Federal Register / Vol. 78, No. 107 / Tuesday, June 4, 2013 / Rules and Regulations 33233 

1Patient Protection and Affordable Care Act; 

Establishment of Exchanges and Qualified Health 

Plans; Exchange Standards for Employers, 77 FR 

18310 (March 27, 2012) (to be codified at 45 CFR 

parts 155, 156, & 157). 2Patient Protection and Affordable Care Act; CMS 

Notice of Benefit and Payment Parameters for 2014, 

78 FR 15410 (March 11, 2013) (to be codified at 45 

CFR parts 153, 155, 156, 157, & 158). 

3Patient Protection and Affordable Care Act; 

Establishment of Exchanges and Qualified Health 

Plans; Small Business Health Options Program, 77 

FR 15553 (March 11, 2013) (to be codified at 45 CFR 

parts 155 & 156). 

4HIPAA added section 9801(f) to the Internal 

Revenue Code (the Code), section 701(f) to the 

Employee Retirement Income Security Act (ERISA), 

and section 2704(f) to the Public Health Service 

Act. 

* * * * * 

[FR Doc. 2013–13064 Filed 6–3–13; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

45 CFR Parts 155 and 156 

[CMS–9964–F2] 

RIN 0938–AR76 

Patient Protection and Affordable Care 

Act; Establishment of Exchanges and 

Qualified Health Plans; Small Business 

Health Options Program 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Final rule. 

SUMMARY: This final rule implements 

provisions of the Patient Protection and 

Affordable Care Act and the Health Care 

and Education Reconciliation Act of 

2010 (collectively referred to as the 

Affordable Care Act) related to the 

Small Business Health Options Program 

(SHOP). Specifically, this final rule 

amends existing regulations regarding 

triggering events and special enrollment 

periods for qualified employees and 

their dependents and implements a 

transitional policy regarding employees’ 

choice of qualified health plans (QHPs) 

in the SHOP. 

DATES: These regulations are effective 

on July 1, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Leigha Basini at (301) 492–4307. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

Beginning in 2014, individuals and 

small businesses will be able to 

purchase private health insurance 

through competitive marketplaces, 

called Affordable Insurance Exchanges 

or ‘‘Exchanges’’ (also called Health 

Insurance Marketplaces). Section 

1311(b)(1)(B) of the Affordable Care Act 

contemplates that in each State there 

will be a SHOP that assists qualified 

employers in providing health 

insurance options for their employees. 

The final rule, Patient Protection and 

Affordable Care Act; Establishment of 

Exchanges and Qualified Health Plans; 

Exchange Standards for Employers 

(Exchange Establishment Rule),1 as 

modified by the Notice of Benefit and 

Payment Parameters for 2014,2 sets forth 

standards for the administration of 

SHOP Exchanges. In this rule, we 

finalize provisions proposed in the 

Establishment of Exchanges and 

Qualified Health Plans; Small Business 

Health Options Program Notice of 

Proposed Rule Making,3 which amends 

some of the standards established in the 

Exchange Establishment Rule. 

In the Exchange Establishment Rule, 

we established standards for special 

enrollment periods for people enrolled 

through an individual market Exchange, 

and provided that, in most instances, a 

special enrollment period is 60 days 

from the date of the triggering event. See 

45 CFR 155.420. We also made these 

provisions applicable to SHOPs, at 

§ 155.725(a)(3). In the proposed rule we 

proposed and this final rule amends, the 

special enrollment period for the SHOP 

to 30 days for most applicable triggering 

events, so that it aligns with the special 

enrollment periods for the group market 

established by the Health Insurance 

Portability and Accountability Act of 

1996 (HIPAA).4 To further align the 

SHOP provisions with HIPAA, we also 

proposed that if an employee or 

dependent becomes eligible for 

premium assistance under Medicaid or 

the Children’s Health Insurance 

Program (CHIP) or loses eligibility for 

Medicaid or CHIP, this would be a 

triggering event, and the employee or 

dependent would have a 60-day special 

enrollment period to select a QHP. This 

triggering event had previously been 

inadvertently omitted from the 

regulations because it applies only to 

group health plans and health insurance 

coverage in the group market. We also 

proposed to make a conforming change 

to § 156.285(b)(2), so that this section 

references the SHOP special enrollment 

periods in a way that is consistent with 

our proposed changes to § 155.725. 

In the Exchange Establishment Rule, 

we also set forth the minimum functions 

of a SHOP, including that the SHOP 

must allow employers the option to 

offer employees all QHPs at a level of 

coverage chosen by the employer, and 

that the SHOP may allow employers to 

offer one or more QHPs to qualified 

employees by other methods. We 

proposed and are now finalizing the 

following transitional policy. For plan 

years beginning on or after January 1, 

2014 and before January 1, 2015, a 

SHOP will not be required to permit 

qualified employers to offer their 

qualified employees a choice of QHPs at 

a single level of coverage, but will have 

the option of doing so. Federallyfacilitated SHOPs (FF–SHOPs) will not 

exercise this option, but will instead 

allow employers to choose a single QHP 

from the choices available in FF–SHOP 

to offer their qualified employees. This 

transitional policy is intended to 

provide additional time to prepare for 

an employee choice model and to 

increase the stability of the small group 

market while providing small groups 

with the benefits of SHOP in 2014 (such 

as a choice among competing QHPs and 

access for qualifying small employers to 

the small business health care tax 

credit). We also proposed changes to the 

effective date of the SHOP premium 

aggregation function set forth at 

§ 155.705(b)(4) in the Exchange 

Establishment Rule consistent with this 

transitional policy, which we are 

finalizing in this rule. 

II. Background 

A. Legislative Overview 

Section 1311(b) of the Affordable Care 

Act establishes that there will be a 

SHOP in each State to assist qualified 

small employers in providing health 

insurance options to their employees. 

Section 1311(c)(6) of the Affordable 

Care Act sets forth that the Secretary of 

Health and Human Services (HHS) shall 

direct Exchanges to provide for special 

enrollment periods. Section 155.420 of 

the Exchange Establishment Rule 

established special enrollment periods 

for the individual market, and 

§ 155.725(a)(3) established them for the 

SHOP. 

Section 1312(a)(2) of the Affordable 

Care Act provides that qualified 

employers may offer qualified 

employees a choice among all QHPs at 

a level of coverage chosen by the 

employer. Section 1312(f)(2)(A) defines 

a qualified employer as a small 

employer that elects to make all fulltime employees of such employer 

eligible for one or more QHPs offered in 

the small group market through an 

Exchange that offers QHPs. The 

Exchange Establishment Rule set forth 

standards for the SHOP and 

implemented section 1312 at 45 CFR, 

part 155, subpart H. 

B. Stakeholder Consultation and Input 

HHS has consulted with a wide range 

of interested stakeholders on policy 

matters related to the SHOP, including 

through regular conversations with the 


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33234 Federal Register / Vol. 78, No. 107 / Tuesday, June 4, 2013 / Rules and Regulations 

5Patient Protection and Affordable Care Act; 

Establishment of Exchanges and Qualified Health 

Plans; Proposed Rule, 76 FR 41866 (July 15, 2011) 

(to be codified at 45 CFR parts 155 & 156). 

6Patient Protection and Affordable Care Act; HHS 

Notice of Benefit and Payment Parameters for 2014; 

Proposed Rule, 77 FR 73118 (December 7, 2012) (to 

be codified at 45 CFR parts 153, 155, 156, 157, & 

158). 

National Association of Insurance 

Commissioners (NAIC), employers, 

health insurance issuers, trade groups, 

consumer advocates, agents and brokers, 

and other interested parties. HHS has 

also held many consultations with 

States about the SHOP, both 

individually and through group 

conversations. HHS received many 

comments in response to the Exchange 

Establishment proposed rule,5 including 

comments regarding the statutory 

provisions on SHOP employee choice 

and special enrollment periods for 

employees and their dependents, to 

which we responded in the Exchange 

Establishment Rule. HHS also received 

comments in response to the December 

2012 Notice of Benefit and Payment 

Parameters for 2014 proposed rule,6 to 

which we responded in the Notice of 

Benefit and Payment Parameters for 

2014 final rule (78 FR 15410). We 

considered these stakeholder comments 

in developing this final rule. 

C. Structure of the Final Rule 

The regulations outlined in this final 

rule will be codified in 45 CFR parts 155 

and 156. The provisions in part 155 

outline the standards relative to the 

establishment, operation, and functions 

of Exchanges, including the SHOP. The 

provisions in part 156 outline the health 

insurance issuer standards under the 

Affordable Care Act, including 

standards related to Exchanges and 

SHOPs. 

This final rule finalizes provisions set 

forth in the March 11, 2013 proposed 

rule (78 FR 15553). 

III. Provisions of the Proposed Rule and 

Responses to Public Comments 

We received 40 comments to the 

proposed rule, including comments 

from consumer advocacy groups, health 

care providers, employers, health 

insurers, health care associations, 

Members of Congress, and individuals. 

The comments ranged from general 

support or opposition to the proposed 

provisions to very specific questions or 

comments regarding proposed changes. 

In this section, we summarize the 

provisions of the proposed rule and 

discuss and provide responses to the 

comments. We have carefully 

considered these comments in finalizing 

this rule. 

Brief summaries of each proposed 

provision, a summary of the public 

comments we received and our 

responses to the comments are as 

follows. We received a number of 

comments that fall outside the scope of 

these regulations, which we do not 

address in this final rule. 

The following summarizes comments 

about the rule, in general, or regarding 

issues not contained in specific 

provisions: 

Comment: Two commenters suggested 

that HHS should revisit § 156.200(g), as 

finalized in the Notice of Benefit and 

Payment Parameters for 2014. Section 

156.200(g) is a QHP certification 

requirement linking, or tying, federallyfacilitated Exchange and FF–SHOP 

participation. Generally, the 

certification requirement applies when 

an issuer or a member of the same issuer 

group as the issuer (defined at § 156.20 

as a group under common ownership 

and control, or using a common national 

service mark) has a share of the small 

group market in a State with a federallyfacilitated Exchange/FF–SHOP that 

exceeds 20 percent, as determined from 

the most recent earned premiums data 

reported to HHS. .Specifically, the 

certification requirement applies in the 

following circumstances: We interpret 

§ 156.200(g)(1) to require that issuers 

that have greater than 20 percent small 

group market share offer at least one 

silver-level QHP and one gold-level 

QHP through the FF–SHOP as a 

condition of participation in the 

federally facilitated individual market 

Exchange. 

We also interpret § 156.200(g)(1) to 

require that issuers that do not have 

greater than 20 percent market share in 

a State’s small group market, but that 

are members of an issuer group that has 

at least one member with greater than 20 

percent market share, have to offer the 

required silver and gold level coverage 

through the SHOP as a condition of 

participation in the individual market 

Exchange. 

Under § 156.200(g)(2), issuers that do 

not offer small group market products in 

a State, but that are members of an 

issuer group that has at least one 

member with greater than 20 percent 

market share, would not have to offer 

the required SHOP coverage themselves. 

Instead, another issuer in that issuer’s 

group would do so, and in light of the 

fact that we intend the tying provision 

to fall primarily on issuers with greater 

than 20 percent market share, we 

interpret § 156.200(g)(2) to require that 

the issuer meeting the requirement in 

these circumstances be an issuer whose 

small group market share exceeds 20 

percent. 

The commenters on this certification 

requirement stated that tying Exchange 

participation to SHOP participation 

could lead to higher costs in the SHOPs 

and may have a disparate effect on 

larger issuers in the small group market. 

Response: Section 156.200(g) has been 

finalized and will apply in the 2014 

plan year. HHS intends to evaluate in 

future years the effect this certification 

standard is having generally on a State’s 

small group market and specifically on 

employee choice in SHOPs. 

A. Part 155—Exchange Establishment 

Standards and Other Related Standards 

Under the Affordable Care Act 

1. Subpart H—Exchange Functions: 

Small Business Health Options Program 

(SHOP) 

a. Functions of a SHOP (§ 155.705) 

Facilitating employee choice at a 

single level of coverage selected by the 

employer—bronze, silver, gold, or 

platinum—is a required SHOP function 

established in the Exchange 

Establishment Rule (45 CFR 

155.705(b)(2)) and discussed in greater 

detail in the preamble to the December 

2012 HHS Notice of Benefit and 

Payment Parameters for 2014 proposed 

rule. In addition, the rules permit 

SHOPs to allow a qualified employer to 

choose one QHP for employees 

(§ 155.705(b)(3)). 

When we proposed this policy, we 

also sought comments on a transitional 

policy in which a FF–SHOP would 

allow employers to offer to their 

employees a single QHP from those 

offered through the SHOP (77 FR 

73184). A few commenters suggested 

that each FF–SHOP should provide 

employee choice. Most commenters on 

this issue, however, supported allowing 

employers to choose a single QHP 

option for employees, either as an 

additional option or as the only option 

in the initial years of the FF–SHOP. The 

commenters who supported providing a 

qualified employer only the option 

choosing a single QHP to offer in the 

initial years of FF–SHOP operation cited 

several concerns, including the 

following: whether issuers could meet 

the deadlines for submission of small 

group market QHPs given the new small 

group market rating rules; whether 

issuers could complete enrollment and 

accounting system changes required to 

interact with the SHOP enrollment and 

premium aggregation systems required 

by employee choice. The commenters 

stated that issuer efforts to prepare and 

price QHPs for an employee choice 

environment and to make the systems 

and operational changes required for 

SHOP enrollment and premium 


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Federal Register / Vol. 78, No. 107 / Tuesday, June 4, 2013 / Rules and Regulations 33235 

aggregation could compete with efforts 

to prepare for participation in the 

Exchange (both individual and SHOP). 

In light of these concerns, we 

concluded in the final HHS Notice of 

Benefit and Payment Parameters for 

2014 that the FF–SHOP would provide 

employers the choice of offering only a 

single QHP, as employers customarily 

do today, in addition to the choice of 

offering all QHPs at a single level of 

coverage. 

To respond to these comments we 

proposed a transition policy until 2015 

that allows, but does not require 

implementation of the employee choice 

model for all SHOPs. We also proposed 

that FF–SHOPs should assist qualified 

employers in offering qualified 

employees a single QHP choice for plan 

years beginning during calendar year 

2014. 

The Exchange Establishment Rule 

also included a premium aggregation 

function for the SHOP that was 

designed to assist employers whose 

employees were enrolled in multiple 

QHPs. Because this function will not be 

necessary in 2014 for SHOPs that delay 

implementation of the employee choice 

model, we also proposed at 

§ 155.705(b)(4) that the premium 

aggregation function be optional for 

plan years beginning before January 1, 

2015. 

Specifically, we proposed 

amendments to § 155.705(b)(2), (b)(3), 

and (b)(4) providing as follows: (1) The 

effective date of the employer choice 

requirements at § 155.705(b)(2) and the 

premium aggregation requirements at 

§ 155.705(b)(4) for both State-based 

SHOPs and FF–SHOPs will be January 

1, 2015; (2) State-based SHOPs could 

elect to offer employee choice and 

perform premium aggregation for plan 

years beginning before January 1, 2015, 

but need not do so; and (3) FF–SHOPs 

will begin to offer employee choice and 

premium aggregation in plan years 

beginning on or after January 1, 2015. 

We received the following comments 

concerning these proposals. 

Comment: Many commenters 

expressed support for the proposed 

transition policy for both the employer 

choice requirement of § 155.705(b)(2) 

and the premium aggregation 

requirement of § 155.705(b)(4), stating 

that the transition would provide the 

additional time needed to build the 

systems necessary to ensure the success 

of employee choice and premium 

aggregation. Other commenters opposed 

the delay, believing that transitioning to 

employee choice would undermine the 

value proposition of the SHOP in any 

State that exercised this option and 

reduce enrollment in the SHOP. One 

commenter suggested that during the 

transitional policy SHOPs operate under 

a simplified implementation that does 

not include a web portal and plan 

comparison tool. 

Response: Section 1312 of the 

Affordable Care Act permits an 

employer to select a level of coverage 

and an employee to have the choice of 

enrolling in any qualified health plan 

that offers coverage at that level. We 

have serious concerns that issuers 

would not be operationally ready to 

offer QHPs through the SHOP if we 

implemented employee choice for 2014. 

As described in the proposed rule, 

HHS proposed a transitional period for 

employee choice and premium 

aggregation in the SHOP based on 

comments issuers made about whether 

issuers could complete the enrollment 

and accounting system changes required 

to interact with the SHOP enrollment 

and premium aggregation systems 

required by employee choice and 

whether issuers could meet the 

deadlines for submission of small group 

market QHPs. 

As finalized at 45 CFR 147.102, the 

new rating rules for coverage beginning 

on January 1, 2014 significantly reform 

rating practices in many States. In 

comments to the Final Notice of Benefit 

and Payment Parameters for 2014, 

issuers expressed concern that 

implementation of employee choice 

would complicate SHOP pricing in light 

of the compressed timeframe for 

finalizing rates because employee 

choice may significantly modify the 

population expected to participate in a 

plan in a manner that will be difficult 

for issuers to predict. 

In other comments to the Exchange 

Establishment Rule and Notice of 

Benefit and Payment Parameters for 

2014, issuers also expressed concern 

with the compressed timeline for 

completing the modifications to their 

information technology systems 

necessitated by employee choice and 

premium aggregation. For example, 

many health insurance issuers expect 

that their accounting and enrollment 

systems will be the sole system of 

record. Integrating such a system into a 

SHOP with employee choice and 

premium aggregation might require 

additional modifications to the system, 

as the system must be synchronized 

with the SHOP’s enrollment and 

accounting systems and responsibility 

for determining certain group changes 

in enrollment and billing might be 

effectuated by the SHOP instead of the 

issuer. 

Issuers also expressed concern that 

there would be inadequate time to 

educate employers, employees, and 

agents and brokers about how they are 

expected to interact with the SHOP. For 

example, issuers noted that they 

accommodate many of the unique needs 

of small businesses through changes in 

enrollment at the time of payment. 

Under employee choice and premium 

aggregation, some standardization of 

these processes is necessary because an 

employee group may interact with a 

variety of carriers, each potentially with 

its own set of rules. Issuers suggested 

that they needed additional time to 

educate employers and agents and 

brokers about these new standardized 

processes. 

We believe that even in SHOPs that 

elect to transition to employee choice, 

there is still significant value to the 

SHOP for small employers when 

compared to the small group market 

outside the SHOP and therefore 

significant value to operating a SHOP 

under this transitional policy. 

Employers participating in the SHOP 

may qualify for a small business health 

care tax credit of up to 50 percent of the 

employer paid premium cost of 

coverage. The SHOP will still provide 

employers with a streamlined 

comparison of health plans from 

multiple health insurance issuers, 

assistance modeling employee 

contributions, and real-time premium 

quotes. These benefits would not be 

available to employers under simplified 

implementation suggested by one 

commenter. Further, plans sold on the 

SHOP must be certified as QHPs, 

meaning that they must meet minimum 

standards in order for issuers to sell 

them on the SHOP. We believe that 

because of this strong value proposition, 

the SHOP may still have robust 

enrollment despite the adoption of this 

transitional policy. 

Comment: Some commenters 

suggested that HHS further delay full 

implementation of employee choice and 

extend the transitional period for up to 

five years. Two commenters suggested 

that HHS test employee choice and 

premium aggregation in a few States to 

study their effect on the small group 

market before requiring their 

implementation in every SHOP. 

Response: We believe a one-year 

transitional period best addresses these 

concerns, as it provides issuers with a 

year’s worth of experience under the 

new small group rating methodology, 

gives issuers significantly more time to 

design and implement the modifications 

to their systems necessary for employee 

choice and premium aggregation, and 

allows additional time for education 

and outreach about employee choice. 

HHS will monitor through any 

information provided under § 155.720(i) 


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33236 Federal Register / Vol. 78, No. 107 / Tuesday, June 4, 2013 / Rules and Regulations 

7See 26 CFR 54.9801–6, 29 CFR 2590.701–6, and 

45 CFR 146.117 for regulations regarding special 

enrollment periods under HIPAA. 

the effect of implementing employee 

choice in States that elect to implement 

it in 2014. This process will provide 

much of the systematic testing suggested 

by commenters. 

Comment: Some commenters 

suggested that HHS use the additional 

time afforded to SHOPs to implement 

employee choice under the proposed 

rule to further streamline the paperwork 

and regulatory burden on employers 

and to streamline other Exchangerelated employer reporting 

requirements. 

Response: We received comments on 

the ‘‘Data Collection to Support 

Eligibility Determinations and 

Enrollment for Employees in the Small 

Business Health Options Program’’ 

Paperwork Reduction Act packages 

through both the 60-day Federal 

Register Notice published on January 

29, 2013 (78 FR 6109) and the 30-day 

Federal Register Notice published on 

July 6, 2012 (77 FR 40061). These 

comments helped us to reduce the 

burden of SHOP applications on small 

employers by streamlining the 

application form. HHS has used these 

opportunities to create application 

questions for determining an employer’s 

size that are easier for an employer to 

understand. HHS, the Departments of 

Labor, and the Treasury continue to 

explore methods to minimize any 

employer burden. 

Comment: One commenter requested 

HHS clarify how the proposed FF– 

SHOP transitional employee choice 

policy would affect the ability of 

employers to offer stand-alone pediatric 

dental coverage in the FF–SHOP. 

Response: We do not believe that the 

transitional employee choice policy 

would prevent an employer from 

selecting and offering a single standalone dental plan in addition to a QHP. 

Comment: Some commenters 

requested that HHS clarify how the 

transitional employee choice policy 

would affect the employer contribution 

methodology for the FF–SHOP that was 

issued in the Notice of Benefit and 

Payment Parameters for 2014 and 

codified at § 155.705(b)(11)(ii), as these 

commenters suggested the purpose of 

this contribution model may no longer 

be pertinent without employee choice, 

specifically the ability to calculate 

composite premiums. 

Response: This rule does not modify 

the premium contribution methodology 

codified in § 155.705(b)(11)(ii), which 

permits either State law or employers to 

require the FF–SHOP to base 

contributions on a calculated composite 

premium for employees. In the case of 

the FF–SHOP before 2015 operating 

with the employee choice transitional 

policy, we now clarify that the 

benchmark plan selected by the 

employer will be the single QHP offered 

by the employer to its employees, 

simplifying this process for the 

employer. 

Comment: One commenter supporting 

the FF–SHOP transitional employee 

choice policy questioned how the delay 

of premium aggregation would affect the 

collection of user fees from QHP issuers 

participating in the FF–SHOP. 

Response: We do not believe this 

transitional employee choice policy will 

impact the collection of user fees from 

QHP issuers participating in the FF– 

SHOP. We noted in the preamble to the 

Notice of Benefit and Payment 

Parameters for 2014 (78 FR 15496) that 

we anticipate user fees for the FF–SHOP 

to be collected in the same manner as 

they will be collected for the FFE. We 

anticipate collecting user fees by 

deducting the user fee from the 

federally-administered Exchange-related 

program payments. If a QHP issuer does 

not receive any Exchange-related 

program payments, the issuer would be 

billed for the user fee on a monthly 

basis and receive an invoice as 

described in the ‘‘Supporting Statement 

for Paperwork Reduction Act 

Submissions: Initial Plan Data 

Collection to Support QHP Certification 

and other Financial Management and 

Exchange Operations’’ posted on the 

CMS Web site in conjunction with the 

Federal Register Notice (77 FR 40061). 

b. Enrollment Periods Under SHOP 

(§ 155.725) 

The Exchange Establishment Rule 

established special enrollment periods 

for Exchanges serving the individual 

market (§ 155.420), and the SHOP 

regulations adopted most of these 

provisions by reference (§ 155.725(a)(3)). 

Under these regulations, unless 

specifically stated otherwise in the 

regulations, a qualified individual has 

60 days from the date of the triggering 

event to select a QHP (§ 155.420(c)). 

This SHOP provision differs from the 

length of special enrollment periods in 

group markets provided by HIPAA, 

which last for 30 days after loss of 

eligibility for other group health plan or 

health insurance coverage or after a 

person becomes a dependent through 

marriage, birth, adoption, or placement 

for adoption.7 Because we believe that 

there is no rationale for providing a 

longer special enrollment period in a 

SHOP than is provided in the group 

market outside the SHOP, we proposed 

amendments to § 155.725 to clarify that 

a qualified employee or dependent of a 

qualified employee who has obtained 

coverage through the SHOP would have 

30 days from the date of most of the 

triggering events specified in § 155.420 

to select a QHP. Additionally, consistent 

with revisions to HIPAA enacted by 

section 311 of the Children’s Health 

Insurance Program Reauthorization Act 

of 2009 (CHIPRA) (Pub. L. 111–3, 

enacted on February 4, 2009), we 

proposed that a qualified employee or 

dependent of a qualified employee who 

has lost eligibility for Medicaid or CHIP 

coverage, or who has become eligible for 

State premium assistance under a 

Medicaid or CHIP program would be 

eligible for a special enrollment period 

in a SHOP and would have 60 days from 

the date of the triggering event to select 

a QHP. Specifically, we proposed 

striking § 155.725(a)(3) and adding a 

new paragraph (j) consolidating the 

proposed SHOP special enrollment 

provisions in one paragraph. We 

proposed a provision clarifying that a 

dependent of a qualified employee is 

eligible for a special enrollment period 

only if the employer offers coverage to 

dependents of qualified employees. We 

also proposed paragraphs (j)(5) and (j)(6) 

that retain certain provisions relating to 

effective dates of coverage and loss of 

minimum essential coverage from the 

original § 155.420. We proposed 

conforming revisions to § 156.285(b)(2), 

so that provision would reference the 

special enrollment periods in proposed 

§ 155.725(j) instead of those set forth at 

§ 155.420. We believe these changes 

appropriately align the SHOP provisions 

with provisions applicable to the rest of 

the group market, and welcome 

comment on the proposal. We received 

the following comments concerning 

these proposals. 

Comment: We received many 

comments supporting the proposed 

alignment of the length of special 

enrollment periods in the SHOP with 

the small group market at large. Some of 

these commenters stated that aligning 

with the existing market standards will 

reduce confusion, simplify public 

education, and prevent adverse 

selection. However, some commenters 

were concerned that reducing the length 

of special enrollment periods may not 

provide sufficient time for an employee 

to understand and compare the plan or 

plans offered to the employee. These 

commenters were particularly 

concerned that an employee choice 

model would require additional time for 

an employee to make an informed 

decision, as employees would have 


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Federal Register / Vol. 78, No. 107 / Tuesday, June 4, 2013 / Rules and Regulations 33237 

8Patient Protection and Affordable Care Act; 

Establishment of Exchanges and Qualified Health 

Plans, Exchange Standards for Employers and 

Standards Related to Reinsurance, Risk Corridors 

and Risk Adjustment Regulatory Impact Analysis, 

March 2012. Available at: http://cciio.cms.gov/ 

resources/files/Files2/03162012/hie3r-ria032012.pdf. 

many more plans to compare before 

making a decision. 

Response: We believe that even with 

the employee choice model, the existing 

HIPAA standard for the length of special 

enrollment periods reduces confusion 

and balances an employee’s need for 

sufficient time to review his or her plan 

options while limiting the potential for 

adverse selection. Today, many 

employers, agents and brokers, and 

employees are familiar with the existing 

HIPAA standard. Maintaining a policy 

inconsistent with the HIPAA standard 

would be confusing to many employers, 

agents and brokers, and employees, as 

they may rationally expect the market 

standard to apply inside the SHOP. 

Additionally, with the assistance of 

the SHOP, employees will have online 

tools that will assist them in easily 

viewing and comparing information 

regarding the premium cost and benefits 

of their plan options. These tools were 

specifically designed to assist 

employees in making an informed 

decision when presented with a large 

number of plans. Therefore, we believe 

that the employee choice model does 

not inherently require that employees 

have additional time to make a plan 

selection. 

c. Provisions for the Additional 

Standards Specific to SHOP 

In § 156.285, we proposed requiring 

QHPs in the SHOP to provide the 

special enrollment periods added to 

§ 155.725. While we received many 

comments on the proposed special 

enrollment periods, we received no 

comments on this conforming 

amendment. We are finalizing this 

provision as proposed. 

IV. Provisions of the Final Regulations 

This final rule incorporates the 

provisions of the proposed rule, and we 

are finalizing these provisions primarily 

as proposed. 

V. Collection of Information 

Requirements 

This final rule has not imposed new 

or altered existing information 

collection and recordkeeping 

requirements. Consequently, it need not 

be reviewed by the Office of 

Management and Budget under the 

authority of the Paperwork Reduction 

Act of 1995. 

VI. Regulatory Impact Analysis 

We have examined the impact of this 

final rule as required by Executive 

Order 12866 on Regulatory Planning 

and Review (September 30, 1993) and 

Executive Order 13563 on Improving 

Regulation and Regulatory Review 

(January 18, 2011), the Regulatory 

Flexibility Act (RFA) (September 19, 

1980, Pub. L. 96–354), section 202 of the 

Unfunded Mandates Reform Act of 1995 

(March 22, 1995; Pub. L. 104–4), 

Executive Order 13132 on Federalism 

(August 4, 1999), and the Congressional 

Review Act (5 U.S.C. 804(2)). 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). A regulatory impact analysis 

(RIA) must be prepared for major rules 

with economically significant effects 

($100 million or more in any 1 year). It 

is HHS’s belief that this final rule does 

not reach this economic threshold and 

thus is not considered a major rule. 

This final rule consists of a provision 

to amend the duration of certain special 

enrollment periods to correspond to the 

duration in group markets under 

HIPAA. The rule also adds a triggering 

event that creates a special enrollment 

period for qualified employees and/or 

their eligible dependents when an 

employee or qualified dependent with 

coverage through the SHOP becomes 

eligible for State premium assistance 

under Medicaid or CHIP or loses 

eligibility for Medicaid or CHIP. HIPAA, 

as revised by CHIPRA, already includes 

this triggering event, which was 

inadvertently omitted from the original 

list in § 155.420(d). We do not believe 

either of these actions would impose 

any new costs on issuers, employers, 

enrollees, or the SHOP. In fact, the 

amendment would create alignment of 

SHOP regulations with laws for the 

existing group market and could 

potentially create efficiencies for QHP 

issuers. 

Finally, this rule provides a transition 

so that SHOPs provide qualified 

employers the option to offer qualified 

employees a choice of any QHP at a 

single metal level starting with plan 

years beginning on or after January 1, 

2015, instead of January 1, 2014. For 

plan years beginning in CY 2014, 

qualified employers will offer qualified 

employees coverage through a single 

QHP in FF–SHOPs; State-based SHOPs 

will have the flexibility to offer either 

employer or employee choice in 2014. 

In our analysis of the impact of 

employer and employee choices in the 

Notice of Benefit and Payment 

Parameters for 2014 final rule (78 FR 

15410), we noted that adding the option 

for employers to offer a single QHP 

would have the potential effect of 

reducing adverse selection and any 

associated risk premium and a slight 

effect of decreasing the consumer 

benefit resulting from choice. We 

believe the same analysis applies to our 

proposal to provide employer choice in 

2014. 

Issuers will incur costs adapting their 

enrollment and financial systems to 

interact with a SHOPs enrollment and 

premium aggregation systems. The costs 

and benefits of Exchange and SHOP 

implementation were assessed in the 

RIA for the Exchange Establishment 

final rule, titled Patient Protection and 

Affordable Care Act; Establishment of 

Exchanges and Qualified Health Plans, 

Exchange Standards for Employers and 

Standards Related to Reinsurance, Risk 

Corridors and Risk Adjustment 

Regulatory Impact Analysis (Exchange 

RIA).8 Because issuers may now have an 

additional year to develop these systems 

and may thus be able to stage their 

efforts rather than implementing all 

system changes by October 1, 2013, we 

believe that the total cost will be 

unchanged. 

From the Exchange perspective, in the 

Exchange RIA, we noted that a Statebased Exchange could incur costs in 

establishing a premium aggregation 

function for the SHOP. Therefore, the 

policy in this final rule could decrease 

costs to States that operate a State-based 

Exchange for the 2014 plan year. 

VII. Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) (RFA) requires 

agencies to prepare an initial regulatory 

flexibility analysis to describe the 

impact of the rule on small entities, 

unless the head of the agency can certify 

that the rule would not have a 

significant economic impact on a 

substantial number of small entities. 

The RFA generally defines a ‘‘small 

entity’’ as—(1) A proprietary firm 

meeting the size standards of the Small 

Business Administration (SBA); (2) a 

not-for-profit organization that is not 

dominant in its field; or (3) a small 

government jurisdiction with a 

population of less than 50,000. States 

and individuals are not included in the 

definition of ‘‘small entity.’’ HHS uses 

as its measure of significant economic 

impact on a substantial number of small 

entities a change in revenues of more 

than 3 percent. 


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33238 Federal Register / Vol. 78, No. 107 / Tuesday, June 4, 2013 / Rules and Regulations 

9Health Insurance Issuers Implementing Medical 

Loss Ratio (MLR) Requirements Under the Patient 

Protection and Affordable Care Act; Interim Final 

Rule, 75 FR 74864, 74918–20 (December 1, 2010) 

(codified at 45 CFR part 158). 

10According to SBA size standards, entities with 

average annual receipts of $7 million or less would 

be considered small entities for North American 

Industry Classification System (NAICS) Code 

524114 (Direct Health and Medical Insurance 

Carriers). For more information, see ‘‘Table of Size 

Standards Matched To North American Industry 

Classification System Codes,’’ effective March 26, 

2012, U.S. Small Business Administration, available 

at http://www.sba.gov. 

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. For purposes of the RFA, small 

entities include small businesses, 

nonprofit organizations, and small 

government jurisdictions. Small 

businesses are those with sizes below 

thresholds established by the SBA. For 

the purposes of the regulatory flexibility 

analysis, we expect the following types 

of entities to be affected by this 

proposed rule: (1) Small employers and 

(2) QHP issuers. 

As discussed in Health Insurance 

Issuers Implementing Medical Loss 

Ratio (MLR) Requirements Under the 

Patient Protection and Affordable Care 

Act; Interim Final Rule,9 few, if any, 

issuers are small enough to fall below 

the size thresholds for small business 

established by the SBA. In that rule, we 

used a data set created from 2009 NAIC 

Health and Life Blank annual financial 

statement data to develop an updated 

estimate of the number of small entities 

that offer comprehensive major medical 

coverage in the individual and group 

markets. For purposes of that analysis, 

HHS used total Accident and Health 

earned premiums as a proxy for annual 

receipts. We estimated that there are 28 

small entities with less than $7 million 

in accident and health earned premiums 

offering individual or group 

comprehensive major medical 

coverage.10 However, this estimate may 

overstate the actual number of small 

health insurance issuers offering such 

coverage, since it does not include 

receipts from these companies’ other 

lines of business. We further estimate 

that any issuers that would be 

considered small businesses are likely 

to be subsidiaries of larger issuers that 

are not small businesses. 

The SHOP is limited by statute to 

employers with at least one but not 

more than 100 employees. Until 2016, 

States have the option to reduce this 

threshold to 50. For this reason, we 

expect that many employers would meet 

the SBA standard for small entities. We 

do not believe that this rule imposes 

requirements on employers offering 

coverage through the SHOP that are 

more restrictive than current 

requirements on employers offering 

employer-sponsored health insurance. 

Specifically, small employers are 

currently required to offer the special 

enrollment period that the final rule 

applies to eligible employees and 

dependents with coverage through the 

SHOP, and the triggering event that the 

final rule applies to eligible individuals 

and dependents, as well. The rule 

merely applies existing standards to the 

SHOP. Additionally, the transitional 

policy regarding employee choice does 

not impose new requirements on small 

employers because most small 

employers currently offer only one 

health insurance plan to their 

employees. 

Therefore, we are not preparing an 

analysis for the RFA because we have 

determined, and the Secretary certifies, 

that this final rule will not have a 

significant economic impact on a 

substantial number of small entities. 

VIII. Unfunded Mandates 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 (UMRA) 

requires that agencies assess anticipated 

costs and benefits and take certain other 

actions before issuing a proposed rule 

(and subsequent final rule) that includes 

any federal mandate that may result in 

expenditures in any one year by a State, 

local, or tribal governments, in the 

aggregate, or by the private sector, of 

$100 million in 1995 dollars, updated 

annually for inflation. In 2013, that 

threshold is approximately $141 

million. UMRA does not address the 

total cost of a rule. Rather, it focuses on 

certain categories of costs, mainly those 

‘‘federal mandate’’ costs resulting from: 

(1) Imposing enforceable duties on 

State, local, or tribal governments, or on 

the private sector; or (2) increasing the 

stringency of conditions in, or 

decreasing the funding of, State, local, 

or tribal governments under entitlement 

programs. 

This rule does not place any financial 

mandates on State, local, or tribal 

governments. It applies a triggering 

event and special enrollment period to 

coverage through the SHOP, modifies 

the duration of certain special 

enrollment periods, and implements 

employee choice in the SHOP starting 

with plan years beginning on or after 

January 1, 2015. These amendments 

would affect State governments only to 

the extent that they operate a SHOP and, 

if they are affected, would not place any 

new financial mandates on them. 

IX. Federalism 

Executive Order 13132 establishes 

certain requirements that an agency 

must meet when it promulgates a 

proposed rule (and subsequent final 

rule) that imposes substantial direct 

costs on State and local governments, 

preempts State law, or otherwise has 

Federalism implications. This rule does 

not impose any costs on State or local 

governments not otherwise imposed by 

already-finalized provisions of the 

regulations implementing the 

Affordable Care Act. 

In compliance with the requirement 

of Executive Order 13132 that agencies 

examine closely any policies that may 

have Federalism implications or limit 

the policy-making discretion of the 

States, HHS has engaged in efforts to 

consult with and work cooperatively 

with affected States, including 

participating in conference calls with 

and attending conferences of the NAIC, 

and consulting with State insurance 

officials on an individual basis. We 

believe that this rule does not impose 

substantial direct costs on State and 

local governments, preempt State law, 

or otherwise have federalism 

implications. We note that we have 

attempted to provide States that choose 

to operate a SHOP with flexibility such 

that States may, if they choose, offer 

employee choice beginning with plan 

years starting on or after January 1, 

2014, or they may implement this policy 

in plan years starting on or after January 

1, 2015. 

Under the requirements set forth in 

section 8(a) of Executive Order 13132, 

and by the signatures affixed to this 

regulation, the Department of Health 

and Human Services certifies that CMS 

has complied with the requirements of 

Executive Order 13132 for the attached 

proposed regulation in a meaningful 

and timely manner. 

In accordance with the provisions of 

Executive Order 12866, this regulation 

was reviewed by the Office of 

Management and Budget. 

X. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. HHS will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 


wreier-aviles on DSK5TPTVN1PROD with RULES
Federal Register / Vol. 78, No. 107 / Tuesday, June 4, 2013 / Rules and Regulations 33239 

States prior to publication of the rule in 

the Federal Register. This final rule is 

not a ‘‘major rule’’ as defined by 5 

U.S.C. 804(2). 

List of Subjects 

45 CFR Part 155 

Administrative practice and 

procedure, Advertising, Advisory 

Committees, Brokers, Conflict of 

interest, Consumer protection, Grant 

programs—health, Grants 

administration, Health care, Health 

insurance, Health maintenance 

organization (HMO), Health records, 

Hospitals, American Indian/Alaska 

Natives, Individuals with disabilities, 

Loan programs—health, Organization 

and functions (Government agencies), 

Medicaid, Public assistance programs, 

Reporting and recordkeeping 

requirements, State and local 

governments, Sunshine Act, Technical 

assistance, Women, and Youth. 

45 CFR Part 156 

Administrative practice and 

procedure, Advertising, Advisory 

Committees, Brokers, Conflict of 

interest, Consumer protection, Grant 

programs—health, Grants 

administration, Health care, Health 

insurance, Health maintenance 

organization (HMO), Health records, 

Hospitals, Indians, Individuals with 

disabilities, Loan programs—health, 

Organization and functions 

(Government agencies), Medicaid, 

Public assistance programs, Reporting 

and recordkeeping requirements, Safety, 

State and local governments, Sunshine 

Act, Technical assistance, Women, and 

Youth. 

For the reasons set forth in the 

preamble, the Department of Health and 

Human Services amends 45 CFR parts 

155 and 156 as set forth below: 

PART 155—EXCHANGE 

ESTABLISHMENT STANDARDS AND 

OTHER RELATED STANDARDS 

UNDER THE AFFORDABLE CARE ACT 

■ 1. The authority citation for part 155 

continues to read as follows: 

Authority: Title I of the Affordable Care 

Act, sections 1301, 1302, 1303, 1304, 1311, 

1312, 1313, 1321, 1322, 1331, 1334, 1402, 

1411, 1412, 1413. 

■ 2. Section 155.705 is amended by 

revising paragraphs (b)(2) through (4) to 

read as follows: 

§ 155.705 Functions of a SHOP. 

* * * * * 

(b) * * * 

(2) Employer choice requirements. 

With regard to QHPs offered through the 

SHOP for plan years beginning on or 

after January 1, 2015, the SHOP must 

allow a qualified employer to select a 

level of coverage as described in section 

1302(d)(1) of the Affordable Care Act, in 

which all QHPs within that level are 

made available to the qualified 

employees of the employer. 

(3) SHOP options with respect to 

employer choice requirements. (i) For 

plan years beginning before January 1, 

2015, a SHOP may allow a qualified 

employer to make one or more QHPs 

available to qualified employees: 

(A) By the method described in 

paragraph (b)(2) of this section, or 

(B) By a method other than the 

method described in paragraph (b)(2) of 

this section. 

(ii) For plan years beginning on or 

after January 1, 2015, a SHOP: 

(A) Must allow an employer to make 

available to qualified employees all 

QHPs at the level of coverage selected 

by the employer as described in 

paragraph (b)(2) of this section, and 

(B) May allow an employer to make 

one or more QHPs available to qualified 

employees by a method other than the 

method described in paragraph (b)(2) of 

this section. 

(iii) For plan years beginning before 

January 1, 2015, a Federally-facilitated 

SHOP will provide a qualified employer 

the choice to make available to qualified 

employees a single QHP. 

(iv) For plan years beginning on or 

after January 1, 2015, a Federallyfacilitated SHOP will provide a 

qualified employer a choice of two 

methods to make QHPs available to 

qualified employees: 

(A) The employer may choose a level 

of coverage as described in paragraph 

(b)(2) of this section, or 

(B) The employer may choose a single 

QHP. 

(4)(i) Premium aggregation. Consistent 

with the effective dates set forth in 

paragraph (b)(4)(ii) of this section, the 

SHOP must perform the following 

functions related to premium payment 

administration: 

(A) Provide each qualified employer 

with a bill on a monthly basis that 

identifies the employer contribution, the 

employee contribution, and the total 

amount that is due to the QHP issuers 

from the qualified employer; 

(B) Collect from each employer the 

total amount due and make payments to 

QHP issuers in the SHOP for all 

enrollees; and 

(C) Maintain books, records, 

documents, and other evidence of 

accounting procedures and practices of 

the premium aggregation program for 

each benefit year for at least 10 years. 

(ii) Effective dates. (A) A State-based 

SHOP may elect to perform these 

functions for plan years beginning 

before January 1, 2015, but need not do 

so. 

(B) A Federally-facilitated SHOP will 

perform these functions only in plan 

years beginning on or after January 1, 

2015. 

* * * * * 

■ 3. Section 155.725 is amended by: 

■ A. Amending paragraph (a)(1) by 

adding ‘‘and’’ at the end of the 

paragraph. 

■ B. Amending paragraph (a)(2) by 

removing ‘‘; and’’ and by adding a 

period in its place at the end of the 

paragraph. 

■ C. Removing paragraph (a)(3), and 

■ D. Adding paragraph (j). 

The addition reads as follows: 

§ 155.725 Enrollment periods under SHOP. 

* * * * * 

(j)(1) Special enrollment periods. The 

SHOP must provide special enrollment 

periods consistent with this section, 

during which certain qualified 

employees or a dependent of a qualified 

employee may enroll in QHPs and 

enrollees may change QHPs. 

(2) The SHOP must provide a special 

enrollment period for a qualified 

employee or dependent of a qualified 

employee who: 

(i) Experiences an event described in 

§ 155.420(d)(1), (2), (4), (5), (7), (8), or 

(9); 

(ii) Loses eligibility for coverage 

under a Medicaid plan under title XIX 

of the Social Security Act or a State 

child health plan under title XXI of the 

Social Security Act; or 

(iii) Becomes eligible for assistance, 

with respect to coverage under a SHOP, 

under such Medicaid plan or a State 

child health plan (including any waiver 

or demonstration project conducted 

under or in relation to such a plan). 

(3) A qualified employee or 

dependent of a qualified employee who 

experiences a qualifying event described 

in paragraph (j)(2) of this section has: 

(i) Thirty (30) days from the date of 

a triggering event described in 

paragraph (j)(2)(i) of this section to 

select a QHP through the SHOP; and 

(ii) Sixty (60) days from the date of a 

triggering event described in paragraph 

(j)(2)(ii) or (iii) of this section to select 

a QHP through the SHOP; 

(4) A dependent of a qualified 

employee is not eligible for a special 

election period if the employer does not 

extend the offer of coverage to 

dependents. 

(5) The effective dates of coverage are 

determined using the provisions of 

§ 155.420(b). 


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33240 Federal Register / Vol. 78, No. 107 / Tuesday, June 4, 2013 / Rules and Regulations 

(6) Loss of minimum essential 

coverage is determined using the 

provisions of § 155.420(e). 

PART 156—HEALTH INSURANCE 

ISSUER STANDARDS UNDER THE 

AFFORDABLE CARE ACT, INCLUDING 

STANDARDS RELATED TO 

EXCHANGES 

■ 4. The authority citation for part 156 

continues to read as follows: 

Authority: Title I of the Affordable Care 

Act, sections 1301–1304, 1311–1312, 1321, 

1322, 1324, 1334, 1341–1343, and 1401– 

1402, Pub l. 111–148, 124 Stat. 119 (42 U.S.C. 

18042). 

■ 5. Section 156.285 is amended by 

revising paragraph (b)(2) to read as 

follows: 

§ 156.285 Additional standards specific to 

SHOP. 

* * * * * 

(b) * * * 

(2) Provide special enrollment periods 

as described in § 155.725(j); 

* * * * * 

Dated: May 13, 2013. 

Marilyn Tavenner, 

Administrator, Centers for Medicare & 

Medicaid Services. 

Approved: May 15, 2013 

Kathleen Sebelius, 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2013–13149 Filed 5–31–13; 11:15 am] 

BILLING CODE 4120–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 300 

[Docket No. 120814337–3488–02] 

RIN 0648–BC44 

International Fisheries; Pacific Tuna 

Fisheries; Fishing Restrictions in the 

Eastern Pacific Ocean 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS is issuing regulations 

under the Tuna Conventions Act of 

1950 to implement Resolution C–12–09 

of the Inter-American Tropical Tuna 

Commission (IATTC) by establishing 

limits on commercial retention of 

Pacific bluefin tuna by U.S. fishing 

vessels operating in the Eastern Pacific 

Ocean (EPO) in 2013. This action is 

necessary for the United States to satisfy 

its obligations as a member of the 

IATTC and to limit fishing on the stock. 

DATES: This rule becomes effective July 

5, 2013 through December 31, 2013. 

ADDRESSES: Copies of the proposed and 

final rules, the Environmental 

Assessment, the Finding of No 

Significant Impact, and the Regulatory 

Impact Review for this action are 

available via the Federal e-Rulemaking 

portal, at http://www.regulations.gov, 

and are also available from the Regional 

Administrator, Rodney R. McInnis, 

NMFS Southwest Regional Office, 501 

W. Ocean Boulevard, Suite 4200, Long 

Beach, CA 90802. Written comments 

regarding the burden-hour estimates or 

other aspects of the collection-ofinformation requirements contained in 

this final rule may be submitted to 

NMFS Southwest Regional Office and 

by email to 

OIRA_Submission@omb.eop.gov, or fax 

to (202) 395–7285. 

FOR FURTHER INFORMATION CONTACT: 

Heidi Taylor, NMFS SWR, 562–980– 

4039. 

SUPPLEMENTARY INFORMATION: On 

December 12, 2012, NMFS published a 

proposed rule in the Federal Register 

(76 FR 560790) to implement Resolution 

C–12–09 of the IATTC by revising 

regulations at 50 CFR part 300, subpart 

C. The proposed rule was open to public 

comment through January 11, 2012. In 

addition, a public hearing was held in 

Long Beach, CA on January 11, 2012. 

Background on the IATTC 

The United States is a member of the 

IATTC, which was established under 

the 1949 Convention for the 

Establishment of an Inter-American 

Tropical Tuna Commission. The full 

text of the 1949 Convention is available 

at: http://www.iattc.org/PDFFiles/ 

IATTC_convention_1949.pdf. The 

Antigua Convention, which was 

negotiated to strengthen and replace the 

1949 Convention establishing the 

IATTC, entered into force in 2010. The 

United States has not yet ratified the 

Antigua Convention. The IATTC serves 

as an international arrangement to 

ensure for conservation and 

management of highly migratory species 

of fish in the Convention Area (defined 

as the waters of the EPO). Since 1998, 

conservation resolutions adopted by the 

IATTC have further defined the 

Convention Area as the area bounded by 

the coast of the Americas, the 50° N. and 

50° S. parallels, and the 150° W. 

meridian. The IATTC has maintained a 

scientific research and fishery 

monitoring program for many years, and 

regularly assesses the status of tuna and 

billfish stocks in the EPO to determine 

appropriate catch limits and other 

measures deemed necessary to prevent 

overexploitation of these stocks and to 

promote sustainable fisheries. Current 

IATTC membership includes: Belize, 

Canada, China, Chinese Taipei 

(Taiwan), Colombia, Costa Rica, 

Ecuador, El Salvador, the European 

Union, France, Guatemala, Japan, 

Kiribati, the Republic of Korea, Mexico, 

Nicaragua, Panama, Peru, the United 

States, Vanuatu, and Venezuela. Bolivia 

and the Cook Islands are cooperating 

non-members. 

International Obligations of the United 

States Under the Convention 

As a Contracting Party to the 1949 

Convention and a member of the IATTC, 

the United States is legally bound to 

implement resolutions of the IATTC. 

The Tuna Conventions Act (16 U.S.C. 

951–962) directs the Secretary of 

Commerce, after approval by the 

Secretary of State, to promulgate such 

regulations as may be necessary to 

implement resolutions adopted by the 

IATTC. The authority to promulgate 

such regulations has been delegated to 

NMFS. 

IATTC Resolutions in 2012 

At its 83rd Meeting, in June 2012, the 

IATTC adopted Resolution C–12–09, 

Conservation and Management 

Measures for Bluefin Tuna in the EPO. 

All active resolutions and 

recommendations of the IATTC are 

available on the following Web site: 

http://iattc.org/ 

ResolutionsActiveENG.htm. 

The main objective of Resolution C– 

12–09 is to conserve Pacific bluefin tuna 

(Thunnus orientalis) by establishing 

limits on the commercial catches of 

Pacific bluefin tuna in the EPO. Before 

Resolution C–12–09, the IATTC had not 

adopted catch limits for Pacific bluefin 

tuna in the EPO. The IATTC recognizes 

the need to reduce fishing mortality of 

Pacific bluefin tuna throughout its 

range. Accordingly, Resolution C–12–09 

included both a cumulative catch limit 

of 10,000 metric tons for all commercial 

fishing vessels of all IATTC member 

countries and cooperating non-member 

countries (CPCs) fishing in the EPO for 

2012 and 2013 combined, and an annual 

catch limit of 500 metric tons for each 

CPC with a historical record of Eastern 

Pacific bluefin catch to allow these 

nations some opportunity to catch 

Pacific bluefin tuna if the cumulative 

limit is reached. The IATTC emphasizes 

that the measures in Resolution C–12– 

09 are intended as an interim means for 

assuring viability of the Pacific bluefin 

tuna resource. Future conservation 


wreier-aviles on DSK5TPTVN1PROD with RULES