H.R. 3076 — what changed

changed “8903c. Postal service health benefits programService Health Benefits Program

“(a) Definitions—In this section—

“(1) the term covered Medicare individual means an individual who is entitled to benefits under Medicare part A, but excluding an individual who is eligible to enroll under such part under section 1818 or 1818A of the Social Security Act (42 U.S.C. 1395i–2, 1395i–2a);

“(2) the term initial contract year means the contract year beginning in January of 2023;

“(3) the term initial participating carrier means a carrier that enters into a contract with the Office to participate in the Postal Service Health Benefits Program during the initial contract year;

“(4) the term Medicare part A means part A of title XVIII of the Social Security Act (42 U.S.C. 1395c et seq.);

“(5) the term Medicare part B means part B of title XVIII of the Social Security Act (42 U.S.C. 1395j et seq.);

“(6) the term Office means the Office of Personnel Management;

“(7) the term Postal Service means the United States Postal Service;

“(8) the term Postal Service annuitant means an annuitant enrolled in a health benefits plan under this chapter whose Government contribution is paid pursuant to the requirements of section 8906(g)(2);

“(9) the term Postal Service employee means an employee of the Postal Service enrolled in a health benefits plan under this chapter whose Government contribution is paid by the Postal Service;

“(10) the term Postal Service Medicare covered annuitant means an individual who—

“(A) is a Postal Service annuitant; and

“(B) is a covered Medicare individual;

“(11) the term Program means the Postal Service Health Benefits Program established under subsection (c) within the Federal Employees Health Benefit Program;

“(12) the term Program plan means a health benefits plan offered under the Program; and

“(13) the terms set forth in section 8901 shall apply.

“(b) Application—The requirements under this section shall—

“(1) apply to the initial contract year and each contract year thereafter; and

“(2) supersede any other provision of this chapter inconsistent with such requirements, as determined by the Office of Personnel Management.

“(c) Establishment of the Postal Service Health Benefits Program

“(1) In general—The Office shall establish the Postal Service Health Benefits Program under which the Office contracts with carriers to offer health benefits plans as described under this section. Except as otherwise provided in this section, any such contract shall be consistent with the requirements of this chapter for contracts under section 8902 with carriers to offer health benefits plans other than under this section. The Program shall—

“(A) to the greatest extent practicable, include plans offered by—

“(i) each carrier for which the total enrollment in the plans provided under this chapter includes, in the contract year beginning in January 2022, 1,500 or more enrollees who are Postal Service employees or Postal Service annuitants; and

“(ii) any other carrier determined appropriate by the Office;

“(B) be available for participation by Postal Service employees and Postal Service annuitants, in accordance with subsection (d);

“(C) provide for enrollment in a plan as an individual, for self plus one, or for self and family; and

“(D) not be available for participation by an individual who is not a Postal Service employee or Postal Service annuitant (except as a member of family of such an employee or annuitant or as provided under paragraph (5)).

“(2) Separate Postal Service risk pool—The Office shall ensure that each Program plan includes rates that reasonably and equitably reflect the cost of benefits provided to a risk pool consisting solely of Postal Service employees, Postal Service annuitants, and covered members of family of such employees and annuitants (regardless of the health plan, coverage, or benefit program in which such an employee, annuitant, or member of family is enrolled), taking into specific account the change in benefits cost for the Program plan due to the Medicare enrollment requirements under subsection (e) and any savings or subsidies resulting from subsection (f).

“(3) Actuarially equivalent coverage—The Office shall ensure that each carrier participating in the Postal Service Health Benefits Program provides coverage under the Program plans offered by the carrier that is actuarially equivalent, as determined by the Office, to the coverage that the carrier provides under the health benefits plans offered by the carrier under this chapter that are not Program plans.

“(4) Applicability of federal employees health benefits program requirements—Except as otherwise set forth in this section, all provisions of this chapter applicable to health benefits plans offered by carriers under section 8903 or 8903a shall apply to plans offered under the Program.

“(5) Application of continuation coverage—In accordance with rules established by the Office, section 8905a shall apply to health benefits plans offered under this section in the same manner as such section applies to other health benefits plans offered under this chapter.

“(d) Election of coverage

“(1) In general—Except as provided in paragraph (2), each Postal Service employee and Postal Service annuitant who elects to receive health benefits coverage under this chapter—

“(A) shall be subject to the requirements of this section; and

“(B) may not enroll in any other health benefits plan offered under any other section of this chapter.

“(2) Exceptions

“(A) Lack of geographic coverage—An individual who is a Postal Service employee or Postal Service annuitant may enroll in a health benefits plan offered under any other section of this chapter if the individual resides in a geographic area for which there is not a Program plan in which the individual may enroll.

“(B) Annuitants as of program inception

“(i) Current medicare covered annuitants

“(I) In general—Subject to subclause (II), in the case of an individual who, as of January 1, 2023, is a Postal Service Medicare covered annuitant who has not enrolled in both Medicare part A and Medicare part B, such individual may enroll in a health benefits plan offered under any other section of this chapter, and may not enroll in a Program plan.

“(II) Program plan enrollment following Medicare parts A and B enrollment—In the case of an individual described in subclause (I) who subsequent to January 1, 2023, is enrolled in both Medicare part A and Medicare part B, beginning with the first contract year beginning after the date such individual is enrolled in both Medicare part A and Medicare part B, subclause (I) shall no longer apply to such individual and such individual may receive health benefits under this chapter only through a Program plan.

“(ii) Pre-medicare annuitants

“(I) In general—Subject to subclause (II), an individual who, as of January 1, 2023, is a Postal Service annuitant and is not a Postal Service Medicare annuitant (for a reason other than eligibility to enroll in Medicare part A under section 1818 or 1818A of the Social Security Act) may enroll in either a Program plan or in a health benefits plan offered under any other section of this chapter.

“(II) Exception—In the case of an individual described in subclause (I) who enrolls in a Program plan for any contract year beginning on or after the date on which the individual becomes a Postal Service Medicare covered annuitant, beginning with such contract year, subclause (I) shall no longer apply to the individual and the individual may receive health benefits under this chapter only through enrollment in a Program plan.

“(C) Certain employees as of program inception

“(i) Legacy coverage—A Postal Service employee who is enrolled in a health benefits plan under this chapter for the contract year immediately preceding the initial contract year that is not a health benefits plan offered by an initial participating carrier may enroll in either a Program plan or in a health benefits plan offered under any other section of this chapter, except that—

“(I) if the Postal Service employee changes enrollment to a different health benefits plan under this chapter during the open season for the initial contract year, or after the start of the initial contract year, the Postal Service employee may only enroll in a Program plan;

“(II) if the health benefits plan in which such employee is enrolled for such contract year becomes available as a Program plan, the Postal Service employee may only enroll in a Program plan; and

“(III) upon becoming a Postal Service annuitant, if the Postal Service employee elects to continue coverage under this chapter, the Postal Service employee shall enroll in a Program plan during the open season that is—

“(aa) being held when the Postal Service employee becomes a Postal Service annuitant; or

“(bb) if the date on which the Postal Service employee becomes a Postal Service annuitant falls outside of an open season, the first open season following that date.

“(ii) Current employees aged 64 and over

“(I) In general—Subject to subclause (II), an individual who, as of January 1, 2023, is a Postal Service employee and is at least 64 years of age may enroll in either a Program plan or in a health benefits plan offered under any other section of this chapter.

“(II) Exception—In the case of an individual described in subclause (I) who enrolls in a Program plan for any contract year beginning on or after the date on which the individual becomes a Postal Service Medicare covered annuitant, beginning with such contract year, subclause (I) shall no longer apply to the individual and the individual may receive health benefits under this chapter only through enrollment in a Program plan.

“(D) Certain other annuitants

“(i) Annuitants and family members excluded from premium-free Medicare part A

“(I) In general—Subject to subclause (II), a Postal Service annuitant who is eligible to enroll in Medicare Part A under section 1818 or 1818A of the Social Security Act may enroll in either a Program plan or in a health benefits plan offered under any other section of this chapter if the annuitant—

“(aa) is eligible to enroll in Medicare part A under section 1818 or 1818A of the Social Security Act; or

“(bb) includes in the annuitant’s plan enrollment one or more family members who are eligible to enroll in Medicare part A under section 1818 or 1818A of such Act.

“(II) Exception—In the case of an annuitant described in subclause (I) who enrolls in a Program plan for any contract year beginning on or after the date on which the annuitant or any member of family covered by the enrollment becomes eligible to enroll in Medicare part A, beginning with such contract year, subclause (I) shall no longer apply to the annuitant and the annuitant may receive health benefits under this chapter only through enrollment in a Program plan.

“(ii) Limited or redundant coverage—An individual who is a Postal Service annuitant may enroll either in a Program plan (subject to subsection (e) of this section and to sections 226(j) and 1837(o)(2) of the Social Security Act) or in a health benefits plan offered under any other section of this chapter for any contract year in which the annuitant or member of family covered by the enrollment, respectively, is a covered Medicare individual and—

“(I) the annuitant or family member, respectively, resides in an area where the Office has determined that no Medicare providers are available;

“(II) the annuitant receives comprehensive medical coverage provided by the Department of Veterans Affairs under subchapter II of chapter 17 of title 38, United States Code; or

“(III) the annuitant receives comprehensive medical coverage provided by the Indian Health Service under the Indian Health Care Improvement Act (25 U.S.C. 1601 et seq.).

“(iii) Regulations—Not later than 90 days after the date of enactment of this section, the Office shall, in consultation with the Secretary of Health and Human Services, the Secretary of Veterans Affairs, and the Postmaster General, promulgate any regulations necessary to implement this subparagraph.

“(e) Requirement of medicare enrollment for certain annuitants and their family members

“(1) Annuitants—Except as provided under subsection (d)(2), a Postal Service Medicare covered annuitant may not enroll under a Program plan unless the annuitant is enrolled in both Medicare part A and Medicare part B.

“(2) Medicare covered family members—In the case of a Postal Service annuitant who is required under this subsection to enroll in Medicare part A and Medicare part B to enroll under the Program, if a member of family of such Postal Service annuitant is a covered Medicare individual or is eligible to enroll in Medicare Part A under section 1818 or 1818A of the Social Security Act, that member of family may not enroll under the Program as a member of family of the Postal Service annuitant unless that member of family is enrolled in both Medicare part A and Medicare part B.

“(3) Process for coordinated election of Medicare enrollment—The Office shall establish a process under which—

“(A) Postal Service annuitants and members of family who are subject to the requirements of paragraph (1) or (2)—

“(i) are informed, prior to enrollment under this section, of such requirement; and

“(ii) receive requests for any additional information necessary for enrollment in writing; and

“(B) the Office provides the Secretary of Health and Human Services and the Commissioner of Social Security in a timely manner with such information with respect to such annuitants and members of family and such election as may be required to effect their enrollment and coverage under Medicare part A and Medicare part B and this section in a timely manner, including to effect deemed enrollments, if applicable under sections 226(j) and 1837(o) of the Social Security Act, for such continuous period as such annuitant or member of family involved otherwise maintains eligibility for enrollment under Medicare part A and Medicare part B, to have elected to be enrolled under such part (in accordance with such sections) in connection with the enrollment in a Program plan under this section.

“(f) Medicare coordination

“(1) In general—The Office shall require each Program plan to provide benefits for covered Medicare individuals (and individuals eligible to enroll in Medicare part A pursuant to section 1818 or 1818A of the Social Security Act) pursuant to the same coordination of benefits method used in connection with plans offered under any other section of this chapter.

“(2) Medicare part d prescription drug benefits—The Office shall require each Program plan to provide prescription drug benefits to any Postal Service annuitant and member of family of such annuitant who is a part D eligible individual (as defined in section 1860D–1(a)(3)(A) of the Social Security Act) through employment-based retiree health coverage (as defined in section 1860D–22(c)(1) of such Act) through a prescription drug plan (as defined in section 1860D–41(a)(14) of such Act).

“(g) Postal service contribution

“(1) In general—Subject to subsection (i), for purposes of applying section 8906(b) to the Postal Service, the weighted average shall be calculated in accordance with paragraphs (2) and (3).

“(2) Weighted average calculation—Not later than October 1 of each year (beginning with 2022), the Office shall determine the weighted average of the rates established pursuant to subsection (c)(2) for Program plans that will be in effect during the following contract year with respect to—

“(A) enrollments for self only;

“(B) enrollments for self plus one; and

“(C) enrollments for self and family.

“(3) Weighting in computing rates for initial contract year—In determining such weighted average of the rates for the initial contract year, the Office shall take into account (for purposes of section 8906(a)(2)) the enrollment of Postal Service employees and annuitants in the health benefits plans offered by the initial participating carriers as of March 31, 2022.

“(h) Reserves

“(1) Separate reserves

“(A) In general—The Office shall ensure that each Program plan maintains separate reserves (including a separate contingency reserve) with respect to the enrollees in the Program plan in accordance with section 8909. All provisions of section 8909 relating to contingency reserves shall apply to contingency reserves of Program plans in the same manner as to those of other plans under this chapter, except to the extent that such provisions are inconsistent with the requirements of this subsection.

“(B) References—For purposes of the Program, each reference to “the Government” in section 8909 shall be deemed to be a reference to the Postal Service.

“(C) Amounts to be credited—The reserves (including the separate contingency reserve) maintained by each Program plan shall be credited with a proportionate amount of the funds in the reserves for health benefits plans offered by the carrier.

“(2) Discontinuation of program plan—In applying section 8909(e) relating to a Program plan that is discontinued, the Office shall credit the separate Postal Service contingency reserve maintained under paragraph (1) for that plan only to the separate Postal Service contingency reserves of the Program plans continuing under this chapter.

“(i) No effect on existing law—Nothing in this section shall be construed as affecting section 1005(f) of title 39 regarding variations, additions, or substitutions to the provisions of this chapter.

“(j) Health benefits education program

“(1) Not later than 180 days after the date of enactment of this section, the Postal Service shall establish a Health Benefits Education Program. Under the Program, the Postal Service shall—

“(A) notify annuitants and employees of the Postal Service about the Postal Service Health Benefits Program established under subsection (c)(1);

“(B) provide information regarding the Postal Service Health Benefits Program to such annuitants and employees, including a description of the health care options available under such Program, the enrollment provisions of subsection (d), and the requirement that annuitants and their family members be enrolled in Medicare under subsection (e); and

“(C) in coordination with the Centers for Medicare & Medicaid Services and the Commissioner of Social Security, respond and provide answers to any inquiry from such employees and annuitants about the Postal Service Health Benefits Program or Medicare enrollment.

“(2) The Office shall timely provide the Postal Service with such information as the Postal Service determines to be necessary to conduct the Medicare Education Program.”

“(j)

“(1) In the case of an individual who—

“(A) on or after January 1, 2023, is—

“(i) a Postal Service employee;

“(ii) a Postal Service annuitant who is not a Postal Service Medicare covered annuitant; or

“(iii) a member of family of a Postal Service employee or of a Postal Service annuitant and who is not described in section 1837(o)(1) of this Act; and

“(B) enrolls in a Program plan under section 8903c of title 5, United States Code,

“(2) Entitlement to hospital benefits under part A by reason of paragraph (1) begins as of—

“(A) in the case of an individual who is a Postal Service employee or a Postal Service annuitant who is eligible to become a Postal Service Medicare covered annuitant, the date on which the individual becomes a Postal Service Medicare covered annuitant or the date of enrollment in a Program plan, whichever is later;

“(B) in the case of an individual who is eligible to enroll under section 1818 or 1818A, the date on which the individual attains such eligibility or the date of enrollment in a Program plan whichever is later; and

“(C) in the case of an individual who is described in paragraph (1)(A)(iii) and is eligible to become a covered Medicare individual, as of the first date the individual becomes a covered Medicare individual or the date of enrollment in a Program plan, whichever is later.

“(3) The definitions in section 8903c(a) of title 5, United States Code, shall apply for purposes of this subsection.

“(4) Nothing in this subsection shall be construed to deprive any individual of any other method or period of enrollment to which such individual is entitled under this section.”

“(o)

“(1) In the case of an individual who—

“(A) as of January 1, 2023, is—

“(i) a Postal Service Medicare covered annuitant; or

“(ii) a member of family of a Postal Service employee or of a Postal Service annuitant and is a covered Medicare individual;

“(B) intends to enroll in a Program plan under section 8903c of title 5, United States Code, for the initial contract year; and

“(C) is not enrolled under this part,

“(2) In the case of an individual who—

“(A) on or after January 1, 2023, is—

“(i) a Postal Service employee;

“(ii) a Postal Service annuitant who is not a Postal Service Medicare covered annuitant; or

“(iii) a member of family of a Postal Service employee or of a Postal Service annuitant and who is not described in paragraph (1); and

“(B) enrolls in a Program plan under section 8903c of title 5, United States Code;

“(3) The definitions in section 8903c(a) of title 5, United States Code, shall apply for purposes of this subsection.

“(4) Nothing in this subsection shall be construed to deprive any individual of any other method or period of enrollment to which such individual is entitled under this section.”

“(i) Notwithstanding subsection (a)—

“(1) in the case of an individual who enrolls under this part pursuant to a special enrollment period under paragraph (1) of section 1837(o), the coverage period under this part shall begin on the date that the individual first has coverage under the Program plan pursuant to the enrollment described in paragraph (1)(B) of such section; and

“(2) in the case of an individual who is deemed enrolled under paragraph (2) of section 1837(o), the coverage period under this part shall begin as of—

“(A) in the case of such an individual who is a Postal Service employee or a Postal Service annuitant who is eligible to become a Postal Service Medicare covered annuitant, the date on which the individual becomes a Postal Service Medicare covered annuitant or the date of enrollment in a Program plan, whichever is later;

“(B) in the case of such an individual who is eligible to enroll under section 1818 or 1818A of this Social Security Act, the date on which the individual attains such eligibility or the date of enrollment in a Program plan, whichever is later; and

“(C) in the case of an individual described in paragraph (2)(A)(i)(III) of such section who is eligible to become a covered Medicare individual, as of the first date the individual becomes a covered Medicare individual or the date of enrollment in a Program plan, whichever is later.”

added “3692. Performance targets and transparency

added “(a) Performance targets—Each year, to ensure that mail service for postal customers meets the service standards for market-dominant products, established under section 3691, the Postal Service shall—

added “(1) at least 60 days before the beginning of the fiscal year in which they will apply, establish and provide to the Postal Regulatory Commission reasonable targets for performance; and

added “(2) provide the previous fiscal years’ performance targets in its Annual Compliance Report to the Postal Regulatory Commission for evaluation of compliance.

added “(b) Public performance dashboard

added “(1) In general—The Postal Service shall develop and maintain a publicly available Website with an interactive web-tool that provides performance information for market-dominant products that is updated on a weekly basis.

added “(2) Performance information—The performance information provided on the Website shall include—

added “(A) the type of market-dominant product;

added “(B) geographic area at the nationwide, Area, and District level;

added “(C) time periods showing performance information in annual, quarterly, monthly, and weekly segments;

added “(D) comparisons of performance information for market-dominant products for previous time periods to facilitate identification of performance trends; and

added “(E) the current performance targets and previous fiscal year performance targets, established under subsection (a)(1).

added “(3) Comprehensibility—The Website shall include plain language descriptions of the elements required under paragraph (2) and information on the collection process, measurement methodology, completeness, accuracy, and validity of the performance information provided on the Website.

added “(4) Address search functionality—The Website shall include functionality to enable a user to search for performance information by street address, ZIP Code, or post office box.

added “(5) Format—The performance information provided on the Website shall be made available—

added “(A) in a manner that—

added “(i) presents the information referenced under paragraph (2) on an interactive dashboard;

added “(ii) is searchable and may be sorted and filtered by the elements described in paragraph (2); and

added “(iii) to the extent practicable, enables any person or entity to download in bulk—

added “(I) such performance information; and

added “(II) the results of a search by the elements described in paragraph (2);

added “(B) in an open format that permits any individual or entity to reuse and analyze the performance information; and

added “(C) in a structured data format, to the extent practicable.

added “(6) Consultation—The Postal Service shall regularly consult with the Postal Regulatory Commission on appropriate features and information to be included on the Website.

added “(7) Public input—The Postal Service shall—

added “(A) solicit public input on the design and implementation of the Website; and

added “(B) maintain a public feedback tool, to ensure features of, and information on, the Website is usable and understandable.

added “(8) Deadline—The Website shall be implemented and made available to the public not later than the date on which the performance targets are provided to the Postal Regulatory Commission under subsection (a)(1).

added “(9) Availability—A link and plain language description of the Website shall be made available on the website where the performance targets and measurements established under subsection (a)(1) are made available.

added “(10) Reporting—The dashboard referred to in paragraph (5)(A)(i) shall be referenced in the Annual Performance Plan under section 2803, the Annual Performance Report under section 2804, and the Annual Report under section 2402.

added “(11) Definitions—In this subsection—

added “(A) Performance information—The term performance information means the objective external performance measurements established under section 3691(b)(1)(D).

added “(B) Website—The term Website means the website described in paragraph (1).”

removed Subchapter VII of chapter 36 of title 39, United States Code, is amended by inserting after section 3691 the following:

removed “3692. Performance Targets and Transparency

removed “(a) Performance targets—Each year, to ensure that mail service for postal customers meets the service standards for market-dominant products, established under section 3691, the Postal Service shall—

removed “(1) at least 60 days before the beginning of the fiscal year in which they will apply, establish and provide to the Postal Regulatory Commission reasonable targets for performance; and

removed “(2) provide the previous fiscal years’ performance targets in its Annual Compliance Report to the Postal Regulatory Commission for evaluation of compliance.

removed “(b) Public performance dashboard

removed “(1) In general—The Postal Service shall develop and maintain a publicly available Website with an interactive web-tool that provides performance information of market-dominant products that is updated on a weekly basis.

removed “(2) Performance information—The performance information provided on the Website shall include—

removed “(A) the type of market-dominant product;

removed “(B) geographic area at the nationwide, Area, and District level;

removed “(C) time periods showing performance information in annual, quarterly, monthly, and weekly segments;

removed “(D) comparisons of performance of market-dominant product results for previous time periods to facilitate identification of performance trends; and

removed “(E) the current performance targets and previous fiscal year performance targets, established under subsection (a)(1).

removed “(3) Comprehensibility—The Website shall include plain language descriptions of the elements required under paragraph (2) and information on the collection process, measurement methodology, completeness, accuracy, and validity of the performance information provided on the Website.

removed “(4) Address search functionality—The Website shall include functionality to enable a user to search for performance information by street address, ZIP Code, or post office box.

removed “(5) Format—The performance information provided on the Website shall be made available—

removed “(A) in a manner that—

removed “(i) presents the information referenced under paragraph (2) on an interactive dashboard;

removed “(ii) is searchable and may be sorted and filtered by the elements described in paragraph (2); and

removed “(iii) to the extent practicable, enables any person or entity to download in bulk—

removed “(I) such performance information; and

removed “(II) the results of a search by the elements described in paragraph (2);

removed “(B) in an open format that permits any individual or entity to reuse and analyze the performance information; and

removed “(C) in a structured data format, to the extent practicable.

removed “(6) Consultation—The Postal Service shall regularly consult with the Postal Regulatory Commission on appropriate features and information to be included on the Website.

removed “(7) Public input—The Postal Service shall—

removed “(A) solicit public input on the design and implementation of the Website; and

removed “(B) maintain a public feedback tool, to ensure features of, and information on, the Website is usable and understandable.

removed “(8) Deadline—The Website shall be implemented and made available to the public not later than the date on which the performance targets are provided to the Postal Regulatory Commission under subsection (a)(1).

removed “(9) Availability—A link and plain language description of the Website shall be made available on the website where the performance targets and measurements established under subsection (a)(1) are made available.

removed “(10) Reporting—The dashboard referred to in paragraph (5)(A)(i) shall be referenced in the Annual Performance Plan under section 2803, the Annual Performance Report under section 2804, and the Annual Report under section 2402.

removed “(11) Definitions—In this subsection—

removed “(A) Performance information—The term performance information means the objective external performance measurements established under section 3691(b)(1)(D).

removed “(B) Website—The term Website means the website described in paragraph (1).”

changed Section 101(b) of title 39, United States Code, is amended by inserting before “The Postal Service” the following: “The Postal Service shall maintain an integrated network for the delivery of market-dominant and competitive products (as defined in chapter 36 of this title). Delivery shall occur, to the maximum extent practicable, occur at least six days a week, except during weeks that include a Federal holiday.”.holiday or in emergency situations, such as natural disasters.”.

changed “(B) In carrying out the duties and responsibilities specified in this Act, the Inspector General of the United States Postal Service shall function as the Inspector General for the Postal Regulatory Commission, and shall have oversight authority equal responsibility over the Commission as if the Commission were part of the United States Postal Service. Service and the Postal Regulatory Commission. The Commission shall comply with the Inspector General’s oversight as if the Commission were a designated Federal entity under paragraph (a)(2) of this section.”