (2) increasing the local governments, preempts state law, communication through weekly calls stringency of conditions in, or or otherwise has federalism and listening sessions. decreasing the funding of, state, local, or implications. HHS initiated weekly calls with key tribal governments under entitlement States regulate health insurance stakeholders from states in April 2010 programs. coverage. States would continue to as a way for HHS and states to have a Because states are not required to set apply state laws regarding health regular means of communication about up an Exchange, and because grants are insurance coverage. However, if any the Affordable Care Act. The audience available for funding of the state law or requirement prevents the for the call is ‘‘State Government establishment of an Exchange by a state, application of a Federal standard, then Implementers of the Affordable Care we anticipate that this final rule would that particular state law or requirement Act’’ which often includes Governors’ not impose costs above that threshold would be preempted. State requirements office staff, state Medicaid Directors’ on state, local, or Tribal governments. In that are more stringent than the Federal staff, Insurance Commissioners’ staff, addition, because states largely already requirements would not be preempted state high risk pool staff, Exchange collect information on plan rates and by this proposed rule unless such grantees, health reform coordinators, benefits to license them, we believe that requirements prevent the application of and other state staff. National the burden on states is limited. Federal law. Accordingly, states have intergovernmental organizations are also However, because these costs have not significant latitude to impose invited to participate. Regular been estimated, HHS seeks comments requirements with respect to health participants also include representatives on any additional burdens. insurance coverage that are more from the following intergovernmental Under the proposed rule, issuers will consumer-protective than the Federal organizations: provide coverage of certain benefits. law. • National Governors Association While some issuers may not currently In the view of HHS, this proposed • National Conference of State offer benefit packages that meet the rule does not impose substantial direct Legislatures standards outlined in the proposed rule, costs on state and local governments. • National Association of Medicaid we anticipate that the administrative However, we believe that this proposed Directors costs associated with compliance will rule has Federalism implications due to • National Association of Insurance fall below the threshold. We anticipate direct effects on the distribution of Commissioners that such administrative costs will be power and responsibilities among the • American Public Human Services concentrated in the initial year, with state and Federal governments relating Association

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• The Council of State Governments Subchapter B—Requirements Relating to (b) Payments. The state must make • National Academy for State Health Health Care Access payments to defray the cost of Policy additional required benefits specified in • National Association of Counties PART 147—HEALTH INSURANCE paragraph (a) of this section to one of REFORM REQUIREMENTS FOR THE These calls, in addition to listening the following: GROUP AND INDIVIDUAL HEALTH sessions specifically related to EHB, (1) To an individual enrollee, as INSURANCE MARKETS have helped HHS understand states’ defined in § 155.20 of this subchapter; major concerns about implementation of 1. The authority citation for part 147 or the Affordable Care Act. Continuous continues to read as follows: (2) Directly to the QHP issuer on communication with states allowed behalf of the individual described in Authority: Secs 2701 through 2763, 2791, paragraph (b)(1) of this section. HHS to develop policy that addressed and 2792 of the Public Health Service Act (42 two central concerns: flexibility and U.S.C. 300gg through 300gg–63, 300gg–91, (c) Cost of additional required state-required benefits. The benchmark and 300gg–92), as amended. benefits. (1) Each QHP issuer in the state approach allows states to select a shall quantify cost attributable to each 2. Section 147.150 is added to read as benchmark option that offer benefit additional required benefit specified in follows: packages that reflect the needs of their paragraph (a) of this section. populations and maintain state-required § 147.150 Coverage of essential health (2) A QHP issuer’s calculation shall benefits that were enacted before benefits. be: December 31, 2011. This approach (a) Requirement to cover the essential (i) Based on an analysis performed in minimizes state burden while increasing health benefits package. A health accordance with generally accepted access to quality health care. insurance issuer offering health actuarial principles and methodologies; (ii) Conducted by a member of the insurance coverage in the individual or List of Subjects American Academy of Actuaries; and small group market must ensure that 45 CFR Part 147 (iii) Reported to the Exchange. such coverage includes the essential 5. Revise § 155.1045 to read as Health care, Health insurance, health benefits package as defined in follows: Reporting and recordkeeping section 1302(a) of the Affordable Care requirements, state regulation of health Act effective for plan or policy years § 155.1045 Accreditation timeline. insurance. beginning on or after January 1, 2014. (a) Timeline. The Exchange must (b) Cost-sharing under group health establish a uniform period following 45 CFR Part 155 plans. [Reserved.] certification of a QHP within which a Administrative practice and (c) Child-only plans. If a health QHP issuer that is not already procedure, Advertising, Brokers, insurance issuer in the individual accredited must become accredited as Conflict of interest, Consumer market offers health insurance coverage required by § 156.275 of this subchapter, protection, Grant programs-health, in any level of coverage specified under except for multi-state plans. The U.S. Grants administration, Health care, section 1302(d)(1) of the Affordable Care Office of Personnel Management will Health insurance, Health maintenance Act, the issuer must offer coverage in establish the accreditation period for organization (HMO), Health records, that level to individuals who, as of the multi-state plans. Hospitals, Indians, Individuals with beginning of a plan year, have not (b) Federally-facilitated Exchange. disabilities, Loan programs-health, attained the age of 21. The accreditation timeline used in Organization and functions Federally-facilitated Exchanges follows: (Government agencies), Medicaid, PART 155—EXCHANGE (1) During certification for an issuer’s Public assistance programs, Reporting ESTABLISHMENT STANDARDS AND initial year of QHP certification (for and recordkeeping requirements, Safety, OTHER RELATED STANDARDS example, in 2013 for the 2014 coverage state and local governments, Technical UNDER THE AFFORDABLE CARE ACT year), a QHP issuer without existing assistance, Women, and Youth. 3. The authority citation for part 155 commercial, Medicaid, or Exchange 45 CFR Part 156 is revised to read as follows: health plan accreditation granted by a recognized accrediting entity for the Authority: Title I of the Affordable Care Administrative practice and same state in which the issuer is procedure, Advertising, Advisory Act, sections 1301, 1302, 1303, 1304, 1311, 1312, 1313, 1321, 1322, 1331, 1334, 1402, applying to offer coverage must have Committees, Brokers, Conflict of 1411, 1412, 1413, Pub. L. 111–148, 124 Stat. scheduled or plan to schedule a review interest, Consumer protection, Grant 119 (42 U.S.C. 18021–18024, 18031–18033, of QHP policies and procedures of the programs-health, Grants administration, 18041–18042, 18051, 18054, 18071, and applying QHP issuer with a recognized Health care, Health insurance, Health 18081–18083. accrediting entity. maintenance organization (HMO), 4. Adding § 155.170 to subpart B to (2) Prior to a QHP issuer’s second year Health records, Hospitals, Indians, read as follows: and third year of QHP certification (for Individuals with disabilities, Loan example, in 2014 for the 2015 coverage programs-health, Organization and § 155.170 Additional required benefits. year and 2015 for the 2016 coverage functions (Government agencies), (a) Additional required benefits. (1) A year), a QHP issuer must be accredited Medicaid, Public assistance programs, state may require a QHP to offer benefits by a recognized accrediting entity on the Reporting and recordkeeping in addition to the essential health policies and procedures that are requirements, Safety, state and local benefits. applicable to their Exchange products governments, Sunshine Act, Technical (2) A state-required benefit enacted on or, a QHP issuer must have commercial assistance, Women, and Youth. or before December 31, 2011 is not or Medicaid health plan accreditation For the reasons set forth in the considered in addition to the essential granted by a recognized accrediting preamble, the Department of Health and health benefits. entity for the same State in which the Human Services proposes to amend 45 (3) The Exchange shall identify which issuer is offering Exchange coverage and CFR parts 147, 155, and 156 as set forth state-required benefits are in excess of the administrative policies and below: EHB. procedures underlying that

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accreditation must be the same or described in section 1302(e) of the (b) EHB-benchmark selection similar to the administrative policies Affordable Care Act, provides distinct standards. In order to become an EHB- and procedures used in connection with levels of coverage as described in benchmark plan as defined in § 156.20 the QHP. § 156.140 of this subchapter. of this subchapter, a state-selected base- (3) Prior to the QHP issuer’s fourth * * * * * benchmark plan must meet the year of QHP certification and in every Percentage of the total allowed costs requirements for coverage of benefits subsequent year of certification (for of benefits means the anticipated and limits described in § 156.110 of this example, in 2016 for the 2017 coverage covered medical spending for EHB subpart; and year and forward), a QHP issuer must be coverage (as defined in § 156.110(a) of (c) Default base-benchmark plan. If a accredited in accordance with § 156.275 this subchapter) paid by a health plan state does not make a selection using the of this subchapter. for a standard population, computed in process defined in § 156.100 of this accordance with the plan’s cost-sharing, section, the default base-benchmark PART 156—HEALTH INSURANCE divided by the total anticipated allowed plan will be the largest plan by ISSUER STANDARDS UNDER THE charges for EHB coverage provided to a enrollment in the largest product in the AFFORDABLE CARE ACT, INCLUDING standard population, and expressed as a state’s small group market. STANDARDS RELATED TO percentage. EXCHANGES § 156.105 Determination of EHB for multi- * * * * * state plans. 6. The authority citation for part 156 8. Revise subpart B to read as follows: A Multi-State Plan must meet is revised to read as follows: benchmark standards set by the U.S. Subpart B—Essential Health Benefits Authority: Title I of the Affordable Care Office of Personnel Management. Act, sections 1301–1304, 1311–1312, 1321– package 1322, 1324, 1334, 1342–1343, and 1401– § 156.110 EHB-benchmark plan standards. Sec. 1402, Pub. L. 111–148, 124 Stat. 119 (42 156.100 State selection of benchmark. General requirements. An EHB- U.S.C. 18021–18024, 18031–18032, 18041– 156.105 Determination of EHB for multi- benchmark plan must meet the 18042, 18044, 18054, 18061, 18063, 18071, state plans. following standards: and 26 U.S.C. 36B). 156.110 EHB-benchmark plan standards. (a) EHB coverage. Provide coverage of 7. Amend § 156.20 by adding 156.115 Provision of EHB. at least the following categories of definitions for ‘‘Actuarial value (AV),’’ 156.120 Prescription drug benefits. benefits: ‘‘Base-benchmark plan,’’ ‘‘EHB- 156.125 Prohibition on discrimination. (1) Ambulatory patient services. benchmark plan,’’ ‘‘EHB package,’’ and 156.130 Cost-sharing requirements. (2) Emergency services. ‘‘Percentage of the total allowed costs of 156.135 AV calculation for determining (3) Hospitalization. level of coverage. benefits’’ in alphabetical order to read as 156.140 Levels of coverage. (4) Maternity and newborn care. follows: 156.145 Determination of minimum value (5) Mental health and substance use disorder services, including behavioral § 156.20 Definitions. 156.150 Application to stand-alone dental plans inside the Exchange. health treatment. * * * * * (6) Prescription drugs. Actuarial value (AV) means the § 156.100 State selection of benchmark. (7) Rehabilitative and habilitative percentage paid by a health plan of the Each state may identify a single EHB- services and devices. percentage of the total allowed costs of benchmark plan according to the (8) Laboratory services. benefits. selection criteria described below: (9) Preventive and wellness services * * * * * (a) State-selection of base-benchmark and chronic disease management. Base-benchmark plan means the plan plan. The options from which a base- (10) Pediatric services, including oral that is selected by a state from the benchmark plan may be selected by the and vision care. options described in § 156.100(a) of this state are the following: (b) Coverage in each benefit category. subchapter, or a default benchmark (1) Small group market health plan. A base-benchmark plan not providing plan, as described in § 156.100(c) of this The largest health plan by enrollment in any coverage in one or more of the subchapter, prior to any adjustments any of the three largest small group categories described in paragraph (a) of made pursuant to the benchmark insurance products, as defined in this section, must be supplemented as standards described in § 156.110 of this § 159.110 of this subpart, in the state’s follows: subchapter. small group market as defined in (1) General supplementation * * * * * § 155.20 of this subchapter. methodology. A base-benchmark plan EHB-benchmark plan means the (2) State employee health benefit that does not include items or services standardized set of essential health plan. Any of the largest three employee within one or more of the categories benefits that must be met by a QHP, as health benefit plan options by described in paragraph (a) of this defined in § 155.20 of this section, or enrollment offered and generally section must be supplemented by the other issuer as required by § 147.150 of available to state employees in the state addition of the entire category of such this subchapter. involved. benefits offered under any other EHB package means the scope of (3) FEHBP plan. Any of the largest benchmark plan option described in covered benefits and associated limits of three national Federal Employees § 156.100(a) of this subpart unless a health plan offered by an issuer that Health Benefits Program (FEHBP) plan otherwise described in this subsection. provides at least the ten statutory options by aggregate enrollment that is (2) Supplementing pediatric oral categories of benefits, as described in offered to all health-benefits-eligible services. A base-benchmark plan lacking § 156.110(a) of this subchapter; provides federal employees under 5 U.S.C. 8903. the category of pediatric oral services the benefits in the manner described in (4) HMO. The coverage plan with the must be supplemented by the addition § 156.115 of this subchapter; limits cost largest insured commercial non- of the entire category of benefits from sharing for such coverage as described Medicaid enrollment offered by a health one of the following: in § 156.130 of this subchapter; and maintenance organization operating in (i) The FEDVIP dental plan with the subject to offering catastrophic plans as the state. largest national enrollment that is

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described in and offered to federal § 156.115 Provision of EHB. § 156.120 Prescription drug benefits. employees under 5 U.S.C. 8952; or (a) Provision of EHB means that a (a) A health plan does not provide (ii) The benefits available under that health plan provides benefits that— essential health benefits unless it: state’s separate CHIP plan, if a separate (1) Are substantially equal to the EHB- (1) Subject to the exception in CHIP plan exists, to the eligibility group benchmark plan including: paragraph (b) of this section, covers at with the highest enrollment. (i) Covered benefits; least the greater of: (3) Supplementing pediatric vision (ii) Limitations on coverage including (i) One drug in every United States services. A base-benchmark plan lacking coverage of benefit amount, duration, Pharmacopeia (USP) category and class; the category of pediatric vision services and scope; and or must be supplemented by the addition (iii) Prescription drug benefits that (ii) The same number of prescription of the entire category of such benefits meet the requirements of § 156.120 of drugs in each category and class as the from one of the following: this subpart; EHB-benchmark plan; and (i) The FEDVIP vision plan with the (2) With respect to the mental health (2) Submits its drug list to the largest national enrollment that is and substance use disorder services, Exchange, the state, or OPM. offered to Federal employees under 5 including behavioral health treatment (b) A health plan does not fail to U.S.C. 8982; or services, required under § 156.110(a)(5) provide EHB prescription drug benefits (ii) The benefits available under the of this subpart, comply with the solely because it does not offer drugs for state’s separate CHIP plan, if a separate requirements of § 146.136 of this services described in § 156.280(d) of this CHIP plan exists, to the eligibility group subchapter. subchapter. with the highest enrollment. (3) Include preventive health services (c) A health plan providing essential (c) Supplementing the default base- described in § 147.130 of this health benefits must have procedures in benchmark plan. A default base- subchapter. place that allow an enrollee to request benchmark plan as defined in (4) If the EHB-benchmark plan does clinically appropriate drugs not covered § 156.100(c) of this subpart that lacks not include coverage for habilitative by the health plan. services, as described in § 156.110(f) of any categories of essential health § 156.125 Prohibition on discrimination. benefits will be supplemented by HHS this subpart, a plan must include habilitative services that meet one of the (a) An issuer does not provide EHB if in the following order, to the extent that its benefit design, or the implementation any of the plans offer benefits in the following— (i) Provide parity by covering of its benefit design, discriminates based missing EHB category: habilitative services benefits that are on an individual’s age, expected length (1) The largest plan by enrollment in of life, present or predicted disability, the second largest product in the state’s similar in scope, amount, and duration to benefits covered for rehabilitative degree of medical dependency, quality small group market, as defined in of life, or other health conditions; and § 155.20 of this subchapter (except for services; or (ii) Are determined by the issuer and (b) An issuer providing EHB must pediatric oral and vision benefits); comply with the requirements of (2) The largest plan by enrollment in reported to HHS. (b) Benefit substitution is allowed if § 156.200(e) and § 156.225 of this the third largest product in the state’s the issuer of a plan offering EHB meets subchapter. small group market, as defined in the following conditions— § 155.20 of this subchapter (except for (1) Substitutes a benefit that meets the § 156.130 Cost-sharing requirements. pediatric oral and vision benefits); following conditions: (a) Annual limitation on cost sharing. (3) The largest national FEHBP plan (i) Is actuarially equivalent to the (1) For a plan year beginning in the by enrollment across states that is benefit that is being replaced as calendar year 2014, cost sharing may offered to federal employees under 5 determined in paragraph (b)(3) of this not exceed the following: U.S.C. 8903 (except for pediatric oral section; (i) For self-only coverage—the annual and vision benefits); (ii) Is made only within the same dollar limit as described in section (4) The plan described in paragraph essential health benefit category; and 223(c)(2)(A)(ii)(I) of the Internal (b)(2)(i) of this section with respect to (iii) Is not a prescription drug benefit. Revenue Code of 1986 as amended, for pediatric oral care benefits; (2) Submits evidence of actuarial self-only coverage that is in effect for (5) The plan described in paragraph equivalence of substituted benefits to 2014; or (b)(3)(i) of this section with respect to the state. The certification must: (ii) For other than self-only pediatric vision care benefits; and (i) Be conducted by a member of the coverage—the annual dollar limit in (6) A habilitative benefit determined American Academy of Actuaries; section 223(c)(2)(A)(ii)(II) of the Internal by the plan as described in (ii) Be based on an analysis performed Revenue Code of 1986 as amended, for § 156.115(a)(4) of this subpart or by the in accordance with generally accepted non-self-only coverage that is in effect state as described in paragraph (f) of this actuarial principles and methodologies; for 2014. section. and (2) For a plan year beginning in a (d) Non-discrimination. Not include (iii) Use a standardized plan calendar year after 2014, cost sharing discriminatory benefit designs that population; may not exceed the following: contravene the non-discrimination (3) Actuarial equivalence of benefits is (i) For self-only coverage—the dollar standards defined in § 156.125 of this determined regardless of cost-sharing. limit for calendar year 2014 increased subpart. (c) A health plan does not fail to by an amount equal to the product of (e) Balance. Ensure an appropriate provide EHB solely because it does not that amount and the premium balance among the EHB categories to offer the services described in adjustment percentage, as defined in ensure that benefits are not unduly § 156.280(d) of this subchapter. paragraph (e) of this section. weighted toward any category. (d) An issuer of a plan offering EHB (ii) For other than self-only (f) Determining habilitative services. If may not include routine non-pediatric coverage—twice the dollar limit for self- the base-benchmark plan does not dental services, routine non-pediatric only coverage described in paragraph include coverage for habilitative eye exam services, or long-term/ (a)(2)(i) of this section. services, the state may determine which custodial nursing home care benefits, or (b) Annual limitation on deductibles services are included in that category. cosmetic orthodontia as EHB. for plans in the small group market. (1)

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For a plan year beginning in calendar (h) Coverage of emergency standard population that is paid by the year 2014, the annual deductible for a department services. Emergency health plan; and health plan in the small group market department services must be provided (2) Adjusted to reflect the expected may not exceed the following: as follows: spending for health care costs in a (i) For self-only coverage—$2,000; or (1) Without imposing any requirement benefit year so that: (ii) For coverage other than self- under the plan for prior authorization of (i) Any current year HSA only—$4,000. services or any limitation on coverage contributions are accounted for; and (2) For a plan year beginning in a where the provider of services is out of (ii) The amounts newly made calendar year after 2014, the annual network that is more restrictive than the available under an HRA for the current deductible for a health plan in the small requirements or limitations that apply to year are accounted for. group market may not exceed the emergency department services received (d) Use of state-specific standard following: in network; and population for the calculation of AV. (i) For self-only coverage—the annual (2) If such services are provided out- Beginning in 2015, if submitted by the limitation on deductibles for calendar of-network, cost-sharing must be limited state and approved by HHS, a state- year 2014 increased by an amount equal as provided in § 147.138(b)(3) of this specific data set will be used as the to the product of that amount and the subchapter. standard population to calculate AV in premium adjustment percentage as accordance with paragraph (a) of this defined in paragraph (e) of this section; § 156.135 AV calculation for determining section. The data set may be approved and level of coverage. by HHS if it is submitted in accordance (ii) For other than self-only (a) Calculation of AV. Subject to with paragraph (e) of this section and: coverage—twice the annual deductible paragraph (b) of this section, to calculate (1) Supports the calculation of AVs limit for self-only coverage described in the AV of a health plan, the issuer must for the full range of health plans paragraph (b)(2)(i) of this section. use the AV calculator developed and available in the market; (3) A health plan’s annual deductible made available by HHS. (2) Is derived from a non-elderly may exceed the annual deductible limit (b) Exception to the use of the AV population and estimates those likely to if that plan may not reasonably reach calculator. If a health plan’s design is be covered by private health plans on or the actuarial value of a given level of not compatible with the AV calculator, after January 1, 2014; coverage as defined in § 156.140 of this the issuer must meet the following: (3) Is large enough that: subpart without exceeding the annual (1) Submit the actuarial certification (i) The demographic and spending deductible limit. on the chosen methodology identified in patterns are stable over time; and (c) Special rule for network plans. In paragraphs (b)(2) and (3) of this section: (ii) Includes a substantial majority of the case of a plan using a network of (2) Calculate the plan’s AV by: the state’s insured population, subject to providers, cost-sharing paid by, or on (i) Estimating a fit of its plan design the requirement in paragraph (d)(2) of behalf of, an enrollee for benefits into the parameters of the AV calculator; this section; (4) Is a statistically reliable and stable provided outside of such network shall and (ii) Having an actuary, who is a basis for area-specific calculations; and not count towards the annual limitation (5) Contains claims data on health member of the American Academy of on cost sharing (as defined in paragraph care services typically offered in the Actuaries, certify that the plan design (a) of this section), or the annual then-current market. limitation on deductibles (as defined in was fit appropriately in accordance with (e) Submission of state-specific data. paragraph (b) of this section). generally accepted actuarial principles AV will be calculated using the default (d) Increase annual dollar limits in and methodologies; or standard population described in multiples of 50. For a plan year (3) Use the AV calculator to determine paragraph (f) of this section, unless a beginning in a calendar year after 2014, the AV for the plan provisions that fit data set in a format specified by HHS any increase in the annual dollar limits within the calculator parameters and that can support the use of the AV described in paragraphs (a) and (b) of have an actuary, who is a member of the calculator as described in paragraph (a) this section that do not result in a American Academy of Actuaries of this section is submitted by a state multiple of 50 dollars must be rounded calculate, in accordance with generally and approved by HHS consistent with to the next lowest multiple of 50 dollars. accepted actuarial principles and paragraph (d) of this section by a date (e) Premium adjustment percentage. methodologies, appropriate specified by HHS. The premium adjustment percentage is adjustments, to the AV identified by the (f) Default standard population. The the percentage (if any) by which the calculator, for plan design features that default standard population for AV average per capita premium for health deviate substantially from the calculation will be developed and insurance coverage for the preceding parameters of the AV calculator. summary statistics, such as in calendar year exceeds such average per (4) The calculation methods described continuance tables, will be provided by capita premium for health insurance for in (b)(2) or (3) of this section may HHS in a format that supports the 2013. HHS will publish the annual include only in-network cost-sharing, calculation of AV as described in premium adjustment percentage in the including multi-tier networks. paragraph (a) of this section. annual HHS notice of benefits and (c) Employer contributions to health payment parameters. savings accounts and amounts made § 156.140 Levels of coverage. (f) Coordination with preventive available under health reimbursement (a) General requirement for levels of limits. Nothing in this subpart is in arrangements. In plans other than those coverage. AV, calculated as described in derogation of the requirements of in the individual market that are offered § 156.135 of this subpart, and within a § 147.130 of this subchapter. with an HSA or HRA, annual employer de minimis variation as defined in (g) Prohibition of discriminatory cost contributions to HSAs and amounts paragraph (c) of this section, determines sharing. The structure of cost sharing newly made available under HRAs for whether a health plan offers a bronze, required under a plan must conform to the current year in the small group silver, gold, or platinum level of the nondiscrimination requirements market are: coverage. applicable to benefits set forth in (1) Counted towards the total (b) Levels of coverage. The levels of § 156.125 of this subpart. anticipated medical spending of the coverage are:

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(1) A bronze health plan is a health population covered by self-insured names of the accrediting entities plan that has an AV of 60 percent. group health plans. recognized and those not recognized as (2) A silver health plan is a health accrediting entities by the Secretary of § 156.150 Application to stand-alone HHS to provide accreditation of QHPs. plan that has an AV of 70 percent. dental plans inside the Exchange. (3) A gold health plan is a health plan (iv) Other recognition. Effective upon that has an AV of 80 percent. (a) Annual limitation on cost-sharing. completion of conditions listed in A stand-alone dental plan covering the (4) A platinum health plan is a health paragraphs (c)(2), (3), and (4) of this pediatric dental EHB under § 155.1065 plan that has as an AV of 90 percent. section, HHS will notify the public in of this subchapter must demonstrate to (c) De minimis variation. The the Federal Register, that the National the Exchange that it has a reasonable allowable variation in the AV of a health Committee for Quality Assurance annual limitation on cost-sharing. Such plan that does not result in a material (NCQA) and URAC are recognized as annual limit is calculated without difference in the true dollar value of the accrediting entities by the Secretary of regard to EHBs provided by the QHP health plan is +/¥ 2 percentage points. HHS to provide accreditation of QHPs and without regard to out-of-network meeting the requirements of this § 156.145 Determination of minimum services. section. value. (b) Calculation of AV. A stand-alone * * * * * (a) Acceptable methods for dental plan: (4) Documentation. An accrediting determining MV. For the purposes of (1) May not use the AV calculator in entity applying to be recognized under determining that an employer- § 156.135 of this subpart; the process described in (c)(1) of this sponsored plan provides MV, a group (2) Must demonstrate that the stand- section must provide the following health plan may use the following alone dental plan offers the pediatric documentation: methods to calculate the percentage of dental essential health benefit at either: (i) To be recognized, an accrediting the total allowed costs of benefits (i) A low level of coverage with an AV entity must provide current provided under the plan or coverage: of 75 percent; or accreditation standards and (ii) A high level of coverage with an (1) The MV calculator to be made requirements, processes and measure AV of 85 percent; and available by HHS and the Internal specifications for performance measures (iii) Within a de minimis variation of Revenue Service. The result derived to demonstrate that it meets the +/¥ 2 percentage points of the level of from the calculator may be modified conditions described in paragraphs coverage in paragraphs (b)(2)(i) or (ii) of under the rules in paragraph (b) of this (c)(2) and (3) of this section to HHS. this section. section. (3) The level of coverage as defined in * * * * * (2) Any safe harbor established by paragraph (b)(2) of this section must be Dated: August 1, 2012. HHS and the Internal Revenue Service. certified by a member of the American Marilyn Tavenner, (3) A group health plan may seek an Academy of Actuaries using generally appropriate certification by an actuary Acting Administrator, Centers for Medicare accepted actuarial principles. & Medicaid Services. to determine MV if neither of the 9. In § 156.275, revise paragraphs Approved: November 14, 2012. methods described in paragraphs (a)(1) (c)(1), (c)(4) introductory text, and Kathleen Sebelius, or (2) of this section is appropriate. The (c)(4)(i) to read as follows: determination of MV must be made by Secretary. a member of the American Academy of § 156.275 Accreditation of QHP Issuers. Note: The following appendices will not Actuaries, based on an analysis * * * * * appear in the Code of Federal Regulations: performed in accordance with generally (c) * * * accepted actuarial principles and (1) Recognition of accrediting entity Appendix A: List of Proposed Essential methodologies. by HHS—(i) Application. An accrediting Health Benefits Benchmarks (b) Benefits that may be counted entity may apply to HHS for The purpose of this appendix is to list the towards the determination of MV. (1) In recognition. An application must proposed EHB benchmark plans for the 50 the event that a group health plan uses include the documentation described in states and the District of Columbia for public the MV calculator and offers an EHB paragraph (c)(4) of this section and review and comment. As described in the outside of the parameters of the MV demonstrate, in a concise and organized EHB Bulletin published December 16, 2011, calculator, the plan may seek an fashion how the accrediting entity meets and proposed in § 156.100 of this regulation, actuary, who is a member of the the requirements of paragraphs (c)(2) each state may select a benchmark plan to serve as the standard for plans required to American Academy of Actuaries, to and (3) of this section. 52 determine the value of that benefit and offer EHB in the state. HHS has also (ii) Proposed notice. Within 60 days proposed that the default benchmark plan for adjust the result derived from the MV of receiving a complete application as states that do not exercise the option to select calculator to reflect that value. described in paragraph (c)(1)(i) of this a benchmark health plan would be the largest (2) For this purpose of the options section, HHS will publish a notice in plan by enrollment in the largest product in described in this subsection in the Federal Register identifying the the state’s small group market. As described determining MV, a group health plan accrediting entity making the request, in proposed § 156.110, an EHB-benchmark will be permitted to take into account summarizing HHS’s analysis of whether plan must offer coverage in each of the 10 all benefits provided by the plan that are the accrediting entity meets the criteria statutory benefit categories. In the summary included in any of the EHB benchmarks. described in paragraphs (c)(2) and (3) of table that follows, we list the proposed EHB benchmark plans. Additional information on (c) Standard population. The standard this section, and providing no less than population for MV determinations a 30-day public comment period about 52 Non-grandfathered plans in the individual and described in paragraph (a) of this whether HHS should recognize the small group markets both inside and outside of the section is the standard population accrediting entity. Exchanges along with certain other types of plans developed by HHS for such use and (iii) Final notice. After the close of the must cover EHBs beginning in 2014. Self-insured group health plans, health insurance coverage described through summary statistics comment period described in paragraph offered in the large group market, and grandfathered issued by HHS. The standard (c)(1)(ii) of this section, HHS will notify health plans are not required to cover the essential population for MV shall reflect the the public in the Federal Register of the health benefits.

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the specific benefits, limits, and prescription benefits, is provided on the Center for Oversight (CCIIO) Web site (http:// drug categories and classes covered by the Consumer Information and Insurance cciio.cms.gov/resources/data/ehb.html). EHB-benchmark plans, and state-required

Supplemented Supplementary Habilitative State Plan type Issuer and plan name categories plan type services

Alabama ...... Largest small group Blue Cross Blue Shield of Alabama Pediatric oral ...... FEDVIP ...... Yes. product. PPO 320 Plan. Pediatric vision ...... FEDVIP.

Alaska ...... Largest small group Premera Blue Cross Blue Shield of Mental health and Largest FEHBP ..... Yes. product. Alaska Heritage Select Envoy PPO. substance use disorder, includ- ing behavioral health treatment. Pediatric oral ...... FEDVIP. Pediatric vision ...... FEDVIP.

Arizona ...... Largest state em- Arizona Benefit Options EPO Plan, ad- Pediatric oral ...... FEDVCP. ployee plan. ministered by United HealthCare. Pediatric vision ...... FEDVIP ...... No.

Arkansas ...... Plan from 3rd larg- HMO Partners, Inc. Open Access POS, Mental health and 2nd largest FEHBP No. est small group 13262AR001. substance use product. disorder, includ- ing behavioral health treatment. Pediatric oral ...... CHIP. Pediatric vision ...... FEDVIP.

California ...... Plan from largest Kaiser Foundation Health Plan, Inc. Pediatric oral ...... CHIP ...... Yes. small group prod- Small Group HMO 30 ID uct. 40513CA035.

Colorado ...... Plan from largest Kaiser Foundation Health Plan of Colo- Pediatric oral ...... CHIP ...... No. small group prod- rado Ded HMO 1200D. uct.

Connecticut ...... Largest state non- ConnectiCare HMO ...... Pediatric oral ...... CHIP ...... No. Medicaid HMO. Pediatric vision ...... FEDVIP.

Delaware ...... Plan from second Highmark Blue Cross Blue Shield Dela- Pediatric oral ...... FEDVIP ...... No. largest small ware Simply Blue EPO 100 500. group product. Pediatric vision ...... FEDVIP.

District of Columbia Plan from largest Group Hospitalization and Medical Pediatric oral ...... FEDVIP ...... Yes. small group prod- Services, Inc. BluePreferred PPO. uct. Pediatric vision ...... FEDVIP.

Florida ...... Plan from largest Blue Cross Blue Shield of Florida, Inc. Pediatric oral ...... FEDVIP ...... No. small group prod- BlueOptions PPO. uct. Pediatric vision ...... FEDVIP.

Georgia ...... Plan from largest Blue Cross Blue Shield of Georgia Pediatric oral ...... FEDVIP ...... Yes. small group prod- HMO Urgent Care 60 Copay. uct. Pediatric vision ...... FEDVIP.

Hawaii ...... Plan from largest Hawaii Medical Service Association Pediatric oral ...... CHIP ...... No. small group prod- Preferred Provider Plan 2010. uct. Pediatric vision ...... FEDVIP.

Idaho ...... Plan from largest Blue Cross of Idaho Health Service, Pediatric oral ...... FEDVIP ...... Yes. small group prod- Inc. Preferred Blue PPO. uct. Pediatric vision ...... FEDVIP.

Illinois ...... Plan from largest Blue Cross and Blue Shield of Illinois Pediatric oral ...... CHIP ...... No. small group prod- BlueAdvantage PPO. uct.

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Supplemented Supplementary Habilitative State Plan type Issuer and plan name categories plan type services

Pediatric vision ...... FEDVIP.

Indiana ...... Plan from largest Anthem Blue Cross and Blue Shield of Pediatric oral ...... FEDVIP ...... Yes. small group prod- Indiana Blue 5 Blue Access PPO uct. Medical Option 6 Rx Option G. Pediatric vision ...... FEDVIP.

Iowa ...... Plan from largest Wellmark Inc. Alliance Select Copay- Pediatric oral ...... FEDVIP ...... Yes. small group prod- ment Plus PPO. uct. Pediatric vision ...... FEDVIP.

Kansas ...... Plan from largest Blue Cross and Blue Shield of Kansas Pediatric oral ...... FEDVIP ...... No. small group prod- Comprehensive Major Medical Blue uct. Choice PPO GF 500 deductible with Blue Rx card. Pediatric vision ...... FEDVIP.

Kentucky ...... Plan from largest Anthem Health Plans of Kentucky, Inc. Pediatric oral ...... CHIP ...... Yes. small group prod- PPO. uct.

Louisiana ...... Plan from largest Blue Cross and Blue Shield of Lou- Pediatric oral ...... FEDVIP ...... Yes. small group prod- isiana GroupCare PPO. uct. Pediatric vision ...... FEDVIP.

Maine ...... Plan from largest Anthem Health Plans of Maine Blue Pediatric oral ...... FEDVIP ...... Yes. small group prod- Choice 20 PPO with RX 10 30 50 50. uct.

Maryland ...... Largest state em- CareFirst of Maryland, Inc. State of Pediatric oral ...... CHIP ...... Yes. ployee plan. Maryland PPO. Pediatric vision ...... FEDVIP.

Massachusetts ...... Plan from largest Blue Cross Blue Shield of Massachu- Pediatric oral ...... CHIP ...... Yes. small group prod- setts, Inc. HMO Blue 2000 Deduct- uct. ible.

Michigan ...... Largest state non- Priority Health PriorityHMO 100 Per- Pediatric oral ...... CHIP ...... No. Medicaid HMO. cent Hospital Services Plan. Pediatric vision ...... FEDVIP.

Minnesota ...... Plan from largest HealthPartners 500 25 Open Access Pediatric oral ...... FEDVIP ...... Yes. small group prod- PPO. uct. Pediatric vision ...... FEDVIP.

Mississippi ...... Plan from largest Blue Cross and Blue Shield of Mis- Pediatric oral ...... CHIP ...... Yes. small group prod- sissippi Network Blue PPO. uct. Pediatric vision ...... FEDVIP.

Missouri ...... Plan from largest Healthy Alliance Life Insurance Co. Pediatric oral ...... FEDVIP ...... Yes. small group prod- (Anthem BCBS) Blue 5 Blue Access uct. PPO Medical Option 4 Rx Option D. Pediatric vision ...... FEDVIP.

Montana ...... Plan from largest Blue Cross and Blue Shield of Montana Pediatric oral ...... FEDVIP ...... Yes. small group prod- Blue Dimensions PPO. uct. Pediatric vision ...... FEDVIP.

Nebraska ...... Plan from largest Blue Cross and Blue Shield of Ne- Pediatric oral ...... FEDVIP ...... Yes. small group prod- braska BluePride PPO. uct. Pediatric vision ...... FEDVIP.

Nevada ...... Plan from largest Rocky Mountain Hospital & Medical Pediatric oral ...... FEDVIP ...... Yes. small group prod- Service, Inc. (Anthem BCBS) GenRx uct. PPO 45 Copay. Pediatric vision ...... FEDVIP.

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Supplemented Supplementary Habilitative State Plan type Issuer and plan name categories plan type services

New Hampshire ..... Plan from largest Matthew Thornton Health Plan (Anthem Pediatric oral ...... FEDVIP ...... Yes. small group prod- BCBS) HMO Blue New England 25 uct. 50 WITH Rx 10 35 30 OOP 2500. Pediatric vision ...... FEDVIP.

New Jersey ...... Plan from largest Horizon HMO Access HSA Compatible Pediatric oral ...... FEDVIP ...... Yes. small group prod- uct. Pediatric vision ...... FEDVIP.

New Mexico ...... Plan from largest Lovelace Insurance Company Classic Pediatric oral ...... CHIP ...... Yes. small group prod- PPO. uct.

New York ...... Plan from largest Oxford Health Insurance, Inc. Oxford Pediatric oral ...... CHIP ...... Yes. small group prod- EPO. uct.

North Carolina ...... Plan from largest Blue Cross and Blue Shield of North Pediatric oral ...... FEDVIP ...... No. small group prod- Carolina Blue Options PPO. uct. Pediatric vision ...... FEDVIP.

North Dakota ...... Largest state non- Sanford Health Plan HMO ...... Pediatric oral ...... CHIP ...... No. Medicaid HMO. Pediatric vision ...... CHIP.

Ohio ...... Plan from largest Community Insurance Company (An- Pediatric oral ...... FEDVIP ...... Yes. small group prod- them BCBS) Blue 6 Blue Access uct. PPO Medical Option D4 Rx Option G. Pediatric vision ...... FEDVIP.

Oklahoma ...... Plan from largest Blue Cross and Blue Shield of Okla- Pediatric oral ...... FEDVIP ...... Yes. small group prod- homa BlueOptions PPO RYB05. uct. Pediatric vision ...... FEDVIP.

Oregon ...... Plan from 3rd larg- PacificSource Health Plans PPO Pre- Pediatric oral ...... CHIP ...... No. est small group ferred CoDeduct Value 3000 35 70. product. Pediatric vision ...... FEDVIP.

Pennsylvania ...... Plan from largest Aetna Health, Inc. PA POS Cost Shar- Pediatric oral ...... FEDVIP ...... No. small group prod- ing 34 1500 Ded. uct.

Rhode Island ...... Plan from largest Blue Cross and Blue Shield of Rhode Pediatric oral ...... FEDVIP ...... No. small group prod- Island Vantage Blue PPO. uct. Pediatric vision ...... FEDVIP.

South Carolina ...... Plan from largest Blue Cross Blue Shield of South Caro- Pediatric oral ...... FEDVIP ...... No. small group prod- lina Business Blue Complete PPO. uct. Pediatric vision ...... FEDVIP.

South Dakota ...... Plan from largest Wellmark of South Dakota Blue Select Pediatric oral ...... FEDVIP ...... Yes. small group prod- PPO. uct. Pediatric vision ...... FEDVIP.

Tennessee ...... Plan from largest Blue Cross Blue Shield of Tennessee Pediatric oral ...... FEDVIP ...... Yes. small group prod- PPO. uct. Pediatric vision ...... FEDVIP.

Texas ...... Plan from largest Blue Cross Blue Shield of Texas Pediatric oral ...... FEDVIP ...... Yes. small group prod- BestChoice PPO RS26. uct. Pediatric vision ...... FEDVIP.

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Supplemented Supplementary Habilitative State Plan type Issuer and plan name categories plan type services

Utah ...... Plan from 3rd larg- Public Employee’s Health Program None ...... None ...... Yes. est state em- Utah Basic Plus. ployee plan.

Vermont ...... Plan from largest The Vermont Health Plan, LLC, Pediatric oral ...... CHIP ...... No. small group prod- CDHP–HMO. uct. Pediatric vision ...... FEDVIP.

Virginia ...... Plan from largest Anthem Health Plans of VA PPO Pediatric oral ...... FEDVIP ...... Yes. small group prod- KeyCare 30 with KC30 Rx plan 10 uct. 30 50 OR 20. Pediatric vision ...... FEDVIP.

Washington ...... Plan from largest Regence BlueShield non-grandfathered Pediatric oral ...... CHIP ...... Yes. small group prod- small group product. uct. Pediatric vision ...... FEDVIP.

West Virginia ...... Plan from largest Highmark Blue Cross Blue Shield West Pediatric oral ...... FEDVIP ...... No. small group prod- Virginia Super Blue PPO Plus 2000 uct. 1000 Ded. Pediatric vision ...... FEDVIP.

Wisconsin ...... Plan from largest UnitedHealthcare Insurance Company Pediatric oral ...... FEDVIP ...... No. small group prod- Choice Plus Definity HSA Plan uct. A92NS. Pediatric vision ...... FEDVIP.

Wyoming ...... Plan from largest Blue Cross Blue Shield of Wyoming Pediatric oral ...... FEDVIP ...... No. small group prod- Blue Choice Business 1000 80 20. uct. Pediatric vision ...... FEDVIP. Note: If the base-benchmark plan does not include habilitative services, then states have the opportunity to define those benefits.

Appendix B: Largest FEDVIP Dental Dental and Vision Program (FEDVIP) or a highest enrollment. To assist states with this and Vision Plan Options, as of March state’s separate CHIP program. Specifically, process, we collected information about the 31, 2012 states may select benefits from either: (1) The benefits provided in the FEDVIP dental and FEDVIP dental or vision plans with the vision plans with the highest national Section 156.110(b)(2)–(3) directs States to largest national enrollments, or (2) the state’s enrollments, as issued by MetLife and FED supplement base-benchmark plans that lack separate CHIP program’s dental or vision Blue, respectively. Below, we provide a chart pediatric oral or vision services with benefits benefits, where they exist, which offer with a summary of the benefits offered by drawn from either the Federal Employees benefits to the eligibility group with the these plans.

LARGEST FEDVIP DENTAL AND VISION PLAN OPTIONS, AS OF MARCH 31, 2012 *

Issuer name Plan name Additional information

MetLife (dental) MetLife Federal Dental Plan—High 2012 Plan Benefit Brochure: http://www.opm.gov/insure/health/ planinfo/2012/brochures/MetLife.pdf. BCBS Association (vision) FEP BlueVision—High ...... 2012 Plan Benefit Brochure: http://www.opm.gov/insure/health/ planinfo/2012/brochures/FEPBlueVi.pdf. Source: U.S. Office of Personnel Management. * Please note that this information will be updated with the latest data when released.

[FR Doc. 2012–28362 Filed 11–20–12; 11:15 am] BILLING CODE 4120–01–P

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Reader Aids Federal Register Vol. 77, No. 227 Monday, November 26, 2012

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING NOVEMBER

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. 1026 ...... 69736, 69738, 70105 Presidential Documents 2 CFR Executive orders and proclamations 741–6000 1282...... 67535 The United States Government Manual 741–6000 Proposed Rules: Proposed Rules Ch. XX ...... 70123 252...... 70124 Other Services 1026...... 66748 3 CFR Electronic and on-line services (voice) 741–6020 1238...... 66566 Privacy Act Compilation 741–6064 Proclamations: Public Laws Update Service (numbers, dates, etc.) 741–6043 8894...... 66507 14 CFR TTY for the deaf-and-hard-of-hearing 741–6086 8895...... 66515 25...... 67251, 67557 8896...... 66517 39 ...... 66534, 67254, 67256, ELECTRONIC RESEARCH 8897...... 66519 67261, 67263, 67267, 67559, World Wide Web 8898...... 66521 67561, 67763, 67764, 68050, Full text of the daily Federal Register, CFR and other publications 8899...... 66523 68052, 68055, 68057, 68058, is located at: www.fdsys.gov. 8900...... 66525 68061, 68063, 69556, 69558, Federal Register information and research tools, including Public 8901...... 66527 69739, 69742, 69744, 69747, Inspection List, indexes, and links to GPO Access are located at: 8902...... 67533 70114, 70355, 70357, 70360, www.ofr.gov. 8903...... 68043 70362, 70366, 70369 8904...... 68045 71 ...... 66067, 66068, 66069, E-mail 8905...... 69731 68065, 68067, 68068, 68681, FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 8906...... 69733 68682, 68683 an open e-mail service that provides subscribers with a digital Executive Orders: 97...... 66535, 66536 form of the Federal Register Table of Contents. The digital form 13629...... 66353 400...... 67269 of the Federal Register Table of Contents includes HTML and Administrative Orders: Proposed Rules PDF links to the full text of each document. Notices: 25 ...... 67308, 67309, 69568, To join or leave, go to http://listserv.access.gpo.gov and select Notice of November 1, 69569, 69571, 69572, 69573, Online mailing list archives, FEDREGTOC-L, Join or leave the list 2012 ...... 66359 70384 (or change settings); then follow the instructions. Notice of November 9, 33...... 66936 PENS (Public Law Electronic Notification Service) is an e-mail 2012 ...... 67741 39 ...... 66409, 66411, 66413, service that notifies subscribers of recently enacted laws. 66415, 66417, 66566, 66757, To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 5 CFR 66760, 66762, 66764, 66767, and select Join or leave the list (or change settings); then follow 890...... 67743 66769, 66771, 66772, 67582, the instructions. Proposed Rules 68711, 68714, 69391, 70382 FEDREGTOC-L and PENS are mailing lists only. We cannot 531...... 70381 71...... 67782, 68716 respond to specific inquiries. 532...... 68073 121...... 67584 Reference questions. Send questions and comments about the Ch. XLVIII ...... 70123 135...... 67584 Federal Register system to: [email protected] 15 CFR The Federal Register staff cannot interpret specific documents or 7 CFR regulations. 902...... 70062 205...... 67239 Reminders. Effective January 1, 2009, the Reminders, including 3201...... 69381 Proposed Rules Rules Going Into Effect and Comments Due Next Week, no longer 3434...... 68679 764...... 66777 appear in the Reader Aids section of the Federal Register. This 766...... 66777 information can be found online at http://www.regulations.gov. Proposed Rules 1739...... 68705 CFR Checklist. Effective January 1, 2009, the CFR Checklist no 16 CFR longer appears in the Federal Register. This information can be 10 CFR 1223...... 66703 found online at http://bookstore.gpo.gov/. 429...... 70105 17 CFR 430...... 70105 FEDERAL REGISTER PAGES AND DATE, NOVEMBER 1...... 66288 Proposed Rules 4...... 66288 66067–66148...... 1 70355–70676...... 26 Ch. I ...... 70123 5...... 66288 66149–66360...... 2 7...... 66288 66361–66514...... 5 12 CFR 8...... 66288 66515–66702...... 6 19...... 66529 15...... 66288 66703–66914...... 7 46...... 68047 16...... 66288 66915–67238...... 8 109...... 66529 18...... 66288 67239–67532...... 9 204...... 66361 21...... 66288 67533–67742...... 13 213...... 69735 22...... 66288 67743–68042...... 14 226...... 69736 36...... 66288 68043–68678...... 15 263...... 68680 38...... 66288 68679–69380...... 16 325...... 69553 41...... 66288 69381–69552...... 19 615...... 66362 140...... 66288 69553–69732...... 20 652...... 66375 145...... 66288 69733–70104...... 21 1013...... 69735 155...... 66288 70105–70354...... 23 1022...... 67744 166...... 66288

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240...... 66220, 70116 561...... 66918 81 ...... 67600, 68076, 68087, 90...... 68070 249...... 70116 69409 Proposed Rules 270...... 70117 33 CFR 98...... 69585 1...... 69934, 70400 Proposed Rules 100 ...... 66713, 67563, 70121 174...... 66781 2...... 68721 1...... 67866 117 ...... 66714, 69562, 69564, 180...... 66781 15...... 68722 3...... 67866 69759, 69761, 70372 271...... 69788 20...... 70407 22...... 67866 165 ...... 66541, 67563, 67566, 300...... 66783, 67783 25...... 67172 30...... 67866 67568, 69388, 69761 27...... 69934 41 CFR 140...... 67866 Proposed Rules 63...... 70400 240...... 70214 100...... 66938 303...... 66554 73...... 69934 110...... 66942 95...... 68721 18 CFR 42 CFR 117...... 67319, 69576 101...... 69581 2...... 69754 165...... 68718 409...... 67068 4...... 67562 410...... 68892 5...... 67562 34 CFR 413...... 67450 48 CFR 16...... 67562 280...... 67572 414...... 68892 Ch. 1...... 69714, 69726 33...... 67562 674...... 66088 415...... 68892 1...... 69715 34...... 67562 682...... 66088 416...... 68210 4...... 69715, 69720 35...... 67562, 69754 685...... 66088 417...... 67450 13...... 69715 157...... 67562 Proposed Rules 419...... 68210 17...... 69720 348...... 67562 Ch. IV...... 69579 421...... 68892 19...... 69715 375...... 67562 423...... 68892 25...... 69723 385...... 67562 36 CFR 424...... 67068 32...... 69715 388...... 67562 425...... 68892 52...... 69715, 69723 Proposed Rules Proposed Rules 438...... 66670 1002...... 69785 252...... 68699 152...... 69781 441...... 66670 1195...... 67595 504...... 69768 284...... 66568 447...... 66670 Proposed Rules 37 CFR 476...... 68210 9903...... 69422 19 CFR 478...... 68210 Proposed Rules 202...... 66920 480...... 68210 360...... 67593 386...... 70373 484...... 67068 49 CFR Proposed Rules 486...... 68892 33...... 69769 21 CFR 3...... 70385 488...... 67068 523...... 68070 Proposed Rules 201...... 68075 489...... 67068 531...... 68070 801...... 69393 210...... 68075 495...... 68210, 68892 533...... 68070 498...... 67068 536...... 68070 26 CFR 38 CFR 537...... 68070 44 CFR 1...... 66915 9...... 66069, 70374 1155...... 69769 Proposed Rules Proposed Rules 64 ...... 66733, 68697, 69564 Proposed Rules 1...... 66938 3...... 66419, 70389 67...... 66555, 66737 234...... 68722 54...... 70620 206...... 67285 270...... 70409 39 CFR Proposed Rules 385...... 67613 29 CFR 20...... 68069 67 ...... 66165, 66785, 66788, 386...... 67613 1401...... 66539 111...... 66149 66790, 66791, 67324, 67325 571...... 69586 1910...... 68684 1121...... 66165 45 CFR 1915...... 68684 40 CFR 1150...... 66165 1917...... 68684 9...... 66149 Proposed Rules 1180...... 66165 1918...... 68684 52 ...... 66388, 66398, 66405, 144...... 70584 1926...... 67270, 68684 66543, 66545, 66547, 66548, 146...... 70620 4022...... 68685 66715, 66921, 66927, 66929, 147 ...... 70584, 70620, 70644 50 CFR Proposed Rules 67767, 70121, 70376 150...... 70584 17...... 67302 1910...... 68717 85...... 68070 154...... 70584 21...... 66406 1915...... 68717 86...... 68070 155...... 70644 622 ...... 66744, 67303, 67574, 1917...... 68717 180 ...... 66715, 66721, 66723, 156...... 70584, 70644 68071 1918...... 68717 67282, 67771, 68686, 68692 648 ...... 66746, 67305, 69567 1926...... 67313, 68717 271...... 69765 46 CFR 679 ...... 66564, 67579, 67580, 2590...... 70620 300...... 66729, 67777 Proposed Rules 70062 600...... 68070 160...... 70390 Proposed Rules 30 CFR 721...... 66149 164...... 70390 17 ...... 67784, 69994, 70410 Proposed Rules Proposed Rules 424...... 66946 943...... 66574 52 ...... 66421, 66422, 66429, 47 CFR 635...... 70552 66780, 66945, 67322, 67596, 64...... 66935 648 ...... 66169, 66947, 67624, 31 CFR 67600, 68076, 68087, 68721, 73...... 66743 68723, 69428 552...... 67276 69399, 69409 76...... 67290 660 ...... 66577, 67327, 67974

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The text of laws is not S. 3624/P.L. 112–196 enacted public laws. To published in the Federal Military Commercial Driver’s subscribe, go to http:// LIST OF PUBLIC LAWS Register but may be ordered License Act of 2012 (Oct. 19, listserv.gsa.gov/archives/ in ‘‘slip law’’ (individual 2012; 126 Stat. 1459) publaws-l.html This is a continuing list of pamphlet) form from the public bills from the current Superintendent of Documents, Last List October 11, 2012 session of Congress which U.S. Government Printing Note: This service is strictly have become Federal laws. It Office, Washington, DC 20402 for E-mail notification of new may be used in conjunction (phone, 202–512–1808). The Public Laws Electronic laws. The text of laws is not with ‘‘P L U S’’ (Public Laws text will also be made Notification Service available through this service. Update Service) on 202–741– available on the Internet from (PENS) PENS cannot respond to 6043. This list is also GPO’s Federal Digital System specific inquiries sent to this available online at http:// (FDsys) at http://www.gpo.gov/ address. www.archives.gov/federal- fdsys. Some laws may not yet PENS is a free electronic mail register/laws. be available. notification service of newly

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