        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 216
        [Docket No. 020326071-2071-01; I.D. 021402D]
        RIN 0648-AP83
        Taking and Importing Marine Mammals; Taking Bottlenose Dolphins and Spotted Dolphins Incidental to Oil and Gas Structure Removal Activities in the Gulf of Mexico

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule.

          SUMMARY:
          NMFS is proposing to issue regulations authorizing and governing the taking of bottlenose and spotted dolphins incidental to the removal of oil and gas drilling and production structures in state waters and on the Outer Continental Shelf (OCS) in the Gulf of Mexico for a period not to exceed 1 year.  The incidental taking of small numbers of marine mammals is authorized by the Marine Mammal Protection Act (MMPA), if certain findings are made and regulations are issued that include requirements for monitoring and reporting.  These regulations do not authorize the removal of the rigs as such authorization is provided by the Minerals Management Service (MMS) and is not within the jurisdiction of NMFS.  Rather, these regulations authorize the unintentional incidental take of marine mammals in connection with such activities and prescribe methods of taking and other means of effecting the least practicable adverse impact on the species and its habitat.

          DATES:
          Comments and information must be received no later than May 6, 2002.

          ADDRESSES:

          Comments on the proposed rule should be addressed to Donna Wieting, Chief, Marine Mammal Conservation Division, Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD  20910-3282.  Comments will not be accepted if submitted via e-mail or Internet.  Copies of the Environmental Assessment (EA) for this proposed rule may be obtained by writing to this address or by telephoning the contact listed here (see FOR FURTHER INFORMATION CONTACT).
          Comments regarding the burden-hour estimate or any other aspect of the collection of information requirement contained in this proposed rule should be sent to the Chief of the Office of Protected Resources, and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: NOAA Desk Officer, Washington, DC 20503.

          FOR FURTHER INFORMATION CONTACT:
          Simona Perry Roberts, Office of Protected Resources, (301) 713-2322.

        SUPPLEMENTARY INFORMATION:
        Background

        Section 101(a)(5)(A) of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and regulations governing the taking are issued.  Effective January 26, 1996, by Department Delegation Order 10-15, the Secretary of Commerce (Secretary) delegated authority to perform the functions vested in the Secretary as prescribed by the MMPA to the Administrator of the National Oceanic and Atmospheric Administration.  On December 17, 1990, under NOAA Administrative Order 205-11, 7.01, the Under Secretary for Oceans and Atmosphere delegated authority to sign material for publication in the Federal Register to the Assistant Administrator for Fisheries, NOAA.
        Permission for a take shall be granted if the Secretary through NMFS finds, after notice and opportunity for public comment, that the taking will involve only small numbers of marine mammals, will have no more than a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses.  If such findings are warranted, NMFS must prescribe regulations that include permissible methods of taking and other means effecting the least practicable adverse impact on the species and its habitat, and on the availability of the species for subsistence uses, paying particular attention to rookeries, mating grounds and areas of similar significance.  The regulations must include requirements pertaining to the monitoring and reporting of such taking.
        On October 12, 1995 (60 FR 53145), NMFS issued regulations governing the taking of bottlenose and spotted dolphins incidental to oil and gas structure removal activities in state waters and on the Outer Continental Shelf (OCS) in the Gulf of Mexico (50 CFR 216.141-148).  Under these regulations, operators who removed oil and gas drilling and production structures and related facilities in state and Federal waters of the Gulf of Mexico adjacent to the coasts of Texas, Louisiana, Mississippi, Alabama, and Florida applied for Letters of Authorization to incidentally take bottlenose and spotted dolphins in the course of structure removal activities.  On November 13, 2000, these regulations expired and NMFS could no longer issue Letters of Authorization for structure removal activities in the Gulf of Mexico.
        Summary of Action

        NMFS proposes new regulations governing the incidental take of bottlenose dolphins (Tursiops truncatus) and spotted dolphins (Stenella frontalis and S. attenuata) in water depths equal to or less than 200 meters (m) (656 feet, ft) for a period not to exceed 1 year.  If these new regulations are finalized, operators who remove oil and gas drilling and production structures and related facilities in state and Federal waters of the Gulf of Mexico adjacent to the coasts of Texas, Louisiana, Mississippi, Alabama, and Florida could apply for Letters of Authorization to incidentally take bottlenose and spotted dolphins in the course of structure removal activities in water depths equal to or less than 200 m (656 ft).

        NMFS received a request from the American Petroleum Institute (API) for regulations similar to those proposed here on October 30, 1989.  In their request, API estimated that 670 structures would be removed in the Gulf of Mexico over a 5-year authorization period.  While most of the structures were in water less than 30.5 m (100 ft) deep, a few may be in deeper water.  A longer range plan estimated that about 5,500 structures will be removed in a 35-year period. The most frequently used procedure of removal is to wash the soil from inside the piling, lower an explosive charge to 15 ft (4.6 m) below the mudline, and detonate the charge, which cuts the piling.  On February 12, 2002, API submitted a request to NMFS requesting an interim policy statement to provide the industry with protection from incidental take liability under the MMPA during the 2002 platform decommissioning and removal season.  In response, NMFS has elected to propose these regulations.
        The effects of explosives used for removal of oil and gas structures on ESA-listed species under NMFS' purview were analyzed in a previous biological opinion.  That opinion concluded that the use of explosives to remove oil and gas structures, accompanied by the use of an observer program and other take minimization measures laid out in the accompanying incidental take statement, was not likely to jeopardize the continued existence of endangered and threatened sea turtles.  This proposed regulation to authorize incidental takes of marine mammals would not change the conclusions of the previous biological opinion because the underlying action (including the use of observers and take minimization measures) is the same.  No ESA-listed marine mammals are implicated in this action.
        While bottlenose and spotted dolphins are not listed as threatened or endangered under the ESA, they are protected under the authority of the MMPA.  Therefore, operators removing structures must receive an authorization under the MMPA before a take is allowed.  Similar to the case for sea turtles, impacts to dolphins would come from exposure to sound and pressure waves associated with detonating the explosives.  API has stated that the most likely form of incidental take as a result of structure removals is harassment from low level sound and pressure waves.  However, animals close enough to the detonation could be injured or killed as a result of tissue destruction.  In recognition of this, removal operators have employed the mitigation measures for sea turtles to also protect dolphins prior to API's 1989 request to NMFS and since regulations governing the taking of small numbers of bottlenose and spotted dolphins expired in November 2000.
        Summary of Proposed Rule
        This proposed rule would authorize the incidental taking of bottlenose dolphins and spotted dolphins by U.S. citizens engaged in removing oil and gas drilling and production structures in state and Federal waters equal to or less than 200 m (656 ft) in the Gulf of Mexico adjacent to the coasts of Texas, Louisiana, Mississippi, Alabama, and Florida for a period not to exceed 1-year.  This proposed rule requires that all activities be conducted in a manner that minimizes adverse effects on bottlenose dolphins and spotted dolphins and their habitat.   Mitigation, monitoring, and reporting requirements would be consistent with those in place at the time of this proposal for the incidental take of endangered and threatened sea turtles authorized for the same activities under the ESA.
        Description of Removal Activities
        The technology most commonly used in the dismantling of platforms includes: bulk explosives, shaped explosive charges, mechanical and abrasive cutters, and underwater arc cutters.  The use of bulk explosives has become the industry's standard procedure for severing pilings, well conductors and related supporting structures.  When using bulk charges, the inside of the structure's piles are washed out to at least 15 ft (4.6 m) below the sediment floor to allow placement of explosives inside of the structure.  Such placement results in a decrease in the impulse and pressure forces released into the water column upon detonation.  The sizes of the explosive charges are generally 50 lb (22.7 kg) or less, but can be as much as 200 lb (90.8 kg) when necessary.  The use of high velocity shaped charges is reported to have some advantages over bulk explosives and has been used in combination with smaller bulk charges.  The cutting action obtained by a shaped charge is accomplished by focusing the explosive energy with a conical metallic liner.  A major advantage associated with use of high velocity shaped charges is that a smaller amount of explosive charge is required to sever the structure, which also results in reductions in the impulse and pressure forces released into the water column.  Use of mechanical cutters and underwater arc cutters can be successful in some circumstances, and because they do not produce the impulse and pressure forces associated with detonation of explosives, such use does not involve the incidental taking of marine mammals.  According to MMS, these methods are, in most instances, more time- consuming, costly and hazardous to divers.  Furthermore, if the use of mechanical or arc cutters were to fail before the structure was completely severed, a larger charge may be necessary to remove the structure.
        Description of Habitat and Marine Mammals Affected by Oil and Gas Rig Removals

        A description of the Gulf of Mexico continental shelf area  and the biology and abundance of bottlenose and spotted dolphins in the Gulf of Mexico that are anticipated to be taken by this activity can be found in the EA prepared for previous rulemaking.  This information can also be found in the previous proposed rule for regulations (58 FR 33425, June 17, 1993).  To avoid the incidental take of other marine mammal species, NMFS will prohibit the incidental taking of marine mammals in water depths greater than 200 m (656 ft).  Copies of the EA and API's 1989 application are available upon request (see ADDRESSES).
        Potential Impact of Removal Activities on Bottlenose and Spotted Dolphins
        The potential for injury to marine mammals in the vicinity of underwater explosions is associated with gas-containing internal organs, such as the lungs and intestines.  The extent of potential injury decreases as: (1) distance of the marine mammal from the explosion increases; (2) size of the marine mammal increases; (3) depth of the explosion and the affected marine mammal decreases; and, (4) size of the explosive charge decreases.  In addition, explosive charges confined in structure pilings below the mudline produce shock waves of lower pressure (at a given distance from the explosion) than free-water explosions.
        A computer model, developed to predict the distances from which marine mammals would suffer only slight injury from underwater explosions, estimated that a bottlenose dolphin calf would receive only slight injury about 4,000 ft (1,200 m) from a 1,200-lb (544-kg) charge detonated in open water at a depth of 125 ft (38 m).  According to API, most structures scheduled for removal in 2002 are located in water less than 100 ft (38 m) deep.  In most cases, charges are no greater than 50 lb (22.7 kg) and are confined within the structure piles about 15 ft (4.6 m) below the mudline.  Therefore, as explained in detail in the EA, it may be assumed that marine mammals more than 3,000 ft (910 m) from structures to be removed would avoid injury caused by the explosions.

        An increase in strandings of bottlenose dolphins in the northwestern Gulf of Mexico occurred in March and April 1986 following the use of explosives to remove oil and gas structures in the area.  However, there is no evidence linking the strandings to the removal of the structures.  Furthermore, observers at removals of more than 525 structures in the Gulf of Mexico reported no indication of injury or death to bottlenose or spotted dolphins, or any other marine mammal related to these structure removals.  According to observer reports required by NMFS during the 5-year duration of the previous regulations' effectiveness, there were no marine mammal takes associated with removal activities.

        The best scientific information available indicates that dolphins cannot hear well in the frequencies emitted by explosive detonations (Richardson et al., 1991), and additional evidence indicates that they may not be able to hear the pulse generated from open-water underwater detonations of explosive charges because of their short duration (ca. 0.05 sec) (Lento, 1992).  However, for purposes of this proposed rule, bottlenose and spotted dolphins will be considered to be taken by harassment, as a result of a non-injurious physiological response to the explosion-generated shockwave and potential behavioral impacts.  For example, Turl (1993) has suggested that Atlantic bottlenose dolphins may be able to detect low frequency sound by some mechanism other then conventional hearing.  In addition, there may be harassment due to tactile stings from the shockwave accompanying detonations.  This type of taking has been inferred from studies on humans and seems plausible given studies on dolphin skin sensitivity where researchers (Ridgway, S.H. and D.A. Carter. 1993; 1990) concluded that the most sensitive areas of the dolphin skin (mouth, eyes, snout, melon and blowhole) are about as sensitive as the skin of human lips and fingers.  Therefore, even if dolphins are not capable of hearing the acoustic signature of the explosion, physiological or behavioral responses to those detonations may still result.
        Preliminary Conclusion
        For the reasons discussed above and in an EA prepared for rulemaking, NMFS believes that the proposed activity will likely result in the taking of only small numbers of bottlenose and spotted dolphins by harassment; the total of such taking during a 1-year period will likely have only a negligible impact on these species; and the takings will probably not have an unmitigable adverse impact on the availability of bottlenose and spotted dolphins for subsistence uses.
        Classification
        This action is not significant for purposes of Executive Order 12866.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration, when the original rule was proposed (58 FR 33425, June 17, 1993), that, if adopted, the rule would not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act.  In 1994, approximately 10 small businesses were active in removing oil and gas structures in the Gulf of Mexico.  These small businesses work under contract to major petroleum companies, which bear the costs of mitigation measures.  Moreover, the mitigation measures required by this proposed rule are identical to those already being followed by these small businesses during removal of oil and gas structures to protect endangered and threatened sea turtles and the number of small business remains about the same as in 1994.  Because of this classification, a regulatory flexibility analysis was neither required nor prepared.  This action does not alter those conclusions.  Therefore, the Chief Counsel for Regulation is again certifying that the rule, if adopted, would not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act.

        This proposed rule contains collection-of-information requirements subject to the Paperwork Reduction Act.  These requirements are identical to those approved during previous rulemaking on the same activity by the Office of Management and Budget (OMB) under section 3504(b) of the Paperwork Reduction Act issued under OMB Control number 0648-0151.  Public reporting burden for this collection of information was estimated to average 27.5 hours per response, including the time to review instructions, search existing data sources, gather and maintain the data needed and complete and review the collection of information.  Comments regarding the burden-hour estimate or any other aspect of the collection of information requirement, including suggestions for reducing the burden to NMFS and OMB (see ADDRESSES) contained in this proposed rule should be sent to the above individual and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: NOAA Desk Officer, Washington, DC 20503.
        National Environmental Policy Act
        NMFS' proposed rule to govern the incidental take of bottlenose and spotted dolphins during removal of oil and gas structures in the Gulf of Mexico will not individually or cumulatively have a significant impact on the quality of the human environment.  In accordance with section 6.01 of NOAA Administrative Order 216-6 (Environmental Review Procedures for Implementing the National Environmental Policy Act, May 20, 1999), NMFS has analyzed both the context and intensity of this action and determined based on previous environmental assessments that the rule proposed and the proposal to issue 1-year Letters of Authorization to the oil and gas industry will not individually or cumulatively result in a significant impact on the quality of the human environment as defined in 40 CFR 1508.27 and is therefore categorically excluded from further NEPA analysis. As a result of that determination, an environmental impact statement was not been prepared.  This action is within the scope of the previous EA and does not alter its conclusions.
        This rule does not contain policies with federalism implications as that term is defined in E.O. 13132.

          List of Subjects in 50 CFR Part 216
          Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and record keeping requirements, Seafood, Transportation.

          Dated: April 12, 2002.
          William T. Hogarth,
          Assistant Administrator, National Marine Fisheries Service.

          For the reasons set out in the preamble, 50 CFR part 216 is proposed to be added as follows:

            PART 216—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS

          1.  The authority citation for part 216 continues to read as follows:

            Authority:
            16 U.S.C. 1361 et seq., unless otherwise noted.

          2.  Subpart M is added to read as follows:

            Subpart M—Taking of Bottlenose Dolphins and Spotted Dolphins Incidental to Oil and Gas Structure Removal Activities

            Sec.
            216.141
            Specified activity and specified geographical region.
            216.142
            Effective dates.
            216.143
            Permissible methods of taking; mitigation.
            216.144
            Prohibitions.
            216.145
            Requirements for monitoring and reporting.
            216.146
            Letters of Authorization.
            216.147
            Renewal of Letters of Authorization.
            216.148
            Modifications to Letters of Authorization.

            Subpart M—Taking of Bottlenose Dolphins and Spotted Dolphins Incidental to Oil and Gas Structure Removal Activities

            § 216.141
            Specified activity and specified geographical region.
            (a) Regulations in this subpart apply only to the incidental taking of marine mammals by U.S. citizens engaged in removing oil and gas drilling and production structures in state waters and on the Outer Continental Shelf in the Gulf of Mexico adjacent to the coasts of Texas, Louisiana, Alabama, Mississippi, and Florida.  The incidental, but not intentional, taking of marine mammals by U.S. citizens holding a Letter of Authorization is permitted during the course of severing pilings, well conductors, and related supporting structures, and other activities related to the removal of the oil well structure.

             (b) The incidental take of marine mammals under the activity identified in paragraph (a) of this section is limited annually to a total of 200 takings by harassment of bottlenose dolphins (Tursiops truncatus) and spotted dolphins (Stenella frontalis and  S. attenuata).

            § 216.142
            Effective dates.
            Regulations in this subpart are effective from May 1, 2002 through April 31, 2003.

            § 216.143
            Permissible methods of taking; mitigation.
            (a) The use of the following means in conducting the activities identified in § 216.141 are permissible:  Bulk explosives, shaped explosive charges, mechanical or abrasive cutters, and underwater arc cutters.
            (b) All activities identified in § 216.141 must be conducted in a manner that minimizes, to the greatest extent practicable, adverse effects on bottlenose dolphins, spotted dolphins, and their habitat.  When using explosives, the following mitigation measures must be utilized:
             (1)(i) If bottlenose or spotted dolphins are observed within 3,000 ft (910 m) of the platform prior to detonating charges, detonation must be delayed until either the marine mammal(s) are more than 3,000 ft (910 m) from the platform or actions (e.g., operating a vessel in the vicinity of the dolphins to stimulate bow riding, then steering the vessel away from the structure to be removed) are successful in removing them at least 3,000 ft (910 m) from the detonation site;
             (ii) Whenever the conditions described in paragraph (b)(1)(i) of this section occur, the aerial survey required under § 216.145(b)(1) must be repeated prior to detonation of charges if the timing requirements of § 216.145(b)(1) cannot be met.
            (2) Detonation of explosives must occur no earlier than 1 hour after sunrise and no later than 1 hour before sunset;
             (3) If weather and/or sea conditions preclude adequateaerial, shipboard or subsurface surveillance, detonations must be delayed until conditions improve sufficiently for surveillance to be undertaken; and
            (4) Detonations must be staggered by a minimum of 0.9 seconds for each group of charges.

            § 216.144
            Prohibitions.
            Notwithstanding takings authorized by § 216.143 or by a  Letter of Authorization issued under § 216.106, the following activities are prohibited:
            (a) The taking of a marine mammal that is other than unintentional, except that the intentional passive herding of dolphins from the vicinity of the platform may be authorized under section 109(h) of the Act as described in a Letter of Authorization;
             (b) The violation of, or failure to comply with, the terms, conditions, and requirements of this part or a Letter of Authorization issued or renewed under § 216.106 or § 216.146;
             (c) The incidental taking of any marine mammal of a species either not specified in this subpart or whenever the taking authorization for authorized species has been reached;
            (d) The use of single explosive charges having an impulse and pressure greater than that generated by a 50-lb (22.7 kg) explosive charge detonated outside the rig piling; and
            (e) The taking of a marine mammal in water depths greater than 656 ft (200 m).

            § 216.145
            Requirements for monitoring and reporting.
            (a) Observer(s) approved by the National Marine Fisheries Service in advance of the detonation must be used to monitor the area around the site prior to, during, and after detonation of charges.
            (b)(1)  Both before and after each detonation episode, an aerial survey by NMFS-approved observers must be conducted for a period not less than 30 minutes within 1 hour of the detonation episode.  To ensure that no marine mammals are within the designated 3,000 ft (941 m) safety zone nor are likely to enter the designated safety zone prior to or at the time of detonation, the pre-detonation survey must encompass all waters within one nautical mile of the structure.
            (2) A second post-detonation aerial or vessel survey of the detonation site must be conducted no earlier than 48 hours and no later than 1 week after the oil and gas structure is removed, unless a systematic underwater survey, either by divers or remotely-operated vehicles, dedicated to marine mammals and sea turtles, of the site has been conducted within 24 hours of the detonation event.  The aerial or vessel survey must concentrate down-current from the structure.
            (3) The NMFS observer may waive post-detonation monitoring described in subparagraph (b)(2) of this section provided no marine mammals were sighted during either the required 48 hour pre-detonation monitoring period or during the pre-detonation aerial survey.
            (c)  During all diving operations (working dives as required in the course of the removals), divers must be instructed to scan the subsurface areas surrounding the platform (detonation) sites for bottlenose or spotted dolphins and if marine mammals are sighted to inform either the U.S. government observer or the agent of the holder of the Letter of Authorization immediately upon surfacing.
            (d) In water depths of 492 ft (150 m) or greater, or in cases where divers are not deployed in the course of normal removal operations, a remotely operated vehicle (ROV) must be deployed prior to detonation to scan areas below structures.  If marine mammals are sighted by the ROV operator must inform either the U.S. government observer or the agent of the holder of the Letter of Authorization immediately.
            (e) In water depths of 328 ft (100 m) or greater, passive acoustic detection must be employed prior to detonation. If marine mammals are sighted by the acoustic detection device, the operator must inform either the U.S. government observer or the agent of the holder of the Letter of Authorization immediately.
            (f)(1)  A report summarizing the results of structure removal activities, mitigation measures, monitoring efforts, and other information as required by a Letter of Authorization, must be submitted to the Regional Administrator, NMFS, Southeast Region, 9721 Executive Center Drive N, St. Petersburg, FL 33702 within 30 calendar days of completion of the removal of the rig.

            (2) NMFS will accept the U.S. government observer report as the activity report if all requirements for reporting contained in the Letter of Authorization are provided to that observer before the observer's report is complete.

            § 216.146
            Letters of Authorization.
            (a) To incidentally take bottlenose and spotted dolphins pursuant to these regulations, each company operating or which operated an oil or gas structure in the geographical area described in § 216.141, and which is responsible for abandonment or removal of the platform, must apply for and obtain a Letter of Authorization in accordance with § 216.106.
            (b) A copy of the Letter of Authorization must be in thepossession of the persons conducting activities that may involveincidental takings of bottlenose and spotted dolphins.

            § 216.147
            Renewal of Letters of Authorization.
            (a) A Letter of Authorization issued under § 216.106 for the activity identified in § 216.141 will be renewed annually upon:
            (1) Timely receipt of the reports required under § 216.145(d), which have been reviewed by the Assistant Administrator and determined to be acceptable;
            (2) A determination that the maximum incidental take authorizations in § 216.141(b) will not be exceeded; and
            (3) A determination that the mitigation measures required under  § 216.143(b) and the Letter of Authorization have been undertaken.
            (b) If a species' annual authorization is exceeded, the Assistant Administrator will review the documentation submitted with the annual report required under § 216.145(d), to determine that the taking is not having more than a negligible impact on the species or stock involved.

            (c) Notice of issuance of a renewal of the Letter of Authorization will be published in the Federal Register.

            § 216.148
            Modifications to Letters of Authorization.
            (a) In addition to complying with the provisions of § 216.106, except as provided in paragraph (b) of this section, no substantive modification, including withdrawal or suspension, to the Letter of Authorization issued pursuant to § 216.106 and subject to the provisions of this subpart shall be made until after notice and an opportunity for public comment.  For purposes of this paragraph, renewal of a Letter of Authorization under § 216.147, without modification, is not considered a substantive modification.

            (b) If the Assistant Administrator determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 216.141(b), the Letter of Authorization issued pursuant to § 216.106, or renewed pursuant to this section may be substantively modified without prior notice and an opportunity for public comment.  A notice will be published in the Federal Register subsequent to the action.

      [FR Doc. 02-9519 Filed 4-18-02; 8:45 am]
      BILLING CODE  3510-22-S


        DEPARTMENT OF HEALTH AND HUMAN SERVICES
        Centers for Medicare & Medicaid Services
        42 CFR Part 488
        [CMS-3367-NC]
        RIN 0938-AT84
        Medicare Program: Accrediting Organizations Conflict of Interest and Consulting Services; Request for Information

          AGENCY:
          Centers for Medicare & Medicaid Services (CMS), HHS.

          ACTION:
          Request for information.

          SUMMARY:
          This request for information (RFI) seeks public comment regarding the appropriateness of the practices of some Medicare-approved Accrediting Organizations (AOs) to provide fee-based consultative services for Medicare-participating providers and suppliers as part of their business model. We wish to determine whether AO practices of consulting with the same facilities which they accredit under their CMS approval could create actual or perceived conflicts of interest between the accreditation and consultative entities. We intend to consider information received in response to this RFI to assist in future rulemaking.

          DATES:

            Comments: To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on February 19, 2019.

          ADDRESSES:
          In commenting, refer to file code CMS-3367-NC. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
          Comments, including mass comment submissions, must be submitted in one of the following three ways (please choose only one of the ways listed):
          1. Electronically. You may submit electronic comments on this RFI to http://www.regulations.gov. Follow the “Submit a comment” instructions.
          2. By regular mail. You may mail written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-3367-NC, P.O. Box 8016, Baltimore, MD 21244-8010.
          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 to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-3367-NC, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.

          FOR FURTHER INFORMATION CONTACT:
          Monda Shaver, 410-786-3410 or Caroline Gallagher, 410-786-8705.

        SUPPLEMENTARY INFORMATION:

          Inspection of Public Comments: All comments received before the close of the comment period will be made available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We will post all comments received before the close of the comment period on the following website as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that website to view public comments.
        I. Background
        To participate in the Medicare program, providers and suppliers of health care services must be in substantial compliance with specified statutory requirements of the Social Security Act (the Act), as well as any additional regulatory requirements related to the health and safety of patients specified by the Secretary of the Department of Health and Human Services (the Secretary). These health and safety requirements are generally called conditions of participation (CoPs) for most providers, requirements for skilled nursing facilities (SNFs), and conditions for coverage or certification (CfCs) for other suppliers. Medicare certified providers and suppliers participate in the Medicare program by entering into an agreement with Medicare in which, among other things, they agree to comply with the CoPs or other applicable health and safety requirements. The providers and suppliers subject to these requirements include hospitals, skilled nursing facilities, home health agencies, hospice programs, rural health clinics, critical access hospitals, comprehensive outpatient rehabilitation facilities, laboratories, clinics, rehabilitation agencies, public health agencies, and ambulatory surgical centers. A Medicare-certified provider or supplier that does not substantially comply with the applicable health and safety requirements risks having its participation in the Medicare program terminated.
        In accordance with section 1864 of the Act, state health agencies or other appropriate local agencies, under an agreement with CMS, survey health care providers and suppliers for compliance with the applicable CoPs, CfCs, conditions of certification, or requirements. Based on these State Survey Agency (SA) certifications, CMS determines whether the provider or supplier qualifies, or continues to qualify, for participation in the Medicare program. Additionally, section 1865(a) of the Act allows most health care facilities to demonstrate compliance with Medicare CoPs, requirements, CfCs, or conditions for certification through accreditation by a CMS-approved program of a national accreditation organization (AO), in lieu of being surveyed by SAs for certification. Accreditation by an AO is generally voluntary and is not required for Medicare certification or participation in the Medicare Program. Section 1865(a)(1) of the Act provides that if the Secretary finds that accreditation of a provider entity (which includes a provider of services, supplier, facility, clinic, agency, or laboratory) by a national accreditation body demonstrates that all applicable conditions are met or exceeded, the Secretary may deem those requirements as being met by the provider entity. We are ultimately responsible for the review, approval and subsequent oversight of national AOs' Medicare accreditation programs, and for ensuring providers or suppliers accredited by the AO meet the quality and patient safety standards required by the Medicare CoPs, requirements, CfCs, and conditions for certification. Any national AO seeking approval of an accreditation program in accordance with section 1865(a) of the Act must apply for accreditation program approval in accordance with § 488.5 and may be approved by CMS for a period not to exceed 6 years.
        In addition, section 353 of the Public Health Service Act (PHS Act), as amended by the Clinical Laboratory Improvement Amendments of 1988 (CLIA) (Pub. L. 100-578), requires any laboratory that performs testing on human specimens for health purposes to meet the requirements established by CLIA and regulations issued under its authority, and have in effect an applicable CLIA certificate. Pursuant to section 353(e) of the PHS Act, a laboratory covered by CLIA may receive a certificate if, among other things, it is accredited by a laboratory AO approved by CMS under paragraph 353(e)(2) of the PHS Act. Any proposed or future regulation made regarding AOs' practice of providing fee-based consulting services to Medicare-participating providers and suppliers would also apply to AOs that accredit laboratories pursuant to CLIA.
        While accreditation by an AO is generally voluntary, suppliers of the technical component of Advanced Diagnostic Imaging (ADI) services (as described at 42 CFR 414.68); Diabetes Self-Management Training (DSMT) services (as described at 42 CFR 410.141); and Durable Medical Equipment (DME) (as described at 42 CFR 424.58) are subject to accreditation required in order to receive reimbursement from Medicare for the services they furnish to Medicare beneficiaries. We also recently finalized regulations, at 42 CFR part 488, subpart L, for the approval and oversight of AOs that accredit Home Infusion Therapy suppliers, because section 1834(u)(5) of the Act requires suppliers of Home Infusion Therapy services (HIT) to be accredited (CY 2019 Home Health Prospective Payment System Rate Update final rule, 83 FR 56406, November 13, 2018).
        Pursuant to their respective authorizing statutes, these four supplier types cannot participate in Medicare using a state survey option. One AO provides accreditation for several provider and supplier types, some under accreditation that is required in order for the provider or supplier to receive payment from Medicare for services furnished to Medicare beneficiaries, and some under the voluntary accreditation programs authorized under section 1865 of the Act. Therefore, our RFI also seeks comment on potential conflicts of interest related to this category of AOs that certify the four supplier types subject to accreditation that is required for a provider or supplier to receive payment from Medicare for services furnished to Medicare beneficiaries as well as laboratories accredited by an AO under CLIA.

        AOs charge fees to facilities that seek their accreditation and generally offer facilities at least two accreditation options: Accreditation alone, or accreditation under a CMS-approved program for the purpose of participating in Medicare. Accreditation alone may be provided for purposes other than participation in Medicare. Accreditation under a CMS-approved program is provided for the purpose of obtaining and maintaining a Medicare provider agreement. Existing regulations at § 488.4 sets forth the general provisions for CMS-approved accreditation programs for providers and suppliers and § 488.5 outlines the application and re-application procedures for national AOs that seek to obtain CMS approval of their accreditation programs, often called “deeming authority.” Additionally, AO application and re-application procedures are set forth at § 414.68(c) for accreditors of ADI suppliers, § 410.142 for accreditors of DSMT suppliers, and § 424.57(c) for accreditors of DME suppliers. Pursuant to the above regulations CMS has responsibility for oversight and approval of AO accreditation programs used for Medicare participation purposes and for ensuring that providers and suppliers that are accredited under a CMS-approved AO accreditation program meet or exceed the quality and patient safety standards required by the Medicare regulations. A thorough review of each accreditation program voluntarily submitted by an AO seeking CMS approval is conducted by CMS, including a review of the equivalency to the Medicare standards of its accreditation requirements, survey processes and procedures, surveyor training, and oversight and enforcement of provider entities. In addition, we also review the qualifications of the surveyors, staff, and the AO's financial status.
        Under the application and re-application requirement procedures in § 488.5 for “voluntary” accreditation programs, under § 488.5(a)(10), an AO submitting an application must include a copy of the AO's “organization's policies and procedures to avoid conflicts of interest, including the appearance of conflicts of interest, involving individuals who conduct surveys or participate in accreditation decisions.” This provision is implemented by CMS's review of submitted documentation to determine that no conflicts of interest exist.
        Section 488.5(e) requires that we publish a notice in the Federal Register when we receive a complete application or reapplication from a national AO which is voluntarily seeking approval of its voluntary accreditation program. The notice identifies the organization and the type of providers or suppliers to be covered by the voluntary accreditation program and provides a 30-day public comment period. We have 210 days from the receipt of a complete application to publish notice of approval or denial of the application. Upon approval, any provider or supplier subsequently accredited by the AO's approved program(s) would be deemed by CMS to have met the applicable Medicare conditions and would be referred to as having “deemed status.” Similar rules regarding CMS's approval process also apply to the accreditation required to receive payment from Medicare for the services furnished by the provider or supplier to Medicare beneficiaries by ADI, DSMT, DME and HIT suppliers, as discussed above.
        In addition to the general accreditation application process, we are also required by statute to submit an annual Report to Congress 1
           on our oversight of the national AOs. This report contains information related to the AO activities in a given fiscal year and compares these activities to the previous years. Within this report, we also measure the “disparity rate”, which is a comparison rate based on AO findings of non-compliance during an AO survey and the SA findings of non-compliance for the same facilities found during a state validation survey. When the state survey agency cites a condition-level deficiency for which the AO has not cited a comparable deficiency, the deficiency is considered by CMS to have been “missed” and is factored into the AO's disparity rate for each facility type. The identification of only one missed condition level finding in any survey results in the entire survey being counted as disparate. The number of disparate surveys is divided by the number of validation surveys to determine the AO's disparity rate. According to the most recently published Report to Congress, disparity rates for all CMS-approved AO programs for the following facility types for the most recent year in the report (FY 2017) are: Hospital rates (46 percent); Psychiatric hospitals (57 percent); Critical Access Hospitals (44 percent); Home Health Agencies (18 percent); Hospices (18 percent); Ambulatory Surgery Centers (35 percent).

            1 Report to Congress: https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Policy-and-Memos-to-States-and-Regions.htm.

        As part of our ongoing efforts to enhance transparency and oversight of the AOs, in 2018 CMS began a pilot for integrated validation surveys for accredited hospitals. Rather than the SA performing a separate second survey of an accredited facility within 60-days of the AO having completed its survey (of the same facility), state survey teams accompanied the AO survey team to evaluate AO competency and effectiveness during the same survey. CMS plans to refine this process over the next several years in an effort to enhance AO oversight, and to ensure that facilities under deemed status are in compliance with CMS conditions. Additionally, to ensure transparency both in the performance of AOs with CMS-approved accreditation programs and the quality of care provided by those deemed facilities, we are also working to create a CMS.gov web page that will provide AO performance data, as well as the latest quality of care findings based on complaint surveys of facilities accredited by these organizations.
        As we noted above, section 1865(a)(2) of the Act states that the Secretary shall consider, among other factors with respect to a national accreditation body, its requirements for accreditation, its survey procedures, its ability to provide adequate resources for conducting required surveys and supplying information for use in enforcement activities, its monitoring procedures for provider entities found out of compliance with the conditions or requirements, and its ability to provide the Secretary with necessary data for validation. CMS determines whether accreditation standards and procedures are comparable to those of CMS.
        CMS has been aware for some time that some AOs with CMS-approved accreditation programs are also providing fee-based consultative services to Medicare-participating health care facilities. Typical consultative services include, but are not limited to the following:
        • Assistance for clinical and non-clinical leaders, including administrators in understanding the AO and CMS standards for compliance;
        • Review of facility standards and promised early intervention and action through simulation of a real survey, similar to a mock survey to include comprehensive written reports of findings;
        • Review of a facility's processes, policies and functions;
        • Identification of and technical assistance for changing and sustaining areas in need of improvement; and,
        • Educational consultative services.
        These activities are not prohibited by law or regulation, and the training provided by the AOs may be useful for entities to learn to comply with the requirements and identify gaps in compliance.
        This RFI is in response to increasing concern about potential conflicts of interest created by the accreditation and consultative activities of the AOs. In September 2017, an article 2

           in the Wall Street Journal raised concerns regarding the performance, transparency, and potential conflicts of interest between an AO's accreditation services and its consulting services, which brought heightened attention to this issue in the public and the Congress. This article also discussed CMS's oversight of the AOs. Members of Congress subsequently sent letters to CMS 3
           regarding the agency's oversight of AOs, which encouraged CMS to consider whether the agency should continue to recognize or approve AOs that seek to provide consultative services to the entities they accredit for CMS participation in light of the potential for actual or perceived conflict of interest.

            2 The Wall Street Journal, “Watchdog Awards Hospitals Seal of Approval Even After Problems Emerge” Stephanie Armour (September 8, 2018) https://www.wsj.com/articles/watchdog-awards-hospitals-seal-of-approval-even-after-problems-emerge-1504889146.

            3 https://energycommerce.house.gov/news/press-release/ec-leaders-request-information-hospital-accreditation-processes/.

        After consideration of these issues, we are seeking comment to determine whether offering consultative services to the same entities an AO accredits may create actual or perceived conflicts of interest between the AOs accreditation program and its consultative program. We have concerns that this dual function may undermine, or appear to undermine, the integrity of the accreditation programs and could erode the public trust in the safety of CMS-accredited providers and suppliers. We recognize and acknowledge that certain consulting services offered by some of the AOs, such as quality improvement work and training of facility staff, may be beneficial to some facilities and result in improvements in operations or the quality of care furnished and may be provided with the best of intentions. However, it has been brought to our attention that this dual role played by some AOs may create, a minimum, the perception of conflicts of interest or actual conflicts of interest, which are rooted in the intersection of the AO's accreditation program with the AO's consulting services. We are concerned that circumstances could arise where an AO has recommended deemed status through accreditation that a client facility was in compliance with the Medicare regulations, while the consultancy service of the AO was generating revenue assisting the same facility in passing the AO's own accreditation surveys. While the consultancy arm may or may not have used surveyors which were conducting the on-site AO accreditation surveys, the consultants are advertised as experts on compliance standards. Some AOs have indicated that they establish firewalls between the arms of their businesses, but we are concerned that these firewalls may not be sufficient to ensure that no conflicts of interest result from these activities.
        We have promulgated regulations and other requirements for other programs to ensure public trust by, for example, taking steps to address potential conflicts of interest in the Quality Improvement Organizations (QIO) (42 CFR 475.102 and 475.103) and External Quality Review Organization (EQRO) (42 CFR 438.354 and 42 CFR 438.358) programs. For example, 42 CFR 475.105(c) prohibits QIOs from subcontracting with a healthcare facilities to perform any case review activities except for the review of the quality of care
        Section 1932(c)(2) of the Act and § 438.350 and 438.354, respectively, specifies that EQRO programs must be independent from the State Medicaid agency and the managed care plans it reviews. Under these requirements, EQRO programs may not conduct certain ongoing Medicaid managed care program operations related to oversight of the quality of managed care plan services on the state's behalf. For example, these restrictions preclude an EQRO from reviewing any managed care plan for which it is conducting or has conducted an accreditation review within the previous 3 years, or having a present, or known future, direct or indirect financial relationship with a managed care plan that it will review as an EQRO. We believe that the prohibitions set forth at § 438.354 ensure the independence of the EQROs from the state Medicaid agency and other managed care organizations and provide an example for how to avoid any perceived conflict of interest between their consultative services and work to deliver healthcare services to Medicaid beneficiaries.
        Our consideration of this issue and review of how conflicts of interest are handled in similar programs suggested a need to reexamine our current regulations regarding AO conflicts of interest. Prior to initiating the rulemaking process in this area, we are seeking information (for example, evidence, research and trends), including stakeholder and AO feedback, specific to the topics discussed in this request for information. We intend to consider any such comments when we draft proposals for future policy development, to better protect public health and the safety of patients, and ensure our process for approving and ongoing monitoring of AOs is meaningful and maintains the public trust.
        II. Potential Alternatives for Addressing Conflicts of Interest
        We believe that, similar to QIO and EQRO programs, any AO with a Medicare-approved accreditation program has assumed a position of public trust, and is responsible for acting on behalf of the public, because the AO is performing a function that assists in the federal government's enforcement programs. We also believe that AOs voluntarily take on this position and responsibility when they seek accreditation approval from CMS to accredit providers and suppliers on behalf of CMS for participation in Medicare. Because of the responsibility CMS has related to maintaining public trust and guarding public health, we are compelled to ensure that all entities and programs, including AOs and their accreditation programs, that require CMS approval, be held to the high standards of ethical conduct so that every citizen can have complete confidence in the integrity of the Federal Government. In our view, AO accreditation determinations must be made without regard to any additional services that a Medicare provider or supplier might obtain through the AO or its subsidiaries, in order to ensure and maintain public trust in the Medicare certification program.
        While we are seeking public comment under this RFI to gather information which may be used for potential future rulemaking, we also believe that stakeholders may provide insight on other mechanisms to address this potential conflict of interest. These areas for which we are seeking insight from stakeholders are further discussed in Section III, “Solicitation of Comments”. Section 488.5(a)(10) of our regulations states that the application information from the AO include the organization's policies and procedures to avoid conflicts of interest, including the appearance of conflicts of interest, involving individuals who conduct surveys or participate in accreditation decisions. We implement this by reviewing the AOs policies and procedures regarding conflict of interest to determine that no overt conflicts of interest exist regarding such individuals. AOs typically include provisions in their organization's policies that ban surveyors from conducting surveys in the following situations: If the surveyor has performed any previous consulting services for the facility; if the surveyor (or family member) has any financial interest in the facility; and, if the surveyor was previously employed by a facility.

        We are seeking feedback to determine whether we should revise our review process to identify actual, potential or perceived AO conflicts of interest as part of the application and renewal process for all AOs, including the programs that require accreditation in order for the provider or supplier to receive payment from Medicare for services furnished to Medicare beneficiaries, as discussed above. We are interested in ways that we could potentially modify § 488.5(a), which lists the required information to be submitted with an application by an AO to CMS for review, to also include a provision which addresses this conflict of interest review process, for which we are seeking public comments. As noted, § 488.5(a)(10) of our regulations requires that the application information include the organization's policies and procedures to avoid conflicts of interest, including the appearance of conflicts of interest, involving individuals who conduct surveys or participate in accreditation decisions. Similarly, for HIT suppliers, under the CY 2019 Home Health final rule (83 FR 56406), at § 488.1010(a)(13), we require AOs for home infusion therapy suppliers to provide documentation of the AO's policies and procedures for avoiding and handling conflicts of interest, including the appearance of conflicts of interest, involving individuals who conduct surveys, audits or participate in accreditation decisions. We believe that potentially expanding § 488.5(a)(10) by adding additional provisions which would require the AOs to disclose information about any consultative services provided by the AO to facilities which the AO accredits would further enhance oversight of AOs with CMS-approved accreditation programs; this would allow CMS to identify consultative relationships that create real, potential and perceived conflicts of interest. We are also considering adding similar provisions to the requirements for accrediting organizations that provide accreditation to providers and suppliers that must be accredited in order to receive payment from Medicare for services they furnish to Medicare beneficiaries, including HIT suppliers, as set out in the CY 2019 Home Health final rule (83 FR 56406) at § 488.1010(a)(13).
        III. Solicitation of Comments
        This is a request for information only. Respondents are encouraged to provide complete but concise responses to the questions listed in the sections outlined below. Response to this RFI is completely voluntary. This RFI is issued solely for information and planning purposes; it does not constitute a Request for Proposal, applications, proposal abstracts, or quotations. This RFI does not commit the Government to contract for any supplies or services or make a grant award. Further, we are not seeking proposals through this RFI and will not accept unsolicited proposals. Responders are advised that the United States Government will not pay for any information or administrative costs incurred in response to this RFI; all costs associated with responding to this RFI will be solely at the interested party's expense. Not responding to this RFI does not preclude participation in any future procurement, if conducted. It is the responsibility of the potential responders to monitor this RFI announcement for additional information pertaining to this request. Also, we note that we will not respond to questions about the policy issues raised in this RFI. We may or may not choose to contact individual responders. Such communications would only serve to further clarify written responses. Contractor support personnel may be used to review RFI responses. Responses to this notice are not offers and cannot be accepted by the Government to form a binding contract or issue a grant. Information obtained as a result of this RFI may be used by the Government for program planning on a non-attribution basis. Respondents should not include any information that might be considered proprietary or confidential. This RFI should not be construed as a commitment or authorization to incur cost for which reimbursement would be required or sought. All submissions become Government property and will not be returned. We may publically post the comments received, or a summary thereof.
        While we are soliciting general comments on CMS's oversight of AOs, we are specifically seeking input on the following areas:
        A. Public/Stakeholder Feedback
        • We are seeking comment on the type of fee-based consultative services provided by AOs to the facilities they accredit. How are these services provided and communicated to the facilities? Are potential conflicts of interest disclosed?
        • Training providers and suppliers of services on the applicable requirements for Medicare certification is an important function to improve quality of care. Are there other entities that could provide this training besides the AOs?
        • We are seeking public comment related to whether commenters perceive a conflict of interest in AOs providing fee-based consultative services to the facilities they accredit.
        • We are seeking public comment related to some stakeholders' perception that the ability of an AO to collect fees for consultation services from entities they accredit could degrade the public trust inherent in an AO's CMS-approved accreditation programs.
        • We are seeking public comment on what the appropriate consequences or impacts should be, if a conflict does exist.
        • We are seeking public comment on what firewalls may exist within an AO between accreditation and consultation services, or what firewalls would be prudent, to avoid potential and actual conflicts of interest.
        • We are soliciting examples of positive and negative effects which may be as a result of a conflict of interest.
        • We are seeking public comment from existing AOs on what the potential impact, financially and overall would be if CMS were to finalize rulemaking which would restrict certain activities that might give rise to a real or perceived conflict of interest.
        • We are seeking public comment, primarily from stakeholders, by requesting specific information on when and/or under what circumstances it would be appropriate for AOs to provide fee-based consultative services to the facilities which they accredit.
        • We are seeking public and stakeholder feedback on whether, and if so, under what specific circumstances CMS should review a potential conflict of interest, and what factors CMS should look at to determine if a conflict of interest exists.
        • Specifically, we are seeking comments in a list type format describing under what circumstances the AOs or stakeholders would believe there to be a conflict; and under which circumstances conflict does not exist.
        • We seek comment on the type of information which would be considered necessary, useful and/or appropriate in proving or refuting our hypothesis of a connection between the use of consultative services and preferential treatment of accredited providers and suppliers.
        We are seeking comment on alternatives for addressing any conflict of interest identified.
        B. Financial Impact and Burden
        • We are seeking public comment regarding how an AO's revenue and operations may be affected by a prohibition or limitation on AOs' marketing and provision of consultative services.
        • We are specifically looking for cost impacts, detailed accounting, and potential business risks for AOs.
        C. Adding a New CFR Subpart to Existing Regulation

        • We are seeking stakeholder feedback on the most appropriate area for this potential future rulemaking under the existing regulations for AOs and whether expanding § 488.5(a)(10) to include a provision addressing this matter would be the most sensible placement.
        IV. Collection of Information Requirements

        This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. However, section II of this document does contain a general solicitation of comments in the form of a request for information. In accordance with the implementing regulations of the Paperwork Reduction Act of 1995 (PRA), specifically 5 CFR 1320.3(h)(4), this general solicitation is exempt from the PRA. Facts or opinions submitted in response to general solicitations of comments from the public, published in the Federal Register or other publications, regardless of the form or format thereof, provided that no person is required to supply specific information pertaining to the commenter, other than that necessary for self-identification, as a condition of the agency's full consideration, are not generally considered information collections and therefore not subject to the PRA. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
        V. Response to Comments

        Because of the large number of public comments we normally receive on Federal Register documents, we are not able to acknowledge or respond to them individually. We will consider all comments we receive by the date and time specified in the DATES section of this preamble, and, when we proceed with a subsequent document, we will respond to the comments in the preamble to that document.

          Dated: November 7, 2018.
          Seema Verma,
          Administrator, Centers for Medicare & Medicaid Services.

      [FR Doc. 2018-27506 Filed 12-18-18; 4:15 pm]
      BILLING CODE P


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 73
        [MB Docket No. 12-271; RM-11678; DA 14-1683]
        Radio Broadcasting Services; Pike Road, AL

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposal rule; denial.

          SUMMARY:
          The Audio Division denies the Petition for Rule Making filed by Alatron Corporation, Inc., proposing the allotment of FM Channel 228A at Pike Road, Alabama. The petition was denied because a counterproposal, consisting of three minor change applications, was granted instead: Application of Southeast Alabama Broadcasters, LLC, to upgrade the facilities of Station WDLA(FM), to 280C2, Fort Rucker, Alabama. The application of Gulf South Communications, Inc., to change the community of license for Station WDJR(FM), to Hartford, Alabama, and the application of Gulf South Communications, Inc., to change the channel and community of license for Station WDBT(FM), to Channel 228A, Hope Hull, Alabama. The license for Station WAAO-FM, Andalusia, Alabama will be modified to specify operation on Channel 229A.

          DATES:
          This is a synopsis of the Report and Order, MB Docket No. 12-271, adopted November 20, 2014, and released November 21, 2014.

          FOR FURTHER INFORMATION CONTACT:
          Deborah A. Dupont, Media Bureau, (202) 418-2700.

        SUPPLEMENTARY INFORMATION:

        This is a synopsis of the Report and Order, MB Docket No. 12-271, adopted November 20, 2014, and released November 21, 2014. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street SW., Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractors, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or via email www.BCPIWEB.com. This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. This document is not subject to the Congressional Review Act. (The Commission is not required to submit a copy of this Report and Order to Government Accountability Office, pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A) because no rule changes were made).

          Federal Communications Commission.
          Nazifa Sawez,
          Assistant Chief, Audio Division, Media Bureau.

      [FR Doc. 2014-29446 Filed 12-16-14; 8:45 am]
      BILLING CODE 6712-01-P