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Code · REGISTER · 2008-05-01 · National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce · Rules and Regulations

Rules and Regulations. Final rule; and a temporary rule for emergency action; request for comments

49,818 words·~226 min read·/register/2008/05/01/08-1198

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 080428611-8612-01] RIN 0648-AW60 Fisheries Off West Coast States and in the Western Pacific; West Coast Salmon Fisheries; 2008 Management Measures and a Temporary Rule AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule; and a temporary rule for emergency action; request for comments.
SUMMARY: NMFS establishes fishery management measures for the 2008 ocean salmon fisheries off Washington, Oregon, California and the 2009 salmon seasons opening earlier than May 1, 2009. The temporary rule for emergency action (emergency rule), under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), implements the 2008 annual management measures for the west coast ocean salmon fisheries for the area from Cape Falcon, OR, to the Oregon/California Border from June 22 to August 31, 2008.
The emergency rule is required because Sacramento River fall Chinook
(SRFC)are projected to not meet their conservation objective of 122,000 to 180,000 natural and hatchery adult spawners established in the Pacific Coast Salmon Fishery Management Plan (Salmon FMP). Specific fishery management measures vary by fishery and by area. The measures establish fishing areas, seasons, quotas, legal gear, recreational fishing days and catch limits, possession and landing restrictions, and minimum lengths for salmon taken in the U.S. exclusive economic zone
(EEZ)(3-200 nm) off Washington, Oregon, and California. The management measures are intended to prevent overfishing and to apportion the ocean harvest equitably among treaty Indian, non-treaty commercial, and recreational fisheries. The measures are also intended to allow a portion of the salmon runs to escape the ocean fisheries in order to provide for spawning escapement and to provide for inside fisheries (fisheries occurring in state internal waters). DATES: Final rule is effective from 0001 hours Pacific Daylight Time, May 1, 2008, until the effective date of the 2009 management measures, as published in the **Federal Register** . Temporary rule is effective from 0001 hours Pacific Daylight Time June 22, 2008, to 1159 hours Pacific Daylight Time August 31, 2008 or the attainment of the specific quota as listed below in section two of this rule. Comments must be received by May 16, 2008. ADDRESSES: You may submit comments, identified by 0648-AW60, by any one of the following methods: • *Electronic Submissions:* Submit all electronic public comments via the Federal eRulemaking Portal *http://www.regulations.gov.* • *Fax:* 206-526-6736. *Attn:* Sarah McAvinchey, or 562-980-4047 *Attn:* Eric Chavez. • *Mail:* D. Robert Lohn, Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way, NE., Seattle, WA 98115-0070 or to Rod McInnis, Regional Administrator, Southwest Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802-4213. *Instructions:* All comments received are a part of the public record and will generally be posted to *http://www.regulations.gov* without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. Copies of the documents cited in this document are available from Dr. Donald O. McIsaac, Executive Director, Pacific Fishery Management Council, 7700 NE., Ambassador Place, Suite 200, Portland, OR 97220-1384, and are posted on its Web site ( *http://www.pcouncil.org* ). Send comments regarding the reporting burden estimate or any other aspect of the collection-of-information requirements in these management measures, including suggestions for reducing the burden, to one of the NMFS addresses listed above and to David Rostker, Office of Management and Budget (OMB), by e-mail at *David_Rostker@omb.eop.gov* , or by fax at
(202)395-7285. FOR FURTHER INFORMATION CONTACT: Sarah McAvinchey at 206-526-4323, or Eric Chavez at 562-980-4064. SUPPLEMENTARY INFORMATION: Background The ocean salmon fisheries in the EEZ off Washington, Oregon, and California are managed under a “framework” fishery management plan entitled the Pacific Coast Salmon Fishery Management Plan (Salmon FMP). Regulations at 50 CFR part 660, subpart H, provide the mechanism for making preseason and inseason adjustments to the management measures, within limits set by the Salmon FMP, by notification in the **Federal Register** . These management measures for the 2008 and pre-May 2009 ocean salmon fisheries were recommended by the Pacific Fishery Management Council (Council) at its April 7 to 11, 2008, meeting. Schedule Used to Establish 2008 Management Measures The Council announced its annual preseason management process for the 2008 ocean salmon fisheries in the **Federal Register** on January 2, 2008 (73 FR 169), and on their Web site at ( *http://www.pcouncil.org* ). This notice announced the availability of Council documents as well as the dates and locations of Council meetings and public hearings comprising the Council's complete schedule of events for determining the annual proposed and final modifications to ocean salmon fishery management measures. The agendas for the March and April Council meetings were published in the **Federal Register** prior to the actual meetings. In accordance with the Salmon FMP, the Council's Salmon Technical Team
(STT)and staff economist prepared a series of reports for the Council, its advisors, and the public. The first of the reports was prepared in February when the scientific information necessary for crafting management measures for the 2008 and pre-May 2009 ocean salmon fishery first became available. The first report, “Review of 2007 Ocean Salmon Fisheries”, summarizes biological and socio-economic data for the 2007 ocean salmon fisheries and assesses how well the Council's 2007 management objectives were met. The second report, “Preseason Report I Stock Abundance Analysis for 2008 Ocean Salmon Fisheries” (PRE I), provides the 2008 salmon stock abundance projections and analyzes the impacts on the stocks and Council management goals if the 2007 regulations and regulatory procedures were applied to the projected 2008 stock abundances. The completion of PRE I is the initial step in evaluating the full suite of preseason options. The Council met in Sacramento, CA from March 10 to 14, 2008, to develop 2008 management options for proposal to the public. The Council proposed three options for commercial and recreational fisheries management for analysis and public comment. These options consisted of various combinations of management measures designed to protect weak stocks of coho and Chinook salmon and to provide for ocean harvests of more abundant stocks. After the March Council meeting, the Council's STT and staff economist prepared a third report, “Preseason Report II Analysis of Proposed Regulatory Options for 2008 Ocean Salmon Fisheries,” which analyzes the effects of the proposed 2008 management options. This report was made available to the Council, its advisors, and the public. Public hearings, sponsored by the Council, to receive testimony on the proposed options were held on March 31, 2008, in Westport, WA and Coos Bay, OR; and April 1, 2008, in Eureka, CA. The States of Washington, Oregon, and California sponsored meetings in various forums that also collected public testimony, which was then presented to the Council by each state's Council representative. The Council also received public testimony at both the March and April meetings and received written comments at the Council office. The Council met from April 7 to 11, 2008, in Seatac, WA, to adopt its final 2008 recommendations. Following the April Council meeting, the Council's STT and staff economist prepared a fourth report, “Preseason Report III Analysis of Council-Adopted Management Measures for 2008 Ocean Salmon Fisheries,” which analyzes the environmental and socio-economic effects of the Council's final recommendations. This report was also made available to the Council, its advisors, and the public. After the Council took final action on the annual ocean salmon specifications in April, it published the recommended management measures in its newsletter and also posted them on the Council Web site ( *http://www.pcouncil.org* ). Resource Status At the start of the preseason planning process for the 2008 management season, NMFS provided a letter to the Council, dated February 26, 2008, summarizing its Endangered Species Act
(ESA)consultation standards for listed species as required by the Salmon FMP. The Council's recommended management measures comply with NMFS ESA consultation standards and guidance for those listed salmon species which may be affected by Council fisheries. In most cases, the recommended measures are more restrictive than NMFS's ESA requirements. NMFS provided guidance to the Council and a new biological opinion regarding the effects of the 2008 fisheries on Lower Columbia River
(LCR)coho and LCR Chinook salmon. This will be the third year that NMFS has consulted on LCR coho. Since the listing of LCR coho in August 2005, the states of Oregon and Washington have been working with NMFS to develop and evaluate a management plan for LCR coho that can be used as the basis for their long-term management. The states have focused on use of a harvest matrix similar to the one used for Oregon Coast coho. Under the matrix the harvest allowed in a given year depends on indicators of marine survival and brood year escapement. Generally speaking, NMFS supports use of management planning tools that allow harvest rates to vary depending on the year-specific circumstances. Although there has been progress in the development and review of the matrix, there is still work to be done before NMFS can reasonably conclude that the proposed harvest matrix provides the necessary long-term protection for the species. In the meantime, NMFS needed to provide guidance for the 2008 fisheries. In 2008, brood year and marine survival indicators were generally lower than they were in 2007. Given the circumstances the matrix would have allowed for a total exploitation rate of 11.7 percent. However, uncertainties related to selection of a particular long-term management strategy are such that it is still prudent to take a conservative approach to management until those questions can be resolved. Based on the above described circumstances, NMFS guidance to the Council was that ocean salmon fisheries, and fisheries in the mainstem Columbia River be managed subject to a total exploitation rate limit on LCR coho of 8 percent. As a consequence of this guidance the Council proposed to limit Council area fisheries to an exploitation rate of 6 percent recognizing that this provided for some fishing opportunity in the Columbia River. The resulting coho quota for the area north of Cape Falcon in 2008 is 44,350 compared to quotas of 178,000, 117,500 and 195,000 in the last three years. NMFS reinitiated consultation on an earlier biological opinion related to the effects on LCR Chinook. From 2002-2006 Council fisheries were managed subject to a total exploitation rate limit of 49 percent for the “tule” component of the listed evolutionarily significant unit (ESU). Since then, NMFS has been engaged in ongoing review of LCR tule Chinook in particular. In 2007, the exploitation rate limit has been reduced to 42%. In 2008, the allowable exploitation rate limit was reduced further to 41%. The reduction in exploitation rate is intended to address the needs of the ESU and the weaker populations in the ESU. NMFS intends to continue its review of harvest and seeks to implement changes that are consistent with the evolving information, the expected evolution of the hatchery programs, and the long term goal of recovery articulated in the Lower Columbia Salmon Recovery Plan. NMFS expects that further reductions in the harvest on naturally-spawning fish may be required. Based on the guidance provided, the Council proposed to limit Council fisheries such that the total exploitation rate from all fisheries was 35.8 percent and thus well below the limit. The Chinook catch quota for the area north of Cape Falcon in 2008 is 77,500, compared to quotas of 67,500, 107,000 and 135,000 in the last three years. Because fisheries are so restricted this year NMFS ESA requirements for all other listed salmonids including Snake River fall Chinook, Puget Sound Chinook, and California Coastal Chinook will be met. Emergency Rule The Council's final recommendation for the ocean salmon fishing seasons that commence May 1st deviates from the Salmon FMP specifically with regard to meeting the Sacramento River fall Chinook
(SRFC)conservation objective of 122,000-180,000 natural and hatchery adult spawners. Under the circumstances, implementation of an Emergency Action under Magnuson-Stevens Act authority at section 305(c)(2)(B) is necessary to modify the conservation objective in the Salmon FMP in order to implement the Council's proposal. The Temporary Rule for Emergency Action applies to the area between Cape Falcon, Oregon, and the Oregon/California border. The conservation objective for SRFC in the Salmon FMP requires a return of 122,000-180,000 natural and hatchery adult spawners each year. The preseason forecast for SRFC for 2008 is at a record low, with a projected escapement of 59,100 hatchery and natural fish absent any further fishing south of Cape Falcon, OR. Under the Salmon FMP, a “conservation alert” is triggered when a stock is projected to fall below its conservation objective. Under such circumstances the Council is required to close salmon fisheries within Council jurisdiction that impact the stock. Because of differences in stock composition and in how salmon fisheries are managed, the Council splits its management decisions geographically into North of Cape Falcon, OR (managed mostly by quotas), and South of Cape Falcon (managed mostly by seasons and trip limits). Cape Falcon is near the Columbia River in Oregon. Because annual management measures must meet the Salmon FMP conservation objectives of all the key stocks, fishing seasons are usually limited by the necessity of meeting the requirements for the least abundant stock. South of Cape Falcon, the dramatically low abundance of Sacramento River fall Chinook was the primary constraint for fisheries in Oregon and California. When defining the area of impact NMFS considers the distribution of the stock, the magnitude of harvest impacts at the margin of that distribution and the relation of that distribution to existing fishery management boundaries. In 2006, when Klamath River fall Chinook were projected to be below their conservation objective, the area of impact was determined to be from Cape Falcon, Oregon, to Point Sur, California. This was designated as the impact area based on estimates indicating that the vast majority of harvest impacts, in this case 99%, occurred in the area. In 2008, there is a similar conservation concern for Sacramento River fall Chinook. Using the same rationale for SRFC, the area of impact that would be closed pursuant to the Salmon FMP would include the area from Cape Falcon, Oregon, to the U.S./Mexico Border where the vast majority of harvest impacts on SRFC occur. In this case, NMFS estimated that 99% of harvest mortality occurs in the area South of Cape Falcon, Oregon. Given the circumstances, any fishing in the impact area would have to be implemented through an emergency rule that modifies the Salmon FMP. The process for setting this year's management measures was controversial given the proposed reductions in fishing opportunities and potential extensive closures. At both the March and April Council meetings, and the coastwide public hearings, there was substantial public participation and comments from the various fishing sectors and related industries regarding the proposed 2008 management measures. The majority of the comments expressed great concern that elimination of the ocean fisheries that impact SRFC, which typically comprises the majority of the catch in California and Oregon, would cause severe economic hardship to coastal communities in California and Oregon. Those testifying also spoke at length regarding concerns for the demise of the infrastructure that supports the fishing industry, as well as other related businesses, and thus the long-term consequences of a fishery closure or severe restrictions in 2008. The Council, in order to address the conservation concerns for SRFC, recommended closing the commercial salmon fishery South of Cape Falcon Oregon. They also recommended no recreational fishery off California. In order to protect SRFC and mitigate to some extent the adverse economic and social consequences of this year's restricted fishing season the Council recommended an emergency rule to implement only a small recreational fishery for hatchery marked coho in Oregon with a 9,000 fish quota, from Cape Falcon, OR, to the California/Oregon border from June 22 through August 31, 2008. For NMFS, the key issue in considering whether to approve the emergency rule was whether the proposed fishery would jeopardize the capacity of the fishery to produce maximum sustainable yield
(MSY)on a continuing basis. NMFS used available information provided by the Council's advisory bodies to assess the potential risk to SRFC. The method developed by the STT for modeling impacts to SRFC was reviewed favorably by the Council's Scientific and Statistical Committee. Using this model, the projected mortality of SRFC is 55 fish. Furthermore, not all of these fish would be expected to return to the Sacramento River this year. Some of the fish would not mature and would remain in the ocean in 2008. Others would be expected to die of natural causes. The estimate of escapement absent fishing is 59,100; the proposed fishery would reduce the escapement by a few tens of fish. Given the magnitude of the fishery and the available information on anticipated impacts to SRFC, NMFS concluded that the marginal decrease in escapement that will result from the limited fishery in the SRFC impact area proposed for 2008 does not jeopardize the capacity of the stock to produce MSY on a continuing basis. NMFS further concluded that the limited fishery in the SRFC impact area does not increase the conservation concerns for SRFC while mitigating, to the degree possible, some adverse effects to the fishing community. The vote of the Council reflects their concurrence with NMFS' conclusion. The Temporary Rule for Emergency Action to approve the 2008 annual management measures for the west coast ocean salmon fisheries would cover the area from Cape Falcon, Oregon, to the Oregon/California Border where the limited recreational marked hatchery coho fishery will occur. Management Measures for 2008 Fisheries The Council-recommended ocean harvest levels and management measures for 2008 fisheries are designed to apportion the burden of protecting the weak stocks identified and discussed in PRE I equitably among ocean fisheries and to allow maximum harvest of natural and hatchery runs surplus to inside fishery and spawning needs. NMFS finds the Council's recommendations responsive to the goals of the Salmon FMP, the requirements of the resource, and the socio-economic factors affecting resource users. The recommendations are consistent with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act and U.S. obligations to Indian tribes with federally recognized fishing rights, and U.S. international obligations regarding Pacific salmon. Accordingly, NMFS has adopted them. North of Cape Falcon the 2008 management measures have a higher Chinook quota and a substantially lower coho quota relative to the 2008 season. The total allowable catch for 2008 is 77,500 Chinook and 44,350 marked hatchery coho; these fisheries are restricted to protect threatened Columbia River wild fall Chinook, threatened Lower Columbia natural coho, threatened Oregon Coastal Natural coho, and Hood Canal natural coho. Washington coastal and Puget Sound Chinook generally migrate to the far north and are not greatly affected by ocean harvests from Cape Falcon, OR, to the U.S.-Canada border. Nevertheless, ocean fisheries in combination with fisheries inside Puget Sound were restricted in order to meet ESA related conservation objectives for Puget Sound Chinook. North of Cape Alava, WA, the Council recommends a provision prohibiting retention of chum salmon during August and September to protect ESA listed Hood Canal summer chum. The Council has recommended such a prohibition for the last seven years. South of Cape Falcon, OR, the commercial salmon fishery is closed in 2008 because of the projected failure of the Sacramento River Fall Chinook to reach their conservation objective, even with no fishing on the stock. For the same reason, the only recreational fishery that will occur South of Cape Falcon is a small selective fishery off Oregon with a 9,000-fish quota of marked hatchery coho. This is the fifth year the selective fishery includes the southern coastal area of Oregon. The Council's recommendations are below the 8-percent exploitation rate permitted under ESA limitations for Oregon Coast Natural
(OCN)coho stocks, with an expected 6.9-percent OCN coho exploitation rate. The expected ocean exploitation rate for Rogue/Klamath coho is 1.0 percent, and is also below its exploitation rate limit of 13.0 percent. Treaty Indian Fisheries for 2008 The treaty-Indian commercial troll fishery quota is 37,500 Chinook in ocean management areas and Washington State Statistical Area 4B combined. This quota is slightly higher than the 35,000-Chinook quota in 2007. The fisheries include a Chinook-directed fishery in May and June (under a quota of 20,000 Chinook) and an all-salmon season beginning July 1 with a 17,500 Chinook sub-quota. The coho quota for the treaty-Indian troll fishery in ocean management areas, including Washington State Statistical Area 4B for the July-September period is 20,000 coho, a decrease from the 38,500-coho quota in 2007. Management Measures for 2009 Fisheries The timing of the March and April Council meetings makes it impracticable for the Council to recommend fishing seasons that begin before May 1 of the same year. Therefore, the 2009 fishing seasons opening earlier than May 1 are also established in this action. The Council recommended, and NMFS concurs, that the commercial season off Oregon from Cape Falcon to Humbug Mountain, from Humbug Mountain to the Oregon/California border and the recreational season off Oregon from Cape Falcon to the Oregon/California border will open in 2009 as indicated in the Season Description section. At the March 2009 meeting, the Council may consider inseason recommendations to adjust the commercial season prior to May 1 in the areas off Oregon. Inseason Actions The following sections set out the management regime for the salmon fishery. Open seasons and days are described in sections 1, 2, and 3 of the 2008 management measures. Inseason closures in the commercial and recreational fisheries are announced on the NMFS hotline and through the U.S. Coast Guard Notice to Mariners as described in section 6. Other inseason adjustments to management measures are also announced on the hotline and through the Notice to Mariners. Inseason actions will also be published in the **Federal Register** as soon as practicable. The following are the management measures recommended by the Council and approved and implemented here for 2008 and, as specified, for 2009. Section 1. Commercial Management Measures for 2008 Ocean Salmon Fisheries Note: This section contains restrictions in parts A, B, and C that must be followed for lawful participation in the fishery. Each fishing area identified in part A specifies the fishing area by geographic boundaries from north to south, the open seasons for the area, the salmon species allowed to be caught during the seasons, and any other special restrictions effective in the area. Part B specifies minimum size limits. Part C specifies special requirements, definitions, restrictions and exceptions. A. Season Description North of Cape Falcon, OR U.S./Canada Border to Cape Falcon May 3 through earlier of June 30 or 11,700 Chinook quota. Saturday through Tuesday with a landing and possession limit of 50 Chinook per vessel for each open period north of Leadbetter Point or 50 Chinook south of Leadbetter Point (c.1). All salmon except coho (c.7). Cape Flattery, Mandatory Yelloweye Rockfish Conservation Area, and Columbia Control Zones closed (c.5). See gear restrictions and definitions (c.2, C.3). Oregon State regulations require that fishers south of Cape Falcon, OR intending to fish within this area notify the Oregon Department of Fish and Wildlife
(ODFW)before transiting the Cape Falcon, OR line (45°46′00″ N. lat.) at the following number: 541-867-0300 Ext. 271. Vessels must land and deliver their fish within 24 hours of any closure of this fishery. Under state law, vessels must report their catch on a state fish receiving ticket. Vessels fishing or in possession of salmon while fishing north of Leadbetter Point must land and deliver their fish within the area and north of Leadbetter Point. Vessels fishing or in possession of salmon while fishing south of Leadbetter Point must land and deliver their fish within the area and south of Leadbetter Point, except that Oregon permitted vessels may also land their fish in Garibaldi, Oregon. Oregon State regulations require that all fishers landing salmon into Oregon from any fishery between Leadbetter Point, Washington and Cape Falcon, Oregon must notify ODFW within one hour of delivery or prior to transport away from the port of landing by calling 541-867-0300 Ext. 271. Notification shall include vessel name and number, number of salmon by species, port of landing and location of delivery, and estimated time of delivery. Inseason actions may modify harvest guidelines in later fisheries to achieve or prevent exceeding the overall allowable troll harvest impacts (c.8). July 1 through earlier of September 16 or 8,300 preseason Chinook guideline (c.8) or a 4,000-marked coho quota (C.8.d). Open July 1-2, then Saturday through Tuesday thereafter. Landing and possession limit of 35 Chinook and 25 coho per vessel per open period north of Leadbetter Point or 35 Chinook and 25 coho south of Leadbetter Point (c.1). All Salmon except no chum retention north of Cape Alava, Washington in August and September (c.7). All coho must have a healed adipose fin clip (C.8.d). Gear restricted to plugs six inches (15.24 cm) or longer. See gear restrictions and definitions (c.2, C.3). Cape Flattery, Mandatory Yelloweye Rockfish Conservation Area, and Columbia Control Zones closed (c.5). Oregon State regulations require that fishers south of Cape Falcon, OR intending to fish within this area notify Oregon Department of Fish and Wildlife before transiting the Cape Falcon, OR line (45°46′00″ N. lat.) at the following number: 541-867-0300 Ext. 271. Vessels must land and deliver their fish within 24 hours of any closure of this fishery. Under state law, vessels must report their catch on a state fish receiving ticket. Vessels fishing or in possession of salmon while fishing north of Leadbetter Point must land and deliver their fish within the area and north of Leadbetter Point. Vessels fishing or in possession of salmon while fishing south of Leadbetter Point must land and deliver their fish within the area and south of Leadbetter Point, except that Oregon permitted vessels may also land their fish in Garibaldi, Oregon. Oregon State regulations require that all fishers landing salmon into Oregon from any fishery between Leadbetter Point, Washington and Cape Falcon, Oregon must notify ODFW within one hour of delivery or prior to transport away from the port of landing by calling 541-867-0300 Ext. 271. Notification shall include vessel name and number, number of salmon by species, port of landing and location of delivery, and estimated time of delivery. Inseason actions may modify harvest guidelines in later fisheries to achieve or prevent exceeding the overall allowable troll harvest impacts (c.8). South of Cape Falcon, OR Cape Falcon to Humbug Mountain Closed in 2008. In 2009, the season will open March 15 for all salmon except coho. This opening could be modified following Council review at its March 2009 meeting. Humbug Mountain to Oregon/California Border Closed in 2008. In 2009, the season will open March 15 for all salmon except coho. This opening could be modified following Council review at its March 2009 meeting. Oregon/California Border to U.S./Mexico Border Closed. B. Minimum Size (Inches) (See C.1) Area (when open) Chinook Total length Head-off Coho Total length Head-off Pink North of Cape Falcon, OR 28.0 21.5 16.0 12.0 None Cape Falcon to OR-CA Border 28.0 21.5 16.0 12.0 OR-CA Border to US-Mexico Border Metric equivalents: 28.0 in = 71.1 cm, 27.0 in = 68.6 cm, 26.0 in = 66.0 cm, 21.5 in = 54.6 cm, 19.5 in = 49.5 cm, 16.0 in = 40.6 cm, and 12.0 in = 30.5 cm. C. Special Requirements, Definitions, Restrictions, or Exceptions C.1. Compliance with Minimum Size or Other Special Restrictions All salmon on board a vessel must meet the minimum size, landing/possession limit, or other special requirements for the area being fished and the area in which they are landed if the area is open. Salmon may be landed in an area that has been closed more than 96 hours only if they meet the minimum size, landing/possession limit, or other special requirements for the area in which they were caught. Salmon may be landed in an area that has been closed less than 96 hours only if they meet the minimum size, landing/possession limit, or other special requirements for the areas in which they were caught and landed. States may require fish landing/receiving tickets to be kept on board the vessel for 90 days after landing to account for all previous salmon landings. C.2. Gear Restrictions: Salmon May Be Taken Only by Hook and Line Using Barbless Hooks a. Single point, single shank, barbless hooks are required in all fisheries. b. Cape Falcon, Oregon, to the OR/CA border: No more than 4 spreads are allowed per line. c. OR/CA border to U.S./Mexico border: No more than 6 lines are allowed per vessel, and barbless circle hooks are required when fishing with bait by any means other than trolling. C.3. Gear Definitions *Trolling defined:* Fishing from a boat or floating device that is making way by means of a source of power, other than drifting by means of the prevailing water current or weather conditions. *Troll fishing gear defined:* One or more lines that drag hooks behind a moving fishing vessel. In that portion of the fishery management area
(FMA)off Oregon and Washington, the line or lines must be affixed to the vessel and must not be intentionally disengaged from the vessel at any time during the fishing operation. *Spread defined:* A single leader connected to an individual lure or bait. *Circle hook defined:* A hook with a generally circular shape and a point which turns inward, pointing directly to the shank at a 90° angle. C.4. Transit Through Closed Areas with Salmon on Board It is unlawful for a vessel to have troll or recreational gear in the water while transiting any area closed to fishing for a certain species of salmon, while possessing that species of salmon; however, fishing for species other than salmon is not prohibited if the area is open for such species, and no salmon are in possession. C.5. Control Zone Definitions a. Cape Flattery Control Zone—The area from Cape Flattery (48°23′00″ N. lat.) to the northern boundary of the U.S. EEZ; and the area from Cape Flattery south to Cape Alava (48°10′00″ N. lat.) and east of 125°05′00″ W. long. b. Mandatory Yelloweye Rockfish Conservation Area—The area in Washington Marine Catch Area 3 from 48°00.00′ N. lat.; 125°14.00′ W. long. to 48°02.00′ N. lat.; 125°14.00′ W. long. to 48°02.00′ N. lat.; 125°16.50′ W. long. to 48°00.00′ N. lat.; 125°16.50′ W. long. and connecting back to 48°00.00′ N. lat.; 125°14.00′ W. long. c. Columbia Control Zone—An area at the Columbia River mouth, bounded on the west by a line running northeast/southwest between the red lighted Buoy #4 (46°13′35″ N. lat., 124°06′50″ W. long.) and the green lighted Buoy #7 (46°15′09″ N. lat., 124°06′16″ W. long.); on the east, by the Buoy #10 line which bears north/south at 357° true from the south jetty at 46°14′00″ N. lat., 124°03′07″ W. long. to its intersection with the north jetty; on the north, by a line running northeast/southwest between the green lighted Buoy #7 to the tip of the north jetty (46°15′48″ N. lat., 124°05′20″ W. long.), and then along the north jetty to the point of intersection with the Buoy #10 line; and, on the south, by a line running northeast/southwest between the red lighted Buoy #4 and tip of the south jetty (46°14′03″ N. lat., 124°04′05″ W. long.), and then along the south jetty to the point of intersection with the Buoy #10 line. d. Bandon High Spot Control Zone—The area west of a line between 43°07′00″ N. lat.; 124°37′00″ W. long. and 42°40′30″ N. lat; 124° 52′0″ W. long. extending to the western edge of the exclusive economic zone (EEZ). e. Klamath Control Zone—The ocean area at the Klamath River mouth bounded on the north by 41°38′48″ N. lat. (approximately six nautical miles north of the Klamath River mouth); on the west, by 124°23′00″ W. long. (approximately 12 nautical miles off shore); and on the south, by 41°26′48″ N. lat. (approximately six nautical miles south of the Klamath River mouth). C.6. Notification When Unsafe Conditions Prevent Compliance With Regulations If prevented by unsafe weather conditions or mechanical problems from meeting special management area landing restrictions, vessels must notify the U.S. Coast Guard and receive acknowledgment of such notification prior to leaving the area. This notification shall include the name of the vessel, port where delivery will be made, approximate amount of salmon (by species) on board, and the estimated time of arrival. C.7. Incidental Halibut Harvest During authorized periods, the operator of a vessel that has been issued an incidental halibut harvest license may retain Pacific halibut caught incidentally in Area 2A while trolling for salmon. Halibut retained must be no less than 32 inches (81.28 cm) in total length, measured from the tip of the lower jaw with the mouth closed to the extreme end of the middle of the tail, and must be landed with the head on. License applications for incidental harvest must be obtained from the International Pacific Halibut Commission (phone: 206-634-1838). Applicants must apply prior to April 1 of each year. Incidental harvest is authorized only during May and June troll seasons and after June 30 if quota remains and if announced on the NMFS hotline (phone: 800-662-9825). ODFW and Washington Department of Fish and Wildlife
(WDFW)will monitor landings. If the landings are projected to exceed the 37,707 pound preseason allocation or the total Area 2A non-Indian commercial halibut allocation, NMFS will take inseason action to close the incidental halibut fishery. Beginning May 1, license holders may land no more than one Pacific halibut per each two Chinook, except one Pacific halibut may be landed without meeting the ratio requirement, and no more than 35 halibut may be landed per open period. Pacific halibut retained must be no less than 32 inches in total length (with head on). A “C-shaped” yelloweye rockfish conservation area
(YRCA)is an area to be voluntarily avoided for salmon trolling. NMFS and the Council request salmon trollers voluntarily avoid this area in order to protect yelloweye rockfish. The area is defined in the Pacific Council Halibut Catch Sharing Plan in the North Coast subarea (Washington marine area 3), with the following coordinates in the order listed: 48°18′ N. lat.; 125°18′ W. long.; 48°18′ N. lat.; 124°59′ W. long.; 48°11′ N. lat.; 124°59′ W. long.; 48°11′ N. lat.; 125°11′ W. long.; 48°04′ N. lat.; 125°11′ W. long.; 48°04′ N. lat.; 124°59′ W. long.; 48°00′ N. lat.; 124°59′ W. long.; 48°00′ N. lat.; 125°18′ W. long.; and connecting back to 48°18′ N. lat.; 125°18′ W. long. C.8. Inseason Management In addition to standard inseason actions or modifications already noted under the season description, the following inseason guidance is provided to NMFS: a. Chinook remaining from the May through June non-Indian commercial troll harvest guideline north of Cape Falcon may be transferred to the July through September harvest guideline on a fishery impact equivalent basis. b. NMFS may transfer fish between the recreational and commercial fisheries north of Cape Falcon if there is agreement among the areas' representatives on the Salmon Advisory Subpanel (SAS). c. At the March 2009 meeting, the Council will consider inseason recommendations for special regulations for any experimental fisheries (proposals must meet Council protocol and be received in November 2008). d. If retention of unmarked coho is permitted in the area from the U.S./Canada border to Cape Falcon, Oregon, by inseason action, the allowable coho quota will be adjusted to ensure preseason projected mortality of critical stocks is not exceeded. C.9. Consistent with Council Management Objectives a. The State of Oregon may establish additional late-season fisheries in state waters. Check state regulations for details. b. The State of California may establish limited fisheries in selected state waters. C.10. For the purposes of California Department of Fish and Game
(CDFG)Code, section 8232.5, the definition of the Klamath Management Zone
(KMZ)for the ocean salmon season shall be that area from Humbug Mt., Oregon, to Horse Mt., California. Section 2. Recreational Management Measures for 2008 Ocean Salmon Fisheries Note: This section contains restrictions in parts A, B, and C that must be followed for lawful participation in the fishery. Each fishing area identified in part A specifies the fishing area by geographic boundaries from north to south, the open seasons for the area, the salmon species allowed to be caught during the seasons, and any other special restrictions effective in the area. Part B specifies minimum size limits. Part C specifies special requirements, definitions, restrictions and exceptions. A. Season Description North of Cape Falcon, OR U.S./Canada Border to Leadbetter Point June 1 through earlier of June 28 or a quota of 8,200 Chinook (c.5). Tuesday through Saturday north of the Queets River (Neah Bay and La Push Subareas) and Sunday through Thursday south of the Queets River (Westport subarea). Chinook only, one fish per day. Chinook 24-inch (60.96 cm) total length minimum size limit (B). See gear restrictions (c.2). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (c.5). Leadbetter Point to Cape Falcon (Columbia River Subarea) June 1 through earlier of June 28 or a subarea guideline of 5,300 Chinook (c.5). Seven days per week. Chinook only, one fish per day. Chinook 24-inch (60.96 cm) total length minimum size limit (B). See gear restrictions (c.2). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (c.5). U.S./Canada Border to Cape Alava (Neah Bay) July 1 through earlier of September 13 or 2,060 marked coho subarea quota with a subarea guideline of 950 Chinook (c.5). Tuesday through Saturday. All salmon two fish per day, no more than one of which can be a Chinook and no chum retention August 1 through Sept. 13. Chinook 24-inch total length minimum size limit (B). All retained coho must be marked with a healed adipose fin clip. See gear restrictions (c.2). Closed east of a true north-south line running through Sail Rock in July. Beginning August 1, Chinook non-retention east of the Bonilla-Tatoosh line (C.4.a) during Council managed ocean fishery. Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.5). Cape Alava to Queets River (La Push Subarea) July 1 through earlier of September 13 or 540 marked coho subarea quota with a subarea guideline of 350 Chinook (C5). September 20 through earlier of October 5 or 50 marked coho quota or 100 Chinook quota (C5): In the area north of 47°50′00″ N. lat. and south of 48°00′00″ N. lat. (C.6). Tuesday through Saturday through September 13. All salmon, two fish per day, no more than one of which can be a Chinook. Chinook 24-inch (60.96 cm) total length minimum size limit (B). All retained coho must be marked with a healed adipose fin clip. See gear restrictions (C.2). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.5). Queets River to Leadbetter Point (Westport Subarea) June 29 through earlier of September 13 or 7,520 marked coho subarea quota with a subarea guideline of 5,100 Chinook (C.5). Sunday through Thursday. All salmon, two fish per day, no more than one of which can be a Chinook. Chinook 24-inch total length minimum size limit (B). All retained coho must be marked with a healed adipose fin clip. See gear restrictions and definitions (C.2, C.3). Grays Harbor Control Zone closed beginning August 1 (C.4.b). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.5). Leadbetter Point to Cape Falcon (Columbia River Subarea) June 29 through earlier of September 30 or 10,180 marked coho subarea quota with any remainder of the 5,300 Chinook subarea guideline from the June Chinook directed fishery (C.5). Sunday through Thursday. All salmon, two fish per day, no more than one of which can be a Chinook. Chinook 24-inch (60.96 cm) total length minimum size limit (B). All retained coho must be marked with a healed adipose fin clip. See gear restrictions and definitions (C.2, C.3). Columbia Control Zone closed (C.4.c). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.5). South of Cape Falcon, OR Cape Falcon to the Oregon/California Border June 22 through earlier of August 31 or a landed catch of 9,000 marked coho (C.6). Seven days per week. All salmon except Chinook, two fish per day (C.1). All retained coho must be marked with a healed adipose fin clip. Fishing in the Stonewall Bank groundfish conservation area restricted to trolling only on days the all depth recreational halibut fishery is open (see 70 FR 20304, June 24, 2005, and call the halibut fishing hotline 1-800-662-9825 for additional dates) (C.3, C.4.d). Open days may be adjusted inseason to utilize the available quota (C.5). In 2009, the season between Cape Falcon and Humbug Mt. will open March 15 for all salmon except coho, two fish per day (C.1). Chinook minimum size limit of 24 inches (60.96 cm) total length (B). Oregon/California Border to U.S./Mexico Border Closed. B. Minimum Size (Total Length in Inches) (See C.1) Area (when open) Chinook Coho Pink North of Cape Falcon, OR 24.0 16.0 None Cape Falcon to OR-CA Border 24.0 16.0 None OR-CA Border to Horse Mountain 16.0 Horse Mt. to U.S.-Mexico Border Metric equivalents: 26.0 in = 66.0 cm, 24.0 in = 61.0 cm, 20.0 in = 50.8 cm, 16.0 in = 40.6 cm. C. Special Requirements, Definitions, Restrictions, or Exceptions C.1. Compliance With Minimum Size and Other Special Restrictions All salmon on board a vessel must meet the minimum size or other special requirements for the area being fished and the area in which they are landed if that area is open. Salmon may be landed in an area that is closed only if they meet the minimum size or other special requirements for the area in which they were caught. *Ocean Boat Limits:* Off the coast of Washington, Oregon, and California, each fisher aboard a vessel may continue to use angling gear until the combined daily limits of salmon for all licensed and juvenile anglers aboard has been attained (additional state restrictions may apply). C.2. Gear Restrictions: Salmon May be Taken Only by Hook and Line Using Barbless Hooks All persons fishing for salmon, and all persons fishing from a boat with salmon on board, must meet the gear restrictions listed below for specific areas or seasons. a. *U.S./Canada Border to Point Conception, California:* No more than one rod may be used per angler; and no more than two single point, single shank barbless hooks are required for all fishing gear. [Note: ODFW regulations in the state-water fishery off Tillamook Bay may allow the use of barbed hooks to be consistent with inside regulations.] b. *Cape Falcon, Oregon, to Point Conception, California:* Anglers must use no more than two single point, single shank, barbless hooks. c. *Horse Mt., California, to Point Conception, California:* Single point, single shank, barbless circle hooks (below) are required when fishing with bait by any means other than trolling, and no more than two such hooks shall be used. When angling with two hooks, the distance between the hooks must not exceed five inches when measured from the top of the eye of the top hook to the inner base of the curve of the lower hook, and both hooks must be permanently tied in place (hard tied). Circle hooks are not required when artificial lures are used without bait. C.3. Gear Definitions a. *Recreational fishing gear defined:* Angling tackle consisting of a line with no more than one artificial lure or natural bait attached. Off Oregon and Washington, the line must be attached to a rod and reel held by hand or closely attended; the rod and reel must be held by hand while playing a hooked fish. No person may use more than one rod and line while fishing off Oregon or Washington. Off California, the line must be attached to a rod and reel held by hand or closely attended. Weights directly attached to a line may not exceed four pounds (1.8 kg). While fishing off California north of Point Conception, no person fishing for salmon, and no person fishing from a boat with salmon on board, may use more than one rod and line. Fishing includes any activity which can reasonably be expected to result in the catching, taking, or harvesting of fish. b. *Trolling defined:* Angling from a boat or floating device that is making way by means of a source of power, other than drifting by means of the prevailing water current or weather conditions. c. *Circle hook defined:* A hook with a generally circular shape and a point which turns inward, pointing directly to the shank at a 90° angle. C.4. Control Zone Definitions a. The Bonilla-Tatoosh Line: A line running from the western end of Cape Flattery to Tatoosh Island Lighthouse (48°23′30″ N. lat., 124°44′12″ W. long.) to the buoy adjacent to Duntze Rock (48°28′00″ N. lat., 124°45′00″ W. long.), then in a straight line to Bonilla Point (48°35′30″ N. lat., 124°43′00″ W. long.) on Vancouver Island, British Columbia. b. Grays Harbor Control Zone—The area defined by a line drawn from the Westport Lighthouse (46°53′18″ N. lat., 124°07′01″ W. long.) to Buoy #2 (46°52′42″ N. lat., 124°12′42″ W. long.) to Buoy #3 (46°55′00″ N. lat., 124°14′48″ W. long.) to the Grays Harbor north jetty (46°36′00″ N. lat., 124°10′51″ W. long.). c. Columbia Control Zone: An area at the Columbia River mouth, bounded on the west by a line running northeast/southwest between the red lighted Buoy #4 (46°13′35″ N. lat., 124°06′50″ W. long.) and the green lighted Buoy #7 (46°15′09″ N. lat., 124°06′16″ W. long.); on the east, by the Buoy #10 line which bears north/south at 357° true from the south jetty at 46°14′00″ N. lat., 124°03′07″ W. long. to its intersection with the north jetty; on the north, by a line running northeast/southwest between the green lighted Buoy #7 to the tip of the north jetty (46°15′48″ N. lat., 124°05′20″ W. long. and then along the north jetty to the point of intersection with the Buoy #10 line; and on the south, by a line running northeast/southwest between the red lighted Buoy #4 and tip of the south jetty (46°14′03″ N. lat., 124°04′05″ W. long.), and then along the south jetty to the point of intersection with the Buoy #10 line. d. Stonewall Bank Groundfish Conservation Area: The area defined by the following coordinates in the order listed: 44°37.46′ N. lat.; 124°24.92′ W. long.; 44°37.46′ N. lat.; 124°23.63′ W. long.; 44°28.71′ N. lat.; 124°21.80′ W. long.; 44°28.71′ N. lat.; 124°24.10′ W. long.; 44°31.42′ N. lat.; 124°25.47′ W. long.; and connecting back to 44°37.46′ N. lat.; 124°24.92′ W. long. e. Klamath Control Zone: The ocean area at the Klamath River mouth bounded on the north by 41°38′48″ N. lat. (approximately six nautical miles north of the Klamath River mouth); on the west, by 124°23′00″ W. long. (approximately 12 nautical miles off shore); and, on the south, by 41°26′48″ N. lat. (approximately 6 nautical miles south of the Klamath River mouth). C.5. Inseason Management Regulatory modifications may become necessary inseason to meet preseason management objectives such as quotas, harvest guidelines, and season duration. In addition to standard inseason actions or modifications already noted under the season description, the following inseason guidance is provided by NMFS: a. Actions could include modifications to bag limits, or days open to fishing, and extensions or reductions in areas open to fishing. b. Coho may be transferred inseason among recreational subareas north of Cape Falcon on an impact neutral basis to help meet the recreational season duration objectives (for each subarea) after conferring with representatives of the affected ports and the Council's SAS recreational representatives north of Cape Falcon. c. Chinook and coho may be transferred between the recreational and commercial fisheries north of Cape Falcon on an impact neutral basis if there is agreement among the representatives of the Salmon Advisory Subpanel (SAS). d. If retention of unmarked coho is permitted in the area from the U.S./Canada border to Cape Falcon, Oregon, by inseason action, the allowable coho quota will be adjusted to ensure preseason projected mortality of critical stocks is not exceeded. C.6. Additional Seasons in State Territorial Waters Consistent with Council management objectives, the States of Washington, Oregon, and California may establish limited seasons in state waters. Oregon State-water fisheries are limited to Chinook salmon. Check state regulations for details. Section 3. Treaty Indian Management Measures for 2008 Ocean Salmon Fisheries Note: This section contains restrictions in parts A, B, and C which must be followed for lawful participation in the fishery. A. Season Descriptions U.S./Canada Border to Cape Falcon May 1 through the earlier of June 30 or 20,000 Chinook quota. All salmon except coho. If the Chinook quota for the May-June fishery is not fully utilized, the excess fish cannot be transferred into the later all-salmon season. If the Chinook quota is exceeded, the excess will be deducted from the later all-salmon season. See size limit
(B)and other restrictions (C). July 1 through the earlier of September 15, or 17,500 preseason Chinook quota, or 20,000 coho quota. All Salmon. See size limit
(B)and other restrictions (C). B. Minimum Size (Inches) Area (when open) Chinook Total length Head-off Coho Total length Head-off Pink North of Cape Falcon, OR 24.0 18.0 16.0 12.0 None. Metric equivalents: 24.0 in = 61.0 cm, 18.0 in = 45.7 cm, 16.0 in = 40.6 cm, and 12.0 in = 30.5 cm. C. Special Requirements, Restrictions, and Exceptions C.1. Tribe and Area Boundaries All boundaries may be changed to include such other areas as may hereafter be authorized by a Federal court for that tribe's treaty fishery. S'KLALLAM—Washington State Statistical Area 4B (All). MAKAH—Washington State Statistical Area 4B and that portion of the FMA north of 48°02′15″ N. lat. (Norwegian Memorial) and east of 125°44′00″ W. long. QUILEUTE—That portion of the FMA between 48°07′36″ N. lat. (Sand Pt.) and 47°31′42″ N. lat. (Queets River) and east of 125°44′00″ W. long. HOH—That portion of the FMA between 47°54′18″ N. lat. (Quillayute River) and 47°21′00″ N. lat. (Quinault River) and east of 125°44′00″ W. long. QUINAULT—That portion of the FMA between 47°40′06″ N. lat. (Destruction Island) and 46°53′18″ N. lat. (Point Chehalis) and east of 125°44′00″ W. long. C.2. Gear Restrictions a. Single point, single shank, barbless hooks are required in all fisheries. b. No more than eight fixed lines per boat. c. No more than four hand held lines per person in the Makah area fishery (Washington State Statistical Area 4B and that portion of the FMA north of 48°02′15″ N. lat. (Norwegian Memorial) and east of 125°44′00″ W. long.) C.3. Quotas a. The quotas include troll catches by the S'Klallam and Makah tribes in Washington State Statistical Area 4B from May 1 through September 15. b. The Quileute Tribe will continue a ceremonial and subsistence fishery during the time frame of September 15 through October 15 in the same manner as in 2004, 2005, 2006, and 2007. Fish taken during this fishery are to be counted against treaty troll quotas established for the 2008 season (estimated harvest during the October ceremonial and subsistence fishery: 100 Chinook; 200 coho). C.4. Area Closures a. The area within a six nautical mile radius of the mouths of the Queets River (47°31′42″ N. lat.) and the Hoh River (47°45′12″ N. lat.) will be closed to commercial fishing. b. A closure within two nautical miles of the mouth of the Quinault River (47°21′00″ N. lat.) may be enacted by the Quinault Nation and/or the State of Washington and will not adversely affect the Secretary of Commerce's management regime. Section 4. Halibut Retention Under the authority of the Northern Pacific Halibut Act, NMFS promulgated regulations governing the Pacific halibut fishery which appear at 50 CFR part 300, subpart E. On March 7, 2008, NMFS published a final rule (73 FR 12280) to implement the International Pacific Halibut Commission's
(IPHC)recommendations, to announce fishery regulations for U.S. waters off Alaska and fishery regulations for treaty commercial and ceremonial and subsistence fisheries, some regulations for non-treaty commercial fisheries for U.S. waters off the West Coast, and approval of and implementation of the Area 2A Pacific halibut Catch Sharing Plan and the Area 2A management measures for 2008. The regulations and management measures provide that vessels participating in the salmon troll fishery in Area 2A (all waters off the States of Washington, Oregon, and California), which have obtained the appropriate IPHC license, may retain halibut caught incidentally during authorized periods in conformance with provisions published with the annual salmon management measures. A salmon troller may participate in the halibut incidental catch fishery during the salmon troll season or in the directed commercial fishery targeting halibut, but not both. The following measures have been approved by the IPHC, and implemented by NMFS. During authorized periods, the operator of a vessel that has been issued an incidental halibut harvest license may retain Pacific halibut caught incidentally in Area 2A while trolling for salmon. Halibut retained must be no less than 32 inches (81.28 cm) in total length, measured from the tip of the lower jaw with the mouth closed to the extreme end of the middle of the tail, and must be landed with the head on. License applications for incidental harvest must be obtained from the International Pacific Halibut Commission (phone: 206-634-1838). Applicants must apply prior to April 1 of each year. Incidental harvest is authorized only during May and June troll seasons and after June 30 if quota remains and if announced on the NMFS hotline (phone: 800-662-9825). ODFW and WDFW will monitor landings. If the landings are projected to exceed the 37,707 pound preseason allocation or the total Area 2A non-Indian commercial halibut allocation, NMFS will take inseason action to close the incidental halibut fishery. Beginning May 1, license holders may land no more than one Pacific halibut per each two Chinook, except one Pacific halibut may be landed without meeting the ratio requirement, and no more than 35 halibut may be landed per open period. Pacific halibut retained must be no less than 32 inches in total length (with head on). NMFS and the Council request that salmon trollers voluntarily avoid a “C-shaped” YRCA (North Coast Recreational YRCA) in order to protect yelloweye rockfish. The area is defined in the Pacific Council Halibut Catch Sharing Plan in the North Coast subarea (WA marine area 3)(See section 1.C.7. for the coordinates). Section 5. Geographical Landmarks Wherever the words “nautical miles off shore” are used in this document, the distance is measured from the baseline from which the territorial sea is measured. Geographical landmarks referenced in this document are at the following locations: Cape Flattery, WA—48°23′00″ N. lat. Cape Alava, WA—48°10′00″ N. lat. Queets River, WA—47°31′42″ N. lat. Leadbetter Point, WA—46°38′10″ N. lat. Cape Falcon, OR—45°46′00″ N. lat. Florence South Jetty, OR—44°00′54″ N. lat. Humbug Mountain, OR—42°40′30″ N. lat. Oregon-California Border—42°00′00″ N. lat. Humboldt South Jetty, CA—40°45′53″ N. lat. Horse Mountain, CA—40°05′00″ N. lat. Point Arena, CA—38°57′30″ N. lat. Point Reyes, CA—37°59′44″ N. lat. Point San Pedro, CA—37°35′40″ N. lat. Pigeon Point, CA—37°11′00″ N. lat. Point Sur, CA—36°18′00″ N. lat. Point Conception, CA—34°27′00″ N. lat. Section 6. Inseason Notice Procedures Actual notice of inseason management actions will be provided by a telephone hotline administered by the Northwest Region, NMFS, 206-526-6667 or 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts. These broadcasts are announced on Channel 16 VHF-FM and 2182 KHz at frequent intervals. The announcements designate the channel or frequency over which the Notice to Mariners will be immediately broadcast. Inseason actions will also be filed with the **Federal Register** as soon as practicable. Since provisions of these management measures may be altered by inseason actions, fishermen should monitor either the telephone hotline or Coast Guard broadcasts for current information for the area in which they are fishing. Classification This rule is necessary for conservation and management and is consistent with the Magnuson-Stevens Act. The emergency rule temporarily modifying the conservation objective for Sacramento River fall Chinook is consistent with the agency's policy on use of emergency actions under the Magnuson-Stevens Act published at 62 FR 44422 (Thursday, August 21, 1997). The emergency, in this case, is a consequence of a predicted run size that is less than the lower end of the 122,000-180,000 spawner escapement range. The run size forecast was not available until February of 2008 and was thus unforeseen. These emergency circumstances present serious conservation and management problems. The emergency regulations provide the opportunity to address the conservation problem consistent with the requirement to manage, on a continuing basis, for maximum sustained yield, and still provide some limited harvest opportunity. Without use of emergency regulations, the Pacific Coast Salmon Fishery Management Plan (Salmon FMP) would require closure of all salmon fishing south of Cape Falcon, Oregon, causing severe social and economic hardship in the coastal communities. The limited mark-selective recreational coho fishery off Oregon that will require the emergency regulations to implement will result in a marginal decrease in the SRFC escapement while alleviating some adverse effects to the fishing community. This notification of annual management measures is exempt from review under Executive Order 12866. The Assistant Administrator has determined that the measures described in the preamble that deviate from the framework FMP and its implementing regulations are necessary to respond to an emergency situation and are consistent with the Magnuson-Stevens Act and other applicable law. The measures falling under emergency authority of section 305(C) of the Magnuson-Stevens Act (emergency rule) involve an ocean impact of approximately 55 Sacramento River fall Chinook in the SRFC impact area to allow a mark-selective recreational fishery for hatchery coho to proceed off of Oregon. Because SRFC are not projected to meet the conservation objective established in the FMP, it is necessary to amend those portions of the framework FMP and its implementing regulations by emergency action pursuant to 16 U.S.C. 1855(C). The provisions of 50 CFR 660.411 state that if, for good cause, an action must be filed without affording a prior opportunity for public comment, the measures will become effective; however, public comments on the action will be received for a period of 15 days after the date of publication in the **Federal Register** . NMFS will receive public comments on this action until May 16, 2008. These regulations are being promulgated under the authority of 16 U.S.C. 1855(C) and (d). The Assistant Administrator for Fisheries, NOAA
(AA)finds good cause under 5 U.S.C. 553(b)(B), to waive the requirement for prior notice and opportunity for public comment, as such procedures are impracticable and contrary to the public interest. The annual salmon management cycle begins May 1 and continues through April 30 of the following year. May 1 was chosen because the pre-May harvests constitute a relatively small portion of the annual catch. The time-frame of the preseason process for determining the annual modifications to ocean salmon fishery management measures depends on when the pertinent biological data are available. Salmon stocks are managed to meet annual spawning escapement goals or specific exploitation rates. Achieving either of these objectives requires designing management measures that are appropriate for the ocean abundance predicted for that year. These pre-season abundance forecasts, which are derived from the previous year's observed spawning escapement, vary substantially from year to year, and are not available until January and February because spawning escapement continues through the fall. The preseason planning and public review process associated with developing Council recommendations is initiated in February as soon as the forecast information becomes available. The public planning process requires coordination of management actions of four states, numerous Indian tribes, and the Federal Government, all of which have management authority over the stocks. This complex process includes the affected user groups, as well as the general public. The process is compressed into a 2-month period which culminates at the April Council meeting at which the Council adopts a recommendation that is forwarded to NMFS for review, approval and implementation of fishing regulations effective on May 1. Providing opportunity for prior notice and public comments on the Council's recommended measures through a proposed and final rulemaking process would require 30 to 60 days in addition to the two-month period required for development of the regulations. Delaying implementation of annual fishing regulations, which are based on the current stock abundance projections, for an additional 60 days, would require that fishing regulations for May and June be set in the previous year, without knowledge of current stock status. Although this is currently done for fisheries opening prior to May, relatively little harvest occurs during that period (e.g. in 2006 less than 10 percent of commercial and recreational harvest occurred prior to May 1). Allowing the much more substantial harvest levels normally associated with the May and June seasons to be regulated in a similar way would impair NMFS ability to protect weak stocks and Endangered Species Act
(ESA)listed stocks, and provide harvest opportunity where appropriate. For example, 58,000 Chinook were caught off California during May and June of 2007. If fishing were allowed in 2008 under last year's regulations a similar number of Chinook could be caught. Under the recommended 2008 regulations, this May and June fisheries will be closed. Conversely, north of Cape Falcon the recreational fishing was closed in May and June of 2007. Under the recommended 2008 regulations, the recreational fishery is open in June with a quota of 13,500. Managing fisheries in May and June of 2008 under 2007 regulations would limit harvest opportunity that could otherwise be available. The choice of May 1 as the beginning of the regulatory season balances the need to gather and analyze the data needed to meet the management objectives of the Salmon FMP and the requirements to provide adequate public notice and comment on the regulations implemented by NMFS. Overall, the annual population dynamics of the various salmon stocks require managers to vary the season structure of the various West Coast area fisheries to both protect weaker stocks and give fishers access to stronger salmon stocks, particularly hatchery produced fish. Failure to implement these measures immediately could compromise the status of certain stocks, or result in foregone opportunity to harvest stocks whose abundance has increased relative to the previous year thereby undermining the purpose of this agency action. Based upon the above-described need to have these measures effective on May 1 and the fact that there is limited time available to implement these new measures after the final Council meeting in April and before the commencement of the ocean salmon fishing year on May 1, NMFS has concluded it is impracticable and contrary to the public interest to provide an opportunity for prior notice and public comment under 5 U.S.C. 553(b)(B). The AA also finds that good cause exists under 5 U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness of this final rule. As previously discussed, data are not available until February and management measures not finalized until early April. These measures are essential to conserve threatened and endangered ocean salmon stocks, and to provide for harvest of more abundant stocks. If these measures are not in place on May 1, the previous year's management measures will continue to apply. Failure to implement these measures immediately could compromise the status of certain stocks, including Sacramento River fall Chinook, and negatively impact international, state, and tribal salmon fisheries, thereby undermining the purposes of this agency action. To enhance notification of the fishing industry of these new measures, NMFS is announcing the new measures over the telephone hotline used for inseason management actions and is also posting the regulations on both of its West Coast regional Web sites ( *http://www.nwr.noaa.gov* and *http://swr.nmfs.noaa.gov* ). NMFS is also advising the States of Washington, Oregon, and California on the new management measures. These states announce the seasons for applicable state and Federal fisheries through their own public notification systems. This action contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA), and which have been approved by the Office of Management and Budget
(OMB)under control number 0648-0433. The public reporting burden for providing notifications if landing area restrictions cannot be met, or to obtain shelter in Brookings, OR, is estimated to average 15 minutes per response. This estimate includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES ) and by e-mail to *David_Rostker@omb.eop.gov* , or fax to 202-395-7285. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. NMFS has current ESA biological opinions that cover fishing under these regulations on all listed salmon species, except Lower Columbia River
(LCR)coho and LCR Chinook. NMFS reiterated their ESA related consultation standards in their annual Guidance letter to the Council dated February 26, 2008. Some of NMFS's past biological opinions have found no jeopardy, and others have found jeopardy, but provided reasonable and prudent alternatives to avoid jeopardy. The management measures for 2008 are consistent with the biological opinions that found no jeopardy, and with the reasonable and prudent alternatives in the jeopardy biological opinions. NMFS also consulted this year on the effects of the 2008 annual regulations on LCR coho and LCR Chinook. NMFS concluded that the proposed 2008 fisheries are not likely to jeopardize the continued existence of LCR coho and LCR Chinook. The Council's recommended management measures therefore comply with NMFS's consultation standards and guidance for all listed salmon species which may be affected by Council fisheries. In most cases, the recommended measures result in impacts that are more restrictive than NMFS's ESA requirements. Southern resident killer whales were listed as endangered effective February 16, 2006. NMFS consulted on the effects of the 2006 and 2007 fisheries on killer whales and concluded that the fisheries were not likely to jeopardize the continued existence of the species. NMFS is again consulting regarding the effects on the 2008 fisheries on killer whales through a separate biological opinion. NMFS expects to complete the consultation prior to May 1, 2008. While the consultation may not be completed prior to approval of this action, NMFS has determined that the anticipated fisheries will not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures. In the event that the review suggests that further constraints in the 2008 fisheries are necessary, appropriate corrections can be made by NMFS through inseason action. This final rule was developed after meaningful consultation and collaboration with the affected tribes. The tribal representative on the Council made the motion for the regulations that apply to the tribal vessels. Authority: 16 U.S.C. 773-773k; 1801 *et seq.* Dated: April 29, 2008. Samuel D. Rauch, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. E8-9687 Filed 4-30-08; 8:45 am] BILLING CODE 3510-22-P 73 85 Thursday, May 1, 2008 Proposed Rules NATIONAL CREDIT UNION ADMINISTRATION 12 CFR Parts 712 and 741 RIN 3133-AD20 Credit Union Service Organizations AGENCY: National Credit Union Administration (NCUA). ACTION: Proposed rule. SUMMARY: NCUA proposes to change its credit union service organization
(CUSO)rule by adding two new categories of permissible CUSO activities: Credit card loan origination and payroll processing services. The proposal would also add new examples of permissible CUSO activities within existing categories and would expand the scope of two categories of services to include persons eligible for credit union membership. The proposal would impose new regulatory limits on the ability of credit unions to recapitalize their CUSOs in certain circumstances. While the CUSO rule generally only applies to federal credit unions (FCUs), the proposal would revise and extend to all federally insured credit unions the provisions ensuring that credit union regulators have access to books and records and that CUSOs are operated as separate legal entities. The proposal would also clarify that CUSOs may buy and sell participations in loans they are authorized to originate under the current rule. Finally, NCUA proposes to delete as unnecessary the section in the current rule concerning amendment requests. These amendments will clarify the rule while enhancing CUSO operations and addressing safety and soundness concerns. DATES: Comments must be received on or before June 30, 2008. ADDRESSES: You may submit comments by any of the following methods (Please send comments by one method only): • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *NCUA Web Site: http://www.ncua.gov/RegulationsOpinionsLaws/proposed_regs/proposed_regs.html.* Follow the instructions for submitting comments. • *E-mail:* Address to *regcomments@ncua.gov.* Include “[Your name] Comments on Proposed Rule 712, CUSO Amendments” in the e-mail subject line. • *Fax:*
(703)518-6319. Use the subject line described above for e-mail. • *Mail:* Address to Mary Rupp, Secretary of the Board, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428. • *Hand Delivery/Courier:* Same as mail address. FOR FURTHER INFORMATION CONTACT: Ross P. Kendall, Staff Attorney, Office of General Counsel, at the above address or telephone
(703)518-6540. SUPPLEMENTARY INFORMATION: A. Background FCUs have the authority to lend up to 1% of their paid-in and unimpaired capital and surplus and to invest an equivalent amount in credit union organizations. 12 U.S.C. 1757(5)(D), (7)(I). NCUA regulates this FCU lending and investing authority in the CUSO rule. 12 CFR Part 712. The CUSO rule permits an FCU to invest in or lend to a CUSO only if the CUSO primarily serves credit unions, its membership, or the membership of credit unions contracting with the CUSO. 12 CFR 712.3(b). NCUA's policy is to review its regulations periodically to “update, clarify and simplify existing regulations and eliminate redundant and unnecessary provisions.” Interpretive Ruling and Policy Statement
(IRPS)87-2, Developing and Reviewing Government Regulations. NCUA notifies the public about the review, which is conducted on a rolling basis so that a third of its regulations are reviewed each year. These proposed changes are, in part, a result of NCUA's 2007 review under IRPS 87-2, which covered the middle third of the regulations, including part 712. The proposed changes are intended to update and clarify the regulation. B. Proposed Changes Expanding the Scope of Certain Services To Include Persons Within the Field of Membership In October 2006, Congress enacted the Financial Services Regulatory Relief Act of 2006 (Reg Relief Act), which amended section107(12) of the FCU Act to permit FCUs to provide certain financial services to persons within their fields of membership. The Reg Relief Act also amended the FCU Act to extend the general lending maturity limit for FCUs from 12 years to 15 years. Public Law 109-351, sections 502-503, 120 Stat. 1966 (2006). On October 19, 2006, the NCUA Board issued an interim final rule to implement these provisions. 71 FR 62875 (October 27, 2006). The Board made the interim rule permanent effective March 26, 2007. 72 FR 7927 (February 22, 2007). Legislative history of the Reg Relief Act indicates that Congress intended to allow FCUs “to sell negotiable checks, money orders, and other similar transfer instruments, including international and domestic electronic fund transfers, to anyone eligible for membership, regardless of their membership status.” S. Rpt. 109-256, p. 5; H. Rpt. 109-356 Part 1, p. 63. The Board believes the enactment of that law warrants a parallel expansion in the CUSO rule, since an FCU may elect to provide some or all of these types of services through the vehicle of a CUSO. The current CUSO rule provides that CUSOs must “primarily” serve credit unions or their members. 12 CFR 712.3(b). The rule is founded on language in the FCU Act permitting FCUs to lend to service organizations established primarily to serve the needs of credit unions and whose business relates to the daily operation of credit unions. 12 U.S.C. 1757(5)(D). A similar constraint is contained in the investment authority: CUSOs must provide services “associated with the routine operations of credit unions.” 12 U.S.C. 1757(7)(I). Insofar as the Reg Relief Act has expanded the scope of FCU operations by authorizing certain money transfer services to be provided to persons eligible for membership, the Board believes it prudent to make a similar adjustment to the “primarily serves” governor applicable to CUSOs. Services covered in the Reg Relief Act correspond to the checking and currency services and the electronic transaction services categories in the CUSO rule. Accordingly, the Board proposes to amend 712.3(b) to specify that FCUs may lend to or invest in CUSOs providing services under these two categories so long as the CUSO primarily provides them to persons within the FCU's field of membership, or to persons eligible for membership in credit unions with which the CUSO has contracts. Credit Card Loan Origination The Board is proposing to permit CUSOs to originate and hold credit card loans as a principal on its own behalf or on behalf of credit unions. As far as lending, the current CUSO rule permits CUSOs to engage in consumer mortgage lending, business lending and student lending. Generally, NCUA has permitted CUSOs to engage in loan origination where a degree of expertise is required to be successful, such as business, student and real estate lending, and that expertise may not be attainable by many individual credit unions. *See, e.g.* , 63 FR 10743, 10752 (March 5, 1998). NCUA believes credit card origination also requires a degree of specialization and expertise to succeed and the proposal will permit credit unions to collaborate and pool resources and expertise through the vehicle of a CUSO. Accordingly, the Board believes credit card origination should be an approved CUSO activity. Credit unions administering their own credit card programs encounter substantial risks and burdens. Thin margins and competitive pricing characterize the credit card business at the prime end of the market and a small number of banks with nationwide operations dominate the business. Permitting FCUs to use a CUSO to manage their card programs will help credit unions to manage that risk. CUSOs are already engaged in providing various types of card processing and related services. The expansion is also consistent with an underlying principle of the CUSO rule, which is to foster and support the development of expertise in a particular line of business to a degree that is often unattainable at the individual credit union level. The amendment would combine the scale, expertise, and back office operational support required to be successful in the credit card business. Many credit unions have found it difficult to manage their credit card business successfully and have elected to sell that business to other financial institutions. In many cases, credit unions that have sold their business to another institution but retained an affinity association with the cards find that service levels and consumer support are not as good as the credit union had expected. In addition, in some cases the financial institution cross-markets other products and services to the cardholders and sometimes succeeds in drawing other business away from the credit union. Even if the acquiring institution allows a credit union to remain associated with the card, its earnings on the card business will be significantly reduced. The Board believes this amendment will provide an alternative for credit unions interested in selling their credit card business. The CUSO rule, implementing a statutory limitation, prohibits a CUSO from acquiring control, directly or indirectly, of a depository financial institution so an FCU seeking to establish a CUSO for credit card origination cannot fund its operation by receiving deposits. 12 U.S.C. 1757(7)(I); 12 CFR 712.6. In addition, the Board notes that NCUA's loan participation rule would not support the sale to FCUs of participation interests in a credit card portfolio, which consists of open-end, revolving credit. Applicability of Select CUSO Rule Provisions to Federally Insured Credit Unions Currently, the CUSO rule only applies to FCUs but the Board is proposing to have two particular provisions addressing safety and soundness considerations apply to federally insured, state chartered credit unions (FISCUs), namely, the provision requiring a CUSO's agreement to permit NCUA to have access to its books and records and the provision requiring investing FCUs to take steps to ensure the CUSO maintains corporate separateness. 12 CFR 712.3(d)(3), 712.4. While NCUA has the authority under the FCU Act to impose regulatory requirements on FISCUs, 12 U.S.C. 1781-1790d, it works cooperatively with state supervisory authorities in exercising this authority and generally only regulates where there are safety and soundness concerns. The Board proposes to amend subpart B of part 741 of its rules to add a new section specifying that FISCUs must adhere to the requirements in § 712.3(d)(3) and § 712.4. The proposed amendment would specify that a CUSO is any entity in which a credit union has an ownership interest or to which a credit union has extended a loan and that is engaged primarily in providing products or services to credit unions or credit union members. This provision follows the approach taken by NCUA in defining a CUSO for FCU investment and loan purposes. As discussed above, based on changes made by the Reg Relief Act, the Board is proposing to expand the CUSO definition to include, in the case of check cashing and money transfer services, entities that primarily serve individuals eligible for credit union membership. The Board proposes to incorporate this concept into this section of the rule as well by specifying that CUSOs that provide these types of services fall within the scope of the rule if the services are provided primarily to credit unions or individuals who are eligible for membership in credit unions having a loan, investment or contract with the CUSO. Some state laws may authorize FISCUs to lend to or invest in entities that are not primarily engaged in serving credit unions, credit union members, or persons eligible for membership, and the rule would not apply in these cases. The Board anticipates that entities that are not primarily engaged in serving credit unions or their members will not present the types of safety and soundness and systemic risks about which it is most concerned. Comment is solicited on possible other approaches to describing the scope of the rule. In addition, the Board proposes to revise the last sentence in § 712.1, which currently states that Part 712 has no applicability to FISCUs or their subsidiaries that do not have FCU investments or loans. FISCUs are exposed to significant potential safety and soundness and reputation risks based on their relationship with their CUSOs. Although NCUA has the right to examine books and records belonging to a FISCU, it does not enjoy a similar right concerning access to the books and records of the CUSO. Without that access, NCUA cannot thoroughly and accurately evaluate CUSO risks to FISCUs and, ultimately, the risk to the National Credit Union Share Insurance Fund. The Board notes, in this respect, that not all states impose the same type of relatively strict investment limits in the FCU Act, which limit FCU investment in all CUSOs to one percent of unimpaired capital and surplus. 12 U.S.C. 1757(7)(I). Similarly, not all states limit the types of activities in which a CUSO may engage. Further, without some assurance that the FISCU is insulated from claims that might be asserted against its CUSO, there is risk that the FISCU could lose more than the value of its investment in its CUSO. NCUA experience with several FISCUs that own CUSOs presenting significant exposure to potential loss supports this amendment. There are CUSOs, for example, that have used extensive leveraging from non-credit union sources to fund commercial loans. In turn, credit unions often buy participations in these loans, sometimes without having conducted an adequate due diligence themselves. Other CUSOs are engaging in loan origination despite being thinly capitalized, presenting risk to the credit union that losses or affirmative liability sustained by the CUSO will pass to them. If the CUSO should become bankrupt or insolvent, losses to those credit unions holding participation interests in loans the CUSO originated and serviced could also result. In other cases, CUSOs may be used by the credit union to develop an undue concentration of loans in a particular business segment or geographic area. This presents reputation risk to the credit union, especially if significant defaults arise and foreclosures become necessary. CUSOs may also engage directly in lines of business that present risks, such as a trust business or mortgage or commercial loan origination. The Board understands and acknowledges that the degree of risk to a FISCU depends on several factors, including the nature of the services its CUSO provides and the relative extent of the CUSO's involvement in the credit union's overall business. For example, the Board is substantially more concerned about a CUSO that originates mortgage and business loans than one that provides backroom management or operational support. CUSOs engaging in widespread sale of participation interests and providing loan servicing on behalf of a significant number of credit unions present potential systemic risks that the Board believes warrant direct monitoring. NCUA solicits the views of commenters about ways to isolate and address this type of risk without unduly burdening the industry or unnecessarily covering all CUSO relationships. For example, it may make sense to identify types of business or degrees of market penetration as conditions for applicability of the rule. The Board is aware a FISCU may be required to maintain an investment in an entity to receive services at optimal terms and rates, but in which the credit union's share of the overall business of that entity is relatively minor. In such cases, the credit union may not have enough influence or involvement with the entity to be able to require its consent to access to books and records by NCUA. The Board solicits input from the public about ways to address this circumstance, such as by creating a minimum investment threshold for applicability of the rule. Finally, the Board is aware some states may already have rules or requirements governing corporate separateness between FISCUs and their CUSOs. The Board solicits input from the public about whether the rule ought to include a provision, similar to that which exists in NCUA's member business lending rule, by which states could demonstrate that compliance with an existing state rule adequately addresses the liability concerns present in this context. Also, the proposed amendment states expressly that it does not preempt any applicable state law or regulation that currently authorizes a state credit union regulatory authority
(SSA)to review a CUSO's books and records or to conduct an examination of the CUSO. *Reciprocity.* As the discussion above documents, the right of access to books and records of CUSOs is an important tool in assuring safety and soundness. The Board understands, however, that not every SSA enjoys a right of access to books and records of CUSOs in which FISCUs chartered by that state have an investment or other relationship. There may also be cases in which a FISCU has only a contractual relationship with a CUSO but does not have either a loan to or an investment in the CUSO, which may be owned exclusively by one or more FCUs. To address this circumstance, the Board proposes to change § 712.3(d)(3) to require the credit union's agreement with the CUSO to permit access not only to NCUA but also to any SSA having supervisory responsibility over any FISCU that has a loan, an investment, or a contractual agreement for products or services with the CUSO. This will assure that an SSA with responsibility for a credit union has the opportunity to review and evaluate the risk to which its institutions may be exposed. Even though NCUA enjoys a cooperative relationship with all SSAs and typically shares relevant information with them, the Board recognizes there may be circumstances in which access to books and records is useful or necessary for the SSA. At the same time, the Board does not anticipate that extending the rule in this way will result in an inordinate number of requests for access by SSAs to CUSO books and records. *Transition Period for Compliance.* The Board acknowledges that it will take some time for FISCUs to develop and enter agreements with their CUSOs and to obtain legal opinions addressing corporate separateness issues. The Board also recognizes that FCUs with loans to or investments in CUSOs will be required under this proposal to make changes in the agreements they currently have with their CUSOs. The Board proposes to establish a compliance date for each of these changes that is not earlier than six months following the date of publication of the final rule in the **Federal Register** . Accordingly, the proposed rule changes reflect this compliance date. Recapitalization of Insolvent CUSOs Under certain circumstances, an FCU may consider re-capitalizing a CUSO that has become insolvent because it determines the investment is prudent, even though some portion of the amount invested in the recapitalization effort may have no book value for the FCU. The Board believes the risks inherent in this situation warrant an amendment to the CUSO rule that would apply in cases in which an FCU is already less than adequately capitalized or where the recapitalization of the CUSO would render the FCU less than adequately capitalized under NCUA's prompt corrective action
(PCA)rules. 12 CFR Part 702. In either case, an FCU contemplating such an investment would be required to obtain approval in advance from the appropriate NCUA regional director if the investment would result in an aggregate cash outlay, measured on a cumulative basis (regardless of how the investment is valued for accounting purposes) in an amount in excess of one percent of the credit union's paid in and unimpaired capital and surplus. This amendment would minimize the likelihood, which is possible under the current rule, that an FCU may be investing, on an aggregate basis, more than one percent of its capital in a CUSO. The amendment would also prevent an FCU from continuing to invest in an entity that has become a lost cause. NCUA has had specific experience with credit unions that have elected to invest additional funds with CUSOs that have experienced losses. That decision calls for business judgment and is, in most cases, within the discretion of the board of directors. Where, however, the proposed investment would change the credit union's PCA rating to less than adequate, or where the credit union is already in a less than adequately capitalized condition, the Board believes prior notice to and approval from NCUA is appropriate. Amendment Requests The current rule has a section outlining a process by which the NCUA Board can consider approval for a CUSO activity not currently preapproved. 12 CFR 712.7. This section provides that NCUA will consider a request to be a petition to amend the rule and indicates the agency will solicit public comment or otherwise act on the request within sixty days. This provision, which dates to 1986, was brought over intact from the prior version of the rule when NCUA conducted a wholesale review and revision of the rule in 1998. 63 FR 10743, 10754 (March 5, 1998). Although NCUA staff receive numerous inquiries about whether a particular CUSO activity is already within one of the preapproved categories, NCUA has received only one formal request to amend the rule, which the Board rejected. In addition, since the 1998 amendment of the CUSO rule, NCUA adopted a change to its rule and policy on promulgation of regulations to include a general provision on the procedures by which members of the public may petition the NCUA Board for the issuance, amendment or repeal of any rule. 12 CFR 791.8(c); Interpretive Ruling and Policy Statement 87-2 as amended by Interpretive Ruling and Policy Statement 03-2. Accordingly, the Board believes the amendment provisions described in § 712.7 of the CUSO rule are redundant and should be deleted. Payroll Processing The Board proposes to amend the CUSO rule to authorize CUSOs to provide payroll processing services directly to credit union members. NCUA's Office of General Counsel has concluded that an FCU may provide its members with payroll processing services as an exercise of its incidental powers and that a CUSO may assist the FCU in its provision of that service. OGC Op. 05-1204 (February 15, 2006). Until now, however, NCUA has not permitted a CUSO to provide this service directly to members, based in part on the agency's longstanding view that clerical and managerial services authorized for CUSOs may only be performed on behalf of the FCU. Some public comments filed in response to the annual regulatory review proposed that NCUA authorize CUSOs to provide this service directly to members. As with the credit card discussion above, the Board believes this is a logical extension of the CUSO rule. Some CUSOs currently provide support to credit unions offering payroll services to their members by providing data processing support, which is already a preapproved CUSO activity. Payroll services are essentially the electronic movement of money through accounts. It is a very common ancillary service for business members and a key part of the business services package of services. Allowing CUSOs to offer this service directly to credit union members would be a better and much simpler model to implement and is a natural extension of the current pre-approved services. Additional Examples of Permissible Activities Within Approved Categories The CUSO rule sets out broad categories of permissible CUSO activities that are related to the routine daily operation of credit unions. 12 U.S.C. 1757(I); 12 CFR 712.5. Most of the broad categories have examples of specific activities that are permissible within the category. The specific activities are provided as illustrations of activities permissible under the particular category, and are not intended as an exclusive or exhaustive list. 12 CFR 712.5. From time to time, NCUA receives requests from FCUs and other interested parties to review and evaluate whether a particular activity falls within one or more of the approved categories. These determinations are usually made in legal opinion letters issued by NCUA's Office of General Counsel directly in response to the request. Although the opinion letters are posted on the agency website and are available for public review, the Board believes it is appropriate to amend the CUSO rule to include these examples in the rule, so that the agency's position has maximum exposure. In the recent past, NCUA has determined that a CUSO may provide for all aspects of a real estate settlement for mortgage loans the credit union grants to its members. Examples of permissible services include: arranging the title search; reviewing the title work; providing title insurance as an agent for the underwriter; and handling the settlement of the mortgage loan. The Office of General Counsel concluded these activities, although not specifically listed in the rule, fall within the preapproved categories of insurance brokerage services and loan support services and relate to the routine daily operations of credit unions. Accordingly, the Board proposes to amend the rule to include real estate settlement services as an example under each of these preapproved categories. NCUA's Office of General Counsel has also recently concluded the following activities are permissible examples of services that CUSOs may provide under one or more preapproved categories: ➢ Employee leasing services and support, permissible under professional and management services, § 712.5(b); ➢ Purchase and servicing of non-performing loans, permissible under loan support services, § 712.5(j); ➢ Business counseling and related services for credit union business members, permissible under professional and management services and financial counseling services, § 712.5(b), (f); ➢ Referral and processing of loan applications for members turned down by the credit union, permissible under loan support services, § 712.5(j). Accordingly, the Board proposes to amend the rule to include each of these services as representative examples of permissible services under the noted preapproved category. Loan Participations Part 712 specifically authorizes CUSOs to engage in consumer mortgage loan origination, member business loan origination, and student loan origination. 12 CFR 712.5(c), (d), (n). CUSOs are also recognized in NCUA's loan participations rule as a “credit union organization” authorized to engage in the purchase and sale of loan participations. 12 CFR 701.22(a)(4). The CUSO rule does not, however, specify that a CUSO may engage in the purchase or sale of participation interests in loans they are authorized to make. The Board is aware CUSOs are currently engaged in this practice and believes it is permissible. The Board proposes to conform the CUSO rule with the loan participation rule by clarifying the authority to originate a loan includes the authority to buy or sell a participation interest in that type of loan. As noted above, however, the NCUA's loan participation rule would not support the sale to FCUs of participation interests in a credit card portfolio, which consists of open-end, revolving credit. Request for Comments Although the Board is not proposing additional, specific regulatory changes to the CUSO rule at this time, the Board solicits comment on the issue of consolidated opinion audits for CUSOs that are majority owned by a single FCU. The CUSO rule currently requires an FCU to obtain a written commitment from any CUSO in which it has made an investment or to which it has made a loan that the CUSO will secure an annual opinion audit of its financial statements, performed in accordance with generally accepted auditing standards by a licensed, certified public accountant. 12 CFR 712.3(d)(2). In 2005, the Board amended this rule to allow an FCU owning 100% of a CUSO to comply with the audit requirement by conducting a consolidated audit in which the CUSO's financial data is included in the consolidated statement of financial condition. 70 FR 55227 (September 21, 2005). At that time, the Board considered and rejected the idea of permitting consolidated audits where the CUSO is majority owned, rather than wholly owned, by an FCU. Several commenters urged the Board to reconsider this approach, citing in support of their view the fact that consolidated audits for majority owned subsidiaries are permissible under generally accepted accounting principles. The Board's determination was based principally on concern for potential minority investors in a CUSO that is majority owned by one FCU, who might not be able to review a separate opinion audit before making an investment. The Board solicits comment from the public on whether to revise this rule to permit a majority owner to obtain only a consolidated audit and, if so, how the interests of minority investors can be protected. The Board believes these proposed changes are consistent with its ongoing efforts to reduce regulatory burden while assuring that credit unions operate in a safe and sound manner. The Board welcomes comment on all aspects of the proposal. Regulatory Procedures Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)requires NCUA to prepare an analysis to describe any significant economic impact any proposed regulation may have on a substantial number of small entities. NCUA considers credit unions having less than ten million dollars in assets to be small for purposes of RFA. Interpretive Ruling and Policy Statement
(IRPS)87-2 as amended by IRPS 03-2. The proposed changes to the CUSO rule impose minimal compliance obligations by requiring credit unions to comply with certain one-time regulatory requirements concerning agreements with CUSOs and maintenance of separate corporate identities. Of the 3,599 credit unions (FCUs and FISCUs) with assets of less than ten million dollars that filed a form 5300 call report with NCUA as of December 31, 2007, only 195 reported any interest in a CUSO. Since approximately only 5.5% of credit unions meeting the small credit union definition reported having any interest in CUSOs of any type, NCUA has determined and certifies that this proposed rule, if adopted, will not have a significant economic impact on a substantial number of small credit unions. Accordingly, the NCUA has determined that an RFA analysis is not required. Paperwork Reduction Act NCUA recognizes that the proposal to require FISCUs to comply with certain provisions of the CUSO rule constitutes an information collection within the meaning of the Paperwork Reduction Act (PRA). 44 U.S.C. 3507(d). The aspects of the proposed amendments that raise PRA issues include the requirement that a FISCU obtain a written agreement with its CUSO providing NCUA and the relevant SSA with access to the CUSO's books and records and the requirement that it take steps to assure that it maintains a corporate identity separate from its CUSO. NCUA estimates it will take an average of two hours for a credit union to implement an agreement with its CUSO regarding access to information, and an additional two hours to obtain a written legal opinion. All FISCUs with an investment in or loan to a CUSO will need to comply with these requirements as an initial matter; however, thereafter, the rule's impact will only be on those FISCUs that enter into a new arrangement with a CUSO. According to NCUA records, of the 3,065 FISCUs that filed a form 5300 call report with NCUA as of December 31, 2007, 1,044 reported at least one interest in a CUSO. These FISCUs reported a total CUSO count of 2,219. At year-end 2006, there were 3,173 FISCUs, of which 1,050 reported at least one interest in a CUSO. These FISCUs reported a total CUSO count of 2,183. For year-end 2005, there were 3,302 FISCUs, of which 1,017 reported at least one CUSO investment. These FISCUs reported a total CUSO count of 2,035. The three-year average suggests that, despite declining numbers of credit unions (due mainly to merger and consolidation activity), FISCUs make approximately 92 new investments in CUSOs each year. Using these estimates, information collection obligations imposed by the rule, on an annual basis, are analyzed below: Initial Compliance by All FISCUs *a. Written agreement relating to access to information.* Total FISCU investment interests reported in CUSOs, 12/31/2007: 2,219. Frequency of response: One-time. Initial hour burden: 2. 2 hours × 2,219 = 4,438. b. Written legal opinion. Number of respondents: 2,219. Frequency of response: One-time. Initial hour burden: 2. 2 hours × 2,219 = 4,438. Annual Compliance Obligations a. Written agreement relating to corporate separateness and access to information. Average number of new FISCU investment interests reported in CUSOs: 92. Frequency of response: annually. Annual hour burden: 2. 2 hours × 92 = 184. b. Written legal opinion. Number of respondents, i.e., requiring new or updated opinion per year: 92. Frequency of response: annually. Annual hour burden: 2. 2 hours × 92 = 184. Two other aspects of the proposal raise PRA issues. FCUs with an investment in or loan to a CUSO will need to revise the current agreement they have with their CUSO to provide for access to books and records by any SSA, if the CUSO also has a loan or investment from a FISCU or provides any contractual services to a FISCU. According to NCUA records, of the 5,036 FCUs that filed a form 5300 call report with NCUA as of December 31, 2007, 1,112 reported at least one interest in a CUSO; a total of 2,190 CUSO interests was reported. For purposes of this analysis, NCUA estimates that this requirement will affect one-half of all CUSOs owned by FCUs. Using these estimates, information collection obligations imposed by this aspect of the rule, on an annual basis, are analyzed below: Changing the Written Agreement Relating to Access to Information One-half of total FCU investment interests reported in CUSOs, 12/31/2007: 1,095. Frequency of response: One-time. Initial hour burden: 1. 1 hour × 1,095 = 1,095. The third aspect of the proposed changes that involves PRA consideration is the requirement pertaining to recapitalizing CUSOs that have become insolvent. The proposed rule would require certain credit unions to seek and obtain prior approval from NCUA before making an investment to recapitalize an insolvent CUSO. According to NCUA's records, as of December 31, 2007, there were only 36 FCUs that were less than adequately capitalized (i.e., net worth of under 6%). According to year-end 2007 call report data, none of these FCUs currently has any interest in any CUSOs. As of December 31, 2007, there were no FCUs at or near the less than adequately capitalized threshold reporting an investment in an insolvent CUSO. NCUA estimates it would take an FCU approximately two hours to complete a request for NCUA's prior approval for an investment to recapitalize an insolvent CUSO. Obtaining NCUA Prior Approval Total FCUs less than adequately Capitalized, 12/31/2007: 36. Frequency of response: One-time. Initial hour burden: 2. 2 hours × 36 = 72. In accordance with the requirements of the PRA, NCUA intends to obtain a modification of its current OMB Control Number, 3133-0149, to support these proposed changes. Simultaneous with its publication of this proposed amendment to Part 712, NCUA is submitting a copy of the proposed rule to the Office of Management and Budget
(OMB)along with an application for a modification of the OMB Control Number. The PRA and OMB regulations require that the public be provided an opportunity to comment on the paperwork requirements, including an agency's estimate of the burden of the paperwork requirements. The NCUA Board invites comment on:
(1)Whether the paperwork requirements are necessary;
(2)the accuracy of NCUA's estimates on the burden of the paperwork requirements;
(3)ways to enhance the quality, utility, and clarity of the paperwork requirements; and
(4)ways to minimize the burden of the paperwork requirements. Comments should be sent to: OMB Reports Management Branch, New Executive Office Building, Room 10202, Washington, DC 20503; Attention: Mark Menchik, Desk Officer for NCUA. Please send NCUA a copy of any comments submitted to OMB. Executive Order 13132 Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. The bulk of this proposed rule, if adopted, will apply only to federally-chartered credit unions. The proposal also calls for the application of certain aspects of the CUSO rule to state chartered, federally-insured credit unions. By law, these institutions are already subject to numerous provisions of NCUA's rules, based on the agency's role as the insurer of member share accounts and the significant interest NCUA has in the safety and soundness of their operations. In any event, the proposed rule will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. NCUA has determined that this proposal does not constitute a policy that has federalism implications for purposes of the executive order. The Treasury and General Government Appropriations Act, 1999—Assessment of Federal Regulations and Policies on Families The NCUA has determined that this proposed rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 (1998). Agency Regulatory Goal NCUA's goal is to promulgate clear and understandable regulations that impose minimal regulatory burden. We request your comments on whether the proposed rule is understandable and minimally intrusive if implemented as proposed. List of Subjects in 12 CFR Part 712 Administrative practices and procedure, Credit, Credit unions, Investments, Reporting and record keeping requirements. By the National Credit Union Administration Board on April 17, 2008. Mary F. Rupp, Secretary of the Board. Accordingly, NCUA proposes to amend 12 CFR parts 712 and 741 as follows: PART 712—CREDIT UNION SERVICE ORGANIZATIONS (CUSOs) 1. The authority citation for part 712 continues to read as follows: Authority: 12 U.S.C. 1756, 1757(5)(D), and (7)(I), 1766, 1782, 1784, 1785 and 1786. 2. Amend § 712.1 by revising the last sentence to read as follows: § 712.1 What does this part cover? * * * Sections 712.3(d)(3) and 712.4 of this part apply to state-chartered credit unions and their subsidiaries, as provided in § 741.222 of this chapter. 3. Amend § 712.2 by adding a new paragraph (d)(3) to read as follows: § 712.2 How much can an FCU invest in or loan to CUSOs, and what parties may participate?
(d)* * *
(3)*Special rule in the case of less than adequately capitalized FCUs.* This rule applies in the case of either an FCU that is currently less than adequately capitalized, as determined under part 702, or where the making of an investment in a CUSO would render the FCU less than adequately capitalized under part 702. Before making an investment in a CUSO, the FCU must obtain prior written approval from the appropriate NCUA regional office if the making of the investment would result in an aggregate cash outlay, measured on a cumulative basis (regardless of how the investment is valued for accounting purposes) in an amount in excess of one percent of the credit union's paid in and unimpaired capital and surplus. § 712.3 [Amended] 4. Amend § 712.3 as follows: a. Amend paragraph
(b)by deleting the period at the end of the sentence and adding the phrase “; *provided, however* , that with respect to services provided under paragraph
(a)and
(g)of § 712.5, this requirement is met if the CUSO primarily provides such services to persons who are eligible for membership in the FCU or are eligible for membership in credit unions contracting with the CUSO.” in its place. b. Revise paragraph (d)(3) to read as follows: § 712.3 What are the characteristics of and what requirements apply to CUSOs?
(d)* * * (3)(i) Provide NCUA, its representatives, and the state credit union regulatory authority having jurisdiction over any federally insured, state-chartered credit union with an outstanding loan to, investment in or contractual agreement for products or services with the CUSO with complete access to any books and records of the CUSO and the ability to review CUSO internal controls, as deemed necessary by NCUA or the state credit union regulatory authority in carrying out their respective responsibilities under the Act and the relevant state credit union statute.
(ii)The effective date for compliance with this section is [INSERT DATE THAT IS 180 DAYS FOLLOWING PUBLICATION OF THE FINAL RULE IN THE **Federal Register** ]. 5. Amend § 712.5 as follows: a. Add a new paragraph (b)(11); b. Amend paragraph
(c)by deleting the semicolon at the end of the sentence and replacing it with the phrase: “, including the authority to buy and sell participation interests in such loans;” c. Amend paragraph
(d)by deleting the semicolon at the end of the sentence and replacing it with the phrase: “, including the authority to buy and sell participation interests in such loans;” d. Redesignate paragraphs
(e)through
(r)as paragraphs
(g)through (t), respectively, and add new paragraphs
(e)and (f). e. Under the newly redesignated paragraphs (h),
(j)and
(l)add new paragraphs (h)(7), (j)(4), and (l)(4) through (l)(6); f. Amend the newly redesignated paragraph
(p)by deleting the semicolon at the end of the sentence and replacing it with the phrase: “, including the authority to buy and sell participation interests in such loans;” The revisions read as follows: § 712.5 What activities and services are preapproved for CUSOs?
(b)* * *
(11)Employee leasing services
(e)Credit card loan origination;
(f)Payroll processing services;
(h)* * *
(7)Business counseling and consultant services;
(j)* * *
(4)Real estate settlement services;
(l)* * *
(4)Real estate settlement services;
(5)Purchase and servicing of non-performing loans; and
(6)Referral and processing of loan applications for members whose loan applications have been turned down by the credit union; § 712.7 [Removed and Reserved] 6. Remove and reserve § 712.7. PART 741—REQUIREMENTS FOR INSURANCE 1. The authority citation for part 741 continues to read as follows: Authority: 12 U.S.C. 1757, 1766, 1781-1790, and 1790d. 2. Add a new § 741.222 to read as follows: § 741.222 Credit Union Service Organizations.
(a)Any credit union that is insured pursuant to Title II of the Act must adhere to the requirements in § 712.3(d)(3) and § 712.4 of this chapter concerning agreements between credit unions and their credit union service organizations (CUSOs) and the requirement to maintain separate corporate identities. For purposes of this section, a CUSO is any entity in which a credit union has an ownership interest or to which a credit union has extended a loan and that is engaged primarily in providing products or services to credit unions or credit union members, or, in the case of checking and currency services, including check cashing services, sale of negotiable checks, money orders, and electronic transaction services, including international and domestic electronic fund transfers, to persons eligible for membership in any credit union having a loan, investment or contract with the entity.
(b)This section shall have no preemptive effect with respect to the laws or rules of any state providing for access to CUSO books and records or CUSO examination by credit union regulatory authorities.
(c)The effective date for compliance with this section is [INSERT DATE THAT IS 180 DAYS FOLLOWING PUBLICATION OF THE FINAL RULE IN THE **FEDERAL REGISTER** ]. [FR Doc. E8-9457 Filed 4-30-08; 8:45 am] BILLING CODE 7535-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0492; Directorate Identifier 2008-CE-023-AD] RIN 2120-AA64 Airworthiness Directives; Hawker Beechcraft Corporation Model 390 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for certain Hawker Beechcraft Corporation
(HBC)Model 390 airplanes. This proposed AD would require you to remove the current preformed packing, elbow fitting, and jam nut from the left and right hydraulic pump pressure output port and replace with new parts. This proposed AD would also require you to install a hydraulic pump case drain check valve. This proposed AD results from nine occurrences of hydraulic fluid leaking from the engine hydraulic pump output fitting as a result of an improperly installed elbow connecting the output port to the pulse dampener hose. We are proposing this AD to prevent hydraulic fluid leaks from the left and right hydraulic fluid pump and to prevent the flow of hydraulic fluid into the engine compartment. The loss of hydraulic fluid can result in loss of airplane hydraulic system pressure and the consequent loss of hydraulic system functions including gear extension/retraction, spoiler functions, and anti-skid braking system actuation. The inability of the hydraulic installation to isolate flow of hydraulic fluid could result in a hazardous amount of flammable fluid in the corresponding engine compartment. These conditions, if not corrected, could result in loss of system functions and/or fire in the engine compartment. DATES: We must receive comments on this proposed AD by June 30, 2008. ADDRESSES: Use one of the following addresses to comment on this proposed AD: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:*
(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this proposed AD, contact Hawker Beechcraft Corporation, 9709 East Central, Wichita, Kansas 67201; telephone:
(316)676-5034; fax:
(316)676-6614. FOR FURTHER INFORMATION CONTACT: Anthony Flores, Aerospace Engineer, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone:
(316)946-4174; fax:
(316)946-4107. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number, “FAA-2008-0492; Directorate Identifier 2008-CE-023-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive concerning this proposed AD. Discussion We have received information of nine occurrences of hydraulic fluid leaking from the engine hydraulic pump output fitting on HBC Model 390 airplanes. During installation of the elbow fitting, the preformed packing was installed on the fitting threads, which caused the fitting threads to damage the preformed packing when the fitting was tightened. The loss of hydraulic fluid can result in loss of airplane hydraulic system pressure and the consequent loss of hydraulic system functions including gear extension/retraction, spoiler functions, and anti-skid braking system actuation. The current hydraulic system installation lacks the means of shutting off the flow of hydraulic fluid between the left and right engine hydraulic pump case drain return lines. The installation of check valves would allow flow from the hydraulic pump case drain to the reservoir and prevent flow back through the hydraulic pump case drain lines. This installation would reduce the volume of hydraulic fluid loss into the engine compartment in the event of a leak in the left or right engine hydraulic system. The inability of the hydraulic installation to isolate flow of hydraulic fluid could result in a hazardous amount of flammable fluid in the corresponding engine compartment. These conditions, if not corrected, could result in loss of system functions and/or fire in the engine compartment. Relevant Service Information We have reviewed Hawker Beechcraft Mandatory Service Bulletin SB 29-3869, dated January 2008; and Hawker Beechcraft Mandatory Service Bulletin SB 29-3851, dated January 2008. The service information describes procedures for: • Removing the current preformed packing, elbow fitting, and jam nut from the left and right hydraulic pump pressure output port and replacing with new parts; and • Installing a hydraulic pump case drain check valve. FAA's Determination and Requirements of the Proposed AD We are proposing this AD because we evaluated all information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design. This proposed AD would require you to remove the current preformed packing, elbow fitting, and jam nut from the left and right hydraulic pump pressure output port and replace with new parts. This proposed AD would also require you to install a hydraulic pump case drain check valve. Costs of Compliance We estimate that this proposed AD would affect 182 airplanes in the U.S. registry. We estimate the following costs to do the proposed modifications: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators Hydraulic pressure output fitting assembly: 8 work-hours × $80 per hour = $640 $100 $740 $134,680 Hydraulic Pump Case Drain Check Valve: 16 work-hours × $80 per hour = $1,280 4,353 5,633 1,025,206 HBC will provide warranty credit as specified in Hawker Beechcraft Mandatory Service Bulletin SB 29-3869, dated January 2008; and Hawker Beechcraft Mandatory Service Bulletin SB 29-3851, dated January 2008. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at *http://www.regulations.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone
(800)647-5527) is located at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Hawker Beechcraft Corporation:** Docket No. FAA-2008-0492; Directorate Identifier 2008-CE-023-AD. Comments Due Date
(a)We must receive comments on this airworthiness directive
(AD)action by June 30, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Model 390 airplanes, serial numbers RB-4 through RB-224, that are certificated in any category. Unsafe Condition
(d)This AD results from nine occurrences of hydraulic fluid leaking from the engine hydraulic pump output fitting as a result of an improperly installed elbow connecting the output port to the pulse dampener hose. We are issuing this AD to prevent hydraulic fluid leaking from the left and right hydraulic fluid pump and to prevent the flow of hydraulic fluid into the engine compartment. The loss of hydraulic fluid can result in loss of airplane hydraulic system pressure and the consequent loss of hydraulic system functions including gear extension/retraction, spoiler functions, and anti-skid braking system actuation. The inability of the hydraulic installation to isolate flow of hydraulic fluid could result in a hazardous amount of flammable fluid in the corresponding engine compartment. These conditions, if not corrected, could result in loss of system functions and/or fire in the engine compartment. Compliance
(e)To address this problem, you must do the following, unless already done: Actions Compliance Procedures
(1)Remove current preformed packing (part number (P/N) MS28778-6), elbow fitting (P/N MS21908J6), and jam nut (P/N AN924-6J) from the left and right hydraulic pump pressure output port and install new preformed packing (P/N MS28778-6), union (P/N MS21902J6), and swivel fitting (P/N NAS1762J0606) in the left and right hydraulic pressure pump output port Within the next 200 hours time-in-service
(TIS)after the effective date of this AD or within the next 6 months after the effective date of this AD, whichever occurs first Follow Hawker Beechcraft Mandatory Service Bulletin SB 29-3869, dated January 2008.
(2)Install hydraulic pump case drain check valve Kit No. 390-5803-0001 Within the next 200 hours TIS after the effective date of this AD or within the next 6 months after the effective date of this AD, whichever occurs first Hawker Beechcraft Mandatory Service Bulletin SB 29-3851, dated January 2008. Alternative Methods of Compliance (AMOCs)
(f)The Manager, Wichita Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Anthony Flores, Aerospace Engineer, Wichita ACO, 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone:
(316)946-4174; fax:
(316)946-4107. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Related Information
(g)To get copies of the service information referenced in this AD, contact Hawker Beechcraft Corporation, 9709 East Central, Wichita, Kansas 67201; telephone:
(316)676-5034; fax:
(316)676-6614. To view the AD docket, go to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, or on the Internet at *http://www.regulations.gov.* Issued in Kansas City, Missouri, on April 24, 2008. James E. Jackson, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-9566 Filed 4-30-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0178; Directorate Identifier 2007-NM-366-AD] RIN 2120-AA64 Airworthiness Directives; Bombardier Model DHC-8-400 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Supplemental notice of proposed rulemaking (NPRM); reopening of comment period. SUMMARY: We are revising an earlier NPRM for the products listed above. This action revises the earlier NPRM by expanding the scope. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Bombardier Aerospace has completed a system safety review of the aircraft fuel system against fuel tank safety standards * * *. [A]ssessment showed that supplemental maintenance tasks [inspections of various fuel system components such as shields, harnesses, sleeves, and sealant] are required to prevent potential ignition sources inside the fuel system, which could result in a fuel tank explosion. * * * The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by May 21, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:*
(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Rocco Viselli, Aerospace Engineer, Airframe and Propulsion Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone
(516)228-7331; fax
(516)794-5531. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0178; Directorate Identifier 2007-NM-366-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion We proposed to amend 14 CFR part 39 with an earlier NPRM for the specified products, which was published in the **Federal Register** on February 19, 2008 (73 FR 9053). That earlier NPRM proposed to require actions intended to address the unsafe condition for the products listed above. Since that earlier NPRM was issued, we have determined that the initial compliance times for doing the tasks specified in paragraph (f)(1) of the earlier NPRM must be reduced. That earlier NPRM resulted from Canadian Airworthiness Directive CF-2007-33, dated December 17, 2007 (referred to after this as “the MCAI”). The MCAI does not provide an initial compliance time for doing the tasks. In the earlier NPRM, we proposed an initial compliance time that started from the effective date of the AD; or the date of issuance of the original Canadian standard airworthiness certificate or the date of issuance of the original Canadian export certificate of airworthiness; whichever occurs later. Although unstated in the MCAI, we have determined that the intent of the MCAI is for the initial compliance time to start from the initial delivery date of the airplane in order to address the identified unsafe condition in a timely manner. We have also revised the initial compliance times for clarity by providing a threshold and grace period for the tasks. We have revised paragraphs (f)(1)(i) and (f)(1)(ii) of this supplemental NPRM accordingly. You may obtain further information by examining the MCAI in the AD docket. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Certain changes described above expand the scope of the earlier NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this proposed AD. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a **Note** within the AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 38 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $3,040, or $80 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Bombardier, Inc. (Formerly de Havilland, Inc.):** Docket No. FAA-2008-0178; Directorate Identifier 2007-NM-366-AD. Effective Date
(a)We must receive comments by May 21, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to all Bombardier Model DHC-8-400, DHC-8-401, and DHC-8-402 airplanes, certificated in any category, all serial numbers. Note 1: This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph
(g)of this AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane. Subject
(d)Air Transport Association
(ATA)of America Code 28: Fuel. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: Bombardier Aerospace has completed a system safety review of the aircraft fuel system against fuel tank standards introduced in Chapter 525 of the Airworthiness Manual through Notice of Proposed Amendment
(NPA)2002-043. The identified non-compliances were then assessed using Transport Canada Policy Letter No. 525-001, to determine if mandatory corrective action is required. The assessment showed that supplemental maintenance tasks [inspections of various fuel system components such as shields, harnesses, sleeves, and sealant] are required to prevent potential ignition sources inside the fuel system, which could result in a fuel tank explosion. Revision has been made to Part 2 “Airworthiness Limitation Items” of the DHC-8-400 Maintenance Requirements Manual to introduce the required maintenance tasks. The corrective action is revising the Airworthiness Limitations Section of the Instructions for Continued Airworthiness to incorporate new limitations for fuel tank systems. Actions and Compliance
(f)Unless already done, do the following actions.
(1)Within 60 days after the effective date of this AD, or before December 16, 2008, whichever occurs first, revise the ALS of the Instructions for Continued Airworthiness to incorporate the inspection requirements of Bombardier Temporary Revision ALI-69, dated February 9, 2007, to Section 4, “Fuel System Limitations,” of Part 2, “Airworthiness Limitations Items,” of the Bombardier Dash 8 Q400 Maintenance Requirements Manual, Product Support Manual
(PSM)1-84-7 (“the TR to the MRM”). For all fuel system limitations tasks contained in the TR to the MRM, the initial compliance times start at the later of the “Threshold” and “Grace Period” times specified in Table 1 of this AD, and the repetitive inspections must be accomplished thereafter at the interval specified in the TR to the MRM, except as provided by paragraphs (f)(2) and (g)(1) of this AD. Table 1.—Initial Compliance Times for Limitation Tasks Description Compliance time (whichever occurs later) Threshold Grace period Tasks with 18,000 flight hours/108 month inspection intervals Before the accumulation of 18,000 total flight hours, or within 108 months since new, whichever occurs first Within 6,000 flight hours or 36 months after the effective date of this AD, whichever occurs first. Note 2: The actions required by paragraph (f)(1) of this AD may be done by inserting a copy of Bombardier TR ALI-69 into the Airworthiness Limitations section of the Dash 8 Q400 MRM 1-84-7. When this TR has been included in general revisions of the MRM, the general revisions may be inserted in the PSM, provided the relevant information in the general revision is identical to that in Bombardier TR ALI-69.
(2)After accomplishing the actions specified in paragraph (f)(1) of this AD, no alternative inspections or inspection intervals may be used unless the inspections or inspection intervals are part of a later revision of Bombardier Dash 8 Q400 MRM, PSM 1-84-7, Revision 4, dated October 30, 2003, that is approved by the Manager, New York Aircraft Certification Office (ACO), FAA, or Transport Canada Civil Aviation
(TCCA)(or its delegated agent); or unless the inspections or inspection intervals are approved as an alternative method of compliance
(AMOC)in accordance with the procedures specified in paragraph (g)(1) of this AD. FAA AD Differences Note 3: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, New York ACO, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Rocco Viselli, Aerospace Engineer, Airframe and Propulsion Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone
(516)228-7331; fax
(516)794-5531. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI Canadian Airworthiness Directive CF-2007-33, dated December 17, 2007; and Bombardier Temporary Revision ALI-69, dated February 9, 2007, to Section 4, “Fuel System Limitations,” of Part 2, “Airworthiness Limitations Items” of the Bombardier Dash 8 Q400 MRM PSM 1-84-7. Issued in Renton, Washington, on April 24, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-9577 Filed 4-30-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0493; Directorate Identifier 2008-CE-028-AD] RIN 2120-AA64 Airworthiness Directives; Pilatus Aircraft Ltd. PC-6 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: This Airworthiness Directive
(AD)is prompted due to a potential problem with the tail landing gear locking mechanism of PC-6 series aircraft. Investigation, carried out after an incident report, determined that both screws of the tail-wheel locking mechanism had ruptured, rendering the mechanism inoperative. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by June 2, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:*
(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4059; fax:
(816)329-4090. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0493; Directorate Identifier 2008-CE-028-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued AD No. 2008-0070, dated April 15, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: This Airworthiness Directive
(AD)is prompted due to a potential problem with the tail landing gear locking mechanism of PC-6 series aircraft. Investigation, carried out after an incident report, determined that both screws of the tail-wheel locking mechanism had ruptured, rendering the mechanism inoperative. In order to address this situation, the present AD requires you replace the two bolts of the tail-wheel locking mechanism with new ones, having higher shear strength, and install a warning placard on the tail-wheel mudguard. The actions specified by this AD are intended to prevent, on take-off or landing runs, possible hazards associated with loss of directional control. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Pilatus Aircraft Ltd. has issued Pilatus PC-6 Service Bulletin 32-001, dated August 8, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of the Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This Proposed AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance We estimate that this proposed AD will affect 50 products of U.S. registry. We also estimate that it would take about 3 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $120 per product. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $18,000, or $360 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Pilatus Aircraft Ltd.:** Docket No. FAA-2008-0493; Directorate Identifier 2008-CE-028-AD. Comments Due Date
(a)We must receive comments by June 2, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Models PC-6, PC-6-H1, PC-6-H2, PC-6/350, PC-6/350-H1, PC-6/350-H2, PC-6/A, PC-6/A-H1, PC-6/A-H2, PC-6/B-H2, PC-6/B1-H2, PC-6/B2-H2, PC-6/B2-H4, PC-6/C-H2, and PC-6/C1-H2 airplanes, all serial numbers, certificated in any category. Note 1: These airplanes may also be identified as Fairchild Republic Company PC-6 airplanes, Fairchild Heli Porter PC-6 airplanes, or Fairchild-Hiller Corporation PC-6 airplanes. Subject
(d)Air Transport Association of America
(ATA)Code 32: Landing Gear. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: This Airworthiness Directive
(AD)is prompted due to a potential problem with the tail landing gear locking mechanism of PC-6 series aircraft. Investigation, carried out after an incident report, determined that both screws of the tail-wheel locking mechanism had ruptured, rendering the mechanism inoperative. In order to address this situation, the present AD requires you replace the two bolts of the tail-wheel locking mechanism with new ones, having higher shear strength, and install a warning placard on the tail-wheel mudguard. The actions specified by this AD are intended to prevent, on take-off or landing runs, possible hazards associated with loss of directional control. Actions and Compliance
(f)Unless already done, do the following actions:
(1)Within the next 100 hours time-in-service after the effective date of this AD or within the next 12 months after the effective date of this AD, whichever occurs first:
(i)Replace the screws and nuts that attach the locking plate to the locking lever of the tail-wheel locking mechanism with steel screws and nuts following Pilatus Aircraft Ltd. Pilatus PC-6 Service Bulletin, 32-001, dated August 8, 2006.
(ii)Install the placard on the tail-wheel mudguard following Pilatus Aircraft Ltd. Pilatus PC-6 Service Bulletin, 32-001, dated August 8, 2006.
(2)As of the effective date of this AD do not install on any of the affected airplanes locking lever assemblies part number (P/N) 6403.0094.00 or P/N 114.45.06.077 or tail landing gear assemblies P/N 6403.0067.xx or P/N 114.45.06.050 unless they have been modified following the Accomplishment Instructions of Pilatus Aircraft Ltd. Pilatus PC-6 Service Bulletin, 32-001, dated August 8, 2006. Note 2: The letter “x” in P/N 6403.0067.xx stands for a numeral varying from 0 to 9. FAA AD Differences Note 3: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, Standards Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4059; fax:
(816)329-4090. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ), the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI European Aviation Safety Agency (EASA), AD No. 2008-0070, dated April 15, 2008; and Pilatus Aircraft Ltd. Pilatus PC-6 Service Bulletin 32-001, dated August 8, 2006, for related information. Issued in Kansas City, Missouri, on April 24, 2008. James E. Jackson, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-9589 Filed 4-30-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0179; Directorate Identifier 2007-NM-367-AD] RIN 2120-AA64 Airworthiness Directives; Bombardier Model DHC-8-102, DHC-8-103, DHC-8-106, DHC-201, DHC-8-202, DHC-8-301, DHC-8-311, and DHC-8-315 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Supplemental notice of proposed rulemaking (NPRM); reopening of comment period. SUMMARY: We are revising an earlier NPRM for the products listed above. This action revises the earlier NPRM by expanding the scope. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Bombardier Aerospace has completed a system safety review of the aircraft fuel system against fuel tank safety standards * * *. [A]ssessment showed that supplemental maintenance tasks [inspections of fuel tank bonding jumpers, wiring harnesses, and drain valve components, among other items and actions; and applicable corrective actions] are required to prevent potential ignition sources inside the fuel system, which could result in a fuel tank explosion. * * * The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by May 21, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:*
(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Rocco Viselli, Aerospace Engineer, Airframe and Propulsion Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone
(516)228-7331; fax
(516)794-5531. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0179; Directorate Identifier 2007-NM-367-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion We proposed to amend 14 CFR part 39 with an earlier NPRM for the specified products, which was published in the **Federal Register** on February 19, 2008 (73 FR 9055). That earlier NPRM proposed to require actions intended to address the unsafe condition for the products listed above. Since that earlier NPRM was issued, we have determined that for certain airplanes the initial compliance times for doing the tasks specified in paragraph (f)(1) of the earlier NPRM must be reduced. That earlier NPRM resulted from Canadian Airworthiness Directive CF-2007-32, dated December 17, 2007 (referred to after this as “the MCAI”). The MCAI does not provide an initial compliance time for doing the tasks for certain airplanes. For those airplanes, in the earlier NPRM we proposed an initial compliance time that started from the effective date of the AD; or the date of issuance of the original Canadian standard airworthiness certificate or the date of issuance of the original Canadian export certificate of airworthiness; whichever occurs later. Although unstated in the MCAI, we have determined that the intent of the MCAI is for the initial compliance time to start from the initial delivery date of the airplane in order to address the identified unsafe condition in a timely manner. We have also revised the initial compliance times for clarity by providing a threshold and grace period for each task. We have revised this supplemental NPRM by adding Table 2 to specify the initial compliance times for each task. You may obtain further information by examining the MCAI in the AD docket. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Certain changes described above expand the scope of the earlier NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this proposed AD. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 122 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $9,760, or $80 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Bombardier, Inc. (Formerly de Havilland, Inc.)** : Docket No. FAA-2008-0179; Directorate Identifier 2007-NM-367-AD. Effective Date
(a)We must receive comments by May 21, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to all Bombardier Model DHC-8-102, DHC-8-103, DHC-8-106, DHC-201, DHC-8-202, DHC-8-301, DHC-8-311, and DHC-8-315 airplanes, certificated in any category, all serial numbers. Note 1: This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph
(g)of this AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane. Subject
(d)Air Transport Association
(ATA)of America Code 28: Fuel. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: Bombardier Aerospace has completed a system safety review of the aircraft fuel system against fuel tank standards introduced in Chapter 525 of the Airworthiness Manual through Notice of Proposed Amendment
(NPA)2002-043. The identified non-compliances were then assessed using Transport Canada Policy Letter No. 525-001, to determine if mandatory corrective action is required. The assessment showed that supplemental maintenance tasks [inspections of fuel tank bonding jumpers, wiring harnesses, and drain valve components, among other items and actions; and applicable corrective actions] are required to prevent potential ignition sources inside the fuel system, which could result in a fuel tank explosion. Revisions have been made to Part 2 “Airworthiness Limitations List” of the DHC-8 Maintenance Program Manuals to introduce the required maintenance tasks. The corrective action is revising the Airworthiness Limitations Section of the Instructions for Continued Airworthiness to incorporate new limitations for fuel tank systems. Actions and Compliance
(f)Unless already done, do the following actions.
(1)Within 60 days after the effective date of this AD, or before December 16, 2008, whichever occurs first, revise the Airworthiness Limitations Section
(ALS)of the Instructions for Continued Airworthiness to incorporate the fuel system limitations tasks identified in the de Havilland temporary revisions
(TRs)to Part 2 “Airworthiness Limitations List” of the Dash 8 Series Maintenance Program Manuals (“the MPMs”). The TRs are listed in Table 1 of this AD. For the tasks identified in the TRs, the initial compliance times start at the later of the applicable “Threshold” and “Grace Period” times specified in Table 2 of this AD, and the repetitive limitation tasks must be accomplished thereafter at the interval specified in the TRs to the MPM, except as provided by paragraphs (f)(2), (f)(3), (f)(4), and (g)(1) of this AD. Table 1.—Temporary Revisions Model de Havilland TR MPM DHC-8-102, DHC-8-103, and DHC-8-106 airplanes AWL-110, dated August 31, 2007 Dash 8 Series 100 MPM, Product Support Manual
(PSM)1-8-7, Part 2, “Airworthiness Limitations List”. DHC-8-201, and DHC-8-202 airplanes AWL 2-43, dated August 31, 2007 Dash 8 Series 200 MPM, PSM 1-82-7, Part 2, “Airworthiness Limitations List”. DHC-8-301, DHC-8-311, and DHC-8-315 airplanes AWL 3-109, dated August 31, 2007 Dash 8 Series 300 MPM, PSM 1-83-7, Part 2, “Airworthiness Limitations List”. Table 2.—Initial Inspections Description Compliance time (whichever occurs later) Threshold Grace period Tasks with 6,000 flight hours/36 month intervals Before the accumulation of 6,000 total flight hours, or within 36 months since new, whichever occurs first Within 2,000 flight hours or 12 months after the effective date of this AD, whichever occurs first. Tasks with 18,000 flight hours/108 month intervals Before the accumulation of 18,000 total flight hours, or within 108 months since new, whichever occurs first Within 6,000 flight hours or 36 months after the effective date of this AD, whichever occurs first. Tasks with 72,000 flight hours/36 year intervals Before the accumulation of 72,000 total flight hours, or within 36 years since new, whichever occurs first Within 600 flight hours or 3 months after the effective date of this AD, whichever occurs first. Note 2: The actions required by paragraph (f)(1) of this AD may be done by inserting a copy of the applicable TR listed in Table 1 of this AD into the Airworthiness Limitations section of the applicable MPM listed in Table 1 of this AD. When the applicable TR has been included in general revisions of the applicable MPM, the general revisions may be inserted in the MPM, provided the relevant information in the general revision is identical to that in the applicable TR.
(2)For those tasks with 6,000 flight hours/36 month limitation task intervals: For airplanes that have accumulated 4,000 total flight hours or more, or 24 months or more since new, as of the effective date of this AD, do the initial limitation tasks within 2,000 flight hours or 12 months after the effective date of this AD, whichever occurs first. Thereafter, repeat the limitation tasks at intervals not to exceed 6,000 flight hours or 36 months, whichever occurs first.
(3)For those tasks with 18,000 flight hours/108 month limitation task intervals: For airplanes that have accumulated 12,000 total flight hours or more, or 72 months or more since new, as of the effective date of this AD, do the initial limitation tasks within 6,000 flight hours or 36 months after the effective date of this AD, whichever occurs first. Thereafter, repeat the limitation tasks at intervals not to exceed 18,000 flight hours or 108 months, whichever occurs first.
(4)After accomplishing the actions specified in paragraphs (f)(1), (f)(2), and (f)(3) of this AD, no alternative inspections/limitation tasks or inspection/limitation task intervals may be used unless the inspections/limitation tasks or inspection/limitation task intervals are part of a later revision of Part 2 “Airworthiness Limitations List” of the applicable de Havilland Dash 8 Series MPM listed in Table 3 of this AD, that is approved by the Manager, New York Aircraft Certification Office (ACO), FAA, or the Transport Canada Civil Aviation
(TCCA)(or its delegated agent); or unless inspections/limitation tasks or inspection/limitation task intervals are approved as an alternative method of compliance
(AMOC)in accordance with the procedures specified in paragraph (g)(1) of this AD. Table 3.—Maintenance Program Manuals Model MPM DHC-8-102, DHC-8-103, and DHC-8-106 airplanes Dash 8 Series 100 MPM, PSM 1-8-7, Part 2, “Airworthiness Limitations List,” Revision 17, dated April 19, 2005. DHC-8-201, and DHC-8-202 airplanes Dash 8 Series 200 MPM, PSM 1-82-7, Part 2, “Airworthiness Limitations List,” Revision 5, dated August 15, 2001. DHC-8-301, DHC-8-311, and DHC-8-315 airplanes Dash 8 Series 300 MPM, PSM 1-83-7, Part 2, “Airworthiness Limitations List,” Revision 16, dated August 15, 2001. FAA AD Differences Note 3: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, New York ACO, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Rocco Viselli, Aerospace Engineer, Airframe and Propulsion Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone
(516)228-7331; fax
(516)794-5531. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI Canadian Airworthiness Directive CF-2007-32, dated December 17, 2007, and the temporary revisions listed in Table 1 of this AD. Issued in Renton, Washington, on April 24, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-9575 Filed 4-30-08; 8:45 am] BILLING CODE 4910-13-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2008-0183; FRL-8561-1] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Section 110(a)(1) 8-Hour Ozone Maintenance Plan and 2002 Base-Year Inventory for the Warren County Area AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a State Implementation Plan
(SIP)revision submitted by the Commonwealth of Pennsylvania. The Pennsylvania Department of Environmental Protection (PADEP) submitted a SIP revision consisting of a maintenance plan that provides for continued attainment of the 8-hour ozone national ambient air quality standard (NAAQS) for at least 10 years after the April 30, 2004 designations, as well as, a 2002 base-year inventory for the Warren County Area. EPA is proposing approval of the maintenance plan and the 2002 base-year inventory in accordance with the requirements of the Clean Air Act (CAA). DATES: Written comments must be received on or before June 2, 2008. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2008-0183 by one of the following methods: A. *http://www.regulations.gov.* Follow the on-line instructions for submitting comments. *B. E-mail:* *fernandez.cristina@epa.gov* C. *Mail:* EPA-R03-OAR-2008-0183, Cristina Fernandez, Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket(s normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2008-0183. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an (anonymous access( system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at Pennsylvania Department of Environmental Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105. FOR FURTHER INFORMATION CONTACT: Gregory Becoat,
(215)814-2036, or by e-mail at *becoat.gregory@epa.gov.* SUPPLEMENTARY INFORMATION: On December 17, 2007, PADEP formally submitted for approval, under section 110(a)(1) of the CAA, a SIP revision for the 8-hour ozone maintenance plan and the 2002 base-year inventory for the Warren County Area. I. Background Section 110(a)(1) of the CAA requires that states submit to EPA plans to maintain the NAAQS promulgated by EPA. EPA interprets this provision to require that areas that were maintenance areas for the 1-hour ozone NAAQS, but attainment for the 8-hour ozone NAAQS, submit a plan to demonstrate the continued maintenance of the 8-hour ozone NAAQS. On May 20, 2005, EPA issued guidance that applies to areas that are designated unclassifiable/attainment for the 8-hour ozone standard. The purpose of this guidance is to address the maintenance requirements in section 110(a)(1) of the CAA, and to assist the states in the development of a SIP. The components from EPA's guidance include:
(1)An attainment emissions inventory, which is based on actual “typical summer day” emissions of volatile organic compounds
(VOCs)and nitrogen oxides (NO <sup>X</sup> ) for a 10-year maintenance period, from a base-year chosen by the state;
(2)a maintenance demonstration, which demonstrates how the area will remain in compliance with the 8-hour ozone standard for a period of 10 years following the effective date of designation unclassifiable/attainment (June 15, 2004);
(3)an ambient air monitoring network, which will be in continuous operation in accordance with 40 CFR Part 58 to verify maintenance of the 8-hour ozone standard;
(4)a contingency plan, that will ensure that in the event of a violation of the 8-hour ozone NAAQS, measures will be implemented as promptly as possible;
(5)a verification of continued attainment, indicating how the state intends on tracking the progress of the maintenance plan. II. Summary of SIP Revision The Commonwealth of Pennsylvania has requested approval of its 8-hour ozone maintenance plan and 2002 base-year inventory for the Warren County Area. The PADEP 8-hour ozone maintenance plan addresses the five components of EPA's May 20, 2005 guidance, which pertains to the maintenance requirements in section 110(a)(1) of the CAA. *Attainment Emission Inventory:* An attainment emissions inventory includes emissions during the time period associated with the monitoring data showing attainment. PADEP has provided an emissions inventory for VOCs and NO <sup>X</sup> , using 2002 as the base-year from which to project emissions. The 2002 inventory is consistent with EPA guidance, is based on actual “typical summer day” emissions of VOCs and NO <sup>X</sup> , and consists of a list of sources and their associated emissions. PADEP prepared comprehensive VOCs and NO <sup>X</sup> emissions inventories for the Warren County Area. In the maintenance plan, PADEP included information on the man-made sources of ozone precursors, VOCs and NO <sup>X</sup> (e.g., “stationary sources,” “stationary area sources,” “highway vehicles,” and “nonroad sources”). Pennsylvania projected emissions for beyond 10 years from the effective date of the April 30, 2004 designations for the 8-hour ozone standard. PADEP has developed an emissions inventory for ozone precursors for the year 2002, 2009, and 2018. Tables 1 and 2 show the VOCs and NO <sup>X</sup> emissions reduction summary for 2002, 2009, and 2018. Table 1.—VOC Emissions Summary: 2002, 2009 and 2018 [Tons per summer day] Major source category 2002 2009 2018 Stationary Point Sources 1.56 0.92 1.10 Stationary Area Sources 2.71 2.47 2.55 Highway Vehicles 2.62 1.23 0.70 Nonroad Sources 2.62 2.02 1.29 Total 9.51 6.64 5.64 Table 2.—NO <sup>X</sup> Emissions Summary: 2002, 2009 and 2018 [Tons per summer day] Major source category 2002 2009 2018 Stationary Point Sources 3.56 4.01 4.18 Stationary Area Sources 0.35 0.37 0.38 Highway Vehicles 4.04 1.95 0.76 Nonroad Sources 1.12 0.91 0.61 Total 9.07 7.24 5.93 EPA believes Pennsylvania has demonstrated that the VOCs and NO <sup>X</sup> emissions in the Warren County Area will improve due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, federal measures, and other state-adopted measures. *Maintenance demonstration:* As Table 1 and 2 indicate, the Warren County Attainment Area plan shows maintenance of the 8-hour ozone NAAQS by demonstrating that future emissions of VOCs and NO <sup>X</sup> remain at or below the 2002 base-year emissions levels through the year 2018. Based upon the comparison of the projected emissions and the 2002 base-year inventory emissions, along federal and state measures, EPA concludes that PADEP successfully demonstrates that the 8-hour ozone standard will be maintained in the Warren County Area. Further details of Warren County Attainment Area's 8-hour ozone maintenance demonstration can be found in a Technical Support Document
(TSD)prepared for this rulemaking. *Ambient Air Quality Monitoring:* With regard to the ambient air monitoring component of the maintenance plan, Pennsylvania commits to continue operating its current air quality monitoring stations in accordance with 40 CFR Part 58, to verify the attainment status of the area, with no reductions in the number of sites from those in the existing network unless pre-approved by EPA. *Contingency Plan:* Section 110(a)(1) of the CAA requires that the state develop a contingency plan which will ensure that any violation of a NAAQS is promptly corrected. The purpose of the contingency plan is to adopt measures, outlined in the maintenance plan, in order to assure continued attainment in the event of a violation of the 8-hour ozone NAAQS. The maintenance plan should identify the events that would “trigger” the adoption and implementation of a contingency measure(s), the contingency measure(s) that would be adopted and implemented, and the schedule indicating the time frame by which the state would adopt and implement the measure(s). Since the Warren County Area does not have a monitor, contingency measures will be considered if for two consecutive years the fourth highest 8-hour ozone concentrations at the design monitor for the Erie Area are above 84 parts per billion (ppb). If this trigger point occurs, PADEP will evaluate whether additional local emission control measures should be implemented in Warren County in order to prevent a violation of the air quality standard. PADEP will analyze the conditions leading to the excessive ozone levels and evaluate what measures might be most effective in correcting the excessive ozone levels. PADEP will also analyze the potential emissions effect of federal, state, and local measures that have been adopted but not yet implemented at the time the excessive ozone levels occurred. PADEP will then begin the process of implementing the contingency measures outlined in their maintenance plan. *Verification of continued attainment:* PADEP will track the attainment status of the 8-hour ozone NAAQS for Warren County by reviewing air quality at the design monitor for the Erie Area and emissions data during the maintenance period. An annual evaluation of vehicle miles traveled and emissions reported from stationary sources will be performed and compared to the assumptions about the factors used in the maintenance plan. PADEP will also evaluate the periodic (every three years) emission inventories prepared under EPA's Consolidated Emission Reporting Regulation (40 CFR 51, Subpart A) for any unanticipated increases. Based on these evaluations, PADEP will consider whether any further emission control measures should be implemented. III. Proposed Action EPA is proposing to approve the maintenance plan and the 2002 base-year inventory for the Warren County Area, submitted on December 17, 2007, as revisions to the Pennsylvania SIP. EPA is proposing to approve the maintenance plan and 2002 base-year inventory for the Warren County Area because it meets the requirements of section 110(a)(1) of the CAA. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. IV. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this proposed rule to approve the maintenance plan and the 2002 base-year inventory for the Warren County Area in the Commonwealth of Pennsylvania does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Authority: 42 U.S.C. 7401 *et seq.* Dated: April 24, 2008. William T. Wisniewski, Acting Regional Administrator, Region III. [FR Doc. E8-9613 Filed 4-30-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Part 418 [CMS-1548-P] RIN 0938-AP14 Medicare Program; Proposed Hospice Wage Index for Fiscal Year 2009 AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS. ACTION: Proposed rule. SUMMARY: This proposed rule proposes the hospice wage index for fiscal year 2009. This proposed rule also proposes to phase-out the Medicare hospice budget neutrality adjustment factor and clarify two wage index issues, pertaining to the definition of rural and urban areas and to multi-campus hospital facilities. DATES: To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on June 27, 2008. ADDRESSES: In commenting, please refer to file code CMS-1548-P. Because of staff and resource limitations, we cannot accept comments by facsimile
(FAX)transmission. You may submit comments in one of four ways (please choose only one of the ways listed): 1. *Electronically.* You may submit electronic comments on this regulation to *http://www.regulations.gov.* Follow the instructions for “Comment or Submission” and enter the filecode to find the document accepting comments. 2. *By regular mail.* You may mail written comments (one original and two copies) to the following address only: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1548-P, P.O. Box 8012, Baltimore, MD 21244-1850. Please allow sufficient time for mailed comments to be received before the close of the comment period. 3. *By express or overnight mail.* You may send written comments (one original and two copies) to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1548-P, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850. 4. *By hand or courier.* If you prefer, you may deliver (by hand or courier) your written comments (one original and two copies) before the close of the comment period to either of the following addresses: a. Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201. (Because access to the interior of the HHH Building is not readily available to persons without Federal Government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.) b. 7500 Security Boulevard, Baltimore, MD 21244-1850. If you intend to deliver your comments to the Baltimore address, please call telephone number
(410)786-9994 in advance to schedule your arrival with one of our staff members. Comments mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period. For information on viewing public comments, see the beginning of the SUPPLEMENTARY INFORMATION section. FOR FURTHER INFORMATION CONTACT: Randy Throndset
(410)786-0131 or Katie Lucas
(410)786-7723. SUPPLEMENTARY INFORMATION: *Submitting Comments:* We welcome comments from the public on all issues set forth in this rule to assist us in fully considering issues and developing policies. You can assist us by referencing the file code CMS-1548-P and the specific “issue identifier” that precedes the section on which you choose to comment. *Inspection of Public Comments:* All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following Web site as soon as possible after they have been received: *http://www.regulations.gov.* Follow the search instructions on that Web site to view public comments. Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951. Table of Contents I. Background A. General 1. Hospice Care 2. Medicare Payment for Hospice Care B. Hospice Wage Index 1. Raw Wage Index Values (Pre-Floor, Pre-Reclassified Hospital Wage Index) 2. Changes to Core-Based Statistical Area
(CBSA)Designations 3. Definition of Urban and Rural Areas 4. Areas Without Hospital Wage Data 5. CBSA Nomenclature Changes 6. Hospice Payment Rates II. Provisions of the Proposed Rule A. Clarification of New England Deemed Counties B. Wage Data for Multi-Campus Hospitals C. FY 2009 Proposed Hospice Wage Index With Phase-Out of the Budget Neutrality Adjustment Factor
(BNAF)1. Background 2. Areas Without Hospital Wage Data 3. Phase-Out of the BNAF *a. Effects of phasing-out the BNAF using the published FY 2008 Hospice Wage Index Data* *b. Effects of phasing-out the BNAF using the Updated Pre-floor, Pre-reclassified Hospital Wage Index Data (FY 2009 proposal)* D. Summary of the Provisions of the Proposed Rule III. Collection of Information Requirements IV. Regulatory Impact Analysis A. Overall Impact B. Anticipated Effects 1. Hospice Size 2. Geographic Location 3. Type of Ownership 4. Hospice Base C. Accounting Statement Part 418—Hospice Care I. Background *A. General* 1. Hospice Care Hospice care is an approach to treatment that recognizes that the impending death of an individual warrants a change in the focus from curative care to palliative care for relief of pain and for symptom management. The goal of hospice care is to help terminally ill individuals continue life with minimal disruption to normal activities while remaining primarily in the home environment. A hospice uses an interdisciplinary approach to deliver medical, nursing, social, psychological, emotional, and spiritual services through use of a broad spectrum of professional and other caregivers, with the goal of making the individual as physically and emotionally comfortable as possible. Counseling services and inpatient respite services are available to the family of the hospice patient. Hospice programs consider both the patient and the family as a unit of care. Section 1861(dd) of the Social Security Act (the Act) provides for coverage of hospice care for terminally ill Medicare beneficiaries who elect to receive care from a participating hospice. Section 1814(i) of the Act provides payment for Medicare participating hospices. 2. Medicare Payment for Hospice Care Our regulations at 42 CFR part 418 establish eligibility requirements, payment standards and procedures, define covered services, and delineate the conditions a hospice must meet to be approved for participation in the Medicare program. Part 418 subpart G provides for payment in one of four prospectively-determined rate categories (routine home care, continuous home care, inpatient respite care, and general inpatient care) to hospices based on each day a qualified Medicare beneficiary is under a hospice election. B. Hospice Wage Index Our regulations at § 418.306(c) require each hospice's labor market to be established using the most current hospital wage data available, including any changes by OMB to the Metropolitan Statistical Areas
(MSAs)definitions. OMB revised the MSA definitions beginning in 2003 with new designations called the Core Based Statistical Areas (CBSAs). For the purposes of the hospice benefit, the term “MSA-based” refers to wage index values and designations based on the previous MSA designations before 2003. Conversely, the term “CBSA-based” refers to wage index values and designations based on the OMB revised MSA designations in 2003, which now include CBSAs. In the August 11, 2004 IPPS final rule (69 FR 48916, 49026), revised labor market area definitions were adopted at § 412.64(b), which were effective October 1, 2004 for acute care hospitals. CMS also revised the labor market areas for hospices using the new OMB standards that included CBSAs. In the FY 2006 hospice wage index final rule (70 FR 45130), we implemented a 1-year transition policy using a 50/50 blend of the CBSA-based wage index values and the Metropolitan Statistical Area (MSA)-based wage index values for FY 2006. The one-year transition policy ended on September 30, 2006. For FY 2007 and FY 2008 we used wage index values based on CBSA designations. The hospice wage index is used to adjust payment rates for hospice agencies under the Medicare program to reflect local differences in area wage levels. The original hospice wage index was based on the 1981 Bureau of Labor Statistics hospital data and had not been updated since 1983. In 1994, because of disparity in wages from one geographical location to another, a committee was formulated to negotiate a wage index methodology that could be accepted by the industry and the government. This committee, functioning under a process established by the Negotiated Rulemaking Act of 1990, was comprised of national hospice associations; rural, urban, large and small hospices; multi-site hospices; consumer groups; and a government representative. On April 13, 1995, the Hospice Wage Index Negotiated Rulemaking Committee signed an agreement for the methodology to be used for updating the hospice wage index. In the August 8, 1997 **Federal Register** (62 FR 42860), we published a final rule implementing a new methodology for calculating the hospice wage index based on the recommendations of the negotiated rulemaking committee. The committee statement was included in the appendix of that final rule (62 FR 42883). The hospice wage index is updated annually. Our most recent annual update notice published in the **Federal Register** (72 FR 50214) on August 31, 2007 set forth updates to the hospice wage index for FY 2008. On October 1, 2007, we published a correction notice in the **Federal Register** (72 FR 55672) to correct technical errors that appeared in the August 31, 2007 final rule. 1. Raw Wage Index Values (Pre-Floor, Pre-Reclassified Hospital Wage Index) As described in the August 8, 1997 hospice wage index final rule (62 FR 42860), the pre-floor and pre-reclassified hospital wage index is used as the raw wage index for the hospice benefit. These raw wage index values are then subject to either a budget neutrality adjustment or application of the hospice floor to compute the hospice wage index used to determine payments to hospices. Pre-floor, pre-reclassified hospital wage index values of 0.8 or greater are adjusted by the BNAF. Pre-floor, pre-reclassified hospital wage index values below 0.8 are adjusted by the greater of:
(1)The hospice BNAF; or
(2)the hospice floor (which is a 15 percent increase) subject to a maximum wage index value of 0.8. For example, if County A has a pre-floor, pre-reclassified hospital wage index (raw wage index) value of 0.4000, we would perform the following calculations using the budget neutrality factor (which for this example is 1.060988) and the hospice floor to determine County A's hospice wage index: Pre-floor, pre-reclassified hospital wage index value below 0.8 multiplied by the BNAF: (0.4000 × 1.060988 = 0.4244) Pre-floor, pre-reclassified hospital wage index value below 0.8 multiplied by the hospice floor: (0.4000 × 1.15 = 0.4600) Based on these calculations, County A's hospice wage index would be 0.4600. As decided upon by the Hospice Wage Index Negotiated Rulemaking Committee, budget neutrality means that, in a given year, estimated aggregate payments for Medicare hospice services using the updated hospice values will equal estimated payments that would have been made for these services if the 1983 hospice wage index values had remained in effect, after adjusting the payment rates for inflation. The BNAF has been computed and applied annually to the labor portion of the hospice payment. Currently, the labor portion of the payment rates is as follows: for Routine Home Care, 68.71 percent; for Continuous Home Care, 68.71 percent; for General Inpatient Care, 64.01 percent; and for Respite Care, 54.13 percent. The non-labor portion is equal to 100 percent minus the labor portion for each level of care. Therefore the non-labor portion of the payment rates is as follows: for Routine Home Care, 31.29 percent; for Continuous Home Care, 31.29 percent; for General Inpatient Care, 35.99 percent; and for Respite Care, 45.87 percent. 2. Changes to Core-Based Statistical Area
(CBSA)Designations The annual update to the hospice wage index is published in the **Federal Register** and is based on the most current available hospital wage data, as well as any changes by the Office of Management and Budget
(OMB)to the definitions of MSAs, which now include CBSA designations. The August 4, 2005 final rule (70 FR 45130) set forth the adoption of the changes discussed in the OMB Bulletin No. 03-04 (June 6, 2003), which announced revised definitions for Micropolitan Statistical Areas and the creation of MSAs and Combined Statistical Areas. In adopting the OMB CBSA geographic designations, we provided for a 1-year transition with a blended hospice wage index for all hospices for FY 2006. For FY 2006, the hospice wage index for each provider consisted of a blend of 50 percent of the FY 2006 MSA-based hospice wage index and 50 percent of the FY 2006 CBSA-based hospice wage index. Fiscal years 2007 and 2008 used the full CBSA-based hospice wage index values as discussed in their respective notices or rules (71 FR 52080 and 72 FR 50214). 3. Definition of Rural and Urban Areas Each hospice's labor market is determined based on definitions of MSAs issued by OMB. In general, an urban area is defined as an MSA or New England County Metropolitan Area (NECMA) as defined by OMB. Under § 412.64(b)(1)(ii)(C), a rural area is defined as any area outside of the urban area. The urban and rural area geographic classifications are defined in § 412.64(b)(1)(ii)(A) through (C), and have been used for the Medicare hospice benefit since implementation. 4. Areas Without Hospital Wage Data When adopting OMB's new labor market designations in FY 2006, we identified some geographic areas where there were no hospitals, and thus, no hospital wage index data on which to base the calculation of the hospice wage index. Beginning in FY 2006, we adopted a policy to use the FY 2005 pre-floor, pre-reclassified hospital wage index value for rural areas when no hospital wage data were available. We also adopted the policy that for urban labor markets without a hospital from which a hospital wage index data could be derived, all of the CBSAs within the State would be used to calculate a statewide urban average pre-floor, pre-reclassified hospital wage index value to use as a reasonable proxy for these areas. Consequently, in the FY 2006 final rule, the FY 2007 update notice, and the FY 2008 final rule, we applied the average pre-floor, pre-reclassified hospital wage index data from all urban areas in that state to urban areas without a hospital. The only affected CBSA is 25980, Hinesville-Fort Stewart, Georgia. Under the CBSA labor market areas, there are no hospitals in rural locations in Massachusetts and Puerto Rico. Since there was no rural proxy for more recent rural data within those areas, in the FY 2006 hospice wage index proposed rule (70 FR 22394, 22398), we proposed applying the FY 2005 pre-floor, pre-reclassified hospital wage index value to rural areas where no hospital wage data were available. In the FY 2006 final rule and in the FY 2007 update notice, we applied the FY 2005 pre-floor, pre-reclassified hospital wage index data for areas lacking hospital wage data in both FY 2006 and FY 2007 for rural Massachusetts and rural Puerto Rico. In the FY 2008 final rule (72 FR 50214, 50217) we considered alternatives to our methodology to update the pre-floor, pre-reclassified hospital wage index for rural areas without hospital wage data. We indicated that we believed that the best imputed proxy for rural areas, would:
(1)Use pre-floor, pre-reclassified hospital data;
(2)use the most local data available to impute a rural pre-floor, pre-reclassified hospital wage index;
(3)be easy to evaluate; and,
(4)be easy to update from year-to-year. Therefore, in FY 2008, in cases where there was a rural area without rural hospital wage data, we used the average pre-floor, pre-reclassified hospital wage index data from all contiguous CBSAs to represent a reasonable proxy for the rural area. This approach does not use rural data, however, the approach uses pre-floor, pre-reclassified hospital wage data, is easy to evaluate, is easy to update from year-to-year, and uses the most local data available. In the FY 2008 rule (72 FR at 50217), we noted that in determining an imputed rural pre-floor, pre-reclassified hospital wage index, we interpret the term “contiguous” to mean sharing a border. For example, in the case of Massachusetts, the entire rural area consists of Dukes and Nantucket counties. We determined that the borders of Dukes and Nantucket counties are contiguous with Barnstable and Bristol counties. Under the adopted methodology, the pre-floor, pre-reclassified hospital wage index values for the counties of Barnstable (CBSA 12700, Barnstable Town, MA) and Bristol (CBSA 39300, Providence-New Bedford-Fall River, RI-MA) would be averaged resulting in an imputed pre-floor, pre-reclassified rural hospital wage index for FY 2008. We noted in the FY 2008 final hospice wage index rule that while we believe that this policy could be readily applied to other rural areas that lack hospital wage data (possibly due to hospitals converting to a different provider type, such as a Critical Access Hospital, that does not submit the appropriate wage data), if a similar situation arose in the future, we would re-examine this policy. We also noted that we do not believe that this policy would be appropriate for Puerto Rico, as there are sufficient economic differences between hospitals in the United States and those in Puerto Rico, including the payment of hospitals in Puerto Rico using blended Federal/Commonwealth-specific rates. Therefore we believe that a separate and distinct policy for Puerto Rico is necessary. Any alternative methodology for imputing a pre-floor, pre-reclassified hospital wage index for rural Puerto Rico would need to take into account the economic differences between hospitals in the United States and those in Puerto Rico. Our policy of imputing a rural pre-floor, pre-reclassified hospital wage index based on the pre-floor, pre-reclassified hospital wage index(es) of CBSAs contiguous to the rural area in question does not recognize the unique circumstances of Puerto Rico. While we have not yet identified an alternative methodology for imputing a pre-floor, pre-reclassified hospital wage index for rural Puerto Rico, we will continue to evaluate the feasibility of using existing hospital wage data and, possibly, wage data from other sources. For FY 2008, we used the most recent pre-floor, pre-reclassified hospital wage index available for Puerto Rico, which is 0.4047. 5. CBSA Nomenclature Changes The Office of Management and Budget
(OMB)regularly publishes a bulletin that updates the titles of certain CBSAs. In the FY 2008 Final Rule (72 FR 50218) we noted that the FY 2008 rule and all subsequent hospice wage index rules and notices would incorporate CBSA changes from the most recent OMB bulletins. The OMB bulletins may be accessed at *http://www.whitehouse.gov/omb/bulletins/index.html.* 6. Hospice Payment Rates Section 4441(a) of the Balanced Budget Act of 1997
(BBA)amended section 1814(i)(1)(C)(ii) of the Act to establish updates to hospice rates for FYs 1998 through 2002. Hospice rates were to be updated by a factor equal to the market basket index, minus 1 percentage point. However, neither the BBA nor subsequent legislation specified alteration to the market basket adjustment to be used to compute payment for fiscal years beyond 2002. Payment rates for FYs since 2002 have been updated according to section 1814(i)(1)(C)(ii)(VII) of the Act, which states that the update to the payment rates for subsequent fiscal years will be the market basket percentage for the fiscal year. It has been longstanding practice to use the inpatient hospital market basket as a proxy for a hospice market basket. Historically, the rate update has been published through a separate administrative instruction issued annually in July to provide adequate time to implement system change requirements. Providers determine their payments by applying the hospice wage index in this notice to the labor portion of the published hospice rates. II. Provisions of the Proposed Rule A. Clarification of New England Deemed Counties We are taking the opportunity to address the change in the designation of “New England deemed counties,” which are listed in § 412.64(b)(1)(ii)(B). These counties were deemed to be parts of urban areas under section 601(g) of the Social Security Amendments of 1983, yet the OMB designates these counties as rural. In the FY 2008 Inpatient Prospective Payment System
(IPPS)final rule, IPPS adopted the OMB designation for the pre-floor, pre-reclassified hospital wage index. The counties include Litchfield County, Connecticut; York County, Maine; Sagadahoc County, Maine; Merrimack County, New Hampshire; and Newport County, Rhode Island. Of these five “New England deemed counties,” three (York County, Sagadahoc County, and Newport County) are also included in metropolitan statistical areas defined by OMB and are considered urban under the current IPPS labor market area definitions in § 412.64(b)(1)(ii)(A). The remaining two, Litchfield County and Merrimack County, are geographically located in areas that are considered rural under the current IPPS labor market area definitions. However, they have been previously deemed urban under the IPPS in certain circumstances as discussed below. In the FY 2008 IPPS final rule with comment period (72 FR 47130, August 22, 2007), § 412.64(b)(1)(ii)(B) was revised such that the two “New England deemed counties” that are still considered rural by OMB (Litchfield County, CT and Merrimack County, NH) are no longer considered urban effective for discharges occurring on or after October 1, 2007. Therefore, these two counties are considered rural in accordance with § 412.64(b)(1)(ii)(C). However, for purposes of payment under the IPPS, acute care hospitals located within those areas are treated as being reclassified to their deemed urban area effective for discharges occurring on or after October 1, 2007 (see 72 FR 47337 through 47338). We also noted in this discussion that this policy change was limited to the “New England deemed counties” IPPS hospitals only, and that any change to non-IPPS provider wage indexes would be addressed in the respective payment system rules. The hospice program does not provide for such geographic reclassification as the IPPS does, and we are taking this opportunity to clarify treatment of “New England deemed counties” under the hospice program in this proposed rule. As discussed, our regulations at § 418.306(c) require each hospice's labor market to be established using the most current hospital wage data available. The original hospice wage index was based on the 1981 Bureau of Labor Statistics hospital data. In 1994, a committee functioning under a process established by the Negotiated Rulemaking Act of 1990, was formed to negotiate a hospice wage index methodology that could be accepted by the industry and the government. The revised hospice wage index was based on the recommendations of the Negotiated Rulemaking Advisory Committee. This committee was established to provide advice and make recommendations to the Secretary on the hospice wage index used to adjust payment rates for hospices under the Medicare program, to reflect local differences in area wage levels. The Committee recommended that the revised hospice wage index be based on the most current available data for each fiscal year, which would be used to construct a pre-floor, pre-reclassified hospital wage index under the prospective payment system before adjustments were made to take into account the geographic reclassification of hospitals in accordance with sections 1886(d)(8)(B) and (d)(10) of the Act, as well as each hospice's labor market area as established by OMB. The reason the unadjusted hospital wage data were recommended was to avoid further reductions in certain rural statewide wage index values that would result from reclassification. The recommendations are codified in § 418.306(c) of our regulations; however, there is no reference to § 412.64. In other words, while § 412.64 is not explicitly noted, the hospice program has used the urban definition in § 412.64(b)(1)(ii)(A) and (B), and the rural definition as any area outside of an urban area in § 412.64(b)(1)(ii)(C). Historical changes to the labor market area/geographic classifications and annual updates to the hospice wage index values have been made effective October 1 each year. When we established the hospice wage index values effective October 1, 2007 through September 30, 2008, we considered the “New England deemed counties” (including Litchfield County, CT and Merrimack County, NH) as urban for FY 2008 in accordance with the definitions of urban and rural areas in the FY 2008 hospice final rule (72 FR 50216). Therefore, Litchfield County was listed as one of the constituent counties of urban CBSA 25540 (Hartford-West Hartford-East Hartford, CT), and Merrimack County was listed as one of the constituent counties of urban CBSA 31700 (Manchester-Nashua, NH) (72 FR 50236 and 50239, respectively). As noted above, the terms “rural” and “urban” areas are defined in IPPS according to the definitions of those terms in § 412.64(b)(1)(ii)(A) through (C). Litchfield county, CT and Merrimack county, NH are considered rural areas for hospital IPPS purposes in accordance with § 412.64. Under this proposal, effective October 1, 2008, Litchfield county, CT would no longer be considered part of urban CBSA 25540 (Hartford-West Hartford-East Hartford, CT), and Merrimack County, NH would no longer be considered part of urban CBSA 31700 (Manchester-Nashua, NH). Rather, these counties would be considered to be rural areas within their respective states under the hospice payment system. This proposed policy is consistent with our policy of not taking into account IPPS geographic reclassifications in determining payments under the hospice wage index. We propose to amend § 418.306(c) to cross-reference to the definitions of urban and rural in the IPPS regulations in 42 CFR part 412 subpart D. B. Wage Data for Multi-Campus Hospitals In the 2007 IPPS final rule, we changed in the way that we treat multi-campus hospital wage data in the creation of the pre-floor, pre-reclassified hospital wage index. The IPPS wage data used to determine the proposed FY 2009 hospice wage index values now apportion the wage data for multi-campus hospitals located in different labor market areas (CBSAs) to the CBSAs where the campuses are located (see 72 FR 47317 through 47320). Historically, the hospice wage index is derived from the pre-floor, pre-reclassified hospital wage index. Consequently, for this proposed rule we propose to continue to use the most recent available pre-floor, pre-reclassified hospital wage index in computing the hospice wage index. The pre-floor, pre-reclassified hospital wage index values for the following CBSAs are affected by this change in how wage data from multi-campus hospitals are used in the computation of the pre-floor, pre-reclassified hospital wage index: Boston-Quincy, MA (CBSA 14484), Providence-New Bedford-Falls River, RI-MA (CBSA 39300), Chicago-Naperville-Joliet, IL (CBSA 16974) and Lake-County-Kenosha County, IL-WI (CBSA 29404). C. FY 2009 Hospice Wage Index With Phase-Out of the Budget Neutrality Adjustment Factor
(BNAF)[If you choose to comment on issues in this section, please include the caption, “FY 2009 Hospice Wage Index with Phase-out of the Budget Neutrality Adjustment Factor (BNAF)” at the beginning of your comments.] 1. Background The hospice final rule published in the **Federal Register** on December 16, 1983 (48 FR 56008) provided for adjustment to hospice payment rates to reflect differences in area wage levels. We apply the appropriate hospice wage index value to the labor portion of the hospice payment rates based on the geographic area where hospice care was furnished. As noted earlier, each hospice's labor market area is based on definitions of Metropolitan Statistical Areas
(MSAs)issued by the OMB. For FY 2009, we propose to again use a pre-floor, pre-reclassified hospital wage index based solely on the CBSA designations. As noted above, our hospice payment rules utilize the wage adjustment factors used by the Secretary for purposes of section 1886(d)(3)(E) of the Act for hospital wage adjustments. We are proposing again to use the pre-floor and pre-reclassified hospital wage index data to adjust the labor portion of the hospice payment rates based on the geographic area where the beneficiary receives hospice care. We believe the use of the pre-floor, pre-reclassified hospital wage index data results in the appropriate adjustment to the labor portion of the costs. For the FY 2009 update to hospice payment rates, we propose to continue to use the most recent pre-floor, pre-reclassified hospital wage index available at the time of publication. 2. Areas Without Hospital Wage Data In adopting the CBSA designations, we identified some geographic areas where there are no hospitals, and thus no hospital wage data on which to base the calculation of the hospice wage index. These areas were described in section I.B.4 of this proposed rule. Beginning in FY 2006, we adopted a policy that, for urban labor markets without an urban hospital from which a pre-floor, pre-reclassified hospital wage index can be derived, all of the urban CBSA pre-floor, pre-reclassified hospital wage index values within the State would be used to calculate a statewide urban average pre-floor, pre-reclassified hospital wage index to use as a reasonable proxy for these areas. Currently, the only CBSA that would be affected by this policy is CBSA 25980, Hinesville, Georgia. We propose to continue this policy for FY 2009. Currently, the only rural areas where there are no hospitals from which to calculate a pre-floor, pre-reclassified hospital wage index are Massachusetts and Puerto Rico. In August 2007 (72 FR 50217) we adopted the following methodology for imputing rural pre-floor, pre-reclassified hospital wage index values for areas where no hospital wage data are available as an acceptable proxy. We imputed an average pre-floor, pre-reclassified hospital wage index value by averaging the pre-floor, pre-reclassified hospital wage index values from contiguous CBSAs as a reasonable proxy for rural areas with no hospital wage data from which to calculate a pre-floor, pre-reclassified hospital wage index. In determining an imputed rural pre-floor, pre-reclassified hospital wage index, we define “contiguous” as sharing a border. For Massachusetts, rural Massachusetts currently consists of Dukes and Nantucket Counties. We determined that the borders of Dukes and Nantucket counties are “contiguous” with Barnstable and Bristol counties. We are again proposing to apply this methodology for imputing a rural pre-floor, pre-reclassified hospital wage index for those rural areas without rural hospital wage data in FY 2009. However, as we noted in our final rule at 72 FR 50218, we do not believe that this policy is appropriate for Puerto Rico. We noted that there are sufficient economic differences between the hospitals in the United States and those in Puerto Rico, including the fact that hospitals in Puerto Rico are paid on blended Federal/Commonwealth-specific rates, to make a separate distinct policy for Puerto Rico necessary. For FY 2009, we again propose to continue to use the most recent pre-floor, pre-reclassified hospital wage index value available for Puerto Rico, which is 0.4047. This pre-floor, pre-reclassified hospital wage index value is then adjusted upward by the hospice floor in the computing of the proposed FY 2009 hospice wage index. 3. Phase-Out of the Budget Neutrality Adjustment Factor
(BNAF)As noted in section 1.B of this proposed rule, the current hospice wage index methodology was developed through a negotiated rule making process and implemented in 1997. The rule making committee sought to address the inaccuracies in the original Bureau of Labor Statistics (BLS)-based hospice wage index, account better for disparities from one geographic location to another, and develop a wage index that would be as accurate, reliable and equitable as possible. The resulting hospice wage index reflects a special adjustment (a BNAF) to ensure payments in the aggregate are budget neutral to payments using the original 1983 hospice wage index. The adjustment, still in place today, results in providers currently receiving about 4 percent more in payments than they would receive if the adjustment factor were not applied. The rationale for maintaining this adjustment is outdated given the time that has elapsed since it was put into place and the growth that is occurring in the hospice benefit. In this section, we propose to phase-out this adjustment over 3 years, reducing it by 25 percent in FY 2009, by an additional 50 percent for a total of 75 percent in FY 2010, and eliminating it completely in FY 2011. We also provide our rationale for the phase-out. As discussed in section I.B of this proposed rule, the original hospice wage index was based on the 1981 Bureau of Labor Statistics
(BLS)hospital data and had not been updated since 1983. During earlier attempts to update the hospice wage index, the hospice industry raised concerns over the adverse financial impact of a new wage index on individual hospices and a possible overall reduction in Medicare payments. Thus, the result was that in the absence of agreement on a new wage index, we continued to use a wage index that was clearly obsolete for geographically adjusting Medicare hospice payments (see “Medicare Program; Notice Containing the Statement Drafted by the Committee Established to Negotiate the Wage Index to be Used to Adjust Hospice Payment Rates Under Medicare,” November 29, 1995, 60 FR 61264). Changing to a new but more accurate wage index would result in some areas gaining as their wage index value would increase, but in other areas seeing declines in payments as their wage index value dropped. In 1994 we noted that a majority of hospices would have their wage index reduced with the new wage index based on using the pre-floor, pre-reclassified hospital wage index. These reductions would have occurred for two key reasons:
(1)Hospices were located in areas where the original hospice wage index was artificially high due to flaws in the 1981 BLS data, and
(2)hospices were located in areas where wages had gone down relative to other geographic areas (see “Hospice Services Under Medicare Program: Intent to Form Negotiated Rulemaking Committee,” October 14, 1994, 59 FR 52130). Because of the negative impact to certain areas that was expected with the change to a new wage index, a committee was formulated in 1994, under the process established by the Negotiated Rulemaking Act of 1990 (Pub. L. 101-648). The Committee was established to negotiate the hospice wage index methodology rather than to go through the usual rulemaking process. On September 4, 1996, we published a proposed rule (61 FR 46579) in which we proposed a methodology to update the hospice wage index used to adjust Medicare hospice payment rates. In formulating the provisions of that proposed rule, the Committee considered criteria in evaluating the available data sources. The need for fundamental equity of the wage index; data that reflected actual work performed by hospice personnel; compatibility with wage indexes used by CMS for other Medicare providers; and availability of the data for timely implementation were considered. The Committee agreed that the hospice wage index be derived from the 1993 hospital cost report data and that these data, prior to reclassification, would form the basis for the FY 1997 hospice wage index. That is the pre-floor, pre-reclassified hospital wage index would not be adjusted to take into account the geographic reclassification of hospitals in accordance with sections 1886(d)(8)(B) and 1886(d)(10) of the Act. The methodology is codified in § 418.306(c). The hospice wage index for subsequent years would be based on pre-floor, pre-reclassified hospital wage index data for a subsequent year. The Committee was also concerned that while some hospices would see increases, use of the pre-floor, pre-reclassified hospital wage index as the wage index for hospices would result in a net reduction in aggregate Medicare payments for hospices. As noted above, a majority of hospices would have had their wage index lowered by using the new wage index because the prior hospice wage indices were based on outdated data which were artificially high due to flaws in the 1981 BLS data, and because some hospices were located in areas where wages had gone down relative to other geographic areas. The reduction in overall Medicare payments if a new wage index were adopted was noted in the November 29, 1995 final rule (60 FR 61264). Therefore, the Committee also decided that, each year in updating the hospice wage index, aggregate Medicare payments to hospices would remain budget neutral to payments as if the 1983 wage index had been used. As decided upon by the Hospice Wage Index Negotiated Rulemaking Committee, budget neutrality means that, in a given year, estimated aggregate payments for Medicare hospice services using the updated hospice values will equal estimated payments that would have been made for these services if the 1983 hospice wage index values had remained in effect, after adjusting the payment rates for inflations. Being budget neutral does not take into account annual market basket updates to hospice payment rates. Therefore, although payments to individual hospice programs may change each year, the total payments each year to hospices would not be affected by using the updated hospice wage index because total payments would be budget neutral as if the 1983 wage index had been used. To implement this provision a BNAF would be computed and applied annually. The BNAF is calculated by computing estimated payments using the most recent completed year of hospice claims data. The units (days or hours) from those claims are multiplied by the updated hospice payment rates to calculate estimated payments. The updated hospice wage index values are then applied to the labor portion of the payments. For this proposed rule, that means estimating payments for FY 2009 using FY 2006 hospice claims data, and applying the estimated updated FY 2009 hospice payment rates (updating the FY 2008 rates by the estimated FY 2009 market basket update). The proposed FY 2009 hospice wage index values are then applied to the labor portion only. The procedure is repeated using the same claims data and payment rates, but using the 1983 BLS-based wage index instead of the updated pre-floor, pre-reclassified hospital wage index. The total payments are then compared, and the adjustment required to make total payments equal is computed; that adjustment factor is the BNAF. In 1998, the BNAF increased all wage index values by just over 2 percent. All pre-floor, pre-reclassified hospital wage index values of 0.8 or greater would be adjusted by the BNAF. Also, all pre-floor, pre-reclassified hospital wage index values below 0.8 would receive the greater of the following:
(1)A 15-percent increase subject to a maximum hospice wage index value of 0.8; or
(2)an adjustment by the BNAF. All hospice wage index values of 0.8 or greater would be adjusted by the BNAF. The BNAF would be calculated and applied annually. While the Committee sought to adopt a wage index methodology that would be as accurate, reliable, and equitable as possible, the Committee also decided to incorporate a BNAF into the calculation of the hospice wage index that would otherwise apply in order to mitigate adverse financial impacts some hospices would experience through a decrease in their wage index value by transitioning to a pre-floor, pre-reclassified hospital wage index. In the August 8, 1997 final rule (62 FR 42860), we indicated that the annual updates of the hospice wage index values would be made in accordance with the methodology agreed to by the rulemaking committee. We also noted that in the event that if we decide to change this methodology by which the hospice wage index is computed, it would be reflected in a proposed rule published in the **Federal Register** . In this proposed rule, we now propose to change this methodology. In FY 1998, the BNAF was 1.020768; in FY 2008 it was 1.066671. In other words, any pre-floor, pre-reclassified hospital wage index value greater than 0.8 was increased by over 2 percent in FY 1998 and increased by almost 7 percent in FY 2008. In FY 2008, this adjustment resulted in hospice providers receiving about 4 percent more in payments than they would have received if the BNAF had not been applied. The negotiating committee also recommended that the transition to the new hospice wage index occur over 3 years, from FY 1998 to FY 2001. The intent of both the three year transition and the budget neutrality adjustment was to mitigate the negative financial impact to many hospices resulting from the wage index change. Additionally, the committee sought to ensure that access to hospice care was not jeopardized as a result of the wage index change. We believe that the rationale for maintaining this adjustment is outdated for several reasons. First, the original purpose of the BNAF was to prevent reductions in payments to the majority of hospices whose wage index was based on the original hospice wage index which was artificially high due to flaws in the 1981 BLS data. While incorporating a BNAF into hospice wage indices could be rationalized in 1997 as a way to smooth the transition from an old wage index to a new one, since hospices have had plenty of time to adjust to the new wage index, it is difficult to justify maintaining in perpetuity a BNAF which was in part compensating for artificially high data to begin with. Second, the new wage index adopted in 1997 resulted in increases in wage index values for hospices in certain areas. The BNAF applies to hospices in all areas. Thus, hospices in areas that would have had increases without the BNAF received an artificial boost in the wage index for the past 11 years. We believe that continuation of this excess payment can no longer be justified. Third, an adjustment factor that is based on 24-year old wage index values is contrary to our goal of using a hospice wage index that is as accurate, reliable and equitable as possible in accounting for geographic variation in wages. We believe that those goals can be better achieved by using the pre-floor, pre-reclassified hospital wage index, without an outdated BNAF, consistent with other providers. For instance, Medicare payments to home health agencies, that utilize a similar labor mix, are adjusted by the pre-floor, pre-reclassified hospital wage index, without any budget neutrality adjustment. We believe that using the unadjusted pre-floor, pre-reclassified hospital wage index provides a good measure of area wage differences for both these home-based reimbursement systems. Fourth, in the 13 years since concerns about the impact of switching from an old to a new wage index were voiced, the hospice industry and hospice payments have grown substantially. Hospice expenditures in 2006 were $9.2 billion, compared to about $2.2 billion in 1998, a growth rate of almost 20 percent per year. Aggregate hospice expenditures are increasing at a rate of about $1 billion per year. MedPAC projects that expenditures will continue to grow at a rate of 9 percent per year through 2015, outpacing the growth rate of projected expenditures for hospitals, skilled nursing facilities, and physician and home health services. We believe that this growth in Medicare spending for hospice indicates that the original rationale of the BNAF, to cushion the impact of using the new wage index, is no longer justified. These spending growth figures also indicate that any negative financial impact to the hospice industry as a result of eliminating the BNAF is no longer present, and thus the need for a transitional adjustment has passed. Fifth, 13 years ago the industry also voiced concerns about the negative financial impact on individual hospices that could occur by adopting a new wage index. In August 1994 there were 1,602 hospices; currently there are 2,986 hospices. Clearly any negative financial impact from adopting a new wage index in 1997 is no longer present, or we would not have seen an 86 percent increase in the number of hospices since 1994. The number of Medicare-certified hospices has continued to increase, with a 26 percent increase in the number of hospice providers from 2001 to 2005. This ongoing growth in the industry also suggests that phasing out the BNAF would not have a negative impact on access to care. Therefore for these reasons, we believe that continuing to apply a BNAF for the purpose of mitigating any adverse financial impact on hospices or negative impact on access to care is no longer necessary. We are proposing to phase out the BNAF over a 3-year period, reducing the BNAF by 25 percent in FY 2009, by 75 percent in FY 2010, and eliminating it in FY 2011. We believe that the proposed 3-year phase-out period will reduce any adverse financial impact that the industry might experience if we eliminated the BNAF in a single year. However, depending on the comments received, updated data, and subsequent analysis, for the final rule we may determine that a different percentage reduction in the BNAF (for any of the years) or a different phase-out timeframe would be more appropriate. Specifically, it may be determined that a more aggressive phase-out alternative (e.g. a 50 percent reduction in the BNAF in FY 2009, a 75 percent reduction in the BNAF in FY 2010, and elimination of the BNAF in FY 2011) is more appropriate. Consequently, we will continue to look at reduction percentages and timeframe alternatives for the phase-out of the BNAF and, for the final rule, will implement what is determined to be the most appropriate option based on the above information. We propose to maintain the hospice floor, which offers protection to hospices with pre-floor, pre-reclassified hospital wage index values less than 0.8. We believe that we should have addressed this issue in previous years. We believe that using the BNAF has resulted in Medicare spending for hospice services in excess of what spending should have been in the absence of such an adjustment. However, we are not proposing to reduce Medicare payments to hospices for prior years. We are only proposing to remove the application of the BNAF on a prospective basis, beginning on October 1, 2008. Section II.C.3.a below discusses the effects of phasing out the BNAF over three years using the data from the published FY 2008 hospice wage index; by basing the analysis on this data, our simulations hold claims data, the wage index values, and payment rates constant, with the only change being the reduction in the BNAF. Section II.C.3.b discusses the effects of reducing the BNAF for FY 2009 using the proposed FY 2009 hospice wage index. a. Effects of Phasing-Out the BNAF Using the Published FY 2008 Hospice Wage Index For this proposed rule, we will use the FY 2008 hospice wage index (72 FR 50214, published August 31, 2007) to illustrate the effects of phasing out the BNAF over 3 years. This analysis and discussion is for illustrative purposes only and does not affect any of the hospice wage index values for FY 2008. The BNAF that was calculated and applied to the 2007 pre-floor, pre-reclassified hospital wage index values was 6.6671 percent. We propose reducing the BNAF by 25 percent for FY 2009, by 75 percent for FY 2010, and eliminating it altogether for FY 2011 and beyond. A 25 percent reduction in the BNAF can be accomplished by blending 75 percent of the FY 2008 hospice wage index that applied the full 6.6671 percent BNAF with 25 percent of the FY 2008 hospice wage index that used no BNAF. This is mathematically equivalent to taking 75 percent of the full BNAF value, or multiplying 0.066671 by 0.75, which equals 0.050003, or 5.0003 percent. The BNAF of 5.0003 percent reflects a 25 percent reduction in the BNAF. The 25 percent reduction in the BNAF of 5.0003 percent would be applied to the pre-floor, pre-reclassified hospital wage index values of 0.8 or greater used in the published FY 2008 hospice wage index. The hospice floor calculation would still apply to any pre-floor, pre-reclassified hospital wage index values less then 0.8. Currently, the floor calculation has 4 steps. Pre-floor, pre-reclassified hospital wage index values that are less than 0.8 are first multiplied by 1.15; second, the minimum of 0.8 or the pre-floor, pre-reclassified hospital wage index value times 1.15 is chosen as the preliminary hospice wage index value. Third, the pre-floor, pre-reclassified hospital wage index value is multiplied by BNAF. Finally, the greater result of either step 2 or step 3 is chosen as the final hospice wage index value. We propose to leave the hospice floor unchanged, noting that steps 3 and 4 will become unnecessary once the BNAF is eliminated. For the simulations of the BNAF phase-out for FY 2010 and FY 2011, we used the same pre-floor, pre-reclassified hospital wage index values and claims data as the example above, and simply changed the value of the BNAF to reflect either a 75 percent reduction for FY 2010 or a 100 percent reduction for FY 2011. In both cases we started with the full BNAF of 6.6671 percent. We changed the calculation to take 25 percent of the full BNAF to reflect a 75 percent reduction for FY 2010, or eliminated the BNAF altogether to reflect a 100 percent reduction for FY 2011. For FY 2010, the reduced BNAF or the hospice floor was then applied to the 2008 pre-floor, pre-reclassified hospital wage index as described previously. For FY 2011 and subsequent years, the pre-floor, pre-reclassified hospital wage index values would be unadjusted unless they are less than 0.8, in which case the hospice floor calculation would be applied. For our simulations, the calculations of the BNAF are as follows: • A 75 percent reduction to the BNAF in FY 2010 would be 0.066671 × 0.25 = 0.016668 or 1.6668 percent • A 100 percent reduction or elimination of the BNAF in FY 2011 would be 0.066671 × 0.0 = 0.0 or 0 percent We examined the effects of phasing out the BNAF versus using the full BNAF of 6.6671 percent on the FY 2008 hospice wage index. The FY 2009 BNAF reduction of 25 percent resulted in approximately a 1.55 to 1.57 percent reduction in the hospice wage index value. The FY 2010 BNAF reduction of 75 percent would result in an estimated additional 3.12 to 3.13 percent reduction from the FY 2009 hospice wage index values. The elimination of the BNAF in FY 2011 would result in an estimated final reduction of the FY 2011 hospice wage index values of approximately 1.55 to 1.57 percent compared to FY 2010 hospice wage index values. Those CBSAs whose pre-floor, pre-reclassified hospital wage index values had the hospice floor calculation applied prior to the BNAF reduction would not be affected by this proposed phase-out of the BNAF. These CBSAs, which typically include rural areas, are protected by the hospice floor calculation. Additionally, those CBSAs whose hospice wage index values were previously 0.8 or greater after the BNAF was applied, but which would have values less than 0.8 after the reduced BNAF was applied would see a smaller reduction in their hospice wage index values since the hospice floor calculation would apply. We have estimated the number of CBSAs that would have their pre-floor, pre-reclassified hospital wage index value eligible for the floor calculation after applying the 25, 75, and 100 percent reductions in the BNAF. Three CBSAs would be affected by the 25 percent reduction, 12 would be affected by the 75 percent reduction, and 22 would be affected by the 100 percent reduction. Because of the protection given by the hospice floor calculation, these CBSAs would see smaller percentage decreases in their hospice wage index values than those CBSAs that are not eligible for the floor calculation. This will benefit those hospices with lower hospice wage index values, which are typically in rural areas. Finally, the hospice wage index values only apply to the labor portion of the payment rates; the labor portion was described in Section I.B.1 of this proposed rule. Therefore the estimated reduction in payments due to this proposed phase-out of the BNAF would be less than the percentage reductions to the hospice wage index values that would result from reducing or eliminating the BNAF. In addition, the effects of the proposed phase-out of the BNAF could also be mitigated by a hospital market basket update in payments, which in FY 2008 was a 3.3 percent increase in payment rates. We will not have the final market basket update for FY 2009 until the summer, but the current estimate of the hospital market basket update is expected to be around 3.0 percent. This update will be communicated through an administrative instruction and not through rulemaking. The estimated effects on payment described in column 5 of Table 1 in section IV.B of this proposed rule include the projected effect of an estimated 3.0 percent hospital market basket update. CMS may implement updates to the payment rates in future rulemaking. b. Effects of Phasing-Out the BNAF Using the Updated Pre-floor, Pre-reclassified Hospital Wage Index Data (FY 2009 Proposal) For FY 2009, we propose updating the hospice wage index using the 2008 pre-floor, pre-reclassified hospital wage index and the most complete claims data available (FY 2006 claims). Using these data, we computed a full BNAF of 6.5357 percent. For the first year of the BNAF phase-out (FY 2009), the BNAF would be reduced by 25 percent, or 0.065357 × 0.75 = 0.049018, to 4.9018 percent. This would decrease hospice wage index values by approximately 1.53 to 1.54 percent from wage index values with the full BNAF applied. As noted in the previous discussion on the effects of the BNAF reduction in the published FY 2008 hospice wage index, those CBSAs which already have pre-floor, pre-reclassified hospital wage index values that have the hospice floor applied prior to implementing a proposed BNAF reduction would be completely unaffected by this proposed BNAF reduction. Those CBSAs which previously had hospice wage index values above 0.8 after applying the full BNAF, but which now are below 0.8 with the 25 percent reduction in the BNAF would be less affected by the BNAF reduction than those CBSAs which are 0.8 or above after applying the BNAF, as they are protected by the hospice floor calculation. Additionally, as mentioned in section I.B.1 of this proposed rule, the final hospice wage index is only applied to the labor portion of the payment rates, so the actual effect on estimated payment would be less than the anticipated 1.53 to 1.54 percent reduction in the hospice wage index value. Furthermore, that effect may be mitigated by a market basket update. As noted earlier, the market basket update will not be available until the summer, but estimates of the update are at about 3.0 percent. Column 3 of Table 1 (section IV of this proposed rule) shows the impact of using the most recent wage index data (the 2008 pre-floor, pre-reclassified hospital wage index not including any reclassification under section 1886(d)(8)(B) of the Act) compared to the 2007 pre-floor, pre-reclassified hospital wage index data which was used to derive the FY 2008 hospice wage index. Column 4 of Table 1 in Section IV of this proposed rule shows the impact of incorporating the 25 percent reduction in the BNAF in the proposed FY 2009 hospice wage index along with using the most recent wage index data (2008 pre-floor, pre-reclassified hospital wage index). Finally, column 5 of Table 1 shows the combined effects of using the updated pre-floor, pre-reclassified hospital wage index, the 25 percent reduced BNAF, and an estimated market basket update of 3.0 percent. The proposed FY 2009 rural and urban hospice wage indexes can be found in Addenda A and B of this proposed rule. The pre-floor, pre-reclassified hospital wage index values were adjusted by the 25 percent reduced BNAF or by the hospice floor. D. Summary of the Provisions of the Proposed Rule • We propose to clarify that the hospice benefit will follow the definition of “urban” specified in § 412.64(b)(1)(ii)(A) and (B), and the rural definition as any area outside of an urban area in § 412.64(b)(1)(ii)(C). The regulatory text of § 418.306(c) will be amended to reference § 412.64(b)(1)(ii)(A) through (C). This affects two New England “deemed” counties that meet the OMB definition of rural, but were previously counted as urban; these two counties would now be considered rural. See section II.A of this proposed rule for details. • As a basis for the hospice wage index, we propose to continue to use the pre-floor, pre-reclassified hospital wage index, which includes a change to how wage data from multi-campus hospitals are apportioned. See section II.B of this proposed rule for more details. • We propose to continue to use a pre-floor, pre-reclassified hospital wage index based solely on the CBSA designations, using the most recent pre-floor and pre-reclassified hospital wage index available at the time of publication. See section II.C.1 of this proposed rule for details. • We propose to continue the policy that for urban labor markets without an urban hospital from which a pre-floor, pre-reclassified hospital wage index could be derived, all of the urban CBSA pre-floor, pre-reclassified hospital wage index values within the State would be used to calculate a statewide urban average pre-floor, pre-reclassified hospital wage index to use as a reasonable proxy for these areas. See section II.C.2 of this proposed rule for details. • We propose to continue the policy that we impute an average pre-floor, pre-reclassified rural hospital wage index value by averaging the pre-floor, pre-reclassified hospital wage index values from contiguous CBSAs as a reasonable proxy for rural areas with no hospital wage data from which to calculate a pre-floor, pre-reclassified hospital wage index. See section II.C.2 f of this proposed rule or details. • We propose to continue to utilize the most recent pre-floor, pre-reclassified hospital wage index value available for Puerto Rico. See section II.C.2 of this proposed rule for details. • We propose to phase-out the hospice BNAF over 3 years, reducing it by 25 percent for FY 2009, by 75 percent for FY 2010, and eliminating it completely for FY 2011. See sections II.C.3.a and II.C.3.b of this proposed rule for details. As stated in section II.C.3, based on comments received, updated data, and subsequent analysis, for the final rule we may determine that a different percentage reduction in the BNAF (for any of the years) or a different phase-out timeframe would be more appropriate. Specifically, it may be determined that a more aggressive alternative (e.g., a 50 percent reduction in the BNAF in FY 2009, a 75 percent reduction in the BNAF in FY 2010, and elimination of the BNAF in FY 2011) is more appropriate. Consequently, we will continue to look at reduction percentages and time period alternatives for the phase-out of the BNAF and, for the final rule, will implement what is determined to be the most appropriate option based on the above information. • We propose to continue to maintain the hospice floor calculation. See section II.C.3 of this proposed rule for details. Addendum A reflects the proposed FY 2009 hospice wage index values for urban areas designations. Addendum B reflects the proposed FY 2009 hospice wage index values for rural areas designations. III. Collection of Information Requirements This document does not impose any information collection and recordkeeping requirements. Consequently, it does not need to be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 35). IV. Regulatory Impact Analysis A. Overall Impact We have examined the impacts of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act
(RFA)(September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), Executive Order 13132 on Federalism, and the Congressional Review Act (5 U.S.C. 804(2)). We estimated the impact on hospices, as a result of the changes to the proposed FY 2009 hospice wage index and of reducing the BNAF by 25 percent. As discussed previously, the methodology for computing the hospice wage index was determined through a negotiated rulemaking committee and implemented in the August 8, 1997 final rule (62 FR 42860). This rule proposes updates to the hospice wage index in accordance with our regulation but proposes to revise the Negotiated Rulemaking Committee methodology of including a BNAF. Executive Order 12866 (as amended by Executive Order 13258, which merely reassigns responsibility of duties) directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits including potential economic, environmental, public health and safety effects, distributive impacts, and equity. A regulatory impact analysis
(RIA)must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). We have determined that this proposed rule is an economically significant rule under this Executive Order. Column 4 of Table 1 shows the combined effects of the proposed 25 percent reduction in the BNAF and of the updated wage data, comparing estimated payments for FY 2009 to estimated payments for FY 2008. We estimate that the total hospice payments for FY 2009 will decrease by $100 million as a result of the application of the 25 percent reduction in the BNAF and the updated wage data. This estimate does not take into account any market basket update, which is currently forecast to be about 3.0 percent. The final market basket update will not be available until some time later this year and will be communicated through an administrative instruction. The estimated effect of a 3.0 percent forecasted market basket update on payments to hospices is approximately $280 million. If we were to take into account an estimated 3.0 percent market basket update, in addition to the 25 percent reduction in the BNAF and the updated wage data, it is estimated that hospice payments would increase by approximately $180 million ($280 million − $100 million = $180 million). The percent change in payments to hospices due to the combined effects of the 25 percent reduction in the BNAF, the updated wage data, and the estimated market basket update of 3.0 percent is reflected in column 5 of the impact table (Table 1). The RFA requires agencies to analyze options for regulatory relief of small businesses, if a rule has a significant impact on a substantial number of small entities. The great majority of hospices and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of less than $6.5 million to $31.5 million in any one year (for details, see the Small Business Administration's regulation at 65 FR 69432, that sets forth size standards for health care industries). As indicated in Table 1 below, there are 2,986 hospices as of February 2008. Approximately 52.7 percent of Medicare certified hospices are identified as voluntary, government, or other agencies and, therefore, are considered small entities. Most of these and most of the remainder are also small hospice entities because their revenues fall below the SBA size thresholds. We note that the hospice wage index methodology was previously guided by consensus, through a negotiated rulemaking committee that included representatives of national hospice associations, rural, urban, large and small hospices, multi-site hospices, and consumer groups. Based on all of the options considered, the committee agreed on the methodology described in the committee statement, and after notice and comment, it was adopted into regulation in the August 8, 1997 final rule. In developing the process for updating the hospice wage index in the 1997 final rule, we considered the impact of this methodology on small hospice entities and attempted to mitigate any potential negative effects. Small hospice entities are more likely to be in rural areas, which are less affected by the BNAF reduction than entities in urban areas. Generally, hospices in rural areas are protected by the hospice floor, which mitigates the effect of the BNAF reduction. The effects of this rule on hospices, as illustrated in Table 1, are small. Overall, Medicare payments to all hospices will decrease by an estimated 1.1 percent, reflecting the combined effects of the 25 percent reduction in the BNAF and the updated wage data. Within the hospice subgroups, Medicare payments will decrease by no more than 1.6 percent. Furthermore, when including the estimated market basket update of 3.0 percent into these figures, the combined effects of Medicare payment changes to all hospices will result in an increase of approximately 1.9 percent. Overall average hospice revenue effects will be slightly less than these estimates since according the National Hospice and Palliative Care Organization, about 16 percent of hospice caseload is non-Medicare. Longstanding HHS practice in interpreting the RFA is to consider effects economically “significant” only if they reach a threshold of 3 to 5 percent or more. Accordingly, we have determined that this proposed rule does not create a significant economic impact on a substantial number of small entities. In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside a CBSA and has fewer than 100 beds. We have determined that this proposed rule will not have a significant impact on the operations of a substantial number of small rural hospitals. Section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA)also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of about $130 million or more (the threshold in the statute, updated for inflation through 2008). This proposed rule is not anticipated to have an effect on State, local, or tribal governments or on the private sector of $130 million or more. Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. We have reviewed this proposed rule under the threshold criteria of Executive Order 13132, Federalism, and have determined that it will not have an impact on the rights, roles, and responsibilities of State, local, or tribal governments. B. Anticipated Effects This section discusses the impact of the projected effects of the proposed provisions of this rule, including the estimated effects of a projected 3.0 percent market basket update that will be communicated separately through an administrative instruction. The proposed provisions include continuing to use the CBSA-based pre-floor, pre-reclassified hospital wage index (to include the clarification of New England “deemed” counties and a change in the way that multi-campus hospital wage data are treated in the creation of the pre-floor, pre-reclassified hospital wage index), continuing the use the same policies for treatment of areas (rural and urban) without hospital wage data, and reducing the BNAF by 25 percent for the first year of a 3-year BNAF phase-out. The proposed FY 2009 hospice wage index is based upon the 2008 pre-floor, pre-reclassified hospital wage index and the most complete claims data available (FY 2006) with a 25 percent reduction in the BNAF. For the purposes of our impacts, our baseline is estimated FY 2008 payments using the 2007 pre-floor, pre-reclassified hospital wage index. Our first comparison (column 3, Table 1) compares our baseline to estimated FY 2009 payments (holding payment rates constant) using the updated wage data (2008 pre-floor, pre-reclassified hospital wage index). Consequently, the estimated effects illustrated in column 3 of Table 1 are for the updated wage data only. The effects of using the updated pre-floor, pre-reclassified hospital wage index data combined with the 25 percent reduction in the BNAF are illustrated in column 4 of Table 1. Even though the market basket update is not part of this proposed rule, we have included a comparison of the combined effects of the 25 percent BNAF reduction, the updated pre-floor, pre-reclassified hospital wage index, and an estimated 3.0 percent market basket increase for FY 2009 (Table 1, column 5). Presenting this data gives the hospice industry a more complete picture of the effects of the proposed changes in this rule and the market basket update. Certain events may limit the scope or accuracy of our impact analysis, because such an analysis is susceptible to forecasting errors due to other changes in the forecasted impact time period. The nature of the Medicare program is such that the changes may interact, and the complexity of the interaction of these changes could make it difficult to predict accurately the full scope of the impact upon hospices. Table 1.—Anticipated Impact on Medicare Hospice Payments of Reducing the BNAF, Updating the Pre-Floor, Pre-Reclassified Hospital Wage Index Data, and Applying an Estimated 3.0 Percent Market Basket Update for the Proposed FY 2009 Hospice Wage Index, Compared to the Published Final FY 2008 Hospice Wage Index Number of hospices* Number of routine home care days in thousands Percent change in payments due to the effects of the updated wage data (FY 2009 Proposed Wage Index) Percent change in payments due to the combined effects of the 25% reduction in the BNAF and the updated wage data (FY 2009 Proposed Wage Index) Percent change in payments due to the combined effects of the 25% reduction in the BNAF, the updated wage data (FY 2009 Proposed Wage Index), and estimated market basket update (3.0%)
(5)ALL HOSPICES 2,986 61,351 −0.1 −1.1 1.9 URBAN HOSPICES 1,996 52,642 −0.1 −1.1 1.8 RURAL HOSPICES 990 8,709 −0.1 −0.9 2.1 BY REGION—URBAN: NEW ENGLAND 113 1,787 0.3 −0.8 2.2 MIDDLE ATLANTIC 201 5,250 −0.5 −1.6 1.4 SOUTH ATLANTIC 288 11,388 −0.1 −1.1 1.8 EAST NORTH CENTRAL 296 7,638 −0.3 −1.4 1.6 EAST SOUTH CENTRAL 160 4,365 −0.4 −1.3 1.7 WEST NORTH CENTRAL 152 3,413 0.0 −1.0 1.9 WEST SOUTH CENTRAL 339 7,131 −0.2 −1.2 1.7 MOUNTAIN 183 4,543 0.0 −1.1 1.9 PACIFIC 230 6,330 0.8 −0.4 2.6 PUERTO RICO 34 797 −1.1 −1.1 1.9 BY REGION—RURAL: NEW ENGLAND 26 147 −0.4 −1.4 1.5 MIDDLE ATLANTIC 43 408 0.3 −0.7 2.3 SOUTH ATLANTIC 125 1,759 0.0 −0.9 2.0 EAST NORTH CENTRAL 140 1,148 0.0 −1.0 1.9 EAST SOUTH CENTRAL 145 2,017 −0.4 −1.1 1.8 WEST NORTH CENTRAL 189 945 −0.3 −1.3 1.7 WEST SOUTH CENTRAL 165 1,325 −0.6 −0.8 2.2 MOUNTAIN 104 580 0.4 −0.6 2.4 PACIFIC 52 372 1.5 0.4 3.4 PUERTO RICO 1 7 0.0 0.0 3.0 ROUTINE HOME CARE DAYS: 0-3499 DAYS (small) 631 1,060 0.0 −0.9 2.0 3500-19,999 DAYS (medium) 1,445 14,385 −0.1 −1.1 1.9 20,000+ DAYS (large) 910 45,906 −0.1 −1.1 1.9 TYPE OF OWNERSHIP: VOLUNTARY 1,194 27,185 −0.2 −1.2 1.8 PROPRIETARY 1,412 30,017 0.0 −1.0 1.9 GOVERNMENT 192 986 0.1 −0.8 2.2 OTHER 188 3,163 0.0 −1.0 2.0 HOSPICE BASE: FREESTANDING 1,807 45,473 −0.1 −1.1 1.8 HOME HEALTH AGENCY 597 8,908 0.0 −1.0 2.0 HOSPITAL 567 6,756 0.0 −1.1 1.9 SKILLED NURSING FACILITY 15 213 −0.6 −1.7 1.2 BNAF = Budget Neutrality Adjustment Factor. * As of February 2008. Table 1 shows the results of our analysis. In column 1, we indicate the number of hospices included in our analysis as of February 2008. In column 2, we indicate the number of routine home care days that were included in our analysis, although the analysis was performed on all types of hospice care. Column 3 shows the percentage change in estimated Medicare payments from FY 2008 to FY 2009 due to the effects of the updated wage data only. Column 4 shows the percentage change in estimated hospice payments from FY 2008 to FY 2009 due to the combined effects of using the 2008 pre-floor, pre-reclassified hospital wage index and reducing the BNAF by 25 percent. Column 5 shows the percentage change in estimated hospice payments from FY 2008 to FY 2009 due to the combined effects of using updated wage data, a 25 percent BNAF reduction, and a 3.0 percent estimated market basket update. Table 1 also categorizes hospices by various geographic and provider characteristics. The first row of data displays the aggregate result of the impact for all Medicare-certified hospices. The second and third rows of the table categorize hospices according to their geographic location (urban and rural). Our analysis indicated that there are 1,996 hospices located in urban areas and 990 hospices located in rural areas. The next two row groupings in the table indicate the number of hospices by census region, also broken down by urban and rural hospices. The next grouping shows the impact on hospices based on the size of the hospice's program. We determined that the majority of hospice payments are made at the routine home care rate. Therefore, we based the size of each individual hospice's program on the number of routine home care days provided in FY 2006. The next grouping shows the impact on hospices by type of ownership. The final grouping shows the impact on hospices defined by whether they are provider-based or freestanding. As indicated in Table 1 below, there are 2,986 hospices. Approximately 52.7 percent of Medicare-certified hospices are identified as voluntary, government, or other agencies and, therefore, are considered small entities. Because the National Hospice and Palliative Care Organization estimates that approximately 83.7 percent of hospice patients are Medicare beneficiaries, we have not considered other sources of revenue in this analysis. As noted earlier, those CBSAs which had the hospice floor applied prior to our proposal to reduce the BNAF are unaffected by this proposed change in methodology. Those CBSAs that were not previously less than 0.8 after applying the full BNAF but which now are less than 0.8 after applying the reduced BNAF will see less of a reduction in payments as the floor protects their hospice wage index value. As stated previously, the following discussions are limited to demonstrating trends rather than projected dollars. We used the pre-floor, pre-reclassified hospital wage indexes as well as the most complete claims data available (FY 2006) in developing the impact analysis. The FY 2009 payment rates will be adjusted to reflect the full hospital market basket, as required by section 1814(i)(1)(C)(ii)(VII) of the Act. As previously noted, we publish these rates through administrative instructions rather than in a proposed rule. The FY 2008 update was 3.3 percent, and the FY 2009 update will not be available until the summer. Currently the FY 2009 update is estimated to be 3.0 percent; however this figure is subject to change. Since the inclusion of the effect of a market basket increase provides a more complete picture of estimated hospice payments for FY 2009, the last column of Table 1 shows the combined impacts of the 25 percent BNAF reduction, the updated wage index, and a projected 3.0 percent market basket update factor. As discussed in the FY 2006 final rule (70 FR 45129), hospice agencies may use multiple hospice wage index values to compute their payments based on potentially different geographic locations. Before January 1, 2008, the location of the beneficiary was used to determine the CBSA for routine and continuous home care and the location of the hospice agency was used to determine the CBSA for respite and general inpatient care. Beginning January 1, 2008, the hospice wage index utilized is based on the location of the site of service. As the location of the beneficiary's home and the location of the facility may vary, there will still be variability in geographic location for an individual hospice. We anticipate that the location of the various sites will usually correspond with the geographic location of the hospice, and thus we will continue to use the location of the hospice for our analyses of the impact of the proposed changes to the hospice wage index in this rule. For this analysis, we use payments to the hospice in the aggregate based on the location of the hospice. The impact of hospice wage index changes has been analyzed according to the type of hospice, geographic location, type of ownership, hospice base, and size. Our analysis shows that most hospices are in urban areas and provide the vast majority of routine home care days. Most hospices are medium-sized followed by large hospices. Hospices are almost equal in numbers by ownership with 1,574 designated as non-profit and 1,412 as proprietary. The vast majority of hospices are freestanding. 1. Hospice Size Under the Medicare hospice benefit, hospices can provide four different levels of care days. The majority of the days provided by a hospice are routine home care
(RHC)days representing about 97 percent of the services provided by a hospice. Therefore, the number of RHC days can be used as a proxy for the size of the hospice, that is, the more days of care provided, the larger the hospice. As discussed in the August 4, 2005 final rule, we currently use three size designations to present the impact analyses. The three categories are:
(1)Small agencies having 0 to 3,499 RHC days;
(2)medium agencies having 3,500 to 19,999 RHC days; and
(3)large agencies having 20,000 or more RHC days. The proposed FY 2009 wage index values without the BNAF reduction are anticipated to have virtually no impact on small hospice providers, with a slight decrease of 0.1 percent anticipated for medium and large hospices (column 3); the proposed FY 2009 wage index values with the 25 percent BNAF reduction and the updated wage data are anticipated to decrease estimated payments by 0.9 percent to small hospices and by 1.1 percent to medium and large hospices (column 4); and finally, the proposed FY 2009 wage index values with the 25 percent BNAF reduction, the updated wage data, and the estimated 3.0 percent market basket update are projected to increase estimated payments by 2.0 percent for small hospices and by 1.9 percent for medium and large hospices (column 5). 2. Geographic Location Column 3 of Table 1 shows that FY 2009 wage index values without the BNAF reduction will result in little change in estimated payments with rural and urban hospices anticipated to experience a slight decrease of 0.1 percent. For urban hospices, the greatest increase of 0.8 percent is anticipated to be experienced by the Pacific regions, followed by an increase for New England of 0.3 percent and no change for the West North Central and Mountain regions. The remaining urban regions are anticipated to experience a decrease ranging from 0.1 percent in the South Atlantic region 1.1 percent is for Puerto Rico. Column 3 shows that for rural hospices, Puerto Rico, the South Atlantic, and the East North Central regions are anticipated to experience no change. Four regions are anticipated to experience a decrease ranging from 0.3 percent for the West North Central region to 0.6 percent for West South Central region. The remaining regions are anticipated to experience an increase ranging from 0.3 percent for the Middle Atlantic region to 1.5 percent for the Pacific region. Column 4 shows the combined effect of the 25 percent BNAF reduction and the updated pre-floor, pre-reclassified hospital wage index values on estimated payments, as compared to the published FY 2008 payments. Overall urban hospices are anticipated to experience a 1.1 percent decrease in payments, while rural hospices expect a 0.9 percent decrease. The estimated percent decrease in payment for urban hospices ranged from 0.4 percent for Pacific hospices to 1.6 percent for Middle Atlantic hospices. The estimated percent decrease in payment for rural hospices ranged from 0.6 percent for Mountain hospices to 1.4 percent for New England hospices. Rural Puerto Rico's estimated payments were unaffected, and the Pacific region saw a 0.4 percent increase in estimated payments. Column 5 shows the combined effects of the proposed FY 2009 wage index values with the 25 percent BNAF reduction, the updated wage data, and the estimated 3.0 percent market basket update on estimated payments as compared to the published FY 2008 payments. Overall, urban hospices are anticipated to experience a 1.8 percent increase in payments while rural hospices should experience a 2.1 percent increase in payments. Urban hospices are anticipated to see an increase in estimated payments ranging from 1.4 percent for the Middle Atlantic region to 2.6 percent for the Pacific region. Rural hospices are estimated to see an increase in estimated payments ranging from 1.5 percent for the New England region to 3.4 percent for the Pacific region. 3. Type of Ownership Column 3 demonstrates the effect of the updated pre-floor, pre-reclassified hospital wage index on FY 2009 estimated payments versus FY 2008 estimated payments. We anticipate that using the updated pre-floor, pre-reclassified hospital wage index data will have no effect on proprietary hospices. While we estimate a slight decrease in estimated payments for voluntary (non-profit) hospices (0.2 percent), other hospices are expected to experience no effect and government hospices are expected to experience a slight increase in payments (0.1 percent). Column 4 demonstrates the combined effects of using updated pre-floor, pre-reclassified hospital wage index data and of incorporating a 25 percent BNAF reduction. Estimated payments to proprietary hospices are anticipated to decrease by 1.0 percent, while voluntary (non-profit), other, and government hospices are anticipated to experience decreases of 1.2 percent, 1.0 percent, and 0.8 percent, respectively. Column 5 shows the combined effects of the updated pre-floor, pre-reclassified hospital wage index values with the 25 percent BNAF reduction, the updated wage data, and the estimated 3.0 percent market basket update on estimated payments, comparing FY 2009 to FY 2008. Estimated FY 2009 payments are anticipated to increase for all hospices, regardless of ownership type. Estimated payments are forecast to increase from 1.8 percent for voluntary hospices to 2.2 percent for government hospices. 4. Hospice Base Column 3 demonstrates the effect of using the updated pre-floor, pre-reclassified hospital wage index values, comparing estimated payments for FY 2009 to FY 2008. Estimated payments are anticipated to decrease by 0.1 percent for freestanding facilities and by 0.6 percent for skilled nursing facilities. Home health and hospital based facilities are anticipated to experience no change in estimated payments. Column 4 shows the combined effects of reducing the BNAF by 25 percent and updating the pre-floor, pre-reclassified hospital wage index values, comparing FY 2009 to FY 2008 estimated payments. Skilled nursing facility based hospices are estimated to see a 1.7 percent decline, while hospital based hospices and freestanding hospices are each anticipated to experience a 1.1 percent decrease in payments. Home health agency based hospices are expected to experience a 1.0 percent decrease. Column 5 shows the combined effects of the 25 percent BNAF reduction, the updated pre-floor, pre-reclassified hospital wage index, and the estimated 3.0 percent market basket update on estimated payments, comparing FY 2009 to FY 2008. Estimated increases in payments range from 1.2 percent for skilled nursing facility based hospices to 2.0 percent for home health agency based hospices. We note that the President's budget includes a proposal for a zero percent payment update for hospices in FY 2009. The impacts outlined in Column 5 of Table 1 in this proposed rule, which include the effects of a 3.0 percent market basket update, would need to change in the final rule to reflect any legislation that the Congress might enact which would affect the market basket update. C. Accounting Statement As required by OMB Circular A-4 (available at *http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf* ), in Table 2 below, we have prepared an accounting statement showing the classification of the expenditures associated with the proposed provisions of this rule. This table provides our best estimate of the decrease in Medicare payments under the hospice benefit as a result of the changes presented in this proposed rule on data for 2,086 hospices in our database. All expenditures are classified as transfers to Medicare providers (that is, hospices). Table 2.—Accounting Statement: Classification of Estimated Expenditures, From FY 2008 to FY 2009 [In millions] Category Transfers Annualized Monetized Transfers $-100 * . From Whom to Whom Federal Government to Hospices. * The $100 million reduction in transfers includes the 25 percent reduction in the BNAF and the updated wage data. It does not include the market basket update, which is currently forecast to be about 3.0%. In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget. List of Subjects in 42 CFR Part 418 Health facilities, Health professions, Medicare, and Reporting and recordkeeping requirements. For the reasons set forth in the preamble, the Centers for Medicare and Medicare Services proposes to amend 42 CFR chapter IV as set forth below: PART 418—HOSPICE CARE 1. The authority citation for part 418 continues to read as follows: Authority: Secs 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh). Subpart G—Payment for Hospice Care 2. Section § 418.306 is amended by revising paragraph
(c)to read as follows: § 418.306 Determination of payment rates.
(c)Each hospice's labor market is determined based on definitions of Metropolitan Statistical Areas
(MSAs)issued by OMB. CMS will issue annually, in the **Federal Register** , a hospice wage index based on the most current available CMS hospital wage data, including changes to the definition of MSAs. The urban and rural area geographic classifications are defined in § 412.64(b)(1)(ii)(A) through
(C)of this chapter. The payment rates established by CMS are adjusted by the intermediary to reflect local differences in wages according to the revised wage data. (Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital Insurance; and Program No. 93.774, Medicare—Supplementary Medical Insurance Program) Note: The following addendums will not appear in the Code of Federal Regulations. Dated: March 14, 2008. Kerry Weems, Acting Administrator, Centers for Medicare & Medicaid Services. Approved: April 7, 2008. Michael O. Leavitt, Secretary. Addendum A.—Proposed Hospice Wage Index for Urban Areas by CBSA—FY 2009 CBSA code Urban area (constituent counties) 2 Wage index 1 10180 Abilene, TX 0.8347 Callahan County, TX Jones County, TX Taylor County, TX 10380 Aguadilla-Isabela-San Sebastián, PR 0.3965 Aguada Municipio, PR Aguadilla Municipio, PR Añasco Municipio, PR Isabela Municipio, PR Lares Municipio, PR Moca Municipio, PR Rincón Municipio, PR San Sebastián Municipio, PR 10420 Akron, OH 0.9225 Portage County, OH Summit County, OH 10500 Albany, GA 0.8931 Baker County, GA Dougherty County, GA Lee County, GA Terrell County, GA Worth County, GA 10580 Albany-Schenectady-Troy, NY 0.9009 Albany County, NY Rensselaer County, NY Saratoga County, NY Schenectady County, NY Schoharie County, NY 10740 Albuquerque, NM 1.0022 Bernalillo County, NM Sandoval County, NM Torrance County, NM Valencia County, NM 10780 Alexandria, LA 0.8370 Grant Parish, LA Rapides Parish, LA 10900 Allentown-Bethlehem-Easton, PA-NJ 1.0349 Warren County, NJ Carbon County, PA Lehigh County, PA Northampton County, PA 11020 Altoona, PA 0.9040 Blair County, PA 11100 Amarillo, TX 0.9563 Armstrong County, TX Carson County, TX Potter County, TX Randall County, TX 11180 Ames, IA 1.0538 Story County, IA 11260 Anchorage, AK 1.2497 Anchorage Municipality, AK Matanuska-Susitna Borough, AK 11300 Anderson, IN 0.9260 Madison County, IN 11340 Anderson, SC 0.9531 Anderson County, SC 11460 Ann Arbor, MI 1.1056 Washtenaw County, MI 11500 Anniston-Oxford, AL 0.8315 Calhoun County, AL 11540 Appleton, WI 1.0068 Calumet County, WI Outagamie County, WI 11700 Asheville, NC 0.9635 Buncombe County, NC Haywood County, NC Henderson County, NC Madison County, NC 12020 Athens-Clarke County, GA 1.1033 Clarke County, GA Madison County, GA Oconee County, GA Oglethorpe County, GA 12060 Atlanta-Sandy Springs-Marietta, GA 1.0310 Barrow County, GA Bartow County, GA Butts County, GA Carroll County, GA Cherokee County, GA Clayton County, GA Cobb County, GA Coweta County, GA Dawson County, GA DeKalb County, GA Douglas County, GA Fayette County, GA Forsyth County, GA Fulton County, GA Gwinnett County, GA Haralson County, GA Heard County, GA Henry County, GA Jasper County, GA Lamar County, GA Meriwether County, GA Newton County, GA Paulding County, GA Pickens County, GA Pike County, GA Rockdale County, GA Spalding County, GA Walton County, GA 12100 Atlantic City, NJ 1.2796 Atlantic County, NJ 12220 Auburn-Opelika, AL 0.8487 Lee County, AL 12260 Augusta-Richmond County, GA-SC 1.0118 Burke County, GA Columbia County, GA McDuffie County, GA Richmond County, GA Aiken County, SC Edgefield County, SC 12420 Austin-Round Rock, TX 1.0012 Bastrop County, TX Caldwell County, TX Hays County, TX Travis County, TX Williamson County, TX 12540 Bakersfield, CA 1.1593 Kern County, CA 12580 Baltimore-Towson, MD 1.0631 Anne Arundel County, MD Baltimore County, MD Carroll County, MD Harford County, MD Howard County, MD Queen Anne's County, MD Baltimore City, MD 12620 Bangor, ME 1.0467 Penobscot County, ME 12700 Barnstable Town, MA 1.3221 Barnstable County, MA 12940 Baton Rouge, LA 0.8428 Ascension Parish, LA East Baton Rouge Parish, LA East Feliciana Parish, LA Iberville Parish, LA Livingston Parish, LA Pointe Coupee Parish, LA St. Helena Parish, LA West Baton Rouge Parish, LA West Feliciana Parish, LA 12980 Battle Creek, MI 1.0678 Calhoun County, MI 13020 Bay City, MI 0.9333 Bay County, MI 13140 Beaumont-Port Arthur, TX 0.8949 Hardin County, TX Jefferson County, TX Orange County, TX 13380 Bellingham, WA 1.2036 Whatcom County, WA 13460 Bend, OR 1.1478 Deschutes County, OR 13644 Bethesda-Frederick-Gaithersburg, MD 1.1026 Frederick County, MD Montgomery County, MD 13740 Billings, MT 0.9091 Carbon County, MT Yellowstone County, MT 13780 Binghamton, NY 0.9388 Broome County, NY Tioga County, NY 13820 Birmingham-Hoover, AL 0.9334 Bibb County, AL Blount County, AL Chilton County, AL Jefferson County, AL St. Clair County, AL Shelby County, AL Walker County, AL 13900 Bismarck, ND 0.8000 Burleigh County, ND Morton County, ND 13980 Blacksburg-Christiansburg-Radford, VA 0.8594 Giles County, VA Montgomery County, VA Pulaski County, VA Radford City, VA 14020 Bloomington, IN 0.9352 Greene County, IN Monroe County, IN Owen County, IN 14060 Bloomington-Normal, IL 0.9782 McLean County, IL 14260 Boise City-Nampa, ID 0.9929 Ada County, ID Boise County, ID Canyon County, ID Gem County, ID Owyhee County, ID 14484 Boston-Quincy, MA 1.2370 Norfolk County, MA Plymouth County, MA Suffolk County, MA 14500 Boulder, CO 1.0937 Boulder County, CO 14540 Bowling Green, KY 0.8559 Edmonson County, KY Warren County, KY 14740 Bremerton-Silverdale, WA 1.1438 Kitsap County, WA 14860 Bridgeport-Stamford-Norwalk, CT 1.3359 Fairfield County, CT 15180 Brownsville-Harlingen, TX 0.9351 Cameron County, TX 15260 Brunswick, GA 0.9939 Brantley County, GA Glynn County, GA McIntosh County, GA 15380 Buffalo-Niagara Falls, NY 1.0037 Erie County, NY Niagara County, NY 15500 Burlington, NC 0.9176 Alamance County, NC 15540 Burlington-South Burlington, VT 1.0134 Chittenden County, VT Franklin County, VT Grand Isle County, VT 15764 Cambridge-Newton-Framingham, MA 1.1765 Middlesex County, MA 15804 Camden, NJ 1.0921 Burlington County, NJ Camden County, NJ Gloucester County, NJ 15940 Canton-Massillon, OH 0.9373 Carroll County, OH Stark County, OH 15980 Cape Coral-Fort Myers, FL 0.9857 Lee County, FL 16180 Carson City, NV 1.0493 Carson City, NV 16220 Casper, WY 0.9845 Natrona County, WY 16300 Cedar Rapids, IA 0.9286 Benton County, IA Jones County, IA Linn County, IA 16580 Champaign-Urbana, IL 0.9852 Champaign County, IL Ford County, IL Piatt County, IL 16620 Charleston, WV 0.8695 Boone County, WV Clay County, WV Kanawha County, WV Lincoln County, WV Putnam County, WV 16700 Charleston-North Charleston, SC 0.9571 Berkeley County, SC Charleston County, SC Dorchester County, SC 16740 Charlotte-Gastonia-Concord, NC-SC 0.9987 Anson County, NC Cabarrus County, NC Gaston County, NC Mecklenburg County, NC Union County, NC York County, SC 16820 Charlottesville, VA 0.9732 Albemarle County, VA Fluvanna County, VA Greene County, VA Nelson County, VA Charlottesville City, VA 16860 Chattanooga, TN-GA 0.9435 Catoosa County, GA Dade County, GA Walker County, GA Hamilton County, TN Marion County, TN Sequatchie County, TN 16940 Cheyenne, WY 0.9764 Laramie County, WY 16974 Chicago-Naperville-Joliet, IL 1.1240 Cook County, IL DeKalb County, IL DuPage County, IL Grundy County, IL Kane County, IL Kendall County, IL McHenry County, IL Will County, IL 17020 Chico, CA 1.1843 Butte County, CA 17140 Cincinnati-Middletown, OH-KY-IN 1.0264 Dearborn County, IN Franklin County, IN Ohio County, IN Boone County, KY Bracken County, KY Campbell County, KY Gallatin County, KY Grant County, KY Kenton County, KY Pendleton County, KY Brown County, OH Butler County, OH Clermont County, OH Hamilton County, OH Warren County, OH 17300 Clarksville, TN-KY 0.8655 Christian County, KY Trigg County, KY Montgomery County, TN Stewart County, TN 17420 Cleveland, TN 0.8447 Bradley County, TN Polk County, TN 17460 Cleveland-Elyria-Mentor, OH 0.9797 Cuyahoga County, OH Geauga County, OH Lake County, OH Lorain County, OH Medina County, OH 17660 Coeur d'Alene, ID 0.9999 Kootenai County, ID 17780 College Station-Bryan, TX 0.9817 Brazos County, TX Burleson County, TX Robertson County, TX 17820 Colorado Springs, CO 1.0195 El Paso County, CO Teller County, CO 17860 Columbia, MO 0.9082 Boone County, MO Howard County, MO 17900 Columbia, SC 0.9231 Calhoun County, SC Fairfield County, SC Kershaw County, SC Lexington County, SC Richland County, SC Saluda County, SC 17980 Columbus, GA-AL 0.9157 Russell County, AL Chattahoochee County, GA Harris County, GA Marion County, GA Muscogee County, GA 18020 Columbus, IN 1.0004 Bartholomew County, IN 18140 Columbus, OH 1.0579 Delaware County, OH Fairfield County, OH Franklin County, OH Licking County, OH Madison County, OH Morrow County, OH Pickaway County, OH Union County, OH 18580 Corpus Christi, TX 0.9009 Aransas County, TX Nueces County, TX San Patricio County, TX 18700 Corvallis, OR 1.1496 Benton County, OR 19060 Cumberland, MD-WV 0.8701 Allegany County, MD Mineral County, WV 19124 Dallas-Plano-Irving, TX 1.0401 Collin County, TX Dallas County, TX Delta County, TX Denton County, TX Ellis County, TX Hunt County, TX Kaufman County, TX Rockwall County, TX 19140 Dalton, GA 0.9189 Murray County, GA Whitfield County, GA 19180 Danville, IL 0.9396 Vermilion County, IL 19260 Danville, VA 0.8644 Pittsylvania County, VA Danville City, VA 19340 Davenport-Moline-Rock Island, IA-IL 0.9263 Henry County, IL Mercer County, IL Rock Island County, IL Scott County, IA 19380 Dayton, OH 0.9640 Greene County, OH Miami County, OH Montgomery County, OH Preble County, OH 19460 Decatur, AL 0.8272 Lawrence County, AL Morgan County, AL 19500 Decatur, IL 0.8470 Macon County, IL 19660 Deltona-Daytona Beach-Ormond Beach, FL 0.9474 Volusia County, FL 19740 Denver-Aurora, CO 1.1243 Adams County, CO Arapahoe County, CO Broomfield County, CO Clear Creek County, CO Denver County, CO Douglas County, CO Elbert County, CO Gilpin County, CO Jefferson County, CO Park County, CO 19780 Des Moines-West Des Moines, IA 0.9678 Dallas County, IA Guthrie County, IA Madison County, IA Polk County, IA Warren County, IA 19804 Detroit-Livonia-Dearborn, MI 1.0489 Wayne County, MI 20020 Dothan, AL 0.8000 Geneva County, AL Henry County, AL Houston County, AL 20100 Dover, DE 1.0594 Kent County, DE 20220 Dubuque, IA 0.9502 Dubuque County, IA 20260 Duluth, MN-WI 1.0464 Carlton County, MN St. Louis County, MN Douglas County, WI 20500 Durham, NC 1.0297 Chatham County, NC Durham County, NC Orange County, NC Person County, NC 20740 Eau Claire, WI 0.9939 Chippewa County, WI Eau Claire County, WI 20764 Edison, NJ 1.1729 Middlesex County, NJ Monmouth County, NJ Ocean County, NJ Somerset County, NJ 20940 El Centro, CA 0.9351 Imperial County, CA 21060 Elizabethtown, KY 0.9138 Hardin County, KY Larue County, KY 21140 Elkhart-Goshen, IN 1.0082 Elkhart County, IN 21300 Elmira, NY 0.8669 Chemung County, NY 21340 El Paso, TX 0.9430 El Paso County, TX 21500 Erie, PA 0.8911 Erie County, PA 21660 Eugene-Springfield, OR 1.1468 Lane County, OR 21780 Evansville, IN-KY 0.9087 Gibson County, IN Posey County, IN Vanderburgh County, IN Warrick County, IN Henderson County, KY Webster County, KY 21820 Fairbanks, AK 1.1592 Fairbanks North Star Borough, AK 21940 Fajardo, PR 0.5031 Ceiba Municipio, PR Fajardo Municipio, PR Luquillo Municipio, PR 22020 Fargo, ND-MN 0.8436 Cass County, ND Clay County, MN 22140 Farmington, NM 1.0057 San Juan County, NM 22180 Fayetteville, NC 0.9827 Cumberland County, NC Hoke County, NC 22220 Fayetteville-Springdale-Rogers, AR-MO 0.9171 Benton County, AR Madison County, AR Washington County, AR McDonald County, MO 22380 Flagstaff, AZ 1.2260 Coconino County, AZ 22420 Flint, MI 1.1770 Genesee County, MI 22500 Florence, SC 0.8653 Darlington County, SC Florence County, SC 22520 Florence-Muscle Shoals, AL 0.8056 Colbert County, AL Lauderdale County, AL 22540 Fond du Lac, WI 1.0141 Fond du Lac County, WI 22660 Fort Collins-Loveland, CO 1.0382 Larimer County, CO 22744 Fort Lauderdale-Pompano Beach-Deerfield Beach, FL 1.0730 Broward County, FL 22900 Fort Smith, AR-OK 0.8322 Crawford County, AR Franklin County, AR Sebastian County, AR Le Flore County, OK Sequoyah County, OK 23020 Fort Walton Beach-Crestview-Destin, FL 0.9172 Okaloosa County, FL 23060 Fort Wayne, IN 0.9739 Allen County, IN Wells County, IN Whitley County, IN 23104 Fort Worth-Arlington, TX 1.0168 Johnson County, TX Parker County, TX Tarrant County, TX Wise County, TX 23420 Fresno, CA 1.1532 Fresno County, CA 23460 Gadsden, AL 0.8559 Etowah County, AL 23540 Gainesville, FL 0.9647 Alachua County, FL Gilchrist County, FL 23580 Gainesville, GA 0.9668 Hall County, GA 23844 Gary, IN 0.9676 Jasper County, IN Lake County, IN Newton County, IN Porter County, IN 24020 Glens Falls, NY 0.8661 Warren County, NY Washington County, NY 24140 Goldsboro, NC 0.9743 Wayne County, NC 24220 Grand Forks, ND-MN 0.8267 Polk County, MN Grand Forks County, ND 24300 Grand Junction, CO 1.0348 Mesa County, CO 24340 Grand Rapids-Wyoming, MI 0.9772 Barry County, MI Ionia County, MI Kent County, MI Newaygo County, MI 24500 Great Falls, MT 0.9100 Cascade County, MT 24540 Greeley, CO 1.0131 Weld County, CO 24580 Green Bay, WI 1.0204 Brown County, WI Kewaunee County, WI Oconto County, WI 24660 Greensboro-High Point, NC 0.9452 Guilford County, NC Randolph County, NC Rockingham County, NC 24780 Greenville, NC 0.9863 Greene County, NC Pitt County, NC 24860 Greenville, SC 1.0343 Greenville County, SC Laurens County, SC Pickens County, SC 25020 Guayama, PR 0.3524 Arroyo Municipio, PR Guayama Municipio, PR Patillas Municipio, PR 25060 Gulfport-Biloxi, MS 0.9203 Hancock County, MS Harrison County, MS Stone County, MS 25180 Hagerstown-Martinsburg, MD-WV 0.9455 Washington County, MD Berkeley County, WV Morgan County, WV 25260 Hanford-Corcoran, CA 1.1014 Kings County, CA 25420 Harrisburg-Carlisle, PA 0.9735 Cumberland County, PA Dauphin County, PA Perry County, PA 25500 Harrisonburg, VA 0.9302 Rockingham County, VA Harrisonburg City, VA 25540 Hartford-West Hartford-East Hartford, CT 1.1496 Hartford County, CT Middlesex County, CT Tolland County, CT 25620 Hattiesburg, MS 0.8000 Forrest County, MS Lamar County, MS Perry County, MS 25860 Hickory-Lenoir-Morganton, NC 0.9471 Alexander County, NC Burke County, NC Caldwell County, NC Catawba County, NC 25980 Hinesville-Fort Stewart, GA 3 0.9637 Liberty County, GA Long County, GA 26100 Holland-Grand Haven, MI 0.9447 Ottawa County, MI 26180 Honolulu, HI 1.2122 Honolulu County, HI 26300 Hot Springs, AR 0.9556 Garland County, AR 26380 Houma-Bayou Cane-Thibodaux, LA 0.8279 Lafourche Parish, LA Terrebonne Parish, LA 26420 Houston-Sugar Land-Baytown, TX 1.0426 Austin County, TX Brazoria County, TX Chambers County, TX Fort Bend County, TX Galveston County, TX Harris County, TX Liberty County, TX Montgomery County, TX San Jacinto County, TX Waller County, TX 26580 Huntington-Ashland, WV-KY-OH 0.9484 Boyd County, KY Greenup County, KY Lawrence County, OH Cabell County, WV Wayne County, WV 26620 Huntsville, AL 0.9594 Limestone County, AL Madison County, AL 26820 Idaho Falls, ID 0.9718 Bonneville County, ID Jefferson County, ID 26900 Indianapolis-Carmel, IN 1.0327 Boone County, IN Brown County, IN Hamilton County, IN Hancock County, IN Hendricks County, IN Johnson County, IN Marion County, IN Morgan County, IN Putnam County, IN Shelby County, IN 26980 Iowa City, IA 1.0037 Johnson County, IA Washington County, IA 27060 Ithaca, NY 1.0102 Tompkins County, NY 27100 Jackson, MI 0.9786 Jackson County, MI 27140 Jackson, MS 0.8404 Copiah County, MS Hinds County, MS Madison County, MS Rankin County, MS Simpson County, MS 27180 Jackson, TN 0.9101 Chester County, TN Madison County, TN 27260 Jacksonville, FL 0.9463 Baker County, FL Clay County, FL Duval County, FL Nassau County, FL St. Johns County, FL 27340 Jacksonville, NC 0.8475 Onslow County, NC 27500 Janesville, WI 1.0178 Rock County, WI 27620 Jefferson City, MO 0.8894 Callaway County, MO Cole County, MO Moniteau County, MO Osage County, MO 27740 Johnson City, TN 0.8053 Carter County, TN Unicoi County, TN Washington County, TN 27780 Johnstown, PA 0.8000 Cambria County, PA 27860 Jonesboro, AR 0.8172 Craighead County, AR Poinsett County, AR 27900 Joplin, MO 0.9390 Jasper County, MO Newton County, MO 28020 Kalamazoo-Portage, MI 1.0944 Kalamazoo County, MI Van Buren County, MI 28100 Kankakee-Bradley, IL 1.0740 Kankakee County, IL 28140 Kansas City, MO-KS 0.9970 Franklin County, KS Johnson County, KS Leavenworth County, KS Linn County, KS Miami County, KS Wyandotte County, KS Bates County, MO Caldwell County, MO Cass County, MO Clay County, MO Clinton County, MO Jackson County, MO Lafayette County, MO Platte County, MO Ray County, MO 28420 Kennewick-Richland-Pasco, WA 1.0569 Benton County, WA Franklin County, WA 28660 Killeen-Temple-Fort Hood, TX 0.8653 Bell County, TX Coryell County, TX Lampasas County, TX 28700 Kingsport-Bristol-Bristol, TN-VA 0.8033 Hawkins County, TN Sullivan County, TN Bristol City, VA Scott County, VA Washington County, VA 28740 Kingston, NY 1.0024 Ulster County, NY 28940 Knoxville, TN 0.8430 Anderson County, TN Blount County, TN Knox County, TN Loudon County, TN Union County, TN 29020 Kokomo, IN 1.0061 Howard County, IN Tipton County, IN 29100 La Crosse, WI-MN 1.0160 Houston County, MN La Crosse County, WI 29140 Lafayette, IN 0.9304 Benton County, IN Carroll County, IN Tippecanoe County, IN 29180 Lafayette, LA 0.8651 Lafayette Parish, LA St. Martin Parish, LA 29340 Lake Charles, LA 0.8158 Calcasieu Parish, LA Cameron Parish, LA 29404 Lake County-Kenosha County, IL-WI 1.1123 Lake County, IL Kenosha County, WI 29420 Lake Havasu City - Kingman, AZ 0.9790 Mohave County, AZ 29460 Lakeland, FL 0.9086 Polk County, FL 29540 Lancaster, PA 0.9706 Lancaster County, PA 29620 Lansing-East Lansing, MI 1.0615 Clinton County, MI Eaton County, MI Ingham County, MI 29700 Laredo, TX 0.8490 Webb County, TX 29740 Las Cruces, NM 0.9101 Dona Ana County, NM 29820 Las Vegas-Paradise, NV 1.2377 Clark County, NV 29940 Lawrence, KS 0.8630 Douglas County, KS 30020 Lawton, OK 0.8418 Comanche County, OK 30140 Lebanon, PA 0.8594 Lebanon County, PA 30300 Lewiston, ID-WA 0.9917 Nez Perce County, ID Asotin County, WA 30340 Lewiston-Auburn, ME 0.9644 Androscoggin County, ME 30460 Lexington-Fayette, KY 0.9642 Bourbon County, KY Clark County, KY Fayette County, KY Jessamine County, KY Scott County, KY Woodford County, KY 30620 Lima, OH 0.9886 Allen County, OH 30700 Lincoln, NE 1.0544 Lancaster County, NE Seward County, NE 30780 Little Rock-North Little Rock, AR 0.9297 Faulkner County, AR Grant County, AR Lonoke County, AR Perry County, AR Pulaski County, AR Saline County, AR 30860 Logan, UT-ID 0.9633 Franklin County, ID Cache County, UT 30980 Longview, TX 0.9144 Gregg County, TX Rusk County, TX Upshur County, TX 31020 Longview, WA 1.1358 Cowlitz County, WA 31084 Los Angeles-Long Beach-Glendale, CA 1.2348 Los Angeles County, CA 31140 Louisville, KY-IN 0.9509 Clark County, IN Floyd County, IN Harrison County, IN Washington County, IN Bullitt County, KY Henry County, KY Jefferson County, KY Meade County, KY Nelson County, KY Oldham County, KY Shelby County, KY Spencer County, KY Trimble County, KY 31180 Lubbock, TX 0.9105 Crosby County, TX Lubbock County, TX 31340 Lynchburg, VA 0.9160 Amherst County, VA Appomattox County, VA Bedford County, VA Campbell County, VA Bedford City, VA Lynchburg City, VA 31420 Macon, GA 1.0009 Bibb County, GA Crawford County, GA Jones County, GA Monroe County, GA Twiggs County, GA 31460 Madera, CA 0.8465 Madera County, CA 31540 Madison, WI 1.1471 Columbia County, WI Dane County, WI Iowa County, WI 31700 Manchester-Nashua, NH 1.0777 Hillsborough County, NH 31900 Mansfield, OH 0.9725 Richland County, OH 32420 Mayaguez, PR 0.4268 Hormigueros Municipio, PR Mayaguez Municipio, PR 32580 McAllen-Edinburg-Pharr, TX 0.9570 Hidalgo County, TX 32780 Medford, OR 1.0824 Jackson County, OR 32820 Memphis, TN-MS-AR 0.9703 Crittenden County, AR DeSoto County, MS Marshall County, MS Tate County, MS Tunica County, MS Fayette County, TN Shelby County, TN Tipton County, TN 32900 Merced, CA 1.2714 Merced County, CA 33124 Miami-Miami Beach-Kendall, FL 1.0492 Miami-Dade County, FL 33140 Michigan City-La Porte, IN 0.9351 LaPorte County, IN 33260 Midland, TX 1.0508 Midland County, TX 33340 Milwaukee-Waukesha-West Allis, WI 1.0715 Milwaukee County, WI Ozaukee County, WI Washington County, WI Waukesha County, WI 33460 Minneapolis-St. Paul-Bloomington, MN-WI 1.1637 Anoka County, MN Carver County, MN Chisago County, MN Dakota County, MN Hennepin County, MN Isanti County, MN Ramsey County, MN Scott County, MN Sherburne County, MN Washington County, MN Wright County, MN Pierce County, WI St. Croix County, WI 33540 Missoula, MT 0.9392 Missoula County, MT 33660 Mobile, AL 0.8427 Mobile County, AL 33700 Modesto, CA 1.2548 Stanislaus County, CA 33740 Monroe, LA 0.8216 Ouachita Parish, LA Union Parish, LA 33780 Monroe, MI 0.9875 Monroe County, MI 33860 Montgomery, AL 0.8484 Autauga County, AL Elmore County, AL Lowndes County, AL Montgomery County, AL 34060 Morgantown, WV 0.8729 Monongalia County, WV Preston County, WV 34100 Morristown, TN 0.8000 Grainger County, TN Hamblen County, TN Jefferson County, TN 34580 Mount Vernon-Anacortes, WA 1.1045 Skagit County, WA 34620 Muncie, IN 0.8617 Delaware County, IN 34740 Muskegon-Norton Shores, MI 1.0318 Muskegon County, MI 34820 Myrtle Beach-Conway-North Myrtle Beach, SC 0.9057 Horry County, SC 34900 Napa, CA 1.5186 Napa County, CA 34940 Naples-Marco Island, FL 0.9952 Collier County, FL 34980 Nashville-Davidson—Murfreesboro, TN 1.0164 Cannon County, TN Cheatham County, TN Davidson County, TN Dickson County, TN Hickman County, TN Macon County, TN Robertson County, TN Rutherford County, TN Smith County, TN Sumner County, TN Trousdale County, TN Williamson County, TN Wilson County, TN 35004 Nassau-Suffolk, NY 1.3260 Nassau County, NY Suffolk County, NY 35084 Newark-Union, NJ-PA 1.2443 Essex County, NJ Hunterdon County, NJ Morris County, NJ Sussex County, NJ Union County, NJ Pike County, PA 35300 New Haven-Milford, CT 1.2453 New Haven County, CT 35380 New Orleans-Metairie-Kenner, LA 0.9333 Jefferson Parish, LA Orleans Parish, LA Plaquemines Parish, LA St. Bernard Parish, LA St. Charles Parish, LA St. John the Baptist Parish, LA St. Tammany Parish, LA 35644 New York-Wayne-White Plains, NY-NJ 1.3758 Bergen County, NJ Hudson County, NJ Passaic County, NJ Bronx County, NY Kings County, NY New York County, NY Putnam County, NY Queens County, NY Richmond County, NY Rockland County, NY Westchester County, NY 35660 Niles-Benton Harbor, MI 0.9589 Berrien County, MI 35980 Norwich-New London, CT 1.1992 New London County, CT 36084 Oakland-Fremont-Hayward, CA 1.6454 Alameda County, CA Contra Costa County, CA 36100 Ocala, FL 0.9050 Marion County, FL 36140 Ocean City, NJ 1.1527 Cape May County, NJ 36220 Odessa, TX 1.0534 Ector County, TX 36260 Ogden-Clearfield, UT 0.9441 Davis County, UT Morgan County, UT Weber County, UT 36420 Oklahoma City, OK 0.9247 Canadian County, OK Cleveland County, OK Grady County, OK Lincoln County, OK Logan County, OK McClain County, OK Oklahoma County, OK 36500 Olympia, WA 1.2076 Thurston County, WA 36540 Omaha-Council Bluffs, NE-IA 1.0030 Harrison County, IA Mills County, IA Pottawattamie County, IA Cass County, NE Douglas County, NE Sarpy County, NE Saunders County, NE Washington County, NE 36740 Orlando, FL 0.9678 Lake County, FL Orange County, FL Osceola County, FL Seminole County, FL 36780 Oshkosh-Neenah, WI 1.0019 Winnebago County, WI 36980 Owensboro, KY 0.9076 Daviess County, KY Hancock County, KY McLean County, KY 37100 Oxnard-Thousand Oaks-Ventura, CA 1.2433 Ventura County, CA 37340 Palm Bay-Melbourne-Titusville, FL 0.9782 Brevard County, FL 37380 Palm Coast, FL 0.9383 Flagler County, FL 37460 Panama City-Lynn Haven, FL 0.8720 Bay County, FL 37620 Parkersburg-Marietta, WV-OH 0.8502 Washington County, OH Pleasants County, WV Wirt County, WV Wood County, WV 37700 Pascagoula, MS 0.9071 George County, MS Jackson County, MS 37764 Peabody, MA 1.1172 Essex County, MA 37860 Pensacola-Ferry Pass-Brent, FL 0.8687 Escambia County, FL Santa Rosa County, FL 37900 Peoria, IL 0.9755 Marshall County, IL Peoria County, IL Stark County, IL Tazewell County, IL Woodford County, IL 37964 Philadelphia, PA 1.1461 Bucks County, PA Chester County, PA Delaware County, PA Montgomery County, PA Philadelphia County, PA 38060 Phoenix-Mesa-Scottsdale, AZ 1.0767 Maricopa County, AZ Pinal County, AZ 38220 Pine Bluff, AR 0.8223 Cleveland County, AR Jefferson County, AR Lincoln County, AR 38300 Pittsburgh, PA 0.8943 Allegheny County, PA Armstrong County, PA Beaver County, PA Butler County, PA Fayette County, PA Washington County, PA Westmoreland County, PA 38340 Pittsfield, MA 1.0586 Berkshire County, MA 38540 Pocatello, ID 0.9929 Bannock County, ID Power County, ID 38660 Ponce, PR 0.5118 Juana Díaz Municipio, PR Ponce Municipio, PR Villalba Municipio, PR 38860 Portland-South Portland-Biddeford, ME 1.0534 Cumberland County, ME Sagadahoc County, ME York County, ME 38900 Portland-Vancouver-Beaverton, OR-WA 1.2062 Clackamas County, OR Columbia County, OR Multnomah County, OR Washington County, OR Yamhill County, OR Clark County, WA Skamania County, WA 38940 Port St. Lucie—Fort Pierce, FL 1.0507 Martin County, FL St. Lucie County, FL 39100 Poughkeepsie-Newburgh-Middletown, NY 1.1520 Dutchess County, NY Orange County, NY 39140 Prescott, AZ 1.0511 Yavapai County, AZ 39300 Providence-New Bedford-Fall River, RI-MA 1.1092 Bristol County, MA Bristol County, RI Kent County, RI Newport County, RI Providence County, RI Washington County, RI 39340 Provo-Orem, UT 1.0025 Juab County, UT Utah County, UT 39380 Pueblo, CO 0.9285 Pueblo County, CO 39460 Punta Gorda, FL 0.9708 Charlotte County, FL 39540 Racine, WI 0.9964 Racine County, WI 39580 Raleigh-Cary, NC 1.0321 Franklin County, NC Johnston County, NC Wake County, NC 39660 Rapid City, SD 0.9243 Meade County, SD Pennington County, SD 39740 Reading, PA 0.9815 Berks County, PA 39820 Redding, CA 1.4205 Shasta County, CA 39900 Reno-Sparks, NV 1.1240 Storey County, NV Washoe County, NV 40060 Richmond, VA 0.9887 Amelia County, VA Caroline County, VA Charles City County, VA Chesterfield County, VA Cumberland County, VA Dinwiddie County, VA Goochland County, VA Hanover County, VA Henrico County, VA King and Queen County, VA King William County, VA Louisa County, VA New Kent County, VA Powhatan County, VA Prince George County, VA Sussex County, VA Colonial Heights City, VA Hopewell City, VA Petersburg City, VA Richmond City, VA 40140 Riverside-San Bernardino-Ontario, CA 1.1644 Riverside County, CA San Bernardino County, CA 40220 Roanoke, VA 0.9117 Botetourt County, VA Craig County, VA Franklin County, VA Roanoke County, VA Roanoke City, VA Salem City, VA 40340 Rochester, MN 1.1282 Dodge County, MN Olmsted County, MN Wabasha County, MN 40380 Rochester, NY 0.9292 Livingston County, NY Monroe County, NY Ontario County, NY Orleans County, NY Wayne County, NY 40420 Rockford, IL 1.0295 Boone County, IL Winnebago County, IL 40484 Rockingham County-Strafford County, NH 1.0607 Rockingham County, NH Strafford County, NH 40580 Rocky Mount, NC 0.9442 Edgecombe County, NC Nash County, NC 40660 Rome, GA 0.9485 Floyd County, GA 40900 Sacramento—Arden-Arcade—Roseville, CA 1.4167 El Dorado County, CA Placer County, CA Sacramento County, CA Yolo County, CA 40980 Saginaw-Saginaw Township North, MI 0.9244 Saginaw County, MI 41060 St. Cloud, MN 1.1066 Benton County, MN Stearns County, MN 41100 St. George, UT 0.9817 Washington County, UT 41140 St. Joseph, MO-KS 0.9191 Doniphan County, KS Andrew County, MO Buchanan County, MO DeKalb County, MO 41180 St. Louis, MO-IL 0.9466 Bond County, IL Calhoun County, IL Clinton County, IL Jersey County, IL Macoupin County, IL Madison County, IL Monroe County, IL St. Clair County, IL Crawford County, MO Franklin County, MO Jefferson County, MO Lincoln County, MO St. Charles County, MO St. Louis County, MO Warren County, MO Washington County, MO St. Louis City, MO 41420 Salem, OR 1.1090 Marion County, OR Polk County, OR 41500 Salinas, CA 1.5499 Monterey County, CA 41540 Salisbury, MD 0.9435 Somerset County, MD Wicomico County, MD 41620 Salt Lake City, UT 0.9860 Salt Lake County, UT Summit County, UT Tooele County, UT 41660 San Angelo, TX 0.9000 Irion County, TX Tom Green County, TX 41700 San Antonio, TX 0.9267 Atascosa County, TX Bandera County, TX Bexar County, TX Comal County, TX Guadalupe County, TX Kendall County, TX Medina County, TX Wilson County, TX 41740 San Diego-Carlsbad-San Marcos, CA 1.2055 San Diego County, CA 41780 Sandusky, OH 0.9254 Erie County, OH 41884 San Francisco-San Mateo-Redwood City, CA 1.5940 Marin County, CA San Francisco County, CA San Mateo County, CA 41900 San Germán-Cabo Rojo, PR 0.5438 Cabo Rojo Municipio, PR Lajas Municipio, PR Sabana Grande Municipio, PR San Germán Municipio, PR 41940 San Jose-Sunnyvale-Santa Clara, CA 1.6506 San Benito County, CA Santa Clara County, CA 41980 San Juan-Caguas-Guaynabo, PR 0.5207 Aguas Buenas Municipio, PR Aibonito Municipio, PR Arecibo Municipio, PR Barceloneta Municipio, PR Barranquitas Municipio, PR Bayamón Municipio, PR Caguas Municipio, PR Camuy Municipio, PR Canóvanas Municipio, PR Carolina Municipio, PR Cataño Municipio, PR Cayey Municipio, PR Ciales Municipio, PR Cidra Municipio, PR Comerío Municipio, PR Corozal Municipio, PR Dorado Municipio, PR Florida Municipio, PR Guaynabo Municipio, PR Gurabo Municipio, PR Hatillo Municipio, PR Humacao Municipio, PR Juncos Municipio, PR Las Piedras Municipio, PR Loíza Municipio, PR Manatí Municipio, PR Maunabo Municipio, PR Morovis Municipio, PR Naguabo Municipio, PR Naranjito Municipio, PR Orocovis Municipio, PR Quebradillas Municipio, PR Río Grande Municipio, PR San Juan Municipio, PR San Lorenzo Municipio, PR Toa Alta Municipio, PR Toa Baja Municipio, PR Trujillo Alto Municipio, PR Vega Alta Municipio, PR Vega Baja Municipio, PR Yabucoa Municipio, PR 42020 San Luis Obispo-Paso Robles, CA 1.3100 San Luis Obispo County, CA 42044 Santa Ana-Anaheim-Irvine, CA 1.2343 Orange County, CA 42060 Santa Barbara-Santa Maria-Goleta, CA 1.2288 Santa Barbara County, CA 42100 Santa Cruz-Watsonville, CA 1.6912 Santa Cruz County, CA 42140 Santa Fe, NM 1.1260 Santa Fe County, NM 42220 Santa Rosa-Petaluma, CA 1.5416 Sonoma County, CA 42260 Sarasota-Bradenton-Venice, FL 1.0420 Manatee County, FL Sarasota County, FL 42340 Savannah, GA 0.9579 Bryan County, GA Chatham County, GA Effingham County, GA 42540 Scranton—Wilkes-Barre, PA 0.8872 Lackawanna County, PA Luzerne County, PA Wyoming County, PA 42644 Seattle-Bellevue-Everett, WA 1.2139 King County, WA Snohomish County, WA 42680 Sebastian-Vero Beach, FL 0.9873 Indian River County, FL 43100 Sheboygan, WI 0.9415 Sheboygan County, WI 43300 Sherman-Denison, TX 0.8728 Grayson County, TX 43340 Shreveport-Bossier City, LA 0.8891 Bossier Parish, LA Caddo Parish, LA De Soto Parish, LA 43580 Sioux City, IA-NE-SD 0.9704 Woodbury County, IA Dakota County, NE Dixon County, NE Union County, SD 43620 Sioux Falls, SD 1.0032 Lincoln County, SD McCook County, SD Minnehaha County, SD Turner County, SD 43780 South Bend-Mishawaka, IN-MI 1.0088 St. Joseph County, IN Cass County, MI 43900 Spartanburg, SC 0.9884 Spartanburg County, SC 44060 Spokane, WA 1.0967 Spokane County, WA 44100 Springfield, IL 0.9382 Menard County, IL Sangamon County, IL 44140 Springfield, MA 1.0874 Franklin County, MA Hampden County, MA Hampshire County, MA 44180 Springfield, MO 0.9121 Christian County, MO Dallas County, MO Greene County, MO Polk County, MO Webster County, MO 44220 Springfield, OH 0.9120 Clark County, OH 44300 State College, PA 0.9198 Centre County, PA 44700 Stockton, CA 1.2436 San Joaquin County, CA 44940 Sumter, SC 0.9021 Sumter County, SC 45060 Syracuse, NY 1.0396 Madison County, NY Onondaga County, NY Oswego County, NY 45104 Tacoma, WA 1.1597 Pierce County, WA 45220 Tallahassee, FL 0.9467 Gadsden County, FL Jefferson County, FL Leon County, FL Wakulla County, FL 45300 Tampa-St. Petersburg-Clearwater, FL 0.9462 Hernando County, FL Hillsborough County, FL Pasco County, FL Pinellas County, FL 45460 Terre Haute, IN 0.9237 Clay County, IN Sullivan County, IN Vermillion County, IN Vigo County, IN 45500 Texarkana, TX-Texarkana, AR 0.8151 Miller County, AR Bowie County, TX 45780 Toledo, OH 0.9893 Fulton County, OH Lucas County, OH Ottawa County, OH Wood County, OH 45820 Topeka, KS 0.8957 Jackson County, KS Jefferson County, KS Osage County, KS Shawnee County, KS Wabaunsee County, KS 45940 Trenton-Ewing, NJ 1.1223 Mercer County, NJ 46060 Tucson, AZ 0.9698 Pima County, AZ 46140 Tulsa, OK 0.8749 Creek County, OK Okmulgee County, OK Osage County, OK Pawnee County, OK Rogers County, OK Tulsa County, OK Wagoner County, OK 46220 Tuscaloosa, AL 0.8710 Greene County, AL Hale County, AL Tuscaloosa County, AL 46340 Tyler, TX 0.9561 Smith County, TX 46540 Utica-Rome, NY 0.8902 Herkimer County, NY Oneida County, NY 46660 Valdosta, GA 0.8495 Brooks County, GA Echols County, GA Lanier County, GA Lowndes County, GA 46700 Vallejo-Fairfield, CA 1.5385 Solano County, CA 47020 Victoria, TX 0.8709 Calhoun County, TX Goliad County, TX Victoria County, TX 47220 Vineland-Millville-Bridgeton, NJ 1.0630 Cumberland County, NJ 47260 Virginia Beach-Norfolk-Newport News, VA-NC 0.9250 Currituck County, NC Gloucester County, VA Isle of Wight County, VA James City County, VA Mathews County, VA Surry County, VA York County, VA Chesapeake City, VA Hampton City, VA Newport News City, VA Norfolk City, VA Poquoson City, VA Portsmouth City, VA Suffolk City, VA Virginia Beach City, VA Williamsburg City, VA 47300 Visalia-Porterville, CA 1.0586 Tulare County, CA 47380 Waco, TX 0.8936 McLennan County, TX 47580 Warner Robins, GA 0.9575 Houston County, GA 47644 Warren-Troy-Farmington Hills, MI 1.0491 Lapeer County, MI Livingston County, MI Macomb County, MI Oakland County, MI St. Clair County, MI 47894 Washington-Arlington-Alexandria, DC-VA-MD-WV 1.1387 District of Columbia, DC Calvert County, MD Charles County, MD Prince George's County, MD Arlington County, VA Clarke County, VA Fairfax County, VA Fauquier County, VA Loudoun County, VA Prince William County, VA Spotsylvania County, VA Stafford County, VA Warren County, VA Alexandria City, VA Fairfax City, VA Falls Church City, VA Fredericksburg City, VA Manassas City, VA Manassas Park City, VA Jefferson County, WV 47940 Waterloo-Cedar Falls, IA 0.8937 Black Hawk County, IA Bremer County, IA Grundy County, IA 48140 Wausau, WI 1.0153 Marathon County, WI 48260 Weirton-Steubenville, WV-OH 0.8312 Jefferson County, OH Brooke County, WV Hancock County, WV 48300 Wenatchee, WA 1.2031 Chelan County, WA Douglas County, WA 48424 West Palm Beach-Boca Raton-Boynton Beach, FL 1.0205 Palm Beach County, FL 48540 Wheeling, WV-OH 0.8000 Belmont County, OH Marshall County, WV Ohio County, WV 48620 Wichita, KS 0.9506 Butler County, KS Harvey County, KS Sedgwick County, KS Sumner County, KS 48660 Wichita Falls, TX 0.8308 Archer County, TX Clay County, TX Wichita County, TX 48700 Williamsport, PA 0.8437 Lycoming County, PA 48864 Wilmington, DE-MD-NJ 1.1355 New Castle County, DE Cecil County, MD Salem County, NJ 48900 Wilmington, NC 0.9871 Brunswick County, NC New Hanover County, NC Pender County, NC 49020 Winchester, VA-WV 1.0399 Frederick County, VA Winchester City, VA Hampshire County, WV 49180 Winston-Salem, NC 0.9565 Davie County, NC Forsyth County, NC Stokes County, NC Yadkin County, NC 49340 Worcester, MA 1.1840 Worcester County, MA 49420 Yakima, WA 1.0770 Yakima County, WA 49500 Yauco, PR 0.3777 Guánica Municipio, PR Guayanilla Municipio, PR Peñuelas Municipio, PR Yauco Municipio, PR 49620 York-Hanover, PA 0.9818 York County, PA 49660 Youngstown-Warren-Boardman, OH-PA 0.9443 Mahoning County, OH Trumbull County, OH Mercer County, PA 49700 Yuba City, CA 1.1283 Sutter County, CA Yuba County, CA 49740 Yuma, AZ 0.9953 Yuma County, AZ 1 Wage index values are based on FY 2004 hospital cost report data before reclassification. These data form the basis for the pre-floor, pre-reclassified hospital wage index. The budget neutrality adjustment or the hospice floor is then applied to the pre-floor, pre-reclassified hospital wage index to derive the hospice wage index. Wage index values greater than or equal to 0.8 are subject to a budget neutrality adjustment. The hospice floor calculation is as follows: Wage index values below 0.8 are adjusted to be the greater of either the a) the 25 percent reduced budget neutrality adjustment OR b) the minimum of the pre-floor, pre-reclassified hospital wage index value x 1.15, or 0.8000. For the proposed FY 2009 hospice wage index, the budget neutrality adjustment was reduced by 25 percent. 2 This column lists each CBSA area name and each county or county equivalent, in the CBSA area. Counties not listed in this Table are considered to be rural areas. Wage index values for these areas are found in Addendum B. 3 Because there are no hospitals in this CBSA, the wage index value is calculated by taking the average of all other urban CBSAs in Georgia. Addendum B.—Proposed Hospice Wage Index for Rural Areas by CBSA—FY 2009 CBSA code Non-urban area Wage index 1 Alabama 0.8000 2 Alaska 1.2703 3 Arizona 0.8895 4 Arkansas 0.8000 5 California 1.2612 6 Colorado 1.0180 7 Connecticut 1.1664 8 Delaware 1.0204 10 Florida 0.8880 11 Georgia 0.8034 12 Hawaii 1.1132 13 Idaho 0.8308 14 Illinois 0.8744 15 Indiana 0.8996 16 Iowa 0.8986 17 Kansas 0.8372 18 Kentucky 0.8175 19 Louisiana 0.8000 20 Maine 0.8891 21 Maryland 0.9477 22 Massachusetts 1 1.2157 23 Michigan 0.9392 24 Minnesota 0.9524 25 Mississippi 0.8077 26 Missouri 0.8319 27 Montana 0.8790 28 Nebraska 0.9283 29 Nevada 0.9726 30 New Hampshire 1.0983 31 New Jersey 2 32 New Mexico 0.9378 33 New York 0.8673 34 North Carolina 0.9025 35 North Dakota 0.8000 36 Ohio 0.9141 37 Oklahoma 0.8000 38 Oregon 1.0392 39 Pennsylvania 0.8796 40 Puerto Rico 3 0.4654 41 Rhode Island 2 42 South Carolina 0.9080 43 South Dakota 0.8968 44 Tennessee 0.8102 45 Texas 0.8359 46 Utah 0.8514 47 Vermont 1.0405 48 Virgin Islands 0.7855 49 Virginia 0.8283 50 Washington 1.0762 51 West Virginia 0.8000 52 Wisconsin 1.0141 53 Wyoming 0.9742 65 Guam 1.0082 1 There are no hospitals in the rural areas of Massachusetts, so the wage index value used is the average of the contiguous counties. 2 There are no rural areas in this state. 3 Wage index values are obtained using the methodology described in this proposed rule. [FR Doc. 08-1198 Filed 4-28-08; 4:00 pm]
Connectionstraces to 30
Traces to 30 documents
21 references not yet in our index
  • 50 CFR 660
  • 50 CFR 300
  • 50 CFR 660.411
  • 16 USC 773-773k
  • 12 CFR 712
  • Pub. L. 109-351
  • 120 Stat. 1966
  • 12 USC 1781-1790d
  • 12 CFR 702
  • 12 CFR 712.7
  • Pub. L. 105-277
  • 14 CFR 39
  • 40 CFR 52
  • 40 CFR 58
  • 40 CFR 51
  • Pub. L. 104-4
  • 42 CFR 418
  • 42 CFR 412
  • Pub. L. 101-648
  • 44 USC 35
  • Pub. L. 96-354
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Final rule; and a temporary rule for emergency action; request for comments
Fed. Reg.Notices
U.S.C.§ 1855
U.S.C.§ 553
U.S.C.§ 1757
C.F.R.§ 712.3
C.F.R.§ 712.6
C.F.R.§ 791.8
C.F.R.§ 712.5
C.F.R.§ 701.22
Cite50 CFR 660
Cite50 CFR 300
Cite50 CFR 660.411
Cites 51 · showing 12Cited by 0 across 0 sources
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